                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit

                                                                              MAY 14 1998
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                          PATRICK FISHER
                                                                                   Clerk


 BOYD A. SHERWOOD, CURTIS T.
 SHERWOOD, JERALD L.
 SHERWOOD,                                                  No. 97-3024

                Plaintiffs - Appellants,                    (D. Kansas)
           v.                                         (D.C. No. 96-CV-1331)
 PANHANDLE EASTERN PIPE LINE
 COMPANY,

                Defendant - Appellee.
 ----------------------------------------
 ANADARKO GATHERING
 COMPANY,

                Intervenor - Appellee.


                              ORDER AND JUDGMENT *


Before ANDERSON, BALDOCK, and MURPHY, Circuit Judges.




       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      Boyd A. Sherwood, Curtis T. Sherwood, and Jerald L. Sherwood brought

this diversity action against Panhandle Eastern Pipe Line Company seeking a

declaratory judgment that a lease between the Sherwoods and Panhandle was

canceled, terminated, or abandoned when Panhandle executed an assignment of

the lease to Anadarko Gathering Company. In a separate action against

Anadarko, later joined with the Panhandle suit, the Sherwoods alleged forcible

entry and unlawful detainer, and sought possession of the leasehold.

      These actions were based on the following provision of the lease: “This

lease may not be assigned by Lessee without written permission from Lessor and

terms of lease shall be renegotiated.” App. Vol. II, Tab L at 93. It is undisputed

that the Sherwoods did not consent to any assignment of the lease, and terms of

the lease were not renegotiated. It is also undisputed that approximately five

months after the “assignment” from Panhandle to Anadarko, and after the

Sherwoods had filed suit, Panhandle and Anadarko executed a document voiding

the assignment ab initio, 1 and a further document licensing Anadarko to go onto

the premises and operate the gas pipeline compressor station located there.

Finally, it is also undisputed that Panhandle never did execute and record a

release of the lease.


      1
        Both the original assignment agreement and the agreement of voidance expressly
stated that they were governed by a “Facilities Sale Agreement,” which had been entered
into by Panhandle and Anadarko in September 1994. See App. Vol. II, Tab L at 99, 101.

                                          -2-
       The district court fully set out the procedural history, facts, and a detailed

analysis of the law in a twenty-two page “Memorandum and Order” filed

January 8, 1997, treating the motions by all parties as motions for summary

judgment, and granting the motions of Panhandle and Anadarko. It denied the

Sherwoods’ motion. See App. Vol. III, Tab V. It would be redundant for us to

restate here what the district court has so ably done. Accordingly, we adopt and

incorporate the district court’s opinion.

       Significantly, the Sherwoods’ appeal does not mount any serious direct

attack on the facts or analysis as such of the district court. Rather, the appeal

asserts that the district court erred in not permitting additional discovery, in not

drawing all inferences in favor of the Sherwoods, and in having an insufficient

evidentiary basis to support a summary judgment. See Appellants’ Reply Br. at

7-8.

                                    DISCUSSION

       We review the grant of summary judgment de novo to determine whether,

based on the pleadings and other documents on file, any genuine issue of material

fact exists. Fed. R. Civ. P. 56(c); see Applied Genetics Int’l, Inc. v. First

Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). We review rulings on

discovery matters for abuse of discretion. GWN Petroleum Corp. v. Ok-Tex Oil

& Gas, Inc., 998 F.2d 853, 858 (10th Cir. 1993).


                                            -3-
       The Sherwoods first argue that before determining whether Anadarko is

currently a licensee, the district court should have allowed discovery so that it

could review all the circumstances of Anadarko’s current status, including the

Facilities Sale Agreement and Panhandle’s and Anadarko’s accounting records. 2

Appellants’ Br. at 14-15, 21. Discovery in this case proceeded as follows. After

filing their petition against Panhandle in July 1996, the Sherwoods served on

Panhandle in August a Request for Admissions, Interrogatories, a Request for

Production of Documents, and a Notice to Take Deposition. App. Vol. I, Tab B.

In particular, these initial discovery requests sought the Facilities Sale

Agreement. 3 See App. Vol. III, Tab S at 343. There was no immediate motion to

compel any of this discovery.

       In October, the Magistrate Judge held a scheduling conference. After being

informed that the parties intended to file Motions for Judgment on the Pleadings,


       2
         The Sherwoods sought discovery of Panhandle’s and Anadarko’s accounting
records because they believed that “[i]f there are no appropriate, contemporaneous
accounting entries in the books and records of each corporation reflecting the financial
reality of the August 15, 1996 reversal transactions, that fact would inescapably lead to
the conclusion the Agreement of Voidance and License Agreement were never intended
to be, or considered by [Panhandle] and Anadarko to be, bona fide transactions.” App.
Vol. III, Tab S at 339.
       3
         The Sherwoods also sought copies of records indicating the volume of gas
transported, compressed, or processed through the facilities, as well as copies of any
income tax returns showing any income tax deduction or benefit that Panhandle may have
realized as a result of the assignment to Anadarko. App. Vol. III, Tab S at 343. At this
point, the Sherwoods did not seek any accounting records.

                                            -4-
the Magistrate entered an initial scheduling order, which, among other things,

created a stay on all discovery proceedings pending disposition of the motions. 4

App. Vol I, Tab J at 74-75. However, the Magistrate’s order provided that if any

party believed further discovery should be conducted, that party should file a

motion to request discovery. App. Vol. I, Tab J at 75. No such motion was filed

by the Sherwoods at the time.

      The day after the hearing, the Sherwoods filed their Motion for Judgment

on the Pleadings, asking the court to declare that the lease had been terminated by

Panhandle’s breach of the covenant against assignment. About two weeks later,

Panhandle filed its Motion for Judgment on the Pleadings, seeking a declaration

that the lease remained in full force and effect, and Anadarko filed a Motion for

Summary Judgment on the forcible detainer action.

      In November, the district court heard oral arguments on the motions, and by

this time, the Sherwoods’ arguments had evolved somewhat. In addition to

asserting that Panhandle’s breach had caused a termination of the lease, the

Sherwoods now argued that it was essential to review the Facilities Sale

Agreement because it would probably show that Panhandle had intentionally

breached the covenant against assignment by assigning the lease through a



      4
       At the time the stay was entered, the only discovery that had been conducted was
the September deposition of Jerald Sherwood. App. Vol. III, Tab T at 359.

                                          -5-
quitclaim conveyance. 5 According to the Sherwoods, a quitclaim conveyance

would mean that Panhandle had effectively abandoned the lease and would

therefore allow the Sherwoods to rescind the lease. In response, Panhandle and

Anadarko offered to provide the Facilities Sale Agreement for the court to review

in camera. App. Vol. IV at 38-41, 46-48. The court declined the offer, finding

such review unnecessary.

       In December, more than one month after the hearing on the motions, the

Sherwoods filed a Motion for Allowance of Discovery, seeking, in particular, the

Facilities Sale Agreement as well as accounting records, and requesting a stay on

all pending motions until discovery was complete. App. Vol. III, Tab R. At this

point, the Sherwoods’ arguments had evolved yet again. Now, the Sherwoods

argued that because the voidance agreement between Panhandle and Anadarko

was governed by the Facilities Sale Agreement, it was likely a “sham transaction

without legal effect.” App. Vol. III, Tab S at 337. In response, both Panhandle

and Anadarko again offered to provide the Facilities Sale Agreement, this time to

the Sherwoods under a protective order. App. Vol. III, Tab T at 360; id., Tab U

at 371. The Sherwoods did not accept this offer. 6


      The Sherwoods raised this argument for the first time in their response to
       5

Panhandle’s Motion for Judgment on the Pleadings. See App. Vol. II, Tab N at 231-32.
       6
        The offer to provide the Facilities Sale Agreement was made on December 19,
1996, three weeks before the district court’s ruling, and the Sherwoods do not argue that
                                                                             (continued...)

                                            -6-
       Based on this procedural history, we are unpersuaded that the district court

abused its discretion in refusing the requested discovery. The district court had

before it and carefully considered the pertinent documents—the original

Assignment and Conveyance, the Agreement of Voidance, and the License

Agreement. In the absence of a direct allegation of fraud, an allegation which the

Sherwoods do not make, there was no reason for the court to doubt the validity of

these documents. In addition, we note that many of the Sherwoods’ concerns

regarding Anadarko’s current status as either an assignee or a licensee may have

been resolved had they taken the opportunity to review the Facilities Sale

Agreement. We can hardly fault the court for declining to review a document that

the Sherwoods themselves chose not to review.

       As for the accounting records, although the Sherwoods knew about the

agreement of voidance and the license agreement when Panhandle filed its

Answer in August, they did not seek discovery on the bookkeeping entries until

December, after the motions had been filed and the court had held a hearing. 7 See

App. Vol. III, Tab R at 328; see generally Worm v. American Cyanamid Co., 5

F.3d 744, 749 (4th Cir. 1993) (finding no abuse of discretion and upholding the


       (...continued)
       6

they had insufficient time to act upon it.
       7
         Although the Sherwoods did list the accounting records as relevant documents in
their initial Rule 26(a)(1) disclosures in October, they did not actually request these
records in discovery until December.

                                             -7-
denial of motion for additional discovery because there had been adequate time

for discovery and the requesting party had not made a timely request); Turnage v.

General Electric Co., 953 F.2d 206, 208-09 (5th Cir. 1992) (finding no abuse of

discretion and upholding the denial of a discovery motion because requesting

party had failed to make the request until trial was imminent and the discovery

deadline was impending).

      The Sherwoods’ second argument is that when all inferences from the

evidentiary record are drawn in the their favor, it is evident that the evidentiary

record was insufficient to support an entry of summary judgment against them.

Appellants’ Reply Br. at 8. However, the Sherwoods’ assertions regarding the

accounting records and the Facilities Sale Agreement do not require the court to

draw reasonable inferences, but instead require the court to inappropriately

engage in mere speculation. Contrary to the Sherwoods’ assertion, we do not

draw a negative inference from Panhandle’s failure to produce the Facilities Sale

Agreement, see Appellants’ Br. at 15-16, because, as described above, Panhandle

did in fact offer to produce the document.

      The Sherwoods also challenge the district court’s interpretation of a letter

sent by Jana Hamilton, a Panhandle employee, to Jerald Sherwood stating that,

“As the existing Lease is not assignable from Panhandle to Anadarko, Anadarko

will be negotiating their own Lease covering this site. When that has been


                                          -8-
accomplished, Panhandle will execute a Release of Lease and have it recorded in

Morton County, Kansas.” App. Vol. II, Tab P at 279. Based on this language, the

court inferred that Panhandle had not abandoned the lease, an inference which the

Sherwoods now assert was unreasonable. See Appellants’ Br. at 18. We

disagree. In fact, the district court’s conclusion did not require an inference at

all, but was supported by the explicit language of the letter. It is also significant

that the Sherwoods do not dispute the fact that Panhandle did not and has not

executed and recorded a release of the lease.

      We conclude, therefore, that the district court did not abuse its discretion in

not allowing the requested discovery, did not fail to accord favorable, permissible

inferences to the Sherwoods, and did have an adequate evidentiary basis upon

which to grant summary judgment. We further conclude, as did the district court,

that no genuine issues of material fact remain, and summary judgment was

appropriately entered against the Sherwoods.




                                          -9-
                                  CONCLUSION

      We have fully considered every argument adequately raised and developed

by the Sherwoods in the district court and in their brief-in-chief on appeal,

addressing those which warranted discussion. As stated above, we conclude that

the district court did not err. Accordingly, the judgment of the district court in

favor of Panhandle and Anadarko is AFFIRMED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -10-
