Windsor Energy Group, L.L.C., an Oklahoma Limited Liability Company, and Windsor Beaver Creek L.L.C., a Delaware Limited Liability Company , 330 P.3d 285 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 96
APRIL TERM, A.D. 2014
July 30, 2014
WINDSOR ENERGY GROUP, L.L.C., an
Oklahoma Limited Liability Company,
and WINDSOR BEAVER CREEK
L.L.C., a Delaware Limited Liability
Company,
Appellants
(Plaintiffs),
v.
S-13-0214
NOBLE ENERGY, INC., a Delaware
Corporation,
Appellee
(Defendant).
NOBLE ENERGY, INC., a Delaware
Corporation,
Appellant
(Defendant),
S-13-0215
v.
WINDSOR ENERGY GROUP, L.L.C., an
Oklahoma Limited Liability Company,
and WINDSOR BEAVER CREEK
L.L.C., a Delaware Limited Liability
Company,
Appellees
(Plaintiffs).
Appeal from the District Court of Sheridan County
The Honorable John G. Fenn, Judge
Representing Windsor Energy Group, L.L.C. and Windsor Beaver Creek L.L.C.:
Rocky Vroman and Nicholas T. Haderlie of Throne Law Office, PC, Cheyenne,
Wyoming. Argument by Mr. Vroman.
Representing Noble Energy, Inc.:
Anthony J. Shaheen of Holland & Hart LLP, Denver, Colorado; Isaac N. Sutphin of
Holland & Hart LLP, Cheyenne, Wyoming. Argument by Mr. Shaheen.
Before BURKE, C.J., and HILL, KITE*, FOX, JJ., and WALDRIP, D.J.
* Chief Justice at time of oral argument.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.
[¶1] The predecessors in interest to Windsor Energy Group, LLC and Windsor Beaver
Creek LLC (Windsor) and Noble Energy, Inc. (Noble) entered into a joint operating
agreement (JOA) for Wyoming oil and gas interests in 2000. In 2010, Windsor filed suit
against Noble’s predecessor claiming it was obligated for costs under the JOA even
though it had assigned its interest to another party in 2004. The district court granted
summary judgment in favor of Windsor holding an assignor of an interest who was not
formally released was still obligated under the JOA. After a bench trial, however, the
district court ruled that Windsor’s claim against Noble for breach of the JOA was barred
by laches.
[¶2] We conclude, based on the unique circumstances of this case, the equitable
doctrine of laches applies to Windsor’s breach of contract claim and Noble proved the
defense. The rulings are conclusive; consequently, we affirm the district court’s
judgment without addressing the contract issue.
ISSUES
[¶3] The dispositive issues in these consolidated cases are:
1. Did the district court err in ruling the equitable doctrine of laches was a
defense to Windsor’s claim for breach of an oil and gas contract even though the statute
of limitations had not expired?
2. Did the district court abuse its discretion by finding the elements of laches
were satisfied in this case?
FACTS
[¶4] On June 30, 2000, J.M. Huber Corporation (Huber) and Suncor Energy (Natural
Gas) America, Inc. (Suncor) entered into a JOA for development of oil and gas interests
in the Beaver Creek Prospect in Sheridan County, Wyoming. Huber was designated as
the operator, and Suncor was the sole non-operator.1 The JOA generally allocated assets
and liabilities in accordance with the proportionate interests of the parties. It required the
operator to notify the non-operator of lease development activities and obtain non-
operator consent for certain expenditures through Authorizations for Expenditures
(AFEs). The operator was obligated to bill the non-operator for its share of the expenses
on a monthly basis. These bills were called Joint Interest Bills (JIBs). The non-operator
1
The district court found that Huber owned a 75% interest in the leaseholds and Suncor owned the
remaining 25%. There is, however, evidence in the record indicating that each party owned a 50%
interest. It is unnecessary to resolve this factual discrepancy to decide this case.
1
had the right to contest and/or audit the JIBs within two years. The JOA also specifically
applied to successors and assigns.
[¶5] On May 1, 2004, Suncor assigned its interest to Dolphin Energy Corporation
(Dolphin). A few months later, on September 1, 2004, Huber assigned its interest to
Windsor. Windsor began sending JIBs to Dolphin in January 2005. The JIBs included
various lease expenses, including plugging and abandoning (P & A) expenses. Dolphin
did not pay any JIBs and Windsor eventually filed suit in 2007. In 2008, Dolphin
declared bankruptcy and never paid Windsor.
[¶6] On December 4, 2009, Windsor sent a demand letter to Suncor asserting that it
was obligated to pay the JIBs. Suncor did not pay, and Windsor filed a complaint in
district court on March 22, 2010, alleging that, as assignor, Suncor remained liable for the
costs because it had not been expressly released under the terms of the JOA or the
assignment. Windsor initially sought breach of contract damages of over $625,000. The
district court later allowed Windsor to amend its complaint to include on-going damages,
bringing the total to more than $900,000.
[¶7] Each party filed a motion for summary judgment. Windsor alleged that the
relevant documents and case law established, as a matter of law, that Suncor was liable
for the costs even though it had assigned its interest. Suncor asserted it was not liable for
the expenses incurred after its assignment to Dolphin and, in any event, Windsor’s claim
should be barred by the defense of laches. The district court granted summary judgment
in favor of Windsor, holding “Suncor remained liable to Windsor because it did not
obtain a release from either Huber or Windsor, and the JOA did not contain a provision
releasing Suncor from continued liability after the assignment.” The court ruled,
however, that genuine issues of material fact existed concerning the amount of damages
and whether the doctrine of laches barred Windsor’s claim.
[¶8] Noble acquired Suncor’s interest and was substituted as the defendant in this case.
We will, however, follow the district court’s example and continue to refer to the
defendant as Suncor since the relevant documents use that name. The district court held a
bench trial in June 2013 and ruled Windsor’s claim was barred by laches. Windsor
appealed the district court’s laches ruling, and Suncor appealed the ruling that the
assignor remained liable under the JOA unless expressly released. We consolidated the
cases for argument and decision.
STANDARD OF REVIEW
[¶9] In general, we apply the following standard when reviewing a district court’s
decision after a bench trial:
2
“The factual findings of a judge are not entitled to the limited
review afforded a jury verdict. While the findings are
presumptively correct, the appellate court may examine all of
the properly admissible evidence in the record. Due regard is
given to the opportunity of the trial judge to assess the
credibility of the witnesses, and our review does not entail re-
weighing disputed evidence. Findings of fact will not be set
aside unless they are clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.”
With regard to the trial court’s findings of fact,
“we assume that the evidence of the prevailing party below
is true and give that party every reasonable inference that
can fairly and reasonably be drawn from it. We do not
substitute ourselves for the trial court as a finder of facts;
instead, we defer to those findings unless they are
unsupported by the record or erroneous as a matter of law.”
The district court’s conclusions of law, however, are subject
to our de novo standard of review.
Morris v. CMS Oil & Gas Co., 2010 WY 37, ¶ 12, 227 P.3d 325, 330 (Wyo. 2010),
quoting Lieberman v. Mossbrook, 2009 WY 65, ¶ 40, 208 P.3d 1296, 1308 (Wyo. 2009)
(citations omitted).
DISCUSSION
A. Does the Equitable Doctrine of Laches Apply to Breach of Contract
Claims?
[¶10] The district court ruled as a matter of law that the equitable doctrine of laches may
bar an oil and gas breach of contract claim even though the statutory limitations period
has not expired. We review this conclusion of law de novo.
[¶11] Windsor claimed that Suncor breached its contractual responsibilities under the
JOA. Actions on written contracts are governed by the ten year statute of limitations at
Wyo. Stat. Ann. § 1-3-105(a)(i) (LexisNexis 2013). There is no question in this case that
the statute of limitations had not expired when Windsor commenced its action in 2010 for
payment of the JIBs dating from 2005 to the date of trial. Suncor asserted, however, that
Windsor’s claim was barred by laches.
3
[¶12] Laches bars a claim when a party has delayed in enforcing its rights to the
disadvantage of another. Dorsett v. Moore, 2003 WY 7, ¶ 9, 61 P.3d 1221, 1224 (Wyo.
2003). “The defense of laches is based in equity and whether it applies in a given case
depends upon the circumstances.” Ultra Resources, Inc. v. Hartman, 2010 WY 36, ¶
123, 226 P.3d 889, 929 (Wyo. 2010). Two elements must be proven to establish laches:
1) inexcusable delay; and 2) injury, prejudice, or disadvantage to the defendants or
others. Moncrief v. Sohio Petroleum Co., 775 P.2d 1021, 1025 (Wyo. 1989).
[¶13] Windsor asserts the district court erred by ruling the equitable principle of laches
was available as a defense to a legal breach of contract claim. It argues that laches is
completely inapplicable when a statute of limitations governs an action. The district
court noted that other jurisdictions are split on whether the equitable doctrine of laches
can be applied in an action at law for breach of contract. See, e.g., Wyler Summit P’ship
v. Turner Broadcast Syst., 235 F.3d 1184 (9th Cir. 2000) (laches is not a defense to a
breach of contract claim); Dep’t of Banking & Finance of the State of Nebraska v.
Wilken, 352 N.W.2d 145 (Neb. 1984) (laches is available in a limited scope as a defense
to an action at law based on contract); John P. Saad & Sons, Inc. v. Nashville Thermal
Transfer Corp. 715 S.W.2d 41, 46-47 (Tenn. 1986) ( laches barred claim for breach of
contract to deliver waste oil). See also 30A C.J.S. Equity § 138 (2014).
[¶14] Relying on this Court’s decision in Moncrief, supra, the district court decided
laches was available as a defense in breach of contract actions involving oil and gas
interests. Moncrief sought specific performance of Sohio Petroleum’s contractual
obligation to assign an oil and gas lease interest and for an accounting of the gas
production from the lease. Moncrief, 775 P.2d at 1021-22. Sohio Petroleum asserted that
Moncrief’s claims were barred under both the statute of limitations and the equitable
doctrine of laches. A majority of this Court ruled that application of the doctrine of
laches was especially apt because the plaintiffs delayed in asserting their right to
assignment until the lease became valuable. Id. at 1024-25. We noted “the doctrine of
laches is particularly applicable to oil and gas and mining claims due to the nature of such
property interests,” which have extremely volatile values. Id. at 1025. Windsor
maintains Moncrief does not justify application of laches in this case because it involved
an equitable claim for specific performance of a contractual duty, not a legal claim for
monetary damages based on breach of contract.
[¶15] In order to decide this issue, we need to review the development of the relevant
jurisprudence in this state. In Bliler v. Boswell, 9 Wyo. 57, 59 P. 798, 805 (Wyo. 1900),
we stated that laches was not a valid defense in a case involving a legal action to recover
on promissory notes because the holder of the notes had not requested equitable relief.
However, we also noted that it was “extremely doubtful” whether the elements of the
laches defense were proven in that case. Id. Contrary to Bliler’s seemingly broad
statement that equitable defenses are not available in actions at law, in Anderson v. Wyo.
4
Dev. Co., 60 Wyo. 417, 154 P.2d 318, 345-46 (Wyo. 1944), we ruled the plaintiffs’
breach of contract claim was barred by laches as well as the statute of limitations. We
quoted with approval the United States Supreme Court decision in Halstead v. Grinnan,
152 U.S. 413, 14 S. Ct. 641, 38 L. Ed. 495 (1894),
“The defense [of laches] itself is one which, wisely
administered, is of great public utility, in that it prevents the
breaking up of relations and situations long acquiesced in,
and thus induces confidence in the stability of what is, and a
willingness to improve property in possession; and at the
same time it certainly works in furtherance of justice, for so
strong is the desire of every man to have the full enjoyment of
all that is his, when a party comes into court and asserts that
he has been for many years the owner of certain rights, of
whose existence he has had full knowledge, and yet has never
attempted to enforce them, there is a strong persuasion that, if
all the facts were known, it would be found his alleged rights
either never existed, or had long since ceased. *** The
length of time during which the party neglects the
assertion of his rights which must pass in order to show
laches varies with the peculiar circumstances of each case,
and is not, like the matter of limitations, subject to an
arbitrary rule. It is an equitable defense, controlled by
equitable considerations, and the lapse of time must be so
great, and the relations of the defendant to the rights such,
that it would be inequitable to permit the plaintiff to now
assert them.”
Anderson, 154 P.2d at 346 (emphasis added).
[¶16] Eblen v. Eblen, 68 Wyo. 353, 234 P.2d 434 (Wyo. 1951) involved an action to
establish a joint venture in an oil and gas lease. We concluded that both the statute of
limitation and the doctrine of laches could be used as defenses in proper cases.
It is well known that it is in the interest of society that
claims against the individuals thereof should be promptly
prosecuted. Accordingly in law statutes of limitation have
been set up arbitrary in their operation. In equity we have the
doctrine of laches which is not inflexible but founded on what
may be regarded as making for a just result. . . .
In Abraham v. Ordway, 158 U.S. 416, 15 S. Ct. 894, 895,
39 L. Ed. 1036, Mr. Justice Harlan speaking for the court said:
5
‘Whether equity will interfere in cases of this character must
depend upon the special circumstances of each case.
Sometimes the courts act in obedience to statutes of
limitations; sometimes in analogy to them. But it is now well
settled that, independently of any limitation prescribed for the
guidance of courts of law, equity may, in the exercise of its
own inherent powers, refuse relief where it is sought after
undue and unexplained delay, and when injustice would be
done, in the particular case, by granting the relief asked.’
Id. at 377-78.
[¶17] In Glenrock v. Abadie, 71 Wyo. 414, 259 P.2d 766 (Wyo. 1953), this Court
considered the reverse of the issue presented in the present case—whether the statute of
limitations applied to an equitable action to reform a deed. This Court stated that, given
the distinction between courts of equity and courts of law had been extinguished in
Wyoming, statutes of limitation applied to all actions, whether legal or equitable in
nature. Id. at 770.
[¶18] Our Rules of Civil Procedure blend equitable and legal actions together as a single
type of action, a “civil action.” W.R.C.P. 1 and 2. As we recognized in Platt v. Platt,
2011 WY 155, ¶ 18, 264 P.3d 804, 809 (Wyo. 2011), the rules of equity have generally
continued to supplement statutory procedures, including statutes of limitation. For
example, equitable estoppel may preclude a defendant from relying on an expired
limitation period. See, e.g., Lucky Gate Ranch, LLC v. Baker & Assoc., Inc., 2009 WY
69, ¶¶ 24-25, 208 P.3d 57, 66 (Wyo. 2009); Swinney v. Jones, 2008 WY 150, 199 P.3d
512 (Wyo. 2008). In addition, some equitable remedies, such as reformation, are
available in contract actions, while others, such as unjust enrichment, are not. See, e.g.,
Whitney Holding Corp. v. Terry, 2012 WY 21, 270 P.3d 662 (Wyo. 2012) (reformation);
Schlinger v. McGhee, 2012 WY 7, 268 P.3d 264 (Wyo. 2012) (unjust enrichment). These
holdings are consistent because both reformation and contract damages (in lieu of unjust
enrichment damages) are remedies which are consistent with enforcing the parties’
contractual intent.
[¶19] In Eblen, 234 P.2d at 442-43, we explained that laches considers the conduct of
the parties while statutes of limitation enforce arbitrary time limits without regard to the
parties’ relative positions. Some of the grounds for application of laches were discussed
in Eblen:
‘Several conditions may combine to render a claim or demand
stale in equity. If by the laches and delay of the complainant it
has become doubtful whether adverse parties can command
the evidence necessary to a fair presentation of the case on
6
their part, or if it appears that they have been deprived of any
such advantages they might have had if the claim had been
seasonably insisted upon, or before it became antiquated, or if
they be subjected to any hardship that might have been
avoided by reasonably prompt proceedings, a court of equity
will not interfere to give relief, but will remain passive; and
this although the full time may not have elapsed which would
be required to bar a remedy at law. * * *’'
Id. (citations omitted).
[¶20] Windsor argues that the purpose of applying laches in oil and gas cases, i.e., the
volatility of values of mineral interests, does not apply here because unlike the plaintiff in
Moncrief, it is not seeking to recover an oil and gas interest after the value has
dramatically increased. This distinction ignores the underlying rationale applied in
Moncrief, i.e., one party may not act, or fail to act, to the disadvantage of the other
especially regarding an asset with fluctuating values. The value of the interest in the
present case greatly decreased and the expenses greatly increased while Windsor failed to
notify Suncor that it was responsible for the costs or to keep it informed about the activity
on the leases. Windsor wants to collect a large portion of those expenses from Suncor
without giving it any opportunity to monitor its actions as operator. The volatility of the
value of the asset and the increasing liabilities makes this case appropriate for application
of the doctrine of laches, even though the value of the asset decreased rather than
increased.
[¶21] Windsor also asserts that Hammond v. Hammond, 14 P.3d 199 (Wyo. 2000),
supports its position that laches cannot be used to deny a claim when the statute of
limitations has not expired. In Hammond, 14 P.3d at 200, the mother brought an action to
collect unpaid child support many years after the biological father’s support obligation
ended because he relinquished his parental rights. The biological father claimed he was
prejudiced and the action should be barred by laches because some of the bank records of
his payments had been destroyed. We discussed the difference between legal and
equitable actions and concluded that laches did not apply to the mother’s claim for past
due child support because it was a legal, not an equitable claim. The decision was,
however, careful to point out that child support payments are different than other debts
because they become judgments as soon as they are due. Therefore, the limitations
period applicable to uncollected judgments applied. In addition, we noted that child
support has a unique position in the law as the right belongs to the child rather than the
parent. To hold that the custodial parent’s delay was undue and laches barred an action
to collect child support would undermine the purposes and policy behind child support
obligations. Id. at 200-03. The special considerations pertaining to child support
enforcement actions simply do not apply to an action on a contract between business
parties that has not been reduced to judgment.
7
[¶22] The totality of our precedent convinces us that laches should be available in
certain circumstances in actions at law, including breach of contract actions, governed by
a statute of limitations. Windsor’s argument that laches is inapplicable whenever a
statute of limitations governs a claim would completely abolish the doctrine of laches
because all actions in Wyoming are governed by a statute of limitations. Section 1-3-
105; Abadie, 259 P.2d at 770-71. This would frustrate our goal of securing the “just,
speedy, and inexpensive determination of every action.” W.R.C.P. 1. However, we also
agree with the Nebraska Supreme Court’s statement in Wilken, 352 N.W.2d at 149, that
the role of laches in breach of contract cases covered by an applicable statute of
limitations should be very limited in scope. Our precedent covering more than a century
has consistently recognized the difficulty of establishing a laches defense. See, e.g.,
Ultra Resources, ¶¶ 123-28, 226 P.3d at 929-30; Goshen Irrigation Distr. v. Wyo. St. Bd
of Control, 926 P.2d 943, 949 (Wyo. 1996); Squaw Mtn. Cattle Co. v. Bowen, 804 P.2d
1292, 1297 (Wyo. 1991); Murphy v. Stevens, 645 P.2d 82 (Wyo. 1982); Bliler, 59 P. at
805. Still, in the proper case, the defense of laches should be available to remedy not
only the delay but the prejudice suffered by the defendant as a result of the plaintiff’s
dilatory action. The district court properly ruled as a matter of law that laches was an
available defense.
B. Did the District Court Abuse its Discretion by Concluding that Laches
Barred Windsor’s Claim?
[¶23] The district court concluded that Suncor had established the elements of laches
and Windsor’s claim under the JOA was barred. As we stated in the standard of review
section, above, a district court’s factual findings after a bench trial are subject to the
clearly erroneous standard of review. The district court has discretion in determining
whether or not the laches defense applies to particular circumstances; therefore, we
review its ultimate decision for abuse of discretion. Moncrief, 775 P.2d at 1025. See also
Jones v. Jones, 858 P.2d 289, 291-92 (Wyo. 1993) (applying the clearly erroneous
standard of review to the district court’s factual findings and abuse of discretion standard
of review to its ultimate decision).
[¶24] To succeed on its laches defense, Suncor was required to demonstrate that
Windsor’s delay in asserting its claim was inexcusable and Suncor suffered injury,
prejudice, or disadvantage as a result. Moncrief, 775 P.2d at 1025. The district court
concluded that Suncor had established both elements of laches. With regard to the delay
element, the district court first noted that Suncor had already assigned its non-operating
interest to Dolphin and Windsor knew that the wells were poor producers when it
purchased the leases from Huber. The district court made the following factual findings:
68. The evidence at trial established several
instances of undue delay on Windsor’s part.
8
69. The evidence showed that Windsor was not
diligent about seeking payment from Dolphin. Although
Dolphin did not pay a single JIB after Windsor purchased the
leases, Windsor waited almost two years before even sending
Dolphin a demand letter. Windsor waited an additional three
years before sending a demand letter to Suncor, and it did so
only after Dolphin had declared bankruptcy.
70. When Suncor received the demand letter in
December 2009, it had not had an interest in the Beaver
Creek field for almost five years. During those five years,
Suncor never received any indication that Dolphin was not
paying its bills or that Windsor was going to hold Suncor
accountable for its assignee’s failure to pay the JIBs. This
was true even though Windsor had a relationship with Suncor
involving other wells during this time and easily could have
informed Suncor that these JIBs were unpaid.
71. Windsor argued at trial that it was not required
to notify Suncor of Dolphin’s non-payment, because Suncor
had a duty to monitor its assignee to ensure performance of
the contract. However, Windsor cited no authority for this
proposition, and the JOA certainly imposed no such
obligation. Windsor was in a better position than Suncor to
know whether the JIBs were being paid, and Windsor should
have promptly informed Suncor of Dolphin’s non-
performance.
72. Windsor also delayed in producing the JIBs to
Suncor. Even after Windsor sent Suncor the demand letter in
2009, it continued to send the JIBs to Dolphin until April
2013. Suncor did not even have an opportunity to review the
JIBs until they were belatedly produced in December 2012.
73. The testimony at trial established that Windsor
did not even ask its accounting department to prepare the JIBs
for production until December 2012, even though Suncor
asked for them to be produced in early 2011. Further,
Windsor never produced the underlying documents.
74. Although Windsor’s witness, Ms. O’Hasson,
testified that it would have been “prohibitive” to send these
9
documents with the JIBs, Suncor’s witness, Ms. Westerberg,
testified that it was Huber’s standard practice to send these
documents with the JIBs so that Suncor could review the JIBs
for errors. Ms. Westerberg also testified that without seeing
the underlying documents, it is impossible to determine
whether the costs were actually incurred, whether the costs
were allocated properly, or if the costs were authorized under
the proper AFE.
75. This Court finds that the five year delay in
notifying Suncor of Dolphin’s nonpayment, the seven year
delay in sending the JIBs to Suncor, and the continued refusal
to produce the underlying documents constitutes undue delay.
[¶25] Windsor has not established on appeal that the district court’s factual findings
were clearly erroneous. As we have noted in precedent, there is no set length of delay
that will be considered undue or inexcusable; the circumstances of each case must be
considered in making that determination. Anderson, 154 P.2d at 346; Eblen, 234 P.2d at
377-78. Windsor’s delay in asserting its claim was significant considering the amount of
expenses incurred in the Beaver Creek field and the non-operator’s right to notice and
participation under the JOA. Windsor’s witnesses testified as to on-going lease expenses
and the significant costs associated with plugging and abandoning the wells starting
around 2008. On cross-examination, Windsor’s operations manager testified the wells
had never been productive but he could not explain why they were not plugged earlier or
what finally prompted the decision to plug and abandon the wells.
[¶26] Windsor’s delay in providing the JIBs to Suncor and its failure to ever provide the
underlying documents to justify its expenses further evidences the undue nature of the
delay.2 Suncor’s Manager of Contracts, Lands, and Administration testified in general
about how she reviewed JIBs and the process of requesting additional information from
an operator and contesting charged expenses under a JOA. She stated that, without the
underlying documentation, there was no way to know whether the costs were: appropriate
under the JOA; actually incurred on a particular well; properly allocated or authorized
under an AFE. Windsor’s witnesses could not explain why the company did not retain
the underlying records in light of the delinquent payments and the possibility of litigation.
2
Suncor requested the JIBs and all other documentation supporting Windsor’s demand in its first request
for discovery in 2011, but Windsor produced only the Annual JIB Statement which summarized the JIBs
for each year. At trial, the district court asked why Suncor did not file a motion to compel production of
the documents and counsel stated Windsor’s attorney had represented the documentation could not be
located. See W.R.C.P. 26(c) (2011) (indicating that movant has a duty to, in good faith, confer or attempt
to confer “with other affected parties in an effort to resolve the dispute without court action” before filing
a motion for a protective order in discovery). The JIBs were finally produced by Windsor in December
2012, but the underlying documentation was never produced and most of it was destroyed.
10
[¶27] In addition, Suncor did not have any input on the expenses or field development
options, such as plugging and abandoning the nonproductive wells sooner in order to save
money or finding other ways to avoid operation and P & A costs. Windsor failed to
communicate with Suncor about its potential liability even though Dolphin had never
paid a single JIB. The trial evidence does not show any justification for Windsor’s delay.
On these facts, the district court did not abuse its discretion when it concluded Windsor’s
delay in asserting its claim against Suncor was inexcusable or undue.
[¶28] With regard to the second element of a laches defense -- prejudice-- the district
court found:
76. At trial, the evidence showed Suncor was
prejudiced by Windsor’s undue delay in several ways:
a. Suncor was not able to examine the JIBs
or the underlying documents to check for errors;
b. Suncor was not allowed to participate in
decisions regarding the operation of the wells, and was not
allowed to explore options to avoid incurring P & A costs;
c. Suncor could not take any action
between 2005 and 2009 to protect its interests, such as
negotiating a settlement with Windsor before litigation was
filed;
d. From 2005-2009 Suncor had staff in the
United States who could have reviewed the JIBs to make sure
costs were legitimate under the authorization for expenditures
(“AFEs”) Suncor or Dolphin signed, but Suncor currently has
no staff in the United States, so there is no one to review the
JIBs or question the invoices; and
e. Windsor waited to sue Suncor until
Dolphin was insolvent, and Suncor can no longer seek
subrogation or indemnification from its assignee.
77. In addition, the late production of the JIBs
impacted Suncor’s ability to prepare a defense, because other
than the summary of the JIBs that was provided in discovery,
Suncor had no information about the costs that formed the
basis of Windsor’s claim until the JIBs were produced in
December 2012.
78. Windsor argues that Suncor was not prejudiced
by not receiving earlier notice of Dolphin’s non-payment or
11
the actual JIBs, because Suncor had no rights under the JOA
to receive or inspect the JIBs. After Suncor assigned its
interest in the wells to Dolphin, Dolphin became the non-
operating party to the JOA. As such, Windsor had a duty to
send the JIBs to Dolphin, and it fully complied with this duty.
Dolphin then had the right to review the JIBs, ask for
clarification or correction if needed, and to audit the JIBs
within two years if it chose to do so.
79. Windsor’s argument seems to be somewhat
incongruous. Windsor first argued that Suncor was not
prejudiced because it could have asserted its right to audit
Windsor’s numbers. It then claimed that Suncor had no rights
to inspect or challenge the JIBs because Suncor lost all rights
it had under the JOA when it assigned its interest to Dolphin.
When questioned by the Court about these seemingly
contradictory statements, Windsor claimed that Suncor should
have been monitoring its assignee and should have asked
Dolphin to invoke its audit rights on Suncor’s behalf.
80. The court does not find Windsor’s argument
persuasive. Even if Suncor should have asked Dolphin to
demand an audit after it received the demand letter in 2009,
because Windsor waited five years to make a demand on
Suncor, there were already two years of JIBs Dolphin would
not have been able to audit. [footnote]
[The footnote stated]: Windsor claims that this
did not result in any prejudice to Suncor because Windsor
was audited by an outside company during this time, and no
errors were found in its accounting for the period of 2005-
2008. However[,] the testimony also established that this
audit was not a well audit done by a non-operator, and the
audit was done when the underlying documents still existed.
Because this information has subsequently been destroyed,
the audit cannot be redone.
81. Due to Windsor’s delay, Suncor was unable to
obtain evidence it could have used in its defense, witnesses
who were involved in the original transactions were no longer
available, Suncor could no longer seek indemnification from
its insolvent assignee, and Suncor was not able to take any
action to avoid incurring these significant expenses.
12
[¶29] The evidence presented at trial supports the district court’s findings. Windsor
sought to hold Suncor responsible under the JOA even though it had already assigned its
interest. Windsor did not, however, believe that the operator’s duties of notification and
obtaining consent under the JOA applied to Suncor because it was not the current non-
operator. As such, it did not present AFEs or JIBs to Suncor or include it in any partner
meetings or decision-making processes.
[¶30] To further confound the situation, Windsor did not retain most of the underlying
documentation which would have at least allowed Suncor to confirm whether Dolphin
received the AFEs and other notifications under the JOA. In addition, there were no
invoices, receipts, etc. to justify the expenses shown on the JIBs or to show that the
expenses were allocated properly. Windsor argued at trial that it was too late for the non-
operator to audit or contest any of the expenses because the JOA imposed a two year
deadline on contesting the operator’s reported expenses. We note, as did the district
court, that the two year review period was triggered when the operator sent the JIBs and
Windsor did not send any JIBs to Suncor until after the right to audit on most of them had
already expired. In addition, Windsor’s argument begs the question of whether the
expenses were properly justified and proportioned and clearly demonstrates the unfair
position taken by Windsor—that the non-operator was bound by the JOA requirements
but the operator was not. The district court aptly described the situation in its final
conclusion regarding laches:
82. Fundamental fairness will not allow the Court
to award Windsor the remedy that it seeks. “Equity aids the
vigilant, not those who slumber on their rights.” Application
of Beaver Dam Ditch Company., 93 P.2d 934, 939, 54 Wyo.
459, 482 (Wyo. 1939). The Court finds that because
Windsor’s undue delay in enforcing its rights prejudiced
Suncor, laches should apply to bar Windsor’s recovery.
[¶31] The district court’s decision also touched briefly on the fact that Windsor’s failure
to retain most of the underlying documentation or to produce any that still existed also
raised an issue regarding spoliation of evidence and affected its ability to prove damages.
Many years ago in Continental Sheep Co. v. Woodhouse, 256 P.2d 97, 99-101 (Wyo.
1953), we discussed the implications of a party’s failure to retain underlying
documentation of a debt. Continental Sheep claimed it overpaid for hay provided by
Woodhouse and presented evidence showing that it had paid for one hundred tons of hay
it did not receive. Woodhouse kept records of the total amounts of hay delivered but the
pages showing the individual deliveries to Continental Sheep were torn out of the
accounting book. We stated it was “altogether probable” that the hay was delivered to
someone else and Continental Sheep was charged by mistake. Id.
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[¶32] With regard to the missing pages from Woodhouse’s accounting book, this Court
stated:
These pages, which represented original entries, were not
produced in the trial of this case, although the witness Jones
looked for them. That witness admitted that it is not
customary to tear out pages from a book which is a book of
original entries. And the fact of tearing out the pages from
this book and losing them is a circumstance which throws
considerable doubt on the fact that the evidence submitted
by the defendant is correct.
Id. at 100, citing 31 C.J.S., Evidence, § 153, p. 845 (emphasis added). See also Farm Inv.
Co. v. Wyoming College & Normal School, 10 Wyo. 240, 68 P. 561 (Wyo. 1902)
(holding party chargeable for face value of promissory notes because it failed to account
for amounts collected); Abraham v. Great Western Energy, LLC, 2004 WY 145, ¶¶ 20-
22, 101 P.3d 446, 455-56 (Wyo. 2004) (discussing presumptions that may be applied
when a party withholds, destroys or alters evidence). Like in Continental Sheep, Windsor
did not retain the underlying documentation to establish the legitimacy of the total
expenses set forth in the JIBs.
[¶33] The district court noted, however, that the limited evidence presented at trial
regarding the accuracy of the JIBs showed they were “reliable and reflect costs that were
actually incurred.” The district court also stated that “Windsor had an independent
reason for ensuring the reasonableness of the costs and the accuracy of the billing;
specifically, under the JOA, Windsor was responsible for paying 75% of the costs.”
Windsor asserts the district court’s statements indicate the underlying documents were
unnecessary to prove its expenses.
[¶34] The district court’s observations are correct as far as they go. Nevertheless, as the
district court noted later in its decision, the costs could not be overseen or tested by
Suncor in the ways contemplated by the JOA and the matter of proper allocation could
not be reviewed. There were possibilities of improper costs being attributed to the wells
or proper costs being improperly allocated which, as in Continental Sheep, would require
the underlying AFEs, invoices, receipts, etc. to confirm. Windsor’s argument that the
underlying documents were irrelevant would render meaningless the provisions in the
JOA pertaining to the operator’s duties to notify and obtain the non-operator’s consent to
certain costs. Consequently, in addition to affecting the prejudice component of laches,
the lack of supporting documentation also adversely affected Windsor’s ability to
establish its damages in this case.
14
[¶35] Our ruling that laches bars Windsor’s claim against Suncor makes it unnecessary
to address the district court’s summary judgment decision that Suncor remained liable
under the JOA even after it had assigned its interest to Dolphin.
[¶36] Affirmed.
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