1 Local Rule 47.5 provides: "The publication of opinions that

have no pre cedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. UNITED STATES COURT OF APPEALS
for the Fifth Circuit

_____________________________________

No. 95-40146 Summary Calendar

_____________________________________

HORACE NORMAN, ET AL.,

Plaintiffs-Appellants,

VERSUS

APACHE CORPORATION,

Defendant-Appellee.

______________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(CA-G-91-378)

______________________________________________________ (July 20, 1995)

Before GARWOOD, JOLLY and DUHÉ, Circuit Judges.

PER CURIAM: 1

The owners of working interests in mineral leases brought an

action against Apache Corporation, the unit operato r, alleging

breach of contract, fraud, and breach of fiduciary duty. The

Defendant operator had halted production of the unit well in midJuly 1990, causing the leases maintained by unit production to

terminate. In earlier proceedings, this Court affirmed dismissal

of the fraud and fiduciary duty claims and reversed the district

court's grant of summary judgment on the breach of contract claim.2

Norman v. Apache Corp. , 19 F.3d 1017 (5th Cir. 1990). This Court

found genuine issues of material fact exist regarding whether

Apache misrepresented to the owners that it was continuing to

produce the well f rom July through November 1990, and whether

Apache breached its duty to act as a prudent operator by failing to

take reasonable steps to prevent the loss of the leases. I d. at

1031. On remand the district court again granted summary judgment

to Defendants. We reverse.

The district court found the remanded issues moot, holding as

a matter of law that Plaintiffs had been made whole and could not

maintain their cause of action for damages:

Even if every allegation against the Defendant is true,

such acts were cured when the Defendant rea cquired and assigned the leases to the Plaintiffs. At that time, the

status quo was duly restored by re-establish i ng the Plaintiffs' opportunity to drill.

Once Defendants reacquired and assigned the leases to

the Plaintiffs, the Plaintiffs we re made whole and

cannot, as a matter of law, maintain a cause of action against the Defendant for consequential damages relating to lost leases since the leases were no longer "lost."

1 R. 707. The record precludes the summary judgment finding that

Plaintiffs "were made whole" upon Defen dant's reacquisition and

assignment of leases to Plaintiffs. The record reflects that the

new leases differ in material respects from the lost leases. S ee

,

e.g. , Sbarbaro dep. at 30 (noting that some interests included in

the lost leases remained unleased under the new leases); aff. of

Jack Finkelstein at 4 (noting higher royalty burden and lack of

warranty of title on the new leases as contrasted with the lost

leases). Such evidence precludes the summary judgment findings3

that Plaintiffs were made whole and that "the status quo was duly

restored." Finding the summary judgment evidence bearing on these

material facts disputed, we reverse the summary judgm ent and

remand.

We decline Appellants' invitation to address the issue of the

proper measure of damages, a question to be addres sed, if

appropriate, in the first instance by the district court.

REVERSED and REMANDED.