*1 present any cannot at time underlying apathy conceive voter reasons reg- justification visiting automobile disproportionate for of this also lead result and, thus, drivers license fewer istrations alienation on this defendant. event, the Motor Voter applications. respectfully I from therefore dissent very likely makes in effect in Iowa program petition rehearing. denial of for list a redundant and of a drivers license use unnecessary Iowa Code Ann. effort. See (West Supp.1995).
§ 48A.18 Heaney place the
Judge does not source cards he refers to.
the state identification identify reasonably uni- the cards
Unless citizens, the group of existence
versal mind, spring to readily
which does contrary to run
suggestion would seem jury equal for opportunity service
idea contemplated and the Constitution. Duren KLEIN; Klein; Bob Genevieve John Pendergrass; Thompson; Frank Sam ORDER Schaffer; Clymer Law; Margaret Don 16, 1996 Feb. Hall; Wayne Franklin, Rep nie Class rehearing en suggestion banc is for resentative; Morris, Repre Glen Class Judge Judge Morris McMiUian denied. sentative; Vernоn, Rowland Class suggestion. would grant Arnold S. Representative, Appellants, rehearing by the petition panel is for v. denied. also COMPANY; ARKOMA PRODUCTION ARNOLD, SHEPPARD Circuit MORRIS Arkla, Exploration Inc.; Compa McMILLIAN, dissenting, joined Judge, Jones; McCoy, ny; Jerral W. Michael V. Judge. Circuit Appellees. grant rehearing I would en banc for the Heaney’s Judge panel reasons indicated No. 94-1353. particularly, I opinion in case. More Garcia, believe United States Appeals, United States Court (8th Cir.1993) incorrectly F.2d 489 concluded Eighth Circuit. produced in this that statistics like the ones repre- not tend case do to establish Jan. Submitted in Iowa federal court sentation blacks Jan. Decided is not fair and reasonable. venires Were prior holding, I not for this would have at the Suggestions Rehearing Rehearing and for very to the district court for least remanded En March Banc Denied 1996.* I think proceedings, further because prima has out a case defendant mаde facie right was that his Sixth Amendment violated. government has never advanced a rea- using registration
son for voter lists as venires, though black citizens
basis even seriously underrepresented on lists.
are such much, all, probably matter if at does not occurs,
why underrepresentation but it
might gen- black citizens are well because system.
erally skeptical political * suggestions or deci- Judge grant Arnold consideration Hansen took would rehearing nold, Judge en Chief Richard S. Ar- banc. sion this case. Judge Judge Sheppard Morris Loken *3 Cohen, argued, Washington, DC,
Louis Jerral Jones. BEAM, BRIGHT, HANSEN,
Before Judges. Circuit BEAM, Judge. Circuit Jerral W. Jones and Michael V. were sole shareholders of a natural gas production company which held leases *4 royalty Bob Klein and other owners. (sometimes McCoy Jones and sold Arkoma Arkoma) Arkla, old exploration an and pipeline company. royal Bob Klein and the ty appeal owners1 the district court’s are not entitled to recover exchanged of funds in the transac court, contrary tion. The district to our ear mandate, lier determined that Jones and McCoy had nоt royalty settled the owners’ take-or-pay claims when McCoy Jones and effected the sale of Arkoma to Arkla and further determined that Arkoma had not any implied breached duties to the lessors. We reverse.
I. BACKGROUND The facts of this case are set forth in our opinion in appeal the earlier of this action only briefly and need repeated here. See Jones, Klein v. 523-25 Cir.1992) (Klein I). were, McCoy Jones and stated, sole gas shareholders of production company. Arkoma had leases (lessors) royalty with the for mineral rights property located in the Arkoma basin in western Arkansas. Under the leas es, owners were entitled to one- eighth proceeds gas produced of the from on the owners’ land. Arkoma received seven- eighths gas production proceeds for its Bradley Smith, Douglas Jesson and ar- “working interest.”2 gued, Smith, AR, Fort appellant. for Canfield, Jerry Smith, AR, argued, Fort gas Arkoma sold natural to Arkla. (GPC One of Arkla/Arkoma. Arkoma’s contracts with Arkla appellants represent 1. The ap- named partnerships a class of rights also leased mineral to Arko- proximately 3000 lessors. appears ma. compli- This factual scenario more McCoy cated than it is because Jones and wore individuals, many McCoy, 2. Jones and hats and also owned because the transactions were property and controlled in the Arkoma structured to basin maximize tax benefits through partnerships. several McCoy. tax These tax 5239) implied market. take-or-pay provision.3 Because covenant to The district claims. The own- dismissed fell, un price of natural and appealed ers this court we reversed price agreed to “take” the able claim dismissal enrichment “pay” Accordingly, for it. unwilling to covenant to market the breach against Arkla for the Arkomа had claims claim. at 533. F.2d provision due under the amounts In Klein a mat we determined as amounted to contract. claims complicated ter of transactions law million March approximately $36 Arkla, Arkoma, between rate about million accruing at the purchase sale of Arkoma old per month. payment some for the “settlement” included claims. owners’ dispute to resolve the over In an effort (“The Id. at mar difference the fair claims, Arkla and old em these per mcf.] ket value of the reserves [$.83 ultimately negotiations, on a barked series paid amount Jones [$1.62 resulting in sale of Arkoma to Arkla. per represented the value to Jones mcf.] million as a received $173 Arkla’s settle pur After the result of the transaction.4 5239”). dispute Noting under GPC *5 Arkla, by disputed gas the chase of Arkoma equity,” adopted case for we the so- “cr[ies] (GPC 5239) was re production contract called Id. at Un “Harrell rule.” 531. contract, paid Arkla the néw formed. Under rule, gas oil be der that and leases should Arkla) (now wholly owned new Arkoma in a so that lessee and construed manner the gas, royalty the consequently its and less for arising from split lessor all economic benefits royalty payments. lower owners received land; royalty a on either the should due royalty aware of of payments owners were not Id. at take-or-pay or settlement. (J. Bright, concurring). to We remanded a they royalty until received cheeks at proceedings court further for rate in March 1987. lower opinion. consistent with in district royalty owners sued court remand, parties and On dealing duty arising of for breach of the fair remaining agreed that the claims were the fiduciary relationship, breach of con- from a royalty unjust claims owners’ enrichment gas of third-party tract as beneficiaries McCoy5 against аnd and the Jones contract, purchase tortious interference with market implied covenant to owners’ breach Arkoma, contract, unjust against claim Arkoma.6 Klein v. a enrichment and breach of McCoy agreement an for take-or-pay provision gas in also received A is a clause Jones and gas requires purchaser provide quantity and to to Jones that either Arkla to agreement by prom- delivery McCoy of or to the minimal con which was secured for McCoy gas producer/seller issory $24 tract has volume note for million. Jones clause, delivery. $14 Under such million. available for sold Arkoma stock to Arkla for their purchaser usually right paid Additionally, pursuant has the to take the 1986 in to (make (but undelivered) succeeding years in agreement subject for to an that the amount Jones, gas). up 523 n. 1 McCoy Klein adjustment, another Jones and received 1992). Cir. $100 reserves. million the rеvaluation they enti- contend that are owners sum be broken down as follows. The 4. That can payment one-eighth $24 tled of the million to agreed parties initially would that Arkla one-eighth gas purchase of one- Arkoma, including $73 least million for the stock payment. half million McCoy. This amount was owned Jones subject adjustment account for the re- against an equitable Jones 5. This claim drilling subject sults of additional on land against personally as a McCoy Arkoma Arkoma's in the wells leases. Most of interests McCoy corporation because was Jones and involving partnerships held tax Arkoma “premium” Arkla who benefit others, including McCoy. Jones and Before paid opportunity to reform the contract. stock, purchase Arkla’s of Arkoma Jones and essentially directed at old Arko- claim is McCoy partnership This acquired the tax interests However, corpora- new is the same assignеd ma. Arkoma to Arkoma. For from others and them stockholder, Arkoma, Because assignment with a new Arkla. these tion interests if promis- be liable $35 million Arkla owns also received a satisfy judgment. day cannot sory it was received. note which (W.D.Ark. 90-2060, Op. They Mem. at 2-3 Jan. of this court on remand. assert error No. 5,1994). record in the district court’s that the trans- The district court found the developed implied action issue was a settlement fully on the covenant to take-or-pay claim and on assert that are but took further evidence market claim judgment They on entitled to that claim. enrichment claim. Id. at 21. also contend that the district court erred in trial, After the district found: determining that Arkoma not breached proof previous was no direct [t]here an covenant to market. question of record on the whether Jones/ had, fact, take-or-pay settled II. DISCUSSION was, rather, for this court on claim. Finding A. “Settlement” рroof —Law remand hear the and determine Case regard that what the facts are with unfortunate, It is in this issue. therefore agree We view, majority that both the district court failed to follow the Jones, concurring opinions in Klein v. as- mandate of this court. The district court sume that the sale of Arkoma from determining Jones/ had been erred there McCoy Arida to a amounted settlement take-or-pay claim. take-or-pay existing of a claim between the ruled that the funds received parties. respect, With it is noted that included an amount that day facts found this court after a represented five the value to Arida of its support assumption. trial do not reform contract. That amount characterized as a “settlement” (footnote (emphasis original) Id. at 29-30 legal claims. The conclu omitted). The district court found that the sion the take- settled claim was not settled until after *6 or-pay claims is the law of the case and the the sale of Arkoma because GPC was 5289 district court was bound to it.7 follow (new not reformed until after Arkoma Arko- ma) was owned Arida. Id. at 30. The of pre The law the case doctrine district court that concluded “Jones relitigation a in vents of settled issue a case legally were entitled to receive requires that courts follow decisions They they receive from sale. did such proceedings earlier unifor made insure right legal to sell in Arko- their interests decisions, mity of protect expectations of (including ma the [Arkoma] judicial parties promote economy. claim) and cannot be said to have un- been Co., 453, v. Bethea Levi Strauss & 916 F.2d justly enriched because chose to exer- (8th Cir.1990). Liberty 456-57 See also Mut. legal right.” Id. cise that at 35. theOn Elgin Co. v. Equip., Ins. Warehouse 4 & claim, breach of covenant market (8th Cir.1993). 567, F.3d 570 a case When the district court found thаt the amendment appeal decided has been court on prudent of GPC 5239 “was and reasonable court, every ques remanded to the district properly comply im- and served with the disposed tion this court which before Arkoma, plied duty to market which New finally byof its decree is settled deter leases, plaintiffs as lessee under the owed to Houghton Douglas v. mined. McDonnell lessors.” Id. (8th Cir.1980). 858, Corp., 627 F.2d 864 royalty again have appealed owners court district is bound the decree and issue, again, and the once carry whether according must it into execution to the “ royalty any it, owners are entitled to share Id. It not mandate. ‘alter examine execution, million that except purposes give for any received from the various transac- further or other relief or it for review royalty any apparent respect question tions. The owners first error contend ” appeal.’ (quoting the district court failed to follow the on Id. mandate decided Thornton (8th Cir.1993). Generally, parties bring any perceived n. 6 We must 571 note no one panel opinion disputed errors in a court’s attention our characterization of the transactions petition rehearing. petitions through Liberty rehearing a Mut. as a “settlement” in the 567, Elgin Equip., appeal. & were Ins. Co. v. Warehouse 4 F.3d filed in the earlier
785 (8th Carter, 316, surrounding the 319-20 transactions sale Arkoma 109 F.2d Cir. v. the vehicles which Arkla could re- 1940)). doctrine, a law the case Under the form GPC 5239. mandate, and must our district court follow authority decide whether the indicated, we retain we concluded as a matter of As fully scrupulously and carried agreements supporting law that the sales to a v. documentation amounted settlement of terms. Jaramillo out our mandate’s In Cir.1995). claims. consideration of Burkhart, 78, 59 F.3d settlement, a erroneously concluded The district premium, price purported sale “assumption.” holding was factual that our which was over and above the mar legal conclusion. We not. It was ket value of its reserves and assets. that, (regardless law as a matter of found legal 980 F.2d at con Klein 531-32. Our agree parties how the viewed the several clusion that the transaction was a settlement transactions, ments), including the various upon undisputed was based context the ultimate reformation GPC negotiations leading up agreement: amounted, part, to a at least “settlement” parties viewed the transactions take-or-pay claims.8 owners’ agreement parcel of an to resolve the at 531-32. 980 F.2d re claims and transactions negotiations from the to resolve the sulted interpretation an unam take-or-pay dispute. again re We have question of law. biguous contract the record and remain convinced that viewed Co., Inc., W.S.A., Liberty Ins. 7 F.3d v. Mut. event, our conclusion is correct.9 (8th Cir.1993). The determination reject legal our district court free not, is, ambiguous or is also that a contract conclusion. no deference is legal determination and on the issue. paid to the trial decision Unjust Enrichment B. Architecture, Inc. Si Maurice Sunderland initially reject The district court (8th Cir.1993). mon, Also, ed the owners’ enrichment contract, construing court can consid ground claim on the Agreement and the er both “the as whole” had a to recover under their leases and Agreement “undisputed context which the equita to an therefore should be entitled Corp. v. was concluded.” Realex Chem. S.C. remedy. 90-2060 ble Klein v. No. *7 Inc., 299, Son, 302 & 849 F.2d Johnson Preliminary (Transcript 13 of Conference at 1991). Cir.1988) (W.D.Ark. original). 4, in There was (emphasis Findings) March We finding. Klein 980 F.2d at litigation in that the reversed that dispute no the earlier dollars, including rejection of take-or- settlement 8. note the district court’s of million We that (Hand- claims); Aрpellants’ Appendix sequence at 141 holding mainly our based on the of Proposed of headed "Details Deal” written notes indicating did not find that no events. district court Exploration place, [Arkla Co.] "value to AEC had ever taken but the settlement pricing approximately 50 McCoy under lower scenario did not occur until Jones and settlement 75mm$— (when mm$ won’t settle for less than purchase picture the out of the were —Jones reformed). of must be take or ... settlement The district court contract $.80/mcf is a have indicated that a) consultants rejected argu- wrong for we two reasons: b) 'reasonable’ market value for reserves appeal; finding that the the ment in first ground portion of settlement backed into gas purchase contract actual reformation the —have pay 24mm”); Appel- must be take or which reali- is the settlement does not reflect economic — Inc., (Arkla, Appendix at Board of lants’ 152-157 ty. no consideration for the reforma- There was Minutes, 17, 1986, Meeting December Directors’ quid quo pro to rene- tion. The to enable Arkla containing "take-or-pay” numerous references to exchanged gotiate the in December citing take-or-pay obligation elimination of bought when Arkoma from Jones and 1986 Arkla Appellants’ Appendix purchase); as a benefit of words, McCoy McCoy. In Jones and re- other (Documents presented at December at 158-179 money, "premium" the the to settle the ceived 1986, 17, Meeting entitled Board of Directors' take-or-pay claims. of Arkoma Contract Purchase "Reformation Company"). to a All of this is clear that the transactions amounted of Arkoma Production 9. potential Appellants’ claim. See available to both tiie district settlement evidence was 1986, (November 25, See v. Appendix Letter to this court in Klein I. Klein at 136 1991) 4-12, (Trial Warren, (W.D.Ark. Explo- March Alan M. of Arkla No. 90-2060 from President 51, 53, 72). offering purchase $75 58 and Arkoma for Exhibits Nos. ration Co. 786 Normally, express unjust an of damages when enrichment unjust gain unfair parties, enrichment amount of received those un
exists between the See, Holland, justly e.g., recovery. a enriched.11 621 is not available as means of Here, Inc., S.W.2d at the evidence Realty, shows Ark.App. Moeller v. Theis 13 McCoy “premium” (1985). received a 266, 239, However, 240 683 S.W.2d from Arkla enable reform express fully when an contract does not ad purchase contract detriment of the subject, may equity impose dress royalty royalty owners. The owners never See, remedy justice. to further the ends of any premium received that Jones and Enters., e.g., Inc. v. Miller Land Roberson & McCoy received for Co., 422, 57, 287 Ark. 700 Dumber S.W.2d 59 take-or-pay claims. (1985) cancellation). (imposing conditional Accordingly, do beсause the evidence estab- The leases this case not address wheth lishes as matter of law that er a within settlement fits claims, McCoy settled the gas pro “market definition value” the Harrell rule because entitles lessors to duced and sold under the leases.10 More land, proceeds share in all from the we hold over, McCoy parties Jones royalty that the owners are to recov- entitled reasons, adopted For leases. those we unjust er from Jones and on their rule, Henry v. Harrell and cited Ballard enrichment claim. have We reviewed the (La. Corp., & So.2d Cordell 418 1338 voluminous record this ease and can find 1982) proposition that courts should rights evidence that the owners’ way construe transactions such a or separately interests were considered split lessee lessor economic benefits negotiations between Jones and from land. 531-32. and the Arkla defendants. We thus conclude A claim for enrichment is owners’ interest is subsumed an equitable equity, claim. In matters of “premium” within that Jones and court is one of conscience which should be part the sale. diligent grant against ever inequita relief We must next what determine conduct, ingenious unique ble however funds received may Walls, form be. Ark.App. Holland represented “premium” transactions (1981). 621 S.W.2d A court of paid to enable Arkla reform the contract. equity remedy fashion reasonable record, After review the find justified by proof. that is Mid-State Trust (secured “gas payment million contract” Jackson, Ark.App. 112, II v. 854 S.W.2d note) promissory represented part of (1993). 734, 738 “premium.”12 owners are law, party Under Arkansas a one-eighth entitled to share of that $24 unjustly enriched he when has received addition, pursuant million. to the 1986 *8 something of belongs value that to agreement, another. received, Indus., Inc., 1989, Dews v. Halliburton 288 Ark. an additional million for revalua $100 (1986). 532, 67, 708 S.W.2d 69 The measure tion of wells. The evidence that shows the Stephens, assignment Under Hillard v. McCoy's 276 Ark. 637 the of Jones’s and interests 10. (1982), S.W.2d 584-85 lessor with “mar- paid All the directly lessors. other sums were ket value” lease has a to receive from the McCoy. to Jones and The owners do not percentage proceeds lessee a the of lessee payment. $35 claim entitlement to the million gas produced receives from the sale of under a I, gas purchase contract. See Klein F.2d 980 "gas 12.The evidence that shows the contract” (the repre- 533-34 settlement can be viewed as actually illusory was an contract. testi- senting willing pay how much Arkla was to to actually gas. fied "[t]here that no There 1) 2) pay either be released from the selling no meter. There was one no and no one gas already received under the con- buying.” transcript at 714. Trial This of tract) (J. Bright, cоncurring). apparently way the deal was structured this so connection, only that Arkla could part 11. In this in installments. Id. at 711- we note that the monthly exchanged of 12. the monies in the transaction that checks through non-operational flowed from Arkla for wells. Id. at promissory $35 million to off note for 712-13.
787 I, 980 The district on 1986 lease. Klein F.2d premised payment was 1989 court, discussing implied part the breach of cove- of agreement and it also includes claim, nant states: payment million consists premium. of for reserves payment $1.62 has both As been said the Court spot on the worth
ground which were $.83 court, Appeals plaintiffs were “pre represents This difference market. respect incidental beneficiaries with Ac paid to reform GPC 5239. mium” Arkla Thus, these benefits inciden- GPC 5239. are entitled cordingly, the tally plaintiffs when GPC acquired ($.83/$1.62) half one-eighth approximately being manner inci- came into were like remand, million. On of $100 Arkla, dentally lost when New Arkoma and speci with determine the amount court shall reasons, prudent amended GPC 5239. ficity judgment against Jones and shall enter Klein, 90-2060, op. mem. at 44-45. The No. McCoy in that amount.13 authority “[n]o states that has
court further support the notion been cited to Court Implied to Mar- C. Breach of Covenant that loss such incidental benefits ket implied cove- amounts to a violation found that evi nant market which attends mineral district court noting actions of Arkoma in re lease.” Id. at After first dence showed the express rea is sue to en- forming prudent there covenant to 90-2060, take-or-pay obligations No. under force GPC sonable. Klein (W.D.Ark. 1994). 5239, further the district court states: Op. Mem. at 46 Jan. correct, may Although be recognize im- Arkansas law does not implied find that the issue. We plied covenant on the lessee necessarily under a lease covenant to market gas lease file suit tо under an oil pru only duty to make encompasses not gas purchase the terms of con- enforce decisions, but reasonable business dent and tract, party, is a to which lessee duty proceeds deci to share those under said benefit of the lessor lease in this The breach sions with lessors. party nor party a third who neither settle, nor the case is neither the decision to beneficiary said respect contract, but fail to reform the decision purchase contract. the settlement ure to share the benefits of proceeds. owners of those Id. with the beneficial holding that In we affirmed the Klein also mandated our deci-
This result is
a suit for
rule,
could not maintain
the landowners
adopting
I.
the Harrell
sion in Klein
5239 contract.
breach
the GPC
the economic benefits of
we held
However,
question
F.2d at 527.
split
proportionally
land must be
between
market
is a
implied
cоvenant to
breach
of an oil and
lease.
lessees
lessors
completely
cov-
different issue.
Here,
“premium” was
we determined that a
in and
the leases
enant arises
from
Arkla to
the contract.
to enable
reform
5239, except that
upon
GPC
premised
GPC
earlier,
royalty owners received
As noted
the extent
evidence that defines
premium.
no share of
damages flow-
duty or that measures
*9
it conflated
The district court erred when
ing from its breach.
of lease obli-
the cause of action
breach
holding
would
affirm the district
gas pur-
of the
To
gations with that of breach
as inci-
royalty
the
owners’ status
breach of im- mean that
contract. The claim for
chase
precludes
of GPC 5239
the
dental beneficiaries
plied
market arises under
covenant to
Accordingly,
proceeds.
royalty
in the
argument,
the
entitled to share
13.
counsel for
own-
At oral
litigation
cаse
royalty
ers
that
certified class
this
are entitled
stated
in this
owners
royally
only the
owners.
consists of
Arkansas
owners
percent
approximately seventy
the award.
to
comprise approxi-
royalty
The Arkansas
mately
also deter-
court on remand shall
The district
seventy
royalty
percent
owners
of the
implied
pay
their
to
an
covenant to
claims. Klein
claim enforce
789 determine, fully court, at 526. That claim court, is to tried. or free this law, respect transaction the Id. The evidence with to the thresh- as a matter of calling pay- for a take-or-pay constitutes settlement old issue whether claims exactly two. That is party ment respect $10 had been settled is the same with I. The court court did Klein what this noted, As all of facts on which claims. upon undisputed docu- considered relied presented had been tо the court relied presented to had been mentary evidence that 785, Supra district court. n. 9. found the transac- court and district objection Finally, to the dissent’s Supra at 785 tion a settlement. amounted holding market court’s covenant to incor- unambiguous merely n. construed 9. We rect as well. The dissent construes vari- facts, undisputed contracts context states, disagree “I agreements ous viewing the most favor- all the while evidence basic conclusion that Jones and ably nonmoving parties. Within this to the paid anything McCoy were as individuals to applied rule to the Harrell deter- context dispute take-or-pay between the settle portions receive mine who would paid only corporations, two but instead were agreed upon amounts. value of Arkoma itself.” at 792. Infra misapprehension of the fac- Building on its However, you through when cut the form situation, the dissent cites Rowland tuаl/legal get dispute, to the of this as substance Co., Ark.App. Trust 13 Bank & Worthen 9, supra you n. outlined at 783 n. and 785 (1984) support as S.W.2d find, approach, that Jones under dissent’s applicable proposition “[u]nder McCoy would have been mil- $173 law, a settlement whether Arkansas lion for all of the stock in a million $14 is an of fact for trier was made issue beyond company. Every dollar mil- ease fact.” The Rowland sim- Infra represented lion Arkoma stock paid for the ply proposition. for that does stand by payment the oil owned for either reserves lawyer, as a in Rowland was whether issue or the inter- Jones law, agree- to an may bind client matter McCoy, as individu- ests held Jones claim. [by lawyer] to settle a Row- ment als, owners. If Jones and land, at 727. The trial court said 680 S.W.2d entitled to direct or indirect Appeals no. Id. Arkansas Court claims, for their so compensation was, reversed, holding that the settlement Thus, all of rоyalty owners. were the indeed, binding a matter of law. Id. 680 maneuvering at 728. The conceded S.W.2d simply contrary, undisputed fails record authority may grant extent of client owners had no establish that the question of fact. Id. lawyer his be a reached lawful of the settlement Rowland, here, However, in when the with Arida. within context which the dispute, is not in whether settle- achieved III. CONCLUSION interpretation and the ment was reached above, judg- forth For the reasons set and conditions of such settlement terms the district court reversed and ment of questions are of law for the court. These court for is remanded to the district action questions precisely are what this court was Jones, judgment against McCoy and entry of I. and did answer Klein entitled answer in an amount to be determined binding upon legal conclusions were These court, together with interest as the district court on remand. provided by law. appellate faсt- The dissent’s claims posture appear to be bottomed on HANSEN, Judge, dissenting. Circuit appeal I appeal in Klein as an from a respectfully dissent. summary judgment. at 790. motion for Infra First, factually errs when the court Notably, in Klein the district court speaks “royalty owners’ granted judgment in favor of summary only “take- Supra, at 783. The claims”. except the breach of on all claims in this case were or-pay claims” that existed to market claim. Klein covenant *11 by against arising pay dispute Arkoma Arkla settle take or those held Arkla’s under GPC pay out of refusal to either take or 5239,” Arkla’s unnecessary id. at was an eight pursuant gas pur or more of one exceptionally inappropriate appellate court (the chase contracts most notable of which is fact-finding, candidly we recog- should 5239) corporations. GPC the two between nize it as It such. must be remembered that against take-or-pay claims Arkla were grant on a case first came to us always rights nothing contract more. summary judgment by district claim in 5239 was GPC (Morris J.) Arnold, question purely S. aon by certainly plaintiffs, held and most law. claim Whether the held individuals, McCoy but sole against fact Arkla had in been set- ly lessee, plaintiffs’ Arkoma. It was by any payments tled made to Jones Arkoma’s, always a corporate asset of a re McCoy hotly was contested the sum- ceivable, will, you disputed if and doubtful mary judgment papers with filed the trial heavily litigation value laden with risks. court. judge acknowledged The district appeal plaintiff the first we held that disputes of fact about the “settlement” of the party owners were not even third 5239, holding beneficiaries of GPC them claim that at the existed time of most, be “at incidental beneficiaries.” summary judgment the submission Jones, Klein v. Cir. motion: 1992) I). (Klein claims, any, if Their must argument The briefs are full of a lot on their with bottomed leases or pay about whether when this take or it, and as I understand their enrich settled, contract was whether was set- ment claims this lawsuit are that Jones tled when Arkoma was and Mr. sold Jones McCoy failed to share with them some of McCoy got money and Mr. for their stock the monies Jones and received when things, and some other or whether it sold their individual inter was wholly-owned ests Arkoma to Arkla’s sub settled when fact Arkoma entered into a sidiary, Exploration Company. Arkla Or as agreement companies. new with Arkla plaintiffs’ put argument, counsel it at oral (JM 2-3.) App. Having recognized at “They got get theirs —we didn’t ours.”1 genuine disputes factual before him about Second, disagree respectfully I most pay “whether or when this take or our premise court’s and basic first that this settled,” was judge district went on to concluded of law in matter say: appeal first that an identifiable discrete money matters, But I don’t think it at least not on from the represented sale of Arkoma a “set- level, when or if the contract was take-or-pay dispute tlement” of the between settled, plaintiffs I because don’t think the If anything, and Arkoma. it was our right proceeds have prior comment difference in “[t]he of a of a pay obligation. take or fair market value of the reserves (Id. 3.)2 at paid McCoy represent- amount on that issue of law to Jones and ed grant the value to Jones and reversed the district sum- brothers, Contrary by my majority recog- criticism made occurs is when takes those 788, 789, supra, my at view the existing disputes nized and factual as to "wheth- everything are entitled to their leases entitle upon er and what terms a settlement was by applying them the “Harrell Rule” to let them reached,” says supra, and now were pay share in the settlement of the take or con- really questions ap- of law decided first herein, dispute my tracts. As outlined is with the peal. question The real of law involved in the appeal court’s adamant insistence the first appeal first judge was whether the first district pay decided as a matter of law that take or right he said when owners had by payments contracts settled were to Jones and right any portion proceeds of a McCoy and the terms of such a settlement. pay settlement of a take or contract. We said wrong, royal- that the district court was and that majority 2. The court’s this dissent. misreads Su- owners, Rule,” ty above, under the have "Harrell pra, genuine stated 789. As factual disputes share in the settlement of a take or recognized by judge con- first pipeline compa- or tract lessee "whether when this between their and a metamorphosis only ny. disagree legal settled.” which do not with that conclusion.
791 then to decide whether movant has mary tо Jones and judgment For our court adopted judgment “Harrell Rule.” “established its to a legal conclusion that say today “[o]ur to clarity such as to leave no room for contro- a was was settlement based the transaction Runnels, versy_” 924, Kegel v. 793 F.2d negotia- undisputed context of upon (8th Cir.1986). applicable Arkan 927 Under ”, ... up agreement to the su- leading tions law, or sas whether not a settlement was added), directly con- (emphasis at is pra, 785 made is an issue of fact for the of fact. trier trary to the district court the record before Co., Rowland v. Bank & Trust Worthen granted summary judgment the time it N.A., 139, 726, Ark.App. 13 680 S.W.2d 728 correct. Like the district and cannot be (1984) (“The Appeals Court of cannot act as a court, necessary this it not “on level” We must therefore factfinder. reverse in or court decide Klein “whether this to this matter to the trial court so that remand pay was settled” take or contract when hеaring may be held to further determine it, (let which is alone to settle what whether a settlement had been made....” says opinion now first what court also (citation omitted)).3 We funda committed enforce). All trying it is now did and what in in mental error Klein I when we included in I was whether we had to decide opinion the “FACTS” the reso legal had entitlement everyone in lution of what the district court in of a or share settlement take hotly fact disputed knew were issues— district court on leave “whether or when this take the factual issues remand to determine had was settled.” Because Jones whether, what, when, how settlement summary judgment in opportunity occurred. ruling from setting to obtain the district consistently judges We reverse judge disputed on the issues fact before disputed of fact deter who decide issues they appeal, not and first should mining summary judgment motions. See Te by our be bound on remand court’s state (8th Ensrud, 357, 55 F.3d 360 leconnect v. ments issues. See Interna on the factual Cir.1995) (“The judgment summary mecha Union, Trucks, Inc., UAW Mack tional v. designed to forecast the work of nism not (3d 107, Cir.1990), 110-11 de cert. West, fact.”); v. 47 the finder of Oldham nied, 1313, 111 113 Cir.1995). 499 U.S. S.Ct. We should be F.3d 989 (1991). L.Ed.2d 246 willing to medicine we dose take same recognize our errors when we out own correct, and in Nor are we now truth we appeal make them. are allowed on We error, compound our when we what weigh disputed and resolve the evidence fact-finding, appellate court an unwarranted Tesch, McCurry questions of fact. law,” it call it and then use a “conclusion of (8th Cir.1987) (“The trial F.2d carefully as “the ease” reverse law place Appel facts found. is the to be findings of detailed fact made considered facts_”). not find the late courts should hearing judge all of the the district after Rather, summary appeal grant from a on five-day gratuitous in a trial. Our evidence only judgment in Klein are authо as (or “assumption” judge as the district light most rized view the evidence remand) it on (not politely more characterized favorable to the nonmovant determine unwarranted, ill-advised, only proves) facts that was not disputed what evidence Rowland, criticism, judge made no fact- Contrary majority's supra, at the state trial to the 788-89, was set- directly point. finding about "when or if the contract on In Row- Rowland 3), because, land, (JM just respect App. at like state tled" in this case with it was Rowland, on a appeal, question judge he decided the case only law was trial first before question our appellate precisely of law. The difference between because the court. was Appeals findings Court of fact court and the Arkansas court had made no Arkansas trial case, correctly "whether, appellate declined under facts of state about (680 opportunity tо look at the facts the record made ...” been fact added) 728) (emphasis before trial court and make existed S.W.2d Arkan- had, in that a settlement appellate factual determinations fact, court remanded to determine sas if (and terms) as our court made also its At risk of been settlement had in been made. fact Arnold, just erroneously Judge does. repetition, like then District was, view, inappropriate, judge’s my as the district to “retain.” In on fact-findings meticulous remand demon- only covenant-to-market claim reaches the *13 strate, clearly wrong. in renegotiating actions of New Arkoma its (The rights in 5239. GPC reader compound We can rather than still correct plaintiffs must remember had no previous by treating prior our now error our legally rights in enforceable the contract and finding not established fact as either or as thereof.) only were incidental beneficiaries casе, law of the but what it should issue, respect agree With I to that with the have been —a recitation the evidence as district court that was no there violation of in light viewed most favorable to the any implied such covenant. The actions tak nonmoving plaintiffs at the time the trial summary en granted judgment against negotiating New Arkoma in an end to them. Then we are free do that which the stalemate were similar to those taken with, requires law us to now—review many do the find- producers disputed other take-or- ings of fact made the district court on pay contracts, and resulted movement so, Having remand for clear error. done I plaintiffs’ ground out of the at would affirm the district court on the existing prices better than roy market with plaintiffs enrichment claims made being paid.4 alties renegotiat actions in Its against McCoy. Jones and ing GPC 5239 meet the test we set out compliance Klein I—“The test of with аn I opinion also dissent from the court’s with implied covenant is that of a reasonable de respect implied covenant-to-market veloper.” fact, Klein 532. In against claim made the Arkla defendants. given the existing, market conditions then pegs The court liability its conclusion of on a probably imprudent would have been not to determination that “Arkoma failed to retain pay renegotiated have Frey over to the contract. See propor- owners a Co., (La. tionate premium paid by share of Amoco Prod. Arkla 603 So.2d 1992) (While take-or-pay settle the Supra, claims.” making long term contract “premium” talking the court is containing provision take-or-pay pipe about “premium” is the the court erroneously company originally prudent, line produc finds paid were as individ- likely er “would also be deemed to have acted uals to dispute pursu- settle thе imprudently” renegotiate if it failed in face 31, 1986, ant to the terms of the December pipeline’s inability fully per financial Swpra, transactions. at 786-87. Because I conditions.). form pay given take or market disagree with the court’s basic conclusion Although following quotation may be sub were anything as ject herein, made criticisms this court individuals to dispute settle said as much in Klein I: corporations, between the two but instead In this case the elements paid only itself, were value of Arkoma the developers [sic] contracts with the present which contingent included whatever were, pipeline/marketer because of Feder- take-or-pay dispute asset value the with Ark- al Energy Regulatory Commission inter- la have had to cannot concur vention, literally bankrupting pipeline, with the court’s conclusion about Arkoma’s and those facts must considered eval- responsibility to somе of retain the monies uating the paid by reasonableness defendants’ plaintiffs’ Arkla for the benefit. addition, actions. paid by We find it reasonable for monies went directly to Jones defendants to passing liqui- without make some effort to through nothing Arkoma. There was date take-or-pay obligations of AEC. dollars, majority again reading began receiving errs its of this real not "zero dollars.” judgment, dissent. dollars, Under the district court's i.e., They receiving nothing, zero affirmed, which should be while the unresolved prices received the benefit the above market dispute between and Arkla caused their renegotiated contained in the take or con- production to remain shut and no oc- reopened tract which their wells. For the first curred. arose, pay dispute time since the take or Plaintiffs have F.2d at 526. fact- court’s show failed to erroneous; clearly claim are
findings on this supports fully the trial
the evidence violation
determination gas in a reasonable to market
covenant occurred, affirm and I would
prudent manner respects. judgment in all
its
Accordingly, respectfully dissent. Plaintiff,
Larry GRINDER, Loetel, Appellant, A.
Edward GAMMON; A. Dora
James Schriro, Appellees.
B.
No. 95-2290. Appeals, Court of
United States
Eighth Circuit. Nov.
Submitted Jan.
Decided Loetel, pro A. se.
Edward Gen., Alsop, Atty. St. A. Christine Asst. MO, Louis, appellee. MAGILL, WOLLMAN,
Before HANSEN, Judges. Circuit PER CURIAM. appeals Loetel from the district
Edward A. judgment in his grant summary