Alcoa, Reynolds Metals Company v. Hydrochem Industrial Services, Inc., No. 13-02-00531-CV (TX 3/17/2005)
| Decision Date | 17 March 2005 |
| Docket Number | No. 13-02-00531-CV.,13-02-00531-CV. |
| Parties | ALCOA, REYNOLDS METALS COMPANY, RON WARPULA, AND PAUL STANLEY DANSER, JR., Appellants, v. HYDROCHEM INDUSTRIAL SERVICES, INC., Appellee. |
| Court | Texas Supreme Court |
On appeal from the 28th District Court of Nueces County, Texas.
Before Justices HINOJOSA, YAÑEZ, and CASTILLO.
This is an appeal from a summary judgment in a third-party action brought by appellants, ALCOA, Reynolds Metals Company, Ron Warpula, and Paul Stanley Danser, Jr. (collectively "ALCOA"), against appellee, Hydrochem Industrial Services, Inc. ("Hydrochem"), for indemnity. Noe Edward Recio, a Hydrochem employee, sued ALCOA for personal injuries he sustained on March 21, 2000, while performing his duties for Hydrochem on ALCOA's premises. ALCOA filed this third-party action against Hydrochem, seeking indemnity for its alleged negligence. Both parties moved for summary judgment. The trial court granted Hydrochem's motion and denied appellants' motion.
In eight issues, appellants contend the trial court erred in granting Hydrochem's motion for summary judgment and in denying their motion for partial summary judgment. We affirm the trial court's order denying appellants' motion for partial summary judgment. We reverse the trial court's order granting appellee's motion for summary judgment and remand the case to the trial court for further proceedings.
As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.
We review the granting of a traditional motion for summary judgment de novo. Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.-Corpus Christi 2002, no pet.). A movant for summary judgment has the burden of showing that there is no genuine issue of material fact, and he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In deciding whether to sustain summary judgment, we accept all evidence favorable to the non-movant as true, indulge the non-movant with every reasonable inference, and resolve any doubt in the non-movant's favor. Id.; ABB Kraftwerke v. Brownsville Barge & Crane, Inc., 115 S.W.3d 287, 290 (Tex. App.-Corpus Christi 2003, pet. denied). Summary judgment is proper if a plaintiff conclusively proves all elements of each claim as a matter of law, or if a defendant disproves at least one element of each of the plaintiff's claims. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). A party moving for summary judgment on the basis of an affirmative defense must expressly present and conclusively prove all essential elements of their defense as a matter of law. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997) (per curiam); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984). When both parties move for summary judgment and one motion is granted and the other denied, the appellate court must rule on all questions presented by the motions and render such judgment as the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex. 1988) (per curiam); Lorenz v. Janssen, 116 S.W.3d 421, 424 (Tex. App.-Corpus Christi 2003, no pet.).
In their seventh issue, appellants contend that Purchase Order 060972LQ controls the contractual relationship between the parties. They assert: (1) ALCOA issued PO 060972LQ to Hydrochem; and (2) Recio was injured while performing work that PO 060972LQ required Hydrochem to perform.
Hydrochem contends that PO 060972LQ had expired by its own terms, and that we should look to either the Statement of Clarifications, Modifications and Exceptions ("Statement") executed between ALCOA and Halliburton Industrial Services Division of Brown & Root ("Halliburton"), or the Addendum for Offsite Transportation executed between ALCOA and Hydrochem in August 2000.
A contract provision for an exact date of performance can be waived by the parties. Willis v. Donnelly, 118 S.W.3d 10, 28 (Tex. App.-Houston [14th Dist.] 2003, pet. filed) (op. on reh'g); Intermedics Inc. v. Grady, 683 S.W.2d 842, 846 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). An extension of time for performance can be either implied or express; if the duration is not expressly stated, the law will imply a reasonable time. Intermedics, 683 S.W.2d at 846. Id; see Triton Commer. Props. Ltd. v. Norwest Bank Tex. N.A., 1 S.W.3d 814, 819 (Tex. App.-Corpus Christi 1999, pet. denied); Ryan v. Thurmond, 481 S.W.2d 199, 206 (Tex. App.-Corpus Christi 1972, writ ref'd n.r.e.). "The extension of a term of a contract is an extension of all of its provisions." Sieber & Calicutt, Inc. v. La Gloria Oil & Gas Co., 66 S.W.3d 340, 347 (Tex. App.-Tyler 2001, pet. denied); see Double Diamond, Inc. v. Hilco Elec. Coop., Inc., 127 S.W.3d 260, 266 (Tex. App.-Waco 2003, no pet.).
In Sieber v. Calicutt, Sieber continued to perform maintenance services at a refinery owned by La Gloria well after the contract had expired by its own terms, and La Gloria continued to pay the invoices for those services. Sieber, 66 S.W.3d at 344. When a La Gloria employee died at the refinery after the expiration of the contract, the parties disputed whether the indemnity provision in the contract was still in effect. Id. at 345. The court held that because the parties had continued to operate under the contract after it had expressly expired, all provisions, including the indemnity agreement, were still in effect on the date of the employee's death. Id. at 347.
Sieber is highly analogous to the facts at hand. Even though the contract had expressly expired, both Hydrochem and ALCOA continued to operate under it. Hydrochem performed services that they billed to ALCOA under PO 060972LQ, and ALCOA continued to pay the invoices. In addition, the course of dealings between the parties showed that contracts had frequently been extended beyond their express expiration date. We conclude that the continued performance by both parties under PO 060972LQ impliedly extended the time for performance and all attending provisions.
In 1993, ALCOA and Halliburton executed a "Statement of Clarifications, Modifications and Exceptions" which was intended to supplement the general terms and conditions attached to all ALCOA Purchase Orders; where terms differed, the Statement was to control. In January 1995, Hydrochem purchased substantially all the assets of Halliburton. Hydrochem asserts that in the Bill of Sale, Halliburton assigned all of its rights under the designated contracts to Hydrochem, including the Statement. Hydrochem contends that the Statement controls its contractual relationship with ALCOA.
For an agreement to be legally binding and enforceable, it must be "complete within itself in every material detail, and contain . . . all of the essential elements of the agreement." Hardman v. Dault, 2 S.W.3d 378, 380 (Tex. App.-San Antonio 1999, no pet.) (op. on reh'g) (quoting Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995)). The terms of a contract must be defined with enough clarity and precision that a court can determine the obligations of the parties. Gannon v. Baker, 830 S.W.2d 706, 709 (Tex. App.-Houston [1st Dist.] 1992, writ denied). Where a contract leaves essential terms open for future negotiation and adjustment, there is no binding contract that can be enforced. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); Engelman Irrigation Dist. v. Shields Bros., 960 S.W.2d 343, 352 (Tex. App.-Corpus Christi 1997, pet. denied). A fatal indefiniteness in a contract may concern the time of performance, the price to be paid, the work to be done, the service to be rendered, or the property to be transferred. Engelman, 960 S.W.2d at 352; Gannon, 830 S.W.2d at 709. Whether an agreement fails for indefiniteness is a question of law to be determined by the court. See Stanley Boot, 847 S.W.2d at 222.
The Statement was intended to be incorporated, by reference, into contracts between Halliburton and ALCOA. At the time that Hydrochem purchased Halliburton's assets, no contracts existed between Halliburton and ALCOA. The Bill of Sale reflects the Statement was assigned as a stand-alone contractual agreement. However, we note the Statement does not set out what services are to be rendered, what work is to be done, the time or location for performance, or the price to be paid. The Statement merely sets out incidental terms regarding indemnity, insurance, and liability. Accordingly, we conclude the Statement lacks sufficient definition of material terms to constitute an enforceable agreement and thus, fails for indefiniteness. Because the Statement does not constitute a legally binding agreement, we hold that no enforceable rights existed under it to be assigned to Hydrochem.
Hydrochem contends, in the alternative, that if PO 060972LQ is found to have been in effect on March 21, 2000, it should be interpreted as subject to the "Addendum for Offsite Transportation" ("Addendum") executed between Hydrochem and ALCOA on August 4, 2000.
Hydrochem argues that provisions may be binding even if agreed to after performance of the work. See M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1489 (9th Cir. 1983) (...
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