     Case: 09-31203 Document: 00511291357 Page: 1 Date Filed: 11/11/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 11, 2010

                                       No. 09-31203                         Lyle W. Cayce
                                                                                 Clerk

MAYNE & MERTZ, INC.,

                                                   Plaintiff-Appellant
v.

QUEST EXPLORATION, L.L.C.;
EXCALIBUR LAND CO., INC.;
TEXAS TEA, L.L.C.,

                                                   Defendants-Appellees




                    Appeal from the United States District Court
                       for the Western District of Louisiana
                        USDC No. 6:06-CV-800-RFD-MEM


Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Mayne & Mertz, Inc. ("Mayne") appeals the district
court's grant of summary judgment in favor of Defendants-Appellees Quest
Exploration, L.L.C. ("Quest"), Excalibur Land Co., Inc. ("Excalibur"), and Texas
Tea, L.L.C. ("Texas Tea") on Mayne's breach of contract, and misappropriation




       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 09-31203 Document: 00511291357 Page: 2 Date Filed: 11/11/2010



                                    No. 09-31203

of trade secrets claims.1 Reviewing the record de novo, Williams v. Wynne, 533
F.3d 360, 365 (5th Cir. 2008), we AFFIRM.
1.    Excalibur was not in breach of the September 23, 2004 letter agreement
with Mayne because the letter was an invitation to discuss a lease on certain
terms, not a promise to lease. Mayne contends that the finder of fact should
have been permitted to weigh Excalibur's actions subsequent to executing the
letter agreement to determine whether Excalibur had accepted Mayne's offer to
lease. This contention is based on a faulty premise. In the letter agreement,
Mayne offers to propose a unit to Excalibur. Construing the letter agreement as
a whole, paragraphs 1 through 3 define the terms of any lease to which the
parties would later agree, but do not bind Excalibur to grant a lease. See Benton
Specialties, Inc. v. Cajun Well Serv., Inc., 31 So. 3d 1155, 1158 (La. Ct. App.
2010) ("Contracts must be read and construed as a whole.").
      Additionally, even if the letter agreement were an option to lease as
Mayne argues, the district court was correct that it was unenforceable as a
matter of law. The Louisiana Civil Code requires that an option must state a
stipulated time within which it must be exercised. L A. C IV. C ODE A NN. art. 2620;
see also id. at cmt. (c) ("Under this Article, an option for a perpetual or indefinite
term is null."). The district court was correct to grant summary judgment on
Mayne's breach of contract claim.
2.    The Partial Release of Geophysical Permits with Options to Lease
("Release") executed on February 25, 2004, unambiguously released Mayne's
confidentiality obligations pursuant to Section 16 of the Louisiana Seismograph
Permit ("Permit") executed on August 5, 2002, concurrent with and attached as
Exhibit A to the Geophysical Permit with Option to Enter into an Oil and Gas


      1
         The district court granted summary judgment on all of Mayne's claims. Mayne
appeals only the judgment on the breach of contract claim, and misappropriation of trade
secrets claims.

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                                  No. 09-31203

Lease ("Option"). The Release applied to "Geophysical Permits with Options" in
the plural. The Option expressly covered both the interest in the minerals and
the permits necessary to conduct geophysical operations, naming and
incorporating the Permit. The Permit clearly labeled itself as an attachment to
the Option. And, the Permit and the Option are executed on the same date and
terminated after eighteen months on February 5, 2004, when Mayne chose not
to extend them.
      Mayne argues that although the documents are related, the Option and
the Permit must be interpreted separately. However, under Louisiana law
"[a]greements, of contemporaneous date, some making reference to the others
must be construed together." Tramonte v. Palermo, 640 So. 2d 661, 665 (La. Ct.
App. 1994). Alternatively, Mayne argues that the release is ambiguous because
the agreement released is identified as a Seismic Option/Lease on Exhibit A to
the Release. Because neither the Permit nor the Option is entitled in precisely
this manner, according to Mayne the Release is ambiguous regarding which
document it affects.    We disagree.    Although the definitions of the terms
geophysical and seismographic are not identical, a seismograph survey is a type
of geophysical survey for the purposes of Louisiana law. L A. R EV. S TAT. A NN. §
30:211 ("'Geophysical and geological survey' means magnetometer surveys,
gravitymeter surveys, torsion balance surveys, [and] seismograph surveys[.]").
The Release unambiguously addresses both the Option and the Permit.
      Contrary to Mayne's urging, the fact that the Release referenced that the
Option was a recorded document does not limit its scope to the Option alone.
Also, Mayne's contention that the parties' course of conduct creates a fact
question fails because where, as here, the plain terms of the contract are
unambiguous, "no further interpretation may be made in search of the parties'
intent." L A. C IV. C ODE A NN. art. 2046. Notably, even if the Release did not
address the Permit, the Permit expired on its own terms on February 5, 2004.

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                                No. 09-31203

And, the confidentiality provision is not one of the obligations expressly
identified in Section 11 of the Permit as continuing beyond the termination of
the agreement.   The district court did not err when it granted summary
judgment for defendants on Mayne's misappropriation of trade secrets claim.
      AFFIRMED.




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