ECM, Inc. v. Placer Dome U.S., Inc.

ORDER

Appellant’s Petition for Rehearing is GRANTED and the memorandum disposition, filed September 13, 2001, is WITHDRAWN. The Clerk of the Court is directed to file the attached memorandum disposition.

MEMORANDUM *

ECM, Inc. (“ECM”) appeals the district court’s grant of Placer Dome U.S.’s (“Placer Dome”) second motion for summary judgment. ECM argues that Placer Dome, by way of Placer Dome’s agreement with Royal Gold, Inc. (“Royal”), became either a tenant in common or an equitable owner of ECM’s lease with Royal. ECM further contends that as a tenant in common or equitable owner of the ECM/Royal *822 lease, Placer Dome was subject to and breached covenants of that lease including the Area of Interest (“AOI”) provision, the covenant of good faith and fair dealing, and a disclosure obligation. We have jurisdiction pursuant to 28 U.S.C. § 1291 .

We, like the district court, assume for the purpose of this analysis that Placer Dome became either a tenant in common or an equitable owner in the ECM/Royal lease and as such is potentially subject to the covenants of that lease.

ECM argues that Placer Dome’s conduct breached the ECM/Royal lease’s AOI provision. We agree with the…