Tideway Oil Programs, Inc. v. Serio, 53626

• Decision Date: 20 April 1983
• Docket Number: No. 53626,53626
• Citation: 431 So.2d 454
• Parties: TIDEWAY OIL PROGRAMS, INC., Dave Gammill, Tideway Energy Group, Inc., and Tideway Energy Limited Partnership, v. S. Barnett SERIO, Sr., Individually and on Behalf of all other Persons Similarly Situated.
• Court: Mississippi Supreme Court

Page 454

431 So.2d 454

58 A.L.R.4th 819

TIDEWAY OIL PROGRAMS, INC., Dave Gammill, Tideway Energy Group, Inc., and Tideway Energy Limited Partnership, v. S. Barnett SERIO, Sr., Individually and on Behalf of all other Persons Similarly Situated.

No. 53626.

Supreme Court of Mississippi.

April 20, 1983.

Rehearing Denied May 25, 1983.

Heidelberg, Woodliff & Franks, Kenneth L. Franks, Glenn Gates Taylor, Harry E. Neblett, Jr., Jackson, for appellants.

Handy, Fitzpatrick, Gwin, Blough & Lewis, Lucien C. Gwin, Jr., Natchez, for appellee.

En Banc.

PART I

BROOM, Presiding Justice, for the Court:

Oil and gas interests of lessees and their assignees are at issue in this class action appeal from the Chancery Court of Adams County, the Honorable Frank W. Walden, chancellor. S. Barnett Serio, Sr., brought this action in October, 1980, charging that defendants, Tideway Oil Programs, Inc., Tideway Energy Group, Inc., Miller Oil Purchasing Company, Dave Gammill, and Tideway Energy Limited Partnership 1977-2, breached their fiduciary duty owed Serio and the other members of a class he represented. Serio's complaint charged that this fiduciary duty arose out of the relationship between the class members and the defendants as "co-tenants" and "joint venturers" in certain oil and gas leases covering a 480-acre block of land located near Larto Lake, Catahoula Parish, Louisiana. Members of the class were alleged to be Serio, G.G. Cornwell, and all of the persons comprising the Tideway Oil Limited Partnership 1975-1 and the Tideway Oil Limited Partnership 1975-2.

Serio charged that as a result of the class's relationship to the defendants as co-tenants and joint venturers, the defendants were under a duty to convey proportionate interests in leases obtained covering lands adjoining the 480-acre unit in which defendants and complainants held interests as co-tenants. Serio's bill sought to compel the Appealing from the chancellor's decision overruling the general and special demurrers below, appellants/defendants Tideway, et al., argue, inter alia: (1) the Adams County Chancery Court has no subject matter jurisdiction; (2) there is no equity on the face of the complaint: the complaint fails to state a cause of action, and complainant attempts to enforce the rights of other parties; and (3) venue of this suit is not proper in Adams County. These three issues are discussed here in PART I of this opinion, and the issue of punitive damages is discussed in PART II. Other issues not reached in either PART I or PART II are left for decision in the appropriate lower court after the presentation of proof.

                defendants to execute certain assignments, and sought other mandatory injunctive relief, accountings, actual and punitive damages, attorneys' fees, etc.  General and special demurrers were filed by the defendants but overruled by the chancellor, who also denied the defendants' motion for interlocutory appeal.  Two Justices of this Court then granted an interlocutory appeal pursuant to Mississippi Code Annotated Sec. 11-51-7 (Supp.1982).  The bill charges the parties are "joint venturers."   This on its face would require evidentiary proceedings prior to a determination of whether the law of "joint venture" applies rather than disposing of the case by demurrer
                

The following facts are alleged in the pleadings: Tideway Oil Programs, Inc. (TOPS), initiated the formation of two limited partnerships in 1975 (Tideway Oil Limited Partnership 1975-1 and Tideway Oil Limited Partnership 1975-2). TOPS was named the managing partner in both of these limited partnerships. During the same period of time, Joseph J. Ring, III, as an agent and employee of TOPS and its parent corporation, Tideway Energy Group (another defendant), acquired various oil, gas and mineral leases covering approximately 480 acres in the Larto Lake, Catahoula Parish, Louisiana, area. These leases were subsequently assigned in varying percentages of ownership to appellee Serio, the 1975-1 and 1975-2 limited partnerships, and others. Language in the complaint charges:

The leasehold owners as joint venturers and partners proceeded to test the leasehold, and upon discovery of oil in paying quantities, to develop the area by drilling additional wells.

As a result of these efforts, five producing wells were completed on the 480-tract between June 7, 1976, and October 8, 1978.

During 1977, an operating agreement naming TOPS as operator of the unit was circulated among the various interest owners in the property. According to the complaint:

While this agreement was being circulated for execution, Defendants were fraudulently, collusively, and in breach of the fiduciary and confidential relationship which they occupied with their co-owners, partners and joint venturers, acquiring adjoining and adjacent acreage without the knowledge of Complainants and to the exclusion of Complainants. The operating agreement was, therefore, obtained fraudulently by Defendants and is void as a result thereof.

The operating agreement, signed by appellee Serio and attached to the complaint, provides:

The liability of the parties shall be several, not joint or collective. Each party shall be responsible only for its obligations, and shall be liable only for its proportionate share of the costs of developing and operating the Unit Area. Accordingly, the lien granted by each party to Operator in Section 9 is given to secure only the debts of each severally. It is not the intention of the parties to create, nor shall this agreement be construed as creating, a mining or other partnership or association, or to render them liable as partners. (Emphasis added).

Serio contends in his complaint that this agreement "fraudulently and contrary to the customs and usage of the industry sought to limit complainants' interests to the original leases." On the adjoining acreage acquired (leased) by defendant TOPS, seven producing oil wells were drilled. Serio First argument of appellants is that the instant case is in substance an effort to adjudicate title to property in Louisiana, and that Mississippi courts lack subject matter jurisdiction.

alleges it was a breach of TOPS' fiduciary duty to refuse to convey to Serio, et al., their proportionate interests in the leases on the adjoining property obtained by TOPS. To Serio's complaint, defendant TOPS interposed a general and special demurrer raising as grounds the above stated arguments which are now before this Court.

At the outset we note that Serio's case is basically for the breach of a duty. Therefore, it is evident that, in spite of the fact that one of the remedies sought by Serio is that the chancery court compel conveyance (assignments) of land interests in another state, his suit is not a suit adjudicating title. In Pomeroy, Equity Jurisprudence, Sec. 1318 (5th ed. 1941), the text writer makes the following observation:

Sec. 1318. Remedies in Personam beyond the Territorial Jurisdiction.--The power to act in personam, through their remedies, is still held by all courts of equity, ... Of this nature must always be the remedies when the subject-matter either real or personal property, is situated beyond the territorial jurisdiction of the court, in another state or country. The jurisdiction to grant such remedies is well settled. Where the subject-matter is situated within another state or country, but the parties are within the jurisdiction of the court, any suit may be maintained and remedy granted which directly affect and operate upon the person of the defendant, and not upon the subject-matter, although the subject-matter is referred to in the decree, and the defendant is ordered to do or to refrain from certain acts toward it, and it is thus ultimately but indirectly affected by the relief granted.

Id. at 898-99 (Footnotes omitted).

This view was first adopted by this Court in Sutton v. Archer, 93 Miss. 603, 46 So. 705 (1908). In Koehring Co. v. Hyde Construction Co., Inc., 254 Miss. 214, 178 So.2d 838 (1965), this Court, quoting from 20 Am.Jur.2d, Courts Sec. 119 (1965), noted that:

Jurisdiction in rem is right where the decision sought is of a nature to directly affect real property. A court of one state has no jurisdiction to establish, to pass, or to quiet title to real property situated in another state, or to make any other decision directly affecting real property located in another state, or the title to that property. A decision in personam may be rendered by the court of a state with regard to a res which is not situated within the state if the decision merely obliges a person subject to its jurisdiction in personam to dispose of the res, or to refrain from disposing of it, in the manner prescribed by the decision.... (Emphasis supplied).

254 Miss. at 237-38, 178 So.2d at 847.

Who owns "Blackacre" is not in issue here. The question is: Have the defendants breached a duty to convey "Blackacre" rendering them liable for damages or specific performance?

Appellants have confused two qualitatively distinct considerations which are raised when a lawsuit contains issues centering on real property located in another state. It is true that a Mississippi court cannot try title to Louisiana property. Zorick v. Jones, 193 So.2d 420 (Miss.1966). Nonetheless, if the suit is not one to try title but is a suit against the person of the defendant, the question is not one of subject matter jurisdiction by virtue of the location of the property, but rather is a question of the choice of law to be applied by the court having jurisdiction over the litigants' persons.

We addressed such a question in Spragins v. Louise Plantation, Inc., 391 So.2d 97 (Miss.1980), which was a suit for specific performance of a contract for the sale of lands located in the state of Arkansas. We noted that the threshold question to be resolved was the question of whether Arkansas law or Mississippi law was to govern the parties' substantive rights. Nonetheless it...