As you may recall, just a week before the Republican Party of Texas’ 2020 convention was set to commence, Houston First Corporation, which operates the George R. Brown Convention Center, pulled the plug and cancelled its license agreement with the Party. The agreement contained a force majeure clause and had been amended to include in the scope of the clause “pandemics affecting Houston” and “orders materially and substantially restricting the size of gatherings at the [convention center] issued by the . . . Governor of the State of Texas.” RPT sued Houston First, the City of Houston, Houston Mayor Sylvester Turner, and Brenda Brazan, Houston First’s President alleging breach of contract. Houston First moved for a traditional summary judgment, alleging that the force majeure clause excused its performance as a matter of law. The trial court granted the motion and dismissed RPT’s claims with prejudice.

The Fourteenth Court of Appeals reversed and remanded. In its summary judgment motion, the court of appeals held, Houston First failed to prove as a matter of law that there was a causal connection between the force majeure provision and termination of the agreement. Houston First, rather, “implicitly took the position in the trial court that no proof of that element was required.” It thus “omitted from its motion a required element for proving its force majeure. Accordingly, because not all necessary grounds were expressly presented to the trial court in the summary-judgment motion, we hold the trial court reversibly erred by granting the motion” under Rule 166a(c), TRCP.

While this case is of at least mild interest for political reasons, we thought we should bring it to your attention because it involves a breach of contract claim arising from a party’s invocation of a force majeure clause on account of the coronavirus pandemic. The court of appeals reminds us that the application of a force majeure clause is not self-evident, and if a party moving for summary judgment in reliance on one does not prove up the essential fact that the force majeure occurrence (the pandemic) affected the terminating party’s performance of the contract, summary judgment will fail. It would appear that Houston First’s lawyers learned that the hard way and will have to try again.

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