Date: 09-02-2012

Case Style: Apache Corporation v. Exco Resources, Inc.

Case Number: CJ-2009-8758

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: James Charles Hardwick, Mark Banner, Karissa K. Cottom, Hall, Estill, Harwick, Gable, Golden & Nelson, P.C., Tulsa, Oklahoma and R. Kevin Layton, Apache Corporation, Tulsa, Oklahoma

Defendant's Attorney: Mark D. Christiansen, Crowe & Dunlevy, Oklahoma City, Oklahoma

Description: Apache Corporation sued Exco Resources, Inc. on a breach of contract theory. Apache also sought specific performance of the contract and injunctive relief. It claimed that the amount in controversy exceeded $10,000.00.

The specifics of the claims made and defenses asserted by the parties are not available.

Both parties filed competing motions for summary judgment and both were denied by the Court.

CANTRELL, DAMAN: HAVING HEARD ARGUMENT OF COUNSEL AND REVIEWED MOVING PAPERS, THE COURT FINDS THAT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS RESPECTFULLY DENIED, ALTHOUGH WELL ARGUED BY COUNSEL. THIS APPEARS TO BE A QUESTION OF FIRST IMPRESSION AS TO THIS PARTICULAR TYPE OF CONTRACT, ALTHOUGH THERE IS AMPLE AUTHORITY ON THE “SAME TERMS AND CONDITIONS� TYPE CLAUSES. THE COURT FINDS SPECIFICALLY THAT THERE ARE MATERIAL FACTS IN QUESTION AS TO WHETHER THE DEFAULT DEDUCTIBLE CLAUSE IN QUESTION IS COMMERCIALLY REASONABLE, AND WHETHER THERE WAS EVEN A MEETING OF THE MINDS TO FORMULATE A CONTRACT BASED UPON THE APPLICATION OF THIS CLAUSE. COUNSEL SHOULD CONTACT THE COURT'S CLERK REGARDING FURTHER SCHEDULING OF THE NON JURY TRIAL AND/OR WHETHER MEDIATION WOULD BE APPROPRIATE. NOTICE MAILED TO KRISSA COTTOM AND MARK CHRISTIANSEN.

Outcome: Joint stipulation of dismissal with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: Comment from Mark Christiansen: "Thanks for checking in on this. The only item in your summary that needs to be tweaked is that Apache, the Plaintiff, is the only one who moved for summary judgment, and Apache's motion for summary judgment only addressed the issue of alleged liability for breach of the Operating Agreement. Apache's motion did not ask the Court to rule on the relief to be granted if the Court agreed that the Defendant had breached the JOA. The relief to be granted was going to be addressed, if needed, in a second phase of the litigation after the issue of liability was decided (if the Court had decided that on the basis of the MSJ). EXCO opposed the motion for summary judgment. " And as you note in the summary, the Court denied the motion with the comments noted. Thanks, Mark Christiansen