Email is the way we communicate these days. Whether  emails create a contract is important if you’re thinking nothing short of scribblings on a piece of old parchment could ever bind anybody or, to the contrary, your goal is to establish an enforceable agreement. Before hitting “send”, consider Bujnoch v. Copano.  Questions of fact precluded a summary judgment denying an agreement. A jury will decide the question. 


The negotiations

  • Copano approaches the Bujnochs for an easement to construct an additional 24 inch pipeline over an existing easement.
  • Schwartz, counsel for the Bujnochs, sends emails, typing his name below the message.
  • James, for Copano, creates a plat reflecting the second easement.
  • James emails Schwartz, agreeing to pay $70 per foot for the second line and types his name below the message.
  • Schwartz accepts and requests advance notice of survey activities.
  • James emails Schwartz, agreeing to pay one of the Bujnoch parties $88 per foot, again typing his name above a signature block that has his job title and contact info.
  • Schwartz, through his secretary, proposes a formal amendment to the original easement modifying the description consistent with the parties’ communications.
  • James replies “I’m fine with these charges”, typing his name.
  • Goolsby, another Copano rep, mails letters offering to pay no more than $25 per foot. No one accepts.
  • Eubank, also for Copano, offers Schwartz $20-$40 per foot for the second easement.
  • Schwartz replies, ”This is not our deal.”
  • Eubank replies, “Sorry for the confusion.”
  • Copano fails to honor the agreement.

Bujnochs sue. Copano asserts the Statute of Frauds.

Could the emails be read together to make a written contract?

What if no single email contains the essential terms of the agreement?  The Statute allows multiple documents to be read together. Express reference by one email to the other is not required when they are signed by the party charged (Copano). The court observes that on the question of whether electronic signatures are effective, the appellate courts in Texas are split.

Did the emails omit essential terms?

Parol testimony can be offered to explain or clarify an essential term; here, who Schwartz’s clients were.

Was the description of the easement sufficient?

Texas law requires that the property description furnish within itself or by reference to another existing writing the means to identify the particular land with reasonable certainty. If a person familiar with the area can locate the premises with reasonable certainty, the description is sufficient.

The test was satisfied; the emails described the second easement as an additional 20 feet wide, contiguous to the first easement, and lay generally on the north side of the existing easement.

Did “futuristic” language contemplate an agreement to be executed in the future?

It didn’t matter. That language was nonessential; the emails contained the essential terms.

Did the parties agree to transact business electronically?

Maybe this requirement was met. James testified in a deposition that Copano had a history of honoring agreements reached by email.

No tortious interference

The Bujnoches’ tortious interference claim against Copano’s merger partner Kinder Morgan was dismissed. See page 20 of the opinion.

Edwin Hawkins, RIP.