A Fight Over “Any”: Endeavor Energy Resources L.P. v. Energen Resources Corp.

Well lookee here, another fight involving ambiguity of the part versus the whole! This time, it involves any. And the tipster, once again, is Glenn West! I guess I have to put Glenn on retainer. (Glenn’s tip about a fight over and gave rise to this post from two months ago.)

The opinion in question is by the Texas Supreme Court in Endeavor Energy Resources L.P. v. Energen Resources Corp., No. 18-1187, 2020 WL 7413727 (Tex. Dec. 18, 2020) (PDF here). Here’s the language at issue, from an oil and gas lease:

Lessee shall have the right to accumulate unused days in any 150-day term during the continuous development program in order to extend the next allowed 150-day term between the completion of one well and the drilling of a subsequent well.

Here’s how the Texas Supreme Court summarized the dispute:

The issue on appeal is how to calculate the number of “unused days.” Endeavor argues that the agreement allows it to carry forward unused days across multiple 150-day terms. In the alternative, Endeavor contends the lease is at least ambiguous on this point such that the disputed language may not operate as a special limitation. Respondents Energen Resources Corporation and John Quinn, on the other hand, argue that the contested provision unambiguously allows unused days earned in any given term to be carried forward only once, to the next 150-day term. The trial court granted summary judgment for Energen and Quinn, and the court of appeals affirmed. Because we conclude that the provision at issue is ambiguous, we reverse the judgment of the court of appeals, render judgment for Endeavor on the title issue, and remand to the trial court for consideration of remaining issues.

I wouldn’t dream of rehashing the court’s opinion. All I care about is the ambiguity at the heart of the dispute—the ambiguous any in “any 150-day term.” Fix that ambiguity, no dispute.

Here’s how the Texas Supreme Court expressed the argument offered by one side:

We next consider the textual line of argument that formed the primary basis for the court of appeals’ holding. See 563 S.W.3d at 455. The Lease, in giving Endeavor “the right to accumulate unused days in any 150-day term … in order to extend the next allowed 150-day term,” distinctly refers to “any … term” as singular rather than plural in describing the period in which unused days may be accumulated. This, Energen contends, indicates that unused days can only come from the one immediately preceding term, not from multiple preceding terms flowing forward indefinitely. Likewise, Energen argues that unused days from any one term roll over only to the singular “next … term,” meaning the term immediately following that in which the unused days were accumulated.

Here’s how I describe the ambiguous any in A Manual of Style for Contract Drafting (MSCD) (the numbers in brackets refer to examples of ambiguous language and the alternative meanings they express):

Any exhibits similar ambiguity, except that it manifests itself in language of obligation (see [44]). Analogous to using any in [44] to convey the meaning of [44a] is how any is used in the sentence Take the name of any person who comes through the door: the speaker presumably had in mind that any means “every,” with the added implication that no one might come through the door. And analogous to use of any in [44] to convey the meaning of [44b] is how it’s used in Pick any card—the reasonable interpretation is that one is being invited to pick a single card. By contrast, with language of discretion (see [45]) the question is whether the drafter intended any to mean “one,” as in [45a], or “one or more,” as in [45b].

In the language at issue, I suggest that the choice is between any meaning “one” and any meaning “every.” It would be a straightforward to revise the language at issue to express the intended meaning, but not sufficiently straightforward for me to offer an alternative in this post. (Someone on Twitter saw fit to mock me for this, but as I said in this tweet in response, diagnosing the source of a dispute is one task; coming up with alternative language is a different task offering different lessons. There’s no reason why performing the first task should commit me to performing the second.)

What’s the moral of this story for drafters? You have a choice: ride the copy-and-paste train and indulge in legalistic nonsense, in which case you risk inflicting on your clients disputes of this sort (in addition to wasting time and money), or be an informed consumer of contract language. The road to being an informed consumer of contract language runs through MSCD.

What’s the moral of this story for courts? They can continue to treat ambiguity as a legal construct, even though that inevitably results in an improvised analysis. Or they can recognize that it falls within the scope of linguistics and as such has been subject to study, with the most detailed analysis being that offered in—you guessed it—MSCD.

Perhaps with time more courts will follow the Delaware Court of Chancery in citing my work. I’ll do what I can to facilitate that.