Pollard v. Seeco, Inc.

427 S.W.3d 776, 2013 Ark. App. 331, 2013 WL 2099809, 2013 Ark. App. LEXIS 338
CourtCourt of Appeals of Arkansas
DecidedMay 15, 2013
DocketNo. CA 12-1026
StatusPublished

This text of 427 S.W.3d 776 (Pollard v. Seeco, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pollard v. Seeco, Inc., 427 S.W.3d 776, 2013 Ark. App. 331, 2013 WL 2099809, 2013 Ark. App. LEXIS 338 (Ark. Ct. App. 2013).

Opinion

WAYMOND M. BROWN, Judge.

| Appellants Odell Pollard, P.A. and Odell Pollard, individually, appeal an order of the White County Circuit Court granting summary judgment in favor of appel-lees and dismissing appellants’ complaint with prejudice. On appeal, appellants argue that summary judgment was erroneously granted because genuine issues of material fact existed regarding the damages to appellants’ property on account of the drill pad constructed by appellees. We affirm.

Appellants are the owners of approximately 320 acres of real property adjoining the Little Red River situated in both White and Cleburne Counties, Arkansas. Odell Pollard, P.A., executed an oil and gas lease1 in favor of Mid-Continent Title and Leasing Consultants, |2Inc., on December 22, 2004, covering a twenty-five-acre tract of properly near Pangburn, Arkansas. The lease was subsequently assigned to appellees. The parties entered into a surface-usage agreement in September 2009.2 Appellees extended the lease in December 2009.

laAppellees constructed the drill pad as contemplated by the lease and surface-usage agreement. The well produced gas for first sales on April 9, 2010. Appellants filed a complaint on March 18, 2011, alleging among other things, that appellees placed a drill pad on a tract of real property that “was a part of the future expansion plans for the existing river residential development activity which had already been commenced by [appellants] and that placing a gas well drill site on that property would greatly reduce its value for such residential development if not totally destroy said property for future residential development purposes.” According to the complaint, the surface-usage agreement was entered into when appellees declined appellants’ request to place the drill site on another tract of property owned by appellants. The complaint further alleged that appellees set up the drill site in such a manner that, instead of the 6.313 acres it was supposed to take up, it used or rendered useless 25.19 acres. Appellants sought compensation for the diminished value of the land due to appellees’ action. Appellants also contended that appellees allowed “drilling fluids and other contaminants to run off the drilling pad site damaging the gas well drilling site and the surrounding property ... in breach of the aforesaid surface-usage agreement and Arkansas law.” Appellees filed an answer on April 5, 2011, denying the material allegations in appellants’ complaint.

Appellees filed a motion for summary judgment on February 7, 2012, on the basis that appellants’ allegations were not supported by fact or law. Exhibits to the motion included, but were not limited to, the following: a copy of the oil and gas lease, the extension of the oil and |4gas lease, the surface-usage agreement, and the affidavit of Clifton Gregory. Gregory’s affidavit stated that the drill pad in question was constructed in conformance with industry practices and that it was a normal and reasonable size. He denied any spill or run-off from the drill site of drilling fluids or any other fluids that could create an environmental or contamination problem. According to Gregory, the location of the drill pad was the best location for it based on a number of factors, including geological concerns regarding potential faulting and appellees’ desire to run additional wells from the same drilling pad in a future drilling phase.

Appellants filed a response to appellees’ motion on March 16, 2012, contending that factual questions existed under the surface-usage agreement due to appellees’ failure to reasonably accommodate appellants’ request “as to the location of the drilling site and therefore unreasonably damaged the property value of the [appellants’] real property by destroying the tract for future residential development purposes which [appellants] had made known to the [appellees] through its agent landman.” Appellants attached Odell Pollard’s affidavit, stating that he witnessed water running off of the drilling pad onto the property to the north of the pad in the summer of 2009, that it was so much water that his truck became stuck, and that there had been no rain at the time of the incident. He also stated that he pursued the surface-usage agreement when appel-lees declined his request to place the drill pad on a different piece of property so as to not interfere with his development plans for the twenty-five-acre tract covered by the oil and gas lease. He concluded by stating that the property had been greatly damaged by the fact that “SEECO would not accommodate [him] by relocating the well site ... and then subsequently positioning the well site and drilling pad on [his] 25 acres in a manner which damaged [his] remaining property for future residential development activity Ufor which [he is] seeking damages as authorized by Arkansas law and the Surface Usage Agreement.”

Appellees filed a response on April 3, 2012, contending that Pollard’s affidavit was based on “allegations and conclusions, which are not sufficient to overcome [ap-pellees’] prima facie showing of entitlement to judgment as a matter of law.” Appellees denied that the surface-usage agreement entered into by the parties created a factual issue. Appellants filed a supplemental affidavit of Pollard on August 2, 2012, reiterating Pollard’s contentions that appellees failed to reasonably accommodate appellants’ request. Appel-lees filed a response on August 10, 2012, relying on Pollard’s deposition testimony that he had “no experience with natural-gas development and no experience with reference to the size and layout of pad sites for drilling natural gas wells” to support its position that summary judgment should be granted. Appellees included a supplemental affidavit of Gregory, which stated that appellants’ suggested location for the drill pad would have encompassed Pollard’s front yard and driveway.

The trial court granted appellees’ motion for summary judgment in an order filed August 17, 2012, stating in pertinent part,

After consideration of all matters of record and the presentation of the parties’ positions ... the Court finds that Defendants’ Motion for Summary Judgment should be granted on the basis that there are no genuine issues of material fact which would create a triable issue with reference to Plaintiffs’ position that Defendants failed to reasonably accommodate the Plaintiffs by not placing the subject natural gas well site at the subject location on Plaintiffs’ property. The Court finds the Plaintiffs failed to meet with proof the proof presented by the Defendants that the subject natural gas well site was reasonably] located and constructed in conformance with Defendants’ rights under the oil and gas lease granted by the Plaintiffs with reference to the subject real property.

| (Appellants timely filed a notice of appeal on September 11, 2012. On appeal, appellants argue that summary judgment was inappropriate because genuine issues of material fact remain regarding the surface damage caused by appellees by the construction of the drill pad.

Summary judgment should be granted only when there are no genuine issues of material fact to be litigated and the moving party is entitled to judgment as a matter of law.3 Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact.4

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Related

Diamond Shamrock Corp. v. Phillips
511 S.W.2d 160 (Supreme Court of Arkansas, 1974)
Hodges v. Huckabee
995 S.W.2d 341 (Supreme Court of Arkansas, 1999)

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Bluebook (online)
427 S.W.3d 776, 2013 Ark. App. 331, 2013 WL 2099809, 2013 Ark. App. LEXIS 338, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pollard-v-seeco-inc-arkctapp-2013.