United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller, United States District Judge
before the court is a motion for summary judgment filed by
counter-defendants Michael D. Jones (“Jones”) and
Jones Gill LLP (collectively, “Jones Gill”). Dkt.
32. Counter-plaintiff Nomad Land and Energy Resources L.L.C.
(“Nomad”) responded. Dkt. 52. Jones Gill replied.
Dkt. 54. Nomad supplemented its response. Dkt. 58. Jones Gill
supplemented its reply. Dkt. 61. Having considered the
motion, response, reply, supplemental briefing, record
evidence, and applicable law, the court is of the opinion
that Jones Gill's motion should be GRANTED.
dispute arises out of an oil and gas transaction.
Counter-defendant and plaintiff Alexander O&G, L.L.C.
(“Alexander”) and Nomad are oil and gas
companies. Dkt. 32 at 1-3. Jones Gill is a law firm.
Id. Jones is an attorney at that firm. Id.
27, 2016, Alexander's president, Michael Mann
(“Mann”), and Nomad's managing partner, John
T. Bay (“Bay”), signed a Purchase and Sale
Agreement (“PSA”) for a transaction involving
mineral rights. Dkt. 15-1; Dkt. 32-1 at 3 (Jones Aff.) .
Jones Gill did not draft, review, or sign the PSA. Dkt. 15-1;
Dkt. 32-1 at 1-3.
defines Nomad as the “Seller” and Alexander as
the “Buyer.” Id. The PSA states:
Upon the execution and delivery of the Agreement, Buyer shall
tender Seller, in an agreed escrow agent's account, an
earnest money deposit of $100, 000.00 to help assure
Buyer's performance hereunder, which deposit shall be
non-refundable, except in the event that Seller shall be
unwilling or unable to perform his obligations hereunder, in
which case, the entirety of the earnest money deposit, and
any interest or any other additions thereto, shall be
refunded to Buyer. If the agreement closes, as contemplated,
the earnest money, and any other additions thereto, shall be
applied toward the satisfaction of the payment of the total
consideration due and payable hereunder.
Dkt. 15-1 (underlined in original). The PSA does not mention
or identify Jones or Jones Gill. Id.
and Alexander used a third-party broker, Steve Fulton
(“Fulton”). Dkt. 61 at 3. Fulton asked Bay about
appointing an escrow agent. Id. Bay testified that
he “agreed” and “said
‘anybody.'” Id. Before asking Jones
Gill, Alexander suggested the parties could use the firm as
the escrow agent. Dkt. 58 at 3; Dkt. 61. at 4.
2016, Mann contacted Jones Gill about two transactions: one
with Noroma Energy, L.L.C. (“Noroma”) as well as
the one with Nomad. Dkt. 32-1 at 1. For the first, Jones Gill
gave Alexander instructions on wiring money to Jones
Gill's IOLTA account. Id. at 2. But the parties to
the Noroma-Alexander transaction agreed to use a different
escrow agent. Id.
second transaction, Mann asked Jones Gill to “hold the
earnest money for the Nomad PSA in the event the
parties agreed to the terms of the proposed sale.”
Id. (emphasis added); Dkt. 61 at 3. Jones Gill
“agreed to hold the earnest money only if all
parties executed and returned an escrow agreement.”
Dkt. 32-1 at 2 (emphasis added).
Gill attorney Brian Wittpenn inserted the names of the
potential parties into a proposed escrow agreement
(“proposed agreement”). Dkt. 15-2 at 2; Dkt. 32-1
at 2. Specifically, the proposed agreement was to govern
Nomad as the “Seller, ” Alexander as the
“Buyer, ” and Jones Gill as the “Escrow
forwarded the proposed agreement to Alexander via email. Dkt.
32-1 at 2. Fulton sent it to Bay. Dkt. 61 at 3. But Bay did
not sign it. Id. Dkt. 61 at 4. No. one from
Alexander or Jones Gill signed it, either. Dkt. 15-2 at 4;
Dkt. 61 at 3.
29, 2016, Alexander wired $100, 000.00 to Jones Gill's
IOLTA account. Dkt. 58 at 2-3. Alexander used the wiring
instructions from the Noroma-Alexander transaction.
Id. Jones Gill did not receive a signed copy of the
proposed agreement from Alexander or Nomad. Dkt. 32-1 at 2-3.
7, 2016, Mann told Jones Gill that the parties did not
execute the proposed agreement. Id. Then, Jones
asked the firm's accountant and bookkeeper, Patty Blake,
to wire the money back to Alexander. Id. at 1, 3.
Blake completed the transfer on July 8, 2016. Dkt. 32-2 at 1.
27, 2016, Bay emailed Jones. Dkt. 15-3 at 3. That email was
the first contact that anyone from Jones Gill had with Bay.
Dkt. 32-1 at 1. Bay's message included an unsigned copy
of the proposed agreement that Fulton had sent him. Dkt. 15-3
at 2. Bay asked Jones to release the escrow balance to him.
Id. at 2-3 Jones replied:
Dear Mr. Bay: You have sent me an unexecuted escrow
agreement. Neither you nor Alexander Oil and Gas executed
this agreement. Jones Gill LLP returned the funds deposited
in our IOLTA to Alexander Oil and Gas at its request.
Alexander Oil & Gas paid the funds into our IOLTA and it
is the owner of those funds.
Id. at 2.
August 23, 2016, Alexander sued Nomad to get a state court
judgment declaring that the PSA had been terminated. Dkt.
1-4. Nomad removed to this court. Dkt. 1. On April 12, 2017,
Nomad amended its answer to include third-party claims
against Jones Gill for breach of contract, money had and
received, breach of fiduciary duty, and, alternatively,
promissory estoppel or partial performance. Dkt. 15. Jones
Gill moves for summary judgment on all of Nomad's claims.
shall grant summary judgment when a “movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “[A] fact is genuinely in dispute
only if a reasonable jury could return a verdict for the
nonmoving party.” Fordoche, Inc. v. Texaco,
Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If
the party meets its burden, the burden shifts to the
non-moving party to set forth specific facts showing a
genuine issue for trial. Fed.R.Civ.P. 56(c). The court must