XTO Energy Inc. v. Smith Production Inc.

The majority concludes that a receiving party cannot change its election within thirty days after receipt of the notice because the Notice Period expires upon the earlier of (a) thirty days after receipt of the Notice, or (b) the date on which the receiving party responds. Because I do not believe this interpretation is consistent with the contracts’ language, which is ambiguous at best, I respectfully dissent.

I. Applicable PRINCIPLES of Contract Construction

In determining whether the language of a contract is ambiguous, we look to the contract as a whole, in light of the circumstances…