Seal v. Knorpp

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________________________________

No. 90-3908
_____________________________________________

WARREN L. SEAL,
Plaintiff-Appellee,
Cross-Appellant,

VERSUS

J. RONALD KNORPP, Etc., ET AL.,
Defendants,

FLORIDA EXPLORATION COMPANY
and ENRON CORPORATION,
Defendants-Appellants,
Cross-Appellees.

*********************************************************

WARREN L. SEAL,
Plaintiff-Appellant,

VERSUS

APACHE CORPORATION OF DELAWARE, ET AL.,
Defendants,

FLORIDA EXPLORATION COMPANY
and ENRON CORPORATION,
Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court
for the Eastern District of Louisiana

_________________________________________________________________

(March 31, 1992)

Before HIGGINBOTHAM and BARKSDALE, Circuit Judges, and McBRYDE,
District Judge.1

BARKSDALE, Circuit Judge:

The central issue in this consolidated appeal is whether

Warren Seal was terminated for purposes of his employer's Trust

Agreement, thereby allowing him to recover all of his royalty

interests held in trust. This turns, in part, on his undisputed

termination under the terms of his separate Employment Contract.

Also in issue is whether Seal can recover for seismic data he

supplied that employer. We REVERSE the award on the Trust

Agreement claim, but AFFIRM the denial of the data claim.

I.

In 1976, for purposes of employee retention, reward, and

incentive, the Florida Gas Exploration Company Employees Trust

(Trust Agreement) was established.2 As producing oil and gas

properties were developed, overriding royalty interests in oil and

gas leases (ORIs) were assigned to the Trust by Florida Gas

(Florida Exploration)3 for the benefit of designated employees.

The Trustee paid the designated employees, on a monthly basis,

their share of the income from those ORIs.4 In addition, upon the

1
District Judge of the Northern District of Texas,
sitting by designation.
2
The Trust was for the purpose of "keep[ing] personnel
of experience and ability in the employ of [Florida Exploration]
and to compensate them for their contributions to [it] ... and
thereby induce them to make such contributions in the future."
3
Continental Group acquired Florida Gas in 1979,
changing the name to Florida Exploration.
4
Pursuant to Trust Agreement ¶ 2(a), the payment was
made "so long as [the participant] remain[ed] an employee of"

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occurrence of specified events, the Trustee assigned to the

employee all or part of the ORIs (depending upon the event), as

well as accrued but unpaid income from them. Full (100%)

assignment took place after the ORIs had been held in trust for

four years, or upon the employment ending under certain conditions.

But, if the employment ended for other specified reasons, the

employee received less than 100% of his ORIs.

Seal became a Trust participant in 1978, when he joined

Florida Exploration as vice-president of its New Orleans division.

Thereafter, ORIs were assigned to the Trust for his benefit.

In 1979, Florida Exploration offered employment contracts

(Employment Contract) to many of its executives to alleviate

concerns about a possible acquisition. Seal signed one that May.

It provided that if acquired, Florida Exploration would "continue

to employ [Seal] on a full time basis for a period of not less than

three years from the date of such acquisition ...." If Florida

Exploration terminated Seal within that three-year period, it would

pay him his salary for the balance of the period and accrue his

retirement benefits under the pension plan, with them becoming

fully vested at the conclusion of that period.

Employment Contract ¶ 5 covered "non-actual termination":

In addition to an actual termination of employment,
the following shall be deemed a termination of
[Seal's] employment by the Company for purposes of
this agreement:

a) A substantial change in [Seal's] present
level of responsibility and authority;

Florida Exploration.

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 b) A reassignment to another location without
his consent; or

c) A substantial change from present policies
or procedures affecting the areas of [Seal's]
responsibilities.

Acceptance of the changes listed in paragraphs
(a) and (c) for a period of time shall not be
deemed a waiver of [Seal's] right to claim such
changes as a termination.

(Emphasis added.)5

No recovery could be had under the Employment Contract if the

termination was for cause, which fell within three areas:

"dishonesty; ... commission of a crime; or ... behavior which would

generally be considered as sufficiently immoral or insubordinate to

justify termination of employment." These are identical to the

first three of four bases for termination for cause under the 1976

Trust Agreement.6

The Employment Contract also provided for accelerated

assignment to Seal of the ORIs held in trust for him under the

Trust Agreement. If he remained with Florida Exploration for a

year from the date of acquisition, he would receive "all of the

[ORIs] held by the Trustee for [his] benefit ... at the time of

[the] acquisition ...."

The Continental Group acquired Florida Exploration on August

28, 1979, triggering the Employment Contract's three-year protected

5
As discussed infra, the term "non-actual termination"
is used to differentiate this form of contractual termination
from "constructive termination".
6
The other basis for such termination under the Trust
Agreement was "inability to perform the job because of alcoholism
or drugs."

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period. Seal's authority was substantially reduced in mid-1982.

On the day before the end of the protected period, Seal stated in

a letter to Florida Exploration that, "[i]n view of the recent

changes in company policy and procedure", he had reviewed his

Employment Contract; that, pursuant to it, the reduction of his

responsibility constituted a termination of his employment; that

"[t]he only significance of this ... [was] to entitle [him] to

receive [under the Trust Agreement] a `100 per cent interest in

[(full assignment of)] the ... ORIs previously assigned into

trust', regardless of time factors"; and that if Florida

Exploration agreed with his "interpretation", the assignment could

be executed.7

7
The letter, to Florida Exploration's President, stated:

In view of the recent changes in company
policy and procedure, I reviewed my employment
agreement dated May 1, 1979 to determine whether
such changes may have in any way affected my
rights provided for in our contract.

As I read Paragraph 5, if there is either a
substantial change in my level of authority, or if
there is a substantial change in company policy or
procedure affecting my area of responsibility, it
shall be "deemed a termination of my employment"
for the purposes of the agreement.

The only significance of this provision, it
seems to me, is to entitle me to receive a "100
per cent interest in the legal title to the ORI's
previously assigned into trust", regardless of
time factors. (Operating Policy No. 1-512, August
29, 1978 [described below]).

If you agree with my interpretation, please
advise and we will work out the mechanics of
assigning my overrides to which I am entitled
under the above agreements.

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 As noted, the Employment Contract provided that if Seal was

terminated during the post-acquisition three-year protected period,

he would receive his salary and retirement benefits for the balance

of that period, with full vesting of pension plan benefits at the

end of it. Obviously, as Seal implied in his letter, the required

payments for termination during the protected period had no

bearing; he did not claim termination until one day before it

ended. Hence, the statement in his letter that "[t]he only

significance of [the Employment Contract's non-actual termination

provision] ... is to entitle me to receive" full (100%) assignment

of the ORIs held in trust for him, "regardless of time factors".

The time factor was critical, because any ORIs placed in trust

for him after acquisition had not fully vested (four years

required). On the other hand, as noted, the Employment Contract

provided for full assignment to Seal of his ORIs held in trust as

of the August 1979 acquisition, if he remained with Florida

Exploration for a year after it. Seal had done so, and then some;

his termination claim was made one day short of three years after

the acquisition. Therefore, his only ORIs for which he might not

receive full assignment were those placed in trust for his benefit

after the date of acquisition (August 28, 1979). To add further to

the mix, and as discussed infra, the Trust Agreement provided that,

I intend to continue exerting my best efforts
to make Florida Exploration successful and am
looking forward to working with you.

The Operating Policy referenced in the letter described the Trust
Agreement.

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if Seal was terminated (except for defined cause), he was to

receive full assignment of his ORIs, regardless of the normal four-

year vesting period. Therefore, in order to receive the maximum

assignment of his post-acquisition ORIs, Seal had to fall within

the termination, except for cause, provision in the Trust

Agreement.

Florida Exploration promptly denied that termination had

occurred. And, Seal remained with Florida Exploration until June

1983, when he submitted his written resignation.8 Shortly

thereafter, he received the ORIs that Florida Exploration felt he

was due. In 1985, Seal filed two diversity actions in Louisiana on

the same day: the first asserted that he was entitled to benefits

under the Employment Contract and to additional ORIs under the

Trust Agreement; the second sought recovery for seismic data that

he had allegedly provided Florida Exploration during that

employment.

The two actions were consolidated for a bench trial. The

district court held that Seal: (1) was "constructively" terminated9

8
Seal has moved to strike the references in Florida
Exploration's brief to that resignation, contending that they
"are a plain violation of a pre-trial stipulation that the
parties `would not seek to discover or produce facts concerning
the circumstances leading up to or [his] resignation ....'"
(Emphasis in original.) The references do not appear to violate
the stipulation; but, in any event, and as discussed infra, our
holding is not based on his resignation. The motion is DENIED.
9
As discussed infra, the term "constructive termination"
does not appear in either the Employment Contract or the Trust
Agreement. As used by the district court, "constructive
termination" refers to Seal's "non-actual termination" due to
substantial changes, as provided by the Employment Contract.

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under the terms of the Employment Contract and entitled to pension

benefits;10 (2) was therefore "constructively terminated without

cause" under the Trust Agreement and to receive an accounting and

assignment of the ORI's (and resulting income) to which he was

entitled under that Agreement; but (3) had no claim for any seismic

data in Florida Exploration's possession. Damages were referred to

a special master. Because the ORIs had been sold by Florida

Exploration, Seal was awarded their money equivalent (approximately

$450,000). In addition, the judgment awarded Seal $340,000

(approximately) in prejudgment interest and $200,000 in attorney's

fees; the fees were not allocated between the Employment Contract

and Trust Agreement claims.

II.

Florida Exploration contends that the district court erred in

holding that Seal was terminated under the Trust Agreement. Seal

counters that it erred in the amount of the award for expert

witness fees in his first case and in denying him recovery on the

seismic data claim in his second. Our standard of review for bench

trials is well established: findings of fact are reviewed for clear

error; legal issues, de novo. E.g., Fed. R. Civ. P. 52(a);

10
Employment Contract ¶ 5 provides in part:

Upon the conclusion of the three-year period,
Employee's benefits under the pension plan shall
become fully vested and Employee shall have the
right, at his election, either (1) to receive the
actuarial equivalent value of his benefits
immediately or (2) to be treated as a regularly
vested member of the pension plan.

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Missouri Pac. R.R. Co. v. Railroad Comm'n of Texas, 948 F.2d 179,

181 (5th Cir. 1991), petition for cert. filed, (March 5, 1992) (No.

91-1423). Equally well established is the standard for determining

whether a finding is clearly erroneous, "that is, if we are

convinced[, based on our review of the record,] that the trial

court made a mistake." Texas Pig Stands, Inc. v. Hard Rock Cafe

Int'l, Inc., 951 F.2d 684, 693 (5th Cir. 1992).11

A.

Florida Exploration does not challenge the district court's

holding that Seal was terminated (non-actual termination) under the

terms of the Employment Contract. And, both parties agree that he

was not terminated for cause as defined by the Trust Agreement.

The issue is whether he was terminated (non-actual termination)

under that Agreement.

As noted, the Trust Agreement provides for full assignment of

ORIs to an employee upon, inter alia, termination "without cause".12

There is less than full assignment to the employee upon, inter

alia, voluntary termination or termination for cause.13 Unlike the

11
"A finding of fact is clearly erroneous `only if our
review of the entire record impels the definite and firm
conviction that a mistake has been committed.'" Sullivan v.
Rowan Co., 952 F.2d 141, 147 (5th Cir. 1992) (quoting Carr v.
Alta Verde Indus., 931 F.2d 1055, 1058 (5th Cir. 1991)).
12
Full assignment also occurs upon the fourth anniversary
date of their assignment into the Trust, if the employee remained
continuously employed; or upon retirement at age 65, total
disability, or death.
13
"`[F]or cause' shall include only...: (a) dishonesty;
(b) commission of a crime; (c) behavior which generally would be
accepted as sufficiently immoral or insubordinate as to justify
termination of employment; [and] (d) inability to perform the job

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Employment Contract, the Trust Agreement does not include a

provision for non-actual termination -- events deemed equivalent to

termination.

The district court found -- not challenged here -- that as a

result of post-acquisition changes in mid-1982, "Mr. Seal's

authority was substantially reduced by August of 1982."

Accordingly, pursuant to the provision in the Employment Contract

that substantial changes were "deemed a termination of [Seal's]

employment ... for purposes of this agreement," it held that

"[t]hese changes resulted in [his] constructive termination by

Florida [Exploration] in mid-1982." Therefore, the court awarded

recovery on the Employment Contract claim. It then turned to the

Trust Agreement and noted that although it provided four bases for

termination for cause, it did

not contain a corresponding provision enumerating
those terminations which would be considered
without cause. The facts have established that Mr.

because of alcoholism or drugs." As noted, except for the fourth
basis, these are the same bases for termination for cause as in
the subsequent Employment Contract.

Voluntary termination included retirement at less than age
65. In the event of voluntary termination or termination for
cause,

the Trustee (i) shall not assign the Beneficiary
any [ORI] with respect to any particular
geological prospect, if his employment terminated
within two (2) years of the Approval Date of that
particular prospect, ... or (ii) shall assign the
Beneficiary an [ORI] equal to fifty percent (50%)
of the [ORI] with respect to any particular
geological prospect ..., if his employment
terminated within more than two (2) years but less
than four (4) years of the Approval Date of that
particular prospect. ...

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 Seal's constructive termination was for none of the
exclusive causes listed in the ... Trust Agreement.
By logical extension, Mr. Seal was constructively
terminated without cause. This conclusion is
reached from the [Trust Agreement] alone; the fact
that Mr. Seal was constructively terminated
according to the Employment Agreement only serves
to support this finding.

As noted, the term "constructive termination", as used by the

district court, does not appear in either the Employment Contract

or the Trust Agreement. The basis for Seal's termination for

purposes of the Employment Contract -- not disputed here -- was

change in "his level of responsibilities and authority". This

basis does not rise to the conditions generally thought to

constitute constructive termination or discharge. For example, a

"constructive discharge occurs when an employer makes conditions

so intolerable that an employee reasonably feels compelled to

resign." Hammond v. Katy Indep. School Dist., 821 S.W.2d 174, 177

(Tex. App.--Houston [14th Dist.] 1991, no writ).14 As noted, Seal

did not resign until 1983. Moreover, he stated in his earlier

August 1982 termination claim letter that "he intend[ed] to

continue exerting [his] best efforts to make Florida Exploration

successful and [that he was] looking forward to working with

[Florida Exploration's President]." Furthermore, as the district

court found, shortly before Seal resigned in 1983, he brought

seismic data to Florida Exploration for its use. In short, these

14
As discussed infra, the Trust Agreement is governed by
Texas law. For a discussion of the constructive discharge
doctrine, see Hammond v. Katy Independent School District, 821
S.W.2d 174, 177 (Tex. App.--Houston [14th Dist.] 1991, no writ);
Stephens v. C.I.T. Group/Equipment Financing, Inc., No. 90-5646,
slip op. at 3406-08 (5th Cir. March 23, 1992).

- 11 -
are hardly such intolerable working conditions that Seal felt

compelled to resign; nor, did he claim them. As stated in his

August 1982 letter, he based his termination claim solely on the

Employment Contract provision concerning substantial changes. And,

this was the basis for the district court's holding that he was

terminated for purposes of the Employment Contract. Therefore, in

order to determine whether Seal can recover under the Trust

Agreement, we must focus on it. In doing so, and as noted, in

order to avoid confusion with the above-discussed and non-

applicable form of termination described as constructive

termination, the term "non-actual termination" will be used for the

form, or type, of termination claimed by Seal.

The district court was Erie-bound to apply the conflict of law

rules of Louisiana. Fallon v. Superior Chaircraft Corp., 884 F.2d

229, 231 (5th Cir. 1989) (citing Klaxon Co. v. Stentor Elec. Mfg.

Co., 313 U.S. 487 (1941)). Those principles require that a

contract provision on governing state law be given effect, unless

strong public policy considerations justify otherwise. NCH Corp.

v. Broyles, 749 F.2d 247, 250 (5th Cir. 1985) (citing White v.

Crook, 426 So.2d 334 (La. App. 2d Cir. 1983); Delhomme Indus., Inc.

v. Houston Beechcraft, Inc., 669 F.2d 1049, 1058 (5th Cir. 1982);

ADR v. Graves, 374 So.2d 699, 700-01 (La. App. 1st Cir. 1979)).

The Trust Agreement provides that it is governed by Texas law.

As the district court held, the Employment Contract and Trust

Agreement are clear and unambiguous. "In the absence of an

ambiguity, the court need not look to extrinsic evidence. The

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court will limit its search for the intent of parties to the intent

expressed within the four corners of a document." Walker v.

Horine, 695 S.W.2d 572, 577 (Tex. App.--Corpus Christi 1985, no

writ) (citations omitted). Therefore, we may not construe the

terms of the Employment Contract and Trust Agreement together to

interpret the latter. Hydro-Line Mfg. Co. v. Pulido, 674 S.W.2d

382, 387 (Tex. App.--Corpus Christi 1984, error ref'd n.r.e.).

And, we must construe instruments "at the time [they were] made and

not in light of subsequent events." Hancock v. Texaco, Inc., 520

S.W.2d 466, 468 (Tex. Civ. App.--Corpus Christi 1975, error ref'd

n.r.e.).

The Trust Agreement took effect in 1976. It was not until

three years later, in response to possible acquisition, that

Florida Exploration offered the Employment Contract to Seal.

Needless to say, the 1976 Trust Agreement cannot be read to

incorporate the subsequent non-actual termination provision in the

1979 Employment Contract. Seal's rights under the Employment

Contract are not at issue; our focus is on the Trust Agreement.

Under its terms, he can recover all of his ORIs only if he was

terminated without cause. (Again, Florida Exploration concedes

that he was not terminated for cause.)

In answering this question, we cannot, as Seal contends,

assume that, for purposes of the Trust Agreement, he was

terminated. Seal maintains that because the district court found

that he was terminated for purposes of the Employment Contract,

this conferred on him the "status ... vis-a-vis Florida

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[Exploration,] .... of [a] terminated employee." (This is similar

to the basis for his claim to his ORIs in his August 1982

termination claim letter.) But, as stated in the Employment

Contract, its provision for non-actual termination was "for

purposes of [that] agreement". Neither can we, as the district

court seems to suggest, find by negative implication that Seal was

terminated simply because he was not discharged for cause. As

stated, we must look to the Trust Agreement for the answer.

When Seal tendered his termination claim in August 1982 and

requested full assignment of his ORIs, he was still employed by

Florida Exploration and remained with it until he resigned almost

a year later. The Employment Contract's three-year protected

period ended the day after his termination claim letter.

Therefore, Seal's basis for non-actual termination is grounded in

his employment status as of, and as expressed in, that termination

claim. At that time, was he also terminated for purposes of the

Trust Agreement? He was not actually terminated. He was still

with Florida Exploration.

Accordingly, the only form of termination that Seal can claim

(the only one he does claim) in order to recover all his ORIs under

the Trust Agreement is non-actual termination. There is no

provision in the Trust Agreement, however, that equates types of

employment conditions or problems or changes -- even substantial

ones -- with termination (non-actual termination). The Employment

Agreement did, but it is obvious why such a provision was needed

there. Post-acquisition, Florida Exploration would be embarking

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upon different times and conditions, with new personnel possibly

adding to the increased chances for substantially changed

conditions. It wanted key personnel to stay on. To achieve that,

it offered post-acquisition protection for three years. And, one

way of doing that was to protect against substantial changes; they

were defined as equivalent to termination during those three years.

The Trust Agreement, on the other hand, was enacted in 1976

for the purposes of employee retention, reward, and incentive. A

provision to guard against the specter or possibility of a type or

form of non-actual termination was not included. When that specter

loomed in 1979, its possible effect on ORIs -- the reward under the

Trust Agreement -- was ameliorated, not by amending the Trust

Agreement, but by providing in the Employment Contact for

accelerated assignment to Seal of his ORIs held in trust as of the

date of the acquisition. Obviously, the Trust Agreement could just

as easily have been amended to protect against post-acquisition

non-actual termination. It wasn't. It is silent. It controls.

For its purposes, Seal was not terminated. Therefore, he cannot

recover all his ORIs to the extent to which he would have been

entitled under the Trust Agreement if he had been terminated

(without cause).

This result is reinforced by the Trust Agreement obviously

intending a complete cessation of the employment -- as defined, by

termination, death, disability, or retirement -- before ORIs, in

their full amount or otherwise, would be assigned to the employee

upon that employment ending. Such cessation was a prerequisite for

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closing out and fixing what ORIs were due the employee, including

ending the monthly payment of income from those ORIs. The Trust

Agreement provides for such payment only "so long as [Seal]

remain[ed] an employee of" Florida Exploration. This language is

a firm indication of, or intent for, there to be an actual ending

or cessation -- actual termination -- of the employment

relationship.15

In sum, the district court erred in holding that Seal had been

terminated for purposes of the Trust Agreement. Because he was

not, he is not entitled to full assignment of ORIs under the

termination without cause provision of the Trust Agreement. That

part of the judgment awarding ORIs and attorney's fees, if any, on

the Trust Agreement claim is vacated.

B.

15
Seal relies upon Barnett v. Petro-Tex Chem. Corp., 893
F.2d 800 (5th Cir. 1990), cert. denied, ___ U.S. ___, 110 S. Ct.
3274 (1990). There, we noted that in certain instances
termination could occur without an end of the employment:

In a diversity case applying Texas law, this
court has defined `termination of employment' when
used in a group insurance policy as `the complete
severance of the relationship of employer and
employee ....' Bliss v. Equitable Life Assurance
Society of the United States, 620 F.2d 65, 69 (5th
Cir. 1980) .... It is not clear, however, that
this definition applies in the context of an
employment agreement.

Id. at 809 (citations omitted). We concluded that "each case is
controlled by the language of a policy or agreement and ... it is
not universally accepted that a period of unemployment is a
prerequisite for entitlement to termination pay." Id. at 809.
Consistent with Barnett, this issue is "controlled by the
language of ... [the Trust] agreement."

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 Florida Exploration does not challenge the award on the

Employment Contract claim. Accordingly, Seal is still entitled to

that award, including attorney's fees, if any, and costs as may be

reassessed on remand. Seal contends that he is entitled to

substantial expert witness fees pursuant to La. R.S. 13:3666. The

district court awarded witness fees, but in the lesser amount of

$30 a day, pursuant to 28 U.S.C. §§ 1920 and 1821.16 Seal maintains

that federal diversity courts must apply La. R.S. 13:3666,

asserting that it is a provision of Louisiana's substantive law.

He relies upon Henning v. Lake Charles Harbor & Terminal Dist., 387

F.2d 264, 267 (5th Cir. 1968), which held that, in Louisiana

eminent domain proceedings, the statute is a matter of state

substantive policy. Henning has been confined, however, to such

proceedings. Chevalier v. Reliance Ins. Co., 953 F.2d 877, 886

(5th Cir. 1992) (personal injury action; "absent an express

indication from the Louisiana legislature, or its courts, of

Louisiana's special interest in providing litigants with recovery

of expert witness fees in personal injury actions, federal law

16
Section 1920(3) permits taxing witness fees against a
losing party. Section 1821, as it existed on the date of
judgment, stated that:

(a)(1) Except as otherwise provided by law, a
witness in attendance at any court of the United
States ... shall be paid the fees and allowances
provided by this section. ...

(b) A witness shall be paid an attendance fee of
$30 per day for each day's attendance. A witness
shall also be paid the attendance fee necessarily
occupied in going to and returning from the place
of attendance at the beginning and end of such
attendance or at any time during such attendance.

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controls the award of such fees as costs"); Cates v. Sears, Roebuck

& Co., 928 F.2d 679, 689 (5th Cir. 1991). The district court did

not err in limiting the amount of expert witness fees.

C.

The seismic data in issue was allegedly discovered by Seal in

oil company trash bins, before he began working for Florida

Exploration.17 It is undisputed that he voluntarily provided

seismic data -- but in a disputed amount -- to Florida Exploration.

Seal testified that he told Florida Exploration's chief executive

officer (Sullivan) that he had seismic data in his possession and

asked if Sullivan would like him (Seal) to provide it for Florida

Exploration's use; and that

one of the primary reasons why I was willing to
bring the data in [was] that I wanted the division
to succeed, No. 1; and I was getting paid by them,
and ... getting a royalty on what I did. So, the
more [the division] found, the more money I made
personally, as well as the more money the company
made.

It is also undisputed that the data claim rests upon Seal's

expectation; there was no written agreement about the data,

including its return. Upon Seal's departure from Florida

Exploration, he requested its return. He contends that, although

Florida Exploration returned the originals, it kept copies, which

later were used to discover oil and gas reserves, and were included

with the sale of Florida Exploration. He claims conversion and

17
Seal claims to have accumulated 3,000 miles of the data
from trash bins. He presented evidence that seismic data is
worth $1,000 to $1,500 a mile. In sum, Seal maintains that he
pulled data worth $3 to $4 million from the trash.

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asserts both that Florida Exploration was unjustly enriched, and

that he is entitled to damages in quantum meruit.

The district court found, inter alia, that "[t]he credible

evidence ... demonstrate[d] that Mr. Seal did not find the seismic

data in the trash bins"; that Seal provided only one box of data to

Florida Exploration, just before his resignation in 1983; and that

the box was returned. Two witnesses testified that Seal did not

make any data available to Florida Exploration, other than the one

box. Florida Exploration returned more data than had possibly been

in that box, however. It maintains that it returned the additional

data in an effort to reach an amicable parting with Seal. The

conflicting evidence was whether the additional data had been

provided by Seal or by others.18 Based upon our review of the

record, the district court's findings are not clearly erroneous.

Seal's conversion claim for Florida Exploration's alleged use

of copies it kept of the returned data also fails. As noted, the

district court found that just before Seal resigned in 1983, he

brought in a box of data. As for that box, it found that Seal

"requested that [Mr. Miller, a Florida Exploration Geophysicist]

make copies of [the data] to add to Florida [Exploration's]

inventory of seismic data"; that "[f]ollowing Mr. Seal's departure

from Florida [Exploration], he requested the return of the data";

that "[a]s per Mr. Seal's instructions, Mr. Miller had the data

18
As the district court noted, oil and gas companies
acquire seismic data "by purchasing it, shooting it, or copying
data submitted by third-parties as an inducement to a venture."
The latter is referred to as "bootleg data".

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copied and inventoried, and returned the originals to Mr. Seal";

and that when Seal complained, Miller returned additional data.

Likewise, in its conclusions of law, the district court stated that

"the evidence shows that Florida [Exploration] has returned the

originals of all the seismic data Mr. Seal had provided."

Obviously, based on these findings, Seal does not have a claim

for conversion or otherwise. Simply put, he consented to the

transfer of the data to Florida Exploration. See LaRue v. Crown

Zellerbach Corp., 512 So.2d 862, 864 (La. App. 1st Cir. 1987), writ

denied, 514 So.2d 1176 (La. 1987). We find no error in the denial

of the data claim.

III.

For the foregoing reasons, that part of the judgment awarding

Seal recovery on the Trust Agreement claim (including attorney's

fees, if any, awarded for that claim, as opposed to those, if any,

awarded on the Employment Contract claim) is VACATED; the remainder

of the judgment is AFFIRMED; and this case is REMANDED for such

further proceedings as may be necessary, including reassessment of

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attorney's fees and costs, for entry of a judgment consistent with

this opinion.

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