1 MeyerFarm s and Meyer Oi l were the only plai ntif fs m entioned in the summar y judgm ent. Yet, t he

record illustrate s that a third enti ty, Meyer Land & C at tle Co mpa ny , I nc . jo in ed th e l iti ga tio n a s a p ar ty pl ai nt iff via the “Pla intiffs ’ Fo urt h Ame nd ed Orig ina l Pet it ion.” And, t hough it was a party plainti ff , it went unmenti oned in the s ummary judgment. Th us, a ques tion aro se a s towhether the summary j udgment was fi nal for purposes of appeal. W e conclude that it was giv en the parties’ written stipul ation of July 20, 2001, the same day summ ary judgm ent was executed. Through that sti pulation, all agr eed that the “Current Action” con sis

ted “of th e cla ims s et fo rth in the Third Amended Peti tion.” M eyer Land & Cattle Com pany was not na med a s a

pla intiff in tha t pe titio n. Th us , log ic co mpels us to hold t hat the clai ms of M eyer Land & Cattle w ere not part of the su it in wh ich the “ Final Summary Judg ment” was e ntered

. NO. 07-01-0344 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C OCTOBER 2, 2002

______________________________ MEY ER FARM S, INC. A ND ME YER OIL COMPA NY, INC ., Appellants
v. TEXACOPRODUC ING, INC., Appellee

_________________________________ FROM THE 100 TH DISTRICT COURT OF CARSON COUNTY; NO. 7067; HON. DAVID M. MCCOY , PRESIDING

_______________________________ Before QUINN , REAV IS and JOHN SON, JJ., Meyer Far m s, I nc. and Me yer Oil Com pany, Inc. (collectively referred to as M eyer) appeal from a take-nothing jud gment entered in response to a sum mary judgm ent m otion filed by Tex

aco P roducing, Inc. (T exa co). 1 The latter ha d filed a traditional and no-2

evidence mo tion for sum mary judgm ent. Via tw

o issues , Meyer com plains that the trial court erred in granting 1) the sum mary judgm ent and 2) Texaco’s Special Exception No. 6 t o M ey er ’s pl ea di ng s. W e a ff i rm. Backgr ound In 1988, Meyer f

iled a breac h of contract action against Texaco asserting that Texaco failed to pay Meyer am ounts due for gas sal es under three contracts . The contracts in question were dated J uly 1, 1981, February 17, 1983, and October 6, 1973 (Original Contracts). Under the se contracts, Texaco’s predecessors in interest (Getty and Skelly) were to pu rchase from Meyer gas produced from certain wells under a pr ice struct ure set

out in th e co nt ra ct s. Howe ve r, on Oct ob er 9, 19 84 , Ge tt y se nt two letters to Meyer concerning these three contrac ts. In the letters, Ge tty stated, “[c]ondi tions have existed for som e time now concerning the sale of

NGL’s and residue gas

. . . whic h renders [sic] the purchase of ga s un der the term s of the referenced agreem ent unprofitable to Getty; therefore . . . Getty has no other opti on other [ sic] than to propose an alternate pricing structure . . . or d iscontinue the purcha se of gas fromthe subj ect lease.” On Novem ber

9, 1984, Meyer signed two letter agreem ents m odifying the pr icing struc ture under the co ntra c ts. M eyer per form ed under

the new

pricing str ucture for four years without protest o r com plaint. Meyer filed this law suit on June 23, 1988. I n the petition, he contended that T exaco failed to pay

Meyer the purch ase price of the gas as s tructured under the original agreemen ts. Furtherm ore, to avoid the effect of the 1984 modifi cations, it was ass erted2 The al le gat io ns viz lack of consideration are m oot. Meyer om itted f rom its li ve pleading that theory as a bas is for avoiding th e modifications

. 3 (through the live pleadings) that those modificati ons 1) were secured via duress, bad faith, and fraud, and 2) w

ere unconscionable. Texaco received an initial sum m aryjudgm ent, which w e reversed in Meyer

Farms, Inc. et al v. Texaco Producing, Inc. , 07- 98- 002 9-CV; 199 9 Te x. Ap p. WL12 572 5 (A m arillo March 10, 1999, pet. denied). Upon reman d, it ag ain s oug ht s um m ary j udg m ent . Th is time, Texaco con tended that no evidence supported Meyer’s allegations of 1) lack of consideration, 2) duress, 3) unco nsc i onability, 4) bad faith, and 5) fraud. 2 Sotoodid Texaco assert that it established, as a m atter of law, tha tthose allegations were barred by the defenses of ratification and estoppel. The trial court again granted the m otion . In doing so, however, it did not specify the ground upon w hi ch it acted. It m erely denied
recover y to M eyer. Standard of Review T he standards of revi ew governing appea ls from summ ary judgments a re well
settled. Rather than reiterate them , we refer t he litiga nts to Nix on v. Mr. Property Management

Co., 690 S.W.2d 546, 548 (Tex. 1985) an d Kimber v. S ide ris , 8 S.W.3d 672, 675 (Tex. Ap p.–Am arillo 1999, no pe t. ) f or an exp l an at i on of th em. Next , because the trial court did not specify the gr ound upon which it acted, the appellant, Meyer, had the burden to illustrate that none of the grounds alleged in the m otion supported judgm ent. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989 )

. Appli catio n of St anda rd4

Ratifi cation We begin our review by address ing the ground o f ra tific ation. Thelatter occurs when one, induced into execut ing an agreement via misconduc

t, continues to r eceive the benefits of the contract af ter becom ing aware of

the m isconduct or otherw ise acts in a way recognizing the contract as s ubsisting and binding. Rosenbaum v. Tex as Bldg &

Mort. Co. , 140 Tex. 325, 167 S.W.2d 506, 50 8 (1943); Pit man v. Li ghtfoot , 937 S.W.2d 496, 522 (T ex. Ap p.—Sa n A nto nio 1996, writ denied). The ratification need not be ex pressed. Id. “[A]ny actbased upon a recognition of the contract as ex isting or any conduct inconsistent with an intention of avoiding it has the [requisite] effect

. . . . ” Rosenbaum v. Tex as Bldg & Mort. Co. , 167 S.W.2d at 508. And, though the intent of the person alleg edly ratifying the miscondu ct is important, Old Republic Ins. Co. v. Fuller , 919 S.W.2d 726, 728 n. 1 ( Te x. Ap p.— Tex arkana199 6, writ

denied), The Atriu

m v. Kenwi

n Shops of Croc

kett, Inc. , 666 S.W.2d 315, 31 8 (Tex. Ap p.-—Houst on [14th Dist.] 1984, writ ref’d n.r.e.), the intent involved is the voluntary, intentional performance of an act inconsistent w ith an intention of avoiding the prior agreement. Old Republi c Ins. Co. v

. Fuller , 919 S.W.2d at 728 n.1. In other w

ords, t he party

need on ly perform

an act inconsistent w ith the s upposed desire to nullify the accord w hile intending to voluntari ly perform th e act. Given this, the critical factors in assessing whether

ratification occurred are 1) knowledge of the purported wrong and 2) action in light of that know ledge. Land Ti tle Co . of Da llas, Inc. v

. F. M. Stigler, Inc. , 609 S.W.2d 754, 756-57 (Tex. 1980). A s stated by theTexa s Sup rem e Court in Sti gler , “[w]hat m ust be cons ider

ed is[th e pla intiff’ s] actions once it acquired know ledge of [the defendant’s] act.” Id. And, the requisi te action can be nothing more than i nact ion or5

silence. Pit

man v. Li

ghtfoot , 919 S.W.2d at 523, quoting Ba ncTEXAS Al len Parkway v. Alli ed Americ an Bank, 6 94 S.W .2 d 1 79 , 1 82 (T ex. App.-—Houston [14th Dist.] 1985, no writ). So, “[w

]hen the benefits [in question] are the direct, certa in, and proxim ate result of [the improper] act , retention of those benefits after t he [plaintiff] acquires knowledge of the [act] constitutes affirm ance of the act and ratification to the transaction.” Land Titl e Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d at 757. And, this determ ination can be made
as a m atter of law

if the evidence is uncontroverted or incontrovertible. Pit man v. Li ghtfoot , 937 S.W.2d at 522-23; Old Republi c Ins. Co. v

. Fuller , 919 S.W.2d at 728; Sawyer v. Price , 580 S. W .2d 117, 123 (Tex . Civ. A pp.—C orpus C hristi 1979, writ r ef’d n. r.e.). Itis uncontrove r ted that fromthe time Texaco approache d Meyer regarding the 1984 mo difications, Meyer disagreed with Tex aco’s interpretation of the origi nal contra ct and its claim that it also had the aut hority to cancel the original agreement on the basis of unprofi tabil ity. Similarly uncontroverted are the facts that Meyer 1) neverthe less agreed to the proposed m odifications of Texaco, 2) sold product to and received paym ent from Texaco in accordancewith those m odifications from Nove mber 9 , 1984, to Decem ber of 1989, and 3) said nothing about his disagreem ent with Tex aco’s int erpr etation of the origi nal contra ctand supposed right to mo dify until he filed the pending suit on June 23, 1988. These facts illustrate 1) knowledge by M eyer of Texaco’s purported miscondu ct as
ear lyas 1984, 2) acq uies cen ce to th e m odif icat ionsdes pitetha t kn ow ledg e, 3 ) th e sa le of product to Texaco in accordance with the m odifications for over five years, 4) the acceptance of f

ive year s w ort h of pay m ents by

Me yer fro m Tex

acoin accordance with the 1984 mo difications, and 5) the continued acceptance of at least one year’s w orth of6

paym ents under the m odifications after suit was filed. This is nothing short of conduct 1) inte ntio nally

undertaken long after discovery of the grounds purportedly justifying termination of the 1984 accord and 2) inconsistent with the inte nt to r escind that agreemen t. In short and concern ing Meyer’s allegations regarding the interpretation of the Original Contra cts an d purported rights under them , Texaco es tablished the defense of ratification as a m atter

of law and its right to sum mary judgm ent, unless Meyer s omehow raised a material issue of fact prohibiting entry of judgm ent. Meyer attem pted to raise such an i ssue of fact by asserting duress. That is, he argued that he agreed to the 19 84 changes because h e had no other m arketfor his product and had to accede to Texaco’s dem ands. Furtherm ore, he purpor te dly had no alterna tive ma rket bec a use various lawsuits w ere pending which questioned title to the product from the leases encom pas sed in the Original Contracts. And, since title to the product was in question, no o ne other than Texaco would buy it, he t heo riz ed. If these circumstances areaccepted a s tr ue, the n a m ate ria l issu e of fact m ay have ex isted regarding the voluntariness of his actions regarding performance of the 1984 am endme nts and the receipt of benefits under them ; again, Pit man states that

the acts undertaken upon garnering knowledge of th e m isconduct m ust be voluntarily performed. Y et, the record before us incon troverti bly illus tra testha t th e su its w hich placed t itle to hism iner als i n question and allegedly inhibi ted Meyer from selling the m elsew her

e were set

tled by July 31, 1987. So, from

July 31, 1987, through Decem ber of 1989, or for approx imately tw o and
one -ha lf years after the basis fo r his claim of duress was no longer in existence, he
con tinu ed to pe rfo rm und er a nd r ece ive b ene fit

from the 1984 modifications. Gi ven this,3 Meyerdid attest in an affida vit tha t on ce t helaw su itswe re “ ter minated or r es olved , it

took several months to finalize the proce edings so th at [he] could be gin toeven atte mpt to se ll ga s to o the r pa rtie s. ” Th is st atement is of no consequence, however. W hile i t may hav e taken “several months” to f inali ze the pro cee di ngs, it does not expl ain what prev ented him from fi nding alternate buyer s during the two years after tho se “several months” expired. Furth ermore, to th e exte nt t ha t he

su gg eststhe

initi atio n o f thesu it ill ustrates an act consistent with term ination of the changes, that su it was no t init iate d u ntil 11 months aft er the circ ums tan ces

alle ge dly

causing him duress ended. And, he does not explain why

he s aid noth ing to Texaco du ring tha t interim, or w hy he s imply kept per forming unde r the 1 984 ch ange s. 7 we cannot say his actions from July 31, 1987, through December of 1989, constituted any evidence upon which a rational j uror could hold thathis performance of the mo difications and recei pt of its benefi ts were involunt ary due to duress. 3 Nor do we hold that Meyer’s ut terance, in his affidavit, that he never approved, adopted or confirmed, nor intended to approve, adopt or co nfirm the m odification somehow precludes sum mary

judgm ent on the claim of ratification. First, the utteran ce s are conclusor

ystatem ents and, therefore incom petent sum mary judgm ent evidence. Brow nle e
v. Brownlee , 665 S.W.2d 111, 112 (Tex . 1984) )(holding tha t conc lusory statem ents ar e notcom petent sum mary judgm ent evidence), Dick erson v . Da vis , 9 25 S.W.2d 123, 126 (T ex. App.—Am arillo 1996, writ dism’d w .o.j.) (holding the sam e). Second, t hey d o not indicate th at he did n ot intend to voluntarily perform acts inconsistent w ith his purported desire to rescind the 1984 modificati ons while havi ng knowledge of the al leged misconduct and once the purported circum stances causing duress ended. Tha t is the relevant intent, according to OldRep ub lic

. OldRep ub licIns. Co. v. Fuller , 919 S.W.2d at 728 n.1. And, the i ntention al acts evincing such inconsistency w ere Meyer’s p erformance of the 1984 modifications and his acceptance of ben e fits gran ted under that agreem ent once the circumstances allegedly causing him duress ended

.8

Nor do we f ind Meyer’s reliance on Arroyo Shri mp Farm, I

nc. v. Hung S

hrim p Farm, Inc. , 927 S.W.2d 146 (Tex. App.—CorpusChristi 1996, no writ ) persuasive. Though the court there stated that “[a]cts done in affirmance of t he original contract do not necess arily
amoun tto a wa iver of the right to sue for fraud,” id. at 154, the contex t in which the statem entwas m ade differs from the one a t bar. The re, eviden ce appe ared of r ecord indicating that the plaintiff did not know of the fraud until shortly before filing suit. Id. at 154. H ere, there i s no doubt that as of the da te on which the 1984 chang es wer e proposed to him, Meyer disagreed w ith Texaco’s construction of the orig inal contra ct. At thattime he al so disputed Texaco’s authority to te rminate the agreement or propose modifications in lieu of termination. Despite thi s, he nevertheless acceded tothe changes and perform ed under them for approxim ately five years. Again, during the first four ye ars of that period, Meyer perform ed without com plaint to Texaco. And, by the inception of the fourth year, the conditions w hich allegedly forced him to agreeto the changes had ended. So, unl ike that in Arroyo Shri mp , we do not have before us a s ituation wherein suit was filed soon after discovery of t h e m isconduct warranting resc ission of the tainted agreemen t. Nor is Meyer’s c itation to Potte r v. Re inh art , 337 S.W.2d 174 (Tex. Civ. App.—W aco 1960, no writ) consequent ial. Potter ma y be read as st ating that the initial receipt of a lesser sum than the total due does not necessarily prevent the creditor from recovering the
rem ainder. Id. at 178. But, like Arroyo Shri mp , the circumstances in Potter differ from those befor e us. T he litigants in Potter did not sign an agreem ent m odifying the obligations of the parties. Here, they did. Nor did a ll the parties there pe rformunder an9

agreemen tmodifying the ori ginal contract for many ye ars . Here, they did. And, most importantly, Me yer

so per for m ed a fte r th e cir

cum sta nce s all ege dly

forcing him toexecute the m odifications ended. In sum , Te xa co e sta blish ed t he e lem ents of rat ific atio n a s a ma tter of law w ith regard to Meyer’s

allegation s abou t Texaco’ s m isinterpretation of the Original Contract and its purported contractual rightto term inate or change the agreem ent. Yet, co ncerning the allegations pu rp or te dl y i nv ol vi ng mi srep resentations as to the profitability and options
ava ilableto Texaco other than the term ination or the modification of the agreem ent, the
sa me cannot be said. This is so because M eyer asserts that hedid not discover tho se wrongsunt il after h e file d su it an d be gan con duc ting dis cove ry. And, upon discovering th em, he am ended his pleadings to incorporate them into pertinent causes of action. Given the rule that ratification of a particular misconduc t known to one does not cons titute ratification of u nkn ow n m isc ond uct w hich m ay a ls o b e distinct grounds for a cause of action, Deaton v. Rush , 113 Tex. 176, 252 S.W. 1025, 1030 (1923), Vandervoort v. Sansom , 293 S.W.2d 271, 27 2-73 (Tex . Civ. A pp.—Fort W orth 195 6, w rit ref’d n.r.e.) , we cannothold thatthedef ens e of rat ific atio n ba rre d all of Mey er ’s c la ims as a matt er of la w. This, consequently, requires us to consider several other grounds uttered by Texaco as a basis for sum mary

judgm ent. Fraud We next addres s the m atter of fraud. Meyer claim ed that various representations contained in correspondence accom panying the proposal to m odify the Original Contracts
werefraudulent. These representations w ere purportedl y m aterial and m ade with the4 Meyerals o cited , as evide nce

of re lian ce, to t hestate ment in an aff idav it that “ MeyerFarms, Inc. and Meyer Oil Company, I nc. execut ed the amendm ents relied upon by Texaco under the wrongf ul threat of termi nation . . . .” Upo n f in di ng t he qu ote d passa ge i n th e re cor d and rea di ng i t i n co nte xt , ho wev er, we discov ered that the

wor d “relian ce” did n ot refer to reliance on the part of Meyer’s com panies but to reliance on the part

of Texaco regarding some unm entioned topic . Thus, the passage is not evi dence of rel iance by Meyer o r his companies

. 10 intent tha t th ey b e re lied u pon by Me yer . Th e lat ter alsopled tha t herelie d on the m in executing t he agreem ents. In its m otion for sum mary judgm ent, Texaco contended that Meyer had no evidence creating a m aterial issue of fact regarding any elements of fraud, including reli ance. Thatreliance is an element of fraud is be yond d ispute. Haase v. Glaz ner, 62 S.W.3d 798 (Tex. 2001). Thus, because Texac o asser ted in its m otion for s um m ary judgm entthat there ex isted no evidence creating a material iss ue of fact regarding any element of fraud (including reliance), Meyer had the burden to present evidence creating the requisite fact issue. Kimber v . Si deris, 8 S.W.3d at 675 (discussing the burden of proof
on the non-m ovant wh en the m ovant seeks a no-ev iden ce sum mar y judgm ent). Here, Meyer posits that he satisfied his burden by stating, via his affidavit, that he 1) “signed the modificati on s as a result of and [in] reliance upon . . . [the] fraudulent and bad faith actions” of Gett

y, Tex aco’spredece ssor. 4 As previously mentione d, st atem ents in af fidavits m ust be m ore than m ere conclusi ons. Brownlee v. Brownlee , 665 S.W.2d at 112; Dick er so n v. Davis , 925 S.W.2d at126 . M eye r’sattestatio n th at h e sig ned them odif icat ionsin “reliance” upon the alleged fraud is accom panied by no factual developm ent. He sim ply says he relied up on the misrepresentati ons. Furthermore, the factual alleg ations (as op posed to concl usions) which do address w hy he acceded to the ch anges illustrate that he d id sobecaus e hedid11

not have other

ma rkets in which to s ell his product. And, it m ust be rem embered that he lacked those alter nate marke ts not because of any misrepresentat ions by Texaco but because of the claims in various suits involving third par ties. So, because the utterance aboutreliance lacked factual development, it wasand is a m ere, non-probative conclusion. Being such, it was and is not com petent evidence sufficient to create a ma terial issue of fact upon the elem entof reliance and, thereby, stave off sum mary

judgm ent. Therefore, thetria l cou rt d id no t er r in gra ntin g su m m ary j udg m ent

aga inst Me yer upo n hisclaim of fraud. Bad Fait

h As described in his live pleadi ng, Meyer also sought t o vitiate t he 1984 modifications on the basis of bad faith per the Tex as Business and C omm erce Code. That is, he alleged that Texaco acted in bad faith whe n securing the changes. Furtherm ore, the bad faith allegedly consisted of misinterpreting those provisions in the Original Contracts which perm itted Texaco to end the agreem ent. In uttering m isrepresentations about the profitabili tyof the Schafer gas processing facility and its lack of options, Texaco a lso acted improperly, Meyer

contended. Tex

aco responded, via its m otion for sum mary

judgm ent, by asserting that there ex isted no evid ence tosup por t th e co nte ntio n an d th at it acted in good faith and so alleged in its motion for sum mary judgm ent. Several years ago, this court held that m erchants att empt ing to modify contracts involving the sale of goods m ust act in good faith. El Paso Nat. Gas Co. v. Minco Oil & Gas Co. , 964 S. W .2d 54, 66-67 (Te x. A pp.—A m arillo 1997) rev’d i n part on other grounds 8 S.W .3 d 3 09 (T ex. 199 9). Good faith involves honesty in fact and the observance of5 Of note is th at Getty w as p reparing to merg e with Texaco w hen th is letter was writte n. 12 rea son ablecom merc ial standards of fair dealing in the trade. Id. at 6 7. S o to o did w e ho ld thatthe buying and selling of gas constitutes a transact ion in goods. Id. at 67. Furthermore, whether one acts in a ma nne r les s th an h one sty in f act or p er r eas ona ble
com merc ial standards ma y be established in various ways. Examplesincl udeeco nom ic extortion or overreaching and dece ption. Id. at 67-68. Each of the instances of bad faith cited byMeyer em anate from the October 9, 1984 letter he received from Texaco’s predecessor in i nterest, Getty. 5 Am ong other thin gs, Getty said in that letter that: Paragrap h V, Sub-paragraph B , of said [July 1, 1981 Casinghead Gas Contract] states that in the even t the purchase of gas fromany well covered hereunde r, in t he s ole j udg m ent of t he B uye r, is

or b eco m es u npr

ofitabledue to its volume, he ating value or any other condition, Buyer reserves the right to discontinue taking gas from the particular well or wells for as long as such conditions exist and ma yterm inate this contract upon thirty (30) days’ written notice to Seller. As you are aware, the gas attribu table to the [Meyer] lease is processed at [the] Schafer area facility . . . . Conditi ons have existed for som e time now concerning the sale of the NGL’s and residue gas fromthe said faci lity which rendersthe purchase of gas under the term s of the referenced agreem ent unp rofitab le to Getty ; therefore , in acc ord ance with the ab ove m entioned provision Getty has no othe r option other than to propose a n alt ernate pricing structure as detailed in the attached letter agreem ent, or discontinue the purchase of gas f

rom t he subjec

t lease. Regar di ng Me yer’s con ten tion tha t Te xa co a cte d in b ad f aith becaus e it miscons trued, via the for egoing lette r, its right to term inat e the gas contract and considered unprofit abil ity as a condi tion of the ga s, we need not address those gro unds.6 More gas than that acquired f rom Mey er was being processed at the Schaferfacility, accordin g to

the record. And, i t was the gas other than Meyer’s which allowed Tex aco to make a prof it. I ndeed, th e evi dence before us indic ates that the processing and sale of Meyer’s gas w

as unprofitabl e, giv en th e t er ms of the Origina l Contra cts. 13 This is so because they fall within the realm of purported m isconduct which w as ratified, as discussed above. As to the contention that Texaco m isrepresented that its purchase of th e gas wa s no lon ger pr ofitable, we note evidence indicating error in the study upon w hich the representation was bas ed. So too do w e note evidence indicating th a t the general operation of t he S cha fer pro ces sin g fac ility was indeed profitable. Yet, none of that evidence is of consequence. While i t m ay be that Texaco’s study w as considered inaccurate by one or m ore of its em ployees and based upon sales over a very l imited period, Meyer cites us to no evidence indicating that the purchase of his gas was indeed profitable. Instead, he refers u s to evidence indicating that Texaco m ade a profit from the operation of the Schafer facility as a whole. How ever, that is not

evidence of profitability viz the purc hase an d subse quent s ale of gasspecifica lly obtained f rom Meyer. Thisis so because gas from other sources w as also being run through the unit. 6 Thus, one cannot
rea son ably

deduce that the purcha se and sale of ga s fro m Me yer was profitable from evidence indicating that the operation of the Schafer fac ility was profitab l e. An d, mo st importantly, in comm enting upon unprof itabili ty in the October 9th letter, Texaco was alluding to t he a cqu isit ion a nd s ale of M eye r’sgas , no t totheove rall ope rat io n of the Schafer facil ity.14

As to the ma tter

of having options, Meyer is correc t in that Texaco alw

ays had the option to perform as per the term s of the 1981 casinghead contract. Yet, that is t he very
sa me option Texaco had when it allegedly decided to misinterpret its right to terminate per the Origi nal Contra cts. And, because Meyer disag reed with Texaco’s interp retation of those contracts from the beginni ng, he must have disagreed (at that tim e) with the notion thatTexaco had n o option butto term inate the contract. Thus, th at particular ground of bad faith fell within the scope of p urporte d m isc ond uct w hich he r

atif ied, as pre viou sly discussed. In short, we find no evidence creating a material issue of fact regardi ng Texaco’s bad faith. Consequently, the trial court did not err in granting sum mary judgm ent on that allegation. Our decision upon the foregoing issues is dispositive of the appeal. We need not consider any oth er p oints as ser

ted by Me yer

bef ore us. Ac cor

din gly, the sum m ary judgm ent executed below is affirm ed.

Brian Quinn Justice Do not publish.