Rozel Operating v. Crown Point Holdings, LLC, et al., reminds one of the need to understand and apply the meaning of terms used in a statute one is attempting to enforce. And imaginative theories don’t work without evidence to support them. Continue Reading How Not to Secure an Oil Well Lien in Louisiana
Co-author Chance Decker
We recently discussed Freeman v. Harleton. The opinion shows the transaction as a bunco job. Here’s more:
- Bufkin and Wayne Freeman have done business together since the 1980s. They had a co-development agreement with Harleton.
- Long-standing agreements among the three of them made it clear that Harleton owned 50 percent of the Geisler Unit.
- Chesapeake never talked to the Freeman defendants, who were not parties to the letter agreement for the sale.
- Chesapeake didn’t contract non-ops because Chesapeake believed the letter agreement prevented them from doing so.
- Bufkin would bring non-ops to each closing, and they would receive offers to sell on the same terms as Buffco.
- Wayne Freeman, who attended his closing, knew Harleton’s ownership interest in the unit but did not raise the issue because, ”It did not occur to him to do so.” He said “[I]t was Chesapeake’s obligation to figure out who owned what” in the unit.
- As a non-op and non-signatory Freeman never made representations or warranties.
- To Chesapeake it became obvious that Bufkin had known when he closed that the ownership in the Geisler Unit was different than what he said it was.
- The due-diligence landman’s work was entirely from Buffco/Twin files. He didn’t check the county records because he was told by Bufkin and team that his title determination was correct.
- The landman came to believe that Buffco removed materials from files that would have revealed Harleton’s interest in the deep rights.
- See the opinion for federal Judge Gilstrap’s view of the defendants’ activities. it was adopted by the state court trial judge.
Enterprise Products Partners, L.P. et al v. Energy Transfer Partners, L.P. et al reversed one of the largest jury verdicts in Texas history. You will like this decision if:
- You believe a party has the right to rely on the sanctity of a written contract.
- You believe that it is proper for a court to be guided by “law and equity”.
You will not like it if:
- You favor “partnership by ambush”, as one of Enterprise’s lawyers put it.
- You regret that pesky pleading rules and required jury findings take the “Wild West” out of jury trials.
Co-author Chance Decker
You are selling properties. The buyer thinks you own the deep rights but you know your long-time partner owns them. You attend the closing. You don’t tell the buyer that he’s got the ownership wrong. You are protected by a contract. Do you fess up? What if it means $6.8 million?
In Freeman, et al v. Harleton Oil & Gas Chesapeake agreed to buy three-year term assignments of Buffco’s and Twin Eagle Resources’ interest in 14,000 acres in East Texas for $232 million. Continue Reading An Oil Patch Morality Play – Part 1
There’s no better place in the oil patch to play the blame game than 10,000 feet of leaky wellbore.
What went wrong?
In Justiss v. Oil Country Tubular Corporation, Justiss, a drilling contractor, entered into an IADC model turnkey drilling contract for a well in Beauregard Parish. The contract specified 12,500 feet of intermediate casing to be LTC pipe with buttress threads. The contract depth was 15,000 feet. Justiss purchased the casing from OCTC.
The operation was star-crossed. Justiss discovered a hole in the surface casing, which it repaired by cementing the casing in place. This made it impossible to remove the intermediate casing string when things got bad. Beginning at 3,500 feet the casing wouldn’t maintain adequate pressure and Justiss performed 13 squeeze jobs in an effort to remedy the problem. These and other efforts to fix the leaks lasted five weeks and cost millions of dollars. At 13,596 feet the casing would not maintain pressure and, for fear of losing well control, the operation was terminated.
Read this if you sell a product or a service Continue Reading Blame Game Fails Louisiana Casing Vendor
Forest Oil Corporation v. El Rucio Land and Cattle Inc. et al deserves your attention for four reasons:
- You won’t see another one involving damage to a rhinoceros pen.
- It confirms that the Texas Railroad Commission does not have exclusive or primary jurisdiction over private claims for environmental contamination. Welcome to the courthouse.
- The South Texas redistributionist approach to civil justice includes arbitrations.
- For once, the Texas Supreme Court declined to eviscerate a multi-million dollar plaintiff victory.
How to distinguish an oil and gas lease from a mineral deed? In Richardson v. Mills, it was a deed when the instrument uses words like “forever” and imposes no duty to explore for and develop minerals.
An instrument from 1906, when Teddy Roosevelt was busting trusts and creating national parks, was between Mills on the one hand and Lindsey and Harris on the other. The document referred to the parties’ “desire” for “development, tests and demonstrations” and for Lindsay and Harris to manage the property so it would be developed for oil and gas or be sold.
The granting language referred to “an undivided one half interest in the oil, gas and other minerals … “ to Harris and Lindsay, and further rights and privileges necessary and proper for the performance of the work of prospecting, testing, operating, etc.
A 1908 release referred to “said contract or lease the time for said development has expired rendering null and void said lease.” There was a relinquishment of any right or claim held by Nacogdoches Land Company.
Trial and the clairvoyant expert – it’s a lease
Mills offered the opinion of an attorney who reviewed the contract (over 100 years after it was executed) and opined about what the (deceased!) parties possibly intended. It’s unknown whether his conclusion was absorbed from the cosmos or the result of a séance with the spirits of the dead.
The trial court determined that the instruments were ambiguous and allowed extrinsic evidence to determine the parties’ intent. Alternatively the 1906 instrument was released when Lindsay and Harris did not perform their obligations.
On appeal – it’s a deed
Reversed and rendered. The 1906 instrument was not ambiguous. It was a deed:
- Harris and Lindsay had the right but not the duty to develop the minerals.
- There was no time within which actions must be taken.
- The consideration was services rendered.
- The granting clause said “grant, bargain, sell and convey … ”.
- The habendum and warranty clauses specified “forever”.
This was language of an unconditional conveyance, not for exploitation of minerals.
What about the 1908 release?
The 1908 release referred to an instrument dated July 9, 1907, whereas the document in question was dated July 9, 1906. The 1908 release described the document as a “contract or lease” but not as a deed. There were other discrepancies. No recording information for the 1906 document was mentioned in the 1908 release. Mills argued that there was a latent ambiguity (an ambiguity appearing by reason of some collateral matter). Mills contended that reference to 1907 really meant 1906.
Mills’ efforts were rejected, including the testimony from the lawyer. The 1908 release was unambiguous and there was no connection between the two instruments.
In an odd twist, the parties stipulated that if Mills lost they would nevertheless own a small interest in the property. Thus, Mills took nothing from the court but ended up with four percent of the minerals from the stipulation.
A phrase currently in common usage begins with “‘cluster” and ends with a vulgarity that has been around for centuries. Saheid v. Kennedy presents facts that pretty much exemplify the meaning of the phrase:
- While living in England, start out to buy a hotel in New Orleans,
- have no experience in Louisiana mineral transactions,
- when the hotel falls through, buy 1096 acres with 500 wells in northernmost Caddo Parish,
- do zero title due-diligence,
- memorialize the $4 million transaction with a one-page handwritten document,
- close the deal three weeks later with an Act of Credit Sale,
- pay royalties for four years and then dispute the obligation,
- when disagreement ensues sign another “contract” that doesn’t really help,
- sum it all up by testifying as to your “confusion” about the transaction.
The one-pager for the 1096 acres provided: “Seller [Gish] to give a best effort to deliver to Buyer [Saheid] the remaining 12 ½% Gish family oil and gas lease holding.” Saheid’s purchase price would be reduced by $400,000 if Gish couldn’t deliver the minerals within five years. Saheid paid royalty to the Gish relatives for almost four years. Saheid and Gish later entered into a “contract” in which they agreed that the Saheid payment would be reduced and Gish would continue to withhold the 12.5% royalty.
What legal points are at play?
Not much about titles, a lot about parol evidence, which is admissible when:
- the terms of a contract are susceptible to more than one meaning,
- there is ambiguity as to its provisions, or
- the intent of the parties cannot be ascertained from the language used.
Four witnesses sorted out the mess. And as one might expect, the testimony was confusing and contradictory. Saheid had never purchased mineral interests before and said he was unaware of the 12.5% being claimed by the family. His title-examiner expert testified that the public records showed there was no written contract for the 12.5% mineral interest. But he agreed that it was Gish’s right to sell 87.5% and keep the rest if the agreement so specified.
The court concluded that Gish did not intend to sell and Saheid did not intend to buy the entire mineral interest. Gish was selling 100% of the tract and 87.5% of the minerals, which is a reasonable concession for accepting a partial payment and owner financing. The court referred to Saheid’s “imperfect understanding” of the transaction.
- Due diligence = good business, sloppiness and haste = bad business.
- Lame, one-page agreements are seldom sufficient for anything, much less a $4 million land and mineral trade.
- Paying royalties for four years and then saying you thought you owned the minerals = not persuasive.
- Entering into a contract before you understand it = bad business.
If Saheid had stopped in Opelousas instead of turning north to Shreveport, maybe he could have avoided this mess.
First, a promise: I won’t report on another arbitration case until there is more to say than “business as usual”. Second, an opinion: Arbitration is still the right forum in many situations. Third, remember: An award and a result, not litigation, was what Venoco says it bargained for.
That said, knowing only that Denbury Onshore v. Texcal Energy South Texas is an appeal of an arbitration award in Texas, you can predict the outcome. The award was confirmed.
How to vacate an award
The bases for vacating awards are similar under the federal and the Texas arbitration acts. Generally an award must have been procured by:
- corruption, fraud or undue means,
- evident partiality or corruption,
- arbitrator misconduct (willful misbehavior),
- refusing to postpone the hearing for sufficient cause,
- refusing to hear material evidence,
- other misbehavior that prejudices a party’s rights, or
- the arbitrators exceeded their powers or so imperfectly executed them that a final and definite award was not made.
I’m conflating the two statutes. They aren’t identical but the result is the same: vacating an award is difficult.
Denbury had an option to purchase Venoco’s interests in the Hastings Field. After Denbury achieved payout, Venoco would receive a 25% back-in. Payout was dependent on Denbury’s “CO2 costs”, the direct costs of acquiring (commodity costs) and delivering (transportation costs) CO2.
A three arbitrator panel unanimously declared the meaning of the disputed language of the agreement and issued an award in Venoco’s favor.
Denbury sued to modify and vacate the award for:
- insufficient evidence,
- the arbitrators exceeded their authority by making an incorrect value judgment on the contract clause,
- manifest disregard of the law (in essence, they construed the contract incorrectly), and
- the parties had contracted for judicial review.
All reasonable preferences are indulged in favor of the award, and review of an award is extraordinarily narrow.
Denbury argued that the parties contracted to expand judicial review for reversible error: “An appeal from an order or judgment of the panel shall be taken in the manner and to the same extent as some orders or judgment in civil cases under Texas law.” This was not a clear enough agreement to invoke the appellate process to correct reversible error by the panel.
Did Denbury get what it bargained for?
Under the TAA and FAA an arbitrator exceeds his authority only when he disregards the contract and dispenses his own idea of justice or when he strays from the delegated task of interpreting the contract, not that he performs that task poorly. The panel’s 13-page detailed award satisfied the contractual requirement that the award provide evidentiary references. The award was not so irrational or devoid of authority that the panel was merely dispensing its own idea of justice.
The court concluded that Denbury’s complaint was nothing more than a dispute as to the correctness of the panel’s construction of the provision and an effort to re-argue the merits of the case. Don’t be so sure. I could believe that Denbury believed it could appeal but failed to write the provision clearly enough. Think about that the next time you write such a provision Better yet: why arbitrate if you can appeal?
“The philosophy behind all of the model form agreements is that aggressive drilling under the JOA should be promoted and rewarded.
Agree or disagree?
That was an issue in Talisman Energy v. Matrix Petroleum. It was not resolved, but the decision is worth your attention because the court enjoined the operator from drilling and proposing wells pending trial on the merits.
The parties were drilling wells in LaSalle County, Texas, under a 1954 Model Form JOA. Section 15 (which the court refers to as Section ”16”; see V.D of the later forms) allows the operator to use its own equipment and tools only on a competitive basis, if it does not exceed prevailing rates, and after an agreement in writing with the non-operators. Evidence was presented that Talisman was exceeding the prevailing market rate and was not confirming the arrangement with Matrix prior to operations.
A procedural hurdle
Procedural wrangling prevented the court from answering our existential question. Talisman’s expert landman, and the source of the statement, was going to show certain customs and usages in the model form and how it is intended to work.
An expert can testify about, for example, the common understanding of “commencement of operations”. But the court viewed the testimony as being offered not to explain the meaning of an industry term, but rather to aid the trial court in construing sections 5 and 8 of the agreement. A court doesn’t need an expert to help it construe an agreement. That’s what the judge is for. The testimony was not considered.
What about irreparable harm?
Lawyers: The decision discusses why there was irreparable injury and why it didn’t matter that Matrix wasn’t seeking a permanent injunction.
We’re usually done by now. Appropriate for an old-timey but still-breathing JOA are old-timey but timeless tunes. Today we have one with roots from 1860, and one originating in 1720 (you can look it up!).
If you elect to participate in a subsequent operation, you may now …
Consider the existential question
I conducted a random and unscientific survey of industry professionals (to-wit, people with whom I have lunch and drink whiskey, often not at the same time). The result: Some agreed with the statement, most did not.
These alternative “philosophies” behind the model form were presented:
- The JOA is an “outline for honorable men to follow in the development of oil and gas properties.”
- The purpose … or the “philosophy”, is to control the Operator to a certain extent and to ensure that WI owners understand and agree to costs and when and how payments are to be made.
- The efficient utilization and maximization of leasehold opportunities, along with effective production management should be the goal. Profit maximization and reasonable adherence to the prudent operator’s implied covenant to develop should govern the drilling philosophy.
- One of the reasons … [is] … to protect minority owners, to keep the major participants from expensing them out of the Agreement by not orderly and timely proposing drilling, completing and evaluating opportunities and risks … .
- The goal is to have prudent operations in all respects – financial, engineering, geologic, etc.
- The reason … is to provide those who elect to participate in the drilling of wells necessary to efficiently drain the reservoir with a proper return for assuming the risk and burden of those partners who elect not to participate.
- If they choose to do so, the parties can negotiate terms that clearly provide for an active drilling program as their primary objective.
- If you wanted “aggressive development” the non-consent penalty would be [more than] 300%. Or there would be no non-consent … . If the drafters truly wanted to reward “aggressive drilling”, the non-consent would have never been proposed.
- In contrast to a JOA, it could be argued that “aggressive drilling be promoted and rewarded” is the intent of an Oklahoma Forced Pooling Order [and that] such an Order is designed to punish anyone who does not aggressively drill or expend capital … by taking away subsequent interests.
But I also heard from who agree (including the expert, who stands by his opinion):
- The generation that came up in the 1950’s, ‘60’s and ‘70’s, plus committee members of the AAPL JOA task force who worked on the 1989 Model Form, asserted their “philosophy” that aggressive drilling is to be promoted and rewarded. That philosophy prevailed. Hence, the non-consent option.
- Article VI (Drilling & Development) sets forth the conditions for which one party can take on the risk of drilling with or without the participation of all parties. Oklahoma’s forced pooling statute revolves around the JOA. (A contrary view of Oklahoma forced pooling?)
- The pro-development bias is explained by the fact that any party, no matter how small its interest, can propose a well and force all other parties to either join or go non-consent, subject to the penalty.
- The alternative is to either 1) carry the non- consenting party under common law co-tenancy (in which case there is no “penalty”; only recovery of costs), or 2) vote on operations, as with international, offshore, and onshore field wide unitization/secondary recovery.
- Unlike international or offshore arrangements, in the model forms there are no provisions for voting mechanisms, project teams, committees, and forced collaboration prior to a drilling proposal. Any party can move forward by AFE’ing the others and allowing them to invoke the non-consent penalty. That reflects the aggressive drilling philosophy.
- The form certainly doesn’t discourage aggressive drilling. That is reflected in the non-consent option.
Why the discord?
It’s no surprise. The “disagreers” tend to be smaller operators and non-ops (my eating buddies). The “agreers” tend to be larger, with bigger budgets. The “small guys” tend to want to rein in the “big guys” and make them go about development in an orderly fashion with maximum collaboration. The big guys tend to favor agreements that allow them drill away; said less charitably, to force operations on the others at-will.
Who says the oil business is monolithic?