1 John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeal s, sitting by as sign ment. T EX
. G OV ’ T C ODE A NN
. § 75.00 2(a)( 1) (Vernon Su pp. 20 03). NO. 07-01-0282 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E MAY 8, 2003

______________________________ NATURAL GAS CLEARI NGHOUSE, Appellant
v. MIDGARD ENERGY COMPANY, FORMERL Y KNOW N AS

MAXUS EXPLORATION COMPANY, Appellee

_________________________________ FROM THE 18 1ST DISTR ICT COURT OF POTT ER COUNTY; NO. 79,496-B; HON. JOHN B. BOARD, PRESIDING

_______________________________

Opinion

________________________________ Before JOHNSON, C.J., QUINN, J., and BOYD, S.J. 1 Natural GasCle arin gho use(NG C) a ppe als f roma fi nal judgm en t awarding damag es to Midgard Energy C ompan y, form erly Maxus Exploration Com pany (Max us), for breach of contract. It argues, throug h 11 issues, that 1) it did not breach the contract , 2) thetes tim ony

of M ax us’ ex per

t w itne ss w as in adm iss ible and constituted no evidence of2

damages, 3) a portion of the award includes “speculative dam ages” w hich could not be awarded, 4) the am ount of prej udgme nt interest awarded was inaccurate, and 5) the
amoun tof attorney’s fe es awarded was inaccurate. We affir m t he judgm ent in part and reverse and rem and in part. Backgr ound Before us is the late st cha pter i n the continu ing saga of Maxus versus NGC. Having initi ally rev ers ed, in part, a sum mary judgm ent granted to M axus, see Natural Gas Cle ar in ghouse v. Midga rd Energy Co. , 23 S.W.3d 372 (Tex. App.--Am arillo 1999, pe t

. denied), we rem anded the cause for furt her proceedings. Upon rem and, a trial was had to the court. As

a result of sam e, the trial court f ound that NGC had breached its agreemen twith M axusto deliver a specified quantity of gas ove r a termof f ive year s. This breach caused M axusto suffer dam ages in the amo unt of $2,781,415.73. Furthermore, the trial court awarded M axus pre and post j udgme nt interest and attorney’s fees. NGC appealed once again. The agreem entin question underwent am endme nt after its inception. The relevant pr ov is io ns in exi st en ce at th e t ime of th e b re ac h f ol lo w: W hereas, Max us operates the Roger Mill s Gas Processing Pl ant . . . which is capable of extrac

ting liquefiable hydrocarbons fro m thegascon tain ed in NGC’s P ipeline Gas . . ., W hereas, NGC has control of certain volumesof gas that are available for processing . . ., 1.6 “Pipel ine Gas” or “Gas” shall mean NGC ’s natural gas w ithout the rem oval of any of its constituents, as it is produced from the well, and delivered at the discharge side of aconven tional m echanica l type se parator, treater or tank,2 Section 3.1 of the contra ct was one of the prov isions amended af ter execut ion of t he original

agree ment. Before amendm ent, the parties stated therein that NGC was to deliv er a “quantity of gas equal to the gr eater of . . . th e vo lu me necessary to have 10,000 MMB TU/day be redeli v ered by Operator f rom NGC’s sh are

of Re sid ue Gas

an d b ypa ss

ga s . . . o r s uch volume r ep resen ting existing avail able spar e processing capacity at the plant.” T hey also expressly acknowledged that Max us “will be supplying gas for processing at the Plant f rom i ts own production and supplied by others (Operator’s Gas) and the v olume of Operator’s Gas may be in an am ount th at causes the Residue Gas redeliv ered to NGC to be less than 10,00 0 MMBTUs

/day.” 3 and shall include gas produced from a w ell producing natural gas only, o r from a well producing distillate, condensate, or oil with the gas . . ., * * * 2.1 Fac ilit ies - NGC o wns and has installed the necessary facilities forthe delivery of gas to the Proces sing Plant . . ., * * * 3.1 Delivery

of Ga s by NGC - NGC agrees to del iver and [Maxus] agrees to receive, or

cause to be received at t he NGC Delivery Point the lesser of a quantityof gas equal to 1) all volumes produced into NGC Mu letrain Lateral and NGC Mo orewood E ast Lateral which collectively exceed 20,000,000 cub ic f ee t o f g as pe r d ay ba se d o n a n a nn ua l av er ag e, or 2) a v ol ume representing available spare processing capacity at the Plant

. . . . Ex cept for con ne ct in g [ Maxu s ’] own production or purchasing gas at the w ellhead from third party producers and any arr ang em ents in existence as of May 1, 1991, [Maxus] agr

ees not to ente r into any

arrangem ents w ith third part y gatherer s other than NGC which would negatively affect the processing capacity for NGC’s

gas [,] 2 * * * 3.4 Paym entfor Plant Product - [Maxus] shall pay NGC each month as NGC’s share of the Plant Products an am oun t eq ual to th e pr oce edsfro m thesale of eighty-five percent (85%) of the P lant Products attributa ble to NGC’s Gas which is processed at

the Plant [,] * * * 10.1 Term - Th is ag ree m ent sha ll rem ain in full force and effect for five (5) years from the first day of th e month imm ediatel y follo wing the month in which [Max us] has given NGC written notice that the first flow hasbegun into the second pro ces sing unit and thereafter shall continue on a m onth-to-m onth4 bas is unless term inated by either party by giving the other party thirty . .

. days prior written notice . . . [and,] * * * 14.9 Successorsand Assigns- Th is ag ree m ent sha ll be bind ing u pon and w ill inure to the benefit of the parties hereto, thei r respective successor an d as signs, and upon any assignm ent or transfer of this agreem ent or of an y interest byeither party in the facilities her ein d esc ribe d, t he a ssi gne e sh all agree and be deem ed hereby to have agreed to perfor m t he obligations hereunder

of t he a ssi gnin g pa rty rela tiveto t he f

acili tie s or prope rty so assigned . . . . Furthermore, the trial court found that in April of 1993, NGC began reducing deliveries of gas to M ax us. Ap pro xi m ate ly t en m ont hs la ter , it sto ppe d all deliverie s. Th is wa s so because the gathering systemwas acquired by Apache Corporation, w hich entity subsequently transferred it to Transok Ga s Gathering Com pany. The trial court made oth er findings, which no one disputes. First am ong the se is the determ ination that NGC represented that it ow ned th e Mulet rain Lateral and Moorewood East Lateral systems through which gas was to be transfe rred to Maxus. Moreo ver, this fin ding comports with NGC’s representation in paragraph 2.1 of the contract
w her ein it stated that it “ow ns . . . the necessary facilities for the delivery of gas to the Processing Plant . ” The nece ssary facilities incl uded the NGC M uletrain and Moorewood EastLaterals. Additionally, this finding is of im port because, accordi ng to the testimony, the entity gathe ring the ga s ordinar ily had the contractual right to pr ocess and remove the liquids from it. Other pertinent, and undisputed, findings are that 1) NG C represented that ithad “‘control of certain volum es of gas available for processing,’” and 2)“T ransok5

offered to take over NGC ’s position under the Max us contract and pay NGC consideration for it, but NGC refused. ”

Issues One, Two and Three — No Br each or Evidence of Br each Through its first three issues, NGC contends that, upon a “proper const ruction” of the contra ct, it did n ot bre ach sam e nor is there evidence of a breach. The “proper
con str uct ion” allud ed to is onew hich sim ply o bliga ted itto p rov ide M ax us t he g as t hat it owned or controlled and tran s ported through the tw o Laterals so long as it owned or controlled thegas . S inceitno longer owned or co ntrolled either Lateral or the gas tr ansported through them once Apache and then Transok acquired the Later als, it s obligation to provide gas to Maxus ended. And, because it was no t obligated to provide thatgas to Maxus, it di d not bre ach the contract, N GC concludes. We disagree and overrule the points. Authori ty As can be seen, resolution of this dispute entails interpretation of the contract and its amendm ents. Thus, vari ous rules r e gulating the construction of contracts are worth noting. Fi rst, we m ust remem ber that constru ing an unambiguou s contract invo lves a question of

la w. Cross Ti

mbers Oil

Co. v. Ex

xon Corp. , 22 S.W.3d at 26; Border s v. KRLB, Inc. , 72 7 S .W.2d 3 57, 359(Te x. Ap p.- -Am arillo198 7, w rit ref’d n.r.e.). Because i t does,
we need not defer to any interpretation afforded it by th e trial court. Cross Ti mbers Oil

Co. v. Ex xon Corp ., 22 S.W.3d at 26. Second, w hen interpreting an instrume nt, we s trive to give effect to its parties’ intent. Id. Furtherm ore, that intent is garnered from the language of the contract, w hich language is c onsidered in its entirety. Id. That is, we perus e the6

com plete docum ent to understand, harm onize, and effectuate all of its provisions. Id. So too mu st we afford the words containe d in the agreem ent their plain, ordinary, and gen era llyaccepted m eaning, unless the instrum ent requires otherwise. Id. ; Sun Opera ting, Ltd. v. Holt , 984 S .W.2d 277, 285 (Tex. A pp.--A m arillo 1998, pet . denied). Finally, i n applying the foregoing rules we m ay not rew rite the agreemen tto m ean som ething it did not. Cr os s T imb er s Oil Co. v . Ex xon Corp ., 22 S.W.3d at 26; Borders v. KRLB, Inc. , 72 7 S .W.2d a t 35 9. S im ply p ut, w e ca nno t ch ang e th e co ntr act m ere ly because we or one of

the parties com es to dislike its provisions or thinks that som ething else is needed. HECI

Expl or. Co. v. Neel, 982 S.W.2d 881, 888-89 (Tex. 1998); Cross Timb ers Oi l Co. v. Ex

xon Corp ., 22 S.W.3d at 26. Thi s is so because parties to the agreemen tare conside red masters of their own choices. They are entitled to select what te rms and provisions to include in a contract before execu ting it. And, in so choosing, each is entitled to rely upon the words selected to dem arcate their respective obligations and rights. In short, the parties str ike t he d eal they cho oseto s trike an d, t hus , vo luntarily bind them selves in t he m anner th ey choo se. Cross Timb ers Oi l Co. v. Ex

xon Corp ., 22 S.W.3d at 26. And, t hat is why part ies are bound by their agreem ent as written. Cross Tim be rs Oil

Co. v . Ex xon Corp ., 22 S.W.3d at 26; Emmer v. Phi llip s Petroleum Co. , 668 S.W.2d 487, 49 0 (Tex . App. --Am arillo 1984, no writ). For a court to change theparties’ agre ement

me rely because it did not like the contract, or because oneof the parties sub seq uen tly

fou nd it distastefu l, w

ould be to underm ine not only the sanctity afforded the instrument

but also the ex pectations of those w ho created and relied upon it. Cross7

Timbe rs Oi l Co. v. Ex

xon Corp ., 22 S.W.3d at 26-7. W ith this said, we tur n to th e agreemen t before us. Appli cation o f Authori

ty Through the pream ble and paragraph 2.1 o f the contract, NGC represented to Max us that it 1) owned the gas gathering system , which included the Mul etrain and Moorewood East Laterals, and 2) had control of a certain quantity of the gas transported through it which was available for processing. Then, according to paragraphs 3.1 and 10.1 of the am endme nts, it prom ised to provide Max us, for five years, w ith a specific amount of thatgas via the pipe that it purportedly ow ned. Nat ural Ga s Cle arin ghouse v. Mi dgard Energy Co. , 23 S.W.3d at 377 (wh er ei n we previously held that the agreem ent obligated NGC to deli ver “all gas controll ed by [it] i n excess of 20,000,000 cubic feet of gas per day gathered through the East Moorew ood and Muletrai n Lateral s”). Absent from these provisions or any other is language indicating t hat NGC’s ownership of the ga thering systemor right to control the g as alluded to in the preamble was finite or subject to termination. Theopp osite is qu ite t rue , fo r if p ara gra ph 1 4.9 (re latin g toass ignm ent ) is considered, (which it m ust given the rules of construct ion), it is clear that both p arties intended th at th e p ro ce ss i ng of ga s f ro m t he Latera ls through Max us’ Roger M ills Plant continue for

at l eas t five ye ars . A lso c lear is t he n ece ssa ry im plica tio n tha t NGC had a right to gather and pipe gas through those Laterals for at least the termof the contract and in amounts sufficient to supp ly the quanti ties speci fied in pa ragraph 3.1. This is so because 1) NGC agreed to pro vide the gas i n the sp e cified quantities for five years, 2) not hing in the contract illustrated that its gathering rights were finite or subj ect t o3 It is c le ar t hat the buy in g and sel li ng of oi l a nd ga s con sti tut es a transaction in good s. El Paso N at. Gas Co. v. Minco Oil & G as Co. , 8 S.W .3d 309, 313 (Tex . 1999). If the buying and selli ng of gas constitutes a transaction in go ods, then it logically f ollows that the buyi ng an d s elli ng of the com pone nts o fgas al so constitutes a transaction i n goods. And, since it does, then in m odif ying it s original prom ise regarding the amount of gas it would pr ovi de, NGC was

obligated to act

in good faith. See id . (acknowledging that one transacting in goods has a statutory obl igation t o act in good f aith in th e p er fo rmance, enforcem ent and modification of their agreements).

4 In issuing its opinion, t he Su pr eme Court provided little ex position or an alysis of the contract there inv olv ed and its term s. This was most likely so since the court expr essly ag reed with the analysis of t he matt er contained in t he opinion of the intermediate ap pellatecourt. Northern Nat. Gas Co. v. Conoco, Inc. , 986 S.W .2d 603, 606 (Tex. 1999). Giv en this, w e focus upon the opinion of the intermediate appellate court to determine why Nor

thern wa s absolv ed of liabili ty. 8 termination, 3) n oth ing in thecon tra ct exp res sly conditioned NGC’s perform ance upon its continued ownership of the gathering system , and 4) NGC, in good faith, coul d not have modified its obligation under 3.1 to supply the spe cifi ed q uan titie s if it k new tha t it cou ld not or intended not to supply them at the tim e of the m odification. 3 In plain w ord s, N GC eff ect ively said to M ax us v ia th e co ntr act tha t: “The re’ s th is gas I control through pipeline I own, and I prom ise to deliver a specified amount of it to you for five years.” The con tra ctu al language giving rise to this promise was and is neither ambiguousno r unclear, and this is the only plausible interpretation of the agreement. Despite that, NGC w

ould now have the court read into its prom ise some type of contingen cy, that is, language conditioning its duty to perform on its continued control of the gas . A nd, as bas is f or o ur d oing so, it d ir ects us to th e S upr em e Co urt ’s opin ion in Northern Nat. Gas Co. v. Cono co, Inc. , 986 S .W.2d 603 (Tex . 1998). 4 In Norther

n , Conoco agreed to receive and Northern agreed to deliver“‘all gas for gathering, com pressing and processing in keeping with all the quantity and other provisions of [Northern’s] various gas p urchase contract s in e ffect from ti me to ti me .”9

Norther n Nat. Gas Co. v. Conoco, Inc. , 939 S .W.2d 676, 678 (Tex. A pp.--E l Paso, 1996), affi rmed i n part, reverse d in

part , 986 S.W.2d 603 (Tex. 1998) (Em phasis ad ded). Also, contained in the agreement was a provision sta ting that the accord was to be effective “‘for
so long as the various Gas Purc hase contracts dedicated herein remain in effect, but not less than tw

enty . . . yea rs . . . .’ ” Id. For various reasons w hich are unimportant toour dispute, Northern bough t out its in terests in the gas purchase contr acts and stopped sending gas to Conoco f or processing. Conoco sued alleging that Northern w as obligated to provide it gas. While the trial co urt agree d with Conoco, neither the interm ediate co urt of appeals nor the Suprem e Court did. This was so because Northern’ s obligation wa s ex pre ssl ytied to the “gas purchase contracts in e ffect from ti me to ti me ” with its produ cers. According to the court, “[t]his language by its clear and plain terms, an ticipated changes in Northe rn’s ga s purch ase con tracts .” Id. at 679. In other words, t he duty to provide gas
wasex pre ssl ycontingent upon the gas purcha se contracts which may have existed from ti me to time. If

none did, then it had no duty to deliver to Conoco non-ex istent gas bought under non-existent

contracts. M oreover, nothing in the agreem ent obligated Northern to buythe gas from the producers or otherw ise enter into gas purchase contracts

. Id. Thus, when theund erly ing gas purchase contracts were te rminated, N orthern’s obligation to deliver gas to Conoco ended, acco rding to the court. Id. In short, the co urtin Northern found that Northern’ s duty to deliver was dependent upon the existence o f “gas p urchase contracts in effec t from time to time” betw een Norther n and those produci ng gas. This di ffers from the situati on and contract before us. Now here does the NGC/M axus agreem ent contain a provision referencing other contracts10

between NGC, its producers, or anyoneelse . N or d oesit c ontain apro vis ion e xp res sly qualifying NGC’s obligation to perform upon the ex istence of or its obligations underany other contract. Indeed, nothing was said about a nyone having a right to acquire the gas gathering systemfrom NGC and its subsidiaries and thereby end NGC’s control over the ga s from the Laterals. Nor does any thing in the agreement expressly tie NGC ’s duty to perform to t he e xi ste nceof t hird -pa rty con tra ctsgra ntin g it

the right to acquire gas fromthe Lateral s. Sim ilarly absent is any provision reli eving NGC fromsupplying gas to Ma xu s if NGC conveyed the pipeline to others and, thereby, lost control over the gas. Indeed, if the La ter als wer e conve yed to another, the part ies ex pressly contem plated, v ia para graph 14. 9 of the contract, that

the entity acqui ring the “ facility” would assum e the obligation to provide the gas to Maxus. Instead, N GC told Max us, through the contrac t, that it owned the pipeline, had control of gas, and prom ised to deli ver that gas for fi ve years. That i s a far cry fro m saying “if I get ga s under co ntracts w hich may be in existence fromtime to t ime, I will deliver it to you for processing for five years.” The latter situation ex isted i n Norther n but not here, and th at is why Norther n is inapposite. The situation before us is no different from that in which Farm er X agrees to deliver to Buyer Y 1000 bus hels of wheat. Farmer X cannot then deliver the bushels to Z and profess imm unity from suit by Y because he n o lon ger had thew hea t w hen itca me t i me to deliver it to Y. Here, NGC sa id it owned the pipeline and controlled the gas outof which itpromised todeliver the specified q uantity f or five years. It did not prom ise to deliver whatever gas i

t had whe n i t c ame time todeliver or that it wo ul d d elive r g as as l on g a s it owned thepipe line o r co ntr

oll ed the gas. Gi ven that Apachehad the option to buy the5 W e note that NGC did not raise in its brief the affirm ativ e defense of im poss ibility.
6 We agree with NGC’s proposition that paragraph 1.6 ref ers to the natural gas it owned or had a right to control. I ndeed, to deliv er gas which it did not own or ov er which it had n o right o f control w

ould be to deliv er ga s it con verte d fro m oth ers . Ye t, in so con st rui ng the

provisio n, we do not read it as somehow res urr ect ing a co ntin ge ncy

rel ieving itfrom perform ing if another company acqui res the gathering system or the Lat era ls. Indeed, throu ghout the con tract is reference to dif ferent c lasses of gas w hich Max us (the operator)ha d a rig ht to p roces s. Tho se cla s ses included “Operator’s gas,” gas of third-part ies other than NGC, and N GC ’s gas. So, it is log ic a l t h a t i n s p e ci fy in g w h a t g a s N GCw a s to d e li ve r a n d r e ce ive com pensa ti on f or d el iv eri ng t he pa rt ie s woul d ta ke c are to d em arc ate NG C’s ga s as th e per ti nent gas.

7 To the e

xtent N GC contends that the record contai ned no evi dence of damage due to its b reach of contract, we note that t he contention is based upon the trial cour t’s s uppo sed interpr

etation of the con tract. According to NGC, the trial courtallegedly held that the contract enti tled it to prov ide gas from any source, not sim pl y t hat f rom the Mul etr ai n and Moo rewoo d Ea st La ter al s. Yet, the trial court did not so interpret the contrac t. Nor d o we. Rather, the contract obl igated NGC t o prov ide gas from those two Laterals in the amount and for the peri od s pe cified in the con tra ct. T hu s, wh eth er M axus proved th e a moun t of p rofit it wo uld have garnered ha d N GC be en en tit le d to p ro videit g as fro m any source

is irrelev ant to the disposition of this ap peal.

8 On re hearing, we r ev ersed and remanded as to all issues pursuant to Tex. R. A pp. P. 44.1(b) because we could not order a separate trial on damages alone. 11 gathering system , NGC could have eas ily provided for that contingency. But, it did not. Consequentl y, we m ay not rewr ite the ag reem ent to p rovide for circ ums tances om itted from the agr eem ent sim ply because NGC n ow finds th at i t c an no t p er fo rm. 5 Cr os s T imb er s Oil Co. v. Ex xon , Inc. , supra . As stated long ago, a “party's failure to exem pt himself from responsibility in the event of the happen ing of [a ] co ntin gen cy w ill be att ribu tab le tohis
own folly, and he [nonetheless] w ill be hel d to m ake good his contract." Da vis v . Da vis , 266 S.W . 797, 798 (Tex. Civ. App.- -El Paso 1924, no writ) . That remains true today. 6
Of record is evidence that NGC b ound itself to supply Max us with gas f rom t he Muletrain and East M oorewood Laterals for f ive years and that

it did not d o that contrary to its promise. Consequent ly, there existssom e evidence that it breached its contract with Maxus, and we again hol d that Maxus established NGC’s contract li abil ity. 7 Natural Gas Clearin ghouse v. Mi

dgard Energy Co. , 23 S.W.3d at 376. 812

Issue s Four, Five, and Six - A dmissi bility of Vandive

re’s Testim ony In its fourth, fifth, and six th issues, NGC ques tions the sufficiency of the evidence to support the dam ages awarded. It does so by first at tacking the tr ial cou rt’s decision to adm itth e e xp er t t es ti mo ny of Wi lliam Vandivere. Vandivere testified about the a dded operating expense att ributable to processing the gas NGC failed to pro vide . B eca useit sho uld have been excluded , according to NGC, no evidence supported the aw ard of damages. Furtherm ore, the trial court purportedly erred in admitting it because 1) Vandive re was not

qualified to renderan expert op inion on the topic and 2) it was base d on unrel iabl e data purpor tedly i llust rating th ose expenses. Assum ing arguendo that the testimony

wa s i nadmissible, we find the error in admitting it harm less and overrule the issues.
Itis clear that when a dispute is tried to the court, as oppos ed to a ju ry , we pr es ume thatthe trial judge disregarded inadm issible te s timony, u nless the record discloses otherwise. Gill espie v. G ille sp ie , 644 S.W.2d 449, 450 (Tex. 1982); Willi ford Energy Co.
v. Submergible Cable Serv., Inc. , 895 S.W.2d 379, 38 8 (Tex . App. --Am arillo 1994, no writ). Moreo ver, the adm ission of such evide nce does not warrant reversa l if the re otherwise appears of record com petent evidence supporting the trial court’s decision. Id. Here, Max us conceded that t he trial court did not rely on that po rtion of Vandi vere’s testimony

reg ard ing o per

atin g ex pen ses . N GC not only accept ed b ut a lso a gre ed w ith t his9 In its rep ly brief, NGC stated: “ As Maxus ad mits, the trial co urt ‘d id not a ccept o r rely upon Mr. Vandiv ere’s test im ony ’ on t hat essent ia l e le m ent of dam ages [ i.e. operating ex penses saved] — the very element that NGC objected to and no w rais es on a ppeal.”

13 concession in its reply brief. 9 Consequently, nothing preventsus from presum ing that the
a llegedl yinadmissible evidence had no effect on the trial court’s decision regarding damag es. Moreimportantly, othe r evidence appears of recor d supporti ng the tria l court’s finding viz

the operati ng expenses which would have been incurred by Max us had NGC performed its ag reement . That e vidence w as pres ented by

NGC v ia its ow n ex pert witnesses. One testified that those ex penses approx imated $22,50 0 per m onth. Then, he acknowledged that another of NGC ’s testifying expe rts used “som e other ways to look at itfrom som e of the other data . . . .” W hen aske d if the conclus ions derived by use of those “other ways ” were “in line with w hat [he] did, ” the witn es s r es po nd ed , “ [i ]n my opinion, yes, I - - I think w e’re all in that [$]20,000 a m onth range roughly.” Given that the trial cou rt f

oun d th e m ont hly o per

atin g ex pen se to be$20 ,00 0, w e ca n sa fely

conclude that the decisi on was supported, at the very l east, by the testi mony of NGC’s ex perts. NGC would have us ignor e the eviden ce provide d by its own experts since it was purportedly offered solely to rebutthe evidence offered by Van divere. And, as basis for urging us to do so, the com pany cites the well-settled rule that o ne does notw aivehis objection to the im proper adm ission of evidence by attem pting to rebut, m inimize, or
ex plain that evidence via other evidence. Transcontinent al Gas Pi peline C orp. v. Texac

o, Inc. , 35 S.W.3d 658, 670 (Tex. App.--Ho uston [1st Dist.] 20 01, pet. denied). Yet,14

Transcon tinental

concerns the w

aiver of an objec

tion to the adm ission of improper evidence. It does not purport to hold that the evidence tende red by the ob jecting party cannotbe used to assess w hether the verdict enj oys the requisite evidentiary support. Nor do we think that

the Transcontinent

al court c ould have so held. Indeed, in determ ining whether any ev idence su pport s the verdict, the reviewing body m ust consider “all the evidence” in a light favorabl e t o the verdict. Id. at 671. If all the evidence appearing of record mu st be considered, then, logica lly, we must analyze the evi dence presente d by all the lit igan ts, not

j ust tha t pr ese nte d by

onepar ty o r th e ot her . S o, in rev iew in g th e evidence proffered by al l the li tigants, we must necessarily consider thatof NGC on the mat ter as we ll.
Moreove r, while NGC m ay believe our consideration of its evidence to be unfa i r under the circum stances, w

e liken the situation to that involving a motion f or directed verdict. If a defendant w ere to m ove for a directed verdict after the plaintiff rests and if the trial court were to deny it, the n the movant has a ch oic e tom ake . H e m ay s tan d on his mot ion, rest, and com plain about the decision o n ap pea l. O r, h e m ay p roc eed w ith h is defense and tender

his own evidence. If he chooses the latter, then he waives his prior
com plaint about the sufficiency of the evidence. Clif fs Drilli ng Co. v. Burrows , 930 S.W.2d 7 09, 712 (Tex. A pp.--Houston [1st D ist.] 1996, no w rit); Hamill v. Brashear

, 513 S.W.2 d 602, 609 (Tex. C iv. App. --Am arillo 1 974, writ ref’d n. r.e.). More im portantly, should the mot ion be renewed at theend of trial, the trial court is not restricted to perusing only the evidence adm itted bef

ore the p laintiff rested in deciding whe ther to grant it. The cont rary is tru e. The trial judge not only m ay but m ust look at all the evidence, including that15

offered by the defendant, i n assessing whether a material issue of fact exists which warrantssubm ission of the case to the j ury. Id. Thus, by proceeding, the defendant m ay eff ect ively fill the void about which he com plained, a nd n o im propriety arises from considering the defendant’s own evidence when deciding if the void was filled. We vi ew that to be the situation here. NGC ha d a ch oi ce to ma ke. Itma de it by not only attacking the foundation underlying Vandivere’s opinions but also byten der ing e vide ncetha t it belie ved acc ura tely reflected the operating expens es which M axu s wo uld have incurred. Having m ade the
c hoice, having pursued a course that did more than simply attack the qualifications of Vandive re and the accuracy of his data and methodology, and havi ng proffered evidence relevant to the issue of ex penses, we, like the courts in Hamill and Clif fs Dri llin g , find no impropriety

in considering all

the evidence in resolving the issue before us. Sim ply put,
we mu st consider it given the standard of review appl icabl e to resolvi ng insuffi ciency claims. Issue Seven - Damage Evidence for Mar ch 1994
Via its seventh issu e, NGC asserts that the trial court erred in awarding M axus damag es for gas which w ent undelivered during the mo nth of March 1 994. The am ount of dam ages involved is $57,143.57. Furtherm ore, the trial court all egedly er red because Vandivere opined that inclusion of the sum was s peculative. W e overrule the issue. NGC’s contention implicates its bypass right under the am ended contract. Therein, the parties agreed that it could “bypass the gas at the Plant if processing of such gas [was]10 Indeed, neither the contr act nor the parti es attempted to ex plain what wasmeant by the term

“unec onomical.” The latter could ev ince a situati on wherein the inc ome rec eiv ed did not exc eed the expenses incurred or where the incom e, though it ex ceeded the expenses, was not suff icient , from NGC’s po in t of v iew, to warrant pursuit of t he endeavor. Sim ply put, t he term i s quite indef inite and, therefore, inv ested NGC with much di scretion. 16 uneconom ical in N GC’ s s ole opinion.” Given this provision, the company was obligated to provide gas each m onth unless it 1) decided “in its sole opinion” that processing the gas was“uneconom ical” for tha t m onth and then 2) opted to bypa ss for that reason. Furthermore, in calculating Maxus’ dam ages, V andivere app are ntly omi tted several m onths of gas because he co ncluded that NGC w ould have bypassed gas at th ose times. However, he included damagesfor the month of March 1994 despite the sup posed chance thatgas m ay have been bypassed for that mont h as well. Whether ornot NGC would have opted to do so w

as “about a tie,” according to Vandivere. S o, he was “speculating on that one.” And, bec ause he was “s pec ulat ing, ” it w as e rro r toincl udetheam oun t in his calculations, according to NGC.
While interesting, NGC’s content ion is flawed. If we are to enforce the cont ract as written, then we mus t conclude that NGC was required to provide gaseac h m ont h un til it opted to bypass. S o, any calculation of damages m ust necessari ly begi n with the premise thatgasw ould hav e be en p rov ided eac h m ont h. N ex t, while NGC had the right to bypass gas, the right was condi tional . Moreover, the cir cumstances under which that co n dition
wasto arise were far fro m definite. That i s, they were not as cer tainable through the application of any express ed f orm ula . Rather, NGC“in its sole opinion” was entitled to decide w hen pro ces sing thegasw ould be “uneconom ical”. 10 Thus, only NGC could decide if and when bypass w

ould occur. Vandivere was not NGC. Nor was he an off icer or11 Interestingly, Vandiv ere admit ted as much. In att empti ng to explai n why he incl ud ed Mar ch in his cal cul ati ons, he stated “ becau se you s ee w hen I calculate .

. . I don’t know what their [NGC’s] gas price was . . . I don’ t know

what their [NGC’ s] s ituation w as . . . .” 17 employeeof

that company. So, he could not exerci se the discret ion vested sol ely in NGC. Furthermore, the latter cited us to no evidence of record indicating t hat Va ndiv ere was privy to the indicia orform ula, if any, which NGCma y have used, at an y particulartime, to determ ine whether, at any particular time, processing gas was “uneconom ical.” Given this, to venture a guess about whet her or not NGC w ould exercise a right at

any particular ti me and under conditions which only it could as s ess in its discretion would be utter speculation on the part of Va ndivere. 11 So, t he error, if any, a rose not fromVandive re including March 1994 in his calculations but by omitting therefr om the m onths about which he speculate d that NGC would have bypassed i ts gas.

Issue s Eight and Nine -

Pre judgment Inter

est Rate
Via its eighth and ninth issues, NGC arguesthat the trial court erred in refusing to calculate pre

j udg m ent

inte res t at

therat e of

six percent per annumunder §302.002 of the Tex as F inan ce C odeand toll theacc rua l of suc h intere st f or t w o ye ars . We ov err ule the issues. Six

Percent
As to the contention that the trial court should have cal culated pr ejudgment interest atsix percent asopposed to ten, we note that it is founded upon stat utory language that did not exist at the time of trial and entry of the final judgm ent. Though §302.002 once12 Aju dgm ent cre di tor is one to w hom a money ju dgment is payab le, T EX
. F IN
. C ODE A NN
. §301.002(a)(5) (Ve rno n Su pp . 20 03 ), w hilea judgment debtor is o ne obligated to pay a money judg ment. Id. at §30 1.002 (a)(6 ). 18 directed that prejudgm ent interest wasto accrue at six percent per year on “all contracts ascertaining the am ount payable” when no s pecified rate was agreed upon by the parties, the statute w

as am ended in 1999. Additionally, the amendm ent becam e effective on Septem ber

1, 1999. S.B . 1368, 76th Leg., Reg. Sess., G en &Spec. Law s, Ch. 62, §20.01 p. 420 (1999). So at

the time of trial, the statute actually read:
If a creditor has not agreed w ith an obligor to charge the obligor any interest, the creditor may charge and receive . . . legal interest at the rate of si x percenta year on the principal amount of the credit ex

tended beginning on the 30th day after the date on wh ich the am ount is due . . . . T EX . F IN . C ODE A N N . §3 02. 002 (V ern on S upp . 20 03) . A s c an b e se en, not hing is s aid about applying to “ all

contracts ascerta ining the amount payable.” (Em phasis added). Mo reo ver , re adin g th e am end m ent in it s co nt ext leads us to conclude that it does noteven apply to the transaction at bar. That t his is true can be seen sim ply from reading the definitions of “credito r” and “obligor. ” The form er denotes a “person w ho loans mo ney or otherw ise ex

tends c redit,” id. at §301.002(a)(3), w hile the latter describes one “to whom money is lo an ed or cr ed it is ot he rwi se ext ended .” Id. at §301.002(a)(13). Neither defi nition encom passes a m ere judgm ent creditor, such as M axus, or j udgme nt d ebtor , such as NGC. 12 Id. at §301.002(a) (3) & (13)(A). Nor di d Maxus sue NGC to collect a loan or credit extended by

Max us to NGC. In short, by am ending the sec tion in 19 99 a nd r

epla cing theold language with new and dist inct

w ord s, t he le gisla tur

e ef fec tive lyrepeale d the proviso upon which NGC reli es.19

Statev. Eversole , 889 S.W.2d 418, 425 (Tex. A pp.--Houston [14th D ist.] 1994, pet. ref’d) (holding it to be a general rule of statutory construction that when the legislature amends
a particular statute and om its certain langu age of the form er statute in its am ended version, thelegis latu re s pec ific ally intends that the om itted portion is to no longer be the law); Eoff

v. Pace , 25 S.W.2d 264, 266-67 (Tex. Civ. Ap p.--Eastland 1930), rev’d on other grounds , 48 S.W.2d 956 (Tex. Com m’ n App. 1932) (stating that w here a statute is revised and som e parts of the original actare om itted from the am endm ent, th e partswhic h are omitted cannot be revi ved by con str uct io n, but are to be cons idered as annulled); see Gateley v. Humphrey, 15 1 T ex. 588, 254 S.W.2d 98, 101 (1952) (holding that the fact that significant words are o mitted from the re-enactm ent or am endme ntof a statute imports a conclusi ve presum ption t hat th e legislature intended toexc lude the o bje ct ther etofore
accom plished by the abandoned w ords). Moreover, t he ena bling legislati on accom panying the cha ngesaid nothing about retaining the vitality of the old statute for any purpose. So, because the provision on whi ch NGC relies was repealed before final judgm ent was entered at bar, the trial court did not err in refusing to apply it. See Qu ick v . Cit y of Aus tin , 7 S.W .3d 109, 128 (T ex. 1999) (stating that when a right or re medy i s depend ent on a statute, the unqualified repeal of that statute o perates to deprive the party of all such rights thathave not becom e vested or reduced to final judgm ent); Phil H. Pi erce Co. v. Watkins , 114 Tex. 153, 26 3 S.W. 905, 90 7 (1924) (holding that the repeal of a statute w ithout a13 Ourho ldin g is simp ly a rei ter

atio n o f therul e d icta ting tha t “alit ig ant has no vested ri ght in a remedy, and that remedi al statutes are v alid and control the lit igation f rom the dat e they become l aw, and all proceedings

taken thereafter must be un der the new law.” Phil H. Pierce Co. v. Watk ins , 114 Tex. 153, 263 S.W. 905, 907 (1 924); Price Pfister, In c. v. Moore & Kimmey, Inc. , 48 S.W .3d 341, 35 4 (Tex. Ap p.-- Houston [14th D ist.] 20 01, pe t. denie d). Given that sta tut es r elating to damages

are re medial, see Price Pfister, Inc. v. Moore & Kimmey, I nc. , 48 S.W .3d at 354 (stating that one does not have a v ested right to a particul ar

measure of damages for a bre ach of contract), an d th at p rej ud gmen t intere st is s imply

a form of dam ages, Johnson & Higgins, Inc. v. Kenneco Energy , 962 S.W.2 d 507, 528 (Tex. 1998), then any amendm ent to §302.002 in 1999 applied t o this case and controlled at t he tim e of judgm ent. And, since at the time of judgment, the statu tory ra te of in ter est menti oned in §302.002 did not encom pass disputes of the ilk at bar, the tri al court was not obligated to cal culate int erest under §302.002. 20 savings clause in the repealing law requires the remedies under the for mer statute to give way to thos e provided for in thenew one). 13 We d o not ignor e that NGC cites Aqui la Southwes t Pi

peline, Inc. v. Har

mon y Expl or ation, Inc. , 48 S.W.3d 225 (Tex. App.--San Antonio 2001, pet. denied) for the proposition that the old version of §302.002 applies despite the 1999 am endme nts. We further acknow ledge that the court in Aquil a applied the old statute to the dispu t e there invo lved. Sotoodid i t no te t hat thesta tute ha d be en a m end ed. Ye t, n ow her e in th e opinion did the intermediate appel l ate court ex pressly address the effect of the am endme nt upon th e d is pu te . F ur th er more , whe th er th at is su e wa s con side red by thecou rt is unknown. Indeed, it seems as though the panel was concerned w ith whether interest w as to be calculated pursuant to statute or rules of equity as des cribed in Johnson & Higgi ns, Inc. v. Kenne co Energy, 962 S.W.2d 507 (Tex. 1998), not whether th e pre-1999 version of §302.002 rem ained in existence. Moreimportantly, in Johnson & Hi ggi ns the Suprem e Court uttered a com ment which proves quite telling. In footnote 9, it concluded by say ing that: “[i]n any event, at the time t

he trial court’s judgment was re ndered in this case , section 6 was the operative provision.” Id

. at 528 n.9 (Em phasis added). Fro m theitali ciz ed p ort ion of th e ph ras e, it14 The statu te rea ds: “ In add ition to the exceptions provi ded by Section 30 4.105, a court may order that prejudgment interest do es not a ccrue during pe riods of delay in the trial.” T EX
. F IN
. C ODE A NN
. §304.108( a) (Vernon Su pp. 2003). 21 is apparent the Suprem e Court believed that the statute in e xi s tence at the ti me the judgment

was si gned controls. In view of this and the fact that Aquil a does not

ex pre ssl y ad dr es s th e p ar ti cu la r d is pu te be fo re us, we ch oo se no t to fo ll ow Aquil a . Tolling of Interest Regarding the tolling matter, NGC posits that the accrual of prejudgment interest sho uld have been tolled, per §304.108 of the Tex as Finance Cod e, for the time period during w hich thecau se w as p rev ious ly on app eal. 14 Assum ing arguendo that§304.108 applies to suits other than for w rongful death, personal injury or property d amage , see T EX . F IN . C ODE A NN . §304.101 (Verno n Supp. 2003) (l imiting appl icati on of the subti tle to such claims), w

e nevertheless conclude that the argum ent is me ritless. According to NGC, the t wo years in question wasneeded to secure reversa l of a
sum m aryjud gmen t p ur po rt ed ly fo un de d u po n a fa ls e a ff id av it . Ye t, we did not reverse the
sum m aryjudgm ent on that basis. Instead, we reversed because M axus failed to attach to its m otion for s um m aryjudgm ent various records upon w hich Vandivere relied when formulating the opinions expressed in his affidavit. Natural Gas C leari nghouse v. Mi dgard Energy Co. , 23 S.W.3d at 378-79. Moreover, of the three points urged by NGC im plicating thataff idav it an d m ent ione d in o ur p rior opin ion, non e involve d th e all ega tio n that the affiantsponsored a false docum ent. Id. at 378. Finally, NGC has not cited us to any finding m adeby any

cou rt o f co m pet ent

j uris dict ion conc ludin g th at a ny p art of t he a ffid avit in question was false. Given thi s, the trial court did not abuse its discretion in refusing to22

toll the accrual of prejudgm ent interest. See Ci ty of Alamo v. Casas , 960 S.W.2d 240, 260 (T ex. App.--Corpus Christi 1997, pet. denied) (holding that decisions regarding whether to toll the accrual of prejudgm ent interest lie within the trial court’s discretion).

Issues Ten and Eleven - A ttorney’s Fees The final two issuesbeforeus concern the attorney’s fees aw arded to Max us. NGC initia llyconten ds that

the trial co urt erred in awarding M axu s feesincurre d whi le
uns uccessfully

defending a sum mary

judgm enton appeal. Then it argues that fees related to liti gation aga inst Transok and the prosecut ion of the fraud chose-in-action against NGC
werenot pro per lysegregated fromthe total aw ard . We su sta in th e fir

st i ssu e an d ov err ule the last.

Fees Incurred Duri

ng Pri or Appeal The trial court found that “fees incurred by M axus on a prior appeal w ere rea son ably incurred in the prosecution of t his m atter” and “ar e pr ope rly in clud ed a s re aso nab le attorney’s fees . . . .” Though their amount went u nspecifi ed by t he trial court, the fees alluded to were incurred whe n Maxus atte m pted todefend on appea l a final sum m ary judgm ententer ed by th e tri al co urt. As previously mentioned, w e reversed that

sum m ary judgm entand rem anded the cause for a n ew trial. See Natural Gas C learinghouse v. Midgard E

nergy Co. , 23 S.W.3d at 380. Au tho rity holds th at an appellee may not recover attorney’s fees related to
uns uccessfully

defending a judgm ent on appeal. Picket v. Keene , 4 7 S. W .2 d 6 7, 78 (T ex. App.--Corpus C hristi 2001 , no pet.); Smith v. Smi th , 757 S .W.2d 422, 426 (Te x. A pp.--23

Dallas 1988, writ denied); Brown v. E ubank, 443 S.W.2d 386, 39 1 ( Te x. Civ. App.--Dallas 1969, no writ) (refusing to aw ard the appellee costs incu rre d in unsuccessfully defending
a prior appea l). To hold oth erw ise w ould be to penalize a litigant for pursuing a successful appeal. Smith v. Smi

th , 757 S.W.2d at 426. Given this, the decision of the trial court to
awa rd Max us attorney’s fee s for unsuccessfully defendi ng on a ppeal a prior s um m ary judgm entdid notcom port with guiding rules and principles and, therefore, constituted an abuse of discretion. Caldw

ell & Hurst v. Mye rs , 714 S.W.2d 63, 65 (Tex. Ap p.--Houston [14th Dist.] 1986, writ re f’d n.r.e.) (stating that a trial court has discretion in determ ining the
amoun t of fees to aw

ard but not in determ ining whether to aw ard fees). Segregati

on of Fees NGC ne xt co mpl ai ns of two wa ys in which M axus allegedly failed to segregate attorney’s fee s. The firs t co nce rnsfee s inc urred in prosecuting its clai m against Transok,
a party ultimatel y d ismissed from the suit. The second involves the purported failure to disti nguish between fees incurre d by Maxus w hile prosecutin g its clai m of fraud against NGC fromthose incurred in pursuing its claim of breached contract. As to the form er, counsel for Max us testified that the total am ount of fees incurred in prosecuting the entire suit was $525,000. From that sum , he deducted $25,000 as representat ive of the fees related to the Trans ok claims. Thereaf ter, the tria l court awarded Max us only $462,597. Befo re us, NGC ass erts that “far toolittl e has been deducted for

the four and a half years of legal fees incurred by Max us in prosecuting its cl ai ms against Tr ansok.” In maki ng th is argument, however, NGC fails to explain w hat other sum s it thinks should have been exclud ed. Ins tea d, it me rely refers to an exh ibit of24

Max us purporting to illus trate the fee s inc urred a nd conc lude s th at “ [a] ltho ugh par tially redacted, the descript ions in those statements reflect sign ificant Transok-related fees.” How and why

they do also goes unm entioned. To a deq uat elybrief an issue, a litigant must do more than provide us with mere conclusi ons. He must analyze and ex plain his contention. Wilki

nson v. Dallas

/Fort Worth Intern. Ai

rport Board, 54 S.W .3 d 1 , 1 9- 20 (T ex. App.--Dallas 2001, pet. denied). It is not our dut y tocre atearg um ent

w her e no ne is provided. So, in failing to explain its contention or direc t us to the spec ific “signifi cant Transok-related fee s” to w hich itallud es, NG C di d no t ad equ ate ly br ief t he is sue . A nd, this results in its waiver. Id. at 20 (ho lding that t he failure to adequately brief an issue results in the waiver of the issue). Neverthele ss, and as previously m entioned, there appears of record evidence that the “Transok-related fees” were segregated fromthe entire a mo unt sought from NGC. Moreo ver, t he trial court excluded fromits award the s egregated sum plus more. Consequentl y, we cann ot say that the aw ard constituted an abuse of d iscretion. See Wilemonv. Wilemon , 930 S.W.2d 290, 294 (Tex. A pp.--W aco 1996, no w rit) (holding that
a trial court does not abuse its discretion as long as som e evidence of substanti ve and probativeforce s upportsits decision ). As to the second contention, w e acknow ledge that one seeking fees has th e burden to distinguish between those incurred w hile prosecuting a claim for w hich fees m ay be awarded from all others. Aetna Cas. & Sur. v. Wild , 944 S .W.2d 37, 40-41 (T ex. App.-
- Am arillo1997, writ denied). Yet, as w ith all rul es, this to o has its exceptions. For instance, seg reg atio n is not required “when thecauses of action . . . are dependent upon25

the sam e set of facts or circumstances and thu s are ‘intertw ined to the point of being inseparable’ . . . ." Stewart Ti tle Guaranty Co. v. Sterli ng , 822 S.W .2 d 1 , 1 1- 12 (T ex. 1991), quoting Gi

ll Sav. Ass ’n v. Chair Ki ng, Inc. , 783 S.W.2d 674 (Tex. App.--Hous ton [14th Dist.] 1989), modifi ed , 797 S. W .2d 31 (T ex. 1990). Should t hat circu m stanceoccur, then the entire am ount covering all claims m ay be awarded. Id. Here, counsel for Maxus testified that the facts pertinent to the fraud and contract cl ai ms were so intertwined that the feescould not be segregated. NGC acknow ledges the arg umen tin its br ief. Yet, to evi nce that the tri al court er red in agr eeing with Maxus’
cou nse l, NGC sim ply asserts that he “adm itted, the fraud claim accrued in 1990 or 1991, when thealleg ed m isre pre sen tat ion o ccu rre d, w hile t he cont rac t cl aimdid not

acc rue unt il 1993, when th e alleged breach occurred.” Then it concludes by saying that t he “proof needed to establish fraud -- including a knowing m isrepresentation, reliance and intent to induce relia nce-- w

as n ot com m on to th e pr oof of t he cont rac

t cl a im, w hich t urned on contract interpretation, as applied to largely undisputed facts.” Much like the preceding argument , this one too l acks substantive analysis and ex planation. W hyit matte rs that the cl ai ms pur por

ted ly accru ed o n dif

fer ent dates g oestotally

undeveloped. Similarly m issing is any explanation as to whythe sam e representations giving rise to the contract and underlying the claim of breach m ay not also evince fraud. This is of im por t be cau se it

is quite conceivable that facts tending to prove a claim of breac hed contract m ay also establi sh fraud. See e.g., P egasus Energy Group

, Inc. v. C

heyenne Petroleu

m Co

. , 3 S.W.3d 112 , 13 1 (Tex . App. --Corpus Christi 199 9, pet. denied) (w herein thecourt recognized tha t the facts underl ying the cl aim of fraud were intertwined with those26

underlying the claim of breached contract). And, that the tw o claims m ay have different elementsis irrelevant since the focus lies upon the com monality of the facts involved, as opposed to the identi ty between the elements of each cause. So, again, we are left to address a br iefin g vo id, a nd b eca usew e ar e, t he cont ent ion is

waived. Smith v. Comm’n for Lawyer Di

scipl ine, 42 S.W.3d 362, 364 (Tex. App.--Hous ton [14 th Dist.] 2001, no pet.) Accordingly, we s ever from the judgm ent, reverse, and rem and to the trial court for further proceedings that portion of the trial court’s j udgme nt which aw ards Max us attorney’s feesof $462,597 “thr ough tria l.” In al l other re spects, the judgm ent of the trial court is affirmed. Brian Quinn Justice