United States Court of Appeals
Fifth Circuit
F I L E D
December 19, 2003
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 02-20655
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BENCHMARK ELECTRONICS, INC.,
Plaintiff-Appellant,
versus
J. M. HUBER CORP.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
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ORDER ON REHEARING
(Opinion August 20, 2003, 5th Cir. 2003, 343 F.3d 719)
Before REAVLEY, JOLLY and JONES, Circuit Judges.
BY THE COURT:
It is ordered that the opinion in this case is modified
by replacing the following sentence, found at 343 F.3d 719, 731:
“We decline to resolve the ambiguity on appeal
and, instead, remand for the parties to
present extrinsic evidence supporting their
interpretations of the agreement.”
with this:
“Regardless whether the clause is technically
ambiguous, there are factual issues surround-
ing its application. These matters must be
explored more fully.”
Further, in Footnote 10, the introductory clause, “In addition to
the ambiguous contract language” is struck.
Otherwise, the opinion remains unchanged.
The petition for rehearing is, except to the foregoing
extent, DENIED. The petition for rehearing en banc is DENIED, no
member of the court having requested a poll.
ENDRECORD
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REAVLEY, Circuit Judge, concurring:
I have concurred in the judgment reversing, as premature, the
summary judgment of the district court. I agree with the current
writing in disclaiming factual ambiguity of the material adverse
change clause. If the majority is saying only that there is no
waiver or disclaimer of fraudulent inducement, Benchmark’s tort
claim under Texas law, I agree. I would not agree that Texas law
allows a tort claim for misrepresentation in the contract itself.
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