Francis Kaess v. BB Land, LLC
Court
West Virginia Supreme Court
Decided
June 6, 2025
Jurisdiction
S
Case Summary
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2025 Term _____________________ FILED June 6, 2025 No. 23-522 released at 3:00 p.m. C. CASEY FORBES, CLERK _____________________ SUPREME COURT OF APPEALS OF WEST VIRGINIA FRANCIS KAESS, Plaintiff Below, Petitioner, v. BB LAND, LLC, Defendant Below, Respondent. ___________________________________________________________ Certified Questions from the United States District Court for the Northern District of West Virginia The Honorable Thomas S. Kleeh, Chief Judge Civil Action No. 1:22-CV-51 CERTIFIED QUESTIONS ANSWERED _________________________________________________________ Rehearing Granted: December 31, 2024 Submitted Upon Rehearing: April 22, 2025 Filed: June 6, 2025 J. Anthony Edmond, Jr., Esq. Charles R. Bailey, Esq. Michael B. Baum, Esq. Bailey & Wyant PLLC Edmond & Baum, PLLC Charleston, West Virginia Wheeling, West Virginia Counsel for Petitioner Mike Seely, Esq. Jill M. Hale, Esq. Foley & Lardner LLP Joseph G. Nogay, Esq. Seltitti, Nogay and Nogay Weirton, West Virginia Mark T. Stancil, Esq. Willkie Farr & Gallagher, LLP Washington, DC Joseph L. Jenkins, Esq. Jay-Bee Companies Bridgeport, West Virginia Counsel for Respondent CHIEF JUSTICE WOOTON delivered the Opinion of the Court. JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case. JUDGE HARDY, sitting by designation JUSTICE WALKER dissents and reserves the right to file a separate opinion. JUSTICE BUNN dissents and reserves the right to file a separate opinion. JUSTICE TRUMP concurs and reserves the right to file a separate opinion. SYLLABUS BY THE COURT 1. “‘“A de novo standard is applied by this court in addressing the legal issues presented by a certified question[] from a federal district or appellate court.” Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).’ Syllabus Point 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).” Syl. Pt. 1, Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 706 S.E.2d 63 (2010). 2. “‘If an oil and gas lease provides for a royalty based on proceeds received by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in exploring for, producing, marketing, and transporting the product to the point of sale.’ Syl. Pt. 4, Wellman v. Energy Resources, Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001).” Syl. Pt. 3, SWN Prod. Co., LLC v. Kellam, 247 W. Va. 78, 875 S.E.2d 216 (2022). 3. “‘Language in an oil and gas lease that is intended to allocate between the lessor and lessee the costs of marketing the product and transporting it to the point of sale must expressly provide that the lessor shall bear some part of the costs incurred between the wellhead and the point of sale, identify with particularity the specific deductions the lessee intends to take from the lessor’s royalty (usually 1/8), and indicate the method of calculating the amount to be deducted from the royalty for such post- production costs.’ Syl. Pt. 10, Est. of Tawney v. Columbia Natural Res., LLC, 219 W. Va. i 266, 633 S.E.2d 22 (2006).” Syl. Pt. 5, SWN Prod. Co., LLC v. Kellam, 247 W. Va. 78, 875 S.E.2d 216 (2022). 4. “Language in an oil and gas lease that provides that the lessor’s 1/8 royalty (as in this case) is to be ca
Case Summary
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2025 Term
_____________________ FILED
June 6, 2025
No. 23-522 released at 3:00 p.m.
C. CASEY FORBES, CLERK
_____________________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
FRANCIS KAESS, Plaintiff Below, Petitioner,
v.
BB LAND, LLC, Defendant Below, Respondent.
___________________________________________________________
Certified Questions from the
United States District Court for the Northern District of West Virginia
The Honorable Thomas S. Kleeh, Chief Judge
Civil Action No. 1:22-CV-51
CERTIFIED QUESTIONS ANSWERED
_________________________________________________________
Rehearing Granted: December 31, 2024
Submitted Upon Rehearing: April 22, 2025
Filed: June 6, 2025
J. Anthony Edmond, Jr., Esq. Charles R. Bailey, Esq. Michael B. Baum, Esq. Bailey & Wyant PLLC Edmond & Baum, PLLC Charleston, West Virginia Wheeling, West Virginia Counsel for Petitioner Mike Seely, Esq. Jill M. Hale, Esq. Foley & Lardner LLP
Joseph G. Nogay, Esq.
Seltitti, Nogay and Nogay
Weirton, West Virginia
Mark T. Stancil, Esq.
Willkie Farr & Gallagher, LLP
Washington, DC
Joseph L. Jenkins, Esq.
Jay-Bee Companies
Bridgeport, West Virginia
Counsel for Respondent
CHIEF JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case.
JUDGE HARDY, sitting by designation
JUSTICE WALKER dissents and reserves the right to file a separate opinion.
JUSTICE BUNN dissents and reserves the right to file a separate opinion.
JUSTICE TRUMP concurs and reserves the right to file a separate opinion. SYLLABUS BY THE COURT
1. “‘“A de novo standard is applied by this court in addressing the legal
issues presented by a certified question[] from a federal district or appellate court.” Syl.
Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).’ Syllabus Point 2,
Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).” Syl. Pt. 1, Harper v. Jackson
Hewitt, Inc., 227 W. Va. 142, 706 S.E.2d 63 (2010).
2. “‘If an oil and gas lease provides for a royalty based on proceeds received
by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in
exploring for, producing, marketing, and transporting the product to the point of sale.’ Syl.
Pt. 4, Wellman v. Energy Resources, Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001).” Syl.
Pt. 3, SWN Prod. Co., LLC v. Kellam, 247 W. Va. 78, 875 S.E.2d 216 (2022).
3. “‘Language in an oil and gas lease that is intended to allocate between
the lessor and lessee the costs of marketing the product and transporting it to the point of
sale must expressly provide that the lessor shall bear some part of the costs incurred
between the wellhead and the point of sale, identify with particularity the specific
deductions the lessee intends to take from the lessor’s royalty (usually 1/8), and indicate
the method of calculating the amount to be deducted from the royalty for such post-
production costs.’ Syl. Pt. 10, Est. of Tawney v. Columbia Natural Res., LLC, 219 W. Va.
i
266, 633 S.E.2d 22 (2006).” Syl. Pt. 5, SWN Prod. Co., LLC v. Kellam, 247 W. Va. 78,
875 S.E.2d 216 (2022).
4. “Language in an oil and gas lease that provides that the lessor’s 1/8
royalty (as in this case) is to be ca
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Decided
Date Decided
June 6, 2025
Jurisdiction
S
Court Type
federal
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