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Click here for the full text of this decision FACTS:Double Diamond Inc. is the owner and developer of a subdivision called White Bluff, to which Hilco Electric Cooperative Inc., a nonprofit electric cooperative corporation, provides electricity. A dispute arose when Double Diamond objected to Hilco’s charges for extensions of distribution lines and other facilities required to provide electricity to White Bluff. The trial court granted Hilco’s motion for summary judgment in the amount of $439,456.28. HOLDING:Reversed and remanded. Double Diamond relies on Emmer v. Phillips Petroleum Co., 668 S.W.2d 487 (Tex. App. � Amarillo 1984, no writ). There, the court observed that when a contract is implied in fact, the law finds a mutual intent to contract from the facts and circumstances of the case. Whether that mutual intent exists, however, is a question of fact. Double Diamond brought forward summary judgment evidence to show that the parties continued for two years after August 1998 to deal with each other exactly as they had under the 1996 written agreement. Summary judgment proof also shows that Hilco never indicated until August of 2000 that it intended to charge under the tariff for the extension of its distribution system during the period in question. Finally, in his August 2000 letter, Hilco’s general manager said “effective immediately” the procedures in the tariff controlled, thereby implying that they had not previously controlled. Other courts imply an extension of the former contract. For example, Sieber & Calicutt, Inc. v. La Gloria Oil & Gas Co. involved a maintenance contract for services at a refinery owned by La Gloria. Sieber & Calicutt Inc. v. La Gloria Oil & Gas Co., 66 S.W.3d 340 (Tex. App. � Tyler 2001, pet. denied). For more than a year after the contract expired by its own terms, Sieber continued to perform maintenance services at the refinery and sent La Gloria invoices for those services. La Gloria continued to pay the invoices. A La Gloria employee died at the refinery after the contract’s expiration date, and a dispute arose about whether an indemnity agreement in the contract was still in effect. The Tyler Court held that, because the parties continued to perform under the contract after it had expressly expired, the indemnity provision of the contract was in effect on the date of the employee’s death. The court said, “An extension of time for performance may be implied as well as express. . . . When the exact duration of an extension of time is not express, the law will imply a reasonable time. . . . The extension of a term of a contract is the extension of all of its provisions.” The court finds no authority prohibiting parties from impliedly extending an agreement or entering into a new agreement after a written agreement expires. Last, the court rejects Hilco’s assertion that �304.4 of the Tariff requires a written agreement to modify the tariff. That section, by its plain terms, applies to agreements between Hilco and its members for “electric service.” Furthermore, a written agreement not required by law to be in writing may be modified by a later oral agreement, even though it provides that it can be modified only in writing. Based on this evidence and allowing Double Diamond the benefit of all doubts and reasonable inferences, the court finds that there is a genuine fact issue about whether the parties entered into an implied agreement after Aug. 2, 1998, which continued the former rates and charges rather than those in the tariff. Therefore, the trial court erred in finding as a matter of law that Hilco was entitled to charge the tariff rates for construction work done between Aug. 2, 1998, and Aug. 23, 2000. OPINION:Vance, J.; Gray, C.J., Vance and Davis (Davis not participating), JJ.

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