NO. 07-09-0143-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 12, 2009
______________________________
IN RE ALVIN EDWARD PARKER, JR., RELATOR
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
On May 6, 2009, relator Alvin Edward Parker, Jr. filed a petition for writ of prohibition and a request for temporary relief staying proceedings in the trial court. We denied the request for temporary relief. Concluding we lack jurisdiction over relator’s petition, we will dismiss it.
According to his petition, relator sought domestication in the trial court of an Oklahoma judgment appointing him guardian of his mother Loyce Parker. Relator’s sister, real party in interest Linda S. Jones, moved to vacate the Oklahoma judgment. After considering the arguments and authorities of the parties, the respondent judge sent a letter to counsel announcing his intention to vacate the Oklahoma judgment. Relator’s petition states that the trial court’s decision has not been reduced to a signed order. Relator contends that unless this court issues a writ of prohibition prohibiting the trial court from signing an order vacating the Oklahoma judgment, he will lack an appellate remedy.
On our own motion, we consider our jurisdiction to grant the relief relator seeks. See Buffalo Royalty Corp. v. Enron Corp., 906 S.W.2d 275, 277 (Tex.App.–Amarillo 1995, no writ) (recognizing our obligation to verify our jurisdiction). Government Code section 22.221 governs the writ power of courts of appeals. Tex. Gov’t Code Ann. § 22.221 (Vernon 2004). A court of appeals may issue writs of mandamus and “all other writs” necessary to enforce its jurisdiction. Tex. Gov’t Code Ann. § 22.221(a) (Vernon 2004). The jurisdiction of a court of appeals to enter writs under section 22.221(a) is limited to cases over which it has actual jurisdiction of a pending proceeding. Bayoud v. North Cent. Inv. Corp., 751 S.W.2d 525, 529 (Tex.App.–Dallas 1988, orig. proceeding) (“[a] court of appeals does not have jurisdiction, absent a pending appeal, to issue a writ of prohibition requiring that a trial court refrain from performing a future act”). See also In re Jennings, No. 07-97-0476, 1998 WL 24352, at *2, 1998 Tex. App. Lexis 475, at *6-7 (Tex.App.–Amarillo January 21, 1998, orig. proceeding) (not designated for publication) (court of appeals lacked jurisdiction to issue writ of prohibition in absence of pending appeal); Shelvin v. Lykos, 741 S.W.2d 178, 181 (Tex.App.–Houston [1st Dist.] 1987, orig. proceeding) (noting distinction between actual and potential appellate jurisdiction).
Relator argues Atkins v. Snyder should guide our decision on his petition. 597 S.W.2d 779 (Tex.Civ.App.–Fort Worth 1980, orig. proceeding). But Atkins is not inconsistent with our conclusion we lack jurisdiction. To the contrary, it illustrates our limited jurisdiction under section 22.221(a). There, an order taxing attorney’s fees against Karten was the subject of a pending appeal. Snyder then moved the trial court to hold Karten and his lawyer Atkins in contempt and enforce the attorney’s fee award. Id. at 780-81. Atkins argued the motion could jeopardize appellate rights in the pending appeal. He and Karten sought a writ of prohibition from the court of civil appeals. Id. at 781. Recognizing its authority to issue a writ of prohibition to preserve the subject matter of a pending appeal, the appellate court observed “any attempt by the trial court to force Karten to pay the disputed amount over which an appeal is pending would clearly interfere with our jurisdiction.” Id. at 782. Thus, Atkins is typical of holdings that a trial court may not enter an order that interferes with the jurisdiction of an appellate court in a pending appeal. See Dawson v. Briggs, 107 S.W.3d 739, 745 (Tex.App.–Fort Worth 2003, no pet.) (recognizing that holding of Atkins).
Here, unlike Atkins, no case on appeal or other proceeding involving the parties to this original proceeding is pending before this court. We, therefore, are without jurisdiction to consider the merits of relator’s petition seeking a writ of prohibition. Accordingly, we dismiss relator’s petition, expressing no opinion on its merits.
James T. Campbell
Justice
ws it to be given a certain or definite legal meaning, it is not ambiguous and the court will construe it as a matter of law. Id. A contract is ambiguous if, after applying the pertinent rules of construction, it is subject to two or more reasonable interpretations. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). In determining whether a contract is ambiguous, the court should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). A proposed contractual interpretation that would render a portion of the contract meaningless is considered an unreasonable interpretation. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 159-60 (Tex. 2003).
Looking solely to the words used in amended section 6.7 of the Agreement, when FPL has made a valid election to move the point of delivery to the FPL-side POGI, (3) "[i]f . . . Austin Energy does not accept the Energy at the Point of Generation Interconnection (such event a "Curtailment"), Austin Energy shall pay" FPL in accordance with the Curtailment Rate identified in the Agreement (emphasis added). Giving the words used their plain meaning, Austin's duty to either accept the energy or incur the obligation to pay the Curtailment Rate for energy not accepted arises when the energy reaches the POGI point of delivery. Thus, under amended section 6.7, for FPL to be entitled to payment for energy, whether accepted or not accepted by Austin, the Agreement unambiguously requires FPL to deliver the energy to the POGI point of delivery.
That FPL must deliver energy to the point of delivery as a condition precedent to becoming entitled to payment for the energy is bolstered by a review of other provisions contained in the Agreement. Section 3.1 of the Agreement states that Austin "shall pay [FPL] the Primary Price for the Net Electrical Generation of all Energy delivered to Austin Energy at the Point of Delivery . . ." (emphasis added). Thus, under section 3.1 and consistent with amended section 6.7, Austin's payment obligation is triggered when energy is delivered to the point of delivery. Further, section 4.5 of the Agreement states, "Title to and risk of loss with respect to all Energy shall pass to and vest in Austin Energy from [FPL] when such Energy is made available to Austin Energy at the Point of Delivery" (emphasis added). Considering the Agreement as a whole, we conclude that the parties clearly and unambiguously expressed their intent that any loss occurring prior to FPL's delivery of energy to the contractual point of delivery would be borne by FPL, while any loss occurring after energy is delivered to the contractual point of delivery would be borne by Austin. Further, it is FPL's delivery of energy to the POGI point of delivery that gives rise to Austin's obligation to pay for the energy in accordance with the terms of the Agreement.
The parties to the present appeal, however, do not dispute the proper construction of amended section 6.7. By their argument, the parties' dispute is predicated on the factual determination of whether an ERCOT OOME down instruction that limits FPL's ability to generate electrical energy is a non-acceptance by Austin that would constitute a curtailment under the Agreement. The following facts are not in dispute. Electric energy cannot be stored like other fuels. When electric energy is generated, it must immediately be transported through the ERCOT grid to where it will be used. Thus, ERCOT OOME down instructions, which are issued due to high volume congestion on the ERCOT grid, order electrical energy producers to limit their generation of electrical energy to alleviate the congestion. Because ERCOT OOME down instructions prevent electrical energy producers from generating electric energy, they have the secondary effect of precluding delivery of that electrical energy that is not produced. Therefore, as applicable to the present case, while under an ERCOT OOME down instruction limiting FPL's generation of energy, FPL is incapable of generating electrical energy prohibited by the ERCOT OOME down instruction or delivering this energy to the POGI point of delivery. Because FPL is incapable of delivering electrical energy that it is prohibited from generating to the POGI point of delivery while under ERCOT OOME down instructions, Austin's duty to pay under the Agreement is never triggered. Because the effect of an ERCOT OOME down instruction is to prohibit FPL from delivering energy subject to the instruction to the POGI point of delivery, amended section 6.7 does not and could not apply to ERCOT OOME down instructions.
While we agree with FPL's contention that amended section 6.7 unambiguously requires Austin to pay for energy not accepted at the contractually agreed POGI point of delivery, we conclude that FPL goes too far when it additionally contends that amended section 6.7 requires Austin to pay "even when ERCOT initiates the curtailment." According to amended section 6.7(b) of the Agreement, a "Curtailment" is defined as any instance when Austin "does not accept the Energy at the Point of Generation Interconnection." Since a curtailment cannot occur under the Agreement until energy is delivered by FPL to the POGI point of delivery and since delivery of energy to the POGI is not possible under an ERCOT OOME down instruction, it is not possible for ERCOT to initiate a curtailment as defined by the Agreement.
As the proper construction of amended section 6.7 of the Agreement requires FPL to delivery energy to the POGI point of delivery and as delivery of energy that is capable of being produced but prohibited by an ERCOT OOME down instruction is not possible, we affirm the trial court's declaration that Austin is not obligated to make curtailment payments pursuant to amended section 6.7 of the Agreement when ERCOT issues an order or instruction to reduce or limit the amount of electric energy that can be generated by FPL.
Open and Close Rights & Evidentiary Rulings
FPL contends that the trial court reversibly erred in denying FPL's Motion to Open and Close at Trial because FPL had the burden of proof on the whole case. FPL also contends that the trial court reversibly erred in sustaining Austin's assertion of privilege as to certain documents relating to negotiations of amended section 6.7. Austin's claim for declaratory relief was premised on interpretation of the Agreement and its application to the facts in this case. FPL's counterclaims, except its claim of waiver, were premised on the contention that Austin breached the Agreement by failing to make curtailment payments for energy not accepted due to ERCOT OOME down instructions. Thus, excepting FPL's claim of waiver, a declaration that amended section 6.7 does not obligate Austin to make curtailment payments for energy which FPL could not generate or deliver due to ERCOT OOME down instructions resolves all claims in the case, including FPL's counterclaims alleging breach of the Agreement for Austin's failure to make curtailment payments. The evidence that the trial court ruled to be privileged was clearly extraneous to the Agreement and extraneous evidence may not be considered by a court to alter the import of the plain meaning of the words used in an unambiguous contract. (4) See Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951). Standard Accident Ins. Co. v. Blythe, 130 Tex. 201, 107 S.W.2d 880, 883 (1937). Since all claims involved in this case, except FPL's claim of waiver and Austin's claim for attorney's fees, were resolved by the interpretation of the unambiguous amended section 6.7 and the undisputed effect of an ERCOT OOME down instruction on FPL's ability to deliver energy to the POGI point of delivery, any error in the trial court's denial of FPL's Motion to Open and Close at Trial or the denial of evidence is harmless because it did not probably cause the rendition of an improper judgment nor did it probably prevent FPL from properly presenting the case to this Court. See Tex. R. App. P. 44.1(a); Seureau v. Mudd, 515 S.W.2d 746, 750 (Tex.App.-Houston [14th Dist.] 1974, writ ref'd n.r.e.).
Waiver
Finally, FPL contends that judgment should have been rendered for FPL on invoices that Austin did not timely dispute in accordance with the Agreement. Specifically, FPL relies on section 8.1 of the Agreement, which states, in relevant part, that
On or before the tenth day of each month during the term of this Agreement, [FPL] shall render a statement for the Energy delivered to Austin Energy during the preceding month and for other compensation owed to [FPL] hereunder. . . . If Austin Energy disputes any charges included in [FPL]'s statement, Austin Energy shall give written notice of the same describing the basis thereof within ten (10) days of receipt of the statement.
A jury question was submitted on this issue and the jury found that Austin did not waive the right to dispute the amounts of the payments invoiced by FPL for ERCOT OOME down instructions. FPL's appellate issue contends that the undisputed evidence conclusively establishes that Austin failed to provide written notice of dispute in a timely manner under the Agreement for certain invoices.
As previously stated, the interpretation of an unambiguous contract is a question of law to be determined by the court. Gulf Ins. Co., 22 S.W.3d at 423. When a contract is worded in a manner that allows it to be given a certain or definite legal meaning, it is not ambiguous and the court will construe it as a matter of law. Id. A contract is ambiguous if, after applying the pertinent rules of construction, it is subject to two or more reasonable interpretations. Columbia Gas Transmission Corp., 940 S.W.2d at 589. In determining whether a contract is ambiguous, the court should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Coker, 650 S.W.2d at 393 (Tex. 1983). A proposed contractual interpretation that would render a portion of the contract meaningless is considered an unreasonable interpretation. Am. Mfrs. Mut. Ins. Co., 124 S.W.3d at 159-60.
Section 8.1 of the Agreement provides that FPL "shall render a statement for the Energy delivered to Austin Energy during the preceding month and for other compensation owed to [FPL] hereunder. . ." (emphasis added). As addressed in the analysis of FPL's first issue, FPL did not and could not deliver energy to the point of delivery while under ERCOT OOME down instructions. Therefore, for section 8.1's written dispute requirement to apply to invoiced curtailment charges based on ERCOT OOME down instructions, such charges had to be "compensation owed to [FPL]" under the Agreement. Section 3 of the Agreement identifies the forms of "compensation" that Austin could owe FPL under the Agreement. According to this section, Austin owes compensation to FPL for energy delivered to the point of delivery, section 3.1, for costs of delivery to the point of delivery, section 3.2, and for the loss of the benefit of certain unrenewed tax credits, section 3.3. (5) As a result, FPL's invoices charged Austin curtailment payments for energy not generated and not delivered due to ERCOT OOME down instructions and these charges were not and could not be "other compensation owed to [FPL] hereunder [or under the Agreement] . . . ."
Therefore, FPL's act of invoicing Austin for compensation which, under the Agreement, was not owed to FPL constituted a breach of the Agreement. A breach of a contract by one party excuses the performance of the other. See Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 815 (Tex.App.-Dallas 2003, pet. denied) (citing Mead v. Johnson Group, Inc., 615 S.W.2d 685, 689 (Tex. 1981)). Thus, we conclude that Austin was under no obligation to give FPL written notice of dispute regarding invoices charging Austin for energy which was neither generated nor delivered due to ERCOT OOME down instructions and its failure to provide such written notice did not constitute a breach of the Agreement. We overrule FPL's fourth issue.
Conclusion
We affirm the judgment of the trial court.
Mackey K. Hancock
Justice
1. For purposes of simplicity, we will not distinguish Texas Wind and FPL. All further references to Texas Wind will be by reference to "FPL," as Texas Wind's assignee.
2. Electric energy cannot be stored after being generated. When electric energy is generated, it must be immediately transmitted to its destination. Thus, ERCOT OOME down instructions have the effect of limiting energy generation rather than energy transmission.
3. That FPL had made such an election applicable at all times pertinent to this case and that this election was valid under the Agreement is not in dispute.
4. Even if this evidence conclusively established that the parties to the Agreement intended that amended section 6.7 would obligate Austin to pay for energy that was not generated or delivered to the point of delivery due to an ERCOT OOME down instruction, the plain meaning of the words used in amended section 6.7 do not express this intent and this extraneous evidence of intent could not be utilized to make the otherwise unambiguous contract ambiguous.
5. Sections 3.4 and 3.5 provide for certain potential benefits to FPL, but neither would give rise to Austin owing compensation to FPL.