DK Trading & Supply v. Wink to Webster Pipeline

2026 Tex. Bus. 33

The Business Court of Texas,
Eleventh Division

DK TRADING & SUPPLY, LLC §
§
Plaintiff § Cause No. 25-BC11B-0073
v. §
§
WINK TO WEBSTER PIPELINE LLC
§
Defendant §
═══════════════════════════════════════
SYLLABUS1
═══════════════════════════════════════

In a suit on two contracts concerning a crude-oil terminal and pipeline,
respectively, the court holds on cross-motions for summary judgment that the contracts
are unambiguous and can be construed without resorting to extrinsic evidence. Analyzing
the terminal contract’s storage requirement in the context of the entire agreement, the
court concludes the terminal must allocate two tanks exclusively for the plaintiff’s use.
The court holds the pipeline-transportation contract’s “ship or pay” clause allows the
plaintiff to include all crude oil— including shipments paid with credits earned from past
billing periods—to reduce the deficiency payments owed when it fails to meet its crude-oil
commitment. However, plaintiff’s claim for miscalculated deficiency-payment billing as
to the earliest disputed invoices is barred for failure to deliver timely written notice, which
is a condition precedent to bringing suit that the court enforces according to the contract’s
plain terms.

1 NOTE: The syllabus was created by court staff and is provided for the convenience of the reader.
It is not part of the Court’s opinion, does not constitute the Court’s official description or
statement, and should not be relied upon as legal authority.
FILED IN
2026 Tex. Bus. 33 BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
5/27/2026

The Business Court of Texas,
Eleventh Division
DK TRADING & SUPPLY, LLC §
§
Plaintiff § Cause No. 25-BCllB-0073
v. §
§
WINK TO WEBSTER PIPELINE LLC
§
Defendant §

OPINION AND ORDER

9[1 Before the court are the Traditional Motion for Partial Summary Judgment

filed by Plaintiff DK Trading & Supply, LLC ("Delek"), the response filed by

Defendant Wink to Webster Pipeline LLC ("Wink"), and Delek's reply; and Wink's

Traditional Motion for Partial Summary Judgment, Delek's response, and Wink's

reply. Also before the court are Wink's Motion to Strike Delek's Traditional Motion

for Partial Summary Judgment, Delek's response, and Wink's reply; and Delek's

Motion to Strike Exhibits and Declaration of Keith Legrone, Wink's response, and

Delek's reply. The parties presented their arguments at a hearing before the court on

May 6, 2026. Having considered these filings, the parties' argument, and the

relevant law, the court partially grants Delek's motions and partially grants Wink's

motions for the reasons set forth below.
FACTUAL AND PROCEDURAL BACKGROUND

912 This case arises from the parties' 2021 agreements concerning crude-oil

storage at, and pipeline transportation from, a multi-tank terminal facility in

Midland County, Texas ("the Terminal"). The parties agree their motions center on

these two contracts: (1) the Terminal Services Agreement ("Terminal Agreement");

and (2) the Amended and Restated Transportation Services Agreement

("Transportation Agreement").

913 Under the Terminal Agreement, Wink agreed to provide Delek 1 with specified

"Storage Capacity" for the crude oil, to maintain connection to the pipeline, to

accept crude oil meeting either the Pipeline Tariff's quality specifications or Delek 's

unique specifications, and to stage deliveries to the pipeline. In turn, Delek agreed

to reimburse Wink for specified capital, operating, and maintenance costs for the

Storage Capacity; to make a monthly terminal service payment; to provide minimum

crude-oil inventory; and to make nominations as provided under the Transportation

Agreement.

914 Under the Transportation Agreement, Wink agreed to receive Delek's

nominated volumes of crude oil and deliver equivalent volumes at specified

destination points. Delek agreed to ship its volume commitment each true-up period

or pay a deficiency payment, to pay Wink's invoices on the stated timelines, and to

1
Delek W2W, LLC was the original party to the Terminal Agreement; the parties do not dispute
that its rights have since been assigned to Plaintiff DK Trading & Supply, LLC.
2
tender product that met certain quality specifications.

<jf 5 By its Motion, Delek asks the court to rule as a matter of law that: (1) the

Terminal Agreement (a) grants Delek exclusive use of two Terminal tanks to store

its designated crude oil and therefore (b) does not permit Wink to unilaterally store

other crude oil in those tanks; and that (2) under the Transportation Agreement, (a)

Delek's "Deficiency Payment" for each true-up period must be calculated based on

crude oil Delek actually shipped, whether or not Delek paid for that shipment with

Deficiency Credits; and (b) Wink's improper invoicing of those Payments

constitutes an event of default.

<jf 6 Wink's cross-motion for summary judgment seeks a ruling as a matter oflaw

against Delek's claims for: (1) declaratory judgment and breach of contract related

to the Terminal Agreement; and (2) breach of the Transportation Agreement

concerning six of the Deficiency Payment invoices for Delek's alleged failure to

timely dispute those invoices.

MOTION STANDARD

<jf7 "A party that moves for traditional summary judgment must demonstrate that

there is no genuine issue of material fact and that it is entitled to judgment as a

matter oflaw." EnergenRes. Corp. v. Wallace, 642 S.W.3d 502, 509 (Tex. 2022); see

TEX. R. CIV. P. 166a. The court takes as true all evidence favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts in the

nonmovant's favor. First Sabrepoint Cap. Mgmt., L.P. v. Farmland Partners Inc., 712

3
S.W.3d 75, 84 (Tex. 2025). In cases turning on contract interpretation, a movant

seeking summary judgment bears the burden to conclusively establish the correct

interpretation as a matter of law. See Kachina Pipeline Co.) Inc. v. Lillis, 471 S.W.3d

445, 450-52 (Tex. 2015). When the contract is unambiguous, its construction is a

question of law appropriate for summary judgment. Cmty. Health Sys. Pro. Sei'Vs.

Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017). If the movant meets its initial

burden, the burden then shifts to the nonmovant to raise a genuine issue of material

fact precluding summary judgment. See Wal-Mart Stores) Inc. v. Xerox State &- Loe.

Sols.) Inc., 663 S.W.3d 569, 584-85 (Tex. 2023).

ANALYSIS

A. The Terminal Agreement grants Delek exclusive use of two tanks.

<j/8 The parties agree the Terminal Agreement is unambiguous and can be

construed as a matter of law. "In doing so, [the court must] interpret contract

language according to its plain, ordinary, and generally accepted meaning unless the

instrument directs otherwise." Equinor Energy LP v. Lindale Pipeline) LLC, 731

S.W.3d 324, 327 (Tex. 2026). Contract construction requires "considering the

context in which words are used, avoiding constructions that render provisions

meaningless, and construing contract provisions together so as to give effect to the

whole." Rosetta Res. Operating, LP v. Martin) 645 S.W.3d 212, 219 (Tex. 2022)

(citations omitted). Although courts' "primary goal in contract construction is to

ascertain the true intentions of the parties, this 'intent' is a bit of a legal fiction."

4
Equinor Energy, 731 S.W.3d at 327 (internal citations and quotations omitted).

Instead, Texas courts are "really looking for something objective, not subjective-

hence our careful attention to the text of the contract itself." Id.

<J19 The parties also agree the Terminal Agreement requires that Wink "shall

provide services to Delek by providing the Storage Capacity for exclusive use by

Delek to ship crude oil." Terminal Agreement § 2.1. The parties diverge as to

whether Wink can satisfy that promise by providing crude-oil storage in any

combination of tanks commingled with other crude or whether Wink must provide

two Delek-designated tanks. The Agreement contains several operative clauses

answering the question:

• "Storage Capacity" is defined as "566,000 barrels, for the storage of
Delek's crude oil ... [to] be initially allocated among the Original Tanks,"
which are the Terminal's "Tanks 125169 and 125170." Id.§§ 1.28; 1.36.
No party disputes that 566,000 barrels 2 is the volume capacity of two
tanks.

• Wink shall make the Storage Capacity available to Delek "at all times
during the Term." Id.§ 2.1.

• Wink may store Delek's crude oil "in any tanks to which it has access" at
the Terminal. These "Substituted Tanks" may be used instead of the
Original Tanks as long as "such substitution maintains substantially
similar receipt, delivery, and crude segregation capabilities, does not
change or impact the available Storage Capacity, Terminal Service
Payment, or materially impact the maintenance costs identified within the
current Operating Budget, and Capital Budget." Id. §§ 1.36; 4.4.

• Delek must initially pay for a percent of Wink's capital expenditures to
"construct" the Storage Capacity and necessary "ancillary facilities," and

2
A "barrel" is 42 gallons of crude oil at a specified temperature and pressure. Terminal Agreement
§ 1.2.

5
must then reimburse Wink for costs to maintain and operate the Storage
Capacity "and any associated equipment." Icl. § 4.1-4.2. If any costs
cannot be "segregated from other costs incurred," they must be prorated
to determine Delek's share. Icl. § 4.2.

• The parties' agreement forecasts the maintenance and operating costs for
the "Delek Tanks Only," for which Delek would bear its equitable
allocation of total costs incurred. Icl. at Ex. A.

• Upon the Agreement's termination, Delek must "remove all crude oil,
including tank bottoms, from the tanks used to provide the Storage
Capacity, and[] reimburse [Wink] for any necessary cleaning cost to return
the Storage Capacity to service." See icl. § 3.2.

• Delek could choose to store its own Delek-grade crude oil or crude oil
satisfying the Pipeline Tariff. See icl. §§ 1.14, 2.1, and 5.1.

<j[lO Giving these terms their ordinary meaning and reading the Agreement in its

entirety, Wink agreed to provide crude-oil storage in two tanks to be exclusively used

by Delek. First, the Agreement repeatedly and consistently treats Storage Capacity

as comprising tangible facilities rather than an intangible amount of space-such as

by contemplating Delek's shared costs for the Storage Capacity's construction,

maintenance, and cleaning. And there would be no need to reference "segregated"

maintenance costs for the Storage Capacity if the term meant nothing more than a

volumetric promise of fungible storage space somewhere in the Terminal. Further,

the Agreement grants Delek the right to store its own unique-grade product, which

undisputedly could not be mixed ,vith tariff-grade crude oil. Though Wink claims

Delek has never exercised its right to store Delek-grade crude, the Agreement

noticeably omits any language creating differing storage obligations based on which

product Delek chooses to store. Both grades of crude must be stored "in the Storage

6
Capacity," which must be available to Delek "at all times." Id. §§ 2.1; 5.1. This

"Storage Capacity" must be provided in the form the parties originally negotiated in

the Agreement, regardless of whether Delek is exercising its right to store Delek-

grade oil and even if Wink now questions Delek's need for its own tanks. See

Sundown Energy LP v. HJSA No. 3, Ltd. P'ship, 622 S.W.3d 884, 889 (Tex. 2021)

(per curiam) ("[C]ourts are obliged to enforce the parties' bargain according to its

terms").

<Jill Not only was Delek granted two specific tanks from the beginning, but Wink

could use different tanks only by "substitution," which is the "designation of a

person or thing to take the place of another person or thing." BLACK'S LAW

DICTIONARY (12th ed. 2024). And "[i]f tanks are substituted, [Wink] shall provide

Delek with a revised" minimum number of barrels of product that Delek must

provide to operate those tanks. Terminal Agreement §§ 1.25; 2.2. In other words,

Wink can substitute one tank for an initial tank-it may do so multiple times over

provided the substitution does not alter Delek's pricing and certain other terms. But

specifying conditions for tank "substitution" would be unnecessary if the contract

had always allowed Wink to simply disseminate Delek's crude oil across as many

tanks as Wink wished. The Agreement also guarantees that Delek's use of the

Storage Capacity shall be "exclusive," which has little meaning if the agreement

were merely for a specified volume of storage in any combination of shared tanks.

See Sundown Energy, 622 S.W.3d at 889 (avoiding construction that would render

7
provisions meaningless).

<J[l2 These clauses reveal the parties' objective intent to allocate two tanks to

Delek. But courts must also "avoid constructions of contract language that would

lead to absurd results." Icl. Wink's proposed construction leads to an absurd result:

upon the Agreement's termination, Delek's obligation to empty and clean every tank

containing even a gallon ofDelek's crude. Faced with this absurdity, Wink proposes

that the clean-out clause applies only "in the event [Delek is] solo in that tank or []

the last man standing in that tank." But the court "cannot rewrite the parties'

contract or add to or subtract from its language." URI, Inc. v. Kleberg Cnty., 543

S.W.3d 755, 770 (Tex. 2018). Section 3.2's clean-out requirement applies to all

"tanks used to provide the Storage Capacity," without the conditional language

Wink adds. If the parties' bargained-for agreement of Delek-designated tanks were

stripped away, the contract would force Delek to drain third parties' crude oil from

Wink's tanks. It is only by adding to the contract that Wink can reach a reasonable

reading comporting with its position.

<jf 13 The Terminal Agreement grants Delek exclusive use of two tanks. While

those tanks may be substituted for other tanks, Wink gave Delek more than a

volumetric promise of Terminal storage. As to this issue, Delek's motion for

summary judgment is granted.

B. The court construes the Transportation Agreement's Deficiency Payments
clause in Delek's favor as a matter oflaw.

8
1. The Transportation Agreement requires all "actually shipped" crude
oil to reduce Delek's Deficiency Payments.

<jf 14 As to the Transportation Agreement, the parties disagree on the method for

calculating Deficiency Payments and applying Deficiency Credits. Under the

Agreement, Delek committed to ship a specified volume of crude oil each "True-Up

Period," which covered a certain (and confidential) number of months.

Transportation Agreement§ 1.07 (defining BaiTels per day); § 1.58 (defining True-

Up Period's total Volume Commitment based on number of days in the Period);

§ 1.65 (defining True-Up Period); § 1.67 (defining daily Volume Commitment in

Barrels per day).

<j[15 First, the Deficiency Payments: If Delek fails to ship its total Volume

Commitment by the end of the True-Up Period, Delek "shall make a payment to

[Wink] equal to"-

• Delek's Deficient Barrels, which is defined as: "for a particular
True-Up Period, the positive difference, if any, between the []
Volume Commitment for such True-Up Period and the Actual
Shipments";
• multiplied by a confidential multiplier.

Id. § 1.21; 7.03. In simplest form, omitting the force majeure prongs that neither

party invokes, the calculation is:

Deficiency Payment = (Volume Commitment - Actual Shipments) x Rate Multiplier.

<j[16 Second, the Deficiency Credits: After Delek pays Wink a Deficiency Payment,

Delek may, over the following "Deficiency Use Period," apply that Payment as a

9
credit "on a dollar-for-dollar basis against any charges" owed to Wink for Actual

Shipments in any month that exceed Delek's Monthly Volume Commitment. Id.

§§ 1.42; 7.03. Delek can apply Credits to exceed its commitment only if capacity

remains after all nominations for shipments not paid with Credits are satisfied. Id.

<j[l 7 The parties' dispute hinges on the interplay between Deficiency Payments and

Credits. To reduce its Deficiency Payments, Delek contends it may satisfy its multi-

month Volume Commitment with all shipments, even those paid for with Deficiency

Credits it previously accrued. Wink disagrees, pointing out that the Credits would

then operate to reduce both Delek's monthly shipment costs and its subsequent

Deficiency Payments. Delek is correct.

<jf 18 The "principle of freedom of contract reqmres us to recogmze that

sophisticated parties have broad latitude in defining the terms of their business

relationship, and courts are obliged to enforce the parties' bargain according to its

terms." Equinor Energy, 731 S.W.3d at 330. The Agreement's express terms

unambiguously deduct all Actual Shipments from Delek's True Up Volume

Commitment, regardless of how Delek paid for those shipments. Actual Shipments

could not be more plainly defined: "the number of Barrels of Product that [Delek]

actually shipped on the Pipeline during a True-Up Period." Transportation

Agreement § 1.01. Nothing in the Agreement requires Delek to pay a higher

Deficiency Payment in a subsequent True-Up Period based on its choice to use its

Credits against the cost for the higher volume it shipped in a previous month.

10
9119 Further, Wink's proposed construction cannot practically apply due to the

time periods used for each calculation. Deficiency Payments are calculated only at

the conclusion of a multi-month Period. Transportation Agreement §§ 7.03; 8.02

(describing Deficiency Payment calculations based on multi-month volume

commitment and billed at "the end of each True-Up Period"). Deficiency Credits, on

the other hand, are used to reduce excess-shipping charges that are calculated and

invoiced on a single-month basis. Id. §§ 7.03; 8.01 (describing monthly billing for

transportation charges and Deficiency Credits used for shipments in excess of the

Monthly Volume Commitment). Credits that are applied monthly would not

mathematically alter these multi-month totals, or "True Ups," that are inputted into

the Deficiency Payment calculation. Separating out a single month's shipment

amount to reduce it through Credits, as Wink requests, would violate the

Agreement's mandate to calculate each Deficiency Payment based solely on the

netting of each multi-month total. See id. § 7.03.

9120 Wink argues that Delek's construction threatens the parties' "ship or pay"

bargain by ultimately reducing Delek's payments in subsequent True-Up Periods. In

Wink's illustrative calculations, Delek ends up paying less than the full cost of its

Volume Commitment during a Period in which a month's overshipments were paid

with Deficiency Credits:

11
True Up Period Volume Commitment ef • I Delek Payment to W2W
Period A 1 Million Barrels 800!< Barrels Delek pays for for 1 million Barrels

(800K Act ual + 200 K Def icient)

Period B 1 Million Barrels 800!< Barrels Delek pays for 900!< Oarrels
but assume Delek
over-ships by 1001< (700K Actual +200K Deficiency Payments)
in one month of tile
Twe Up Period Tile remaining 100K is covered wit/I prior
earned Deficiency Payments

Total 2 MIiiion Barrels 1.6 MIii/on Barrels Payment for 1.9 MIii/on Barrels

True, but Delek also pays more than the volume it actually shipped. 3 This

compromise was the bargain the parties struck and drafted into their contract; the

court will not retrade their bargain for them. See Am. Midstream) LLC v. Rainbow

Energy Mktg. Corp., 714 S.W.3d 572, 574 (Tex. 2025) ("We have long held that

courts will not rewrite agreements to insert provisions parties could have included

or to imply restraints for which they have not bargained."). Regardless, Delek still

must "ship or pay." Any Credits Delek uses were not free; Delek paid for them in a

previous True-Up Period.

<jf21 Wink also argues the clause is ambiguous, but its position relies on extrinsic

evidence, which cannot be used to create an ambiguity. Apache Corp. v. Apollo Expl.J

LLC, 670 S.W.3d 319, 334 (Tex. 2023). As explained below, the court sustains

Delek's objections to evidence that Wink submits to aid or alter construction of the

3
In other examples, Delek ends up paying less than the volume actually shipped, which occurs in
True-Up Periods that Delek's monthly deficits total less than double its monthly surpluses,
assuming all surpluses were paid with Credits. And no one disputes that ifDelek's monthly deficits
net out as less than its surpluses during a True-Up Period, Delek will pay for less than it actually
ships when relying on Credits- in that event, there is no Deficiency Payment at all, so the Credits
lower Delek's shipment costs as intended.
12
Transportation Agreement. Standing on its own, the clause is perfectly

understandable and not contradictory. There is only one reasonable meaning to

Section 7.03 and the calculation it requires.

2. Wink's affirmative defenses do not preclude summary judgment on the
Deficiency Payment dispute.

<j[22 Finally, Wink claims its affirmative defenses of waiver, ratification, estoppel,

and modification prevent summary judgment as to Section 7.03. Delek notes the

parties bound themselves to an anti-waiver clause stating that "[n]o waiver of any

provision set forth under this Agreement shall be binding upon a Party unless its

waiver is expressly set forth in a written instrument which is executed and delivered

on behalf of such Party by an authorized representative of such Party."

Transportation Agreement § 18.04. Regardless, to defeat Delek's motion, Wink

"must present summary-judgment evidence raising a fact issue on each element of

[its] affirmative defense .... ."ExxonMobil Corp. v. Rincones, 520 S.W.3d 572, 593

(Tex. 2017). Wink's briefing does not identify the elements of any of these defenses

or point to evidence raising a fact issue on those elements. Though Wink states it

expects to learn additional facts during discovery as to Delek's "intentional

adoption" of Wink's contract construction, Wink's expectation neither meets its

evidentiary burden nor satisfies the requirements of Texas Rule of Civil Procedure

166a(d)(3).

<j[23 Wink has not raised a fact issue on an affirmative defense to defeat Delek's

13
motion for summary judgment regarding the Deficiency Payment calculation. As to

construction of the Transportation Agreement's Section 7.03, the court grants

summary judgment for Delek.

C. The court denies Delek's motion for summary judgment as to the Event of
Default clause.
<J[24 Delek also seeks summary judgment as to the Transportation Agreement's

"Event of Default" clause. "Event of Default" is defined by a list of six alternative

events, including "failure of the Defaulting Party to comply with any of its

obligations under" the Agreement, contingent on specific notice-and-cure

requirements. Transportation Agreement§ 12.0l(c). A default allows the other party

an election of remedies, including termination. Id. §§ 12.02, 12.05.

<jf 25 At this stage, Delek does not attempt to prove Wink committed an event of

default, but it instead asks for a matter-of-law holding that an improper Deficiency

Payment invoicing would satisfy the definition-provided Delek in fact gave the

requisite notice and Wink failed to properly cure or commence to cure during the

allotted time period. On this record, the court declines to hold that a certain type of

theoretical breach by Wink-assuming Delek's theoretical notice of that breach and

Wink's theoretical failure to cure according to the Agreement's specific terms-is a

contractual Event of Default. Without weighing on the merits of Delek's

construction of Section 12.01, the court denies Delek's motion for summary

judgment on this issue.

14
D. The Transportation Agreement conditions Deficiency Payment litigation
on timely notice of the dispute.

<jf26 Wink moves for summary judgment as to the Transportation Agreement's

notice clause for "Deficiency Payment Billing," arguing that notice is a condition to

bringing suit. The Agreement's notice clause states:

Section 8.02 Deficiency Payment Billing. Following the end of each Tme-Up Period, Carrier shall
submit an invoice to Shipper for any Deficiency Payment that Shipper owes to Carrier for such Tme-Up
Period. Shipper agrees to pay such invoice within ten ( I 0) Business Days of receipt thereof but in no
event shall payment be due before the twentieth (20~) day of the Month in which Shipper receives
CmTier's invoice. If Shipper has a good faith dispute over the calculation made in such invoice, Shipper
shall provide written notice of such dispute lo CmTier no later than the due date of Can'ier's invoice and
shall pay the undisputed portion by the due date. Within ten (IO) Business Days of the date of Carrier
receiving Shipper's written notice, the Pm1ies will 11y lo resolve the disputed p011ion of the invoice. If the
Parties are mrnble to reach an agreement within such tenn. either Party may proceed with any right or
remedy available lo ii under this Agreement, al law or equity.

Wink is correct that Delek cannot pursue its rights as to the oldest six disputed

invoices due to failure to timely dispute them.

1. Section 8.02 creates a condition precedent.

<jf27 "A condition precedent is an event that must happen or be performed before a

right can accrue to enforce an obligation." Solar Applications Eng'g, Inc. v. T.A.

Operating Corp., 327 S.W.3d 104, 108 (Tex. 2010). "A covenant, as distinguished

from a condition precedent, is an agreement to act or refrain from acting in a certain

way." Id. "Breach of a covenant may give rise to a cause of action for damages, but

does not affect the enforceability of the remaining provisions of the contract unless

the breach is a material or total breach." Id. "Conversely, if an express condition is

not satisfied, then the party whose performance is conditioned is excused from any

obligation to perform." Id.

15
<j]28 The court decides whether a contractual provision is a condition precedent, or

merely a covenant, by examining the contractual terms to ascertain the parties'

intent. See Criswell v. Eur. Crossroads Shopping Ctr., Ltd., 792 S.W.2d 945, 948

(Tex. 1990). "In order to make performance specifically conditional, a term such as

'if', 'provided that', 'on condition that', or some similar phrase of conditional

language must normally be included." Id. Texas law enforces contractual terms that

require written notice as a condition to enforcing an obligation of the other party.

See, e.g., James Consh·. Grp., LLC v. Westlake Chem. Corp., 650 S.W.3d 392, 404-

09 (Tex. 2022). Absent substantial compliance by giving notice in writing, the party

loses its right to enforce that obligation. Id. at 415. When a contract conditions a

party's claims on timely notice of the dispute, the lack of notice acts as a condition

precedent that bars those claims in litigation. Cajun Consh·uctors, Inc. v. Velasco

Drainage Dist., 380 S.W.3d 819, 826 (Tex. App.-Houston [14th Dist.] 2012, pet.

denied) (affirming summary judgment where party failed to give notice of dispute).

<j]29 Here, the Transportation Agreement creates a multi-step process for dispute

resolution concerning a Deficiency Payment invoice. First, Delek must provide

written notice by the invoice due date, after which the parties have ten business days

to attempt to resolve their dispute. Then, a party may pursue "any right or remedy .

. . at law or equity" if the parties fail to reach agreement on "the disputed portion of

the invoice" within the ten-day period following Delek's written notice. This

section, read in its entirety, establishes a specific condition for pursuing one's rights

16
or remedies as to one narrow topic: a "dispute over the calculation made in [an]

invoice" for Deficiency Payment billing. For one discrete type of billing dispute, the

very type at issue here, the Agreement hinges Delek's rights on a dispute-resolution

procedure that must be triggered by written notice.

<jf30 The court cannot remove the conditional "if" from section 8.02. And viewing

the "if" with tunnel vision as Delek asks-applying the condition only to the final

sentence and not to the full dispute-resolution process triggered by Delek's notice-

would nullify its purpose. To "proceed with any right or remedy" under the contract

and law, Delek was first required to timely notice and attempt to resolve this type of

dispute. See Arbor Windsor Court, Ltd. v. Weekley Homes, LP, 463 S.W.3d 131, 136

(Tex. App.-Houston [14th Dist.] 2015, pet. denied) (holding notice clause was

condition precedent to any remedy where clause provided notice "during which time

same may be cured prior to exercise of any rights or remedies pursuant to this

Agreement."). The parties' objective intent, reflected in the contract's terms, was to

condition any remedy for disputed Deficiency Payment calculations on timely

written notice.

2. Delek's prior-material-breach theory does not excuse its performance
of Section 8.02.

qf31 Delek argues Wink's erroneous invoicing was a prior material breach that

excused Delek from the notice requirements. A prior breach excuses future

performance only when it is "material," based on a number of factors:

17
o the extent to which the injured party will be deprived of the
benefit which he reasonably expected;
o the extent to which the injured party can be adequately
compensated for the part of that benefit of which he will be
deprived;
o the extent to which the party failing to perform or to offer to
perform will suffer forfeiture;
o the likelihood that the party failing to perform or to offer to
perform will cure his failure, taking account of the
circumstances including any reasonable assurances;
o the extent to which the behavior of the party failing to perform
or to offer to perform comports with standards of good faith and
fair dealing.

Bartush-Schnitzius Foods Co. v. Cimco Refrigeration) Inc., 518 S.W.3d 432, 436-37

(Tex. 2017).

<jf 32 Delek has not placed evidence supporting these factors into the record.

Instead, Delek relies on nonbinding precedent that failed to address materiality

altogether. FPL Energy Upton Wind IJ L.P. v. Austin, 240 S.W.3d 456, 463 (Tex.

App.-Amarillo 2007, no pet.). On this record, the contract itself guides the

materiality analysis. See Mustang Pipeline Co.) Inc. v. Driver Pipeline Co.) Inc., 134

S.W.3d 195, 199 (Tex. 2004). Here, the parties' Agreement shows they reasonably

expected improperly calculated invoices to be handled through a notice-and-cure

process-not that an improper calculation would itself discharge the parties from

that process. Section 8.02 's meaning would be a vitiated if an improperly calculated

invoice were deemed to excuse engagement in those steps. See In re ACE Am. Ins.

Co., 69 Tex. Sup. Ct. J. 659, 2026 WL 1261448, at *5 (May 8, 2026) (holding prior

material breach did not excuse engagement in dispute-resolution appraisal because,

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if "insured could avoid appraisal by alleging a dispute over coverage or claims

handling, appraisal clauses would be virtually a nullity.") (internal quotations

omitted).

3. Section 8.02 does not alter the limitations period.

<j[33 Delek contends the Transportation Agreement's notice clause is void because

it alters the statute of limitations.

<jf 34 " [A] person may not enter a stipulation, contract, or agreement that purports

to limit the time in which to bring suit on the stipulation, contract, or agreement to

a period shorter than two years." TEX. Crv. PRAC. & REM. CODE § 16.070. Such

agreements are void. Id.

<jf 35 Here, the Agreement requires timely notice of any "good faith dispute over

the calculation made in [a Deficiency Payment] invoice." Transportation Agreement

§ 8.02. The clause places no limit on the "time in which to bring suit" as would be

prohibited by Section 16.070. Instead, it limits the time to give "written notice of

such dispute to Carrier," Wink. Providing written notice to a carrier is not, and does

not have the effect of, "bring[ing] suit." See TEX. CIV. PRAC. & REM. CODE§ 16.070;

e.g.) Town & Cnty. P'ship v. Dyad Constr.J L.P., No. 14-22-00339-CV, 2023 WL

3529696, at *8 (Tex. App.-Houston [14th Dist.] May 18, 2023, no pet.) (holding

Section 16.070 did not apply because "one-year limitation serves only to specify

when the warranty claim must be presented ... - not when a lawsuit must be filed").

<j[36 The subsequent section of Chapter 16 constrains contractually imposed

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notice rather than contractually imposed limitations. See TEX. CIV. PRAG. & REM.

CODE § 16.071 ("A contract stipulation that requires a claimant to give notice of a

claim for damages as a condition precedent to the right to sue on the contract is not

valid unless the stipulation is reasonable."). Delek has opted not to rely upon Section

16.071, probably because the Texas Supreme Court's strict construction of the

"notice of a claim for damages" language would exclude the parties' notice clause

at issue here. See Am. Airlines Employees Fed. Credit Union v. Martin) 29 S.W.3d 86,

97-98 (Tex. 2000); see also El Paso Cnty. v. Sunlight Enter. Co.) Inc., 504 S.W.3d

922, 927 (Tex. App.-El Paso 2016, no pet.) (holding Section 16.071 must be

strictly construed because it is "restrictive and in derogation of the common-law

right to freely contract."); Komatsu v. U.S. Fire Ins. Co., 806 S.W.2d 603, 606 (Tex.

App.-Fort Worth 1991, writ ref'd) (same). 4

<Jl37 The statute also creates an exception for a contract "relating to the sale or

purchase of a business entity if a party ... pays or receives or is obligated to pay or

receive consideration under the contract having an aggregate value of not less than

4
In Martin, "the notice requirement ... [was) similar to a condition precedent-[the claimant's)
ability to recover for unauthorized transactions is conditioned upon his discovering and reporting
those transactions within the specified time period." 29 S.W.3d at 95. The Court concluded that
"section 16.071 by its terms does not apply here, when the notice to be given is not notice of a claim
for damages, but rather notice of unauthorized transactions." Id. (internal footnotes omitted); see
also Ridg/ea Est. Condo. Ass'n 11. Lexington Ins. Co., 415 F.3d 474, 479 (5th Cir. 2005) (holding
under Section 16.071 that notice of a loss was not a "notice of a claim for damages" but was instead
a "notice of the happening of an event upon which liability may or may not result."); El Paso Cnty.,
504 S.W.3d at 928 (holding "notice of a claim for additional compensation ... is only a precursor
to a possible cause of action for damages, which 'may or may not result.'").

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$500,000." TEX. CIV. PRAC. & REM. CODE§§ 16.070(b); 16.07l(f). The court does

not reach the question of whether that exception applies here.

4. Section 8.02 bars Delek's claims for relief as to the six oldest disputed
invoices.

<j[38 Delek presents no evidence refuting that its first notice of any Deficiency

Payment dispute was served months after the timely-notice period ran for the six

oldest disputed invoices. Delek's letter, submitted for the sake of optional

completeness, instead confirms what Wink's evidence proves; that Delek first

discovered and notified Wink of its dispute concerning the 2022, 2023, and 2024

calculations in August 2025. 5 Delek has not otherwise attempted to raise a genuine

issue of material fact excusing its lack of timely notice.

<j[39 A potential "dispute over the calculation made in such [Deficiency Payment]

invoice" was anticipated by the parties, who outlined the necessary steps for

resolution of this exact dispute. The court will enforce the notice provision as

written. Having concluded that Delek raises no fact issue regarding its failure of the

Agreement's condition precedent for pursuing its claims for the 2022, 2023, and

2024 invoices, the court grants summary judgment for Wink on its breach-of-

contract claim as to that issue.

E. The court partially grants each party's motion to strike.

5
Having ruled in Wink's favor as to Section 8.02's notice clause, the court need not reach Wink's
argument that the Agreement's Section 8.04, deeming three of the invoices "final" after 24 months,
precludes Delek's recovery as to those invoices.
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9]40 "The same evidentiary standards that apply in trials also control the

admissibility of evidence in summary-judgment proceedings." Seim v. Allstate Texas

Lloyds, 551 S.W.3d 161,163 (Tex. 2018); see also TEX. R. CIV. P. 166a(j) (declaration

supporting summary judgment must "be made on personal knowledge, set out facts

that would be admissible," and show declarant "is competent to testify to the

matters stated"). Accordingly, a party may move to strike summary-judgment

evidence that fails those standards. See, e.g., Kerlin v. Arias, 274 S.W.3d 666, 667-

68 (Tex. 2008).

1. Wink's objections to Delek's unauthenticated material in Delek's
briefing are sustained.

9]41 Wink asks the court to strike the entirety of Delek's motion because it relies

on unauthenticated figures and demonstratives that appear in the body of the motion

but are not separately attached or proven up as evidence. The court grants Wink's

motion in part by striking those figures. Wink identifies no authority that would

demand (or allow) striking Delek's motion in its entirety.

2. Delek's parol-evidence objections are sustained in part.

9142 Delek, in turn, moves to strike a supporting declaration submitted by Wink's

service provider Keith Legrone and attached exhibits, objecting to their

consideration as improper extrinsic evidence and on other grounds.

9]43 "If contract language can be given a certain or definite legal meaning when

considered as a whole, and in light of the objective circumstances surrounding its

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execution, the contract is not ambiguous and must be construed as a matter oflaw."

Finley Res., Inc. v. Headington Royalty, Inc., 672 S.W.3d 332,340 (Tex. 2023) ("[A]

contract is ambiguous only if it is subject to more than one reasonable interpretation

after the pertinent rules of construction have been applied").

<jf 44 The Agreements can be given the certain and definite legal meanings

described above. Because the contracts' text is unambiguous, it must be "enforced

as written without considering extrinsic evidence bearing on the parties' subjective

intent." Devon Energy Prod. Co., L.P. v. Sheppard, 668 S.W.3d 332,343 (Tex. 2023).

Wink submits Legrone's subjective statements concerning his own interpretation of

the contract, which are inadmissible. See URI_, Inc., 543 S.W.3d at 768 ("Because

objective intent controls the inquiry, only circumstantial evidence that is objective

in nature may be consulted."). The court therefore grants Delek's motion to strike

these statements and the course-of-performance evidence that Wink submits to

construe this unambiguous contract. See id.; Equinor, 731 S.W.3d at 329-30

("[C]ourts can't consider course-of-performance evidence to interpret an

unambiguous contract."), quoted in May v. Ineos USA Oil & Gas LLC, 2026 Tex. Bus.

20, <jf<jf 5-6, 2026 WL 1195929, at *1-2 (4th Div.).

<jf 45 It is true that, "when contractual text alone is inconclusive, courts may

consider the facts and circumstances surrounding the contract, including the

commercial or other setting in which the contract was negotiated and other

objectively determinable factors that give context to the parties' transaction."

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Endeavor Enel'gy Res., L.P. v. EnergenRes. Corp., 615 S.W.3d 144, 148 (Tex. 2020)

(internal brackets and quotations omitted). But the limited industry information

provided in paragraphs 19 and 20 of Legrone's declaration is largely subjective

opinion, is unneeded to construe the Transportation Agreement's Deficiency

Payment clauses, which are conclusive on their face, and in any event could not alter

the court's construction of those clauses. Delek's motion to strike is granted as to

paragraphs 7-14, 18-27, and 33 ofLegrone's declaration. The court need not reach

Delek's remaining evidentiary objections to these portions of the declaration.

3. Delek's objections concerning the remaining portions of Legrone's
declarations are overruled.

<J[46 Legrone's declaration also offers evidence to show the timing of the 2022-24

invoices sent to Delek and of its notice of dispute. Such evidence is not improper

parol evidence because Wink presents it to prove Delek's written notice was

untimely as to those invoices and not to aid the court's construction of the

Agreement. Delek generally objects that Legrone has not shown personal knowledge

as to the facts in his declaration, but Legrone shows a factual basis for his personal

knowledge of these invoices by identifying his role in Wink's pipeline operations and

describing his familiarity with the Transportation Agreement and with the parties'

dealings, including invoicing and calculation of Deficiency Payments.

<j[4 7 Texas Rule of Evidence 408 does not prevent this evidence's inclusion, either,

because it is being offered to prove Delek's failure to satisfy the contract's notice

24
provision rather than to prove or disprove a claim's validity. TEX. R. EVID. 408(b)

(permitting admission of evidence "for another purpose," including negating a

contention of undue delay), cited inDrinkPAK, LLC v. PRIII/Crow Bldg. CJ LP, 2026

Tex. Bus. 27, <jf<jf 18-21, 2026 WL 1347499, at *4-5 (8th Div.).

<jf48 Delek does not describe with specificity any other grounds for excluding this

evidence, so the court denies Delek's motion to strike paragraphs 1-6, 15-17, and

28-32 of Legrone's declaration, along with the corresponding exhibits.

CONCLUSION AND ORDER

Having considered the parties' motions for partial summary judgment,

motions to strike, the applicable law, and all arguments of counsel, the Court

partially grants each motion as follows and concludes the parties' Agreements are

unambiguous with respect to the issues adjudicated in this Order, holding as a matter

oflawthat:

(1) the Terminal Service Agreement, effective September 30, 2021, grants
Plaintiff Delek exclusive use of two tanks at Plains Marketing, L.P.'s
crude oil terminal in Midland, Texas for the storage of up to 566,000
barrels of crude oil;

(2)the Terminal Services Agreement does not permit Wink to unilaterally
place crude oil meeting the quality specifications set forth in the Pipeline
Tariff in tanks designated for Delek;

(3) under the Amended and Restated Transportation Services Agreement,
effective September 30, 2021, Wink must calculate the Deficiency
Payment for each "True-Up Period" such that the number of Deficient
Barrels under Section 7.03(a)(i) is computed in a manner that accounts
for every Barrel of Product actually shipped on the Pipeline during the
True-Up Period from one or a combination of Origin Point(s) to one or a
combination of Destination Point(s); and
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(4)Delek's claims for breach of contract, as those claims relate to Invoice
Nos. 2022-07, 2023-01, 2023-07, 2024-01, 2024-07, and 2025-01
(Exhibits F-1 through F-6 to Wink's Partial Motion for Traditional
Summary Judgment), are DISMISSED WITH PREJUDICE.

In any remaining respect other than as expressly granted in this Order, the

parties' motions for summary judgment are DENIED.

Delek's motion to strike is GRANTED IN PART as described above. Delek's

objections on the basis of parol evidence in paragraphs 7-14, 18-27, and 33 of Keith

Legrone's declaration in support of Wink's Traditional Motion for Partial Summary

Judgment and Wink's Response to Delek's Motion for Traditional Motion for Partial

Summary Judgment are SUSTAINED. Delek's objections to paragraphs 1-6, 15-17,

and 28-32 of Legrone's declaration, along with the corresponding Exhibits B, C, F,

G, and Hare OVERRULED.

Wink's motion to strike is GRANTED IN PART as described above. Wink's

objections to Figures 1-4 and the demonstratives on pages 5, 6, 9, 11, and 21-23 of

Delek's Motion for Traditional Motion for Partial Summary Judgment are

SUSTAINED. In all other respects, Wink's motion to strike is DENIED.

SO ORDERED.

~ HSSHAflP~
Judge of the Texas Business Court,
Fourth Division, sitting by assignment
in the Eleventh Division

SIGNED ON: May 27, 2026

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