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Click here for the full text of this decision FACTS:ExxonMobil Corp. appeals from a take nothing judgment in its suit against Kinder Morgan Operating LP “A” f/k/a Enron Liquids Pipeline Operating Limited Partnership, Kinder Morgan Inc.; ONEOK Bushton Processing Inc. f/k/a Enron Gas Processing Co. and KN Processing Inc.; and Enron Liquids Pipeline Co. n/k/a Kinder Morgan GP Inc. (appellees). In 1987, ExxonMobil and appellees entered into a gas processing agreement (GPA) under which appellees agreed to process ExxonMobil’s natural gas. In the present action, ExxonMobil sued appellees claiming, inter alia, breach of contract, conversion, fraudulent inducemen and fraudulent concealment, all relating to the gas processing relationship. ExxonMobil’s primary claim is that appellees did not provide it with all of the propane to which it was entitled from the natural gas. The trial court granted a directed verdict favoring appellees on the conversion claim. The jury returned a verdict favoring appellees on all remaining claims. The trial court entered a take-nothing judgment in favor of appellees. HOLDING:Affirmed. ExxonMobil’s theory is that appellees breached the GPA by using methane instead of propane to enhance BTUs in the residue gas stream, retaining the propane that should have been used for BTU control, and selling that propane for a profit. Even if ExxonMobil is correct that appellees should have used propane attributable to ExxonMobil and not methane from another source for BTU control, the propane in question should not have been extracted and saved as a plant product; it should have been left in (or reinjected into) the residue gas stream. In other words, it was logical for the jury to conclude that under the GPA, ExxonMobil would not have been entitled to receive as a plant product the propane that it claims should have been used for BTU control. At most, ExxonMobil would have been entitled to have the propane left in or reinjected into the residue gas stream. Question No. 2, the sole breach of contract question in the charge, permitted the jury to find a breach-of-contract only if ExxonMobil proved that it did not get all of the plant products to which it was entitled. The charge did not permit the jury to find a breach of contract simply on evidence that methane was used instead of ExxonMobil’s propane to control BTUs in the residue gas stream. ExxonMobil does not allege charge error on appeal. Under the GPA, it was entitled to two things: 1. a residue gas stream with 950 BTU, and 2. plant products, including propane in excess of the amount that would be required to achieve the 950 BTU requirement. Under ExxonMobil’s own theory, the jury could have logically concluded that ExxonMobil would not have been entitled to any more propane as a plant product than what it received. The court finds that the jury’s answer to Question 2 was not against the great weight and preponderance of the evidence. ExxonMobil contends that the trial court erred in granting a directed verdict against its conversion claim. ExxonMobil essentially argues that the manner in which appellees performed their obligations under the contract converted one of the very products that the contract was entered into to produce (or extract). In essence, ExxonMobil claims that it did not receive all of the propane that it was entitled to under the GPA. Regardless of how they are phrased, ExxonMobil’s contract and conversion claims are the same factual claims stated alternatively under contract and tort theories, the court decides. ExxonMobil contends that the trial judge commented on the weight of the evidence in front of the jury when he said, “There is no evidence this was an illegitimate deal.” The record does not demonstrate that ExxonMobil objected to the trial court’s comments. It appears more likely that he was referring to the swap agreement between the related entities, the court states. ExxonMobil does not cite to any evidence that this swap agreement standing alone was illegitimate. The court concludes that the judge’s comment was not so blatantly and obviously prejudicial that an instruction would not have cured it. ExxonMobil next complains about the judge’s interaction with certain witnesses during trial. The court notes that ExxonMobil failed to object to the comments and declines to hold that the possible effect of the comments merits a new trial. OPINION:Hedges, CJ; Hedges, Yates and Senior Chief Justice Murphy.

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