Opposition Brief — SHR Ltd. Partnership v. Mercury Exploration Co.

(2)

a 7 Supreme Court. Ul al

No. 03-1086 ee

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

¢

SHR LIMITED PARTNERSHIP,

a West Virginia limited partnership,

Petitioner,

v.

MERCURY EXPLORATION CO., a Texas corporation _

and

DOMINION RESERVES, INC., a Michigan corporation

and

QUICKSILVER RESOURCES, INC.,

a Delaware corporation,

Respondents.

4

On Petition For Writ Of Certiorari

To The Michigan Court Of Appeals

¢

OPPOSITION OF MERCURY EXPLORATION CoO.,

DOMINION RESERVES, INC., and

QUICKSILVER RESOURCES, INC.

TO PETITION FOR WRIT OF CERTIORARI

¢

JAMES R. NEAL

(Michigan Bar No. P24265)

GARY L. FIELD

(Michigan Bar No. P37270)

Counsel of Record

MICHAEL C. RAMPE

(Michigan Bar No. P58189)

LOOMIS, EWERT, PARSLEY

Davis & GOTTING, P.C.

232 S. Capitol Ave., Suite 1000

Lansing, MI 48933

(517) 482-2400

Attorneys for Respondents

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

IT.

COUNTER-STATEMENT OF

QUESTIONS PRESENTED

WHEN THE MICHIGAN COURT OF APPEALS

CONCLUDED THAT THE PARTIES’ PRECEDES-

SORS HAD ALREADY LITIGATED THE ISSUES

INVOLVED, AND THUS AFFIRMED THE DIS-

MISSAL OF THE CASE BASED ON THE DOC-

TRINE OF RES JUDICATA, DID THE COURT

DEPRIVE PETITIONER OF SOME CONSTITU-

TIONAL RIGHT?

WHERE PETITIONER ACKNOWLDGED THAT THE

PARTIES’ PREDECESSORS IN INTEREST HAD

PREVIOUSLY LITIGATED CASES INVOLVING

THE SAME ISSUES AS IN THE PRESENT CASE,

WAS PETITONER WITHOUT NOTICE THAT IT

MAY HAVE TO ADDRESS ISSUES OF RES JUDI-

CATA?

ii

CORPORATE DISCLOSURE STATEMENT

In accordance with United States Supreme Court Rule

29.6, respondents make the following Disclosures:

(1) Quicksilver Resources, Inc. has no par-

ent corporation, nor does any publicly held com-

pany hold more than 10% of the stock of

Quicksilver Resources, Inc.

(2) The direct parent of Dominion Reserves,

Inc., is Dominion Energy, Inc. The parent of Do-

minion Energy, Inc. is Dominion Resources, Inc.

No publicly held company holds more than 10%

of the stock of Dominion Reserves, Inc.

(3) The parent company of Mercury Explo-

ration Co. is Mercury Production Company, a

Texas corporation. Neither Mercury Exploration

Co. nor Mercury Production Company are pub-

licly traded. No publicly held corporation owns

more than 10% of the stock of Mercury Explora-

tion Co.

ili

TABLE OF CONTENTS

Page

COUNTER-STATEMENT OF QUESTIONS PRE-

Lisa dinieyaiephivnesivensuekeveseuscnnbatnebiieenh i

CORPORATE DISCLOSURE STATEMENT ............ ii

PE PE ROE FEW NEE EBM os vse cescsssecsesssreesenesansvonenses iv

RESPONSE OF MERCURY EXPLORATION CO.,

DOMINION RESERVES, INC., AND QUICKSIL-

VER RESOURCES, INC. TO PETITION FOR

A GE PP REEE ce snccesnscesccsssossnconneesncesessnss 1

I. COUNTER-STATEMENT OF THE CASE..... 1

Bh IEE, os. cenngunonstcsssescbsnsnnuccsevesessonssssoncens 4

A. The Michigan Court of Appeals Properly

Affirmed the Trial Court’s Grant of

Summary Disposition in Respondents’

I ar lncal alhnusiandendisiknreenuacendcudasuneeus 4

B. The Petition Sets Forth Absolutely No

Cognizable Claim for a Deprivation of

Due Process or Equal Protection............. 8

SEIT sxvicnscvavoveseesericecersssessusesciersecssee 12

iv m

TABLE OF AUTHORITIES

Page

CASES |

Brown v. Drake-Willock International, Ltd., 209 |

Mich. App. 136, 530 N.W.2d 510 (1997) ....... eee 11

County of Saginaw v. John Sexton Corp. of Mich.,

232 Mich. App. 202, 591 N.W.2d 52 (1998) ................... 11

Magnum Import Co. v. Coty, 262 U.S. 159, 43 S. Ct.

Seg WOE Sp. Hei UNE GI Ps cicnccaeseninconicencosinessnacaniennschinisen 11

Miller v. Inglis, 223 Mich. App. 159, 567 N.W.2d

A ED borsntvncisennanbaunconenndabanceaeuapanntndcindvdaaconemnieniannens 11

Moore v. Wicks, 184 Mich. App. 517, 458 N.W.2d

Be I cs eet icestsapianniec dette nscianaidosnan Mastomnsenadianeasmasunteedaa 10

Pierson Sand & Gravel, Inc. v. Keeler Brass Co.,

460 Mich. 372, 596 N.W.2d 153 (1999)................cc00e 9, 10

i

Postal Telegraph Cable Co. v. Newport, 247 U.S. |

464, 38S. Ct. 566, 62 L. Ed. 1215 (1918)...........00.00.0.... 5

Rice v. Sioux City Memorial Park Cemetery, 349

U.S. 70, 75S. Ct. 614, 99 L. Ed. 897 (1955).................. 11

Southern Pacific R. Co. v. United States, 168 U.S. 1,

BSD. Ge. 1G, SE he, BR. BE CIE acerccocesanseconensnscereossovanens 8

United States v. Munsingwear, Inc., 340 U.S. 36, 71

CR. FG, GS La Bee, Fe CD iccccccovsesvscencvcnversensesesesees 6,7

|

RULES | |

Michigan Court Rule 2.111(F)(3)(a) .0........cceceeeeeceeesseeneees 10 |

Michigan Court Rule 7.216(a)(7).............sscccccsssscsessreeeeeens 11

PERCE CHOATE TEND FB vnc csccninsesccsnnesssaveissoncnesansensensessoss 6 |

Re i if . | 6 |

TABLE OF AUTHORITIES — Continued

Page

rrp ene Clea BI TD asses cescncenicensteoisentcteceneomnpeabennaia 12

Brppremne Court FUG 2G. ..05isccsssssesidssnrsscessontnisseienivenhunsinnenens 1

OTHER AUTHORITIES

46 Am. Jur. 2d Judgment, § S86 ............cccsecscocssesssssecssorssess 6

SD C.D. SO, FG oinviisncsccseeentrcieteienemameninats 6

1

RESPONSE OF MERCURY EXPLORATION CO.,

DOMINION RESERVES, INC., AND

QUICKSILVER RESOURCES, INC. TO

PETITION FOR WRIT OF CERTIORARI

Pursuant to United States Supreme Court Rule 15,

Respondents Mercury Exploration Co., Dominion Re-

serves, Inc., and Quicksilver Resources, Inc. (Respondents)

hereby submit this brief in opposition to the Petition for a

Writ of Certiorari.

I. COUNTER-STATEMENT OF THE CASE

As reflected in its Petition for Certiorari (Petition),

Petitioner SHR Limited Partnership (Petitioner) appealed

an order of the Otsego (Michigan) Circuit Court denying

its motion for summary disposition and granting Respon-

dents’ motion for summary disposition. In an order dated

December 6, 2002, the Michigan Court of Appeals correctly

affirmed the circuit court order. The Michigan Court of

Appeals affirmed the circuit court on the ground that an

order issued by Crawford (Michigan) Circuit Judge Porter

in a prior litigation barred Petitioner from relitigating the

same claim (Petition Appendix A). Other grounds also

existed to affirm the circuit court’s decision, which other

grounds the Michigan Court of Appeals did not address in

light of its reliance on principles of res judicata.

Following the issuance of the Michigan Court of

Appeals’ Order, Petitioner, on December 20, 2002, filed a

Motion for Rehearing in the Michigan Court of Appeals,

asserting that a settlement agreement between the par-

ties’ predecessors “nullified” the Crawford Circuit Court

order on which the Michigan Court of Appeals had relied

in applying res judicata (Plaintiff-Appellant’s Brief on

Appeal to the Michigan Court of Appeals, p. 23). The court

denied Petitioner’s motion in an order dated January 16,

2003. Thereafter, Petitioner filed an Application for Leave

to Appeal to the Michigan Supreme Court, which the court

denied in an order dated July 28, 2003 (Petition Appendix

C). Petitioner filed for reconsideration of the denial, which

Michigan Supreme Court denied on October 31, 2003

(Petition Appendix D).

Thus, all the courts below denied Petitioner any relief.

Nevertheless, Petitioner now seeks a writ of certiorari

from this Court on the theory that the Michigan Court of

Appeals, in applying the doctrine of res judicata, somehow

violated its constitutional right of due process and equal

protection. As fully explained below, the Petition falls far

short of providing any “compelling reasons,” in accordance

with Supreme Court Rule 10, for this Court to exercise its

discretionary review. The Petition fails to set forth even

rudimentary claims for a violation of the Due Process and

Equal Protection Clauses. Therefore, this Court should

deny certiorari.

The Petition provides scant or misleading information

about how and why the controversy arose, and Respon-

dents dispute critical facts contained in the Petition and

set forth as follows:

1. The Micmgan Court of Appeals never stated

that the trial court’s reasoning was wrong

(Petition, p. 2). The court stated that,

“[t]hough the trial court gave a different ex-

planation for its decision, our conclusion

merely provides an alternative ground for af-

firming” (Petition Appendix, p. 4a).

3

Respondents did not begin deducting post-

production costs from Petitioner’s royalty

interests “in contravention of the settlement

agreement” (Petition, p. 4). The parties’

predecessors entered a settlement agreement

in 1985 after Crawford Circuit Judge Porter

decided in favor of Respondents’ predecessor.

Both parties to this case later acquired their

respective interests under the disputed

leases as a result of various assignments.

Respondents did not become aware of the

settlement agreement until after the Peti-

tioner commenced the instant litigation. The

settlement agreement was never recorded

with the register of deeds, and so subsequent

interest holders were never apprized of its

existence. Accordingly, Respondents deducted

post-production costs in accordance with

Judge Porter’s order and in accordance with

the terms of the oil and gas lease.

Petitioner’s description of the 1985 settle-

ment agreement is misleading. The 1985

settlement agreement actually supports Re-

spondents’ treatment of post-production

costs, and was largely consistent with Judge

Porter’s order.

Petitioner brought the 1983 Litigation to the

attention of the Michigan Court of Appeals.

See Plaintiff-Appellant’s Brief on Appeal to

the Michigan Court of Appeals, p. 22. Thus,

the issue of res judicata was properly before

the Michigan Court of Appeals, because the

Petitioner itself brought the prior litigation

to the court’s attention.

After extensive questioning of Petitioner’s

counsel on the issue of res judicata, the

4

Michigan Court of Appeals rejected Peti-

‘ioner’s positions, and reached the conclusion

that Judge Porter’s Order barred Petitioner

from relitigating the same claim.

6. The Michigan Court of Appeals in the previ-

ous litigation did not enter a consent judg-

ment, nor did the court vacate Judge Porter’s

Order. In the previous litigation, the court

did not review or approve the settlement

agreement in any manner. See Petition Ap-

pendix, pp. 16a-17a. ,

7. The Michigan Court of Appeals order dis-

missing the appeal of the 1983 Litigation is

not a judgment (Petition, p. 11). The clerk of

court, rather than a judge, signed the order.

Further, the order of dismissal did not men-

tion the settlement agreement; it merely ac-

knowledged the existence of a stipulation

agreeing to the dismissal of the appeal, and

then dismissed the appeal with prejudice

and without costs.

II. ARGUMENT

A. The Michigan Court of Appeals Properly

Affirmed the Trial Court’s Grant of Sum-

mary Dispositior in Respondents’ Favor.

Petitioner characterizes the Michigan Court of Ap-

peals’ application of res judicata as a “vicious abrogation”

of its constitutional rights of due process and equal protec-

tion (Petition, p. 8). Petitioner argues that the Michigan

Court of Appeals erred in applying the doctrine of res

judicata.

Petitioner correctly notes that a state court’s applica-

tion of res judicata may not be so extreme as to be incon-

sistent with the Federal Constitution. See Postal Tele

graph Cable Co. v. Newport, 247 U.S. 464, 476, 38 S. Ct.

566, 570-71, 62 L. Ed. 1215 (1918). However, nothing in

Court of Appeals’ orders supports the position that the

court applied res judicata in an “extreme” or “vicious”

manner, or that it was inconsistent with the United States

Constitution. The court found that in the 1983 Litigation,

(consisting of the consolidated cases of North Michigan

Land & Oil Corp. v. Shell Oil Co., Crawford County,

Michigan Circuit Court Case No. 80-004-292CA and

Nelson v. Shell Oil Co., Crawford County, Michigan Circuit

Court Case No. 80-004-294), Petitioner and Respondents’

predecessors in interest already litigated the over-arching

issue in this case — whether post-production costs were

deductible from royalties under the terms of the lease

agreement. The trial court in the 1983 Litigation decided

this issue on the merits, and the trial court’s decision was

final. See Petition Appendix, pp. 2a-4a.

Petitioner claims that Judge Porter’s Order was not a

final order. Alternatively, Petitioner claims that Judge

Porter’s Order should be deemed vacated, because it was

neither affirmed nor reversed by the Michigan Court of

Appeals (Petition, p. 9). In so arguing, however, Petitioner

has twisted simple facts to give the wrong impression that

the Michigan Court of Appeals should have ignored the

trial court’s order in the previous litigation and given res

judicata to its own clerical order dismissing the appeal of

Judge Porter’s prior ruling. Petitioner claims that, in the

prior litigation, the Michigan Court of Appeals’ order

dismissing the 1983 Litigation was the final order/

judgment in the case (Petition, p. 11). In fact, however, the

order dismissing the appeal by Petitioner’s predecessor

was not a court order; rather, it is an order by the clerk.

6

See Petition Appendix, p. 17a; MCR 7.218. Nor did the

clerk’s order, as Petitioner claims (p. 11), incorporate the

settlement agreement. It merely acknowledged that the

voluntary dismissal was entered because of the stipulation

to dismissal pursuant to Michigan Court Rule 7.218(B).

In deciding Petitioner’s appeal in the present case, the

Michigan Court of Appeals correctly noted that the settle-

ment agreement in the previous litigation was not a

consent judgment (Petition Appendix, p. 3a, fn. 1). By

arguing that the settlement agreement “implicitly va-

cated” Judge Porter’s Order (Petition, p. 9), Petitioner is

asking this Court to conclude that private parties’ settle-

ment agreements can retroactively vacate a trial court

order. Petitioner provides absolutely no support for such a

proposition, and its contention is simply not logical. The

Michigan Court of Appeals’ decision conforms to the well-

settled law that a judgment has obtained finality after an

appeal has been taken but dismissed. See 46 Am. Jur. 2d

Judgment, § 585; 50 C.J.S. Judgment, § 640.

In fact, this Court has held that, when a party acqui-

esces to the dismissal of an appeal, the lower court judg-

ment is binding and entitled to res judicata effect. See

United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71

S. Ct. 104, 106, 95 L. Ed. 36 (1950). In that case, this

Court concluded that a prior judgment is conclusive

against a party, even if the matter determined against him

becomes moot:

The general principle announced in numerous

cases is that a right, question, or fact distinctly

put in issue, and directly determined by a court

of competent jurisdiction, as a ground of recovery,

cannot be disputed in a subsequent suit between

the same parties or their privies; and even if the

second suit is for a different cause of action, the

7

right, question or fact once so determined must,

as between the same parties or their privies, be

taken as conclusively established, so long as the

Judgment in the first suit remains unmodified.

[Munsingwear, Inc., supra, 340 U.S. at 38 (em-

phasis added).]

In Munsingwear, supra, this Court rejected the

United States’ argument that “those who have been

prevented from obtaining review to which they are entitled

should not be treated as if there had been a review.” Id. at

39. In Munsingwear, the United States government lost its

case at the federal district court level, appealed, and later

acquiesced in the dismissal of its appeal on the grounds of

mootness, without seeking to vacate the adverse district

court order. This Court held that res judicata barred the

government from re-litigating the issue. Jd. at 40.

The same result should obtain in this case. Peti-

tioner’s predecessor exercised its right of appeal, and then

voluntarily reached a settlement agreement with Respon-

dents’ predecessor and withdrew the appeal without

disturbing the lower court’s order in any manner. Thus,

the circuit court orders in the 1983 Litigation remain

intact and unmodified, and the Michigan Court of Appeals

properly barred Petitioner from re-litigating the claims.

Petitioner’s public policy argument that the Michigan

Court of Appeals’ application of res judicata in the instant |

case will have “a disastrous effect on settlement” (Petition,

p. 12) has no merit. This argument incorrectly assumes

that, because of possible res judicata issues in the future,

parties will be confused over whether they should settle.

The law of Michigan and this Court is clear regarding the

res judicata effect of settling a case after a court has ruled

on the merits, and there is no reason to believe that

8

counsel for settling parties cannot take this law into

account in fashioning their settlement.

This case falls squarely within the classic state of the

rule of res judicata in Southern Pacific R. Co. v. United

States, 168 U.S. 1, 48-49, 18 S. Ct. 18, 27, 42 L. Ed. 355

(1897) that “the right, question or fact once so determined

must, as between the same parties, or their privies, be

taken as conclusively established, so long as the judgment

in the first suit remains unmodified.” The Michigan Court

of Appeals in the previous litigation did not review the

settlement agreement, nor did it rule on the trial court’s

order. Nothing indicates that the trial court’s order has

been modified. The Petition simply provides no basis for

this Court to devote its resources to revisit settled law.

Certainly, no compelling issue of law has been raised.

B. The Petition Sets Forth Absolutely No

Cognizable Claim for a Deprivation of

Due Process or Equal Protection

Petitioner’s second attack on the Michigan Court of

Appeals is that the court applied res judicata in a sua

sponte manner, and thus deprived Petitioner of the oppor-

tunity to be heard (Petition, p. 12). This contention like-

wise has no merit.

One of Petitioner’s positions before the Michigan

Court of Appeals was that the settlement agreement

nullified Judge Porter’s Order. The court rejected the

argument because the settlement agreement was not a

consent judgment, i.e, it was not signed by the circuit

court (Petition Appendix, p. 3a, fn. 1). In light of the

existence of the judgments in the 1983 Litigation, the

9

court found it “abundantly clear” that it needed to address

the doctrine of res judicata (Petition Appendix, p. 3a).

Petitioner makes a glaring misstatement when it

claims that

[RJjes judicata wes first raised sua sponte by

the Michigan Court of Appeals. No notice was

given that petitioner would be called upon to de-

fend against the assertion of res judicata. [Peti-

tion, p. 4.]

In fact, Petitioner raised the issue of res judicata first.

In its Appellate Brief, Petitioner brought to the court’s

attention that the consolidated cases decided by Judge

Porter involved its predecessor in interest. See Plaintiff-

Appellant’s Brief on Appeal to the Michigan Court of

Appeals, p. 22. The trial court likewise acknowledged that

this case was previously litigated by the parties’ predeces-

sors (Petition Appendix, p. 3a). Petitioner took the position

that the settlement agreement reached by the predeces-

sors “nullified” trial court’s decision. Id. at 23. Thus,

Petitioners attempt to create the impression that the

court’s ruling was a surprise is simply off base.

Petitioner asserts that the Michigan Court of Appeals

erred in decidi¢ the appeal as it did because, according to

Petitioner, Resp idents waived the right to raise the issue

(Petition, p. 12). Petitioner then argues that the sua sponte

interjection of the affirmative defense violated its constitu-

tional rights to due process and equal protection (Id.). The

doctrine of res judicata is a judge-made rule to relieve the

Parties’ of the cost and inconvenience of multiple suits, to

conserve judicial resources, and to preserve the precedence

of previous adjudications. See Pierson Sand & Gravel, Inc.

v. Keeler Brass Co., 460 Mich. 372, 380, 596 N.W.2d 153,

10

157 (1999). The Michigan Supreme Court does not deem

res judicata as “a constitutional mandate that must be

carefully construed to maintain its integrity, but only a

tool created by the courts.” Jd. at 382. Indeed, the Michi-

gan Court Rules do not even list res judicata as an af-

firmative defense. See Michigan Court Rule 2.111(F)(3)(a).

Thus, Petitioner’s “waiver” theory is highly doubtful.

Michigan law provides that neither parties nor their

privies can relitigate a claim when the parties have fully

litigated the claim and a final judgment has resulted.

Moore v. Wicks, 184 Mich. App. 517, 520, 458 N.W.2d 653,

654 (1990). In the instant case, Petitioner raised the issue

of res judicata, contending that the settlement agreement

reached after Judge Porter’s Order, which Petitioner

alleged was contrary to the Order, “nullified” Judge

Porter’s Order. See Plaintiff-Appellant’s Brief on Appeal, p.

23. The Michigan Court of Appeals considered the argu-

ment and reached the opposite conclusion that the prior

settlement agreements were never approved or signed by

the court, and therefore had no res judicata effect (Petition

Appendix, p. 2, fn. 1). Naturally following its conclusion on

the settlement agreements, the court found it “abundantly

clear” that Judge Porter’s Order continued to have res

judicata effect. Under these circumstances, the court

properly affirmed the lower court’s decision on alternative

ground of res judicata without reaching the issue whether

post-production costs were deductible from royalties.

Petitioner simply cannot credibly argue that the

Michigan Court of Appeals’ application of res judicata

violated its right of due process and equal protection when

Petitioner itself brought the 1983 Litigation to the court’s

attention. Moreover, even if Petitioner had not brought the

1983 Litigation to the court’s attention, Petitioner and its

11

attorney's knowledge of the 1983 Litigation, which in-

volved the same issues as in the present case, placed

Petitioner on constructive notice that the issue would

likely arise in the course of the present case. Thus, this

case is a far cry from the Petitioner’s example where a

person was imprisoned on charges of which he was never

informed (Petition, p. 16).

Tae Michigan Court of Appeals has repeatedly held

that it may address legal issues not addressed by the trial

court if all necessary facts have been presented to it. See

County of Saginaw v. John Sexton Corp. of Mich., 232

Mich. App. 202, 224, 591 N.W.2d 52, 62 (1998); Miller v.

Inglis, 223 Mich. App. 159, 168, 567 N.W.2d 253, 257

(1997); Brown v. Drake-Willock International, Ltd., 209

Mich. App. 136, 146, 530 N.W.2d 510, 515 (1997). Under

Michigan Court Rule 7.216(a)(7), the Michigan Court of

Appeals may “enter any judgment or order or grant

further or different relief as the case may require.” Thus,

the court’s decision to affirm the lower court on principles

of res judicata was quite in line with established proce-

dural rules in Michigan.

This Court’s discretionary jurisdiction is not for

intellectual and scholarly debate, nor for the benefit of the

particular litigants. Rice v. Sioux City Memorial Park

Cemetery, 349 U.S. 70, 74, 75 S. Ct. 614, 616, 99 L. Ed. 897

(1955) (citing Magnum Import Co. v. Coty, 262 U.S. 159,

163, 43 S. Ct. 531, 532, 67 L. Ed. 922 (1923)). This Court

has the duty to avoid decisions of constitutional issues

unless avoidance becomes evasion. Jd. Here, Petitioner’s

due process and equal protection arguments are meritless,

and this Court should refuse to entertain the Petition.

12

Finally, Petitioner’s “burden shifting” contention also

has no merit (Petition, p. 17). While it is true that a

defendant bears the evidentiary burden to establish its

defense, the Michigan Court of Appeals was in no manner

shifting any evidentiary burden to Petitioner. Rather, the -

court was merely allowing Petitioner to give its legal

opinion on the application of res judicata. Ironically,

having been given this opportunity, much of the Petition is

devoted to complaining that Petitioner did not have the

opportunity to address the res judicata issue. Because

Petitioner’s “equal protection” claim depends entirely on

this argument, Petitioner has absolutely failed to make a

cognizable argument for violation of the Equal Protection

Clause.

The Michigan Court of Appeals’ application of res

judicata was a proper alternative ground for affirming the

lower court’s decision. Petitioner’s dragging of Respondent

up to the United States Supreme Court, on the other hand,

could be seen as vexatious abuse of the judicial system

when Petitioner lost its argument in the state court and

then claimed deprivation of the opportunity to be heard on

that argument. Arguendo, even if there were any proce-

dural irregularities in the instant case, they fall far short

of any constitutional magnitude that would warrant this

Court exercising its discretionary power of certiorari.

Ill. CONCLUSION

This Court grants certiorari for “compelling reasons”

(Rule 10). The Petition cites no compelling reason for the

Court to grant certiorari in this case. Essentially, the

Petition merely reiterates its dissatisfaction with lower

state court rulings without showing any legitimate federal

constitutional issue. For all the reasons discussed above,

=

13

this Supreme Court should deny the petition for certiorari,

and allow the orders of all the Michigan courts to stand.

Respectfully submitted,

JAMES R. NEAL

- (Michigan Bar No. P24265)

GARY L. FIELD

(Michigan Bar No. P37270)

Counsel of Record

MICHAEL C. RAMPE

(Michigan Bar No. P58189)

LOOMIS, EWERT, PARSLEY

Davis & GOTTING, P.C.

232 S. Capitol Ave., Suite 1000

Lansing, MI 48933

(517) 482-2400

Attorneys for Respondents

Mercury Exploration Co.,

Dominion Reserves, Inc., and

Quicksilver Resources, Inc.