Senna Hills, Ltd. and HBH Development Company, LLC v. Sonterra Energy Corporation

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

ON MOTION FOR REHEARING

NO. 03-08-00219-CV

Senna Hills, Ltd. and HBH Development Company, LLC, Appellants

v.

Sonterra Energy Corporation, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NOS. D-1-GN-05-001625 & D-1-GN-05-001526,

HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

We withdraw our opinion and judgment issued July 3, 2009, and substitute the

following opinion in place of the earlier one.

Appellants Senna Hills, Ltd. ("Senna") and HBH Development Company, LLC

("HBH") (collectively, the "Developers") brought suit against appellee Sonterra Energy Corporation

("Sonterra") for breach of contract. Sonterra currently owns and operates a propane distribution

system located on the Developers' properties. Pursuant to an agreement between the Developers and

Sonterra's predecessor in interest, the Developers agreed to encumber the properties with a

public-utility easement for the installation and operation of the propane distribution system in return

for the right to receive "easement-use fees." By their suits, the Developers asserted a continuing

right to receive the fees from Sonterra and challenged the validity of the assignment of the propane

distribution system to Sonterra in light of its refusal to continue making the easement-use fee

payments. The trial court granted summary judgment for Sonterra.

The Developers raise five issues on appeal. In issues one and two, they complain that

the trial court erred in granting Sonterra's no-evidence motion for summary judgment with respect

to the Developers' claim for reformation of the written agreement based on mutual mistake. By their

third and fourth issues, they argue that the trial court erred in granting Sonterra's traditional

summary-judgment motion as to their failure-of-assignment claims owing to their alleged third-party

beneficiary status. In their fifth issue, the Developers contend that the trial court erred in

determining that there was no ambiguity in the agreement and in granting summary judgment for

Sonterra regarding their claims for breach of contract. We will affirm the summary judgments in

part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

In January 1997, Senna and the Southern Union Company executed a letter agreement

granting Southern Union "the right to install, own, and operate a propane distribution system" in the

Senna Hills subdivision. As consideration for Southern Union's installation and operation of the

propane system, Senna agreed to file a restrictive covenant in the deed records for the affected lots

requiring buyers to pay Southern Union a gas service fee for every lot purchased. Senna further

agreed to provide Southern Union with an easement "sufficiently restricting the use of the lot such

that the installation and operation of the propane storage tank will not be inconsistent with or

impaired by any permitted use of the property." In return, the parties agreed that Southern Union

would pay Senna an easement-use fee based on a fixed percentage of Southern Union's gross

revenues from propane gas sales. The agreement further stated: "Except as provided below,

Developer's right to receive an Easement Use Fee shall continue for so long as the Propane System

is a propane system and the Propane System is owned by Southern Union."

With respect to a possible sale of the system by Southern Union, the agreement

provided that Southern Union had the right "to transfer and assign, in whole or in part, all and every

feature of its rights and obligations under this Letter Agreement and in the Propane System." In the

event of such transfer,

Southern Union shall be released from any further obligation under this Letter

Agreement and Developer agrees to look solely to Southern Union's successor for

the performance of such obligations. Southern Union agrees to require any assignee

to assume full responsibility for all Southern Union's rights and obligations

hereunder.

The following year, HBH and Southern Union executed a substantially similar

agreement regarding Southern Union's construction and operation of a propane distribution system

in HBH's subdivision, Austin's Colony Phase II. This letter agreement contained identical

provisions to those quoted above in the Senna-Southern Union agreement regarding the payment

of easement-use fees to HBH as Developer and the assignment of Southern Union's rights and

obligations under the agreement. (1)

On or about January 1, 2003, Southern Union transferred its interests in the propane

distribution system to ONEOK Propane Distribution Company ("ONEOK"). After ONEOK had

begun operating the system, the Developers filed suit against ONEOK and Southern Union for

breach of contract, asserting that ONEOK had failed to pay the easement-use fees due under the

Propane Service Agreements and that Southern Union had failed to require ONEOK to assume the

obligation to pay the fees. Alternatively, the Developers pleaded that ONEOK's failure to pay the

easement-use fees terminated its right to occupy the premises owned by the Developers and all rights

and interests in the propane distribution system, and that ONEOK had been unjustly enriched by its

operation of the propane distribution system without compensation to the Developers. The parties

filed cross-motions for summary judgment, which were pending before the trial court when ONEOK

transferred the propane distribution system to Sonterra on October 1, 2004.

Thereafter, the Developers, Southern Union, and ONEOK executed a Settlement

Agreement and Release, pursuant to which the parties non-suited their claims in the underlying

lawsuit. Under the Settlement Agreement, Southern Union agreed to pay $4,096.06 each to Senna

and HBH, and ONEOK agreed to pay $52,642 to Senna and $57,847 to HBH. The Settlement

Agreement recited that the foregoing payments

represent payment in full of (i) easement use fees . . . and satisfaction of all

obligations through October 1, 2004, due under that certain Propane Service Letter

Agreement dated January 28, 1997, between Senna and SU, and that certain Propane

Service Letter Agreement dated September 10, 1998, between HBH and SU,

(collectively, the "Propane Agreements"), and (ii) attorneys' fees incurred by Senna

and HBH.

The Settlement Agreement further provided that it did not constitute "a release,

discharge and covenant not to sue by any party to this Agreement of Sonterra" or its affiliates, and

that "Senna and HBH warrant and represent that any future lawsuit against Sonterra will be for acts

and events that occurred after the assignment by ONEOK Propane to Sonterra." Sonterra was

neither a party to that lawsuit nor a signatory to the Settlement Agreement.

Following the assignment of the system from ONEOK to Sonterra and the settlement

of the Developers' suits against Southern Union and ONEOK, the Developers filed suit against

Sonterra for breach of the Propane Service Agreements based on its refusal to pay easement-use fees.

The Developers also asserted that, as a result of Sonterra's alleged breach, they were entitled to

judgment terminating and rescinding any rights of Sonterra under the Propane Service Agreements

to possession or use of the propane distribution system, as well as a writ of possession and eviction

of Sonterra from their properties. In addition, they brought a cause of action for reformation of the

Propane Service Agreements, arguing that the parties executing the agreements had intended that,

"in the event Southern Union assigned the Propane Service Agreements, its assignee would be

responsible for payment" of the easement-use fees. Therefore, the Developers argued, "[if] this

intent did not get reduced to writing in the Propane Service Agreements, it was as a result of

accident, including scribner [sic] error, or mutual mistake."

The Developers also challenged the assignment of the propane distribution system

to Sonterra, arguing that the requirement in the Propane Services Agreement "that assignees assume

obligations thereunder" was a restriction on transfer or a condition to the effectiveness of the

assignment that had not been satisfied. As alternative grounds for relief, the Developers sought a

right to recover a "developer bonus" under the Propane Service Agreements and additional damages

under principles of equity and implied contract. Finally, the Developers argued that they were

intended third-party beneficiaries of the Asset Purchase Agreement between ONEOK and Sonterra

and, as a result, they could sue to enforce Sonterra's obligations under that instrument, which, they

maintained, included the obligation to continue to pay easement-use fees pursuant to the terms of

the Settlement Agreement between the Developers, Southern Union, and ONEOK.

Sonterra moved for summary judgment regarding Sonterra's breach-of-contract and

failure-of-assignment claims and for partial summary judgment seeking dismissal of the Developers'

claim for reformation. The Developers also moved for summary judgment on all claims. The trial

court denied the Developers' motions and Sonterra's partial summary-judgment motion, but granted

Sonterra's motion for summary judgment "in part with respect to Plaintiff's breach of contract claim

and failure of assignment claim based upon Defendant's failure to pay easement use fees," finding

that the "disputed contract language is unambiguous."

After further proceedings, Sonterra again moved for summary judgment on both

traditional and no-evidence grounds. In its no-evidence motion, Sonterra sought summary judgment

as to the Developers' claims for reformation, arguing that there was no evidence of mutual mistake

and that the Developers had not met their burden of showing either that Sonterra had notice of the

mutual mistake or that Sonterra was not a bona fide purchaser. In response to the motion, the

Developers presented the affidavit of Rip Miller, president of the general partner of Senna and

manager of HBH. Miller averred that he intended, in the event that Southern Union assigned the

Propane Service Agreements, for Southern Union's assignees to be responsible for payment of the

easement-use fees; that he understood this to be the intent of Don Scovil, who negotiated the Propane

Service Agreements on behalf of Southern Union; and that he did not intend any language in the

agreements to negate the requirement for Southern Union's assignees to assume full responsibility

for Southern Union's obligations, including payment of the easement-use fee. Miller further stated

that if the written document did not accurately reflect this intent, such error was a mistake in

reducing to writing the parties' agreement. The Developers also presented Scovil's December 2005

deposition testimony, wherein he stated that it was his intent, in negotiating the Propane Service

Agreements, that in the event of a transfer, the new buyer of the propane distribution system would

be responsible for paying easement-use fees. (2)

In its rule 166a(c) motion, Sonterra raised the following summary-judgment grounds:

(1) the court's prior ruling that the Propane Service Agreements were unambiguous as a matter of

law precluded the Developers from establishing a mutual-mistake claim; (2) even if the Developers

could establish a mutual-mistake claim, they could not seek reformation of the Propane Service

Agreements against Sonterra because Sonterra was a bona fide purchaser without notice of mutual

mistake; (3) the Settlement Agreement between the Developers, Southern Union, and ONEOK did

not create an obligation for Sonterra to pay the Developers easement-use fees; (4) Sonterra was not

required to pay the Developers a developer's bonus; and (5) ONEOK's assignment of the Propane

Service Agreements to Sonterra was valid.

The trial court granted Sonterra's no-evidence motion "with respect to Plaintiffs'

claims of mutual mistake," and its traditional motion as to Plaintiffs' claims (1) "based upon the

Asset Purchase Agreement and Settlement Agreement," (2) "based upon Failure of Assignment,"

and (3) "seeking a developer bonus arising from ONEOK's sale of the propane system to Sonterra."

After the trial court granted the parties' agreed motion to dismiss all remaining claims and

counterclaims, the Developers perfected this appeal.

STANDARDS OF REVIEW

A movant seeking traditional summary judgment on its own cause of action or

affirmative defense has the initial burden of establishing its entitlement to judgment as a matter of

law by conclusively establishing each element of its cause of action or affirmative defense.

M.D. Anderson Hosp. & Tumor Inst. v. Willrich , 28 S.W.3d 22, 23 (Tex. 2000). If the movant meets

this burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding

summary judgment. See id. In our de novo review of a trial court's summary judgment, we consider

all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not. Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a

genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light

of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754,

755 (Tex. 2007).

A no-evidence summary judgment is essentially a pretrial directed verdict, which we

review under a legal-sufficiency standard. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 750 (Tex.

2003). When a party moves for a no-evidence summary judgment under rule 166a(i), he must assert

that, after adequate time for discovery, there is no evidence of one or more essential elements of a

claim or defense on which the adverse party would have the burden of proof at trial. Tex. R. Civ.

P. 166a(i); see Fort Worth Osteopathic Hosp., Inc. v. Reese , 148 S.W.3d 94, 99 (Tex. 2004). A

no-evidence summary judgment is improper if the nonmovant brings forth more than a scintilla of

probative evidence to raise a genuine issue of material fact. Tex. R. Civ. P. 166a(i). More than a

scintilla of evidence exists when the evidence presented rises to a level that would enable reasonable

and fair-minded people to differ in their conclusions. Ford Motor Co. v. Ridgway , 135 S.W.3d 598,

601 (Tex. 2004). We review the evidence in the light most favorable to the nonmovant and disregard

all contrary evidence and inferences unless a reasonable fact finder could not. City of Keller

v. Wilson , 168 S.W.3d 802, 807 (Tex. 2005).

DISCUSSION

Ambiguity in Propane Service Agreements

Because our construction of the Propane Service Agreements necessary to resolve the

Developer's fifth issue affects our analysis of their other issues, we will address the fifth issue first.

By their fifth issue, the Developers argue that the trial court erred in granting Sonterra's first motion

for summary judgment on the basis that the Propane Service Agreements were not ambiguous. In

its motion, Sonterra asserted that it was entitled to judgment as a matter of law as to the Developers'

claims for breach of contract and failure of assignment because the Propane Service Agreements

unambiguously provided that the Developers' right to receive easement-use fees would continue only

for so long as the propane distribution system was owned by Southern Union, i.e. , if and when

Southern Union sold the system, the Developers would have no further right to receive any

easement-use fees. In so arguing, Sonterra relied on the plain language of the "Easement Use Fee"

provision common to both letter agreements, which states: "Except as provided below, Developer's

right to receive an Easement Use Fee shall continue for so long as the Propane System is a propane

system and the Propane System is owned by Southern Union."

Sonterra asserted that this clause defeated the Developers' claims because, once

Southern Union assigned the system to ONEOK, "there was no longer an obligation to pay easement

use fees within the Agreement that was assignable," and therefore ONEOK "could not, and did not,

assign any obligation to pay easement use fees due under the Agreement when it assigned it to

Sonterra." The Developers, on the other hand, urge that the Easement Use Fee provision must be

read in conjunction with the later provision entitled "Assignments," which provides that, in the event

of transfer:

Southern Union shall be released from any further obligation under this Letter

Agreement and Developer agrees to look solely to Southern Union's successor for

the performance of such obligations. Southern Union agrees to require any

assignee to assume full responsibility for all Southern Union's rights and

obligations hereunder.

Therefore, the Developers argue, the requirement to pay easement-use fees as set forth in the first

provision is an "obligation" that Southern Union's assignee must assume in accordance with the

second provision. In light of this construction, the Developers maintain that the Propane Service

Agreements are ambiguous because they are susceptible to more than one reasonable interpretation:

either the system owner's obligation to pay the Developers easement-use fees continued

post-assignment and was assumed by the assignee, as they argue, or any and all right to receive the

fee ceased when Southern Union assigned the system, as Sonterra asserted. See Frost Nat'l Bank

v. L & F Distribs., Ltd. , 165 S.W.3d 310, 312 (Tex. 2005) ("[A] contract is ambiguous if it is

susceptible to more than one reasonable interpretation."). Accordingly, the Developers maintain that

the trial court erred in finding that the Propane Service Agreements were not ambiguous and that the

order granting Sonterra's motion for summary judgment must be reversed.

Deciding whether a contract is ambiguous is a question of law for the court.

Coker v. Coker , 650 S.W.2d 391, 394 (Tex. 1983). In construing a written agreement, we first

determine whether it is possible to enforce the contract as it is written. J.M. Davidson, Inc.

v. Webster , 128 S.W.3d 223, 229 (Tex. 2003). In so doing, we must ascertain and give effect to the

parties' intentions as expressed in the document. Id. ; Lopez v. Munoz, Hockema & Reed, L.L.P. ,

22 S.W.3d 857, 861 (Tex. 2000). We consider the entire writing and attempt to harmonize and give

effect to all the provisions of the contract by analyzing the provisions with reference to the whole

agreement. Webster , 128 S.W.3d at 229 . We construe contracts "from a utilitarian standpoint

bearing in mind the particular business activity sought to be served" and "will avoid when possible

and proper a construction which is unreasonable, inequitable, and oppressive." Reilly v. Rangers

Mgmt., Inc. , 727 S.W.2d 527, 530 (Tex. 1987). If, after the pertinent rules of construction are

applied, the contract can be given a definite or certain legal meaning, it is unambiguous and we

construe it as a matter of law. Webster , 128 S.W.3d at 229 . Only after a contract is found to be

ambiguous may parol evidence be admitted for the purpose of ascertaining the true intentions of the

parties as expressed in the contract. Friendswood Dev. Co. v. McDade + Co. , 926 S.W.2d 280, 283

(Tex. 1996) (citing National Union Fire Ins. v. CBI Indus., Inc. , 907 S.W.2d 517, 521 (Tex. 1995)).

Because we conclude that the contract language here can be given a definite legal meaning and is

not susceptible to more than one reasonable meaning, we hold that it is unambiguous.

Read together, the "Easement Use Fee" and "Assignments" provisions of the Propane

Service Agreements reflect an intent to accomplish two related but distinct goals regarding the

payment of easement-use fees. First, by declaring that the Developers' right to receive easement-use

fees "shall continue for so long as the Propane System is a propane system and the Propane System

is owned by Southern Union," the Easement Use Fee provision released Southern Union from any

further obligation to pay easement-use fees in the event that it no longer owned the propane

distribution system. This intent is also echoed in the Assignments provision, which states that

"Southern Union shall be released from any further obligation under this Letter Agreement

and Developer agrees to look solely to Southern Union's successor for the performance of

such obligations."

Second, the Propane Service Agreements reveal an intent to allow the Developers to

continue receiving easement-use fees in the event of an assignment of the propane distribution

system. To that end, the Assignments provision sets forth that "Southern Union agrees to require

any assignee to assume full responsibility for all Southern Union's rights and obligations

hereunder"--including, as the Developers point out, the obligation to pay easement-use fees. We

therefore reject Sonterra's position that the Propane Service Agreements unambiguously terminated

the Developers' right to receive any and all future easement-use fee payments when Southern Union

transferred the system. But, contrary to the Developers' interpretation, the Propane Service

Agreements themselves do not directly bind Southern Union's assignee to make the easement-use

payments; rather, the agreements obligate Southern Union to require its assignee to agree to an

assumption of Southern Union's obligations under the Propane Service Agreements, including the

responsibility for payment of the easement-use fees. Put differently, while the Propane Service

Agreements evidence an intent for the Developers to continuing receiving easement-use fees, those

agreements do not, themselves, directly impose an obligation on any future assignee to pay the fees.

Instead, the agreements made it Southern Union's responsibility to require its assignee to take on the

obligation to pay easement-use fees, which in this case means that Southern Union was obligated

to require ONEOK to assume all of Southern Union's obligations under the agreements, including

the obligation to pay easement-use fees. (3)

Thus, by their plain language, the Propane Service Agreements imposed two distinct

obligations on Southern Union regarding payment of easement-use fees: (1) to pay easement-use

fees to the Developers for as long as it owned the propane distribution system, and (2) to require its

assignee to assume all of its contractual obligations, including the obligation to pay the easement-use

fees to the Developers. The provisions setting forth these obligations are not in conflict with one

another and do not impose inconsistent obligations. They neither mandate permanent termination

of the Developers' right to receive easement-use fees in the event Southern Union transferred

ownership of the system, nor do they create a direct obligation for the assignee of the system to pay

the fees due.

The Developers' assertion that the Propane Service Agreements are ambiguous is

premised on their erroneous conflation of the duties that the agreements imposed on Southern Union

and the obligation that the agreements contemplate--but do not themselves require--for an assignee.

To the extent that an assignee would have an obligation to pay easement-use fees, such obligation

must arise under some other instrument ( e.g. , the agreement between Southern Union and ONEOK,

which we note is not a part of the appellate record). The Propane Service Agreements themselves,

however, do not support the Developers' claims for breach of contract against the assignee of the

propane distribution system.

Because the Propane Service Agreements are not ambiguous, and because they do

not, themselves, obligate Sonterra to pay easement-use fees to the Developers, the trial court did not

err in granting Sonterra's first motion for summary judgment with respect to the Developers' claims

for breach of contract. We overrule the Developers' fifth issue.

Mutual Mistake

In their first issue, the Developers argue that the trial court erred in granting

Sonterra's no-evidence motion for summary judgment because the evidence raised a fact issue as to

their claim of mutual mistake. As a preliminary matter, we first address the Developers' complaints

regarding the sufficiency of Sonterra's motion.

On appeal, the Developers argue that Sonterra's motion was incurably defective

because it failed to specify the elements as to which there was no evidence. We first note that the

Developers did not contest the adequacy of the motion to the trial court. See McConnell v. Southside

Indep. Sch. Dist. , 858 S.W.2d 337, 342-43 (Tex. 1993) (holding that in order for nonmovant to

complain on appeal that grounds raised in motion for summary judgment were unclear, nonmovant

must file exception to motion); Lochabay v. Southwestern Bell Media, Inc. , 828 S.W.2d 167 , 170 n.2

(Tex. App.--Austin 1992, no writ) (same). Assuming without deciding that the Developers

preserved their complaint as to the sufficiency of the motion in such circumstances, we conclude

that the motion was sufficiently specific as to the elements that Sonterra challenged on

no-evidence grounds.

By their third amended petition, after the trial court had partially granted Sonterra's

motion for summary judgment as to their breach-of-contract claims, the Developers asserted a cause

of action for reformation of the Propane Service Agreements. Specifically, they pleaded that the

parties to the Propane Service Agreements intended for Southern Union's assignee to be responsible

for payment of the easement-use fees, and if this intent did not get reduced to writing in the Propane

Service Agreements, "it was a result of accident, including scribner [sic] error, or mutual mistake,

made after the original agreement." The Developers thus sought "reformation of the Propane Service

Agreement to conform to the parties' intent." Reformation requires two elements: (1) an original

agreement and (2) a mutual mistake, made after the original agreement, in reducing the original

agreement to writing. Cherokee Water Co. v. Forderhause, 741 S.W.2d 377, 379 (Tex. 1987);

Bollner v. Plastics Solutions of Tex., Inc. , 270 S.W.3d 157, 169 (Tex. App.--El Paso 2008, no pet.).

Sonterra's motion asserts that the Developers presented no evidence of mutual

mistake. Mutual mistake is an essential element of reformation, see Cherokee Water ,

741 S.W.2d at 379 , a claim on which the Developers would have the burden of proof at trial,

see Tex. R. Civ. P. 166a(i) (no-evidence motion must state elements of claim or defense on which

adverse party would have burden of proof at trial and as to which there is no evidence). Therefore,

Sonterra's motion satisfied rule 166a(i) and was properly before the trial court for its consideration.

In arguing that its summary-judgment evidence raised a fact issue as to mutual

mistake, the Developers point to Miller and Scovil's testimony to the effect that both parties intended

for the easement-use fees to continue if the system was ever assigned. As we have explained above,

however, that intent was in fact expressed in the Propane Service Agreements as written. The

language of the agreements is consistent with the evidence on which the Developers rely in their

attempt to establish mutual mistake. In his deposition, Scovil stated, "[T]here was a provision in the

contract that if Southern Union sold [the system], then the assignee would be responsible for paying

the Easement Use Fees." He further testified that he intended "on the assignments [provision] . . .

to provide a way where Southern Union could sell it's [sic] system, or the developer could sell it's

[sic] system" and "accordingly, Southern Union would have the ability to sign [sic] all of its rights

and obligations to whoever purchased the system," including the payment of easement-use fees to

the Developers; that he did not intend to relieve any person who acquired the system from Southern

Union of the obligation to pay the easement-use fees; and that the purpose of the "Easement Use

Fee" paragraph was "to establish no recourse" against Southern Union "in the event that a person

who purchase[d] the system defaulted." Miller's affidavit expressed a similar intent.

According to the evidence, the parties made no mistake in preparing and drafting the

Propane Service Agreements. The agreements, by their plain language, accomplish what the

contracting parties testified that they intended the agreements to do: (1) create an obligation for

Southern Union to pay easement-use fees to the Developers as long as Southern Union owned the

system, and (2) create a mechanism by which the Developers would continue to receive

easement-use fees after any sale of the system by Southern Union. What the Developers now urge

is that the agreements themselves directly obligate--or were intended to obligate--an assignee of

the system to pay the Developers easement-use fees. That position, however, is simply not supported

by the unambiguous terms of the Propane Service Agreements. Because the "Assignments"

provision as it is written satisfies the parties' stated intentions regarding the "continuing" nature of

easement-use fee payments, we decline to enlarge that provision to impose an affirmative obligation

on the assignee. See Clemmens v. Kennedy , 68 S.W.2d 321, 324 (Tex. Civ. App.--Texarkana 1934,

writ ref'd) (holding that court had no power to change contract actually made and truly embodied

in written instrument on basis of reformation when evidence showed that parties made no mistake

in preparing or drafting deed). Accordingly, we hold that the Developers were not entitled to

reformation of the Propane Service Agreements and overrule the Developers' first issue.

Bona Fide Purchaser

In their second issue, the Developers argue that, "if the trial court's March 18, 2008

order is construed to include Sonterra's no-evidence ground '(2)' as to the bona fide purchaser issue,

then the trial court erred in granting Sonterra's no-evidence motion on such ground." (4) Having

determined that Sonterra's no-evidence motion seeking judgment as a matter of law on the

Developers' reformation action was properly granted on the basis that the Developers had presented

no evidence of mutual mistake, we need not address the other grounds raised in Sonterra's motion.

See Provident Life and Accident Ins. Co. v. Knott , 128 S.W.3d 211, 223 (Tex. 2003); see also

Tex. R. App. P. 47.1. We overrule the Developers' second issue.

Third-Party Beneficiary Claims

By their third issue, the Developers argue that the trial court erred in granting

Sonterra's motion for summary judgment as to their third-party beneficiary claims arising under the

Asset Purchase Agreement between ONEOK and Sonterra and the Settlement Agreement between

the Developers, Southern Union, and ONEOK. The Developers pleaded that, as third-party

beneficiaries, they could sue Sonterra under those agreements, which they argued entitled them to

the continued payment of easement-use fees.

As discussed previously, ONEOK transferred the propane distribution system to

Sonterra while the Developers' suits against ONEOK and Southern Union were still pending. The

Asset Purchase Agreement contained provisions that spoke to the ongoing litigation between these

parties. Specifically, the Asset Purchase Agreement provided in section 6.4(c):

In the event final adjudication or settlement of either or both of the Austin's Colony

Matter and the Senna Hills Matter results in the easement use fee obligation

continuing under either or both of the developer agreements at issue in these matters,

[Sonterra] agrees to enter into any amendment to the developer agreements or new

developer agreements as necessary that requires [Sonterra] to pay easement use fees

subsequent to the Effective Date on the same terms and conditions as the existing

developer agreements.

The Developers argue on appeal that the Settlement Agreement executed by the

Developers, Southern Union, and ONEOK "results in the easement use fee obligation continuing"

because, pursuant to the settlement, Southern Union and ONEOK paid all easement-use fees due

from them to the date of ONEOK's transfer of the system to Sonterra. The Settlement Agreement

stated that Southern Union and ONEOK agreed to pay certain sums to the Developers as "payment

in full of (i) easement use fees" and (ii) attorney's fees in "satisfaction of all obligations through

October 1, 2004." Thus, the Developers maintain, Sonterra was required under the Asset Purchase

Agreement either to amend the Propane Service Agreements or to enter into new developer

agreements so that it would be required to pay easement-use fees "subsequent to the Effective Date"

of the transfer of ownership of the propane distribution system. The Developers further argue that,

because the only existing "developer agreements at issue in this matter" were with them--Senna and

HBH--this provision of the Asset Purchase Agreement must be interpreted to mean that they are

third-party beneficiaries of that agreement and can sue to enforce Sonterra's obligations thereunder.

Sonterra responds that the Developers cannot assert breach-of-contract claims against

it under the Settlement Agreement because Sonterra was not a party to the settlement and did not

expressly agree to any of the obligations that the Settlement Agreement allegedly created. Similarly,

Sonterra argues that the Developers cannot assert such claims under the Asset Purchase Agreement

because they were neither parties to that agreement, nor were they intended third-party beneficiaries.

With respect to the Developers' claims arising under the Asset Purchase Agreement, Sonterra further

argues that even if the Developers could be considered third-party beneficiaries under that

agreement, the easement-use fee obligation did not "continue" as a result of the Developers'

settlement with Southern Union and ONEOK, so section 6.4(c) of the Asset Purchase Agreement

was not triggered.

Our analysis of the third-party beneficiary issue, which is governed by

well-established principles of contract interpretation, turns on our analysis of these agreements.

See MCI Telecomms. Corp. v. Texas Utils. Elec. Co. , 995 S.W.2d 647, 650 (Tex. 1999). In the past

ten years, the Texas Supreme Court has written at least three times on the subject of third-party

beneficiaries. Those opinions provide guidance for the present case:

A third party may recover on a contract made between other parties only if the parties

intended to secure some benefit to that third party, and only if the contracting parties

entered into the contract directly for the third party's benefit.

To qualify as one for whose benefit the contract was made, the third party

must show that he is either a donee or creditor beneficiary of, and not one who is

benefited only incidentally by the performance of, the contract. . . .

In determining whether a third party can enforce a contract, the intention of

the contracting parties is controlling. A court will not create a third-party beneficiary

contract by implication. The intention to contract or confer a direct benefit to a third

party must be clearly and fully spelled out or enforcement by the third party must be

denied. Consequently, a presumption exists that parties contracted for themselves

unless it "clearly appears" that they intended a third party to benefit from the

contract.

Id. at 651 (citations omitted); accord South Tex. Water Auth. v. Lomas , 223 S.W.3d 304, 306 (Tex.

2007); In re Palm Harbor Homes, Inc. , 195 S.W.3d 672, 677 (Tex. 2006); Stine v. Stewart ,

80 S.W.3d 586, 589 (Tex. 2002).

Applying these principles here, we must first determine whether the Asset Purchase

Agreement evidences an intent on the part of ONEOK and Sonterra to secure some direct benefit for

the Developers, thus allowing the Developers to enforce that agreement even though they were not

parties to it. See MCI , 995 S.W.2d at 651 . If we determine that ONEOK and Sonterra did so intend,

we then consider whether the settlement of the Developers' suits against Southern Union and

ONEOK resulted in the easement-use fee obligation "continuing" under the Propane Service

Agreements, thereby triggering an obligation on the part of Sonterra that the Developers could seek

to enforce.

Sonterra argues initially that recognizing the Developers' third-party rights under the

Asset Purchase Agreement would be inconsistent with section 11.14 of the agreement, which is

entitled "No-Third Party Beneficiaries" and provides as follows: "Except as otherwise provided in

this Agreement, nothing contained in this Agreement shall entitle anyone other than Seller [ONEOK]

or Buyer [Sonterra] or their authorized successors and assigns to any claim, cause of action, remedy

or right of any kind whatsoever." While this provision is certainly evidence of the contracting

parties' intent, we cannot ignore the clause "[e]xcept as otherwise provided in this Agreement . . . ."

In its recent third-party beneficiary cases, the supreme court has emphasized that in determining the

parties' intent, "we examine the entire agreement in an effort to harmonize and give effect to all

provisions of the contract so that none will be meaningless." Id. at 652 ; accord Stine , 80 S.W.3d at

589 . The mere inclusion of a provision expressly disavowing third-party beneficiaries is not

dispositive and must be read in concert with other contractual provisions acknowledging the rights

of third parties. See MCI , 995 S.W.2d at 652 . Accordingly, we must examine the entire agreement

to see if a different intent is "otherwise provided" therein.

As discussed above, section 6.4 of the Asset Purchase Agreement, which appears

under the heading " PRE-CLOSING CONDUCT AND COVENANTS ," contains a series of

provisions concerning the litigation involving Austin Colony and Senna Hills. It states that, after

closing, Sonterra would assume all liability for the Austin's Colony and Senna Hills matters and

ONEOK would be entitled to any recoveries, collections of money, judgments, or other benefits

relating to the litigation. Further, it provides that if the final adjudication or settlement of either or

both of the Austin's Colony Matter and the Senna Hills Matter results in the easement-use fee

obligation continuing under either or both of the developer agreements at issue in these matters,

Sonterra must "enter into any amendment to the developer agreements or new developer agreements

as necessary that requires [it] to pay easement use fees subsequent to the Effective Date on the same

terms and conditions as the existing developer agreements." For the reasons that follow, we agree

with the Developers that this language in section 6.4 of the Asset Purchase Agreement provides

for third-party benefits in their favor and thus recognizes the sort of exception contemplated by

section 11.14.

"To qualify as one for whose benefit the contract was made, the third party must show

that he is either a donee or creditor beneficiary of, and not one who is benefited only incidentally by

the performance of, the contract." MCI , 995 S.W.2d at 651 . One is a donee beneficiary if the

performance promised will, when rendered, come to him as a pure donation, while a creditor

beneficiary is one to whom performance will come in satisfaction of a legal duty owed to him by the

promisee. Id. This duty may be an indebtedness, contractual obligation, or other legally enforceable

commitment owed to the third party. Id. ; see Stine , 80 S.W.3d at 589 .

The Developers argue that they are creditor beneficiaries because the Asset Purchase

Agreement identifies them by reference to the ongoing Austin's Colony and Senna Hills litigation,

recognizes an obligation that would inure to their benefit, and binds Sonterra to perform that

obligation. Sonterra responds that, like the contract at issue in MCI , which was held not to confer

third-party beneficiary status on the claimant, the Asset Purchase Agreement fails to indicate that the

contract between it and ONEOK was entered into for the Developers' direct benefit. Evidence

of any intent to confer a benefit on the Developers is lacking, Sonterra maintains, because

"the Developers are never even mentioned anywhere in the document and nothing therein

is commensurate with a statement that the [Asset Purchase Agreement] 'inured to the benefit of

the Developers.'"

Although some cases involving third-party beneficiary issues have pointed out when

a contract does or does not identify a would-be third-party beneficiary by name, see Lomas ,

223 S.W.3d at 306 , or when a contract expressly states that it "inures to the benefit" of the third

party, see Palm Harbor Homes , 195 S.W.3d at 677 , the Texas Supreme Court has never held that

these are requirements that must be satisfied before a party can be deemed a third-party beneficiary.

On the contrary, the supreme court has indicated that an intended third-party beneficiary need not

be specifically named, so long as the intent to benefit him is clear. See Knox v. Ball , 191 S.W.2d 17,

23-24 (Tex. 1945); see also MCI , 995 S.W.2d at 651-52 (deciding issue based not on fact that

contract failed to identify third party by name among class of licensees whose rights were

acknowledged in contract, but because contract did not evidence intent to provide party with any

direct benefit).

Put another way, the requisite intent to confer third-party beneficiary status is

manifest if express reference is made to the contracting parties' obligation to a specific third party

and it is unmistakable that the contracting parties contemplated conferring on the third party the right

to enforce the obligation. Union Pac. R.R. Co. v. Novus Int'l, Inc. , 113 S.W.3d 418, 422 (Tex.

App.--Houston [1st Dist.] 2003, pet. denied); see Restatement (2d) of Contracts § 302(1) (1981)

("[A] beneficiary of a promise is an intended beneficiary if recognition of a right to performance in

the beneficiary is appropriate to effectuate the intention of the parties and . . . the performance of the

promise will satisfy an obligation of the promisee to pay money to the beneficiary" or "the

circumstances indicate that the promisee intends to give the beneficiary the benefit of the

promised performance."). Here, section 6.4 of the Asset Purchase Agreement (1) acknowledges the

easement-use fee obligation contained in the existing Propane Service Agreements and (2) obligates

Sonterra to agree to pay easement-use fees "on the same terms and conditions" as the existing

agreements in the event that the easement-use fee obligation is "continuing" after the final

adjudication or settlement of the Developers' claims. While this provision does not name "Senna"

or "HBH," it does specifically refer to their right to receive easement-use fees in "the

Austin's Colony Matter and the Senna Hills Matter . . . on the same terms and conditions as the

existing developer agreements." We find Sonterra's attempts to argue that this provision "does not

actually refer to 'the developers' at all" to be contrary to the plain meaning of the agreement. See

Heritage Res., Inc. v. NationsBank , 939 S.W.2d 118, 121 (Tex. 1996) (we construe contracts in

common-sense fashion, giving terms their plain and ordinary meaning).

Nor are we persuaded by Sonterra's arguments that because the Asset Purchase

Agreement, by and large, pertains to contractual dealings allocating liability between it and ONEOK,

it cannot be interpreted to have been made for the benefit of the Developers as third-party

beneficiaries. "[A] third-party beneficiary does not have to show that the signatories executed the

contract solely to benefit her as a non-contracting party. Rather, the focus is on whether the

contracting parties intended, at least in part, to discharge an obligation owed to the third party."

Stine , 80 S.W.3d at 591 . The Asset Purchase Agreement, like the contract at issue in Stine , was

obviously not for the Developers' sole benefit. Yet we cannot overlook those provisions in the

agreement that expressly state that the payment of easement-use fees is an obligation that Sonterra

must perform, simply because the larger purpose of the agreement was unrelated to that obligation.

Cf. id. at 588, 590-91 (recognizing that purpose of agreement was to dispose of contracting parties'

marital property but recognizing third-party rights of nonsignatory when agreement acknowledged

obligation to third party and directed parties to apply proceeds from sale of property to that debt).

Although conditioned on the outcome of ONEOK and Southern Union's settlement

and whether that results in the easement-use fee obligation "continuing," Sonterra's obligation itself

is unambiguous: Sonterra must enter into an agreement, or amend the existing agreements assigned

to it, requiring it to pay easement-use fees. Sonterra does not argue, nor does the relevant case law

suggest, that the mere inclusion of such a triggering condition will obviate the clear intent of the

contracting parties to create an obligation for the benefit of third parties. See, e.g. , In re Golden

Peanut Co., LLC , 269 S.W.3d 302, 313-14 (Tex. App.--Eastland 2008, no pet.) (court determined

that plaintiff spouse was intended third-party beneficiary of agreement between decedent husband

and his employer, but held that whether parties to agreement intended it to include wrongful-death

claim by surviving spouse was fact question; "This holding is without prejudice to the parties' right

to pursue the arbitration agreement's application to [plaintiff] as a third-party beneficiary further in

the trial court."). (5)

In order to "harmonize and give effect to all provisions of the contract so that none

will be meaningless," see MCI , 998 S.W.2d at 652, we must interpret section 6.4(c) as an exception

"provided in this Agreement." Because we cannot read section 11.14 to negate the rights conferred

by section 6.4(c) on the Developers, we hold that they are intended third-party beneficiaries of the

Asset Purchase Agreement.

Accordingly, we now turn to the question of whether the "settlement of either or both

of the Austin's Colony Matter and the Senna Hills Matter result[ed] in the easement use fee

obligation continuing under either or both of the developer agreements at issue in these matters,"

i.e. , the Propane Service Agreements. If it did not, as Sonterra maintains, then Sonterra was under

no obligation "to enter into any amendment to the developer agreements or new developer

agreements as necessary [requiring it] to pay easement use fees subsequent to [October 1, 2004,] the

Effective Date" of the transfer of the system to Sonterra. If, however, the settlement did result in the

easement-use fee obligation "continuing," then Sonterra has breached this provision of the Asset

Purchase Agreement by failing to enter into the necessary agreements.

We conclude that the language of the Asset Purchase Agreement is ambiguous as to

the meaning of "continuing." See Webster , 128 S.W.3d at 231 (holding that court may conclude that

contract is ambiguous even in absence of such pleading by either party); Coker , 650 S.W.2d at 393

(concluding that agreement was ambiguous even though both parties asserted it was unambiguous

and moved for summary judgment). A contract is ambiguous when its meaning is uncertain and

doubtful or it is reasonably susceptible to more than one meaning. Coker , 650 S.W.2d at 393 -94

(citing Skelly Oil Co. v. Archer , 356 S.W.2d 774, 778 (1962)). In this case, the language concerning

whether the easement-use fee obligation is "continuing" as a result of the settlement of the

Developers' claims is ambiguous because it is susceptible to at least two different reasonable

meanings. In these circumstances, "continuing" could refer to an obligation established from the

time the Propane Service Agreements were executed and as part of those agreements-- i.e. , an

obligation that "continued" into the future, past any system transfer, without regard or reference to

any other agreement. This is the construction that Sonterra urges, as evidenced by its assertion that

"the Settlement Agreement does not in any way claim that the easement use fees 'continue.'"

Indeed, for the Settlement Agreement to create a "continuing" obligation beyond the effective date

of the system transfer, it would have to create an obligation on the part of Sonterra, which it could

not do, as Sonterra was not a party to the settlement.

But "continuing" could also reasonably be construed to mean that if, as a result of the

settlement, the Developers were entitled to receive any further easement-use fees after the point

in time when Southern Union and ONEOK had asserted that such entitlement ceased--namely,

January 1, 2003, when Southern Union transferred the system to ONEOK--then the obligation to

make easement-use fee payments could be regarded as "continuing" from the perspective of the

Developers. Put differently, since ONEOK had taken the same position that Sonterra adopted in

this case-- i.e. , that the Developers' right to receive easement-use fees ceased forever when

Southern Union transferred the system--then an acknowledgment by ONEOK that it did in fact owe

easement-use fees to the Developers after the transfer from Southern Union took place could

reasonably be understood as a "continuation" of the obligation to pay the fees. Thus, the statements

in the Settlement Agreement that ONEOK's payments of $52,642 to Senna and $57,847 to HBH

representing "payment in full" of easement-use fees and satisfaction of all obligations through

October 1, 2004, due under the Propane Service Agreements could arguably support a claim that the

obligation "continued," thereby triggering Sonterra's obligations under section 6.4(c) of the Asset

Purchase Agreement.

In light of this ambiguity, "the granting of a motion for summary judgment [was]

improper because the interpretation of the instrument becomes a fact issue." Coker , 650 S.W.2d at

394 (citing Harris v. Rowe , 593 S.W.2d 303, 306 (Tex. 1980)). "The trier of fact must resolve the

ambiguity by determining the true intent of the parties." Id. ; Trinity Universal Ins. Co. v. Ponsford

Bros. , 423 S.W.2d 571, 575 (Tex. 1968). We therefore sustain the Developers' third issue on appeal

and hold that the trial court erred in granting Sonterra's motion for summary judgment as to the

Developers' third-party claims arising under the Asset Purchase Agreement.

Failure of Assignment

By their fourth issue, the Developers argue that the trial court erred in granting

Sonterra's second motion for summary judgment with respect to their claims based on failure of the

assignment of the system from ONEOK to Sonterra.

In addition to seeking damages for breach of contract, the Developers pleaded that

Sonterra's refusal to pay easement-use fees due under the Propane Service Agreements rendered the

assignment from ONEOK to Sonterra "ineffective." The Developers premised this complaint on

(1) their reading of the "Assignments" provision of the Propane Service Agreements as a restriction

on transfer, and (2) their alleged third-party beneficiary status as derived under the Asset Purchase

Agreement between ONEOK and Sonterra, which contained the following provision:

Should any of the Assets be subject to a valid consent to assign or other restriction

on transfer as to which the assignment hereunder would be a breach of such

obligation or result in the termination of such Asset(s), then any such Asset(s) shall

be deemed not transferred hereunder unless and until such consent or other

restriction is obtained or waived from or by the third party having such right.

(Emphases added.) Thus, the Developers asserted that, as third-party beneficiaries of the

ONEOK-Sonterra Asset Purchase Agreement, they had the right to "enforce the transfer restriction

(or transfer voidance) provision" of that agreement. We disagree.

The Assignments provision of the Propane Service Agreements is not a restriction

on transfer. It states only that Southern Union has an affirmative obligation "to require any assignee

to assume full responsibility for all of Southern Union's rights and obligations" under those

agreements. By its own terms, it poses no "restriction" and is silent as to what effect noncompliance

with the provision has on the validity of the transfer. Cf. OAIC Commercial Assets, L.L.C.

v. Stonegate Vill., L.P. , 234 S.W.3d 726 , 733 n.3 (Tex. App.--Dallas 2007, pet. denied) (giving

effect to restriction on transfer stating that "no Partner shall Transfer all or any portion of its Interest

or any rights therein" under certain conditions and that any transfer or attempted transfer in violation

of stated conditions "shall be null and void and of no effect whatever").

Moreover, the record contains no evidence that the Developers' consent was required

in order to effect transfer of any asset subject to the Asset Purchase Agreement between ONEOK

and Sonterra. Thus, to the extent that a "failure of assignment" cause of action even exists under

Texas law, the Asset Purchase Agreement does not support recovery under such a theory in this case.

As Sonterra points out, the provision on which the Developers rely prevents the transfer of an asset

(1) in the event such transfer would cause a breach or termination of the asset or (2) if the transfer

is conditioned upon the consent of a third party and that consent has not been obtained. The

Developers' argument regarding Sonterra's "failure and refusal to pay easement-use fees" after

ONEOK transferred the system assets does not fall within either of the situations contemplated by

this provision.

Furthermore, as we have previously discussed, the Asset Purchase Agreement

contains a clause that precludes a third party from asserting claims under the agreement "[e]xcept

as otherwise provided in the Agreement." The Agreement, however, contains no provision that

confers on any third party the right to challenge the validity of the transfer of the system from

ONEOK to Sonterra. "The intent to confer a direct benefit upon a third party 'must be clearly and

fully spelled out or enforcement by the third party must be denied.'" Lomas , 223 S.W.3d at 306

(quoting MCI , 995 S.W.2d at 651 ). Despite the absence of such intent, the Developers nonetheless

argue that the "No Third-Party Beneficiaries" provision itself demonstrates "that both Sonterra and

ONEOK expressly acknowledged third party beneficiaries in their asset purchase agreement." On

the contrary, although the agreement acknowledges that if a third party possesses a right to restrict

the transfer of an asset subject to the agreement by withholding its consent, it may do so, it does not,

directly or indirectly, confer such a right on any party. See id. ("A third party may only enforce a

contract when the contracting parties themselves intend to secure some benefit for the third party and

entered into the contract directly for the third party's benefit.").

We hold that the trial court properly granted summary judgment in favor of Sonterra

on the Developers' failure-of-assignment claims and overrule the Developers' fourth issue.

CONCLUSION

We reverse the trial court's summary judgment with respect to the Developers'

third-party beneficiary claim for breach of the Asset Purchase Agreement, and we remand that

portion of the cause to the trial court for further proceedings consistent with this opinion. We affirm

the remainder of the trial court's judgment.

J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Dissenting Opinion by Justice Puryear

Affirmed in part; Reversed and Remanded in part on Motion for Rehearing

Filed: January 15, 2010

1. For convenience, we will refer to the Senna-Southern Union and HBH-Southern Union

letter agreements collectively as the "Propane Service Agreements."

2. Scovil testified as follows:

Q. Can you tell us whether or not you agreed with Mr. Miller on behalf--you

acting on behalf of Southern Union, he acting on behalf of HBH and Senna

Hills, that if Southern Union were to sell the systems, that whoever bought

them would continue to be responsible for and would continue to pay the

Easement Use Fee?

A. Yes. The agreement--what also then relieves Southern Union of it's [sic]

obligation to pay Easement Use Fees because the property was then assigned

and sold to someone else.

Q. And to your understanding was your agreement that the new buyer would be

responsible for those fees; can you state whether or not that was your

understanding?

A. Yes, that was my intent.

Scovil further testified that he instructed the Southern Union attorney who drafted the Propane

Service Agreements, "I want a provision in there that, you know, if the system was ever sold, [then]

the [easement] use fees would continue."

3. The Developers apparently recognized that the Propane Service Agreements so required,

as they initially asserted a breach-of-contract claim against Southern Union for failing to require

ONEOK to assume the obligation to pay the fees.

4. The trial court's order granting Sonterra's motion states, "Defendant's No Evidence Motion

for Summary Judgment with respect to Plaintiffs' claims of mutual mistake in both [cause numbers]

is hereby GRANTED."

5.

Stine v. Stewart is also instructive on this point. 80 S.W.3d 586 (Tex. 2002). The

agreement at issue in that case, like the agreement here, phrased the parties' obligation to the third

party conditionally: " if Stewart sold [the property], he agreed that any monies owing to Stine are to

be paid in the current principal sum of $50,000." Id. at 588 (emphases added). The court of appeals

had held that Stine was not a third-party beneficiary because the agreement did not "clearly and

unequivocally" acknowledge the debt owed to Stine and, therefore, did not express Stewart's

willingness to pay any debt. Id. at 589 . Reversing, the supreme court determined that the

acknowledgment of the debt and reference to the unpaid principal sum were sufficient evidence of

Stewart's intent, by the agreement, to confer a benefit on Stine and held that Stine could sue to

enforce the agreement even though she was not a signatory to it, in the event that the property was

sold. Id. at 590-91 . Likewise, the agreement in our case premised Sonterra's obligation upon some

future event.