Wade Oil & Gas, Inc. v. Telesis Operating Co., Inc., Vantage Energy, LLC and Vantage Fort Worth Energy, LLC
417 S.W.3d 531
Tex. App.2013Background
- In 2004 Telesis received mineral properties subject to a separate 2% override assignment (the BARA Override Assignment) previously conveyed by BARA to Glenn Wade.
- In November 2007 Telesis and Wade executed an Exclusive Listing Agreement granting Wade the exclusive right to solicit offers for certain mineral properties during a three-month term (Nov 13, 2007–Feb 9, 2008) and setting out compensation: cash commissions and a 2% of 8/8ths ORRI for Exhibit A working-interest sales.
- The listing contract provided that if Telesis received an offer within 180 days after the term from a purchaser “identified by Wade to Telesis during the Term,” Wade would be compensated per the Agreement.
- During the term Vantage independently contacted Telesis about buying some properties (not solicited by Wade); Telesis later closed a sale to Vantage during the 180‑day tail and paid Wade 1% cash but not the 2% ORRI override.
- Wade sued Telesis and Vantage for breach of the Exclusive Listing Agreement, specific performance, declaratory relief, and alleged Vantage breached the BARA Override Assignment and tortiously interfered with the Exclusive Listing Agreement; the trial court granted summary judgment for Telesis and Vantage and Wade appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wade was entitled to the 2% ORRI under the Exclusive Listing Agreement when Vantage bought after the term | Wade: The contract gave Wade an exclusive right to receive offers; he need not have introduced or been procuring cause—mere identification suffices | Telesis: The contract required Wade to identify or introduce the purchaser to Telesis during the term to earn the post-term commission/ORRI | Court: Agreement is exclusive to solicit offers (not exclusive right to sell); clause construed to require Wade to take affirmative action identifying the purchaser during the term; Wade did not, so no entitlement to 2% ORRI; summary judgment affirmed. |
| Whether contract language “identified by Wade to Telesis during the Term” is ambiguous and barred summary judgment | Wade: Ambiguous — could mean mere mutual knowledge of buyer name suffices; raises fact issue | Telesis: Plain meaning requires Wade to identify the prospective purchaser to Telesis during the term; performance otherwise impossible | Court: Clause ambiguous as written but construed to avoid impossibility; requires affirmative identification by Wade during the term; evidence showed Wade did not identify Vantage, so no fact issue prevents summary judgment. |
| Whether Vantage (a non-party to the Exclusive Listing Agreement) could be liable for breach, specific performance, or declaratory relief under that agreement | Wade: Asserted Vantage breached the Listing Agreement and sought specific performance and declaratory relief against Vantage | Vantage: Not a party to the Listing Agreement; cannot breach or be subject to specific performance or declaratory relief as to rights under that contract | Court: Vantage is not a party; cannot be liable for breach or specific performance; declaratory relief limited because all interested parties must be joined; summary judgment affirmed on these claims. |
| Whether Vantage tortiously interfered with the Exclusive Listing Agreement or breached the BARA Override Assignment | Wade: Alleged Vantage’s CEO said he didn’t want a broker involved and that Vantage breached the BARA Override Assignment | Vantage: No evidence of willful, intentional interference or of proximate causation; also moved no-evidence on these elements; BARA claim lacked proof | Court: No-evidence summary judgment proper—Wade produced no more than scintilla (no proof that Biemans’ statement proximately caused damage or that Vantage breached override assignment); summary judgment affirmed. |
Key Cases Cited
- Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323 (Tex. 2011) (contract interpretation: ascertain parties’ intent from the writing)
- J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) (rules for construing ambiguous contracts)
- Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) (if instrument has definite meaning, court construes as matter of law)
- Alba Tool & Supply Co. v. Industrial Contractors, 585 S.W.2d 662 (Tex. 1979) (distinguishing exclusive agency from exclusive right to sell)
- Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546 (Tex. 1985) (standard for traditional summary judgment)