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DISTRICT COURT, WELD COUNTY, STATE OF
COLORADO
901 9th Avenue DATE FILED: June 23, 2023 6:23 PM
FILING ID: 5A2D0BBFD3ABA
Greeley, Colorado 80631 CASE NUMBER: 2021CV30572
(970) 475-2400
PLAINTIFFS: INCLINE MINERALS, LLC, a
Delaware limited liability company; and ALL TRIBES
INDIANS MISSION SCHOOLS, a New Mexico not-
for-profit corporation;
v.
DEFENDANT: VISTA RIDGE DEVELOPMENT
CORPORATION, a Colorado corporation; ▲ COURT USE ONLY ▲
EXTRACTION OIL & GAS, INC., a Delaware ______________________________
corporation.
Case No: 2021CV30572
Attorneys for Plaintiffs:
Nathan K. Davis, #31187 Division: 3
Cody C. Bourke, #46370
Snell & Wilmer L.L.P.
1200 Seventeenth Street, Suite 1900
Denver, Colorado 80202
Telephone: (303) 634-2000
Facsimile: (303) 634-2020
E-mail: ndavis@swlaw.com; cbourke@swlaw.com;
PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Plaintiffs Incline Minerals, LLC (“Incline”) and All Tribes Indians Mission Schools (“All
Tribes”) respectfully submit this reply in support of its Motion for Summary Judgment (“Motion”),
stating as follows:
I. INTRODUCTION1
Once again, Defendant argues that the General Warranty Deed and Corrective Warranty
Deed (collectively, “Deeds”) are unambiguous and convey the Undeveloped Mineral Estate,
1
Unless otherwise stated, the defined terms herein have the same meaning set forth in the
Motion.
4871-1371-2490
despite the fact this Court already has rejected that argument as a matter of law. The Court
determined that while the Deeds “only speak[] to developed mineral rights,” the Pezoldt-Kent
Contracts, as amended, “plainly show that the parties intended for Plaintiffs’ predecessor-in-
interest to retain all mineral rights (both developed and undeveloped)”, except for the seven
specified wells. See Order Denying Def.’s Motion to Dismiss, at 6. Defendant’s response largely
repeats the same arguments and ignores the language in the Pezoldt-Kent Contracts.
Defendant attaches affidavits and an expert report that attempt to create a dispute of
material fact about the parties’ intent. A close review of these affidavits, however, reflect that they
do not create a genuine issue of fact as to the parties’ intent that contradicts or explains the plain
language of the Pezoldt-Kent Contracts that all mineral rights, except for the seven specified wells,
were to be retained by Plaintiffs’ predecessor-in-interest—even though the affidavits are provided
by representatives of Defendant with knowledge of the intent of the parties to this transaction. In
fact, neither address the Pezoldt-Kent Contracts at all. In short, the affidavits do not provide any
sworn testimony explaining the parties’ intent (other than broadly describing developer’s goals to
obtain mineral interests on large developments) to change or modify the following clear and
unambiguous language that is pervasive throughout the Pezoldt-Kent Contracts, as amended:
“Mineral, oil and gas rights are excluded from this sale, as they are being retained by Seller
– see Section #21(c).” See Ex. 1-A to Mot., p. 1.
“Seller will be retaining all mineral rights, including all lessor rights, royalties and benefits
under existing oil and gas leases….” See Ex. 1-A to Mot., ¶21(c).
“Buyer and Seller desire to amend the Contract to provide for, among other things, an
extension of the closing date, and the purchase of Seller’s mineral interest in seven
wells.” See Ex. 1-C to Mot., ¶C (emphasis added).
Paragraph 2 of the amendment to the Pezoldt-Kent Contracts is to be “added to the end”
of Section 21(c) in the second bullet point. titled “Inclusion of Certain Mineral Rights”
to be See Ex. 1-C to Mot., ¶2 (emphasis added).
2
“Notwithstanding the foregoing, Buyer will be acquiring all of Seller’s mineral rights,
including all lessor rights, royalties and benefits under existing oil and gas leases, with
respect to the following seven wells….” See Ex. 1-C to Mot., ¶2 (emphasis added).2
Even worse, Defendant also relies on an undisclosed and unsworn expert report, which not only
contains irrelevant legal conclusions, but is inadmissible and should not be considered for purposes
of summary judgment. E.g. McDaniels v. Laub, 186 P.3d 86, 87-88 (Colo. App. 2008) (“Unsworn
expert witness reports are not admissible to support or oppose a motion for summary judgment.”).
The best evidence of the parties’ intent is the clear and unambiguous language of the
Pezoldt-Kent Contracts. No rational trier of fact could resolve the ambiguity in the Deeds by
concluding the Trust conveyed the Undeveloped Mineral Estate to Defendant based on the
evidence submitted with Defendant’s response to the Motion. As such, this Court should grant
summary judgment in Plaintiff All Tribes by entering an order, pursuant to C.R.C.P. 105 and
C.R.C.P. 57, quieting title to the Undeveloped Mineral Estate in Plaintiff All Tribes.
II. REPLY TO FACTUAL BACKGROUND
A. Reply To Defendant’s Response to Plaintiffs’ Statement Of Material Facts.3
SOF ¶7. Defendant disputes SOF #7 because Plaintiffs use the term “wellbores”
instead of “wells” in explaining the amendment of the Pezoldt-Kent Contracts. However, it is
commonly understood that “well” and “wellbore” are exchangeable terms that have the same
meaning. See Exhibit 5 to Reply, W. Francis Dep., 94:15-95:18; 96:18-22; 8 Williams & Myers,
Oil and Gas Law Scope (2022) (citing Prime Nat. Res., Inc. v. Certain Underwriters at Lloyd’s
London, 2015 WL 14575342015, at *21 (Tex. App. Mar. 26, 2015) (defining “well” as “the hole
2
Pursuant to paragraph 6 of the amendments to the Pezoldt-Kent Contracts, Defendant
agreed “[t]he Contract, as amended hereby, is hereby ratified and confirmed in all respects by the
parties hereto.” See Ex. 1-C to Mot., ¶6.
3
The paragraph numbers following “SOF” correspond with the numbered paragraphs that
Defendant’s disputed for which Plaintiffs provide a reply.
3
made by the drilling bit, which can be open, cased or both. Also called borehole, hole or
wellbore.”) (emphasis added)). Therefore, Defendant’s focus on references to wellbores rather
than wells in the Motion is irrelevant. Plaintiffs’ position is that the conveyance was limited to
seven wells. The language in the Pezoldt-Kent Contracts could not be more clear on this point.
SOF ¶¶8-9. Defendant disputes SOF #8-9 as incomplete because it does not include
language that the Trust would convey all of its “mineral rights, including all lessor rights, royalties
and benefits under existing oil and gas leases” associated with seven wells to Defendant.
Defendant asserts that this language conveys all production from “future wells” in the same
“formation” based on a previously undisclosed expert opinion that contains this improper legal
conclusion. Expert reports are inadmissible for purposes of summary judgment and, thus, it should
not be considered. E.g. McDaniels, 186 P.3d at 87-88 (Colo. App. 2008) (“Unsworn expert witness
reports are not admissible to support or oppose a motion for summary judgment.” (citing Wittmer
v. Peters, 87 F.3d 916, 917 (7th Cir.1996) and Jones v. Menard, 559 F.2d 1282, 1285 n. 5 (5th Cir.
1977) for the proposition that “unsworn expert report does not satisfy evidentiary requirements of
Fed. R. Civ. P. 56(c) and should not be considered in ruling on summary judgment motion”)).
Regardless, if the expert report is considered, this conclusion is baseless for several
reasons: (1) the conclusion ignores that the Trust retained “all mineral rights, including all lessor
rights, royalties and benefits under existing oil and gas leases” without the limitation of seven
wells within the same contract and paragraph; (2) language regarding production from “future
wells” in the same “formation” does not appear in the Pezoldt-Kent Contracts; and (3)
well/wellbore assignments necessarily include the right to benefit from production under the leases
for the specified wells, but this does not include any future rights in the leases from the same
formation outside of the seven wells. See, e.g., Armstrong v. Berco Res., LLC, 752 F.3d 716, 720
4
(8th Cir. 2014) (owner of working interest took a wellbore-only interest; “he had the exclusive
right to only the wellbores—the physical holes in the ground—and the production of minerals
through those wellbores”). It is undisputed that the recent production on the Property is not
through the seven wells/wellbores conveyed to Defendant.
SOF ¶11. The Amended Non-Disturbance Agreement was entered into prior to the
Deeds. Defendant did not have the right to negotiate with Patina because it owned the
Undeveloped Mineral Estate under the Deeds; it had that right as the surface owner. The Non-
Disturbance Agreement clearly deals with negotiations of Defendant as the surface owner about
surface locations for existing and future wells. See Ex. 1-D to Mot., ¶¶C-D (Defendant is the
“owner of or has under contract the surface of the property”); ¶¶1-3 (agreeing to cooperate with
Patina on future surface locations for the drilling of new wells and ongoing rights).
SOF ¶¶18-19. This Court has rejected Defendant’s argument that the Deed conveyed to
“Vista Ridge the entire Property, including all undeveloped mineral rights” based on the same
arguments it presented in its Motion to Dismiss the Amended Complaint. Compare Def.’s Mot.
to Dismiss, pp. 6-7 with Def.’s Resp. to the Mot, ¶¶18-19. Although different legal standards
applied to the Motion to Dismiss than the present Motion, the Court already determined that the
Deed was silent as a matter of law on the issue of the Undeveloped Mineral Estate. Pena v. Am.
Fam. Mut. Ins. Co., 2018 COA 56, ¶15 (while the court views factual allegations in the complaint
as true and in a light most favorable to the plaintiff, “when documents are properly before the
court, their legal effect is determined by their contents rather than by allegations in the complaint”).
SOF ¶20-22. Based on Defendant’s response to these paragraphs, the “disputed” facts
will be resolved by the determination of the owner of the Undeveloped Mineral Estate. If the Court
resolves the Motion in favor of Plaintiffs, for example, the Pezoldt-Kent Contracts resolve any
5
ambiguity in the Deeds and the subsequent deeds in the chain of title from Plaintiffs’ predecessors-
in-interest are sufficient to convey the Undeveloped Mineral Estate to All Tribes.
B. Response to Defendant’s Statement of Material Facts.
24. Undisputed, but not a material fact for the Motion.
25. Undisputed, but not a material fact for the Motion.
26. Undisputed, but not a material fact for the Motion. Specifically, a developer’s
desire to “obtain as much of the mineral interests as possible” and the statement that “acquisition
of all mineral interests is imperative” does not modify, change, or contradict the express terms of
the Pezoldt-Kent Contracts. Further, the Pezoldt-Kent Contracts reflect that Defendant did, in fact,
obtain as much of the mineral interests as possible because the original contract reflected the
Trust’s intent to reserve the entire mineral interest in the Trust. See Exhibit 6, V. Meadows Depo.,
at 57:14-59:10 (Pezoldt’s attorney explaining that more negotiations occurred between the parties
about the purchase price for seven wells than the ultimate sale price for the surface). The
amendments to the Pezoldt-Kent Contracts, however, contained a promise from Pezoldt that he
would not cause the locations and wells on the Property to increase and provided that Vista Ridge
could negotiate with Patina, i.e., the party with the right to drill wells under the oil and gas lease,
regarding surface rights. See Ex. 1-A to Mot., ¶21(c). If Vista Ridge had obtained the
Undeveloped Mineral Estate, along with the seven wells, this provision would be meaningless.
27. Plaintiffs incorporate their response to paragraph 26 as if fully stated herein.
28. Undisputed, but not a material fact for the Motion. Pursuant to paragraph 6 of the
amendments to the Pezoldt-Kent Contracts executed prior to closing, Defendant agreed “[t]he
Contract, as amended hereby, is hereby ratified and confirmed in all respects by the parties hereto.”
See Ex. 1-C to Mot., ¶6.
6
29. Disputed. Plaintiffs dispute the inference made by Defendant, without any
supporting evidence or sworn testimony detailing the purported negotiations, that the Pezoldt-Kent
Contracts were still being negotiated by the parties up until the recording of the General Warranty
Deed in September 2000. The Pezoldt-Kent Contracts, as amended, were recorded together in
Weld County, Colorado several months after their execution on May 17, 2000. The parties agreed
that they represented the entire agreement between the parties. See Ex. 1-A to Mot., ¶28 and Ex.
1-C to Mot. Defendant assumed and ratified the original Pezoldt-Kent Contracts and their
amendments thereto. See Ex. 1-B and Ex. 1-C to Mot. Defendant does not provide any sworn
testimony that the Pezoldt-Kent Contracts were amended, by oral agreement or otherwise, prior to
closing and recording the General Warranty Deed. In fact, the amendment to the Pezoldt-Kent
Contract explains the delay in closing as follows: “the closing shall take place on September 15,
2000, or within thirty (30) days after completion of all approvals of [Defendant’s] proposed
annexation, zoning and platting of the Property” including an “Anticipated Vote” with the Town
of Erie. See Ex. 1-C to Mot. at ¶3.
30. Disputed. Plaintiffs dispute the inference made by Defendant, without any
supporting evidence or testimony detailing the purported negotiations, that the Pezoldt-Kent
Contracts were still being negotiated by the parties up until the recording of the General Warranty
Deed in September 2000. Plaintiffs also dispute that the General Warranty Deed was negotiated
between the parties. Pezoldt and his attorney did not draft the General Warranty Deed and did not
see the General Warranty Deed until the day of closing. Compare Mot., ¶16 with Defendant’s
Resp., ¶16 (admitting that this fact is “Undisputed”).
31. Undisputed that Pezoldt signed the General Warranty Deed at a closing he attended
with his attorney, Virgil Meadows. Plaintiffs dispute that Pezoldt himself ever saw or reviewed
7
the General Warranty Deed because Pezoldt is deceased and has not testified he saw or reviewed
the General Warranty Deed.
32. Undisputed that Brownstein, on behalf of Vista Ridge, recorded the Corrective
Warranty Deed initialed by Pezoldt on October 26, 2001. Disputed that the Corrective Warranty
Deed was negotiated between the parties. See Ex. 6, V. Meadows Depo., 71:12-16; 73:18-23.
33. Undisputed that Pezoldt’s attorney, Virgil Meadows, notarized Pezoldt’s signature
on the Corrective Warranty Deed. Plaintiffs dispute that Pezoldt himself ever reviewed the
language in the Corrective Warranty Deed because Pezoldt is deceased and has not testified that
he reviewed the language in the Corrective Warranty Deed with Meadows. Meadows testified that
he did not draft the Corrective Warranty Deed and any change to the language in the Corrective
Warranty Deed from the General Warranty Deed was proposed by Defendant’s representatives.
See Ex. 6, V. Meadows Depo., 71:12-16; 73:18-23.
34. Disputed. The Deeds contained a limited conveyance of only the mineral rights
“with respect to” seven specifically identified wells. It did not convey the Undeveloped Mineral
Estate.
35. Disputed. Both the General Warranty Deed and Corrective Warranty Deed limited
the conveyance of Pezoldt’s mineral rights to Defendant to seven wells identified by the well’s
name and number. Unlike the conveyance language, the reservation language does not identify
specific wells and reserves all mineral interests “other than the above-described seven wells.”
36. Undisputed.
37. Disputed. The Corrective Warranty Deed stated it is being recorded “to clarify and
correct” the General Warranty Deed. Exhibit A to the Corrective Warranty Deed describes the
corrections by underline in the legal descriptions reflecting changes from the General Warranty
8
Deed. The Corrective Warranty Deed was executed after closing and conveyance of the Property
to Defendants and does not represent a final or new agreement between the parties.
III. ARGUMENT
The Court has already concluded that the Deeds “neither expressly convey[] nor reserve[]
the undeveloped mineral estate” and “only speak[] to developed mineral rights…and thus [they]
could be reasonably interpreted as either conveying or reserving the undeveloped mineral estate.”
Order Denying Def.’s Mot. to Dismiss, at 3, 6. On the other hand, the Pezoldt-Kent Contracts “are
not silent; those documents plainly show that the parties intended for Plaintiffs’ predecessor-in-
interest to retain all mineral rights (both developed and undeveloped) in the Property except for
the rights in the seven specified wells.” Id. at 6.
Thus, to avoid summary judgment, Defendant must put forth evidence of a genuine issue
of material fact that other extrinsic evidence contradicts the plain and unambiguous language in
the Pezoldt-Kent Contracts to explain the ambiguity in the Deeds. Instead, Defendant advances
the same legal arguments as its Motion to Dismiss, which the Court already rejected and should
be the law of the case. And while Defendant has attempted to manufacture some factual dispute in
its response to the Motion, it falls short of creating a genuine issue of material fact because it did
not attach any evidence or testimony that contradicts the unambiguous reservation of the
Undeveloped Mineral Estate in the Pezoldt-Kent Contracts. Plaintiffs’ Motion should be granted
and summary judgment entered in their favor.
A. Defendant’s Primary Argument That The Deeds Are Unambiguous And Conveyed
The Undeveloped Mineral Estate Fails.
1. This Court Has Already Decided This Issue And It Should Be The Law Of The Case.
Defendant argues that the Corrective Warranty Deed is dispositive because it
unambiguously conveys the Undeveloped Mineral Estate to Defendant using the same argument
9
as it advanced in its Motion to Dismiss, including a restrictive approach to interpreting the Deeds
not supported by Colorado law. This Court has already outright rejected that argument and held
that the Deeds do not address the Undeveloped Mineral Estate, as described in detail supra.
Under Colorado law, “the rule of the law of the case ‘is a rule of practice, based upon sound
policy that when an issue is once litigated and decided, that should be the end of the matter.’”
Verzuh v. Rouse, 660 P.2d 1301, 1303 (Colo. App. 1982). The law of the case applies to final
decisions affecting the same parties to the same case. Id. While the court generally retains
discretion of whether to apply it, the law of the case is “usually applied unless to do so would work
a manifest injustice.” Id.; see also Janssen v. Denver Career Serv. Bd., 998 P.2d 9, 15 (Colo. App.
1999) (“[The law of the case] applies unless the court, in its discretion, determines that its former
ruling is no longer sound because of changed conditions, it needs to correct its previous ruling
because of a legal or factual error, an intervening change in law has occurred, or manifest injustice
would result from its original ruling.”).
Here, none of the conditions exist justifying revisiting the ruling as a matter of law that the
Deeds are silent on and do not convey the Undeveloped Mineral Interest. In making the original
ruling, the Court properly considered the legal effect of the language of the same Deeds rather than
relying on accepting as true the allegations in the Plaintiffs’ Complaint. See Pena, 2018 COA 56,
¶15 (“when documents are properly before the court [on a motion to dismiss], their legal effect is
determined by their contents rather than by allegations in the complaint”). As such, the Court
should use its discretion and follow the rule of the law of the case to disregard Defendant’s
arguments that the Deeds are unambiguous and must be interpreted from their contents without
regard to the Pezoldt-Kent Contracts.
10
2. The Deeds Are Ambiguous And Do Not Convey the Undeveloped Mineral Estate.
Even if the Court reconsiders whether the Corrective Warranty Deed is ambiguous,
Defendant’s argument is unavailing for several reasons. For one, Defendant continues to rely on
a strict four corners approach to interpreting deeds. Colorado courts have eschewed the so-called
“four corners rule” in favor of a “more flexible approach to interpreting a deed” that is consistent
with the court’s “paramount concern…to ascertain the intentions of the parties.” Lazy Dog Ranch
v. Telluray Ranch Corp., 965 P.2d 1129, 1235-37 (Colo. 1998). “When the instrument is a
deed…[courts] interpret the language ‘in light of all circumstances’ surrounding the conveyance”,
including the consideration of extrinsic evidence. Moeller v. Ferrari Energy, LLC, 2020 COA
113, ¶15. Therefore, the court is allowed to (and should) review extrinsic evidence to determine
whether the Corrective Warranty Deed is ambiguous and “if extrinsic evidence reveals the deed is
ambiguous, then the court may continue to use extrinsic evidence in discerning the parties’ intent.”
Id. Defendant does not even address whether the Corrective Warranty Deed is unambiguous in
light of the Pezoldt-Kent Contracts, nor can it, because that language plainly and unambiguously
reserves all mineral interests, including the Undeveloped Mineral Estate, other than the specified
seven wells, in the Trust.
Defendant contends the granting clause is a conveyance by “general description” that
clearly conveys the Undeveloped Mineral Estate, yet it ignores the fact that the granting clause
also contains a more specific provision dealing with the mineral rights that modifies the former
paragraphs: “TOGETHER with: all of Grantor’s mineral rights…with respect to” the seven
specified wells. See Ex. 1-F to Mot. Defendant fails to mention that the first paragraph of the
granting clause only conveys “all the real property…described on the attached Exhibit A.” Ex.
1-F to Mot. “It is a basic principle of contract interpretation that a more specific provision controls
11
the effect of the general provisions.” E-470 Public Highway Authority v. Jagnow, 30 P.3d 798
(Colo. App. 2001). The Court must consider the deed as a whole to determine intent rather than,
as Defendant argues, rely on formulaic references to the formal divisions of deeds into different
types of clauses. See Owens v. Tergeson, 2015 COA 164, ¶¶18-19 (citing with approval cases
supporting the modern view of interpreting deeds that the “technical rules of common law as to
the division of deeds into formal parts have long since been disregarded…and the rule is that all
parts of the deed shall be examined together for the purpose of ascertaining the intention” (citations
omitted)). For the same reasons, Defendant’s reliance on O’Brien is overstated.4 In O’Brien, the
Court of Appeals acknowledged the deed was unambiguous, yet still relied on extrinsic evidence
in interpreting its terms. O’Brien v. Village Land Co., 794 P.2d 246, 249 (Colo. App. 1990).
Moreover, the deed itself contained only a reservation of a one-half mineral interest without a
language limiting the conveyance of the mineral interest. Id. Here, the opposite is true. As the
Court correctly recognized, the Corrective Warranty Deed “only speaks to developed mineral
rights (conveying the rights to seven wells, while reserving the rights to all other wells)” and, thus,
it is ambiguous about whether it conveyed or reserved the Undeveloped Mineral Estate.
B. The Pezoldt-Kent Contracts Resolve the Ambiguity And Are Not Contradicted By
Defendant.
The Pezoldt-Kent Contracts, as amended, establish as a matter of law that All Tribes is the
rightful owner of the Undeveloped Mineral Interest. The Pezoldt-Kent Contracts are not silent and
directly address the issue of the Undeveloped Mineral Interest. The Pezoldt-Kent Contracts clearly
state that “Mineral, oil and gas rights are excluded this sale, as they are being retained by Seller.”
4
Defendant’s reliance on Texas cases interpreting deeds, specifically Rahlek, Ltd. v. Wells,
587 S.W.3d 57 (Tex. App. 2019), is misplaced and unpersuasive. Unlike Colorado, Texas courts
have a strict “four corners” approach, which “requires the court to ascertain the intent of the parties
solely from all of the language in the deed.” Id. at 64 (emphasis added).
12
See Ex. 1-A and 1-C to Mot., at 2. Then, the amendments to the Pezoldt-Kent Contracts make
clear the purpose of the amendments are to extend closing and “the purchase of Seller’s mineral
interest in seven wells.” Id. at ¶7. The inclusion of the Trust’s interest in seven wells are clearly
listed out by name in paragraph 2 of the Amendment titled “Inclusion of Certain Mineral Rights”,
which also makes clear that paragraph is “added to the end” of Section 21(c) of the Pezoldt-Kent
Contracts. Id. at ¶8. Importantly, Defendant was a party to these contracts, which were recorded
in the real property records in Weld County, Colorado. Because the Pezoldt-Kent Contracts are
unambiguous and directly address the ambiguity in the deed to resolve it, they are the best evidence
of the parties’ intent and should control. See Ad Two Inc. v. City and Cnty. of Denver ex re.
Manager of Aviation, 9 P.3d 372, 376 (Colo. 2000) (“Written contracts that are complete and free
from ambiguity will be found to express the intention of the parties and will be enforced according
to their plain language.”).
Rather than address this language in the Pezoldt-Kent Contracts, Defendant asserts
evidence that Pezoldt signed the Corrective Warranty Deed one year after the General Warranty
Deed is the best extrinsic evidence, noting the mineral reservation changed to include wells “off”
the Property. Essentially, Defendant is arguing the best extrinsic evidence to interpret the
Corrective Warranty Deed is the ambiguous Corrective Warranty Deed itself because it is the
“final” agreement. Defendant attaches affidavits from a representative of Defendant and
Defendant’s attorney—both have direct knowledge of the Pezoldt-Kent Contracts and Deeds.
Tellingly, neither of these two parties provided sworn testimony that the Corrective Warranty Deed
(or General Warranty Deed) was intended to change the express language in the Pezoldt-Kent
Contracts. See Exs. 6 and 7 to Def.’s Resp. In fact, the affidavits further support Plaintiffs’
position. Both affidavits describe the desire of developers to obtain mineral rights to control the
13
wells on the surface. See id. Defendant did exactly that by negotiating rights expressly described
in the amendments to the Pezoldt-Kent Contracts; it obtained an agreement from Pezoldt that he
would not cause the wells on the surface of the Property to increase, it conveyed seven wells that
were located in problematic locations for the development of the golf course, and it gave Defendant
the right to negotiate with Patina about locations of future wells. Compare Exs. 6 and 7 to Def.’s
Resp. with Ex. 1-C and 1-D to Mot. The advent of horizontal drilling with well locations far off
the Property was not contemplated by the parties, but that does not change that Pezoldt clearly
intended to reserve the Undeveloped Mineral Estate.
To the extent that Defendant argues that Pezoldt signing the Deeds is all the evidence
necessary to show he understood the language in the Deeds, the same could be said for the Pezoldt-
Kent Contracts. On the first page of the amendment to the Pezoldt-Kent Contracts, it notes that a
signed version should be returned to “Brownstein Hyatt & Farber”, the attorney for Defendant.
See Ex. 1-C to Mot. Moreover, Pezoldt’s attorney, Virgil Meadows, stated that Pezoldt’s
“intention was to retain all mineral interests in that property except for seven wells that were being
capped”, and any language that differed from the Pezoldt-Kent Contracts to the Deeds that
restricted future mineral rights “certainly wasn’t intentional on Allan’s part.” See Ex. 6, Meadows
Depo., 64:8-67:7. The Deeds were prepared and drafted by Defendant. See Ex. 6, Meadows
Depo., 71:12-16; 73:18-23.
The second argument Defendant advances is that Pezoldt’s use of a “far inferior” quitclaim
deed in a subsequent conveyance instead of a warranty deed and “vague” references to the mineral
interest in the deed reflect Pezoldt understood he did not own anything other than the wells
currently producing. See Def.’s Resp. at 21. This is not evidence sufficient to support an inference
about Pezoldt’s intent for several reasons. First, quitclaim deeds are common forms of
14
conveyance, especially with respect to mineral rights. See Ex. 5, Francis Depo, 86:3-87:3 (stating
50% of his company’s mineral deeds are quitclaim deeds). Second, Pezoldt’s attorney stated that
he did not prepare the quitclaim deed, but at the time of the quitclaim deed, “[Pezoldt] believed
that he still owned the mineral rights. I remember having discussions with him about that in
connection with preparation of a will for him.” See Ex. 6, Meadows Depo, 81:11-24; 82:25:83:25.
Finally, the quitclaim deed not only identifies specific wells, but also conveys whatever Pezoldt
reserved in the Deeds, along with all his ”rights, royalties and benefits are entitled to under any
lease agreements with [Patina]…its successors and assigns.” See Ex. 1-G to Mot.; see also Ex. 5,
Francis Depo., 80:19-81:20. Simply put, the plain and ambiguous language of the Pezoldt-Kent
Contracts has not been contradicted by Defendant and should be dispositive.
C. Defendant’s Purported “Numerous” Disputes Of Material Fact Do Not Preclude
Summary Judgment
Defendant’s response concludes with catch-all reasons why factual disputes prevent
summary judgment, which are either repetitive of earlier arguments already addressed herein (see
C.1 of Def.’s Resp.), incorrect (see C.2 of Def.’s Response), or not related to the relief requested
in the Motion (see C.3-4).5 Defendant claims there is a disputed fact as to the scope of the
Undeveloped Mineral Interest based on an improper legal opinion from its expert, which is
inadmissible. See Def.’s Resp., at 25; McDaniels, 186 P.3d at 87-88. Regardless, Defendants are
simply wrong. The Undeveloped Mineral Estate relates to present production from the Property
for the Coyote Trails Wells, which are new wells. None of the wells in existence at the time of the
5
For example, Plaintiffs do not respond to argument related to Defendant’s failure to prove
a right to reformation, as that relief is not requested in the Motion. Plaintiffs asked the Court to
enter an order determining it is the owner of the Undeveloped Mineral Estate because the Pezoldt-
Kent Contracts, as amended, plainly and unambiguously resolve the ambiguity in the Deeds in
favor of Plaintiffs.
15
Pezoldt-Kent Contracts and Deeds are currently producing. As such, if Plaintiffs are correct that
Defendant received a limited wellbore assignment of seven wells, then Defendant has no further
interest in the Undeveloped Mineral Estate. See, e.g. Armstrong, 752 F.3d at 720 (owner of
working interest took a wellbore-only interest; “he had the exclusive right to only the wellbores—
the physical holes in the ground—and the production of minerals through those wellbores”); Petro
Pro, Ltd. v. Upland Resources, Inc., 279 S.W.3d 743, 751-52 (the assignment of rights in leases
with respect to a wellbore conveys rights “horizontally only to the area of the hole identified as
[the] well” and rights to “rework the well so as to produce from any formation that might possibly
be reached from the existing wellbore.”) (emphasis added). If Defendant is correct that the Deeds
conveyed the Undeveloped Mineral Interest, then it would own the production from the Property
associated with the Coyote Trails Wells. Thus, there are no genuine issues of material fact to
preclude entry of summary judgment for Plaintiffs.
V. CONCLUSION
WHEREFORE, for the reasons stated in Plaintiffs’ Motion and herein, Plaintiffs are
entitled to a judgment as a matter of law pursuant to C.R.C.P. 105 and C.R.C.P. 57, quieting title
to the Undeveloped Mineral Estate in Plaintiff All Tribes and declaring it as the current, sole and
lawful owner of the Undeveloped Mineral Estate.
Dated: June 23, 2023.
SNELL & WILMER L.L.P.
s/Cody C. Bourke
Nathan K. Davis
Cody C. Bourke
1200 Seventeenth Street, Suite 1900
Denver, Colorado 80202
Telephone: (303) 634-2000
Facsimile: (303) 634-2020
Attorneys for Plaintiffs
16
CERTIFICATE OF SERVICE
I hereby certify that on June 23, 2023, a true and correct copy of the foregoing was filed
and served via Colorado Courts E-Filing on the following:
Jason B. Wesoky Jens Jensen
James E. Fogg Anthony M. Roeber
OGBORN MIHM, LLP WELBORN SULLIVAN MECK &
1700 Lincoln Street, Suite 2700 TOOLEY, P.C.
Denver, CO 80203 1401 Lawrence Street, Suite 1800
Phone: (303) 592-5900 Denver, Colorado 80202
Fax: (303) 592-5910 Phone: (303) 830-2500
E-mail: Jason.Wesoky@OMTrial.com, jjensen@wsmtlaw.com
James.Fogg@OMTrial.com aroeber@swmtlaw.com
Attorneys for Defendant
Attorney for Defendant Extraction Oil &
Gas, Inc.
s/ Dorinda Mangan
For Snell & Wilmer L.L.P.
17
Preview
DISTRICT COURT, WELD COUNTY, STATE OF COLORADO 901 9th Avenue DATE FILED: June 23, 2023 6:23 PM FILING ID: 5A2D0BBFD3ABA Greeley, Colorado 80631 CASE NUMBER: 2021CV30572 (970) 475-2400 PLAINTIFFS: INCLINE MINERALS, LLC, a Delaware limited liability company; and ALL TRIBES INDIANS MISSION SCHOOLS, a New Mexico not- for-profit corporation; v. DEFENDANT: VISTA RIDGE DEVELOPMENT CORPORATION, a Colorado corporation; ▲ COURT USE ONLY ▲ EXTRACTION OIL & GAS, INC., a Delaware ______________________________ corporation. Case No: 2021CV30572 Attorneys for Plaintiffs: Nathan K. Davis, #31187 Division: 3 Cody C. Bourke, #46370 Snell & Wilmer L.L.P. 1200 Seventeenth Street, Suite 1900 Denver, Colorado 80202 Telephone: (303) 634-2000 Facsimile: (303) 634-2020 E-mail: ndavis@swlaw.com; cbourke@swlaw.com; PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiffs Incline Minerals, LLC (“Incline”) and All Tribes Indians Mission Schools (“All Tribes”) respectfully submit this reply in support of its Motion for Summary Judgment (“Motion”), stating as follows: I. INTRODUCTION1 Once again, Defendant argues that the General Warranty Deed and Corrective Warranty Deed (collectively, “Deeds”) are unambiguous and convey the Undeveloped Mineral Estate, 1 Unless otherwise stated, the defined terms herein have the same meaning set forth in the Motion. 4871-1371-2490 despite the fact this Court already has rejected that argument as a matter of law. The Court determined that while the Deeds “only speak[] to developed mineral rights,” the Pezoldt-Kent Contracts, as amended, “plainly show that the parties intended for Plaintiffs’ predecessor-in- interest to retain all mineral rights (both developed and undeveloped)”, except for the seven specified wells. See Order Denying Def.’s Motion to Dismiss, at 6. Defendant’s response largely repeats the same arguments and ignores the language in the Pezoldt-Kent Contracts. Defendant attaches affidavits and an expert report that attempt to create a dispute of material fact about the parties’ intent. A close review of these affidavits, however, reflect that they do not create a genuine issue of fact as to the parties’ intent that contradicts or explains the plain language of the Pezoldt-Kent Contracts that all mineral rights, except for the seven specified wells, were to be retained by Plaintiffs’ predecessor-in-interest—even though the affidavits are provided by representatives of Defendant with knowledge of the intent of the parties to this transaction. In fact, neither address the Pezoldt-Kent Contracts at all. In short, the affidavits do not provide any sworn testimony explaining the parties’ intent (other than broadly describing developer’s goals to obtain mineral interests on large developments) to change or modify the following clear and unambiguous language that is pervasive throughout the Pezoldt-Kent Contracts, as amended: “Mineral, oil and gas rights are excluded from this sale, as they are being retained by Seller – see Section #21(c).” See Ex. 1-A to Mot., p. 1. “Seller will be retaining all mineral rights, including all lessor rights, royalties and benefits under existing oil and gas leases….” See Ex. 1-A to Mot., ¶21(c). “Buyer and Seller desire to amend the Contract to provide for, among other things, an extension of the closing date, and the purchase of Seller’s mineral interest in seven wells.” See Ex. 1-C to Mot., ¶C (emphasis added). Paragraph 2 of the amendment to the Pezoldt-Kent Contracts is to be “added to the end” of Section 21(c) in the second bullet point. titled “Inclusion of Certain Mineral Rights” to be See Ex. 1-C to Mot., ¶2 (emphasis added). 2 “Notwithstanding the foregoing, Buyer will be acquiring all of Seller’s mineral rights, including all lessor rights, royalties and benefits under existing oil and gas leases, with respect to the following seven wells….” See Ex. 1-C to Mot., ¶2 (emphasis added).2 Even worse, Defendant also relies on an undisclosed and unsworn expert report, which not only contains irrelevant legal conclusions, but is inadmissible and should not be considered for purposes of summary judgment. E.g. McDaniels v. Laub, 186 P.3d 86, 87-88 (Colo. App. 2008) (“Unsworn expert witness reports are not admissible to support or oppose a motion for summary judgment.”). The best evidence of the parties’ intent is the clear and unambiguous language of the Pezoldt-Kent Contracts. No rational trier of fact could resolve the ambiguity in the Deeds by concluding the Trust conveyed the Undeveloped Mineral Estate to Defendant based on the evidence submitted with Defendant’s response to the Motion. As such, this Court should grant summary judgment in Plaintiff All Tribes by entering an order, pursuant to C.R.C.P. 105 and C.R.C.P. 57, quieting title to the Undeveloped Mineral Estate in Plaintiff All Tribes. II. REPLY TO FACTUAL BACKGROUND A. Reply To Defendant’s Response to Plaintiffs’ Statement Of Material Facts.3 SOF ¶7. Defendant disputes SOF #7 because Plaintiffs use the term “wellbores” instead of “wells” in explaining the amendment of the Pezoldt-Kent Contracts. However, it is commonly understood that “well” and “wellbore” are exchangeable terms that have the same meaning. See Exhibit 5 to Reply, W. Francis Dep., 94:15-95:18; 96:18-22; 8 Williams & Myers, Oil and Gas Law Scope (2022) (citing Prime Nat. Res., Inc. v. Certain Underwriters at Lloyd’s London, 2015 WL 14575342015, at *21 (Tex. App. Mar. 26, 2015) (defining “well” as “the hole 2 Pursuant to paragraph 6 of the amendments to the Pezoldt-Kent Contracts, Defendant agreed “[t]he Contract, as amended hereby, is hereby ratified and confirmed in all respects by the parties hereto.” See Ex. 1-C to Mot., ¶6. 3 The paragraph numbers following “SOF” correspond with the numbered paragraphs that Defendant’s disputed for which Plaintiffs provide a reply. 3 made by the drilling bit, which can be open, cased or both. Also called borehole, hole or wellbore.”) (emphasis added)). Therefore, Defendant’s focus on references to wellbores rather than wells in the Motion is irrelevant. Plaintiffs’ position is that the conveyance was limited to seven wells. The language in the Pezoldt-Kent Contracts could not be more clear on this point. SOF ¶¶8-9. Defendant disputes SOF #8-9 as incomplete because it does not include language that the Trust would convey all of its “mineral rights, including all lessor rights, royalties and benefits under existing oil and gas leases” associated with seven wells to Defendant. Defendant asserts that this language conveys all production from “future wells” in the same “formation” based on a previously undisclosed expert opinion that contains this improper legal conclusion. Expert reports are inadmissible for purposes of summary judgment and, thus, it should not be considered. E.g. McDaniels, 186 P.3d at 87-88 (Colo. App. 2008) (“Unsworn expert witness reports are not admissible to support or oppose a motion for summary judgment.” (citing Wittmer v. Peters, 87 F.3d 916, 917 (7th Cir.1996) and Jones v. Menard, 559 F.2d 1282, 1285 n. 5 (5th Cir. 1977) for the proposition that “unsworn expert report does not satisfy evidentiary requirements of Fed. R. Civ. P. 56(c) and should not be considered in ruling on summary judgment motion”)). Regardless, if the expert report is considered, this conclusion is baseless for several reasons: (1) the conclusion ignores that the Trust retained “all mineral rights, including all lessor rights, royalties and benefits under existing oil and gas leases” without the limitation of seven wells within the same contract and paragraph; (2) language regarding production from “future wells” in the same “formation” does not appear in the Pezoldt-Kent Contracts; and (3) well/wellbore assignments necessarily include the right to benefit from production under the leases for the specified wells, but this does not include any future rights in the leases from the same formation outside of the seven wells. See, e.g., Armstrong v. Berco Res., LLC, 752 F.3d 716, 720 4 (8th Cir. 2014) (owner of working interest took a wellbore-only interest; “he had the exclusive right to only the wellbores—the physical holes in the ground—and the production of minerals through those wellbores”). It is undisputed that the recent production on the Property is not through the seven wells/wellbores conveyed to Defendant. SOF ¶11. The Amended Non-Disturbance Agreement was entered into prior to the Deeds. Defendant did not have the right to negotiate with Patina because it owned the Undeveloped Mineral Estate under the Deeds; it had that right as the surface owner. The Non- Disturbance Agreement clearly deals with negotiations of Defendant as the surface owner about surface locations for existing and future wells. See Ex. 1-D to Mot., ¶¶C-D (Defendant is the “owner of or has under contract the surface of the property”); ¶¶1-3 (agreeing to cooperate with Patina on future surface locations for the drilling of new wells and ongoing rights). SOF ¶¶18-19. This Court has rejected Defendant’s argument that the Deed conveyed to “Vista Ridge the entire Property, including all undeveloped mineral rights” based on the same arguments it presented in its Motion to Dismiss the Amended Complaint. Compare Def.’s Mot. to Dismiss, pp. 6-7 with Def.’s Resp. to the Mot, ¶¶18-19. Although different legal standards applied to the Motion to Dismiss than the present Motion, the Court already determined that the Deed was silent as a matter of law on the issue of the Undeveloped Mineral Estate. Pena v. Am. Fam. Mut. Ins. Co., 2018 COA 56, ¶15 (while the court views factual allegations in the complaint as true and in a light most favorable to the plaintiff, “when documents are properly before the court, their legal effect is determined by their contents rather than by allegations in the complaint”). SOF ¶20-22. Based on Defendant’s response to these paragraphs, the “disputed” facts will be resolved by the determination of the owner of the Undeveloped Mineral Estate. If the Court resolves the Motion in favor of Plaintiffs, for example, the Pezoldt-Kent Contracts resolve any 5 ambiguity in the Deeds and the subsequent deeds in the chain of title from Plaintiffs’ predecessors- in-interest are sufficient to convey the Undeveloped Mineral Estate to All Tribes. B. Response to Defendant’s Statement of Material Facts. 24. Undisputed, but not a material fact for the Motion. 25. Undisputed, but not a material fact for the Motion. 26. Undisputed, but not a material fact for the Motion. Specifically, a developer’s desire to “obtain as much of the mineral interests as possible” and the statement that “acquisition of all mineral interests is imperative” does not modify, change, or contradict the express terms of the Pezoldt-Kent Contracts. Further, the Pezoldt-Kent Contracts reflect that Defendant did, in fact, obtain as much of the mineral interests as possible because the original contract reflected the Trust’s intent to reserve the entire mineral interest in the Trust. See Exhibit 6, V. Meadows Depo., at 57:14-59:10 (Pezoldt’s attorney explaining that more negotiations occurred between the parties about the purchase price for seven wells than the ultimate sale price for the surface). The amendments to the Pezoldt-Kent Contracts, however, contained a promise from Pezoldt that he would not cause the locations and wells on the Property to increase and provided that Vista Ridge could negotiate with Patina, i.e., the party with the right to drill wells under the oil and gas lease, regarding surface rights. See Ex. 1-A to Mot., ¶21(c). If Vista Ridge had obtained the Undeveloped Mineral Estate, along with the seven wells, this provision would be meaningless. 27. Plaintiffs incorporate their response to paragraph 26 as if fully stated herein. 28. Undisputed, but not a material fact for the Motion. Pursuant to paragraph 6 of the amendments to the Pezoldt-Kent Contracts executed prior to closing, Defendant agreed “[t]he Contract, as amended hereby, is hereby ratified and confirmed in all respects by the parties hereto.” See Ex. 1-C to Mot., ¶6. 6 29. Disputed. Plaintiffs dispute the inference made by Defendant, without any supporting evidence or sworn testimony detailing the purported negotiations, that the Pezoldt-Kent Contracts were still being negotiated by the parties up until the recording of the General Warranty Deed in September 2000. The Pezoldt-Kent Contracts, as amended, were recorded together in Weld County, Colorado several months after their execution on May 17, 2000. The parties agreed that they represented the entire agreement between the parties. See Ex. 1-A to Mot., ¶28 and Ex. 1-C to Mot. Defendant assumed and ratified the original Pezoldt-Kent Contracts and their amendments thereto. See Ex. 1-B and Ex. 1-C to Mot. Defendant does not provide any sworn testimony that the Pezoldt-Kent Contracts were amended, by oral agreement or otherwise, prior to closing and recording the General Warranty Deed. In fact, the amendment to the Pezoldt-Kent Contract explains the delay in closing as follows: “the closing shall take place on September 15, 2000, or within thirty (30) days after completion of all approvals of [Defendant’s] proposed annexation, zoning and platting of the Property” including an “Anticipated Vote” with the Town of Erie. See Ex. 1-C to Mot. at ¶3. 30. Disputed. Plaintiffs dispute the inference made by Defendant, without any supporting evidence or testimony detailing the purported negotiations, that the Pezoldt-Kent Contracts were still being negotiated by the parties up until the recording of the General Warranty Deed in September 2000. Plaintiffs also dispute that the General Warranty Deed was negotiated between the parties. Pezoldt and his attorney did not draft the General Warranty Deed and did not see the General Warranty Deed until the day of closing. Compare Mot., ¶16 with Defendant’s Resp., ¶16 (admitting that this fact is “Undisputed”). 31. Undisputed that Pezoldt signed the General Warranty Deed at a closing he attended with his attorney, Virgil Meadows. Plaintiffs dispute that Pezoldt himself ever saw or reviewed 7 the General Warranty Deed because Pezoldt is deceased and has not testified he saw or reviewed the General Warranty Deed. 32. Undisputed that Brownstein, on behalf of Vista Ridge, recorded the Corrective Warranty Deed initialed by Pezoldt on October 26, 2001. Disputed that the Corrective Warranty Deed was negotiated between the parties. See Ex. 6, V. Meadows Depo., 71:12-16; 73:18-23. 33. Undisputed that Pezoldt’s attorney, Virgil Meadows, notarized Pezoldt’s signature on the Corrective Warranty Deed. Plaintiffs dispute that Pezoldt himself ever reviewed the language in the Corrective Warranty Deed because Pezoldt is deceased and has not testified that he reviewed the language in the Corrective Warranty Deed with Meadows. Meadows testified that he did not draft the Corrective Warranty Deed and any change to the language in the Corrective Warranty Deed from the General Warranty Deed was proposed by Defendant’s representatives. See Ex. 6, V. Meadows Depo., 71:12-16; 73:18-23. 34. Disputed. The Deeds contained a limited conveyance of only the mineral rights “with respect to” seven specifically identified wells. It did not convey the Undeveloped Mineral Estate. 35. Disputed. Both the General Warranty Deed and Corrective Warranty Deed limited the conveyance of Pezoldt’s mineral rights to Defendant to seven wells identified by the well’s name and number. Unlike the conveyance language, the reservation language does not identify specific wells and reserves all mineral interests “other than the above-described seven wells.” 36. Undisputed. 37. Disputed. The Corrective Warranty Deed stated it is being recorded “to clarify and correct” the General Warranty Deed. Exhibit A to the Corrective Warranty Deed describes the corrections by underline in the legal descriptions reflecting changes from the General Warranty 8 Deed. The Corrective Warranty Deed was executed after closing and conveyance of the Property to Defendants and does not represent a final or new agreement between the parties. III. ARGUMENT The Court has already concluded that the Deeds “neither expressly convey[] nor reserve[] the undeveloped mineral estate” and “only speak[] to developed mineral rights…and thus [they] could be reasonably interpreted as either conveying or reserving the undeveloped mineral estate.” Order Denying Def.’s Mot. to Dismiss, at 3, 6. On the other hand, the Pezoldt-Kent Contracts “are not silent; those documents plainly show that the parties intended for Plaintiffs’ predecessor-in- interest to retain all mineral rights (both developed and undeveloped) in the Property except for the rights in the seven specified wells.” Id. at 6. Thus, to avoid summary judgment, Defendant must put forth evidence of a genuine issue of material fact that other extrinsic evidence contradicts the plain and unambiguous language in the Pezoldt-Kent Contracts to explain the ambiguity in the Deeds. Instead, Defendant advances the same legal arguments as its Motion to Dismiss, which the Court already rejected and should be the law of the case. And while Defendant has attempted to manufacture some factual dispute in its response to the Motion, it falls short of creating a genuine issue of material fact because it did not attach any evidence or testimony that contradicts the unambiguous reservation of the Undeveloped Mineral Estate in the Pezoldt-Kent Contracts. Plaintiffs’ Motion should be granted and summary judgment entered in their favor. A. Defendant’s Primary Argument That The Deeds Are Unambiguous And Conveyed The Undeveloped Mineral Estate Fails. 1. This Court Has Already Decided This Issue And It Should Be The Law Of The Case. Defendant argues that the Corrective Warranty Deed is dispositive because it unambiguously conveys the Undeveloped Mineral Estate to Defendant using the same argument 9 as it advanced in its Motion to Dismiss, including a restrictive approach to interpreting the Deeds not supported by Colorado law. This Court has already outright rejected that argument and held that the Deeds do not address the Undeveloped Mineral Estate, as described in detail supra. Under Colorado law, “the rule of the law of the case ‘is a rule of practice, based upon sound policy that when an issue is once litigated and decided, that should be the end of the matter.’” Verzuh v. Rouse, 660 P.2d 1301, 1303 (Colo. App. 1982). The law of the case applies to final decisions affecting the same parties to the same case. Id. While the court generally retains discretion of whether to apply it, the law of the case is “usually applied unless to do so would work a manifest injustice.” Id.; see also Janssen v. Denver Career Serv. Bd., 998 P.2d 9, 15 (Colo. App. 1999) (“[The law of the case] applies unless the court, in its discretion, determines that its former ruling is no longer sound because of changed conditions, it needs to correct its previous ruling because of a legal or factual error, an intervening change in law has occurred, or manifest injustice would result from its original ruling.”). Here, none of the conditions exist justifying revisiting the ruling as a matter of law that the Deeds are silent on and do not convey the Undeveloped Mineral Interest. In making the original ruling, the Court properly considered the legal effect of the language of the same Deeds rather than relying on accepting as true the allegations in the Plaintiffs’ Complaint. See Pena, 2018 COA 56, ¶15 (“when documents are properly before the court [on a motion to dismiss], their legal effect is determined by their contents rather than by allegations in the complaint”). As such, the Court should use its discretion and follow the rule of the law of the case to disregard Defendant’s arguments that the Deeds are unambiguous and must be interpreted from their contents without regard to the Pezoldt-Kent Contracts. 10 2. The Deeds Are Ambiguous And Do Not Convey the Undeveloped Mineral Estate. Even if the Court reconsiders whether the Corrective Warranty Deed is ambiguous, Defendant’s argument is unavailing for several reasons. For one, Defendant continues to rely on a strict four corners approach to interpreting deeds. Colorado courts have eschewed the so-called “four corners rule” in favor of a “more flexible approach to interpreting a deed” that is consistent with the court’s “paramount concern…to ascertain the intentions of the parties.” Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1129, 1235-37 (Colo. 1998). “When the instrument is a deed…[courts] interpret the language ‘in light of all circumstances’ surrounding the conveyance”, including the consideration of extrinsic evidence. Moeller v. Ferrari Energy, LLC, 2020 COA 113, ¶15. Therefore, the court is allowed to (and should) review extrinsic evidence to determine whether the Corrective Warranty Deed is ambiguous and “if extrinsic evidence reveals the deed is ambiguous, then the court may continue to use extrinsic evidence in discerning the parties’ intent.” Id. Defendant does not even address whether the Corrective Warranty Deed is unambiguous in light of the Pezoldt-Kent Contracts, nor can it, because that language plainly and unambiguously reserves all mineral interests, including the Undeveloped Mineral Estate, other than the specified seven wells, in the Trust. Defendant contends the granting clause is a conveyance by “general description” that clearly conveys the Undeveloped Mineral Estate, yet it ignores the fact that the granting clause also contains a more specific provision dealing with the mineral rights that modifies the former paragraphs: “TOGETHER with: all of Grantor’s mineral rights…with respect to” the seven specified wells. See Ex. 1-F to Mot. Defendant fails to mention that the first paragraph of the granting clause only conveys “all the real property…described on the attached Exhibit A.” Ex. 1-F to Mot. “It is a basic principle of contract interpretation that a more specific provision controls 11 the effect of the general provisions.” E-470 Public Highway Authority v. Jagnow, 30 P.3d 798 (Colo. App. 2001). The Court must consider the deed as a whole to determine intent rather than, as Defendant argues, rely on formulaic references to the formal divisions of deeds into different types of clauses. See Owens v. Tergeson, 2015 COA 164, ¶¶18-19 (citing with approval cases supporting the modern view of interpreting deeds that the “technical rules of common law as to the division of deeds into formal parts have long since been disregarded…and the rule is that all parts of the deed shall be examined together for the purpose of ascertaining the intention” (citations omitted)). For the same reasons, Defendant’s reliance on O’Brien is overstated.4 In O’Brien, the Court of Appeals acknowledged the deed was unambiguous, yet still relied on extrinsic evidence in interpreting its terms. O’Brien v. Village Land Co., 794 P.2d 246, 249 (Colo. App. 1990). Moreover, the deed itself contained only a reservation of a one-half mineral interest without a language limiting the conveyance of the mineral interest. Id. Here, the opposite is true. As the Court correctly recognized, the Corrective Warranty Deed “only speaks to developed mineral rights (conveying the rights to seven wells, while reserving the rights to all other wells)” and, thus, it is ambiguous about whether it conveyed or reserved the Undeveloped Mineral Estate. B. The Pezoldt-Kent Contracts Resolve the Ambiguity And Are Not Contradicted By Defendant. The Pezoldt-Kent Contracts, as amended, establish as a matter of law that All Tribes is the rightful owner of the Undeveloped Mineral Interest. The Pezoldt-Kent Contracts are not silent and directly address the issue of the Undeveloped Mineral Interest. The Pezoldt-Kent Contracts clearly state that “Mineral, oil and gas rights are excluded this sale, as they are being retained by Seller.” 4 Defendant’s reliance on Texas cases interpreting deeds, specifically Rahlek, Ltd. v. Wells, 587 S.W.3d 57 (Tex. App. 2019), is misplaced and unpersuasive. Unlike Colorado, Texas courts have a strict “four corners” approach, which “requires the court to ascertain the intent of the parties solely from all of the language in the deed.” Id. at 64 (emphasis added). 12 See Ex. 1-A and 1-C to Mot., at 2. Then, the amendments to the Pezoldt-Kent Contracts make clear the purpose of the amendments are to extend closing and “the purchase of Seller’s mineral interest in seven wells.” Id. at ¶7. The inclusion of the Trust’s interest in seven wells are clearly listed out by name in paragraph 2 of the Amendment titled “Inclusion of Certain Mineral Rights”, which also makes clear that paragraph is “added to the end” of Section 21(c) of the Pezoldt-Kent Contracts. Id. at ¶8. Importantly, Defendant was a party to these contracts, which were recorded in the real property records in Weld County, Colorado. Because the Pezoldt-Kent Contracts are unambiguous and directly address the ambiguity in the deed to resolve it, they are the best evidence of the parties’ intent and should control. See Ad Two Inc. v. City and Cnty. of Denver ex re. Manager of Aviation, 9 P.3d 372, 376 (Colo. 2000) (“Written contracts that are complete and free from ambiguity will be found to express the intention of the parties and will be enforced according to their plain language.”). Rather than address this language in the Pezoldt-Kent Contracts, Defendant asserts evidence that Pezoldt signed the Corrective Warranty Deed one year after the General Warranty Deed is the best extrinsic evidence, noting the mineral reservation changed to include wells “off” the Property. Essentially, Defendant is arguing the best extrinsic evidence to interpret the Corrective Warranty Deed is the ambiguous Corrective Warranty Deed itself because it is the “final” agreement. Defendant attaches affidavits from a representative of Defendant and Defendant’s attorney—both have direct knowledge of the Pezoldt-Kent Contracts and Deeds. Tellingly, neither of these two parties provided sworn testimony that the Corrective Warranty Deed (or General Warranty Deed) was intended to change the express language in the Pezoldt-Kent Contracts. See Exs. 6 and 7 to Def.’s Resp. In fact, the affidavits further support Plaintiffs’ position. Both affidavits describe the desire of developers to obtain mineral rights to control the 13 wells on the surface. See id. Defendant did exactly that by negotiating rights expressly described in the amendments to the Pezoldt-Kent Contracts; it obtained an agreement from Pezoldt that he would not cause the wells on the surface of the Property to increase, it conveyed seven wells that were located in problematic locations for the development of the golf course, and it gave Defendant the right to negotiate with Patina about locations of future wells. Compare Exs. 6 and 7 to Def.’s Resp. with Ex. 1-C and 1-D to Mot. The advent of horizontal drilling with well locations far off the Property was not contemplated by the parties, but that does not change that Pezoldt clearly intended to reserve the Undeveloped Mineral Estate. To the extent that Defendant argues that Pezoldt signing the Deeds is all the evidence necessary to show he understood the language in the Deeds, the same could be said for the Pezoldt- Kent Contracts. On the first page of the amendment to the Pezoldt-Kent Contracts, it notes that a signed version should be returned to “Brownstein Hyatt & Farber”, the attorney for Defendant. See Ex. 1-C to Mot. Moreover, Pezoldt’s attorney, Virgil Meadows, stated that Pezoldt’s “intention was to retain all mineral interests in that property except for seven wells that were being capped”, and any language that differed from the Pezoldt-Kent Contracts to the Deeds that restricted future mineral rights “certainly wasn’t intentional on Allan’s part.” See Ex. 6, Meadows Depo., 64:8-67:7. The Deeds were prepared and drafted by Defendant. See Ex. 6, Meadows Depo., 71:12-16; 73:18-23. The second argument Defendant advances is that Pezoldt’s use of a “far inferior” quitclaim deed in a subsequent conveyance instead of a warranty deed and “vague” references to the mineral interest in the deed reflect Pezoldt understood he did not own anything other than the wells currently producing. See Def.’s Resp. at 21. This is not evidence sufficient to support an inference about Pezoldt’s intent for several reasons. First, quitclaim deeds are common forms of 14 conveyance, especially with respect to mineral rights. See Ex. 5, Francis Depo, 86:3-87:3 (stating 50% of his company’s mineral deeds are quitclaim deeds). Second, Pezoldt’s attorney stated that he did not prepare the quitclaim deed, but at the time of the quitclaim deed, “[Pezoldt] believed that he still owned the mineral rights. I remember having discussions with him about that in connection with preparation of a will for him.” See Ex. 6, Meadows Depo, 81:11-24; 82:25:83:25. Finally, the quitclaim deed not only identifies specific wells, but also conveys whatever Pezoldt reserved in the Deeds, along with all his ”rights, royalties and benefits are entitled to under any lease agreements with [Patina]…its successors and assigns.” See Ex. 1-G to Mot.; see also Ex. 5, Francis Depo., 80:19-81:20. Simply put, the plain and ambiguous language of the Pezoldt-Kent Contracts has not been contradicted by Defendant and should be dispositive. C. Defendant’s Purported “Numerous” Disputes Of Material Fact Do Not Preclude Summary Judgment Defendant’s response concludes with catch-all reasons why factual disputes prevent summary judgment, which are either repetitive of earlier arguments already addressed herein (see C.1 of Def.’s Resp.), incorrect (see C.2 of Def.’s Response), or not related to the relief requested in the Motion (see C.3-4).5 Defendant claims there is a disputed fact as to the scope of the Undeveloped Mineral Interest based on an improper legal opinion from its expert, which is inadmissible. See Def.’s Resp., at 25; McDaniels, 186 P.3d at 87-88. Regardless, Defendants are simply wrong. The Undeveloped Mineral Estate relates to present production from the Property for the Coyote Trails Wells, which are new wells. None of the wells in existence at the time of the 5 For example, Plaintiffs do not respond to argument related to Defendant’s failure to prove a right to reformation, as that relief is not requested in the Motion. Plaintiffs asked the Court to enter an order determining it is the owner of the Undeveloped Mineral Estate because the Pezoldt- Kent Contracts, as amended, plainly and unambiguously resolve the ambiguity in the Deeds in favor of Plaintiffs. 15 Pezoldt-Kent Contracts and Deeds are currently producing. As such, if Plaintiffs are correct that Defendant received a limited wellbore assignment of seven wells, then Defendant has no further interest in the Undeveloped Mineral Estate. See, e.g. Armstrong, 752 F.3d at 720 (owner of working interest took a wellbore-only interest; “he had the exclusive right to only the wellbores— the physical holes in the ground—and the production of minerals through those wellbores”); Petro Pro, Ltd. v. Upland Resources, Inc., 279 S.W.3d 743, 751-52 (the assignment of rights in leases with respect to a wellbore conveys rights “horizontally only to the area of the hole identified as [the] well” and rights to “rework the well so as to produce from any formation that might possibly be reached from the existing wellbore.”) (emphasis added). If Defendant is correct that the Deeds conveyed the Undeveloped Mineral Interest, then it would own the production from the Property associated with the Coyote Trails Wells. Thus, there are no genuine issues of material fact to preclude entry of summary judgment for Plaintiffs. V. CONCLUSION WHEREFORE, for the reasons stated in Plaintiffs’ Motion and herein, Plaintiffs are entitled to a judgment as a matter of law pursuant to C.R.C.P. 105 and C.R.C.P. 57, quieting title to the Undeveloped Mineral Estate in Plaintiff All Tribes and declaring it as the current, sole and lawful owner of the Undeveloped Mineral Estate. Dated: June 23, 2023. SNELL & WILMER L.L.P. s/Cody C. Bourke Nathan K. Davis Cody C. Bourke 1200 Seventeenth Street, Suite 1900 Denver, Colorado 80202 Telephone: (303) 634-2000 Facsimile: (303) 634-2020 Attorneys for Plaintiffs 16 CERTIFICATE OF SERVICE I hereby certify that on June 23, 2023, a true and correct copy of the foregoing was filed and served via Colorado Courts E-Filing on the following: Jason B. Wesoky Jens Jensen James E. Fogg Anthony M. Roeber OGBORN MIHM, LLP WELBORN SULLIVAN MECK & 1700 Lincoln Street, Suite 2700 TOOLEY, P.C. Denver, CO 80203 1401 Lawrence Street, Suite 1800 Phone: (303) 592-5900 Denver, Colorado 80202 Fax: (303) 592-5910 Phone: (303) 830-2500 E-mail: Jason.Wesoky@OMTrial.com, jjensen@wsmtlaw.com James.Fogg@OMTrial.com aroeber@swmtlaw.com Attorneys for Defendant Attorney for Defendant Extraction Oil & Gas, Inc. s/ Dorinda Mangan For Snell & Wilmer L.L.P. 17