Appeal from the 190th District Court Harris County, Texas
Trial Court Case No. 2013-51923
consists of Justices Keyes, Higley, and Lloyd.
Russell Lloyd Justice
Nortech, Inc. (Nortech), challenges the trial court's
rendition of summary judgment in favor of appellee, ShawCor
Canada Holdings Ltd. (Holdings), in Nortech's suit
against Holdings for breach of contract. In two issues,
Nortech argues that the trial court erred by granting summary
judgment in Holdings' favor because the agreement was
subject to only one reasonable interpretation-Nortech's
interpretation-and, alternatively, that the trial court erred
in granting summary judgment because the agreement's
disputed provision is ambiguous. We affirm.
helps overseas companies obtain goods and services in the
U.S. oil and gas industry. In 1997, Nortech and Thermotite,
AS, a pipe insulation and coating company, signed a contract
in which Thermotite agreed to pay Nortech a commission for
certain types of pipe coating work that Thermotite performed
on heated pipe.
2001, "Bredero-Shaw Company"
(Bredero) acquired Thermotite, and, on January 22,
2002, Bredero and Nortech entered into a new commission
agreement (the 2002 Agreement) that covered projects that
utilized Thermotite technology or products and replaced all
prior agreements between Thermotite and
4 of the 2002 Agreement provided, in relevant part:
Nortech shall receive commissions in accordance with the
attached Exhibit B for all projects listed on Exhibit B in
the event Bredero is successful winning in such projects . .
In addition, Nortech shall receive commissions for any other
project where the RFQ or similar is issued to Bredero or an
affiliate . . . .
Nortech shall also receive 1/2% commission on any BP projects
in the Gulf of Mexico where the RFQ or similar is issued to
Bredero or an affiliate . . . .
Bredero affiliate was awarded the Crazy Horse/Thunder Horse
contract, a BP project in the Gulf of Mexico, which is listed
in Exhibit B of the Settlement Agreement. Invoices from
Nortech to "Bredero Shaw" from 2004 to 2006
demonstrate that, as of January 2006, "Bredero
Shaw" had paid Nortech a commission of approximately
$19, 000 for the Crazy Horse/Thunder Horse project.
was a wholly owned subsidiary of ShawCor, Ltd. (ShawCor). In
2009, all of ShawCor's U.S. and Canadian pipe coating
operations were combined into ShawCor's "Bredero
Shaw" Division, which is also referred to as the Bredero
January 2011, three of ShawCor's wholly owned holding
companies- ShawCor Canada Holdings Ltd., Bredero, and Shaw
Worldwide Services Inc.- merged by means of an
"amalgamation" to become Holdings. As part of the
amalgamation, all assets and liabilities of the three
entities were transferred to Holdings. Although Holdings was
not part of the Bredero Shaw Group, some of its assets were,
including ShawCor Pipe Protection, LLC (SPP), Bredero Shaw
Norway AS, and Bredero Shaw Mexico SA de CV. Among its other
interests, Holdings also acquired a 40% interest in Socotherm
USA, LLC's (Socotherm) parent company, Fineglade, Ltd.
(Fineglade), in November 2010. At the time, Fineglade owned a
95% interest in Socotherm S.p.A., a publicly traded, and
independently managed, Italian company. Socotherm S.p.A.
owned over 90% of Socotherm Americas, a publicly traded, and
independently managed, Argentinian company that owned all of
Socotherm USA, LLC. Holdings acquired the other 60% interest
in Fineglade in October 2012. Fineglade was not part of the
Bredero Shaw Group.
dispute arose regarding commissions Nortech claimed that it
was owed under the 2002 Agreement, Nortech and "Bredero
Shaw Company" entered into a May 2012 settlement
agreement (the Settlement Agreement). John Tikkanen,
Holdings' Executive Vice-President, signed the Settlement
Agreement as "president" of "Bredero Shaw
Company." When the Settlement Agreement was signed, SPP
and another ShawCor company, Bredero Shaw, LLC, were the only
two companies that operated under the name "Bredero
Shaw, " and they were commonly referred to as
"Bredero Shaw Company." While SPP "entered
into most pipe coating contracts in the United States, "
Bredero Shaw, LLC did not enter into contracts in 2011 and
Settlement Agreement contains two different payment
obligations. The first payment obligation is set forth in
Section 1, and it requires "Bredero" to "pay
Nortech the sum of $1, 100, 00.00" within "15 days
after receipt by Bredero of this Agreement, fully executed by
Nortech." "Bredero" is defined as
"Bredero Shaw Company."
second payment obligation which is set forth in Section 2 of
the Settlement Agreement states:
Should Bredero be successful in winning the Lianzi Project,
it will pay a commission to Nortech equal to 1.5% of any
amount received by Bredero or its affiliates or partners from
the execution of the project. Such commissions shall be
payable 15 days after Bredero has received payment from the
customer. In case payment is made in progress installments,
the commission will be paid pro-rata as Bredero receives each
Lianzi Project was an oil and gas project off the coast of
Africa that was owned by Chevron.
competing bids were submitted for pipe coating work on the
project. The first was by "Bredero Shaw." According
to Jeff Beard, who managed contracts for multiple entities
under ShawCor's Bredero Shaw Group in 2012 and negotiated
the Settlement Agreement for "Bredero Shaw, " the
Bredero Shaw Group was preparing to bid on the project when
the Settlement Agreement was being negotiated and executed.
Beard testified that, although Chevron's formal request
for bids on the Lianzi Project and Bredero Shaw Group's
submission of the formal bid occurred after the Settlement
Agreement was signed, there had been initial communications
from "Bredero Shaw" to Chevron prior to that time
"providing guidance on the systems, the types of
systems, how they would react, and the potential coating
locations that [Bredero Shaw] would provide a bid from."
According to Beard, "Bredero Shaw" knew that they
would be submitting a bid on the project for "three
different locations; Norway, Beaumont, Mexico, " and
"three different entities within the Bredero Shaw
organization or ShawCor that are all within the Bredero Shaw
coating arm, " and he conveyed that information to
Nortech's president when they were negotiating the
final "Bredero Shaw" bid which was submitted on
August 20, 2012 generally refers to "Bredero Shaw,
" prominently references ShawCor, and mentions multiple
other entities, such as SPP, all of which are affiliates of
Holdings. Tikkanen testified that the "Bredero
Shaw" bid was submitted by SPP and that if "Bredero
Shaw" had been awarded ...