Sherwood v. Panhandle Eastern ( 1998 )


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  •                                                                               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    This order and judgment is not binding precedent, except under the doctrines of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-
    

Document Info

Docket Number: 97-3024

Filed Date: 5/14/1998

Precedential Status: Non-Precedential

Modified Date: 4/17/2021