Easter & Cavosie :: Attorneys at Law

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Repeal of Indiana’s Common Construction Wage advances

By a vote of 27 – 22, the Indiana Senate passed a bill repealing Indiana’s Common Construction Wage Act.  That bill now heads to the Indiana House of Representatives.

Old Dog Learns New Trick: Greg Easter Now Licensed In Florida

On May 5, 2014, Greg Easter was admitted to practice law in the State of Florida after having successfully passed the Florida Bar Examination.  Congratulations to Greg.

Indiana Court of Appeals: Use or lose oil and gas lease

As drilling for petroleum products in the Midwest becomes more prevalent than it has been for decades, existing oil and gas leases will become more valuable to the holders of those leases.  Even though an owner’s property may appear to be burdened by an oil and gas lease, a recent Indiana case shows that such leases may terminate if the lessee fails to abide by all of the terms of the lease.

In L.C. Neely Drilling and Maverick Energy, Inc. v. Hoosier Energy Rural Electrical Cooperative, a predecessor of Maverick Energy had entered into an oil and gas lease with the owner of a large tract of land in Sullivan County.  The lease, as amended, provided that the lease would last for a period of five years and would continue after that period as long as gas was being produced and sold from the land.  However, if no gas production royalties were being paid at the expiration of thirty-six months after the commencement of the lease, the lease would continue from year to year upon payment by Maverick Energy of advance royalty payments equal to $5 per acre; such advance royalty payments were due within thirty days after expiration of the 36-month period and on each anniversary of the expiration of that 36-month period.

As of January 2012, no production royalties had been paid, and Maverick Energy did not pay the required advance royalty payment by the January 3 deadline that year.  In late January 2012, Maverick Energy sent a check to Hoosier Energy for the advance royalty payment.  Hoosier Energy returned the check and notified Maverick Energy that the gas and oil lease had terminated because the advance royalty payment was not timely.

The trial court granted Hoosier Energy’s motion for summary judgment, thereby ruling that Maverick Energy’s lease had expired.  In reviewing Maverick Energy’s appeal of the ruling, the court of appeals examined the differences between “drill or pay” provisions and “unless” provisions in oil and gas leases.  If a lease contains a “drill or pay” provision, the lessee must commence production or pay advance royalties, but the failure to do one or the other is only a breach of the lease and not a cause for automatic termination of the lease.  If a lease contains an “unless” provision, the lease will terminate automatically unless the lessee either commences production or pays the advance royalties by the prescribed date.

Since Maverick Energy’s lease stated that the lease would continue only if Maverick Energy paid the advance royalty payments by the date required, the court of appeals found the parties’ intention to be that the lease would terminate if Maverick Energy failed to comply with the requirements for continuation of the lease.  Maverick Energy’s failure to make the required payment by the prescribed date resulted in a termination of the lease–and not a default under the lease which Maverick Energy could have cured within thirty days after notice.

It is important for both the holders of oil and gas leases and the owners of property burdened by the leases to be aware of the specific provisions in such leases.  Depending on the circumstances, it is possible that an owner of a property burdened by an oil and lease may not have to honor that lease if the lessee has failed to abide by the terms of the lease.  Owners and lessees under oil and gas leases should also be aware of the provisions of Indiana Code §32-23-8, which permits the property owner to void  oil and gas leases after a period of one year has elapsed since the last payment of rentals or operation for oil or gas have ceased.

By: George Abel

 

Indiana Court of Appeals: Contractor’s Failure To Comply With Home Improvement Contracts Act Precluded Recovery of Attorney’s Fees

In First Response Services, Inc. v. Vincent A. Cullers, the Indiana Court of Appeals denied a contractor’s argument that even though it failed to comply with the Home Improvements Contact Act (“HICA”) it should still be entitled to recover its attorney’s fees under the contract.

Facts: The Cullers hired First Response to perform water restoration services when their sump pump malfunctioned and caused their basement to flood. First Response removed the wet carpet and provided several pieces of drying equipment in the basement. After several days, the Cullers demanded the drying equipment be removed and offered to pay $1,200 for the services.  First Response demanded $7,722 for the work performed.

Prior to starting the work, First Response had the Cullers sign two documents, which failed to meet the requirements of HICA.  The documents failed to include a reasonably detailed description of the proposed home improvements, the home improvement contract price, and the start and completion dates.

First Response filed a complaint for breach of contract and unjust enrichment and for its attorney’s fees.  At trial, the court found that First Response was entitled to $3,780 in damages, but it was not entitled to recover its attorney’s fees.

Decision: The Indiana Court of Appeals affirmed the trial court’s decision. The  court found that the purpose  of  HICA  is  to  protect  consumers  by  placing  specific  minimum requirements on the contents of home improvement contracts because few consumers are knowledgeable about the home improvement industry; and the contractor therefore is held to a strict standard.  The court opined that it cannot have been the intent of the legislature to allow a company to circumvent the strict requirements of the statute.  Because the contractor failed to comply with the requirements of HICA, First Response was not entitled to recover attorney fees pursuant to the terms of the contract.

By: Roy Rodabaugh