B.A. Kelly Land Co., LLC v. Aethon United BR LP

Judgment rendered September 22, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,115-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

B.A. KELLY LAND CO., LLC Plaintiff-Appellee

versus

AETHON UNITED BR LP, Defendants-Appellants
ET AL.

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 160,052

Honorable E. Charles Jacobs, Judge

*****

COOK, YANCEY, KING & GALLOWAY Counsel for Appellants,
By: John T. Kalmbach Aethon United BR LP,
W. Drew Burnham and Aethon Energy
Operating, LLC

COLVIN, SMITH, McKAY & BAYS Counsel for Appellee
By: James H. Colvin, Jr.
Cole B. Smith

*****

Before PITMAN, STONE, and STEPHENS, JJ.

PITMAN, J.

Defendants-Appellants Aethon United BR LP (“Aethon United”), and

Aethon Energy Operating, (“Aethon Operating”) LLC, appeal a partial

summary judgment in favor of Plaintiff-Appellee B.A. Kelly Land Co., LLC

(“Kelly Land”). Appellants also seek review of the trial court’s judgment

overruling an exception of res judicata. For the following reasons, we

vacate the partial summary judgment.

FACTS

Kelly Land owns a 160-acre tract of land in Bossier Parish, which

makes up one-quarter of two drilling and production units created by the

Office of Conservation. One unit (15 wells) is for the Lower Cotton Valley

Zone, Reservoir A (“LCV unit”), and one is for the Haynesville Zone,

Reservoir A (“HA unit”) (1 well). The minerals underlying the land were

subject to a mineral servitude owned by Dorothy Richardson, who had

leased the minerals; but, upon her death on November 11, 2013, the

servitude and lease expired and the minerals reverted to the surface owner,

Kelly Land. The land is not subject to a mineral lease.

On November 15, 2013, four days after Richardson’s death, Kelly

Land sent a letter to J-W Operating Company (“J-W”), the operator of the

LCV unit wells at that time, and to Anadarko, the operator of the HA unit

well at that time, explaining that the tract was now unleased and requesting

well costs and revenue. Anadarko responded and began sending reports for

the HA unit, but J-W did not send reports for the LCV unit wells.

More than two years later, in May 2016, J-W assigned a 90 percent

undivided interest in the LCV unit wells and associated leases to Aethon

United and a 10 percent interest to a third party, PEO Hayesville Holdco,

LLC.1 At the time of the assignment, Aethon United designated Aethon

Operating to act as its agent and operator for the 16-unit and alternate-unit

wells that had been drilled by prior operators and were producing

hydrocarbons.

On December 15, 2017, Kelly Land sent a letter to Aethon Operating

demanding that it “[p]rovide the unit well costs and unit production data

required to be produced by the unit operator to the owner of an unleased

interest in the three units [,]” which it calls the “second demand.” On

April 17, 2018, Kelly Land sent Aethon Operating a second letter requesting

information, which it characterized as one calling to Aethon Operating’s

attention to its failure to respond to the second demand, and making further

demand on it to comply with Louisiana law by providing the ongoing

operating costs and expenses for the units by sworn, detailed, itemized

statements. Upon receipt of the second letter, Aethon Operating responded

through a senior landman to find out exactly what information Kelly Land

was seeking. Kelly Land offered to send Aethon Operating an example of a

report that a prior operator had sent to it so a similar report could be

compiled, but the sample was never delivered.

On September 21, 2018, Kelly Land filed suit against Aethon

Operating in federal court (“federal suit”) alleging that after it made a

demand under the Well Cost Reporting Statute (“the reporting statute”), La.

R.S. 30:103.1, Aethon Operating failed to timely provide it with initial and

quarterly reports of each well’s revenue and expenses. La. R.S. 30:103.2

requires that the unleased owner also put the operator in default for failing to

1
Although the brief names the company as PEO Hayesville Holdco, LLC, we
surmise it is more likely to be Haynesville.
2

provide the report of each well’s revenue and expenses and provides for

forfeiture of the costs of the well in the event not all requirements of the

statutes have been met.2 Kelly Land alleged that Aethon Operating forfeited

its right to recoup its pro rata share of the wells’ costs out of production,

which it otherwise would have been able to recoup under La. R.S. 30:10.

On August 5, 2019, ten months after the federal suit was filed, Kelly

Land filed the instant suit in state court against Aethon Operating asserting

the same forfeiture claim, but adding Aethon United as a non-diverse

defendant under a principal-agent theory. Without complete diversity,

Defendants could not remove to federal court and consolidate the state suit

with the federal suit. On October 3, 2019, Aethon Operating and Aethon

United filed a declinatory exception of lis pendens, alleging that there was

ongoing litigation in federal court on the same issue. The state court

overruled the exception, and this court denied writs and declined to exercise

its supervisory jurisdiction.

On October 8, 2019, the Honorable Terry A. Doughty, U.S. District

Judge, denied Kelly Land’s motion for partial summary judgment and found

that the letter of December 15, 2017, to Aethon Operating did not comply

with the requirements of the reporting statute as a demand letter and that the

letter of April 17, 2018, to Aethon Operating, as a forfeiture claim, did not

2
The operator of a unit well is entitled to withhold out of production an unleased
owner’s pro rata share of the cost of drilling, completing and operating the well until the
well generates enough revenue to cover its cost. La. R.S. 30:10. After this point, the
unleased owner is entitled to 100 percent of the revenue allocable to his tract, net of his
share of operating expenses. The reporting statute, La. R.S. 30:103.1, allows an unleased
owner to send a written request to the operator for detailed initial and quarterly reports of
the well’s costs and revenue. If the operator fails to comply with the request after being
placed in default, the operator forfeits his right to demand contribution from the owner of
the unleased oil and gas interests for the costs of the drilling operations of the well. La.
R.S. 30:103.2.
3

comply as a letter of default as required by La. R.S. 30:103.2.3 Because

Kelly Land could not prevail without the requisite written demands, the

federal court indicated that it intended, sua sponte, to grant summary

judgment in favor of Aethon Operating as to Kelly Land’s forfeiture claim

under the reporting statute. On December 4, 2019, after giving Kelly Land

another opportunity to brief the matter, the federal court granted partial

summary judgment in Aethon Operating’s favor and dismissed with

prejudice the forfeiture claim under the reporting statute (the “federal

judgment”). The federal court noted that Kelly Land’s claim for unpaid unit

revenues remained pending.

Kelly Land attempted to add Aethon United to the federal suit, but the

effort was rejected by the federal court. On January 16, 2020, when the

federal court certified the judgment dismissing Kelly Land’s claims for

forfeiture of the well costs as a final and appealable judgment, the court

stated:

Again, B.A. Kelly chose this forum [i.e. federal court]. The law
does not allow B.A. Kelly to play fast and loose with the
Court’s jurisdiction once it is exercised and significant judicial
resources have been expended. The issue of the sufficiency of
B.A. Kelly’s written demands under the Well Cost Reporting
Statute has been thoroughly briefed, and this Court has ruled,
dismissing B.A. Kelly’s forfeiture claim with prejudice. B.A.
Kelly’s forfeiture claim is fully resolved. Having chosen this
forum and submitted the issue for decision, the Court will not
allow B.A. Kelly to make an end run around an adverse ruling.
The Court and the parties have invested their time and resources
in this matter. But for B.A. Kelly’s unrelated underpayment
claim, the court’s ruling would be final.

By designating its December 4, 2019 ruling and order as a
partial final judgment under Rule 54(b), the Court will give its
ruling res judicata effect and hopefully allow the parties to
avoid the wasteful, duplicative, and vexatious re-litigation of
the exact same issue in a different forum. See, e.g. 10 Fed.

3
The federal court did not address Kelly Land’s first letter to J-W.
4

Prac. & Proc. Civ. §2659, n.24 (4th ed.) (explaining that
certification under Rule 54(b) may be proper to produce claim-
preclusive effect in another forum); Downing v. Riceland
Foods, Inc., 810 F. 3d 580, 587 (8th Cir. 2015) (holding that res
judicata effect weighs heavily in favor of certification under
Rule 54(b) when the court and the parties have invested
significant resources in reaching its ruling.

Kelly Land appealed the federal court’s decision to the U.S. Court of

Appeals for the Fifth Circuit, and oral argument was held on December 4,

2020. The parties are awaiting that ruling.

Because the federal court had ruled on the issue and it was deemed a

final and appealable judgment, on March 2, 2020, Aethon Operating and

Aethon United filed an exception of res judicata in the state court

proceedings. On June 29, 2020, the state court overruled it and found that

in order to sustain an exception of res judicata, there must exist “a valid and

final judgment … conclusive between the same parties.” La. R.S. 13:4231.

The state court noted that the state suit includes more than one defendant,

i.e., Aethon United, in addition to Aethon Operating, whereas the federal

suit only pertained to Aethon Operating. The state court opined that in order

to sustain the exception, the judgment must be rendered by a court with

jurisdiction over both the subject matter and the parties to the litigation. It

stated that because Aethon United was not a named party in the federal suit,

the Western District for the State of Louisiana did not have jurisdiction over

it. Further, because the suits in the different courts did not concern identical

parties, the judgment in the federal court could not have any effect as to the

unnamed party. The state court also stated that a judgment is not final until

all appeal delays have run. At the time of the ruling on the exception of res

judicata, the judgment in favor of Aethon Operating was still pending on

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appeal in federal court; thus, the state court found that it was not final. For

those reasons, the state court overruled the exception of res judicata.

After the exception of res judicata was overruled by the state court,

Kelly Land filed a motion for partial summary judgment on its forfeiture

claim. A hearing was held on November 2, 2020. In direct contradiction to

the federal court ruling, the state court granted the motion for partial

summary judgment and ruled that Kelly Land’s letters, first to J-W in 2013,

and those to Aethon Operating in December 2017 and April 2018, met the

requirements of the reporting statute and triggered the forfeiture penalties.

The state court further found that when J-W assigned its interest to Aethon

United, and Aethon United allegedly assumed any liability J-W had, both

Aethon Operating and Aethon United were liable to Kelly Land for

forfeiture of its share of the wells’ costs that Aethon Operating had recouped

out of production during its period of operatorship. The state court also

found that they were liable to Kelly Land for the well costs that J-W had

recouped out of production during its period of operatorship.

Appellants appeal the judgment of the state court granting partial

summary judgment and request that res judicata effect be given to the

federal court’s judgment that was rendered in their favor unless or until that

judgment is reversed or modified on appeal.

DISCUSSION

Aethon Operating and Aethon United argue that the trial court erred

by failing to give res judicata effect to the federal court judgment and by

ignoring this court’s clear precedent concerning the preclusive effect of a

final federal judgment in a state proceeding. They assert that the four

elements necessary for a court to find that res judicata applies are present in
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the instant suit and that because the state court overruled their exception, the

parties have had to relitigate the same issues in both courts. This has

resulted in vexatious and expensive litigation and conflicting judgments

being rendered.

Aethon Operating and Aethon United further argue that the state court

erred in allowing the merits of the case to be reargued and decided in state

court because not only did the state court render a judgment that was

completely contrary to that of the federal court, it also found that they were

liable for the sums J-W allegedly owed to Kelly Land. Had the exception of

res judicata been sustained, the state court would not have even been

presented with that issue for determination. For these reasons, they contend

that the exception of res judicata should have been sustained, the federal

judgment given effect in the state court and the partial summary judgment

vacated.

Kelly Land argues that writs were denied from two judgments of the

state court in this case—the first concerned the exception of lis pendens and

the second, the exception of res judicata. Kelly Land claims that this court’s

ruling on the writs rejected a stay of this action based on lis pendens and

barred any res judicata effect of the federal district court ruling which

remains on appeal to the Fifth Circuit.4

4
While the actions taken in both writ applications were “writ denied,” the
language in the rulings also states that this court declined to exercise its supervisory
jurisdiction in both writs. This means that the merits of the writ applications were not
addressed even though the trial court’s decision in each case was arguably incorrect.
Because a resolution of the issues presented would not have resulted in the termination of
the case, the writ was actually not considered. Herlitz Const. Co. v. Hotel Invs. of New
Iberia, Inc., 396 So. 2d 878 (La. 1981).

7

Kelly Land also argues that Louisiana jurisprudence has never

allowed res judicata to rest upon a judgment that remains pending on appeal

and claims that our statute, La. R.S. 13:4231, provides that “a valid and final

judgment is conclusive between the same parties, except on appeal.” It also

argues that none of the cases cited by Appellants in support of their

arguments concern a judgment rendered by a U.S. district court, but, instead,

are judgments that have been reviewed by a federal appellate court prior to

being given res judicata effect in state court.

The res judicata effect of a prior judgment is a question of law that is

reviewed de novo. City of Bastrop v. Harris, 50,727 (La. App. 2 Cir.

6/22/16), 198 So. 3d 163.

Louisiana’s res judicata statute provides that if a judgment is in favor

of the defendant, all causes of action existing at the time of final judgment

arising out of the transaction or occurrence that is the subject matter of the

litigation are extinguished and the judgment bars a subsequent action on

those causes of action. La. R.S. 13:4231. Moreover, a judgment in favor of

either the plaintiff or the defendant is conclusive, in any subsequent action

between them, with respect to any issue actually litigated and determined if

its determination was essential to the judgment. Id.

Federal law of res judicata governs the preclusive effect of a federal

judgment in a subsequent state court action. Pilié & Pilié v. Metz,

547 So. 2d 1305 (La. 1989). A party faced with relitigation of a federal

judgment in a state court proceeding may plead the federal judgment as res

judicata. Id. If the state court refuses to recognize the proper scope of the

federal judgment, the party may appeal through the state courts and

ultimately seek review in the U.S. Supreme Court. Id. Federal law must be
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applied in determining the basic res judicata effects of the diversity

judgment. Id. See also Bobby and Ray Williams P’ship, L.L.P. v.

Shreveport Louisiana Hayride Co., L.L.C., 38,366 (La. App. 2 Cir. 9/22/04),

882 So. 2d 676, writ denied, 04-2636 (La. 12/17/04), 888 So. 2d 875.

Under federal law, res judicata is appropriate if: 1) the parties to both

actions are identical (or at least in privity); 2) the judgment in the first action

is rendered by a court of competent jurisdiction; 3) the first action concluded

with a final judgment on the merits; and 4) the same claim or cause of action

is involved in both suits. Paradise Vill. Children’s Home, Inc. v. Liggins,

38,926 (La. App. 2 Cir. 10/13/04), 886 So. 2d 562, writ denied, 05-0118 (La.

2/4/05), 893 So. 2d 884, citing Ellis v. Amex Life Ins., Co., 211 F. 3d 935

(5th Cir. 2000). The phrase res judicata refers to the distinctive effects of a

judgment separately characterized as claim preclusion and issue preclusion.

Id. Claim preclusion treats a judgment, once rendered, as the full measure of

relief to be accorded between the same parties on the same claim or cause of

action. Id. Issue preclusion bars the relitigation of issues actually litigated,

and essential to a judgment, in a prior litigation between the same parties.

Id. Under federal law, it is the facts surrounding the transaction or

occurrence which operate to constitute a cause of action for purposes of res

judicata, not the legal theory upon which a litigant relies. Id.

Under the doctrine of claim preclusion, a final judgment forecloses

successive litigation of the very same claim, whether relitigation of the claim

raises the same issues as the earlier suit. Taylor v. Sturgell, 553 U.S. 880,

128 S. Ct. 2161, 171 L. Ed. 2d 155 (2008). Issue preclusion, by contrast,

bars successive litigation of an issue of fact or law actually litigated and

resolved in a valid court determination essential to the prior judgment, even
9

if the issue recurs in the context of a different claim. Id. By “preclud[ing]

parties from contesting matters that they have had a full and fair opportunity

to litigate,” these two doctrines protect against “the expense and vexation

attending multiple lawsuits, conserv[e] judicial resources, and foste[r]

reliance on judicial action by minimizing the possibility of inconsistent

decisions.” Id., citing Montana v. United States, 440 U.S. 147, 99 S. Ct. 970,

59 L. Ed. 2d 210 (1979).

In regard to a claim of res judicata, federal law holds that privity

exists for res judicata purposes between principals and their agents. Res

judicata may apply to a nonparty, as long as it is in “privity” with a named

party to the original judgment. New York Life Ins. Co. v. Deshotel, 946 F.

Supp. 454 (E.D. La. 1996), aff’d, 142 F. 3d 873 (5th Cir. 1998). Privity is

nothing more than a legal conclusion that the relationship between the one

who is a party on the record and the nonparty is sufficiently close to afford

application of the principle of preclusion. Id., citing SW Airlines Co. v.

Texas Int’l Airlines, Inc., 546 F. 2d 84 (5th Cir.), cert. denied, 434 U.S. 832,

98 S. Ct. 117, 54 L. Ed. 2d 93 (1977).

Federal Rule of Civil Procedure Rule 54(b) states as follows:

(b) Judgment on Multiple Claims or Involving Multiple
Parties. When an action presents more than one claim for
relief--whether as a claim, counterclaim, crossclaim, or third-
party claim--or when multiple parties are involved, the court
may direct entry of a final judgment as to one or more, but
fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay. Otherwise, any
order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the
parties’ rights and liabilities.

10

“It has become clear in the federal courts that res judicata ordinarily attaches

to a final lower-court judgment even though an appeal has been taken and

remains undecided.” 18A Charles Alan Wright & Arthur R. Miller, Fed.

Prac. & Proc. Juris. § 4227 (3 ed. 2021 update).

In the case at bar, the four essential elements for giving the federal

judgment res judicata effect have been met. The judgment rendered in

federal court involved the same parties as those in the state court. Although

only Aethon Operating had been sued in federal court, Kelly Land sued

Aethon United in state court as Aethon Operating’s principal. This satisfies

the requirement of “same parties” because they are in privity. There is no

question that the federal court is a court of competent jurisdiction. The

federal court granted a partial summary judgment in Aethon Operating’s

favor and certified the judgment as a partial final and appealable judgment

under Fed. R. Civ. P. 54(b). The causes of action are the same in each suit

and the claims arise out of a common nucleus of operative facts. The suits

are virtually identical, and both seek a forfeiture judgment under the

reporting statute relating to the same wells and based on the same written

demands. For these reasons, Appellants’ argument has merit, and the

judgment in state court overruling the exception of res judicata is reversed.

As a result of this ruling that the federal court’s judgment should be

given res judicata effect and the partial summary judgment deemed a final

judgment, the state court’s partial summary judgment in favor of Kelly

Land, which was contradictory to the judgment rendered by the federal

court, is hereby vacated.

Although Appellants have raised four assignments of error, the

vacating of the partial summary judgment on the basis that res judicata
11

applies negates the need for discussion of the other issues raised, and they

are pretermitted.

CONCLUSION

The peremptory exception of res judicata filed by Aethon United BR

LP and Aethon Energy Operating, LLC. is sustained and the judgment of the

federal court granting partial summary judgment is given res judicata effect.

The federal court ruled on the merits of the case, specifically, the efficacy of

the letters written by B.A. Kelly Land Co., LLC., as demands for forfeiture

of well costs recouped by the well operators, and dismissed the suit with

prejudice. B.A. Kelly Land Co., LLC., is precluded from litigating the same

issues or claims in the state court. The partial summary judgment granted by

the state court in favor of B.A. Kelly Land Co., LLC, is vacated. Costs of

the appeal are assessed to B.A. Kelly Land Co., LLC.

PARTIAL SUMMARY JUDGMENT VACATED.

12