Fiberwave v. AT&T Enterprises

Excerpt

Granting in part and denying in part Defendant's motion for partial summary judgment contending that Plaintiff's tortious interference with contract, defamation, and business disparagement claims are barred by the limitation-of-liability provision in the parties' 2022 agreement. Granting a third-party defendant's special appearance arguing no personal jurisdiction over him because he did not commit any tortious acts while in Texas. Because the respondents did not plead or prove that this defendant has sufficient Texas contacts giving rise to the claims against him to support personal jurisdiction over him for any pled cause of action, the court granted the non-resident's special appearances and dismissed the claims against him without prejudice. Pursuant to Texas Rule of Civil Procedure 166(g), the Court issues this decision holding that (1) fact issues preclude the Court from determining whether the liquidated-damages clause in the parties' contract is an unenforceable penalty and (2) under the circumstances of this case, the defendant's cost-basis theory is not the correct measure of the plaintiff's actual damages. In this force-majeure dispute arising out of Winter Storm Uri, parties to a contract for the sale of natural gas dispute whether the seller should have (i) purchased gas on the spot market to cover any production shortfall or (ii) bought back its delivery obligation. The Court holds that the parties' contract did not obligate the seller to take either action as a prerequisite or alternative to declaring force majeure or as a contractually required "reasonable effort." Denying defendant's motion for summary judgment arguing that a contract does not require it to pay royalty payments on "revenues actually received by [the defendant] for final disposal of solid waste in the sanitary landfill operated on the Property," where the disposal is in a part of the landfill that is not on the Property. This opinion addresses whether a party may remove a case concer