commenced in west virginia some ten years ago purchasing instead of leasing or acquiring the in tar minerals they focused on a particular seam the mar particular formation in this case we assert that the district court committed error in two respects first with respect to the bonafide purchaser issue second with respect to subject matter jurisdiction under the earth or a judgment first under the bonafide purchase or analysis mountaineer minerals asserted that even though it did not have a recorded a son of a lease its interest was prior to interior because under the west virginia recording statute forty dash one dish nine the prior recording of a conveyance to entier a took precedent the only way for mountaineer to prevail was to assert that hanjour was not a bonafide purchaser of the minerals in the more cells in the district court the argument that was made was that men near conceded initially argued that there was no act whether there was actual notice that interior was actually aware conveyance the district court rejected that this report looked and said there was inquiry notice based upon certain factors that existed but did not go beyond that into term and whether or not and to are used due diligence to explore those rights we submit that was error clearly under the four circuits trans energy case and under west virginia's evil gas kicks moreover the funding upsets one hundred fifty years of established law in west virginia that the party that does not record its instrument lose absent some showing by the party that failed to record that there was not valuable consideration paid for the interest that was acquired and that there was notice of the prior existence of the neither year of the recording is back in the case but is it you have a position on that about the district court's order aside from those two issues that subject matter jurisdiction judgment the court conceded that entered did not have actual notice of the prior so the court said that interim head increased notice and noted that there was a requirement for due diligence but not did not address whether predecessor to mount near mount near the centrally acquired a contingent claim that's the second issue is the subject matter section but clearly the perkins did not have the that is a perfect example of the similarity to this in that case doron was attempting to lease additional gas or masons that there was contention by eagle that they were already least doron looked at searched the records to determine if there were prior leases found the lease an ass eagle for those records eagle said we have a prior lease could produce snow records  door and then went and took a lease from the mineral owner and that was one lease the court said that even though there was a claim by the prior party by eagle that they had these minerals in that instance when same factual scenario except when door and went to obtain a lease from the mineral under the mineral under said well i have a lease here it is it has not been record in that circumstance the court said that was actual notice that there was a lease and that lease prevail but the scenario we have here is not of the second lease it's of the first lease w ask the questions search the title asked perkins if they had the documents and beyond that ask cruised as part of the transaction had they actually conveyed to the mineral interest prior to and crude indicated that he had not been a prior invades and that statement was wrong but antero did not know was wrong the document was recorded the document was not provided to  person and one of the confusing factors is that the mineral estates were split perkins did have the shallot say but those shallow sands ended before the marcellus so there's discussion in the record that interior was where there were wells that were on the property and that perkins claimed to have an interest in  perkins did have an interest in the shallow gas and had shallow wells perkins did not have an interest that was of record in the correct county with respect to the m because then the judge did not address that the judge said well these facts give rise to increase notice never acknowledged or addressed the due diligence that had been conducted by antero to determine the recording acts the party that does not record the document is the party that is a risk and because of that the court should have determined that under west virginia law forty dish one dish one recording st the district court says that the your client was not permitted to simply rely on kreutz record title without inquiring into park and competing claim i e saying that you did more than simply  four thousand acres and in that case the district court again judge stamps said no trans energy is a bonafide purchaser even though there were shallow wells that each u t operated on th almost four thousand acre tract the judge said that that was not increased notice because they could not trans energy could not be charged with knowing all of the wells that were on the property in this situation  smaller lease almost a six hundred acre lease but antero was aware of wells that were on the property determined that those wells were shallow wells and that perkins had the shallow mineral interest but did not have  perkins that's correct in in the record time but the operators maintain a lease file in which they have their title presumably when perkins acquired the rights that it acquired from the purpose of the stat is to allocate the risk it's in the chapter of the west virginia coach after forty acts that are void as to creditors and purchasers and it's to protect an innocent purchaser who relies upon record title who can who buys property and later there's an unrecorded document the law says that if that document is not recorded the risk of loss is on the party that fails to report the doc and that's the circumstance that we're presented with here what the cases say and this is the evil gas and even the trans energy where there are circumstances that give rise to some belief that there may be in a recorded document you ha conduct your due diligence to establish whether or not those unrecorded documents makes us and that's exactly what answer did and that's exactly what the court in eagle gas it would be sufficient to determine that there negotiated interim had offered to buy fifteen leases from perkins twice before had provided written documents and that was to acquire the marcellus shale but that simply because someone the one step beyond that here is the interior who went to the cellar of the mineral and cruz said no we have not conveyed the previously judge stamp ignored all of the evidence submitted to the court contended number one this is not the case of record notice it is kind of an indirect way but judge stamper really hit the nail on the head by finding that not a bona fide purchaser here for two reasons either of which would defeat their claim to the protection that's granted under the cases and statute cited by mr lawrence a number one there wasn't quire a notice  honor i mean that cedes and what i heard i don't know for sure he can correct me when he gets back up here but i think he said yeah we were on some notice and we did our due diligence we did all that was required well there on  and in our mind that the analysis because and i think your honor you're on to something the fact that you asked somebody along the way or can you provide all the dog documents that you have in your file to me without alerting them that there might be a problem that's a little bit different than at the closing if you say look we're here to close this this transaction we've negotiated this sale directly for years but you know there's little issue here one question would be are tied to opinion shows that there's a gap in the title we're negotiating with you perkins to buy it from you but we see this little problem here can you explain that to us in perkins was able to acquire the status that they also you also have to show an absence of due diligence i do not agree your honor the link notice that the notice that the that is the district court  and that the price in the inquiry that there is no do due diligence requirement i believe that there is a due diligence requirement at that point in other words i think judge stan got it bull's eye accurate here if you're negotiating for a couple years and it seem like they did by saying yeah antero asked if if perkins could turn over the documents in its possession but that was months before that was just at the beginning of the negotiations that's customary you know these and gas companies negotiate amongst themselves and at that point yet turn us give us all the records you have in your file but there was no mention that there could be a problem and if you wanted to give me documents well they didn't have it in their possession they didn't have hardly anything in their possession or were i'm sorry are were there it was recorded in the neighboring county and i would just like they know that they did not know that at the time they did not realize there was a problem because it purchasers if you read judge stamps opinion he makes two points and gives two reasons why in terror of his not afforded bona fide purchaser protection here one is in we're down to six thousand feet which is the marcellus right above it in that situation where the above it is right above it your honor is that you don't only lower you that's correct your honor but that's only one  factor if you read judge stamps reasoning the timeline speaks for itself there's a numerous facts conversations a relationship there between the parties that clearly establish inquiry notice in again i just want to make it clear this was a multiyear negotiation so when when mr lawrence contends that in taro asked for the documents that wasn't near the time of closing that was at the very beginning of the process will you turn us in it's a best time to ask without really giving him but that's before they realized that there was a problem that's before they did a title search and then came up with this cloud or defect on title at that point a year or two later is when antero found out that there could be an issue with the ownership of perkins that's when the inquiry notice kicks and that's when the the duty to inquire to just ask one ever alerting perkins your honor i would submit that it's it would be if we were negotiating a sale and purchase of a house a couple years into the process i find out that there might be a problem but i don't come the u n ask you can you explain this  i go to buy it off somebody else later on in the negotiation i come to the unit say not only do you know the owner but i own it i mean that's what we're dealing with here that's exactly the facts there was never an opportunity to sure it because there was never an inquiry made which is clearly required under the law in west virginia under trans energy under the eagle you say in your chain of title from crew oversight in that it was only reported in one of the two counties in should have been ritchie county we had met that certainly but at the same time it wasn't a gross most situation where perkins the  unfortunately did not get recorded in the second county but we submit that under the west virginia law it is clear that in terror of had the duty and the obligation to ask the question in inquire do some due diligence judge stamp was right  they didn't do any due diligence once the issue arose it was on the go sheeting to to purchase from from perkins a perkins we send us a box of information whatever you have there wasn't any questions asked at that time because nobody knew that there was an assignment that was not of right at that point later on a year down the road of a sudden there's an issue that comes up in even though and that's the end of the analysis i mean that is a smoking gun admission that i i was aware that a competing claim to the same marcellus rights and rather than inquire i did nothing i negotiated a back alley deal with another company just the or are they think ready to go to the party that you're negotiating with or just the obligation to enquire using whatever it polices appropriate evarts to determine the s found that in terror is not afforded the bona fide purchaser protection that comes with the recording statute rather in the present situation in tears not afforded that protection one because of in part notice but t went received information that there could be a problem just like in your example the long west virginia is clear that you are under the obligation but i would agree with you if the crew had said you know i don't think they  that's posing parties represented well he said in this email that he found out that this was owned by parkins in this email that was his opinion as well judge stamp does in it clearly says look we have caught wind that antero is sending pulling amendments out on our lease and pulling amendments or for the marcell test is it i mean there's a lot of record a lot of evidence in the record of notice of a competing claim the district court that's in there the question i think is once you have that notice if you didn't go check and see a clean ti are clear that record title is completely different than inquiry notice in other words the due diligence component is triggered by inquiry notice but you can't just run back in and then run a title going to say oh well you was well researched it was thorough again he followed ironclad west virginia law on the subject and i mean it's as well written of opinion as i've ever seen it's twenty two pages long think you're honest with respect to a couple of questions from a follow up email that the judge starker reference from kevin ellis drills went on in his deposition to explain that he acknowledged that there was shallow no your honor he said that he at the time all he had seen were the records with respect to the shallow well that was all that was provided in the due diligence and counsel has addressed an earlier question the judge the actor asked about the timing on when the inquiry was made when the documents were provided he's indicated that was at the initial at the start of the negotiations and with respect to the documents provided then clearly the leases the assignments the well records reflecting that perkins had an interest in the shallow gas did in fact exist mr ellis does not say in his email we agree that you own them ourselves and judge with that i'm not sure it's email that did that interior had made two offers to buy fifteen leases as it were for marcel and perkins was indicating at that two thousand and two thousand address i didn't think so either of us up looking but that's what we addressed in a footnote we said that judged we raise this issue below just stamp did not address it he brushed past that but the issue in the assignment you see the assignments are of wells that which is typically a borehole and it ends at the end of the the wellbore which did not never extended there were no wells that were drilled into the marcellus formation one of the other points that the cases make and this was in transit energy the futility of a second inquiry that's essentially what opposing counsel is oregon we ask you for the records once before you gave us what you had you should have asked us again somehow implying that more records would have been given but the court recognized in transit energy that there was no reason for trans energy to answer prima for records that it did not have and at their depositions both mr lancaster and mr perkins said correct that was trans energy you were my see my times your great finish your thought but you have to wrap it up at this point that was strategy said it's futile to ask for something that they've already told you they don't have so you don't need a chance again in closing