Benchmark Electronics, Inc. v. J.M. Huber Corp.

355 F.3d 356 BENCHMARK ELECTRONICS, INC., Plaintiff-Appellant, v. J.M. HUBER CORP., Defendant-Appellee. No. 02-20655. United States Court of Appeals, Fifth Circuit. December 19, 2003. Joe W. Redden, Jr., Robert David Daniel, Beck, Redden & Secrest, Houston, TX, for Plaintiff-Appellant. D. Gibson Walton, James D. Thompson, III, Penelope E. Nicholson, Daniel E. Hinde, Richard Dearing, Ara Ayles Hardig, Vinson & Elkins, Houston, TX, for Defendant-Appellee. Appeal from the United States District Court for the Southern District of Texas; Lynn N. Hughes, Judge. ORDER ON REHEARING (Opinion Aug. 20, 2003, 5th Cir.2003, 343 F.3d 719) Before REAVLEY, JOLLY and JONES, Circuit Judges. BY THE COURT: — 1 — It is ordered that the opinion in this case is modified by replacing the following sentence, found at 343 F.3d 719, 731: — 2 — "We decline to resolve the ambiguity on appeal and, instead, remand for the parties to present extrinsic evidence supporting their interpretations of the agreement." — 3 — with this: — 4 — "Regardless whether the clause is technically ambiguous, there are factual issues surrounding its application. These matters must be explored more fully." — 5 — Further, in Footnote 10, the introductory clause, "In addition to the ambiguous contract language" is struck. — 6 — Otherwise, the opinion remains unchanged. — 7 — The petition for rehearing is, except to the foregoing extent, DENIED. The petition for rehearing en banc is DENIED, no member of the court having requested a poll. REAVLEY, Circuit Judge, concurring: — 8 — I have concurred in the judgment reversing, as premature, the summary judgment of the district court. I agree with the current writing in disclaiming factual ambiguity of the material adverse change clause. If the majority is saying only that there is no waiver or disclaimer of fraudulent inducement, Benchmark's tort claim under Texas law, I agree. I would not agree that Texas law allows a tort claim for misrepresentation in the contract itself.