{ "id": 15837, "name": "Jerry DEAN, Carla Dean Gallipoli, Individually and as Trustee under the Revocable Trust, Bobby Lee Dean and James Lee Dean, Plaintiffs-Appellants, v. PALADIN EXPLORATION COMPANY, INC., Dawson Geophysical Company, and Perry & Perry, Inc., Defendants-Appellees", "name_abbreviation": "Dean v. Paladin Exploration Co.", "decision_date": "2003-01-15", "docket_number": "No. 22,595", "first_page": "491", "last_page": "495", "citations": [ { "type": "official", "cite": "133 N.M. 491" }, { "type": "parallel", "cite": "64 P.3d 518" }, { "type": "parallel", "cite": "2003-NMCA-049" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1999-NMCA-083", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257731 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0521-01" ] }, { "cite": "104 N.M. 280", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1595018 ], "weight": 2, "pin_cites": [ { "page": "287" }, { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0280-01" ] }, { "cite": "2000-NMCA-023", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 106500 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 28" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0659-01" ] }, { "cite": "2001-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 183108 ], "weight": 6, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0368-01" ] }, { "cite": "100 N.M. 720", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588650 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "723" }, { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nm/100/0720-01" ] }, { "cite": "59 N.M. 37", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589288 ], "weight": 9, "year": 1954, "pin_cites": [ { "page": "42" }, { "page": "574-75" }, { "page": "42" }, { "page": "574-75" }, { "page": "42" }, { "page": "574-75" }, { "page": "42" }, { "page": "574-75" } ], "opinion_index": 0, "case_paths": [ "/nm/59/0037-01" ] }, { "cite": "103 N.M. 117", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711342 ], "weight": 8, "year": 1985, "pin_cites": [ { "page": "897" }, { "page": "120" }, { "page": "897" }, { "page": "120" }, { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0117-01" ] } ], "analysis": { "cardinality": 648, "char_count": 15215, "ocr_confidence": 0.71, "pagerank": { "raw": 5.660975099646521e-08, "percentile": 0.35291845200241406 }, "sha256": "cf8062c749e08a1f0c6bd6cf884a71bbeccd5223b37f9e9e1da8169026d191cf", "simhash": "1:f3536c96988a8569", "word_count": 2425 }, "last_updated": "2023-07-14T15:37:22.762722+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WE CONCUR: MICHAEL D. BUSTAMANTE and CELIA FOY CASTILLO, Judges." ], "parties": [ "Jerry DEAN, Carla Dean Gallipoli, Individually and as Trustee under the Revocable Trust, Bobby Lee Dean and James Lee Dean, Plaintiffs-Appellants, v. PALADIN EXPLORATION COMPANY, INC., Dawson Geophysical Company, and Perry & Perry, Inc., Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nWECHSLER, Chief Judge.\n{1} Plaintiffs filed suit against Defendants, seeking compensation for damages resulting from seismic operations conducted by Defendants on Plaintiffs\u2019 property. Prior to trial, Defendants filed a motion to exclude evidence, seeking to preclude the introduction of any evidence related to \u201cany payments made to Plaintiffs or any other person or entity for seismograph operations conducted upon any of Plaintiffs\u2019 property.\u201d Defendants contemporaneously filed a motion for summary judgment. As grounds for that motion, Defendants asserted that they were not contractually obligated to pay any fees to Plaintiffs for seismic operations conducted on Plaintiffs\u2019 property. Defendants also argued that no genuine issue of material fact existed with regard to Plaintiffs\u2019 claims for damages.\n{2} After hearing, the district court granted both motions. The court excluded evidence of any prior payments made to Plaintiffs for other seismograph activities on then-land and of any \u201cgoing rate\u201d for payments made by seismograph companies to other holders of surface estates in the area. In addition, the court dismissed Plaintiffs\u2019 complaint for failure to show damage to the surface estate \u201cby reason of any unreasonable, excessive, or negligent use of the surface estate of the property.\u201d Plaintiffs appeal from both orders.\nBackground\n{3} Plaintiffs own a surface estate in multiple sections of ranch land located in Lea County. The mineral rights to those sections were retained by the State of New Mexico. In 1993 and 1994, Defendant Perry & Perry, Inc. (Perry) obtained the authority to conduct geophysical operations on Plaintiffs\u2019 land pursuant to certain seismic permits and statutory mineral leases issued by the State Land Office. See NMSA 1978, \u00a7 19-10-4.1 (1985). Perry subsequently assigned those rights to Defendant Paladin Exploration Company (Paladin), which in turn contracted with Defendant Dawson Geographical Company (Dawson) to conduct 3-D seismic surveys on Plaintiffs\u2019 property. Dawson commenced seismic explorations in the fall of 1994.\n{4} In their complaint, Plaintiffs allege that they incurred property damage as a result of Dawson\u2019s 3-D seismic exploration. In deposition testimony, Plaintiff Jerry Dean specified that vibrations from Defendants\u2019 equipment created cracks in the plaster of his residence and that Defendants\u2019 trucks made tracks or trails on his property and caused the grass to become covered with dust. He further stated that when the State leases its mineral rights to a private entity, it is common practice in Lea County for the mineral lessee to reimburse the owner of the surface estate for any property damage incurred. In support of this assertion, Plaintiff Jerry Dean claimed that the \u201cgoing rate\u201d for damage to property in such situations is $10 per acre.\n{5} Prior to trial, Defendants moved to exclude evidence of any payments made either to Plaintiffs or to other surface estate owners as compensation for damage incurred during seismic exploration. The district court granted Defendants\u2019 motion, noting that because the oil and gas leases issued by the State Land Office require proof of actual damages, evidence of prior payments to Plaintiffs or of any \u201cgoing rate\u201d of compensation for damage to the surface estate was not relevant.\n{6} In addition, Defendants moved for summary judgment, arguing that Plaintiffs had raised no genuine issue of material fact with regard to actual damages. Alternatively, Defendants asserted that even if Plaintiffs had raised a factual issue as to actual damages, Defendants could not be held liable because any damages were not the result of \u201cunreasonable, excessive or negligent use of the surface estate\u201d as required by Amoco Production Co. v. Carter Farms Co., 103 N.M. 117, 120 703 P.2d 894, 897 (1985). In response to Defendants\u2019 motion for summary judgment, Plaintiffs argued that the Amoco requirement of \u201cunreasonable, excessive or negligent use\u201d was inapplicable because that case dealt with a mineral lease that did not contain a provision mandating the complete restoration of the surface estate. By contrast, the statutory leases used in this case expressly provided for compensation by the mineral lessee for damage caused by its operations. Section 19-10-4.1. Thus, Plaintiffs claimed that pursuant to Tidewater Associated Oil Co. v. Shipp, 59 N.M. 37, 42, 278 P.2d 571, 574-75 (1954), they should not be required to establish proof of Defendants\u2019 negligence in order to recover actual damages.\n{7} Following a hearing on the issue, the district court granted summary judgment for Defendants, finding that Plaintiffs had failed to show any damage to the surface estate \u201cby reason of any unreasonable, excessive, or negligent use of the surface estate of the property.\u201d In so holding, the district court determined that it was \u201cbound\u201d by Amoco and that Plaintiffs were required to show negligence on the part of Defendants in order to recover actual damages.\nExclusion of Evidence\n{8} The admission or exclusion of evidence is within the discretion of the district court. State v. Worley, 100 N.M. 720, 723, 676 P.2d 247, 250 (1984). Absent a clear abuse of that discretion, evidentiary rulings will not be disturbed. Id. A court abuses its discretion when a ruling is clearly against the logic and effect of the facts and circumstances of the case. State v. Stanley, 2001-NMSC-037, \u00b6 5, 131 N.M. 368, 37 P.3d 85.\n{9} The district court excluded both evidence of any prior payments to Plaintiffs for damages incurred during previous seismic explorations and evidence of any \u201cgoing rate\u201d of compensation for damage to other surface estates in the area. Because the statutory mineral leases used by the parties require proof of actual damages, the court determined that evidence of the \u201cgoing rate\u201d of compensation was not relevant to the case. Plaintiffs argue that this evidentiary ruling was an abuse of discretion. We do not agree.\n{10} Although other surface estate owners may have received payments from mineral lessees in the past, those payments could have been made for any number of reasons. For example, oil and gas companies could have paid money to promote goodwill within the community or to discourage future suits by owners of the surface estates. Because Plaintiffs are required by the terms of Defendants\u2019 statutory oil and gas leases to prove actual damage to the specific property at issue, without linkage of those prior payments to actual damages, the district court\u2019s ruling was not clearly against the logic and effect of the facts and circumstances of the case. Stanley, 2001-NMSC-037, \u00b6 5, 131 N.M. 368, 37 P.3d 85. Therefore, the district court did not abuse its discretion in ordering the exclusion of evidence related to prior payments to Plaintiffs or to the \u201cgoing rate\u201d of compensation to other owners of surface estates in the area.\nApplication of the Amoco Standard\n{11} Plaintiffs contend that the district court erred when it required them to prove, pursuant to Amoco, 103 N.M. at 120, 703 P.2d at 897, that Defendants\u2019 use of the surface estate was \u201cunreasonable, excessive, or negligent.\u201d They argue that the applicable standard for recovery of actual damages is found in Tidewater, 59 N.M. at 42, 278 P.2d at 574-75, and that they were not required to show negligence or excessive use on the part of the mineral lessee in order to recover damages. Defendants argue that Amoco effectively overruled Tidewater, such that the holder of a mineral lease is not required to pay damages to a surface estate owner unless its use of the surface estate was unreasonable. At the hearing on Defendants\u2019 motion for summary judgment, the district court determined that it was \u201cbound\u201d by Amoco and dismissed Plaintiffs\u2019 case for failure to show any \u201cunreasonable, excessive or negligent use\u201d by Defendants.\n{12} In Tidewater, our Supreme Court rejected the mineral lessee\u2019s contention that the holder of a grazing lease could not recover for damage to his grass, livestock, or crops in the absence of proof of negligence or excessive use. Tidewater, 59 N.M. at 42, 278 P.2d at 574-75. Relying on the fact that the statutory oil and gas lease executed by the parties and their predecessors expressly provided that the mineral lessee would be held liable for any damage to the surface estate, the Court ruled that the holder of the grazing lease was entitled to recover reasonable damages. Id.\n{13} By contrast, in Amoco, the oil and gas lease executed by the parties did not contain an express provision for the payment of actual damages to the owner of the surface estate. Amoco, 103 N.M. at 120, 703 P.2d at 897. Accordingly, our Supreme Court refused to impose on the mineral lessee an implied contractual duty to completely restore the surface estate following the cessation of drilling operations. Id. Rather, the Court determined that, in the absence of any \u201cunreasonable, excessive or negligent\u201d use of the property by the mineral lessee, the surface owner would be unable to recover actual damages. Id.\n{14} Because the Amoco lease did not contain an express provision for the payment of damages to the holder of the surface estate, we do not read Amoco to effectively overrule Tidewater, as Defendants argue. Paragraph Eleven of the statutory oil and gas lease form used by the parties expressly provides that the \u201c[l]essee shall be liable and agree to pay for all damages to the range, livestock, growing crops or improvements caused by lessee\u2019s operations on said lands.\u201d Section 19-10-4.1. Defendants do not argue that Plaintiffs were not entitled to benefit from this provision of the lease. Unlike the court in Amoco, the district court in this case was not called upon to imply any contractual provisions regarding the payment of actual damages to the owner of the surface estate. Rather, the district court was requested to enforce an existing term within a statutory lease. See Tidewater, 59 N.M. at 42, 278 P.2d at 574-75. Such lease terms are generally given effect, and the mineral lessee may be liable for damages without regard to negligence. See 4 Howard R. Williams & Charles J. Meyers, Oil and Gas Law \u00a7 673.6 (2001). As a result, the district court applied the incorrect legal standard when granting summary judgment in favor of Defendants. Nevertheless, reversal is warranted only if we determine that Plaintiffs raised a genuine issue of material fact with regard to actual damages.\nEntry of Summary Judgment\n{15} When reviewing an order awarding summary judgment, this Court views the pleadings, affidavits, and depositions presented for and against the motion in the light most favorable to the non-moving party. Duran v. N.M. Monitored Treatment Program, 2000-NMCA-023, \u00b6 28, 128 N.M. 659, 996 P.2d 922. Summary judgment is foreclosed when the record discloses the existence of a genuine controversy concerning a material issue of fact. Id.\n{16} Defendants argue that Plaintiffs did not raise a genuine issue of fact with regard to actual damages. In support of this assertion, Defendants cite to Plaintiff Jerry Dean\u2019s deposition testimony, in which he acknowledged that Plaintiffs were not prohibited from using their land during the seismic operations, that the seismic work did not interfere with ranching operations, and that no damage to cattle, windmills, or fences was incurred. Defendants also note that Plaintiff Jerry Dean mentioned that there was \u201cdirt flying around\u201d and that trails were made when Defendants\u2019 trucks drove across his land, but admitted that such damage was not permanent.\n{17} Defendants fail to address Plaintiff Jerry Dean\u2019s affidavit, submitted in support of Plaintiffs\u2019 response to Defendants\u2019 motion for summary judgment. In his affidavit, Plaintiff Jerry Dean stated that his range land was damaged as a result of Defendants\u2019 geophysical activities. Specifically, he claimed that the tracks and dust created by Defendants\u2019 trucks during the seismic exp\u00edoration damaged his Blue Gramma grass, thereby reducing its value. In addition, Plaintiff Jerry Dean attested that he had previously sold seed from the Blue Gramma grass to a Texas seed company for approximately $15 per acre. Finally, a receipt from the Texas seed company was attached to the affidavit as evidence of these transactions. Although Defendants assert that evidence of this sale was excluded pursuant to the district court\u2019s evidentiary order, it does not appear that the district court actually ruled on the admissibility of this evidence. Rather, the order pertains only to evidence of payment for prior seismographic activity on Plaintiffs\u2019 land and to evidence of any \u201cgoing rate\u201d of compensation.\n{18} Defendants appear to argue that the district court\u2019s award of summary judgment should be upheld because Plaintiffs failed to present evidence of the \u201cmeasure of damages.\u201d However, there is a recognized distinction between proof of the fact of damages and proof of the amount of damages. See Ponce v. Butts, 104 N.M. 280, 287, 720 P.2d 315, 322 (Ct.App.1986) (stating that \u201c[t]he lack of certainty that will prevent a recovery is uncertainty as to the fact of damages and not as to the amount\u201d). The fact that Plaintiffs had yet to set forth evidence of a specific amount of damage was not fatal, particularly given the procedural posture of this case.\n{19} The parties\u2019 arguments to the district court on summary judgment focused on a discussion of the applicable legal standard rather than on whether a genuine issue of material fact existed as to damages. The district court ultimately applied an incorrect legal standard. We cannot conclude that summary judgment was warranted for reasons not argued to the district court. Summary judgment is generally disfavored and should be used with caution. Pollock v. State Highway & Transp. Dep\u2019t, 1999-NMCA-083, \u00b6 5, 127 N.M. 521, 984 P.2d 768.\nConclusion\n{20} The district court did not abuse its discretion in excluding evidence of prior payments made to Plaintiffs as compensation for damages caused by previous seismic operations or of the \u201cgoing rate\u201d of compensation to other owners of surface estates in the area. However, the district court incorrectly required Plaintiffs to show that any damages suffered were the result of \u201cunreasonable, excessive, or negligent use\u201d of the surface estate by Defendants. Based upon this error and the existence of Plaintiffs\u2019 evidence regarding the issue of actual damages, the district court\u2019s award of summary judgment was not proper at this stage in the proceedings. Therefore, we reverse and remand to the district court.\n{21} IT IS SO ORDERED.\nWE CONCUR: MICHAEL D. BUSTAMANTE and CELIA FOY CASTILLO, Judges.", "type": "majority", "author": "WECHSLER, Chief Judge." } ], "attorneys": [ "Michael T. Newell, Heidel, Samberson, Newell, Cox & McMahon Lovington, NM, for Appellants.", "Scotty Holloman, Lee A. Kirksey, Maddox & Holloman, P.C., Hobbs, NM, for Appellees." ], "corrections": "", "head_matter": "2003-NMCA-049\n64 P.3d 518\nJerry DEAN, Carla Dean Gallipoli, Individually and as Trustee under the Revocable Trust, Bobby Lee Dean and James Lee Dean, Plaintiffs-Appellants, v. PALADIN EXPLORATION COMPANY, INC., Dawson Geophysical Company, and Perry & Perry, Inc., Defendants-Appellees.\nNo. 22,595.\nCourt of Appeals of New Mexico.\nJan. 15, 2003.\nMichael T. Newell, Heidel, Samberson, Newell, Cox & McMahon Lovington, NM, for Appellants.\nScotty Holloman, Lee A. Kirksey, Maddox & Holloman, P.C., Hobbs, NM, for Appellees." }, "file_name": "0491-01", "first_page_order": 523, "last_page_order": 527 }