FILED
United States Court of Appeals
Tenth Circuit

OCT 9 2001

PATRICK FISHER
Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICKS EXPLORATION, INC.,

	Plaintiff-Appellant,

v.

CROSS TIMBERS OIL COMPANY,

	Defendant-Appellee.
	Nos. 99-6370 and 00-6075
(Western District of Oklahoma)
(D.C. No. 98-CV-1470)	

ORDER AND JUDGMENT*

Before LUCERO, McKAY, and MURPHY, Circuit Judges. 

I.  INTRODUCTION
	Ricks Exploration, Inc. (“Ricks”) brought suit against Cross Timbers Oil Co. (“Cross Timbers”) in district court asserting, inter alia, various claims sounding in both contract and tort.  The district court granted summary judgment in favor of Cross Timbers on each of the contract and tort claims and also awarded it costs as the prevailing party under Federal Rule of Civil Procedure 54(d)(1).  Ricks appeals both orders.  This court exercises jurisdiction over these appeals pursuant to 28 U.S.C. § 1291 and Federal Rule of Civil Procedure 54(b) and affirms.

II.  BACKGROUND
	A.  Factual Background
	Those facts necessary to provide context to this appeal, stated in the manner most favorable to Ricks as the nonmoving party, are as follows.  This litigation centers upon the meaning of an Exploration Agreement entered into between Ricks and Southland Royalty Co. (“Southland”).  At the time of the execution of the Exploration Agreement, Southland owned unproven oil and gas leasehold interests covering large tracts of land in Texas County, Oklahoma.  Upon learning of Southland’s interests in the leaseholds, Ricks approached Southland about the possibility of establishing a drilling program whereby Ricks would drill for gas or oil and, if successful, earn the rights to certain acreage within Southland’s leaseholds.  In return, depending on whether Southland chose to participate in the drilling of any particular well and the extent of its participation, Southland would retain a twenty percent overriding royalty interest, a fifty percent interest in the well itself, or something in between.  After lengthy negotiations and the exchange of numerous drafts, Ricks and Southland reached the agreement embodied in the Exploration Agreement.
	The Exploration Agreement identified six different prospect areas, denominated Prospect A through F, within which Ricks could initiate drilling operations.  The dispute in this case relates to the rights Ricks acquired based upon its drilling operations in Prospect A.  Prospect A is comprised of sections 22, 26, 27, 34, and 35.  Under the Exploration Agreement, Ricks was to drill an Initial Test in section 27.  If the Initial Test were capable of producing oil or gas in commercial quantities and Southland did not participate in the drilling, Ricks would earn a full interest in section 27 and an assignment of fifty percent of Southland’s rights in eight adjacent spacing units.  The Exploration Agreement provided that the parties were to reach “mutual consent” as to which eight adjacent spacing units Ricks would earn.
	As contemplated by the Exploration Agreement, Ricks ultimately drilled its Initial Test on Prospect A in section 27.  Because the Initial Test produced gas in commercial quantities and because Southland had not participated in the drilling of the initial test, Ricks earned 100% of Southland’s rights in section 27.  In addition, Ricks earned a fifty percent interest in the following eight 160-acre quarter-sections (i.e. gas well spacing units): the southwestern and southeastern quarter-sections of section 22, the northwestern and southwestern quarter-sections of section 26, the northwestern and northeastern quarter-sections of section 34, and the northwestern and northeastern quarter-sections of section 35.
	The Exploration Agreement also contemplated that Ricks could earn additional acreage by drilling Development Wells on land it earned through the drilling of the Initial Test.  Under the provisions of the Exploration Agreement relating to Development Wells, for every Development Well drilled which produces the requisite amount of oil or gas, Ricks “shall have the right . . . to extend the field beyond the limits of the acreage earned by the drilling of a particular Initial Test, one drilling and spacing unit at a time (whether within or outside the boundaries of a Prospect).”  In 1997, after Cross Timbers succeeded to Southland’s position in the Exploration Agreement, Ricks drilled or participated in the drilling of conforming Development Wells in the northern half of Section 34 and the southern half of section 22.  Accordingly, pursuant to the terms of the Exploration Agreement, Cross Timbers conveyed to Ricks a fifty percent interest in the northern half of section 22 and the southern half of section 34.
	The trouble at the heart of this dispute began when Ricks asserted the right to drill wells on section 3.  Section 3 is outside of Prospect A, lying directly south of Section 34.  During a series of discussions in the fall of 1998, representatives of Cross Timbers asserted that the Exploration Agreement prohibited the drilling of wells on section 3 because any such well would not qualify as either a Development Well or a Extension Well.  Cross Timbers further indicated that it intended to drill its own well on section 3.  For its part, Ricks asserted that paragraph 12 of the Exploration Agreement, the paragraph relating to Extension and Development Wells, gave it the absolute right to extend to the field to spacing units both inside and outside of Prospect A as necessary to fully develop any gas or oil field discovered through its drilling operations.
	B.  Procedural Background
	On October 20, 1998, Ricks filed a complaint in district court seeking the following two forms of declaratory relief: (1) a declaration that the Exploration Agreement gave it the right to drill a well on section 3; and (2) a declaration that Cross Timbers had elected not to participate in the drilling of the well in section 3 proposed by Ricks.  Two days later, Ricks filed a motion for a preliminary injunction, asking the district court to enjoin Cross Timbers from drilling its own proposed well in section 3.  After the district court denied Ricks’ request for a preliminary injunction, Ricks filed an amended complaint asserting, inter alia, two contract claims and four tort claims.  In its contract-based causes of action, Ricks asserted as follows: (1) Cross Timbers had breached the Exploration Agreement by refusing to recognize Ricks’ exclusive right to drill in sections 3 and 15; and (2) assuming the Exploration Agreement as drafted did not give Ricks the exclusive right to drill in sections 3 and 15, the contract should be reformed on the ground that it contained a mutual mistake.  Ricks further alleged the following four tort-based causes of action: (1) Cross Timbers had breached its fiduciary duty to Ricks by hindering Ricks’ ability to earn additional acreage under the Exploration Agreement; (2) Cross Timbers’ drilling activities in section 15 amounted to a bad faith trespass; (3) Cross Timbers’ conduct with regard to sections 3 and 15 violated the implied covenant of good faith and fair dealing; and (4) Cross Timbers had tortiously interfered with Ricks’ prospective economic relationships.
	After Ricks filed its amended complaint, both parties filed cross motions for summary judgment.  In their respective motions for summary judgment, each party asserted that the Exploration Agreement was unambiguous.  For its part, Ricks asserted paragraph 12 of the Exploration Agreement established its own definition of an Extension Well, independent of the definition set out in paragraph 2(c), and that the definition in paragraph 12 did not contain an adjacency limitation.  Ricks further asserted that its reading of paragraph 12 was supported by the circumstances surrounding the formation of the Exploration Agreement.  In any event, Ricks asserted that even assuming the adjacency limitation set out in paragraph 2(c) did apply to paragraph 12, adjacent does not necessarily mean contiguous or touching.  In its separate motion for summary judgment, Cross Timbers asserted that unless the definition of Extension Well in paragraph 2(c) of the Exploration Agreement applied to paragraph 12, it would not apply anywhere in the agreement because paragraph 12 was the only portion of the Exploration Agreement dealing with Extension Wells.  Cross Timbers further asserted that the four corners of the Exploration Agreement and the circumstances surrounding its formation, considered either singly or in combination, demonstrated that the adjacency requirement set out in paragraph 2(c) required that Extension Wells only be drilled on land contiguous to acreage earned by the drilling of the Initial Test.  Finally, Cross Timbers asserted that Ricks’ mutual mistake claim failed because the Exploration Agreement was unambiguous and that each of Ricks’ tort claims failed because the agreement did not create a fiduciary relationship and did not provide Ricks any rights in sections 3 and 15.
	Upon consideration of the parties’ submissions, the district court granted summary judgment in favor of Cross Timbers.  As to the contract claim, the district court concluded that language of the Exploration Agreement, considered in light of the circumstances surrounding its execution, unambiguously required that Extension Wells be drilled on lands contiguous to lands earned through the drilling of the Initial Test.  Because it concluded that the Exploration Agreement was unambiguous, the district court concluded that the doctrine of mutual mistake was inapplicable as a matter of law.  Finally, as to Ricks’ four tort-based causes of action, the district court concluded as follows: (1) Ricks’ claims of breach of fiduciary duty failed because the Exploration Agreement did not create a joint venture so as to give rise to any fiduciary duties on the part of Cross Timbers; (2) Ricks’ trespass claim failed because Ricks had no rights to sections 3 and 15 under the Exploration Agreement; (3) Ricks’ claim regarding the covenant of good faith and fair dealing failed because Oklahoma courts would not extend the duty of good faith to commercial contracts and, in any event, the conduct at issue here amounted to no more than a simple breach of contract insufficient to support to support a claim for breach of the implied covenant; and (4) Ricks’ claim of tortious interference with prospective economic advantage failed because it did not come forward with any evidence of actual loss of economic opportunities and because Cross Timbers merely engaged in conduct to further its own legitimate business and financial interests. 

III.  STANDARD OF REVIEW
	This court reviews a grant of summary judgment de novo, applying the same legal standard utilized by the district court.  See Commercial Union Ins. Co. v. Sea Harvest Seafood Co., 251 F.3d 1294, 1297-98 (10th Cir. 2001).  We also review de novo the district court’s interpretation of the law of Texas, which governs Ricks’ contract claims, and the law of Oklahoma, which governs Ricks’ tort claims.  See Salve Regina Coll. v. Russell, 499 U.S. 225, 231 (1991) (“[A] court of appeals should review de novo a district court’s determination of state law.”).  Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”  Fed. R. Civ. P. 56(c).  This standard requires that we view the evidence and draw all reasonable inferences therefrom in the light most favorable to the nonmoving party.  See Commercial Union, 251 F.3d at 1298.

IV.  DISCUSSION
	A.  Contract Claims
		1.  Contract Interpretation
	On appeal, Ricks presents a two-pronged attack on the district court’s grant of summary judgment in favor of Cross Timbers on the question of whether the adjacency requirement in paragraph 2(c) applied to paragraph 12.  First, Ricks asserts that paragraph 12 of the Exploration Agreement incorporates its own definition of Extension Well, wholly independent of the definition of Extension Well in paragraph 2(c), and that the definition of Extension Well in paragraph 12 does not contain an adjacency limitation.  According to Ricks, its interpretation of the Exploration Agreement is borne out by an analysis of the circumstances surrounding the formation of the Exploration Agreement, particularly the numerous draft agreements and letter of intent exchanged by the parties before the Exploration Agreement was finally executed.  Second, Ricks asserts that to the extent that its interpretation of the Exploration Agreement is not the only reasonable interpretation, the Exploration Agreement is ambiguous.
	Upon conducting a de novo review of the district court’s order, the parties’ briefs and contentions, and the entire record on appeal, we are in substantial agreement with the district court’s analysis of the Exploration Agreement and see no need to repeat that analysis.  Accordingly, this court affirms the district court’s grant of summary judgment in favor of Cross Timbers on the contract interpretation claim for substantially those reasons set out in the district court’s order.  In so doing, we specifically note that the Exploration Agreement cannot reasonably be read as setting forth two separate definitions of Extension Well.  Like the district court, this court concludes that Ricks’ interpretation of paragraph 12 reads paragraph 2(c) out of the Exploration Agreement.  Finally, the circumstances surrounding the formation of the Exploration Agreement, including the numerous drafts exchanged by the parties, do not alter our conclusion that the definition of Extension Well set out in paragraph 2(c) applies to paragraph 12.
		2.  Mutual Mistake
	The district court rejected Ricks’ claim of mutual mistake, ruling as a matter of Texas law that the doctrine of mutual mistake is unavailable when the agreement at issue is unambiguous.  In reaching that conclusion, the district court relied on the opinion of the Court of Appeals of Texas in Baldwin v. New, 736 S.W.2d 148, 153 (Tex. App. 1987) (“[W]hen an agreement is unambiguous, the defense of mutual mistake as to the meaning of the terms used is unavailable as a matter of law.”).  On appeal, Ricks argues that the district court erred in relying on Baldwin because Baldwin is contrary to the subsequent decision of the Texas Supreme Court in Williams v. Glash, 789 S.W.2d 261 (Tex. 1990).
	In Williams, the Texas Supreme Court held that a litigant could seek to rescind a personal injury release on the ground of mutual mistake, despite the unequivocal and unambiguous nature of the release.  See id. at 264-65.  According to the Williams court, 
When mutual mistake is alleged, the task of the court is not to interpret the language contained in the release, but to determine whether or not the release itself is valid.  We overrule [one of our own decisions] and disapprove [a decision of the court of appeals] to the extent that they give controlling weight to the language of the release to defeat a claim of mutual mistake.
Id. at 265.  The Williams court was careful, however, to note the very narrow nature of the doctrine of mutual mistake:
The doctrine of mutual mistake must not routinely be available to avoid the results of an unhappy bargain.  Parties should be able to rely on the finality of freely bargained agreements.  However, in narrow circumstances a party may raise a fact issue for the trier of fact to set aside a release under the doctrine of mutual mistake.
Id. at 265; see also Matlock v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA., 925 F. Supp. 468, 474 n.4 (E.D. Tex. 1996) (noting that, following the decision in Williams, Texas courts have applied the doctrine of mutual mistake narrowly).  Furthermore, “[t]he question of mutual mistake is determined not by self-serving subjective statements of the parties’ intent, which would necessitate trial to a jury in all such cases” but, instead, by objective manifestations of the parties’ intent.  Id. at 264, 265.
	On appeal, Cross Timbers asserts that the decision in Williams is inapplicable to this case because Williams involved an attempt to rescind a contract, while in this case Ricks attempts to reform a narrow term of the Exploration Agreement in a manner consistent with its litigation position.  This court concludes that it need not decide whether Williams applies outside of the recision context because, even assuming it does apply, the district court’s grant of summary judgment in favor of Cross Timbers on Ricks’ mutual mistake claim is still proper.  See Mallinson-Montague v. Pocrnick, 224 F.3d 1224, 1233 (10th Cir. 2000) (“[T]his court can affirm the district court for any reason that finds support in the record.”).
	In support of its claim of mutual mistake, Ricks relies on testimony it adduced from the negotiators of the Exploration Agreement as well as the various proposals exchanged by the parties and the letter of intent.  The opinion in Williams makes clear, however, that “subjective statements of the parties’ intent” will not be considered by the court in determining whether sufficient evidence of mutual mistake exists to send the case to a jury.  789 S.W.2d at 264.  Accordingly, the only relevant evidence identified by Ricks is the various proposals and the letter of intent exchanged by the parties.  This court has closely reviewed the contents of the various proposals and the letter of intent and concludes that evidence is not sufficient to send the case to a jury under Texas’ “narrow” doctrine of mutual mistake.  Williams, 789 S.W.2d at 265.  Unlike the situation in Williams, where there had not been any discussion at all as to the question of personal injuries, the various proposals exchanged by the parties here demonstrate ongoing negotiations over the breadth of Ricks’ right to drill.  Furthermore, when Southland proposed adding the adjacency limitation set out in paragraph 2(c) of the Exploration Agreement, it specifically brought the definitions to the attention of Ricks’ and asked Ricks’ negotiator to look over the definitions and determine whether they accurately reflected the parties’ agreement.  Without any objection from Ricks, the adjacency limitation was incorporated into the executed Exploration Agreement.  Finally, it is clear and undisputed from the record that the negotiations between the parties were extensive and that the Exploration Agreement was not reached in haste.  See Williams, 789 S.W.2d at 264 (noting that the extent of negotiations and the haste or lack thereof in reaching the agreement are among the objective factors to be considered in determining whether a claim of mutual mistake should proceed to trial).
	Because Ricks has not come forward with any objective evidence indicating that the adjacency requirement was added to the Exploration Agreement by the mutual mistake of the parties, the district court correctly granted summary judgment to Cross Timbers on this claim.
	B.  Tort Claims
		1.  Trespass
	In its first amended complaint, Ricks alleged that under the Exploration Agreement it had the exclusive right to drill wells in Sections 3 and 15.  It further alleged that by drilling its own wells in those two section, Cross Timbers had engaged in a tortious, bad faith trespass.  In granting summary judgment in favor of Cross Timbers on this claim, the district court concluded that because the Exploration Agreement did not bestow on Ricks any right to drill in Sections 3 and 15, Ricks’ trespass claim must necessarily fail.
	On appeal, Ricks asserts that “the district court simply failed to recognize that, under the Exploration Agreement, only Ricks had the right to drill wells.”  Accordingly, Ricks asserts that if this court reverses the district court’s resolution of its contract claims, we should also reverse the district court’s grant of summary judgment in favor of Cross Timbers on the trespass claim.  As this court has affirmed the district court’s resolution of Ricks’ contract claims, we likewise affirm the district court’s resolution of Ricks’ trespass claim.
		2.  Fiduciary Duty
	Paragraphs 44 and 45 of Ricks’ first amended complaint provide as follows:
	44.  By virtue of the special relationship between the parties arising from their joint venture, their [co-tenancy] and/or their operator/non-operator relationship, Cross Timbers owed Ricks fiduciary duties to cooperate with Ricks in its efforts to drill wells and earn acreage under the Exploration Agreement.

	45.  By its intentional and malicious actions designed to limit Ricks’ ability to earn further acreage, Cross Timbers has damaged Ricks and is liable to Ricks for all actual damages caused by Cross Timbers’ breach of fiduciary duty, and for punitive damages.
In granting summary judgment in favor of Cross Timbers on this claim, the district court first noted that the explicit language of both the Exploration Agreement and the Model Form Operating Agreement, attached to and made a part of the Exploration Agreement, specifically negated the existence of a joint venture.  Citing controlling Oklahoma law, the district court further concluded that neither the parties’ status as co-tenants as to certain leases nor Cross Timbers’ status as operator of certain wells on sections 3, 15, and 22 imposed upon Cross Timbers a fiduciary duty to help Ricks drill as many wells as possible under the Exploration Agreement, the only breach of fiduciary duty claim set forth in the first amended complaint.  See Uptegraft v. Dome Petroleum Corp., 764 P.2d 1350, 1353 (Okla. 1988) (recognizing that although joint tenants cannot actively mislead each other regarding matters relating to the joint estate, the relationship between joint tenants is not fiduciary); Leck v. Cont’l Oil Co., 800 P.2d 224, 228-29 (Okla. 1989) (recognizing the existence of a fiduciary-type relationship between unit operators on the one hand and royalty owners and lessees on the other hand, but noting that the fiduciary obligation of the unit operator was limited to the duty to conduct operations in a prudent manner).
	In light of this court’s conclusion that the Exploration Agreement did not grant Ricks the right to drill additional extension wells on lands that did not abut lands earned through the drilling of the Initial Test, Ricks’ claim that Cross Timbers was under a fiduciary duty to help it drill wells on sections 3 and 15 necessarily fails.  Ricks nevertheless argues on appeal that the district court erred “in apparently concluding that Ricks’ claim did not involve correlative rights and prudent operations, the limited fiduciary duties Oklahoma law imposes upon operators.”  Cf. Leck, 800 P.2d at 228-29.  We disagree and conclude that the district court properly avoided resolution of such claim because it is not set forth in Ricks’ first amended complaint.
	It is quite true that Ricks’ first amended complaint does contain numerous allegations relating to Cross Timbers’ operation of two wells in the southwest quarter section of section 22.  All of those allegations, however, related to Ricks’ claim that Cross Timbers had manipulated production from the wells it operated in section 22 in an effort to prevent Ricks from learning that the Tarrant 2-22 well was a Discovery Well, thereby entitling Ricks to extend the field into section 15.When these allegations are read in concert with paragraphs 44 and 45 set forth in the text of this opinion, it becomes absolutely clear that the first amended complaint does not set forth a claim of breach of fiduciary duties flowing from Cross Timbers’ failure to protect Ricks’ correlative rights in section 22.  Both the district court and this court have resolved this claim by concluding that because the Exploration Agreement did not give Ricks any rights to section 15, Cross Timbers was under no fiduciary obligation to help Ricks’ drill in that section.  Although Ricks’ motion and brief in opposition to Cross Timbers’ motion for summary judgment do appear to hint at the possible existence of fiduciary duty claim of the type discussed in Leck, Ricks cannot rightfully complain that the district court failed to resolve a claim never set forth in the first amended complaint.
		3.  Implied Covenant of Good Faith
	Relying on many of the same allegations set out above with regard to its fiduciary duty claim, Ricks alleged in its first amended complaint that “Cross Timbers’ actions to limit Ricks’ right to earn acreage under the Exploration Agreement have been undertaken intentionally, maliciously[,] and in reckless and wanton disregard of” Cross Timbers’ duty of good faith and fair dealing.  In resolving this claim, the district court first expressed doubt as to whether the Oklahoma courts would extend the duty of good faith and fair dealing to these types of contractual relationships.  See Dist. Ct. Order at 17 (citing Davis v. TXO Prod. Corp., 929 F.2d 1515, 1519 (10th Cir. 1991) (refusing to impose non-contract-based duty of good faith and fair dealing upon co-tenants of an oil and gas lease)).  Even assuming the duty would extend to the circumstances present in this case, the district court concluded that the actions complained of here amounted to nothing more than alleged breaches of the Exploration Agreement and that something more was necessary to support a claim of tortious breach of the implied covenant.
	On appeal, Ricks asserts that the Oklahoma Supreme Court recently extended the reach of the tort to cover all contractual breaches that are malicious, intentional, or grossly negligent.  See Beshara v. S. Nat’l Bank, 928 P.2d 280, 288 (Okla. 1996).  It further alleged that it had come forward with sufficient evidence to create a question of fact as to whether Cross Timbers had acted intentionally and maliciously to deny Ricks the fruits of the Exploration Agreement.  We need not, however, resolve the scope of the duty of good faith and fair dealing in Oklahoma.  This claim is premised on many of the same allegations as the breach of fiduciary duty claim and suffers from the same infirmities.  We therefore affirm the district court’s grant of summary judgment for the same reasons set out above in resolving Ricks’ fiduciary duty claim.
		4.  Interference With Prospective Economic Advantage
	In its first amended complaint, Ricks alleged that “[b]y its intentional and malicious interference with Ricks’ prospective contracts to sell gas produced from extended acreage, Cross Timbers has damaged Ricks.”  In an effort to resist Cross Timbers’ motion for summary judgment on this claim, Ricks cited to paragraph seventeen of the affidavit of Art Swanson, Ricks’ president, for the proposition that it had adduced evidence creating a material issue of fact as to whether the actions of Cross Timbers had caused it to lose the opportunity to sell gas to its gas purchaser.  The cited portion of Swanson’s affidavit reads as follows:
	17.  Had Cross Timbers allowed Ricks to participate in the three wells now producing from the Council Grove formation in Sections 15 and 3, Ricks would be selling a substantial amount of gas from these wells to its gas purchaser.  Ricks has lost the profit it would be earning on these gas contracts as a result of Cross Timbers’ actions.  By not allowing Ricks to develop acreage it rightfully owns under the Exploration Agreement, Cross Timbers’ actions have reduced the volume of gas flowing through Ricks’ system, thus diminishing the economic return to Ricks for the costs it has incurred for exploration activities, line expenses, compression and treating facilities.
	The district court concluded that this evidence was insufficient to carry Ricks’ burden of coming forward with evidence sufficient to create a material issue of fact as to whether Cross Timbers tortiously interfered with Ricks’ prospective economic relations.  According to the district court, 
	Ricks’ claim of commercial interference is mere speculation.  Ricks does not provide the details of the gas purchase arrangement with which it claims Cross Timbers interfered and has not provided the information necessary to compute any damages.  Further, Ricks has failed to connect Cross Timbers’ conduct to any interference.  The law allows a contracting party to engage in conduct to further its own legitimate business or financial interests.  Haynes v. South Community Hosp. Mgmt., Inc., 793 P.2d 303, 307 (Okla. App. 1990).  The Court has examined Cross Timbers’ conduct and finds in this case, this is exactly what occurred.
	Ricks challenges on appeal the district court’s grant of summary judgment in favor of Cross Timbers and asserts that “it is certain” that it was damaged when Cross Timbers refused to allow it to participate in the wells drilled in sections 3 and 15.  Unfortunately, there is not a single citation to the record in this section of Ricks’ brief to support its assertion that material issues of fact exist precluding summary judgment on this claim.  This failure is reason enough to affirm the district court.  See Fed. R. App. P. 28(a)(9)(A) (providing that an appellant’s opening brief “must contain[] appellant’s contentions and the reasons for them, with citations to the . . . parts of the record on which appellant relies”); Koch v. Koch Indus., Inc., 203 F.3d 1202, 1213 (10th Cir. 2000).
	In it reply brief, however, Ricks for the first time on appeal cites to paragraph 17 of Swanson’s affidavit as the sole support for its contention that material issues of fact exist as to whether it was damaged by Cross Timbers’ conduct with regard to sections 3 and 15.  In light of this court’s conclusion above that the Exploration Agreement provided Ricks with no rights to drill in sections 3 or 15, it is clear that Ricks cannot prove that it was damaged by Cross Timbers’ refusal to allow it to participate in the drilling activities as regards those two sections.  See generally Gaylord v. Entm’t Co. v. 

Thompson, 958 P.2d 128, 149-150 nn.96-97 (Okla. 1998) (citing with approval to Michigan cases which set out the elements of tort of intentional interference with prospective economic relations; those cases hold that damages resulting from the allegedly unfair or unlawful activity is one such element); see also Koch, 203 F.3d at 1212 (“This court has held that failure of proof of an essential element renders all other facts immaterial.”).  Accordingly, the district court properly granted summary judgment in favor of Cross Timbers on Ricks’ claim of intentional interference with prospective economic advantage.
	C.  Costs
	In appeal number 00-6075, Ricks notes that Cross Timbers was awarded costs as a prevailing party under Federal Rule of Civil Procedure 54(b).  Ricks further asserts that if this court were to reverse the district court in appeal number 99-6370, the order taxing costs must also be reversed because Cross Timbers will no longer be the prevailing party.  As this court has affirmed the district court’s grant of summary judgment in favor of Cross Timbers in the underlying appeal, the district court’s order taxing costs is also affirmed.

V.  CONCLUSION
	For the reasons stated above, the district court’s orders granting summary judgment in favor of Cross Timbers and awarding it costs as a prevailing party are hereby AFFIRMED.
						ENTERED FOR THE COURT

						Michael R. Murphy
						Circuit Judge

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