          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                     FILED
                                                                 October 11, 2007
                                     No. 06-30978
                                                               Charles R. Fulbruge III
                                                                       Clerk
IN THE MATTER OF: CRUTCHER-TUFTS
RESOURCES, INC.; CRUTCHER-TUFTS
RESOURCES LP,

                                                                           Debtors
---------------------------------

TUFTS ENERGY LLC,

                                                                         Appellant

v.

TREVOR G. BRYAN, as Responsible Party of
Crutcher-Tufts Resources LP and Crutcher-Tufts
Resources Inc.; TUFTS OIL & GAS-III LP; CRUTCHER
OIL & GAS-III LP; JDT/CLT FAMILY TRUST; GPH/LTH
FAMILY TRUST; PRISCILLA EAVES REISS; JOHN
CRUTCHER; MICHAEL E. RODAN; CATHY RODAN
BOWMAN; CHARLES A. DOBIE; DENNIS E. WEESE;
CRUTCHER-TUFTS RESOURCES INC., through Trevor
G. Bryan, Liquidator; J. DAVIS TUFTS III and CLAUDIA
LIBERTO TUFTS CHILDRENS TRUST; 241 TRUST;
PETER BECKER, in place of the Succession of Penelope
Becker; CHRISTIAN BECKER,

                                                                         Appellees


                      Appeal from the United States District Court
                         for the Eastern District of Louisiana


Before JOLLY, DAVIS, and WIENER, Circuit Judges.
                                  No. 06-30978

PER CURIAM:

      Appellant Tufts Energy LLC appeals the judgment of the bankruptcy
court, as affirmed by the district court, rejecting Appellant’s claim of entitlement
to receive an equity interest in Crutcher-Tufts Resources LP by virtue of a
“Membership Agreement.” The bankruptcy court concluded that the
determinative provision of that contract did indeed constitute a suspensive
condition under applicable provisions of the Louisiana Civil Code, but that the
condition was not fulfilled because of Appellant’s faults and failures and not
through any legal fault of Appellees or any of them. We have reviewed the facts
and the law as related by the briefs and oral arguments of counsel for the
respective parties, as well as the record on appeal, including, especially, the
Memorandum Opinion rendered by the United States Bankruptcy Court on
November 15, 2005. The conclusion we reach as the result of our consideration
and review is that the judgment of the bankruptcy court should be, and hereby
is, affirmed for the reasons set forth in its clear, comprehensive, and eminently
correct opinion. We therefore adopt the bankruptcy court’s Memorandum
Opinion in its entirety, incorporate it by reference herein, and annex it hereto
as the opinion and judgment of this court.
AFFIRMED.




                                         2
                             No. 06-30978

                UNITED STATES BANKRUPTCY COURT


                  EASTERN DISTRICT OF LOUISIANA


IN RE:
CRUTCHER-TUFTS RESOURCES, INC.              CASE NO. 03-17408

                                            SECTION B
Debtor
                                            CHAPTER 11
                                            INVOLUNTARY
_____________________________________

IN RE:
                                            CASE NO. 03-17409
CRUTCHER TUFTS RESOURCES, L.P.
                                            SECTION B
Debtor
                                            CHAPTER 11
                                            INVOLUNTARY
                                            Jointly Administered
_____________________________________



                                            ADVERSARY PROCEEDING
TREVOR G. BRYAN, AS RESPONSIBLE
PARTY OF CRUTCHER-TUFTS
                                            CASE NO. 04-1161 SECTION
RESOURCES, INC. and
CRUTCHER-TUFTS RESOURCES, L.P.
                                            B
Plaintiffs

VERSUS

TUFTS OIL & GAS-III, L.P. ET AL

Defendants
_____________________________________



                                  3
                                         No. 06-30978

                               MEMORANDUM OPINION

       This matter came before the court on June 13 through 16, 2005 as a trial on
       the

complaint of Trevor G. Bryan, as responsible party of Crutcher-Tufts Resources,
Inc. and Crutcher-Tufts Resources, L.P., the debtors, seeking declaratory judgment
as to whether defendant Tufts Energy, LLC has a limited partnership interest in
Crutcher Tufts Resources, L.P. For the reasons expressed, the court finds that
section 13 of the management agreement contains a valid suspensive condition, but
that the evidence does not support a finding that the fulfillment of that condition was
frustrated by either Crutcher-Tufts Resources, L.P. or Crutcher-Tufts Resources,
Inc.

I.     Background Facts

       Crutcher-Tufts Resources, Inc., (“CRT-Inc.”) is the general partner in
       Crutcher

Tufts Resources, L.P., (“CTR-LP”). Both entities are businesses owned in part by

various members of the Crutcher family and the Tufts family.1 J. David Tufts, III

(“David Tufts”) indirectly holds an interest in CTR-Inc., sits on its board of
directors

and is its president and assistant secretary. The other board members of CTR-Inc.
at

the relevant time were Fred Tufts, Robert Tufts, Albert Crutcher, Mary Crutcher
and

James Reiss, Albert Crutcher’s son-in-law. Tufts Energy is an enterprise that is

       1

        CTR-Inc. is owned by the J. David Tufts, III and Claudia Liberto Tufts Children’s Trust (200
shares), the JDT/RGT Family Trust (400 shares) and the 241 Trust (400 shares). The limited partners
of CTR-LP are Tufts Oil & Gas, L.P., Crutcher Oil & Gas-III, L.P., JDT/CLT Family Trust,
GPH/LTH Family Trust, Succession of Penelope Becker, Priscilla Eaves Reiss, John Crutcher,
Michael E. Rodan, Cathy Rodan Bowman, Charles A. Dobie, Dennis E. Weiss and Crutcher-Tufts
Resources, Inc.

                                                 4
                                         No. 06-30978

owned and controlled by David Tufts. CTR-LP and Tufts Energy entered into a
management agreement on July 7, 2000. The management agreement was drafted
primarily by Jeff Zlotky, an attorney with Thompson & Knight, at the direction of
David Tufts. There was minimal, if any, input from either CTR-LP, the
counter-party to the agreement or the other board members of CTR-Inc., who were
required to vote on the agreement. Testimony at trial showed that the other board
members were not given a draft of the management agreement until July 6, 2000,
one day before the board had to vote on the agreement. The agreement provided
that Tufts Energy, as manager, would supply “general and administrative
management services” to CTR-LP as defined in section 2 of the management
agreement.2 Section 5 of the agreement, entitled “Compensation” further provides:
“In consideration of the performance of the General and Administrative Services
pursuant hereto, the Partnership shall pay the Manager the G&A Payment in
advance of each month on or before the first day of each month.”3 The agreement
was approved by a majority of the board of directors of CTR-Inc.,4 and Albert
Crutcher was designated as the representative with the




authority to execute the agreement.5

       After entering into the agreement, Tufts Energy apparently provided

management services to CTR-LP for approximately two years, receiving regular
G&A



       2



       Trial Exhibit 122.
       3



       Id at p. 4.
       4

       Only Fred Tufts, David Tufts brother, voted against the resolution authorizing the agreement.
       5

       David Tufts abstained from the board’s vote because of his interest in Tufts Energy, the
counter-party to the contract. He also was not able to act as the president of CTR-LP for purposes
of executing the contract because of his interest in Tufts Energy.

                                                5
                                     No. 06-30978

payments of $66,667 per month as set forth in the agreement. The parties do not

contend that Tufts Energy did not perform its management duties, nor do they
contend

that the CTR-LP failed to pay Tufts Energy according to the agreement.

      Section 9 of the agreement provided:

      The initial term of this Agreement shall extend from the date hereof to the
      close of business on June 30, 2002, provided that this Agreement shall
      continue thereafter for successive one-year terms ending on the close of
      business on June 30 of each succeeding year unless either the Partnership
      or the Manager shall elect to terminate this Agreement upon at least 90
      days written notice to the other party prior to June 30 of any such
      succeeding year.6

On March 7, 2002, the board of directors of CTR-Inc. met and voted not to renew
the

agreement, and thus the agreement was to expire on June 30, 2002. On March 15,

2002, David Tufts called a board meeting that resulted in a resolution that removed

Fred Tufts and James Reiss from the board and replaced them with David Tufts’
wife

and mother. This new board then voted to reinstate the management agreement.
Litigation concerning the validity of this action was pursued by the parties in a state
court proceeding entitled Albert B. Crutcher, et al. v. J. David Tufts, III, et al., No.
2003-9838, Division N, Civil District Court, Orleans Parish. The proceeding was a
quo warranto action as to the validity of the board meeting and the resolution
changing the board’s composition. On February 16, 2005, the Louisiana Fourth
Circuit Court of Appeal issued an opinion and entered a final judgment that the




      6

      Trial Exhibit 122 at page 6.

                                           6
                                      No. 06-30978

resolution attempting to remove the members of the CTR-Inc. board was invalid.7
This meant that the March 7, 2002 vote by the old board not to renew the agreement
was valid, and the management agreement expired on June 30, 2002.

      The bone of contention in this adversary proceeding is none of the above but

instead section 13 of the agreement, which reads:

  Right to Earn Partnership Interest in the Partnership. The Manager shall have the
  right to earn twenty five percent (25.0%) of the equity of the Partnership upon the
  achievement by the Partnership of mutually acceptable performance criteria to be
 agreed upon by the board of directors of the general partner of the Partnership and
   the Manager and as acceptable to the lenders under the Senior Credit Agreement
      and the Subordinated Credit Agreement, and in conjunction with a mutually
     acceptable independent third party consultant (giving due consideration to the
      amount of the G&A Payment as compared to the Manager’s actual costs of
 rendering services pursuant to this Agreement).8The parties strenuously disagree as
to the effect of section 13. The responsible party argues that section 13 is simply an
    agreement to agree and as such is not an enforceable provision of the contract.
Tufts Energy argues that section 13 of the agreement is a valid suspensive condition,
the fulfillment of which was frustrated by CTR-LP. Tufts Energy further argues that
    under Louisiana Civil Code Article 1772, the result of this frustration is that the
      condition is deemed fulfilled, and it is entitled to a 25% interest in CTR-LP.
        Prior to beginning the trial on the complaint of the responsible party, the court

limited the issues to be presented at trial to 1) whether section 13 of the management

agreement constitutes a purely potestative or simply potestative condition; and, 2)

whether, if the provisions of section 13 of the management agreement are determined




      7



      Crutcher v. Tufts, 898 So.2d 529 (La. App. 4 Cir. 2005).
      8

      Trial Exhibit 122 at page 8.

                                              7
                                           No. 06-30978

to be a simply potestative condition, performance of the condition was frustrated solely

by the acts of Crutcher-Tufts Resources, Inc. and Crutcher-Tufts Resources, L.P.9

II.    Legal Analysis

A.     Purely or Simply Potestative

       According to the court’s order of May 12, 2005, the first of two issues to be

decided is whether section 13 of the management agreement constitutes a purely

potestative or simply potestative condition under the governing law contained in the

Louisiana Civil Code. The court’s order was in response to the parties’ motion to limit

the issues to be tried and the accompanying briefs.10 Upon analyzing the relevant Civil

Code articles, however, the court finds that the concept of simply and purely

potestative conditions no longer exists under Louisiana law. Thus, the court analyzes


the following articles of the Louisiana Civil Code instead.

1.     Louisiana Civil Code Articles 1767 and 1770

       The 1985 revisions to the Louisiana Civil Code specifically address
       conditional




       9

       Order dated May 12, 2005 (P-161).
       10

         The parties initially framed the issue as a determination of whether or not the condition was
simply or purely potestative, and it was only after the court ruled to set the issues for trial that the
parties began referencing the new Civil Code articles.

                                                   8
                                          No. 06-30978

obligations in Articles 1767 to 1776.11 Article 1767 defines suspensive and
resolutory

conditions.12 Although the definition of suspensive and resolutory conditions did
not

substantively change with the revisions, their treatment in certain circumstances did.

Under the pre 1985 articles of the Civil Code, a suspensive or resolutory condition

could be either casual, potestative or mixed.13 The potestative condition was
defined

as “that which makes the execution of the agreement depend on an event which it is
in the power of the one or the other of the contracting parties to bring about or to
hinder.”14 Article 2034 of the pre 1985 Civil Code then stated “Every obligation is
null, that has been contracted, on a potestative condition, on the part of him who
binds himself.” The next article distinguished between purely and simply
potestative conditions, holding that not all potestative conditions were null.”15




       11

       Pursuant to Acts 1984, No. 331 § 1, effective January 1, 1985, Title III of Book III of the
Louisiana Civil Code of 1870, “Of Obligations” was revised.
       12


         LSA C.C. Art. 1767: “A conditional obligation is one dependant on an uncertain
event. If the obligation may not be enforced until the uncertain event occurs, the condition is
suspensive. If the obligation may be immediately enforced but will come to an end when the
uncertain event occurs, the condition is resolutory.”
       13

       LSA C.C. Art. 2022 (1870).
       14



       LSA C.C. Art. 2024 (1870).
       15

        LSA C.C. Art. 2035 (1870): “The last preceding article is limited to potestative conditions,
which make the obligation depend solely on the exercise of the obligor’s will; but if the condition be,
that the obligor shall do or not do a certain act, although the doing or not doing of the act depends
on the will of the obligor, yet the obligation depending on such condition, is not void.”

                                                  9
                                       No. 06-30978

       The current version of the Civil Code, in Article 1770, eliminates the term

“potestative,” and instead focuses on the concepts of “whim” and “will.”16

Comment

(e) to Article 1770 states that the purpose of the article is to recast the concepts

surrounding simply and purely potestative conditions in the pre 1985 Civil Code in

terms of an implicit dichotomy between the obligor’s “whim,” that is, his exercise of

mere unbridled discretion or arbitrariness and his “judgment,” or exercise of a

considered and reasonable discretion. The comments further explain that the

potestative concept was replaced in the Civil Code by the 1985 revisions because of
the confusion it engendered and the difficulties the concept caused in Louisiana
jurisprudence with respect to the treatment of conditions.17
       In keeping with the changes to the Civil Code, the court will not determine

whether section 13 is a purely or simply potestative condition but instead will address

Section 13 of the agreement in terms of the post-revision Civil Code articles. The court

finds that section 13 contains a suspensive condition. The uncertain event is “the

achievement by the Partnership of mutually acceptable performance criteria.” Upon

the occurrence of that event, the obligation, i.e., the manager’s right to earn 25% of the

equity of the partnership, may be enforced, but the suspensive obligation may only be


       16

        See LSA C.C. Art. 1770: “A suspensive condition that depends solely on the whim of the
obligor makes the obligation null. A resolutory condition that depends solely on the will of the
obligor must be fulfilled in good faith.”
       17

       See LSA C.C. Art. 1770 comment (e).

                                              10
                                    No. 06-30978

enforced when the uncertain event occurs. In the instant case, no party argues that the

uncertain event has occurred. No mutually acceptable performance criteria were ever

established by CTR-LP whereby Tufts Energy could earn 25% of the equity of

CTR-LP.

      The court then turns to Article 1770, which states: “A suspensive condition that

depends solely on the whim of the obligor makes the obligation null.” The responsible

party and various other interested parties in this proceeding argue that section 13

depends solely on the whim of CTR-LP, and is therefore null. Tufts Energy argues

that section 13 does not depend solely on the whim of CTR-LP, and is not null. The

court finds the latter argument is the better position. The language of section 13 reads

that the right to earn the 25% equity interest depends upon the “achievement by the

Partnership of mutually acceptable performance criteria to be agreed upon by the board

of directors of the general partner of the Partnership and the Manager and as acceptable

to the lenders under the Senior Credit Agreement and the Subordinated Credit

Agreement, and in conjunction with a mutually acceptable third


party consultant.”

      The court finds that the terms of section 13 do not depend on the whim of
      CTR

LP as whim is used in article 1770. Comment (d) to Article 1770 states:

      An event which is left to the obligor’s whim is one whose occurrence
      depends entirely on his will, such as his wishing or not wishing

                                          11
                                    No. 06-30978

      something. An event is not left to the obligor’s whim when it is one that
      he may or may not bring about after a considered weighing of interest,
      such as his entering into a contract with a third party.

Section 13 does not state and cannot be read fairly to mean that the manager has the

right to earn a 25% equity interest only if CTR-LP wishes it. Rather, the manager

shall have the right to earn the 25% equity interest, and this right is conditioned
upon

the agreement of criteria to be determined by two parties (the partnership and the

manager), with the input of a third (a mutually acceptable independent third party

consultant), and the veto rights of a fourth party (the lenders). CTR-LP does not

retain unbridled discretion to put forth any criteria it wishes. The criteria must be
agreed to by the manager and approved by the lenders under the Senior and
Subordinated Credit Agreements. Ostensibly the performance criteria should relate
to the performance of some act by the manager that has value to the partnership,
and in return for such act, the partnership would grant the manager a 25% equity
interest. This would place the development of the performance criteria in the
category of a condition that CTR-LP “may or may not bring about after a considered
weighing of interest.”18 For example, CTR-LP cannot unilaterally decide that the
manager’s 25% equity is to be earned by requiring David Tufts to scale Mount
Everest, because neither Tufts Energy nor the lenders would agree to that as a
mutually acceptable performance criteria, and thus, that criteria would be
unenforceable. The respective abilities of Tufts Energy to have input and the
lenders to have veto power in the achievement of the performance criteria leads the
court to the conclusion that the suspensive condition does not solely depend on the
whim of the obligor, and as such, it is not null under the provisions of Article 1770.
       Additionally, the performance criteria giving rise to the right to earn the 25%

equity interest is to be determined in part by “giving due consideration to the amount

of the G&A Payment as compared to the Manager’s actual costs of rendering the

      18

      LSA C.C. Art. 1770 comment (d).

                                          12
                                       No. 06-30978

services pursuant to th[e] Agreement.” The amount of the G&A payment compared

to the actual costs of rendering services is a factor that must be considered by the

partnership when determining the performance criteria. If CTR-LP is required to take

concrete factors such as this into account when determining the performance criteria,

it cannot be said that the decision is entirely dependent on the whim of CTR-LP.

2. “Frustration” under Louisiana Civil Code Article 1772

       Holding that section 13 of the agreement is a valid suspensive condition

necessitates an analysis of Tufts Energy’s second argument that is grounded on article

1772, which reads: “A condition is regarded as fulfilled when it is not fulfilled because

of the fault of a party with an interest contrary to the fulfillment.” Tufts Energy argues

that the fulfillment of section 13 of the agreement was frustrated by CTR-LP through

the actions of Albert Crutcher in his capacity as the “designated officer” of CTR-LP.19

       The responsible party, arguing on behalf of CTR-Inc. and CTR-LP, contends that

CTR-LP did not frustrate the fulfillment of section 13. Rather, the argument put forth

in defense of CTR-LP is that initially it was never asked to develop performance

criteria, and that even had it wanted to develop criteria, it was prevented from doing

so by David Tufts’ refusal to provide certain data related to the G&A expenses incurred

by Tufts Energy in the course of performing its duties under the management


       19

        As noted above, David Tufts, although president of CTR-Inc., was not able to represent
CTR-LP with respect to the management agreement because of his conflicted position as the owner
of Tufts Energy.

                                              13
                                    No. 06-30978

agreement. The responsible party argues that this data was critical to the ability of

CTR-LP to assess Tufts Energy’s performance and develop appropriate performance

criteria under section 13. The language in section 13 as to the actual cost of the G&A

expense was added at the request of Albert Crutcher because he thought the $800,000

annual figure was too high for the G&A payment and wanted CTR-LP to analyze the

G&A payment before agreeing to additional compensation for Tufts Energy.

      David Tufts and Robert Tufts both testified that they raised the issue of the

development of performance criteria at the CTR board meeting on May 23, 2001, as

well as at other times. Fred Tufts, Albert Crutcher and James Reiss testified that the

issue was never discussed at any CTR board meeting. They also denied that David

Tufts had approached them even outside board meetings to discuss performance

criteria. David Tufts testified that he could not point to any minutes of board meetings

that would support his testimony, and indeed the minutes of the CTR-Inc. board

meetings do not reflect that the development of performance criteria was ever

discussed. Nor could David Tufts point to any documents supporting his testimony

even though numerous documents were produced for purposes of this trial. As

president of the board of CTR-Inc., David Tufts was responsible for setting the agenda

of the board meetings; he could have adjusted the agenda for any of the board meetings

to include a discussion and/or vote on the issue of the mutually acceptable performance

criteria, but he did not. As assistant secretary, he was also responsible for keeping


                                          14
                                     No. 06-30978

records of board meetings. If he failed to keep accurate minutes and that later worked

to his detriment, he has only himself to blame. The court finds that the evidence

presented at trial does not support Tufts Energy’s contention that either CTR-LP,

CTR-Inc. or any officer of the corporation refused to discuss the performance criteria,

frustrating the fulfillment of the suspensive condition under Article 1772.

      Albert Crutcher testified that on February 19, 2002 he requested data related to

the G&A expenses from David Tufts so that an evaluation of that data could be made.

This request was explained as an attempt to begin discussing the performance criteria

in accordance with the provision of section 13 that required any performance criteria

to be developed “giving due consideration to the amount of the G&A Payment as

compared to the Manager’s actual costs of rendering the services pursuant to this

Agreement.” In stark contrast to the lack of written evidence on the part of Tufts

Energy to support its contentions, Albert Crutcher points to both a letter he wrote

requesting the data,20 and a letter written by David Tufts in response, in which David

Tufts stated that he had no obligation to provide the requested data.21 Although David

Tufts also stated in the letter that he was nonetheless willing to provide the data, he did




      20

      Trial Exhibit 187.
      21



      Trial Exhibit 196.

                                            15
                                          No. 06-30978

not in fact do so despite repeated requests from Albert Crutcher.22                   David Tufts

admitted in his testimony that he knew that the language in section 13 meant that Tufts

Energy had an obligation to furnish the actual costs of rendering the services but

weakly argued that he read the language as requiring that the information be furnished

in connection with an independent third party consultant. The court finds that this

evidence further supports a finding that CTR-LP did not frustrate the negotiation of the

performance criteria.

       Tufts Energy contends that because Albert Crutcher had an interest in an entity

that was a limited partner in CTR-LP, he had an interest contrary to enabling Tufts

Energy to earn a limited partnership interest in CTR-LP. Tufts Energy contends that

if it were allowed to earn a 25% interest in the partnership, the interests of Albert

Crutcher would be reduced, and this led to his opposition to any attempts to negotiate

mutually acceptable performance criteria. As stated above, David Tufts testified that

whenever he tried to discuss performance criteria with Albert Crutcher he was

rebuffed. Tufts Energy asserts, correctly, that under Delaware law, a corporation can

only act through its officers and agents.23 Tufts Energy also asserts that Albert

Crutcher in his capacity as the “designated officer” of CTR-Inc. acted to frustrate the


       22

       The February 19, 2002 letter, Exhibit 187, was the first of three written requests by Mr.
Crutcher for the data. See letters of March 15, 2002, Exhibit 201, and January 14, 2003, Exhibit 216.
       23



       Hessler, Inc. v. Farrell, 226 A.2d 708 (Del. 1967).

                                                16
                                          No. 06-30978

suspensive condition of developing performance criteria. Tufts Energy’s argument

ignores, however, that while Albert Crutcher may have had interests in CTR-Inc., the

general partner, and CTR-LP, the counter-party to the management agreement, at least

Albert Crutcher’s interests were all on the side of the corporate entity and partnership

he was representing.

       Charges of conflicting interest on the part of Albert Crutcher do not come well

from David Tufts. He was a member of the board of CTR-Inc., as well as its president

and assistant secretary; he too had an indirect limited partnership interest in

CTR-LP.24He was in addition, however, the owner of Tufts Energy. As such, his

actions in drafting a contract between two parties in which he had an interest are

subject to greater scrutiny than the actions of a non-conflicted board member. David

Tufts put himself into a precarious position when he orchestrated this deal, and as an

attorney and experienced businessman, he should have recognized that. Instead, he

pushed through a management agreement that, although drafted by CTR-Inc.’s

attorney, was essentially dictated by him. David Tufts fully recognized his conflicting

interest and tried to claim that the lenders required the manager to have an interest in

the partnership. Even if the court accepted the position that the 25% equity interest

Tufts Energy hoped to earn was the idea of the lenders, it carries little or no weight on


       24

        David Tufts was also the trustee of certain trusts described in footnote 1 and owed a fiduciary
duty to the beneficiaries to prevent an unearned issuance of an equity interest in CTRLP that diluted
the percentage of equity interest owned by the trusts.

                                                 17
                                     No. 06-30978

the issue of David Tufts’ conflict of interest in directing the attorney for CTR-Inc. to

prepare a contract that was in David Tufts’ best interest. No one else from CTR-Inc.’s

board saw the agreement until the day before they were requested to vote on the

agreement. The evidence shows the board was uncomfortable with some of the

language of the agreement, particularly the amount of the G&A payment, as shown by

the changes to it before the final version was signed.

      To now complain that Albert Crutcher, acting on behalf of CTR-LP, frustrated

the development of mutually acceptable performance criteria because he had a

personal interest contrary to the development of those criteria is a rather disingenuous

argument. That Tufts Energy has been so unwilling to provide meaningful information

to CTR-LP and the CTR-Inc. board of directors both prior to and after the execution

of the management agreement does not help its argument. Conjecture about how

Albert Crutcher may have had an interest adverse to Tufts Energy because he did not

want his limited partnership interest in CTR-LP diluted is not evidence of an adverse

interest. Tufts Energy introduced no evidence to support these contentions, and thus,

did not carry its burden of proof.

      The court finds that by requesting the G&A expenses in order to conduct an

examination of the actual expenses of Tufts Energy with respect to its performance of

the management agreement, Albert Crutcher was fulfilling his fiduciary duties in a

responsible way. To have allowed Tufts Energy to receive a 25% equity interest in


                                          18
                                     No. 06-30978

CTR-LP without an examination of what services it was performing and how it was

being compensated for those services would have been to act against the interests of

CTR-LP and its general partner, CTR-Inc.

       The court finds that Tufts Energy, as the party seeking to prove frustration,

carried the burden of proof. The court further finds that Tufts Energy failed to carry

this burden. While it is possible that Albert Crutcher did defer or even refuse to discuss

performance criteria with David Tufts, the only evidence to show that is the testimony

of David and Robert Tufts. Their statements were vague and uncertain as to the times

that David Tufts requested such a discussion and were contradicted by testimony from

Fred Tufts, Albert Crutcher and James Reiss. The documents entered into evidence at

trial do not reflect that David Crutcher requested and Albert Crutcher refused to discuss

the performance criteria. Rather, they show that Albert Crutcher requested G&A

information from David Tufts and did not receive it. As section 13 is written, the

parties were to consider that information when discussing performance criteria. To

request the information required to make a reasoned decision involving the finances of

CTR-LP is not an attempt to frustrate a condition, rather it is good business judgment.

David Tufts appears to have let his interest in Tufts Energy conflict with his role as

president and director of CTR-Inc., in that he had a fiduciary responsibility to that

entity that he appears to have forgotten in his haste to benefit Tufts Energy.

III.   Conclusion


                                           19
                                     No. 06-30978

      For the reason expressed above, the court finds that section 13 of the

management agreement is a valid suspensive condition. Further the court finds that the

evidence does not support a finding that the fulfillment of that condition was frustrated

by either Crutcher-Tufts Resources, L.P. or Crutcher-Tufts Resources, Inc., or that

Albert Crutcher in his capacity as the designated representative of CTR-LP acted to

frustrate the fulfillment of section 13.



      New Orleans, Louisiana, November 15, 2005.


                                                _________________________
                                                Jerry A. Brown U.S.
                                                Bankruptcy Judge




                                           20
