Opinion issued April 21, 2020




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00992-CV
                           ———————————
                       ARC DESIGNS, INC., Appellant
                                        V.

                   NABORS INDUSTRIES, INC., Appellee


                   On Appeal from the 269th District Court
                            Harris County, Texas
                      Trial Court Case No. 2015-16752



                         MEMORANDUM OPINION

      Appellee, Nabors Industries, Inc. (“Nabors”), contracted with appellant, Arc

Designs, Inc. (“ADI”), for the fabrication and construction of certain drilling rig

equipment. After ADI failed to deliver the equipment as agreed under the terms of

the parties’ Fabrication and Construction Contract (“Contract”), Nabors terminated
the Contract and sued ADI for breach of contract. ADI brought a counterclaim,

asserting that Nabors breached the Contract by failing to pay as agreed. The trial

court rendered summary judgment in favor of Nabors on its claim and awarded it

damages. The trial court denied ADI’s motion for summary judgment on its

counterclaim. After a trial to the court on the limited issue of attorney’s fees, the

trial court awarded Nabors its fees.

      On appeal, ADI presents four issues. In its first issue, ADI contends that the

trial court erred in granting summary judgment for Nabors because ADI presented

evidence raising a fact issue regarding the applicable termination and damages

provisions in the Contract. In its second and third issues, ADI contends that the trial

court erred in granting Nabors’s summary-judgment motion, and denying that of

ADI, because the trial court misconstrued the Contract terms as providing a right of

reimbursement and failed to award ADI certain sums due. In its fourth issue, ADI

contends that the trial court erred in awarding attorney’s fees.

      We affirm.

                                       Background

      Nabors owns and operates land-based drilling rigs and provides oilfield

services. ADI is a drilling-structure manufacturing facility and metal fabricator. On

February 12, 2014, Nabors retained ADI to fabricate and construct five sets (“Sets”)

of drilling rig components. Each Set was comprised of a mast and a substructure.


                                           2
The Contract Price was $651,248.00 for each mast and $1,276,667.00 for each

substructure, or a total of $1,927,915.00 for each Set. The parties agreed, as

provided in Article 2.2 of the Contract, that Nabors was to pay the Contract Price for

each Set in installments, based on the completion of certain “milestones” in the

fabrication and construction process, as follows:

      20% of Contract Price within 10 days of execution of [the] Contract by
      both parties.
      25% of Contract Price upon [ADI’s] receipt of all structural steel in
      [ADI’s] fabrication facility complete with MTR’s that meet contract
      requirements.
      45% of Contract Price upon completing of all Work, including
      electronic delivery of the Equipment’s data book and all API
      nameplates affixed to the Equipment.
      10% of Contract Price for final payment pursuant to the delivery dates
      set forth on [the Schedule of Delivery].

      Pursuant to the terms of Contract, ADI was to deliver one Set per month for

five consecutive months, beginning in October 2014 and ending in February 2015.

According to the Schedule of Delivery, Set 1 was to be delivered on October 31,

2014; Set 2 on November 30, 2014; Set 3 on December 31, 2014; Set 4 on January

31, 2015; and, Set 5 on February 28, 2015. The Schedule of Delivery included a

“penalty date” occurring 30 days after each due date. And, Article III of the

Contract, governing delivery, provided:

      3.1    [ADI] shall complete the Work as set forth in [Schedule of
             Delivery]. . . . [I]f any of the Equipment is delivered after the
             Penalty Date . . . , then [ADI] shall be liable to [Nabors] for
             liquidated damages in an amount equal to one (1%) of the
                                          3
            Contract Price for each day that delivery is delayed, provided that
            in no event shall [ADI] be liable to [Nabors] for more than ten
            percent (10%) of the Contract Price.
      3.2   Time is of the essence with respect to the performance of the
            Work and there shall be no extension or postponement of the
            Delivery Date. The Parties agree that this Article is a material
            term of this Contract for all purposes.
      3.3    . . . . Any change to [the Schedule of Delivery] will only be made
            in writing by agreement of the Parties. . . .

      In the event that ADI failed to “conduct its operations” under the Contract

with diligence or “otherwise breached its obligations,” Article IX, “Unsatisfactory

Performance,” authorized Nabors to elect whether to cover or to pursue other

remedies under the law or in equity:

      9.1   If [ADI] has failed to conduct its operations under this Contract
            in a diligent, skillful or workmanlike manner . . . , or if the [ADI]
            has otherwise breached its obligations hereunder, [Nabors] may
            give [ADI] written notice in which the cause of the
            dissatisfaction shall be specified. Should [ADI] fail to remedy
            the dissatisfaction within five (5) days after the receipt of the
            written notice, [Nabors] may, at its discretion take one of the
            following courses of action:
            9.1.1 [Nabors] may retain another Contractor (’’Substitute
                  Contractor”) to complete the remaining Work. In such
                  event [Nabors] shall have no obligation to pay [ADI] any
                  additional sums whatsoever and [ADI] shall be
                  responsible to pay to [Nabors] the difference between the
                  outstanding relevant Purchase Order and the actual cost of
                  completing the Work with the Substitute Contractor.
            9.1.2 [Nabors] may take over and complete the Work using
                  [ADI’s] facilities, equipment and personnel. If [Nabors]
                  takes over the Work, [Nabor’s] cost in completing the
                  Work with no allowance for use of [ADI’s] facilities,


                                          4
                      equipment and personnel shall be deducted from the
                      Contract Price . . . .
             9.1.3 Upon [Nabors’s] request and pursuant to [Article XI],
                   [ADI] shall allow [Nabors] to remove any and all
                   Equipment in whatever stages of completion as well as
                   other manufactured products related to the Equipment.
      9.2    The remedies set forth in this Article are in addition to, and not
             in lieu of any and all other remedies available to [Nabors] in law
             or equity.

And, Article 24.4 provided that the “prevailing party in any lawsuit shall be entitled

to recover reasonable and necessary attorneys’ fees.”

      Article XI, “Termination of the Contract,” provided that Nabors could also

terminate the Contract, either at will or for unsatisfactory performance under Article

IX above, as follows:

      11.1 This Contract may be terminated
             11.1.1        By [Nabors] upon 10 days’ notice.
             ....
             11.1.3        By [Nabors] for unsatisfactory performance as set
                           forth in Article IX above.

      In the event that Nabors terminated the Contract pursuant to Article 11.1.1,

i.e., at will, Article 11.2 governed the amounts owed to ADI as follows:

      [Nabors] shall pay to [ADI] all amounts due and owing at the date of
      termination together with reasonable additional costs incurred by [ADI]
      in terminating the Work including if applicable, costs of shipping and
      the costs of cancellation of subcontracts or purchase orders for
      materials, equipment and supplies. In no event shall [Nabors] be
      entitled to payment for any loss of any profit as a result of such
      termination.


                                          5
      In the event that Nabors terminated the Contract pursuant to Article 11.1.3,

i.e., for cause based on ADI’s “unsatisfactory performance as set forth in Article IX

above,” Article 11.4 provided that ADI “shall not be entitled to any compensation

whatever [sic].”

      It is undisputed that ADI did not deliver Set 1 by the date specified in the

Schedule of Delivery, that of October 31, 2014. Rather, ADI delivered a portion of

Set 1, the substructure, on December 15, 2014. Nabors asserts that, not only was the

substructure almost two months late, but it was defective, causing Nabors to incur

$175,000.00 to remedy defects. ADI did not complete the mast component of Set 1

until January 2015. On February 3, 2014, after Sets 2, 3, and 4, which the Schedule

of Delivery stated were due by November 30, 2014, December 31, 2014, and January

31, 2015, respectively, were not delivered, Nabors issued a change order to reduce

the scope of the Contract to Set 1 and the mast component of Set 2. Nabors

demanded reimbursement of its milestone payments but stated that it was willing to

reduce this sum by a mutually agreed upon amount for ADI’s expenses on the three

masts and four substructures being reduced.

      On February 6, 2015, after the parties were unable to reach a resolution,

Nabors sent ADI a Notice of Termination, stating that it was terminating the

Contract, pursuant to Article 11.1.3, with respect to Sets 1 through 4, based on ADI’s

“unsatisfactory performance” under Article IX, i.e., inability to comply with the


                                          6
agreed delivery deadlines. Nabors demanded, pursuant to Article 11.4, repayment

of $2,804,681.10 that it had paid toward the equipment that ADI had failed to

deliver. Noting that the terms of the Contract provided, however, that ADI’s

obligation to deliver was unconditional and effective notwithstanding any dispute

regarding payment of some or all of the Contract Price, Nabors demanded that ADI

deliver Set 5 by February 28, 2015, the remaining pending deadline under the

Contract. Subsequently, however, after ADI failed to timely deliver Set 5, Nabors

sent ADI notice that that it was terminating the Contract, pursuant to Article 11.1.3,

with respect to Set 5, based on ADI’s unsatisfactory performance.

      ADI refused to return any of the sums paid toward the equipment that it had

failed to deliver and refused to release the mast component of Set 1 unless Nabors

paid an additional $358,186.40.

      Nabors sued ADI, alleging that it had materially breached the Contract by

failing to deliver the equipment as agreed.       Nabors sought reimbursement of

$2,388,228.00 in previous payments, as well as delivery and possession of the mast

component of Set 1.

      ADI filed a counterclaim for breach of contract and quantum meruit, alleging

that Nabors had taken delivery of the mast component of Set 1, along with some of

the materials for Sets 2 through 5, and had failed to pay $358,186.40 for work and

materials supplied under the Contract.


                                          7
      Nabors moved for a summary judgment on its breach-of-contract claim,

asserting that it was entitled to judgment as a matter of law because the Contract

expressly provided for specific delivery deadlines and expressly stated that time was

of the essence and that these terms were material. Noting that it was undisputed that

ADI had failed to timely deliver Set 1, Nabors asserted that such failure to meet the

deadlines in a contract in which time is of the essence, as here, constituted a material

breach.

      Based on ADI’s breach, Nabors asserted that Article 11.1.3 authorized it to

terminate the Contract for “unsatisfactory performance” as set forth in Article IX.

Article IX authorized termination for failure to perform in a diligent manner or if

ADI otherwise breached its obligations, as here. Nabors sent notice to ADI,

expressly terminating the Contract pursuant to Article 11.1.3. And, Nabors noted

that Article 11.4 provided that if the Contract were terminated pursuant to Article

11.1.3, “Contractor [ADI] shall not be entitled to any compensation whatever [sic].”

      With respect to its damages, Nabors asserted that it had received only one of

the five Sets for which it had contracted.         The Contract Price per Set was

$1,927,915.00. Nabors asserted that, after subtracting the maximum ten-percent

penalty under Article 3.1 for late delivery, or $192,791.50, it owed ADI a total of

$1,735,123.50 for Set 1. At the time of Nabors’s termination of the Contract, it had

paid ADI a total of $3,948,351.40, including its milestone payments on all five Sets


                                           8
of equipment. Subtracting the total owed on Set 1 from the total it had paid, Nabors

sought damages of $2,213,227.90. Nabors presented, as its summary-judgment

evidence, the Contract; February 3, 2015 change order; February 6, 2015 Notice of

Termination with respect to Sets 1–4; March 20, 2015 termination letter with respect

to Set 5; a table of costs; affidavit of Nabors’s Senior QA/QC Manager of the

Engineering Department, Kevin Pennington; various emails between Nabors and

ADI; deposition excerpts of ADI corporate representative, Joshua W. Norris; and

ADI’s responses to discovery.

      In its summary-judgment response, ADI argued that Nabors had simply

terminated the Contract at will, pursuant to Article 11.1.1, and not for cause, and

thus it was not entitled to any reimbursement of its previous payments. ADI asserted

that Nabors had previously stated that it was re-evaluating the Contract due to the

downturn in the oil market. And, ADI had delivered equipment as much as two

months late under a previous contract between the parties without issue. Further,

Article 3.1 provided for a late delivery penalty. And, because the parties had thereby

agreed to liquidated damages, late delivery could not serve as cause for termination

under Article XI of the Contract. ADI argued that Article 2.2 of the Contract

provided that milestone payments are due once the milestone is completed and,

because ADI had completed the initial 20 percent milestones at the time of

termination, such sums were not subject to refund.


                                          9
      ADI also filed a cross-motion for summary judgment, arguing that it was

entitled to judgment as a matter of law on its breach-of-contract counterclaim. It

asserted that neither Article 2.2 nor Article 11 provided for refunds. Further, ADI

argued, the evidence established that it was entitled to $358,186.40 in unpaid

milestone payments for the mast component of Set 1 because ADI had completed

the work, and Nabors had approved and taken delivery of it.

      The trial court granted summary judgment in favor of Nabors on its breach-

of-contract claim and awarded it damages in the amount of $2,213,227.90. The trial

court denied ADI’s competing motion for summary judgment and dismissed ADI’s

counterclaim for breach of contract. After a trial to the court on the limited issue of

attorney’s fees, the trial court found that Nabors was entitled to reasonable and

necessary attorneys’ fees based on the terms of the Contract and pursuant to Texas

Civil Practice & Remedies Code section 38.001. The trial court awarded Nabors

attorney’s fees in the amount of $161,023.51 and fees for appeal.

                                Summary Judgment

      In its first issue, ADI argues that the trial court erred in granting summary

judgment in favor of Nabors on its claim because ADI presented evidence raising a

fact issue regarding the applicable termination and damages provisions in the

Contract. In its second and third issues, ADI argues that the trial court erred in

granting Nabors’s summary-judgment motion, and denying that of ADI, because the


                                          10
trial court misconstrued the Contract as providing a right of reimbursement of funds

that Nabors had paid prior to its termination of the Contract and the trial court failed

to award ADI certain sums outstanding on Set 1.

A.    Standard of Review and Overarching Legal Principles

      We review a trial court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, we take as

true all evidence favorable to the non-movant, and we indulge every reasonable

inference and resolve any doubts in the non-movant’s favor. Id. If a trial court

grants summary judgment without specifying the grounds for granting the motion,

we must uphold the trial court’s judgment if any of the asserted grounds are

meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

      In a traditional motion for summary judgment, the movant has the burden to

establish that there exists no genuine issue of material fact and that it is entitled to

judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When a plaintiff

moves for summary judgment on its own claim, the plaintiff must conclusively prove

all essential elements of its cause of action. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60

(Tex. 1986). When a defendant moves for a traditional summary judgment, it must

either: (1) disprove at least one essential element of the plaintiff’s cause of action or


                                           11
(2) plead and conclusively establish each essential element of an affirmative defense,

thereby defeating the plaintiff’s cause of action. See Rhône–Poulenc, Inc. v. Steel,

997 S.W.2d 217, 222–23 (Tex. 1999); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.

1995). Once the movant meets its burden, the burden shifts to the non-movant to

raise a genuine issue of material fact precluding summary judgment. Centeq Realty,

Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine

issue of fact if reasonable and fair-minded jurors could differ in their conclusions in

light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

      When both parties move for summary judgment on the same issue and the

trial court grants one motion and denies the other, as here, the reviewing court

considers the summary judgment evidence presented by both sides, determines all

questions presented, and if the reviewing court determines that the trial court erred,

renders the judgment that the trial court should have rendered. Valence Operating

Co., 164 S.W.3d at 661.

B.    Breach of Contract

      To prevail on its respective breach-of-contract claim, each party was required

to establish (1) a valid contract between the parties; (2) that the movant tendered

performance or was excused from doing so; (3) that the non-movant breached the

terms of the contract; and (4) that the movant sustained damages as a result of the


                                          12
breach. AMS Const. Co. v. K.H.K. Scaffolding Hous., Inc., 357 S.W.3d 30, 41 (Tex.

App.—Houston [1st Dist.] 2011, pet. dism’d); B&W Supply, Inc. v. Beckman, 305

S.W.3d 10, 16 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).

      Here, it is undisputed that the Contract constitutes a valid, enforceable

agreement. It is also undisputed that ADI did not deliver Set 1 by the agreed upon

date in the Schedule of Delivery and did not deliver Sets 2–5. It is further undisputed

that Nabors terminated the Contract. The parties disagree as to the applicable

termination provision in the Contract, i.e., Article 11.1.1 (authorizing termination at

will) or Article 11.1.3 (authorizing termination for cause), which in turn governs the

corresponding measure of damages.

      1.     Applicable Termination and Damages Provisions

      In construing a written contract, a court must ascertain and give effect to the

true intentions of the parties as expressed in the writing itself. Italian Cowboy

Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). We

examine and consider the entire writing in an effort to harmonize and give effect to

all the provisions of the contract so that none will be rendered meaningless. Id. We

begin our analysis with the contract’s express language. Id. And we analyze the

provisions of a contract “with reference to the whole agreement.” Frost Nat’l Bank

v. L & F Dists., Ltd., 165 S.W.3d 310, 312 (Tex. 2005); see also Seagull Energy

E&P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006) (“No single


                                          13
provision taken alone will be given controlling effect; rather, all the provisions must

be considered with reference to the whole instrument.”). Contract terms will be

given their plain, ordinary, and generally accepted meanings unless the contract

itself shows them to be used in a technical or different sense. Valence Operating

Co., 164 S.W.3d at 662. “We construe contracts ‘from a utilitarian standpoint

bearing in mind the particular business activity sought to be served’ and ‘will avoid

when possible and proper a construction which is unreasonable, inequitable, and

oppressive.’” Frost Nat’l Bank, 165 S.W.3d at 312 (quoting Reilly v. Rangers

Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987)).

      If, after applying the pertinent contract construction rules, the contract can be

given a certain or definite legal meaning or interpretation, then it is not ambiguous,

and we will construe the contract as a matter of law. Id. If a contract “is subject to

two or more reasonable interpretations after applying the pertinent rules of

construction, the contract is ambiguous, creating a fact issue on the parties’ intent.”

J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). However, a

contract is not ambiguous merely because the parties disagree on its meaning.

Seagull Energy E & P, Inc., 207 S.W.3d at 345. Only if a contract is ambiguous

may we consider the parties’ interpretation and consider extraneous evidence to

determine the true meaning of the contract. Italian Cowboy Partners, Ltd., 341

S.W.3d at 333–34.


                                          14
      Here, Article III of the Contract, governing delivery, provides:

      3.1    [ADI] shall complete the Work as set forth in [the Schedule of
             Delivery]. . . . [I]f any of the Equipment is delivered after the
             Penalty Date . . . , then [ADI] shall be liable to [Nabors] for
             liquidated damages in an amount equal to one (1%) of the
             Contract Price for each day that delivery is delayed, provided that
             in no event shall [ADI] be liable to [Nabors] for more than ten
             percent (10%) of the Contract Price.
      3.2    Time is of the essence with respect to the performance of the
             Work and there shall be no extension or postponement of the
             Delivery Date. The Parties agree that this Article is a material
             term of this Contract for all purposes.

(Emphasis added.) Thus, Article III provides that ADI was to complete the work

by the deadlines set forth in the Schedule of Delivery. The parties agreed that time

was of the essence, that there would be no extensions, and that this term is material.

It is undisputed that ADI did not timely deliver Set 1 and did not deliver the

remaining Sets. Thus, ADI’s failure to timely deliver the equipment at issue

constitutes a material breach of the Contract. See Mustang Pipeline Co. v. Driver

Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004); Henry v. Masson, 333 S.W.3d 825,

835 (Tex. App.—Houston [1st Dist.] 2010, no pet.); see also Kennedy Ship &

Repair, L.P. v. Pham, 210 S.W.3d 11, 21 (Tex. App.—Houston [14th Dist.] 2006,

no pet.) (holding that failure to timely deliver goods constituted breach).

      The summary-judgment evidence shows that, based on ADI’s breach of the

Contract, Nabors, on February 6, 2015, sent ADI a Notice of Termination, stating



                                          15
that, pursuant to Article 11.1.3, it was terminating the Contract with respect to Sets

1–4:

       Based on our numerous written attempts to get [ADI] to comply with
       the delivery deadlines for the first four [Sets] specified in the [Contract]
       and [ADI’s] inability to comply given ample opportunity, pursuant to
       Articles IX and XI of the Agreement, Nabors is hereby providing you
       with notice that the [Contract] is being terminated under Article 11.1.3
       for unsatisfactory performance. In accordance with the terms of Section
       11.4 of the Agreement, Nabors demands return of all sums paid to date
       from Nabors, exclusive of the first substructure already delivered,
       totaling $2,804,681,10. In addition, Nabors requests, pursuant to
       Section 9.1.3 that Nabors be allowed to remove any and all Equipment
       in whatever stages of completion as well as other manufactured
       products related to the Equipment.

(Emphasis added.)

       Further, Nabors’s evidence shows that, on March 5, 2015, it sent ADI notice

that, pursuant to Article 11.1.3, it was terminating the Contract with respect to Set

5:

       You were notified on February 6, 2015 that the [Contract] was
       terminated with respect to the first four [Sets] specified therein under
       Article 11.1.3 for unsatisfactory performance.
       You have already demonstrated [ADI’s] inability to comply with the
       [Contract] with respect to the first four [Sets]. Given, your recent
       correspondence, you are clearly unwilling to comply with the
       Agreement with respect to the fifth [Set]. You are hereby notified that
       the Agreement is being terminated under Article 11.1.3 for
       unsatisfactory performance with regard to [Set 5], which was due on
       February 28, 2015. Pursuant to Section 11.4 of the [Contract], Nabors
       demands return of all sums paid for the fifth set, totaling $255,333.40.

(Emphasis added.)


                                           16
      Article XI, “Termination of the Contract,” authorizes Nabors to terminate the

Contract, either at will or for unsatisfactory performance, as follows:

      11.1 This Contract may be terminated
             11.1.1       By [Nabors] upon 10 days’ notice.
             ....
             11.1.3       By [Nabors] for unsatisfactory performance as set
                          forth in Article IX above.

      In the event that Nabors terminated the Contract pursuant to Article 11.1.1,

i.e., at will, Article 11.2 provides the following damages model:

      [Nabors] shall pay to [ADI] all amounts due and owing at the date of
      termination together with reasonable additional costs incurred by [ADI]
      in terminating the Work including if applicable, costs of shipping and
      the costs of cancellation of subcontracts or purchase orders for
      materials, equipment and supplies. In no event shall [ADI] be entitled
      to payment for any loss of any profit as a result of such termination.

      However, in the event that Nabors terminated the Contract pursuant to Article

11.1.3, i.e., for cause based on ADI’s “unsatisfactory performance as set forth in

Article IX,” as here, Article 11.4 provides that ADI “shall not be entitled to any

compensation whatever [sic].”

      Article IX defines “unsatisfactory performance” as including any failure by

ADI to conduct its operations diligently or any breach of the Contract by ADI and

authorizes Nabors to elect to cover or to pursue “any and all other remedies

available to [Nabors] in law or equity”:

      9.1    If [ADI] has failed to conduct its operations under this Contract
             in a diligent, skillful or workmanlike manner . . . , or if the [ADI]
                                           17
            has otherwise breached its obligations hereunder, [Nabors] may
            give [ADI] written notice in which the cause of the
            dissatisfaction shall be specified. Should [ADI] fail to remedy
            the dissatisfaction within five (5) days after the receipt of the
            written notice, [Nabors] may, at its discretion take one of the
            following courses of action:
            9.1.1 [Nabors] may retain another Contractor (“Substitute
                  Contractor”) to complete the remaining Work. In such
                  event [Nabors] shall have no obligation to pay [ADI] any
                  additional sums whatsoever and [ADI] shall be
                  responsible to pay to [Nabors] the difference between the
                  outstanding relevant Purchase Order and the actual cost of
                  completing the Work with the Substitute Contractor.
            9.1.2 [Nabors] may take over and complete the Work using
                  [ADI’s] facilities, equipment and personnel . . . .
            9.1.3 Upon [Nabors’s] request and pursuant to [Article XI],
                  [ADI] shall allow [Nabors] to remove any and all
                  Equipment in whatever stages of completion as well as
                  other manufactured products related to the Equipment.
      9.2   The remedies set forth in this Article are in addition to, and not
            in lieu of any and all other remedies available to [Nabors] in law
            or equity.

(Emphasis added.) Thus, the summary-judgment evidence shows that Nabors

expressly terminated the Contract under Article 11.1.3, based on ADI’s

“unsatisfactory performance,” and that the Contract authorized such termination.

      ADI, in its summary-judgment response and in its brief, argues that it

presented evidence creating a fact issue regarding whether Nabors actually

terminated the Contract at will, pursuant to Article 11.1.1, and not for cause,

pursuant to Article 11.1.3. Specifically, ADI points to an email from Nabors, dated

January 15, 2015, in which Nabors, noting that the “global drilling industry had

                                        18
recently begun showing signs of a dramatic slowdown,” asked ADI for an

“immediate update on cost to date for the remaining mast and sub orders.” And,

Nabors stated that the purpose of its request was to “determine whether [to] proceed

or cancel some or all of the remaining orders.” ADI argues that this evidence

establishes that Nabors’s representation that its termination of the Contract was

based on ADI’s failure to timely deliver equipment was simply pretext for its at-will

termination based on market conditions.

      Taking as true, as we must, the evidence that Nabors considered whether to

proceed on its outstanding orders based on market conditions does not, however,

negate or contradict the evidence that, ultimately, Nabors expressly terminated the

Contract pursuant to Article 11.1.3, “for unsatisfactory performance as set forth in

Article IX,” based on ADI’s undisputed failure to deliver the Sets as agreed.

      Next, ADI argues that the “parties’ ongoing course of conduct” demonstrates

that Nabors did not actually terminate the Contract for cause. ADI points to its

summary-judgment evidence that Nabors previously accepted late delivery of three

rigs in “a prior contract between the Parties in 2013-2014.”

      A “‘course of dealing’ is a sequence of conduct concerning previous

transactions between the parties to a particular transaction that is fairly to be regarded

as establishing a common basis of understanding for interpreting their expressions

and other conduct.” TEX. BUS. & COM. CODE § 1.303. Because a sequence of events


                                           19
is required, a single transaction cannot constitute a course of dealing. See Shell

Trading (US) Co. v. Lion Oil Trading & Transp., Inc., No. 14-11-00289-CV, 2012

WL 3958029, at *6, 8 (Tex. App.—Houston [14th Dist.] Sep. 11, 2012, pet. denied)

(mem. op.).

          ADI further argues that Nabors could not have terminated the Contract for

cause under Article 11.1.3 because Article 3.1 of the Contract provides that the

remedy for a failure to timely deliver is “not termination but merely a late delivery

penalty of no more than 10% of the Contract price.” Without citation to authority,

ADI asserts that, because the parties “agreed to liquidated damages in the event of

late delivery, late delivery cannot be a cause for termination.” Again, Article 3.1

states:

          3.1   [ADI] shall complete the Work as set forth in [Schedule of
                Delivery]. . . . [I]f any of the Equipment is delivered after the
                Penalty Date . . . , then [ADI] shall be liable to [Nabors] for
                liquidated damages in an amount equal to one (1%) of the
                Contract Price for each day that delivery is delayed, provided that
                in no event shall [ADI] be liable to [Nabors] for more than ten
                percent (10%) of the Contract Price.

          Setting aside that ADI seems to posit that it could simply accept a ten percent

penalty and perpetually delay delivery of any equipment, ADI’s argument overlooks

that we must analyze Article 3.1 with reference to the whole agreement and give

effect to all the provisions so that none will be rendered meaningless. See Italian

Cowboy Partners, Ltd., 341 S.W.3d at 333 (noting that we examine and consider


                                             20
entire writing in effort to harmonize); Frost Nat’l Bank, 165 S.W.3d at 312; see also

Seagull Energy E&P, Inc., 207 S.W.3d at 345 (“No single provision taken alone will

be given controlling effect; rather, all the provisions must be considered with

reference to the whole instrument.”).

      The language used in Article 3.1 caps the amount of damages for which ADI

will be liable in the event that Nabors sought recovery on a claim for delay damages,

i.e., in a claim for consequential damages based on ADI failing to deliver the

equipment on time. See Valence Operating Co., 164 S.W.3d at 662 (noting we give

contract terms their plain, ordinary, and generally accepted meanings). Article 3.1

does not state that it constitutes the sole remedy in the event of a termination of the

Contract.

      Rather, as discussed above, Article XI, which governs “Termination of the

Contract,” has its own damages provisions, i.e., Articles 11.2 and 11.4. And, Article

XI expressly authorizes Nabors to “terminate” the Contract for “unsatisfactory

performance” under Article IX, which includes circumstances in which ADI has

“failed to conduct its operations under this Contract in a diligent, skillful or

workmanlike manner . . . , or if [ADI] has otherwise breached its obligations

hereunder.” (Emphasis added.)

      Taking as true all evidence favorable to ADI and indulging every reasonable

inference in its favor, we conclude that Nabors has conclusively established that it


                                          21
terminated the Contract pursuant to Article 11.1.3, “for unsatisfactory performance

as set forth in Article IX,” based on ADI’s undisputed failure to deliver the Sets as

agreed.

          We overrule ADI’s first issue.

          2.    Nabors’s Damages

          In its second issue, ADI argues that the trial court erred in granting Nabors’s

motion for summary judgment as to its damages because ADI established that the

trial court misconstrued the Contract as authorizing a “reimbursement” or a “refund”

of the first milestone payment pertaining to each Set.

          We concluded above that Nabors terminated the Contract pursuant to Article

11.1.3. Article 11.4 expressly provides that if Nabors terminates the Contract

pursuant to Article 11.1.3, ADI “shall not be entitled to any compensation whatever

[sic].”

          Nabors’s summary-judgment evidence shows that Pennington, in his

affidavit, testified that, at the time of Nabors’s termination of the Contract, it had

paid ADI a total of $3,948,351.40 but had received only 1 of the 5 Sets for which it

had contracted. Thus, testified Pennington, ADI was entitled to payment for Set 1,

or $1,927,915.00, less the ten percent penalty under Article 3.1 for its late delivery

of the equipment, or $197,791.50, for a total of $1,735,123.50. And, subtracting this

amount from the amount that Nabors paid had ADI, $3,948,351.40, established


                                             22
Nabors’s damages in the amount of $2,213,227.90. The trial court’s judgment

reflects that it awarded Nabors damages in the amount of $2,213,227.90.

      ADI, in its summary-judgment response, asserted that it was entitled to retain

Nabors’s initial “20% Milestone payments” under Article 2.2 for each of the

“remaining rigs,” i.e., Sets 2 through 5. Article 2.2 provides for payment of “20%

of [the] Contract Price within 10 days of execution of [the] Contract by both parties.”

ADI asserts that this initial 20 percent functioned as a “down payment” or “booking

fee” on Sets 2 through 5 and that, notwithstanding that they were not delivered,

neither Article 2.2 nor Article XI provides for any “refund” of milestone payments.

      Again, Article 11.4 expressly provides that if the Contract is terminated

pursuant to Article 11.1.3, as here, then ADI “shall not be entitled to any

compensation whatever [sic].”

      We conclude that ADI did not present evidence raising a genuine issue of

material fact concerning the calculation of Nabors’s damages and that Nabors

conclusively established its damages. We hold that the trial court did not err in

granting summary judgment for Nabors on its breach-of-contract claim.

      We overrule ADI’s second issue.

      3.     ADI’s Damages

      In its third issue, ADI argues that the trial court erred in denying its motion

for summary judgment on its counterclaim because its evidence shows that Nabors


                                          23
breached the contract by failing to pay an outstanding balance of $358,186.40 for

“the unpaid Milestone payments related to Mast 1,” i.e. the mast component of Set

1. In support, ADI presented the affidavit of its representative, Norris, who testified,

in pertinent part:

      4.     Under Section 2.2 of the Contract, Nabors was required to pay
             20% of the Contract price of each mast or substructure to ADI
             within 10 days of the execution of the Contract, 25% of the
             Contract price of each mast or substructure to ADI upon receipt
             of all structural steel for each mast or substructure, 45% of the
             Contract price for each mast or substructure to ADI upon
             completion of all work for each mast or substructure, and 10%
             of the Contract price for each mast or substructure to ADI upon
             delivery of each mast or substructure. . . . Nabors has made all
             payments required of it by Section 2.2 of the Contract, except for
             the 45% and 10% payments regarding Mast 1. . . . Nabors owes
             ADI a balance of $358,186.40 for those unpaid Milestones.
      5.     ADI has made not less than two (2) written demands to Nabors
             requesting payment of the $358,186.40 balance due for the
             unpaid Mast 1 Milestones but, as of this date, Nabors has refused
             to pay. . . .

(Emphasis added.)

      As discussed above, the trial court’s judgment reflects that the trial court

credited ADI with the full Contract price of Set 1, including both the mast and

substructure, against the damages that the trial court awarded to Nabors. Thus, the

record does not support ADI’s issue on appeal. Accordingly, we hold that the trial

court did not err in denying ADI’s motion for summary judgment.

      We overrule ADI’s third issue.


                                          24
                                  Attorney’s Fees

      In its fourth issue, ADI argues that the trial court erred in awarding attorney’s

fees to Nabors that “(1) exceed what was reasonable and necessary to achieve the

results obtained; and/or (2) were not reduced sufficiently to segregate Nabors’

warranty claims.” ADI asserts that, during trial on the limited issue of attorney’s

fees, its expert, Stephen A. Mendel, testified that the “fee invoices produced by

Nabors included hours worked that were not necessary to achieve the results that

Nabors’s counsel obtained” and included discovery that was “irrelevant to the

outcome of the case.” ADI asserts that a “reasonable fee for the results Nabors’

counsel achieved would be approximately $45,000.00.” ADI further asserts that,

although Nabors segregated its fees pertaining to previous warranty claims and

reduced its fees by “5-10%” for related tasks, “the reduction should have been

19.4%.”

      In its brief, ADI presents its assertions globally and does not present argument

or analysis with respect to any specific fees or discovery matters. Further, ADI does

not present a single citation to legal authority to support its argument under this

point. As such, we conclude that this issue is inadequately briefed and presents

nothing for our review. See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear

and concise argument for the contentions made, with appropriate citations to

authorities . . . .”); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106


                                          25
S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (concluding

that “Rule 38 requires [the appellant] to provide us with such discussion of the facts

and the authorities relied upon as may be requisite to maintain the point at issue” and

that “[t]his is not done by merely uttering brief conclusory statements, unsupported

by legal citations,” and holding that appellant waived its complaints “[b]y presenting

such attenuated, unsupported argument”); see also Strange v. Cont’l Cas. Co., 126

S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied) (“An issue on appeal

unsupported by argument or citation to any legal authority presents nothing for the

court to review.”).

      We hold that ADI has waived its fourth issue.

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Sherry Radack
                                               Chief Justice

Panel consists of Chief Justice Radack and Justices Kelly and Goodman.




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