NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0983n.06

                                           No. 11-2132                                   FILED
                                                                                       Sep 06, 2012
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


LOMREE, INC.,                          )
                                       )
      Plaintiff-Appellee,              )                 ON APPEAL FROM THE
                                       )                 UNITED STATES DISTRICT
v.                                     )                 COURT FOR THE EASTERN
                                       )                 DISTRICT OF MICHIGAN
PAN GAS STORAGE, LLC,                  )
                                       )
                                                                 OPINION
      Defendant-Appellant.             )
_______________________________________)


Before: MOORE, WHITE, and LUCERO,* Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge. For over fifty years, Pan Gas Storage, LLC

(“Pan Gas”) provided natural gas free of charge to two parcels of land owned by Lomree, Inc.

(“Lomree”). In 2010, questioning its own practices, Pan Gas sent a letter to Lomree indicating its

intent to cease providing the gas. Lomree sued for breach of contract seeking equitable and

compensatory relief, citing several contracts from 1946 and 1957 between Lomree’s and Pan Gas’s

predecessors. Pan Gas moved for summary judgment on the basis that the contracts unambiguously

did not provide for free gas. The district court held that the contracts were ambiguous and that Pan

Gas’s course of performance and the doctrine of construing contracts against the drafter warranted

granting summary judgment in favor of Lomree instead. We agree that the contracts are ambiguous,

but because the ambiguities raise numerous questions of fact, summary judgment was

       *
        The Honorable Carlos F. Lucero, Circuit Judge for the United States Court of Appeals for
the Tenth Circuit, sitting by designation.
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


inappropriately granted in favor of Lomree. We therefore REVERSE the district court’s judgment

and REMAND for further proceedings.

                                        I. BACKGROUND

       The dispute in this case centers around a series of contracts entered into more than half a

century ago. In 1946, the Kuhn family and the Minor family each entered into contracts with the

Panhandle Eastern Pipeline Company (“Panhandle Eastern”) granting Panhandle Eastern the right

to mine the natural gas underneath the families’ land. The contracts provided the Kuhns and the

Minors with royalty payments for the gas mined as well as the right “to have gas free of charge from

any gas well on the leased premises [for use on the premises] by making his own connections with

the well at his own risk and expense.” R. 22-2, Ex. 1 (1946 Contract at ¶3) (Page ID #211).1

Everyone agrees that this permitted the parcels to use gas at no expense from 1946 until at least 1957

when the new contracts were executed.

       In 1957, the parties executed a “Gas Storage Agreement and Oil and Gas Lease.” The parties

dispute whether the gas field had become depleted by 1957 or was close to depletion, and they

dispute whether Panhandle Eastern had already begun using the field as a storage area at the time the

new agreements were signed. See R. 28 (D. Ct. Op. & Order at 3) (Page ID #402). The new lease

permitted Panhandle Eastern to use the families’ land to inject and store gas mined from other fields,

and provided that Panhandle Eastern would pay an annual storage rental fee “so long as gas is



       1
        We rely on the defendant’s transcription of the terms of the contracts because the text of the
contracts is difficult to discern in the photocopied versions of the originals provided by the parties.
The plaintiff has not offered a contrary transcription.

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No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


produced or stored or such gas storage rights are utilized or held by Lessee.” R. 22-2, Ex. 1 (1957

Lease at ¶4, ¶5) (Page ID #214-15). The key provision of the new contracts under dispute is in

paragraph 15:

          This lease supersedes and cancels that certain oil and gas lease [the 1946 contract];
          provided, however, that if any well or wells has or have been drilled under the terms
          of said lease, such well or wells and any personal property used or obtained in
          connection therewith shall be included in the terms and provisions of this lease.

15 (Page ID #216). The parties dispute whether paragraph 15 incorporates by reference the

continued use of stored gas free of charge from the existing wells on the families’ property. In 1958,

the parties also entered into a “Natural Gas Conveyance” contract that conveyed all of the remaining

natural gas under the properties to Panhandle Eastern. 

Conveyance) (Page ID

#214).2

          Since then, the Kuhns and the Minors sold their land to Lomree, which has continued to use

gas on the property free of charge from Pan Gas, the successor in interest to Panhandle Eastern and

current operator of the storage field. Pan Gas claims that in 2010 it “discovered” Lomree’s right to

free gas had been canceled by the contracts in 1957 and Panhandle Eastern’s field personnel had

simply failed to discontinue the supply. Appellant Br. at 6. Pan Gas advised Lomree by letter that

it would discontinue the supply in November 2010, and Lomree responded by filing suit in state

court. Lomree seeks compensatory damages, a declaration of rights, and temporary and permanent



          2
         In 1956, the parties had signed an option contract to permit Panhandle Eastern to purchase
the right to all natural gas then-remaining under the properties and future storage rights, the exercise
of which led to the contracts in 1957 and 1958. R. 22-2, Ex. 1 (Options Contract) (Page ID #212-
14).

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No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


injunctive relief, all stemming from a state-law breach-of-contract claim. R. 1 (Compl. at 7) (Page

ID #13). Pan Gas removed the case to the U.S. District Court for the Eastern District of Michigan

based on diversity of citizenship.

       In May 2011, Pan Gas moved for summary judgment on the basis that the contracts

unambiguously terminated Lomree’s right to free gas. Lomree responded, agreeing that the contracts

were unambiguous, but arguing that they unequivocally did not terminate Lomree’s right to free gas.

Lomree therefore asked the court to award it summary judgment under Federal Rule of Civil

Procedure 56(f)(1), or at a minimum, to let a jury decide the question. R. 26 (Pl.’s Opp. to Summ.

J. at 7) (Page ID #367). Pan Gas responded by maintaining its position that Lomree’s interpretation

of the contracts was unreasonable. At oral argument in the district court, Lomree’s counsel stated

that he was going to “break with Team Lomree”—and his own brief—and conceded that “I don’t

think that you can reasonably make the argument that this is unambiguous. I think that there’s room

for two reasonable interpretations.” R. 36 (Hr’g Tr. at 8-9) (Page ID #489-90). Lomree’s counsel

concluded by emphasizing the alternative argument from the brief that “this is a classic case for the

jury.” 

       The district court held that the contracts were ambiguous under Michigan law because the

parties had both proffered reasonable interpretations of the key provisions. Because of the

ambiguity, the district court considered the parties’ course of performance and applied the doctrine

of construing ambiguous provisions against the drafter to hold that the contracts “preserve[d]

Lomree’s right to free gas.” R. 28 (D. Ct. Op. & Order at 5) (Page ID #404). Pan Gas appeals the

denial of its motion for summary judgment and the grant of summary judgment in favor of Lomree.

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No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


                                      II. JURISDICTION

       The district court had jurisdiction under 28 U.S.C. § 1332(a)(1). The parties are diverse:

Lomree is a Michigan corporation with its principal place of business in Livingston County,

Michigan, and Pan Gas is a limited liability company organized under the laws of Delaware with its

principal place of business in Houston, Texas. R. 1 (Notice of Removal at ¶¶5-6) (Page ID #2).

Lomree originally contested Pan Gas’s notice of removal on the grounds that the amount in

controversy was less than $75,000. The district court held, and we agree, that even though the

complaint identified the amount of compensatory damages as $25,000, Pan Gas demonstrated

competent proof that the costs of complying with the injunctive relief—free gas for so long as the

land is used as a storage field—would quickly surpass $75,000 from either party’s view point. See

Everett v. Verizon Wireless, Inc., 

, 829 (6th Cir. 2006); R. 19 (D. Ct. Order at 4-6)

(Page ID #165-67). We have jurisdiction to review the district court’s final order granting summary

judgment under 28 U.S.C. § 1291.

                                III. STANDARD OF REVIEW

       Summary judgment is generally appropriate when “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). However, “district courts are widely acknowledged to possess the power to enter

summary judgments sua sponte, so long as the losing party was on notice that she had to come

forward with all of her evidence.” Celotex Corp. v. Catrett, 

, 326 (1986). Lomree did

not formally move for summary judgment; rather, Lomree asked the court in opposing Pan Gas’s

motion to instead grant summary judgment to Lomree under Federal Rule of Civil Procedure 56(f),

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No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


the Rule that embodies the principle in Celotex. The grant of summary judgment to a non-moving

party is subject to two different standards of review. We review for abuse of discretion the initial

procedural decision to enter summary judgment for a non-moving party. Salehpour v. Univ. of

Tenn., 

, 203 (6th Cir. 1998), cert. denied, 

(1999). We review de novo

the substance of the district court’s decision to grant summary judgment. Id.; see also Shelby Cnty.

Health Care Corp. v. S. Council of Indus. Workers Health & Welfare Trust Fund, 

, 931

(6th Cir. 2000).

        This case is also unusual in that summary judgment was granted for the plaintiff on an issue

for which the plaintiff had the burden of proof at trial. “[I]n ruling on a motion for summary

judgment, the judge must view the evidence presented through the prism of the substantive

evidentiary burden.” Anderson v. Liberty Lobby, Inc., 

, 254 (1986). When the party

with the ultimate burden of persuasion on an issue moves for summary judgment, “that party must

support its motion with credible evidence that would entitle it to a directed verdict if not controverted

at trial.” Timmer v. Mich. Dep’t of Commerce, 

, 843 (6th Cir. 1997). Here, we ask

whether Lomree presented credible, uncontroverted evidence that would be sufficient to establish

by a preponderance of the evidence that the parties intended the contractual right to free gas to

continue past 1957. We view this evidence and resolve all inferences in the light most favorable to

the losing party, Pan Gas. See 

.

        Federal courts sitting in diversity apply the choice-of-law rules of the forum state. NILAC

Int’l Mktg. Grp. v. Ameritech Servs., Inc., 

, 358 (6th Cir. 2004). Under Michigan law,

absent an express choice-of-law provision in a contract and certain exceptions not applicable here,

                                                   6
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


the law of the forum state governs the interpretation of the contracts. 

agree with

the parties and the district court that Michigan law applies in this case.

       The question of whether a contract or its terms is ambiguous is a question of law in

Michigan. 

Huron Educ. Ass’n, MEA/NEA v. Port Huron Area Sch. Dist., 

, 237 (Mich. 1996)). The proper meaning of clear and unambiguous terms is also a

question of law. 

review de novo the issue of ambiguity and the meaning of the

unambiguous terms. Klapp v. United Ins. Grp. Agency, Inc., 

, 451 (Mich. 2003).

The proper interpretation of ambiguous contractual provisions, however, is a question of fact.

NILAC 

(citing Port 

). “If the contract is subject to

two reasonable interpretations, factual development is necessary to determine the intent of the parties

and summary disposition is therefore inappropriate.” Meagher v. Wayne State Univ., 

, 415 (Mich. Ct. App. 1997).

       Pan Gas points us to language in the Michigan cases to argue that all ambiguous contracts

must automatically be interpreted by juries. See, e.g., Zinchook v. Turkewycz, 

, 848

(Mich. Ct. App. 1983) (“[W]here the language used is ambiguous or incomplete . . . the substance

of the parties’ agreement is a question of fact for the jury.” (emphasis added)). Lomree responds by

attempting to suggest that this case is about equitable relief and may therefore be decided by a judge.

Both arguments are misplaced. As with any case involving questions of fact, the existence of

contractual ambiguities does not automatically preclude summary judgment if the evidence of intent

is undisputed. Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd., 

, 422 (6th

Cir.) (“We reverse a district court’s award of summary judgment when the contract at issue is

                                                   7
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


ambiguous and the appealing party has raised a genuine issue of material fact.” (emphasis added)),

cert. denied, 

(2008).3 Summary judgment interpreting an ambiguous contract would

be appropriate if the relevant extrinsic evidence is uncontested and sufficient on its own to establish

intent, or if the extrinsic evidence is so one-sided as to make one party’s interpretation unreasonable.

v. Roseland Prop. Co., 

, 49 (1st Cir. 2004)). Whether Lomree’s

claim is one for legal or equitable relief is irrelevant if there are no genuine issues of material fact,

because “it is well settled that summary judgment does not violate the Seventh Amendment.” Biegas

v. Quickway Carriers, Inc., 

, 373 n.3 (6th Cir. 2009) (internal quotation marks omitted).

                             IV. BREACH OF CONTRACT CLAIM

        Pan Gas claims that the district court erred by failing to hold that the contracts

unambiguously do not grant Lomree a right to free gas. At a minimum, Pan Gas argues that the

district court erred in granting summary judgment to Lomree upon finding that the contracts were

ambiguous. Because the contract is ambiguous, and the extrinsic evidence of intent—although

favoring Lomree—is not enough to support a judgment as a matter of law for the plaintiff, Lomree

was not entitled to summary judgment in this case.




        3
         Even if we were to read the Michigan cases as creating a per se rule, and it is not clear they
do, we would apply the federal standard for summary judgment, Biegas v. Quickway Carriers, Inc.,

, 374 (6th Cir. 2009), and the federal standard for when a judge or a jury must resolve
a claim, see Byrd v. Blue Ridge Rural Elec. Coop., Inc., 

(1958) (holding diversity
plaintiff had right to jury even though state would have permitted judge to decide her claim).

                                                   8
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


A. The Contracts Are Ambiguous

       Under Michigan law, we must “‘give contractual language that is clear and unambiguous full

effect according to its plain meaning unless it violates the law or is in contravention of public

policy.’” Stryker Corp. v. Nat’l Union Fire Ins. Co., 

, 823 (6th Cir. 2012); Rory v.

Cont’l Ins. Co., 

, 30 (Mich. 2005) (“A fundamental tenet of our jurisprudence is that

unambiguous contracts are not open to judicial construction and must be enforced as written.”)

(emphasis omitted). A contract provision is ambiguous if its language may reasonably be interpreted

in two or more ways or its “provisions cannot be reconciled with each other.” Woodington v.

Shokoohi, 

, 78 (Mich. Ct. App. 2010).4 “If the contract, although inartfully worded

or clumsily arranged, fairly admits of but one interpretation, it is not ambiguous.” 

with the district court that the parties have each offered a reasonable interpretation

of the 1957 Lease. One interpretation, offered by Pan Gas, is that the 1957 Lease terminated the

free-gas clause from the 1946 Contract by terminating and superseding the 1946 Contract entirely



       4
          The Michigan courts are conflicted regarding whether a contract is instead ambiguous only
if it is equally susceptible to two reasonable interpretations. See Mayor of Lansing v. Mich. Pub.
Serv. Comm’n, 

, 847 (Mich. 2004) (requiring statute be “equally susceptible” to two
interpretations to be ambiguous); but see Petersen v. Magna Corp., 

, 569 (Mich.
2009) (Kelly, C.J.) (noting Lansing’s “equally susceptible” requirement was not binding and “is
unsupported by any Michigan law”). The Michigan Court of Appeals has not consistently applied
the “equally susceptible” principle to contractual ambiguities. Compare Woodington v. Shokoohi,

, 78 (Mich. Ct. App. 2010) (contract ambiguous because two reasonable
interpretations) with Royal Prop. Grp., LLC v. Prime Ins. Syndicate, Inc., 

, 432
(Mich. Ct. App. 2005) (contract not ambiguous because not equally susceptible to competing
interpretations). Because neither party here argues that the “equally susceptible” standard should
apply, we adopt the position expressed by the Michigan Court of Appeals in Woodington for the
purposes of this case.

                                                 9
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


and creating no express provision for the continuation of the right to take free gas. Lomree, on the

other hand, argues that the 1957 Lease incorporates by reference the free-gas right from the initial

contract in paragraph 15 by providing that “personal property used or obtained in connection” with

the wells installed under the 1946 Contract “shall be included in” the terms of the new contract.

Because gas becomes personal property once extracted from the ground under Michigan law, Eadus

v. Hunter, 

, 325 (Mich. 1934), any stored gas “used or obtained in connection” with

the wells installed pursuant to the prior lease—i.e., the free gas used by the properties—would also

be included in the terms of the new lease, R. 28 (D. Ct. Op. & Order at 11-12) (Page ID #410-11).

        Pan Gas argues that Lomree’s interpretation is unreasonable for several reasons: (1)

providing stored gas in paragraph 15 would contradict the language in paragraphs 4 and 5 that the

annual rental fee would constitute “payment in full” for the storage rights; (2) providing stored gas

would conflict with the language in the Natural Gas Conveyance explicitly excluding royalty

payments and releasing all interest in natural gas; (3) the initial free-gas right is not personal property

and therefore cannot be incorporated into the 1957 Lease. None of these arguments renders

Lomree’s position unreasonable.

        As the district court correctly observed, the “full payment” language in paragraph 4 cannot

be exclusive because paragraph 5 itself supplements the possible payment received. R. 28 (D. Ct.

Op. & Order at 15) (Page ID #414). Pan Gas’s reading renders paragraph 5 surplusage, which we

will not do. 

(“[C]ourts must also give effect to every word, phrase, and

clause in a contract and avoid an interpretation that would render any part of the contract surplusage

or nugatory.”).

                                                    10
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


       Nor does Lomree’s interpretation contradict the Natural Gas Conveyance, which eliminated

the families’ right to any royalty payments. As the district court noted, the usage of stored gas would

not be a “royalty interest” under Michigan law. R. 28 (D. Ct. Op. & Order at 16) (Page ID #415)

(citing People v. Blankenship, 

, 921 (Mich. 1943)). On appeal, Pan Gas merely repeats

its argument that the Natural Gas Conveyance extinguished the right to royalties and makes no effort

to explain why using stored gas would be considered a royalty interest under Michigan law. Pan

Gas’s argument that the Natural Gas Conveyance, which exercised the option to purchase all of the

natural gas “then-remaining” below the families’ land, somehow independently released the families’

contractual interest in using free gas on the property is unsupported by the plain terms of that

agreement.

       As for whether the stored gas is personal property, Pan Gas advances several reasons why

the stored gas should not be considered as personal property under paragraph 15. Pan Gas admits

that Michigan law views stored gas as personal property. Appellant Br. at 24. Pan Gas argues,

however, that the doctrine of ejusdem generis precludes defining personal property in this contract

as including stored gas. 

The doctrine instructs that when “general words follow a

designation of particular subjects, the meaning of the general words will ordinarily be presumed to

be and construed as restricted by the particular designation and as including only things of the same

kind, class, character or nature as those specifically enumerated.” Sands Appliance Servs., Inc. v.

Wilson, 

, 247 (Mich. Ct. App. 2000) (internal quotation marks omitted). Pan Gas


       5
        Lomree argues that we should not consider this argument because it was raised for the first
time on appeal. Because we are unpersuaded by it, we need not decide whether it was forfeited.

                                                  11
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


offers its own list of specific terms that it deems comparable to “wells,” but the contract itself lists

no specific examples. The plain meaning of the words “wells and any personal property,” R. 22-2,

Ex. 1 (1957 Contract ¶15) (Page ID #216) (emphasis added), places no categorical limitation on the

personal property included. Pan Gas claims that this clause was likely included solely to ensure that

the wells and equipment that Pan Gas installed on Lomree’s land would not become Lomree’s

property upon termination of the initial contract, but Pan Gas points to nothing in the plain meaning

of the words that mandates this narrow interpretation.

        Pan Gas also argues that the initial free-gas clause was a covenant running with the land,

preserving either access to existing gas as a royalty interest or a reservation of a mineral interest, and

was therefore an interest in real property expiring once the existing gas ran dry. Unlike other

jurisdictions, however, Michigan has not held that free-gas clauses constitute covenants running with

the land. We agree with the district court that “[t]he fact that courts outside of Michigan have treated

free gas clauses as covenants running with the land and therefore interests in real property does not

make the contracts any more clear.” R. 28 (D. Ct. Op. & Order at 13) (Page ID #412) (footnote

omitted). Absent some indication that the parties intended to contract under the laws of Kentucky

or Texas, we see no reason to apply their laws to ascertaining the plain meaning of this Michigan

contract. And given that the 1946 contract did not identify the free gas as a royalty payment or as

a reservation of a mineral interest, these arguments do not render unreasonable Lomree’s

interpretation of the contract terms. We agree with the district court that the relevant provisions in

the contracts at issue are ambiguous.



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No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


B. The Evidence of Intent is Disputed

        Having determined that the district court did not err in deeming the contracts ambiguous, we

must next turn to whether it was error to resolve the ambiguity in favor of Lomree on summary

judgment. As a procedural matter, we need not decide whether the district court abused its discretion

in granting summary judgment sua sponte, because on de novo review of the merits, we hold that

summary judgment was inappropriate in this case. The disputed material fact is whether the parties

intended the contracts to provide for free gas beyond 1957. Under Michigan law, the party asserting

either the existence of rights under a contract or the purported breach of a contract, here Lomree,

bears the burden of proof at trial. Associated Indem. Corp. v. Dow Chem. Co., 

, 804

(6th Cir. 1991). Because Lomree would have the burden of proof at trial to establish that the parties

intended the interpretation offered by Lomree, Lomree needed to have put forth credible,

uncontroverted evidence that would establish by a preponderance of the evidence that Lomree’s

interpretation of the contract was the one intended by the parties. This is a high hurdle, and we

cannot say as a matter of law that Lomree has met that burden at this stage.

        When the intent of the parties cannot be ascertained from the language of the contract itself,

“the next best way to determine the parties’ intent is to use relevant extrinsic evidence.” 

(emphasis omitted). In Michigan, relevant extrinsic evidence that may bear on the

parties’ intent includes the “parties’ conduct, the statements of its representatives, and past practice.”

. Certainly, Lomree presented some extrinsic evidence in support of its

interpretation of the contract. The evidence is uncontroverted that for over fifty years, Pan Gas and

its predecessor permitted the properties in question to use gas free of charge. “[O]ne of the best

                                                   13
No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


indications of [the parties’] intent” is “[t]he practical interpretation given to contracts by the parties

to them, while engaged in their performance and before any controversy has arisen concerning

them.” 

(internal quotation marks omitted). But this alone is not enough to entitle Lomree

to a judgment as a matter of law at trial. A reasonable fact finder could decide to place little weight

on Pan Gas’s past performance if it found Pan Gas’s interpretation of paragraph 15 to be the more

reasonable one.6 Because Lomree’s uncontroverted evidence is insufficient on its own to entitle it

to a judgment as a matter of law at trial, we hold that summary judgment was inappropriate in this

case.

        If at trial the evidence remains insufficient to ascertain the parties’ intent, the fact finder

could then correctly apply the doctrine of contra proferentem in such circumstances.7 The doctrine

requires construing a contract against the drafter, here Pan Gas’s predecessor, when the parties’

intent is still unclear after reviewing all the evidence. NILAC 

(citing 

). But because it is too early to say what weight a reasonable fact finder might

place on the extrinsic evidence offered by Lomree, summary judgment in favor of Lomree was

inappropriate in this case.




        6
         Pan Gas also claims that other potential extrinsic evidence could be dispositive, such as
when the gas fields were first used as storage fields. See Appellant Br. at 37. We find it difficult
to credit such statements, however, because Pan Gas made no effort to identify any evidence that
would support its position on that question, either on appeal or below.
        7
            We take no position on the issue of who should be the fact finder in this case, a judge or a
jury.

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No. 11-2132, Lomree, Inc. v. Pan Gas Storage, LLC


                                    V. CONCLUSION

       For the aforementioned reasons, we REVERSE the district court’s grant of summary

judgment and REMAND for further proceedings.




                                            15