Opinion By Justice LANG-MIERS.
Appellant Matheson Tri-Gas, Inc. appeals a summary judgment granted in favor of Atmel Corporation and Atmel Texas, L.P. (together, Atmel) arising out of a dispute regarding a nitrogen pipeline supply agreement between Matheson and Atmel. For the following reasons, we affirm the trial court's judgment.
Matheson produces and sells industrial and specialty gases from its plant in Irving, Texas. Atmel purchased a semiconductor facility in Irving. In August 2000, Atmel and Matheson executed a Nitrogen Pipeline Supply Agreement (Supply Agreement) in which Matheson agreed to build a pipeline to Atmel's facility and supply nitrogen to Atmel for a period of 10 years, later extended to 12 years, and Atmel agreed to purchase a minimum amount of nitrogen each month beginning in December 2000. Atmel began manufacturing operations in early 2002, but by July 2002, Atmel shut down its operations and ceased taking nitrogen in production levels from Matheson. However, Atmel continued to pay Matheson the minimum amount required under the Supply Agreement because it was a take-or-pay agreement. It also continued to use small amounts of nitrogen for facility maintenance purposes.
In late 2006, Atmel told Matheson that Atmel was negotiating the sale of its Irving facility to Maxim Integrated Products, Inc. Atmel told Matheson that Maxim was not interested in buying out Atmel's remaining years under the Supply Agreement and, instead, Maxim wanted to negotiate its own supply agreement with Matheson. Matheson and Maxim executed a Nitrogen Purchase and Sale Agreement (the MTG/Maxim Agreement) in February 2007. Matheson, Atmel, and Maxim also executed a Termination Agreement whereby Atmel would be released from its obligations to Matheson under the Supply Agreement upon the occurrence of four conditions:
The Termination Agreement obligated Atmel to continue to pay the monthly minimum to Matheson per the Supply Agreement until all four conditions in the Termination Agreement had been satisfied.
Atmel closed on the sale of its facility to Maxim on May 7, 2007. Later that month, Matheson invoiced Atmel for the minimum purchase amount as stated in the Supply Agreement. Atmel did not pay the invoice. In fact, Atmel did not pay any of the invoices sent to it by Matheson after May 2007. Matheson sued Atmel for, among other things, breach of contract.
Both parties filed motions for summary judgment.
We review a traditional summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, no pet.). A party moving for traditional summary judgment under rule of civil procedure 166a(c) is charged with the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c). If the movant discharges its burden, the burden shifts to the nonmovant to present to the trial court any issues that would preclude summary judgment. Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass'n, 205 S.W.3d 46, 50 (Tex.App.-Dallas 2006, pet. denied). When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law; neither party can prevail because of the other's failure to discharge its burden. Id.
In two issues, Matheson argues that the trial court erred by granting Atmel's motion for summary judgment and denying Matheson's motion for final summary judgment and no-evidence motion for summary judgment. In issues three and four, Matheson argues that the trial court erred by overruling Matheson's objections to Atmel's summary judgment evidence and by determining that damages should be calculated under the UCC. In its fifth issue, Matheson discusses the relief to which Matheson is entitled if it prevails on appeal.
The question this appeal presents is whether condition four in the Termination Agreement occurred thereby relieving Atmel of its obligations under the Supply Agreement. Condition four required that "Maxim begins consuming product under the new MTG/Maxim Nitrogen Pipeline Supply Agreement." Atmel contended that Maxim began consuming nitrogen when it purchased Atmel's facility in May 2007 because Maxim used nitrogen from
The parties state that the agreements are not ambiguous, and we agree that they are not. The construction of an unambiguous contract is a question of law, which we review de novo. MCI Telecomm. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex.1999). Our primary concern is to determine the true intent of the parties as expressed in the agreement. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). To determine the parties' intent, we examine the entire agreement and give effect to all its provisions so that none are rendered meaningless. Id. We do not consider the parties' present interpretations of the agreement. Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787 (Tex.App.-Dallas 2005, no pet.). And we are not concerned about the parties' subjective intent. Id. Undefined words used in an agreement are given their plain, ordinary, and generally accepted meanings unless the agreement shows the parties used them in a technical or different sense. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).
We begin by examining the language of the respective agreements. As we stated, the Termination Agreement requires that "Maxim begins consuming product under the new MTG/Maxim Nitrogen Pipeline Supply Agreement." To determine whether Maxim began "consuming product under" the MTG/Maxim Agreement, we look to the language of that agreement. The MTG/Maxim Agreement begins:
The agreement contains provisions about the quantity of nitrogen that Matheson will make available to Maxim, how the nitrogen will be delivered, and Maxim's maximum and minimum withdrawal rates. Like Atmel's Supply Agreement with Matheson, the MTG/Maxim Agreement is a take-or-pay agreement. It states that it is effective as of the date of the agreement, which was February 21, 2007 and that its term commences "on or about March 15, 2007 or as otherwise agreed upon by the parties in writing." It does not state that it commences only when Maxim consumes production levels of nitrogen. Instead, it states that Maxim "agrees to purchase all of Buyer's present and future requirements,... of Nitrogen for Buyer's Site." (emphasis added). According to its plain language, the MTG/Maxim Agreement required Maxim to purchase from Matheson any and all nitrogen that Maxim used at its site, even if the amount was de minimis.
Matheson argues that "consuming product under" the MTG/Maxim Agreement can only be interpreted as consumption at production levels. It cites cases to support its argument, but those cases did not involve language like that used in the agreements at issue in this case. See Tex. Auto Supply Co. v. Gulf Refining Co., 204 S.W. 457, 457-59 (Tex.Civ.App.-Fort Worth 1918, writ ref'd) (interpreting contract
Matheson also argues that condition four is rendered meaningless if Maxim automatically began consuming nitrogen on the closing date of the sale. Matheson contends that if the parties intended that result, there would have been no reason to include condition four in the Termination Agreement. But the closing on the sale (condition one) and the consumption of nitrogen (condition four) are two distinct actions, separate and independent from each other. If Maxim had not consumed any nitrogen, the Termination Agreement would not have become effective until Maxim did consume nitrogen. Consequently, this interpretation does not render condition four of the Termination Agreement meaningless. We conclude that the plain language of the phrase "consuming product under" the MTG/Maxim Agreement means any consumption of nitrogen, not some minimum quantity.
We now consider whether Atmel produced summary judgment evidence establishing that Maxim consumed nitrogen beginning on May 7, 2007.
We conclude that Atmel's summary judgment evidence was sufficient to establish that Maxim consumed nitrogen on the closing date of the sale and that condition four had been satisfied. It then became
We resolve issue one against appellant. Because of our disposition of this issue, we do not need to consider appellant's remaining issues. We affirm the trial court's judgment.