935 P.2d 1185 (Okla.Civ.App. Div. 1 1996), 85922, Continental Natural Gas, Inc. v. Midcoast Natural Gas, Inc.

Docket Nº:85922.
Citation:935 P.2d 1185
Party Name:CONTINENTAL NATURAL GAS, INC., Appellee/counter-appellant, v. MIDCOAST NATURAL GAS, INC., Appellant/counter-appellee.
Case Date:December 10, 1996
Court:Court of Appeals of Oklahoma, Court of Civil Appeals of Oklahoma
 
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Page 1185

935 P.2d 1185 (Okla.Civ.App. Div. 1 1996)

CONTINENTAL NATURAL GAS, INC., Appellee/counter-appellant,

v.

MIDCOAST NATURAL GAS, INC., Appellant/counter-appellee.

No. 85922.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

December 10, 1996.

Page 1186

Steven K. Balman, Bond & Balman, Tulsa, for Appellant/counter-appellee.

James W. Rusher, Heath E. Hardcastle, Albright & Rusher, P.C., Tulsa, for Appellee/counter-appellant.

OPINION

JOPLIN, Judge:

Appellant/counter-appellee Midcoast Natural Gas, Inc. (Midcoast) seeks review of the trial court's orders denying Midcoast's motions for summary judgment, directed verdict and judgment non obstante verdicto, and awarding Appellee/counter-appellant Continental Natural Gas, Inc. (Continental) attorney fees after judgment on jury verdict for Continental in Continental's action for recovery of value of natural gas allegedly sold and delivered under contract, alleging error of the trial court (1) denying Midcoast's motions for summary judgment/directed verdict/judgment n.o.v., the uncontroverted evidence showing an accord and satisfaction of the disputed debt, and (2) in awarding Continental allegedly excessive attorney fees. In the counter-appeal, Continental seeks review of the judgment on jury verdict awarding

Page 1187

prejudgment interest, alleging miscalculation thereof under the parties' contract.

Continental and Midcoast entered a contract by the terms of which Continental agreed to sell and Midcoast agreed to buy natural gas. The terms of the contract further provided in pertinent part:

Any payments due which are not received by seller on or before the date which is thirty (30) days after the due date for such payment shall thereafter bear interest at the maximum rate allowed by law.

. . . . .

In the event any action is brought to enforce, or for the breach of, any provision of this Agreement, the prevailing party shall be entitled to recover its costs and expenses, including attorney's fees, associated with such action.

A dispute subsequently arose concerning amounts owed by Midcoast for "commodity gas" supplied under the contract. After some discussion, and Midcoast apparently believing the parties had agreed on the sum due and owing, Midcoast tendered a sum by check bearing the notation "payment in full" to Continental's "lock-box" account. Continental, apparently without appreciation of the "payment in full" notation, negotiated the check. Upon "discovery" of the restrictive notation, Continental notified Midcoast that Continental did not intend to accept the tendered check as payment in full.

Continental thereafter commenced the instant case in April 1992, seeking recovery of about $15,000.00 as remaining due and owing under the parties' contract. 1 In January 1993, Continental subsequently filed a motion to set for pre-trial conference, to which Midcoast's then-counsel objected as premature, discovery having yet to be completed. In September 1993, Midcoast's then-counsel...

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