## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 5 2002 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

EAST TEXAS SEISMIC DATA, LLC, an Oklahoma company; and CAPMAC EIGHTY-TWO LIMITED PARTNERSHIP, an Oklahoma limited partnership, Plaintiffs-Appellants,

v. SEITEL DATA, INC., a corporation; and FIRST SEISMIC CORPORATION, a corporation,

Defendants-Appellees, and No. 01-5023

SANTA FE ENERGY RESOURCES, INC., a corporation; and IMC GLOBAL INC., a corporation,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-981-B) Robert Kenneth Pezold (Dennis A. Caruso and Joseph C. Woltz with him on the briefs) of Pezold, Caruso, Barker & Woltz, Tulsa, O klahoma, for PlaintiffsAppellants. James M. McGraw (D. Scott Funk with him on the brie f) of Looper, Reed &-2-

McGraw, Houston, Texas, for Defendants-Appellees.

Before, SEYMOUR, McKAY, and MURPHY, Circuit Judges.

_________________________ McKAY , Circuit Judge.

_________________________

This dispute arises out of the licensing of seismic information. Three entities entered into a joint venture agreement to collect seismic data for sale or license. The three original entities were Adobe (o wning 37.5%), McMoRan (owning 50%) and McKenzie (owning 12.5%). Eventual ly East Texas became the owner of the 12.5% ownership interest. Then, FirstSeismic obtained Adobe’s and McMoRan’s share of the joint venture (87.5%), w hich it later sold to Seitel. In the present action, East Texas alleges that Firs t Seismic and Seitel licensed the actual seismic information to parties outside the joint venture for a profit without paying East Texas 12.5% of the proce eds. East Texas appeals the United States District Court Order granting summary judgment in favor of First Seismic and Seitel. We review a district court’s grant of summary judgm ent de novo . Watts v. Atlantic Richfield Co. , 115 F.3d 785, 790 (10th Cir. 1997). A motion for summary judgment is granted when the record demonst rates that “there is no-3-

genuine issue of material fact . . . and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56. The iss ue is whether the district court erred in granting defendant’s motion for summary ju dgment, based on its interpretation of our prior decision, holding that all parties could sell or license the seismic information to other entities without a ccounting to their fellow joint venturers for the proceeds obtained. In a previous action, East Texas brought suit upon the sale of Adobe’s and McMoRan’s interest to First Seismic arguing that ithad a right to 12.5% of the proceeds that Santa Fe Energy Resources and ICM Glo bal, Inc., (successors to Adobe and McMoRan respectively) received from selli ng their ownership interests to First Seismic. This court held that E ast Texas was not entitled to any proceeds from the sale of Santa Fe’s and ICM’s inte rest to First Seismic. East Texas Seismic Data, LLC v. Seitel Data, Inc. , 1999 WL 1066839 (10th Cir.). We held that the joint venture contract clearly stated that after two years the parties could sell their interest without restriction. In the present action, East Texas argues that it is a co-tenant with First Seismic; therefore, First Seismic must account to i t for proceeds generated from licensing the seismic information. First Seismic a nd Seitel contend that they had the right to license or sell the information withou t East Texas’ approval. Both parties rely on our earlier opinion as supportive o f their respective positions.-4-

We agree with East Texas that the district court mi sconstrued this court’s earlier opinion. Our prior opinion held that each of the joint venturers had the right to sell their interest in the project without accounting to East Texas. East Texas , 1999 WL 1066839, at *1. However, the right to se ll one’s own interest in a seismic data collecting project is different than the right to sell or license the seismic information itself. In our previous opinion, we stated that “[t]his agr eement is unambiguous and grants each venturer the unrestricted right to sell its proportionate interestin the data.” Id. at *2 (emphasis added). Additionally, the contrac t that the parties drafted reads, “The right to sell all or trade any part of the Data shall be vested exclusively in the venturers in proportion to theirParticipation Interest .” Participation Agreement § 5.1 (Aplt. App. at 189) ( emphasis added). The contract clearly allows each party to sell their re spective interest in the seismic information to a third party without any duty to ac count to the other venturers. However, it does not logically follow that each party could sell the actual information itself without accounting to the other joint venturers. As stated above, the agreement gives the parties th e unrestricted right to sell their proportionate interestin the data. There is a clear difference between being able to convey 100% of what First Seismic own s to another entity and licensing the seismic data First Seismic owns joint ly with East Texas to another-5-

party. First Seismic and Seitel had an 87.5% inter est in the data and East Texas had a 12.5% interest. Since First Seismic’s proportionate interest in the data is only 87.5%, it is inapposite that First Seismic cou ld sell or license 100% of the information to a third party without accounting to East Texas. This would give First Seismic a windfall – 100% profit from an 87.5 % interest. A logical extension of First Seismic’s argument illustrates t he inequity perfectly. Pursuant to First Seismic’s construction of the agreement, E ast Texas would have been entitled to license the seismic information to othe rs and retain 100% of the proceeds despite owning only a 12.5% interest. First Seismic and Seitel also assert that the statu te of limitations has expired with respect to East Texas’ claims. The di strict court did not address this issue because it granted summary judgment on the me rits in favor of First Seismic and Seitel. For the foregoing reasons, the decision of the dist rict court is reversed and remanded. On remand, the district court will need to determine what effect the statute of limitations would have on East Texas’ cl aims.

REVERSED and REMANDED.