A.G. Golden v. SM Energy Company

20120265 A.G. Golden; Paul E. Nordstog; Cooper
B. Land; Solveig K. Land; Howard D.
Armentrout and Delores K. Armentrout,
as Co-Trustees of the Armentrout Family
Revocable Living Trust dated May 24,
2005; Craig L. Bolenbaugh, and Joseph
Michael Bolenbaugh, Peter Francis
Bolenbaugh, and James Patrick
Bolenbaugh, as joint tenants; and Royalty
Interest Partnership, LP, Plaintiffs and Appellees
v.
SM Energy Company, a Delware
corporation, Defendant and Appellant

Appeal from: District Court, Northwest Judicial District, McKenzie County
Judge David W. Nelson
Nature of Action: Real Property
Counsel:
Appellee: Lawrence Bender
Appellant: Harry Malcolm Pippin
Appellant: Lawyer not licensed in N.D.
Appellant: Lawyer not licensed in N.D.
Appellee: Amy Lynn De Kok
Appellee: Jillian Rene Rupnow
Term: 11/2012   Argument: 11/08/2012  2:45pm
ND cite: 2013 ND 17
NW cite: 826 N.W.2d 610

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
1.Did the District Court err in holding that:
a.the assignee expressly assumed the personal covenant by the 1993 agreement when this interpretation required disregarding relevant contractual language?
b.the assignee constructively assumed the personal covenant because it had record notice of that covenant, even if it did not expressly agree to assume it?
c.the assignee assumed the personal covenant by operation of North Dakota Century Code  9-03-25 because the assignee acquired the leases that were the subject of the 1970 agreement and, therefore, accepted the benefits of that agreement?
2. Did the District Court err in ordering Defendant-Appellant SM Energy Company ("SM") to pay retroactive royalties to compensate the Plaintiffs for underpayments, when SM's past payments were made pursuant to executed division orders?
3.Did the District Court err in granting the Plaintiffs relief as to unpleaded claims and unidentified properties?

Appellee's Statement of the Issues:
I.Whether the district court was correct in holding that Tipperary, and then SM Energy, specifically assumed the rights and obligations of the Letter Agreement.
II.Whether the district court was correct in holding that SM Energy is bound by the Letter Agreement because it accepted the benefits of the same.
III.Whether the district court was correct in applying its analysis to all leases and lands specified in the Letter Agreement.

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Docket entries:
106/07/2012 NOTICE OF APPEAL: 06/05/2012
206/07/2012 ORDER FOR TRANSCRIPT: 06/05/2012
306/07/2012 ANNOUNCED DISQUALIFICATION: Crothers, Daniel John
406/27/2012 Updated affidavit of David R. Hammond received (pro hac vice)
507/05/2012 ELEC. RECORD ON APPEAL DATED 07/03/2012 (ENTRY NOS.1-104)
607/12/2012 MOTION FOR PRO HAC VICE W/SUPPORTING AFFIDAVIT
707/21/2012 TRANSCRIPT DATED 01/30/2012 & C.O.S.
807/21/2012 DISK- Transcript dated 01/30/2012 (e-mailed)
908/29/2012 APPELLANT BRIEF
1008/29/2012 APPELLANT APPENDIX
1108/30/2012 DISK-ATB (CD-ROM)
1208/30/2012 ACTION BY CLERK (MOTION FOR PRO HAC VICE)
1309/27/2012 RECEIVED $25 E-FILING SURCHARGE FOR AEB (RECEIPT #21522)
1409/28/2012 APPELLEE BRIEF AND ADDENDUM
1509/28/2012 E-FILED BRIEF
1609/28/2012 APPELLEE APPENDIX
1709/28/2012 E-FILED APPENDIX
1810/03/2012 RECEIVED NON-SUBSTANTIVE CORRECTIONS TO AEB & AEA
1910/04/2012 RECEIVED 7 COPIES OF AEB FROM CENTRAL DUPLICATING
2010/04/2012 RECEIVED 6 COPIES OF AEA FROM CENTRAL DUPLICATING
2110/11/2012 REPLY BRIEF and ADDENDUM
2210/11/2012 Supplemental Appendix
2310/11/2012 DISK-RYB and Addendum
2410/15/2012 Rec'd 8 copies of RYB w/non-substantive changes to the footnote font size
2510/15/2012 DISK-Corrected RYB and Addendum
2610/18/2012 NOTICE OF ORAL ARGUMENT SENT
2710/18/2012 SITTING WITH THE COURT: McEvers, Lisa K. Fair
2810/19/2012 ANNOUNCED DISQUALIFICATION: Sandstrom, Dale V.
2910/19/2012 SITTING WITH THE COURT: Hodny, William F.
3011/08/2012 APPEARANCES: H. Malcolm Pippin;David R. Hammond; Amy De Kok & Jillian Rupnow
3111/08/2012 ARGUED: David R. Hammond; Amy De Kok
3211/08/2012 ORAL ARGUMENT WEBCAST
3302/01/2013 DISPOSITION (AND REMANDED): AFFIRMED/PT, REVERSED/PT
3402/01/2013 UNANIMOUS OPINION: VandeWalle, Gerald W.
3502/10/2013 Costs on appeal not taxed against either party
3602/04/2013 Judgment Sent to Parties
3703/01/2013 MANDATE
3803/11/2013 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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