IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 40

OCTOBER TERM, A.D. 2014

March 19, 2015

ULTRA RESOURCES, INC., a Wyoming 

Corporation,

Appellant

(Defendant),

v.

DOYLE and MARGARET M. 

HARTMAN, JOHN H. HENDRIX 

CORPORATION, MICHAEL L. KLEIN

and JEANNE KLEIN, RONNIE H. 

WESTBROOK and KAREN 

WESTBROOK,

Appellees

(Plaintiffs).

SWEPI LP, a Delaware Limited 

Partnership,

Appellant

(Defendant),

v.

DOYLE and MARGARET M. 

HARTMAN, JOHN H. HENDRIX 

CORPORATION, MICHAEL L. KLEIN 

and JEANNE KLEIN, RONNIE H. 

WESTBROOK and KAREN 

WESTBROOK,

Appellees

(Plaintiffs).

S-14-0006, S-14-0141

S-14-0007, S-14-0142
LANCE OIL & GAS COMPANY, a 

Delaware Corporation,

Appellant

(Defendant),

v.

DOYLE and MARGARET M. 

HARTMAN, JOHN H. HENDRIX 

CORPORATION, MICHAEL L. KLEIN 

and JEANNE KLEIN, RONNIE H. 

WESTBROOK and KAREN 

WESTBROOK,

Appellees

(Plaintiffs).

S-14-0008

Appeal from the District Court of Sublette County

The Honorable Norman E. Young, Judge

Representing Appellant Ultra Resources, Inc.:

Douglas J. Mason of Mason & Mason, P.C., Pinedale, Wyoming; Michael J. 

Gallagher, Shannon Wells Stevenson, Natalie West of Davis Graham & Stubbs LLP, 

Denver, Colorado. Argument by Ms. Stevenson.

Representing Appellant SWEPI, LP:

Patrick J. Murphy, Erica Day of Williams, Porter, Day & Neville, Casper, Wyoming; 

Phillip D. Barber of Phillip D. Barber, P.C., Denver, Colorado. Argument by Mr. 

Murphy.

Representing Appellant Lance Oil & Gas Company:

Paul J. Hickey of Hickey & Evans, Cheyenne, Wyoming; Ezekiel James Williams of 

Lewis Bess Williams & Weese, P.C., Denver, Colorado.

Representing Appellees:

John A. Masterson, Michael J. Sullivan of Lewis Roca Rothgerber LLP, Casper, 

Wyoming; Jake Eugene Gallegos, Michael J. Condon of the Gallegos Law Firm, P.C., 

Santa Fe, New Mexico. Argument by Mr. Sullivan and Mr. Condon.

Before BURKE, C.J., and HILL, KITE, DAVIS, JJ., and GOLDEN, J., retired.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
KITE, Justice.

[¶1] Appellants/Defendants Ultra Resources, Inc. (Ultra), SWEPI, LP (SWEPI) and 

Lance Oil & Gas Co. (Lance Oil)1appeal from the district court’s orders after 

Appellees/Plaintiffs Doyle and Margaret Hartman, et. al. filed a motion to enforce a 

judgment and net profits contract (NPC) pertaining to oil and gas leases in Sublette 

County, Wyoming.2 The defendants claim the district court did not have jurisdiction to 

rule on the issues presented in the plaintiffs’ motion to enforce. They also contest the 

district court’s decision on the merits of the motion to enforce and its award of attorney 

fees to the plaintiffs. We conclude the district court had jurisdiction over the issues 

presented, it correctly interpreted its prior judgment and the defendants’ accounting 

responsibilities under the NPC, and it properly granted the plaintiffs’ request for attorney 

fees, although we do order a minor revision of the award.

[¶2] We affirm with revision. 

ISSUES

[¶3] The issues3on appeal are:

 

1 Lance Oil did not file a separate brief. Instead, it joined the arguments presented in Ultra’s and 

SWEPI’s briefs, with the exception of their arguments on the attorney fee award which did not apply to 

Lance Oil because it was a non-operator working interest owner. 

2

Initially, there were two additional appeals related to this matter. Supreme Court Case No. S-14-0009 

was an appeal brought by defendants WPX Energy RM Company, f/k/a Williams Production Rocky 

Mountain Co., and Arrowhead Resources (U.S.A.), Ltd. We dismissed the appeal for want of prosecution 

when the appellants’ brief was not filed in a timely manner and refused to reinstate the appeal on a later

petition. Supreme Court Case. No. S-14-0010 was a cross-appeal brought by the plaintiffs which was 

voluntarily dismissed. 

3 We restate the issues presented in the parties’ opening briefs, but do not include the “issues” presented 

by defendants in their reply brief. W.R.A.P. 7.03 governs reply briefs:

Appellant may file a brief in reply which shall comply with the requirements of 

W.R.A.P. 7.01(a), (b), (c), (f), (g), (h), and (i). In lieu of any statement of the issues, the 

reply brief shall precisely and concisely set forth on the first page those new issues and 

arguments raised by the brief of the appellee which are addressed in the reply brief. A 

reply brief is limited to such new issues and arguments, and a failure to comply with 

these requirements may subject the party to sanctions under these rules.

In large part, the defendants’ reply brief simply includes further argument on the issues included in their 

opening briefs. “Presenting argument in a reply brief is not equivalent to framing the issues in an opening 

brief. A reply brief is not a second chance to raise an issue or present argument that the appellant had the 

responsibility, but failed, to address in its opening brief.” Ferrell v. Knighten, 2013 WY 37, ¶ 11, n.1, 298 
2

1. Did the district court have jurisdiction to consider the plaintiffs’ motion to 

enforce the judgment and the NPC?

2. Did the district court err by ruling that defendants were not entitled to credit 

for expenses which were invoiced prior to 2007 because they should have been charged 

against the net profits interest (NPI) during the time period at issue in the trial?

3. Did the district court err by ruling that, under the terms of the NPC, 

expenses had to be charged against the NPI in the month following the month the

expenses were invoiced?

4. Did the district court err by rejecting the defendants’ argument, based upon 

the principles of estoppel and finality, that the plaintiffs had agreed and the district court 

had previously ordered expenses would be charged against the NPI when billed to other 

working interest owners in joint interest bills (JIBs)?

5. Did the district court err in awarding attorney fees to plaintiffs? 

FACTS

[¶4] The parties own interests in certain oil and gas leases in Sublette County, 

Wyoming. Ultra Resources, Inc. v. Hartman, 2010 WY 36, ¶ 10, 226 P.3d 889, 902 

(Wyo. 2010) (Ultra I). Defendants Ultra and SWEPI4are working interest owners and 

operators of the leases, defendant Lance Oil is a non-operator working interest owner, 

and the plaintiffs own a NPI in the leases. Id., ¶ 11, 226 P.3d at 902-03. In the 

underlying litigation, the district court entered a declaratory judgment recognizing the 

existence of the NPI and delineating the operators’ NPC accounting responsibilities. It 

also granted a monetary judgment against the defendants for the amount due to the 

plaintiffs for the NPI through December 31, 2006. Id., ¶¶ 14, 17, 226 P.3d at 903-04. 

With a few exceptions not relevant here, we affirmed the district court’s decision in Ultra 

I. After our mandate issued, the district court entered an amended judgment and the 

defendants paid the monetary judgment. 

[¶5] In July 2010, the plaintiffs filed a motion to enforce judgment, claiming the 

defendants were not properly accounting to them as required by the earlier declaratory 

 

P.3d 161, 163, n.1 (Wyo. 2013), quoting Ultra Resources, Inc. v. McMurry Energy Co., 2004 WY 121, ¶ 

11, 99 P.3d 959, 963 (Wyo. 2004).

4 At the time of the trial, Shell Rocky Mountain Production, LLC was an operator and SWEPI was a nonoperator working interest owner. Ultra I, ¶ 11, 226 P.3d at 902-03. On December 31, 2008, Shell 

merged into SWEPI and SWEPI took Shell’s position as operator of the relevant leases. 
3

judgment and the NPC. The defendants asserted the district court did not have 

jurisdiction to consider the matters raised in the plaintiffs’ motion to enforce and the 

plaintiffs should have commenced a new action instead. The district court concluded it 

had jurisdiction and issued a number of orders on the merits of the plaintiffs’ motion to 

enforce. 

[¶6] The primary order at issue here pertains to the defendants’ attempts to charge pre2007 expenses to calculate the NPI starting January 1, 2007. The district court ruled that 

the NPI had been fully calculated through December 31, 2006 at trial, and the NPC 

required expenses to be charged to the NPI in the month following the date the expenses 

were invoiced. Consequently, the district court refused to allow the defendants to charge 

expenses invoiced prior to January 1, 2007, when calculating the 2007 NPI. The district 

court also concluded the plaintiffs were the prevailing parties in the enforcement 

proceeding pursuant to the Wyoming Royalty Payment Act (WRPA), segregation of the 

attorney fees between claims was not required and the operating defendants were 

required to pay the plaintiffs’ attorney fees. 

[¶7] The defendants appealed the district court’s decisions on the merits and its order 

on attorney fees. We will provide additional factual background as relevant to the issues 

discussed below. 

DISCUSSION 

1. Jurisdiction 

[¶8] The defendants maintain the district court did not have subject matter jurisdiction 

to decide the issues raised in the plaintiffs’ motion to enforce and the plaintiffs should 

have commenced a new civil action to have the matters heard. “The existence of subject 

matter jurisdiction is a question of law that we review de novo.” Madsen v. Bd. of 

Trustees of Memorial Hospital of Sweetwater County, 2011 WY 36, ¶ 9, 248 P.3d 1151, 

1153 (Wyo. 2011), citing Cantrell v. Sweetwater County School Dist. No. 2, 2006 WY 

57, ¶ 6, 133 P.3d 983, 985 (Wyo. 2006). See also Stephens v. Lavitt, 2010 WY 129, ¶ 9, 

239 P.3d 634, 637 (Wyo. 2010). 

[¶9] In Ultra I, the case was remanded to the district court for further proceedings 

consistent with our decision. The defendants argue the district court’s jurisdiction over 

the action ended when the district court entered an amended judgment consistent with our 

mandate and they satisfied the monetary judgment. Thus, they claim the district court did 

not have jurisdiction to consider the issues raised in the plaintiffs’ motion to enforce. The 

two aspects of the district court’s order challenged by the defendants are the district 
4

court’s exclusion of the pre-2007 expenses from the 2007 NPI accounting and its 

interpretation of the NPC deadlines for the operators’ expense reports.5 

[¶10] Courts have inherent power to enforce their own judgments. In Hurd v. Nelson, 

714 P.2d 767 (Wyo. 1986), we affirmed the district court’s post-judgment order 

enforcing a property settlement in a divorce action. Speaking to the district court’s 

enforcement powers, we stated:

“Courts have inherent power to enforce their own 

judgments and should see to it that such judgments are 

enforced when they are called upon to do so. To deprive a 

court of power to execute its judgments is to impair its 

jurisdiction, and the general rule is that every court having 

jurisdiction to render a particular judgment has inherent 

power and authority to enforce it and to exercise equitable 

control over such enforcement. Thus, a court of equity has 

inherent power to enforce its decrees. A court of equity 

retains and possesses the power to control the manner of the 

execution of its decree, and has the inherent right to modify, 

by a subsequent order, the manner in which it shall be 

enforced. * * * ” 46 Am.Jur.2d Judgments § 898, p. 1032 

(1969).

Id. at 771. 

[¶11] A court also has inherent power to interpret its judgments and clarify ambiguous 

terms. 46 Am. Jur. 2d Judgments § 73 (2015) states:

Trial courts have the inherent authority to interpret and 

clarify their judgments. The mere interpretation of a judgment 

involves no challenge of its validity, or an attack on it, and a 

clarification of an ambiguous judgment is not a modification 

or amendment of the judgment. An order clarifying a 

judgment explains or refines rights already given, and it 

neither grants new rights nor extends old ones. Unlike a 

modification, amendment, or alteration to a judgment, which 

must be accomplished under the court rules or some other 

 

5 The district court entered other post-judgment orders including an order confirming exclusion of 

division expenses, an order approving a set of reporting forms, and an order regarding the plaintiffs’ 

rights to access the defendants’ accounting records. Although parties may not confer jurisdiction on a

court by agreement when it does not exist, White v. Bd. of Land Comm’rs, 595 P.2d 76, 79 (Wyo. 1979), 

the defendants do not contest those rulings on appeal and we will not specifically discuss them. 
5

exception to preclusion, a clarification of a judgment can be 

accomplished at any time.

(footnotes omitted). See also Ladwig v. Chatters, 623 N.W.2d 266 (Minn. Ct. App. 

2001) (trial court had jurisdiction to interpret, clarify and enforce its earlier judgment). 

[¶12] In Zaloudek v. Zaloudek, 2010 WY 169, 245 P.3d 336 (Wyo. 2010), we addressed 

the husband’s post-judgment motions to clarify his obligations under the property 

division provisions of a divorce decree and to extend his deadline for compliance with a 

cash award to the wife. The district court denied the husband’s motions, entered a 

judgment in favor of the wife for interest accrued since the original decree and ordered 

the husband to satisfy the judgment within five days. Id., ¶ 6, 245 P.3d at 339. Relying 

on Hurd, supra, we concluded the district court’s post-judgment rulings were authorized 

because they fell within the court’s inherent authority to enforce its own judgments. Id., 

¶ 13, 245 P.3d at 341. 

[¶13] The defendants argue that Hurd does not provide authority for the district court’s 

actions in this case because it was a divorce action and the legislature specifically granted 

courts continuing jurisdiction in such cases. Wyo. Stat. Ann. § 20-2-203 (LexisNexis 

2013) grants courts continuing jurisdiction to enforce and modify orders concerning the 

care, custody and visitation of children after a divorce decree. However, Hurd addressed 

property division issues and § 20-2-203 does not grant continuing jurisdiction to courts to 

modify property divisions in divorce decrees. Glover v. Crayk, 2005 WY 143, ¶ 6, 122 

P.3d 955, 957 (Wyo. 2005). 

[¶14] Instead, Hurd specifically addressed the court’s inherent power to enforce its own 

orders. The power is, of course, limited to interpretation and clarification of orders and 

enforcement of their terms. In doing so, the court must stay true to the earlier judgment. 

In Eddy v. First Wyoming Bank, 713 P.2d 228, 235 (Wyo. 1986), this Court confirmed 

that the district court may interpret an earlier judgment pursuant to a post-judgment 

motion to clarify. We stated the court may take additional evidence at a post-judgment 

hearing to effectuate the original intent of the order. Id. See also Glover, ¶ 13, 122 P.3d 

at 958 (interpreting motion to amend or modify a divorce decree as a motion to correct a 

clerical mistake under W.R.C.P. 60(a)). The district court in the case at bar, therefore, 

had inherent authority to interpret, clarify and enforce its judgment in accordance with its 

original intent. 

[¶15] In contesting the district court’s jurisdiction over the post-judgment proceedings, 

the defendants also fail to recognize the significance of the declaratory judgment aspects 

of the original decision. The trial judgment stated:

98. The defendants remain obligated to and shall 

perform the required NPI accounting on a consolidated basis 
6

and make payments monthly to the plaintiffs commencing 

with production month January 2007, and shall do so in 

accordance with the terms of the Net Profits Contract and its 

Accounting Procedure and in compliance with the Court’s 

Findings of Fact, 25-30, supra. 

The referenced findings of fact stated:

25. Proper accounting for the NPI involves 

expenses and revenues allocable to operations under the 

Exhibit A leases to the Net Profits Contract and more recently 

the Subject Leases . . .

26. The plaintiffs’ NPI is 4.98%, rather than 5.0%,

because of the small interest owned by a non-plaintiff.

27. The Net Profits Contract sets forth the terms to 

be applied and honored in order to perform proper 

computation of any payable net profits. The accounting 

requirements are set forth in the body of the Net Profits 

Contract, in Exhibit A listing the permitted royalty and 

overriding royalty burdens on the leases, and in Exhibit C-1, 

which is an Accounting Procedure.

28. The Net Profits Contract Accounting Procedure 

may not be amended without the consent or approval of Novi 

or its successors in interest, including plaintiffs or their 

successors in interest. The Net Profits Accounting Procedure 

has never been amended. 

29. The Net Profits Contract and the Net Profits 

Accounting Procedure establish principles to be followed in 

performing the proper accounting of the NPI as follows:

(a) Plaintiffs’ net profits [interest] equals 4.98% of

cumulative gross revenue less cumulative expenses on a 

consolidated basis associated with the operation of NPI 

leases and wells on those leases;

(b) The NPI is to be calculated each month and the 

incremental net profits for that month, if positive, is to be 

paid as soon as practicable after the end of any month in

which net profits have been realized; 

(c) Gross revenue is based on proceeds from wellhead gas 
7

and oil sales and on fair market value for other sales;

(d) Deductible expenses are those that are reasonable and 

customary in connection with the operation and 

development of oil and gas properties. These expenses 

are properly chargeable against the NPI leases and are 

limited by amounts specified in the Accounting Procedure 

unless and until that procedure is amended as provided 

therein;

(e) Expenses that are not reasonable and customary and not 

properly chargeable in connection with the operation and 

development of NPI leases and therefore, not deductible, 

include, among others, federal income tax, interest on 

capital and other expenses, depreciation, acquisition costs, 

accrual accounts, and future asset retirement accounts; 

(f) The Accounting Procedure limits the amount of deductible 

labor expense (including employee benefits), Pinedale 

district office expense, well overhead rates, and legal 

expenses; and

(g) Deductible expenditures that benefit both NPI and nonNPI wells are allocated based on the ratio of the operators’ 

end-of-year NPI well count to total well count. 

30. In performing the NPI accounting, the only permitted 

burden deductions from gross revenues are the overriding 

royalty and landowners’ royalties set forth in the listing of 

leases on Exhibit A to the Net Profits Contract. The 

permissible burdens on the Subject Leases are depicted on 

Exhibit B attached and incorporated herein. 

[¶16] The Uniform Declaratory Judgments Act, as adopted in Wyoming at Wyo. Stat. 

Ann. § 1-37-101 through § 1-37-115 (LexisNexis 2013), has a provision that specifically 

authorizes “further relief” in a declaratory judgment action. Section 1-37-110 states:

§ 1-37-110. Supplemental relief

Further relief based on a declaratory judgment may be 

granted. Application therefor shall be by petition to a court 

having jurisdiction to grant the relief. If the application is 

sufficient the court, on reasonable notice, shall require any 

adverse party whose rights have been adjudicated by the 

declaratory judgment to show cause why further relief should 

not be granted.
8

[¶17] Section 1-37-110 has been cited as authority for courts’ post-declaratory judgment 

determinations in various contexts for many years. In In re General Adjudication of All 

Rights to Use Water in the Big Horn River System, 835 P.2d 273 (Wyo. 1992), the tribes 

filed a motion for order to show cause why the state engineer should not be held in 

contempt for failing to follow an earlier declaratory judgment concerning tribal water 

rights. While sorting out various orders that had previously been entered in the case, we 

addressed the state engineer’s duty to follow and implement earlier declaratory judgment 

rulings. We cited § 1-37-110 as authority for the following statement:

When . . . it is impossible to determine if the tribal right is 

being violated because the right itself is in some respect illdefined, the state engineer should promptly seek clarification 

from the district court so that appropriate remedial action, if 

needed, may be undertaken. See Wyo. Stat. §§ 1–37–106 & 

1– 37– 110 (1988). 

Id. at 283. This statement contains an implicit recognition of the district court’s 

jurisdiction to grant further relief in declaratory judgment actions. See also Beatty v. 

Chicago, B. & Q. R. Co., 52 P.2d 404, 409 (Wyo. 1935) (stating statute allowing for 

further declaratory relief permits post-judgment assessment of damages). 

[¶18] Learned treatises and decisions from other jurisdictions also demonstrate the 

courts’ broad powers under the Uniform Declaratory Judgments Act. 

In a proceeding for a declaratory judgment, the court may 

properly grant declaratory and nondeclaratory relief in a 

single action, when such relief is requested in the pleadings 

by the parties, or where the request for nondeclaratory relief 

is found to be supplemental to the declaratory relief. A court 

generally has jurisdiction to grant further and necessary or 

proper relief, including any relief essential to effectuate the 

declaratory judgment entered by the court. A court has the 

power, for example, to retain jurisdiction and grant further 

relief where it has entered a declaratory judgment declaring 

the rights of the parties under a contract. In such a case, the 

court may enter such supplemental judgments and orders, 

from time to time, as are necessary to the supervision of the 

contract. 

. . . .

Under a statute authorizing supplemental relief, the court 

may be permitted to reserve the right to make such further 

orders as might be necessary to effectuate the judgment, even 
9

though no separate proceeding is initiated to obtain such 

relief. 

24 C.J.S. Declaratory Judgments § 171 (2015) (footnotes omitted and emphasis 

added). 

[¶19] The Restatement (Second) of Judgments § 33 (1982, updated 2014) discusses the 

flip side of the court’s power to grant supplemental declaratory relief, i.e., the preclusive 

effect of a declaratory judgment is not as broad as in other civil actions. While an issue 

that was actually considered and decided in a declaratory judgment act is conclusive in a 

subsequent action between the parties as to the specific matters declared, the “further 

relief” provision of the act allows for additional or supplemental relief to be granted 

between the same parties on the same claim. Id. The reason for the departure from the 

usual preclusion rules “‘is that the losing party in a declaratory judgment action can 

normally be expected to recognize the rights declared by the judgment and act 

accordingly, but that if he fails to do so, the court should have ample power to enforce the 

judgment by subsequent coercive orders, whether or not such relief was sought in the 

original action.’” Alsheikh v. Arabian Nat’l Shipping Corp., 2009 WL 884795, * 2 (Tex 

Ct. App. 2009), citing Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 336 (Tex. Ct. 

App. 1973).

[¶20] In Horn & Hardart Co. v. Nat’l Rail Passenger Corp., 843 F.2d 546 (D.C. Cir. 

1988), the landlord sought “further relief” in a declaratory judgment action involving the 

termination of a commercial lease. In the original action, the district court upheld the 

landlord’s right to terminate the lease but ordered it to compensate the tenant under the 

early termination clause, and the circuit court affirmed that decision. When the tenant did 

not vacate the premises after the declaratory judgment was entered, the landlord brought 

an action for “further relief” under the Declaratory Judgments Act, seeking payment 

under the “end-of-term holdover and cost-on-default clauses” of the lease. The district 

court granted the landlord’s request for further relief and the tenant appealed, claiming 

the district court lost jurisdiction over the matter after the original order was appealed. 

[¶21] The D.C. Circuit Court rejected that assertion, stating:

The “further relief” provisions of both state and federal 

declaratory judgment statutes clearly anticipate ancillary or 

subsequent coercion to make an original declaratory judgment 

effective. Neither a completed appeal, nor a considerable 

period of delay after the trial court ruling terminates this 

authority. [The further relief provision’s] retained authority, 

commentators have noted, “merely carries out the principle 

that every court, with few exceptions, has inherent power to 

enforce its decees and to make such orders as may be 
10

necessary to render them effective.” Borchard, Declaratory 

Judgments 441 (2d ed.1941)[.]

Horn, 843 F.2d at 548 (footnotes and some citations omitted). See also Casa Balcona 

Terrace Cooperative v. Lyod, 2009 WL 1221257 (Mich. Ct. App. 2009). 

[¶22] A Montana district court granted further relief after an earlier declaration in a 

property boundary dispute between adjacent landowners. Goodover v. Lindey’s Inc., 843 

P.2d 765 (Mont. 1992). While the original declaratory judgment action was pending, one 

of the landowners placed improvements upon the land which was eventually declared to 

belong to the other. Id. at 767-68. After the judgment was entered, the burdened 

landowner brought an action for supplemental declaratory relief requesting the court to 

order removal of the encroachments and seeking damages for loss of use of the property. 

Pursuant to its supplemental relief jurisdiction, the district court ordered the encroaching 

party to submit a work plan detailing the removal of the encroachment and ordered that 

party to pay damages to the burdened party. Id. at 768. The Montana Supreme Court 

upheld the district court’s actions and ruled that, under the Declaratory Judgments Act, 

the district court retained jurisdiction to grant relief necessary to enforce its order. This 

continuing jurisdiction gave the court authority to grant monetary damages and order 

coercive action to provide complete relief in the declaratory judgment action. Id. at 770. 

[¶23] The further relief provision of the Declaratory Judgments Act does, however, have 

limitations. In Oklahoma Alcoholic Beverage Control Bd. v. Central Liquor Co., 421 

P.2d 244 (Okla. 1966), the Oklahoma Supreme Court considered whether the trial court 

had jurisdiction under the further relief provision of the Declaratory Judgments Act to 

address an entirely new issue that was not raised in the initial action. The court stated 

that the further relief “provision was not intended to give the court continuing jurisdiction 

to resolve subsequent disputes between the parties over matters not involved in the 

original litigation.” Id. at 247. See also Port Everglades Authority v. International 

Longshoremen’s Assoc., Local 1922-1, 652 So.2d 1169 (Fla. Ct. App. 1995) (holding that 

trial court’s retention of jurisdiction under the Declaratory Judgments Act was overly 

broad because it extended well beyond the sunshine law violation originally alleged and 

ruled upon in the original declaratory judgment action).

[¶24] This precedent makes it abundantly clear that a district court maintains jurisdiction 

to consider and order further relief on matters addressed in a declaratory judgment action. 

As a practical matter, if a court has no jurisdiction to enforce its declaratory judgment, 

the judgment would have no true legal effect. A declaratory judgment is, by its nature, 

abstract. The purpose of the Declaratory Judgments Act is “to settle and to afford relief 

from uncertainty and insecurity with respect to legal relations, and [the Act] is to be 

liberally construed and administered.” Wyo. Stat. Ann. § 1-37-114. In order to serve the 

purposes of the act, the district court must have power to enforce its ruling when the 

parties actually put it into effect. 
11

[¶25] The defendants also claim the NPC is a divisible installment contract which 

requires separate actions for different time periods. In Sagebrush Dev., Inc. v. Moehrke, 

604 P.2d 198, 204 (Wyo. 1979), this Court ruled prospective damages could not be 

awarded for future breaches of a contract requiring separate payments or performance; 

instead, a separate action must be brought after the plaintiff has actually sustained the 

damages. Here, the district court’s trial judgment awarded the plaintiffs NPI damages for 

the time period of March 2006 through December 2006 and included a declaratory 

judgment that the defendants continue to account to the plaintiffs and make payments in 

accordance with the NPC. In the enforcement action, the district court determined 

whether the pre-2007 expenses were, or should have been, included within the earlier 

trial proceedings and the propriety of the defendants’ methods of complying with its 

ongoing accounting requirements under the declaratory judgment. 

[¶26] Notably, the district court did not determine the amount of net profits due for any 

period after December 31, 2006, even though the plaintiffs presented evidence showing 

the calculation of the post-trial NPI. The district court’s refusal to calculate the NPI in 

subsequent periods was a proper recognition of the limits of its jurisdiction. See 

generally, Oklahoma Alcoholic Beverage and Port Everglades, supra. By limiting the 

scope of its post-judgment order, the district court also avoided a violation of the legal 

principles pertaining to installment or divisible contracts. The district court properly 

interpreted its former judgment and supplemented the declaration contained therein. 

[¶27] One additional matter merits our attention before we leave the jurisdictional issue. 

The defendants claim they were denied due process as a result of the plaintiffs’ failure to 

commence a new action to address the issues raised in the motion to enforce. In 

particular, they lament the absence of the procedures available under the rules of civil 

procedure when a new action is commenced, including the discovery provisions. As our 

description of Wyoming precedent on motions to clarify and/or enforce judgments 

indicates, commencing a new action was not required. Section 1-37-110 provides that 

the request for further relief be made by a petition to the district court which will, if 

appropriate, require the defendant to show cause why further relief should not be granted. 

Neither the plaintiffs nor the district court strictly followed the process set out in the 

statute. Instead of filing a petition for further relief under the Declaratory Judgments Act, 

the plaintiffs filed a motion to enforce the judgment and the district court did not issue an 

order to show cause.6 

 

6 At one point, there was discussion of a possible order to show cause as to why the defendants should not 

be held in contempt of court. The contempt process was later abandoned by the district court and the 

plaintiffs when they realized there was no factual basis for concluding the defendants had willfully 

violated a clear term of a court order. See generally, Greene v. Finn, 2007 WY 47, ¶¶ 14-15, 153 P.3d 

945, 951 (Wyo. 2007).
12

[¶28] While it would have been preferable for the statutory procedure to be followed, the 

failure did not impact the defendants’ procedural opportunities to contest the motion. 

The defendants countered the plaintiffs’ motion to enforce with various responses; the 

parties conducted some discovery during the post-judgment proceedings, including taking 

the experts’ depositions; and the district court held several hearings to address the 

outstanding matters. It should be noted that the defendants’ appellate argument 

suggesting they needed the discovery protections offered by a new action ignores the fact 

that the relevant accounting information was in their possession. Furthermore, the 

defendants actually objected in 2011 to the plaintiffs’ efforts to obtain additional 

discovery in the post-judgment proceedings. Although the defendants make a vague 

argument that they did not receive adequate process, they do not demonstrate how their 

due process rights to notice and the opportunity to be heard were violated. 

[¶29] Cases from other jurisdictions establish that “further relief” under the Declaratory 

Judgments Act may be granted through a variety of procedural mechanisms. In Juban v. 

Schermer, 751 A.2d 1190, 1191-92 (Pa. Super. 2000), the court entered a declaratory 

judgment on the validity of a land title transfer and the petitioner subsequently filed a 

petition seeking damages as a result of the respondent’s use of the property while the 

declaratory action was pending. Although the Pennsylvania statute set out a procedure 

similar to ours with a petition for further relief followed by an order to show cause, there 

is no indication that the trial court specifically issued an order to show cause. It appears 

that the matter proceeded after the respondents objected to the petition. Id. 

[¶30] Some other states’ declaratory judgment statutes simply require reasonable notice 

and a hearing, without having the district court issue an order to show cause. See, e.g., 

Casa Balcona and Horn, supra. There is no question that the defendants received notice 

and the opportunity to be heard in this case. We, therefore, conclude the district court 

had jurisdiction to consider the specific issues presented in this matter under its inherent 

authority to interpret and enforce its own judgment and the further relief provision of the 

Declaratory Judgments Act.7 Section 1-37-110. 

2. Pre-2007 Expenses/Timing of Expense Reporting

[¶31] The next three issues all pertain to the district court’s interpretation of its judgment 

from the 2007 trial and the defendants’ ongoing NPC accounting responsibilities, 

particularly the timing of expense reporting. The district court held an evidentiary 

hearing and set out its decision with findings of fact and conclusions of law. We, 

therefore, review its findings of fact under the clearly erroneous standard and its 

conclusions of law de novo. 

 

7 The parties stipulated the post-judgment proceedings would conclude after resolution of the pre-2007 

expense issue. They agreed other issues pertaining to the accounting and calculation of the NPI from 

January 1, 2007, forward would not be addressed in the motion to enforce proceedings but would be 

reserved for a future lawsuit. 
13

We do not substitute ourselves for the trial court as a 

finder of facts; instead, we defer to the trial court’s 

findings unless they are unsupported by the record or 

erroneous as a matter of law. Deroche v. R.L. Manning 

Co., 737 P.2d 332, 336 (Wyo.1987). Although the factual 

findings of a trial court are not entitled to the limited 

review afforded a jury verdict, the findings are 

presumptively correct. Piroschak v. Whelan, 2005 WY 26, 

¶ 7, 106 P.3d 887, 890 (Wyo.2005).

This Court may examine all of the properly admissible 

evidence in the record, but we do not reweigh the 

evidence. Forshee, et ux. v. Delaney, et ux., 2005 WY 

103, ¶ 6, 118 P.3d 445, 448 (Wyo.2005). Due regard is 

given to the opportunity of the trial judge to assess the 

credibility of the witnesses. We accept the prevailing

party’s evidence as true and give to that evidence every 

favorable inference which may fairly and reasonably be 

drawn from it. Harber v. Jensen, 2004 WY 104, ¶ 7, 97 

P.3d 57, 60 (Wyo.2004) (quoting Life Care Centers of 

America, Inc. v. Dexter, 2003 WY 38, ¶ 7, 65 P.3d 385, 

389 (Wyo.2003)). Findings may not be set aside because 

we would have reached a different result. Harber, ¶ 7, 97 

P.3d at 60 (citing Double Eagle Petroleum & Mining 

Corp. v. Questar Exploration & Production Co., 2003 

WY 139, ¶ 6, 78 P.3d 679, 681 (Wyo.2003)). A finding 

will only be set aside if, although there is evidence to 

support it, this Court on the entire evidence is left with the 

definite and firm conviction that a mistake has been 

committed. Mullinnix LLC v. HKB Royalty Trust, 2006 

WY 14, ¶ 12, 126 P.3d 909, 916 (Wyo.2006)

 . . . .

We review questions of law de novo. Y–O Investments, Inc. v. 

Emken, 2006 WY 112, ¶ 8, 142 P.3d 1127, 1130 (Wyo.2006).

Ultra I, ¶ 97, 226 P.3d at 922-23, quoting Snelling v. Roman, 2007 WY 49, ¶¶ 7–9, 154 

P.3d 341, 345 (Wyo. 2007).

[¶32] In order to understand the expense issue, it is necessary to provide some context. 

Under the NPC, the defendants (successors to the First Parties) have accounting and 

payment obligations to the plaintiffs (successors to Novi). 
14

1. NET PROFITS INTEREST—

Subject to the conditions hereinafter set forth, First Parties 

agree to pay to Novi a sum or sums representing 5% of the 

net profits (as hereinafter defined), herein referred to as “said 

net profits interest,” resulting from operations for oil and gas 

by First Parties, or any of them, under those certain leases[.] 

2. COMPUTATION—

Net profits shall be computed on the basis of all 

operations under the Pinedale Unit applicable to said leases . . 

. .

Net profits as used herein shall mean the gross revenue

(not required for payment of the overriding royalties shown 

on Exhibit A and landowners’ royalties) from unit operations 

allocable to said leases after deduction of all expenses of unit 

operations (unit operations being construed to include all 

operations of any of First Parties under said leases) except 

those charged to the working interest owners, if any, under 

the said unit other than First Parties. 

Expenses shall include by way of illustration but not by way 

of limitation, expenses incurred in connection with the 

preparation for the drilling of and drilling of wells, whether 

productive or dry; the equipping, completing, plugging and 

abandoning of wells; the producing of wells and treatment, 

storage and marketing of production therefrom; the building 

of roads, campsites and the making of improvements in 

connection with unit operations; expenses incurred in 

connection with exploratory work conducted in connection 

with operations hereunder; expenses incurred in connection 

with the examining and perfecting of and defense of titles to 

said leases, including attorneys’ fees incurred in connection 

therewith; losses, damages or liabilities sustained or incurred 

in connection with unit operations; gross production and ad 

valorem taxes or any tax measured by production; premiums 

paid for workmen’s compensation insurance, public liability, 

fire, wind, tornado or other insurance; and any other expenses 

and charges that are reasonable and customary in connection 

with the operation and development of oil and gas properties 
15

and which are properly chargeable against the leasehold 

interests. Without limiting the foregoing, the accounting with 

respect to unit operations shall be in accordance with the 

Accounting Procedure attached hereto and marked “Exhibit 

C–1” and made a part hereof to the extent that such exhibit is 

applicable and not inconsistent with the foregoing provisions 

and including the overhead charges provided for in said 

exhibit.

3. PAYMENT—

Inasmuch as the Operator in charge of operations under said 

leases and under the said Pinedale Unit Agreement will either 

be Continental or El Paso, or both, the responsibility for 

handling the accounting for net profits and making payments 

hereunder to Novi for its share thereof shall be the 

responsibility of Continental and El Paso, such parties (or 

either of them) being hereinafter sometimes referred to for 

convenience as “Operator.”

Novi shall be entitled to receive its percentage of net 

profits at the end of any month whenever it shall appear at the 

end of such month that net profits have been realized as a 

result of operations under said leases, taking into 

consideration all expenses theretofore incurred in connection 

with such operations and all accounts payable or receivable 

with regard thereto at the end of said month and all payments 

of net profits theretofore made to Novi. In making the 

foregoing computations, deficits shall be carried over from 

month to month and the accumulated total thereto applied 

against subsequent earnings before profits will be considered 

to have accrued. Payment of such net profits shall be made as 

soon as practicable after the end of any month in which net 

profits have been so realized. Notwithstanding that there may 

be separate operations under said leases relating to separate 

deposits of oil and gas (whether conducted by Continental or 

El Paso or some by Continental and some by El Paso), all 

accounting for the purpose of determining net profits 

hereunder shall be upon a consolidated basis involving all 

operations under said leases and the said Pinedale Unit.

Operator shall keep an accurate record of all accounts 

hereunder, showing the costs and expenses incurred and 
16

charges made and all receipts and credits received, which 

record shall be available at all reasonable times for the 

examination and inspection of Novi or its duly authorized 

representative. Within one (1) month after the close of each 

calendar month, Operator shall furnish to Novi a statement of 

costs and expenses incurred and charges made and all receipts 

and credits received during such calendar month.

(Emphasis added.) 

[¶33] At the time of the 2007 trial, the defendants denied the continued existence of the 

NPI and had never properly accounted to the plaintiffs under the terms of the NPC. The 

information used to calculate the NPI at trial was not provided by the defendants pursuant 

to timely reporting under the NPC but was, instead, provided in the litigation discovery 

process. The district court’s judgment, which was affirmed in all relevant respects by this 

Court, included an award of net profits from March 2006 through December 2006.8 The 

district court made a number of determinations as to what expenses were properly 

deductible in calculating the NPI, generally relying upon the calculation performed by the 

plaintiffs’ expert accounting witness, David Johnson. In total, over $2 billion in expenses 

were allowed as deductions in calculating the net profits at trial, including $888.4 million 

for 2006. The excluded expenses included Ultra’s “accrual accounts” of $77,752,958 and 

Shell’s accumulator accounts of $59,212,079. 

[¶34] Little was known about the accrual and accumulator accounts at trial. Mr. 

Johnson testified that he did not believe the expenses in the accounts were properly 

deductible at the time of trial because Ultra represented the amounts in the accrual 

accounts were “estimates,” suggesting that no invoices had been received for the 

expenses, and Shell indicated the expenses in the accumulator accounts could not be 

specifically tied to NPI wells. The defendants did not provide any detail on the expenses 

included in the challenged accounts, so there was no evidence of the activity date (the 

date the goods or services were provided to the operators), the invoice date, or the date of 

payment. Given the defendants’ characterization of the expenses in the accounts and the 

lack of information about them, the district court rejected the defendants’ efforts to 

deduct the accrual and accumulator accounts from the revenues to determine the net 

profit for trial. The defendants did not appeal the district court’s rejection of the accrual 

and accumulation accounts after the first trial and, consequently, we did not address that 

ruling in Ultra I. 

 

8 Although net profits had been earned beginning in May 2005, the defendants were not obligated to pay 

the plaintiffs until March 2006 because the plaintiffs did not give notice of their ownership of the NPI, as 

required by the NPC, until February 2006. Ultra I, ¶¶ 66-67, 73, 226 P.3d at 916-17. 
17

[¶35] As we stated above in Paragraph 14, the district court also ruled after the 2007 trial 

that the defendants were required to perform an ongoing “NPI accounting on a 

consolidated basis and make payments monthly to the plaintiffs commencing with 

production month January 2007,” in accordance with the terms of the NPC and the 

judgment. After we affirmed the district court’s decision, the defendants provided 

accounting statements to the plaintiffs which indicated they were charging expenses with 

activity dates prior to January 1, 2007 to the 2007 NPI accounting. When the plaintiffs 

questioned the defendants about the pre-2007 expenses, the defendants claimed the 

expenses were properly included in the 2007 accounting because they had been excluded 

from the trial accounting as accrual and accumulator accounts. 

[¶36] In a series of hearings on the plaintiffs’ motion to enforce starting in 2010 and 

continuing through April 2013, the parties argued about whether the expenses prior to 

January 1, 2007, should be included in the 2007 accounting. The plaintiffs generally 

advanced two arguments against including the pre-2007 expenses in the post-trial 

accounting. The first was that the trial in 2007 was intended to determine a complete NPI 

accounting through December 31, 2006, and the defendants were obligated to provide all 

of their pre-2007 expenses for deduction from the trial NPI. The plaintiffs’ second 

argument was the NPC required the defendants to report expenses within one month after 

the month they were incurred. They argued that an expense was “incurred” for purposes 

of the NPC when it was invoiced by a third party supplier or service provider to the 

operators. 

[¶37] The defendants argued the invoice date was irrelevant and the pre-2007 expenses 

reported in the 2007 accounting were timely because they were reported to the NPI 

owners at the same time the operators billed them to the other working interest owners 

through the joint interest billing (JIB) process. In other words, according to the 

defendants, expenses were “incurred” for NPC purposes when they were “jibbed.” The 

defendants also argued the expenses were properly included in the 2007 accounting 

because the NPC envisioned a cumulative accounting which included all expenses from 

inception of the NPI forward. 

[¶38] The district court issued a detailed order on the plaintiffs’ motion to enforce. It 

reviewed the evidence and rulings from the trial and the evidence about the pre-2007 

expenses produced in the post-judgment proceedings, interpreted its earlier judgment and 

the relevant provisions of the NPC and ruled that all expenses which were invoiced 

before January 1, 2007 were excluded from the post-trial accounting. In general, the 

district court agreed with the plaintiffs that the trial NPI determination was a full 

accounting of the NPI through December 31, 2006. The district court also found that an 

expense was “incurred” under the NPC when it was invoiced. Applying this definition, 

the district court decided that Section 3 of the NPC required the operators to charge 

expenses to the NPI account within one month after the close of the calendar month in 

which the invoice was dated. Thus, the district court’s decision relies upon two legal 
18

concepts—the finality of the trial judgment and the tardiness of the defendants’ expense 

reporting. 

[¶39] The trial judgment specifically stated net profits were awarded to the plaintiffs for 

the period of March through December 2006. In its order on the motion to enforce, the 

district court entered the following findings of fact and conclusions of law regarding the 

scope of the trial judgment:

[Findings of Fact] 25. Ultra and SWEPI did not 

follow the NPC terms in reporting trial NPI expenses. The 

individuals responsible for revenue and expense reporting 

testified they were not familiar with, or guided by, the NPC 

terms when they assembled and reported expense and revenue 

information to the Plaintiffs for the 2007 trial.

26. Witnesses for Ultra and SWEPI testified they 

reported all NPI expenses for the trial calculation. SWEPI 

witness, Jeannine Nieder, testified she instructed their experts 

to include all accumulator accounts in the trial expenses, 

including non-NPI wells, because she would rather include 

them and have them challenged rather than exclude them and 

lose some costs.

. . . .

[Conclusions of Law] 2. Defendants were solely 

responsible for the NPI expenses reported for the 2007 trial 

calculation. To the extent Defendants incurred but failed to 

properly present evidence of pre-2007 expenses at trial, they 

are precluded by the Judgment from doing so in the NPI 

accounting beginning January, 2007. 

[¶40] The district court specifically excluded the expenses in the accrual and 

accumulator accounts from the NPI accounting approved at trial and the defendants did 

not appeal that decision. We discussed the preclusive effect of a party’s failure to appeal 

a decision in Triton Coal Co. v. Husman, Inc., 846 P.2d 664, 667-68 (Wyo. 1993) and 

noted that, while the legal concept that a non-appealed issue is final may be part of the 

law of the case doctrine, it is more correctly classified as a type of waiver: 

Under the “law of the case” doctrine, a court’s decision on 

an issue of law made at one stage of a case becomes a binding 

precedent to be followed in successive stages of the same 

litigation. 1B JAMES W. MOORE, JO DESHA LUCAS & 

THOMAS S. CURRIER, MOORE'S FEDERAL PRACTICE 

¶ 0.404[1] (2d ed. 1983). The “law of the case” is a doctrine 
19

designed to avoid repetitious litigation and to promote 

consistent decision making. As such, it is in the same family 

as res judicata, collateral estoppel, and stare decisis. In their 

treatise, Professors Wright, Miller, and Cooper identify four 

situations in which the “law of the case” may arise. 18 

CHARLES ALAN WRIGHT, ARTHUR R. MILLER & 

EDWARD H. COOPER, FEDERAL PRACTICE AND 

PROCEDURE § 4478 (1981). Most commonly, the “law of 

the case” requires a trial court to adhere to its own prior 

rulings, adhere to the rulings of an appellate court, or adhere 

to another judge’s rulings in the same case or a closely related 

case. Id. Triton, however, relies upon a fourth and much less 

utilized aspect of the rule in which a court’s ruling on an issue 

that could have been appealed, but was not, will be given 

preclusive effect. Tom Beuchler Construction, Inc. v. City of 

Williston, 413 N.W.2d 336, 339 (N.D.1987). Although some 

courts label this fourth category as the “law of the case,” it is 

something of a misfit. Generally, the “law of the case” arises 

because a court has ruled on a matter and that ruling is to be 

applied to subsequent proceedings in the litigation. However, 

in the fourth category relied upon by Triton, it is the litigant’s 

failure to raise an issue on appeal which gives rise to the 

preclusive effect of the lower court’s ruling, not a court 

ruling. Allan D. Vestal, Law of the Case: Single–Suit 

Preclusion, 11 UTAH L.REV. 1 (1967). The underlying 

rationale of the fourth category of the “law of the case” is that 

a litigant can argue to an appellate court only those issues 

which he raised on appeal. Id. at 21. The idea that a litigant is 

limited to arguing those issues he raised on appeal is, in 

essence, the concept of waiver.

The general rule concerning waiver is:

[Q]uestions assigned as error are deemed to have been 

abandoned or waived where they are not urged or discussed 

on appeal by brief or argument, or are not sufficiently so 

discussed; and the same rule applies to cross errors. 5B 

C.J.S. Appeal and Error § 1803 at 98 (1958). This Court has 

consistently applied this long-standing rule in prior cases. 

Dworkin v. L.F.P., Inc., 839 P.2d 903 (Wyo.1992); Schaffer 

v. Standard Timber Company, 79 Wyo. 137, 331 P.2d 611 

(1958). 
20

Applying the waiver concept in the case at bar, the defendants waived any objection to 

the district court’s determination that the accrual and accumulator accounts could not be 

included in the trial net profit calculation because they did not appeal that aspect of the 

decision. 

[¶41] With regard to the completeness of the trial accounting, the district court stated the 

witnesses for Ultra and SWEPI testified they reported all NPI expenses for the trial 

calculation. These findings are supported by the record. Jeannine Nieder, Shell’s 

financial representative for its Rocky Mountain assets, testified she was responsible for 

gathering information about the NPI for the 2007 trial calculation and admitted she did 

not use the NPC to guide her in determining what expenses to include. She repeatedly 

stated that she “included all expense items” up through December 31, 2006, for the NPI 

calculation. The accumulator accounts prepared under her direction included expenses 

that she believed were at least partially allocable to NPI wells and leases, but, at the time 

of trial, she was not sure. 

[¶42] After the trial, SWEPI started compiling information to meet its NPC reporting 

requirements. The March 2007 expenses reported by SWEPI were unusually high, 

including $43 million of pre-2007 expenses. Contrary to SWEPI’s representation of the 

nature of the accumulator account expenses at trial, the district court found in the postjudgment order that at least some of the expenses could have been allocated to the NPI 

wells prior to trial:

18. SWEPI disclosed its March, 2007 expenses 

were abnormally high because $43 million in pre-2007 

expenses from the accumulator account was charged to NPI 

wells in March, 2007. SWEPI charged certain of the 

accumulator expenses to NPI wells prior to trial but did not 

report the accumulator expenses as incurred expenses. 

SWEPI records reflect the accumulator expenses were 

invoiced prior to January 1, 2007. 

The defendants do not establish this factual finding was clearly erroneous. 

[¶43] At the hearing on the motion to enforce, Ms. Nieder testified about the process 

SWEPI used in early 2007 to move the pre-2007 expenses from the accumulator accounts 

to the NPI account. She was questioned as to why the amounts in the accumulator 

accounts invoiced prior to December 31, 2006, had not been reported as incurred NPI 

expenses for the October 2007 trial. Ms. Nieder stated SWEPI had not finished its NPI 

accounting so, even though the expenses could have been charged to NPI wells prior to 

trial, they were just put in an accumulator account. 
21

[¶44] Kristen Marron, Ultra’s controller until April 2007, testified at her June 2007 

deposition that she had been instructed to compile all accounting data for the relevant 

leases. She stated that she had provided all revenue and expense information “as 

requested.” Ms. Marron testified the trial data included all costs to “drill and complete 

the wells,” lease operating expenses, and the G & A (general and administrative costs) 

allocation. She stated the only expenses excluded were those that did not pertain to the 

relevant wells. Mr. Johnson later testified that he had understood from Ms. Marron’s 

deposition in June 2007 that “all expenses were provided.” 

[¶45] As the district court noted, the trial accounting was meant to be final through 

December 2006. Given the defendants were the only parties with access to the expense 

information and the parties understood the trial accounting was final through December 

2006, the defendants should have provided all expenses applicable to the NPI leases 

through the end of 2006 for determination of the NPI at trial. A reasonable inference 

from the evidence presented at the post-judgment hearing is that the defendants simply 

failed to perform their accounting obligations and did not properly identify and report all 

of the pre-2007 expenses for trial. Having failed to report the expenses for trial, the 

defendants sought to include them in a later accounting period without regard for the 

finality of the pre-2007 accounting or the trial judgment.9 The district court’s findings as 

to the scope of the trial accounting are supported by the record. It properly concluded 

that all expenses deductible from the NPI calculation for 2006 should have been included 

in the defendants’ trial evidence. 

[¶46] The defendants argue that since the expenses were not allowed at the trial, they 

should be allowed in the post-trial NPI calculations. This argument requires us to assume 

the excluded accrual and accumulator accounts were the same pre-2007 expenses they 

now seek to include in the 2007 accounting. The defendants did not make a clear 

connection between the trial accrual accounts and the pre-2007 expenses they sought to 

include in the 2007 accounting at the post-judgment hearings. The most obvious 

difference is the amounts did not match. The excluded trial expenses included $77.7 

million in Ultra’s accrual accounts and $59.2 million in SWEPI accumulator accounts, 

while the expenses at issue in the post-trial accounting with activity dates before January 

1, 2007, included $60.8 million for Ultra and $70.5 million for SWEPI. 

[¶47] During the post-judgment proceedings, Ultra’s controller Garland Shaw10was 

asked about the relationship between the $77.7 million in Ultra’s accrual account that was 

 

9

Furthermore, some of the pre-2007 expenses claimed by Shell in its 2007 NPI accounting did not even 

pertain to NPI wells, even though they had supposedly been confirmed as expenses allocable to the NPI in 

the post-trial accounting process. 

10 Mr. Shaw testified that he started as Ultra’s corporate controller in October 2006. Apparently there was some 

overlap between Mr. Shaw’s and Ms. Marron’s tenures, as she testified that she was Ultra’s controller until March 

2007. 
22

excluded from the trial accounting and the $60.8 million of pre-2007 expenses that Ultra 

was seeking to deduct from the post-trial NPI calculation. He confirmed there was no 

direct correlation between the amounts and stated, “we’re sort of talking about apples and 

oranges when we talk about the 60 million and we talk about the 77 million.” When 

asked whether Ultra could have tied the pre-2007 expenses currently in dispute to the 

accruals excluded at trial, Mr. Shaw stated they “could have made a determination” but 

they did not because “[t]here’s no reason to do that. The accruals were disallowed at 

trial.” The amounts in the trial accrual accounts were not supported by source 

documents, which would have shown detail such as the activity date, invoice date or 

payment date. Therefore, the defendants’ current argument that it was wrong to exclude 

the former accrual expenses from the post-trial accounting after they had been excluded 

at trial is not supported by the record because there was no evidence the trial accrual 

expenses were the same as the pre-2007 expenses the defendants wish to include in the 

2007 accounting. 

[¶48] The district court also relied upon the terms of the NPC in excluding from the 

2007 NPI accounting expenses that were incurred prior to December 31, 2006. To 

reiterate, Paragraph 98 of the judgment states: 

The defendants remain obligated to and shall perform the 

required NPI accounting on a consolidated basis and make 

payments monthly to the plaintiffs commencing with 

production month January 2007, and shall do so in 

accordance with the terms of the Net Profits Contract and its 

Accounting Procedure. 

[¶49] The contractual provision establishing the deadline for the operators to report 

expenses to the net profit owners is located in Section 3 of the NPC and states: 

Within one (1) month after the close of each calendar 

month, Operator shall furnish to Novi a statement of costs 

and expenses incurred and charges made and all receipts 

and credits received during such calendar month. 

Under this provision and others in the contract, the proper time for charging an expense 

to the NPI is when it is “incurred” by the operator. 

[¶50] The plaintiffs argued, and the district court agreed, an expense is incurred under 

the contract when a third party provides an invoice for goods or services related to the 

NPI leases to the operator. The defendants argued, however, that a cost is incurred for 

NPC purposes when it was billed to the joint interest partners in a JIB or, in other words, 

“jibbed.” We apply our typical rules of contract interpretation to this issue. 
23

The initial question of whether the contract is capable of 

being understood in only one way is a question of law for the 

court. If the court determines that the contract is capable of 

being understood in only one way, then the language used in 

the contract expresses and controls the intent of the parties. In 

such case, the next question, what is that understanding or 

meaning, is also a question of law. . . . 

M & M Auto Outlet v. Hill Inv. Corp., 2010 WY 56, ¶ 12, 230 

P.3d 1099, 1104 (Wyo.2010), quoting Examination Mgmt. 

Servs., Inc. v. Kirschbaum, 927 P.2d 686, 689 (Wyo.1996)

(internal citations omitted).

Davidson Land Co. v. Davidson, 2011 WY 29, ¶ 13, 247 P.3d 67, 71 (Wyo. 2011). 

[¶51] To determine the meaning of contract terms, we focus on the parties’ intent. 

When the language is clear and unambiguous, we determine that intent from the contract 

language. We give the words used in the contract their plain and ordinary meaning and 

consider the agreement as a whole, giving effect to each provision. Davidson, ¶¶ 14, 34, 

247 P.3d at 71, 76; Hall v. Perry, 2009 WY 83, ¶ 13, 211 P.3d 489, 494 (Wyo. 2009). 

We resort to rules of contract construction only when a contract is ambiguous. Davidson, 

¶ 14, 247 P.3d at 71. See also Christensen v. Christensen, 2008 WY 10, ¶ 13, 176 P.3d 

626, 629 (Wyo. 2008); Cathcart v. State Farm Mut. Auto. Ins. Co., 2005 WY 154, ¶ 18, 

123 P.3d 579, 587 (Wyo. 2005). 

[¶52] The deadline for the timely reporting of expenses by the operators to the net profit 

owners is triggered when the operator incurs an expense. The plain and ordinary 

meaning of “incur” is: “to become liable or subject to: bring down upon oneself <incur 

expenses>” Merriam-Webster Dictionary 250 (2005). See also Fix v. Forelle, 2014 WY 

79, ¶ 17, 327 P.3d 745, 749 (Wyo. 2014) (defining incur with dictionary definition). The 

usual understanding of when a party becomes liable or subject to an actual expense is 

when a third party vendor or service provider gives notice of the amount charged and 

when payment is due. That information is commonly communicated with an invoice or a 

bill. 

[¶53] The district court accepted the common usage when it rejected the defendants’ 

position that an expense is incurred when it is “jibbed” and, instead, adopted the 

plaintiffs’ argument that the invoice date is the date of incurrence:

21. The appropriate date for when an expense is 

incurred for purposes of the NPI accounting is the date of an 

invoice for work or material provided on a NPI well or lease. 

The invoice date provides an operator with the date of a 
24

charge by a third party for work performed or materials

furnished for a NPI well. The invoice also provides the 

operator with a sum to be paid and the date payment is due. 

28. The NPC does not contemplate expense 

reporting based on the operators’ discretionary internal 

accounting process after an invoice has been received, after it 

has been approved for payment, and when it is reflected on a 

joint interest billing to the working interest owners in a NPI 

well. Such a procedure could result in posting an expense to 

the NPI account several months after the expense was 

incurred. 

The district court explained that adopting the invoice date as the date of incurrence is 

consistent with the contract language and is “a workable standard. Utilizing the invoice 

date reduces uncertainty and further reduces the opportunity for manipulation of the NPI 

account as to the timing of charges to the NPI account.” 

[¶54] The defendants assert the district court’s interpretation of the contract language 

ignores other provisions of the NPC including the provisions referencing expenses that 

are “reasonable and customary” and “properly chargeable against the leasehold interest” 

in Section 2 of the contract and the cumulative nature of the NPC accounting set out in 

Section 3. The “reasonable and customary” and “properly chargeable” language is part 

of the definition of expenses in Section 2. It describes the scope of the expenses to be 

included in the NPI calculation and does not address the timing of the reporting 

requirement. The deadline for reporting expenses is set out in the “incurred” language of 

Section 3. The defendants are correct that Section 3 of the NPC requires calculation of 

the net profits on the basis of cumulative revenues and expenses over the life of the 

contract. That does not mean, however, the defendants were free to disregard the timing 

provisions of the contract. The contract requires the operators to report the expenses to 

the net profit interest owners within one month after the month an expense is invoiced. 

[¶55] The district court’s interpretation that the defendants are obligated to charge 

expenses to the NPI within the NPC’s deadline gives full effect to all of the terms of the 

contract and accurately reflects the rulings from the trial judgment. The defendants 

would have received the benefit of the cumulative accounting for expenses had they 

reported them to the plaintiffs within the contract timeline. As the district court 

recognized, if the operators can decide when a cost is incurred by picking the time to 

include it on the JIB, the net profit interest, which is payable in any month that shows a 

net profit, would be subject to manipulation and the reporting deadlines would essentially 

be meaningless. There would be no reason for the contract to require the operators to 

report on a monthly basis if they can decide when to apply the expenses using the JIB 

process. 
25

[¶56] The district court also properly considered the circumstances surrounding the 

execution of the NPC in 1954 in determining that the original parties did not intend to use 

the JIB date as the date of incurrence. As we have stated before, even when a contract is 

unambiguous, evidence of the circumstances surrounding its execution may be 

considered to determine the parties’ intent. “Relevant considerations may include the 

relationship of the parties, the subject matter of the contract, and the parties’ purpose in 

making the contract.” Davidson, ¶ 14, 247 P.3d at 72, quoting Ecosystem Res., L.C. v. 

Broadbent Land & Res., L.L.C., 2007 WY 87, ¶ 10, 158 P.3d 685, 688 (Wyo. 2007). The 

district court explained:

29. At the time the NPC was negotiated and executed, 

El Paso was the original operator of the subject properties. 

Continental and MALCO were non-operating working 

interest owners. Had the parties intended to provide that an 

expense is incurred for the NPI accounting based on when the 

operator decided to charge the joint interest owners, they 

could have done so, but they did not. 

In other words, the contracting parties were familiar with the JIB process but did not 

expressly incorporate that accounting time into the NPC terms. Instead, the original 

parties adopted a reporting deadline based upon when the operator incurs an expense, i.e., 

when an expense is invoiced, thereby making the recipient liable for the amount due. 

[¶57] The arbitrariness of using the JIB date as the date of incurrence was aptly 

demonstrated in Ms. Nieder’s testimony about Shell’s method of expense reporting. She 

actually agreed with plaintiffs’ counsel at the March 2013 hearing that when Shell 

received an invoice it had incurred an expense. However, she testified Shell’s charge 

against the NPI did not follow the “incurrence” language.

Q. . . . So your classification of inclusion in the net 

profits is something other than an incurrence of an expense? 

Are we to understand that?

A. That’s correct. 

Ms. Neider stated that her understanding of the NPC was that a charge is “billable to the 

NPI when that charge is posted to a well associated with the NPI,” as part of the JIB 

process. She confirmed that the operator was in charge of posting the expenses and 

stated the following with regard to the timing of the posting:

Q. [I]s it typical that the posting happens in the month 

following the expense being incurred?
26

A. It could happen in the month following. It could 

happen subsequent to that.

Q. So whatever time that is, a month, two months, three 

months, it’s your opinion, what you’re offering as opinion is 

that’s when it gets charged to the net profits account?

A. Yes. 

Ultra’s financial witness, Mr. Shaw, also admitted that “[a]ccording to the true definition 

of what is incurred,” an expense is incurred when invoiced. 

[¶58] Notwithstanding the plain meaning of the contract language, Ultra and SWEPI 

assert that the plaintiffs agreed to use the JIB date as the date to charge expenses to the 

net profits account, the district court confirmed that agreement, and the plaintiffs should, 

therefore, be bound under the principles of judicial estoppel, collateral estoppel and/or the 

law of the case. Application of these principles are matters of law; consequently, our 

review is de novo. Tarver v. City of Sheridan Bd. of Adjustments, 2014 WY 71, ¶¶ 10-

11, 327 P.3d 76, 80 (Wyo. 2014). We provided a comprehensive definition of judicial 

estoppel in Bredthauer v. TSP, 864 P.2d 442, 445 (Wyo. 1993) as:

a doctrine which estops a party to play fast and loose with 

the courts or to trifle with judicial proceedings. It is an 

expression of the maxim that one cannot blow hot and 

cold in the same breath. A party will just not be allowed to 

maintain inconsistent positions in judicial proceedings * * 

*.

Allen [v. Allen], 550 P.2d [1137], 1142 [(Wyo. 1976)]. In 

[Matter of Paternity of] JRW, [814 P.2d 256 (Wyo. 1991)] we 

stated that under the doctrine of judicial estoppel:

“[A] party who by his pleadings, statements or 

contentions, under oath, has assumed a particular position 

in a judicial proceeding is estopped to assume an 

inconsistent position in a subsequent action.”

JRW, 814 P.2d at 1265–66 (quoting Black’s Law Dictionary 

761 (5th ed. 1979)). 

[¶59] As we mentioned earlier, the law of the case doctrine guards the consistency of 

judicial decisions and states that “a court’s decision on an issue of law at one stage of a 
27

proceeding is binding in successive stages of the litigation.” Lieberman v. Mossbrook, 

2009 WY 65, ¶ 28, 208 P.3d 1296, 1305 (Wyo. 2009), citing Triton, 846 P.2d at 667. 

Similarly, collateral estoppel is a preclusion doctrine that bars the relitigation of 

previously litigated issues. Tarver, ¶¶ 10-11, 327 P.3d at 80. 

[¶60] The defendants direct us to two instances they say demonstrate the plaintiffs and 

district court adopted the JIB date as the date of incurrence. The first is a November 23, 

2010, letter from plaintiffs’ counsel to defendants’ counsel complaining about the 

operators’ failure to provide complete accounting information. The letter began: “We are 

near the end of 2010 and the companies responsible for accounting for the [NPI] have not 

completed the accounting for 2007-2008.” To move the accounting process forward, the 

plaintiffs attached a one-page proposed procedure for NPI reporting. The proposal 

contained a broad outline of what information should be included in monthly revenue and 

expense reports. It also provided that each company would designate a representative to 

act as a contact for the plaintiffs to obtain additional information. The basic NPI revenue 

information identified in the proposal included well identification, volumes of oil and gas 

produced and gross revenues. Their proposal for NPI expense information was even less 

detailed, stating only: “Lease Operating Expenses and capital expenditures charged to 

joint account by operators on Joint Interest Bills on NP wells.” (Emphasis in original). 

[¶61] The district court rejected the defendants’ claim that the letter amounted to an 

agreement to use the JIB date as the date of incurrence, and its finding is supported by the 

record. The November 2010 proposal included only general outlines of the information 

that should be included in the monthly reporting. It specifically noted that other 

resources should be made available to the plaintiffs as part of the accounting process, 

including source documents and a contact person at each company so the plaintiffs could 

request additional information. When questioned about the effect of the November 2010 

proposal, the plaintiffs’ expert testified that the reference to the JIB expenses did not 

pertain to the timing of the expense reporting but rather what expenses should be 

included in the reports. In a later letter dated February 8, 2011, plaintiffs’ counsel stated 

that, under the NPC, the defendants were obligated to report expenses “within 30 days 

after the calendar month when they are incurred.” Clearly, the 2010 proposed accounting 

procedure was not an express adoption by the plaintiffs of the JIB date as the date of 

incurrence for NPC expense reporting. 

[¶62] The second piece of evidence the defendants assert shows the plaintiffs and district

court adopted the JIB date as the date of incurrence is the NPI reporting statement, which 

was stipulated to by the plaintiffs and approved by the district court. The NPI reporting 

statement was actually a series of seven forms showing various expense and revenue 

summaries about the NPI wells on a monthly basis.

[¶63] The record does not support the defendants’ claim that the plaintiffs and district 

court adopted the JIB date as the date of incurrence when the NPI reporting statement 
28

was agreed upon and approved. Two of the forms included in the approved statement 

refer to the JIB dates, but the other five do not. The approved monthly statement includes 

only general summaries of expenses and revenues. The defendants are also providing 

source documents to the plaintiffs, which include other details about the expenses like the 

invoice dates. Although the information about when expenses were jibbed presumably 

assists the parties in tracking the expenses, the statement contains no express adoption of 

the JIB date as the date expenses are incurred under the NPC. The defendants do not 

direct us to any evidence in the record showing that the parties intended to change the 

plain meaning of the contract language by adopting the NPI reporting statement. 

Furthermore, the district court’s order approving the NPI statement says nothing about 

when costs are incurred for purposes of the NPC reporting deadline. 

[¶64] Without a more definitive statement that the parties and the court intended to rely 

on the JIB date as the date of incurrence, we certainly cannot say the district court’s 

decision that no such agreement existed was clearly erroneous. Given there was no 

agreement or order requiring use of the JIB date as the date of incurrence under the NPC, 

the preclusion and equitable doctrines of judicial estoppel, collateral estoppel, and/or law 

of the case do not apply. 

[¶65] Finally, the defendants claim the district court’s order creates an improper 

forfeiture and the exclusion of the expenses is unfair and inequitable. Their forfeiture 

argument is misplaced. The law does not favor forfeiture of contract rights, see, e.g., 

Reynolds v. Milatzo, 2007 WY 104, ¶ 15, 161 P.3d 509, 513 (Wyo. 2007); however, this 

case does not involve a true forfeiture of contract rights. Instead, we are concerned with 

concepts of judgment finality and interpretation of the scope of the judgment and the 

terms of the NPC help guide that interpretation. The defendants had a fair opportunity to 

present their expenses at trial and either did not do so or mischaracterized the nature of 

the expenses. 

[¶66] The defendants also argue that the district court’s order will result in a forfeiture of 

any future (or post-2006) expenses which are not reported within the time limits of the 

NPC. We do not read the order that way and neither do the plaintiffs. The court did not 

make any express ruling on what remedies would be proper for future violations of the 

contract reporting requirements. The plaintiffs state in their brief: 

[Ultra] complains that under the Judgment, if defendants do 

not charge an expense in the first report following the month 

in which the expense is incurred, it is forever forfeited. The 

Order Regarding Pre-2007 Expenses does not compel that 

result. Defendants would be entitled to normal adjustments 

of the NPI account for the period beginning January 2007, for 

these accounts are not subject to the finality of a Judgment. 
29

They reiterated this position at oral argument. The plaintiffs properly recognize that the 

order at issue in this case was based upon the dual considerations of finality of the trial 

judgment and interpretation of the terms of the NPC. 

[¶67] The defendants’ argument that the district court’s decision was unfair and 

inequitable also rings hollow for other reasons. There were actually $131 million in 

expenses at issue in the post-judgment proceedings. The district court carefully 

considered the expenses using the December 31, 2006, invoice date as the cutoff. It 

disallowed approximately $102 million in expenses, but allowed expenses of 

approximately $29 million that were invoiced later. The district court’s thorough review 

of the proposed expenses supports its decision and undermines the defendants’ fairness 

arguments. 

[¶68] Furthermore, although the plaintiffs and the district court were led to believe at 

trial that Ultra’s accrual accounts contained only estimates, the post-trial information 

showed that the majority of the expenses had actually been invoiced and, in many 

instances, paid prior to December 31, 2006. In fact, some of the pre-2007 expenses the 

defendants wanted to include in the 2007 accounting had been invoiced and paid several 

years before. If the trial accrual amounts had truly been field estimates, the actual 

amounts would have been invoiced later and would have been proper 2007 deductions. 

[¶69] The defendants persistently argue that interpreting the NPC to require them to 

report expenses in the month after they are invoiced imposes an unduly heavy burden 

upon them. They insist it is easier to report to the NPI owners at the same time they bill 

their joint interest partners. Perhaps that is true; however, that is not what the NPC 

requires.11 We are not at liberty to amend or modify a contract under the guise of 

interpretation. Fayard v. Design Committee of the Homestead Subdivision, 2010 WY 51,

¶ 18, 230 P.3d 299, 304 (Wyo. 2010), citing Brumbaugh v. Mikelson Land Co., 2008 WY 

66, ¶ 28, 185 P.3d 695, 704 (Wyo. 2008). Additionally, we note that oil and gas 

leaseholders and operators are subject to different reporting and payment deadlines under 

 

11 Although the parties do not address this development, we note that they agreed in a February 25, 2013, document 

entitled, “Stipulation Concerning Remaining Post-Judgment Issues and March 5-6, 2013 Hearing” as follows:

2. Operator Defendants shall continue to provide the information concerning the Novi 

account that was ordered by the Court in its “Order Approving Monthly Net Profits Reporting 

Forms” dated December 17, 2012.

3. Plaintiffs have raised issues regarding the [Operator] Defendants’ alleged non compliance 

with the timing of the monthly NPI report as provided in Section 3 of the [NPC]. [Operator] 

Defendants agree that, beginning with production month February 2013, the Defendants will 

provide Plaintiffs with the approved monthly reporting form and supporting documents within 

ninety (90) days from the last of the production month. For instance, the monthly NPI report for 

February 2013 production month, March 2013 NPI month, would be due on or before May 31, 

2013. 

 
30

various statutes and contracts, including federal mineral royalties, state severance taxes, 

the WRPA, joint interest billing, etc. The NPC simply imposed an additional reporting 

requirement upon the operators. There is nothing inherently unfair or unconscionable 

about that. The district court aptly addressed the defendants’ argument:

A consistent theme from the Defendants with respect 

to the accounting requirements of the net profits interest is 

the requirements are impractical and difficult to comply with 

given their current business practices. The Court observes 

the Defendants have made enormous profits from operations 

on the leases subject to the net profits interest. Their 

obligation is to conform their accounting procedures to 

accommodate their contractual and Court ordered obligations 

under the provisions of the net profits contract not the net 

profits contract to their accounting procedures and business 

practices. 

[¶70] This statement by the district court also applies to another equitable argument 

propounded by the defendants. They emphasize the large amount of money invested in 

the leases for which they did not receive credit and argue the plaintiffs received a 

windfall of approximately $102 million. That is, of course, an enormous amount of 

money. However, the defendants’ argument disregards the context. The amount of 

money changing hands as a result of the NPI leases is almost unfathomable. At the trial, 

the court was considering total expenses of over $2 billion and even greater revenues. 

Ultra I, ¶ 16, 226 P.3d at 904. The parties indicate those amounts have grown 

considerably in the ensuing years. The $102 million in expenses is but a small fraction of 

the totals. Also, it is important to keep in mind that the NPI is concerned with slightly 

less than five percent of the total revenues and expenses, so the actual amount which the 

defendants lost in deductions was only approximately $5 million out of the more than $2 

billion total trial expenses. Ultra I, ¶ 11, 226 P.3d at 902-03. Finally, the defendants 

should keep in mind that without the original assignment of the leases by the plaintiffs’ 

predecessors in exchange for the net profit interest, they would not have acquired the 

leases in the first place. Id., ¶ 3, 226 P.3d at 899. The defendants simply have not 

convinced this Court that the result in this case is inequitable or unfair. 

3. Attorney Fees

[¶71] Wyoming follows the American rule on attorney fees which states that each party 

is responsible for its own attorney fees unless there is express contractual or statutory 

authority for an award of fees. Ultra I, ¶ 151, 226 P.3d at 936; Stafford v. JHL, Inc., 2008 

WY 128, ¶ 16, 194 P.3d 315, 318 (Wyo. 2008). The remedy provisions of the WRPA are 

broad and provide:
31

(a) Any lessee or operator, purchaser or other party legally 

responsible for payment who violates the provisions of this 

article is liable to the person or persons legally entitled to 

proceeds from production for the unpaid amount of such 

proceeds, plus interest at the rate of eighteen percent (18%) 

per annum on the unpaid principal balance from the due date 

specified in W.S. 30-5-301(a).

(b) The district court for the county in which a well producing 

oil, gas or related hydrocarbons is located has jurisdiction 

over all proceedings brought pursuant to this article and the 

prevailing party in any proceedings brought pursuant to this 

article shall be entitled to recover all court costs and 

reasonable attorney’s fees.

(c) Any person who fails to provide royalty information as 

provided in W.S. 30-5-305(b) is liable to the affected royalty, 

overriding royalty or other nonworking interest owner in the 

amount of one hundred dollars ($100.00) per month that 

complete reporting is not provided to the interest owner.

Wyo. Stat. Ann. § 30-5-303 (LexisNexis 2013). 

[¶72] The defendants argue the district court’s order awarding attorney fees to the 

plaintiffs was erroneous. Their first argument depends upon a reversal by this Court of 

the district court’s rulings on jurisdiction or its interpretation of the NPC. In that event, 

the defendants maintain, they would be the prevailing parties and, consequently, entitled 

to an award of attorney fees. Given we have affirmed the district court’s rulings on those 

issues, the defendants are not entitled to an attorney fees award. 

[¶73] The defendants also claim that even if the plaintiffs were entitled to an attorney 

fees award, the district court erred by allowing the plaintiffs’ entire request. We review a 

district court’s attorney fees award for abuse of discretion. 

A court abuses its discretion only when it acts in a manner 

which exceeds the bounds of reason under the 

circumstances. The burden is placed upon the party who is 

attacking the trial court's ruling to establish an abuse of 

discretion, and the ultimate issue is whether the court could 

reasonably conclude as it did.

We have said that “[j]udicial discretion is a composite of 

many things, among which are conclusions drawn from 
32

objective criteria; it means a sound judgment exercised 

with regard to what is right under the circumstances and 

without doing so arbitrarily or capriciously.” If the record 

includes sufficient evidence to support the district court's 

exercise of discretion, we uphold its decision.

[Mueller v. Zimmer, 2007 WY 195, ¶ 11, 173 P.3d 361, 364 

(Wyo. 2007)], quoting Hayzlett v. Hayzlett, 2007 WY 147, ¶ 

7, 167 P.3d 639, 641–42 (Wyo.2007) (internal citations 

omitted).

Ultra I, ¶ 149, 226 P.3d at 935.

[¶74] The defendants assert the district court abused its discretion by failing to require 

the plaintiffs to segregate their fees between the WRPA claims they prevailed upon and 

other claims. In the post-judgment proceedings, the plaintiffs initially requested the 

district court award them fees of $1,177,305.50. The defendants evaluated the plaintiffs’ 

attorney fees submission and determined that only 641.9 hours, valued at $189,620, were 

properly awardable to the plaintiffs under the WRPA. The district court did not require 

the plaintiffs to segregate the fees and awarded the plaintiffs their full attorney fees 

request. 

[¶75] In general, “[s]egregation of fees between multiple clients and/or multiple claims 

is required when it is possible.” Cline v. Rocky Mountain, Inc., 998 P.2d 946, 952 (Wyo. 

2000). However, we explained in Ultra I, ¶¶ 153, 226 P.3d at 936:

Section 30–5–303(b) provides that the prevailing party “in 

any proceedings brought pursuant to this article” is entitled to 

a fee award. The plain meaning of the term “proceedings” is 

broad, especially when phrased in the plural. Black's Law 

Dictionary 1324 (9th ed.2009) defines “proceeding” as “[t]he 

regular and orderly progression of a lawsuit, including all acts 

and events between the time of commencement and the entry 

of judgment. Similarly, Webster's Third New Int'l Dictionary

1807 (2002) defines “proceeding” in the context of law as 

“[l]egal action; litigation.” 

In Ultra I, ¶ 157, 266 P.3d at 937, we rejected the defendants’ claim that the plaintiffs 

were entitled to fees only for the discrete WRPA claims. We concluded that many of the 

claims for which the defendants sought segregation were inextricably intertwined with 

their WRPA claims. Id., citing City of Gillette v. Hladky Constr., Inc., 2008 WY 134, ¶ 

110, 196 P.3d 184, 212 (Wyo. 2008).
33

[¶76] Ultra asserts the plaintiffs were only entitled to fees associated with two postjudgment issues, the pre-2007 expenses and division expenses. According to Ultra, fees 

should not have been allowed for the plaintiffs’ abandoned or unsuccessful efforts to: 

obtain broader access to the defendants’ accounting documents; obtain access to 

documents from a former defendant who ultimately settled; obtain a determination of the 

fair market value of SWEPI’s gas because that issue was not finally decided; and enforce 

the Supplemental Accounting Agreement. 

[¶77] Diverging from Ultra on this issue, SWEPI argues the plaintiffs were entitled to an 

award against it only as to the pre-2007 expense issue because SWEPI never tried to 

include division expenses in its post-trial NPI calculations. SWEPI also claims the 

district court abused its discretion by failing to exclude from the award fees pertaining to 

general investigation, evaluation of monthly NPI reports, and entries related to 

correspondence with non-parties, including those with whom the plaintiffs settled. 

[¶78] The district court ruled the WRPA applied to the post-judgment proceedings, the 

plaintiffs were the prevailing parties, and they were entitled to an award of reasonable 

attorney fees and costs. The district court rejected the defendants’ argument that the 

plaintiffs were required to segregate their fees related to the discrete WRPA issues, 

explaining:

The Court believes defendants have misapprehended 

the language of the WRPA and misapplied the obligation to 

segregate fees and expenses among defendants and/or claims. 

The Court agrees with plaintiffs[’] characterization of the 

proceedings related to their motion, specifically that all issues 

(i.e. claims) in the current matter before the Court, and on 

appeal,12 relate to a common nexus, a common cause, that 

being to enforce their judgment and the requirement that the 

defendants properly account for and pay the net profits 

interest pursuant to the Court’s judgment and the Net Profits 

Contract. In this endeavor, they were the prevailing party in 

that they improved their position markedly in terms of the 

accounting procedures and reporting requirements and in the 

proper calculation of the amount ultimately due. In this 

respect the Court agrees with the language from Hensley v. 

Eckerhart, 461 U.S. 425, 435 (1982) cited in support of a 

comprehensive fee award.

 

12 This reference to issues “on appeal” recognizes that the district court’s attorney fee decision was 

entered after the defendants had already appealed the decision on the merits. The district court had 

continuing jurisdiction, after the defendants appealed its order on the merits, to consider and award 

attorney fees. W.R.C.P. 58; Shindell v. Shindell, 2014 WY 51, ¶ 28, n.2, 322 P.3d 1270, 1277, n.2 (Wyo. 

2014). 
34

“Many civil rights cases will present only a single claim. In 

other cases the plaintiff's claims for relief will involve a 

common core of facts or will be based on related legal 

theories. Much of counsel’s time will be devoted generally to 

the litigation as a whole, making it difficult to divide the 

hours expended on a claim-by-claim basis. Such a lawsuit 

cannot be viewed as a series of discrete claims. Instead the 

district court should focus on the significance of the overall 

relief obtained by the plaintiff in relation to the hours 

reasonably expended on the litigation.”

(footnote added). 

[¶79] The district court also stated that, although the post-judgment proceedings were 

not as long or complicated as the original trial, the proceedings were comparable and 

noted that this Court approved its $3.9 million attorney fee award in the first action. It 

compared the affidavits submitted by the parties as to the reasonableness of the plaintiffs’ 

attorney fees submission and stated that, applying the lodestar factors,13 the $1,177,305 

requested for the post judgment proceedings was “reasonable and appropriate in view of 

the nature, complexity and extent of the entire litigation undertaken by plaintiffs in 

support of their efforts to enforce their judgment.” 

[¶80] The WRPA specifically addresses the requirements for reporting to oil and gas 

interest owners and provides remedies for reporting failures, including attorney fees to 

prevailing parties. Wyo. Stat. Ann. §§ 30-5-303 & 305. The defendants did not properly 

report to the plaintiffs at the beginning of the post-judgment period. The NPC report 

provided by the defendants on July 23, 2010, was a simple two-page High Level 

Summary. After the plaintiffs filed their motion to enforce, the defendants began to 

provide more information and the parties were eventually able to agree on a set of 

reporting forms. This agreement satisfied some of the issues in the post-judgment 

proceedings, although the plaintiffs continued to question whether the defendants were 

properly applying the NPC accounting formula with regard to certain expenses. 

[¶81] Given the post-judgment issues focused on the defendants’ responsibilities under 

the WRPA, the NPC and the judgment based upon the act and the contract, the district 

court’s refusal to require segregation of fees between WRPA and non-WRPA claims in 

the post-judgment proceedings was consistent with our decision in Ultra I. For example, 

the plaintiffs’ efforts to obtain information about the NPI accounting and their evaluation 

 

13 The lodestar test requires a determination of whether: “1) the fee charged represents the product of 

reasonable hours times a reasonable rate; and 2) other factors of discretionary application should be 

considered to adjust the fee upward or downward.” Ultra I, ¶ 162, 266 P.3d at 938. See Wyo. Stat. Ann. 

§ 1–14–126(b) (listing factors considered in awarding attorney fees). 
35

of that information were certainly intertwined with enforcing the contract and the 

defendants’ on-going reporting and payment obligations and clearly fell within the 

parameters of the WRPA. Other matters, including correspondence with non-parties, etc. 

are not so readily characterized as WRPA litigation. However, “[t]he burden is placed 

upon the party who is attacking the district court’s ruling to establish an abuse of 

discretion, and the ultimate issue is whether the court could reasonably conclude as it 

did.” Joe’s Concrete & Lumber, Inc. v. Concrete Works of Colorado, Inc., 2011 WY 74,

¶ 12, 252 P.3d 445, 448 (Wyo. 2011). The defendants have not satisfied that burden. 

Instead, they simply list examples of items they claim should not have been approved in 

the attorney fees award and refer us to their district court filings. In most respects, the 

defendants’ argument is insufficient to establish the district court abused its discretion. 

[¶82] Nevertheless, we have determined the district court’s attorney fees award should 

be modified in one regard. The plaintiffs stated, in their reply to the defendants’ 

opposition to their fee request, that they did not contest a “reduction of fees associated 

with clerical and filing matters.” The plaintiffs, therefore, revised their fee request by 

eliminating those fees, making their total request $1,153,430.50. Despite the plaintiffs’ 

concession on the fees associated with clerical and filing activities, the district court 

awarded the plaintiffs their original request of $1,177,305.50. The district court should 

have acknowledged the plaintiffs’ revision of their fees request and eliminated the 

associated fees. We, therefore, rule that the attorney fees award should be revised to 

reflect the plaintiffs’ agreement and reduced to $1,153,430.50. 

CONCLUSION

[¶83] We conclude the district court properly assumed jurisdiction in this matter 

pursuant to its inherent court powers and the Declaratory Judgments Act. In addition, we 

conclude the district court’s interpretation of the scope of the 2007 trial NPI 

determination is supported by the record and its interpretation of when expenses are 

“incurred” under the language of the NPC was correct. Finally, with one exception, the 

defendants have not demonstrated the district court abused its discretion in awarding the 

plaintiffs attorney fees. 

[¶84] Affirmed, as revised.