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CAUSE NO. 2015 47031
BREITBURN OPERATI , LP, successor IN THE DISTRICT COURT
interest to QRE OPERATING, LLC
Plaintiff,
ROGER D. PARSONS, in his capacity as
Trustee of the LL&E Royalty Trust,
Defendant,
OF HARRIS COUNTY, TEXAS
QRE OPERATING, LLC, QR ENERGY, LP,
BANK OF NEW YORK MELLON TRUST
COMPANY, N.A., BREITBURN ENERGY
PARTNERS, LP, BREITBURN
MANAGEMENT COMPANY, LLC, STIFEL,
NICOLAUS & COMPANY, INC.,
CONOCOPHILLIPS COMPANY, AND
MAVERICK NATURAL RESOURCES, LLC
Third Party Defendants JUDICIAL DISTRICT COURT
PLAINTIFF/COUNTER DEFENDANT BREITBURN OPERATING LP’S
MOTION TO EQUALIZE PEREMPTORY CHALLENGES
Breitburn Operating LP (“Breitburn”) files this Motion to Equalize Peremptory Challenges
pursuant to Rule 233 of the Texas Rules of Civil Procedure. Breitburn respectfully asks the Court
to equalize peremptory strikes by giving Breitburn, ConocoPhillips Company (“ConocoPhillips)
and the LL&E Royalty Trust (the “Trust”) purportedly suing on behalf of the LL&E Royalty
Partnership (the “Partnership”) six strikes each. Breitburn is antagonistic to ConocoPhillips for the
same reason it is antagonistic to the Trust and Partnership: ConocoPhillips and the Trust comprise
the LL&E Royalty Partnership (the “Partnership”), which is the Assignee under the Conveyance
the contract at issue in this case. The Trust alleges Breitburn has breached the Conveyance and
purports to assert claims for damages on behalf of the Partnership, which includes ConocoPhillips.
Therefore any alignment where Breitburn and ConcoPhillips must collectively share peremptory
strikes would be unfair to Breitburn.
EGAL TANDARD
Under Rule 233, “upon motion of any litigant made prior to the exercise of peremptory
challenges, it shall be the duty of the trial judge to equalize the number of peremptory challenges
so that no litigant or side is given an unfair advantage as a result of the alignment of the litigants
and the award of peremptory challenges to each litigant or side.” When
multiple litigants are involved on one side of a lawsuit, the threshold question in allocating strikes
is whether any of those litigants on the same side are antagonistic with respect to an issue of fact
that the jury will decide. See Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 91 (Tex. 1979)
(“The existence of antagonism must be determined prior to the exercise of [ ] strikes by the
parties.”). “The existence of antagonism is not a matter within the trial court’s discretion; it is a
question of law whether any of the litigants aligned on the same side of the docket are antagonistic
with respect to any issue submitted to the jury.” Id. To determine whether the parties are
antagonistic, “the trial court must consider the pleadings, information disclosed by pretrial
discovery, and other information brought to the attention of the trial court.” Id.
RGUMENT
Breitburn and ConocoPhillips are antagonistic and cannot share peremptory strikes. The
law is clear: where antagonism exists on an issue of fact that will be submitted to the jury amongst
parties on the same side, error amounting to a violation of the basic right to trial by jury to
require them to share six strikes. Patterson, 592 S.W.2d at 918. Here, ConocoPhillips is
antagonistic to Breitburn.
Though lack the capacity to do so, the Trust’s live pleadingpurports to pursue claims
behalf of the LL&E Royalty PartnershipTrust’s EighthAm. Ans., Am. , and Am. Third
Party Pet. ConocoPhillips is the Trust’s sole Partner in that Royalty Partnership.Breitburn does
not agreeany alleged breach of the agreement between Breitburn and the Partnership is somehow
a breach of a contractual obligation to the Trust, as no such obligations exist. However, to the
extent the Court disagrees, those same arguments apply in equal force to ConocoPhillips. Any
damages awarded to the Partnership as a result of the Trust’s claim against Breitburn for breach of
the Conveyance will be shared by ConocoPhillips and the Trust.See Ex. A (Partnership
Agreement (allocating the sharing ratio between the parties to the Partnership) The Trust
cannot seriously dispute that ConocoPhillips and Breitburn are antagonistic under those
circumstances.
Additionally, the Trust alleges that as the Managing General Partner of the Partnership,
ConocoPhillips owes a fiduciary duty to the Partnership and, indirectly, the Trust. The Trust’s
decision to file claims against ConocoPhillips does not relieve ConocoPhillips of any fiduciary
duty it has under the Agreement of General Partnership to which ConocoPhillips and the Trust are
parties.The Trust alleges it is entitled to recover damages that accrued prior to 2012the relevant
limitations time framein this c ase from ConocoPhillips because ConocoPhillips did not file suit
ConocoPhillips, as Managing General Partner, is even the entity that has “full, exclusive and
complete discretion in the operation of the Partnership including the right and the power, on behalf of the
Partnership . . . to receive payments attributable to the Royalties.” Ex. A (Partnership Agreement at 3
4, § 5.01(a) (emphasis added) ConocoPhillips also has the exclusive right and power to take actions
“related to” the power to receive payments under the Conveyance, including hiring lawyers, “taking of
appropriate action to enforce the terms of the Conveyance,” and otherwise accomplishing the purposes of
the Partnership. Id. at 4, § 5.01(c).
prior to February 19, 2012. See Trust’s Eighth Am. Ans., Am. C C, and Am. Third Party Pet. at
ConocoPhillips thus shares an incentive with the Trust to push any alleged damages suffered
until after February 19, 2012. The Trust has this incentive so it avoids its very real limitations
problem. ConocoPhillips has this incentive so any alleged damages that are result of other parties
conduct cannot be shifted its way.
Breitburn and ConocoPhillips are antagonistic on a number of fact issues that will be
submitted to the jury. Therefore, requiring Breitburn to share its peremptory strikes with
ConocoPhillips would violat Breitburn’s basic right to a trial by jury. The only way to preserve
right is to give each party an equal number of peremptory strikes as called for under Rule 233.
ONCLUSION
For the foregoing reasons, Breitburn respectfully requests that the Court GRANT this
Motion and equalize the number of peremptory challenges by allotting six challenges each to
Breitburn, ConocoPhillips, and the LL&E Trust.
Respectfully submitted,
HMAD AVITSANOS ENSING P.C.
By: /s/ Ryan Hackney
Joseph Y. Ahmad
Texas BarNo. 00941100
joeahmad@azalaw.com
Ryan Hackney
Texas Bar No. 24069850
rhackney@azalaw.com
Emily Merritt Adler
Texas Bar No. 24121009
eadler@azalaw.com
Jarmonique Smith
Texas Bar No. 24110374
jsmith@azalaw.com
1221 McKinney, Suite 2500
Houston, Texas 77010
Telephone:(713) 1101
Facsimile: (713) 655 0062
ECK EDDEN
Geoff A. Gannaway
State Bar No. 24036617
ggannaway@beckredden.com
Joe W. Redden, Jr.
State Bar No.
jredden@beckredden.com
Allison Standish Miller
State Bar No. 24046440
amiller@beckredden.com
Joel T. Towner
State Bar No. 24083978
jtowner@beckredden.com
Mary Kate Raffetto
State Bar No. 24098296
mkraffetto@beckredden.com
Bilma Canales
State Bar No. 24109687
bcanales@beckredden.com
1221 McKinney Street, Suite 4500
Houston, Texas 77010
Telephone No. (713) 951
Facsimile No. (713) 951
TTORNEYS OR LAINTIFF OUNTER
EFENDANT REITBURN PERATING LP,
successor interest QRE PERATING
ND HIRD ARTY EFENDANTS REITBURN
ANAGEMENT OMPANY LLC, REITBURN
NERGY ARTNERS LP, NERGY LP, AND
AVERICK ATURAL ESOURCES
CERTIFICATE OF SERVICE
I hereby certify that on September 11, 2023 a true and correct copy of the foregoing
instrument was served on all known counsel of record in accordance with the Texas Rules of Civil
Procedure via e service, wit:
John H. Kim, Esq. Joseph G. Thompson III, Esq.
David A. McDougald, Esq. Andrew Raber, Esq.
The Kim Law Firm Porter Hedges LLP
4309 Yoakum, Suite 2000 1000 Main Street, 36th Floor
Houston, Texas 77006 Houston, Texas 77002
jhk@thekimlawfirm.com joe.thompson@porterhedges.com
david@thekimlawfirm.com raber@porterhedges.com
Attorneys for Defendant/Counter-Plaintiff/ Attorneys for Third-Party Defendant
Third-Party Plaintiff Roger D. Parsons ConocoPhillips Company
as Trustee of the LL&E Royalty Trust
/s/ Ryan Hackney
Ryan Hackney
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CAUSE NO. 2015 47031 BREITBURN OPERATI , LP, successor IN THE DISTRICT COURT interest to QRE OPERATING, LLC Plaintiff, ROGER D. PARSONS, in his capacity as Trustee of the LL&E Royalty Trust, Defendant, OF HARRIS COUNTY, TEXAS QRE OPERATING, LLC, QR ENERGY, LP, BANK OF NEW YORK MELLON TRUST COMPANY, N.A., BREITBURN ENERGY PARTNERS, LP, BREITBURN MANAGEMENT COMPANY, LLC, STIFEL, NICOLAUS & COMPANY, INC., CONOCOPHILLIPS COMPANY, AND MAVERICK NATURAL RESOURCES, LLC Third Party Defendants JUDICIAL DISTRICT COURT PLAINTIFF/COUNTER DEFENDANT BREITBURN OPERATING LP’S MOTION TO EQUALIZE PEREMPTORY CHALLENGES Breitburn Operating LP (“Breitburn”) files this Motion to Equalize Peremptory Challenges pursuant to Rule 233 of the Texas Rules of Civil Procedure. Breitburn respectfully asks the Court to equalize peremptory strikes by giving Breitburn, ConocoPhillips Company (“ConocoPhillips) and the LL&E Royalty Trust (the “Trust”) purportedly suing on behalf of the LL&E Royalty Partnership (the “Partnership”) six strikes each. Breitburn is antagonistic to ConocoPhillips for the same reason it is antagonistic to the Trust and Partnership: ConocoPhillips and the Trust comprise the LL&E Royalty Partnership (the “Partnership”), which is the Assignee under the Conveyance the contract at issue in this case. The Trust alleges Breitburn has breached the Conveyance and purports to assert claims for damages on behalf of the Partnership, which includes ConocoPhillips. Therefore any alignment where Breitburn and ConcoPhillips must collectively share peremptory strikes would be unfair to Breitburn. EGAL TANDARD Under Rule 233, “upon motion of any litigant made prior to the exercise of peremptory challenges, it shall be the duty of the trial judge to equalize the number of peremptory challenges so that no litigant or side is given an unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges to each litigant or side.” When multiple litigants are involved on one side of a lawsuit, the threshold question in allocating strikes is whether any of those litigants on the same side are antagonistic with respect to an issue of fact that the jury will decide. See Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 91 (Tex. 1979) (“The existence of antagonism must be determined prior to the exercise of [ ] strikes by the parties.”). “The existence of antagonism is not a matter within the trial court’s discretion; it is a question of law whether any of the litigants aligned on the same side of the docket are antagonistic with respect to any issue submitted to the jury.” Id. To determine whether the parties are antagonistic, “the trial court must consider the pleadings, information disclosed by pretrial discovery, and other information brought to the attention of the trial court.” Id. RGUMENT Breitburn and ConocoPhillips are antagonistic and cannot share peremptory strikes. The law is clear: where antagonism exists on an issue of fact that will be submitted to the jury amongst parties on the same side, error amounting to a violation of the basic right to trial by jury to require them to share six strikes. Patterson, 592 S.W.2d at 918. Here, ConocoPhillips is antagonistic to Breitburn. Though lack the capacity to do so, the Trust’s live pleadingpurports to pursue claims behalf of the LL&E Royalty PartnershipTrust’s EighthAm. Ans., Am. , and Am. Third Party Pet. ConocoPhillips is the Trust’s sole Partner in that Royalty Partnership.Breitburn does not agreeany alleged breach of the agreement between Breitburn and the Partnership is somehow a breach of a contractual obligation to the Trust, as no such obligations exist. However, to the extent the Court disagrees, those same arguments apply in equal force to ConocoPhillips. Any damages awarded to the Partnership as a result of the Trust’s claim against Breitburn for breach of the Conveyance will be shared by ConocoPhillips and the Trust.See Ex. A (Partnership Agreement (allocating the sharing ratio between the parties to the Partnership) The Trust cannot seriously dispute that ConocoPhillips and Breitburn are antagonistic under those circumstances. Additionally, the Trust alleges that as the Managing General Partner of the Partnership, ConocoPhillips owes a fiduciary duty to the Partnership and, indirectly, the Trust. The Trust’s decision to file claims against ConocoPhillips does not relieve ConocoPhillips of any fiduciary duty it has under the Agreement of General Partnership to which ConocoPhillips and the Trust are parties.The Trust alleges it is entitled to recover damages that accrued prior to 2012the relevant limitations time framein this c ase from ConocoPhillips because ConocoPhillips did not file suit ConocoPhillips, as Managing General Partner, is even the entity that has “full, exclusive and complete discretion in the operation of the Partnership including the right and the power, on behalf of the Partnership . . . to receive payments attributable to the Royalties.” Ex. A (Partnership Agreement at 3 4, § 5.01(a) (emphasis added) ConocoPhillips also has the exclusive right and power to take actions “related to” the power to receive payments under the Conveyance, including hiring lawyers, “taking of appropriate action to enforce the terms of the Conveyance,” and otherwise accomplishing the purposes of the Partnership. Id. at 4, § 5.01(c). prior to February 19, 2012. See Trust’s Eighth Am. Ans., Am. C C, and Am. Third Party Pet. at ConocoPhillips thus shares an incentive with the Trust to push any alleged damages suffered until after February 19, 2012. The Trust has this incentive so it avoids its very real limitations problem. ConocoPhillips has this incentive so any alleged damages that are result of other parties conduct cannot be shifted its way. Breitburn and ConocoPhillips are antagonistic on a number of fact issues that will be submitted to the jury. Therefore, requiring Breitburn to share its peremptory strikes with ConocoPhillips would violat Breitburn’s basic right to a trial by jury. The only way to preserve right is to give each party an equal number of peremptory strikes as called for under Rule 233. ONCLUSION For the foregoing reasons, Breitburn respectfully requests that the Court GRANT this Motion and equalize the number of peremptory challenges by allotting six challenges each to Breitburn, ConocoPhillips, and the LL&E Trust. Respectfully submitted, HMAD AVITSANOS ENSING P.C. By: /s/ Ryan Hackney Joseph Y. Ahmad Texas BarNo. 00941100 joeahmad@azalaw.com Ryan Hackney Texas Bar No. 24069850 rhackney@azalaw.com Emily Merritt Adler Texas Bar No. 24121009 eadler@azalaw.com Jarmonique Smith Texas Bar No. 24110374 jsmith@azalaw.com 1221 McKinney, Suite 2500 Houston, Texas 77010 Telephone:(713) 1101 Facsimile: (713) 655 0062 ECK EDDEN Geoff A. Gannaway State Bar No. 24036617 ggannaway@beckredden.com Joe W. Redden, Jr. State Bar No. jredden@beckredden.com Allison Standish Miller State Bar No. 24046440 amiller@beckredden.com Joel T. Towner State Bar No. 24083978 jtowner@beckredden.com Mary Kate Raffetto State Bar No. 24098296 mkraffetto@beckredden.com Bilma Canales State Bar No. 24109687 bcanales@beckredden.com 1221 McKinney Street, Suite 4500 Houston, Texas 77010 Telephone No. (713) 951 Facsimile No. (713) 951 TTORNEYS OR LAINTIFF OUNTER EFENDANT REITBURN PERATING LP, successor interest QRE PERATING ND HIRD ARTY EFENDANTS REITBURN ANAGEMENT OMPANY LLC, REITBURN NERGY ARTNERS LP, NERGY LP, AND AVERICK ATURAL ESOURCES CERTIFICATE OF SERVICE I hereby certify that on September 11, 2023 a true and correct copy of the foregoing instrument was served on all known counsel of record in accordance with the Texas Rules of Civil Procedure via e service, wit: John H. Kim, Esq. Joseph G. Thompson III, Esq. David A. McDougald, Esq. Andrew Raber, Esq. The Kim Law Firm Porter Hedges LLP 4309 Yoakum, Suite 2000 1000 Main Street, 36th Floor Houston, Texas 77006 Houston, Texas 77002 jhk@thekimlawfirm.com joe.thompson@porterhedges.com david@thekimlawfirm.com raber@porterhedges.com Attorneys for Defendant/Counter-Plaintiff/ Attorneys for Third-Party Defendant Third-Party Plaintiff Roger D. Parsons ConocoPhillips Company as Trustee of the LL&E Royalty Trust /s/ Ryan Hackney Ryan Hackney