IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11049
HARRY PTASYNSKI; WL GRAY & CO,
Plaintiffs-Appellees-Cross-Appellants,
versus
SHELL WESTERN E&P INC; ET AL,
Defendants
SHELL WESTERN E&P INC;
SHELL OIL COMPANY; MOBIL OIL CORP,
Defendants-Appellants-Cross-Appellees.
Appeal from the United States District Court
for the Northern District of Texas, Dallas
May 24, 2002
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 2/13/02)
Before GARWOOD, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
In their petition for rehearing plaintiffs urge, among other
things, that their contract claims are not barred by limitations,
and that they have viable contract claims because the district
court, in its June 16, 1999 order, observed that “there is no
market for carbon dioxide in Colorado,” and accordingly, plaintiffs
contend, under the instruments creating their overriding royalty
interests (their lease assignments) they could not be required to
bear any portion of the cost of transporting the carbon dioxide
over the some 500 miles from the tailgate of the McElmo Dome Unit
to West Texas.
As the district court in its June 16, 1999 order noted
“Plaintiffs’ breach of contract claims are based on two alleged
contracts: their federal and state lease assignments and the
brochure.” In that order the court held that plaintiffs as a
matter of law had no right to any contract recovery on the basis of
their federal and state lease assignments, and that there was a
fact issue for trial as to whether they had a contractual claim on
the basis of the brochure. Accordingly, the only contract claim
which was bench tried was that based on the brochure itself. Only
the claims which were bench tried were before us. Plaintiffs in
their cross-appeal brief and in their reply brief in this Court
never urged as error any claim that the district court erred in its
June 16, 1999 ruling that their contract claims based on their
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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lease assignments were invalid. Accordingly, any contract claim
based on the underlying leases and the assignments thereof is not
before us. As to plaintiffs only other contract claims, those
based on the brochure, the brochure did not, as a matter of law,
constitute or create a contract (see the last grammatical paragraph
of part III of our February 13, 2002 opinion herein).
Plaintiffs also point out that our opinion incorrectly states
that before the brochure was sent out Shell “had only to obtain
consent of an additional 4% of the total royalty interest in order
to secure final approval [of the unit] from the [Colorado]
Commission.” Our error in this respect is immaterial. Shell was
required to have approval of more than 80% of the cost free
interests and this would have required it to procure approval of
the owners of approximately one fifth of the overriding royalty
interests (collectively, the overriding royalty interests owned
approximately 25% of the total cost free interests); Shell already
had approval for approximately 76% of the cost free interests.
However, there is no evidence (or claim) that plaintiffs together
owned (or controlled) a sufficient overriding royalty interest to
have prevented Shell from procuring the required 80% of the cost
free interests if plaintiffs had not approved the unit. Shell
eventually procured approval of 92.5% of the cost free interests.
There is no evidence that this percentage would have been less than
80.5% if both plaintiffs had withheld approval.
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The Petition for Rehearing is DENIED and no member of this
panel nor judge in regular active service on the court having
requested that the court be polled on Rehearing En Banc, (FED. R.
APP. P. and 5TH CIR. R. 35) the Petition for Rehearing En Banc is
also DENIED.**
No further petition for rehearing will be entertained. The
mandate shall issue forthwith.
**
Judge Edith H. Jones did not participate in the consideration
of the rehearing en banc.
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