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Civil Litigation Click here for the full text of this decision FACTS:When Exxon terminated a lease agreement with Howell Pipeline concerning eight oil storage tanks, it left behind some oil and “tank bottoms,” sediment at the bottom of the tanks. Howell claimed the leftover crude made Exxon a holdover tenant still required to pay rent. Both parties claimed the other should have paid the $1.6 million in cost to clean the tanks. Based on the jury’s answers, the trial court awarded neither party anything. HOLDING:Affirmed in part; reversed and remanded in part for rendition of judgment. Exxon should have prevailed. The court finds no evidence supporting Howell’s argument that Exxon was a holdover tenant. There was some evidence that Exxon was not in possession of the premises and could not have removed the oil without Howell’s cooperation. Additionally, there is evidence that Howell asked Exxon to holdover, but the parties did not agree to an absolute duty for Exxon to pay rent. Further, there was evidence to support the jury’s finding that it was Howell that breached the lease by refusing to pay for clean-up of the tank bottoms. Howell disputes that finding, and Exxon disputes the jury’s further finding that Exxon nevertheless did not suffer damages from the breach. Though nothing in the parties’ agreements specifically deals with clean-up costs, the court finds some evidence that any expectation that Exxon would clean the tanks was ambiguous. Exxon did not waive the right to recoup any money it paid to clean up, the court continues, and Exxon established as a matter of law that it paid $799.236.09 for the clean-up, and it should have been awarded that amount by the jury. Further, Exxon also proved it was entitled to more than $300,000 in attorneys’ fees incurred to defend the breach of contract claim Howell filed against it. Finally, the court rejects Howell’s assertion that Exxon’s counsel’s jury argument was inappropriate, necessitating a new trial. Several times, Exxon’s counsel asserted personal beliefs about the credibility of the witnesses. Howell never got a court ruling on its one objection to the arguments, nor did it ask for an instruction to disregard. Even if it had, there is a difference between an argument that “witness A was not credible,” and “I believe witness A was not credible.” The difference is “narrow, but one that cannot be described as inflammatory.” OPINION:Brister, C.J.; Brister, C.J., Yates and Hudson, JJ.

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