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NORTHERN NATURAL GAS COMPANY v. TRANS PACIFIC OIL
CORPORATION; BE USA LP 1987-1; VESECO; AIR PIPELINE CORPORATION and SONDRA BOYD; DALMER CRICK; GERTRUDE CRICK; KATHY EPPERLY; HERBERT PARK;MARVIN PARK; CONNIE SUE PARMELY
Case Number: 05-3411
Judge: Terrence L. O’Brien
Court: UNITED STATES COURT OF APPEALS
Defendant's Attorney: Same as above
Denver, CO - Oil and Gas lawyer represented Plaintiff - Appellant with claiming Trans Pacific was producing its storage gas, which had migrated underground from Northern owned Fields.
In the late 1970’s, Northern began storing previously extracted natural gas
in the Cunningham Field’s Viola formation located in Kingman and Pratt
Counties, Kansas. By 1980, Northern had injected enough gas to begin 1
extracting it when necessary. Trans Pacific Oil Corporation (Trans Pacific)
subsequently acquired oil and gas leases on land just north of the Cunningham
Field. In 1987, it drilled two wells called “Park # 1” and “Park ‘A’ # 1.”
(Appellees’ Supp. App. at 76, 94.) After finding oil and gas, Trans Pacific
received a “New Pool Determination” for each well from the Kansas Corporation
Sometime in the 1990’s, Northern began to suspect its storage gas was
migrating and Trans Pacific was extracting the storage gas from its Park wells.
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 2
Kan. Stat. Ann. § 55-1210 was passed in 1993 and provides that a gas 2
injector does not lose its rights to the gas it has injected should the gas migrate
outside of the injector’s storage area. § 55-1210(c).
Northern also named BE USA L.P., 1987-1; Vesoco, LLC; and A I R 3
Pipeline Corporation, all who had working interests in the Park leases, as
defendants. We will refer to these defendants collectively as “Trans Pacific.”
Trans Pacific joined Sondra Boyd, Dalmer Crick, Gertrude Crick, Kathy 4
Epperly, Herbert Park, Marvin Park and Connie Sue Parmely as third-party
defendants asserting they, as royalty or overriding royalty interest holders, would
also be liable for and should contribute to any damages due Northern. At this
point the interests of the third-party defendants seem to be the same as those of
the original defendants; they have joined with Trans Pacific in this appeal.
Accordingly, our reference to Trans Pacific will also include the third-party
Northern conducted tests on these wells in 1998 to determine whether Trans
Pacific was producing Northern’s injected storage gas. Northern confirmed its
belief based on the tests and historical data. Relying mainly on Kan. Stat. Ann. §
55-1210, Northern initiated the current lawsuit against Trans Pacific in 2002. 2 3
Northern alleged Trans Pacific was producing its storage gas, which had migrated
underground from Northern’s Cunningham Field. Thereafter, Northern filed a 4
motion for a preliminary injunction to prohibit Trans Pacific from producing
Northern’s storage gas through the Park wells. The district court entered a
stipulated order regarding the motion shutting in Trans Pacific’s wells. The final
sentence of the order stated:
Notwithstanding the foregoing, if the final judgment in these
proceedings is that Trans Pacific is entitled to once again to [sic]
produce the above-described wells, it is understood that Trans Pacific
will contend that it is entitled to damages due to the fact that the wells
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 3
were shut in pursuant to this injunction, and nothing in this Order shall
be interpreted to prohibit or bar such a claim by Trans Pacific, the
other Defendants, or any other interest owners in the wells.
(Appellees’ Supp. App. at 49.)
On May 11, 2004, the final Pretrial Order was entered without objection by
either party. The “Defendants’ Damages” section stated:
[Trans Pacific] contend[s] that [it is] entitled to retain $173,497.69 for the
period when the Park wells were shut-in while Northern conducted
testing. In addition, [Trans Pacific is] entitled to damages for lost
production due to shutting in the wells, in an amount based on historical
production amounts, applied to the months in question, and to any future
periods on similar grounds, based on the value of native oil and gas which
could be recovered by [Trans Pacific].
(Appellant’s App. Vol. I at 55.)
Trial was held in May 2005. After the close of Northern’s evidence, Trans
Pacific orally asked for judgment as a matter of law under Rule 50(a) of the
Federal Rules of Civil Procedure. Specific to this appeal, Trans Pacific asserted
Kan. Stat. Ann. § 55-1210 was not retroactive and Northern could not receive
money for storage gas which had migrated or was removed prior to its enactment
in 1993. Trans Pacific sought judgment because Northern provided no evidence
as to when the storage gas migrated. The district court took the motion under
advisement. At the close of all the evidence, Northern orally asked for judgment
as a matter of law under Rule 50(a) on Trans Pacific’s counterclaims of trespass,
nuisance, inverse condemnation and fair rental value of storage but did not
address Trans Pacific’s shut-in damages claim. The court took Northern’s motion
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 4
under advisement. Later the same day, the court sent unedited copies of the
tentative jury instructions and proposed Special Verdict Form to all of the parties
for review over the weekend.
Subsequently, the court held an in-chambers conference to discuss the final
jury instructions and Special Verdict Form. Northern did not object to Jury
Instruction No. 13 which included a sentence stating: “In relation to the
continuing closure of [its] wells, defendant Trans Pacific seeks compensation for
the shutting in of [its] wells from November 19, 2002, to the present.”
(Appellant’s App. Vol. I at 93.) Next, the court went through Trans Pacific’s
proposed Special Verdict Form which was submitted at the conference. Northern
did not object to Question 1 which required the jury to determine whether
Northern’s storage gas had migrated to Trans Pacific’s wells “after June 30,
1993.” (Id. at 85.) Furthermore, Northern did not object to Questions 6a and 6b
which asked the jury to (a) determine whether Trans Pacific was entitled to shutin damages and, if so, (b) how much “should Northern pay.” (Appellant’s App.
Vol. I at 87.) Immediately below Question 6b was an explanatory note: “(Note:
These damages will be paid to Trans Pacific, who will in turn be responsible to
distribute the funds to the working, overriding royalty, and royalty interest
owners pursuant to their percentage interest in the leases).” (Id.) While the
explanatory note did not change, Question 6b on the final Special Verdict Form
called for the jury to determine how much in damages, if any, “should each
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 5
defendant receive?” (Appellant’s App. Vol. I at 106.) Northern did not object to
the final Special Verdict Form when read or after it was submitted to the jury.
During jury deliberations, the jury submitted a question to the court:
“Estimate cost on re-opening well (Park , Park A). -or- may we get a way to
calculate fair start up costs.” (Appellant’s App. Vol. I at 101.) A few minutes
later, the jury submitted another question: “We would like a market value for gas
and oil for the shut out time in order to consider fair losses.” (Id. at 102.) The
court asked the parties if they wished to clarify their positions on damages but
both parties declined, preferring the jury rely on the evidence presented at trial.
The court explained this to the jury and responded on the jury question forms:
“This was answered on the record in the courtroom.” (Id. at 101-02.) The jury
returned the Special Verdict Form determining no gas had migrated from
Northern’s storage area to Trans Pacific’s wells “on or after July 1, 1993,” and
awarded $1,140,000 in shut-in damages to each defendant. (Appellant’s App.
Vol. I at 104.) The court entered judgment for Trans Pacific and awarded
$1,140,000 in damages to each defendant.
Thereafter, Northern filed a renewed motion for judgment as a matter of
law or in the alternative a motion for new trial under Rules 50(b) and 59 of the
Federal Rules of Civil Procedure, respectively. It asserted: (1) Trans Pacific’s
shut-in damages claim was not properly pled in the Pretrial Order, (2) Northern
did not consent to trying the shut-in damages claim nor was there sufficient
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 6
evidence presented at trial to put it on notice of such a claim, (3) the jury was not
specifically instructed on the shut-in damages claim and there was no factual
basis supporting such instruction, (4) Questions 6a and 6b on the Special Verdict
Form were flawed, and (5) the Special Verdict Form contained a material
misstatement of the law because it required the jury to determine whether any of
Northern’s storage gas had migrated after July 1, 1993. The court denied
Northern’s motion on the merits.
Northern’s issues on appeal are similar to those in its Rule 50(b) or in the
alternative Rule 59 motion and further argues the cumulative effect of these errors
requires a new trial.
(1) Whether Trans Pacific’s Claim for Shut-in Damages Was Properly
Pled in the Pretrial Order
Northern raised the issue of whether Trans Pacific properly pled its claim
for shut-in damages in the Pretrial Order for the first time in its post-trial Rule 59
motion. Upon review of the Pretrial Order, the district court determined Trans
Pacific properly pled shut-in damages. “Because the district court is in the best
position to interpret its pretrial order, our standard of review on appeal is abuse of
discretion.” Tyler v. City of Manhattan, 118 F.3d 1400, 1403 (10th Cir. 1997).
The Pretrial Order stated: “[Trans Pacific is] entitled to damages for lost
production due to shutting in the wells, in an amount based on historical
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 7
production amounts, applied to the months in question, and to any future periods
on similar grounds, based on the value of native oil and gas which could be
recovered by [Trans Pacific].” (Appellant’s App. Vol. I at 55.) Northern did not
object to the Pretrial Order’s inclusion of a shut-in damages claim. Moreover,
when faced with Jury Instruction No. 13 which specifically said “Trans Pacific
seeks compensation for the shutting in of [its] wells from November 19, 2002, to
the present,” Northern did not object. (Id. at 93.) Finally, as the district court
noted, Northern did not object to Questions 6a and 6b on the Special Verdict
Form, which directly asked about shut-in damages, at either the jury instruction
conference or after it was read to the jury. It is apparent the court did not abuse
its discretion in concluding Trans Pacific’s claim for shut-in damages was
properly pled in the Pretrial Order and Northern never properly objected in the
(2) Whether the Evidence was Sufficient to Prove Shut-in Damages
“To preserve a sufficiency of the evidence claim for appellate review, a
party must move for judgment as a matter of law (directed verdict) under [Rule]
50(a) at the close of the evidence.” United Int’l Holdings, Inc. v. Wharf
(Holdings) Ltd., 210 F.3d 1207, 1228 (10th Cir. 2000). However, “[m]erely
moving for directed verdict is not sufficient to preserve any and all issues that
could have been, but were not raised in the directed verdict motion.” Id. at 1229.
“A party may not circumvent Rule 50(a) by raising for the first time in a post-trial
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 8
motion issues not raised in an earlier motion for directed verdict.” Id. at 1228.
Northern made a Rule 50(a) motion, but never mentioned Trans Pacific’s
claim for shut-in damages. Had Northern believed there was insufficient evidence
of shut-in damages, it should have raised the issue prior to allowing the case to be
submitted to the jury. Furthermore, during deliberations the jury submitted
questions regarding how to calculate the shut-in damages. The district court
offered both parties the opportunity to clarify their position, but both decided to
let the jury rely on the evidence submitted at trial. Because Northern failed to
raise this issue until after the jury returned its verdict, it was not properly
preserved for our review.
(3) Whether the Special Verdict Form was Inconsistent
Northern claims the Special Verdict Form was irreconcilably inconsistent.
Northern finds error with Question 6b because it asked the jury to determine how
much each defendant should receive in shut-in damages, but the parenthetical
below the question asserted the damages award would be divided up according to
each defendants’ percentage interest in the leases. Northern argues this is
irreconcilably inconsistent because the question appeared to give each defendant
the same amount of money but the parenthetical indicated the defendants will
only receive a percentage of the amount. “A verdict is irreconcilably inconsistent
only when the essential controlling findings are in conflict, the jury has failed
utterly to perform its function of determining the facts, and its verdict is a
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 9
nullity.” Johnson v. Ablt Trucking Co., 412 F.3d 1138, 1144 (10th Cir. 2005)
Northern claims it did not waive this issue because the jury returned a
Special Verdict Form. “Although a party waives a claim of inconsistent verdicts
based on a general jury verdict under Fed. R. Civ. P. 49(b), if not timely raised,
this rule does not apply to special verdicts under Fed. R. Civ. P. 49(a).” Heno v.
Sprint/United Mgmt. Co., 208 F.3d 847, 851 (10th Cir. 2000). “When the verdicts
are special verdicts a party is not required to object to the inconsistency before
the jury is discharged in order to preserve that issue for a subsequent motion
before the district court.” Id. at 851-52 (quotation omitted).
In Heno, the jury rejected an agent’s liability in one special verdict
question, but then found the principal liable based on the agent’s actions in
another question. Id. at 851. The Heno verdict was irreconcilably inconsistent
because the principal in that case could not be held liable for an innocent agent.
Id. at 852-53. In this instance, however, the Special Verdict Form is not
irreconcilably inconsistent. Northern does not argue the jury’s answer to one
special verdict question is irreconcilable with another one of its answers, but
rather claims one question on the verdict form is internally inconsistent. In
essence, Northern is arguing the jury’s award of damages is ambiguous by
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 10
Northern disclaims any argument the jury verdict is ambiguous stating 5
“the jury’s verdict is crystal clear; it awarded $1.14 million in damages to ‘each’
defendant.” (Appellant’s Reply Br. at 15.) However, it takes issue with how the
jury’s award operates in connection with the parenthetical of the verdict form
question. No matter what dollar amount the jury awarded, Northern is appealing
the language of the verdict question which it claims makes the award of damages
irreconcilably inconsistent. Northern’s argument is akin to arguing the verdict
form itself creates an ambiguity.
operation of the language in Special Verdict Form Question 6b.
“A party who fails to bring to the trial court’s attention ambiguities created
by jury instructions or special verdict forms may not seek to take advantage of
such ambiguities on appeal.” Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1468
(10th Cir. 1992) (finding waiver where party did not object to either the jury
instruction or the special verdict form and did not seek clarification of the verdict
before the jury was dismissed); see also Kloepfer v. Honda Motor Co., 898 F.2d
1452, 1456 (10th Cir. 1990) (holding the plaintiffs waived their right to challenge
a special verdict form where they did not submit their own form and participated
in editing the form sent to the jury). Northern did not object to Questions 6a or
6b on the Special Verdict Form at the jury instruction conference; it raised the
issue for the first time in its post-trial Rule 50(b) motion. Furthermore, Northern
did not object to the Special Verdict Form after it was read and submitted to the
jury or seek clarification of the verdict before the jury was dismissed. It cannot
now assert the form was flawed.
(4) Whether Special Verdict Form Question 1 contained a material
misstatement of the law.
Appellate Case: 05-3411 Document: 010135110 Date Filed: 09/19/2007 Page: 11
In its post-trial motion, Northern asserted it was entitled to a new trial
because Special Verdict Form Question 1 contained a misstatement of law in that
it improperly required Northern to prove its storage gas migrated on or after July
1, 1993, the effective date of Kan. Stat. Ann. § 55-1210, in order to recover. The
district court concluded Question 1 was not improper because § 55-1210 only
applied to storage gas which had migrated after its effective date. Even assuming
Question 1 was flawed, the court noted Northern had not objected to it. On
appeal, Northern argues the court’s interpretation of § 55-1210 was erroneous.
Normally, we review a court interpretation of a state statute de novo. Cooper v.
Cent. & Sw. Servs., 271 F.3d 1247, 1251 (10th Cir. 2001). However, Northern
did not object to Special Verdict Form Question 1, which contained the court’s
“interpretation” of § 55-1210 and specifically asked the jury to determine whether
Northern’s stored gas had migrated to Trans Pacific’s wells on or after July 1,
1993, at either the instruction conference or upon it being submitted to the jury.
Therefore, Northern has waived the right to appellate review. Kenworthy, 979
F.2d at 1468-69; Kloepfer, 898 F.2d at 1456.
Outcome: Northern failed to preserve any of its claims making a cumulative error
analysis moot. AFFIRMED.