     Case: 15-20158         Document: 00513450594          Page: 1     Date Filed: 04/04/2016




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

                                         No. 15-20158                                    FILED
                                                                                       April 4, 2016
                                                                                   Lyle W. Cayce
W&T OFFSHORE, INCORPORATED,                                                             Clerk

                        Plaintiff - Appellant Cross-Appellee

v.

APACHE CORPORATION,

                 Defendant - Appellee Cross-Appellant



                     Appeals from the United States District Court
                          for the Southern District of Texas
                               USDC No. 4:11-CV-2931


Before JONES and SMITH, Circuit Judges and BOYLE, ∗ District Judge.
PER CURIAM:**
       The court has carefully considered this appeal of a contract breach case
in light of the briefs, oral argument, and pertinent portions of the record. W&T
contends that Apache’s use of improper allocation methods resulted in its being
systematically shortchanged for its share of production sales revenues. We




       ∗
           District Judge of the Northern District of Texas, sitting by designation.

       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-20158     Document: 00513450594     Page: 2   Date Filed: 04/04/2016


                                  No. 15-20158

conclude there are no reversible errors of law or fact, and the judgment should
be AFFIRMED.
      The controlling issue, raised by W&T, is whether the Production
Handling Agreement it signed with Apache required Apache to use the YZ
Sampler rather than the “shakeout method” to measure the basic sediment and
water (“BS&W”) content of W&T’s production flowing through Apache’s
offshore facility for the purpose of allocating production between the parties.
This is an issue of plain-meaning contract interpretation, yet the parties’
contract does not expressly require the YZ sampler’s use for this purpose. We
are unpersuaded by W&T’s arguments why such an unexpressed requirement
should be read into the unambiguous contract. The contract is not internally
inconsistent because it offers flexibility rather than sole use of the YZ sampler
to measure BS&W. As the district court put it, after considering the relevant
provisions, “W&T’s duty to install a [YZ] sampler . . . does not mean that
Apache was required to use the sampler as the exclusive means for measuring
BS&W.” W&T Offshore, Inc. v. Apache Corp., 2014 WL 198492 at *7 (S.D. Tex.
2014). Moreover, the contract is not in conflict with Louisiana law and does
not incorporate federal regulations in such a way as to mandate use of the
sampler.
      W&T also contends that the jury was “confused” by this alleged error and
others into rendering a verdict against its breach of contract claim.
Consequently, W&T seeks a new trial. Given that the district court did not err
in interpreting the parties’ contract, however, the court correctly instructed the
jury on this issue. The court also properly instructed the jury, if somewhat
belatedly, that W&T did not breach the contract’s Section 13.01, and we
presume the jury followed this instruction. Significantly, W&T requested, or
at least acquiesced in, submitting a single, undivided question of breach to the


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                                 No. 15-20158

jury, and it did not seek JMOL or partial summary judgment on any of the
other allocation errors it accuses Apache of making.           Together, these
procedural facts and the highly contested evidence on each of W&T’s assertions
render the grant of a new trial inappropriate; the verdict was not against the
great weight of the evidence. The district court did not abuse its discretion in
denying a new trial.
      We need not consider Apache’s conditional cross-appeal. The judgment
is AFFIRMED.




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