               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 99-11049




     HARRY PTASYNSKI; WL GRAY & CO,


                          Plaintiffs-Appellees-Cross-Appellants,


          versus


     SHELL WESTERN E&P INC; ET AL,


                          Defendants


     SHELL WESTERN E&P INC;
     SHELL OIL COMPANY; MOBIL OIL CORP,

                          Defendants-Appellants-Cross-Appellees.




           Appeal from the United States District Court
            for the Northern District of Texas, Dallas

                            May 24, 2002


         ON PETITION FOR REHEARING AND REHEARING EN BANC

(Opinion 2/13/02)

Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

     *
      Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
     In their petition for rehearing plaintiffs urge, among other

things, that their contract claims are not barred by limitations,

and that they have viable contract claims because the district

court, in its June 16, 1999 order, observed that “there is no

market for carbon dioxide in Colorado,” and accordingly, plaintiffs

contend, under the instruments creating their overriding royalty

interests (their lease assignments) they could not be required to

bear any portion of the cost of transporting the carbon dioxide

over the some 500 miles from the tailgate of the McElmo Dome Unit

to West Texas.

     As the district court in its June 16, 1999 order noted

“Plaintiffs’ breach of contract claims are based on two alleged

contracts: their federal and state lease assignments and the

brochure.”   In that order the court held that plaintiffs as a

matter of law had no right to any contract recovery on the basis of

their federal and state lease assignments, and that there was a

fact issue for trial as to whether they had a contractual claim on

the basis of the brochure.   Accordingly, the only contract claim

which was bench tried was that based on the brochure itself.   Only

the claims which were bench tried were before us.    Plaintiffs in

their cross-appeal brief and in their reply brief in this Court

never urged as error any claim that the district court erred in its

June 16, 1999 ruling that their contract claims based on their



the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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lease assignments were invalid.            Accordingly, any contract claim

based on the underlying leases and the assignments thereof is not

before us.     As to plaintiffs only other contract claims, those

based on the brochure, the brochure did not, as a matter of law,

constitute or create a contract (see the last grammatical paragraph

of part III of our February 13, 2002 opinion herein).

      Plaintiffs also point out that our opinion incorrectly states

that before the brochure was sent out Shell “had only to obtain

consent of an additional 4% of the total royalty interest in order

to   secure   final   approval   [of   the    unit]   from   the   [Colorado]

Commission.”    Our error in this respect is immaterial.            Shell was

required to have approval of more than 80% of the cost free

interests and this would have required it to procure approval of

the owners of approximately one fifth of the overriding royalty

interests (collectively, the overriding royalty interests owned

approximately 25% of the total cost free interests); Shell already

had approval for approximately 76% of the cost free interests.

However, there is no evidence (or claim) that plaintiffs together

owned (or controlled) a sufficient overriding royalty interest to

have prevented Shell from procuring the required 80% of the cost

free interests if plaintiffs had not approved the unit.                 Shell

eventually procured approval of 92.5% of the cost free interests.

There is no evidence that this percentage would have been less than

80.5% if both plaintiffs had withheld approval.


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     The Petition for Rehearing is DENIED and no member of this

panel nor judge in regular active service on the court having

requested that the court be polled on Rehearing En Banc, (FED. R.

APP. P. and 5TH CIR. R. 35) the Petition for Rehearing En Banc is

also DENIED.**

     No further petition for rehearing will be entertained.    The

mandate shall issue forthwith.




     **
      Judge Edith H. Jones did not participate in the consideration
of the rehearing en banc.

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