Thomas Well Service, Inc. v. Williams Natural Gas

• Decision Date: 08 November 1994
• Docket Number: No. 93-4090-SAC.,93-4090-SAC.
• Parties: THOMAS WELL SERVICE, INC., Walter J. Trowbridge, Sandra S. Trowbridge, Jerry W. Jantz, Martha J. Jantz, Lonnie Sedgwick, Melvin W. Rollins, and Paula L. Rollins, Plaintiffs, v. WILLIAMS NATURAL GAS COMPANY, Defendant.
• Court: U.S. District Court — District of Kansas

873 F. Supp. 474

THOMAS WELL SERVICE, INC., Walter J. Trowbridge, Sandra S. Trowbridge, Jerry W. Jantz, Martha J. Jantz, Lonnie Sedgwick, Melvin W. Rollins, and Paula L. Rollins, Plaintiffs, v. WILLIAMS NATURAL GAS COMPANY, Defendant.

No. 93-4090-SAC.

United States District Court, D. Kansas.

November 8, 1994.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Mark A. Buck, Michael J. Unrein, Christopher M. Rohrer, Davis, Unrein, Hummer, McCallister & Buck, Topeka, KS, for plaintiffs.

Donald W. Bostwick, Teresa J. James, Adams, Jones, Robinson & Malone, Wichita, KS, Paul A. Karns, Williams Natural Gas Co., Tulsa, OK, Williams Natural Gas Co., for defendant.

MEMORANDUM AND ORDER

CROW, District Judge.

In this declaratory judgment action, the parties essentially seek a determination concerning their respective rights in certain oil and gas properties in Jefferson County, Kansas. On March 9, 1994, Thomas Well Service, Inc. (TWS), commenced this action in Jefferson County District Court seeking, inter alia, a declaratory judgment that (1) certain oil and gas leases executed by the landowners in 1948 and 1949 and now owned by Williams Natural Gas Company (WNG) are no longer valid, and (2) certain oil and gas leases executed by the current landowners in 1992 and 1993 to TWS are valid.

On April 14, 1993, WNG filed a notice of removal to this court. Federal jurisdiction is based upon diversity. WNG filed a counterclaim seeking a declaratory judgment that (1) the oil and gas leases executed in 1948 and 1949 which it now possesses are valid, and (2) that the oil and gas leases executed in 1992 and 1993 held by TWS are on "topleases."¹ On September 8, 1993, this court entered an eight page memorandum and order denying TWS' motion to remand. On May 16, 1994, the magistrate judge granted the motion to intervene and to be joined as plaintiffs filed by Walter J. Trowbridge, Sandra S. Trowbridge, Jerry W. Jantz, Martha J. Jantz, Lonnie Sedgwick, Milton W. Rollins and Paula L. Rollins. See (Dk. 53). These persons are the successors in title to the persons who executed the leases in 1948 and 1949. These are also the same persons who entered the oil and gas leases with TWS in 1992 and 1993. All of the plaintiffs are essentially aligned against WNG.

This case comes before the court upon WNG's motion for summary judgment (Dk. 55),² the plaintiffs'³ motion for summary judgment (Dk. 57), the plaintiffs' motion to supplement memorandum in support of motion for summary judgment (Dk. 68), and WNG's motion to strike portions of plaintiffs' affidavits (Dk. 64).

The court, having considered the briefs of counsel and the applicable law, is now prepared to rule.⁴

Standards for Summary Judgment

A court grants a motion for summary judgment if a genuine issue of material fact does not exist and if the movant is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The substantive law governing the suit dictates which facts are material or not. Id. at 248, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment." Id. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). "There are cases where the evidence is so weak that the case does not raise a genuine issue of fact." Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988).

The movant's burden under Rule 56 of the Federal Rules of Civil Procedure is to lay out the basis of its motion and to "point to those portions of the record that demonstrate an absence of a genuine issue of material fact given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "A movant is not required to provide evidence negating an opponent's claim." Committee for First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992) (citation omitted).

If the moving party meets its burden, then it becomes the nonmoving party's burden to show the existence of a genuine issue of material fact. Bacchus Industries, Inc. v. Arvin Industries, Inc., 939 F.2d 887, 891 (10th Cir.1991); see Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993) ("If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the nonmoving party's case."). When the nonmoving party will have the burden of proof at trial, "`Rule 56(e) ... then requires the nonmoving party to go beyond the pleadings and by her own affidavits or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). "Unsubstantiated allegations carry no probative weight in summary judgment proceedings." Phillips v. Calhoun, 956 F.2d 949, 951 (10th Cir.1992) (citations omitted); see Martin, 3 F.3d at 1414 (non-moving party cannot rest on the mere allegations in the pleadings); see also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479 (1st Cir.1993) ("Optimistic conjecture, unbridled speculation, or hopeful surmise will not suffice."). The court views the evidence of record and draws inferences from it in the light most favorable to the nonmoving party. Burnette v. Dow Chemical Co., 849 F.2d at 1273.

More than a "disfavored procedural shortcut," summary judgment is an important procedure "designed `to secure the just, speedy and inexpensive determination of every action.' Fed.R.Civ.P. 1." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986). At the same time, a summary judgment motion is not the chance for a court to act as the jury and determine witness credibility, weigh the evidence, or decide upon competing inferences. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986), cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987).

Overview of the Dispute

A brief overview of the respective arguments of the parties will provide a better understanding of this case. In 1948 and 1949, W.G. Rule entered into certain oil and gas leases with persons owning land in the McLouth Gas Storage Field. At approximately the same time that W.G. Rule entered those oil and gas leases, Cities Service Gas Company entered into certain gas storage leases with those same persons. The individual plaintiffs are successors in title to the property owners who entered into those agreements with W.G. Rule and Cities Service Gas Company. W.G. Rule subsequently assigned his interests in the oil and gas leases to Cities Service Gas Company. WNG is the successor to Cities Service Gas Company.

In 1992 and 1993, the plaintiffs executed certain oil and gas leases with TWS. According to the plaintiffs, they entered those leases with TWS based upon their belief that the oil and gas leases executed in 1948 and 1949 expired by their own terms in 1958 and 1959. The plaintiffs seek declaratory judgment that the leases executed in 1992 and 1993 are valid and that the oil and gas leases executed in 1948 and 1949 have expired and are therefore no longer binding.

In contrast, WNG contends that the oil and gas leases executed in 1948 and 1949, which were executed at the same time as the gas storage leases, are still valid and enforceable. In short, the oil and gas leases did not expire in 1958 and 1959, but instead, have remained valid under the terms of certain provisions of the gas storage leases. Because WNG has abided by the terms of the gas storage leases, including the continued making of timely payments, the oil and gas leases executed in 1948 and 1949 are still enforceable. Consequently, the leases between TWS and the individual plaintiffs are merely topleases.

Preliminary Matters:

Plaintiffs' Motion to Supplement Memorandum in Support of Motion for Summary Judgment

On July 12, 1994, the plaintiffs filed a motion to supplement their memorandum in support of their motion for summary judgment. The memorandum in support of that motion directs the court's attention to a recent Kansas Court of Appeals case, Eichman v. Leavell Resources Corp., 19 Kan.App.2d 710, 876 P.2d 171 (1994), which they believe to be relevant to the legal issues presented by this case. In that memorandum, the plaintiffs briefly discuss the significance of that case within the context of the facts of this case.

WNG opposes the plaintiffs' motion, arguing that (1) the court's opinion in Eichman is essentially irrelevant to the issues raised in this case, and (2) the court should reject the plaintiffs' motion to the extent that it simply rehashes old arguments previously raised.

Counsel are always encouraged by the court to bring to its attention recent precedent relevant to pending matters. Notwithstanding WNG's objections, the court grants the plaintiffs' motion to supplement their memorandum in support of their motion for summary judgment to the extent that the court will, in ruling on the pending cross-motions for summary judgment, consider all of the relevant arguments and authorities contained in that memorandum.

WNG's Motion to Strike Portion of Plaintiffs' Affidavits

As another preliminary matter, the court will turn to WNG's motion to strike portions of the affidavits filed by the plaintiffs in support of their motion for summary judgment. Specifically, WNG contends that the affidavits, or portions thereof, are not based upon personal...