Texas Business Court Opinion – October 28, 2026

No. 25-BC11B-0073  DK Trading & Supply, LLC v. Wink to Webster Pipeline LLC (Eleventh Division, Judge Sharp)  2026 Tex. Bus. 77  26-bc11b-0073-dk-trading-supply-v-wink-to-webster-pipeline-2026-tex-bus-76.pdf

For the court’s May 27, 2026 opinion in the case, see DK Trading & Supply, LLC v. Wink to Webster Pipeline LLC, 2026 Tex. Bus. 33, 740 S.W.3d 125 (11th Div. 2026).  Microsoft Word – DK_Syllabus SRS1

Contracts.

Background. DK sued Wink over two 2021 agreements for crude oil storage and pipeline transportation at a Midland County terminal. Under the Terminal Services Agreement, Wink was to provide SK with storage capacity for its exclusive use, and DK was to pay monthly terminal-service fees and operating costs. Under the Amended and Restated Transportation Agreement, DK was to ship a committed volume each  true-up period or make a deficiency payment. In the earlier opinion, the court construed the parties’ respective rights and duties under both Agreements as a matter of law. Here, DK has moved for traditional summary judgment as to whether Wink breached both Agreements. The court grants the motion in part.

Issues:

1. Whether Wink breached the Terminal Agreement by storing third-party crude in the two tanks reserved for DK’s exclusive use.
2. Whether DK established its benefit-of-the-bargain damages under the Terminal Agreement as a matter of law.
3. Whether Wink breached the Transportation Agreement by overcharging Dk $451,96 on a deficiency payment.
4. Whether that breach was an “Event of Default” under the Transportation Agreement.
5. Whether Wink’s later credit of the disputed amount mooted DK’s requested relief.
6. Whether DK’s request for attorneys’ fees could be decided at this stage.

Discussion.

1. The Terminal Agreement breach. Under the  traditional summary-judgment standard, the movant must show no genuine issue of material fact and entitlement to judgment as a matter of law; the evidence is viewed in the nonmovant’s favor. Neither party claims the Terminal Agreement is ambiguous, so the court construes it as a matter of law. DK’s uncontroverted inventory records and expert opinion showed Wink stored third-party crude in the two DK tanks in every relevant month except February 2022. Wink identified no substitution of tanks and no other contractual justification. Wink argued DK had not proven whose crude was in the tanks, but the court holds that breach of the exclusivity provision did not depend on identifying the third party. DK’s motion for summary judgment on this breach is granted.
2. Terminal Agreement damages. Damages are measured by the benefit of the bargain, and the measure of those damages is the difference between what is promised and what is received. DK proved the amount promised, which exceeds $10 million in payments. It did not, however, prove the value it received. Wink’s unobjected-to expert testimony and other evidence showed that: (a) Wink was still receiving, storing, and staging DK’s crude: (b) segregated DK-grade storage remained available and was routine to provide; and (c) DK’s payments were calculated from the costs of building the tanks. These facts raised fact issue over the value DK had received, so damages must be reserved for trial.
3.  & 4. Transportation Agreement breach and default. DK alleged that Wink overcharged $451,061 as a miscalculated Deficiency Payment. The court held in the prior decision that the relevant section of the Transportation Agreement (Sec. 7.03) requires counting every barrel actually shipped when calculating the deficiency payment. For the true-up period ending July 31, 2025, the correct payment as $14,002,139, but Wink invoiced $14,454,100. Wink offered no contrary evidence, so breach was established as a matter of law. As to default, the court gave the term its plain meaning – failure to perform a contractual duty – with no materiality requirement. The agreement excepts only non-material noncompliance with one particular clause, not relevant here. DK gave Wink written notice of the noncompliance, and Wink failed to cure within 30 business days. An Event of Default thus occurred. 5. Mootness. Wink credited the disputed amount in August 2026. However, a case is only moot when a ruling on the merits cannot affect the parties’ rights or interests. Because a default declaration triggers a section of the Transportation Agreement which includes the nondefaulting party’s rights to withhold deficiency payments, suspend performance, or terminate the contract, the matter is not moot.
4. Attorneys’ fees. Because the traditional summary judgment motion was only granted in part, an award of fees would be premature at this stage of the proceedings.