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Slawson Exploration Company, Inc. v. Nine Point Energy, LLC

United States District Court, D. North Dakota

April 8, 2019

Slawson Exploration Company, Inc., Plaintiff,
v.
Nine Point Energy, LLC f/k/a Triangle USA Petroleum Corporation, Defendant.

          ORDER GRANTING THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          Daniel L. Hovland, Chief United States District Judge.

         Before the Court are Slawson Exploration Company, Inc.'s (“Slawson Exploration”) motion for partial summary judgment and Nine Point Energy, LLC's (“Nine Point”) motion for summary judgment. Slawson Exploration filed its motion for partial summary judgment on March 2, 2018. See Doc. No. 24. Nine Point filed its cross-motion for summary judgment on the same date. See Doc. No. 29. The parties have fully briefed both motions. For the following reasons, the Court grants Nine Point's motion for summary judgment.

         I. BACKGROUND

         Slawson Exploration brought this diversity action for declaratory judgment on May 24, 2017. Slawson Exploration is a Kansas corporation with its principal place of business in Wichita, Kansas. Nine Point is a Delaware limited liability company with a single member, Nine Point Energy Holdings, Inc., which is a Delaware corporation with its principal place of business in Denver, Colorado. The case derives from a decision by the United States Bankruptcy Court for the District of Delaware to defer deciding whether a provision in an oil and gas contract runs with the land under North Dakota law. Slawson Exploration claims Nine Point owes it payments based on a provision in an oil and gas development agreement Slawson Exploration made with Nine Point's predecessor. The parties have framed the question before the Court to be whether the provision constitutes: (1) an interest in real property; (2) a covenant running with the land; or (3) an equitable servitude. Slawson Exploration estimates payments based on the provision to total approximately $25, 100, 000. After an exhaustive consideration of the matter, the Court concludes the provision in question does not fall within any of the above categories.

         In 2010, Slawson Exploration and Triangle Petroleum Corporation (“Triangle”) entered into a contract titled “Exploration and Development Agreement with Area of Mutual Interest” (“EDA”). See Doc. No. 1-1. The EDA defined a project area, referred to as “Project X, ” in Williams and McKenzie Counties, North Dakota. At the time of the agreement, Slawson Exploration held leasehold interests in the Project X area; Triangle did not. According to the EDA's recitals, Slawson Exploration was “seeking partners to jointly acquire additional undeveloped leasehold interests in the Project Area, ” and Triangle “wish[ed] to participate with [Slawson Exploration] in evaluation, leasing, drilling, and development of the Project Area.” The EDA provided the terms for their venture. The EDA was to be governed by Colorado law, “except with respect to substantive oil and gas and real property matters, which shall be governed and construed in accordance with the laws of the state of North Dakota.” See Doc. No. 1-1, p. 5.

         Pursuant to the EDA, Slawson Exploration agreed to sell 30% of its oil and gas leasehold interests in the project area to Triangle. In addition to paying a per acre price, Triangle agreed to pay Slawson Exploration “an amount equal to 10 percent” of Triangle's share of costs to drill and complete Project X wells for which it opted to participate.[1] This obligation to tender payment based on drilling and completion costs is at the heart of the controversy. The parties refer to it as the “Promote Obligation” or the “10% Promote.”

         The EDA also contained a provision titled “AMI, ” which is an abbreviation for “area of mutual interest.” This provision is expressly noted in the title of the EDA agreement-i.e., “Exploration and Development Agreement with Area of Mutual Interest.” The relevancy of this provision to the dispute will become apparent later. In short, the parties disagree as to whether the area of mutual interest (“AMI”) provision's inclusion, as well as the term's use in the broader agreement's title, affect the legal classification of the Promote Obligation. Under the AMI provision, the parties agreed they would offer any leasehold interest they acquired in the project area, at cost, in the proportion that each party owned under the EDA-i.e., 70% for Slawson Exploration and 30% for Triangle. Unlike the EDA, which was to last “for the term of each leasehold interest and any extension or renewal, ” the area of mutual interest provision had a fixed two-year term.

         Although Triangle acquired 30% of Slawson Exploration's interests in the project area, Slawson Exploration retained title to the interests and held them in trust for Triangle. In March of 2011, Triangle purchased Slawson Exploration's 70% interest in certain Project X leases in Williams County. Slawson Exploration made two assignments to Triangle. The first conveyed Slawson Exploration's 70% interest. See Doc. No. 27-1. The second assignment conveyed the 30% interest Slawson Exploration was holding in trust for Triangle. See Doc. No. 27-2. The second assignment stated the EDA “shall control in the event of any inconsistency with this Assignment.” It also stated “the covenants and conditions hereof . . . shall be covenants running with the oil and gas leases.” Slawson Exploration later made additional partial assignments of Project X leasehold interests to Triangle, all of which were subject to the EDA and contained language stating Slawson Exploration “is entitled to and does hereby specifically retain and reserve . . . the right to receive from [Triangle and its] successors and assigns, an amount equal to ten percent (10%) of the cost attributable to the interest assigned hereunder, of the drilling and completion costs for any and all wells drilled on the Subject Leases.” See Doc. Nos. 27-3, 27-4, 27-5, 27-6, and 27-7.

         In April of 2012, Triangle began conveying its interests in the Project X leases to its wholly owned subsidiary, Triangle USA Petroleum Corporation (“TUSA”). See Doc. No. 1-13. On June 29, 2016, TUSA filed a petition for Chapter 11 bankruptcy. Slawson Exploration filed a proof of claim seeking payment, pursuant to the Promote Obligation, on all wells TUSA elected to participate after TUSA filed its bankruptcy petition. The proof of claim stated:

Debtor may owe Slawson Exploration 10% Payments for wells that will be drilled in the future in leases subject to the Agreements, including Debtor's planned wells, and the estimated value of those future 10% Payments could be up to approximately $25, 100, 000.

See Doc. No. 31-1, p. 9. Nine Point emerged from confirmation of the bankruptcy plan. The Bankruptcy Court's confirmation order gave Slawson Exploration leave to commence litigation in North Dakota to determine whether the Promote Obligation runs with the land under North Dakota law:

Nothing in this Confirmation Order or the Plan shall constitute a determination of the rights and obligations of the Debtors, the Reorganized Debtors, and Slawson Exploration . . . pursuant to that certain Exploration Development Agreement with Area of Mutual Interest . . . by and between Slawson Exploration and [Triangle], including, without limitation, whether the [Promote Obligation] constitutes a covenant running with the land under applicable non-bankruptcy law. . . . Slawson Exploration may commence a declaratory-judgment action or other appropriate proceeding in North Dakota state court or another court of competent jurisdiction and proper venue seeking a determination whether the Promote Obligation runs with the land. . . . In the event a court of competent jurisdiction concludes that the Promote Obligation constitutes an in personem Claim against the Debtors, it shall be subject to full and final satisfaction, settlement, release, and discharge pursuant to . . . the Plan to the same extent as any other pre-petition unsecured claim of the same Class.

See Doc. No. 1, pp 13-14.

         Slawson Exploration brought this suit against Nine Point for declaratory judgment on May 24, 2017. Slawson Exploration asserts the Promote Obligation should be classified as a real property interest that binds successors. Slawson Exploration argues the Promote Obligation falls into at least one of the following real property interest categories: (1) a real covenant running with the land; (2) a free-standing real property interest; or (3) an equitable servitude. The Court concludes the Promote Obligation is personal in nature and does not fall within any of these categories.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate when the evidence, viewed in a light most favorable to the non-moving party, indicates no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Davison v. City of Minneapolis, 490 F.3d 648, 654 (8th Cir. 2007); see also Fed.R.Civ.P. 56(a). Summary judgment is not appropriate if there are factual disputes that may affect the outcome of the case under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact is not the “mere existence of some alleged factual dispute between the parties.” State Auto Ins. Co. v. Lawrence, 358 F.3d 982, 985 (8th Cir. 2004). Rather, an issue of material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The moving party always bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party may not rely merely on allegations or denials; it must set out specific facts showing a genuine issue for trial. Forrest v. Kraft Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002). The court must view the facts in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

         III. WHETHER THE PROMOTE OBLIGATION IS ...


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