600 Commerce
Commercial Litigation
in the Dallas Court
of Appeals

Writings Matter

June 29, 2021
This is a cross-post from 600Hemphill, which follows commercial litigation inthe Texas Supreme Court: ______ If you doubted that the written word carried dispositive weight in the current Texas Supreme Court, please consider these cases that lead up to an oil-and-gas opinion of last week:
  • In 2019, Bombardier Aerospace Corp. v. SPEP Aircraft Holdings holds that the written word matters: “Under our strongly held principles of freedom to contract, we hold that the limitation-of-liability clauses are valid limited warranties that were the basis of the parties’ bargain. … Although Bombardier’s conduct in failing to provide SPEP and PE with the new engines they bargained for was reprehensible, the parties bargained to limit punitive damages, and we must hold them to that bargain.”
  • In 2020, Energy Transfer v. Enterprise emphasized that the written word matters: “We hold that parties can conclusively negate the formation of a partnership under Chapter 152 of the TBOC through contractual conditions precedent. ETP and Enterprise did so as a matter of law here, and there is no evidence that Enterprise waived the conditions.”
  • During 2021, in In re the Estate of Johnson, the Court noted that actions also matter: “MacNerland was put to an election: either seek to set the will aside or accept the benefits Johnson bequeathed to her. She chose the latter. As a result, she ‘must adopt the whole contents of the instrument, so far as it concerns [her], conforming to its provisions, and renouncing every right inconsistent with it.’ Because MacNerland accepted benefits under Johnson’s will, the trial court properly dismissed her challenge to its validity.” (citation omitted).
  • But last week, in BPX Operating v. Strickhausen, the Court again gave primacy to the written word: “Strickhausen bargained for a strong anti-pooling clause, she consistently withheld the written consent the clause requires, and she reiterated her objections multiple times. Although she accepted BPX’s money, she reasonably believed that one way or another she was owed an amount in the same ballpark as the checks she deposited.”