Dissenting and Opinion Filed August 27, 2014




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00929-CV

                        MATHESON TRI-GAS, INC., Appellant
                                     V.
                    MAXIM INTEGRATED PRODUCTS, INC., Appellee

                       On Appeal from the 134th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. DC-12-387

                               DISSENTING OPINION
                        Before Justices Bridges, Francis, and Lang-Miers
                             Dissenting Opinion by Justice Bridges
         Because I agree with appellant Matheson Tri-Gas, Inc. that the trial court’s summary

judgment in favor of appellee Maxim Integrated Products, Inc. contradicts this Court’s previous

ruling in Matheson Tri-Gas, Inc. v. Atmel Corporation, 347 S.W.3d 339 (Tex. App.—Dallas

2011, no pet.) (“Atmel”), I respectfully dissent on the issue related to the breach of contract

claim.

         While I agree with the majority’s statement that we were not asked in Atmel to draw any

conclusion about whether this Agreement (referred to as the MTG/Maxim Agreement in our

Atmel opinion), as written, was enforceable against Maxim, I disagree with the majority that we

did not draw such a conclusion. Rather, I believe language throughout Atmel reveals we did in

fact determine a contract existed between Maxim and Matheson. As such, we are bound by that
determination as precedent and the majority may not dismiss our prior conclusion simply

because we were not asked to interpret the specific contract provision before us now on appeal.

BLACK’S LAW DICTIONARY 1195 (7th ed. 1999) (defining “precedent” as “[a] decided case that

furnishes a basis for determining later cases involving similar facts and issues”).

          The question raised in Atmel was whether condition four of the termination agreement

between Matheson, Atmel, and Maxim occurred, releasing Atmel from its previous obligation to

pay under a supply agreement. 347 S.W.3d at 341. Condition four occurred when “Maxim

beg[an] consuming product under the new MTG/Maxim Nitrogen Pipeline Supply Agreement.”

Id.   To determine whether Maxim began “consuming product under” the MTG/Maxim

Agreement, we analyzed the language of that “agreement.” Id. at 343. The Atmel opinion then

quoted as follows:

                 This AGREEMENT, effective this 21st day of February, 2007,
                 between MATHESON TRI-GAS, INC., . . . (“Seller”) and Maxim
                 Integrated Products, Inc. . . . (“Buyer”).

                 1. SALE AND PURCHASE

                 Seller agrees to sell and Buyer agrees to purchase all of Buyer’s
                 present and future requirements, during the term of the Agreement,
                 of Nitrogen for Buyer’s Site.

Id. We then referenced the MTG/Maxim Agreement throughout our analysis of interpreting

whether condition four occurred under the termination agreement.           In fact, in determining

whether “consuming product under” meant consumption at production levels or a de minimis

amount, our Atmel opinion concluded, “The MTG/Maxim Agreement is a take-or-pay

agreement.” Id. The opinion even quoted part of section 3(a), which is the subject of the present

appeal:

                 [The Agreement] is effective as of the date of the agreement . . .
                 and its term commences “on or about March 15, 2007 or as
                 otherwise agreed upon by the parties in writing.”


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Id. (emphasis added). Finally, in reaching the conclusion that condition four had been met, we

specifically stated, “the MGT/Maxim Agreement requires that Maxim purchase all of its

requirements of nitrogen at the Irving site from Matheson.” Id. at 344.

         Although we were not asked in Atmel to determine whether the Agreement was an

enforceable contract, we analyzed Atmel under the premise that it was an enforceable contract.

As cited above, we repeatedly referenced it as an “agreement.” Moreover, in deciding whether

Atmel produced summary judgment evidence establishing that Maxim consumed nitrogen under

the Agreement, we relied on deposition testimony from Matheson’s corporate representative,

who testified that the Agreement was “effective and enforceable on May 1, 2007.” (emphasis

added)

         While the majority distinguishes Atmel by contending we did not draw any conclusions

about whether the MGT/Maxim Agreement was enforceable against Maxim, this Court relied on

interpretation of that very contract to determine condition four applied, thereby releasing Atmel

of its obligation under the separate termination contract. By now concluding the MGT/Maxim

Agreement was not a binding contract because an essential term was missing, the majority has

determined the very document that supported its decision in Atmel does not legally exist. I

cannot agree with such a result.

         With this in mind, I consider the appropriate summary judgment standard of review. A

party moving for traditional summary judgment bears the burden of showing that no genuine

issue of material fact exists and that he is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c). To determine if the non-movant raises a fact issue, we review the evidence in the light

most favorable to the non-movant, crediting favorable evidence if reasonable jurors could do so,

and disregarding contrary evidence unless reasonable jurors could not. Mann Frankfort Stein &

Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When, as here, both sides

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move for summary judgment and the trial court grants one and denies the other, we consider the

summary judgment evidence, determine all questions presented, and render the judgment the trial

court should have rendered. Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327

S.W.3d 118, 124 (Tex. 2010).

       Matheson attached the Atmel opinion as an exhibit to its motion for summary judgment

on its breach of contract claim. In the factual background section of the motion it stated, “Even

though Matheson believes that the Dallas Court of Appeals has already determined that the

contract has commenced, Matheson will nevertheless, out of an abundance of caution, prove that

the MGT/Maxim Agreement has commenced as a matter of law.” Maxim asserted it was entitled

to summary judgment on its contract claim as a matter of law because the parties never

memorialized the commencement date of the contract in writing as required by paragraph 3(a).

       Because I agree with Matheson, and the Atmel opinion attached to the motion for

summary judgment provided the trial court with precedent from this Court as to the existence of

the MGT/Maxim Agreement, I would conclude the trial court erred by granting summary

judgment in favor of Maxim. Based on this conclusion, this Court should consider whether

Maxim breached the MGT/Maxim Agreement and Matheson’s third issue on appeal challenging

the trial court’s ruling on Maxim’s affirmative defenses to Matheson’s contract claim.




130929DF.P05                                        /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




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