IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-30170

_____________________

In The Matter Of: LANDFINDERS, INC;
EDWARD P. BENJAMIN, JR;
FIRST NATIONAL BANK OF COMMERCE OF NEW ORLEANS; LANDOWNER’S INTEREST, INC.,

Debtors.

LANDFINDERS, INC.; LANDOWNER’S INTEREST, INC.; EDWARD B. BENJAMIN, JR.;

FIRST NATIONAL BANK OF COMMERCE OF NEW ORLEANS; CATHERINE CARMEN COLE PETTY,

Appellants,

versus

ENERGY INVESTMENT COMPANY; MICHAEL T.

HALBOUTY ENERGY COMPANY; ROWAN PETROLEUM, INC.; TEXACO, INC.; LEA EXPLORATION INC.,

Appellees.

****************************************************************** EDWARD B. BENJAMIN, JR., Co-Trustee for the Class Trust of the children of Harris P. Dawson, Jr., under the will of Jennie P. Dawson; FIRST NATIONAL BANK OF COMMERCE OF NEW ORLEANS, Co-Trustee for the Class Trust of the children of Harris P. Dawson, Jr., under the will of Jennie P. Dawson,

Appellants,

versus

ENERGY INVESTMENT CO.; MICHAEL T. HALBOUTY ENERGY COMPANY; ROWAN PETROLEUM, INC.; TEXACO, INC.; LEA EXPLORATION, INC.,

Appellees.

** ***************************************************************** Pursuant to 5 TH C IR

. R. 47.5, the court has determin ed that

this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

-2- EDWARD B. BENJAMIN, JR.; FIRST NATIONAL BANK OF COMMERCE OF NEW ORLEANS, Co-Trustee for the Class Trust of the children of Harris P. Dawson, Jr.,
under the will of Jennie P. Dawson;
LANDFINDERS, INC.,

Appellants,

versus

TEXACO, INC.; MICHAEL T. HALBOUTY ENERGY CO.; LEA EXPLORATION, INC.; ENERGY INVESTMENT CO.; ROWAN PETROLEUM, INC.,

Appellees.

_________________________________________________________________
Appeal from the United States District Court for the

Middle District of Louisiana (96-CV-257, 96-CV-256 & 96-CV-255-B-M1)

_________________________________________________________________ November 14, 1997 Before JOLLY, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM: *

This appeal involves the inter pretation of certain mineral

leases. While we accord the leases an interpretation different

from that of the trial court , we reach the same end result.

Because the trial court committed no reversible error, we affirm.-3- I

A

As did the trial court, w e hold that the leases at issue in

this case are unambiguous and we will thus accord the language used

in the leases its commonly prevailing m eaning. P rincipal Health

Care of Louisiana, Inc. v. Lewer Ag ency, Inc. , 38 F.3d 240, 243

(5th Cir. 1994) (construing Louisiana law); Breland v. Schilling

,

550 So. 2d 609, 610 (La. 1989). The bankruptcy court found that

Lea breached its obligation under Paragraph 47 of the leases to

interrupt the prescription of nonuse running against SSA and that

Paragraphs 48 and 52 were stipulate d damages provisions that set

out Landfinders’ sole remedy against Lea for such breach. This

interpretation was in error.

Paragraph 47 does not impose an unconditional obligation upon

Lea to interrupt prescription. Indeed, the contract itself

recognized that Lea might not accomplish the goal of prescription

interruption. Paragraph 48 specifically provided that “[i]f, on or

before November 24, 1986, Lessee has determined that it is not

possible for him to comply with the performance obligations [of

Paragra ph 47],” then the lessee could elect between executing a

total release or continuing the lease under the different

circumstances set out in Paragraph 52. When the leases are

construed as a whole, it is clear that Paragraphs 48 and 52 set out-4-

alternatives to performance under Paragraph 47. Lea thus did not

“breach” Paragraph 47 when it failed to drill a Commitment Well on

SSA before November 24, 1986.

B

Our holding that Lea did not breach Paragraph 47 when it

failed to interrupt prescription and elected to continue the leases

under Paragraph s 48 and 52 moots Landfinders’ argument that the

b ankruptcy court erred in construing Paragraphs 48 and 52 as

stipulated damages provisions. The performance duties set out in

the leases are not severable. Paragraphs 48 and 52 are not

stipulated damages provisions; they merely set out alternatives to

performance under Paragraph 47.

C

Landfinders also maintains that the bankruptc y court erred

when it conclu ded that Lea did not breach its performance

obligatio n under Paragraph 52 because the court found it was

unfeasible to drill a well with the req uisite geological

specifica tions. The contract effectively forgave the failure to

drill the Commitment Well i f “prevailing circumstances [made] a

bottom hole location under th e leased premises unfeasible.” The

substance of Landfinders’ argumen t is that the trial court

erroneously defined “unfeasible” to mean “cost prohibitive” instead

of according the term a more narrow meaning closer akin to1 Contained within this argument is the companion contention

that the court erroneously utilized parol evidence to broadly define “unfeasible.” As set out in the opinion, we hold the term to be unambiguous. Further, even if the term were ambiguous, the
evidence is clear that the parties did not contemplate a narrow construction. That the parties redacted the term “impossible” and
instead employed “unfeasible,” even though the change was at Lea’s urging, evidences an intent consistent with the definition enunciated by the trial court and adopted by this court.

-5- “impossible.” 1 We disagree. In everyday parlance, unfeasibility

does not connote impossibility. Webster’s Third New International

Dictionary 2495 (19 93) (defining unfeasible as “not feasible” or

“impracticable”). There is no suggestion that the word was a term

of art contradicting its usual meaning.

Although Lea drilled a well only 200 feet away from the leased

premises, the trial court found that it would have been unfeasible

to attempt to sidetrack the well so that it would have a bottom

hole location u nder the leased premises. The evidence indicated

and the trial court found that Lea drilled at the optimum

geological location and still drill ed a dry hole. It would have

been senseless to continue the operation in the face of the

information gleaned from that well. The trial court did not

clearly err by finding that it was unfeasible to drill a well with

a bottom hole location under the leased premises.

II

In conclusion, we hold that the bankruptcy court erroneously

construed the leases, but that such error does not mandate reversal2 Appellant Petty’s claim for attorneys’ fees and costs of the

litigation is mooted because she did not “prevail” in this action
on the contract.

-6- in this instance. Reading the leases as a whole, which we must

under Louisiana law, we hold that Lea was not under an

unconditional oblig ation to interrupt the prescription of nonuse

running agai nst SSA. Paragraphs 48 and 52 provided alternative

performance obligations to those set out in Paragraph 47, thus, Lea

effected no breach of the leases by failing to meet the

interruption requirement in Paragrap h 47. Furthermore, the

bankruptcy court did not commit clear error when it found that Lea

fulfilled its drilling obligations under the alternative provisions

because it was unfeasible to dril l a well with a bottom hole

location under the leased premises. 2

For the reasons set out in this opinion, the ruling of the

district court is

A F F I R M E D.