Actions speak as loudly as words

The Court released a revised opinion in Anadarko Petroleum v. Williams Alaska Petroleum, No. 12-20716 (August 6, 2013), which reversed and rendered for a contract plaintiff based largely on the parties’ course of performance.  The expanded opinion addresses an argument made on rehearing that the panel failed to find the contract ambiguous before examining evidence about course of performance.  The opinion notes that the relevant UCC provision in fact says the opposite, noting that “the course of actual performance by the parties is considered the best indication of what they intended the writing to mean” since that performance can “become an element of the meaning of the words used.”  Tex. Bus. & Comm. Code § 2.202 comment 2.