Kysar v. BP America Prod. Co., 29,756.

Citation2012 -NMCA- 036, 273 P.3d 867
Case DateJanuary 19, 2012
CourtCourt of Appeals of New Mexico

2012 -NMCA- 036
273 P.3d 867

Raymond L. KYSAR, Patsy Sue Kysar, and The Kysar Family Trust, Plaintiffs–Appellants,
BP AMERICA PRODUCTION COMPANY, f/k/a Amoco Production Company, Defendant–Appellee.andWilliam Karl Johnson and Mary M. Johnson, his wife, and all of their heirs and successors known and unknown, BP, the heirs and successors of Maude Keys, including, but not limited to Olie Mae McCoy, Laura A. Tovey, Clarence Riddle, Eugene Riddle, Joyce (Joy) Riddle Lee and Tommy Ralph Riddle, Ben Case, Henry and Georgia Knowlton; Onofre R. Jaquez and Alvina Jaquez, his wife, and all of their heirs and successors, known and unknown; Coleman Oil & Gas, Inc.; William Holmberg and Joyce Holmberg, his wife, Shirley M. Holmberg, and unknown Entities A–Z; John Does I–X (as yet unidentified agents, employees or contractors of BP America Production Company, BP, or unknown entities A–Z, who have trespassed on the Kysar Ranch); and all other persons unknown, claiming any right, title, estate, lien, easement, or interest in the real property described in the complaint adverse to Plaintiffs' ownership, or any cloud on Plaintiffs' title thereto, Defendants.

No. 29,756.

Court of Appeals of New Mexico.

Jan. 19, 2012.

[273 P.3d 868]

Victor R. Marshall & Associates, P.C., Victor R. Marshall, Albuquerque, NM, for Appellants.

Holland & Hart, LLP, Bradford C. Berge, Jacqueline E. Davis, Santa Fe, NM, for Appellee.

VIGIL, Judge.

{1} This case presents us with an issue of first impression: whether a plaintiff may appeal from a stipulated directed verdict when the parties have stipulated that the plaintiff cannot make a prima facie case due to in limine rulings made by the district court, the plaintiff reserves the right to appeal the in limine rulings, and the district court approves the stipulation. Answering this question in the affirmative, we then address the in limine orders of the district court, and reverse.


{2} Plaintiffs own the surface estate of the Kysar Ranch, which consists of some 600 acres of land along the Animas River. The northern portions of the ranch were previously owned by Jessie Maude Keys, and the southern portions of the ranch were previously owned by Onofre and Alvina Jaquez. In 1948, Keys and Mr. and Mrs. Jaquez executed separate oil and gas leases on their respective properties to C.H. Nye. In 1949, Mr. and Mrs. Jaquez conveyed their surface estate, together with half of the underlying oil, gas, and mineral rights to Keys. In 1956, Keys deeded the now unified surface estate to Henry and Georgia Knowlton, reserving the entire mineral estate. By this transaction, all the minerals were severed from the surface estate, and access to the minerals was preserved because Keys also reserved a right of ingress and egress to access the oil,

[273 P.3d 869]

gas, and other minerals. In 1983, Mr. and Mrs. Knowlton sold the entire surface estate to Plaintiffs, subject to all prior reservations of oil, gas, and other minerals. The surface estate is now known as the Kysar Ranch.

{3} As a result of a series of assignments, BP America Production Company (BP) is now the lessee under both of the original 1948 oil and gas leases, and operates six wells within the boundaries of the Kysar Ranch. Only two roads access the wells: the “Back Gate Road,” which starts at the southeast corner of the Kysar Ranch and travels north, first through the Jaquez lease, and continuing north through the Keys lease; and the “Bridge Road,” which crosses the Keys lease. The Bridge Road goes across a bridge over the Animas River and because of concerns that it cannot support the heavy machinery and equipment trucks must carry to and from the wells, BP uses the Back Gate Road to access all the wells on the Kysar Ranch.

{4} Since Plaintiffs acquired the surface estate to the Kysar Ranch in 1983, their relationship with BP and Amoco, its immediate predecessor, has been marked by discord. A series of disputes were resolved by a settlement agreement in 2000 (the 2000 Settlement Agreement) between Plaintiffs and Amoco. The 2000 Settlement Agreement resolved claims that Amoco's operations had damaged the Kysar Ranch, constituted an unreasonable use of the surface, or otherwise constituted a trespass. However, the 2000 Settlement Agreement did not resolve one major disagreement: whether Amoco had a right to use the Back Gate Road to access the Sullivan Gas Com E–1 Well (the E–1 Well) located on Bureau of Land Management (BLM) land outside, but adjacent to, the Kysar Ranch.

{5} In accordance with the 1953 amendments to the Keys and Jaquez leases, the BLM land and a portion of the Kysar Ranch were subject to a 1992 communitization agreement under federal law. The parties disagreed about whether under these instruments or the leases, Amoco had a right to use the Back Gate Road on the Kysar Ranch to access the E–1 Well outside of the Kysar Ranch. Thus, Plaintiffs filed suit against Amoco in the United States District Court in 2000, alleging that its use of the Back Gate Road to access the E–1 Well outside the Kysar Ranch constituted an unlawful trespass under New Mexico law. This case resulted in two opinions, which we refer to herein as Kysar I and Kysar II. In Kysar v. Amoco Prod. Co., 2004–NMSC–025, 135 N.M. 767, 93 P.3d 1272 ( Kysar I ), our Supreme Court answered questions certified by the Tenth Circuit. This was followed by Kysar v. Amoco Prod. Co., 379 F.3d 1150 (10th Cir.2004) ( Kysar II ), in which the Tenth Circuit decided the appeal before it after our Supreme Court answered the questions certified to it by the Tenth Circuit. These appeals determined that the 1992 communitization agreement did not grant Amoco a right to use the Back Gate Road located on the Keys lease to access the E–1 Well off the Kysar Ranch and that Amoco could not use that part of the Back Gate Road on the Jaquez lease for this purpose, because the Jaquez lease did not expressly grant such a right. Kysar II, 379 F.3d at 1156. After Kysar I and Kysar II were decided, Plaintiffs and BP, Amoco's successor, entered into a second settlement agreement in 2005 (the 2005 Settlement Agreement), which granted BP an easement to access the E–1 Well through the Kysar Ranch.

{6} However, the 2005 Settlement Agreement did not resolve BP's access to any other existing wells or any other matters. The 2005 Agreement expressly provides, “The parties contested issue may facilitate settlement expressly reserve whatever rights they may have concerning other wells, or any other matters, including any rights of the parties under other agreements or instruments heretofore executed by the parties, except as expressly covered in this Agreement.”

{7} The case before us concerns Plaintiffs' subsequently filed suit in which they contend that BP has no right to use the Back Gate Road crossing the Jaquez leases to reach wells located on the Keys leases. Plaintiffs demanded a jury and they sought damages and injunctive relief in several causes of action.

[273 P.3d 870]

{8} After the jury was chosen, Plaintiffs' counsel advised that he intended to publish to the jury in the opening statement, placards with blown up excerpts of the opinions in Kysar I and Kysar II. BP objected, and the district court ruled that Plaintiffs' counsel was prohibited from using or displaying the placards or mentioning them or their content to the jury during the course of opening statement. Following additional discussion, Plaintiffs' counsel stated he could not give an intelligible opening statement and asked the district court to certify an interlocutory appeal. The district court inquired if this request stemmed from the ruling on the opening statement, and counsel responded, “No, it's the culmination of all the rulings that have been made over the last two years which leave me with essentially no case and no ability to present it.” This referred to various in limine rulings made by the district court which prohibited Plaintiffs from presenting certain evidence at trial.

{9} BP stated that if Plaintiffs were unable to prove their case, the district court should enter a directed verdict. The district court expressed discomfort about entering a directed verdict in favor of BP before any evidence was introduced and, after additional discussion, Plaintiffs' counsel again reiterated that he had no case to present. The parties therefore agreed that in light of the in limine rulings of the district court, a stipulated order granting BP a directed verdict was appropriate. The stipulated order approved by the district court grants BP a directed verdict, while expressly preserving all of Plaintiffs' claims on appeal. In its entirety, the “Stipulated Order Granting Directed Verdict In Favor Of Defendant BP America Production Company” states:

THIS MATTER came before the Court on May 19, 2009, on the parties' joint request for entry of a stipulated order directing a verdict in favor of BP American [sic] Production Company. The Court having heard the arguments of counsel, having reviewed the applicable law, and being otherwise fully advised in the premises, find that the parties' joint request is well-taken and should be GRANTED, as follows:

1. On May 18, 2009, a 12–person jury was selected, sworn into service, and empaneled for trial of this matter.

2. On May 19, 2009, prior to the parties' opening statements, the Court addressed and ruled upon certain evidentiary issues raised by the parties. The Court's decisions on those evidentiary matters are reflected in separate orders in this case.

3. In light of the Court's decisions and evidentiary rulings to date, the parties stipulated that a reasonable jury would not have a legally sufficient evidentiary basis to find for Plaintiffs on any of the claims raised by Plaintiffs' complaint. In so stipulating, each party reserved the right to challenge the Court's aforementioned decisions and rulings on appeal.

4. In light of the parties' stipulation, which...

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