## IN THE SUPREME COURT O F TEX AS

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T H I R D D I S T R I C T O F T E X A S

4 4 4 4 4 444 4 44 4 4 44 4 4 44 4 4 4 44 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 Argued Mar ch 24, 2015

J U S T I C E B R O W N delivere d the opinion of the Court, in which J U S T I C E J O H N S O N , J U S T I C E W I L L E T T , J U S T I C E G U Z M A N , J U S T I C E L E H R M A N N , and J U S T I C E B O Y D joined. C H I E F J U S T I C E H E C H T filed an opinion concur ring in part and dissenting in part, in which J U S T I C E G R E E N and J U S T I C E D E V I N E joined.

In this case we interpre t a wr i t t en natura l-g as-pur chase agree ment betwee n a natura l-g as produce r and a pipeline operator. On summary judgme nt, the trial court d ec l ar ed the agree ment entitled the pipeline opera tor to deduct the costs of compre ssion from its pay ments to the produce r. The court further decla

red the ag ree ment g ave the pipeline operator the option to extend the

arr ang ement for an additional five-year term. The court of appea ls reve rsed, holding the agree ment unambiguously allows neither the disputed deductions nor a five-year extension. We agree and thus aff irm the court of

appea ls’ judgme nt.I

Kac hina Pipeline Company , Inc., owns and operates a natura l-g as g ath ering sy stem and pipeline. I t purcha ses g as from sever al produce rs and transports it for resa le to Davis Gas Processing at one of Davis’s proce ssing plants. Michae l L illis is one of those produce rs, and he has sold g as from his wells to Kac hina since at least 2001. In 2003, Ka china installed the Ba rker Central Compression Station on its pipeline. That compre ssion allows Kac hina to rese ll to Davis at its highpressure inlet, for which Davis pay s a highe r per- volume price

. Kach i n a i n s t all ed additional compre ssion in 2007. In 2005, Kac hina and L illis enter ed into a new Gas Purchase Ag ree ment naming Kac hina as “B uy er” and L illis as “Seller .” Unde r the Agree ment, L illis would transfe r g as fr om his wells into Kac hina’s g ather ing sy stem at specifie d delivery points and Kac hina would pay L illis a perc entag e of the proce eds it obtained throug h resa le to Davis. A produce r can succe ssfully deliver g as only if its pressure is sufficie nt to overc ome the working pressure in the g ather ing sy stem, and the Ag ree ment addre sses the parties’ rig hts and responsibilities as to pressure . I t specifie s that “neither party here to shall be obligated to compre ss any g as” but provides that “[i] f Bu yer installs compre ssion to eff

ect delivery of Seller’s g as, Buyer will deduct from proce eds payable to S eller here under a value equal to Buyer’ s actua l costs to install, repa ir, maintain and opera te compre ssion plus 20% of such c osts to cover mana g ement, over head a nd administration.” The Agree ment provides it is e ffe ctive for an “initial per iod” expiring May 2010, at which point it continues month-to-month and is canc elable by either party upon thirty day s’ notice. “Upon termination or canc ellation of [t he] Ag ree ment, prior to Seller selling g as to a third party ,” Kac hina
2has the option to “continue the p u rc h as e of g as under the terms of [t he] Ag ree ment with such

adjustments in the price here under as may be require d to yield the same economic benef it to Seller, as would be de rived fr om the proposed third[-]party offe r.” Kac hina boug ht, transporte d, and resold L illis ’s g as acc ording to the Ag ree ment. I t deducte d from L illis ’s share o f t h e p ro cee ds “mar keting fee s,” which included his pro rata share of compre ssion cost s . In 2008, L illis enter ed into a purcha se agree ment direc tly with Davis and constructe d his own pipeline to its plant. Around the same time, he objected to the compre ssion fee s Kac hina had be en deduc ting. L illis then sued, asser

ting that the A g ree ment did not authorize deduction for c ompression

occur ring after h e delivere d the gas to Kac hina and that Kac hina t hus brea ched the Ag ree ment by deducting those compre ssion fee s. He soug h t a decla ration that Kac hina was in brea ch and an

acc ounting. He also broug ht a fra ud claim, asser

ting that Kac hina repr esente d it would rele ase him from the Ag ree ment and that he buil t the new pipeline i n relian ce on that repr esentation. Kac hina counter claimed, asser

ting L illis brea ched the Ag ree ment by failing to notify it of Davis’s third-par ty offe r. Ka china soug ht decla rations that it had the rig ht to deduct compre ssion char g es under the Ag ree ment and that it exercised its option, ex tendingthe Agree ment’s term through May 2015. Both parties moved for summary judgme nt, with Kac hina filing a no-evide nce motion for partial summary judgme nt on the fra ud claim and a motion for traditional partial summary judgme nt

on the decla

rations it soug ht. The trial court denied L illis ’s motion for summary judgme nt and g rante d both of Kac hina’s, order ing that L illis take nothing on his claims. The court decla red in its final judgme nt that Kac hina “has the rig ht under the 2005 Gas Purchase Agree ment to deduct from 3[L illis ’s] monthly net proce eds compre ssion costs” and that Kac hina “duly exerci sed its option rig hts

under the 2005 Gas Purchase Ag ree ment so that the termination date of the Ag ree ment h as been extended to May

31, 2015.” It further

awa rded K achina

attorney ’s fe es and e x penses. The court of appea ls reve rsed those decla rations. No. 03-10-00784- CV, 2013 WL 3186261, at *7, * 9 (Tex. App.—Austin J une 18, 2013) (mem. op.). I t held the Agree ment unambiguously does not allow Kac hina to charg e for compre ssion that occur s afte r the g as transfe rs to Kac hina, and thus it ref used to consider extraneous evidenc e Kac hina offe red in an attempt to show that L illis intended to a ssume such costs. Id. at *8. It also held that the option provided for in the Ag ree ment does not allow for a five-year extension. Id. at *6. I t c onsequently reve rsed the awa rd of attorney ’s fee s and

rema nded for considera

tion of L illis ’s acc ounting claim. Id. at *11, *12. Kac hina sought our revie w.

II A decla ratory judgme nt g rante d on a traditional motion for summary judgme nt is revie wed de novo. See Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). Under the traditional standard for summary judgme nt, the movant has the burden to show that no g enuine issue of materia l fac t exis ts and that judgme nt should be g rante d as a matter of law. T E X . R. C I V . P. 166a(c ). “W hen revie wing a summary judgme nt, we take as true all evidenc e favor able to the nonmovant, and we indulge ever y rea sonable infere nce and resolve any doubts in the nonmovant’s favor .” Knott , 128 S.W .3d at 215. At issue here is the trial court’s construction of the Ag ree ment’s compre ssion-cost provision and construction of its option provision. The construction of an unambiguous contra ct is a question of law, also revie wed de novo. Tawes v. Barnes , 340 S.W .3d 419, 425 (Tex. 2011). When the
4ag ree ment as written is ambiguous, howeve r, t h e p ar ties’ intent become s a fac t issue. See Italian

Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W .3d 3 2 3 , 3 3 3 (Tex. 2011)

. Whether

a contra ct is ambiguous is itself a leg al question for the court. Dyne gy Midstream Servs., Ltd. P’ship v. Apac he Corp. , 294 S.W .3d 164, 168 (Tex. 2009). A Whether the tri a l c o u

r t properly decla

red the Ag ree ment authorized deduction of the disputed costs depends on whether the compre ssion-cost provision applies to the c o mp r e s s io n h e r e . Kac hina’s deductions included L illis ’s share of total sy stem compre ssor costs, based on the proportion of g as moved throug h the sy stem that orig inated from his wells. The Ba rker station was in place and operating at the time the parties e ntere d into the A gree ment. In 2007, Kac hina added c ompression equipment to “enha

nce operations and move more g as t h rough the sy stem for delivery to Davis,”

acc ordingto Kachina ’s pre sident. Kac hina argues the provision authorizes deductions for any compre ssion that aids in the final delivery to Davis of g as boug ht from L illis . Under this interpr etation, Kac hina rig htfully deducte d L illis ’s share of the costs of all compre ssion. L illis , on the other hand, argues the provision’s plain languag e allows deductions only for compre ssion that Kac hina installs if L illis fails t o d el i v er at pressure s that overc ome Kac hina’s working pressure at the point of transfe r. He thus argues Kac hina must show (1) L illis has become unable to deliver ag ainst Kac hina’s working pressure , and (2) the compre ssion equipm ent was installed afte r the Ag ree ment’s execution. This interpre tation would prec lude deduction for the p re -existi ng compre ssion at the Ba rker station. And though the

5compre ssion added in 2007 would satisfy L illis ’s second require ment, Kac hina does not argue and

the re cord doe s not support it was installed beca use one of

L illis ’s wells fa iled to deliver. “In construing a contra ct, a court must asce rtain the true intentions of the parties as expressed in the writing i t s elf.” Italian Cowboy , 341 S.W .3d at 333. We may consider the fac ts and circ umstances surrounding a co n t ra ct, including “the commerc ial or other setting in which the contra ct was neg otiated and other objectively deter minable fac tors that g ive context to the parties’ tran saction.” Americo Life, Inc. v. Mye r , 440 S.W .3d 18, 22 (Tex. 2014)

. But while evidenc e of circ umstances can be used to “inform the contra ct text and rende r it capa ble of only one meaning ,” extrinsi c evidenc e can be considere d only to interpre t an ambiguous writing , not to cre ate ambiguity

. See, respec tively , id. ; Friendswood Dev

. Co. v. McD ade & Co. , 926 S.W .2d 280, 283 (Tex. 1996). “A contrac t is not ambiguous simply beca use t he parties disag ree over its meaning .” Dyne gy , 294 S.W .3d at 168. Rather, “[i] f a written contra ct is so worde d that it can be g iven a definite or cer tain leg al meaning , then it is not ambiguous.” Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc. , 907 S.W .2d 517, 520 (Tex. 1995) (per curiam). “When discerning the contra cting parties’ intent, courts must examine the entire agree ment and g ive eff

ect to eac h provision so that none is rende red meaning less.” Tawes , 340 S.W .3d at 425. “We g ive contra ct terms their plain and ordinary meaning unless the instrument indicates the parties intended a differ ent meaning .” Dyne gy , 294 S.W .3d at 168. “More over, we have stated that a court should construe a contra ct fr om a utilit aria n standpoint, bear ing in mind the particula r business activity soug ht to be served.” Lenape Res. Corp. v. T enn. Gas Pipeline Co. , 925 S.W .2d 565, 574 (Tex. 1996). “No single provision taken alone wi l l b e gi ven controlling eff ect; rathe r, all the 6provisions must be considere d with ref ere nce to the whole instrument.” Tawes , 340 S.W .3d at 425 (quoting Coker v. Cok

er , 650 S.W .2d 391, 393 (Tex. 1983)). Applying these rules of interpre tation, we agree with L illis that the provision unambiguously allows Kac hina to deduct only the costs of compre ssion installed during the term of the Ag ree ment if require d to overc ome the working pressure in Kac hina’s sy stem. A para graph titled “De livery Point” defines the point of tra nsfer : Seller ag ree s to deliver and Buyer agree s to rec eive the g as delivera ble here under at the outlet of Buyer[’s]

. . . metering fac iliti es to be located at a mutually agree able point(s) at or near Seller’s well(s). Such point sha ll c onstitut e the delivery point for all g as to be de livered he reunde r. The next para g raph provides, “Title of all g as delivere d here under shall pass to Buyer at the delivery point.” A par ag raph titled “Pre ssure” g ener ally addre sses the pre ssure diff ere ntial at that point: Pressure: Seller shall deliver the g as delivera ble here under, at the above[-]describe d delivery point at a pressure sufficie nt to enter B uy er’ s pipeline ag ainst the working pressure maintained there in from time to time. Seller will regulate its[ ] pressure s so as to not exceed the maxi mum allowed operating pressure (MAOP) as set from time to time by Buyer for deliverie s i n to Buyer’ s g as pipeline. Howeve r, it is expressly understood and agree d that neither party her et o s h all be obli g ated to compre ss any gas under the terms of this Ag ree ment and if the well is no longe r capa ble o f delivering g as aga inst the working pressure s maintained at the delivery point and neither party elec ts to install a compre ssor, then Bu y er shall, upon reque st from Seller, rele ase such well and the gas produce d there from from the terms and provisions of this Ag ree ment. If B uyer installs com pression to eff ect delivery of Seller’s gas, Buyer wi ll deduct from procee ds paya b l e to Seller hereunder a value equal to Buyer’s actual costs to install, repair, m aintain and operate com pression, plu s 20% of such costs to cover man a g eme nt, overhead and adm inis trat ion. (empha sis added). The P ressure para g raph recognizes transf er i n t o Kac hina’s li ne depends on the producer’ s

7well’s pressure being sufficient to overc ome Kachina’s workingpressure , and it imposes the dut y

to maintain sufficie nt pressure on the produce r. I f a we l l fails to overc ome Kac hina’s working pressure , the par ag raph give s Kac hina t wo opt ions. It may do nothing, in which case the w ell will be rele ased from the Ag ree ment. Or it may elec t to install compre ssion so that the well can overc ome the workingpressure . I f Ka china e lects the latter , it has the rig ht to deduct costs incurr ed. The conting ent nature of that rig ht is unavoidable—it arises only “[i] f [Kachina] installs compre ssion to eff

ect delivery .” See Solar Applications Eng’g, Inc. v. T .A. Operating Corp. , 327 S.W .3d 104, 109 (Tex. 2010) (“In order to make perf ormanc e specific ally conditional, a term such

as ‘i f’

. . . or some simil ar phrase of conditional languag e must normally be included.” (q u o t i n g Crisw ell v. European Crossroads Shopping Ctr., Ltd. , 792 S.W .2d 945, 948 (Tex. 1990)))

. We must

rea ch two conclusions to make sense of this conting ent phrasing

. First, it d o es n o t apply to preexis ting compre ssion. I t makes littl e sense that the parties would have made deductions conting ent

on installation if they int en d ed the provisi on to also cover the compression alre ady in place at t he time of the Ag ree ment. Second, only compre ssion installed for the purpose of overc oming Kac hina’s working pressure is installed to “ef fect d el i v ery .” The sentenc e immediately prec eding the compre ssion-cost provision contemplates a s ce n ar io in which “a well is no longe r capa ble of delivering g as ag ainst the working p re s s u res” and “neither party elec ts to install a compre ssor.” Gen era lly , well pressure tends to diminis h over time as the rese rvoir is depleted; the Pressure para g raph cre ates an elec tive scheme that addre sses this rea lity

. Indeed, the ordinary meaning of the verb “ef fec t” is “to bring about; to make happen.” B L A C K ’ S LA W D I C T I O N A R Y 628 (10th ed. 2014). I f a well’s natura l pressure is sufficie nt to overc ome the working pressure at the delivery point, added 8compre ssion can hardly be said to bring about delivery that would occur without it. To construe the

compre ssion-cost provision to apply to any compre s s io n w o u ld ig n o r e it s p lain ly c o nting ent languag e and the e lective sc heme it cr eate s. Kac hina argues that “deliver y ” in c lu d e s f

in a l delivery to a third party —here , Davis—bec ause the provision does not expre s s ly limit “deliver y” to mean only transfe r into its sy stem. When considering the Ag ree ment as a whole and the specific context in which the provision appea rs, this cannot be so. The Ag ree ment does not define the term “deliver y ,” but it uses “deliver ” or “deliver y” dozens of times throughout, a lmost ex clusively to r efe r to transfe r fr om L illis to Kachina . And, as discussed, the Pressure para g raph containing the compre ssion-cost provision specific ally addre sses pressure issues at those points of transfe r. In contra st, the Ag ree ment ref ers to re- delivery to a third party only twice. Once is i n a para g raph titled “Re s e r

v a ti o n o f Gas by Buyer,” which allows Kac hina to except from the Ag ree ment g as t o operate compression that is “re quired to provide ga s to third[-] p ar t y p urcha sers.” Thus, the Ag ree ment contemplates Kac hina may need to compre ss the g as for re sale, but it uses the term “provide ” rathe r than “deliver .” And though Kac hina may use g ather ed g as to fuel that compre ssion, the p ro v i s i on is silent as to who bear s the compre ssion’s cost. The other usag e is in the price provision, which sets the price based on the net volume “deliver ed to and resold by the Buyer based

on the price rec eived by the Buyer for resa le of same said g as delivere d at the outlet of the Buyer’ s Sy stem.” That sing le usag e of “deliver y” to r efe r to transfe r to a third-pa rty purcha ser at the outlet of Kac hina’s sy stem cannot outweig h the consistency with which it is otherwise used throug hout the Ag ree ment and in the compr ession provision’s specific textual environme nt. 9Kac hina’s fall-ba ck position is that even if “deliver y” means transfe r at the delivery point and not to the Davis plant, th e Ba rk er compre ssor “ef fec ts delivery” by cre ating a suction, there by lowering the upstream p re s s u re and aiding the flow of g as throug h the delivery point and into Kac hina’s line. The C H I E F J U S T I C E ag ree s. Whil e we do not question that downstream compre ssion may function as Kac hina sug g ests, that fac t u al as s er t ion does not help interpre t the Ag ree ment’s languag e. Both Kac hina and the C H IE F J U S T I C E assume any compre ssion that aids in delivery “ef fec ts delivery .” But, respe ctfully , neither offe rs an alternative interpre tation of the contra ct languag e that would harmonize this position with the provision’s conting ent phrasing and immediate context. See FPL E nergy, LLC v. TXU Portfolio Mgmt. Co. , 426 S.W .3d 59, 63 (Tex. 2014) (“We consider the entire writing to harmonize and eff ectuate all provisions such that none are rende red meaning less.”). The C H I E F J U S T I C E also states that the evidenc e shows that L illis would not be able to deliver to K achina without compre ssion. We disag ree . Compression is clea rly nece ssary for re- delivery to Davis’s high- pressure intake, but the rec ord shows Davis can also take low-pre ssure sales at less than 50 pound s p er s q u ar e i nch g aug e. L illis delivers to Kac hina at 50 and 80 pounds per square inch g aug e, and the rec ord establishes g as could flow from the lease s throug h Kac hina’s line and to Davis without compre ssion if Kac hina had not opted for the high- pressure sale. In any case , the summary judgme nt burden is Kac hina’s, and L illis need not establish the compre ssion here was not nece ssary for de livery

to Kachina

. The Pressure para g raph acknow ledg es Kac hina’s options if fac ed with an underpr essurized well and shifts costs of compre ssion inst alled to re medy such a situation. B ut there is no evidenc e that Kac hina ever fac ed an underpr ess u ri zation issue. The rec ord supports only that Kac hina
1 0constructe d the Ba rker compre ssion station to take advanta g e of the highe r price Davis pay s for highpressure resa les and added the 2007 compre ssion to incre ase the amount of g as g ather ed and transporte d. The Agree ment does not addre ss these dec isions. We do not mean to say , howeve r, that the compre ssion’s location is deter minative. The court of appea ls held that “the provision does not expressly speak to whether Kac hina may seek rec overy for compre ssion that occur s afte r g as has been transfe rre d.” 2013 WL 3186261, at *8. We disag ree with the court’s implicit assumption that compression occur ringon Kac hina’s side of the delivery point cannot “ef

fec t delivery .” As Kac hina and two pipeline-industry amici point out, compre ssion not only incre ases downstrea m pressure , it reduc es upstream pressure , which can decr ease the working pressure at the delivery points to fac ilitate tr an s fe r fr o m a low-pre ssure well. See, e.g. , Parker v. TXO Prod. Corp. , 716 S.W .2d 644, 645 (Tex. App.—Corpus Christi 1986, no writ) (noting pipeline oper ator “ installed compressor s to better deliver the g as from the wells into [i ts] pipeline sy stem”). I f a well fails to de liver, Kac hina can eff ect delivery by decr easing the workingpressure in that manner . The provision allows deductions only for compre ssion that serve s that purpose, but it does not speak to the compre ssion’s location. In fac t, the Ag ree ment provides L illis has “exclusive control and possession of the g as delivera ble here under” until title transfe rs at the delivery point, and it g ives Kac hina no rig ht to install any equipment upstream from the delivery point. The court of appea ls’ implied limit ation would eff ectively require the parties to act beyond the rig hts the Ag ree ment aff

ords in order

to give the provision eff

ect. The rec ord ref

lects that Kac hin a h ad b ee n deducting compre ssion costs as part of its marke ting fee s since at least 2003 under the 2001 contra ct. Kac hina points to L illis ’s acquie scenc e 1 1to those fee s as evidenc e that he knew he would share those costs. The 2001 compre ssion-cost

provision was written more broadly than its counter part in the 2005 Ag ree ment, howeve r, and such acquie scenc e does not establish a course of dealing that supports Kac hina’s interpre tation. See T E X . B U S . & C O M . C O D E §§ 1.303(b), 2.202(1) (def ining course of dealing and allowing course of dealing to explain express terms). The 2001 contra ct allows deduction of a compre ssion fee “[s] hould Seller at any Point of Deliver

y deliver g as into one of Buyer’ s pipelines wher eon compre ssion fac iliti es are ins t alled.” That provision would cer tainly apply to all compre ssion here

. That the provision’s languag e chang ed so drastica lly betwee n the 2001 and 2005 contra cts supports our interpre tation of the Ag ree ment’s languag e. The C H I E F J U S T I C E argues i t makes no sense that L illis would cea se to assume his share of co s t s . But our task is to interpre t the Agre ement’s langua g e, not to justify the barg ain it memorializes. See FPL Energy , 426 S.W .3d at 65 (“We must respe ct and enfor ce this [contract’s] assig nment of risk.” (citing Gym–N–I Playgrounds, Inc. v. Snider , 220 S.W .3d 905, 912 (Tex. 2007))). In support of its contention that L illis understood the Ag ree ment allocate d his share of costs of al l compre ssion, Kac hina also points to L illis ’s continued acquie scenc e to the marke ting fee s under the 2005 Agree ment as well as depo s i t i o n testimony in the rec ord that sug g ests L illis understood he would be allocate d compre ssion costs under the Ag ree ment. A party ’s interpre tation of an agree ment is parol evidenc e and cannot be used to cre ate am b i gu ity or show motive. Anglo–Dutch Petroleum Int’l, Inc. v. Gree nberg Pede n, P.C. , 352 S.W .3d 445, 452 (Tex. 2011); see also Italian Cowboy , 341 S.W .3d at 333–34 (“O nly wh er e a contra ct is ambiguous may a court consider the parties’ interpre tation

. . . .” (quoting David J. Sacks, P.C. v. Haden , 266 S.W .3d 447, 1 2450–51 (Tex. 2008) (per curiam))). Both L illis ’s acquie scenc e and his testi m o ny are evidenc e of

subjective intent that we cannot consider to contra dict the provision’s unambiguous leg al meaning

. Sun Oil Co. (

Del.) v. Madele

y , 626 S.W .2d 726, 732 (Tex. 1981) (holding method of acc ounting in administeringa contr act wa s inadmissibl e evide nce of a par ty ’s interpre tation). Amici have made it clea

r that downstream centr a li za ti on of compre ssion is both common and critica l to the eff

icient t ranspor

tation of gas to market. We do not doubt that, and we do not doubt that produce rs often contra ct to share in such costs. But the Ag ree ment does not express an objective intent that L illis would do so, and industry custom cannot impose obligations be yond those within the w ri t t en Agreement. See Nat’l Union , 907 S.W .2d at 521–22 (re fusing to consider evidence of industry -wide discussions beca use it direc tly conflicte d w it h e xp r e s s la

n g u a g e). The Ag ree ment does not authorize Kac hina to deduct the disputed costs, and the trial court err ed to the extent it decla red otherwise. B The Ag ree ment’s term provision require s L illis to g ive Kac hina notice of any purcha se offe r made by a third party , and it g ives Kac hina the o p t i o n t o “c o n t inue the purcha se of g as under the terms of this Ag ree ment with such adjustm ents i n the price here under as may be required to yield the s ame economic benefit to [L illis ], as would be derived from the proposed th ird[-] party offe r.” The c ourt of appe als corr ectly decide d this provision does not support a five-year extension. Kac hina argues t he provision’s languag e supports such an extension beca use t he five-y ear ini t i al p eriod is a “ter

m of this Ag ree ment.” Certainly , in exercising its option, Kac hina rema ins bound by the Agre ement’s origina l terms. Bu t t h e o ption rig ht grante d is not the right to a new or 1 3rene wed ag ree ment; it is the rig ht to continue the purchase of gas under the Ag ree ment’s terms. The five-year initial period is one of those terms. Another is that the Ag ree ment would become month-tomonth in May 2010. The ex press langua g e does not subject t he parties to a new agree ment with a new initial term. Kac hina points to the proposed agree ment betwee n L illis and Davis, which it say s also sets a fix ed pric e for

a five -y ear

term. The pr ovision, however, a llows adjustments only in price based

on the outside third-par

ty ag ree ment. I t does not import any other term from a third-par ty offe r. Kac hina’s rig hts are confine d t o t h e Ag ree ment reg ardle ss of the content of the L illis –Davis ag ree ment, price notwithstanding. Kac hina argues that beca use the marke t price of g as fluctuate s, a n ew fi v e- y ear term is require d to confe r the same economic benef it on L illis as he would have rec eived through his deal with Davis. W h i l e i t m ay be true that g ener ally a contra ct’s economic value is to some extent a function of its term period and that our interpre tation s h o u l d b e informed by that commerc ial context, the plain languag e here still does not entitle Kac hina to an additional five-y ear term. Fur

ther, the provision protec ts L illis by ensuring he rec ei v es the economic benef it of any outside deal he procur es afte r rig htfully canc elling or terminating the contra ct. I t does not confe r any additional rig hts on Kac hina, and to construe it as forc ing L illis into an extended commitment runs contra ry to its purpose. Finally , Kac hina argues our c onstruction yields the absurd r esult that L illis may canc el the Ag ree ment ever

y month, requiring Kac hina to perpe tually exercise its option. The rea lity , howeve r, is not so absurd. Whil e L illis is entitled to canc el on the first day of any month once the initial term 1 4expired, his only rea son to do so would be that a third party had offe red a better price

. The provision

rec og nizes that L illis may pursue a better deal, and it indee d require s Kac hina to match that deal if it is to continue purcha sing from L illis

. Kac hina, howeve r, insists the b u s i n ess of natura l-g as transportation require s substantial upfront investment in equipment and maintenanc e and there fore is not suited to such an unp re d i ct ab l e short-term arr ang ement. Those g ener al conce rns are not implicated her e whe re K achina ’s upfront investment has alre ady taken plac e. Ka china ha s had the initial five-year commitment to secur e a return on that investment, and i t could have specific ally contra cted for a longe r fix ed term if the economics require d. The option pr ovision doe s not r ender the month-to-month term any more a t odds with indust ry

rea lities than it i s on its own. The trial court’s declar ation that Kac hina ex tended the term of the A g ree ment to May 31, 2015, is inconsistent with the Ag ree ment’s express languag e, and the court of appea ls corr ectly

reve rsed it. III Be cause the court of appea ls c orre ctly reve rsed the trial court’s decla rations, its re versa l of the attorney ’s-fe es awa

rd and rema

nd to the trial court on the issue wer e proper . Kac hina argues that beca use it preva iled on sever al issues and beca use some of the decla

rations conce rning the contra ct issues rema in i n t ac t , re v ersa l of the entire fee awa rd is err or. Under the Uniform Dec laratory J udg ments Act, a trial court has discretion to awa rd costs and attorney ’s fee s . T E X . C I V . P R A C . & R E M . C O D E § 37. 0 0 9

. When an appellate court reve rses a decla ratory judgme nt, it may reve rse an att orney ’s fee awa

rd, but it is not require d to do so. SAVA gumarska in kem ijska industria d.d. v. Advanc ed Polyme r Scis., Inc. , 128 S.W .3d 304, 324 (Tex. A pp.—Dallas 2004, no pet.) (“[A]fter a 1 5decla

ratory judgme nt is reve rsed on appea l, an awa rd of attorney s’ fee s may no longe r be equitable and just.”). Kac hina may be corr ect that there rema in g rounds on which a trial court may awa rd fee s. But beca use we decide Kac hina did not preva il on two of the primary issues in dispute, we rema nd the issue to deter

mine the appr opriate a

war d of costs and f

ees. Kac hina also asser

ts that L illis inadequately briefe d the attorney ’s-fe es issue at the court of appea ls a nd thus waived the issue. There , L illis reque sted rema nd of the issue of fee s and costs “if the Court sustains one or more of its decla ratory-judg ment challeng es.” “[W ]e liberally construe issues prese nted to obtain a just, fair, and equitable ad j udication of the rig hts of the litigants.” El Paso Natural Gas Co. v. Minco Oil & Gas, Inc. , 8 S.W .3d 309, 316 (Tex. 1999). L illis phrase d the

re qu es t conditionally and prese nted it in a footnote, but he nonetheless made the reque st and prese rved the issue. The issue was proper ly befor e the court of appea ls, just as it is properly befor e

us. * * * T h e court of appea ls corr ectly reve rsed the decla rations conce rning the compre ssion-cost deductions and the Ag ree ment’s term. We aff irm that court’s judgme nt and rema nd to the trial court for c onsideration of L illis ’s re quest for a n acc ounting a

nd costs and fe es.

_____________________________ J eff rey V. B rown J ustice OPI NI ON DEL I VERED: J une 12, 2015

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