CIG Exploration, Inc. v. Tenneco Oil Co.

• Decision Date: 29 November 1993
• Parties: NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 431

83 F.3d 431

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

CIG EXPLORATION, INC., Plaintiff-Counter-Defendant-Appellant, v. TENNECO OIL COMPANY; Mt. Carmel Trust; G.A. Hill, Trustee

for Mt. Carmel Trust; Hanover Petroleum Corporation; GLM

Oil & Gas; Decalta International Corporation; Mendell M.

Bell Estate; Colleen L. Daleske, Personal Representative of

Mendell M. Bell Estate; R.S. McKnight; Lyla L. Vicklund;

Seneca Oil Company; Prudential Energy Company, Defendants-Appellees,

and

ENRON DEFENDANTS; Enron Oil & Gas Company; Burk Royalty

Co.; Decalta International Corporation; John R. Anderson;

Carol L. Hatch; Betty Garff; Alf R. Thompson; Ruth C.

Lee; Dorothy S. Cannon Estate; M. Warnock, Personal

Representative of Jack Warnock Estate; Lavon S. Hill;

David A. Hill; Laura E. Lacy; Kimberly Hill Campbell;

Lori L. Hill Schafer; Paul T. Walton; E. Carolyn Hager;

E. Carolyn Hager; Trustee for Dorsey Hager Trust; Francis

Minton, Personal Representative of Estate of Robert J.

Minton; Minton Investment Co.; Raymond T. Duncan; Vincent

Duncan; John H. Morgan, Jr.; Utah Resources International,

Inc.; and John H. Morgan, Jr., Co-Personal Representative

of Estate of John H. Morgan, Sr.,

Defendants-Counter-Claimants-Appellees.

No. 95-4019.

(D.C.No. 91-CV-965)

United States Court of Appeals, Tenth Circuit.

April 23, 1996.

Before KELLY and BARRETT, Circuit Judges, and BROWN, ^** Senior District Judge.

ORDER AND JUDGMENT ¹

BARRETT, Senior Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff appeals from a district court order granting summary judgment to defendants. See CIG Exploration, Inc. v. Hill, 824 F.Supp. 1532 (D.Utah 1993). The pertinent factual and procedural background is set out in the district court's thorough opinion, and need not be repeated here. Further, although plaintiff pursued, and the district court dismissed, several state and federal claims, plaintiff limits this appeal to a single issue relating to only one claim: whether the district court erred in applying a state statute of limitations to its federal cause of action for equitable reimbursement. For the reasons that follow, we decline to address this point on waiver grounds ² and, accordingly, affirm.

Defendants argue, and we agree, that the issue plaintiff now seeks to raise was not presented to the district court during the summary judgment proceedings, when plaintiff maintained that its federal claim was viable because the state statute of limitations had been complied with. Out of all the pertinent pleadings, motions, memoranda, and oral argument documented in the record, plaintiff has been able to cite but one passing remark by counsel touching on the applicability of the limitations statute, consisting of an incidental reference to a statement in a decision actually relied on by plaintiff for its accrual argument under the statute. See Reply Br. of Appellant at 3 n. 1. This is precisely the sort of vague, unpursued comment that, by failing to alert anyone to a potential issue, does not present or preserve it for review. See Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 721, 722 (10th Cir.1993)("vague, arguable references to [a] point in the district court proceedings do not ... preserve the issue on appeal;" "[s]imilarly ... where an issue is raised but not pursued in the trial court, it cannot be the basis for the appeal"). We also note that the summary judgment order's "discussion regarding [plaintiff's federal claim] reveals no evidence that the court was aware [plaintiff] was asserting [the state statute did not apply]." First Sec. Bank v. Taylor, 964 F.2d 1053, 1056 (10th Cir.1992).

Plaintiff finally did question, among other things, the applicability of the state limitations statute in a motion for reconsideration, which the district court summarily denied without any substantive recognition or analysis of the newly raised issue. Instead, the district court focused on general procedural principles of finality, law of the case, and proper motions practice:

After full briefing and argument by the parties [in the summary judgment...