Tep Rocky Mountain Llc, a Delaware Limited Liability Company, F/K/A Wpx Energy Rocky Mountain, Llc, a Delaware Limited Liability Company v. Record Tj Ranch Limited Partnership, a Wyoming Limited Partnership , 2022 WY 105 ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 105APRIL TERM, A.D. 2022
August 25, 2022
TEP ROCKY MOUNTAIN LLC, a
Delaware limited liability company,
f/k/a WPX ENERGY ROCKY
MOUNTAIN, LLC, a Delaware limited
liability company,
Appellant
(Defendant),
S-21-0288
v.
RECORD TJ RANCH LIMITED
PARTNERSHIP, a Wyoming limited
partnership,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable Thomas W. Rumpke, Judge
Representing Appellant:
Isaac N. Sutphin, Jeffrey S. Pope, and Macrina M. Sharpe, Holland & Hart LLP,
Cheyenne, Wyoming. Argument by Mr. Pope.
Representing Appellee:
Dan B. Riggs, Amanda K. Roberts, and J. Kyle Hendrickson, Lonabaugh and Riggs,
LLP, Sheridan, Wyoming. Argument by Mr. Hendrickson.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
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.
KAUTZ, Justice.
[¶1] Record TJ Ranch Limited Partnership (TJ Ranch) sued TEP Rocky Mountain LLC
(TEP RM) and Carbon Creek Energy, LLC (Carbon Creek) for payment under a surface
use and damage agreement (SUA) governing oil and gas development and production on
the ranch lands. Carbon Creek defaulted and is not a party here. The district court denied
TEP RM’s motion to dismiss for lack of personal jurisdiction, granted summary judgment
to TJ Ranch on several issues, and, following a bench trial, found TEP RM had breached
the agreements and TJ Ranch was entitled to payment. We affirm.
ISSUES
[¶2] TEP RM presents the following issues, which we restate:
1. Did the district court have personal jurisdiction over TEP RM?
2. Did the district court err in finding TJ Ranch reasonably withheld its
consent for assignment of the SUA?
3. Did the district court err in finding TJ Ranch did not novate the SUA?
4. Did the district court err by refusing to stay this case pending
resolution of a related federal case?
FACTS
Surface Use Agreement
[¶3] TJ Ranch is located in the Powder River Basin of Campbell County and, at all times
relevant to this matter, was owned by the Record family. In 1999, operator Barrett
Resources Corporation and the Record family entered into the SUA to govern the
development of oil and gas leases on the ranch lands. Paragraph 47 of the SUA addressed
assignment.
47. Assignment. Operator may assign this
Agreement, in whole or in part, with the prior written consent
of the Owners, which shall not be unreasonably withheld in the
case of assignment to a reputable Operator who expressly
assumes the obligations of Operator hereunder with the proven
financial capability to fully perform all of the Operator’s
responsibilities under this Agreement, both at the present time
and for the reasonably foreseeable term of this Agreement. In
the case, however, that Operator assigns this Agreement
1
without first obtaining such written consent of Owners, then
any such assignment by Operator shall not relieve Operator of
its obligations hereunder and upon any such assignment,
Operator and its assignees and successor assignees shall
remain jointly and severally responsible in the full, faithful and
complete performance of all promises and obligations
undertaken herein by the Operator.
The parties consented to Wyoming district court jurisdiction for any “lawsuit” “arising out
of or in conjunction with” the SUA.
[¶4] Over time, the Record family transferred its interests in the ranch and SUA to TJ
Ranch, and different companies took over as operator under the SUA. The various
operators developed coal bed methane gas wells and associated infrastructure, including
roads, pipelines, reservoirs, and irrigation facilities on the ranch lands. From 1999 through
2008, TJ Ranch and the operators amended the SUA and entered into agreements for
additional facilities, but the changes did not alter the parties’ obligations to each other in
any relevant way. WPX Energy Rocky Mountain, LLC (WPX RM), which was solely
owned by WPX Energy Holdings, LLC (WPX Holdings), took over as operator under the
SUA in 2012.
WPX RM’s Sale of Gas Interests and Assignment of the SUA to
Moriah/Carbon Creek
[¶5] On July 31, 2015, WPX RM sent a letter to TJ Ranch seeking its consent for WPX
RM’s assignment of the SUA to Moriah Powder River, LLC (Moriah). The letter stated
WPX RM “has entered into” an agreement, “effective January 1, 2015,” to sell all its
Powder River Basin methane assets, including those located on TJ Ranch property, to
Moriah. Referencing the SUA, WPX RM asked TJ Ranch to “indicate [its] consent and
approval of the assignment . . . by signing in the space” at the bottom of the letter and
returning it to WPX RM within five days of receipt. The letter said that if TJ Ranch had
any questions or needed additional information, it should contact the WPX RM landman
who sent the letter. WPX RM did not include any additional information about the sale or
Moriah with its consent letter.
[¶6] In deciding whether to consent to the assignment, the principals for TJ Ranch, Jerry
and Sarah Record, researched Moriah online. They discovered the company had “just been
formed” but could not locate any information about Moriah’s financial condition or
reputation in the oil and gas industry. TJ Ranch did not return the consent form to WPX
RM, nor did WPX RM make any additional effort to communicate with TJ Ranch about
the sale to Moriah or the assignment. Despite TJ Ranch’s failure to approve the
assignment, the sale closed on September 1, 2015, and WPX RM assigned the SUA to
Moriah.
2
Sale of WPX RM Membership Interest and Change of Name to TEP RM
[¶7] In 2016, WPX Holdings sold its 100% membership interest in WPX RM to Terra
Energy Partners LLC (Terra Energy). The Membership Interest Purchase Agreement
(MIPA) stated WPX RM’s assets did not include “rights, title and interests in the real and
personal property interests, leasehold interests and other assets and interests set forth in
Exhibit H.” The list of excluded assets in Exhibit H included “[a]ny and all obligations
arising out of the terms and conditions of the Purchase and Sale Agreement . . . between
[WPX RM] and Moriah . . . .” After purchasing the membership interest, Terra Energy
changed WPX RM’s name to TEP RM. Because WPX RM had transferred its Wyoming
assets and operations to others before Terra Energy bought WPX Holdings’ ownership
interest in WPX RM, the renamed LLC -- TEP RM -- did not have any ongoing operations
or assets in Wyoming.
Forbearance Agreement and Default
[¶8] Also in 2016, Carbon Creek, a sister company formed by Moriah to operate its gas
interests, contacted TJ Ranch seeking a discount on the 2016 SUA payment because gas
prices were low. TJ Ranch agreed to a five percent discount because the Records believed
it “would be worth the goodwill that [the ranch] might be able to acquire with the new
companies and also to foster a good working relationship with them.” Carbon Creek
remitted the discounted 2016 payment.
[¶9] In 2017, Carbon Creek tendered $444,441.73 to TJ Ranch for its annual SUA
payment. TJ Ranch rejected Carbon Creek’s payment and sent notices of default to Carbon
Creek and WPX RM, claiming it was owed an annual payment of more than $1,000,000.
At the time, TJ Ranch was not aware that WPX Holdings had sold its membership interest
in WPX RM to Terra Energy or that WPX RM’s name had been changed to TEP RM.
Carbon Creek thereafter informed TJ Ranch it would be “indemnifying WPX.”
[¶10] TJ Ranch and Carbon Creek eventually agreed TJ Ranch would forbear filing suit
to enforce the payment terms of the SUA provided Carbon Creek complied with a modified
payment schedule based upon the price of natural gas (Forbearance Agreement). Carbon
Creek’s 2017 payment under the terms of the Forbearance Agreement was $725,000.
[¶11] The Forbearance Agreement expressly ratified the SUA and stated “[s]ubject to its
duty to forbear as provided in this [a]greement, [TJ Ranch] reserves all rights under the
[SUA], including its right to hold [Carbon Creek’s] predecessors-in-interest liable for the
performance of all obligations” under the SUA after exercising its right to terminate the
Forbearance Agreement. The Forbearance Agreement’s termination provision provided
that if Carbon Creek failed to “timely make any payment,” TJ Ranch would notify Carbon
3
Creek of the breach and its right to cure within 60 days. If Carbon Creek did not cure, the
Forbearance Agreement became “null and void.” The parties further agreed:
To avoid any doubt and by way of example, in the event this
[a]greement is terminated by [TJ Ranch] . . . in the year 2020,
[TJ Ranch] shall be entitled to recover from [Carbon Creek]
and its respective predecessors-in-interest all sums owed under
[the SUA] for the years 2017, 2018, 2019, and 2020 . . . less
any sums received in those years from [Carbon Creek].”
[¶12] Carbon Creek paid in accordance with the Forbearance Agreement until 2020, when
it defaulted after Moriah (n/k/a US Realm Powder River, LLC) declared bankruptcy. TJ
Ranch sent notices of default to Carbon Creek and the WPX Energy entities. Instead of
responding directly to the notice of default, WPX Energy, Inc. (the parent company of the
WPX entities) filed a declaratory judgment action against TJ Ranch in the United States
District Court for the District of Wyoming, seeking a declaration that WPX Energy, Inc.,
and by association all WPX entities, were not liable under the SUA because TJ Ranch
“executed a new contract with Carbon Creek that superseded and replaced any prior
obligations.”
Course of Proceedings in the Case at Bar
[¶13] After WPX Energy, Inc. filed its federal declaratory judgment action, TJ Ranch
brought this suit for breach of the SUA in the Wyoming district court for Campbell County.
TJ Ranch originally named only Carbon Creek and WPX RM as defendants. Once it
learned WPX RM had changed its name, TJ Ranch amended its complaint to designate
TEP RM f/k/a WPX RM and Carbon Creek as defendants.
[¶14] Carbon Creek defaulted. TEP RM filed a motion to dismiss the action, claiming the
district court lacked personal jurisdiction over it because it did not have minimum contacts
with the State of Wyoming. The district court denied TEP RM’s motion to dismiss because
WPX RM had sufficient contacts with Wyoming and WPX RM’s contacts should be
imputed to TEP RM. The district court also denied TEP RM’s request to stay the state
court action pending resolution of WPX Energy, Inc.’s federal case.
[¶15] Thereafter, the parties filed cross motions for summary judgment. TJ Ranch
asserted it was entitled to summary judgment for several reasons: 1) WPX RM remained
liable under the SUA because it did not obtain TJ Ranch’s prior written consent for its
assignment to Moriah; 2) when Carbon Creek defaulted, the Forbearance Agreement
became null and void and TJ Ranch retained all rights under the SUA, including its right
to performance from Moriah/Carbon Creek’s predecessor-in-interest, WPX RM; and 3)
TEP RM assumed WPX RM’s liability to TJ Ranch.
4
[¶16] TEP RM countered that it was entitled to summary judgment because, in relevant
part: 1) it was unreasonable for TJ Ranch to withhold consent for the assignment to
Moriah; 2) TEP RM was not liable for WPX RM’s obligations under the SUA because the
MIPA was a simple asset sale, which specifically excluded liability for interests already
transferred to Moriah; or 3) TJ Ranch impliedly or equitably novated the SUA by entering
into the Forbearance Agreement with Carbon Creek.
[¶17] The district court denied TEP RM’s motion for summary judgment and granted, in
part, and denied, in part, TJ Ranch’s motion for summary judgment. The court determined,
as a matter of law: 1) TEP RM was liable for WPX RM’s debts because under the terms
of the MIPA, TEP Energy purchased WPX Holdings’ membership interest in WPX RM
rather than WPX RM’s assets; and 2) the Forbearance Agreement did not expressly novate
the SUA. The district court found genuine issues of material fact precluded summary
judgment as to whether: 1) TJ Ranch impliedly novated the SUA through its conduct; and
2) TJ Ranch unreasonably withheld consent for the assignment from WPX RM to Moriah.
The court also denied TEP RM’s renewed motion for a stay.
[¶18] After a bench trial on the outstanding factual questions, the district court granted
judgment in favor of TJ Ranch and against TEP RM and Carbon Creek, holding them
jointly and severally liable for the amounts due under the SUA, which totaled
$2,331,835.31. TEP RM appealed.
DISCUSSION
Personal Jurisdiction
[¶19] The district court assumed personal jurisdiction over TEP RM. “Personal
jurisdiction refers to the power of a court to make an adjudication applicable to a
[defendant].” Pilcher v. Elliott, 2020 WY 130, ¶ 16, 473 P.3d 1251, 1255 (Wyo. 2020);
Crofts v. State ex rel. Dep’t of Game & Fish, 2016 WY 4, ¶ 38, 367 P.3d 619, 628 (Wyo.
2016). The determination of whether a district court properly exercised personal
jurisdiction over a defendant may present mixed questions of law and fact. Black Diamond
Energy Partners 2001-A Ltd. v. S & T Bank, 2012 WY 84, ¶ 17, 278 P.3d 738, 742 (Wyo.
2012). However, when the relevant facts are undisputed, the jurisdictional issue is a matter
of law reviewed de novo. Id., ¶¶ 17-18, 278 P.3d at 742 (citing Cheyenne Publ’g, LLC v.
Starostka, 2004 WY 88, ¶ 10, 94 P.3d 463, 469 (Wyo. 2004), and O’Bryan v. McDonald,
952 P.2d 636, 638 (Wyo. 1998)). See also, Meyer v. Hatto, 2008 WY 153, ¶ 14, 198 P.3d
552, 555 (Wyo. 2008) (in the face of undisputed facts, “[t]he question of whether personal
jurisdiction can properly be exercised in Wyoming is . . . a question of law to be reviewed
de novo”).
5
[¶20] Wyoming’s long-arm statute allows courts to exercise jurisdiction over a non-
resident defendant “on any basis not inconsistent with the Wyoming or United States
constitution.” Wyo. Stat. Ann. § 5-1-107(a) (LexisNexis 2021). “Due process requires
that the defendant have certain ‘minimum contacts’ with the forum state such that the
exercise of jurisdiction over [it] does not offend ‘traditional notions of fair play and
substantial justice.’ Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158,
90 L.Ed. 95 (1945).” Black Diamond Energy, ¶ 19, 278 P.3d at 743 (quoting Amoco Prod.
Co. v. EM Nominee P’ship Co., 886 P.2d 265, 267 (Wyo. 1994) (some quotation marks
omitted). See also, H&P Advisory Ltd. v. Randgold Res. Ltd., 2020 WY 74, ¶ 10, 465 P.3d
433, 437 (Wyo. 2020). A state court acquires personal jurisdiction if the defendant
“‘purposely avails itself of the privilege of conducting activities within the forum state,
thus invoking the benefits and protections of its laws.’” Black Diamond Energy, ¶ 20, 278
P.3d at 743 (quoting Olmstead v. Am. Granby Co., 565 P.2d 108, 112 (Wyo. 1997)). The
traditional three-part test for specific personal jurisdiction requires:
First, [the defendant] must have purposefully availed [itself] of
the privilege of acting in Wyoming or of causing important
consequences in Wyoming. Second, [the plaintiff’s] cause of
action must arise from consequences in Wyoming of the
[defendant’s] activities. Finally, [the defendant’s] activities or
the consequences of those activities must have a substantial
enough connection with Wyoming to make the exercise of
jurisdiction over [the defendant] reasonable.
H & P Advisory, ¶ 12, 465 P.3d at 438 (citations, quotations, and footnote omitted).
[¶21] The district court exercised personal jurisdiction over TEP RM by holding it
responsible for WPX RM’s contacts with Wyoming. TEP RM stated in its opening
appellate brief that it “d[id] not dispute WPX RM’s contacts [met] the test for personal
jurisdiction,” but asserted the district court erred by “imputing” WPX RM’s contacts to
TEP RM. TJ Ranch accepted TEP RM’s concession of the sufficiency of WPX RM’s
contacts with Wyoming in formulating its response to TEP RM’s jurisdictional claim.
Notwithstanding its earlier statement, TEP RM asserted in its reply brief that WPX RM
“does not have the necessary contacts to justify” the Wyoming court’s exercise of personal
jurisdiction. Although TEP RM “d[id] not dispute” WPX RM “operated in Wyoming for
several years, purposely availing itself of the State,” TEP RM maintained traditional
notions of fair play and substantial justice were offended by Wyoming’s exercise of
personal jurisdiction over WPX RM because it ceased operations in the state five years
before TJ Ranch filed suit.
[¶22] We reject TEP RM’s argument for two reasons. First, TEP RM misuses the reply
briefing procedure. An appellant is entitled to file a reply brief in response to “new issues
and arguments” raised in an appellee’s brief. Wyoming Rule of Appellate Procedure
6
(W.R.A.P.) 7.03(a). TJ Ranch did not raise a new issue. It simply accepted TEP RM’s
statement that WPX RM’s contacts with Wyoming were sufficient for personal
jurisdiction. It was TEP RM that presented a new issue, which is not proper use of a reply
brief. Ultra Res., Inc. v. McMurry Energy Co., 2004 WY 121, ¶ 11, 99 P.3d 959, 963
(Wyo. 2004) (“‘questions not raised in the [appellant’s] original brief are deemed waived
and will not be considered when raised for the first time in the reply brief’” (quoting Lunney
v. S. Ry. Co., 133 So.2d 247, 249 (Ala. 1961))).
[¶23] Second, TEP RM’s argument that Wyoming could not exercise personal jurisdiction
over WPX RM is baseless. As the district court correctly stated in its order denying TEP
RM’s motion to dismiss, “[i]t is beyond cavil that WPX [RM] has substantial contacts with
Wyoming as it was the previous operator under the SUA[] at issue. These specific contacts
relate directly to the cause of action that is the subject of this case and justify the [c]ourt
exercising jurisdiction” over WPX RM. There is no question that WPX RM purposefully
availed itself of the privilege of acting in Wyoming. H&P Advisory Ltd., ¶ 12, 465 P.3d at
438. For years, WPX RM operated the gas production activities on TJ Ranch under the
terms of the SUA. TJ Ranch’s claims arose directly from the “consequences in Wyoming”
of WPX RM’s failure to perform the duties assigned to it in the SUA, making the district
court’s “exercise of jurisdiction . . . reasonable.” Id. There is nothing unfair or unjust
about a Wyoming court assuming jurisdiction over a party which assertedly owes a
continuing contractual duty to a Wyoming landowner for activities on its land.
[¶24] Given WPX RM had sufficient contacts with Wyoming for the district court to
exercise personal jurisdiction over it and TEP RM does not, under that name, have any
such contacts, the question is whether the district court properly exercised jurisdiction over
TEP RM by holding it responsible for WPX RM’s activities in Wyoming. “A corporation’s
contacts with a forum may be imputed to its successor if forum law would hold the
successor liable for the actions of its predecessor.” Williams v. Bowman Livestock Equip.
Co., 927 F.2d 1128, 1132 (10th Cir. 1991) (citing City of Richmond v. Madison Mgmt. Grp.,
918 F.2d 438, 454 (4th Cir. 1990)); Ostrem v. Prideco Secure Loan Fund, LP, 841 N.W.2d
882, 896 (Iowa 2014) (“permitting imputation of contacts if successor [would be] liable for
actions of predecessor under forum law” (citing Williams, 927 F.2d at 1132)). We are,
therefore, taxed with determining whether Wyoming law would hold TEP RM responsible
for WPX RM’s actions.
[¶25] Terra Energy purchased WPX Holdings’ 100% membership interest in WPX RM
and changed the name of the company to TEP RM. “Certain business entities, such as
corporations and LLCs, are separate and distinct from their owners.” Mantle v. N. Star
Energy & Constr. LLC, 2019 WY 29, ¶ 126, 437 P.3d 758, 798 (Wyo. 2019). See also,
Wyo. Stat. Ann. § 17-29-104(a) (LexisNexis 2021) (a limited liability company is “an
entity distinct from its members”). “Generally, this separateness of identity insulates the
entity’s owners from personal liability for the entity’s obligations, liabilities, and debts.”
Mantle, ¶ 126, 437 P.3d at 798-99 (citing 1 Fletcher Cyc. Corp. § 14 (database updated
7
September 2018)). See also, Pilcher, ¶ 11, 473 P.3d at 1254 (“The distinction [of identity
between an entity and its owners] separates the rights and liabilities of the [entity] from
those of its members and owners.”).
[¶26] The separateness of a business entity and its owners also means a “sale or purchase
of stock [or membership interests] does not eliminate the [entity’s] debts and obligations
because the legal entity remains the same.” Sinquefield v. Sears Roebuck & Co., 568
N.E.2d 325, 326 (Ill. App. Ct. 1991). A change of business interest ownership does not
affect the business entity’s “contract rights or liabilities.” First Am. Title Ins. Co. v. Nw.
Title Ins. Agency, 906 F.3d 884, 891 (10th Cir. 2018) (citing 11 William Meade Fletcher,
Fletcher Cyclopedia of the Law of Corporations § 5100 (2011)). Applying this rule, Terra
Energy’s purchase of WPX Holdings’ sole membership interest in WPX RM did not affect
WPX RM’s responsibilities under the SUA to TJ Ranch.
[¶27] Similarly, when a business entity changes its name, it is “not relieved of obligations
incurred under the old name.” Victory Lake Marine, Inc. v. Velduis, 621 N.W.2d 306, 310-
11 (Neb. Ct. App. 2000) (discussing Pilsen Brewing Co. v. Wallace, 125 N.E. 714, 715-16
(Ill. 1919)). A business name change does not affect the entity’s contractual liability. 18
Am.Jur.2d Corporations § 234. See also, Victory Lake Marine, 621 N.W.2d at 311 (“‘[a]
change of corporate name does not make a new corporation, but only gives the corporation
a new name’” (quoting W.T. Rawleigh Medical Co. v. Bunning, 176 N.W. 85, 86 (Neb.
1920))). Thus, under general legal principles, neither WPX Holdings’ sale of the WPX
RM membership interest to Terra Energy nor the change of WPX RM’s name to TEP RM
affected the company’s continuing liability under the SUA to TJ Ranch.
[¶28] Nevertheless, TEP RM asserts it cannot be held responsible for WPX RM’s
activities in Wyoming because it is not a “mere continuation” of WPX RM and/or there
was no “de facto merger” between WPX RM and TEP RM. It points out that TEP RM
does not share any officers, directors, or shareholders with any WPX entity. Both of TEP
RM’s arguments are premised on the transaction between WPX Holdings and Terra Energy
being a simple sale of the assets of WPX RM rather than a sale of the membership interest.
[¶29] In the usual case, an entity “that purchases or otherwise acquires [only] the assets
of [the selling entity] does not assume the debts and liabilities of the [selling entity.]” Bud
Antle, Inc. v. E. Foods, Inc., 758 F.2d 1451, 1456 (11th Cir. 1985) (citing Kemos, Inc. v.
Bader, 545 F.2d 913, 915 (5th Cir. 1977)). Stated another way, subject to certain
exceptions, “[t]he general rule of successor liability in the context of asset purchase
agreements is that [an entity] which purchases the assets of another [entity] does not
succeed to the liabilities” of the seller. Columbia Propane, L.P. v. Wis. Gas Co., 661
N.W.2d 776, 784 (Wis. 2003) (citations and quotations omitted). See also, Gladstone v.
Stuart Cinemas, Inc., 878 A.2d 214, 220 (Vt. 2005) (in a simple sale of assets, “the
purchasing corporation assumes no liabilities of the selling corporation” unless an
exception applies); Alcan Aluminum Corp. v. Elec. Metal Prods., Inc., 837 P.2d 282, 283
8
(Colo. App. 1992) (subject to certain exceptions, “a corporation which acquires the assets
of another corporation does not become liable for the debts of the selling corporation”).
The court in Sinquefield, 568 N.E.2d at 326, nicely summarized the dichotomy: “A mere
sale or purchase of stock does not eliminate the [entity’s] debts and obligations because the
legal entity remains the same,” but “[g]enerally[] when one [entity] sells its assets to
another [entity], the seller’s liabilities do not become a part of the successor [entity]” unless
a specific exception applies. Id. (citations and emphasis omitted).
[¶30] TEP RM’s arguments that it is not responsible for WPX RM’s contractual
obligations because it is not a “mere continuation” of the company and/or there was no “de
facto merger” between the companies are exceptions to the general rule that a buyer in an
asset-only transaction does not assume the seller’s obligations. The exceptions apply
when: “(1) the buyer expressly or impliedly agree[s] to assume such debts; or (2) the
transaction amounts to a de facto merger of the buyer and seller; or (3) the buying
corporation is a ‘mere continuation’ of the selling corporation; or (4) the transaction is
entered into fraudulently in order to escape liability for such debts.” Bud Antle, 758 F.2d
at 1456 (citing Acheson v. Falstaff Brewing Corp., 523 F.2d 1327, 1329-30 (9th Cir.
1975)). See also, Columbia Propane, 661 N.W.2d at 784 (listing four exceptions to the
general rule of nonliability for a purchaser of a seller’s assets). Some jurisdictions add a
fifth exception for cases where the purchaser gave inadequate consideration for the sale.
Gladstone, 878 A.2d at 220 (citation omitted).
[¶31] The “mere continuation” and “de factor merger” exceptions relied on by TEP RM
do not come into play unless the sale of WPX RM was an asset-only sale. The district
court ruled “the plain language of the [MIPA] simply belies any claim this was an asset
purchase agreement.” We agree.
[¶32] The MIPA included a choice of law provision requiring it to be interpreted in
accordance with Colorado law. Like Wyoming, Colorado courts interpret unambiguous
contracts as a matter of law, using the “plain and ordinary meaning” of the contractual
terms to determine the intent of the contracting parties. City of Aurora v. N. Colo. Water
Conservancy Dist., 236 P.3d 1222, 1226 (Colo. 2010) (en banc) (citations omitted); In re
Est. of Gadash, 413 P.3d 272, 277 (Colo. App. 2017) (interpretation of an unambiguous
contract is a question of law). See also, Ecocards v. Tekstir, Inc., 2020 WY 38, ¶ 18, 459
P.3d 1111, 1118 (Wyo. 2020) (Wyoming courts “interpret unambiguous contracts as a
matter of law”), and Thornock v. PacifiCorp, 2016 WY 93, ¶ 13, 379 P.3d 175, 180 (Wyo.
2016) (Wyoming courts give the words in a contract “‘the plain meaning that a reasonable
person would give to them’” (quoting Claman v. Popp, 2012 WY 92, ¶ 26, 279 P.3d 1003,
1013 (Wyo. 2012))).
[¶33] As we stated earlier, the agreement between WPX Holdings and Terra Energy (the
MIPA) was titled “Membership Interest Purchase Agreement.” WPX Holdings agreed to
“sell, transfer, assign, convey and deliver” to Terra Energy “the Membership Interests . . .
9
and [Terra Energy] agree[d] to purchase, acquire and accept the Membership Interests.”
“Membership Interests” were defined as “100% of the issued and outstanding membership
interests of [WPX RM], a Delaware limited liability company.”
[¶34] Although the MIPA contained lists of assets included and excluded as property of
WPX RM, there is no indication the parties intended the MIPA to act as an asset-only
transaction rather than a global transfer of the sole membership interest in the company.
As the district court pointed out, the listing of WPX RM’s assets was important to other
aspects of the sale such as addressing tax consequences. The asset lists were also used to
define WPX Holdings’ and WPX Energy, Inc.’s indemnification obligations to Terra
Energy. Because Terra Energy’s purchase of WPX RM from WPX Holdings through the
MIPA was not an asset-only sale, the “mere continuation” and “de facto merger”
exceptions do not apply in its case.
[¶35] TEP RM also claims that because the TJ Ranch assets and the SUA were contained
in the list of assets excluded from the MIPA transaction, WPX Holdings and Terra Energy
intended to insulate TEP RM from any liability WPX RM might incur as a result of
Moriah/Carbon Creek’s failure to perform the SUA. While Terra Energy and WPX
Holdings were entitled to allocate the risks and responsibilities under the SUA between
themselves, they did not have the ability to divest TJ Ranch of a contractual right. As we
stated in Pennaco Energy, Inc. v. KD Co. LLC, 2015 WY 152, ¶ 17, 363 P.3d 18, 23 (Wyo.
2015), “‘one who owes money or is bound to any performance whatsoever cannot by its
own act, or by any act in agreement with anyone else . . . divest itself of the duty and
substitute the duty of another’” (quoting Samuel Williston, Williston on Contracts, § 74.27,
412-413 (4th ed. 2003)). See also, Restatement (Second) of Contracts, § 318(3) (“Unless
the obligee agrees otherwise, neither delegation of performance nor a contract to assume
the duty made with the obligor by the person delegated discharges any duty or liability of
the delegating obligor.”). The MIPA did not defeat TJ Ranch’s continuing right to hold
TEP RM responsible under the SUA.
[¶36] TEP RM remained obligated for WPX RM’s debts and contractual responsibilities
in Wyoming, including performance under the SUA. TJ Ranch and the operators (which
included TEP RM f/k/a WPX RM) expressly “consent[ed] to the jurisdiction” of the
Wyoming district court for any “lawsuit . . . arising out of or in conjunction with” the SUA.
Additionally, TEP RM f/k/a WPX RM clearly had the requisite minimum contacts with
Wyoming because it purposely availed itself of the privilege of doing business in Wyoming
and the district court’s exercise of jurisdiction over it did not offend “traditional notions of
fair play and substantial justice.” Black Diamond Energy, ¶ 19, 278 P.3d at 743 (quotation
marks and citation omitted). The district court properly exercised personal jurisdiction
over TEP RM.
Sufficiency of the Evidence to Support the District Court’s Findings of Fact
10
[¶37] After the bench trial, the district court found, in relevant part: 1) TJ Ranch
reasonably withheld its consent for WPX RM’s assignment of the SUA to Moriah, and 2)
TJ Ranch did not, through its conduct with Carbon Creek, novate the SUA. TEP RM
claims these findings were not supported by the trial evidence. We review a district court’s
findings of fact after a bench trial “‘for clear error and its conclusions of law de novo.’”
Ailport v. Ailport, 2022 WY 43, ¶ 36, 507 P.3d 427, 440 (Wyo. 2022) (quoting Wheeldon
v. Elk Feed Grounds House, LLC, 2021 WY 71, ¶ 11, 488 P.3d 916, 919 (Wyo. 2021)).
See also, Shriners Hosps. For Children v. First N. Bank of Wyo., 2016 WY 51, ¶ 27, 373
P.3d 392, 403 (Wyo. 2016) (“Findings of fact will not be set aside unless they are clearly
erroneous.”) (citation and quotation marks omitted).
While the [factual findings of a judge] 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 reweighing disputed evidence. . . . 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.
[Moore v. Wolititch, 2015 WY 11, ¶ 9, 341 P.3d 421, 423
(Wyo. 2015)] (quoting Miner v. Jesse & Grace, LLC, 2014
WY 17, ¶ 17, 317 P.3d 1124, 1131 (Wyo. 2014)). “‘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.’” Id., ¶ 10, 341 P.3d at 423
(quoting Miner, ¶ 17, 317 P.3d at 1131).
Shriners Hosps., ¶ 27, 373 P.3d at 403 (quoting Wimer v. Cook, 2016 WY 29, ¶ 9, 369 P.3d
210, 215 (Wyo. 2016)) (some quotation marks omitted). Resolution of these issues
requires interpretation of the SUA.
We interpret unambiguous contracts as a matter of law.
Fix v. Forelle, 2014 WY 79, ¶ 16, 327 P.3d 745, 749 (Wyo.
2014) (citing Fayard v. Design Comm. Of Homestead
Subdivision, 2010 WY 51, ¶ 12, 230 P.3d 299, 303 (Wyo.
2010)). Consequently, we review the district court’s
interpretation of the contract de novo. Finley Res., Inc. v. EP
11
Energy E&P Co., L.P., 2019 WY 65, ¶ 7, 443 P.3d 838, 842
(Wyo. 2019).
Ecocards, ¶ 18, 459 P.3d at 1118.
1. Consent to Assignment
[¶38] The SUA addressed WPX RM’s continuing obligations to TJ Ranch after the
assignment to Moriah. WPX RM was allowed to assign its responsibilities to another
operator regardless of whether TJ Ranch consented. However, if WPX RM failed to secure
TJ Ranch’s prior written consent, the assignment would not “relieve” WPX RM of “its
obligations [under the SUA]” and WPX RM would “remain jointly and severally
responsible” with its assignees for “complete performance” of all the SUA obligations. TJ
Ranch was not permitted to “unreasonably” withhold consent for WPX RM’s assignment
of the SUA to “a reputable [o]perator . . . with the proven financial capability to fully
perform all of the [o]perator’s responsibilities under [the SUA], both at the present time
and for the reasonably foreseeable term” of the SUA.
[¶39] TJ Ranch did not give WPX RM prior written consent to its assignment of the SUA
to Moriah. The district court held a bench trial to resolve the factual issues pertaining to
whether TJ Ranch’s refusal to consent to the assignment was reasonable. The court ruled
TEP RM had the burden of proving Moriah was “reputable and able to pay the SUA
payments for the foreseeable future.” TEP RM told the court it accepted the allocation of
the burden of proof, and it does not challenge the district court’s ruling on appeal. We will,
therefore, use the same burden of proof when reviewing the district court’s findings of fact
and the trial evidence.
[¶40] The district court made several findings which separately, and together, led it to
conclude that TJ Ranch reasonably withheld its consent for WPX’s assignment of the SUA
to Moriah.
• TJ Ranch reasonably believed the assignment had already occurred when WPX RM
sent the letter seeking consent.
• WPX RM did not provide TJ Ranch with any information about Moriah; the
Records’ research did not reveal any information other than the company had
recently been formed; and WPX RM gave TJ Ranch a mere five days to return the
consent form.
• TEP RM failed to prove Moriah was a reputable operator.
• TEP RM failed to demonstrate Moriah had the proven financial capability to
perform all the operator’s responsibilities under the SUA.
We will address each finding in turn.
12
[¶41] The trial evidence supports the district court’s finding that TJ Ranch reasonably
believed the assignment to Moriah had already taken place when it received WPX RM’s
letter seeking consent. To reiterate, on July 31, 2015, WPX RM sent a letter to TJ Ranch
seeking consent for its assignment of the SUA to Moriah. The letter stated WPX RM “has
entered into” an agreement, “effective January 1, 2015,” to sell all its Powder River Basin
assets, including those located on TJ Ranch property, to Moriah. WPX RM asked TJ Ranch
to consent to the assignment “by signing in the space” at the bottom of the letter and
returning it to WPX RM within “five days of [TJ Ranch’s] receipt.” The letter said that if
TJ Ranch had any questions or needed additional Information, it should contact the WPX
RM landman who sent the letter. WPX RM did not include any additional information
about the sale or Moriah with its consent letter.
[¶42] Sarah Record testified she believed WPX RM was seeking retroactive consent for
an assignment made on January 1, 2015. Don Davis, retired vice president for business
development for WPX Energy, Inc., testified the WPX RM-Moriah sale did not close until
September 1, 2015, but conceded WPX RM did not convey that information to TJ Ranch.
Since WPX RM had the right to assign the SUA without TJ Ranch’s consent, it was logical
for TJ Ranch to believe WPX RM’s July 31 letter was not seeking prior written consent to
the assignment, which was required by the SUA for WPX RM to be relieved of its
contractual obligations.
[¶43] The trial record also supports the district court’s finding that TJ Ranch reasonably
withheld consent to the assignment. WPX RM gave TJ Ranch only five days to review the
letter requesting consent and return a signed copy. Despite this short deadline, WPX RM
provided no information to TJ Ranch about Moriah except its name. After receiving the
letter, the Records researched Moriah online and learned the company had been formed
only recently and did not have an online reputation. The Records were not privy to any
information about Moriah’s reputation as a coal bed methane operator or its financial
wherewithal to meet the obligations of the SUA.
[¶44] TEP RM claims the trial evidence demonstrates WPX RM followed industry
practices when it sought TJ Ranch’s consent for the assignment to Moriah. Mr. Davis and
Tiffany Pollock, Terra Energy’s vice president of land, testified that, when requesting
landowner consent for an assignment, operators typically do not provide information about
a proposed assignee’s finances or its reputation and experience in the oil and gas industry
unless the landowner asks for it. Mr. Davis stated WPX RM’s consent letter, with its offer
to provide more information upon request, was intended to start a discussion with TJ Ranch
about the assignment. TEP RM maintains this evidence shows WPX RM complied with
its duty under the SUA by providing Moriah’s name and it was TJ Ranch’s responsibility
to request additional information if necessary to its decision about whether to consent to
the assignment.
13
[¶45] The district court ruled TEP RM’s reliance on industry practices to interpret the
SUA was misplaced. Neither party in this case argues the SUA assignment provision is
ambiguous, and we agree. “When the provisions in the contract are clear and unambiguous,
the court looks only to the ‘four corners’ of the document in arriving at the intent of the
parties.” Thornock, ¶ 13, 379 P.3d at 180 (quoting Claman, ¶ 26, 279 P.3d at 1013) (other
citations omitted). We give the words in the contract the plain meaning a reasonable person
would give them. Id. However, when an otherwise unambiguous term had a “different,
special, or technical usage at the time the contract was executed,” courts may “‘consider
the circumstances surrounding execution of the agreement’” such as industry practices or
norms, to determine the parties’ intention. Id., ¶¶ 19-21, 379 P.3d at 181-82 (quoting Ultra
Res., Inc. v. Hartman, 2010 WY 36, ¶ 22, 226 P.3d 889, 905 (Wyo. 2010), and citing
Hickman v. Groves, 2003 WY 76, ¶ 11, 71 P.3d 256, 259-60 (Wyo. 2003) (considering
evidence of the common use of the term “oil rights” in a contract executed in 1944),
Caballo Coal Co. v. Fidelity Expl. & Prod. Co., 2004 WY 6, ¶ 11, 84 P.3d 311, 314-17
(determining whether the term “minerals” included coal bed methane), and Ecosystem Res.,
L.C. v. Broadbent Land & Res., LLC, 2012 WY 49, ¶ 12, 275 P.3d 413, 418 (Wyo. 2012)
(considering the use of the term “timber” in contracts executed in the early 1900’s) (other
citations omitted)). See also, Gumple v. Copperleaf Homeowners Ass’n, Inc., 2017 WY
46, ¶ 58, 393 P.3d 1279, 1296 (Wyo. 2017) and Schell v. Scallon, 2019 WY 11, ¶ 22, 433
P.3d 879, 887 (Wyo. 2019) (discussing Thornock). TEP RM does not direct us to any
language in the SUA with a technical meaning to warrant consideration of its “industry
practices” evidence.
[¶46] The plain language of the SUA did not require TJ Ranch to request information
about Moriah from WPX RM. The SUA clearly stated that before TJ Ranch had an
obligation to consent, WPX RM needed to provide an assignee which qualified as a
“reputable [o]perator” with “the proven financial capability to fully perform all the
[o]perator’s responsibilities under [the SUA], both at the present time and for the
reasonably foreseeable term.” The court did not err by rejecting TEP RM’s efforts to shift
WPX RM’s contractual responsibility to provide an appropriate assignee to TJ Ranch by
requiring it to sleuth out information about Moriah’s reputation and financial wherewithal.
[¶47] In any event, the dispute over the parties’ respective duties regarding the exchange
of information about Moriah is largely academic. The district court concluded TEP RM
failed to provide any evidence at trial demonstrating Moriah was a reputable operator with
the financial capability to fully perform under the SUA. The record supports its findings.
[¶48] Mr. Davis testified a “reputable operator” would, by definition, have a good
reputation in the oil and gas industry. “Reputation” is defined as “overall quality or
character as seen or judged by people in general,” or “a place in public esteem or regard:
good name.” “Reputation,” Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/reputation (2022). See also, Business Reputation, Black’s Law
Dictionary (10th ed. 2014) (“The public’s evaluation and regard for the quality of the
14
company’s goods or services.”). Mr. Davis testified it often takes “years to obtain a
reputation within the oil and gas industry.” The undisputed evidence showed Moriah had
been in existence for just a few months when WPX RM requested TJ Ranch’s consent to
the assignment. The district court correctly found the only evidence TEP RM offered at
trial about Moriah’s reputation as an operator was Mr. Davis’s testimony that WPX RM
had “favorable opinions” about some of the principals of Moriah. There was no evidence
about Moriah’s character or quality as an operator, that it had a good name in the industry,
or that it was held in esteem by the public. As such, TEP RM failed to prove Moriah was
a reputable oil and gas operator.
[¶49] The district court also ruled TEP RM did not prove Moriah had the financial
capability to meet its obligations to TJ Ranch under the SUA. To be considered capable
of something, the entity must “have attributes . . . required for performance or
accomplishment.” “Capable,” Merriam-Webster.com Dictionary, https://www.merriam-
webster.com/dictionary/capable (2022). The trial evidence showed that WPX RM was
primarily concerned with ensuring Moriah had sufficient funds to complete the sale and
provide appropriate bonds for plugging and abandoning wells, not with whether Moriah
could fulfill its responsibilities to TJ Ranch. While Mr. Davis gave some vague testimony
that WPX RM knew Moriah was being capitalized by its parent company and “private
equity” funds, he conceded WPX RM “did not know how much money” Moriah had and,
as a “new entity,” Moriah “really didn’t have a lot of financials associated with it.” TEP
RM provided no substantive evidence that Moriah had the financial capability to perform
its on-going obligations to TJ Ranch under the SUA.
[¶50] The trial evidence supports the district court’s finding that TJ Ranch reasonably
withheld its consent for WPX RM’s assignment of the SUA to Moriah. TJ Ranch
reasonably believed the assignment had already taken place when WPX RM asked for
consent, and TEP RM did not prove Moriah was a reputable operator with the financial
capability of performing the SUA.
2. Novation by Conduct
[¶51] TEP RM asserts the district court clearly erred by rejecting its claim that TJ Ranch
novated the SUA when it entered into the Forbearance Agreement with Carbon Creek. “A
novation is a new contract that replaces an existing contract when all parties to the original
contract agree to the terms of the new contract.” Thomas v. JLC Wyo., LLC, 2019 WY 14,
¶ 32, 434 P.3d 104, 113 (Wyo. 2019) (citing Lewis v. Platt, 837 P.2d 91, 92 (Wyo. 1992)).
Or, stated in terms specific to debtors and creditors, a novation “is a mutual agreement,
between all parties concerned, for the discharge of a valid existing obligation by the
substitution of a new valid obligation on the part of the debtor or another[.]” Scott v. Wyo.
Oils, Inc., 52 Wyo. 433, 75 P.2d 764, 771 (Wyo. 1938) (citation omitted). “[N]ovation is
never presumed”; it must be affirmatively “pleaded and proven” by the party asserting it.
Id. See also, Tri-State Oil Tool Indus., Inc. v. EMC Energies, Inc., 561 P.2d 714, 716
15
(Wyo. 1977) (“A novation is never to be presumed. All required elements must be
proved[.]” (citing 58 Am.Jur.2d, Novation, § 32)).
[¶52] “We have identified the four [elements] of a novation as: (1) a previous valid
obligation; (2) an agreement of all parties to a new contract; (3) extinguishment of the prior
contract; and (4) validity of the new contract.” Lewis, 837 P.2d at 92 (citing Tri–State Oil,
561 P.2d at 716). Each of the elements must be proven, “and unless it is the clear intention
of all the parties concerned to extinguish the old obligation by substitution of the new one,
a novation has not been effected.” Tri-State Oil, 561 P.2d at 716 (citations omitted). See
also, 58 Am.Jur.2d Novation § 12 (2022 Update) (“A novation must be made with the
intent to discharge or extinguish a prior obligation or contract, and it has been held that the
intent of the parties is . . . the most important factor in determining whether a novation has
been accomplished.”) (footnote omitted). “[W]here a novation involves the substitution of
a new debtor, it is essential that the creditor make a clear manifestation of assent to the
substitution of the new debtor and the release of the original debtor[.] . . . [O]therwise, the
creditor retains his or her rights against the original debtor.” 58 Am.Jur.2d Novation § 13
(2022 Update) (footnotes omitted). However, it is “‘not necessary that a novation be in
writing or that it be evidenced by express words. Like any other fact it may be proved as
an inference from the acts and conduct of the parties.’” Lewis, 837 P.2d at 92 (quoting 15
Samuel Williston, A Treatise on the Law of Contracts § 1869, at 615-16 (3rd ed. 1972)
(footnotes omitted)).
[¶53] The district court ruled TEP RM had “failed to prove a novation by conduct”
because there was “no evidence that rebut[ted] the express language of the [F]orbearance
[A]greement stating that a novation was not intended.” We agree.
[¶54] The Forbearance Agreement was very clear that TJ Ranch and Carbon Creek had
no intention of novating the SUA. In fact, the Forbearance Agreement addressed only one
aspect of the SUA – the payment structure. TJ Ranch and Carbon Creek expressly ratified
the other terms of the SUA, stating that TJ Ranch reserved “all rights under the [SUA],
including its right to hold [Carbon Creek’s] predecessors-in-interest liable for the
performance of all obligations under the [SUA]” “after exercising its termination rights
under [the Forbearance Agreement].” If Carbon Creek failed to pay TJ Ranch, the
Forbearance Agreement became “null and void” and TJ Ranch would “be entitled to
recover from [Carbon Creek] and its respective predecessors-in-interest” “all sums owed
under the [SUA]” for every year since inception of the Forbearance Agreement. Applying
the elements of novation, the SUA was a prior obligation between TEP RM f/k/a WPX
RM, and TJ Ranch (element # 1) and the Forbearance Agreement was a valid new contract
(element # 4); however, TEP RM f/k/a/ WPX RM, was not a party to the Forbearance
Agreement (element # 2) and, most importantly, the SUA was not extinguished by the
Forbearance Agreement (element # 3). Lewis, 837 P.2d at 92; Tri–State Oil, 561 P.2d at
716.
16
[¶55] TEP RM faults TJ Ranch and Carbon Creek for keeping it “in the dark” about the
Forbearance Agreement. It refers to a trial exhibit containing an email between TJ Ranch’s
and Carbon Creek’s attorneys, stating it would be “virtually impossible” to get all of
Carbon Creek’s predecessors-in-interest to “sign off” on the Forbearance Agreement. We
do not see the relevance of the evidence since the SUA did not require such approval and
nothing about WPX RM’s duties to TJ Ranch was changed by the Forbearance Agreement.
See generally, St. Louis Twin Oaks Assocs. I, L.P. v. Exec. Off. Network, Ltd., 804 F.Supp.
1127, 1129 (E.D. Mo. 1992) (a lessor’s modification of rent for a lease assignee does not
release the original lessee from liability); Abrahamson v. Brett, 21 P.2d 229, 233-34 (Or.
1933), abrogation on other grounds recognized by Carey v. Lincoln Loan Co., 125 P.3d
814, 830 (Or. Ct. App. 2005) (“The voluntary reduction in rent by the lessor to the assignee
made during the term did not relieve the lessees and assignors . . . from the covenant in the
lease to pay the rent. . . . A lessee covenanting to pay rent, who has sublet the demised
premises, is not released from liability by the fact that after the sublease the lessor accepts
rent from the sublessee.”).
[¶56] TEP RM also maintains it should not be held liable under the SUA because TJ
Ranch voluntarily chose to enter into a contractual relationship with “a new contracting
party with which it had zero prior contractual privity – Carbon Creek.” This argument
rings hollow. TJ Ranch could not prohibit WPX RM’s assignment of the SUA to Carbon
Creek; it was compelled to work with Carbon Creek as the operator of the extensive coal
bed methane development on its ranch lands whether it liked it or not. It is, therefore,
unsurprising that TJ Ranch would attempt to work out any disagreements or disputes with
Carbon Creek. Ms. Record testified she believed resolving TJ Ranch’s disputes with
Carbon Creek through negotiation would foster “goodwill” and “a good working
relationship.” If those efforts failed, TJ Ranch retained the right to seek recourse from
Carbon Creek’s predecessors-in-interest, for the damage to, and use of, its ranch lands.
[¶57] The trial record provides strong support for the district court’s finding that TJ Ranch
did not, through its conduct with Carbon Creek, novate the SUA. The district court’s ruling
that TEP RM did not meet its burden of establishing a novation was not clearly erroneous.
Denial of Motions to Stay
[¶58] TEP RM challenges the district court’s denials of its two motions to stay the state
court proceedings pending resolution of a related federal court action between WPX
Energy, Inc. and TJ Ranch. The Wyoming Rules of Civil Procedure do not provide a means
for requesting a stay. However, it is generally recognized that courts have inherent power
to stay an action. See Dockter v. Lozano, 2020 WY 119, ¶ 26, 472 P.3d 362, 370 (Wyo.
2020) (district courts have inherent authority to stay an action pending completion of a
related action (citing Paxman v. King, 448 P.3d 1199, 1201 (Utah 2019))). “The district
court’s decision to stay or dismiss an action due to a pending proceeding . . . is
17
discretionary.” Sw. Pub. Serv. Co. v. Thunder Basin Coal Co., 978 P.2d 1138, 1141 (Wyo.
1999). We, therefore, review a district court’s denial of a request for a stay for an abuse of
discretion. Rivermeadows, Inc. v. Zwaanshoek Holding & Financiering, B.V., 761 P.2d
662, 667 (Wyo. 1988). See also, United States v. Dunn, 557 F.3d 1165, 1170 (10th Cir.
2009) (reviewing the district court’s denial of a motion to stay in a quiet title case for abuse
of discretion).
Abuse of discretion will be found if the trial court denies the
stay under circumstances in which an injustice would be
perpetrated on the party seeking the stay, and no hardship,
prejudice or inconvenience would result to the party against
whom it is sought.
Rivermeadows, 761 P.2d at 667.
[¶59] TEP RM puts considerably more effort into its appellate argument that the district
court erred by denying its requests for a stay than it did in trying to convince the district
court to grant a stay in the first place. TEP RM’s first request for a stay was included as
an alternative argument in its motion to dismiss TJ Ranch’s complaint on jurisdictional
grounds. TEP RM referred to the federal declaratory judgment action brought by WPX
Energy, Inc. against TJ Ranch. In a single paragraph, without citation to legal authority or
a specific comparison of the facts or claims in the two actions, TEP RM asserted that a
decision in favor of WPX Energy, Inc. in the federal case would be determinative of TJ
Ranch’s claim against TEP RM in the case at bar. TEP RM did not provide any
documentation of the federal case; the federal complaint and WPX Energy, Inc.’s response
to TJ Ranch’s motion to dismiss in the federal case are included in the appellate record
because TJ Ranch filed them as exhibits when responding to TEP RM’s motion to dismiss.
[¶60] The district court denied TEP RM’s first motion to stay on the grounds that 1) WPX
Energy, Inc. sought a declaration of rights between it and TJ Ranch in the federal action,
while TJ Ranch sought actual damages from TEP RM in the state action; 2) TEP RM did
not show a stay was necessary to avoid harm to either party; and 3) Wyoming courts have
an interest in enforcing Wyoming contracts.
[¶61] In its renewed motion for a stay, TEP RM argued that staying this case would serve
the economic interests of the parties, promote judicial efficiency, and reduce the risk of
inconsistent results. It also emphasized that WPX Energy, Inc. filed its case in federal
court before TJ Ranch filed this state court action. TEP RM stated WPX Energy, Inc.’s
summary judgment motion in federal court was similar to TEP RM’s cross motion for
summary judgment in this case and indicated it had attached a copy of WPX Energy, Inc.’s
federal summary judgment motion and brief to its renewed motion for a stay. However,
the attachment is not included in the record on appeal. The district court denied TEP RM’s
18
renewed motion to stay, concluding “nothing ha[d] changed” since its denial of the original
motion “that would warrant staying the proceedings.”
[¶62] In contrast to the dearth of information about the federal case included in the official
record on appeal, TEP RM attached seven exhibits to its appellate brief, including more
than 100 pages of materials filed in federal court. In addition, although TEP RM cites
several authorities in its appellate argument, it cited only one legal authority in its two
district court filings, Landis v. N. Am. Co., 299 U.S. 248, 254-55, 57 S.Ct. 163, 166, 81
L.Ed. 153 (1936), for the general rule that courts have inherent authority to grant stays.
[¶63] It is not appropriate for “‘this Court to reverse a district court ruling on grounds that
were never presented to it.’” Miller v. Beyer, 2014 WY 84, ¶ 34, 329 P.3d 956, 967 (Wyo.
2014) (quoting Sundance Mtn. Resort, Inc. v. Union Tel. Co., 2007 WY 11, ¶ 17, 150 P.3d
191, 196 (Wyo. 2007)).
“This is particularly true when our review is for an abuse of
discretion because to determine whether there was an abuse we
necessarily must consider the arguments and evidence
presented to the district court. Plainly stated, a party cannot fail
to present an argument and then argue on appeal that the
district court abused its discretion in not considering the
argument the party did not present.”
Miller, ¶ 34, 329 P.3d at 967 (quoting Sundance Mtn. Resort, ¶ 17, 150 P.3d at 196) (other
citations omitted).
[¶64] Moreover, items attached to a brief are not considered part of the record on appeal.
Hodson v. Sturgeon, 2017 WY 150, ¶ 5, 406 P.3d 1264, 1265 (Wyo. 2017) (it is improper
to attach exhibits, which are not included in the record on appeal, to an appellate
brief). “‘An appellant bears the burden of bringing to the reviewing court a sufficient
record on which to base its decision,’ Aragon [v. Aragon], 2005 WY 5, ¶ 20, 104 P.3d
[756,] 762 [(Wyo. 2005)], and he cannot supplement the appellate record
by attaching documents to his brief. Barnes v. Barnes, 998 P.2d 942, 945 (Wyo.
2000).” In re Adoption of ADA, 2006 WY 49, ¶ 10 n.1, 132 P.3d 196, 201 n.1 (Wyo. 2006).
In a footnote in its brief, TEP RM recognizes that many of the federal court documents are
not included in the record in this case but maintains we can take judicial notice of them.
“‘The rules of appellate procedure provide a basis for supplementing the official record,
and we will not condone a party’s failure to utilize the rules by considering documents
which are simply attached to a brief.’” Gaston v. Life Care Ctrs. of Am., Inc., 2021 WY
74, ¶ 11 n.1, 488 P.3d 929, 935 n.1 (Wyo. 2021) (quoting Roeschlein v. State, 2007 WY
156, ¶ 28, 168 P.3d 468, 476 (Wyo. 2007) and citing W.R.A.P. 3.04). “‘To have a court
take judicial notice of a document, the proponent must provide written notice to the court
and the ‘judicially noticed documents must be physically included as part of the record
19
filed on appeal[] or must be on file at the Supreme Court as the result of a different
proceeding.’” Id. (quoting Cockreham v. Wyo. Prod. Credit Ass’n, 743 P.2d 869, 872-73
(Wyo. 1987)). TEP RM did not follow this procedure. Given the state of the record and
TEP RM’s failure to properly present its argument for a stay to the district court, we cannot
find the district court abused its discretion.
[¶65] In any event, TEP RM does not demonstrate how the district court’s denial of its
motions for a stay would perpetrate an injustice on it or that a stay would not prejudice TJ
Ranch. See Rivermeadows, 761 P.2d at 667. TEP RM asserts it will be harmed because it
is a stranger to the SUA. We have already rejected that argument because TEP RM is, for
all intents and purposes, WPX RM. On the record properly before us, we cannot fault the
district court for, in its discretion, denying TEP RM’s motions for a stay because the state
and federal actions involve different parties, the claims for relief in the two suits differ, and
TEP RM failed to show a stay was necessary to prevent it from being harmed.
CONCLUSION
[¶66] The district court correctly exercised personal jurisdiction over TEP RM. The court
did not clearly err in finding TJ Ranch reasonably withheld its consent for WPX RM’s
assignment of the SUA to Moriah and TJ Ranch did not novate the SUA by cooperating
and entering into the Forbearance Agreement with Carbon Creek. The district court did
not abuse its discretion by denying TEP RM’s motions to stay.
[¶67] Affirmed.
20