Marken v. Goodall
| Decision Date | 21 May 1973 |
| Docket Number | No. 72-1882.,72-1882. |
| Citation | 478 F.2d 1052 |
| Parties | Daniel E. MARKEN, Plaintiff-Appellant, v. C. M. GOODALL, a widow, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Carl L. Lathrop, Cheyenne, Wyo., for plaintiff-appellant.
H. B. Harden, Jr., Casper, Wyo., for defendants-appellees, C. M. Goodall and Goodall Oil Co.
Donald C. McKinlay, Denver, Colo. (Ted Simola, Cheyenne, Wyo., on the brief), for defendant-appellee, Atlantic Richfield Co.
Before LEWIS and BARRETT, Circuit Judges, and SMITH,* District Judge.
Daniel E. Marken appeals from the decision denying his prayer for specific performance based upon his alleged preferential right to purchase the working interest in an oil and gas lease owned by one R. A. Goodall, doing business as Goodall Oil Company, a sole proprietorship. In the alternative, Marken sought damages in the amount of $50,000 together with interest and costs. The Court held that Marken had waived any preferential right by remaining silent and acquiescing in the sale of the Goodall working interest to Atlantic Richfield on May 3, 1970.
In June of 1952 Marken entered into a drilling contract with Superior Oil Company wherein Marken agreed to drill a well on lands leased by Superior from the State of Wyoming. Superior had acquired the lease by assignment from one Otto R. Bolln. Superior in turn assigned the lease to Marken in consideration for the drilling and testing of a well on the lands by Marken. Marken sold one-fourth of the working interest to R. A. Goodall before the well was tested. This sale-assignment was evidenced in part by a Joint Operating Agreement prepared and executed by Marken and sent to Goodall. Goodall executed the Agreement after making numerous changes and additions which were initialed for Goodall by George W. Osbeck, Goodall's employee. The Agreement, as so changed, was returned to Marken for his approval. Marken neither initialed the changes nor returned a copy of the Agreement to Goodall. Goodall, however, retained an unexecuted copy of the changed Agreement in his files. Goodall died in 1953. His widow, C. M. Goodall, succeeded to his interest.
In 1966, the lands covered by the subject lease were unitized with other lands for water-flood. On June 21, 1967, Atlantic began the water-flood recovery program on the lease. It did not prove successful until April or May of 1970. On August 14, 1968, Mrs. Goodall sent an Invitation to Bid for the 25% working interest to Atlantic Richfield who bid $20,000. It was accepted on October 14, 1968. This sale was not, however, completed until May 3, 1970, when the purchase money was paid.
On September 21, 1970, Marken for the first time asserted his alleged preferential right to purchase the working interest sold to Atlantic. Marken relied on paragraph 11 of the Joint Operating Agreement which reads in pertinent part as follows:
Before the sale by any party hereto of its interest in the Joint Leases, or any of them, the other parties hereto shall be given the refusal thereof at the price offered in good faith by a third party, and shall have the preferred right to purchase at the price stated, which right shall be exercised within five (5) days after receipt (sic) of written notice of the offer made by a third party.
Prior to September 21, 1970, Marken had received actual notice of the proposed sale of the Goodall working interest to Atlantic Richfield. He did not, however, assert his contended preference right. As early as November of 1968, Clarence Peterson, Atlantic's attorney, asked Marken to furnish him with two assignments from Marken to Goodall and a copy of the Joint Operating Agreement. Marken ignored the request. Peterson had already searched the records of the State Land Board and the County Clerk's records in Douglas, Wyoming, as to Goodall's interest. He did not find any recorded documents between Marken to Goodall. George W. Osbeck had already given Atlantic the documents in Goodall's file, including an unexecuted copy of the Joint Operating Agreement between Goodall and Marken. Peterson asked for additional material and a signed copy of the Agreement, but Osbeck said he had given him all of the records in the Goodall files. Attorney Charles A. Redpath took over the title investigation when Peterson left Atlantic. He phoned the Markens and asked for the two assignments and the agreement. This request was ignored. Redpath prepared a Replacement Assignment to replace the two assignments between Marken and Goodall which Redpath believed had either been misplaced or lost. On January 27, 1969, Osbeck told Marken about the sale by Mrs. Goodall to Atlantic for $20,000. Osbeck, too, requested that Marken sign the Replacement Assignment. Marken ignored all requests from Atlantic's attorneys and Osbeck. Marken stated during one phone conversation with Osbeck that: "Well, if they don't pay you, perhaps I can buy it."
Marken contends that: (1) he has a preferred right to buy the working interest of Goodall under the Joint Operating Agreement; (2) he was not given the required notice and opportunity to purchase the working interest as provided by the Agreement; (3) Atlantic Richfield purchased the working interest with prior notice of his preferred right to buy the interest; and (4) he was not guilty of laches.
We cannot overturn the holdings of the trial court unless they are clearly erroneous. Butler Paper Company v. Business Forms, Ltd., 424 F.2d 247 (10th Cir. 1970); C. H. Codding & Sons v. Armour and Company, 404 F.2d 1 (10th Cir. 1968). Appellate courts cannot try a case de novo. The resolution of conflicting evidence, as exists in this case, is particularly within the province of the trial court and findings must be given added weight when we consider the opportunity of the trial judge to hear and observe the witnesses. United States v. 79.95 Acres of Land, More or Less, in Rogers...
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