Conoco, Inc. v. Tenneco, Inc.

524 So. 2d 1305, 1988 WL 20007
CourtLouisiana Court of Appeal
DecidedMarch 9, 1988
Docket87-155
StatusPublished
Cited by23 cases

This text of 524 So. 2d 1305 (Conoco, Inc. v. Tenneco, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Conoco, Inc. v. Tenneco, Inc., 524 So. 2d 1305, 1988 WL 20007 (La. Ct. App. 1988).

Opinion

524 So.2d 1305 (1988)

CONOCO, INC., Plaintiff-Appellant,
v.
TENNECO, INC., Acting By and Through its Division, TENNESSEE GAS PIPELINE COMPANY, Defendant-Appellee.

No. 87-155.

Court of Appeal of Louisiana, Third Circuit.

March 9, 1988.
Writ Denied May 13, 1988.

*1306 Marjorie W. Doyle, Houston, Tex. and Liskow & Lewis, Lawrence P. Simon, Lafayette and George Domas, New Orleans, for plaintiff-appellant.

Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lawrence E. Donohoe, Jr., Edward C. Abell, Robert K. Reeves, John Bernard, Lafayette, for defendant-appellee.

Before FORET and DOUCET, JJ., and SWIFT[*], J. Pro Tem.

*1307 FORET, Judge.

Plaintiff, CONOCO, INC. (Conoco) filed suit against TENNECO, INC. (Tenneco) for recovery of money allegedly due in connection with a Gas Purchase and Sales Agreement entered into by said parties. The trial court rendered judgment in favor of Tenneco and Conoco has perfected this appeal.

On August 28, 1979, Conoco and Tenneco entered into a Gas Purchase and Sales Agreement pursuant to which Conoco sold to Tenneco one-half of the natural gas reserves attributable to Conoco's interest in certain offshore acreage designated as Eugene Island Block 257. Section 8(c)[1] of the contract states that the price for gas sold and delivered by Conoco shall be adjusted in accordance with any ceiling prices subsequently approved by the Federal Energy Regulatory Commission (FERC) effective as of the date such price is made effective by FERC.[2]

After the contract was entered into, Conoco filed an application for a certificate of public convenience and necessity with FERC, requesting permission to collect, in connection with the aforesaid contract, the NGPA Section 109 price. FERC issued a temporary certificate on October 18, 1979, authorizing the sale of natural gas from Conoco to Tenneco but limiting the price to the lower NGPA Section 104 price. The certificate was made effective as of the effective date of initial deliveries under the contract, i.e., January 1, 1980. Thereafter, on January 31, 1980, FERC issued a permanent certificate, establishing the same price limitation and effective date as the temporary certificate previously issued. The FERC approved Sec. 104 price became the contract price pursuant to Sec. 8(c) of the contract, and Conoco billed Tenneco at such rate for all gas sold and delivered from January 1, 1980 onward. The Sec. 104 price remained in effect until FERC amended its certificate on January 19, 1984, increasing the ceiling price to the maximum lawful price prescribed by NPGA Sec. 109(b). The certificate further provided that such increase was effective as of the effective date of the original certificate, i.e., January 1, 1980. Accordingly, commencing with the invoice of March 19, 1984, Cities Service Oil Company (Cities Service), Conoco's representative under the terms of the subject contract, began billing Tenneco for current deliveries of gas at the higher Section 109 price, and these bills were paid by Tenneco in accordance with the contract. On July 10, 1984, Cities Service invoiced Tenneco, on behalf of Conoco, for $17,884,163.56, representing the difference between the Sec. 104 price and the Sec. 109 price from the date of initial deliveries under the contract to March 19, 1984. On August 13, 1984, Tenneco forwarded to Cities Service a check in the amount of $3,867,335.88, representing the price difference between the NGPA Sec. 104 price and the Sec. 109 price for gas delivered to Tenneco from July 13, 1982 to January 31, 1984, being the twenty-four-month period immediately preceding Tenneco's receipt of the aforesaid invoice for arrearages due. Thereafter, by letter dated October 18, 1984, Conoco made demand on Tenneco for payment of the remaining principal balance of $14,016,827.68, being the difference between the Sec. 104 price and the Sec. 109 price for the period beginning January 1, 1980 and ending July 12, 1982. By letter dated January 4, 1984, Tenneco reaffirmed its earlier position, refusing to pay the remaining balance claimed by Conoco, and this litigation ensued. Tenneco bases its refusal to pay on a provision contained under Section III-A (hereinafter sometimes referred to as the Billings and Payments Section) of the subject contract and does not dispute the correctness of the principal amount claimed by Conoco.

*1308 The pertinent provisions of the subject contract appear at Section 8(c) and Section III-A(1)(2) and (3).

"(c) Should Congress, the President or other executive authorities, the Federal Energy Regulatory Commission, or any other governmental authority, administrative agency or otherwise, having jurisdiction, prescribe or permit, by any action of government, whether by statute, order, settlement, rulemaking proceeding, policy statement, regulation, or otherwise, a price applicable to the sale of all or part of the gas delivered hereunder, or a price generally applicable to other gas in the same area, which is higher than the price otherwise provided herein, then the price to be paid by Buyer to Seller for such portion of the gas delivered hereunder which would otherwise qualify for such higher price shall be increased, effective as of the effective date of such higher price, to equal such higher rate including permitted adjustments.

SECTION III-A

BILLINGS AND PAYMENTS

1. On or before the 15th day of each month after deliveries of gas are commenced, Seller shall render Buyer a statement for the preceding month showing the volume of gas delivered hereunder, or the volume Buyer was obligated to take or pay for hereunder, the amount due therefor and information sufficient to explain and support any adjustment in volumes made by Seller in determining the amount billed.
2. Buyer will pay Seller on or before the 25th day of each month, or as to invoices rendered after the 15th day of each month, within ten (10) days after receipt of such invoices, for gas delivered during the preceding month, according to the measurements, computations, and prices herein provided. If the correct amount is not paid when due, interest on any unpaid amount shall accrue at the rate of nine percent (9%) per annum. If such default continues sixty (60) days after written notice from Seller to Buyer, Seller may suspend gas deliveries hereunder without prejudice to other remedies.
3. If any overcharge or undercharge in any form whatsoever shall at any time be found and the bill therefor has been paid, Seller shall refund the amount of any overcharge received by Seller, and Buyer shall pay the amount of any undercharge within thirty (30) days after final determination thereof; provided, however, no retroactive adjustment will be made for any overcharge or undercharge beyond a period of twenty-four (24) months from the date the discrepancy occurred." (Emphasis ours.)

The issue presented for our consideration on appeal is whether or not the trial court erred in finding that Conoco was not entitled to recover, pursuant to the contract in question, the difference between the NGPA Sec. 104 price and the Sec. 109 price for the period beginning January 1, 1980 and ending July 12, 1982.

Section IX-A(3) of the contract states that it is to be construed in accordance with the law of the State of Texas. Where the parties have stipulated upon the state law governing their contract, such law will be applied by the courts of our State unless it is shown that to do so would violate strong public policy considerations.

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Bluebook (online)
524 So. 2d 1305, 1988 WL 20007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conoco-inc-v-tenneco-inc-lactapp-1988.