Walsh Bros. v. Celeron Corp.

510 So. 2d 1282
Louisiana Court of Appeal·Decided June 17, 1987·No. 86-611·Published·Cited by 4 cases

Opinion

510 So.2d 1282 (1987)

WALSH BROS., et. al., Plaintiffs-Appellants,
v.
CELERON CORPORATION (Now Louisiana Intrastate Gas Corporation), Defendant-Appellee.

No. 86-611.

Court of Appeal of Louisiana, Third Circuit.

June 17, 1987.
Writ Denied October 9, 1987.

*1283 Ray A. Barlow and Scott C. Sinclair, of Hargrove, Guyton, Shreveport, Gold, Simon, Charles S. Weems, III, Alexandria, for plaintiffs-appellants.

Lawrence E. Donohoe, Jr. and Randall C. Songy, of Onebane and Associates, Lafayette, Provosty, Sadler, etc., Ledoux R. Provosty, Jr., Alexandria, for defendant-appellee.

Before DOMENGEAUX, DOUCET and KNOLL, JJ.

KNOLL, Judge.

Walsh Brothers-Gahagan, Ltd., Sawyer Drilling & Service, Inc., Succession of John B. Atkins, Harry M. Jarred, Caroline A. Crawford and W.J. Atkins (collectively referred to as Walsh) appeal the trial court's judgment granting Louisiana Intrastate Gas Corporation's (LIG) motion for summary judgment declaring a 1974 gas purchase contract between the parties terminated on *1284 January 1, 1985, for lack of a certain and definite price. The sole assignment of error is that the trial court erred in its determination that after January 1, 1985, a certain, definite price payable by LIG to Walsh under the gas purchase contract could not be ascertained and therefore the contract could no longer be enforced. We reverse and remand.

FACTS

Through a written contract effective May 1, 1974, Walsh agreed to sell specified amounts of natural gas from lands in Red River Parish to LIG for a ten year term.

Pursuant to the provisions of the contract the parties redetermined the contract price in 1975, 1977 and 1979, and amended the contract accordingly. The last contract amendment was accomplished on July 27, 1979, when the term of the contract was extended to May 1, 1994, and the negotiated contract price was redetermined using Section 103 of the Natural Gas Policy Act of 1978 (NGPA) as a pricing mechanism. The renegotiated price provision reads as follows:

"3.1 Price: Subject to the provisions of this Article and to the provisions of the General Terms and Conditions attached hereto, the price to be paid by Buyer [LIG] to Seller [Walsh] for gas taken, or required to be paid for when not taken, shall be as follows:
Effective May 1, 1979, the price payable shall be the maximum lawful price established for the month of May, 1979, for gas from new onshore production wells pursuant to Section 103 of the Natural Gas Policy Act of 1978; and
Effective May 1, 1980, the price payable thereafter shall be the maximum lawful price established each month during the term hereof for gas from new onshore production wells pursuant to Section 103 of the Natural Gas Policy Act of 1978."

At the time of this amendment Section 103 of the NGPA provided in pertinent part as follows:

"Sec. 103 * * *
(b) Maximum Lawful Price.—
(1) General rule.—The maximum lawful price under this section for any month shall be—
(A) $1.75 per million Btu's, in the case of April 1977; and
(B) in the case of any month thereafter, the maximum lawful price, per million Btu's, prescribed under this paragraph for the preceding month multiplied by the monthly equivalent of the annual inflation adjustment factor applicable for such month.
(2) Production after 1984 from wells 5,000 feet or less in depth.—

Effective beginning with the month of January 1985 and in any month thereafter, in the case of any first sale of natural gas which was not committed or dedicated to interstate commerce on April 20, 1977, and which is produced from a new, onshore production well from a completion location located at a depth of 5,000 feet or less, the maximum lawful price under this section for any such natural gas delivered during any month shall be a price which is midway between—

(A) the maximum lawful price, per million Btu's, computed for such month under section 102 (relating to new natural gas); and
(B) the maximum lawful price, per million Btu's, computed for such month under paragraph (1)."

LIG paid the contract price provided by NGPA Sec. 103(b)(1) until January 1, 1985. Since then LIG made no payments in accordance with Sec. 103, contending ambiguity of price and unenforceability of the contract. Instead LIG has paid Walsh a price lower than that provided by Sec. 103(b)(1).

Although the original gas contract provided for the appointment of arbitrators to resolve pricing disagreements, LIG refused to appoint an arbitrator. Subsequently, Walsh filed suit on July 12, 1985, seeking a *1285 declaratory judgment: (1) that the gas purchase contract was valid; (2) that the price for gas delivered under the contract after January 1, 1985, was the monthly price set by NGPA Sec. 103(b)(2), or in the alternative that set by NGPA Sec. 103 (b)(1); and, (3) for other additional relief including interest and consequential damages.

LIG answered asserting termination of the gas purchase contract as of January 1, 1985, for lack of a certain price.

Walsh and LIG filed cross-motions for summary judgment and in support of the motions the parties entered into a joint stipulation of facts for the trial court's consideration.

In granting LIG's motion for summary judgment the trial court in its written reasons concluded: (1) the parties could anticipate that the price agreed upon would be renegotiated in 1981 pursuant to a contract clause so providing, and would not anticipate there would be two ceiling prices in 1985; (2) that the "maximum price" referred to in the 1979 contract amendment was equivalent to the "ceiling price" under Sec. 103 in effect at the time of the amendment and not the higher of the two prices enumerated after January 1, 1985; (3) at the time of the 1979 price amendment both parties contemplated only one ceiling price under Sec. 103; and (4) since January 1, 1985, Sec. 103 provides two or three possible prices and therefore the contract is unenforceable because a certain, definite price cannot be ascertained.

STANDARD OF REVIEW

LIG argues that the manifest error rule enunciated in Arceneaux v. Domingue, 365 So.2d 1330 (La.1978) and Canter v. Koehring Company, 283 So.2d 716 (La.1973) are applicable to the present case.

The record consists of stipulations and documentary evidence submitted to the trial court; no live testimony was presented. Therefore the manifest error rule is inapplicable. Langford v. Calcasieu Parish Police Jury, 396 So.2d 956 (La.App. 3rd Cir. 1981).

CONTRACT OF SALE

The critical question in this case is whether the gas sale contract became unenforceable after January 1, 1985, because of the lack of a certain, definite price.

The contract of sale is an agreement by which one gives a thing for a price in current money and the other gives the price in order to have the thing itself. LSA-C.C. Art. 2439. Although there must be consent to give and to accept a price, it is not essential that the specific sum of the sales price be stated at the time of contracting. Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171 (La.1980). Where the price may be ascertained by computation of definite facts, the price shall be deemed certain. LSA-C.C. Art. 2464; General Finance Corp. of New Orleans v. Harrell, 188 So.2d 211 (La.App. 1st Cir.1966).

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Walsh Bros. v. Celeron Corp., 510 So. 2d 1282 (La. Ct. App. 1987).

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