Rainbow Gun Club, Inc. v. Denbury Resources, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-997

RAINBOW GUN CLUB, INC., ET AL.

VERSUS

DENBURY RESOURCES, INC., ET AL.

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 10-19147
HONORABLE PENELOPE QUINN RICHARD, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

AFFIRMED AS AMENDED.

J. Michael Veron
Alonzo P. Wilson
J. Rock Palermo III
Julia Love Taylor
Turner D. Brumby
Veron, Bice, Palermo & Wilson, L.L.C.
721 Kirby Street (70601)
P. O. Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
COUNSEL FOR PLAINTIFFS/APPELLEES:
Rainbow Gun Club, Inc., et. al.

Glenn W. Alexander
Jones Law Firm
713 Kirby Street
Lake Charles, LA 70601
(337) 494-4398
COUNSEL FOR PLAINTIFFS/APPELLEES:
Rainbow Gun Club, Inc., et. al.

Edward Saal, Jr.
504 Second Street
Gueydan, LA 70542
(337) 536-9210
COUNSEL FOR PLAINTIFFS/APPELLEES:
Rainbow Gun Club, Inc., et. al.

Robert L. Cabes
Andrew J. Halverson
Milling Benson Woodard, LLP
P. O. Box 51327
Lafayette, LA 70505-1327
(337) 232-3929
COUNSEL FOR DEFENDANT/APPELLANT:
SKH Energy Partners, LP

SAVOIE, Judge.

Defendant, SKH Energy Partnership, LP (SKH), appeals the trial court’s

judgment holding it liable for its virile share of damages resulting from a

subsequent mineral lease assignee’s breach of its duty to operate the property as a

reasonably prudent operator. In addition, the Plaintiffs appeal the trial court’s

award of legal interest from the date of judicial demand. For the following reasons,

we amend the judgment with respect to the judical interest awarded by the trial

court, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The 170 Plaintiffs in this matter are lessors of various mineral leases as well

as the owners of royalties of those leases. Between 1998 and 2001, various

Plaintiffs granted multiple mineral leases directly to SKH, whose interest in those

leases were ultimately assigned to Denbury Resources, Inc., Denbury Onshore,

LLC, and Specter Exploration, Inc. (collectivey, the Denbury Defendants). The

leases involved various tracts of land in Cameron Parish, Louisiana. In 2003,

Denbury Resources, as the operator, spudded the Rainbow Gun Club Well No. 1

on land covered by the mineral leases at issue, and the well was completed in July

2003. The well produced dry gas until December 2006, and it was then plugged

and abandoned in July 2008.

On February 19, 2013, Plaintiffs filed suit against the Denbury Defendants

and SKH, as well as Cinco Energy Land Services (Cinco) and Petro E, LLC (Petro

E), wherein they allege that as the well was being drilled, drill pipe was stuck in

the original hole, and that the stuck pipe could not be, and was not, adequately

sealed. Plaintiffs allege that, as a result, there was an “extraneous water invasion”

that irreparably damaged the underground gas reservoir and access to the gas

reservoir was lost. Plaintiffs further assert in their petition that due to Defendants’

negligence and breach of their obligations under the mineral leases, they are

entitled to lost royalty income they would otherwise have received had the well

and reservoir not been damaged.

On April 15, 2015, Cinco filed a motion for summary judgment seeking

dismissal of Plaintiffs’ claims against it, arguing that it did not own a working

interest in the well at issue and never owned any interest in the applicable lease(s).

Plaintiffs did not oppose Cinco’s motion, and their claims against Cinco were

dismissed.

On September 25, 2015, Petro E filed a motion for summary judgment

seeking dismissal on the grounds that it had no involvement in the drilling of the

well at issue. Plaintiffs did not oppose Petro E’s motion for summary judgment,

and their claims against it were also dismissed.

Prior to trial, Plaintiffs settled with the Denbury Defendants so that at the

time of trial on July 11, 2016, SKH was the only remaining Defendant. Plaintiffs

and SKH jointly submitted written stipulations in connection with the trial,

including stipulations that the operator, Denbury Resources, stuck the drill pipe,

that “sticking drill pipe is known by all prudent operators to be an undesireable

event that should be avoided at all costs,” and that “imprudent and unreasonable

actions of the operator, Denbury Resources, . . . caused the loss of recoverable

reserves[.]” They further stipulated that prior to the drilling of the well, SKH had

assigned 100% of its interest in the applicable mineral leases, so that SKH did not

own any of the leases during the drilling and production operations of the well.

The parties also stipulated that, in accordance with the mineral leases at

issue, Plaintiffs collectively owned a 0.13123906 royalty interest. During trial,

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Plaintiffs called an expert witness, William Griffen, who testified that 12.06 billion

cubic feet of gas that could have otherwise been recoverable was lost from the well,

which equated to $78,772,997.00 in lost revenue.

The trial court ultimately found that SKH, as a solidary obligor under the

applicable mineral leaes, was liable to Plaintiffs for one-fourth of the damages, in

light of the three Denbury Defendants’ settlement with Plaintiffs prior to trial. The

trial court further accepted the amount of lost revenue as calculated by Plaintiffs’

expert, and, based upoon the stipulated royalty interest, found Plaintiffs’ total

damages to be $10,338,094.08. It then rendered judgment against SKH for one-

fourth of that amount, which is $2,584,523.52, along with judicial interest from the

date of judicial demand. The total amount of the judgment was divided among the

Plaintiffs according to their repsective royalty interests. SKH appealed and

Plaintiffs answered the appeal.

ASSIGNMENTS OF ERROR

Defendant SKH asserts the following as assignments of error:

A. The trial court committed legal error, by holding SKH to be
solidarily liabile to the Plaintiffs, for damages arising out of the
drilling of a natural gas well on property owned by Plaintiffs. . . .

B. To the extent that this court holds that SKH was a solidary obligor
under the leases, the trial court committed legal error by holding that
SKH was liable, to the extent of a one-fourth (1/4) virile share of the
damages claimed by the Plaintiffs[.]

C. The trial court committed legal error in awarding damages based
upon testimony at trial, despite the fact that the Plaintiffs had
previously entered into a compromise and settlement with the
Denbury Defendants.

Plaintiffs answered SKH’s appeal and assert that the trial court erred “in

calculating judicial interest from the date of judicial demand rather than the date of

the breach of contract.”

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STANDARD OF REVIEW

The parties herein stipulated to all relevant facts in this case, and on appeal,

they raise issues solely involving the trial court’s legal conclusions. “Appellate

courts review a trial court’s conclusion regarding a question of law to determine

whether the conclusion is legally correct. If the conclusions are found to be

incorrect, the flawed legal conclusions must be reviewed de novo.” Latiolais v.

Bellsouth Telecommunications, Inc., 11-383, p. 4 (La.App. 3 Cir. 10/5/11), 74

So.3d 872, 875 (internal citations omitted).

ANALYSIS

Solidary Liability

In its first assignment of error, SKH argues that it was error for the trial

court to find it solidarily liable to Plaintiffs for the lost revenue damages since the

parties stipulated that it was Denbury’s, and not SKH’s, imprudent operations that

caused the loss of gas from the well. We disagree.

As noted by Plaintiffs, SKH’s liability in this matter does not arise out of

negligence, but rather out of breach of the mineral lease(s) at issue, which were

owned by SKH and then later assigned to the Denbury Defendants. Louisiana

Revised Statutes 31:122 sets forth a lessee’s implied obligation to act as a

reasonably prudent operator, which “is read into every mineral lease[.]” Trinidad

Petroleum Corp. v. Pioneer Natural Gas Co., 416 So.2d 290, 297 (La.App. 3 Cir.),

writ denied, 422 So.2d 154 (La.1982). Specifically:

A mineral lessee . . . is bound to perform the contract in good faith
and to develop and operate the property leased as a reasonably
prudent operator for the mutual benefit of himself and his lessor.
Parties may stipulate what shall constitute reasonably prudent conduct
on the part of the lessee.

La. R.S. 31:122.

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[T]he obligations imposed by Article 122 on a mineral lessee to act as
a prudent operator include: (1) the obligation to develop reservoirs
discovered; (2) the obligation to explore and test all portions of the
leased premises after discovery of minerals in paying quantities; (3)
the obligation to protect the leased property against drainage from
wells on adjacent lands; (4) the obligation to diligently market the
minerals discovered and capable of production in paying quantities.

Broussard v. Hilcorp Energy Co., 09-469, p. 11 (La. 10/20/09), 24 So.3d 813, 820.

“‘Develop,’ as used in this industry, ‘contemplates any step taken in the search for,

capture, production and marketing of hydrocarbons.’ ‘Operate’ can be defined as

any activity leading to the production of oil and gas.” Id. (internal citations

omitted).

The implied duty imposed on a mineral lessee by La.R.S. 31:122 is also

imposed on assignees or sublessees. See La.R.S. 31:128, which states, “To the

extent of the interest acquired, an assignee or sublessee . . . becomes responsible

directly to the original lessor for performance of the lessee’s obligations.”

However, even if a mineral lease is assigned to another lessee, the “assignor or

sublessor is not relieved of his obligations . . . under a mineral lease unless the

lessor has discharged him expressly and in writing.” La.R.S. 31:129 (emphasis

added).

Therefore, unless expressly discharged in writing by the lessor, the original

lessee, along with all future assignees or sublessees, become solidarily liable to the

lessor for the whole performance of the lessee’s obligations imposed by the

mineral lease. See La.Civ.Code art. 1974, which states that an “obligation is

solidary for the obligors when each obligor is liable for the whole performance.”

The mineral lessor/obligee may then, “at his choice, . . . demand the whole

peformance from any of his solidary obligors” (i.e. lessees, lease assignees, or

sublessees). La.Civ.Code art. 1795. While the mineral lessor/obligee may demand

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the whole performance from any of the solidary obligors, as among themselves,

“each [obligor] is liable for his virile portion.” La.Civ.Code art. 1804.

Plaintiffs and SKH stipulated that Denbury, who was a mineral lease

assignee, violated the prudent operator obligation. SKH, however, argues that the

prudent operator obligation is not a solidary obligation, but rather a “several”

obligation, which occurs when “each of different obligors owes a separate

performance to one obligee,” and “produces the same effects as a separate

obligation owed to each obligee by an obligor or by each obligor to an obligee.”

La.Civ.Code art. 1787. SKH further argues that an order from the Louisiana

Office of Conservation naming Denbury as the unit operator suspended or

extinguished the prudent operator obligation as to SKH since there can only be one

legal operator.

SKH’s position, however, conflicts with the express language of La.R.S.

31:128 and 31:129, which establishes the solidary nature of the obligations owed

by mineral lessees and subsequent lease assignees to the lessor(s). This is made

clear by the official comment to La.R.S. 31:129, which states:

Article 129 deals with both the obligations and liabilities of
assignors and sublessors for future performance of the obligations of
the original lease and the problem of their accrued obligations or
liabilities as of the time of an assignment or sublease. It is obvious
from the nature of the sublease that the original lessee remains bound
to the original lessor and cannot discharge himself by the device of
subleasing. . . . While it is not the intent of this article to change the
rule as to the right of the lessor to demand performance from a
sublessee who has assumed obligations of the original lease, it is the
intent of this article to retain the concept that the prime lessor can
continue to demand performance from his lessee unless he has
released him in writing. It is also true of present law that an assignor
cannot free himself of the obligations of his contract by assignment
without consent of his creditor. . . . There is no basis for
distinguishing mineral leases from other types of leases in this respect.
There are practical reasons for preserving the state of the established
law in the case of both subleases and assignments in this particular

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area. For example, it sometimes happens that a lessor deals with a
particular company in preference to others. It should not be possible
for a lessee in such a case to unburden himself by either sublease or
assignment without the lessor’s consent since the lessor may have
relied specifically on the solvency and business reputation of the
particular lessee. This is clearly the underlying motive for the basic
rule that a creditor should not be compelled to accept a new debtor
without consent.

We therefore conclude that the trial court was correct in finding that SKH

was solidarily liable to Plaintiffs for Denbury’s breach of the mineral lease’s

prudent operator obligation.

SKH’s Virile Share of Damages

In its next two assignments of error, SKH argues that the trial court erred in

holding it liable for one-fourth of Plaintiffs’ damages because Plaintiffs settled

with the Denbury Defendants. SKH contends that Plaintiffs’ settlement with the

Denbury Defendants released SKH from liability or “blocks” any further award of

damages to Plaintiffs because the Denbury Defendants owned 100% of the leases

at issue at the time of its imprudent operations, and because SKH was not negligent.

As we concluded above, SKH and the three Denbury Defendants were

solidarily obligated to the Plaintiffs for the breach of the mineral leases, regardless

of which lessee’s actions were in breach of the leases.1 Since the three Denbury

Defendants settled with Plaintiffs prior to trial, we look to La.Civ.Code art. 1803,

which explains the the effect of a solidary obligor’s settlement with the obligee:

“Remission of debt by the obligee in favor of one obligor, or a transaction or

compromise between the obligee and one obligor, benefits the other solidary

obligors in the amount of the portion of that obligor.” We disagree with SKH’s

1
While Plaintiffs also sued Cinco and Petro E, Plaintiffs’ claims against them were dismissed,
and there is no other indication in the stipulations submitted at trial or in the parties’ briefs that
there are any other lessees or lease assignee’s other than SHK and the Denbury Defendants.

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position that the “portion” contemplated by La.Civ.Code art. 1803 equates to the

percentage of ownership of the mineral lease. Rather, Louisiana Civil Code

Article 1804 states: “If the obligation arises from a contract or quasi-contract, virile

portions are equal in the absence of agreement or judgment to the contrary. If the

obligation arises from an offense or quasi-offense, a virile portion is proportionate

to the fault of each obligor.”

As discussed above, the prudent operator obligation at issue in this case is an

implied contractual obligation that is read into the mineral leases; therefore, the

lessees and lease assignees have equal virile portions. Since three of the

lessees/assignees settled with Plaintiffs, the trial court was correct in reducing

SKH’s liability for Plaintiffs’ damages so that it was only responsible for one-

fourth of the damages. We, therefore, affirm the trial court’s award of one-fourth

of the Plaintiffs’ damages against SKH.

Plaintiffs’ Answer - Judicial Interest

On appeal, Plaintiffs assert that the trial court erred in calculating judicial

interest from the date of judical demand, rather than from the date of the breach of

contract. We agree. Corbello v. Iowa Production Co., 01-567 (La.App. 3 Cir.

8/6/03), 851 So.2d 1253, and Corbello v. Iowa Production, 02-826, (La. 2/25/03),

850 So.2d 686, make clear that judicial interest in this case should be calcuated

from the date of the breach of contract. Therefore, we amend the trial court’s

judgment to award judicial interest from July 13, 2003, which is the date that

Denbury completed the well and the latest date that it could have stuck the pipe at

issue. We note that the record does not indicate a specific date that Denbury

breached the mineral lease(s) at issue.

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DECREE

For the reasons stated above, we amend the trial court’s judgment to award

judicial interest on the damages assessed against SKH to be awarded from July 13,

2003, until paid. Otherwise, we affirm. Costs of this appeal are assessed to

Defendant, SKH.

AFFIRMED AS AMENDED.

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