KENT C. SULLIVAN, Justice.
This business dispute involves the application and effect of force majeure provisions in a natural-gas supply contract between the seller, Apache Corporation, and Virginia Power Energy Marketing, Inc. ("VPEM"), the purchaser. The parties agreed that Apache was to deliver natural gas to VPEM at two specific locations in September and October of 2005. However, during that time period, Hurricanes Katrina and Rita struck the Gulf Coast, damaging gas-production platforms and portions of the natural-gas pipelines. After Apache failed to deliver the agreed-upon quantity of natural gas at either location, a lawsuit ensued. The trial court ruled, by summary judgment, that Apache's performance was excused under the force majeure provisions of the parties' agreement.
Appellants, which consist of VPEM and its parent company, Dominion Resources, have appealed the summary judgment and raise two arguments. First, they contend that, although the hurricanes prevented Apache from delivering gas to one of the two agreed-upon locations, a "reasonable
In 2003, Apache and VPEM reached agreement on the basic terms that would govern a series of natural-gas sales from Apache, a producer, to VPEM, an energy marketer. Those general terms are contained in a "Base Contract," a form contract that was originally prepared by the North American Energy Standards Board ("NAESB") but whose terms can be altered according to the contracting parties' particular needs. The Base Contract contains only the basic provisions that apply to any subsequent natural-gas sales between the parties, and does not recite details for any specific transaction. Instead, the details of each subsequent sale were to be memorialized in written "Transaction Confirmations" (the "Confirmations").
Thus, the parties' entire agreement is governed by both the general Base Contract and the more specific Confirmation that would include the sales terms as to each individual transaction.
In August 2005, the parties executed three Confirmations reflecting Apache's commitment to sell and deliver, and VPEM's obligation to pay for, natural gas during September and October 2005. The relevant terms of these commitments were as follows:
All three commitments were designated as "firm" transactions which, according to the Base Contract, meant that either party could interrupt performance without liability "only to the extent that such performance is prevented for reasons of Force Majeure."
The following month, Apache once again evacuated its offshore platforms in preparation for Hurricane Rita. Again invoking the Base Contract's force majeure provisions, Apache notified VPEM that its October deliveries to both Delivery Points, Tennessee L-500 and Transco-65, would be suspended or curtailed. Accordingly, VPEM received 149,781 MMBtu at Transco-65, but only 38,727 MMBtu at Tennessee L-500, which remained damaged after the second hurricane.
To cover the shortfall between the contracted-for amounts and that actually delivered by Apache, VPEM purchased additional gas on the Intercontinental Exchange "spot market,"
Concluding that Apache had improperly invoked force majeure to sell natural gas on the spot market at higher prices, VPEM offset $2.25 million from its other payments to Apache. Apache demanded payment of the offset amount from Dominion Resources, VPEM's parent company that had guaranteed prompt and complete payment of VPEM's "due but unpaid obligations."
After Dominion failed to pay the demanded amount, Apache sued VPEM and Dominion for breach of contract. VPEM counterclaimed, alleging that Apache breached the Base Contract by improperly invoking force majeure and refusing to deliver the contract amount of natural gas. Apache moved for partial summary judgment on its contract claims against VPEM and Dominion, arguing that its own performance was excused under the Base Contract's force majeure provisions but that appellants breached the contract by paying less than the full amounts due to Apache. The trial court granted Apache's motion for partial summary judgment, which became final after the parties stipulated to all remaining issues.
Here, appellants contend Apache was not entitled to summary judgment, for two reasons. First, they contend that a "reasonable efforts" provision in the Base Contract obligated Apache to provide the Tennessee L-500 gas at a different delivery location. Second, they argue that Apache failed to conclusively establish that the hurricanes prevented performance at the Transco-65 location.
The scope and effect of a "force majeure" clause depends on the specific contract language, and not on any traditional definition of the term. See Zurich Am. Ins. Co. v. Hunt Petrol. (AEC), Inc., 157 S.W.3d 462, 466 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Perlman v. Pioneer Ltd. P'ship, 918 F.2d 1244, 1248 n. 5 (5th Cir.1990). Thus, in this contract dispute that ended by summary judgment, we begin with a brief discussion of the principles that govern our review of the summary judgment and interpretation of the contract.
A. Standard of Review
To be entitled to summary judgment, Apache, the plaintiff, was required to conclusively establish all of the elements of its cause of action as a matter of law. See Brown v. Blum, 9 S.W.3d 840, 845 (Tex. App.-Houston [14th Dist.] 1999, pet. dism'd w.o.j.). We must examine the entire record in the light most favorable to the non-movant, indulging reasonable inferences and resolving doubts against the moving party. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005). If the motion and summary-judgment evidence establish the movant's right to judgment as a matter of law, the burden shifts to the non-movant to raise a genuine, material fact issue to defeat summary judgment. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). Evidence will raise a genuine fact issue if, after considering it, reasonable and fair-minded jurors could differ in their conclusions. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). If, as here, the trial court specifically states the basis on which it granted the motion for summary judgment, we must consider those grounds. See Zurich, 157 S.W.3d at 464-65. In addition, in the interest of judicial economy, we may also consider other grounds that the trial court did not expressly address. See id.
The party seeking to excuse its performance under a contractual force majeure clause, here, Apache, bears the burden of proof to establish that defense. See Moore v. Jet Stream Invs., Ltd., 261 S.W.3d 412, 420 (Tex.App.-Texarkana 2008, pet. denied). As we interpret the parties' contract, including the force majeure provisions, our primary concern is to determine the parties' intent. See Zurich, 157 S.W.3d at 465. We must examine the contract as a whole to harmonize and effectuate all of its provisions so that none are rendered meaningless. Id. We look at how a reasonable person would have used and understood the language, by considering the circumstances surrounding the contract negotiations and purposes the parties intended to accomplish by entering into the contract. Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 132 (Tex.App.-Houston [14th Dist.] 2000, pet. dism'd).
B. The Contract's
Force Majeure Provisions
The relevant force majeure portions of the Base Contract provide as follows:
The Base Contract further defines the word "Firm," as used in section 11.1, to mean "that either party may interrupt its performance without liability only to the extent that such performance is prevented for reasons of Force Majeure[.]"
C. Delivery to Alternate Locations
Regarding the Tennessee L-500 commitments, VPEM concedes that the hurricanes caused damage to the Tennessee Gas Pipeline that prevented Apache from making delivery at the agreed-upon Delivery Point. Nevertheless, VPEM contends that, under the "reasonable efforts" clause in section 11.2 of the Base Contract, Apache was required to perform at an alternate Delivery Point along the pipeline. We disagree, because such an interpretation conflicts with the parties' express agreement and would frustrate their intent to excuse non-performance caused by a force majeure event.
That is, the parties expressly agreed that Apache was to deliver 610,000 MMBtu of natural gas to a specific Delivery Point: the Tennessee L-500 pooling area. The parties also agreed, through the Base Contract, to relieve Apache from performing if a force majeure event were to prevent delivery. However, both of these contract provisions would be rendered meaningless under VPEM's interpretation of the "reasonable efforts" clause, which would force Apache to deliver gas, notwithstanding an acknowledged force majeure event, to a location other than that to which the parties expressly agreed. See Tex. Workers' Comp. Ins. Facility v. State Bd. of Ins., 894 S.W.2d 49, 54 (Tex.App.-Austin 1995, no writ) ("[O]ne party cannot unilaterally modify the terms of the original contract.").
We must presume that the parties intended each contract provision to have effect. See Phoenix Holdings, Ltd. v. Circle C Land Corp., 987 S.W.2d 933, 937 (Tex.App.-Austin 1999, pet. denied) (citing Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983)). Therefore, we may not construe one clause in a manner that renders other provisions meaningless. See Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.
Arguing that "reasonable efforts" includes alternate delivery, VPEM notes that, during the same time frame, Apache agreed to different delivery arrangements with another purchaser, the Municipal Gas Authority of Georgia ("MGAG"). However, that argument is not persuasive because Apache's contract with MGAG is different in several respects.
Alternatively, VPEM contends that Apache was required to make alternate delivery under Uniform Commercial Code section 2-614, which provides: "Where without fault of either party the agreed berthing, loading, or unloading facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of delivery otherwise becomes commercially impracticable but a commercially reasonable substitute is available, such substitute performance must be tendered and accepted." Tex. Bus. & Comm.Code Ann. § 2.614(a) (Vernon 2009).
However, like several other provisions of Article 2 of the UCC, section 2.614 is a "gap-filler" provision that applies only in the absence of the parties' specific agreement. See id. § 1.302(a) (Vernon 2009) ("[T]he effect of provisions of this title may be varied by agreement."); Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 570 (Tex.1996); Milton M. Cooke Co. v. First Bank & Trust, 290 S.W.3d 297, 304-05 (Tex.App.-Houston [1st Dist.] 2009, no pet.). In this case, the parties reached a specific agreement under which Apache would be relieved from making delivery if a force majeure event, like a hurricane, prevented performance because of "breakage or accident or necessity of repairs to . . . lines of pipe." Therefore, section 2.614 cannot vary the terms of the parties' express agreement. See Lenape Res. Corp., 925 S.W.2d at 570.
D. Loss or Failure of Apache's "Gas Supply" Preventing Performance
Although delivery was impossible at Tennessee L-500 because of damage to that pipeline, deliveries did occur at the other Delivery Point, Transco-65. Nevertheless, Apache delivered only half of its October commitment to VPEM at that location. To explain the shortfall, Apache again invoked force majeure, claiming that the hurricanes caused a "loss or failure of [its] gas supply," as contemplated by sections 11.2 and 11.3. However, under the Base Contract, a "loss or failure of Seller's gas supply" does not constitute force majeure unless such loss was caused by a qualifying event that prevented the seller from performing.
VPEM concedes that the hurricanes were a force majeure event, under section 11.2. Thus, the outcome of this issue turns upon the question of whether Apache conclusively established, through summary judgment, that it suffered a loss or failure of its "gas supply" that prevented delivery of the full contract amount of gas to Transco-65. Central to this inquiry is the meaning of the contract term "gas supply," which is not defined in either the Base Contract or subsequent Confirmations.
1. The Parties' Proposed Definitions of "Gas Supply"
Apache's proposed definition of "gas supply" reflects its apparent plan, on some internal level, to fill VPEM's commitment needs at Transco-65 from a few specific oil and gas platforms located in south and southeastern Louisiana. In line with this intent, Apache advances a narrow definition of "gas supply" that includes only those specific platforms, which Apache characterizes as its "equity production" that was native to, or tied into, Transco-65. By contrast, VPEM urges a broader reading of the term "gas supply" that would encompass Apache's uncommitted gas from "the same geographic region" that could have been used to meet its commitment to VPEM.
In determining the parties' intent, we must assign terms their plain, ordinary, and generally accepted meaning unless the contract indicates that the parties used them in a technical or different sense. See Zurich, 157 S.W.3d at 465; see also Jim Walter Homes, Inc. v. Schuenemann, 668 S.W.2d 324, 330 (Tex.1984) (requiring courts to construe a contract in a manner that gives effect to the parties' intentions as revealed by the language used in the contract). Even so, however, we may consider extrinsic evidence, such as expert testimony or reference material, to determine whether a contract term enjoys a commonly understood meaning in the industry. See XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 627-28 (Tex.App.-Houston [14th Dist.] 2006, pet. denied); Mescalero Energy, Inc. v. Underwriters Indem. Gen. Agency, Inc., 56 S.W.3d 313, 320 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (citing Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521 n. 6 (Tex.1995)).
Apache argues that, in the oil and gas industry, it is common practice for a supplier to internally decide on a specific supply source that will be used to satisfy a particular customer's commitments. Apache therefore concludes that, within the industry, the term "gas supply" is commonly
Thus, on the record presented, we cannot conclude that Apache's proposed definition of "gas supply" is so common and universal in the industry that the parties can be said to have contracted with that understanding in mind. See Energen Res. MAQ, Inc. v. Dalbosco, 23 S.W.3d 551, 556 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (citing Barreda v. Milmo Nat'l Bank, 252 S.W. 1038, 1039-40 (Tex. Comm'n App.1923, judgm't adopted); State Nat'l Bank of Houston v. Woodfin, 146 S.W.2d 284, 286 (Tex.Civ.App.-Galveston 1940, writ ref'd)). As the Woodfin Court noted:
Woodfin, 146 S.W.2d at 286; see also Barreda, 252 S.W. at 1039-40 ("The general rule in the case of contract is that the custom and usage must be so general that both are presumed to be aware of them, or that they have actual knowledge of them, to be charged with having contracted with reference to such usage and custom."). Apache has failed to make that necessary showing.
Instead, the record indicates, and Apache conceded during argument, that neither the Base Contract nor Confirmations reveal any intent by Apache to so limit its "gas supply" to its internally designated "equity gas." Moreover, in post-submission briefs, both parties agreed that, pursuant to section 11.6 of the Base Contract, the parties could have inserted a specific supply source in the "Special Terms and Conditions" section of the Confirmations. However, the Confirmations reflect no such agreement, nor can we imply one in light of the Base Contract's merger clause, which states:
Thus, because Apache has not demonstrated that its suggested definition of "gas
2. Resolution under the Plain and Ordinary Meaning of "Gas Supply"
The first part of this definition is straightforward. The parties do not dispute the meaning of "gas," which is defined in the Base Contract as "any mixture of hydrocarbons and noncombustible gases in a gaseous state consisting primarily of methane."
However, the word "supply" is not defined. Although the precise definition of "supply" differs slightly according to the dictionary consulted, the plain and ordinary meaning of the word denotes a quantity or amount that is "available for use." See WEBSTER'S THIRD NEW INT'L DICTIONARY 2297 (1993) ("the quantity or amount (as of a commodity) needed or available," or "a quantity available for use"); BLACK'S LAW DICTIONARY 1439 (6th ed. 1990) ("available aggregate of things needed or demanded"). That definition comports with the generally accepted understanding of the word "supply." Thus, the plain and ordinary meaning of "gas supply," as used in the Base Contract, refers to the amount or quantity of gas that was available to satisfy VPEM's contractual demands.
Under that definition, Apache's summary-judgment evidence fails to conclusively establish that the hurricanes caused a loss or failure of "gas supply" that prevented a full delivery to VPEM at Transco-65. Its evidence consists of an affidavit and deposition from one of its gas marketing representatives, Sean Maki. However, Maki's testimony is limited to the effect of the hurricanes on the specific platforms that Apache had internally earmarked to deliver to VPEM, and does not speak to any other sources of gas that might have been "available" to deliver to Transco-65.
By contrast, VPEM offered the following expert testimony from Buccigross:
The record also reveals that Apache was able to deliver spot-market gas to VPEM at two other points along the Transcontinental Pipeline, including two delivery pools that appear to serve as geographic bookends to Transco-65.
3. Resolution under Apache's Suggested Definition of "Gas Supply"
Even were we to embrace Apache's proposed definition of "gas supply," the summary-judgment evidence still raises a fact issue as to whether a loss or failure of its "native gas" actually precluded Apache from performing. In fact, the record indicates that, notwithstanding the hurricanes, Apache still delivered sufficient gas to Transco-65 to meet all of its stated commitments, including VPEM's, but that one purchaser — Morgan Stanley — received a disproportionate share apparently in excess of its contract allotment. Therefore, even under Apache's reading of the contract, we would still have to reverse and remand on the record presented.
The summary-judgment evidence includes a chart that reflects all of Apache's October 2005 delivery commitments to Transco-65. According to that document, Apache was contractually obligated to deliver, to that location, a total of 1,550,000 MMBtu. That amount was to be evenly distributed among five customers with each receiving 310,000 MMBtu. In fact, during October, Apache actually delivered more gas — 1,623,149 MMBtu — than was necessary to meet all of its apparent contract commitments at that location.
However, one of the five customers, Morgan Stanley, received 1,024,038 MMBtu, an amount more than three times the quantity listed as its "Contract Vol[ume]." As a result, the remaining 559,111 MMBtu was left to be split equally among the four remaining customers, each of whom received roughly half of the amount due. Thus, this document raises an additional fact question as to whether the hurricanes prevented Apache from supplying enough gas, even under its limited definition of "gas supply," to satisfy its Transco-65 commitments, including VPEM's.
In an effort to explain this discrepancy, Apache notes that, on the chart, Morgan Stanley is identified as having a "rank" of "1," while VPEM's "rank" is only a "2." However, as Apache acknowledged during arguments, the summary-judgment record does not explain the significance of these rankings.
No. 14-98-00346-CV, 1999 WL 605550, at *1 n. 1 (Tex.App.-Houston [14th Dist.] Aug. 12, 1999, no pet.) (not designated for publication) (emphasis added). However, Tejas's description of ranking contemplates situations, unlike here, in which a supplier delivers less than the amount of gas expected. See id. In this case, the record suggests that Apache delivered more than the "total amount of gas expected" at Transco-65. Therefore, Tejas is not instructive here.
Thus, even under Apache's narrow reading of the contract, the evidence still raises a fact issue precluding summary judgment as to Apache's performance at Transco-65. We sustain appellants' first issue to that extent. Because of our resolution of that argument, we need not reach appellants' alternative argument that the Base Contract's reasonable-efforts clause, discussed above, would also have required Apache to deliver uncommitted, available gas from the same geographic region.
We affirm the summary judgment to the extent that it excused Apache's non-performance at the Tennessee L-500 Delivery Point. However, a fact issue exists as to whether Apache suffered a loss or failure of gas supply that prevented it from fully performing at Transco-65. Therefore, we reverse that portion of the summary judgment, and we remand that dispute for further proceedings not inconsistent with this opinion.