* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-20743

INTRASTATE GAS GATHERING COMPANY;

GRAYSON COUNTY JOINT VENTURE NO. 1,

Plaintiffs,

GRAYSON COUNTY JOINT VENTURE NO. 1,

P laintiff-Appellant/Cross-Appellee,

versus

THE DOW CHEMICAL COMPANY; DOW

HYDROCARBONS,

Defendants,

THE DOW CHEMICAL COMPANY,

Defendant-Appellee/Cross-Appellant.

Appeal from the United States District Court

For the Southern District of Texas

( H-92-CV-1828)

July 30, 1998

Before POLITZ, Chief Judge, WISDOM and WIENER, Circuit Judges.

POLITZ, Chief Judge: *2

Intrastate Gas Gathering Company and Grayson County Joint Venture No. 1

appeal an adverse summary judgment on their contract claim. Dow Chemical

Company cross-appeals the denial of its motion for summary judgment on liability

and the award of quantum meruit damages. For the reasons assigned, we vacate

and remand.

Background

The instant controversy arises out of the transportation of gas through certain

pipelines located in Texas. Intrastate, acting on behalf of Grayson as its managing

partner, contends that Dow transported gas for which a fee is owed under their

Transportation Agreement. In the alternative, Intrastate contends that it is entitled

to compens ation for the use of the Grayson pipeline. Dow asserts that it did not

own, possess, or control the gas in question and, thus, it is not liable. In any event,

Dow contends that the subject gas is not covered by the Transportation Agreement

and Grayson does not own the facilities through which it traveled. Dow also asserts

several affirmative defenses.

In its ruling on cross-moti ons for summary judgment, the district court

limited Intrastate’s claim, under the “one satisfaction rule,” to gas that flowed

through the Grayson pipeline, and “assumed” that Grayson owns a portion of the

facilities through which the gas traveled. The court concluded that the1 City of Arlington v. FDIC , 963 F.2d 79 (5th Cir. 1992).

2 Id.

3 Fed.R.Civ.P. 56(c).

4 Huckabay v. Moore , 142 F.3d 233 (5th Cir. 1998).

3 Transportation Agreement was inapplicable and then awarded quantum meruit

damages. Recovery was limited, however, to two years, based on a clause in the

Transportation Agreement. Both Intrastate and Dow timely appealed.

Analysis

We review the grant of summary judgment de novo

. 1 Without weighing the

evidence, assessing its probative value, or resolving any factual disputes, we search

the record for resolution determinative facts and, if no material disputes are found,

apply controlling law thereto. 2 Summary judgment is proper “if the pleadings,

depositions, answers to interrogatori es, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 3 The party seeking

summary judgment carries the burden of p e rsuasion, and all facts and inferences

are to be viewed in the light most favorable to the non-movant. 4

A close review of the record reveals that it is replete with material, factual

disputes. Dow contends that it does not own, possess, or control the gas at issue4

and, therefore, it is not liable, regardless of the circumstances. In support of this

con tention Dow presents agreements evidencing that it “released” the gas to its

“retrievers.” Intrastate counters that Dow owned the gas originally and owned the

gas at delivery and, despite the intervening agreements, that Dow maintained

possession and control over the gas. In reviewing the summary judgment evidence

on this issue we find material, factual disputes which preclude use of the summary

judgment vehicle. We are unable to determine with certainty whether the “release”

Dow relies on is a complete relinquishment of ownership, possession, and control.

Considering all of the circumstances, we find that at lea s t two reasonable

interpretations are possible under the record evidence. Accordingly, resolution of

this dispositive issue at the summary judgment stage is not appropriate.

Even if Dow were deemed to own the gas, additional material disputes exist

which preclude summary judgment. For example, the Transportation Agreement

permits of two va r ied, reasonable interpretations. Evidence of the parties’

intentions manifestly is conflicting. A material dispute also exists relative to

Grayson’s ownership of the facilities in question. The district court’s assumption

on this material issue is inappropriate at this stage of these proceedings.

In addition to concluding that summary judgment on the li ability

determination was inappropriate, we must also note concern over the assessment5 See Longo v. Shore & Reich, Ltd.

, 25 F.3d 94 (2d Cir. 1994) (the reasonable value of

services determination on a quantum meruit basis is a question for the trier of fact ); E .L.

Klewicki Co. v. American Screw Products

, 690 F.2d 85 (6th Cir. 1982), citing l Corbin on

Contracts § 99 at 445 (“[H]ow much is reasonable in any particular case is a question of fact,

not one of law. There is no rule of law by which the amount can be deductively

determined.”).

6 See Anderson v. Liberty Lobby, Inc.

, 477 U.S. 242, 249 (1986) (“[A]t the summary

judgment stage the judge’s function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”).

7 In light of our holding about the factual disputes herein, we need not, and do not,

comment on the district court’s legal conclusions. The remaining issues raised on appeal and

cross-appeal are deemed moot.

5 of damages in a summary judgment setting. The amount of quantum meruit

damages to be awarded is itself inherently fact-driven, 5 and the evidence presented

in support thereof is not dispute free.

Cognizant and supportive of the district court’s effort to narrow the diverse

issues raised in this controversy, we must, however, remain mindful that making

factual resolutions, in light of the conflicting evidence on these material issues, is

an inappropriate use of the summary judgment mechanism. 6 Accordingly, we hold

that the district cou rt erred in concluding that there were no genuine issues of

material fact for fact-finder resolution and in entering summary judgment. 7

The jud gment appealed is VACATED and the matter is REMANDED for

further proceedings consistent herewith.