BTA Oil Producers v. MDU Resources Group

20010122 BTA Oil Producers, Cenex Harvest
States Cooperatives, Conoco, Inc.,
Equitable Resources Energy Company,
Exxon Mobil Corporation, Midgard
Energy Company, (formerly known as
Maxus Exploration Company), Sinclair
Oil Corporation, Kerr-McGee Oil & Gas
Onshore, L.P., TBI Exploration, Inc.,
(formerly known as Presidio Exploration,
Inc.), Tipperary Oil & Gas Corporation,
and Tom Brown, Inc., Plaintiffs and Appellants
v.
MDU Resources Group, Inc., (formerly
known as Montana-Dakota Utilities
Company), Williston Basin Interstate
Pipeline Company, Inc., Koch Industries,
Inc., and Koch Hydrocarbons Company, Defendants and Appellees

Appeal from: District Court, Southwest Judicial District, Stark County
Judge Allan L. Schmalenberger
Nature of Action: Contracts
Counsel:
Appellant: Hardy, Maus & Nordsven, P.C.
Appellee: Zuger Kirmis & Smith
Appellee: Fleck, Mather & Strutz
Appellee: Lawyer not licensed in N.D.
Appellee: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellee: Lawyer not licensed in N.D.
Term: 12/2001   Argument: 12/12/2001  1:30pm
ND cite: 2002 ND 55
NW cite: 642 N.W.2d 873

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1. Whether the trial court properly decided to enter summary judgment against the Appellants based on Apache, when most of Appellants' claims were not addressed by that case.
2. Whether MDU is judicially estopped from disputing Appellants' unjust enrichment claims, because it successfully asserted a position in Koch v. MDU, which the trial court has expressly determined to be inconsistent with its position here.
3. Whether a party must establish that it was injured in order to assert a claim in unjust enrichment.
4. Whether MDU, Koch, and the Appellants agreed that MDU should escape liability for millions of dollars of admitted breach of contract damages because of the way that they structured their contracts in a "complicated three-party transaction."
5. Whether this Court should establish the precedent that producers of raw materials which sell their production under percentage-of-proceeds contracts are barred from receiving damages attributable to the resale of their products, and that the purchasers of those products in the resales do not have to disgorge 100% of any damages that they caused.
6. Whether the trial court properly granted summary judgment on claims that it did not address in its decisions.
7. Whether the trial court properly determined that Koch cannot be liable for breaching its written commitment to the Appellants to keep them apprised of "major developments" in the Koch v. MDU case as a matter of law.
8. Whether the trial court properly determined, as a matter of law, that Koch cannot be liable for failing to share settlement payments with the Appellants which Koch obtained in lieu of amounts that Koch would have been contractually obligated to pay them.
9. Whether the trial court properly determined that Koch cannot be liable to the Appellants for breaching its agreement to maximize sales to MDU by terminating the contract under which these sales were to be made.
10. Whether the trial court properly determined, as a matter of law, that Koch cannot be liable to the Appellants for failing to implement their Koch contracts in good faith when Koch circumvented those contracts by settling with MDU to Koch's own advantage and to Appellants' detriment.
11. Whether the trial court erred in entering summary judgment on those claims when the Appellants showed specific grounds to impeach Koch's affiant and there is a disputed issue of material fact concerning the claim.
12. Whether the trial court properly entered summary judgment on Appellants' unjust enrichment claims against Koch on the basis that the Appellants have direct contracts with Koch, before the court determined whether those contracts provide "perfect and complete justice."
13. Whether the trial court erred in granting summary judgment on the Appellants' claims for an accounting regarding liquefiable hydrocarbons on the basis that the Appellants had not "identified" which Appellants were seeking an accounting, when Exxon was specified in the Complaint, when the other Appellants were referred to, when the contracts under which the claims were made had been filed, and where Koch had failed to file a Motion for a More Definite Statement or a discovery request for the names.
14. Whether the trial court erred in finding, as a matter of law, that the Appellants could not prove that Koch improperly accounted to them for liquefiable hydrocarbons, when Koch committed acts which violate its contracts with the Appellants, such as deducting from its payments to them as a "cost" an interaffiliate profit margin, whiting out the word "margin" when caught by North Dakota officials, writing over it a different description, yet still showing it as a "margin" on its own records.
15. Whether the trial court erroneously determined that Contract MCK-1590 is a contract for the sale of goods governed by the UCC and subject to a four-year limitations period, when the parties themselves characterized that agreement as a "Gas Processing Agreement," and the only case which addresses whether a "Gas Processing Agreement" is governed by the UCC holds that it is not.
16. Whether In the Interest of W.M.V. is good law.
17. Whether the trial court correctly determined that Exxon did not assert its treating fee claim against Koch when it filed its Complaint with its Motion to Intervene, but when the Appellants subsequently filed their First Amended Complaint containing identical language.
18. Whether the trial court correctly denied Appellants' Motion for Leave to File a Second Amended Complaint under the liberalized standards established by this Court, where the trial court erroneously determined that the amendments would have been futile and would have prejudiced the Appellees.

Appellee's Statement of the Issues:
.The District Court properly entered summary judgment on the producers' breach of contract and unjust enrichment claims against Koch
a. The producers could not rely on allegations in pleadings in response to a summary judgment motion.
b. Koch was under no contractual obligation to advise the producers of "major developments" in Koch v. MDU, and the producers were not damaged by any absence of notice from Koch.
c. The producers proved no contractual right to any portion of the MDU settlement proceeds.
d. There is no evidence to support a claim for breach of a duty of good faith and fair dealing.
e. The producers have no unjust enrichment claim against Koch.
The District Court properly granted Koch's motion for summary judgment on the Liquefiable Hydrocarbons claim.
The District Court correctly applied the UCC four-year statute of limitations to Exxon's "treating fee" claim.
Motion to Amend the Pleadings.

Appellee's Statement of the Issues:
I. Judicial Estoppel Does Not Bar MDU/WBI From Disputing BTA's Unjust Enrichment and Implied Trust Claims.
II. The District Court Properly Granted Summary Judgment on BTA's Unjust Enrichment and Implied Trust Claims.
A. Apache is Consistent with Principles of Restitution.
B. Apache is Consistent with North Dakota Precedent.
C. BTA did not "participate" in transactions between Koch and WBI.
D. The Apache Decision is Not Contrary To Klein.
E. It is Not Economically Unfair to Affirm Summary.
Judgment.
F. Apache is Not Bad Precedent.
III. The District Court Correctly Denied BTA's Motion to File a Second Amended Complaint.
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Docket entries:
105/14/2001 NOTICE OF APPEAL: 05/04/2001
205/14/2001 ANNOUNCED DISQUALIFICATION: VandeWalle, Gerald W.
305/14/2001 AMENDED NOTICE OF APPEAL (filed in trial ct. 5-07-01)
405/14/2001 ORDER FOR TRANSCRIPT (Kim Schwartz, Court Reporter): 05/07/2001
506/01/2001 RETENTION OF RECORD ON APPEAL: 06/26/2001
606/20/2001 APPELLANTS' MOTION FOR EXT/PAGE OR WORD LIMIT FOR ATB
706/20/2001 ACTION BY CHIEF JUSTICE. Denied
806/27/2001 MOT. EXT/TIME TRANSCRIPT
906/27/2001 ACTION BY TRIAL COURT. Granted: 08/04/2001
1008/04/2001 TRANSCRIPTS DATED 11-2-98; 10-4-99; 5-8-00; 8-21-00; 10-9-00; & 10-23-00
1108/08/2001 DISK of trans dated 11-2-98, 10-4-99, 5-8-00, 8-21-00, 10-9-00, & 10-23-00
1208/08/2001 RECORD ON APPEAL (18 Volumes) including separates
1309/05/2001 APPELLANT'S RENEWED MOTION CONCERNING PAGE LIMITS & BRIEF IN SUPPORT
1409/05/2001 ACTION BY ACTING CHIEF JUSTICE NEUMANN (extended to maximum of 15,000 words). Granted
1509/11/2001 MOT. EXT/TIME APPELLANT BRIEF & Brief in Support
1609/12/2001 ACTION BY CLERK. Granted: 09/24/2001
1709/13/2001 MOTION FOR APPEARANCE BY JAMES B. WILCOX, JR. (copy of faxed Updated Affidavit - )
1809/13/2001 ACTION BY CLERK (Appearance by James B. Wilcox, Jr. approved). Granted
1909/21/2001 Original Affidavit of James B. Wilcox, Jr. under Rule 11.1, NDRCt.
2009/24/2001 APPELLANT BRIEF
2109/24/2001 APPELLANT APPENDIX (2 volumes)
2209/25/2001 MOTION FOR PERMISSION TO APPEAR AS COUNSEL AND AFFIDAVIT BY JAMES D. OLIVER
2309/25/2001 MOTION FOR PERMISSION TO APPEAR AS COUNSEL AND AFFIDAVIT OF JAMES M. ARMSTRONG
2409/26/2001 ACTION BY CLERK (Appearance by James D. Oliver). Granted
2509/26/2001 ACTION BY CLERK (Appearance by James M. Armstrong). Granted
2610/02/2001 Corrected T.O.A.,pages, & disk for ATB and corrected T.O.C. & Memorandum for ATA
2710/02/2001 DISK - atb
2810/15/2001 MOT. EXT/TIME APPELLEE BRIEF
2910/15/2001 ACTION BY CLERK (MAE). Granted: 11/07/2001
3010/30/2001 Corrected Table of Contents for Appendix A and B
3111/07/2001 APPELLEE BRIEF (Koch Industries, Inc. & Koch Hydrocarbon Company)
3211/07/2001 APPELLEE APPENDIX (Koch Industries, Inc. & Koch Hydrocarbon Co.)
3311/07/2001 DISK - AEB (Koch Industries, Inc. & Koch Hydrocarbon Co.)
3411/07/2001 APPELLEE BRIEF (MDU Resources Group & Williston Basin Interstate Pipeline Co.)
3511/07/2001 DISK - AEB (MDU Resources Group & Williston Basin Interstate Pipeline)
3611/14/2001 MOTION FOR PERMISSION TO APPEAR AS COUNSEL BY MICHAEL A. CERAMELLA & AFFID.OF MICHAEL CERAMELLA
3711/14/2001 ACTION BY CLERK (Permission to Appear -- Michael A. Ceramella). Granted
3811/14/2001 MOT. EXT/TIME REPLY BRIEF (FAXED COPY)
3911/14/2001 ACTION BY CLERK. Granted: 12/04/2001
4011/14/2001 MOTION TO INCREASE REPLY BRIEF PAGE LIMITS (Faxed copy)
4111/14/2001 ACTION BY ACTING CHIEF JUSTICE MARING (UP TO 1250 WORDS). Granted
4211/15/2001 Original and seven copies of Motion ext. time RYB & ext. of page limits & aff. of service
4312/03/2001 SITTING WITH THE COURT: Glaser, Gerald G.
4412/07/2001 REPLY BRIEF - Corrected
4512/10/2001 DISK - RYB
4612/12/2001 APPEARANCES: James B. Wilcox, Jr., Albert J. Hardy; Daniel S. Kuntz; John W. Morrison, James M.
4712/12/2001 Armstrong
4812/12/2001 ARGUED: Wilcox; Kuntz; Armstrong (Vol. X; Page 185)
4912/12/2001 ORAL ARGUMENT WEBCAST
5004/16/2002 DISPOSITION (Remanded): AFFIRMED/PT, REVERSED/PT
5104/16/2002 UNANIMOUS OPINION: Sandstrom, Dale V.
5204/16/2002 Costs on appeal taxed in favor of appellees
5304/18/2002 Order/Judgment Mailed to Parties
5404/30/2002 PETITION FOR REHEARING
5504/30/2002 DISK - PER
5605/02/2002 Letter from Albert J. Hardy dated 5-1-02 RE: Correction on page 9 of Pet/Rehearing
5705/17/2002 ACTION BY SUPREME COURT (Pet. for Rehearing). Denied
5805/29/2002 MANDATE
5908/26/2002 Letter from Clerk, U.S. Supreme Court (pet. for writ of certiorari filed 8-15-02)
6010/28/2002 Letter dated 10/21/2002 from U.S. Supreme Court Clerk, Petition for Writ of Certiorari is denied
6105/30/2007 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
6208/24/2007 EXPUNGED - Nonpermanent record items destroyed

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