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CAUSE NO. 2016-45652
PEREGRINE OIL & GAS, LP § IN THE DISTRICT COURT OF
Plaintiff,
§ HARRIS COUNTY, TEXAS
HRB OIL & GAS, Ltd. and
VHPM, LLC
Defendants. § 190 JUDICIAL DISTRICT
PLAINTIFF’S OXFORD COMMA BRIEF
TO THE HONORABLEBEAU MILLER, DISTRICT COURT JUDGE:
Peregrine Oil & Gas, LP, Plaintiff, submits the following brief on the use of what
has been identified as the “Oxford comma” in grammarian circles and states:
According to the Texas Supreme Court in the recent case of
488 S.W.3d 294, 299 (Tex. 2016):
The Oxford or serial comma is the comma placed immediately before the
coordinating conjunction in a series of three or more terms. See, e.g., The
Chicago Manual Of Style § 6.19, at 245 (15th ed. 2003). Here, itis the
comma placed after the phrase "reasonable attorney's fees" and before the
coordinating conjunction "and," which separates the second and third terms
in the series. Sullivan submits that had the Legislature intended for there to
be an equitable and just relationship between reasonable attorney's fees
and other expenses, itwould have omitted the Oxford comma. Although
the use of the ford comma is not definitive, we agree that its use here
together with the inclusion of the word "other" and the absence of the other
comma, as in Scalia & Garner's example above, indicate the Legislature
intended to limit the justice and equity modifier to other expenses.
(emphasis added).
This commentary and holding was in reference to the following excerpt from
the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1):
(a) If the court orders dismissal of a legal action under this chapter, the court
shall award to the moving party: (1) court costs, reasonable attorney's fees,
and other expenses incurred in defending against the legal action as justice
and equity may require; and (2) sanctions.
Given this example and this holding, the Oxford comma rule does not come
to play with regard to Article 8.1 except to the extent that HRB argues that the word
“expenditures” applies to “charges” and “credits.”
The question arises here, if at all, because of Article 8.1. HRB argues that
nly invoices permitted by the PA and OOA are for costs or expenditures under the
COPAS exhibit. Since Peregrine is seeking return of an overpayment of revenue,
argues that Peregrine cannot send an invoice under the PA, OOA, or COPAS, even though
Jeff Wright, HRB’s expert testified that there were no provisions in the PA and OOA
prohibiting an invoice for overpaid revenue. Article 8.1 provides:
8.1 Basis of Charge to the Parties. Subject to the other provisions of this
Agreement, Operator shall pay all costs incurred under this Agreement, and
each Party shall reimburse Operator in proportion to its Participating
Interest. All charges, credits, and accounting for expenditures shall be made
and done pursuant to Exhibit "C".
he first sentence of Article 8.1 of the OOA is not an issue involving the
Oxford comma. The second sentence contains a series of concepts, i.e. charges, credits,
accounting for expenditures with an Oxford comma between “credits” and the word “and”
before the last item in the series, i.e.“accounting for expenditures.”
According to Article 8.1, any charge, credit or accounting for expenditures
ust be done in accordance with Exhibit C, the COPAS exhibit.The COPAS exhibit
requires a written statement of the charge, payment within 20 days and conclusiv at
the expiration of two years after the calendar year in which the “charge” “credit” or
“accounting for expenditures” occurs.
Thus, are “charges” and “credits” linked to “accounting for expenditures” so
that the only “charges” that can be made are those for ? Peregrine’s December
15, 2015 letter demand with attached invoices is for an overpayment of production revenue
and not for an expenditure.
Peregrine argues that the Oxford comma in Article 8.1 demonstrates that the
words “charges” and “credi are not modified by “accounting for expenditures.” The
sentence is grammatically correct and the meaning is unaffected. Charges for overpaid
revenue can be sent in writing, require payment within 20 days and become conclusive two
years after the calendar year in which the charge was incurred. The same is true for
The same is true for accounting for expenditures.
Sullivan v. Abraham, he Court stated and held:
Punctuation is a permissible indicator of meaning." Scalia & Garner, supra
161 (citing United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am.,
Inc., 508 U.S. 439, 454, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993)). Indeed,
punctuation "will often determine whether a modifying phrase or clause
applies to all that preceded it or only to a part." Id. Thus, "[p]roperly placed
commas [c]ould cancel the last antecedent canon" and vice versa. Id. Scalia
and Garner offer the following example: "You will be punished if you throw
a party, or engage in any other activity, that damages the house." Id. The
comma after "activity" does substantial work: It signals that the phrase "that
damages the house" modifies both "party" and "any other activity." Id. at
. Absent the comma after "activity," the last antecedent canon would be
triggered and the phrase "that damages the house" would modify only "any
other activity." Id.
Peregrine notes that the Scalia & Garner example does not contain a series
of three items, but only two, i.e. party and any other activity. However, this excerpt does
provided authority for punctuation as an indicator of meaning.
Two years later, in Castleman v. Internet Money Ltd., 546 S.W.3d 684, 690
2018), the Court refused to apply the Oxford comma rule where “a modifier cannot
reasonably be interpreted to apply only to the most recent antecedent, punctuation does not
require the Court to ignore reason.” With regard to Article 8.1, “expenditures” refers to an
“accounting.” Peregrine is not asking this honorable court to ignore reason. Peregrine asks
reasonably refer to an “accounting for expenditures” as documentation to
support spending independent of “charges” and “credits.”
Peregrine argues that this observation by the Court does not apply to thi
situation. Peregrine argues that the last antecedent canon of construction applies here, if
necessary, to make clear that an “accounting for expenditures” is just that and only that.
And that “charges” and “credits” are standalone concepts.
ine has argued in its Closing Brief, Peregrine prevails whether the
Oxford comma rule applies or does not apply. If this rule applies, then “charges” can be
for the financial obligation to repay the overpaid revenue and not restricted in meaning to
an “expense.”
On the other hand, if the rule does not apply, Peregrine’s December 15, 2015
letter and invoices are “charges,” the imposition of a financial obligation, and the “pay first,
dispute later” precondition of Article 8.7 applies. The word “charges” in Article 8.7 is not
modified with the word “expenditures” The word “charges” in Article 8.7 stands alone.
The word “charges” is not defined in either the PA or the OOA. There is no definition of
“charges” restricting “charges” to a cost or expenditure. And HRB’s expert found no
provision in either the PA or the OOA prohibiting a “charge” to place a financial burden
on HRB to return the overpaid revenue.
In its August 30, 2018 opinion, the 1 COA states:
Article 8.7 clearly provides that a party should first pay "charges" and then
notify the Operator of any charge that is in dispute. However, the term
"charges" is not defined specifically anywhere in the Participation
Agreement, the OOA, or the Accounting Procedure Offshore Joint
Operations ("Accounting Procedure") in Exhibit "C" to the OOA. And while
the Accounting Procedure does set forth the expenses that the "Operator
shall charge the Joint Account," including specific direct charges and
overhead for which Peregrine may charge the Joint Account, it also
contemplates "unusual charges and credits" that "shall be separately
identified and fully described in detail" in regard to "Statements and Billings."
Oil LP v. 00180 CV, 2018 Tex. App.
LEXIS 7183, at *19 (Tex. App. Aug. 30, 2018, pet. denied.)
The December 15, 2015 demand letter and supporting documentation,
Plaintiff’s Ex. 9, is just such an unusual chargeauthorized by COPAS.
inally, the custom and practice in the industry and the course of
performance by the parties to the PA and OOA show that the word or term, “charges
claim for repayment of discovered in reconciliation
process for a BPO/APO
Respectfully submitted,
JONES GILL PORTER CRAWFORD &
CRAWFORD
By:/s/ Michael D. Jones
Michael D. Jones
State Bar No. 10929350
Email: mjones@jonesgill.com
Joseph D. Porter
State Bar No. 16150100
Email: jporter@jonesgill.com
6363 Woodway, Suite 1100
Houston, Texas 77057
Telephone: (713)652 4068
Facsimile: (713)651 0716
ATTORNEYS FOR PLAINTIFF
PEREGRINE OIL & GAS, LP
RTIFICATE OF SERVICE
I hereby certify that on this ay of 2021, a true and correct copy of the above
and foregoing PLAINTIFF OXFORD COMMA BRIEF as sent to counsel of record at
the following address by first class U. S. Mail, certified mail, return receipt requested,
facsimile transmission, messenger/hand deliv file, or express delivery:
Barry F. Cannaday
Dentons US LLP
2000 McKinney Ave. Suite 1900
Dallas, Texas 75201
0900(telephone)
0910 (facsimile)
barry.cannaday@dentons.com
ichael D. Jones
Michael D. Jones
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CAUSE NO. 2016-45652 PEREGRINE OIL & GAS, LP § IN THE DISTRICT COURT OF Plaintiff, § HARRIS COUNTY, TEXAS HRB OIL & GAS, Ltd. and VHPM, LLC Defendants. § 190 JUDICIAL DISTRICT PLAINTIFF’S OXFORD COMMA BRIEF TO THE HONORABLEBEAU MILLER, DISTRICT COURT JUDGE: Peregrine Oil & Gas, LP, Plaintiff, submits the following brief on the use of what has been identified as the “Oxford comma” in grammarian circles and states: According to the Texas Supreme Court in the recent case of 488 S.W.3d 294, 299 (Tex. 2016): The Oxford or serial comma is the comma placed immediately before the coordinating conjunction in a series of three or more terms. See, e.g., The Chicago Manual Of Style § 6.19, at 245 (15th ed. 2003). Here, itis the comma placed after the phrase "reasonable attorney's fees" and before the coordinating conjunction "and," which separates the second and third terms in the series. Sullivan submits that had the Legislature intended for there to be an equitable and just relationship between reasonable attorney's fees and other expenses, itwould have omitted the Oxford comma. Although the use of the ford comma is not definitive, we agree that its use here together with the inclusion of the word "other" and the absence of the other comma, as in Scalia & Garner's example above, indicate the Legislature intended to limit the justice and equity modifier to other expenses. (emphasis added). This commentary and holding was in reference to the following excerpt from the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1): (a) If the court orders dismissal of a legal action under this chapter, the court shall award to the moving party: (1) court costs, reasonable attorney's fees, and other expenses incurred in defending against the legal action as justice and equity may require; and (2) sanctions. Given this example and this holding, the Oxford comma rule does not come to play with regard to Article 8.1 except to the extent that HRB argues that the word “expenditures” applies to “charges” and “credits.” The question arises here, if at all, because of Article 8.1. HRB argues that nly invoices permitted by the PA and OOA are for costs or expenditures under the COPAS exhibit. Since Peregrine is seeking return of an overpayment of revenue, argues that Peregrine cannot send an invoice under the PA, OOA, or COPAS, even though Jeff Wright, HRB’s expert testified that there were no provisions in the PA and OOA prohibiting an invoice for overpaid revenue. Article 8.1 provides: 8.1 Basis of Charge to the Parties. Subject to the other provisions of this Agreement, Operator shall pay all costs incurred under this Agreement, and each Party shall reimburse Operator in proportion to its Participating Interest. All charges, credits, and accounting for expenditures shall be made and done pursuant to Exhibit "C". he first sentence of Article 8.1 of the OOA is not an issue involving the Oxford comma. The second sentence contains a series of concepts, i.e. charges, credits, accounting for expenditures with an Oxford comma between “credits” and the word “and” before the last item in the series, i.e.“accounting for expenditures.” According to Article 8.1, any charge, credit or accounting for expenditures ust be done in accordance with Exhibit C, the COPAS exhibit.The COPAS exhibit requires a written statement of the charge, payment within 20 days and conclusiv at the expiration of two years after the calendar year in which the “charge” “credit” or “accounting for expenditures” occurs. Thus, are “charges” and “credits” linked to “accounting for expenditures” so that the only “charges” that can be made are those for ? Peregrine’s December 15, 2015 letter demand with attached invoices is for an overpayment of production revenue and not for an expenditure. Peregrine argues that the Oxford comma in Article 8.1 demonstrates that the words “charges” and “credi are not modified by “accounting for expenditures.” The sentence is grammatically correct and the meaning is unaffected. Charges for overpaid revenue can be sent in writing, require payment within 20 days and become conclusive two years after the calendar year in which the charge was incurred. The same is true for The same is true for accounting for expenditures. Sullivan v. Abraham, he Court stated and held: Punctuation is a permissible indicator of meaning." Scalia & Garner, supra 161 (citing United States Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 454, 113 S. Ct. 2173, 124 L. Ed. 2d 402 (1993)). Indeed, punctuation "will often determine whether a modifying phrase or clause applies to all that preceded it or only to a part." Id. Thus, "[p]roperly placed commas [c]ould cancel the last antecedent canon" and vice versa. Id. Scalia and Garner offer the following example: "You will be punished if you throw a party, or engage in any other activity, that damages the house." Id. The comma after "activity" does substantial work: It signals that the phrase "that damages the house" modifies both "party" and "any other activity." Id. at . Absent the comma after "activity," the last antecedent canon would be triggered and the phrase "that damages the house" would modify only "any other activity." Id. Peregrine notes that the Scalia & Garner example does not contain a series of three items, but only two, i.e. party and any other activity. However, this excerpt does provided authority for punctuation as an indicator of meaning. Two years later, in Castleman v. Internet Money Ltd., 546 S.W.3d 684, 690 2018), the Court refused to apply the Oxford comma rule where “a modifier cannot reasonably be interpreted to apply only to the most recent antecedent, punctuation does not require the Court to ignore reason.” With regard to Article 8.1, “expenditures” refers to an “accounting.” Peregrine is not asking this honorable court to ignore reason. Peregrine asks reasonably refer to an “accounting for expenditures” as documentation to support spending independent of “charges” and “credits.” Peregrine argues that this observation by the Court does not apply to thi situation. Peregrine argues that the last antecedent canon of construction applies here, if necessary, to make clear that an “accounting for expenditures” is just that and only that. And that “charges” and “credits” are standalone concepts. ine has argued in its Closing Brief, Peregrine prevails whether the Oxford comma rule applies or does not apply. If this rule applies, then “charges” can be for the financial obligation to repay the overpaid revenue and not restricted in meaning to an “expense.” On the other hand, if the rule does not apply, Peregrine’s December 15, 2015 letter and invoices are “charges,” the imposition of a financial obligation, and the “pay first, dispute later” precondition of Article 8.7 applies. The word “charges” in Article 8.7 is not modified with the word “expenditures” The word “charges” in Article 8.7 stands alone. The word “charges” is not defined in either the PA or the OOA. There is no definition of “charges” restricting “charges” to a cost or expenditure. And HRB’s expert found no provision in either the PA or the OOA prohibiting a “charge” to place a financial burden on HRB to return the overpaid revenue. In its August 30, 2018 opinion, the 1 COA states: Article 8.7 clearly provides that a party should first pay "charges" and then notify the Operator of any charge that is in dispute. However, the term "charges" is not defined specifically anywhere in the Participation Agreement, the OOA, or the Accounting Procedure Offshore Joint Operations ("Accounting Procedure") in Exhibit "C" to the OOA. And while the Accounting Procedure does set forth the expenses that the "Operator shall charge the Joint Account," including specific direct charges and overhead for which Peregrine may charge the Joint Account, it also contemplates "unusual charges and credits" that "shall be separately identified and fully described in detail" in regard to "Statements and Billings." Oil LP v. 00180 CV, 2018 Tex. App. LEXIS 7183, at *19 (Tex. App. Aug. 30, 2018, pet. denied.) The December 15, 2015 demand letter and supporting documentation, Plaintiff’s Ex. 9, is just such an unusual chargeauthorized by COPAS. inally, the custom and practice in the industry and the course of performance by the parties to the PA and OOA show that the word or term, “charges claim for repayment of discovered in reconciliation process for a BPO/APO Respectfully submitted, JONES GILL PORTER CRAWFORD & CRAWFORD By:/s/ Michael D. Jones Michael D. Jones State Bar No. 10929350 Email: mjones@jonesgill.com Joseph D. Porter State Bar No. 16150100 Email: jporter@jonesgill.com 6363 Woodway, Suite 1100 Houston, Texas 77057 Telephone: (713)652 4068 Facsimile: (713)651 0716 ATTORNEYS FOR PLAINTIFF PEREGRINE OIL & GAS, LP RTIFICATE OF SERVICE I hereby certify that on this ay of 2021, a true and correct copy of the above and foregoing PLAINTIFF OXFORD COMMA BRIEF as sent to counsel of record at the following address by first class U. S. Mail, certified mail, return receipt requested, facsimile transmission, messenger/hand deliv file, or express delivery: Barry F. Cannaday Dentons US LLP 2000 McKinney Ave. Suite 1900 Dallas, Texas 75201 0900(telephone) 0910 (facsimile) barry.cannaday@dentons.com ichael D. Jones Michael D. Jones