* Pursuant to 5 TH C IR

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

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

. R. 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20190

Summary Calendar

DEN NORSKE STATS OLJESELSKAP,

Plaintiff-Counter Defendant-Appellee,

versus

HYDROCARBON PROCESSING, INC.,

Defendant-Counter Claimant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-731)

October 6, 1998

Before POLITZ, Chief Judge, EMILIO M. GARZA and DeMOSS, Circuit Judges.

POLITZ, Chief Judge: *

Hydrocarbon Processing, Inc. (“HP”) appeals an adverse summary judgment.

For the reasons assigned we affirm.

BACKGROUND

In September 1996 Den Norske Stats Oljesels kap, A.S. (“Statoil”) and HP

entered into a contract in which HP agreed to sell to Statoil 10,000 barrels of1 Had the average current month quotation for February deliveries fallen below $0.5725,

HP would have received the difference. Had the average fallen below that figure, Statoil

would have profitted from the difference between the fixed price and the calculated monthly

price.

2 propane at $0.4200 per gallon for delivery in February 1997. Gasteam USA, Inc.

brokered the agreement, called both parties to confirm that the sale had closed, and

confirmed the agreement by sending them telefaxes.

On December 20, 1996 HP and Statoil contracted again, this time to “swap”

February propane deliveries. Statoil agreed to sell to HP 25,000 barrels of propane

for February delivery for the fixed sum of $0.5725 p er gallon; HP

contemporaneously agreed to sell to Statoil 25,000 barrels of propane for February

delivery at a price to be calculated based on the average current month quotation

for Mont Belvieu non-TET propane in February, 1997 i n OPIS (Oil Price

Information Service LPG report). This contract was a “hedging” contract, used for

purposes of managing adverse price risks of the parties. 1 As before, this contract

was brokered by Gasteam; as before, the contract was confirmed by telefaxes sent

to both parties.

By mid-Febr uary 1997, the time of performance for both contracts, the

market had dropped, and the price of propane had falle n to $0.38793 per gallon.

At t his time, HP sent letters to Statoil in which it repudiated the two contracts,

contending that the confirming telefaxes sent by Gasteam were mere offers. Statoil

subsequently covered the first contract; it made $6,300 on its first deal with HP but

lost $193,798.50 on the second. Statoil sued for its net loss of $187,498.50.

After a pretrial conference the district court suggested that Statoil move for2 Tex. Bus. & Com. Code § 2.201 (1994).

3 City of Arlington v. FDIC , 963 F.2d 79 (5 th Cir. 1992).

4 Id.

5 Krim v. BancTexas Group, Inc. , 989 F.2d 1435 (5 th Cir. 1993).

6 Tex. Bus. & Com. Code § 2-201(a) (1994).

3 summary judgment. Statoil did so and HP responded, asserting that the Texas

statute of frauds precluded a summary judgment. 2 The district court granted the

summary judgment, awarding Statoil $213,392 in damages, atto rney fees, and

interest. HP timely appealed.

ANALYSIS

We review the grant of summary judgment de novo

. 3 Without weighing the

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

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

apply controlling law to the controversy. 4 Summary judgment is appropriate if the

nonmoving party rests merely upon conclusionary alleg ations, improbable

inferences, and unsupported speculation. 5

HP’s principal contention is that the district court erred in finding that an

enforceable contract had been formed under Texas law. More specifically, HP

contends that there was not adequate proof to establish an oral contract between the

parties, and that the confirming telefaxes did not satisfy the statute of frauds. 6 HP

asserts that the telefaxes were mere offers which were never properly accepted.

The district court, however, found that “[t]he only reasonable interpretation of the7 Tex. Bus. & Com. Code § 2-204 (1994).

8 Producers Grain Corp. v. Rust

, 291 S.W.2d 477 (Tex. Civ. App.

-- Amarillo 1956, no writ); see also Louisiana Land & Exploration Co. v. Pilot Petroleum Corp.

, 900 F.2d 816

(5 th Cir. 1990).

9 Tex. Bus. & Com. Code § 2 .201(a) (1994). The district court correctly found that

although Gasteam’s president stated that Gasteam acted independently rather than as an

agent for either of the parties, Gasteam was authorized by the parties to act as broker to the

transactions

.

10 The “merchant’s exception” is found in Tex. Bus. & Com. Code (B) (1994):

Between merchants if within a reasonable time a writing in confirmation of the

contract and sufficient against the sender is received and the party receiving

it has reason to know its contents, it satisifies the requirements of Subsection

(a) against such party unless written notice of objection to its contents is givin

within ten days after it is received.

4 facts is that contracts were formed.” We agree. Under Texas law, a contract may

be made “in any manner sufficient to show agreement.” 7 Here the parties agreed

upon the necessary elements of the contract

– namely amount, price, time and place

of performance – and the agreements were confirmed both by telephone and fax.

Texas law recognizes contracts formed in this manner. 8

As to the statute of frauds defense, the district court correctly found that the

claim procedurally was defective because HP did not seek leave to add the defense

until seven months after the original filing. More importantly, as the district court

found, even a timely statute of frauds defense claim would fail as the confirming

telefaxes met the requirement of “a writing

. . . signed by

. . . [an] authorized agent

or broker.” 9 Finally, the “merchant’s exception” to the statute of frauds is

applicable as all the parties involved in the formation of the contract

– both HP and

Statoil, as well as Gasteam

– are “merchants” for purposes of the Texas statute of

frauds. 10 Under the statute, the contract was confirmed because HP failed to object11 Tex. Bus. & Com. Code § 2.201(b) (1994).

5 to the confirmation within 10 days. 11

Nor can HP claim that the contract is not binding because the swap contract

was not confirmed by a separate docume nt according to industry standards, or

because the broker Gasteam did not have authority to act for both parties. In the

years preceding the contracts with Statoil, HP had relied on Gasteam’s brokering

for 72 prior propane contracts, and HP had never required any additional written

document from Gasteam. Although industry standards may be used in determining

the agreement between the parties, the conf irming telefaxes and HP’s prior dealings

with Gasteam are evidence of the express agreement between the parties. HP

cannot now claim that the brokering methods were insufficient to form binding

contracts because of an industry standard upon which HP itself has never relied.

Nor are we persuaded by HP’s other contentions, to wit: 1) that Statoil failed

to lay a proper foundation for expert testimony; 2) that the affiants lacked personal

knowledge of the facts sworn; 3) that HP effectively rejected the confirmation

within ten days of receipt; 4) that Gasteam lacked authority to bind HP and thus the

contracts were not formed; 5) that Gasteam is liable for its ultra vires acts; 6) that

the district court erred in denyting HP’s motion for continuance; 7) that the court

erred in ignoring controverting affidavi ts, and 8) that the court erred in not

considering HP’s affirmative defens e s. Our review of the record, in light of

controlling law, persuades that these contentions are without merit.

The judgment appealed is AFFIRMED.