MDU Barnett Ltd. P’ship v. Chesapeake Exploration Ltd. P’ship is at least three things:
- The culmination of an unhappy relationship between an operator and non-operators.
- What happens when joint owners’ interests are not aligned.
- Predictable, given Texas law and the relationship of parties under the model form JOA.
In 2005 Chesapeake and Conglomerate Gas entered into an Exploration and Development Agreement involving Barnett Shale properties. A separate 1982 AAPL Model Form 610 Operating Agreement governed each exploration and development area.
Chesapeake was designated as the operator, which gave it exclusive control over leasing, drilling and operations. Under the E&D Agreement, Chesapeake was to provide drilling reports, logs, cores, tests and all information gathered from the wellbore. After termination of the E&D Agreement – on March 1, 2008 – each separate operating agreement governed.
Conglomerate assigned wellbore interests to Oro in June 2008. Oro then conveyed the interests to the plaintiffs, who bought with the intent to sell. In order to do so, the plaintiffs sought development information and acreage maps, which Chesapeake wouldn’t give. Plaintiffs sued. The claims and their fate:
Negligence and Negligent Misrepresentation – Dismissed
Plaintiffs claimed that Chesapeake negligently deprived them of well information and financial payments. If the injury flowed from the economic loss to the subject of the contract itself, rather than as a result of the breach of a duty created by law (a tort, for example), the action sounds in contract alone. Here, the alleged economic damages arose from the defendant’s failure to perform under the contract. This is the economic loss rule in action.
There were allegations of misrepresentation of the viability of the E&D agreement. The complaint stated that they justifiably relied on the representations, which led to damages. This conclusory allegation was insufficient to support a claim for negligent representation.
Fraud – Dismissed
The claim was that Chesapeake fraudulently provided inaccurate or incomplete data wellbore data. The plaintiffs failed to allege fraudulent intent, and the pleading did not meet the heightened pleading requirement in federal court for fraud. The plaintiffs must do more than state that the statements were knowingly false when made or made with reckless disregard of the truth. The allegation in the complaint was not enough to show that the discrepancy was intentional or reckless.
Breach of Fiduciary Duties – Dismissed
- Trustee/agency relationship: Texas law does not recognize trustee type relationships in operating agreements.
- Joint venture: An operating agreement giving mutual right of control to both parties may create a joint venture. However, these agreements gave sole operating rights to Chesapeake.
- Informal fiduciary relationship: Such a claim requires a preexisting relationship between the parties. There was none in this case.
Equitable Accounting – Dismissed
The plaintiffs pled no facts showing that the revenue calculations under the contractual accounting mechanisms were of sufficient complexity to merit equitable relief.
Gross Negligence and Willful Misconduct – Dismissed
This was made, no doubt, to avoid the model form’s exculpatory clause. I’ve reported twice before on the difference between the 1982 and 1989 forms. The exculpatory clause is more favorable to the operator in the 1982 form.
Breach of Contract – The Plaintiff Stays Alive
The assertion was that Chesapeake violated several provisions of the E&D Agreement and the operating agreements, which caused the plaintiffs to suffer out-of-pocket, expectation, and impairment of vendibility damages. The E&D Agreement had terminated by the time MDU bought the properties. The court did not agree with plaintiff’s argument that the operating agreement’s incorporation language preserved the E&D Agreement. The operating agreements incorporated all of the E&D Agreement, including its March 1, 2008 termination date. Under the operating agreements, Chesapeake owed no duty to disclose development plans and acreage maps.
Unlike General Custer, the plaintiffs were not totally poured out. They stated a plausible claim for breach of contract relating to delayed look-back elections, erroneous JIBs, underpayments of proceeds, and improper production charges. These claims survived. Damages would be limited to expectancy damages in the form of financial underpayments of monies owed and overcharges of production costs.
Special thanks to Alexandria Moore, Baylor Law 2L and Gray Reed summer intern.
Our musical interlude is about the Barnett Shale, kind of.