Arkoma Basin Project v. West Fork Energy, et al

Filing 511158605

Arkoma Basin Project v. West Fork Energy, et al

Doc. 511158605

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Date Filed: 06/29/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 29, 2010 N o . 09-40011 Lyle W. Cayce Clerk

A R K O M A BASIN PROJECT LIMITED PARTNERSHIP, P la in t if f -A p p e lla n t , v. W E S T FORK ENERGY COMPANY LLC; ARKANA OPERATING C O M P A N Y INC; JOE POE; JEFF SMYTH, D e fe n d a n t s -A p p e lle e s .

A p p e a l from the United States District Court for the Eastern District of Texas, Sherman Division U S D C No. 4:07-CV-530

B e fo r e JONES, Chief Judge, and SMITH and ELROD, Circuit Judges. P E R CURIAM:* A p p e lla n t Arkoma Basin Limited Partnership appeals from the trial c o u r t's grant of judgment as a matter of law to Appellees West Fork Energy C o m p a n y LLC, Arkana Operating Company, Joe Poe, and Jeff Smyth on its b r e a c h -o f-c o n t r a c t claim as well as its claims for violations of federal and state s e c u r it ie s laws. Arkoma also appeals several of the trial court's evidentiary

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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No. 09-40011 r u lin g s , its conduct during trial, and the award of attorney's fees. For the fo llo w in g reasons, we AFFIRM. I. Arkana owned several thousand acres of natural gas leases in Arkansas's A r k o m a Basin. In 2002, Surge Petroleum, Arkana's owner, decided to sell the c o m p a n y . In order to promote the sale, Surge prepared a two-hundred-page r e p o r t (the "Surge Report"). The Surge Report detailed Arkana's current

h o ld in g s and included geological information, recommended development s t r a t e g ie s , and projected production levels for several wells located on the p r o s p e c t . In 2003, Fagadau Energy considered purchasing Arkana. As part of it s due diligence, Fagadau hired Dwight Coleman to prepare an additional report o n the prospect (the "Coleman Report"). Appellees Poe and Smyth formed West Fork, an entity which purchased A r k a n a from Surge. In order to raise the necessary capital to develop the p r o s p e c t , Appellees entered into discussions with WG Energy regarding its p o s s ib le purchase of a fifty percent working interest in Arkana's holdings. Pursuant to these negotiations, Poe and Smyth collaborated with Bill Lynton to c r a ft a Business Plan for the development of the Arkoma Basin field. The B u s in e s s Plan outlined a first-year development program in which Arkana w o u ld reconnect existing shut-in wells and drill additional wells. The Business P la n also projected the production volume from these wells and the revenue that t h e project would generate. These projections were based on the Surge and C o le m a n Reports as well as information taken from the Arkansas Oil & Gas C o m m is s io n 's website. After negotiations with WG Energy failed, Lynton decided to invest p e r s o n a lly in the project with Arthur Clark, a Mississippi attorney with e x p e r i e n c e in the oil and gas industry. Lynton and Clark formed Arkoma. Without Appellees' knowledge or consent, Clark created his own prospectus 2

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No. 09-40011 u s in g the original Business Plan and altered the data contained in the Business P la n . Clark and Lynton recruited twelve investors to become limited partners in Arkoma using this prospectus. In October 2004, Arkoma, Arkana, and West Fork executed a purchase a n d sale agreement (hereinafter "PSA"). Pursuant to this agreement, Arkoma a c q u ir e d an undivided fifty-percent working interest in all of the assets owned b y Arkana for $1.5 million. As part of the PSA, Arkoma and Arkana executed fiv e joint operating agreements based upon Form 610 of the 1982 version of the A m e r ic a n Association of Petroleum Landmen's Model Form Operating A g r e e m e n t (hereinafter "Model Form Operating Agreement"). Neither the PSA n o r the joint operating agreements incorporated the Business Plan. As part of t h e PSA, Arkana received approximately $1 million in sale proceeds. West Fork a n d Arkana used approximately $640,000 of the sale proceeds to repay loans m a d e by Poe, Smyth and another investor. This left Arkana with a working b a la n c e of approximately $483,000. The PSA did not contain any restrictions on A r k a n a 's or West Fork's use of the sale proceeds. In November 2004, other parties discovered a way to develop the natural g a s reserves in the Fayetteville Shale. This discovery led to a natural gas boom in Arkansas, resulting in shortages of personnel and equipment. These

s h o r t a g e s led to higher operating costs. In addition, it became more difficult to n e g o t ia t e leases with landowners. As a result, Arkoma and Appellees decided t o modify their plans for developing the prospect. The parties agreed to

p u r c h a s e hundreds of additional acres in the Fayetteville Shale and to renew le a s e s around their existing lease acreage in order to prevent forced pooling. At t h e same time that the parties were purchasing additional leases, Arkana spent b e tw e e n $250,000 and $300,000 implementing the first-year development p r o g r a m outlined in the Business Plan. Arkana successfully completed Phase

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No. 09-40011 I of the Plan, but was unable to complete Phase II due to ongoing equipment s h o r t a g e s and the loss of cash flow from two unproductive wells. By March 2005, Lynton, Clark, Poe, and Smyth were looking for additional capital to develop the prospect, anticipating that they would need approximately $ 3 0 million. In September 2007, the parties began serious discussions with T o u r a d ji Capital, a hedge fund, about investing in the prospect. In a letter of in t e n t , Touradji offered $7.5 million for 50% of the Class A units in the prospect. Negotiations broke down, however, when Arkoma refused to sign the letter of in t e n t . Instead, Arkoma brought suit against West Fork, Arkana, Poe and S m y t h for misappropriation of funds, breach of contract, statutory fraud, n e g lig e n t misrepresentation, fraudulent inducement, and violations of federal a n d state securities laws.1 P u r s u a n t to 28 U.S.C. § 636(c), the case was tried before a Magistrate J u d g e ("the trial court"). At the conclusion of Arkoma's case in chief, Appellees file d motions for judgment as a matter of law pursuant to Federal Rule of Civil P r o c e d u r e 50(a). The trial court granted the motions as to Arkoma's federal and s t a t e securities-fraud claims on the ground that Arkoma had failed to show r e lia n c e on any material misrepresentation made by Appellees. The trial court a l s o granted the motion on the breach-of-contract claim on the ground that A r k o m a did not present evidence that the joint operating contracts covered p r o p e r t y where it lost leases. A jury returned a verdict in favor of Appellees on t h e remaining claims. The trial court entered judgment for Appellees on

D e c e m b e r 11, 2008. Post judgment, Appellees filed motions for attorney's fees; t h e trial court entered an order awarding attorney's fees against Arkoma under 1 5 U.S.C. § 77k(e) and Ark. Code Ann. § 16-22-308.

Arkoma appeals only the trial court's grant of judgment as a matter of law on its breach-of-contract claim and its securities-fraud claims. The remaining claims are not before us on appeal.

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No. 09-40011 II. A. W e review the trial court's Rule 50 judgment de novo, viewing the evidence in the light most favorable to the non-moving party. James v. Harris County, 5 7 7 F.3d 612, 617 (5th Cir. 2009), cert. denied, 130 S.Ct. 1078 (2010). Judgment a s a matter of law is appropriate "[i]f a party has been fully heard on an issue d u r in g a jury trial and the court finds that a reasonable jury would not have a le g a lly sufficient evidentiary basis to find for the party on that issue." Fed. R. C iv . P. 50(a). "In order to survive a Rule 50 motion and present a question for t h e jury, the party opposing the motion must at least establish a conflict in s u b s t a n t ia l evidence on each essential element of [its] claim." Anthony v.

C h e v r o n USA, Inc., 284 F.3d 578, 583 (5th Cir. 2002) (citation omitted). "In o t h e r words, the evidence must be sufficient so that a jury will not ultimately r e s t its verdict on mere speculation and conjecture." Id. (citation omitted). 1. To succeed on its breach-of-contract claim, Arkoma must prove "the e x is t e n c e of an agreement, breach of the agreement, and resulting damages." U ltr a c u ts , Ltd. v. Wal-Mart Stores, Inc., 33 S.W.3d 128, 133 (Ark. 2000).2 A r k o m a maintains that the Appellees breached Article V(A) of the five jointo p e r a t in g agreements, which provides, Arkana Operating Co. shall be the Operator of the Contract Area, a n d shall conduct and direct and have full control of all operations o n the Contract Area as permitted and required by, and within the lim it s of this agreement. It shall conduct all such operations in a g o o d and workmanlike manner, but shall have no liability as O p e r a to r to the other parties for losses sustained or liabilities

The joint operating contracts specify that the governing law is "the law of the state in which the Contract Area is located." Both parties agree that Arkansas law applies to the breach-of-contract claim.

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No. 09-40011 in c u r r e d , except such as may result from gross negligence or willful m is c o n d u c t. S p e c ific a lly , Arkoma alleges that Appellees failed to drill wells, allowed leases t o expire, and failed to produce existing wells, all of which resulted in the loss o f several leases in the prospect.3 Arkoma maintains that the Appellees' actions c o n s t it u t e a breach of the duty to conduct operations in a "good and workmanlike m a n n e r ." Appellees argue that Arkoma failed to introduce evidence at trial that they b r e a c h e d any of the specific duties of the operator under the joint operating a g r e e m e n ts . We agree. At trial, Arkoma presented the testimony of Billy M o o r e , who claimed that several leases were lost due to Appellees' failure to m a in t a in necessary production levels. Even if we accept the truth of this

t e s t im o n y , it is insufficient to establish a breach of the operator's duty under the jo in t operating agreements. Applying Texas law, this court has previously held t h a t there is no special duty on the part of an operator to maintain leases under a joint operating agreement that contained language identical to that of Article V (A ). Stine v. Marathon Oil Co., 976 F.2d 254, 259, 265­66 (5th Cir. 1992). Arkoma has not cited, and we have not found, any authority indicating that the r e s u lt would be different under Arkansas law. Therefore, we apply our holding in Stine to this case. The joint operating agreements at issue impose no special d u t y on Appellees to maintain the leases. As we noted in Stine, "[p]reservation o f title to the leases contained within the Contract Area is not the sole r e s p o n s ib ilit y of the operator." Id. (quoting Ernest E. Smith, DUTIES AND

As noted above, the trial court granted the Appellees' motion for judgment as a matter of law on the ground that Arkoma did not present evidence that the joint operating contracts covered property where it lost leases. This argument was not presented in the Appellees' Rule 50(a) motion. Arkoma argues on appeal that the trial court cannot grant judgment as a matter of law on a ground raised sua sponte. We need not address this argument, however, as we may affirm the grant of judgment as a matter of law on any ground even if the trial court did not rely on that ground. See Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 804 (5th Cir. 1997).

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No. 09-40011 O BLIGATIONS OWED BY AN OPERATOR TO NONOPERATORS, INVESTORS, AND OTHER I NTEREST OWNERS, 32 Rocky Mtn. Min. L. Inst. § 12.03(8)(a) (1986)). As Arkoma h a s failed to "establish a conflict in substantial evidence" as to whether A p p e lle e s breached a duty imposed by the joint operating agreements, its b r e a c h -o f-c o n t r a c t claim must fail. Anthony v. Chevron USA, Inc., 284 F.3d 578, 5 8 3 (5th Cir. 2002). 2. A r k o m a also appeals the grant of judgment as a matter of law to Appellees o n its federal and state securities-fraud claims. In its complaint, Arkoma

a s s e r t e d violations of 15 U.S.C. § 78j and 17 C.F.R. § 240.10b-5 (hereinafter " R u le 10b-5 claim") and Article 581-33A(2) of the Texas Securities Act, Tex. Rev. C iv . Stat. Ann. Art. 581-33A(2), (hereinafter "Article 581-33A(2) claim"). Specifically, Arkoma alleged that Appellees used the projections contained in the B u s in e s s Plan to entice investors, but never intended to take steps to complete t h o s e projections. The trial court granted judgment as a matter of law on the s e c u r it ie s -fraud claims on the ground that Arkoma had failed to provide legally s u ffic ie n t evidence that it had relied on any material misrepresentations or o m is s io n s contained in the Business Plan. In order to prevail on its Rule 10b-5 claim, Arkoma must show "(1) a m a t e r ia l misstatement or omission, (2) which occurred in connection with the p u r c h a s e or sale of securities, (3) that was made with scienter, (4) harm, (5) and causation." Mercury Air Group, Inc., v. Mansour, 237 F.3d 542, 546 (5th Cir. 2 0 0 1 ) (citations omitted). A Rule 10b-5 claim requires evidence that the A p p e lle e s knew that a particular statement or omission was "materially false or m is le a d in g when made." Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1069 (5 t h Cir. 1994). To prevail on its Article 581-33A(2) claim, Arkoma must prove t h a t (1) Appellees offered or sold a security, (2) Appellees made an untrue s t a t e m e n t (or omission), and (3) the omission or untrue statement is the means 7

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No. 09-40011 b y which the sale of the security was made. Tex. Rev. Civ. Stat. Ann. Art. 5813 3 A (2 ). A claim under Article 581-33A(2) requires the plaintiff to show that the m a t e r ia l statement or omission was false before a plaintiff purchased the s e c u r it y . See Nicholas v. Crocker, 687 S.W. 2d 365, 368 (Tex. App. --Tyler 1984, w r it ref'd n.r.e.). As an initial matter, we note that "`projections of future performance not w o r d e d as guarantees are generally not actionable under the federal securities la w s as a matter of law." ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 3 3 6 , 359 (5th Cir. 2002) (quoting Krim v. BancTexas Group, Inc., 989 F.2d 1435, 1 4 4 6 (5th Cir. 1993)). The Business Plan contains only projections; it provides n o guarantees of minimum production volumes or revenue streams from the w e lls . Moreover, there is no evidence that Appellees knew that the projections c o n t a in e d in the Business Plan were false when made. The evidence presented a t trial showed that Appellees completed Phase I and made serious efforts to c o m p le t e Phase II of the Business Plan on schedule. Although it is true that s u b s e q u e n t events prevented Appellees from completing Phase II, neither Rule 1 0 b -5 nor Article 581-33A(2) imposes liability for securities fraud solely based o n the fact that future projections were not met.4 See Isquith ex rel. Isquith v. M id d le S. Util. Inc., 847 F.2d 186, 203­04 (5th Cir. 1988) ("Most often, whether lia b ilit y is imposed depends on whether the predictive statement was `false' w h e n it was made. The answer to this inquiry, however, does not turn on w h e t h e r the prediction in fact proved to be wrong . . . ."); see also Herrman H o ld in g s Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 564 (5th Cir. 2002) (holding

Arkoma's failure to present evidence that Appellees knew that the projections contained in the Business Plan were false at the time they were made is also fatal to its claim that Appellees intentionally aided Lynton and Clark in committing securities fraud in violation of Tex. Rev. Civ. Stat. Ann. Art. 581-33(F)(2).

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No. 09-40011 t h a t a claim under Article 581-33A(2) for an untrue promise of future p e r fo r m a n c e requires proof that the defendant had no intention of performing t h e promise at the time it was made). Arkoma also presents, for the first time on appeal, a list of fourteen alleged o r a l misrepresentations made by Appellees. As Arkoma did not bring these s p e c ific misrepresentations to the attention of the trial court in response to the m o t io n for judgment as a matter of law, we will not consider them here. See G r e e n b e r g v. Crossroads Sys. Inc., 364 F.3d 657, 669­70 (5th Cir. 2004). B. A r k o m a also appeals three of the trial court's evidentiary rulings. S p e c ific a lly , Arkoma argues that the trial court erred by (1) limiting Marty S p a d in g e r 's testimony, (2) refusing to allow testimony as to how Appellees spent t h e PSA proceeds, and (3) limiting Lynton's testimony regarding an e-mail that P o e had sent to potential investors. We review evidentiary rulings under an a b u s e -o f-d is c r e t io n standard. Triple Tee Gold Inc., v. Nike, Inc., 485 F.3d 253, 2 6 5 (5th Cir. 2007). An abuse of discretion occurs when an evidentiary ruling is manifestly erroneous. Leefe v. Air Logistics, Inc., 876 F.2d 409, 410­11 (5th C ir . 1989). Even if we find an abuse of discretion, however, we will not reverse a n evidentiary ruling unless "a substantial right of the complaining party was a ffe c t e d ." Triple Tee, 485 F.3d at 265 (footnote omitted). We first address the trial court's limitation of Spadinger's testimony. S p a d in g e r was president of Momentum Energy Corporation, which shared a w o r k in g interest with Arkana and Arkoma in certain wells. Arkoma sought to in t r o d u c e his testimony as to Arkana's general performance as an operator. The t r ia l court limited the scope of Spadinger's testimony to billing disputes that M o m e n tu m had with Arkana. Arkoma asserts that this order prevented

S p a d in g e r from testifying about (1) Arkana's lack of operations on the common w e lls , (2) Arkana's failure to provide an audit of the common wells, (3) instances 9

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No. 09-40011 o f Arkana billing Momentum for projects without performing its obligations, and (4 ) Arkana's general ineptitude as an operator. Arkoma's first three arguments lack merit. Spadinger's testimony that A r k a n a failed to operate on the common wells would have been cumulative of the t e s t im o n y already presented regarding Arkana's failure to drill certain wells in t h e prospect. Excluding such cumulative evidence does not constitute an abuse o f discretion. See Leefe, 876 F.2d at 410-11. Arkoma's argument that it was u n a b le to elicit testimony regarding Arkana's failure to provide an audit is belied b y the record; the trial court allowed a limited inquiry into Arkana's refusal to c o o p e r a t e with the audit request. The record likewise shows that the Spadinger d id testify about Arkana's failure to fulfill its obligations to pay vendors after r e c e iv in g money from Momentum to make such payments. The fourth argument p r e s e n t s a somewhat closer issue as it is not entirely clear why the trial court d id not allow Spadinger to testify regarding Arkana's ineptitude as an operator. In light of our holding that the joint operating contracts impose no duty to m a in t a in leases, however, the trial court's ruling could not have affected A r k o m a 's substantial rights. Triple Tee, 485 F.3d at 265. We next address Arkoma's argument that the trial court improperly e x c lu d e d evidence as to how Appellees spent the PSA proceeds. This argument is directly contradicted by the record before us. t e s t im o n y on this issue. Finally, we find no abuse of discretion with respect to the trial court's lim it a t io n of Lynton's testimony. The trial court initially permitted a limited in q u ir y about the contents of the e-mail, but then ruled that the e-mail was not r e le v a n t to any of Arkoma's fraud claims. The record provides ample support for t h is ruling. Lynton admitted that Poe was not attempting to solicit him to invest in the prospect at the time he was copied on the e-mail, approximately a yeara n d -a -h a lf before the PSA was signed. Moreover, Lynton admitted that none of 10 The trial court allowed

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No. 09-40011 A r k o m a 's limited partners had ever received the e-mail. In light of these a d m is s io n s , we can hardly say that the decision to limit any further testimony r e g a r d in g this e-mail constitutes an abuse of discretion. C. A r k o m a argues that the trial court's actions and comments influenced the ju r y and thereby denied it a fair trial. Our standard of review is set forth in R o d r ig u e z v. Riddell Sports, Inc., 242 F.3d 567, 579 (5th Cir. 2001): I n reviewing a claim that the trial court appeared partial, this court m u s t determine whether the judge's behavior was so prejudicial t h a t it denied the [defendant] a fair, as opposed to a perfect, trial. To rise to the level of constitutional error, the district judge's a c t io n s , viewed as a whole, must amount to an intervention that c o u l d have led the jury to a predisposition of guilt by improperly c o n fu s in g the functions of judge and prosecutor. O u r review of the trial court's actions must be based on the entire t r ia l record. A trial judge's comments or questions are placed in the p r o p e r context by viewing the totality of the circumstances, c o n s id e r in g factors such as the context of the remark, the person to w h o m it is directed, and the presence of curative instructions. The t o t a li t y of the circumstances must show that the trial judge's in t e r v e n t io n was quantitatively and qualitatively substantial. (in t e r n a l quotation marks and citations omitted). Arkoma first argues that the jury was prejudiced by the trial court's fr e q u e n t statements that it was the Appellees' prerogative to use the PSA p r o c e e d s as they saw fit and that the Clark Prospectus was not identical to the B u s in e s s Plan. After reviewing the record as a whole, we are satisfied that the t r ia l court's comments did not confuse "the functions of judge and prosecutor." Id. In addition, Arkoma argues that the jury was irreparably prejudiced when t h e trial court erroneously ruled as a matter of law that the Appellees could do w h a t e v e r they wished with the PSA Proceeds and that the Clark Prospectus had b e e n materially altered. According to Arkoma, the trial court's formal

w it h d r a w a l of the rulings and instructions to the jury to disregard them failed 11

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No. 09-40011 t o correct the resulting prejudice. We disagree. "[C]urative instruction[s] . . . c a n operate against a finding of constitutional error." United States v. Bermea, 3 0 F.3d 1539, 1571 (5th Cir. 1994) (citations omitted). Here, the trial court in s t r u c t e d the jury to disregard the prior rulings at the time they were w it h d r a w n and again at the close of the case. We are satisfied that these actions c o r r e c t e d any possible prejudice. In addition, Arkoma argues that the trial court improperly cross examined it s witnesses and was heavily biased in favor of Appellees. "A trial judge has w id e discretion over the tone and tempo of a trial and may elicit further in fo r m a t io n from a witness if he believes it would benefit the jury. However, the t r ia l court's efforts to move the trial along may not come at the cost of strict im p a r t ia lit y ." Rodriguez, 242 F.3d at 579 (internal quotation marks and citation o m it t e d ). Arkoma points to three instances of allegedly improper questioning. A s Arkoma did not object to the trial court's questioning, our review is for plain e r r o r only. Id. To prevail under the plain error standard, Arkoma must show t h a t an error occurred, the error was plain or obvious, the error affected its s u b s t a n t ia l rights, and "not correcting the error would seriously impact the fa ir n e s s , integrity, or public reputation of judicial proceedings." Septimus v. U n iv . of Houston, 399 F.3d 601, 607 (5th Cir. 2005) . After reviewing the record, w e are satisfied that the trial court's comments were well within the trial court's b r o a d power to "elicit facts not yet adduced or clarify those previously p r e s e n t e d ." Rodriguez, 242 F.3d at 579. Finally, Arkoma argues, without any evidentiary support whatsoever, t h a t the trial court allowed the U.S. Marshal to threaten force against its a t t o r n e y s during trial. There is no evidence in the record before us that this in c id e n t occurred.

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No. 09-40011 D. A r k o m a appeals the award of attorneys' fees to Appellees under 15 U.S.C. § 77k(e) and Ark. Code. Ann. § 16-22-308. Appellees argue that we lack

ju r is d ic t io n over this claim because Arkoma filed its notice of appeal prior to the d a t e of the order awarding attorneys' fees and failed to amend its notice or file a separate notice appealing the order. We agree. When a party files a notice of a p p e a l from a final judgment and that judgment is filed before the court awards a t t o r n e y 's fees to the opposing party, that notice is not sufficient to appeal the s u b s e q u e n t order awarding attorney's fees. NCNB Tex. Nat'l Bank v. Johnson, 1 1 F.3d 1260, 1269­70 (5th Cir. 1994); Quave v. Progress Marine, 912 F.2d 798, 8 0 1 (5th Cir. 1990). Therefore, we lack jurisdiction to review the award of a t t o r n e y 's fees. For the foregoing reasons, the judgment of the trial court is hereby A F F IR M E D .

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