source: Caselaw Access Project

author: CHARLES W. SEYMORE, Justice.

license: Public Domain

text:
    WTG GAS PROCESSING, L.P., Appellant, v. CONOCOPHILLIPS COMPANY, Targa Resources Texas GP LLC, Targa Resources, Inc., Targa Texas Field Services, LP, and Warburg Pincus, LLC, Appellees.
    No. 14-08-00019-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 2, 2010.

      Judith R. Blackway, P. Michael Jung, Dallas, Frank G. Harmon, Kimberly Rose Stuart, Houston, Gregg Owens, Austin, for appellant.
    Angus J. Dodson, Logan J. Beck, Michael Ernest Richardson, Morgan L. Copeland, Robert R. Burford, Houston, Darrell L. Barger, Corpus Christi, Richard L. Po-sen, New York, NY, for appellees.

      Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
   CORRECTED OPINION

CHARLES W. SEYMORE, Justice.

We withdraw our opinion of February 28, 2010 and substitute this corrected opinion in its place.

This suit arises from appellee, Conoco-Phillips Company’s (“ConocoPhillips”), sale of a natural-gas processing facility to ap-pellees, Targa Resources Texas GP LLC, Targa Resources, Inc., Targa Texas Field Services, LP, and Warburg Pincus, LLC (collectively “Targa”), instead of appellant, WTG Gas Processing, L.P. (“-WTG”). WTG sued ConocoPhillips for breach of contract, fraud, and negligent misrepresentation and Targa for tortious interference with contract or prospective business relationship. The trial court granted separate motions for summary judgment filed by ConocoPhillips and Targa and signed a final judgment that WTG take nothing on all its claims.

In two issues, encompassing numerous sub-issues, WTG contends the trial court erred by granting summary judgment on the breach-of-contract claim against Cono-coPhillips and the tortious-interference-with-contract claim against Targa. WTG challenges the grounds on which the trial court explicitly granted summary judgment. Both ConocoPhillips and Targa present cross-points, contending the summary judgments should be upheld on alternative grounds, which were denied by the trial court. As explained below, we agree with a cross-point raised by both Conoco-Phillips and Targa, and, therefore, affirm the final judgment.

I. Background

WTG is a limited partnership which owns midstream natural-gas gathering and processing systems. In 2003, ConocoPhil-lips decided to sell several of its natural gas processing plants and pipelines, including San Angelo Operating Unit (“SAOU”), Louisiana Operating Unit (“LOU”), and Southeast New Mexico assets (“SENM”). ConocoPhillips engaged Morgan Stanley & Co., Incorporated (“Morgan Stanley”) to conduct the sale.

Morgan Stanley issued a “Teaser,” inviting interested parties to potentially bid on an individual asset or certain assets combined. After WTG signed a confidentiality agreement, Morgan Stanley gave WTG a Confidential Information Memorandum (“CIM”), which described the assets in more detail and outlined the progressive steps of the transaction process: interested parties submit a non-binding Indication of Interest (“IOI”) containing requisite items; Morgan Stanley and ConocoPhillips will evaluate the IOIs and invite a limited number of bidders to attend a management presentation, participate in due diligence, receive further information, including a draft Purchase and Sale Agreement (“PSA”), and attend a site visit from which to submit bids; and upon evaluation of the final bids, Morgan Stanley will narrow the number of bidders and enter into final PSA negotiations. The CIM also provided in pertinent part:

Morgan Stanley and ConocoPhillips reserve the right to ... negotiate with one or more parties at any time and ... enter into preliminary or definitive agreements at anytime and without notice or consultation with any other parties. Morgan Stanley and ConocoPhil-lips also reserve the right, in their sole discretion, to reject any and all final bids without assigning reasons and to terminate discussions and/or negotiations at any time for any reason or for no reason at all.

After submitting an IOI for SAOU, WTG was invited to, and did, participate in the next stage of the process. Then, on October 30, 2003, via letter, Morgan Stanley invited WTG to submit a binding proposal and outlined the requirements for such a bid (“the bid procedures”). The proposal was required to include Conoco-Phillips’s draft PSA marked by WTG to show its proposed changes. Among other provisions, the bid procedures contained the following language:

• A Proposal will only be deemed to be accepted upon the execution and delivery by ConocoPhillips of a [PSA(s) ].
• [ConocoPhillips] expressly reserves the right, in its sole discretion and at any time and for any reason, to exclude any party from the process or to enter into negotiations or a [PSA(s) ] with any prospective purchaser or any other party ... and to reject any and all Proposals for any reason whatsoever.... [ConocoPhillips] also expressly reserves the right to negotiate at any time with any prospective purchaser individually or simultaneously with other prospective purchasers.... None of ConocoPhillips, its affiliates, representatives, related parties or Morgan Stanley will have any liability to any prospective purchaser as a result of the rejection of any Proposal or the acceptance of another Proposal at any time.
• Until the [PSA(s) ] for this transaction is executed by ConocoPhillips and a purchaser, [ConocoPhillips], its affiliates and related parties shall not have any obligations to any party with respect to the contemplated transaction, and following such execution and delivery, the only obligations of Conoco-Phillips, its affiliates and related parties will be to the other party to the [PSA(s) ], and only as set forth therein.

By letter dated November 19, 2003, WTG submitted a “final binding bid” of $135.4 million for SAOU “[i]n accordance with the [CIM] ... and the [bid procedures].” WTG subsequently increased its bid to $145.4 million after being informed that its offer was lower than others under consideration but ConocoPhillips was more comfortable with WTG because of fewer changes needed to its PSA and the parties’ past relationship. WTG was then informed by Morgan Stanley that it likely would be the winning bidder if it increased its bid to $148.4 million to make it comparable to another offer ConocoPhillips was considering. On December 10, 2003, WTG increased its bid to $148.4 million.

According to the deposition testimony of Dave Freeman (WTG’s employee who was its principle contact for the transaction), on December 11, 2003, Garrett Rychlik (ConocoPhillips’s Coordinator of Business Development responsible for managing the auction of SAOU), Robert Friedsam (Morgan Stanley), and Ryan Engle (Morgan Stanley), telephoned Freeman stating the following: ConocoPhillips had decided to “go forward with” WTG; ConocoPhillips and WTG had a “deal,” ConocoPhillips had some “immaterial” changes — ’“wording” issues — to WTG’s draft PSA; the parties would “proceed to get it signed”; and Co-nocoPhillips would forward a revised version the next day or at least by December 15.

At that point, WTG’s draft PSA was not in executable form and did not, among other omissions, fully describe the assets to be purchased or include all exhibits. WTG and ConocoPhillips did not thereafter engage in any negotiations relative to a PSA, ConocoPhillips made no counter proposal, and these parties never executed a PSA.

Meanwhile, in November and early December of 2003, Targa had submitted bids for multiple assets, including SAOU, and expressed a strong preference to make a group purchase. On December 10, Targa resubmitted a bid of $335 million for SAOU, SENM, and LOU combined and reiterated its interest in acquiring several assets in a single transaction.

However, as of December 11, Conoco-Phillips had decided to pursue PSA negotiations with WTG for SAOU, Targa for LOU only, and another entity for SENM. During the days immediately following the December 11th phone conversation with WTG, several ConocoPhillips employees who were responsible for various aspects of the sale generated some internal emails. The e-mails reflected that, although Targa’s single bid was higher than the total separate offers, ConocoPhillips viewed the separate sales as more optimal than a package sale to Targa. The employees discussed the status of the sale in light of this decision. Specifically, on December 12, Will Duey wrote William Earnest and Mary Pearce:

[W]e are moving forward with due diligence and PSA negotiations with DEFS for SENM, [WTG] for [SAOU] and [Targa] for LOU. It is our goal to have PSAs for SENM and [SAOU] mid-January and close both before the end of February. These dates are subject to both due diligence and HSR requirements; however, they seem achievable at this point in time. Because of [Tar-ga’s] requirements LOU is expected to close later....
Morgan Stanley is notifying the unsuccessful bidders that we are starting down the road with other parties.

About two hours later, William Earnest forwarded the message to John Lowe (a ConocoPhillips vice-president) stating:

fyi — We are going down the path of 3 sales vs. one transaction with Targa due to closing concerns (new entity), due diligence requirements and [PSA] markup by Targa. We have done deals with [WTG] and DEFS before and are more confident of closing with them....

Later that day, Mary Pearce wrote to Sigmund Cornelius and William Earnest, warning of a potential “political problem” due to Targa’s latest bid:

We had already released DEFS and WTG to start due diligence on SENM and [SAOU], respectively. We also believe that there is a high risk that Targa will whittle the price down and WTG will not and DEFS may not based on our past dealings. When we advised Targa that we would not stop the due diligence and give them an exclusive on the 3 properties, they become [sic] upset and threatened to not buy LOU. We do plan to tell them that we want to work with them on LOU and will give them the opportunity if the negotiations fall apart with our primaries. If they do not buy LOU — we have other options.
We wanted you to know as you may hear complaints from Targa. We are committed to obtain the best value as well as live with our deals.

On December 15, Will Duey e-mailed John Lowe, expressing:

[Targa] seem[s] to be fishing for a magic number rather than raising their bid or modifying the PSA that they marked up. It seems late to ask them to submit a new PSA as we have already started due diligence with DEFS and [WTG]. Certainly Targa is a great option if those deals fall apart.

Then, on December 15, Targa did submit another bid of $255 million for SAOU and LOU combined, recognizing a package purchase which also included SENM may “no longer be an option.” Targa also made some concessions on terms and guaranteed flexibility relative to negotiating other terms in light of ongoing discussions with Morgan Stanley which clarified Cono-coPhillips’s “key considerations.” Morgan Stanley forwarded this proposal to Cono-coPhillips, noting it was a total premium of $22 million over the existing offers. Cono-coPhillips indicated to Morgan Stanley that this offer had potential if the parties could negotiate other details. On December 19, Morgan Stanley informed Freeman that ConocoPhillips was considering another offer.

On December 22, Freeman e-mailed Rychlik (ConocoPhillips) inquiring about the status of the PSA in light of the December 11th phone conversation and offering a meeting between the parties’ attorneys to discuss the PSA. Freeman stated WTG was anxious to conclude this transaction because it was in the process of purchasing another interdependent facility in the area. He also stated that WTG had completed some aspects of due diligence and requested permission to conduct further due diligence during the first week of January.

On the same day, Engle (Morgan Stanley) responded to Freeman’s e-mail, confirming WTG could conduct the requested due diligence. Engle advised that Conoeo-Phillips’s attorney for the sale process was on vacation for the remainder of December and could not devote significant time to the PSA that week, and “[a]s previously mentioned, we believe the two parties are close enough on the PSA that finalizing that document can be done in an expedious [sic] fashion (most likely during the week of Jan. 5).” Also that day, Rychlik confirmed to Freeman that ConocoPhillips was considering another offer, which included SAOU, and a decision about the new bid would not likely be made before January. Rychlik stated he was not “playing games” with WTG but ConocoPhillips had to consider the other offer. Freeman replied that WTG would be “extremely upset” if a transaction between WTG and ConocoPhil-lips were not consummated because it had offered a “premium” for SAOU and the complementary facility and would be “very upset” if ConocoPhillips took the other offer without giving WTG an opportunity to adjust its bid although it might not do so. The next day, Freeman expressed to Morgan Stanley and Rychlik via e-mail that allowing WTG to continue a brisk pace on due diligence would enable it to sign a PSA “as soon as the attorneys have negotiated the agreement.”

Throughout late December 2003 and January and February of 2004, Conoco-Phillips negotiated with Targa. During this period, WTG, ConocoPhillips, and Morgan Stanley continued to communicate, in writing or orally, regarding the status of the sale. WTG periodically apprised Morgan Stanley and ConocoPhillips regarding the status of WTG’s due diligence efforts, and they kept WTG informed that ConocoPhillips was still evaluating the other offer.

At one point in early January, Freeman again asked if WTG would be given the opportunity to revise its bid before Cono-coPhillips accepted the other offer. Morgan Stanley replied that ConocoPhillips would likely proceed with the other party if its bid were the best offer but WTG was free to submit a revised bid before that time. J.L. Davis, owner of WTG, subsequently wrote two letters to Morgan Stanley stating WTG would not increase its offer because it believed the parties had an “agreement” on price, the offer was fair, and WTG had expended considerable resources and made another commitment based on advice it had been selected to purchase SAOU; expressing “keen disappointment” if the sale were not concluded; and reiterating WTG’s “expectation that ConocoPhillips will honor its commitment to accept our bid.”

Morgan Stanley then notified WTG that due diligence should be conducted at its own risk and reminded WTG the bid materials advised that ConocoPhillips could negotiate with any party until a PSA was signed. A few days later, Freeman informed ConocoPhillips and Morgan Stanley that once certain aspects of due diligence were complete, it would be prepared to “finalize and sign” a PSA. Subsequently, Morgan Stanley advised Freeman that negotiations with the other party were down to the “critical stage” but ConocoPhillips wanted to keep communications open with WTG as a “good alternative.” Morgan Stanley inquired about WTG’s status should ConocoPhillips decide to proceed with WTG. Freeman replied that WTG was “basically down to finalizing the PSA and verifying volumes.”

On February 28, 2004, ConocoPhillips and Targa executed PSAs for SAOU and LOU. A few days later, Morgan Stanley informed Freeman that ConocoPhillips had now executed a “definitive agreement.” The closing for the transaction with Targa occurred in April 2004.

In December 2005, WTG sued Conoco-Phillips for breach of contract, fraud, and negligent misrepresentation and Targa for tortious interference with contract or prospective business relationship. Conoco-Phillips and Targa each filed a traditional motion for summary judgment followed by a supplement to the motion. On October 2, 2007, the trial court signed a “Memorandum Opinion and Order” granting both motions for summary judgment and explaining at length the reasons for its decision. On October 4, 2007, the trial court signed a final judgment referencing its previous order and ruling that WTG take nothing on all its claims. WTG appeals the summary judgment in favor of both ConocoPhillips and Targa.

II. Standard of Review

A party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). A defendant moving for summary judgment must conclusively negate at least one element of the plaintiffs theory of recovery or plead and conclusively establish each element of an affirmative defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). If the defendant establishes its right to summary judgment, the burden shifts to the plaintiff to raise a genuine issue of material fact. Id. We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Id.

III. ConocoPhillips’s Motion for Summary Judgment

In its first issue, WTG contends the trial court erred by granting summary judgment in favor of ConocoPhillips on WTG’s breach-of-contract claim.

A. The Issues

ConocoPhillips moved for summary judgment on two alternative grounds: (1) WTG cannot prove existence of a valid contract because the evidence conclusively established there was no meeting of the minds; and (2) the statute of frauds bars WTG’s claim. In its responses, WTG addressed these grounds and also raised a promissory-estoppel defense to the statute-of-frauds contention.

In its order, the trial court found a genuine issue of material fact on whether a contract was formed. However, the trial court concluded that an enforceable contract did not exist as a matter of law because there was no writing satisfying the statute of frauds and WTG failed to present evidence supporting its promissory-estoppel argument.

On appeal, WTG challenges both conclusions concerning the statute of frauds. In addition to arguing that the trial court correctly concluded the statute of frauds was not satisfied, ConocoPhillips raises two cross-points. In one such cross-point, ConocoPhillips challenges the trial court’s ruling that there was a genuine issue of material fact on whether a contract was formed.

As discussed below, we agree that, as a matter of law, ConocoPhillips negated formation of a contract. Therefore, we need not address the statute-of-frauds issue and will uphold the summary judgment based on ConocoPhillips’s cross-point. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex.1996) (holding appellate court, when reviewing summary judgment, should consider all grounds on which the trial court ruled and the movant preserved for appellate review that are necessary for final disposition of appeal).

B. Analysis

To prevail on a breaeh-of-contraet claim, a plaintiff must prove (1) a valid contract existed between the plaintiff and the defendant, (2) the plaintiff tendered performance or was excused from doing so, (3) the defendant breached the terms of the contract, and (4) the plaintiff sustained damages as a result of the defendant’s breach. West v. Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex.App.-Houston [14th Dist.] 2008, no pet.). In its motion for summary judgment, ConocoPhillips asserted the evidence conclusively negated the existence of a valid contract because the parties did not have a meeting of the minds; i.e. offer and acceptance.

Among other elements, a party must prove offer and acceptance to demonstrate existence of a valid contract. DeClaire v. G & B Mcintosh Family Ltd. P’ship, 260 S.W.3d 34, 44 (Tex.App.-Houston [1st Dist.] 2008, no pet.); Wal-Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555-56 (Tex.App.-Houston [14th Dist.] 2002, no pet.). A “meeting of the minds” is “merely a mutuality subpart of the offer and acceptance elements.” Domingo v. Mitchell, 257 S.W.3d 34, 40 (Tex.App.-Amarillo 2008, pet. denied). Although whether the parties intended to be bound is often a question of fact, it may be determined as a matter of law. See Foreca, S.A. v. GRD Devel. Co., 758 S.W.2d 744, 746 (Tex.1988); John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 16 (Tex.App.-Houston [1st Dist.] 2000, pet. denied); see also COC Servs., Ltd. v. CompUSA, Inc., 150 S.W.3d 654, 662-70 (Tex.App.-Dallas 2004, pet. denied).

Although a PSA was never executed, WTG contends ConocoPhillips accepted WTG’s offer during the December 11th phone conversation by representing that ConocoPhillips had decided to “go forward with” WTG, they had a “deal,” ConocoPhil-lips had “immaterial” changes to WTG’s PSA, and “the parties” would “proceed to get it signed.”

Based on the following provisions in the bid procedures, ConocoPhillips argues that these oral representations, if any, did not constitute acceptance of WTG’s offer:

A Proposal will only be deemed to be accepted upon the execution and delivery by ConocoPhillips of a[PSA],
Until the [PSA(s) ] for this transaction is executed by ConocoPhillips and a purchaser, [ConocoPhillips] ... shall not have any obligations to any party with respect to the contemplated transaction, and following such execution and delivery, the only obligations of ConocoPhil-lips ... will be to the other party to the [PSA(s) ], and only as set forth therein.

In contrast, for two reasons, WTG contends these provisions did not conclusively negate acceptance of its offer: (1) the fact that the parties contemplated later execution of a PSA did not necessarily preclude their informal agreement from constituting a binding contract; and (2) a fact issue existed on whether ConocoPhillips modified or waived these provisions. The trial court seemed to conclude the above-cited provisions might otherwise have negated that ConocoPhillips orally accepted WTG’s offer, but a fact issue existed on whether ConocoPhillips waived these procedures.

1. Bid Procedures Precluding Acceptance Absent Execution of a PSA

ConocoPhillips cites several cases to support its contention that the above-cited bid procedures negated any purported acceptance of WTG’s offer, including John Wood Group and COC Services.

In John Wood Group, after negotiating the potential sale of certain assets, the parties signed a letter of intent containing the following provision:

15. Binding Effect. This Letter Agreement constitutes a summary of the principal terms and conditions of the understanding which has been reached regarding the sale of certain assets to Purchaser.... It does not address all of the terms and conditions which the parties must agree upon to become binding and consummated. The Purchaser, however, does intend to move forward with its due diligence and expects to expend considerable sums to review the Sellers’ Business. In consideration therefor, the parties have agreed to make certain covenants of this letter binding upon the parties notwithstanding the fact that not all details of the transactions have been agreed upon. Accordingly, it is understood and agreed that this letter is an expression of the parties’ mutual intent and is not binding upon them except for the provisions of [several numbered paragraphs].

26 S.W.3d at 15 (emphasis added in original opinion). The seller refused to consummate the transaction because of disputes on certain matters and sold the assets to another company. Id. In the prospective buyer’s subsequent suit, a jury found that the seller breached the letter agreement. Id. at 16. The court of appeals held this issue was improperly submitted to a jury and there was no contract as a matter of law because the parties unambiguously expressed their intent not to be bound by the letter agreement except for certain paragraphs. See id,, at 16-20.

In COC Services, the parties signed a letter of intent with a form master franchise agreement attached. 150 S.W.3d at 660. The letter provided that, if the master franchise agreement were not signed by a certain date, the letter “will expire, and neither of the undersigned shall have any further obligation or liability hereunder with respect to a potential master franchise or license for the development and operation of the Stores.... ” Id. at 663 (emphasis added in original opinion). Relying primarily on this language, the court held that, as a matter of law, the parties did not intend to be bound by the master franchise agreement which was never completed and executed. See id. at 665-70.

WTG cites several cases to support its position that the fact the parties contemplated later execution of a written agreement did not necessarily preclude their informal agreement from constituting a binding contract. For example, in Foreca, the parties initialed a handwritten document which included several terms concerning the sale of amusement-park rides and the language, “SUBJECT TO LEGAL DOCUMENTATION CONTRACT TO BE DRAFTED BY [SELLER’S ATTORNEY].” 758 S.W.2d at 744-45. Subsequently, the seller sued the prospective buyer for breach of contract after it refused to purchase the rides. Id. at 745. Relying on the above-quoted language, the buyer urged that no enforceable agreement was made. Id. The Texas Supreme Court held this language was not conclusive on intent to contract because a fact question existed on whether the contemplated formal writing was a condition precedent to contract formation or merely a memorial of an already enforceable contract. Id. at 745-46.

WTG also relies on Murphy v. Seabarge, Ltd., 868 S.W.2d 929, 933 (Tex.App.-Houston [14th Dist.] 1994, writ denied), in which a “Memorandum of Understanding” between partners provided it was “not intended to be a binding contract” but an outline of proposals in the event the partnership filed bankruptcy and thus was subject to “preparation of appropriate documentation” and approval of the bankruptcy court. When the partnership sued one partner for taking management fees beyond those authorized by the memorandum, he relied on the foregoing provision to argue the memorandum was not an enforceable contract. Id. at 932-33. The court held that a fact issue existed on whether the parties intended to be bound by the memorandum. Id. at 933-34.

The Foreca and Murphy courts recited, and WTG also relies on, the following well-established general contract principles: (1) the fact that parties to an informal agreement contemplate a formal writing does not necessarily prevent formation of a binding contract even if the formal writing is never drafted and executed; see Scott v. Ingle Brothers Pacific, Inc., 489 S.W.2d 554, 556 (Tex.1972) (citing 17 Am.Jur.2d, Contracts § 28); and (2) parties may form a binding contract if they agree on material terms although they leave other terms open for later negotiation; see id. (quoting 1 Arthur Corbin, Corbin on Contracts § 28, at 93-95 (1963)); see also Foreca, 758 S.W.2d at 746 (citing Scott, 489 S.W.2d at 556); Murphy, 868 S.W.2d at 933 (citing Scott, 489 S.W.2d at 556).

We conclude that John Wood Group and COC Services are persuasive in the present case and Foreca and Murphy, as well as the general contract principles recited therein, are distinguishable. The ConocoPhillips bid procedures were much more definitive than the “subject to legal documentation” language in Foreca. Instead, like the pertinent provisions in John Wood Group and COC Services, the bid procedures unequivocally provided that ConocoPhillips did not intend to accept an offer, or bear any contractual obligations to another party, absent execution of a PSA. Thus, execution of a PSA was clearly a condition precedent to contract formation and not merely a memorialization of an existing contract. See John Wood Group, 26 S.W.3d at 16-19 (stating the “is not binding” language in the John Wood Group letter of intent was more definitive than the language in Foreca and compelled only the conclusion that the parties did not intend to be bound).

The language disavowing intent to be bound in Murphy was more emphatic than the pertinent language in Foreca. See Murphy, 868 S.W.2d at 933. Nevertheless, the evidence raising a fact issue was the partner’s admitted partial performance of the agreement despite his later attempt to disavow an enforceable contract. Id. at 932-34; see John Wood Group, 26 S.W.3d at 17 (distinguishing Murphy because its party’s partial performance after agreement was signed created fact question on intent to be bound despite “no intent” provision whereas no such partial performance occurred in John Wood Group). In the present case, the parties did not engage in partial performance; indeed, this dispute arose because ConocoPhillips sold the facility to another party.

In fact, the John Wood Group court acknowledged the general principles recited in Foreca, Murphy, and Scott when cautioning that a party may risk being contractually bound by a letter of intent which includes essential terms although it does not contain all protections for which the parties would ordinarily negotiate or on which due diligence is incomplete. See John Wood Group, 26 S.W.3d at 19-20. “Therefore, a party who does not wish to be prematurely bound by a letter agreement should include ‘a provision clearly stating that the letter is nonbinding, as such negations of liability have been held to be effective.’ ” Id. at 19 (quoting E. Allan Farnsworth, Farnsworth On Contracts § 3.8b, at 193 (1990)). The court stated that the case did not merely involve missing unessential terms, but whether there was mutual consent on essential terms. Id. at 20. Although the parties may have reached a preliminary agreement on essential terms — the item to be sold and the price — the seller withheld its consent to be bound on those agreed-upon terms until a final purchase agreement was signed. Id. Similarly, ConocoPhillips withheld its acceptance of an offer until execution of a PSA, despite any preliminary “deal” on essential terms made during the December 11th phone conversation.

We acknowledge that the present case differs from John Wood Group and COC Services in that the provisions reflecting intent not to be bound in those cases were contained in a written agreement signed by both parties. See John Wood Group, 26 S.W.3d at 15; COC Servs., 150 S.W.3d at 663. In this case, the language precluding acceptance of an offer absent execution of a PSA was contained within the bid procedures promulgated by ConocoPhil-lips. Nonetheless, WTG made its bid “[i]n accordance with the [CIM] ... and the [bid procedures].” WTG argued this language did not necessarily mean it agreed to the bid procedures, but merely that it was responding to the procedures by submitting all items required therein. Although the trial court ultimately agreed with WTG on the contract-formation dispute, it disagreed with this point, stating “it appears the procedures were incorporated into WTG’s offer.... ”

We agree that, under the plain meaning of “[i]n accordance with,” WTG submitted its offer subject to the bid procedures. See Webster’s Third New Int’l Dictionary 12 (1993) (defining “accordance” to mean “Agreement, Accord”); Black’s Law Dictionary 18 (8th ed.2004) (defining “accordant” to mean “In agreement”). Nevertheless, by acknowledging the bid procedures, WTG knew that Cono-coPhillips, at least, had no intent to be bound absent execution of a PSA. See Restatement (Second) op Contracts § 27 cmt. B (1981) (“[I]f either party knows or has reason to know that the other party regards the agreement as incomplete and intends that no obligation shall exist until other terms are assented to or until the whole has been reduced to another written form, the preliminary negotiations and agreements do not constitute a contract.”); see also RHS Interests, Inc. v. 2727 Kirby Ltd., 994 S.W.2d 895, 897-99 (Tex.App.-Houston [1st. Dist.] 1999, no pet.) (holding there was no contract for purchase of property where buyer stated its written offer was “not binding as an agreement unless and until a fully executed Earnest Money contract is signed,” but even under buyer’s position that subsequent oral negotiations replaced this offer, no contract was formed because seller’s response indicated “deal” would be consummated only by “execution of the binding Purchase and Sale Agreement.”).

2. Modification or Waiver of Bid Procedures

Next, WTG contends, and the trial court agreed, that the language at issue in the bid procedures did not conclusively negate acceptance of WTG’s offer because a genuine issue of material fact existed on whether ConocoPhillips modified or waived the procedures. In support, WTG and the trial court cited another provision in the bid procedures:

ConocoPhillips reserves the right, without explanation, to amend, modify or waive the procedures, terms and conditions set forth herein at any time, with or without sending notice of the waivers or changes to prospective purchasers.

Additionally, WTG argued, and the trial court stated, “Texas jurisprudence allows parties to orally modify a contract even if the contract itself contains language prohibiting oral modification, if parties agree to disregard this language.” See Morrison v. Ins. Co. of N. Am., 69 Tex. 353, 364, 6 S.W. 605, 609 (Tex.1887); Mar-Lan Indus., Inc. v. Nelson, 635 S.W.2d 853, 855 (Tex.App.-El Paso 1982, no writ).

Relying on the above-cited provision and the general principle regarding contract modification, the trial court concluded:

It is possible ConocoPhillips had the requisite intent to form a contract without the added protection of the bid procedures and, that though the parties still intended to execute a final agreement, ConocoPhillips forwent such as a requirement and accepted on the spot, thus waiving the condition precedent by its acceptance. Though the proposition that ConocoPhillips did so may seem dubious, this is a matter for the finder of fact to determine. Whether intent was present, acceptance given, and oral agreement made are matters best left to a finder of fact. The Court finds that the bid procedures promulgated by Co-nocoPhillips did not limit ConocoPhillips’ ability to accept WTG’s PSA as it was and at that time for the purposes of summary judgment.

WTG also cites authority recognizing a party may waive a condition it originally imposed as prerequisite to contract formation, although the trial court did not recite this principle in its order. See, e.g., Padilla v. LaFrance, 907 S.W.2d 454, 460-61 (Tex.1995) (recognizing offer prescribing time and manner of acceptance must ordinarily be complied with to create contract, but different method of acceptance may be effectual where offeror agrees to modification of terms of acceptance).

Waiver is “an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.” Jernigan v. Langley, 111 S.W.3d 153, 156 (Tex.2003) (per curiam). Initially, Freeman acknowledged in his deposition that ConocoPhillips never expressed to WTG it had waived the bid procedures that precluded acceptance of an offer absent execution of a PSA. Nonetheless, the fact that ConocoPhillips did not communicate any express waiver to WTG is inconclusive because ConocoPhillips reserved the right to unilaterally waive the procedures without informing WTG. However, WTG also cites no evidence indicating Co-nocoPhillips made any express, internal decision to waive these procedures. Therefore, the gist of WTG’s argument, and the trial court’s reasoning, was that a jury might decide the oral representations during the December 11th phone conversation themselves constituted ConoeoPhil-lips’s waiver of these bid procedures.

Consequently, we construe the issue as whether ConocoPhillips waived the bid procedures through its conduct; i.e. representations which did not expressly relinquish its rights. For implied waiver to be found through a party’s conduct, intent must be clearly demonstrated by the surrounding facts and circumstances. Id.; see Van Indep. Sch. Dist. v. McCarty, 165 S.W.3d 351, 353 (Tex.2005) (“[T]hat conduct must be unequivocally inconsistent with claiming a known right.”). “There can be no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right.” Jernigan, 111 S.W.3d at 156. Waiver is ordinarily a question of fact, but when the surrounding facts and circumstances are undisputed, the question becomes one of law. Id. at 156-57. Considering the surrounding facts and circumstances, including the purpose of the bid process and procedures and ConocoPhillips’s actions after the phone conversation, we conclude the oral representations were insufficient as a matter of law to constitute waiver of the bid procedures at issue.

a. The purpose of the bid process and procedures

First, allowing a jury to decide the oral representations alone constituted waiver would vitiate the purpose of the overall bid process and the procedures. The bid procedures provided that one of ConocoPhillips’s “key objectives” was “to obtain the highest possible value” and it would evaluate proposals “with the goal of negotiating and executing a [PSA(s) ] with the party that submits the Proposal which best meets [ConocoPhillips’s] objectives.” ConocoPhillips’s internal e-mails reflect that the “highest possible value” involved considerations of purchase price and contract terms.

Both the CIM and the bid procedures demonstrate they were intended to ensure that ConocoPhillips achieved its objectives by prescribing an aggressive, competitive bidding process. ConocoPhillips reserved the right to pursue the most favorable bid until execution of a PSA by specifying it could entertain a bid at any time, negotiate with any prospective purchaser at any time, and negotiate with multiple parties at the same time.

Additionally, arriving at the final terms of a complex, commercial transaction involves extensive time, effort, research, and finances. See John Wood Group, 26 S.W.3d at 19. Further, it is axiomatic that parties to a complex transaction may need to reach a preliminary agreement in order to proceed toward execution of a final agreement. Consequently, parties may structure their negotiations so that they preliminarily agree on certain terms, yet protect themselves from being prematurely bound in the event they disagree on other terms. See id. (discussing purpose of a letter of intent). Indeed, the CIM reflected that ConocoPhillips viewed a preliminary agreement as different from a PSA because it reserved the right to “enter into preliminary or definitive agreements at any time.” Thus, entering into a preliminary “deal” was not necessarily inconsistent with requiring an executed PSA to form a binding contract.

Accordingly, the bid procedures at issue were intended in part to protect Conoco-Phillips in a situation such as the present dispute; i.e. prevent an informal, preliminary agreement with a prospective purchaser from forming a binding contract before execution of the formal writing. Consequently, we employ an opposite reasoning to that urged by WTG and adopted by the trial court: in short, the representations during the December 11th phone conversation cannot alone constitute waiver of the bid procedures and acceptance of WTG’s offer when the bid procedures were implemented partly to prevent such representations from constituting acceptance of an offer.

Again, we find COC Services, as well as a federal case cited therein, are illustrative. In COC Services, the plaintiff buyer argued that the following conduct by the seller after signing the letter of intent indicated the parties had entered into a contract although no master franchise agreement was ever signed: the seller sent potential licensees materials indicating the master franchise agreement was already binding; the seller acquiesced in materials the buyer prepared for potential licensees stating that it “currently owns” a franchise; and the seller’s representative stated in a meeting that the partners of the buyer were “owners of right for the franchise.” COC Servs., 150 S.W.3d at 669. The court held that the seller’s conduct did not eclipse the other factors showing lack of intent to be bound absent execution of a master franchise agreement. Id. at 669-70.

The COC Services court cited Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 72-73 (2nd Cir.1989), in which the court concluded that the parties to a memorandum “agreement” concerning the sale of certain assets did not intend to be bound until execution of a formal agreement. The court reached this conclusion although the seller, who ultimately refused to consummate the transaction and disavowed existence of a binding contract, engaged in the following conduct after signing the memorandum agreement: obtained its board’s approval of the “proposed agreement”; informed third-parties of an “agreed-upon” sale with a “signed agreement”; referred to the buyer as the “new owner”; took various steps to consummate the transaction; and referred to on-going “final” negotiations with an absolute closing date. See id. at 71.

We recognize the COC Services and Arcadian courts did not use the term “waiver.” See generally COC Servs., 150 S.W.3d 654; Arcadian, 884 F.2d 69. Nevertheless, their discussions were similar to a waiver analysis because the courts refused to disregard the parties’ expression of no intent to be bound by a preliminary agreement despite one party’s subsequent conduct which might otherwise have shown acknowledgment of a binding contract. See COC Servs., 150 S.W.3d at 669-70; Arcadian, 884 F.2d at 71-73. Likewise, ConocoPhillips’s representations of a “deal” and promise to negotiate and sign a PSA did not eclipse the bid procedures precluding its acceptance of an offer until execution of the PSA.

b. ConocoPhillips’s actions after the December 11th representations

Additionally, ConocoPhillips’s subsequent actions were insufficient to raise a fact issue on whether the December 11th oral representations constituted waiver of the bid procedures and acceptance of WTG’s offer. To the contrary, Conoco-Phillips’s subsequent actions negated that it had waived the procedures and accepted WTG’s offer.

In the trial court, WTG emphasized the following statements in the internal e-mails generated by ConocoPhillips in the days immediately after the December 11th conversation, discussing the decision to proceed with WTG for SAOU, as opposed to a package sale to Targa: “We are committed to obtain the best value as well as live with our deals”; and “Certainly Targa is a great option if those deals fall apart.” Even if these references to “deals” all meant an agreement with WTG, we employ the same reasoning relative to the e-mails as to the representations in the phone conversation regarding a “deal.” The e-mails indeed indicated ConocoPhil-lips had decided at that point to reach a preliminary agreement and continue negotiations with only WTG for SAOU. However, they were not unequivocally inconsistent with ConocoPhillips’s reserving the right to insist on execution of a PSA as prerequisite to forming a definitive agreement.

Rather, these e-mails reflected Conoco-Phillips’s view that it had not yet formed a binding contract, particularly the references to:

• “starting down the road” with WTG;
• “moving forward with due diligence and PSA negotiations”;
• “going down the path” of a sale to WTG;
• being “more confident” of closing with WTG;
• anticipating little risk WTG would “whittle the price down”; and
• considering Targa as an option if “negotiations” and a “deal[s]” with WTG should “fall apart.”

Significantly, ConocoPhillips would not have needed to express even the slightest concern that WTG might “whittle the price down” or the deal could “fall apart” if it believed the parties had already formed a contract for the amount of WTG’s final bid.

WTG also relied on the December 22nd e-mail from Engle (Morgan Stanley) to WTG authorizing it to proceed with due diligence and stating, “we believe the two parties are close enough on the PSA that finalizing that document can be done in an expedious [sic] fashion (most likely during the week of Jan. 5).” Contrary to WTG’s suggestion, this statement did not show that ConocoPhillips had accepted WTG’s offer and viewed signing a PSA as merely a ceremonial step remaining in the process. In his deposition, Engle explained that “finalizing” meant:

“[T]he two parties would come together ... and we were always talking about scheduling aside two or three full days to negotiate the outstanding terms of the PSA, but ... who knows when you get the lawyers in the room negotiating these things, how long that could take, ... but there were still at least several days away of negotiation from signing the PSA.... After having negotiated all of the points, finalizing is when the two sides sign the PSA.”

Therefore, the Engle e-mail indicated, at most, that ConocoPhillips intended to engage in negotiating a PSA, which could then be signed by the parties, although this process never materialized. Again, the e-mail was insufficient to show that ConocoPhillips had relinquished its right to withhold its acceptance until the PSA was actually signed.

In fact, the following communications of ConocoPhillips and Morgan Stanley to WTG during late December 2003 and January and February of 2004 negate that ConocoPhillips had waived the bid procedures and accepted WTG bid before execution of a PSA:

• informing WTG that ConocoPhillips was considering another offer several days before the above-referenced December 22nd e-mail from Engle to WTG;
• confirming this fact to WTG on the same day Engle sent the above-referenced e-mail;
• periodically advising WTG regarding the status of negotiations with the other party;
• reminding WTG that ConocoPhillips was allowed to negotiate with another party at any time pursuant to the bid procedures;
• telling WTG it was free to submit a revised bid; and
• referring to WTG as a “good alternative.”

Finally, we acknowledge the bid procedures were one-sided in ConocoPhillips’s favor. In fact, they also provided that ConocoPhillips’s “interpretation of the [bid procedures] shall be final and binding on all parties submitting a Proposal.” In its summary-judgment response, WTG asserted that ConocoPhillips “attempts] to have everything its way, and to give itself free reign to do whatever it pleases, regardless of what it has said.... ” We also acknowledge that, under our reasoning, it would be difficult for WTG to raise a fact issue on waiver short of an express statement of waiver by ConocoPhillips, whether communicated to WTG or formulated internally, or its engaging in partial performance of the contract. Regardless, WTG chose to participate in the process knowing Conoco-Phillips precluded its acceptance of a bid, and essentially reserved the right to change its mind, before execution of a PSA.

In sum, ConocoPhillips proved as a matter of law there was no meeting of the minds necessary to form a binding contract because it did not accept WTG’s offer Accordingly, we sustain ConocoPhillips’s cross-point and uphold the summary judgment in its favor.

IV. Targa’s Motion for Summary Judgment

In its second issue, WTG contends the trial court erred by granting summary judgment on its cause of action against Targa for tortious interference with contract.

The elements of tortious interference with contract are (1) existence of a contract subject to interference, (2) willful and intentional interference, (3) interference that proximately caused damage, and (4) actual damage or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex.1998). In essence, WTG asserts Targa knew, or should have known, about the alleged oral contract between WTG and ConocoPhillips and intentionally interfered by subsequently making a higher offer.

Targa moved for summary judgment on the following grounds: (1) WTG’s claim fails because there was no valid contract between ConocoPhillips and WTG; and (2) WTG cannot prove Targa knew, or should have known, about any contract between WTG and ConocoPhillips and, thus, cannot establish intentional interference. Targa contends it was simply the highest bidder in a competitive auction process that allowed ConocoPhillips to consider any bid, and negotiate with any party, before execution of a PSA.

In its order, the trial court stated that it granted summary judgment in favor of Targa on the tortious-interference claim because “[t]he Court has found that no contract existed between WTG and Cono-coPhillips.” However, as we have discussed, the trial court actually found a fact issue on existence of a contract but ruled any such contract was unenforceable under the statute of frauds. Therefore, the trial court implicitly denied summary judgment in Targa’s favor on the ground there was no contract. We construe the trial court’s ruling on Targa’s motion as concluding the tortious-interference claim failed because there was no enforceable contract under the statute of frauds. The trial court also analyzed Targa’s alternate summary-judgment ground “[i]n the interests of completeness.” In essence, the court found that Targa, when submitting the December 15th bid, did not know, and had no duty to inquire whether, ConocoPhillips had entered into a contract with another party for sale of the assets and could not be liable for simply making a superior offer.

On appeal, WTG challenges both rulings. Targa presents a cross-point challenging the trial court’s conclusion that a genuine issue of material fact existed on whether WTG and ConocoPhillips entered into a contract. Because we have concluded there was no contract, we agree that, as a matter of law, Targa is not liable for tor-tious interference. Therefore, we sustain Targa’s cross-point and uphold the summary judgment in its favor.

We affirm the trial court’s final judgment in its entirety.

      . The “Targa” entities bought the assets, and Warburg Pincus financed a portion of the purchase. Because the same claims were asserted against these defendants, we refer to them collectively as "Targa.”

      . The summary-judgment motions, responses, and record in this case are voluminous. We set forth only the facts pertinent to our disposition which nonetheless are somewhat extensive.

      . WTG also sued Morgan Stanley, and the trial court granted summary judgment in its favor, which WTG does not challenge on appeal.

      . WTG does not challenge summary judgment on its fraud and negligent-misrepresentation claims.

      . See Tex. Bus. & Com.Code Ann. § 26.01(a), (b)(4) (Vernon 2009) (providing that a promise or agreement for the sale of real property "is not enforceable unless the promise or agreement, or a memorandum of it, is (1) in writing; and (2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.”).

      . See Nagle v. Nagle, 633 S.W.2d 796, 800 (Tex.1982) (recognizing courts will enforce oral promise to sign instrument complying with statute of frauds if (1) promisor should have expected his promise would lead promis-ee to some definite and substantial injury, (2) such injury occurred, and (3) court must enforce promise to avoid injustice).

      . Although we need not address the statute-of-frauds issue, in essence, WTG maintains (I) a contract was memorialized in writing through ConocoPhillips’s internal e-mails after the December 11th phone conversation, together with WTG’s PSA and other documents relative to the bid process; or (2) alternatively, ConocoPhillips was estopped to raise the statute of frauds because WTG relied on ConocoPhillips's promise to sign a PSA when purchasing the complementary facility, missing an opportunity to buy another property, and expending funds on due diligence for SAOU. The trial court concluded that the December 12th e-mail from Mary Pearce to other ConocoPhillips employees included the material terms of an oral contract, if any, either in the e-mail or through incorporation of other documents, and was signed electronically; however, the e-mail did not include sufficient language of assent to show an agreement between the parties. The trial court also rejected the promissory-estoppel argument because (1) there was no evidence of a promise to sign a prepared, written agreement that would satisfy the statute of frauds, see 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 29 (Tex.App.-Houston [14th Dist.] 2005, pet. denied); (2) WTG acquired the complementary facility, forfeited the other purchase opportunity, and pursued due diligence on SAOU after learning ConocoPhillips was considering another offer; and (3) evidence indicated WTG would have acquired the complementary facility regardless of whether it purchased SAOU.

      . ConocoPhillips seemed to dispute WTG's version of the phone conversation. In his deposition, Freeman added details, including ConocoPhillips's alleged reference to a “deal” and “immaterial” PSA changes, that had not been included in WTG’s interrogatory response describing the conversation. Conoco-Phillips also disputed that any proposed changes were "immaterial.” The other evidence relative to our contract-formation analysis is undisputed because it consists of the documents relative to the bid process and the parties' documented or undisputed communications before and after the phone conversation. Consistent with our standard of review, we will treat WTG’s version of the phone conversation as correct solely for summary-judgment purposes because, as explained below, we nevertheless conclude there was no fact issue regarding contract formation.

      . Although these provisions mention "execution and delivery” of a PSA, for ease of reference, we will refer to these steps collectively as “execution” of a PSA.

      . Despite ConocoPhillips's disagreement, the trial court suggested that this general principle regarding oral modification of an existing contract was applicable to a question of contract formation. See W. Hatcheries v. Byrd, 218 S.W.2d 342, 343 (Tex.Civ.App.-Dallas 1949, no writ) ("Power to modify a pre-exist-ing contract is coextensive with the power to initiate it ....” (quoting 10 Tex. Jur. § 203)). ConocoPhillips also notes the full holding of Mar-Lan Industries referred to oral modification of "a written contract not required by law to be in writing.” 635 S.W.2d at 855 (emphasis added). We need not decide the extent to which a written contract may be modified by oral agreement or whether principles regarding contract modification are applicable here because there is no fact issue on whether ConocoPhillips waived the bid procedures.

      . Garrett Rychlik, ConocoPhillips's representative who actually participated in the December 11th phone conversation and was deposed as ConocoPhillips's corporate representative, expressly testified it did not "change those procedures." However, in a letter filed before the summary-judgment hearing regarding the parties' agreements relative to evidentiary objections, Conoco-Phillips's counsel wrote, “Defendants are willing to limit their reliance on depositions attached as exhibits to their briefs to the specific pages of those exhibits cited within those briefs.” Rychlik’s entire deposition was attached to ConocoPhillips's motion for summary judgment, but the above excerpt was not cited in ConocoPhillips’s summary-judgment filings. We note the trial court did not specifically strike all deposition testimony that was not cited in the parties’ briefs. Nonetheless, even if we disregard the above excerpt, WTG failed to present any evidence that ConocoPhillips expressly decided to waive the bid procedures.

      . ConocoPhillips did not sign a PSA with WTG because it received a better offer — not because the parties failed to agree on additional terms. Nonetheless, ConocoPhillips reserved the right to condition its acceptance on an executed PSA regardless of the reason it might never be executed. Further, as the trial court suggested relative to the statute-of-frauds analysis, despite ConocoPhillips's purported representations to Freeman on December 11 that its revisions to WTG's PSA were immaterial, it is unknown whether they truly would have been immaterial once negotiated. As the trial court further recognized, if WTG were unwilling to sign an agreement incorporating ConocoPhillips's revisions, WTG would likely have been the party claiming Conoco-Phillips never accepted WTG’s offer.

      . We do not necessarily agree that the language in the Arcadian memorandum agreement negating contract formation would do so under Texas law. Regardless, we do not cite Arcadian relative to the language sufficient to negate intent to be bound absent a final agreement. Rather, we cite Arcadian for the proposition that the seller’s conduct after signing the memorandum agreement was insufficient to override language that at least the Arcadian court considered sufficient to negate intent to be bound.

      . Relative to the statute-of-frauds issue, the trial court concluded "We are committed to ... live with our deals” did not clearly mean an agreement with WTG, as opposed to some other agreement or general "sentiment.” We will assume solely for purposes of the contract-formation issue that this statement referred to a preliminary agreement with WTG because it nonetheless did not raise a fact issue on waiver.

      . WTG’s post-December 11th communications were somewhat inconsistent regarding whether it believed ConocoPhillips had accepted WTG’s offer. On one hand, Freeman’s asking if WTG would be given the opportunity to submit a revised bid and urging Conoco-Phillips to ’’negotiate” and “finalize” — not just “sign” — a PSA indicated WTG did not view the parties as already having a binding contract for the amount of its final bid. Further, WTG cites no portion of the record reflecting that Freeman insisted ConocoPhillips cease negotiations with the other party because WTG and ConocoPhillips already had a contract. On the other hand, Davis’s letters, stating the parties had an "agreement” on price and WTG had been "selected” to purchase SAOU and urging ConocoPhillips to "honor its commitment to accept our bid,” arguably support that WTG did view the parties as already having a contract. Regardless of WTG’s beliefs, the issue is whether Conoco-Phillips waived the pertinent bid procedures because it reserved the right to unilaterally change the procedures and was the only party who could do so.

      . The record reflects WTG conceded in the trial court that summary judgment was appropriate on its claim for tortious interference with business relationship and, on appeal, WTG does not challenge summary judgment on this claim.


author: WILLIAM J. BOYCE, Justice.

text:
    EMS USA, INC., Appellant, v. Robert SHARY, Appellee.
    No. 14-09-00543-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 4, 2010.

      William H. Luck, Humble, for appellant.
    Kevin Todd Kennedy, Charles Alfred Sturm, Houston, for appellee.
    Panel consists of Justices FROST, BOYCE, and SULLIVAN.
   OPINION

WILLIAM J. BOYCE, Justice.

Appellant EMS USA, Inc. challenges the trial court’s denial of its application for a temporary injunction. We reverse and remand.

Background

Energy Facility Services, Inc. and Robert Shary entered into a personal services contract on July 1, 2005. The contract contained a non-compete covenant stating as follows:

[Shary] agrees for 2 years following the termination of this agreement not to solicit, induce, recruit, or encourage any of the Company’s employees to leave their employment, nor will [Shary], directly or indirectly: (i) solicit any of the Company’s customers existing as of the date of termination or (ii) take any action to divert business from the Company or influence any vendor, supplier, or customer of the Company to cease doing business with the Company.

The contract also contained a provision regarding handling and disclosure of confidential information, which provides in part as follows:

... Each party shall handle Proprietary Information received from the other party with a high degree of care. Disclosure of Proprietary Information shall be restricted to those individuals who need access to it to ensure proper performance of the Services.
⅜ ⅜ ⅝
Each party shall promptly return all Proprietary Information relating to this Agreement to the disclosing party upon its request or upon termination of this Agreement, whichever occurs first. Each party may retain a copy of Proprietary Information for its internal records, subject to the restrictions set forth in this Section. This Section shall survive termination of this Agreement.

Energy Facility Services later merged into EMS. EMS subsequently terminated Shary’s personal services contract on April 12, 2008. EMS filed a petition on May 13, 2009, alleging that Shary breached the contract’s non-compete covenant. EMS also requested a temporary restraining order, a temporary injunction, and a permanent injunction to prevent Shary from violating the contract’s non-compete covenant. The trial court granted EMS’s request for a temporary restraining order on May 13, 2009, and set a hearing on EMS’s request for a temporary injunction for May 22, 2009.

The trial court heard argument from both parties at the May 22, 2009 hearing addressing whether the non-compete covenant was unenforceable as a matter of law. The trial court also heard argument regarding whether it was necessary for the trial court to hear testimony regarding the validity of the non-compete covenant before ruling on EMS’s application for a temporary injunction. At the conclusion of the hearing, the trial court asked both parties to submit supplemental briefing on the necessity of hearing such testimony. The trial court also set a hearing for further argument regarding EMS’s application for a temporary injunction on May 27, 2009.

On May 26, 2009, Shary submitted a supplemental brief addressing the need for testimony before the trial court ruled on EMS’s application for a temporary injunction. EMS did not submit a supplemental brief. At the second hearing, the trial court again heard argument regarding whether (1) the non-compete covenant was unenforceable as a matter of law; and (2) it was necessary for the trial court to hear testimony before ruling on EMS’s application for a temporary injunction.

After the May 27, 2009 hearing, the trial court signed an order denying EMS’s application for a temporary injunction and stated as follows: “Having considered the face of the contract, applicable law, and the arguments of counsel, the Court determines that the Application must be DENIED.” The trial court predicated its denial of EMS’s application for a temporary injunction on findings that “EMS is not likely to succeed on the merits of its claim that Shary is violating the non[-]compete provision at issue” because the non-com pete covenant is not (1) “ancillary to or part of an otherwise enforceable agreement;” or (2) a reasonable restraint. EMS appeals from the order denying its application for a temporary injunction.

EMS contends on appeal that the trial court abused its discretion when it denied EMS’s application for a temporary injunction without hearing testimony. According to EMS, the trial court should have heard evidence addressing whether the non-compete covenant (1) was “ancillary to or part of’ the personal services contract; (2) contained reasonable restraints; and (3) should be reformed if it is determined to be overbroad.

Standard of Review

A temporary injunction preserves the status quo until trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002). To obtain a temporary injunction, the applicant must plead a cause of action against the defendant and show both a probable right to recover on that cause of action and a probable, imminent, and irreparable injury in the interim. Id. To show a probable right of recovery, the applicant must present evidence to sustain the pleaded cause of action. IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197 (Tex.App.-Fort Worth 2005, no pet.). An injury is irreparable when the injured party cannot be adequately compensated in damages or if damages cannot be measured by any certain pecuniary standard. Butnaru, 84 S.W.3d at 204.

EMS argues that we should review the trial court’s order denying its application for a temporary injunction de novo because “the enforceability of a [non-compete covenant] is a question of law.” See Martin v. Credit Prot. Ass’n, Inc., 793 S.W.2d 667, 668-69 (Tex.1990) (op. on reh’g). Specifically, EMS argues that we should review the trial court’s denial of its application for a temporary injunction under the Texas Covenants Not to Compete Act (Tex. Bus. & Comm.Code Ann. §§ 15.50-.52 (Vernon 2002)).

This court has held that the Texas Covenants Not to Compete Act does not preempt the common law relating to temporary injunctions. EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 695 (Tex.App.-Houston [14th Dist.] 2004, no pet.); see also Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 238-39 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (same). “[T]he clear language of the [Texas Covenants Not to Compete Act] expresses an intention to govern only final remedies. By its very nature, a temporary injunction is not a final remedy. Accordingly, we look to the common law rules governing temporary injunctions in determining whether the court below properly denied the application.” Younker, 154 S.W.3d at 695.

Under the common law, the decision to grant or deny a temporary injunction lies within the sound discretion of the trial court. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). A trial court does not abuse its discretion by granting a temporary injunction if some evidence supports its decision. Sharma v. Vinmar Int'l, Ltd., 231 S.W.3d 405, 419 (Tex.App.-Houston [14th Dist.] 2007, no pet.). In reviewing the trial court’s exercise of discretion, the appellate cornet must draw all legitimate inferences from the evidence in the light most favorable to the trial court’s decision. Id. When no findings of fact or conclusions of law are filed, the trial court’s determination of whether to grant or deny a temporary injunction “must be upheld on any legal theory supported by the record.” Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); see Tom, James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 884 (Tex.App.-Dallas 2003, no pet.).

We review the trial court’s determinations on a question of law de novo. Walker v. Packer, 827 S.W.2d 833, 849 (Tex.1992). The enforceability of a non-compete covenant is a question of law. Martin, 793 S.W.2d at 668-69. Therefore, we review a trial court’s determination on the enforceability of a non-compete covenant de novo. See id.; Walker, 827 S.W.2d at 849. The legal issues before a trial court at a temporary injunction hearing are whether the applicant showed a probability of success and irreparable injury. Cobb, 109 S.W.3d at 882-83. The underlying merits of the controversy are not presented. Id. Accordingly, any appeal of an order granting or denying a temporary injunction based on a non-compete covenant does not present for appellate review the ultimate question of whether the covenant is enforceable under Texas Business and Commerce Code sections 15.50-.52. Id. In reviewing a trial court’s granting or denying of an application for a temporary injunction, we review only the trial court’s exercise of discretion in determining that a plaintiff did not show (1) likelihood of success on the merits at trial; or (2) irreparable injury. Id. at 883.

Analysis

A non-compete covenant is unenforceable unless it satisfies Texas Business and Commerce Code section 15.50(a):

[A] covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.

Tex. Bus. & Com.Code Ann. § 15.50(a).

EMS first argues that the trial court abused its discretion when it denied EMS’s application for a temporary injunction without hearing testimony regarding whether the non-compete covenant was “ancillary to or part of’ the personal services contract.

For a non-compete covenant to be “ancillary to or part of an otherwise enforceable agreement,” the employer must establish that (1) “the consideration given by the employer in the otherwise enforceable agreement ... give[s] rise to the employer’s interest in restraining the employee from competing;” and (2) “the covenant [is] designed to enforce the employee’s consideration or return promise in the otherwise enforceable agreement.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 849 (Tex.2009). Unless both requirements are satisfied, the non-compete covenant “is a naked restraint of trade and unenforceable.” Id. “[B]usiness goodwill and confidential or proprietary information” are examples of interests that warrant protection by a non-compete covenant. Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 649 (Tex.2006). An enforceable non-compete covenant must be designed to enforce the return promises made by the employee. Id. An employer may expressly or impliedly promise to provide an employee with confidential information:

... if the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee for the employee to accomplish the contemplated job duties, then the employer impliedly promises to provide confidential information and the covenant is enforceable so long as the other requirements of the Covenant Not to Compete Act are satisfied.

Fielding, 289 S.W.3d at 849.

EMS argues that evidence is necessary to determine whether EMS impliedly promised to provide confidential information to Shary, and whether the implied promise was ancillary to EMS’s and Shary’s agreement not to disclose any confidential information received. We agree.

Under Fielding, an employer may impliedly promise to provide confidential information to an employee “if the nature of the employment for which the employee is hired will reasonably require the employer to provide confidential information to the employee to accomplish the contemplated job duties[.]” Id. at 845. To determine if there is an implied promise, the court must analyze the circumstances surrounding the employee’s employment and determine whether those circumstances “necessarily involved the provision of confidential information to” the employee “before [the employee] could perform the work [the employee] was hired to do[.]” See id. at 851.

In this case, the trial court denied EMS’s application for a temporary injunction without hearing evidence regarding the circumstances surrounding Shary’s employment with EMS. Therefore, the trial court could not have considered whether, under Fielding, (1) EMS impliedly promised to provide confidential information to Shary; and (2) EMS’s implied promise, if any, was “ancillary to or part of’ EMS’s and Shary’s agreement not to disclose any confidential information received from the other party. See id. at 850-52.

Shary argues that the trial court did not abuse its discretion because the non-compete covenant was unreasonable as a matter of law. See Davis, 571 S.W.2d at 862 (When no findings of fact or conclusions of law are filed, the trial court’s determination of whether to grant or deny a temporary injunction “must be upheld on any legal theory supported by the record.”); Cobb, 109 S.W.3d at 884 (same).

We review a trial court’s determination of whether a non-compete covenant is reasonable de novo. Martin, 793 S.W.2d at 668-69; Walker, 827 S.W.2d at 849. But we do not address the ultimate issue of whether the non-compete covenant is enforceable. Cobb, 109 S.W.3d at 882-83. We address only the trial court’s determination of whether a non-compete covenant is reasonable to determine if the trial court abused its discretion in determining whether a plaintiff established that it would (1) likely succeed on the merits of the issue at final trial; or (2) suffer irreparable injury. See id. Restraints are unreasonable if they are broader than necessary to protect the legitimate interests of the employer. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 681-82 (Tex.1990); John R. Ray & Sons, Inc. v. Stroman, 923 S.W.2d 80, 85 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

The non-compete covenant states as follows:

[Shary] agrees for 2 years following the termination of this agreement not to solicit, induce, recruit, or encourage any of the Company’s employees to leave their employment, nor will [Shary], directly or indirectly: (i) solicit any of the Company’s customers existing as of the date of termination or (ii) take any action to divert business from the Company or influence any vendor, supplier, or customer of the Company to cease doing business with the Company.

Shary argues that the non-compete covenant was unenforceable as a matter of law because “[i]t prohibits him from soliciting any customers that EMS had as of the date that he left EMS, regardless of whether he had any involvement with those customers while at EMS.” (emphasis in original).

A restraint on client solicitation in a personal services contract is over-broad and unreasonable if it extends to clients with whom the employee had no dealings during his employment. Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 386-88 (Tex.1991); Stroman, 923 S.W.2d at 85. However, a prohibition against contacting existing customers does not necessarily equate to a prohibition against contacting customers with whom the former employee had no dealings. A restraint on client solicitation in a personal services contract limited to current customers is not necessarily unreasonable on its face. See Henshaw v. Kroenecke, 656 S.W.2d 416, 417-18 (Tex.1983).

In Henshaw, for example, Henshaw and Kroenecke created a two-person partnership using an agreement containing a non-compete covenant prohibiting Kroenecke from “compet[ing] with Henshaw in the business as then carried on by the partnership for a period of three years from the date of termination.” Id. at 417. The partnership agreement stated that “ ‘competition’ for the purposes of [the non-compete covenant] shall have the limited definition of providing any similar services to the then clients of the partnership or to those clients who have ceased being clients within the twelve months immediately preceding such termination.” Id. Kroenecke argued that the non-compete covenant was unreasonable and unenforceable. Id. at 418. The court analyzed the circumstances under which the non-compete covenant was entered and held that the non-compete covenant was not unreasonable. Id.

Contrary to Shary’s suggestion, the non-compete covenant at issue here does not necessarily prohibit Shary from contacting customers with whom he had no dealings. Rather, the non-compete covenant states that Shary cannot “solicit any of the Company’s customers existing as of the date of termination.” Depending on what the evidence shows, the non-compete covenant may prohibit Shary from contacting customers with whom he had no dealings or it may not. Determining whether the non-compete covenant is a reasonable restraint depends on the circumstances surrounding execution of the contract; the universe of customers covered by the non-compete covenant; and whether Shary had dealings with all of the customers in that universe, or only some of them. See id.; see also Haass, 818 S.W.2d at 386-88.

We conclude that the trial court abused its discretion when it denied EMS’s application for a temporary injunction without hearing testimony regarding whether the non-compete covenant was (1) “ancillary to or part of’ the personal services contract; and (2) a reasonable restraint. See Sharma, 231 S.W.3d at 419.

Conclusion

We reverse the trial court’s May 27, 2009 order denying EMS’s application for a temporary injunction and remand this case for further proceedings in accordance with this opinion.

      . This is an accelerated interlocutory appeal pursuant to Texas Civil Practice and Remedies Code section 51.014(a)(4). Tex. Civ. Prac. & Rem.Code Ann § 51.014(a)(4) (Vernon 2008).

      . Because we conclude that the trial court abused its discretion when it denied EMS's application for a temporary injunction without hearing testimony regarding whether the non-compete covenant was "ancillary to or part of” the personal services contract and a reasonable restraint, we need not address EMS's second issue regarding reformation of the non-compete covenant.


text:
    Dan HERNANDEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 14-08-00787-CR.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 16, 2010.

      Keisha L. Smith, Houston, for appellant.
    David Christopher Newell, Houston, for appellee.
    Panel consists of Chief Justice HEDGES and Justices SEYMORE and SULLIVAN.
   OPINION

CHARLES W. SEYMORE, Justice.

Appellant, Dan Hernandez, Jr., was convicted of murder and sentenced to life imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to support the verdict and the trial court erred by submitting a certain jury instruction. We affirm.

I. BACKGROUND

According to the State’s evidence, on April 29, 2005, appellant, Antonio Lopez, and Artemio Lopez were at the shop owned by Gilberto Garcia, their employer. Gilberto instructed these men to drive to Omar Garza’s apartment to retrieve a big-screen television. Gilberto also instructed appellant to speak with Omar regarding property he allegedly stole from Gilberto. Antonio testified that Gilberto told appellant “to talk to [Omar] nicely and not to harm him, just talk to him nicely and tell him to return the gold and to return the weapon.” Appellant, Antonio, and Artem-io took one of Gilberto’s trucks to Omar’s apartment. While enroute, appellant expressed he “was going to ask [Omar] to return the guns and the jewelry ... he stole from Gilberto.” Appellant further stated, “Don’t worry about it. I’m just going to talk to this guy. Let me do the talking.”

When appellant, Antonio, and Artemio arrived at Omar’s apartment, Noel Lopez and a man named Luis were already there and helped move the television into Gilberto’s truck. According to Noel, when he and Luis arrived, Omar allowed them to enter his apartment and then left.

After the television was loaded, Omar returned in his SUV. He approached the men and “saluted everybody.” Appellant met Omar and began talking to him. Noel testified that appellant put his hand on Omar in a friendly manner. Appellant told Omar “he knew that he got the guns and the gold.” Omar then pushed appellant and pulled out a small, black automatic handgun. Antonio tried to take the gun, but Omar was too quick and cocked the gun. Antonio ran to his truck and heard a gunshot. After opening the door to the truck, he heard a second gunshot. Artem-io and appellant entered the truck, and the men drove away. Following the first gunshot, Noel and Luis drove away.

Once in the truck, appellant became upset and “freaked out.” He stated, “I had to [shoot] him because he pulled out a gun,” and “He made me do it. I mean, it could have been anybody else.” Later that night, the men met with Gilberto and relayed what had occurred.

The police were contacted after a family discovered Omar’s body lying in the parking lot. Officers found a Glock 9-millime-ter handgun near Omar’s body. The Glock was loaded with Remington 9-mil-limeter ammunition. Two casings from Federal 9-millimeter bullets were found nearby. According to Homicide Sergeant Craig Clopton, the lead investigator, the casings did not come from the Glock. The medical examiner testified that Omar had a gunshot wound to the upper chest and a fatal gunshot wound to the head. He explained that the head wound was caused by a firearm held from “2 to 3 inches” to “2 to 3 feet” from Omar, and the bullet path through Omar’s head was back to front, left to right. The chest wound was a “contact gunshot wound,” meaning the muzzle of the gun was held against Omar’s skin when the gun was fired. The medical examiner was unable to determine what type of gun was used.

After some difficulty locating appellant, he was arrested and charged with murder. At trial, the State introduced several recorded phone conversations between appellant and his brother and other unidentified persons in which appellant asked the other person to have “G” or “Gilbert” (apparently referring to Gilberto) swear in an affidavit that he neither knows appellant nor sent him to Omar’s apartment complex. During these conversations, appellant also explained that to prevail on self-defense, he would have to be charged with possession of a “pistol.” Following trial, the jury convicted appellant.

II. Juky Charge Error

We begin with appellant’s second issue, in which he contends the trial court erred in submitting an instruction to the jury pursuant to subsection 9.31(b)(5) of the Penal Code. See Tex. Penal Code Ann. § 9.31(b)(5) (Vernon Supp.2009). When reviewing charge errors, we first determine whether there was error in the charge. Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App.2009). If error existed, we then determine whether harm occurred. See id.

The relevant portion of the charge was submitted as follows:

[T]he use of force by a defendant against another is not justified if the defendant sought an explanation from or discussion with the other person concerning the defendant’s differences with the other person while the defendant was carrying a weapon in violation of the law.
A person commits an offense if he intentionally, knowingly, or recklessly, carries on or about his person a handgun.
“Handgun” means any firearm that is designed, made, or adapted to be fired with one hand.

A charge limiting a defendant’s right to self-defense is properly given when (1) self-defense is an issue, (2) there are facts in evidence showing that the defendant sought an explanation from or discussion with the victim concerning the defendant’s differences with the victim, and (3) the defendant was unlawfully carrying a weapon. See Tex. Penal Code Ann. § 9.31(b)(5)(A); see also Lee v. State, 259 S.W.3d 785, 789 (Tex.App-Houston [1st Dist.] 2007, pet. ref'd). When a defensive issue is raised by the evidence and a charge on the issue is properly requested, the issue must be submitted to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993).

There was evidence Gilberto instructed appellant to confront Omar about items he had allegedly stolen from Gilberto. Appellant approached Omar and told him “[I know] that [you] got the guns and the gold.” Appellant argues this evidence does not support a subsection 9.31(b)(5) instruction because he sought an explanation from Omar concerning differences between Gilberto and Omar, not between appellant and Omar.

The term “differences” is not defined in the statute. Under the canons of statutory construction, we are to construe a statute according to its plain language. Edwards v. State, 273 S.W.3d 919, 921 (Tex.App.-Houston [14th Dist.] 2009, no pet.). In determining the plain meaning of the language of a statute, “[w]ords and phrases shall be read in context and construed according to the rules of grammar and common usage.” Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). The plain meaning of “differences” is a “disagreement of opinion,” or “an instance of disagreement or a point upon which there is disagreement.” Webster’s Third Int’l Dictionary 629 (1993) (third definition of “difference”).

We have found one case in which the State utilized subsection 9.31(b)(5) to limit a self-defense theory where a person sought out the victim to discuss the victim’s differences with a third person. In Davis v. State, the defendant recruited three assailants to retrieve money from the victim that had been stolen from the defendant. 276 S.W.3d 491, 494 (Tex.App.-Waco 2008, pet. ref'd). The defendant drove the assailants to the victim’s home and supplied them with handguns. Id. The assailants broke into the victim’s home and demanded the money. Id. The victim began shooting, and one of the assailants returned gunfire killing the victim. Id. At trial, the defendant was denied a self-defense instruction. Id. at 498. The court held, “[A]lthough [the defendant] argues that entry into the trailer was for purposes other than a discussion of differences, [ie., they were supposed to retrieve the stolen money,] the evidence establishes as a matter of law that the assailants sought interaction with [the victim] over the stolen money while the assailants were illegally carrying handguns.” Id. Therefore, the defendant was not entitled to a self-defense instruction. Id. at 499; see also Williams v. State, 35 S.W.3d 783, 786 (Tex.App.-Beaumont 2001, pet. ref'd) (“[I]f the evidence is undisputed that force was not justified as a matter of law because of section 9.31(b)(5), then a self-defense instruction is barred.”).

Omar allegedly possessed weapons and jewelry belonging to Gilberto; thus, there was disagreement regarding right to possession. Appellant sought to discuss this disagreement with Omar. Hence, we reject appellant’s argument that he had no “differences” with Omar.

Appellant also argues there was no evidence that he was carrying a weapon because the record supported the State’s contention that the gun found at the scene belonged to Omar and, while some evidence indicates two guns were at the scene, no witness testified appellant possessed a weapon. However, appellant’s admission that he shot Omar, coupled with the discovery of bullet casings that did not come from the gun found at the scene, supported an inference appellant was carrying and used a gun during his confrontation with Omar.

In sum, the trial court did not err by submitting a subsection 9.31(b)(5) instruction. Accordingly, we overrule appellant’s second issue.

III. Legal and Factual Sufficiency

We next consider appellant’s first issue in which he contends the evidence is legally and factually insufficient to support the jury’s finding that appellant acted with the requisite intent to commit murder and rejection of his self-defense claim.

The initial burden to produce evidence supporting self-defense rests with the defendant. Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003). Once evidence is produced, the burden shifts to the State to disprove the defense beyond a reasonable doubt. Id. This burden of persuasion is not one that requires the production of evidence, but requires only that the State prove its case beyond a reasonable doubt. Id. When a jury finds the defendant guilty, there is an implicit finding against self-defense. Id.

In a legal-sufficiency review, we consider all of the evidence in the light most favorable to the verdict and decide whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App.2000). When reviewing a legal-sufficiency challenge on the issue of self-defense, a reviewing court views the evidence in the light most favorable to the verdict to see if any rational trier of fact could have found (1) the essential elements of murder beyond a reasonable doubt, and (2) against appellant on the self-defense issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991).

In examining a factual-sufficiency challenge, we review all the evidence in a neutral light and set aside the verdict only if (1) the evidence is so weak that the verdict “seems clearly wrong or manifestly unjust” or (2) the verdict is “against the great weight and preponderance of the evidence.” See Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App.2006) (quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex.Crim.App.2006)). Although we may substitute our judgment for the jury’s when considering credibility and weight determinations, we may do so only to a very limited degree and must still afford due deference to the jury’s determinations. See id. (quoting Watson, 204 S.W.3d at 415, 417). In a factual-sufficiency review of the rejection of a self-defense claim, we view “all of the evidence in a neutral light and [ask] whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.” Zuliani, 97 S.W.3d at 595.

Several witnesses testified that, moments after the shooting, appellant admitted he shot Omar. Further, Omar sustained a contact gunshot wound to the chest and was shot in the back of the head at close range. We conclude this evidence supported a finding that appellant intentionally or knowingly caused the death of Omar or intended to cause serious bodily injury and intentionally committed an act clearly dangerous to human life that caused the death of Omar. See Tex. Penal Code Ann. § 19.02(b)(l)-(2) (Vernon 2003) (describing the elements of murder). Hence, this case turns on whether there is legally and factually sufficient evidence supporting the jury’s rejection of appellant’s self-defense theory.

As discussed supra, the jury was instructed that self-defense is not justified if (1) appellant sought an explanation from or discussion with Omar concerning his differences with Omar (2) while illegally carrying a handgun. See id. § 9.31(b)(5)(A). It is undisputed that appellant approached Omar and broached the subject of Gilberto’s stolen property. We previously explained why this evidence supported the first prong of subsection 9.31(b)(5). Thus, we must determine whether the evidence supports the contention that appellant was illegally carrying a handgun.

The State presented no testimony referring to the gun used by appellant as a “handgun.” However, such fact may be determined from circumstantial evidence. See Pizzini v. State, 981 S.W.2d 367, 368-69 (Tex.App.-San Antonio 1998, pet. ref'd). Two casings from Federal 9-millimeter bullets were found near Omar’s body; these casings did not match the bullets found in the 9-millimeter Glock handgun. This evidence supported an inference that two firearms were present during the altercation. Appellant admitted to others that he shot Omar, and testimony that Omar drew a gun, as opposed to two guns, supports an inference that appellant used his own gun. Eyewitnesses testified they did not see appellant with a gun, supporting an inference that the firearm carried by appellant was small enough to be concealed on his person. The medical examiner testified that he could not determine what type of gun fired the bullets that struck Omar. However, he testified that the contact gunshot wound to Omar’s chest was “consistent ... with a pistol actually being held to [Omar’s] chest and then fired.” Finally, appellant was recorded on the telephone stating, “If I take it to trial, ... I’m gonna beat it on a self-defense case, right? ... If I beat it on a self-defense, I still, alright, I still gotta be charged with a pistol. You know. And then they can charge me aggravated [with a pistol], because I shot somebody.” Based on this evidence, the jury could have reasonably inferred that appellant was carrying and used a handgun against Omar. We further note that no evidence suggested appellant used a non-handgun firearm.

After viewing all the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found beyond a reasonable doubt that appellant committed the essential elements of murder and was not justified in using deadly force. Viewing the evidence in a neutral light, we conclude that the evidence taken alone is not too weak to support these findings, and proof of guilt is not against the great weight and preponderance of the evidence. Accordingly, we hold that the evidence is legally and factually sufficient to support the jury’s implied finding against appellant’s self-defense theory and that appellant acted with the requisite intent. We overrule appellant’s first issue.

We affirm the judgment of the trial court.

      . We acknowledge that without definition, “differences” between the victim and the defendant claiming self-defense is subject to overly-broad application; it can refer to a disagreement as serious as murder-for-hire gone badly or as trivial as which NFL team is the best.

      . The State refers to an unpublished opinion in which the Dallas Court of Appeals held that a defendant sought to discuss his differences with the victim because the victim had harassed the defendant's wife and she told the defendant to “do something.” Casares v. State, No. 05-02-01394, 2003 WL 22332374, at *3 (Tex.App.-Dallas Oct. 14, 2003) (mem. op., not designated for publication), aff'd 2005 WL 77049 (Tex.Crim.App.2004) (mem. op., not designated for publication). However, in affirming the Dallas Court of Appeals's judgment, the Court of Criminal Appeals explained that the evidence shows that "before this incident, there had been a degree of antagonism between the [defendant and the victim].” Casares, 2005 WL 77049, at *3. Thus, Casares is distinguishable from the present case, where the only evidence relative to appellant's and Omar’s prior relationship was that they did not know each other.

      . In the present case, the State did not contend at the charge conference that the evidence conclusively established that deadly force was not justified because of subsection 9.31(b)(5).

      . Evidence appellant shot Omar with a gun that was concealed on his person supported an inference that the gun was small, but a finding that the gun was a handgun based on nothing more would have been speculative. See Hooper v. State, 214 S.W.3d 9, 15-16 (Tex.Crim.App.2007) (explaining that mere speculation cannot support a finding beyond a reasonable doubt). Additionally, the medical examiner’s statement that the contact gunshot wound was consistent with a pistol having been held against Omar's chest did not rule out other types of guns and thus did not alone support a handgun finding. However, these circumstances taken together with appellant's acknowledgment that a claim of self-defense entailed his being charged with possession of a pistol moved the jury's handgun finding beyond conjecture into the realm of reasonable inference. See Pizzini, 981 S.W.2d at 369 ("[I]f the State proved the use of a pistol, the jury could reasonably infer the use of a handgun.”).