Full opinion text
OPINION DIXON W. HOLMAN, Justice. I. Introduction City of The Colony, Texas, entered into a tri-party contract (the “Contract”) in 1998 with City of Frisco, Texas, and North Texas Municipal Water District (“the District”) for, among other things, the construction and operation of a regional wastewater system for the purpose of providing a facility to treat wastewater from both cities. The Colony made contractually required payments to the District for a number of years. But ultimately, it never delivered any of its wastewater to the District for treatment, it ceased making payments to the District, and it sued the District and Frisco for breach of contract, for a declaratory judgment that no contract was formed, and alternatively, for rescission of the Contract. With the exception of one of The Colony’s contract claims, the trial court granted the District’s first amended motion for summary judgment on The Colony’s causes of action. With the exception of the amount of damages and attorneys’ fees to be awarded Frisco, the trial court granted Frisco’s motion for summary judgment on The Colony’s causes of action and on Frisco’s breach of contract counterclaim. The remaining claims or outstanding issues went to trial. In addition to findings regarding attorneys’ fees, a jury subsequently found that the District had materially breached the Contract for failing to have adequate capacity but that the breach was excused because The Colony had previously failed to comply with a material obligation of the Contract and that The Colony owed $0.00 to Frisco for The Colony’s failure to comply with the Contract. The Colony, the District, and Frisco each filed a notice of appeal. In three issues, The Colony argues that the trial court erred by granting Frisco’s motion for summary judgment and the District’s motion for summary judgment and that certain subsequent trial court rulings based upon the summary judgment rulings caused the rendition of an improper judgment. In two issues, Frisco argues that the evidence is legally and factually insufficient to support the jury’s findings that The Colony owed Frisco $0.00 for The Colony’s failure to comply with the Contract and that Frisco was entitled to $0.00 for Frisco’s appellate attorneys’ fees. And in three issues, the District argues that the trial court erred by overruling its motion to disregard the jury’s finding that it materially breached the Contract and that the evidence is legally and factually insufficient to support the jury’s findings that the District breached the Contract and that the District was entitled to $0.00 for attorneys’ fees. As to The Colony’s appeal, we will affirm. As to Frisco’s appeal, we will affirm in part and reverse and render in part. As to the District’s appeal, we will affirm. II. Factual and Procedural Background and Contract Excerpts Lanny Lambert served as The Colony’s city manager from the summer of 1997 to October 2000. According to Lambert, The Colony’s mayor and city council wanted to participate with the District in the creation of a regional wastewater treatment system. At the time, The Colony treated its wastewater at its Stewart Creek treatment plant, but the mayor and city council wanted to join a regional system because they felt it was the most economically feasible solution to The Colony’s increasing need for treatment capacity and because the existing plant was aging, deteriorating, and had odor problems. According to Lambert, “[0]ur goal at the time was to join the regional system. We hoped to cut our costs and really to get out of the sewer treatment business, pump all of our sewer to [the District] and get out of the business.” A reason for The Colony’s increasing need for wastewater treatment capacity was due to the growth that the city was experiencing from the Austin Ranch and Wynnewood Peninsula developments. Lambert was thus tasked with the assignment of negotiating an agreement with the District and Frisco. Lambert met numerous times with Carl Riehn, the District’s then executive director; George Purefoy, Frisco’s city manager; and a District engineer, among others, including representatives from The Colony. Through his participation in the meetings, Lambert came to the understanding that The Colony was “requesting to be allowed to participate” in the regional system but that Frisco did not “particularly care or want [The Colony] to be involved” even though it was “something [The Colony] wanted to do.” Lambert was told about a border dispute that had occurred earlier in history between The Colony and Frisco. The Colony, Frisco, and the District reached an agreement and executed the nineteen-page Contract, entitled, “Stewart Creek West Regional Wastewater System Contract,” on May 28,1998. Relevant initial portions of the contract are as follows: WHEREAS, there have been prepared for and filed with the District the following: Report on a Proposed Regional Wastewater System for the Cities of Frisco and The Colony ... dated February, 1997, by Hunter Associates Texas, Ltd., Consulting Engineers, Dallas, Texas (the “Engineering Report”); and WHEREAS, the parties hereto wish to further implement the Engineering Report and provide for the acquisition, construction, improvement, operation and maintenance of a Regional Wastewater System (the “System”) for the purpose of providing facilities to adequately receive, transport, treat, and dispose of Wastewater; and WHEREAS, the Participants have deemed it necessary and desirable to contract with the District to provide for the expansion of the Plant and the acquisition, consteuction, improvement, operation and maintenance of the System to achieve efficiencies of cost and operation; and WHEREAS, the parties hereto recognize these facts: (a) That the District will use the payments to be received under this Contract and similar contracts, if any, for the payment of Operation and Maintenance Expense of the System and for the payment of the principal of, redemption premium, if any, and interest on its Bonds.... (c) That the District will issue Bonds from time to time in the future to acquire, construct, extend, enlarge, improve, and/or repair the system. Relevant definitions contained in the Contract are as follows: “Annual Payment” means the amount of money estimated as provided in Section 5.03 of this Contract to be paid to the District by Participants as their proportionate share of the Annual Requirement. “Annual Requirement” means the'total amount of money required for the District to pay all Operation and Maintenance Expense of the System and to pay the principal of, and redemption premium, if any, and interest on its Bonds.... “District’s System,” “Regional System,” “Regional Wastewater System,” or “System” means all of the District’s facilities acquired, constructed, used, or operated by the District for receiving, transporting, treating, and disposing of Wastewa-ter of and for Participants, pursuant to this Contract (but excluding ... any ■facilities required to transport Waste-water to any Point of Entry of the District’s System).... Said terms shall include only those facilities which are acquired, constructed, used, or operated by the District to provide service to Participants pursuant to this Contract. ... “Participants” means Frisco, The Colony and all Additional Participants. “Point of Entry” means any point at which Wastewater enters the property on which any Wastewater treatment plant operated by the District is located.... “Wastewater” means Sewage, Industrial Waste, Municipal Waste, Recreational Waste, and Agricultural Waste, as defined in the Code, together with properly shredded garbage, and such infiltration water that may be present. [Emphasis added.] Section 2.01, under the heading “Providing of Facilities by the District,” states in part as follows: In order to provide services for receiving, transporting, treating, and disposing of Wastewater for Participants, the District will use its best efforts to design, acquire, construct, and complete the System, as generally described in the Engineering Report ..., and will operate and maintain the System, and from time to time enlarge, improve, repair, replace, and/or extend the System to provide service to the Participants. [Emphasis added.] Relevant portions of the Contract under Article III, entitled “Discharge of Waste-water and Metering,” provide as follows: Section 3.01. DISCHARGE. In consideration of the payments to be made under its respective contract with the District, each of the Cities of The Colony and Frisco have and shall have the right to discharge all of its Wastewater from its respective sewer system into the District’s system, provided that such Wastewater meets the requirements for quantity and quality as set forth in its respective contracts with the District. ... Section 3.02. POINT OF ENTRY. Each Participant may discharge all such Wastewater generated from such Participant’s sewer system into the designated Point or Points of Entry for such Participant, unless such Participant and the District mutually agree that like service can be provided elsewhere in the System. Section 3.03. CONVEYANCE TO POINT OF ENTRY. It shall be the sole responsibility of each participant to transport, or cause to be transported, at no cost to the other Participants, its Wastewater to its Point or Points of Entry. [Emphasis added.] Relevant portions of the Contract under Article V, entitled “Payments,” are as follows: Section 5.01. FINANCING. The District will issue its Bonds, in amounts and at times as determined by the District, to provide the System. Section 5.02. ANNUAL REQUIREMENT. It is acknowledged and agreed that payments to be made under this Contract will be the only source available to the District to provide the Annual Requirement;.... Section 5.03. PAYMENTS BY CITY, (a) For sendees to be rendered to each Participant by the District under this Contract and other similar contracts, if any, each Participant has agreed to pay, at the time and in the manner hereinafter provided, its proportionate share of the Annual Requirement, which shall be determined as hereafter described and shall constitute a Participant’s Annual Payment or Adjusted Annual Payment.... (d) Each Participant’s Annual Payment also shall be adjusted and redetermined for the balance of any applicable Fiscal Year, consistent with the provisions of this contract, and initially based on estimated contributing flow, at any time during any Fiscal Year if: (v) It appears to the District that for any other reason it will not receive the full amount of the Annual Requirement unless such adjustment and redetermination are made. (h) ... Recognizing the fact that the Participants urgently require the facilities and services covered by this Contract, and that such facilities and services are necessary for actual use and for stand-by purposes; and further recognizing that the District will use the payments received from the Participants hereunder to pay, secure, and finance the issuance of its Bonds, it is hereby agreed that the Participants shall be obligated unconditionally, and without offset or counterclaim, to make the payments designated as the “Bond Service Component” of the Annual Requirement, in the manner provided in this Contract, regardless of whether or not the District actually provides such facilities and services, or whether or not any Participant actually receives or uses such facilities and services, and regardless of the validity or performance of the other parts of this or any other contract. ... Each Participant further agrees that it shall be obligated to make the payments designated as the “Operation and Maintenance Component” of the Annual Requirement.... (i) ... Each Participant agrees that it will make such payments to the District on or before the twentieth (20th) day of each month of such Fiscal Year. If any Participant shall dispute the Annual Budget, and proceed as provided in Article VII, such Participant nevertheless promptly shall make the payment or payments determined by the District.... [Emphasis added.] Relevant portions of the Contract under Article VIII, entitled “The System,” are as follows: Section 8.01. INITIAL FACILITIES OF THE SYSTEM, (a) The System shall initially consist of the Plant. (b).... [T]he District and the Participants agree that this Contract shall constitute an operating agreement with respect to the Plant.... [Emphasis added.] Section 11.01 of the Contract provides that the Contract shall become effective as of the date of its execution. The Contract thus demonstrates that The Colony, Frisco, and the District entered into an agreement for the District to operate the Stewart Creek West Plant (the “plant”) for the purpose of treating The Colony’s and Frisco’s wastewater, which they were required to transport at their sole responsibility and discharge to the designated point of entry, in exchange for The Colony’s and Frisco’s annual payments to the District. The Contract further required the District to use The Colony’s and Frisco’s annual payments to repay the principal and interest on the bonds issued to finance the agreed plant expansion and to pay for the system’s operation and maintenance expenses. Absent from the Contract — and at the heart of the underlying litigation — is a specific recitation of how The Colony and Frisco were to transport them wastewater to the point of entry, which is located at the plant and is within Frisco’s borders. Because the point of entry is located at the plant and because the plant is wholly within Frisco’s borders, pipelines running from portions of The Colony would necessarily have to run through Frisco. According to Lambert, although there were “discussions” in the latter part of the meetings that he attended leading up to the execution of the Contract concerning how The Colony planned to transport its wastewa-ter to the point of entry, this was a “secondary issue” at the time; “[t]he purchase of capacity was the major victory.” The actual negotiations between The Colony and Frisco regarding the means by which The Colony was to transport its wastewa-ter to the point of entry were to be conducted at some point after the Contract’s execution, and the final agreements concerning the same would be documented in another written contract. Lambert thus did not begin those negotiations before leaving The Colony, but he understood that it was the District’s obligation to build, maintain, and operate the plant and that The Colony was responsible for transporting its wastewater to the point of entry. At the time of the Contract’s execution, the only “access” that The Colony had to the plant — in terms of transporting its wastewater thereto (excluding the “ludicrous” option of transporting wastewater by truck) — was via an old pipeline that ran between The Colony’s Stewart Creek Plant and the plant. Lambert, however, “never really spent any time researching that option,” and he did not “remember why it was there or what it was for.” Therefore, at the time of the Contract’s execution and with the exception of the old pipeline that Lambert had not anticipated utilizing for transporting The Colony’s wastewater to the plant, The Colony had not physically built the infrastructure or pipelines necessary to transport wastewa-ter to the plant. Based on the discussions that he had before the Contract was executed, Lambert thought The Colony was going to attempt to implement the 1997 report prepared by Hunter Associates Texas, Ltd. and referenced at the beginning of the Contract, otherwise referred to as the “red book.” The “red book” proposed plans for transporting The Colony’s wastewater in part by laying pipelines from Wynnewood Peninsula and Austin Ranch to the plant. During Lambert’s tenure as city manager, which ended in the fall of 2000, The Colony did not need the capacity that it had purchased from the District. John Dillard, The Colony’s mayor and former city councilman, reasoned that “[w]hen we entered into the Contract, we had no need of their services at that time”; instead, “we had entered into an agreement to pay them for future services.” Johnston shared Dillard’s recollection, agreeing that The Colony acquired capacity in the plant in 1998 for future use. Lambert therefore anticipated there being a period of time, possibly until 2003 or 2004, in which The Colony made contractual payments but had none of its wastewater treated at the plant. After execution of the Contract, the District sold $7,125,000 in bonds that it utilized to fund the plant expansion. It completed the expansion sometime in January 2001. The expansion increased the plant’s wastewater treatment capacity from 1.5 million gallons per day to a total capacity of 5 million gallons per day. The Colony made its first payment under the Contract on or about March 1, 1999. After Lambert left his position as city manager of The Colony, he became a consultant for The Colony for six months. Within three months of Lambert’s departure from The Colony, he instructed Johnston that he (The Colony) needed to “get the system going” and “initiate the infrastructure into the ground.” Johnston understood Lambert’s instruction to mean that The Colony was “to begin routing wastewater to the Stewart Creek West plant.” In furtherance of Lambert’s instructions, between February and June 2001, Johnston contacted the District; met with the Billingsley Corporation, who developed the Austin Ranch property; contacted an individual with Matthews Southwest, the developers of Wynnewood Peninsula; met with The Tomlin Property, who owned the portion of Wynnewood Peninsula inside Frisco; and contacted Frisco. Johnston also introduced Dale Cheatham — The Colony’s city manager as of August 1, 2001 — to Jim Parks, the District’s Executive Director. The Colony had a number of meetings with the District regarding wastewater transportation thereafter. Notwithstanding the “red book,” The Colony eventually hired the engineering firm of Freese and Nichols, Inc. to prepare a report setting forth various alternatives for routing wastewater to the plant. Johnston informed James Baddaker, a Freese and Nichols engineer, about a few “issues” that existed between The Colony and Frisco, and Baddaker gained an understanding “that there may have been impediments to The Colony utilizing or sharing facilities with Frisco in order to get their wastewa-ter flow to the point of delivery at the North Texas plant.” The “issues” and “impediments” that Baddaker learned of concerned an unresolved territorial dispute between The Colony and Frisco in which Frisco apparently claimed that The Colony had wrongfully annexed two pieces of land in the 1980s referred to as the “lightning bolt” and the “finger.” According to Cheatham, although The Colony’s actions “have subsequently been validated by the State, and they are legal now,” Frisco was “upset” about it and had asked for the land back. With this considered, the Freese and Nichols report, which is dated August 8, 2003, concluded that there were several options for treating The Colony’s wastewa-ter, and it evaluated a number of scenarios that The Colony could have implemented to transport its wastewater to the plant— some of which involved Frisco’s cooperation and some which did not. The report also included “timelines,” one of which projected that it would take 684 days to complete a system capable of transporting 1.1 million gallons of wastewater per day from The Colony’s treatment plant to the plant. The Colony ultimately “more or less” adopted an alternative plan of “Scenario 1,” which involved transporting 1.1 million gallons of wastewater per day to be treated by the District. Freese and Nichols completed the surveying on the project but were told by The Colony thereafter to stop work. The Colony did not undertake steps to follow any of the other scenarios set forth in the report, some of which provided plans for diverting wastewater from Austin Ranch and Wynnewood Peninsula to the plant, and it never constructed wastewater lines that would enable it to transport its wastewater to the plant. Instead, it awarded a contract sometime in January 2005 to modify its own wastewater treatment plant at a cost of between $12 and $13 million. The Colony never sent any of its wastewater to the plant for treatment by the District, but the District never denied The Colony its right to access capacity in the plant. The Colony paid approximately $800,000 to the District from 1999 to 2004 and then ceased making payments under the Contract. Frisco thereafter became responsible for The Colony’s share of the payments. Frisco paid $642,863.98 of The Colony’s payments due under the Contract. The Colony filed suit in June 2004. It claimed in part the following in its third amended petition: “In 2002, the Environmental Protection Agency and Texas Commission on Environmental Quality advised Plaintiff that its current wastewater treatment was inadequate, and gave The Colony a twenty-four month deadline for coming into compliance with all applicable regulations”; “Frisco refused to grant access easements or otherwise cooperate unless The Colony would also convey part of its territory to” Frisco; the District advised The Colony that “it could not treat The Colony’s wastewater” at the plant; the District “offered The Colony an opportunity to participate in a newly expanding region at an additional cost of approximately $170,000,000, of which [The Colony] would pay its proportionate share”; “both Defendants attempted to negotiate new terms that were materially different from those in the original agreement”; and “[bjoth defendants were unready, unwilling, and unable to abide by the terms of the original agreement.” The Colony sought a declaration that no contract was formed because (1) there was no meeting of the minds regarding a material feature of the Contract, (2) the promise of the District was illusory and created no mutuality of obligation, (3) the terms of the Contract were vague, ambiguous, and not sufficient to bind either defendant, (4) the Contract violates state law, and (5) the Contract violates public policy. The Colony further sought a declaration that it was entitled to the quasi-contractual remedy of unjust enrichment. Alternatively, “in the event [the] court [found] that a valid contract was formed,” The Colony sought a declaration that it was entitled to rescind the Contract because (1) there was a failure of consideration, (2) there was a mutual mistake of material fact, (3) the opposing parties expressed an intent not to perform them obligations, (4) there was a unilateral mistake by The Colony, and (5) one or more of the defendants have been unjustly enriched. In addition to asserting a promissory estoppel claim and a request for attorneys’ fees, The Colony sought a declaration that its liability under the Contract had been released and extinguished by the defendants’ failure to perform in addition to a “writ of mandamus” “[ujpon the issuance of declaratory relief.” The Colony’s first supplemental petition further alleged a claim for breach of contract against both Frisco and the District. According to Cheatham, The Colony wants the money it paid under the Contract back, and it wants to be removed from the Contract. Frisco moved for summary judgment on both traditional and no evidence grounds on all of The Colony’s claims, and it moved for summary judgment on its breach of contract counterclaim. The District moved for summary judgment on traditional grounds on all of The Colony’s claims, but it asserted no evidence grounds for summary judgment on only some of The Colony’s claims. With a few exceptions, discussed below, the trial court granted Frisco’s and the District’s motions for summary judgment. This appeal followed the trial. III. Motions for Summary Judgment In its first and second issues, The Colony challenges the trial court’s grant of summary judgment in favor of Frisco and the District on The Colony’s claims and in favor of Frisco on Frisco’s breach of contract counterclaim. A. Standards of Review The no evidence summary judgment standard of review provides that, after an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant’s claim or defense. Tex.R. Civ. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id.; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex.2002). The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact. See Tex.R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). When reviewing a no evidence summary judgment, we examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fact, then a no evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied). Under the traditional motion for summary judgment standard of review, the issue on appeal is whether the movant met the summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(e); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. Sw. Elec. Power Co., 73 S.W.3d at 215. When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant’s cause of action or defense as a matter of law. Clear Creek Basin, 589 S.W.2d at 678. A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004). Once the defendant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); see Tex.R. Civ. P. 166a(b), (c). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex.1996). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex.R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). When a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial court’s judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004). B. Declaration — No Contract Formed Claims The Colony sought a declaration that no contract was formed because there was no meeting of the minds, the terms of the Contract are vague and ambiguous, the promises involved in the Contract are illusory and created no mutuality of obligation, the Contract violates the Texas Government Code, and the Contract violates public policy. 1. Meeting of the Minds Frisco and the District moved for summary judgment on The Colony’s claim seeking a declaration that no contract was formed because there was no meeting of the minds. The District sought a summary judgment on this claim on traditional grounds only. Parties enter into a binding contract when the following elements exist: an offer; an acceptance in strict compliance with the terms of the offer; a meeting of the minds; each party’s consent to the terms; and execution and delivery of the contract with the intent that it be mutual and binding. Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex.App.-San Antonio 1999, pet. denied). “Meeting of the minds” describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex.App.Dallas 1999, pet. denied). Mutual assent, concerning material, essential terms, is a prerequisite to formation of a binding, enforceable contract. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992). Parties, however, may agree to the material terms of a contract but leave other matters open for later negotiation; it is only when an essential term is left open for future negotiation that no binding contract exists. Kelly v. Rio Grande Computerland Group, 128 S.W.3d 759, 766 (Tex.App.-El Paso 2004, no pet.); Komet v. Graves, 40 S.W.3d 596, 602 (Tex.App.-San Antonio 2001, no pet.). The determination of whether there is a meeting of the minds, and thus offer and acceptance, is based upon objective standards of what the parties said and did and not on their subjective state of mind. Copeland, 3 S.W.3d at 604. a. Frisco The Colony’s sole argument that it raised a genuine issue of material fact on its meeting of the minds claim is that “the parties left the issue of access to the plant open for future negotiation.” It contends that the Contract did not set forth where the pipelines would be located, the size of the pipelines, or the timing of the pipeline installation. The Colony thus argues that a fact issue exists on this claim because there was no meeting of the minds regarding how the parties were to transport their wastewater to the plant. The Contract indeed does not set forth any details of how The Colony and Frisco are to transport their wastewater to the plant. Furthermore, Lambert testified in his deposition that the parties agreed that the point of entry would be at the plant itself but that the negotiations regarding how The Colony intended to transport its wastewater to the point of entry was an issue that was intended to be addressed after the Contract was executed. Although the parties had discussions about “access” before the Contract’s execution, Lambert expected the final agreements of how the pipelines were to be constructed to be documented in another written contract. Although this evidence is undisputed, none of it raises a genuine issue of material fact that no contract was formed for failure to achieve a meeting of the minds because the issue of how The Colony was to transport its wastewater to the plant is neither an essential term of the Contract nor part of the Contract’s subject matter; it is thus not a prerequisite for the Contract to be binding and enforceable. This is so because the plain and unambiguous language of the Contract demonstrates that the parties entered into an agreement for the District to provide access to the plant and to treat The Colony’s and Frisco’s wastewater in exchange for annual payments. The purpose of the Contract is accordingly treatment — not transportation — of wastewater. Consistent with this purpose, the Contract deliberately does not account for the means by which waste-water is transported to the point of entry because that is beyond the Contract’s scope. Section 8.03 of the Contract specifically provides that it is the “sole responsibility” of The Colony and Frisco to transport them wastewater to the point of entry. The definitions of “District’s System,” “Regional System,” “Regional Wastewater System,” or “System” additionally specifically exclude from their meaning “any facilities required to transport wastewater to any Point of Entry of the District’s System.” Moreover, Lambert testified that transportation of wastewater was a “secondary issue” at the time of the Contract’s execution and that the purchase of capacity was the “major victory.” The Colony subjectively reads more into the Contract than what is there, which is contrary to the objective standard by which we are to view this meeting of the minds issue. See id. Because the issue of wastewater transportation is not an essential or material term of the Contract, the parties were free to, as they clearly did, leave this issue open for future negotiation. See Kelly, 128 S.W.3d at 766. Accordingly, we hold that The Colony failed to raise a genuine issue of material fact in response to Frisco’s challenge to The Colony’s claim seeking a declaration that no contract was formed because there was no meeting of the minds and that the trial court did not err by granting Frisco’s motion for summary judgment on this ground. See Tex.R. Civ. P. 166a(i). We overrule this part of The Colony’s first issue. b. The District We reach the same conclusion regarding the District’s motion for summary judgment on this ground. The District submitted as summary judgment evidence the Contract, Parks’s affidavit, and the deposition testimony of Lambert and Cheatham, among other things. As stated above, the Contract shows that the parties entered into an agreement for the District to provide wastewater treatment for The Colony and Frisco, and the Contract specifically places' the responsibility of transporting the wastewater to the point of entry on Frisco and The Colony. Parks affirmed that “[t]he District did not enter into an agreement with The Colony to construct its wastewater transmission lines” and that “[n]o District funds were available for the construction of the Colony’s wastewater transportation lines because the Contract expressly placed the obligation for transporting The Colony’s wastewater upon The Colony.” Consequently, “[h]ow the Colony was to transport its wastewater was outside of the scope of the agreement[,] and no provision was made under the terms of the Contract for [the District] to transport or provide for the transportation of[ ] The Colony’s wastewater.” Lambert testified that it was his understanding that The Colony was responsible for transporting its wastewater to the plant and that the negotiations between The Colony and Frisco regarding the utilization of existing pipelines and easements would be conducted later. And although Cheatham thought the District had some obligation to make Frisco give The Colony access to its lines, he agreed that, pursuant to section 3.03 of the Contract, it was The Colony’s responsibility to get its wastewater to the plant. The District having met its summary judgment burden, The Colony relies on the same evidence and argument as it does in the portion of its brief addressing Frisco’s motion for summary judgment on this ground. Because there is no evidence that wastewater transportation is an essential or material term of the Contract, we hold that The Colony failed to raise a genuine issue of material fact in response to the District’s challenge to The Colony’s claim seeking a declaration that no contract was formed because there was no meeting of the minds. See Tex.R. Civ. P. 166a(c). Accordingly, the trial court did not err by granting the District’s motion for summary judgment on this ground, and we overrule this part of The Colony’s second issue. 2. Vague and Ambiguous Frisco and the District moved for summary judgment on The Colony’s claim seeking a declaration that no contract was formed because the terms of the agreement are vague and ambiguous. The District sought summary judgment on this claim on traditional grounds only. Our primary concern when construing a written contract is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Heil Co. v. Polar Corp., 191 S.W.3d 805, 810 (Tex.App.-Fort Worth 2006, pet. denied). This is achieved by examining and considering the entire writing in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. Coker, 650 S.W.2d at 393. We presume that the parties to the contract intend every clause to have some effect. Heritage Res., Inc. v. Nations-Bank, 939 S.W.2d 118, 121 (Tex.1996); XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 627 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). We give terms their plain, ordinary, and generally accepted meaning unless the contract shows the parties used them in a technical or different sense. Heritage Res., 939 S.W.2d at 121. When we have the choice of construing a contract as valid or as void, we construe it in such a way as to make it valid. Mays v. Pierce, 154 Tex. 487, 494, 281 S.W.2d 79, 82 (1955). A contract that can be given a definite or certain legal meaning is unambiguous as a matter of law. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003). Lack of clarity does not create an ambiguity, and a contract is not ambiguous simply because the parties advance conflicting interpretations. Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex.2003); Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). Rather, a contract is ambiguous when its meaning is uncertain or is reasonably susceptible to more than one meaning. Coker, 650 S.W.2d at 393. In the event that two provisions of a contract arguably conflict, courts apply rules of construction to harmonize the provisions. Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983). A specific provision controls over a general provision. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex.1994). Where the meaning of a contract is unambiguous, a party’s construction is immaterial. 718 Assocs. Ltd. v. Sunwest N.O.P., Inc., 1 S.W.3d 355, 360 (Tex.App.-Waco 1999, pet. denied). Regarding recitals in a contract, “[a]s a general rule, recitals ... will not control the operative clauses thereof unless the latter are ambiguous.... ” Gardner v. Smith, 168 S.W.2d 278, 280 (Tex.Civ.App.-Beaumont 1942, no writ). “[W]here the recitals are broader than the contract stipulations, the former will not extend the latter.” Id. a. Frisco The Colony argues that it raised a genuine issue of material fact that the Contract is vague and ambiguous because the Contract is “susceptible to multiple interpretations by differing experienced professionals” and because “the parties entered into the agreement with differing interpretations regarding their respective rights and obligations.” Thus, multiple interpretations is the basis of The Colony’s arguments. The Colony relies in part on Johnston’s deposition testimony in which he explains the basis of his opinion that the District breached the Contract. One reason that he thought the District breached the Contract was that he interpreted the Contract as requiring the District to work with The Colony in setting up pipelines by which to transport The Colony’s wastewater to the plant. The basis of Johnston’s interpretation is the “red book,” which is mentioned at the beginning of the agreement pursuant to a “Whereas” statement that the “red book” has been “prepared for and filed with the District” and that “the parties hereto wish to further implement the” “red book” and “provide for the acquisition, construction, improvement, operation and maintenance of a Regional Wastewa-ter System (the “System”) for the purpose of providing facilities to adequately receive, transport, treat, and dispose of Wastewater.” [Emphasis added.] The Colony also relies on the deposition testimony of Cheatham to raise a fact issue. In construing section 2.01, which provides that the District “will use its best efforts to design, acquire, construct, and complete the System” in order to “provide services for receiving, transporting, treating, and disposing” of wastewater, Cheat-ham testified that he thought the District had not complied with the “best efforts” language because the pipelines set forth in the “red book” had not been constructed yet. [Emphasis added.] According to Cheatham, the District had a responsibility to ensure that the pipelines would be constructed by requiring Frisco to give The Colony access to its existing pipelines and easements. The Colony further relies on Dillard’s deposition testimony in which he elaborated on his interpretation of the Contract and on his opinions regarding the District’s failures to comply with the Contract. Dillard opined that the District failed to comply with the initial portion of the Contract stating that there has been a report prepared (the “red book”); that the parties wished to implement the report; and that they would provide for the acquisition, construction, improvement, operation, and maintenance of the System in order to provide facilities to adequately receive, transport, treat, and dispose of wastewa-ter. From the first page alone, Dillard interpreted the Contract to require the District to “basically acquire what’s necessary for us [The Colony] to link up with their plant to become part of the regional wastewater treatment plant, to include easements, the pipes, the pumping station, and anything else necessary for us to receive services for the present and the future.” Dillard also opined that the portion of the Contract stating that the District would issue bonds from time to time in the future to acquire, construct, extend, enlarge, improve, “and/or” repair the system imposes an obligation on the District to acquire easements and construct the pipelines to facilitate The Colony’s transportation of its wastewater to the plant. According to Dillard, the District is supposed “to design it, they are to acquire and construct.” The Colony, on the other hand, is obligated to “deliver the effluent from our plant. Our responsibility is merely to provide the effluent. They are to provide the design, acquisition]],] and construction.” Dillard opined that the District “did not produce the hardware for then- plant hookup.” The Colony thus contends that there is a fact issue concerning its vague and ambiguous claim based on the multiple interpretations of the portions of the Contracts relating to (1) implementation of the “red book” for, among other things, the purpose of transporting wastewater, (2) the issuance of bonds to acquire and construct the System, and (3) the best efforts that the District is to use to provide services for, among other things, the transportation of wastewater. None of this evidence, however, raises a genuine issue of material fact that the Contract is vague and ambiguous because each of the interpretations conflict with the well established rules of contract construction set forth above. The interpretations ignore the requirement that we ascertain the true intent of the parties by examining and considering the entire Contract to give effect to all of the Contract’s provisions. See Coker, 650 S.W.2d at 393. The Colony’s reliance on the portions of the Contract that they claim raise a fact issue regarding multiple interpretations rests entirely upon a reading and interpretation of those parts of the Contract in isolation. Although there are initial portions of the Contract that generally refer to implementation of the “red book” for the purpose of transporting wastewater, the issuance of bonds to acquire and construct the System, and the best efforts that the District is to use to provide services for the transportation of wastewater, an examination of the entire Contract demonstrates that it specifically addresses the issue of transportation when it (1) clarifies that The Colony and Frisco are solely responsible for transporting their wastewater to the point of entry, (2) excludes facilities required to transport wastewater from the definition of “System,” (3) includes only those facilities that are acquired, constructed, used, or operated by the District to provide wastewater treatment services in the definition of “System,” and (4) defines the “System” as consisting of the “Plant” and nothing else. These are specific provisions addressing the matter of wastewater transportation, and they accordingly control over the general, isolated statements referring to “transportation” that The Colony relies on. See Forbau, 876 S.W.2d at 133-34. The Colony’s interpretations of the Contract are likewise adverse to the presumption that the parties intended every clause of the Contract to have some effect and additionally result in the rendering meaningless of significant parts of the Contract specifically addressing wastewater transportation. See Heritage Res., Inc., 939 S.W.2d at 121. Thus, it is only when we examine the entire Contract and give effect to all of its provisions that the true intent of the parties regarding wastewater transportation is clearly revealed: the District promised to treat — not transport— The Colony’s and Frisco’s wastewater in exchange for annual payments. Moreover, The Colony cannot raise a fact issue regarding the Contract’s alleged ambiguity simply by advancing the conflicting interpretations of its city officials; the Contract is ambiguous only if it is “reasonably susceptible” to more than one meaning. See Coker, 650 S.W.2d at 393. None of the interpretations advanced by The Colony are “reasonable” because they unquestionably conflict with fundamental rules of contract construction. Consequently, the Contract is not reasonably susceptible to any of the interpretations proposed by The Colony. Indeed, conversely, our analysis shows that the Contract is unambiguous as a matter of law because it can be given a definite or certain legal meaning. See id. We hold that The Colony failed to raise a genuine issue of material fact in response to Frisco’s challenge to The Colony’s claim seeking a declaration that no contract was formed because the terms of the agreement are vague and ambiguous and that the trial court did not err by granting Frisco’s motion for summary judgment on this ground. See Tex.R. Civ. P. 166a(i). Accordingly, we overrule this part of The Colony’s first issue. b. The District The Colony relies on the same evidence and argument as it does in the portion of its brief addressing Frisco’s motion for summary judgment on this ground. We thus reach the same conclusion regarding the District’s motion for summary judgment on this ground. We hold that The Colony failed to raise a genuine issue of material fact in response to the District’s challenge to The Colony’s claim seeking a declaration that no contract was formed because the terms of the agreement are vague and ambiguous and that the trial court did not err by granting the District’s motion for summary judgment on this ground. See Tex.R. Civ. P. 166a(c). We overrule this part of The Colony’s second issue. 3. Illusory and Mutuality of Obligation Frisco and the District moved for summary judgment on The Colony’s claim seeking a declaration that no contract was formed because the promises involved in the Contract were illusory and created no mutuality of obligation. Both Frisco and the District moved for summary judgment on no evidence grounds. A bilateral contract is one in which there are mutual promises between two parties to the contract, each being both a promisor and a promisee. Hutchings v. Slemons, 141 Tex. 448, 174 S.W.2d 487, 489 (1948). A bilateral contract must be based upon a valid consideration, in other words, mutuality of obligation. Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex.1997). Consideration may consist of either benefits or detriments to the contracting parties — it may consist of some right, interest, profit, or benefit that accrues to one party, or alternatively, of some forbearance, loss, or responsibility that is undertaken or incurred by the other party. In re C & H News Co., 133 S.W.3d 642, 647 (Tex.App.-Corpus Christi 2003, orig. proceeding). The existence of a written contract presumes consideration for its execution. Doncaster v. Hernaiz, 161 S.W.3d 594, 603 (Tex.App.-San Antonio 2005, no pet.). A contract that lacks mutuality of obligation is illusory and void and thus unenforceable. Tex. S. Univ. v. State Street Bank & Trust Co., 212 S.W.3d 893, 914 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). An illusory promise of performance invalidates a bilateral contract. Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 645 (Tex.1994). A promise is illusory when it fails to bind the promisor who retains the option of discontinuing performance. Id.; D.R. Horton, Inc. v. Brooks, 207 S.W.3d 862, 867 (Tex.App.-Houston [14th Dist.] 2006, no pet.). a. Frisco The Colony argues that its summary judgment evidence establishes that “Frisco did not consider itself to be bound by any of the provisions in the contract.” The only argument that The Colony advances to support this broad contention is that Frisco did not cooperate with The Colony in allowing access to its pipelines or easements. Specifically, The Colony is referring to summary judgment evidence regarding the ongoing, municipal dispute between itself and Frisco over the land known as the “lightning bolt” and the “finger.” The Colony’s evidence shows that it annexed the disputed land some time in the 1980s, that a portion of the land was in Frisco’s extraterritorial jurisdiction, that Frisco “didn’t like” what The Colony had done, and that Frisco wants the land back. During his deposition, Cheatham discussed an October 23, 2002 letter addressed to Frisco’s mayor in which The Colony’s may- or indicated that she had received a “proposed boundary adjustment agreement” from Purefoy that requested The Colony to relinquish the “lightning bolt,” the “finger,” and possibly some additional land. The following exchange then occurred: [The District’s attorney]: All right. And so it’s your understanding that, at least at this point in time, the proposition proposal by the City of Frisco in October of 2002 was that you give up this 1499.462 acres, and in exchange the City of The Colony would be granted access to Frisco’s sewer lines and easements to get to the Stewart Creek West facility? [Cheatham]: Based on this, that would appear to be the ease. Johnston’s deposition testimony reflected Cheatham’s deposition testimony. He opined that the annexation dispute served as the basis for Frisco’s “refusal” to allow The Colony access to its easements and that Frisco would have given The Colony access to its existing lines if the Colony had relinquished its claim to the disputed land. The Colony also submitted a few emails between Cheatham and Purefoy in which they discuss the annexation issue. Pure-foy indicated in one email that Frisco wanted the “annexation issue” to be resolved before “moving forward on the sewer line issue.” None of this evidence concerning the boundary dispute between Frisco and The Colony raises a genuine issue of material fact regarding The Colony’s claim that Frisco’s obligations under the Contract were illusory or lacking mutuality of obligation because the issue of and the circumstances surrounding The Colony’s negotiations with Frisco for pipelines or easement access are distinct from and beyond the scope of Frisco’s obligations under the Contract. We look to the Contract first. It outlines Frisco’s obligations, which include, but are not limited to, Frisco’s right to discharge wastewater into the System in consideration for payments to the District, Frisco’s agreement to limit discharge into the System that complies with quality requirements that the District may establish, and Frisco’s agreement to make payments to the District “for services to be rendered to each Participant.” As we have already discussed, the Contract makes clear that transportation of wastewater to the plant is the sole responsibility of Frisco and The Colony. Other than this, the Contract does not set forth any terms and conditions regarding The Colony’s or Frisco’s transportation of wastewater to the point of entry. Consequently, the terms set forth within the four corners of the Contract impose no wastewater transportation obligations on Frisco in which Frisco retains the option of performing or not performing those obligations. See Light, 883 S.W.2d at 645. The “set forth within the four corners of the Contract” language immediately above is significant because The Colony’s argument centers on facts surrounding an issue that is beyond Frisco’s obligations under the Contract. According to Lambert, whom Johnston agreed “has the most knowledge and best understanding of the negotiations before and leading up to and entry into the contract,” the major victory for The Colony was the capacity that it acquired in the plant. There were discussions in the latter part of the meetings leading up to the execution of the Contract regarding wastewater transportation, but Lambert described this as a “secondary issue.” The actual negotiations between The Colony and Frisco regarding wastewa-ter transportation to the point of entry were to be conducted at some point after the Contract’s execution, and the final agreements concerning the same would be documented in another written contract. Lambert’s testimony is thus not inconsistent with the terms of the Contract. As Lambert contemplated, The Colony and Frisco negotiated the issue of waste-water transportation after the Contract had been executed, which was also after The Colony had made payments to the District pursuant to the terms of the Contract. The summary judgment evidence shows that it is only at this point — after the Contract had been executed — that the border dispute between The Colony and Frisco over the “lightning bolt” and the “finger” became an issue in the context of this case. The summary judgment evidence thus demonstrates that the circumstances surrounding the post-Contract wastewater negotiations between The Colony and Frisco are mutually exclusive of Frisco’s general obligations under the Contract. Frisco’s obligations under the Contract are not rendered illusory simply because The Colony and Frisco never reached an agreement on the wastewater transportation issue. See id. And nothing in the Contract addresses or limits Frisco’s post-Contract ability to negotiate issues not addressed in the Contract. At least one individual associated with The Colony seems to have recognized that the border dispute and the failed negotiations between The Colony and Frisco concerning the issue of wastewater transportation are matters beyond the scope of the Contract. Lambert testified: [The District’s attorney]: But as far as making that final jump from Austin Ranch and Wynnewood Peninsula across the City of Frisco to the Stewart West plant, you didn’t start those negotiations before you left, correct? [Lambert]: To my eternal shame, no, I did not start those negotiations before I left. We hold that The Colony failed to raise a genuine issue of material fact in response to Frisco’s challenge to The Colony’s claim seeking a declaration that no contract was formed because the promises involved in the Contract were illusory and created no mutuality of obligation and that the trial court did not err by granting Frisco’s motion for summary judgment on this ground. See Tex.R. Civ. P. 166a(i). We overrule this part of The Colony’s first issue. b. The District As for the District, The Colony’s specific argument seems to be that the District was not bound by its obligation to treat The Colony’s wastewater because the District did not have the capacity to accept The Colony’s wastewater. According to The Colony, “No benefit is gained by Plaintiff transporting its wastewater to a plant that does not have capacity to treat it.” The Colony directs us to summary judgment evidence that it contends shows that the District did not have the capacity to treat its wastewater. Assuming without deciding that this evidence shows that the District did not have the capacity to treat its wastewater, it nonetheless does not raise a genuine issue of material fact in support of The Colony’s illusory or mutuality of obligation claim because it is evidence of a possible breach of contract, not of an illusory obligation. The Contract sets forth the District’s obligations, including that the District will issue bonds to provide for the System; that the District will use its best efforts to design, acquire, construct, and complete the System; and that the District will operate and maintain the System to provide service to The Colony and Frisco. Cheatham agreed at his deposition that to the best of his knowledge, the District has been willing to provide wastewater treatment for The Colony and that this in turn provided value to The Colony. Lambert testified to the same, opining that the signing of the Contract gave The Colony value, i.e., capacity in the plant. The Contract thus bound the District to provide capacity to The Colony for waste-water treatment in exchange for payments. This obligation is not illusory because the District may not choose to disavow or ignore it at its option. See Brooks, 207 S.W.3d at 867. Nor are the District’s capacity and treatment obligations illusory if the District fails to abide by those obligations. That is a set of circumstances more appropriately addressed in a breach of contract context because it concerns an alleged failure by the District to abide by the terms of the Contract. We hold that The Colony failed to raise a genuine issue of material fact in response to the District’s challenge to The Colony’s claim seeking a declaration that no contract was formed because the promises involved in the Contract were illusory and created no mutuality of obligation and that the trial court did not err by granting the District’s motion for summary judgment on this ground. See Tex.R. Civ. P. 166a(i). We overrule this part of The Colony’s second issue. 4. State Law Violation Frisco and the District moved for summary judgment on The Colony’s claim seeking a declaration that the Contract violates the government code. Both Frisco and the District moved for summary judgment on no evidence grounds. Chapter 791 of the government code covers interlocal cooperation contracts. Tex. Gov’t Code Ann. §§ 791.001-.033 (Vernon 2004 & Supp.2008). The purpose of the chapter is to increase the efficiency and effectiveness of local governments by authorizing them to contract with one another and with agencies of the state. Id. § 791.001. The chapter expressly allows for contracts between a municipality and a district or river authority for wastewater treatment facilities. Id. § 791.026(a)(1). The Colony alleged in its third amended original petition that the Contract is null and void for failure to comply with government code sections 791.011(d)(2) and 791.011(e). Section 791.011(d)(2) provides that an interlocal contract must “state the purpose, terms, rights, and duties of the contracting parties.” Id. § 791.011(d)(2). Section 791.011(e) provides that “[a]n in-terlocal contractual payment must be in an amount that fairly compensates the performing party for the services or functions performed under the Contract.” Id. § 791.011(e). The Colony’s sole argument under section 791.011(d)(2) is that it “introduced summary judgment evidence to raise a genuine fact i