Tellus Operating Group, LLC, et al. v. Texas Petroleum Inv. Co., et al.
| Docket Number: | 2009-CA-01040-SCT Linked Case(s): 2009-CA-01040-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 10-04-2012 Opinion Author: Kitchens, J. Holding: DA-Affirmed; CA-Affirmed. |
|
| Additional Case Information: |
Topic: Oil and gas - Defense theories - Two-issue rule - Damages jury instructions - General verdict - Engineering expert testimony - Section 73-13-3 - M.R.E. 702 - Section 73-13-39 - Professional licensure status - Discovery violation - M.R.C.P. 26(4)(A)(i) - Bias of witness - Declaratory judgment - M.R.C.P. 57 - M.R.C.P. 54(c) - Conversion - Determination of ownership - Termination of controversy Judge(s) Concurring: Carlson and Dickinson, P.JJ., Lamar, Chandler, Pierce and King, JJ. Non Participating Judge(s): Waller, C.J., and Randolph, J. Procedural History: Jury Trial/Declaratory Judgment Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
|
| Trial Court: |
Date of Trial Judgment: 02-25-2009 Appealed from: Lamar County Circuit Court Judge: Prentiss Harrell Disposition: Entered a declaratory judgment on behalf of the Plaintiffs and sent issues of conversion and negligence to the jury which returned a verdict for the Appellees. Case Number: 2004-307 |
|
| Consolidated: 2009-CA-01174-SCT Texas Petroleum Investment Co., et al. v. Tellus Operating Group, LLC, et al.; Lamar Circuit Court; LC Case #: 2004-307; Ruling Date: 02/25/2009; Ruling Judge: Prentiss Harrell 2009-CA-01041-SCT Tellus Operating Group, LLC, Baxterville Oil Acquisitions, LLC, Mississippi Oil Acquisitions, LLC, NOMS, LLC, SNPI, LLC, BAX, LLC, Vickery Properties, LLC, Baxterville Properties, LLC and Sutherland Energy Corporation v. Total Petrochemicals USA, Inc. f/k/a Atofina Petrochemicals, Inc. f/k/a Fina Oil and Chemical Company; Lamar Circuit Court; LC Case #: 2007-3; Ruling Date: 02/25/2009; Ruling Judge: Prentiss Harrell | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Tellus Operating Group, LLC, Baxterville Oil Acquisitions, LLC, Mississippi Oil Acquisitions, LLC, NOMS, LLC, SNPI, LLC, BAX, LLC, Vickery Properties LLC, Baxterville Properties, LLC and Sutherland Energy Corp. |
MICHAEL J. BENTLEY
W. WAYNE DRINKWATER
PAUL N. DAVIS
MIKE PUMPHREY
W. DAVID ROSS
RICK D. NORTON |
|
|
| Appellee: | Texas Petroleum Investment Co., et al. | MICHAEL B. WALLACE JOHN P. SNEED REBECCA HAWKINS DAVID W. HOLMAN THOMAS W. TYNER DAPHNE M. LANCASTER MICHAEL D. HUDGINS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Oil and gas - Defense theories - Two-issue rule - Damages jury instructions - General verdict - Engineering expert testimony - Section 73-13-3 - M.R.E. 702 - Section 73-13-39 - Professional licensure status - Discovery violation - M.R.C.P. 26(4)(A)(i) - Bias of witness - Declaratory judgment - M.R.C.P. 57 - M.R.C.P. 54(c) - Conversion - Determination of ownership - Termination of controversy |
| Summary of the Facts: | The plaintiffs (collectively “Tellus”) alleged that they owned the “shallow gas” rights from the earth’s surface to a depth of 8,000 feet in a tract of land known as the Bilbo A Lease. While ownership of the shallow gas was disputed, all parties agreed that the defendants (collectively “TPIC”) owned the gas rights below 8,000 feet and the oil rights in both the shallow and deep zones. Tellus sued TPIC, alleging that it had produced Tellus’s shallow gas through one if its wells known as the A-1 well. The trial judge declared that the plaintiffs were the rightful owners and submitted the plaintiffs’ conversion and negligence claims to a jury. The jury returned a general verdict in favor of the defendants, and both sides appeal. |
| Summary of Opinion Analysis: | Issue 1: Two-issue rule TPIC argues that the appellate court cannot reverse the jury’s general verdict unless Tellus shows error with each of TPIC’s theories of defense. TPIC is relying on the “two-issue rule,” as found in the Florida Supreme Court case of Barth v. Khubani, 748 So. 2d 260, 261-62 (Fla. 1999). the The rule requires either distinct theories of liability leading to the same measure of damages or separate, distinct defenses that completely bar recovery. Since TPIC’s defense theories overlapped, the two-issue rule does not apply. Issue 2: Jury instructions Tellus argues that the trial court erred by instructing the jury on the doctrine of commingling and by submitting special interrogatories on the issue of damages. However, the Court will not consider alleged erroneous instructions on the measure of damages when the jury finds in favor of the defendant on the issue of liability. Thus, the general verdict in favor of the defendants precludes appellate review. Issue 3: Evidentiary issues Tellus first argues that the trial judge should have disallowed the expert testimony of TPIC’s petroleum engineers, because an engineer who provides expert testimony without a Mississippi license has committed a crime under the Mississippi Code. Section 73-13-3 which defines the “practice of engineering” includes “expert technical testimony evaluation.” Under section 73-13-39, it is a misdemeanor “to practice, or offer to practice, engineering in this state without being licensed” by the Mississippi Board of Licensure for Professional Engineers and Surveyors. While the Court has held that a witness may be qualified to provide expert testimony regardless of his or her professional licensure status, this is an issue of first impression since it involves licensing statutes which criminalize expert testimony without a license. As other states have found, the statutory prohibition has no bearing on whether a witness is otherwise qualified as an expert under M.R.E. 702. The Rules of Evidence govern in judicial proceedings and thus, there was no error here. Tellus also argues that a portion of the testimony of one of TPIC’s expert witnesses was inadmissible because it was an unfair surprise that went beyond the scope of his report. M.R.C.P. 26(4)(A)(i) requires a party to “state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Here, Tellus never once argued that it had been denied the right effectively to rebut the expert’s opinion. It was not until post-trial motions that Tellus brought up this issue. The actual report was presented to the court but once, months before trial, attached as an exhibit to an unrelated pretrial motion. This one page of testimony did not adversely affect a substantial right of the plaintiffs when the same argument was not timely presented to the trial judge. Tellus also argues that the trial judge improperly excluded evidence of the bias of Brad Lowe, who was employed by TPIC as a full-time “pumper.” The proffered evidence sought to prove that Lowe had been accused of stealing copper from both TPIC and Tellus, and, that while Tellus had sought restitution for the theft, TPIC declined to press charges. However, the proffered evidence did not reveal the reasons for the trial court’s ordering restitution to Tellus but not TPIC. Also, the criminal charges arose and were resolved after Lowe had been deposed by the plaintiffs. Thus, there was no error. Issue 4: Declaratory judgment TPIC has cross-appealed the declaratory judgment, arguing that the declaratory judgment exceeded the scope of the complaint’s demand for relief; the circuit court did not have jurisdiction over title issues; and the ownership issue became moot once the jury had entered a general verdict in favor of TPIC. Courts of record have the discretion under M.R.C.P. 57 to enter declaratory judgments in appropriate cases. M.R.C.P. 54(c) allows a court grant relief that is not demanded in the pleadings, if the relief is supported by the evidence and is within the court’s jurisdiction to grant. The trial centered on conversion, a claim for which the plaintiffs could not recover damages without first establishing lawful ownership. Tellus agreed that this essential element would be decided by the trial judge before the conversion claim could be presented to a jury. A determination of ownership would terminate the controversy or remove an uncertainty. Therefore, the declaratory judgment was not an abuse of the trial judge’s discretion. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
