Come Big or Stay Home, LLC v. EOG Resources, Inc.

20110305 Come Big or Stay Home, LLC, Plaintiff and Appellant
v.
EOG Resources, Inc., Defendant and Appellee

Appeal from: District Court, Northwest Judicial District, Mountrail County
Judge Richard L. Hagar
Nature of Action: Contracts
Counsel:
Appellant: Lawyer not licensed in N.D.
Appellant: John J. Petrik
Appellee: Lawrence Bender
Appellee: Lawyer not licensed in N.D.
Appellee: Jillian Rene Rupnow
Appellant: Monte Lane Rogneby
Term: 02/2012   Argument: 02/10/2012  10:00am
ND cite: 2012 ND 91
NW cite: 816 N.W.2d 80

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Issues: Appellant's Statement of the Issues:
1. The District Court erred in granting summary judgment to Appellee, EOG Resources, Inc. ("EOG"), because:
(a) EOG was not entitled to summary judgment on CBSH's breach of contract claim.
(b) EOG was not entitled to summary judgment on CBSH's breach of fiduciary duty theory.
(c) EOG was not entitled to summary judgment on CBSH's conversion claim.
(d) EOG was not entitled to summary judgment on CBSH's claims for declaratory judgment and constructive trust.
(e) The district court erred in not addressing CBSH's Rule 56(f) Affidavit.

Appellee's Statement of the Issues:
I. Was EOG entitled to summary judgment dismissing CBSH's breach of contract claim?
A. Are the invitations to participate ambiguous?
B. Do the unambiguous invitations to participate require EOG to provide CBSH with well information in the absence of a nondisclosure agreement?
1. May a party use evidence of "custom and usage" to amend an agreement in a manner that is inconsistent with the undisputed evidence of the parties' intent when entering into the agreement?
2. Did the parties leave open any terms of the invitations to participate?
II. Was EOG entitled to summary judgment dismissing CBSH's breach of fiduciary duty claim?
A. Do the invitations to participate impose a fiduciary duty on EOG to provide well information to CBSH in the absence of a nondisclosure agreement?
B. Are EOG and CBSH joint venturers?
C. Do EOG and CBSH have a confidential relationship that imposes fiduciary duties?
1. Are EOG and CBSH cotenants under North Dakota law?
2. Do cotenants owe each other fiduciary duties when they obtained their interests through different instruments at different times and in the absence of a special relationship?
III. Was EOG entitled to summary judgment dismissing CBSH's conversion claim when CBSH failed to produce evidence of any extra-contractual duty to share well information?
IV. Can CBSH establish causation for its claims when EOG offered to provide well information to CBSH if CBSH signed a nondisclosure agreement and CBSH never asked EOG for EOG's consent to disclose well information to third-parties?
V. Did the District Court correctly hold that CBSH's basis for damages was too speculative and uncertain to establish an award?
VI. Did the District Court correctly determine that the dismissal of CBSH's substantive claims precluded CBSH's requests for declaratory judgment and constructive trust?
VII. Is the District Court's decision denying CBSH's request for a continuance under North Dakota Rule of Civil Procedure 56(f) subject to reversal?
A. Did CBSH waive the right to challenge the District Court's decision denying CBSH's Motion to Compel by not arguing in its Brief that the District Court erred in denying the Motion?
B. May CBSH obtain a reversal of the District Court's Summary Judgment Order based on the District Court's denial of CBSH's Rule 56(f) request for a continuance when CBSH has waived the right to challenge the District Court's decision denying CBSH's Motion to Compel?
C. Did the District Court abuse its discretion when it declined to grant CBSH's Rule 56(f) request for a continuance to respond to EOG's motion for summary judgment when the discovery sought by CBSH was immaterial to the matters at issue on summary judgment and the discovery deadline has passed?

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Docket entries:
110/17/2011 NOTICE OF APPEAL: 10/12/2011
211/14/2011 ELECTRONIC RECORD ON APPEAL (entry nos. 1 - 91, no entry for no.72)
311/17/2011 APPELLANT BRIEF (e-filed)
411/17/2011 E-FILED BRIEF (ATB)
511/17/2011 APPELLANT APPENDIX (e-filed)
611/17/2011 E-FILED APPENDIX (ATA)
711/21/2011 Received $25 surcharge for ATB (Receipt #20760)
811/22/2011 Updated Affidavit of James Chaney (pro hac vice)
911/28/2011 Rec'd 7 copies of ATB from Central Duplicating.
1011/28/2011 Rec'd 6 copies of ATA from Central Duplicating.
1112/01/2011 Received updated Affidavit of David R. Marshall (pro hac vice)
1212/06/2011 MOT. EXT/TIME APPELLEE BRIEF
1312/08/2011 ACTION BY CLERK. Granted: 01/09/2012
1412/14/2011 James M. Chaney paid 2012 Pro Hac Vice fees for 2012
1501/04/2012 David Marshall paid 2012 Pro Hac Vice fee for 2012
1601/09/2012 APPELLEE BRIEF
1701/09/2012 E-FILED BRIEF
1801/10/2012 Received $25 surcharge for AEB (Receipt #20820)
1901/10/2012 ANNOUNCED DISQUALIFICATION: Kapsner, Carol Ronning
2001/11/2012 Received 7 copies of AEB from CSD
2101/17/2012 NOTICE OF ORAL ARGUMENT SENT
2201/24/2012 SITTING WITH THE COURT: Greenwood, John E.
2301/25/2012 REPLY BRIEF
2401/25/2012 E-FILED BRIEF
2501/27/2012 Received 7 copies of RYB from CSD
2602/10/2012 APPEARANCES: James M. Chaney; Monte L Rogneby; Lawrence Bender; David R. Marshall
2702/10/2012 ARGUED: James M. Chaney; David R. Marshall
2802/10/2012 ORAL ARGUMENT WEBCAST
2905/04/2012 DISPOSITION: AFFIRMED
3005/04/2012 UNANIMOUS OPINION: Maring, Mary Muehlen
3105/04/2012 Costs on appeal taxed in favor of Appellee
3205/07/2012 Judgment Sent to Parties
3306/05/2012 MANDATE

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