IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20271

TOTAL E&P USA, INC., 

 Plaintiff - Appellant Cross-Appellee

v.

MARUBENI OIL & GAS (USA), INC., 

 Defendant - Appellee Cross-Appellant

-----------------------------------------------------------

Consolidated with: 19-20282

TOTAL E&P USA, INC., 

 Plaintiff - Appellant 

v.

MARUBENI OIL & GAS (USA), INC., 

 Defendant - Appellee

Appeals from the United States District Court 

for the Southern District of Texas

USDC No. 4:16-CV-2674

USDC No. 4:16-CV-2671

Before BARKSDALE, HAYNES, and WILLETT, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

July 31, 2020

Lyle W. Cayce

Clerk

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PER CURIAM:*

TOTAL E&P USA, INC. (“Total”) appeals two district court judgments1

holding it liable for the cost of abandoning certain offshore oil and gas assets. 

Marubeni Oil & Gas (USA), Inc. (“MOGUS”) cross-appeals one district court’s 

denial of its motion for judgment as a matter of law on damages related to the 

abandonment. We AFFIRM the judgment in Case No. 19-20271 and 

REVERSE and RENDER judgment in Case No. 19-20282.

Background

The Assets and Operating Agreements

These consolidated appeals involve the abandonment of assets in the

“Canyon Express” oil and gas development in the Gulf of Mexico. Canyon 

Express contains three oil and gas fields. The fields are connected by a shared 

pipeline structure known as the Canyon Express Pipeline System (“CEPS”). 

Two Canyon Express properties are at issue here: (1) CEPS itself and (2) a 

connected oil and gas field known as MC 305.2

1. CEPS

In 2000, Total and several other companies entered into the CEPS 

Operating Agreement (the “CEPS Agreement”). The CEPS Agreement

governed the parties’ “respective rights, duties and obligations” in building, 

running, and eventually abandoning the “Common System,” or CEPS. It

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

1 These two cases were consolidated for appeal: Case No. 19-20271 (District Court No. 

4-16-cv-02674) and Case No. 19-20282 (District Court No. 4:16-cv-02671).

2 The other connected fields are Mississippi Canyon Block 348 (“MC 348”) and King’s 

Peak. Neither property is at issue here; the MC 348 case is still pending in the district court 

under Case No. 4:16-cv-02678.

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referred to the parties as “Common System Owner[s].” It also listed each 

Common System Owner’s “Equity Interest” in CEPS based on its ownership in 

the connected oil and gas fields.

Total was the original “Operator” of CEPS under the CEPS Agreement. 

As Operator, Total was required “to operate, maintain, upkeep, repair, [and] 

administer” CEPS. Total also received rights-of-way from the government to 

install CEPS.

Two provisions of the CEPS Agreement are important here. The first, 

Article 11.3, governs abandonment of CEPS. Article 11.3 states:

Abandonment Operations Required by Governmental Authority. 

The Operator shall conduct the abandonment of the Common 

System as required by law and any governmental authority, and 

the Abandonment Costs, risks and net proceeds will be shared by 

the Common System Owners based on the Common System 

Owner’s Equity Interest at the time of abandonment.

The second key provision, Article 14.1, governs assignment of interests 

in CEPS. It states in relevant part:

Assignment. . . . No Common System Owner assigning all or a part 

of its Equity Interest in the Common System is released from its 

obligations and liabilities created under this Agreement 

attributable to the period prior to the date of execution of the 

assignment (which obligations include liability for abandonment 

of the Common System, or that portion of the Common System in 

existence as of the date of execution of the assignment).

MOGUS acquired an interest in CEPS in 2003. Three years later, Total 

assigned its interest in CEPS—including the CEPS operator responsibilities 

and rights-of-way—to ATP Oil & Gas Corporation (“ATP”). Over a year later, 

ATP also bought another company’s interest in CEPS. Since January 2010, 

the interest holders in CEPS have been MOGUS, ATP, and Black Elk Energy 

Offshore Operations, LLC (“Black Elk”).

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2. MC 305

In 1998, Total and another party leased MC 305. The parties also agreed 

to the MC 305 Operating Agreement (the “MC 305 Agreement”). The MC 305 

Agreement referred to the signatories as “Participating Parties.” The MC 305 

Agreement “governs the rights and obligations of the Parties relating . . . to the 

exploration, development, operation, production, treatment, gathering, and 

storage of Hydrocarbons” in MC 305. Under the MC 305 Agreement, the 

Participating Parties “participate in the sharing of . . . the Costs, risks, and 

benefits . . . of an activity or operation proposed.” Each party’s responsibility 

is based on its “Participating Interest Share.” Total was the first “Operator” 

of MC 305.

Two provisions of the MC 305 Agreement are at issue here. The first 

provision, Article 18.4, governs abandonment of MC 305. Article 18.4 states: 

Abandonment Operations Required by Governmental Authority. 

The Operator shall conduct the abandonment and removal of any 

well, Production System or Facilities required by a governmental 

authority, and the Costs, risks and net proceeds will be shared by 

the Participating Parties in such well, Production System or 

Facilities according to their Participating Interest Share.

The second provision, Article 24.1.4, governs assignment of interests in 

MC 305. Article 24.1.4 states in relevant part:

Form of Assignments: . . . No Party assigning all or part of its 

Working Interest [“the record title leasehold interest or, where 

applicable, the operating rights of each party in and to each lease”] 

is released from its obligations and liabilities created under this 

Agreement prior to the effective date of the Assignment. 

In early 2006, MOGUS obtained an interest in MC 305. Several months 

later, Total assigned its interest in MC 305 to ATP. Since January 2010, the 

interest holders in MC 305 have been MOGUS, ATP, and Black Elk.

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ATP’s Bankruptcy and Settlement

By January 2010, ATP, Black Elk, and MOGUS co-owned all interests 

in CEPS and MC 305. But in 2012, ATP filed for bankruptcy. ATP also 

informed the Bureau of Safety and Environmental Enforcement (the “Bureau”) 

of the U.S. Department of the Interior that it could not cover the upcoming 

decommissioning operations at Canyon Express. By then, Black Elk was also 

in financial distress; it was later involuntarily placed into bankruptcy. The 

Bureau thus required MOGUS—the only solvent Canyon Express owner—to 

complete the decommissioning.

1. The Bankruptcy Agreements

ATP was still the operator of the Canyon Express properties and holder 

of the CEPS rights-of-way when it filed for bankruptcy. Thus, for MOGUS to 

conduct the required Canyon Express decommissioning, it needed bankruptcy 

court approval to acquire the operating rights and CEPS rights-of-way from 

ATP. To this end, MOGUS and ATP filed a Joint Motion in January 2014 

asking the bankruptcy court “to approve the compromises and settlements” 

between them related to CEPS and MC 305. 

The relevant agreements provided that ATP would designate MOGUS 

as the “operator” and “holder” of the Canyon Express properties; it would also 

contribute to an “Abandonment Fund,” to be applied to ATP’s share of the 

abandonment costs. ATP would also assume the CEPS and MC 305 

Agreements. Finally, ATP would assign to MOGUS the CEPS rights-of-way 

and the physical CEPS assets. In turn, MOGUS would withdraw its claims 

against ATP’s estate, but it expressly reserved its rights to pursue claims for 

reimbursement against ATP’s predecessors-in-title, including Total.

As part of the bankruptcy proceedings, ATP’s secured creditors also 

created a new entity called Bennu Oil & Gas LLC (“Bennu”). Bennu 

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participated in the relevant bankruptcy agreements. It agreed to provide the 

overriding royalty interest (the “Royalty Interest”)3 that it held in the 

undeveloped MC 348 deep rights operated by Shell Oil Company (“Shell”) in 

its Appomattox prospect, another oil prospect in the Gulf. Bennu split the 

Royalty Interest in half. It pledged the proceeds from one half of the Royalty 

Interest to the Abandonment Fund. It assigned the other half of the Royalty 

Interest directly to MOGUS.4

2. The Bankruptcy Court’s Final Order

The bankruptcy court entered a Final Order approving the Joint Motion 

and authorizing ATP to execute the relevant agreements. The Final Order 

expressly reserved MOGUS’s claims for reimbursement against ATP’s 

predecessors-in-title and provided that the settlement would not in any way 

“extinguish” or “diminish” such claims, with the bankruptcy court noting that 

it was simply staying out of any dispute about those issues. After the 

bankruptcy court issued the Final Order, the government recognized MOGUS 

as operator of the Canyon Express leases and holder of the CEPS rights-ofway. The Bureau ordered abandonment of CEPS and MC 305.5

3 “[A]n overriding royalty interest is a fractional interest in the gross production of oil 

and gas under a lease, in addition to the usual royalties paid to the lessor.” Total E & P USA 

Inc. v. Kerr-McGee Oil & Gas Corp., 719 F.3d 424, 436 (5th Cir. 2013) (brackets and emphasis 

omitted); see also Royalty Interest, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining an 

“overriding royalty interest” as a “share of . . . revenue from production (free of the costs of 

production) carved out of a lessee’s interest under an oil and-gas lease”). 

4 At the time of the Joint Motion, MOGUS’s parent company valued the entire Royalty 

Interest at $381 million. But as of these appeals, even though Shell has begun to develop 

and produce from its Appomattox prospect, no producing wells have been drilled on MC 348, 

the MC 348 lease has received no allocation of Appomattox production, and the Royalty 

Interest has produced no revenue for MOGUS or the Abandonment Fund.

5 MOGUS also undertook abandonment of MC 348 and King’s Peak.

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Procedural History

1. State Court Filings and Removal

In August 2016, Total filed three separate lawsuits—one each for CEPS, 

MC 305, and MC 348—in Texas state court, seeking declaratory judgments 

that it was not liable for the abandonment costs. MOGUS removed the cases 

to federal district court, where they were assigned to three different district 

judges, and filed counterclaims in each case. MOGUS also moved to 

consolidate the three cases, but its motion was denied.

2. Pretrial Proceedings

In December 2017, MOGUS and Total filed cross-motions for summary 

judgment on liability in the MC 305 case. They later filed similar crossmotions in the CEPS case. On summary judgment, Total argued that it was 

not liable for decommissioning costs under the CEPS and MC 305 Agreements. 

MOGUS argued that Total was liable for the decommissioning6 costs. Both 

courts found Total liable and granted partial summary judgment accordingly. 

The CEPS court also granted a partial summary judgment on damages; the 

MC 305 court proceeded to a jury trial on that issue. In connection with that 

trial, MOGUS argued in a motion in limine that evidence about the value of 

the Royalty Interest that Bennu contributed during ATP’s bankruptcy, which 

Total argued should be subtracted from MOGUS’s damages, should be 

excluded. The MC 305 district court denied MOGUS’s motion in relevant part, 

so the issues went to trial.

6 We use the terms “decommissioning” and “abandonment” interchangeably 

throughout this opinion.

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3. The MC 305 Trial

At trial, Total sought to reduce MOGUS’s damages by the value of the 

Royalty Interest, which Total claimed was $11,417,000. MOGUS, in turn, 

claimed it was entitled to a full 50% (i.e., Total’s ownership interest in MC 305) 

of the decommissioning expenses, for a total of $33,066,395.36.

After Total closed its case, MOGUS sought judgment as a matter of law 

under Federal Rule of Civil Procedure 50(a) that the Royalty Interest did not 

affect MOGUS’s damages. The MC 305 court denied the motion and instructed 

the jury to consider “whether, and in what amount, MOGUS’s damages should 

be reduced as a result of MOGUS’s receipt of the [Royalty Interest].”

The jury then returned a verdict finding that MOGUS was entitled to 

$21,649,695.36 in damages. This amount represented MOGUS’s claimed 

damages minus what Total argued was the exact value of the Royalty Interest. 

4. The Final Judgments and Appeals

Judgments in both cases were entered for MOGUS: in the CEPS case, 

for $12,677,584.00 in damages, plus attorneys’ fees, costs, and interest; in the 

MC 305 case, for $21,649,695.36 in damages, plus attorneys’ fees, costs, and 

interest. 

In the MC 305 district court, MOGUS again raised the Royalty Interest 

argument in a combined Rule 50(b) motion for judgment as a matter of law and 

Rule 59(e) motion to alter or amend the judgment. MOGUS also argued for 

the first time that the Royalty Interest should have been apportioned among 

the relevant parties and properties. The MC 305 district court summarily 

denied MOGUS’s combined motion the day it was filed.

Total appealed both judgments. MOGUS cross-appealed the MC 305 

district court’s (1) evidentiary rulings related to MOGUS’s damages and 

(2) denial of MOGUS’s renewed motion for judgment as a matter of law and 

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motion to alter or amend the judgment. We later granted Total’s motion to 

consolidate the appeals.

Jurisdiction, Situs of Relevant Law, and Standards of Review

The CEPS and MC 305 district courts had jurisdiction under the Outer 

Continental Shelf Lands Act (“OCSLA”) because the cases arose “out of, or in 

connection with” operations on the Shelf “involv[ing] exploration, development, 

or production of the minerals [or] of the subsoil and seabed of the . . . Shelf.” 

43 U.S.C. § 1349(b)(1). We have jurisdiction over the parties’ timely appeals 

from the district courts’ final judgments. 28 U.S.C. § 1291.

“[F]ederal law governs actions under OCSLA to the extent that there is 

applicable federal law; however, if there is a gap in the federal law, the law of 

the adjacent state is used as a gap-filler and becomes surrogate federal law.” 

Bartholomew v. CNG Producing Co., 862 F.2d 555, 557 (5th Cir. 1989). The 

district courts determined that Alabama is the state “adjacent” to CEPS and 

MC 305, so Alabama law applies in the absence of controlling federal law. The 

parties do not dispute these rulings on appeal.

We review a district court’s grant or denial of summary judgment de 

novo. McGlothin v. State Farm Mut. Ins. Co., 925 F.3d 741, 745 (5th Cir. 2019). 

Summary judgment is proper “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” FED. R. CIV. P. 56. “When parties file cross-motions for 

summary judgment, we review each party’s motion independently, viewing the 

evidence and inferences in the light most favorable to the nonmoving party.” 

Id. (internal quotation marks and citation omitted).

We also review a district court’s denial of a preserved argument in a

Rule 50(b) motion for judgment as a matter of law “de novo, applying the same 

standard as the district court.” MultiPlan, Inc. v. Holland, 937 F.3d 487, 494 

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(5th Cir. 2019) (internal quotation marks and citation omitted). In so doing, 

“[w]e review all the evidence in the record in the light most favorable to the 

nonmoving party and draw all reasonable inferences in favor of the nonmoving 

party.” Encompass Office Sols., Inc. v. La. Health Serv. & Indem. Co., 919 F.3d 

266, 273 (5th Cir.) (internal quotation marks and citation omitted), cert. denied 

sub nom. La. Health Serv. & Indem. Co. v. Encompass Office Sols., 140 S. Ct. 

221 (2019). 

Discussion

Whether Total Is Liable for a Share of the Decommissioning 

Costs Under the CEPS and MC 305 Agreements

We first consider whether Total is jointly and severally liable for the 

CEPS and MC 305 abandonment costs under the relevant Agreements. We 

hold that Total (1) is not liable for the CEPS abandonment costs but (2) is 

liable for its share of the MC 305 abandonment costs.

Both the CEPS and MC 305 district courts granted summary judgment 

for MOGUS on the liability issue, holding that Total was jointly and severally 

liable for its share of the decommissioning obligations. As it did in district 

court, Total asserts that its assignment of its interests in the Canyon Express 

properties to ATP relieved it of all liability for the abandonment costs.

The essential facts are not in dispute, so we interpret the relevant 

contractual provisions as a matter of law, focusing on the (different) texts of 

each contract. Boudreaux v. Unionmutual Stock Life Ins. Co. of Am., 835 F.2d 

121, 123 (5th Cir. 1988) (stating that the interpretation of an unambiguous 

contract presents a purely legal issue well suited for summary judgment); Once 

Upon a Time, LLC v. Chappelle Props., LLC, 209 So. 3d 1094, 1097 (Ala. 2016) 

(“If the court determines that the [contract] terms are unambiguous . . . then 

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the court . . . will enforce the contract as written.” (internal quotation marks 

and citation omitted)). 

Under Alabama law, “upon assignment of a right, the assignor’s interest 

in that right is extinguished; however[,] upon the delegation of a contractual 

duty, the delegating party remains liable under the contract, unless the 

contract provides otherwise or there is a novation.” Indus. Dev. Bd. v. Russell, 

124 So. 3d 127, 135 (Ala. 2013). Based on the arguments in this case, the 

question is whether the language of the CEPS and MC 305 Agreements 

renders Total not liable for the decommissioning costs. See Russell, 124 So. 3d 

at 135. Because the contracts are differently worded, we address each 

separately and reach separate results.

1. The CEPS Agreement

Turning to the two relevant provisions in the CEPS Agreement, we note 

the key language in Article 11.3, which requires the Operator to conduct any 

required abandonment operations, explaining that the risks and proceeds are 

to be shared “by the Common System Owners based on the Common System 

Owner’s Equity Interest at the time of abandonment” (emphasis added). Total 

argues that it was not a Common System Owner at the time of abandonment, 

so it is not liable for the decommissioning costs.

In response, MOGUS relies on the other key provision of the CEPS 

Agreement: Article 14.1, which states that a Common System Owner’s

assigning its interest does not release the assignor from obligations in the 

contract. Article 14.1 makes clear that obligations “created under” the CEPS 

Agreement “attributable to the period prior to the date of execution of the 

assignment” include “liability for abandonment” of CEPS.

The CEPS district court relied on Article 14.1 to conclude that Total was 

liable for all obligations that accrued before it assigned its ownership interest 

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to ATP. But Article 14.1 does not address when those obligations accrued. 

More importantly, even if the decommissioning obligations did arise before 

Total’s assignment, Article 11.3 still limits Total’s liability to its “Equity 

Interest at the time of abandonment” (emphasis added). Total had no Equity 

Interest in CEPS at the time of abandonment. Under the plain text of Article 

11.3, then, Total is liable for zero percent of the CEPS abandonment costs. 

Article 14.1 does not change that result.7

Accordingly, we conclude that the district court erred in granting 

summary judgment to MOGUS and denying summary judgment to Total. We 

therefore REVERSE the judgment in appellate Case No. 19-20282 and 

RENDER judgment in Total’s favor in that case. 

2. The MC 305 Agreement

Like the CEPS Agreement, the MC 305 Agreement contains two key 

provisions. Article 24.1.4 governs assignment and tracks the language of the 

CEPS Agreement, mirroring that contract’s Article 14.1. 

Unlike the CEPS Agreement, however, the MC 305 Agreement does not

limit an assignor’s liability for abandonment costs to its ownership interest at 

the time of abandonment; it does not mirror the CEPS Agreement’s Article 

11.3. Instead, Article 18.4 of the MC 305 Agreement, which governs 

abandonment, states only that abandonment “[c]osts, risks and net proceeds 

will be shared by the Participating Parties . . . according to their Participating 

Interest Share.”

7 MOGUS cites several cases for the general rule that an assignor is still liable for its 

contractual obligations after assignment. But none of those cases involved contractual 

language that based the assignor’s obligations on its ownership interest “at the time of 

abandonment.” MOGUS’s cited cases do not control the outcome here.

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No Alabama case is directly on point. Looking to states with similar 

laws,8 we note that the Texas Supreme Court has interpreted similar language 

to mean that an assignor is liable for post-assignment expenses. In Seagull 

Energy E & P, Inc. v. Eland Energy, Inc., the contract at issue stated that 

abandonment “costs, risks, and net proceeds” would be “shared by the Parties 

owning [the abandoned] well or platform in proportion to their Participating 

interests.” 207 S.W.3d 342, 346 (Tex. 2006). Like Total, the assignor in Seagull

argued that “its obligation to reimburse the operator continued only so long as 

it owned a participating interest.” Id. Applying Texas law, the Texas Supreme 

Court squarely rejected this argument. Id. It concluded that the assignor 

reads far too much into these provisions. Nowhere do they mention 

the subject of release or the consequences which are to follow the 

assignment of a working interest. . . . The operating agreement 

simply does not explain the consequences of an assignment of a 

working interest to a third party.

Id. The Court thus held that “[b]ecause the operating agreement did not 

expressly provide that [the assignor’s] obligations under the operating 

agreement should terminate upon assignment and [the operator] did not 

expressly release [the assignor] following the assignment of its working 

interest,” the assignor remained liable for relevant abandonment costs even 

after it assigned its working interest. Id. at 347.

Unlike the CEPS Agreement, the MC 305 Agreement does not explain 

when the abandonment obligations are “created.” Thus, the key question is 

when the MC 305 abandonment obligations arose. In the absence of any other 

indication, we note that federal regulations provide that such obligations 

8 Texas law, like Alabama law, generally tracks the common law in this area. See 

Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006); 

RESTATEMENT (SECOND) OF CONTRACTS § 318 (1981); Russell, 124 So. 3d at 135 (citing 

RESTATEMENT § 318).

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accrue when operators,9 among other things, “[d]rill a well” or “[i]nstall a 

platform, pipeline, or other facility.” 30 C.F.R. §§ 250.1701(c), 250.1702.

Total asserts that the regulations do not control here because they 

“govern the parties’ joint and several liabilities vis-à-vis the Government, not 

amongst themselves.” See Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 

558, 563 (5th Cir. 2003) (emphasis added). But the regulations still “provide 

definitions regarding when obligations accrue.” Nippon Oil Expl. U.S.A. Ltd. 

v. Murphy Expl. & Prod. Co. - USA, No. 2:10-cv-02850-MVL-DEK, 2011 WL 

2456358, at *4 (E.D. La. June 15, 2011).

Total argues that, contrary to the regulations, the MC 305 

decommissioning obligations did not arise until the government ordered 

decommissioning. But Total cites no cases for this proposition. Indeed, Total 

cites no supporting cases at all in arguing that it is not liable for the MC 305 

abandonment costs. 

The underlying common law cases and relevant regulations, as well as 

the absence of contrary language in the contract, support MOGUS’s argument.

We thus conclude that the MC 305 abandonment obligations arose when Total 

drilled the wells on the property. Total is liable for its share of MC 305 

abandonment costs under Articles 18.4 and 24.1.4 of the MC 305 Agreement. 

The district court did not err in granting summary judgment on this point.

Whether ATP Fully Satisfied the Abandonment Obligations

Because we have concluded that Total is jointly and severally liable for 

the MC 305 abandonment obligations, we next consider whether ATP fully 

9 Technically, the regulations state that “lessees and owners of operating rights, as to 

facilities installed under the authority of a lease, and . . . right-of-way holders as to facilities 

installed under the authority of a right-of-way” accrue the obligations. See 30 C.F.R. 

§ 250.1701(c). We use the term “operators” for simplicity.

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satisfied those obligations when it settled with MOGUS. We hold that it did 

not.

Having found that Total is jointly and severally liable for the 

abandonment obligations under the Agreements, it is not debatable that Total 

is a co-promisor with ATP. See RESTATEMENT (SECOND) OF CONTRACTS 

(“RESTATEMENT”) § 293 cmt. a (1981). Total notes the general rule under the 

Restatement that satisfaction by one co-promisor relieves the others: the “one 

satisfaction” rule. “Satisfaction by the acceptance of a substituted performance 

(§ 278) has the same effect, since the promisee . . . has a right only to the single 

performance or to an agreed equivalent.” Id. § 293 cmt. a.

But when an obligee reserves its rights against a co-promisor, 

Restatement § 295 becomes relevant. Under Restatement § 295(2), “[w]ords 

which purport to release or discharge a promisor and also to reserve rights 

against other promisors of the same performance have the effect of a contract 

not to sue rather than a release or discharge.” That is, if A and B are copromisors, and A settles with obligee C, but C reserves its rights against copromisor B, then A and C’s settlement does not discharge B from liability. See 

id.

Total claims that ATP fully satisfied the decommissioning obligations 

under § 293 when it settled with MOGUS during the bankruptcy proceedings. 

MOGUS, in turn, relies on § 295. MOGUS argues that the reservations of 

rights in the bankruptcy agreements and the Final Order mean that Total was 

not discharged from liability. We address each argument in turn. 

Total claims that during the bankruptcy proceedings, MOGUS accepted 

the consideration provided by ATP “in full satisfaction of ATP’s obligation,” 

relying on ATP’s assumption of the MC 305 Agreement and ATP’s entry into 

the agreements with MOGUS approved by the bankruptcy court.

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During the bankruptcy proceedings, ATP assumed the MC 305 

Agreement pursuant to 11 U.S.C. § 365(a).10 This meant assuming “both the 

obligations and the benefits of the executory contract.” Century Indem. Co. v. 

Nat’l Gypsum Co. Settlement Tr. (In re Nat’l Gypsum Co.), 208 F.3d 498, 506 

(5th Cir. 2000).11 Total reads National Gypsum to mean that the assumption 

of a contract necessarily results in satisfaction of the obligations thereunder.

Thus, Total contends, ATP’s assumption of the MC 305 Agreement meant that 

any outstanding obligations under the Agreement were satisfied. But read in 

context, the National Gypsum language on which Total relies says only that 

“an executory contract may not be assumed in part and rejected in part.” Id. 

It says nothing of the effect of assumption on outstanding obligations. Indeed, 

Total cites no case law holding that such assumption automatically results in

satisfaction, nor have we discovered any.

Total next points to language in the relevant agreements regarding 

ATP’s satisfaction of its obligations and confirming that the agreements 

involved a “satisfaction of the ATP Obligations.”12 Total argues that the 

provisions are “language of full satisfaction, not partial satisfaction.” However, 

this argument overlooks the continued statements throughout the agreements 

that such satisfaction is between these two parties (ATP and MOGUS) only 

10 Under 11 U.S.C. § 365(a), a “trustee, subject to the court’s approval, may assume or 

reject any executory contract or unexpired lease of the debtor.”

11 An executory contract is one for which “performance remains due to some extent on 

both sides.” Tonry v. Hebert (In re Tonry), 724 F.2d 467, 468 (5th Cir. 1984) (internal 

quotation marks and citation omitted).

12 The “ATP Obligations” were “ATP’s respective proportionate share of the 

Decommissioning Obligations, inclusive of all associated operating, maintenance and repair 

expenses, insurance, and other costs and expenses incurred prior to or in connection with 

discharge of the Decommissioning Obligations.” The “Decommissioning Obligations,” in 

turn, were defined as “outstanding obligations for plugging and abandonment, removal, site 

clearance and/or decommissioning with regard to the Properties,” including CEPS and MC 

305.

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and the fact that the key bankruptcy documents contained reservations of 

rights. Such reservations mean that Restatement § 295, not Restatement 

§ 293, is the proper consideration.

Total argues that because ATP fully satisfied the abandonment 

obligations, § 295 does not control. But the case on which Total principally 

relies in arguing that ATP fully satisfied the abandonment obligations contains 

a key material difference: there was no reservation of rights. See Holland v. 

United States, 621 F.3d 1366, 1380–81 (Fed. Cir. 2010) (applying Illinois law). 

Moreover, unlike the agreements here, the Holland settlement agreement 

explicitly provided that the settling party’s payment would “constitute full

satisfaction of any and all remaining payments or contributions due or to 

become due under [the relevant agreements] . . . and . . . fully discharge the 

[settlor] . . . from any obligation or liability in connection therewith.” Id. at 

1372–73 (emphasis added). It also expressly released the settlor from “any 

obligation or liability of any kind in connection” with the settled claims. Id. at 

1378. No such language exists in the relevant agreements here. ATP did not 

fully satisfy all abandonment obligations. Under Restatement § 295(2), Total 

remains liable for its share of the abandonment costs. The district court did 

not err in its ruling in this regard.

Whether the MC 305 District Court Erred in Allowing a Royalty 

Interest Setoff to Total’s Liability

MOGUS cross-appeals the MC 305 district court’s denial of its Rule 50(b) 

motion for judgment as a matter of law on whether the Royalty Interest could 

be applied as a setoff to MOGUS’s damages. We hold that MOGUS’s crossappeal fails.

Under Rule 50(a), “[i]f a party has been fully heard on an issue during a 

jury trial and the court finds that a reasonable jury would not have a legally 

sufficient evidentiary basis to find for the party on that issue, the court 

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may . . . grant a motion for judgment as a matter of law” on that issue. FED.

R. CIV. P. 50(a)(1). Where, as in this instance, the Rule 50(a) motion is not 

granted, “the movant may file a renewed motion for judgment as a matter of 

law.” Id. 50(b). 

Even a party appealing a district court’s denial of a timely motion for 

judgment as a matter of law faces a high bar. See Encompass Office Sols., Inc., 

919 F.3d at 273 (“Although our review is de novo, after a jury trial, the standard 

of review is especially deferential.” (internal quotation marks, citation, and 

brackets omitted)). But when a party fails to file a proper Rule 50(a) motion 

before filing a Rule 50(b) motion or raises a new argument in a Rule 50(b) 

motion, our case law is not entirely clear on the result, with some decisions 

concluding that we cannot consider such an appeal and some applying plain 

error review. Compare OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 

F.3d 669, 680 (5th Cir. 2016) (“We have held that a party cannot ‘renew’ a 

motion it never made.”), with Montano v. Orange Cty., 842 F.3d 865, 877 (5th 

Cir. 2016) (applying plain error review).13 Because MOGUS cannot prevail 

even if we allow review, we need not address this dissonance further.

At trial, after Total closed its evidence, MOGUS moved for judgment as 

a matter of law under Rule 50(a). MOGUS argued that Total had not presented 

enough evidence to support its argument that it was entitled to a setoff in 

13 We also note that in most cases, “when a nonmovant fails, in district court, to object 

to a new issue’s being raised in a Rule 50(b) motion . . . the new issue in the Rule 50(b) motion 

receives de novo appellate review.” Montano, 842 F.3d at 877. This case presents the rare 

exception to that rule. Total did not respond to MOGUS’s Rule 50(b) motion, but that is 

because it did not have a chance to do so: the MC 305 district court summarily denied the 

motion the day it was filed. We thus decline to review MOGUS’s new argument de novo. Cf. 

Arsement v. Spinnaker Expl. Co., 400 F.3d 238, 248 (5th Cir. 2005) (applying de novo review 

when the nonmovant failed to object in the four days between the movant’s filing the motion 

and the district court’s ruling on it).

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damages for the Royalty Interest. The MC 305 district court denied MOGUS’s 

motion, as well as its renewed motion.

On cross-appeal, MOGUS first argues that Total was not entitled to a 

setoff because ATP and Bennu “never owed a ‘joint obligation’ to MOGUS.” 

Under Alabama law, Bennu’s payments decreased ATP’s—and thus, Total’s—

liability to MOGUS only if Bennu and ATP had such a “joint obligation.” Ala. 

Farm Bureau Mut. Cas. Ins. Co. v. Williams, 530 So. 2d 1371, 1373 (Ala. 1988)

(holding that the parties did not undertake a joint obligation); see also HarMar Collisions, Inc. v. Scottsdale Ins. Co., 212 So. 3d 892, 903 (Ala. 2016)

(holding that a similar setoff was improper where the two insurers owed 

“separate and distinct” obligations to the insured).

MOGUS argues that Bennu and ATP were like the insurers in Williams

and Har-Mar. But both cases are distinguishable. Unlike the insurers in those 

cases, here ATP and Bennu did not owe “separate and distinct” obligations. 

See Har-Mar Collisions, 212 So. 3d at 903. Rather, the evidence shows that 

both Bennu and ATP agreed to satisfy the ATP Obligations. One of the 

bankruptcy agreements provides that “ATP will satisfy the ATP 

Obligations . . . including through Bennu’s participation in this Agreement 

with regard to the . . . [Royalty Interest].” Similarly, the Final Order stated 

that “all sums . . . received by MOGUS on account of the . . . [Royalty 

Interest] . . . shall be deemed and considered for all purposes to be 

expenditures made by ATP and/or on behalf of ATP, and shall constitute 

payment of a portion of ATP’s share of Decommissioning.”

Viewing the evidence in the light most favorable to Total, the MC 305 

district court did not err in holding that ATP and Bennu were joint obligors 

such that the Royalty Interest decreased ATP’s—and thus Total’s—

decommissioning liability. See Encompass Office Sols., Inc., 919 F.3d at 273; 

see also RESTATEMENT § 295(3) (“Any consideration received by the obligee for 

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a contract not to sue one promisor discharges the duty of each other promisor 

of the same performance to the extent of the amount or value received.”). 

MOGUS next claims that allowing the Royalty Interest setoff is contrary 

to the Final Order in the bankruptcy case and the underlying bankruptcy 

agreements. It points to reservation language in the Final Order stating that 

the order and the bankruptcy agreements would not affect MOGUS’s right to 

seek payment from third parties for the decommissioning costs. But that does 

not change the fact that actual contributions do offset the obligations of coobligors. RESTATEMENT § 295(3). 

MOGUS also argues that Total’s Royalty Interest evidence was too 

speculative to support the setoff. MOGUS cites cases stating that royalty 

interests are inherently speculative. See Tidelands Royalty “B” Corp. v. Gulf 

Oil Corp., 804 F.2d 1344, 1350–52 (5th Cir. 1986) (stating that purchasing a 

royalty is a “gamble”); see also Weaver v. Fla. Expl. Co., 608 So. 2d 1034, 1040 

(La. Ct. App. 1992) (stating that a party was not entitled to damages for the 

royalty interest that was “without proof and . . . speculative and ha[d] not been 

proven with reasonable certainty”). But the issue in Tidelands was not 

whether a royalty interest’s purported value was too speculative to support a 

jury finding on that question. 804 F.2d at 1347–48, 1350. Moreover, the court 

in Weaver held only that evidence of the royalty interest in that case was 

speculative because the sole evidence of the royalty interest’s value was the 

party’s “own estimate of what the royalty interest [was] worth.” 608 So. 2d at 

1039–40. 

MOGUS’s contention fails, and Weaver is distinct, because Total 

presented evidence beyond its own estimate supporting the value of the 

Royalty Interest. It introduced a MOGUS spreadsheet valuing the Royalty 

Interest at $11,417,000. MOGUS’s former chief operating officer testified at 

trial that this valuation represented the Royalty Interest’s net present value. 

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In addition to this evidence, one of Total’s vice presidents, who had experience 

valuing royalty interests, testified that he would recommend that Total pay at 

least $11.4 million for the $11,417,000 Royalty Interest.

MOGUS also argues that the Royalty Interest valuation was based only 

on “hypothetical ballpark” figures. But MOGUS is essentially asking us to 

reweigh the Royalty Interest evidence. That is something we will not do. See 

Encompass Office Sols., 919 F.3d at 280. 

Finally, MOGUS notes that Total received a setoff for the full amount of 

the Royalty Interest, even though MC 305 is only one of four properties that 

the Royalty Interest covered. It argues that Total did not present evidence 

showing how the Royalty Interest should be allocated among the different 

properties involved. Assuming arguendo that plain error review applies to this

argument, which MOGUS raised for the first time in its Rule 50(b) renewed 

motion, “[i]f any evidence exists that supports the verdict, it will be upheld.” 

Montano, 842 F.3d 877 (internal quotation marks and citation omitted).

There was at least some evidence that MOGUS received the Royalty 

Interest to compensate it for the cost of abandoning, among other properties,

MC 305. MOGUS cites no precedent showing that Total was required to 

present evidence on how to apportion the Royalty Interest and thus decrease 

the setoff amount. The district court did not plainly err in rejecting MOGUS’s 

apportionment argument. We thus will not reverse the district court’s denial 

of MOGUS’s Rule 50(b) motion.

Conclusion

For the foregoing reasons, we REVERSE the CEPS district court’s grant 

of summary judgment holding that Total is liable for the CEPS 

decommissioning costs and RENDER judgment in Total’s favor under Case No. 

19-20282 (District Court Case No. 4:16-cv-02671). We AFFIRM the MC 305 

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district court’s judgment in full under Case No. 19-20271 (District Court Case 

No. 4:16-cv-02674). 

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