Edwards v. Lone Star Gas Co.

BOYD, Justice. This appeal involves a controversy over amounts payable after redetermination of contract prices due under two natural gas contracts. It arises from an action filed by H.S. “Gus” Edwards and forty-seven others (herein Edwards) against the Lone Star Gas Company, which is the public utility division of the Enserch Corporation (herein Enserch). After hearing cross motions for summary judgment, the trial court found Edwards was entitled to recover the sum of $1,481,056.16, plus prejudgment interest compounded daily, post-judgment interest until paid, and attorney’s fees. Edwards was denied a recovery for reimbursement of severance taxes. From this judgment both parties have perfected an appeal. We reverse and render. In four points, Edwards asserts the trial court erred in (1) denying them an amount equal to the state severance tax imposed on the natural gas they sold to Enserch because the contract terms adopting the highest price to be paid as of April 1 of each year under other contract terms incorporated those terms by reference into the parties’ contracts; (2) denying Edwards a recovery of attorney’s fees for the charges of experts and costs; (3) granting Enserch a partial summary judgment; and (4) granting Enserch attorney’s fees. In three points, Enserch says the trial court erred in (1) denying Enserch’s motion for summary judgment and granting Edwards’ motion for summary judgment by holding that Enserch was required to pay monthly escalations in the redetermined contract price, and (2) compounding the interest on past due amounts under the contracts. In summary judgment cases, the judgment granted should be affirmed only if the record establishes a right thereto as a matter of law and the movant establishes that he is entitled to the judgment by reason of the matter set out in the motion. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); Harrington v. Young Men’s Christian Ass’n of Houston, 452 S.W.2d 423, 424 (Tex.1970). Although denial of a motion for summary judgment is usually not appealable, Ackermann v. Vordenbaum, 403 S.W.2d 362, 365 (Tex.1966), appellate review of such denial is available where, as here, both parties have moved for summary judgment and the trial court has granted one motion and denied the other. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396, 400 (1958); Garcia v. City of Lubbock, 634 S.W.2d 776, 780 (Tex.App.—Amarillo 1982, writ ref’d n.r.e.). In the action giving rise to this appeal, Edwards alleged that Enserch had breached two written contracts for the sale by Edwards to Enserch of natural gas produced in King and Cottle Counties, Texas. In the suit, Edwards contended Enserch breached the contracts by (1) failing to pay monthly price escalations equal to the increase in the ceiling price provided for in the Natural Gas Policy Act of 1978, 15 U.S.C.A. section 3301 et seq. (1982) (the NGPA), as part of a redetermined contract price, and (2) failing to reimburse Edwards [570] for their state severance tax liability as part of that redetermined contract price. The dispute in this lawsuit principally involves the pricing and taxing provisions of the two contracts. Article X, Price, of the contracts reads as follows: 1. Payments for all gas purchased hereunder shall be based upon the total heating value of the gas at the point of delivery, and the base price for such gas, which shall be applicable for the first six (6) months following the date of first delivery hereunder, shall be One and 90/100ths ($1.90) Dollars per one million (1,000,000) British thermal units (MMBTU). 2. The base price to be paid by Buyer to Seller for gas delivered and received during the period commencing six (6) months after date of first delivery hereunder shall be increased Two Cents ($.02) per MMBTU and shall be increased by Three Cents ($.03) per MMBTU annually thereafter during the term of this Contract, effective upon the anniversaries of the first escalation date herein specified. 3. Seller may request a redetermination of the price payable hereunder by Seller giving Buyer written notice of Seller's desire for a price redetermination not less than sixty (60) days immediately preceding the end of (i) the first six (6) months after the date of first delivery and (ii) annually thereafter during the term of this Contract. It is agreed that the redetermined price per MMBTU for such gas shall be equal to the highest price per MMBTU to be paid as of the first day of the period for which the redetermination price will be effective by a bona fide intrastate pipeline company for gas produced in Railroad Commission Districts 8 and 8A in the State of Texas, under terms of a contract of at least three (3) year term in effect at the time the redetermined price is to become effective; provided that in no case shall the redetermined price be less than either the highest price per MMBTU theretofore paid under this Contract or the above specified initial base price plus the accumulated price escalations herein-above specified. Seller shall notify Buyer in writing within thirty (30) days after such price has been determined by the parties hereto of its decision either to accept the redetermined price or to retain the price structure then existing under this Contract. In the event Seller should elect to accept the redetermined price, the Buyer shall pay to Seller such redetermined price for all gas purchased and received hereunder until the next price redetermination shall become effective. The failure by Seller to accept a redetermined price shall not prejudice its rights with respect to future price redetermina-tions hereunder. Buyer shall have the right to refuse payment of the redetermined price, which decision of Buyer shall be made known by written notice to Seller within thirty (30) days after the date Buyer received Seller’s notice of acceptance, and thereafter Seller shall have the right at any time within a period of six (6) months following the date of notice of Buyer’s decision, as aforesaid, to terminate this Contract by giving Buyer sixty (60) days prior written notice thereof. Article XIII, Taxes, reads as follows: 1. Seller agrees to pay or cause to be paid all taxes, fees, and assessments imposed upon or with respect to the gas delivered hereunder prior to its delivery to Buyer, and Buyer agrees to pay or cause to be paid all taxes, fees, and assessments imposed upon or with respect to the gas delivered hereunder after its delivery to Buyer. 2. For the purpose of this Article, the term “tax” or “taxes” shall mean any tax, fee, or charge, now or hereafter levied, or assessed by any governmental authority on the right, act, or privilege of production, severance, gathering, sale or delivery of any portion of the gas subject hereto which is based upon the volume, value, or sales price of such gas. Taxes as used herein shall not include income, ad valorem, excess profit, license, capital stock, franchise, gross receipts, or property taxes. 3. Buyer agrees to reimburse Seller for portions of any new or increased [571] taxes assessed upon or with respect to the gas prior to its delivery to Buyer hereunder, in accordance with the following schedule, so long as such tax is in effect and paid by Seller for the volumes of gas sold and purchased hereunder: Assessed Tax Portion to be Cents per MCF Reimbursed by Buyer Up to One-Half Cent 90% All over One-Half Cent 90% It being understood that any new or increased taxes are those additional taxes imposed on the Seller subsequent to the date of this Contract. State severance taxes are costs incurred by producers for the right to produce natural gas. Tex.Tax Code Ann. § 201.051 (Vernon 1982). There is no allegation by either party that the contracts are ambiguous. It is established that the construction of an unambiguous contract presents a question of law for the court, Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983), and its words must be accorded their plain, ordinary and generally accepted meaning. Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953), cert. denied, 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081 (1954). The court will give effect to the intention of the parties as expressed therein, and the instrument alone will be deemed to express the intention of the parties, for it is objective, not subjective, intent that governs. City of Pinehurst v. Spooner Addition Water Company, 432 S.W.2d 515, 518 (Tex.1968). Where the contractual language is plain, clear and unambiguous, this Court is not at liberty to revise a contract under the guise of professing to construe it or to make for the parties a contract different from the one they entered into. Stahl Petroleum Co. v. Phillips Petroleum Co., 550 S.W.2d 360, 368 (Tex.Civ.App.—Amarillo 1977) (on motion for rehearing), aff'd, Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480 (Tex.1978). If a contract is so worded that it can be given a certain or definite legal meaning or interpretation, the contract is not ambiguous and parol evidence will not be received to create an ambiguity or to give the contract a meaning different from that which its language imparts. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). In Enserch Corp. v. Houston Oil & Minerals Corp., 743 S.W.2d 654 (Tex.App.—Houston [14th Dist.] 1987, writ denied), the Houston Court examined a similar redeter-mination clause in a gas purchase contract. The redetermination clause provided for calculation of the redetermined price “by using prices contained in two recent, similar, intra-state gas purchase contracts ‘having the highest unit prices eligible for payment in the surrounding area.’ ” Id. at 655. After ascertaining the current adjusted prices, the parties were to average them to arrive at the redetermined price. Id. The Houston Court noted the enactment of the Natural Gas Policy Act (NGPA), 15 U.S.C.A. section 3301 et seq. (1982), and the establishment of a price ceiling on natural gas that escalated monthly. 743 S.W.2d at 656. After notice of intent to redetermine the contract price, the parties disputed what was the proper amount payable under their contract, i.e., whether it encompassed monthly escalations and state severance taxes. Id. The Court cited the case of Pennzoil Co. v. Federal Energy Regulatory Com’n, 645 F.2d 360, 374-75 (5th Cir.1981), cert. denied, 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982), for the statement that “[t]he law allows contract provisions for price escalation as long as the escalations are agreed to by the parties in the contract.” 743 S.W.2d at 656. Reimbursement for severance taxes, likewise, would be allowed “if contractually authorized (citations omitted).” Id. With that pronouncement of the law, we agree. The Court went on to find the parties’ contract allowed recovery of the monthly fluctuating price value found in the referred-to contracts. Id. at 657. However, nowhere did the Court find the agreement incorporated the specific contract terms of the contracts from which the market price was established. [572] Moreover, the contract at bar specifically allows an “annual” redetermination, definitely determining the time for the escalation of price. That provision was not in the contract before the Houston Court according to our reading of the facts recited by that Court. Therefore, since we are bound by a strict construction of the contract language, we find that the parties’ contracts specifically provided for “annual” redetermination of the payment price, and that the trial court erred by allowing monthly escalations. As stated in the clear language of Article X, paragraph 3, a request for redetermination of the price payable may be made “annually” during the term of the contract. Such price is to be “equal to the highest price per MMBTU to be paid as of the first day of the period for which the redetermined price will be effective” by reference to the therein described contracts of third parties. The instant contracts contain no “incorporation by reference” language, and, therefore, the contracts being unambiguous, and being required to apply a strict construction to those contracts, we find that monthly escalations in the price payable were not provided for in the contracts. Enserch’s first and second points are sustained. As to the issue of reimbursement of severance taxes, again we are referred to the Houston Court’s case of Enserch Corp. v. Houston Oil & Minerals Corp., 743 S.W.2d at 657, wherein the Court construed two different contract provisions relating to reimbursement or payment of severance taxes. We agree with the Court’s analysis of the status of the law, and reference to section 110 of the NGPA, 15 U.S.C.A. section 3320 (1982), that “[t]o be allowed by law reimbursement for state severance taxes must be authorized by contract between buyer and seller.” 743 S.W.2d at 658. By specific provision in article XIII, Taxes, the parties contractually agreed that seller, Edwards, would pay all taxes, including state severance taxes. Buyer, En-serch, agreed to reimburse Edwards for any new or increased taxes assessed according to a specific formula, if such new or increased taxes were imposed subsequent to the date of the contract. Reference to the third party contracts for determination of a market value for the natural gas, as we stated above, did not incorporate the terms of said contracts into the parties’ contract. Therefore, whether the third party contracts contained provisions allowing reimbursement to the seller for state severance taxes is not relevant to the case at bar. Moreover, unlike the facts of the case of Enserch Corp. v. Houston Oil & Minerals Corp., 743 S.W.2d at 657, our contract’s redetermination clause does not speak to reimbursement of state severance taxes, and we must rely solely on the clear, unambiguous wording of the contract’s taxing provision. It is clear that the contract’s plain language imposes the responsibility for payment of severance taxes on Edwards, and does not authorize or require Enserch to pay severance taxes, unless new or increased taxes are levied. Edwards’ first point is overruled. Due to our sustention of Enserch’s first and second points, we must overrule appellants Edwards’ points two and three. Moreover, our sustention of Enserch’s points obviates the necessity for discussion of Enserch’s third point. As to appellants Edwards’ point four, insofar as it alleges error by the trial court in granting judgment to Enserch on attorney’s fees, Edwards failed to support such point by argument and authorities, and the point is, therefore, waived. Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983). The trial court’s judgment is reversed and judgment here rendered that Edwards et al. take nothing by their suit, whether for an amount allegedly due because of monthly escalations in the contract price payable or for reimbursement for state severance taxes or for attorney’s fees sought. Tex.R.App.P. 80(b)(3).