Calpetco 1981 v. Marshall Exploration, Inc.

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_________________________________________

No. 92-4274
_________________________________________

CALPETCO 1981, a Limited Partnership, ET AL.,

Plaintiffs-Appellants,

VERSUS

MARSHALL EXPLORATION, INC., ET AL.,

Defendants-Appellees.

_________________________________________________________________

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

_________________________________________________________________
April 26, 1993

Before WILLIAMS, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

The instant dispute between the non-operator and operator in

a series of oil and gas drilling ventures turns for the most part

on the burdens of proof and standard for summary judgment. Also in

issue are bench trial findings of fact. We AFFIRM.

I.

James Michael began oil and gas investments for himself and

his law partners in 1967. He developed a structure for the

investments, whereby he would form a business entity to serve as

the general partner in a series of limited partnerships, with the

investors as the limited partners. Those partnerships, some
bearing the name "Calpetco" (the prior Calpetco entities), invested

with numerous oil and gas operators.

In 1979, Michael met Quinton Carlile, President and CEO of

Marshall Exploration, Inc.; and, after some discussion, the prior

Calpetco entities began investing with Marshall. These investments

were quite successful, and continued until 1981. That year,

Michael incorporated Calpetco Enterprises, which was wholly owned

by him. Calpetco Enterprises and Michael became the general

partners in a series of limited partnerships (the Calpetco

partnerships) formed to invest in the drilling, development, and

operation of oil and gas wells. It was Michael's intention that a

major portion of the partnership funds would be invested with

Marshall, and he again engaged in discussions with Carlile

regarding Marshall's drilling program and billing practices.

In June 1981, Marshall and Calpetco 1981 (one of five Calpetco

partnerships in this litigation) entered into an operating

agreement, which was to be read in conjunction with investment-

specific letter agreements to govern the drilling, completion, and

production of each well or group of wells. Exhibit "C" to the

Operating Agreement is standard accounting procedures,1 which

provide that Calpetco may pay charges from Marshall without

prejudice to its right to later contest their validity. However,

all bills and statements issued in the course of a calendar year

are "conclusively ... presumed to be true and correct" 24 months

1
The procedures are virtually identical to those promulgated by
the Council of Petroleum Accountants Societies, and are standard in
the oil and gas industry.

2
after the end of the calendar year in which they were rendered

unless, within those 24 months, the non-operator (Calpetco) "takes

written exception thereto and makes claim on Operator [Marshall]

for adjustment".

The accounting procedures also allowed Calpetco to audit

Marshall's accounts and records within the 24-month adjustment

period. Audits were to be conducted at Calpetco's expense, and did

not extend the time for filing written exceptions and demands for

adjustment. In case of conflict between the terms of any of these

documents, the Operating Agreement controlled the accounting

procedures, and both were controlled by the applicable letter

agreement.

The Calpetco partnerships entered into 73 letter agreements

with Marshall, representing investment in 55 wells. Some of these

wells enjoyed less success than Michael's earlier investments with

Marshall; and in September 1982, Michael began to express his

concerns to Carlile. Michael (also a party to this litigation, see

note 2 infra) contends that, by early 1985, he began to seriously

question representations Marshall had made to him between 1981 and

1984, which he contends induced his participation in the various

ventures. That April, he began to review certain charges and

request documentation from Marshall. Extensive communication

continued for almost two years, with Calpetco asserting overcharges

by Marshall, and Marshall asserting that some of the Calpetco

partnerships had not paid amounts due. Marshall did conduct at

3
least a partial review of the Calpetco accounts and some

adjustments were made.

After unsuccessful attempts at settlement, Marshall filed this

action in April 1987 against five Calpetco partnerships,2 seeking,

inter alia, a declaration that charges questioned by Calpetco were

conclusively presumed correct. Calpetco responded with 16

counterclaims3 against Marshall and five additional third party

defendants,4 based primarily on alleged misrepresentations and

overcharges.

Following more than three years of extensive discovery,

Marshall moved for partial summary judgment in January 1991, on the

grounds that many of Calpetco's claims were barred by either the

contractual 24-month adjustment period or the Texas four year

statute of limitations for breach of contract claims. In response,

2
In June 1989, all of the Calpetco partnerships, represented by
retained counsel, transferred their interest in this litigation to
Michael, who thereafter proceeded pro se. We continue to refer to
the appellants as "Calpetco".
3
Included were claims for breach of contract, rescission,
intentional and negligent misrepresentation, fraud, negligence,
gross negligence, and breach of fiduciary duty. Statutory claims
included the Securities Act of 1933, Securities Exchange Act of
1934, RICO, Texas Deceptive Trade Practices Act (DTPA), California
Unfair Practices Act, Texas Blue Sky Law ("The Securities Act"),
California Corporate Securities Law, and Louisiana Securities Law.
4
Third party defendants included Martex Drilling Co., which
performs Marshall's drilling, completion, and production
operations; Carlile & Howell, Inc., which handles Marshall's
financial and accounting services; H & C Well Service, Inc., which
conducts Marshall's site preparation; Quinton B. Carlile, President
and CEO of Carlile and Howell, Inc., Marshall, and Martex, and Vice
President of H & C ; and Carlile's partner, T.D. Howell, President
of H & C and Vice President of the other three entities. All of
the counter-defendants are referred to as "Marshall".

4
Calpetco contended that (1) the contractual and statutory

limitation periods should be tolled because Marshall had

fraudulently concealed its overcharges, preventing Calpetco from

discovering its claims in a timely manner; (2) there were genuine

issues of material fact on whether Marshall waived, or was estopped

from asserting, the 24-month limitation; and (3) in any event, the

accounting procedures did not apply to costs incurred before a well

reached contract depth. A conclusory affidavit by Michael was

filed with the response.5 After a hearing at the end of February,6

the district court granted the motion in mid-March 1991, concluding

that the accounting procedures were "clear and unambiguous" and

governed "the procedures for charges and credits for the entire

project", and that Calpetco failed to produce sufficient evidence

to show a genuine issue of material fact on its claims of

fraudulent concealment, waiver and estoppel.

In April 1991, Calpetco moved for reconsideration or

clarification, or in the alternative, certification for

interlocutory appeal. In support, it submitted a second affidavit

by Michael, with 37 attachments, chronicling the 1982 through 1987

5
Calpetco also submitted the affidavit of Robert P. Malone, an
auditor of oil and gas operations. Malone, an active member of the
Council of Petroleum Accountants Societies, helped write a later
version of the accounting procedures. He stated that the 24-month
limitation period was never intended as "an outright bar against
protests and objections after the expiration of the 24-month
period".
6
At the hearing, the court also heard, and later denied,
Marshall's second motion for partial summary judgment, which
asserted that it did not owe Calpetco a fiduciary duty and that
Calpetco was not a DTPA consumer.

5
correspondence between Marshall and Calpetco. Shortly thereafter,

Marshall filed a fourth motion for partial summary judgment,7

seeking rulings (1) that Calpetco did not timely object to any of

the challenged charges (alleged overcharges), and (2) that

therefore, all are "conclusively presumed true and correct", and at

trial, Calpetco could not challenge those charges for any purpose.

Because the court considered both motions "really ... one in the

same", they were heard together. Marshall's was granted;

Calpetco's, denied.

All remaining claims (including negligence, gross negligence,

and over 30 alleged misrepresentations8) were heard in a four-day

bench trial in December 1991. In accordance with the partial

summary judgment on the fourth motion, the court excluded all

evidence of overcharges. At the close of Calpetco's (the

plaintiff's) case,9 and on motion by Marshall, the court, pursuant

to newly-amended Fed. R. Civ. P. 52(c), made a series of findings

and ruled against Calpetco on several of its claims.10 Following

7
The third motion, filed in February 1991, was not contested.
The district court ruled that Texas law would govern all claims,
except those brought under federal law, and granted judgment
against Calpetco's claims under Louisiana and California law.
8
These alleged misrepresentations formed the basis of
Calpetco's remaining claims of intentional misrepresentation,
negligent misrepresentation, breach of fiduciary duty, and fraud,
as well as violations of the 1933 and 1934 Federal Securities Acts,
RICO, and the Texas Blue Sky Law and DTPA.
9
The court had realigned the parties.
10
It ruled that Calpetco had failed to establish a RICO
violation or the existence of a fiduciary relationship, and
disposed of some, but not all, of the alleged misrepresentations.
The court also noted that Calpetco had conceded that its federal

6
trial, and pursuant to findings of fact and conclusions of law, the

court ruled against Calpetco on all remaining claims.11

II.

Calpetco raises numerous points of error, including the

partial summary judgments, denial of its motion for reconsid-

eration, and rulings on several of its Texas DTPA and Securities

Act claims.

A.

In challenging the first partial summary judgment, Calpetco

asserts, inter alia, error in the district court's interpretation

of the contractual language, and its refusal to toll the 24-month

adjustment period and statute of limitations on the basis of

fraudulent concealment, or bar reliance on the accounting

procedures under the doctrines of waiver or estoppel.12 Of course,

we review a summary judgment de novo, applying the same standard

used by the district court. E.g., Skotak v. Tenneco Resins, Inc.,

securities claims were time-barred.
11
The court held that Marshall was not negligent or grossly
negligent in drilling or completing any of the wells, that Marshall
had not made negligent, intentional, or fraudulent
misrepresentations to Calpetco, and that Calpetco had failed to
establish its claims of fraud or violation of the Texas Blue Sky
Law or DTPA.
12
Calpetco also challenges the district court's conclusion that
the four year statute of limitations for breach of contract actions
began to run when the payment of each invoice became due. But, in
granting the fourth motion for partial summary judgment, the court
disposed of Calpetco's breach of contract claim solely on the basis
that no written objection was filed within the contractual adjust-
ment period. Because none of Calpetco's claims were ultimately
held barred by the statute of limitations, and because we agree
with the adjustment period ruling, we need not reach this issue.

7
953 F.2d 909 (5th Cir.), cert. denied, __ U.S. __, 113 S.Ct. 98

(1992).

1.

The agreement between Calpetco and Marshall consists of two

documents: the letter agreement for each investment and the

Operating Agreement (with its accounting procedures), adopted by

each letter agreement. As with any set of documents executed at

the same time, with the same purpose and in the course of the same

transaction, we construe the agreements together. Jim Walter

Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 327 (Tex. 1984). In

doing so, we find no ambiguity, and agree with the district court's

ruling that the accounting procedures "govern the procedures for

charges and credits for the entire project".

Calpetco contends that, under the controlling letter

agreement, the Operating Agreement applies only after each well is

drilled to contract depth, and therefore, any invoices submitted

for costs incurred in the drilling phase are not governed by the

accounting procedures. This interpretation is reasonable, Calpetco

says, because in most cases the drilling costs were turnkeyed13 and,

in others, the letter agreements explain the costs to contract

depth. Thus, there is no need for an accounting procedure at the

drilling stage.

13
Under the turnkey arrangement, Calpetco paid Marshall a fixed
price to drill a test well to a particular contract depth. Once a
well reached "casing point", or contract depth, a decision was made
to either complete or abandon it.

8
 The letter agreement language on which Calpetco relies states,

however, that the Operating Agreement "shall govern operations on

the Subject Leases after the test well has been drilled to contract

depth". (Emphasis added.) This is distinctly different from

stating that it does not even take effect until that time. To the

contrary, it is clear that the Operating Agreement is applicable

from the time each letter agreement is signed. The Operating

Agreement states that it "shall be retroactive to date of first

operations, including drilling and first production". The

accounting procedures specifically address billing for overhead at

the drilling stage. Under Calpetco's interpretation, this

provision would be rendered completely meaningless, in defiance of

a basic rule of contract interpretation -- every clause is intended

to have some effect. Westwind Exploration, Inc. v. Homestate Sav.

Ass'n, 696 S.W.2d 378 (Tex. 1985).

Needless to say, interpretation of an unambiguous contract is

a question of law. E.g., Technical Consultant Services, Inc. v.

Lakewood Pipe, 861 F.2d 1357 (5th Cir. 1988). As stated, we reach

the same conclusion as did the district court, and hold that the

accounting procedures, with their 24-month adjustment period,

governed all billing and payment between Marshall and Calpetco

throughout their drilling ventures. Therefore, we turn to whether

the application of that adjustment period is foreclosed by

fraudulent concealment, waiver, or estoppel.

9
 2.

Summary judgment was appropriately granted against the

fraudulent concealment, waiver, and estoppel claims if the record

as of the ruling14 revealed no genuine issue of material fact, and

if Marshall was entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). We look to the applicable substantive law to

determine what facts are material, Lavespere v. Niagara Mach. &

Tool Works, Inc., 910 F.2d 167 (5th Cir. 1990), and then decide

whether there are any genuine disputes about those facts. Mere

disagreement is not enough; a dispute is "genuine" only "if the

evidence is such that a reasonable jury could return a verdict for

the nonmoving party". Anderson v. Liberty Lobby, 477 U.S. 242, 248

(1986). This analysis also requires close attention to the burden

of proof. Of course, the movant bears the initial burden of

showing the district court the absence of a genuine issue of

material fact. Once the movant does so, and if the issue is one

for which the nonmovant bears the burden of proof at trial, the

nonmovant must then "go beyond the pleadings and ... designate

`specific facts showing that there is a genuine issue for trial'".

Celotex Corp. v. Catrett, 477 U.S. 316, 324 (1986).15

14
For example, as discussed in note 15, infra, Michael contended
that he need not support his opposition to summary judgment with
documents he knew to be in Marshall's possession. The district
court correctly instructed: "Well, Mr. Michael, I'll say this: If
you're relying on a document for purposes of summary judgement
[sic] evidence, in order for the Court to rely on it, I've got to
have it in the record and not in opposing counsel's file."
15
At the joint hearing in February 1991 on the first and second
motions for partial summary judgment, Michael was steadfast in his
position that Marshall had the "absolute burden of proof" to show

10
 a.

To establish fraudulent concealment, Calpetco has the burden

of proving that (1) Marshall had actual knowledge of the facts it

allegedly concealed (the overcharges), and (2) it was Marshall's

"fixed purpose" to conceal them. See Dotson v. Alamo Funeral Home,

577 S.W.2d 308, 311-12 (Tex. Civ. App.--San Antonio 1979, no writ).

Thus, once Marshall pointed to the absence of a factual issue for

trial, Calpetco was obligated to point to specific evidence showing

such an issue. Celotex, 477 U.S. at 324. All Calpetco could point

to were conclusory statements in Michael's affidavit (filed in

response to the motion) that Marshall "employed delaying tactics"

in response to Calpetco's requests for information, and "actively

misled Calpetco ... [and] effectively precluded Calpetco from

the absence of a genuine issue of material fact. When the court
pointed out that Michael's position did not "quite conform[]" to
the federal standard as set forth in the Supreme Court's trilogy,
Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574 (1986), he retorted, "Well, that's the
law in Texas, Your Honor." Perhaps this misunderstanding of the
federal summary judgment standard explains Michael's failure to
submit documentation to support his conclusory affidavit filed with
the initial opposition to Marshall's first motion for partial
summary judgment.

In any event, it seems that, on the morning of the hearing on
the first summary judgment motion, Michael attempted to offer
documentation to support his affidavit filed three weeks earlier.
(Five days before the hearing, Marshall filed a motion to strike
Calpetco's affidavits, in part because Michael's was conclusory.)
When Marshall objected to this belated submission, Michael
explained that he did not submit the documents earlier, because he
knew they were in Marshall's file. Michael apparently saw no need
to reveal the documents to Marshall, but as noted supra, the court
explained, "If you're relying on a document for purposes of summary
judgement [sic] evidence, in order for the Court to rely on it,
I've got to have it in the record and not in opposing counsel's
file."

11
discovering in a timely manner the invalidity of the charges and

overcharges". But, no documents or other proof evidencing those

"delaying tactics" were submitted. Likewise, the statement as to

Marshall's intent or purpose to "actively mislead" came not from

one who might have knowledge of such purpose, but from the opposing

party, Michael. In sum, this is not evidence which could cause "a

reasonable jury [to] return a verdict for [Calpetco]". Liberty

Lobby, 477 U.S. at 246.

b.

Calpetco also failed to point to genuine issues of material

fact regarding Marshall's alleged waiver of its right to assert the

24-month limitation or its being estopped from doing so (discussed

infra). Waiver requires evidence that (1) Marshall was aware of

its right to assert the contractual limitation period, and (2)

expressly relinquished it or acted in a manner inconsistent with

it. See Alford, Meroney & Co. v. Rowe, 619 S.W.2d 210, 213-14

(Tex. Civ. App.--Amarillo 1981, writ ref'd n.r.e.).

First, there is no evidence that Marshall expressly

relinquished its right to assert the limitations period.

Second, and in any event, Calpetco apparently contends that

Marshall acted in a manner inconsistent with that right, by

entering into negotiations and making some adjustments in

Calpetco's account;16 but, we do not agree. The accounting

16
In its brief opposing the first summary judgment motion,
Calpetco contended that these negotiations resulted in adjustments
to charges rendered more than 24 months before. Thus, because
Marshall did not assert the 24-month adjustment period as a bar to
such negotiation, it could not assert that bar in the future. The

12
procedure states that the time for making written exception is not

extended by commencing an audit. It is clear that a non-operator

(Calpetco) who questions the accuracy of charges cannot hold its

right to file a written exception in abeyance while awaiting the

outcome of an audit. Likewise, Calpetco had no reason to believe

that it need not act within the 24-month period while awaiting the

outcome of negotiations. Marshall's attempts to reach agreement

with Calpetco cannot, as a matter of law, be interpreted as an act

inconsistent with its right to hold Calpetco to the contractual

limitations period in the event those attempts failed.

c.

Finally, to establish equitable estoppel, Calpetco is required

to show that Marshall's actions induced it to refrain from making

a claim for adjustment within the 24-month period. Gibbs v. Main

Bank, 666 S.W.2d 554, 558-59 (Tex.App.--Houston [1st Dist.] 1984,

no writ). For the reasons just noted, we hold that no genuine

factual issue on this matter was presented to the district court.

B.

Calpetco next challenges the district court's denial of its

motion to reconsider the first partial summary judgment. Because

a partial summary judgment is interlocutory in nature, the district

court retains the discretion to revise it; and we review only for

district court did not reach the merits of that legal position,
however, and we, too, decline to do so. Other than Michael's
conclusory affidavit, there was no evidence before the district
court which would tend to prove that such post-24 month adjustments
were, in fact, made.

13
abuse of that discretion. See Avondale Shipyards, Inc. v. Insured

Lloyd's, 786 F.2d 1265, 1269 (5th Cir. 1986). We find none.

The motion to reconsider was filed approximately two weeks

after the first partial summary judgment. It challenged the

district court's application of the summary judgment standard; but,

it did not point to genuine issues of material fact in the record

as it existed when the court rendered the judgment. Instead, as

noted, Calpetco submitted, for the first time, 37 documents

evidencing communication between Marshall and Calpetco about

various charges and billing practices. Calpetco offered no

explanation for its failure to earlier (timely) submit the

documents in opposition to Marshall's first motion. At the

hearing, the district court found Calpetco's argument "very

persuasive", but stated that Calpetco "had a fair opportunity to

present to this Court summary judgment evidence that would have

demonstrated that there was a material fact issue for trial on the

question of fraudulent concealment ... and the Court has considered

the evidence and has ruled on that issue. I am not persuaded by

the arguments in the Motion for Reconsideration". The court did

not consider the newly offered documents to determine whether they

raised a triable fact issue on the points covered by the first

partial summary judgment. (As discussed infra, the district court

did, however, consider the documents in ruling on Marshall's fourth

partial summary judgment motion.)

As stated, although we gave plenary consideration to the

initial partial summary judgment, we review the court's refusal to

14
reconsider that judgment only for abuse of discretion. Whether we

would consider the new documents -- or whether we would find they

show a genuine issue of material fact -- is not the inquiry.

Rather, on this record, we consider whether the district court was

required to reconsider a summary judgment simply because Calpetco

belatedly came forward with evidence not submitted prior to the

ruling.

The answer must be no. Otherwise, the cycle of reconsidera-

tion would be never-ending. Seven years have passed since the

famous Supreme Court trilogy17 breathed life into the use of summary

judgment. It has an important, and ever increasing, role in

stemming the tide of explosive litigation, greatly congested

dockets, increasing delay in claims being adjudicated, and

spiraling -- indeed, unimaginable -- litigation costs. In short,

it is one of the primary weapons in the Federal Rules of Civil

Procedure arsenal, all of which are to "be construed to secure the

just, speedy, and inexpensive determination of every action." Fed.

R. Civ. P. 1.

Summary judgment, pursuant to the simple procedures

established by Rule 56, serves, among other ways, to root out,

narrow, and focus the issues, if not resolve them completely.

Where, as here, partial summary judgment is granted, the length and

complexity of trial on the remaining issues are lessened, all to

the advantage of the litigants, the courts, those waiting in line

17
Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Celotex Corp.
v. Catrett, 477 U.S. 316 (1986); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574 (1986). See note 15, supra.

15
for trial, and the American public in general. These are interests

of great import, and if they are to be served, the Rules designed

to sponsor and secure them must be followed and enforced. In

short, a district judge must have considerable discretion in

determining when enough is enough. The district court did not

abuse that discretion.

C.

The accounting procedures bound Calpetco to the validity of

all of Marshall's charges unless it had "take[n] written exception

thereto and ma[de] claim on [Marshall] for adjustment ... within

the ... [24-month] period". In its fourth motion for partial

summary judgment, Marshall sought (1) a determination that the

Waterman audit report, not completed until February 15, 1991 (two

weeks before the first summary judgment hearing), constituted

Calpetco's first written exception and claim for adjustment, and,

therefore, all charges at issue in the case were conclusively

presumed true and correct, and (2) a ruling that no evidence of

overcharges would be admissible at trial for any purpose. Calpetco

challenges the partial summary judgment on both issues.

1.

The record before the district court in considering the fourth

motion consisted of at least five volumes of pleadings and other

papers, affidavits, and exhibits, including the documentation

Calpetco submitted with its earlier motion to reconsider.18 In its

18
For example, the earlier referenced Waterman audit report is
one of the 37 documents submitted by Calpetco in support of that
motion.

16
motion, Marshall carried its burden of "identifying those portions

of [the record] which it believe[d] demonstrate[d] the absence of

a genuine issue of material fact". Celotex, 477 U.S. at 323.

Marshall specifically referenced a letter written by Michael in

which he identified April 17, 1987 (the date he claims Calpetco

filed its counterclaims19), as the date of the first written

exception and claim for adjustment. Marshall correctly pointed out

that those counterclaims could not, as a matter of law, constitute

a written claim for adjustment: they do not point to specific

charges or specific invoices. In fact, they do not even specify

which partnerships or wells were saddled with the alleged

overcharges.

Because Calpetco would bear the ultimate burden of proving

which alleged overcharges were timely and properly challenged, it

then was required to "go beyond the pleadings and ... designate

`specific facts showing that there is a genuine issue for trial'".

Id. at 324. Calpetco failed to meet this burden, and we conclude

that Marshall's fourth motion for partial summary judgment was

properly granted.

In its opposition to the fourth summary judgment motion,

Calpetco contended that the "two year history of ... claims"

submitted with its motion to reconsider evidenced the series of

19
Calpetco's counterclaims were not filed until May 20, 1987.
However, this difference of one month would not affect the invoices
which would otherwise be protected by Calpetco's objection. The
24-month adjustment period runs from the end of the calendar year
in which the bill was issued. Thus, an objection made anytime in
1987 would be effective as to any charges in issue rendered on or
after January 1, 1985.

17
what it labelled "pre-complaint" (April 1987) claims for

adjustment.20 It re-asserted its previously rejected position on

fraudulent concealment as an explanation for its failure to timely

make all "post-complaint" claims. At the hearing, Calpetco again

stated: "We don't have to rely on the counter-claim. We had two

years of negotiations with Marshall with written documentation

going back and forth". The lengthy communications to which

Calpetco refers certainly convey discontent with Marshall's billing

practices. But, they lack sufficient specificity to constitute the

requisite exceptions and claims for adjustment. Moreover,

Calpetco's reference to them in its summary judgment brief and its

argument before the district court is a far cry from the

designation of specific facts contemplated by Rule 56(e), the

Celotex Court, and this court, see Nissho-Iwai American Corp. v.

Kline, 845 F.2d 1300, 1307 (5th Cir. 1988).

2.

In granting the fourth partial summary judgment motion, the

district court held that all charges at issue in the case were

conclusively presumed true and correct. It seems self-evident that

a fact which is "conclusively ... presumed to be true and correct"

is "true and correct" for all purposes. Calpetco contends,

however, that in rendering the first partial summary judgment, the

district court presumed the accuracy of Marshall's charges only for

20
This is an about face from the position taken by Michael only
three weeks earlier, when he indicated in the earlier referenced
letter to Marshall, that Calpetco's original counterclaim
constituted its written exception and claim for adjustment.

18
purposes of Calpetco's breach of contract counterclaim. In

rendering partial summary judgment on the fourth motion, the

district court, of course, applied the earlier judgment on the

first motion and reached a contrary result to that urged by

Calpetco. Calpetco asserts error in this application, offering

little legal support,21 but rather by noting the devastating effect

the presumption had on its case. We look, instead, to Rule 56(d),

which squarely dictates the result reached by the district court.

The Rule provides that when some facts are preliminarily determined

by virtue of partial summary judgment, "[u]pon the trial of the

action the facts so specified shall be deemed established, and the

trial shall be conducted accordingly". The validity of Marshall's

charges were deemed established, and the district court properly

excluded any evidence to the contrary.

D.

Finally, Calpetco challenges the district court's bench trial

rulings on several of its Texas DTPA and Securities Act claims.

Calpetco alleged that several statements or representations made by

Marshall violated §§ 17.50 and 17.46(b)(5) or (7) of the Texas DTPA

and Art. 581-33.A.(2) of the Texas Securities Act. Calpetco

21
The offered legal support is in the form of a policy argument
against waiver of Texas DTPA and Securities Act claims. Calpetco
asserts that the accounting procedures amount to an invalid waiver
of its right to bring claims under those statutes. To the
contrary, the accounting procedures resulted in Calpetco's
inability to offer proof of certain facts, i.e., the alleged
overcharges. However, the district court made it quite clear that
Calpetco could, for example, offer certain invoices "for [the]
limited purpose" of establishing Marshall's profit, but not to
establish that Calpetco was overcharged.

19
asserts that the district court erroneously applied the common law

fraud standard to these statutory claims. However, we interpret

the district court's disposition of each of the alleged deceptive

statements as a finding of fact. Finding no clear error, we affirm

as to each.

1.

Section 17.50 of the DTPA provides that a "consumer22 may

maintain an action where [the use or employment by any person of a

false, misleading or deceptive act or practice] constitute[s] a

producing cause of actual damages". "[F]alse, misleading, or

deceptive acts or practices" are enumerated in § 17.46(b), and

include:

(5) representing that goods or services have
... characteristics, ingredients, uses, benefits,
or quantities which they do not have ....

* * *

(7) representing that goods or services are of
a particular standard, quality, or grade, ... if
they are of another.

Tex. Bus. & Com. Code Ann. §§ 17.46(b)(5), (7) (1987).

a.

Marshall's promotional materials stated that its drilling

program concentrated on "development wells" and did not include

22
Despite the prior holding of this court, MBank Forth Worth v.
Trans Meridian, Inc., 820 F.2d 716 (5th Cir. 1987), recent
decisions of the Texas courts of appeal indicate that Calpetco may
not qualify as a "consumer" under the DTPA. See Johnston v.
American Cometra, Inc., 837 S.W.2d 711 (Tex. App.--Austin 1992,
writ denied); Anderson v. Vinson Exploration, Inc., 832 S.W.2d 657
(Tex. App.--El Paso 1992, writ denied). However, for our analysis,
we assume, without deciding, that Calpetco is a DTPA consumer.

20
highly speculative "wildcat wells". Calpetco's only evidence to

the contrary was a regulatory form in which Marshall designated

some wells as "wildcat", yet Michael's own testimony established

that the form required such a designation for many wells which

Michael himself would not call "wildcat". Therefore, the district

court did not err in finding, in essence, that the record would not

support the contention that this was a false statement.

b.

Next, Calpetco contends that Marshall represented that 75% to

90% of the wells would be completed as "successful, commercially

productive wells". This is an apparent reference to the statement

in Marshall's brochure that its management and organization "have

yielded annual percentages of successful wells var[y]ing from

seventy-five to ninety percent". The next sentence in the

brochure, however, points out that "these reasons are no guarantees

of reward". Thus, contrary to Calpetco's contention, the court's

determination that this statement was not "false when made" was not

an erroneous application of the common law fraud standard to the

statutory claim. It was, rather, a finding that the statement was

not a representation about the quantity of goods, but was, instead,

an accurate description of past performance, complete with a

warning that similar success could not be guaranteed for the

future.

c.

Calpetco also asserts that it was assured a three-to-one or

four-to-one return on its investment with Marshall. This alleged

21
assurance seems to be taken from a 1983 letter from Carlile to

Michael, which explained Marshall's internal procedure for choosing

drilling prospects: only wells with the prospect of a return of at

least "$3.00 for each $1.00 invested" would be drilled. Again, the

warning: "but there can never be any guarantees as to the

performance of a well or wells". The district court held, "[b]ased

upon the credible evidence", that no such guarantee was made.

Again, Calpetco contends that an erroneous legal standard was

applied.23 However, we read the district court's opinion as a

finding that the alleged misrepresentation of guaranteed returns

was not made. The finding is not clearly erroneous.

d.

Calpetco also contends that Marshall deceptively represented

that its wells would have average productive lives of 10 to 20

years. In dismissing this claim, the district court found that

Michael was a sophisticated investor and stated that "a

sophisticated investor should not be able to rely on somebody

telling them how long an oil well is going to produce, if it does

produce". Given Michael's testimony about his experience in the

oil and gas industry, that finding cannot be clearly erroneous.

Thus, the district court's statement regarding reliance is

23
In its brief to this court, Calpetco contends that it never
claimed that Marshall guaranteed such a return, only that such a
return could be expected. Michael so testified at trial; but in
its answers to interrogatories, made a part of the record through
Marshall's trial brief, and obviously relied upon by the district
court, Calpetco represented that it was "assured a three-for-one
return on investments with ... the good possibility of four-for-one
returns." In any event, we consider Calpetco's distinction to be
one without a difference.

22
essentially a determination that the statement, if made, could not

have been a requisite DTPA § 17.50 "producing cause" of any damage

suffered by Calpetco. See Texas Bus. & Com. Code Ann. § 17.50(a).

We agree.

e.

Finally, Calpetco asserts that Marshall represented that it

would not make a profit on certain aspects of the drilling venture.

The district court found that no such representation was made, and,

indeed, pointed to evidence that Calpetco knew about Marshall's

profits. Our review of the record reveals no evidence of this

alleged representation, but rather confirms the district court's

position that Calpetco had actual knowledge of Marshall's profits.

In sum, it has been noted that the objective of DTPA §§

17.46(b)(5) and (7) "is to ensure that descriptions of goods or

services offered for sale are accurate". Pennington v. Singleton,

606 S.W.2d 682, 687 (Tex. 1980). We see no clear error in the

district court's findings. Therefore, Calpetco's DTPA claims were

properly dismissed.

2.

Calpetco bases its Texas Securities Act claim on the alleged

misrepresentations discussed above. Article 581-33A.(2) states

that the seller of a security is liable to the purchaser if he

"offers or sells a security ... by means of an untrue statement of

a material fact or an omission to state a material fact necessary

in order to make the statements made, in light of the circumstances

23
under which they are made, not misleading". Tex. Rev. Civ. Stat.

Ann. art. 581-33A.(2) (Supp. 1993).

We have already concluded that the district court found that

the alleged statements were either not made, or not untrue, and

have held that those findings are not clearly erroneous. Calpetco

could not have shown, then, that securities were sold "by means of

an untrue statement".24 Its claims under the Texas Securities Act

were likewise properly dismissed.

III.

Accordingly, the judgment is

AFFIRMED.

24
As noted, in dismissing Calpetco's claim that Marshall
misrepresented the productive lives of the wells, the district
court found that Michael was a sophisticated investor and,
therefore, did not rely on any such representation. This, too,
means that the security was not offered or sold "by means of an
untrue statement of a material fact." Article 581-33A.(2) has been
construed to mean that the alleged misrepresentation must relate to
the security and "induce[] the purchase thereof". Nicholas v.
Crocker, 687 S.W.2d 365, 368 (Tex. App.--Tyler 1984, writ ref'd
n.r.e.). The district court's factual finding is essentially a
determination that Marshall's statement -- if made at all -- did
not induce Calpetco's investment.

24