                                                                                           August 27 2013


                                           DA 12-0666

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2013 MT 241



IRENE M. MOERMAN and JOHN H. MOERMAN,

              Plaintiffs and Appellants,

         v.

PRAIRIE ROSE RESOURCES, INC.,
a North Dakota Corporation,

              Defendant and Appellee.



APPEAL FROM:            District Court of the Seventh Judicial District,
                        In and For the County of Wibaux, Cause No. DV 11-11
                        Honorable Richard A. Simonton, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Brian D. Lee; Lee Law Office, P.C.; Shelby, Montana

                For Appellee:

                        Albert R. Batterman; Batterman Law Offices, P.C.; Baker, Montana



                                                    Submitted on Briefs: May 28, 2013

                                                               Decided: August 27, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Irene and John Moerman appeal the judgment and order of the District Court for

the Seventh Judicial District, Wibaux County, denying their claim that the oil and gas

lease at issue in this case has expired or has been forfeited. We affirm.

¶2     We address the following issues on appeal:

¶3     1. Whether the District Court correctly concluded that the parties’ oil and gas

lease remained in effect.

¶4     2. Whether the District Court was correct in awarding Prairie Rose Resources,

Inc. (Prairie), its attorney fees.

                            Factual and Procedural Background

¶5     Irene and John Moerman (the Moermans) lived on a ranch in Wibaux County,

Montana, until 1995, when they sold the ranch to Jim Kane. John’s father, Anton

Moerman, had acquired the ranch (which included both the surface and mineral estates

with the exception of coal) via a land patent. The Moermans, who are now divorced,

reserved for themselves life estates to the mineral rights on the ranch with the remainder

to vest in their three children. The well in question was originally drilled almost thirty

years ago, but was subsequently shut in and abandoned.

¶6     In 2006, Prairie, an oil and gas development company incorporated in North

Dakota, leased the well from the Moermans, but failed to bring the well into production

during the lease period. Consequently, the 2006 lease terminated. In June 2010, the




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Moermans each1 signed a new Oil and Gas Lease with Prairie. These leases were for six

months with the primary term of each lease from June 1, 2010, to December 1, 2010.

Michael Gleason, Prairie’s president, paid the Moermans $32,000 for the leases.

¶7    The leases granted to Prairie the exclusive right to the oil and gas in the south half

of Section 30, Township 18 North, Range 59 East, M.P.M., for exploration and

development purposes. The leases required that Prairie pay the Moermans a royalty of

one-eighth of all oil produced and saved from the leasehold premises. As to the term, the

leases provided:

              It is agreed that this lease shall remain in force for a term ending
      December 1, 2010 and as long thereafter as oil or gas of whatsoever nature
      or kind is produced from said leased premises or on acreage pooled
      therewith, or drilling operations are continued as hereinafter provided. If,
      at the expiration of the primary term of this lease, oil or gas is not being
      produced on the leased premises or on acreage pooled therewith but Lessee
      is then engaged in drilling or re-working operations thereon, then this lease
      shall continue in force so long as operations are being continuously
      prosecuted on the leased premises or on acreage pooled therewith; and
      operations shall be considered to be continuously prosecuted if not more
      than one hundred eighty (180) days shall lapse between the completion or
      abandonment of one well and the beginning of operations for the drilling of
      a subsequent well. If after the discovery of oil or gas on said land or on
      acreage pooled therewith, the production thereof should cease from any
      cause after the primary term, this lease shall not terminate if Lessee
      commences additional drilling or re-working operations within one hundred
      eighty (180) days from the date of cessation of production or from date of
      completion of dry hole. If oil or gas shall be discovered and produced as a
      result of such operations at or after the expiration of the primary term of
      this lease, this lease shall continue in force so long as oil or gas is produced
      from the leased premises or on acreage pooled therewith.



1
  Because the Moermans were divorced, two separate leases were executed; however, the
terms of the leases are identical.


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¶8      Prairie assigned the leases to PB Oil Company, LLP (PB Oil),2 an oilfield service

company operating in the Sidney, Montana, area, subject to the reservation of a small

overriding royalty interest. PB Oil then contracted with TOI Operating, Inc. (TOI) as the

bonded contractor to bring the well into production.

¶9      Keith Carver, a petroleum engineer working for both PB Oil and TOI, worked to

get the well into production. Carver testified that because of the high demand for drilling

rigs, he was unable to get a “work-over rig” to the well site until November 2010. Carver

further testified that he constructed a pad for the pump, installed the hardware and

equipment necessary to produce oil at the site, and replaced the pumping unit. Carver

testified that he started the well up on November 29, 2010, to make sure it would

produce, but he had to leave the site early due to a blizzard. Carver returned to the site on

December 1, 2010, but he was prevented from returning the following day due to the

severe weather conditions.

¶10     On December 9, 2010, Carver again managed to get to the well to prepare the site

for inspection by the Montana Board of Oil and Gas Conservation (BOGC).                  An

inspector from BOGC visited the site on December 10 and 13, 2010. The inspector

reported that the well was producing and that there was over seven feet of oil in the

storage tanks. The BOGC referred to this well as the “Moerman 14-30.”

¶11     Gleason called John Moerman on December 10, 2010, to notify him that the well

was producing. The record indicates that John Moerman failed to inform his ex-wife of



2
    PB Oil was not a party to this action.

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Gleason’s call. The record further indicates that John attempted to testify at trial, but due

to health and memory issues, he was excused.

¶12    Gleason contracted with Shell Oil Corp. to purchase the oil from Moerman 14-30,

but before the oil could be sold, Gleason was required to obtain a mineral title opinion to

demonstrate clear title to the oil. Gleason contacted several attorneys throughout the

latter part of 2010 and the early part of 2011, but because of the growth of the Bakken oil

fields in North Dakota, there was a significant backlog in the production of title opinions.

Gleason testified at the January 19, 2012 trial that he expected to have a completed title

opinion by February 15, 2012, after which time he could begin selling the oil.

¶13    While Prairie was working to produce oil at Moerman 14-30 in the south half of

Section 30, and to bring it to market, the Moermans leased the mineral rights to the north

half of Section 30 to another company. Irene testified that because she had not received

notice that Moerman 14-30 was producing, she assumed the leases with Prairie had

expired in December 2010. Because Irene wished to lease the mineral rights to the south

half of Section 30 to the same drilling company to which the Moermans had leased the

mineral rights to the north half of Section 30, the Moermans’ attorney sent a letter to

Prairie dated February 18, 2011, requesting that Prairie release those leases. Although

Gleason later acknowledged that he had received the Moermans’ letter, he did not

respond.

¶14    Gleason testified that the cost to Prairie and TOI to get Moerman 14-30 producing

was approximately $150,000. In addition, Carver testified that if the well was leased out

from under him, he would either have to plug the well or sell the well bore, all of which


                                          5
would result in his incurring significant losses. Consequently, Prairie declined to cancel

the leases.

¶15    On July 27, 2011, the Moermans filed a complaint for declaratory judgment

claiming that their oil and gas leases with Prairie had expired.           The Moermans

complained that they were unable to re-lease the premises unless Prairie’s lease was

voided. Prairie counterclaimed for a declaration that the lease remained in effect, and

alleged that the Moermans had breached the contract as well as the implied covenant of

good faith and fair dealing.

¶16    A bench trial was held on January 19, 2012. On February 15, 2012, the District

Court issued its Findings of Facts, Conclusions of Law, Judgment and Order wherein the

court found the lease to be in full force and effect, and awarded Prairie its attorney fees

and costs pursuant to § 82-1-202, MCA.         Notably, the court also pointed out that

“Defendant should consider that with better communication between it and Plaintiffs, this

action may not have been filed.” The Moermans appealed.

                                   Standard of Review

¶17    This Court reviews the findings of fact of a district court sitting without a jury to

determine if the court’s findings are clearly erroneous. Varano v. Hicks, 2012 MT 195,

¶ 7, 366 Mont. 171, 285 P.3d 592 (citing Olsen v. Milner, 2012 MT 88, ¶ 16, 364 Mont.

523, 276 P.3d 934). We review a district court’s conclusions of law to determine whether

the court’s interpretation of the law is correct. Somont Oil Co., Inc. v. A. & G. Drilling,

Inc., 2002 MT 141, ¶ 14, 310 Mont. 221, 49 P.3d 598 (Somont I), overruled on other

grounds by Johnson v. Costco Wholesale, 2007 MT 43, 336 Mont. 105, 152 P.3d 727


                                         6
(citing Carbon County v. Union Reserve Coal Co., 271 Mont. 459, 469, 898 P.2d 680,

686 (1995)).

¶18    In addition, our standard of review of a trial court’s order granting or denying

attorney fees and costs is whether the court abused its discretion. Somont Oil Co., Inc. v.

A. & G. Drilling, Inc., 2006 MT 90, ¶ 25, 332 Mont. 56, 137 P.3d 536 (Somont II),

overruled on other grounds by Johnson v. Costco Wholesale, 2007 MT 43, 336 Mont.

105, 152 P.3d 727 (citing Gullett v. Van Dyke Const. Co., 2005 MT 105, ¶ 12, 327 Mont.

30, 111 P.3d 220).

                                         Issue 1.

¶19    Whether the District Court correctly concluded that the parties’ oil and gas lease
       remained in effect.

¶20    The Moermans contend that the undisputed evidence demonstrates that the

Moerman 14-30 well did not produce oil until after the expiration of the primary term of

the lease. The Moermans also contend that even if Moerman 14-30 had produced oil in

sufficient quantities to extend the lease beyond the primary term, Prairie failed to prove

that the five-month cessation of production in 2011 was authorized under the temporary

cessation of production doctrine. Consequently, the Moermans argue that based on either

of these scenarios, the lease automatically terminated and they are entitled to an order

declaring the same.

¶21    Prairie contends that the uncontroverted evidence indicates that Prairie had at all

times acted with diligence in establishing oil production, and that the lease remained in

effect because the Moerman 14-30 well did produce oil prior to the expiration of the



                                         7
primary lease term. Prairie also contends that under the lease, a cessation of production

of less than 180 days would not terminate the lease, and since there has not been a

cessation of production for longer than 180 days, Prairie is entitled to continue to operate

the well.

¶22    In construing an oil and gas lease, courts generally apply the rules of contract

interpretation. Sandtana, Inc. v. Wallin Ranch Co., 2003 MT 329, ¶ 26, 318 Mont. 369,

80 P.3d 1224. In doing so, we have stated that the “ ‘intention of the parties is to be

pursued if possible,’ ” and that this intention “ ‘is to be gathered from the entire

agreement, not from particular words or phrases or disjointed or particular parts of it . . . .

The contract must be viewed from beginning to end, and all its terms must pass in

review; for one clause may modify, limit or illuminate the other.’ ” Sandtana, ¶ 26

(quoting Federal Land Bank v. Texaco, Inc., 250 Mont. 471, 474, 820 P.2d 1269, 1271

(1991); Lee v. Lee Gold Mining Co., 71 Mont. 592, 599, 230 P. 1091, 1093 (1924)).

       “It is well established that a court, in interpreting a written instrument, will
       not isolate certain phrases of that instrument in order to garner the intent of
       the parties, but will grasp the instrument by its four corners and in light of
       the entire instrument, ascertain the paramount and guiding intention of the
       parties.”

Sandtana, ¶ 26 (quoting Federal Land Bank, 250 Mont. at 474-75, 820 P.2d at 1271;

Steen v. Rustad, 132 Mont. 96, 102, 313 P.2d 1014, 1018 (1957)).

¶23    Because oil and gas leases deal with property of a highly speculative nature, “the

protection of the interests of the lessor is considered of paramount importance.”

Stanolind Oil & Gas Co. v. Guertzgen, 100 F.2d 299, 300 (9th Cir. 1938). Thus, we

construe oil and gas leases liberally in favor of the lessor and strictly against the lessee.


                                           8
Clawson v. Berklund, 188 Mont. 48, 53, 610 P.2d 1168, 1171 (1980). And, while

forfeitures are not favored in other areas of the law, forfeitures of oil and gas leases are

favored “to prevent lands being burdened by profitless and unworked leases.” Fey v.

A. A. Oil Corp., 129 Mont. 300, 316, 285 P.2d 578, 586 (1955); see also Christian v.

A. A. Oil Corp., 161 Mont. 420, 425, 506 P.2d 1369, 1372 (1973).

¶24    In this case, the Moermans contend that there was no oil production prior to

December 1, 2010, thus the lease automatically terminated on that date. The Moermans

also contend that assuming the lease did not terminate on December 1, 2010, it would

have terminated by May 2011, because there was a cessation of production in paying

quantities between December 2010, and May 2011. We have several problems with the

Moermans’ arguments.

¶25    First, regarding the Moermans’ contention that the well did not produce oil prior to

December 1, 2010, thereby terminating the lease, the Moermans have not provided any

evidence to refute Prairie’s contention that oil was produced prior to the December 1,

2010 deadline. Keith Carver, the petroleum engineer who worked the well for PB Oil

and TOI, testified as follows:

              A. . . . At 11/29 we started the well up to make sure it would
       produce, and we left the well site early, shutting the well down because of a
       blizzard. And then we didn’t go up there until after—into December and
       actually establish production with the well.
              Q. But you continued operations up to and through December 1st?
              A. Yes.

The Moermans interpret Carver’s statement that they “established production” into

December, to mean that no oil was produced on November 29, 2010, when Carver started



                                         9
up the well. However, the District Court determined that Carver’s statement meant that

some oil was produced from the well on November 29, 2010. The inference drawn by the

District Court is correct since “established production” implies starting up the pump and

seeing it produce oil. In addition, Carver also testified that he was at the well site on

December 1, 2010.      His testimony that they “didn’t go up there until after—into

December and actually establish production with the well” could also be interpreted to

mean that they established production on December 1, 2010, the last day of the primary

term of the lease.

¶26    Second, contrary to the Moermans’ contentions, the lease clearly states that the

production of oil is not the only thing that will prevent the lease from terminating on

December 1, 2010. Rather, the lease states that it “shall remain in force for a term ending

December 1, 2010 and as long thereafter as oil or gas of whatsoever nature or kind is

produced from said leased premises . . . or drilling operations are continued as

hereinafter provided.” (Emphasis added.) The lease goes on to state that “[i]f, at the

expiration of the primary term of this lease, oil or gas is not being produced on the leased

premises . . . but Lessee is then engaged in drilling or re-working operations thereon,

then this lease shall continue in force so long as operations are being continuously

prosecuted on the leased premises . . . . (Emphasis added.)

¶27    In this case, Carver was actively engaged in re-working operations at the well both

before and after December 1, 2010. Carver moved a work-over rig to the site, engineered

the well to produce, constructed a pad for the pump, installed the hardware and

equipment necessary to produce oil at the site, and replaced the pumping unit. Carver


                                         10
started the unit pumping on November 29, 2010, but was forced off the site by a blizzard.

In addition, service records indicate that Carver plowed the well out on December 1,

2010, but he was precluded from getting to the site the next day due to the harsh weather.

Carver successfully got to the site and produced the well again for a state inspector on

December 9 and 10, 2010.

¶28    Third, the Moermans cite this Court’s decision in Somont I for the proposition that

“the cessation of production in paying quantities” will trigger the automatic termination

of a lease. See Somont I, ¶ 26. Thus, they maintain that the cessation of production at

Moerman 14-30 for the five months from December 2010, to May 2011, terminated their

lease with Prairie.

¶29    We stated in Somont I that “once a plaintiff establishes that an oil and gas lease

has halted production, the burden shifts to the defendant to prove that the cessation was

temporary and not permanent. A temporary cessation in production will not trigger an

automatic termination of the lease,” but “[a] cessation in production will only be deemed

temporary when it is caused by a sudden stoppage of the well or a mechanical breakdown

of the equipment used in connection with the well, or the like.” Somont I, ¶¶ 28, 33.

¶30    However, we also stated in Somont I, that this does not hold true in every case, but

only “in most oil and gas leases operating pursuant to the conditions of the secondary

term.” Somont I, ¶ 26 (emphasis added). Under the terms of the lease at issue in this

case, the secondary term allows for a cessation of production “from any cause” not just

for “a sudden stoppage of the well or a mechanical breakdown,” provided that the

cessation of production is less than 180 days:


                                         11
       If after the discovery of oil or gas on said land . . . the production thereof
       should cease from any cause after the primary term, this lease shall not
       terminate if Lessee commences additional drilling or re-working operations
       within one hundred eighty (180) days from the date of cessation of
       production or from date of completion of dry hole. [Emphasis added.]

¶31    We further held in Somont I, that “[t]he diligent lessee who takes immediate steps

to rectify a sudden halt in production will not lose his or her investment” during such a

temporary stoppage. Somont I, ¶ 32.

       “The test for determining whether there was sufficient production or
       whether the lessee was acting with reasonable diligence in producing and
       marketing the gas from the leased lands is the diligence which would be
       exercised by the ordinary prudent operator having regard to the interests of
       both lessor and lessee. This is a question of fact that will depend upon the
       facts and circumstances of each case.”

Somont I, ¶ 27 (quoting Christian, 161 Mont. at 427-28, 506 P.2d at 1373).

¶32    In this case, Gleason testified that he had contracted with Shell Oil Corp. to

purchase the oil from Moerman 14-30, but before the oil can be sold, he has to obtain a

mineral title opinion to demonstrate that he has clear title to the oil. Gleason further

testified that he began contacting attorneys to get a title opinion beginning in September

2010, but because of the growth of the Bakken oil fields in North Dakota, there is a

significant backlog in the production of title opinions. Gleason also testified that once

this legal hurdle is overcome and they can start selling the oil, the well should initially

produce 17 to 20 barrels of oil per day which will stabilize at 12 to 14 barrels per day,

and at $100 per barrel, that will be a profitable amount.

¶33    Based on the foregoing, we hold that the District Court correctly concluded that

the parties’ oil and gas leases to the Moerman 14-30 well remained in effect.



                                         12
                                          Issue 2.

¶34    Whether the District Court was correct in awarding Prairie its attorney fees.

¶35    The District Court awarded Prairie its attorney fees under § 82-1-202(1), MCA,

because the Moermans failed to establish that the lease to the Moerman 14-30 well had

been forfeited. Section 82-1-202(1), MCA, provides:

               If the lessee or assignee of a lease neglects or refuses to execute a
       release as provided by this part, the owner of the leased premises may sue
       in any court of competent jurisdiction to obtain the release, and in that
       action the owner may also recover from the lessee or the lessee’s successor
       or assigns the sum of $100 as damages, all costs, together with reasonable
       attorney fees for preparing and prosecuting the suit, and any additional
       damages that the evidence in the case warrants. . . . If in the action the
       plaintiff fails to establish the forfeiture of the lease, attorney fees must be
       allowed to the lessee or assignee of the lease. Issues in regard to attorney
       fees must be determined in the same manner as other issues in those
       actions. [Emphasis added.]

¶36    As we indicated previously in this Opinion, we review a trial court’s order

granting or denying attorney fees and costs to determine whether the trial court abused its

discretion. Somont II, ¶ 25 (citing Gullett, ¶ 12). Finding no abuse of discretion in this

case, we hold that because the Moermans failed to establish that the leases in question in

this case had been forfeited, Prairie’s attorney fees in defending this action are

recoverable under § 82-1-202, MCA.

¶37    In addition, in its response brief on appeal, Prairie requested that it be awarded its

attorney fees incurred on appeal.     The Moermans did not refute Prairie’s argument

regarding attorney fees on appeal as the Moermans declined to file a reply brief.

Consequently, we conclude that pursuant to § 82-1-202, MCA, Prairie is also entitled to




                                         13
its attorney fees on appeal, and we remand to the District Court for a determination of

those fees.

¶38    Affirmed.


                                                     /S/ LAURIE McKINNON


We Concur:

/S/ MICHAEL E WHEAT
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
/S/ JIM RICE




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