Broad Street Energy Company v. Endeavor Ohio, LLC , 806 F.3d 402 ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0279p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
BROAD STREET ENERGY COMPANY, ┐
Plaintiff-Appellee/Cross-Appellant, │
│
v. │ Nos. 14-4223/4278
│
ENDEAVOR OHIO, LLC, >
│
Defendant-Appellant/Cross-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-00711—Algenon L. Marbley, District Judge.
Argued: October 14, 2015
Decided and Filed: November 13, 2015
Before: BOGGS, SUTTON, and COOK, Circuit Judges.
_________________
COUNSEL
ARGUED: Mark A. Vander Laan, DINSMORE & SHOHL, LLP, Cincinnati, Ohio, for
Appellant/Cross-Appellee. Kathleen M. Trafford, PORTER WRIGHT MORRIS & ARTHUR
LLP, Columbus, Ohio, for Appellee/Cross-Appellant. ON BRIEF: Mark A. Vander Laan,
Robert M. Zimmerman, DINSMORE & SHOHL, LLP, Cincinnati, Ohio, for Appellant/Cross-
Appellee. Kathleen M. Trafford, James D. Curphey, David S. Bloomfield, Jr., L. Bradfield
Hughes, PORTER WRIGHT MORRIS & ARTHUR LLP, Columbus, Ohio, for Appellee/Cross-
Appellant.
_________________
OPINION
_________________
SUTTON, Circuit Judge. Two sophisticated parties negotiated an agreement for one to
buy oil-and-gas leases from the other for $35 million. Three months after signing, the buyer
1
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unilaterally terminated the agreement. A jury found that the buyer had no right to terminate in
this way and awarded the seller the $3.5 million escrow payment and interest on it. We affirm.
I.
For some time, Broad Street Energy Company has owned many oil-and-gas leases in
northeast Ohio. In recent years, that market has changed, leading many to launch shale-drilling
(often called fracking) initiatives designed to extract oil and gas from shale formations that
typically lie much deeper below the surface than the underground formations from which Broad
Street (and others) have extracted oil. The type of land ownership needed for conventional oil-
well drilling often differs from the forms of ownership needed for fracking. In this instance, the
record shows that fracking requires leases of at least 640 acres, as opposed to the 20-to-40-acre
leases that Broad Street required for its conventional wells. Endeavor Ohio was formed to obtain
access to the oil and gas in Ohio’s shale and to buy the land for doing so.
In April 2012, the two companies agreed that Endeavor would pay $35 million for many
of Broad Street’s leases along with the wells, pipelines, and related property connected to them.
As part of the agreement, Endeavor put up $3.5 million in escrow that would go toward the
$35 million purchase price due at closing, slated to take place 120 days after the parties signed
the agreement.
Another part of the agreement said that Broad Street, upon signing, would deliver a list of
the assets it was selling, including any limitations on Broad Street’s title. Between the signature
date and closing, Endeavor had the right to undertake due diligence to determine if any “Title
Defects” existed—if “any lien, encumbrance, claim, defect in, or objection to real property
title . . . renders [Broad Street’s] title to any Lease, Unit, Well, or Easement less than” “clear and
uncontested record title.” R. 1-1 § 4.1(a), (c). In the event a title defect emerged, the agreement
contemplated that Endeavor would inform Broad Street of the problem and estimate its impact
on the lease’s value. If Broad Street disputed the alleged title defect or its value, the parties
would resolve the dispute with “good faith negotiations” or, if needed, “binding arbitration.” Id.
§ 4.6. The agreement also set forth what would happen if title defects remained: (1) Broad
Street could fix them before closing or accept a lower purchase price; or (2) if the total value of
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the title defects reduced the total value of the assets by at least 30%, either party could terminate
the agreement.
At signing on April 9, 2012, Broad Street, as promised, delivered the list of assets to
Endeavor. Endeavor, as expected, began its due diligence, sending a fleet of lawyers to Broad
Street’s offices to comb through the land records and to make other related inquiries. On July 9,
2012, Endeavor told Broad Street by letter that it had found title defects that affected 40% of the
leases and reduced the value of the assets by 55%. Endeavor did not seek more information from
Broad Street about the title defects or their value or invoke the dispute-resolution process for
dealing with any disagreements. It instead terminated the agreement on the ground that its
research showed that the title defects reduced the value of the assets by at least 30%.
Broad Street wrote back several times, disputing many statements in the letter and
insisting on closing the deal or at least implementing the dispute-resolution procedures in it.
When Broad Street never got a response, it sued Endeavor. It claimed that Endeavor had
breached the agreement and that Broad Street was entitled to the $3.5 million escrow payment as
well as other remedies. Endeavor denied any breach and counterclaimed that Broad Street had
breached the contract.
The case went to trial. A jury found that Endeavor had breached the contract and
awarded Broad Street the $3.5 million escrow payment. The district court added just over
$209,000 in prejudgment interest and ordered Endeavor to pay post-judgment interest until it
satisfied the judgment. Both parties appealed. Endeavor claims it should get a new trial or at
least not have to pay any interest on the judgment. Broad Street claims it should get more than
just the escrow as damages.
II.
A.
We start with Endeavor’s request for a new trial on the ground that the breach-of-contract
verdict was against the weight of the evidence, a claim that receives abuse-of-discretion review.
CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793 F.3d 571, 584, 591 (6th Cir. 2015). To obtain
relief, Broad Street had to prove that Endeavor had a duty to do something in the future
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(by continuing toward closing) but wrongfully refused to do it (by terminating the contract).
Se. Land Dev., Ltd. v. Primrose Mgmt., L.L.C., 952 N.E.2d 563, 569 (Ohio Ct. App. 2011).
No one doubts that Endeavor’s letter refused future performance. The question is whether the
refusal was wrongful. To make that showing, Broad Street had to establish that (1) Endeavor
had no right to terminate the agreement, and (2) Broad Street had not already materially breached
the agreement, see Jackson v. State Farm Fire & Cas. Co., 461 F. App’x 422, 426 (6th Cir.
2012). The jury could reasonably find that Broad Street proved both.
Did Endeavor have the right to terminate the contract? In considering this argument, we
need not consider every theory of breach (there were four) and every response. All that matters
is whether at least one theory of breach fits the bill—whether at least one theory supports the
jury’s general verdict. One such theory is Broad Street’s claim that the contract did not permit
Endeavor to terminate the contract unilaterally based on its own assessment of any title defects in
Broad Street’s properties and the value of them.
Endeavor and Broad Street agree that the purchase agreement gave each party the option
to walk. The question was when and under what circumstances. According to Endeavor,
§ 10.1(b) of the agreement gave it the option to end the contract at any point based on its own
determination that the value of title defects exceeded 30% of the purchase price. According to
Broad Street, the parties could invoke this provision only after adhering to the process laid out in
§ 4 of the agreement for determining the value of any title defects.
Broad Street has the better of the argument—sufficiently better that we do not think that
the issue should have been submitted to the jury in the first place. The key point is that § 10.1(b)
of the contract—the termination provision—does not stand alone. It incorporates other parts of
the agreement, including most importantly § 4. The operative part of § 10.1(b) says that the
buyer or seller may terminate the agreement at any point “in the event that the aggregate amount
of all Title Defect Values equals or exceeds 30% of the unadjusted Purchase Price.” The phrase
Title Defect Values, as its capitalization suggests, is a defined term—defined first of all in
§ 4.1(d). One thus cannot apply § 10.1(b)—indeed one cannot even understand it—without
considering § 4. The animating point of § 4 in this regard, it turns out, is to set forth a process
for identifying title defects, assessing their value, creating a mechanism for lowering the
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purchase price to account for them, and establishing a dispute-resolution process for ironing out
any disagreements along the way. While § 4.1(d) defines Title Defect Values, that section and
§ 4.1(c) describe how to determine title defects and their value. Then § 4.2(b) explains how Title
Defect Values established under procedures laid out in § 4.2 may require the parties to lower the
purchase price to account for the true value of what was being sold. And § 4.6 provides a
dispute-resolution procedure for clearing up any disputes. All that § 10.1(b) does in this context
is say that, once the Title Defect Values have been established under § 4, both parties can walk if
the lowered price changes the original purchase price by 30% or more.
Nothing in § 4 gives either party the right to determine unilaterally what the Title Defect
Values are and whether they exceed 30% of the value of the purchase agreement. And, notably,
the provisions in § 4 would serve no purpose if Endeavor could unilaterally decide the number of
title defects and value of them, then invoke the termination provision on the ground that the
value of the defects exceeded the 30% threshold for terminating the agreement.
In Ohio, as elsewhere, courts do their best to give a fair reading to the contract, one
requirement of which is to give content where possible to each term of the contract.
See Farmers’ Nat’l Bank v. Del. Ins. Co., 94 N.E. 834, 839 (Ohio 1911). Broad Street’s
interpretation honors this imperative; Endeavor’s does not. How could one understand the
meaning of Title Defect Values without considering § 4? And what would be the point of all of
these § 4 processes for assessing Title Defect Values if either party could terminate the
agreement based on its own assessment? It is not clear why, if Endeavor is right, Broad Street
did not have an equal right unilaterally to say that the Title Defect Values were less than 30% of
the purchase price. What then? How would a court (or for that matter a jury) know which
unilateral assessment to prefer? In the last analysis, § 10.1(b) provides a unilateral termination
right for the buyer or seller—but only after the parties determine under § 4 whether the Title
Defect Values exceed 30% of the original purchase price.
Endeavor advances other ways to read the agreement. It first invokes the preamble to
§ 10.1, which says that each of the enumerated termination rights applies “[a]t any time
commencing on the date hereof and ending upon the occurrence of the Closing” and
“notwithstanding anything contained in this Agreement to the contrary.” How, Endeavor asks,
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could it exercise the termination right in § 10.1(b) “at any time” if it must adhere to the notice
and other time-consuming requirements in § 4? The answer is that not every enumerated
termination right had to be available at all times from the signing of the agreement to the closing.
Nor does this approach read the “at any time” language out of the agreement. It is part of a
preamble that covers other termination rights—such as “acts of God,” R. 1-1 § 10.1(a), or
takings under eminent domain—that could apply the moment the ink on the purchase agreement
dries.
Endeavor next points to § 10.1(b) itself, which says that the parties’ termination right
under this provision exists “notwithstanding anything contained in Article IV to the contrary.”
Doesn’t this language, Endeavor insists, show that § 4 is irrelevant if a party unilaterally decides
that the Title Defect Values exceed 30% of the purchase price? The answer is that the
“notwithstanding” clause does not make everything in § 4 irrelevant to § 10.1(b). It establishes
that, once the 30% threshold is hit after applying the § 4 processes for determining Title Defect
Values and for accordingly lowering the purchase price, either party may terminate the
agreement if it is not satisfied with the new purchase price. That reading gives fair meaning to
everything in § 4 and § 10, does not diminish or effectively erase any provision, and makes
considerable sense. Endeavor had no right to terminate the contract on this basis.
Did Broad Street materially breach the agreement before Endeavor terminated it? That
does not end matters. If Broad Street breached the agreement from the start, Endeavor had a
right to terminate and a basis for bringing a counterclaim as well. Endeavor argued that Broad
Street committed “a breach from day one,” because it “knew” it did not own 100% of the leases
it was selling, despite “represent[ing]” that it did in Exhibit A of the agreement. R. 81 at 36, 38.
Here are the relevant parts of the agreement. Exhibit A lists the leases that Broad Street
was selling, “including all of [Broad Street]’s [ownership]” as described there. R. 1-1 § 1.2(a).
The exhibit describes Broad Street’s ownership as “100%.” Id. at 61–62. The agreement adds
that Broad Street, “[t]o [its] knowledge, . . . owns the right, title, and interest in and to each of the
Leases as set forth on Exhibit ‘A,’” id. § 5.5, and Endeavor is only obligated to close if, at the
time of closing, this statement remains true and Broad Street has performed as specified in the
agreement. Other exhibits and schedules list additional assets being sold (wells, pipelines, and
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other property) as well as contracts that could affect Broad Street’s title to its assets. The
agreement also says that a disclosure anywhere in the agreement applies everywhere.
Even if Exhibit A listed leases that Broad Street did not own in full, as the evidence
showed, the jury reasonably could decide that Broad Street did not breach the agreement. Other
exhibits disclosed what Broad Street owned and what it did not. One showed that Broad Street
had less than 100% ownership in many of the wells it was selling, and another listed at least ten
contracts that “relat[e] to the ownership or operation of any” asset being sold. Id. § 5.14(ii)
(emphasis added). And the agreement’s statement that a disclosure in one place amounted to a
disclosure everywhere would show that the requisite disclosure had occurred. Broad Street’s
President testified about these other provisions and explained that figuring out title to oil-and-gas
leases is notoriously difficult. Indeed, it is so difficult that title insurance on them is not
available in Ohio. He explained that the plan all along, as understood by both parties, was that
Broad Street would sell what it had “warts and all.” R. 79 at 137. Broad Street’s obligation, as
he understood it, was to disclose the warts it knew of, something it did across all of the exhibits
and schedules, even though this knowledge was hampered because Broad Street had not done
extensive diligence when it bought the leases. A reasonable jury could accept Broad Street’s
explanation, finding that, even if Exhibit A was wrong, other disclosures qualified the error.
That is particularly so with respect to leases of this sort where, as the rest of the agreement
shows, the parties well knew that determining title could be difficult—and might well be in this
instance.
There was, to be sure, testimony going the other way, some of which suggested that the
failings of Exhibit A created a material breach by Broad Street. Endeavor’s general counsel said
that the company found that Broad Street had less than 100% ownership of more than 40% of its
leases. But of course this assessment was never measured by the processes laid out in § 4 for
determining Title Defect Values and accordingly a jury could discredit some or all of it. Several
officers of Endeavor agreed that 100% ownership was critical for them and one said that this was
communicated to Broad Street. But that testimony does not wipe out the other disclosure
provisions or require a reasonable jury to accept the testimony, as opposed to Broad Street’s
testimony that both parties understood that the company was selling the leases “warts and all.”
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Endeavor in the end has not met the high threshold for showing that the district court abused its
discretion in denying a motion for a new trial.
B.
Summary judgment. In addition to arguing that the district court should have granted a
new trial, Endeavor maintains that it should have won as a matter of law at summary judgment.
There is some debate over whether a party may renew a summary judgment motion after a jury
trial, as opposed to seeking judgment as a matter of law after the trial (and if unsuccessful,
appealing that). Be that as it may, both of Endeavor’s legal arguments fail anyway. It first
argues that § 10 of the contract as a matter of law gave Endeavor the right to terminate it if the
company determined that the Title Defect Values exceeded 30% of the purchase price of the
agreement. As just shown, Broad Street should have prevailed as a matter of law on this point.
Necessarily, or a fortiori as lawyers like to say, Endeavor cannot win as a matter of law on this
score. As for Endeavor’s argument that Broad Street’s failure to own 100% of the leases listed
in Exhibit A establishes a breach from the outset as a matter of law, the relevant contract
provisions pointed in different directions and so for that matter did the testimony. The district
court properly let this issue go to a jury.
Evidentiary ruling. Endeavor argues that the district court erred when it excluded
evidence related to the title defects. When Endeavor delivered its termination letter to Broad
Street, it included a box of documentation. The district court excluded the documentation, citing
the possibility of “unnecessary confusion for the jury.” R. 70 at 6. A court may exclude
evidence on this basis if the “probative value is substantially outweighed by a danger
of . . . confusing the issues.” Fed. R. Evid. 403. The probative value of this evidence was low
because it was cumulative. As it was, the jury heard testimony from Endeavor witnesses that
over 40% of Broad Street’s leases had title defects. The documentation would have served the
same end. Plus, the possibility the evidence might confuse was not insignificant. The
documentation was dense and highly technical, and included legal opinions, lease assignments,
land records, and spreadsheets. The district court decided that the possibility of confusion
outweighed the probative value of the evidence. We accord that judgment “great deference,”
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United States v. Stafford, 721 F.3d 380, 395 (6th Cir. 2013), and the court’s discretion was not
exceeded here.
III.
Endeavor next challenges the $209,215.59 of prejudgment interest added to the award
and the order to pay post-judgment interest until the judgment is satisfied.
Prejudgment interest. Ohio law governs, Conte v. Gen. Housewares Corp., 215 F.3d
628, 633 (6th Cir. 2000), and it supplies a straightforward rule. Broad Street received a
“favorable judgment award,” giving it “a right . . . to an interest award as a matter of law.”
Lincoln Elec. Co. v. St. Paul Fire & Marine Ins. Co., 210 F.3d 672, 693 (6th Cir. 2000). That
entitled Broad Street to 3% prejudgment interest on the award under Ohio law, which is just
what the district court gave. Ohio Rev. Code §§ 1343.03(A), 5703.47.
Endeavor responds through a form of a confession and avoidance. It confesses that the
statute normally gives Broad Street this right. But it tries to avoid the result that normally
follows by noting that a written contract can override the 3% rate or eliminate it altogether. Id.
§ 1343.03(A). Endeavor claims that the escrow agreement is just such a written contract.
It directs a bank to hold the $3.5 million and provides that the bank will hold the funds “in a non-
interest bearing account.” Trial Ex. P-6 § 2. As Endeavor sees it, that provision displaces the
statutory rate.
That is not the case, as we see it. Ohio limits the types of agreements that override the
default rate. The escrow agreement can only do so if it “specif[ies] a rate of interest with respect
to past due accounts.” Hobart Bros. v. Welding Supply Serv., Inc., 486 N.E.2d 1229, 1232 (Ohio
Ct. App. 1985). The escrow agreement did not say that; it just said the bank would never have to
pay interest on the $3.5 million deposit. This provision applied whether or not the funds were
“past due” and regardless of who ended up receiving them. The escrow agreement had little in
common with the types of agreements that Ohio courts allow to override the statutory rate. See,
e.g., Ohio Valley Mall Co. v. Fashion Gallery, Inc., 719 N.E.2d 8, 9, 11 (Ohio Ct. App. 1998)
(holding that a lease that “required that the tenant pay interest at eighteen percent per annum or
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the maximum interest rate permitted by law on all past-due amounts” displaced the statutory
rate). Broad Street is entitled to 3% prejudgment interest on the award.
Post-judgment interest. Federal law governs, FDIC v. First Heights Bank, FSB, 229 F.3d
528, 542 (6th Cir. 2000), and it too creates a straightforward rule. “Interest shall be allowed on
any money judgment in a civil case recovered in a district court.” 28 U.S.C. § 1961(a).
Endeavor again claims the escrow agreement displaces the federal rate—here 0.1%. See id. We
disagree for two reasons. First, even if we were to read the interest rate in the escrow agreement
to relate to interest due under a contract, it would have nothing to do with interest due on a
judgment. See Kotsopoulos v. Asturia Shipping Co., 467 F.2d 91, 95 (2d Cir. 1972). And
second, allowing the (loosely related) escrow agreement to displace post-judgment interest
undermines the statute’s objective of “compensat[ing] the successful plaintiff for being deprived
of compensation for the loss from the time between ascertainment of the damage and the
payment by the defendant.” Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835–
36 (1990). The escrow agreement once again does not override the federal statutory rate.
IV.
That leaves Broad Street’s cross-appeal. The company argues that it should be able to
recover more than the $3.5 million escrow (plus interest) as damages. The short answer is that
Broad Street never made this argument below and thus may not raise it now. The longer answer
is that Broad Street argued at summary judgment that it was entitled to specific performance of
the purchase agreement and, if not that, to “damages.” R. 15 at 13–14. The district court
rejected Broad Street’s specific-performance argument, and Broad Street has not appealed the
point here. As for damages, Endeavor responded that at most Broad Street would be entitled to
the escrow amount of $3.5 million. The district court then ruled that Broad Street’s damages, if
it established a breach, would be limited to the $3.5 million escrow amount. Broad Street never
argued that, if it could not obtain specific performance, it was entitled to more damages—either
in its summary judgment reply brief, in its trial briefs, or during the jury-instruction conference.
Nor does this seem to have been a mistake. One could well imagine the strategic benefits of
leaving damages at the $3.5 million escrow figure and avoiding the kinds of push-and-pull
Nos. 14-4223/4278 Broad Street Energy Co. v. Endeavor Ohio, LLC Page 11
complications that would arise at trial over assigning values to the leases—and separating that
point from one of Endeavor’s main defenses.
For these reasons, we affirm.