Case: 17-20599   Document: 00515035583        Page: 1   Date Filed: 07/16/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                               United States Court of Appeals

                                    No. 17-20599                        Fifth Circuit

                                                                      FILED
                                                                  July 16, 2019
APACHE DEEPWATER, L.L.C.,                                        Lyle W. Cayce
                                                                      Clerk
             Plaintiff - Appellee

v.

W&T OFFSHORE, INCORPORATED,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before HIGGINBOTHAM, GRAVES, and WILLETT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      This dispute arises from a successful plugging and abandonment
operation of three offshore oil and gas wells in the Mississippi Canyon area of
the Gulf of Mexico. Apache Deepwater, LLC performed the operation and seeks
payment from its non-operator partner, W&T Offshore, Inc. A jury awarded
$43.2 million to Apache for W&T’s breach of the Joint Operating Agreement.
W&T challenges the district court’s application of the Louisiana Civil Code and
interpretation of the contract. Alternatively, W&T contends that it is entitled
to an offset in damages because of Apache’s bad faith. Finding no error, we
affirm.
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                                  No. 17-20599
                                        I.
      In May 1999, Apache and W&T’s predecessors entered into a Joint
Operating Agreement (“JOA”) that governed the operation of three offshore
deepwater oil and gas wells (the “Wells”) in the Mississippi Canyon area of the
Gulf of Mexico. This dispute arises from operator Apache’s plugging and
abandonment (“P&A”) of the Wells.
      In 2012, Apache attempted to P&A the Wells with an intervention vessel
called Uncle John with the consent of W&T, but that operation was
unsuccessful. Following that failure, Apache contracted to use a different
intervention vessel, the Helix-534 (“Helix”). An internal figure by Apache
estimated that the cost to P&A the Wells with the Helix was approximately
$56,350,000. In June 2014, W&T contacted Apache to set up a status
conference in July discussing the P&A operation, confirming that W&T knew
“that the Helix 534 is contracted for the project.” At that meeting, W&T learned
that Apache proposed using two drilling rigs for the project instead of the Helix,
the Ocean Onyx (“Onyx”) and Ensco-8505 (“Ensco”).
      W&T and Apache offered to the jury competing explanations for the
switch from the Helix to the Onyx and Ensco drilling rigs. By W&T’s telling,
Apache’s decision to use the Onyx and Ensco was a simple matter of cost: W&T
contends that Apache entered into a contract for the two drilling rigs for the
purpose of drilling new deepwater wells, but abandoned that project in 2014
and was left with exorbitant stacking costs for the idle rigs (approximately
$1,000,000 per day). W&T asserts that Apache’s decision to use the rigs instead
of the Helix was an attempt to recoup on the costs of contracting for the unused
rigs because Apache had been unsuccessful in unloading the rigs onto another
operator. Prior to the July meeting, Apache prepared estimates for the use of
the rigs which totaled between $81 and $104 million. W&T points to an
internal presentation in which Apache was weighing the costs of using the
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                                     No. 17-20599
Helix against the rigs and determining that with the stacking costs Apache
was paying for the idle rigs, the use of the rigs would be cheaper because the
cost would be split with W&T. Apache cancelled the Helix contract. W&T
claims that although Apache purported to rely on written evaluations
explaining the technical reasons the rigs were necessary (including that the
Helix no longer complied with government regulations), Apache refused to
provide those analyses to W&T.
      Apache rejects W&T’s economic explanation and argues that the Helix
was not a safe option after the Deepwater Horizon spill and the government
regulators would not have approved the Helix for the P&A operations. Apache
put on evidence that it had discussed the risks of using the Helix with W&T,
and demonstrated that technical difficulties posed by the Wells would make
the “open water” operations of the Helix environmentally risky, that the Wells
were “high risk,” and that the drilling rigs were able to conduct the P&A
operations with safeguards mitigating the risk of oil spills. Apache also claimed
that the federal Bureau of Safety and Environmental Enforcement (“BSEE”)
advised Apache that it was no longer approving the type of open-water
operations that Helix would need to perform to complete the P&A task. In
Apache’s version, W&T began “actively resisting” the P&A plan using the rigs
because the Helix operation would be far cheaper for W&T and W&T was
disregarding the environmental risk. 1 Apache argued to the jury that W&T
ignored the fact that Helix would have had operational issues that would have




      1 Apache points to an internal e-mail from W&T’s vice president Cliff Williams in
which he wrote: “I’d like to determine options should we not agree with operators plan and
believe we can perform well abandonments cheaper. Can we non-consent and take over
abandonment operations with Apache obligated to pay their share of estimated abandonment
costs?”
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                                       No. 17-20599
increased the costs of the operation past the initial estimates and that the use
of the rigs was “reasonably necessary.”
       Amid their dispute over the appropriate intervention vessel, Apache
sought W&T’s approval for use of the rigs through an Authorizations for
Expenditure (“AFE”), but W&T decided not to approve the use of the rigs, 2 and
rejected two other requests for AFEs. Apache decided to use the rigs for the
P&A and the work was successfully completed in February 2015 for a total cost
of $139,900,000. Apache billed W&T for its contractual 49% share, or
$68,570,000. W&T decided to pay $24,860,640, which represented 49% of the
estimate for use of the Helix, contending that “Apache’s insistence on using a
drilling rig unnecessarily and unreasonably increased the costs of this work,”
and determining that it was not obligated to pay the full billed amount because
it had not approved the AFEs.
       Apache sued for breach of contract in Texas state court in December 2014
and the case was removed by W&T in January 2015. Prior to trial, W&T moved
for summary judgment on Apache’s breach of contract claim, arguing that the
JOA was unambiguous in requiring the operator (Apache) to obtain an
approved AFE before expending over $200,000. The parties’ argument turned
on the reading of two provisions in the JOA: § 6.2 governing authorizations for
expenditures and § 18.4 governing abandonment operations required by the
government:
       6.2. Authorization for Expenditure: The Operator shall not
       make any single expenditure or undertake any activity or


       2 In its response, W&T stated: “We believe Apache, as a prudent operator, has an
obligation to conduct the operation in a cost effective and safe manner in compliance with all
governmental regulations. We do not understand why Apache continues to advocate the use
of the Ensco 8505 rig when it is clear that an intervention vessel could safely perform the
abandonment work at a much lower cost. . . . We do not believe W&T should be obligated to
pay the additional charges arising from the use of the Ensco rig when other less expensive
options are available.”
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                                   No. 17-20599
      operation costing Two Hundred Thousand Dollars ($200,000) or
      more, unless an AFE has either (1) been included in a proposal for
      an activity or operation and is approved by the Participating
      Parties through their Election to participate in the activity or
      operation, or (2) received the approval of the Parties as a General
      Matter. When executed by a party, an AFE grants the Operator
      the authority to commit or expend funds on the activity or
      operation in accordance with this Agreement for the account of the
      Participating Parties. . . .

      18.4.    Abandonment         Operations      Requirement       by
      Governmental Authority: The Operator shall conduct the
      abandonment and removal of any well, Production System or
      Facilities required by a governmental authority, and the Costs,
      risks and net proceeds will be shared by the Participating Parties
      in such well, Production System or Facilities according to their
      Participating Interest Share.

      The district court denied W&T’s motion for summary judgment and
determined that the interaction of the provisions in the JOA was ambiguous,
creating an issue of fact as to the “parties’ intent on the applicability of § 6.2 to
a government-mandated plugging and abandonment operation governed by
§ 18.4.” The case proceeded to trial and the jury made five findings:
      (1) Did W&T fail to comply with the Contract by failing to pay its
      proportionate share of the costs to plug and abandon the MC 674 wells?
      Yes.
      (2) What sum of money, if any, would compensate Apache for W&T’s
      failure to pay its proportionate share of costs to plug and abandon the
      MC 674 wells? $43,214,515.83.
      (3) Was Apache required to obtain W&T’s approval under Section 6.2 of
      the Contract before Apache plugged and abandoned the MC 674 wells as
      required      under     Section      18.4     of    the       Contract?      No.




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                                     No. 17-20599
      (4) Did Apache act in bad faith, thereby causing W&T to not comply with
      the contract? Yes.
      (5) By what amount, if any, should the amount you found in response to
      Jury Question No. 2 be offset? $17,000,000.
Following trial, the court entered its order and final judgment, determining
that the jury’s “bad faith” finding in Question 4 did not preclude Apache’s
recovery for breach of contract under Louisiana law and holding that W&T was
not entitled to an offset under Louisiana law. The district court also denied
W&T’s motion for a new trial or remittitur and renewed motion for judgment
as a matter of law. This appeal followed.
                                           II.
      This court reviews the denial of a Rule 50(b) renewed motion for
judgment as a matter of law de novo, “but our standard of review with respect
to a jury verdict is especially deferential.” 3 A party is only entitled to judgment
as a matter of law on an issue where no reasonable jury would have had a
legally sufficient evidentiary basis to find otherwise. 4 In evaluating the
evidence, this court “credit[s] the non-moving party’s evidence and disregard[s]
all evidence favorable to the moving party that the jury is not required to
believe.” 5 This court also has jurisdiction “to hear an appeal of the district
court’s legal conclusions in denying summary judgment, but only if it is
sufficiently preserved in a Rule 50 motion.” 6
      “A district court’s resolution of a motion for new trial is reviewed for
abuse of discretion, and ‘[t]he district court abuses its discretion by denying a



      3  Olibas v. Barclay, 

, 448 (5th Cir. 2016) (quoting Evans v. Ford Motor
Co., 

, 334 (5th Cir. 2007)) (internal quotation marks omitted).
       4 FED. R. CIV. P. 50(a)(1).
       5 Janvey v. Romero, 

, 187 (5th Cir. 2016) (quoting Abraham v. Alpha Chi

Omega, 

, 620 (5th Cir. 2013)) (internal quotation marks omitted).
       6 Feld Motor Sports, Inc. v. Traxxas, L.P., 

, 596 (5th Cir. 2017).

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                                        No. 17-20599
new trial only when there is an “absolute absence of evidence to support the
jury's verdict.”’” 7 “A motion for a new trial or to amend a judgment cannot be
used to raise arguments which could, and should, have been made before the
judgment issued.” 8 “To the extent that a Rule 59(e) ruling was a
reconsideration of a question of law, . . . the standard of review is de novo.” 9
                                              III.
       W&T contends that the plain language of Louisiana Civil Code Article
2003 dictates that the jury’s bad faith finding bars Apache’s recovery for breach
of contract. Article 2003 states that
       An obligee may not recover damages when his own bad faith has
       caused the obligor’s failure to perform or when, at the time of the
       contract, he has concealed from the obligor facts that he knew or
       should have known would cause a failure.

       If the obligee’s negligence contributes to the obligor’s failure to
       perform, the damages are reduced in proportion to that
       negligence. 10

In answering the fourth question on the verdict form, the jury found that
“Apache act[ed] in bad faith thereby causing W&T to not comply with the
contract.”
       The district court denied W&T’s motion for judgment as a matter of law,
concluding that it was bound by the Louisiana Supreme Court’s decision in




       7  McCaig v. Wells Fargo Bank (Tex.), N.A., 

, 472 (5th Cir. 2015) (quoting
Wellogix, Inc. v. Accenture, L.L.P., 

, 881 (5th Cir. 2013)).
        8 Garriot v. NCsoft Corp., 

, 248 (5th Cir. 2011) (citation omitted) (internal

quotation marks omitted).
        9 Hoffman v. L&M Arts, 

, 581 (5th Cir. 2016) (internal quotation marks,

citations, and alterations omitted). The parties dispute whether the district court’s denial of
W&T’s Rule 59 motion involved a pure question of law, with W&T arguing that it did and
Apache suggesting that W&T’s motion merely criticized the evidence presented at trial. The
Rule 59 motion and district court’s ruling is discussed below in Section III.
        

. Code art. 2003.

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                                     No. 17-20599
Lamar Contractors, Inc. v. Kacco, Inc. 11 The district court determined that,
under Lamar, Article 2003’s bad faith damages bar is only implicated where
the obligor has established that the obligee failed to perform a contractual
obligation that caused the obligor’s failure to perform. In other words, to avoid
liability pursuant to Article 2003’s bad faith bar, W&T would have to show that
Apache failed in its performance of the contract and that failure caused W&T’s
breach. Because the jury did not find that Apache had breached any obligation
under the contract, 12 the district court reasoned that it was required to set
aside the jury’s finding on Question 4—that Apache’s bad faith caused W&T’s
failure to perform—meaning Apache was not barred from recovery under
Article 2003.
      W&T disputes the district court’s reading of and reliance on Lamar,
arguing that (1) Lamar is not binding on this court because it is not
jurisprudence constante and this court must instead follow the plain language
of Article 2003, which contains no language limiting Article 2003’s application
to situations where the obligee has breached; (2) Lamar’s holding is limited to
Article 2003’s negligence clause; and (3) application of Lamar is contrary to
public policy.
      In diversity cases where this court must apply Louisiana substantive
law, 13 “we look to the final decisions of the Louisiana Supreme Court.” 14 In the
absence of a final decision by the state’s supreme court, we make an Erie guess,
which requires us to “employ Louisiana’s civilian methodology, whereby we



      11 

 (La. 2016).
      12 The district court noted that the jury considered and rejected that Apache had
breached. For example, had the jury answered Question 3 in the affirmative, that would have
amounted to a finding that Apache had breached an obligation under the contract. Question
3 asked whether Apache was required to obtain W&T’s approval under § 6.2 before
completing the P&A as required by § 18.4, which the jury answered in the negative.
      13 Erie R.R. Co. v. Tompkins, 

, 78 (1938).
      14 In re Katrina Canal Breaches Litig., 

, 206 (5th Cir. 2007).

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                                       No. 17-20599
first examine primary sources of law: the constitution, codes, and statutes.” 15
Even caselaw rising to the level of jurisprudence constante is “secondary law in
Louisiana” 16 and, accordingly, we are not strictly bound by the decisions of
Louisiana’s intermediate appellate courts. 17 So, it is only when the Louisiana
Supreme Court has not made a determinative decision that this court must
make an Erie guess, employing Louisiana’s civilian methodology. 18
       The parties dispute whether Lamar speaks definitively on the issue of
whether Article 2003 bars recovery of damages only when the obligee has been
found in breach. In Lamar, the Louisiana Supreme Court considered a trial
court’s decision to reduce breach of contract damages awarded to a general
contractor, Lamar, after finding that Lamar had contributed to the
subcontractor’s failure to perform. 19 The obligation imposed by Article 2003 is
“correlative to the general duty imposed by [Article] 1983, which requires
‘contracts must be performed in good faith.’” 20 However, the court warned that
the duty of good faith is not to be considered in isolation, and that it is
circumscribed by the obligations imposed by the contract. 21 The court noted
that “[a]lthough we have not had occasion to consider [Article] 2003 since its



       15 Id. at 206 (quoting Am Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 

, 260 (5th Cir. 2003)).
       16 Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 

 (5th Cir. 1999).
       17 In re Katrina, 495 F.3d at 206 (“Thus, although we will not disregard the decisions

of Louisiana’s intermediate courts unless we are convinced that the Louisiana Supreme
Court would decide otherwise, we are not strictly bound by them.”) (citing Am Int’l Specialty
Lines, 352 F.3d at 261).
       18 Boyett v. Redland Ins. Co., 

, 607 (5th Cir. 2014); see also Moore v. State

Farm Fire & Cas. Co., 

, 269–70 (5th Cir. 2009) (“To determine Louisiana law,
we look to the final decisions of the Louisiana Supreme Court. In the absence of a final
decision by the Louisiana Supreme Court, we must make an Erie guess . . . . When faced with
unsettled questions of Louisiana law we adhere to Louisiana’s civilian decision-making
process.”).
       19 Lamar, 189 So. 3d at 395–97.
       20 Id. (citing La. Civ. Code art. 1983) (internal alteration omitted).
       21 Id. at 398.

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                                         No. 17-20599
enactment in 1985, jurisprudence interpreting the predecessor article . . .
emphasized that the obligor must establish that the obligee breached the
contract, thereby making it more difficult for the obligor to perform its
obligation.” 22 It concluded: “[A]n obligor cannot establish an obligee has
contributed to the obligor’s failure to perform unless the obligor can prove the
obligee itself failed to perform duties owed under the contract. Stated in other
words, Kacco must demonstrate that Lamar failed to perform its obligations
under the contract, which in turn contributed to Kacco’s breach of the
contract.” 23 The question of the obligee’s bad faith does not become relevant
until there is a determination that the obligee failed to perform a contractual
obligation that in turn caused the obligor’s failure to perform. 24 For Article
2003 to apply as a damages bar, there must be an antecedent determination of
breach.
       While W&T urges that the Louisiana Supreme Court’s reading was
limited to the second sentence of Article 2003—the negligence prong—the
Lamar court drew no such limitation. 25 The reasoning of Lamar did not depend
on the relationship between bad faith and negligence. W&T offers no principled
reason why the Louisiana Supreme Court would have chosen not to recognize
a requirement of breach had the obligee in that case acted in bad faith, rather
than negligently. Indeed, we find no distinction in Lamar. Because Lamar is
controlling here, the district court correctly concluded that the good-faith
inquiry in Article 2003 is limited to situations where the obligee has




       22 Id. (referring to its decisions in Board of Levee Com’rs of Orleans Levee Dist. v. Hulse,

, 590 (La. 1929) and Favrot v. Favrot, 

, 1109 (La. Ct. App. 2011)).
       23 Id.
       24 Id. at 399 (summarizing the intermediate appellate court’s conclusion in Favrot that

“the question of a party’s good or bad faith does not become relevant until there has been a
determination that the party failed to perform an obligation under the contract”).
       25 Id.

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                                         No. 17-20599
breached. 26 The jury did not find that Apache breached so Article 2003 does
not bar Apache’s entitlement to damages as a matter of law.
                                                IV.
       W&T also contends that the case never should have gone before a jury
because W&T did not breach the contract as a matter of law. Section 6.2 of the
JOA provides that the operator “shall not make any single expenditure or
undertake any activity or operation costing Two Hundred Thousand Dollars
($200,000 or more), unless an AFE [is approved].” W&T reads that provision
in conjunction with Exhibit C, governing accounting, which provides that
“[a]cceptable reasons for non-payment or short payment . . . are as follows: . . .
when an AFE is not approved.” Together, W&T argues, those provisions
unambiguously resolve the issue of whether W&T breached. Because W&T as
the non-operator decided not to approve any AFE, it contends that it was
entitled to short the payment (and pay its share of the Helix P&A estimate)
without being found in breach of the JOA. W&T emphasizes that Section 6.2
does not contain an explicit exception for government-mandated operations
undertaken pursuant to Section 18.4 and suggests that AFE approval was
required even for operations performed under that Section. W&T points out
that the parties understood how to make an exception to Section 6.2 and did so
in a separate instance, exempting the operator from obtaining AFE approval
in the event of a safety-threatening emergency. 27


       26    W&T suggests as a last resort that this court may certify the question to the
Louisiana Supreme Court. Because we conclude that the Louisiana Supreme Court resolved
this issue in Lamar, certification is unnecessary here. Cf. Janvey v. Golf Channel, Inc., 

, 547 (5th Cir. 2015) (“Given . . . that this is a question of state law that no on-point
precedent from the Supreme Court of Texas has resolved, that the Supreme Court of Texas
is the final arbiter of Texas’s law . . . we believe it is best to certify the question at issue.”).
         27 “Notwithstanding the foregoing, in the event of an emergency which poses a threat

to life, safety, property, or the environment, the Operator is empowered to immediately make
such expenditures for the Joint Account as, in its opinion as a reasonable and prudent
Operator, are necessary to deal with the emergency.”
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                                    No. 17-20599
      Apache disputes W&T’s reading of the contract, arguing that under
Section 18.4, which covers government-mandated P&A operations, Apache was
required to undertake its P&A of the Wells as the operator and was authorized
to do so without obtaining an AFE from W&T pursuant to Section 6.2. Section
18.4 provides that
      The Operator shall conduct the abandonment and removal of any
      well, Production System or Facilities required by a governmental
      authority, and the Costs, risks and net proceeds will be shared by
      the Participating Parties in such well, Production System or
      Facilities according to their Participating Interest Share.

Apache asserts that this provision contemplates cost-sharing between the
parties and does not incorporate Section 6.2’s AFE process. Apache stresses
that requiring a Section 6.2 AFE for a government-mandated P&A operation
would lead to an absurd result because the non-operator could essentially hold-
up an operator from completing a P&A required by federal law to avoid sharing
the costs.
      The district court denied W&T’s motion for summary judgment,
concluding that the interplay between Section 6.2 and Section 18.4 was
ambiguous, leaving a material question of fact as to the parties’ intent. In
answering Question Three, the jury found that Apache was not required to
obtain W&T’s approval through an AFE before conducting the P&A as required
by Section 18.4 28
      Whether contract language is ambiguous under Louisiana law is a
question of law. 29 Under Louisiana law, “[w]hen the words of a contract are
clear and explicit and lead to no absurd consequences, no further



      28  “Was Apache required to obtain W&T’s approval under Section 6.2 of the Contract
before Apache plugged and abandoned the MC-674 wells as required under Section 18.4 of
the Contract?”
       29 Cadwallader v. Allstate Ins. Co., 

, 580 (La. 2003).

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                                       No. 17-20599
interpretation may be made in search of the parties’ intent.” 30 “[I]f a court finds
the contract to be unambiguous, it may construe the intent from the face of the
document—without considering extrinsic evidence—and enter judgment as a
matter of law.” 31 If the court determines that there is an ambiguity, the
question of intent is an issue of fact. 32 “Louisiana courts will not interpret a
contract in a way that leads to unreasonable consequences or inequitable or
absurd results even when the words used in the contract are fairly explicit.” 33
       Applying Section 6.2’s expenditure provision to a government-mandated
P&A undertaken pursuant to Section 18.4 would lead to an absurd
consequence: namely a situation where a non-operator is empowered to hold
an operator hostage, preventing the operator from completing a legally
required P&A, in order to extract a better bargain or avoid cost-sharing
altogether. The oddity of that result is compounded by the fact that Section
18.4 has its own cost-sharing provision, 34 making the idea that the operator
was required to obtain an AFE to complete the P&A less tenable. In light of
that absurd consequence, the district court correctly concluded that the jury
needed to resolve the question of the parties’ intent. 35 We agree therefore that


       

. Code art. 2046.
       31  Preston Law Firm, L.L.C. v. Mariner Health Care Mgmt Co., 

, 392 (5th
Cir. 2010) (internal citation omitted).
        32 Gebreyesus v. F.C. Schaffer & Assocs., Inc., 

, 643 (5th Cir. 2000).
        33 Tex. E. Transmission Corp. v. Amerada Hess Corp., 

, 742 (5th Cir.

1998); see also La. Civ. Code art. 2046 (“When the words of a contract are clear and explicit
and lead to no absurd consequences, no further interpretation may be made in search of the
parties’ intent.”).
        34 “The Operator shall conduct the abandonment and removal of any well, Production

System or Facilities required by a governmental authority, and the Costs, risks and net
proceeds will be shared by the Participating Parties in such well, Production System or
Facilities according to their Participating Interest Share.”
        

. Code art. 2046 (“When the words of a contract are clear and explicit and

lead to no absurd consequences, no further interpretation may be made in search of the
parties’ intent.”); Stewart Enters., Inc. v. RSUI Indem. Co., Inc., 

 (5th Cir. 2010)
(holding that the most straightforward reading of the contract would lead to an absurd result
that “could not have been intended by the parties”).
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                                       No. 17-20599
the question of whether Section 6.2’s expenditure requirement applies to
government-mandated P&A undertaken pursuant to Section 18.4—which
itself mandates cost-sharing—is ambiguous and was properly put to the jury.
         W&T’s response to the absurdity concern is unavailing. It suggests that
if the parties fail to agree on costs through the AFE process, the government
can simply conduct the P&A operation itself and charge the operator and non-
operator later. 36 W&T does not dispute that federal law required the P&A
operation of the Wells—rather it reads the Section 6.2 AFE requirement to
apply to government-mandated P&A operations and urges that Apache, having
failed to obtain an AFE from W&T, could have decided not to comply with
federal regulations and allow the government to P&A the Wells itself. Allowing
Apache to evade its obligations under federal law to P&A the Wells is contrary
to its duty to conduct all operations as would a prudent operator. 37 W&T’s
proposed answer to the troubling consequences of its reading is no solution at
all.
                                             V.
         Finally, W&T claims that even if Apache was not barred from recovering
damages, W&T is entitled to an offset based on Jury Question No. 5 and that
the damages award of $43,214,515.83 should be reduced by $17 million. As to
the legal basis for the offset, W&T points to “the basic law of damages” in
Louisiana set out in La. Civ. Code art. 1995 that damages cannot place the
obligee in a better position than it would have been in if the contract had been
fulfilled. W&T posits that the jury determined that a $17 million offset was



         36“If parties cannot agree about costs and thus fail to P&A wells, the government can
arrange for the P&A, deem the bond the working interest owners were required to provide
forfeited to the amount that would cover P&A costs, and charge the working interest owners
for any excess costs.”
        37 “The Operator shall conduct all operations in a good and workmanlike manner, as

would a prudent operator under the same or similar circumstances.”
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                                     No. 17-20599
appropriate to account for the savings that Apache enjoyed by not incurring
the stacking costs for the rigs. In its view, the jury credited testimony that
Apache would have incurred stacking costs between $29.5 million and $36.4
million and adopted the $17 million figure as a reasonable determination of
Apache’s windfall. The district court denied W&T’s motion for entry of
judgment and motion for a new trial, concluding that W&T was not entitled to
an offset on the basis of Question 5. Specifically, the district court determined
that Questions 2 and 5 were not linked, and offset was unavailable as an
affirmative defense under any of W&T’s theories.
       Article 1995 provides that “[d]amages are measured by the loss
sustained by the obligee and the profit of which he has been deprived.” 38 “The
measure of damages for a breach of contract is the sum that will place plaintiff
in the same position as if the obligation had been fulfilled.” 39 On Question 2,
the jury was instructed in accordance with Article 1995 to calculate “an
amount that is fair compensation for those damages.” The court then explained
to the jury:
       Damages are measured by the loss sustained by the non-breaching
       party. These are called compensatory damages. The damages
       amount is the amount that will place Apache in the position it
       would have been in if the parties’ contract had been properly
       performed. The damages include the amount a party owed under
       the contract.

The jury was instructed to determine the actual loss sustained without
reference to Question 5. W&T’s own closing argument emphasized this
understanding, encouraging the jury in calculating an amount for Question 2
to subtract the amount of savings W&T attributed to Apache’s avoiding the



       

. Code art. 1995.
       39 Gloria’s Ranch LLC v. Tauren Exploration, Inc., 

, 445–46 (La. 2018)
(internal citation and quotation marks omitted).
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                                       No. 17-20599
stacking costs by using the rigs. 40 W&T’s offset argument on appeal ignores
the fact that the jury instructions with respect to Question 2 tracked the
language of Article 1995. The two cases W&T relies on do not offer a theory
entitling W&T to offset. In Evangeline Parish School Bd. v. Energy Contracting
Servs., Inc., the Louisiana appellate court considered a damages award in favor
of an obligee to an energy-savings services contract. 41 The court reaffirmed the
general principle of Article 1995 that “[d]amages for obligor’s failure to perform
are measured by the loss sustained by the obligee and the profit of which he
has been deprived” and remanded, noting that the experts failed to calculate
the amount overcharged and the appellate court was therefore “unable to make
such a determination from the record.” 42 There is no lack of clarity in the record
here—W&T simply disputes the jury’s rejection of its stacking costs theory. In
Swoboda v. SMT Prop., LLC, the Louisiana appellate court considered the
damages award in a contract dispute involving the construction of a residential
home. 43 In accordance with Article 1995, the court “consider[ed] the benefit to
plaintiffs in maintaining ownership and possession of the adjacent lot [and]
conclude[ed] that plaintiffs [we]re not entitled to reimbursement.” 44 Again,
W&T ignores that the jury was instructed in accordance with Article 1995 and
explicitly calculated the actual loss sustained by Apache. W&T’s stacking costs
theory was rejected by the jury and it has offered no legal theory to support
upsetting that verdict.




       40  “Number two is the damage issue. We believe that if you get to that issue, and you
believe that somehow damages should be awarded in this case, they say it is 43.2 million. We
think they benefited anywhere . . . between 29 to 36 million. So we believe you should subtract
that from any damage amount you decide to award in the case.”
        41 

 (La. App. 3d. 1993).
        42 Id. at 1267.
        43 

 (La. App. 2008).
        44 Id. at 695.

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                                      No. 17-20599
        W&T posits two additional legal bases to support an offset in Apache’s
damages award. First, W&T suggests that Article 2323, governing comparative
fault, provides an independent legal basis for a reduction. Article 2323 applies
in tort cases; the Civil Code provides its own rule governing comparative fault
in contract cases—Article 2003—that we have already determined does not aid
W&T here. 45 W&T also claims the doctrine of compensation under Article 1893
gives independent grounds for an offset. 46 As the district court correctly noted,
W&T “previously admitted neither [compensation or unjust enrichment] could
be the basis of the jury’s finding, as that was not the nature of the evidence
presented to the jury.” In its post-verdict briefing, W&T conceded that Article
1893 did not apply, because “the jury was not instructed on the specific
requirements of the traditional doctrine of offset or setoff, which requires debts
owed by both parties being offset against each other.” Neither comparative
fault nor compensation provide a basis for a reduction in the damages award
here.
        Finally, W&T offers a last-ditch argument that the jury award was
clearly excessive because of Apache’s savings on the stacking costs. The district
court did not abuse its discretion in denying W&T’s motion for a new trial or
remittitur. We agree with the district court the damages award was supported
by substantial evidence. The jury logically awarded the precise amount that
W&T shorted by making a partial payment after the P&A operation. Such an
award was not excessive or “contrary to right reason”—rather, it reflects that




        45See Justiss Oil Co. v. Oil Country Tubular Corp., 

, 356–57 (La. Ct.
App.), writ denied, 

 (La. 2017) (quoting Hanover Ins. Co. v. Plaquemines Parish
Gov’t, No. 12–1680, 

, at *5–6 (E.D. La. July 9, 2015).
       46 Article 1893 provides that “Compensation takes place by operation of law when two

persons owe to each other sums of money or quantities of fungible things identical in kind,
and these sums or quantities are liquidated and presently due. In such a case, compensation
extinguishes both obligations to the extent of the lesser amount.” La. Civ. Code art. 1893.
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                                    No. 17-20599
the jury’s consideration of the evidence led it to reject W&T’s assertion that
Apache enjoyed a windfall by avoiding the stacking costs. 47
                                               VI.
      For the foregoing reasons, the judgment of the district court is affirmed.




      47 Laxton v. Gap, Inc., 

, 586 (5th Cir. 2003) (“When a damage award is
merely excessive or so large as to appear contrary to right reason, remittitur is the
appropriate remedy.”).
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