Schwartz v. Prairie Producing Co. , 1992 Tex. App. LEXIS 1554 ( 1992 )

COHEN, Justice,

concurring.

I agree with the opinion and the judgment that the sulphur clause has not been shown to control, as a matter of law, as the trial judge ruled.

In the first appeal of this case, there was no summary judgment evidence before us of industry practice. Without such evidence, I voted to hold that as a matter of law, the gas clause controlled. Now that the parties have produced evidence at trial of industry practice, it appears the contract is ambiguous. Because industry experts cannot agree which clause controls, a fact issue is presented for the jury. I believe the best way to resolve this dispute is to allow a full trial to a verdict, followed by any appropriate rulings on post-trial motions. The issue will then be before this Court a third time, and the Texas Supreme Court will have a second chance to rule on the meaning of a troublesome clause in a widely used standard form lease. See First Nat’l Bank v. Pursue Energy Corp., 799 F.2d 149 (5th Cir.1986) (construing the identical language in a Mississippi lease and holding that payment was required under the gas clause). This issue of contract construction needs to be settled by the Texas Supreme Court so that the industry and landowners will know whether the gas clause or the sulphur clause controls, or whether a jury must decide that issue on a case by case basis.