Opinion issued January 31, 2013.




                                   In The

                            Court of Appeals
                                   For The

                        First District of Texas
                         ————————————
                            NO. 01-11-00665-CV
                         ———————————
       CSL PROPERTY MANAGEMENT CO. AND GREATLAND
                INVESTMENTS, INC., Appellants
                                     V.
           THYSSENKRUPP ELEVATOR COMPANY, Appellee



                  On Appeal from the 11th District Court
                          Harris County, Texas
                    Trial Court Case No. 2009-75846



                        MEMORANDUM OPINION

     This is a dispute between an elevator contractor and the manager and owner

of a building over the work performed and payments owed under the parties’

contracts. CSL Property Management Co. and Greatland Investments, Inc. appeal
from the trial court’s summary judgment in favor of ThyssenKrupp Elevator

Company. We affirm the trial court’s judgment.

                                  Background

      Greatland owns the Sterling Center, a commercial building managed by

CSL. Hurricane Ike caused damage to the Sterling Center, including its elevator.

Greatland hired Emergency Services 24, Inc. to repair the building, and Emergency

Services subcontracted the elevator work to ThyssenKrupp. The subcontract

provided for upfront payment of 30% of the contract price ($31,393.50), with the

remainder of the contract price (originally $96,558) to be paid later. Emergency

Services paid ThyssenKrupp the $31,393.50 initial payment on a credit card in the

name of Micah Bass, Emergency Services’ owner. After receiving the initial

payment, ThyssenKrupp started work on the elevator. Emergency Services

subsequently had a dispute with Greatland and left the project in December 2008.

      After   Emergency Services      left   the project,   CSL   requested   that

ThyssenKrupp remain on the job. CSL and ThyssenKrupp executed a change order

that adjusted ThyssenKrupp’s compensation under the elevator subcontract from

$96,558 to $92,269. At ThyssenKrupp’s request, CSL also sent ThyssenKrupp a

letter, signed by CSL’s president, in which CSL “hereby assum[ed] all terms,

conditions, and obligations of the elevator modernization contract previously held




                                        2
by Emergency Services 24, Inc.” In the letter, CSL stated, “ThyssenKrupp will

retain the $31,393.50 as initial payment toward the contract price.”

      In January 2009, Bass and Emergency Services disputed the $31,393.50

credit card payment to ThyssenKrupp.

      In March, CSL and ThyssenKrupp executed an assumption agreement, under

which CSL assumed Emergency Services’ rights and obligations under the

subcontract. In the assumption agreement, CSL and ThyssenKrupp modified the

subcontract’s price provision to provide for compensation in the amount of

$60,875.50 (the modified contract price of $92,269 less the initial payment of

$31,293.50 from Emergency Services). The assumption agreement also contained

an indemnity provision:

      3.4    Indemnification

      In addition to the indemnification provision of the Subcontract CSL
      further agrees to defend, indemnify and hold harmless ThyssenKrupp,
      its parents, subsidiaries, affiliates, employees, subcontractors,
      insurers, attorneys, and agents, from any and all claims, demands,
      suits, and/or proceedings brought or made by [Emergency Services],
      or any of their parents, subsidiaries, affiliates, employees,
      subcontractors, insurers, attorneys, and agents arising out of or related
      to this Assumption Agreement, the Subcontract, ThyssenKrupp
      Elevator’s retention of the Initial Payment and ThyssenKrupp’s
      performance pursuant to the Subcontract from February 20, 2009
      forward, excluding any claim(s) by [Emergency Services] for
      improper Elevator Work provided by ThyssenKrupp pursuant to the
      Subcontract, prior to February 20, 2009. . . .




                                         3
      An early draft of the agreement included an “additional compensation”

provision stating, “As consideration for entering into this Assumption Agreement

and in the event that ThyssenKrupp is required to return the $31,293.50 to

[Emergency Services], CSL shall compensate ThyssenKrupp for the full contract

value: $92,269.” This provision was rejected by CSL and not included in the final

written agreement. The parties assert that they were not aware that Bass had

disputed the $31,293.50 payment with his credit card company at the time they

executed the assumption agreement.

      In June, Bass’s credit card company charged-back the $31,393.50 payment

to ThyssenKrupp. ThyssenKrupp appealed the chargeback with the credit card

company but lost due to a lack of documentation of the transaction.1 After the

chargeback became final, Greatland sued Bass and Emergency Services seeking to

recover the $31,393.50 payment. In the lawsuit, Greatland alleged that Bass and

Emergency Services “rushed to Houston” from Florida in the wake of Hurricane

Ike and “targeted Hurricane Ike victims who were property owners,” particularly

“business owners in Houston’s local Vietnamese community,” by “promising to

make emergency repairs at no cost” and by obtaining insurance proceeds for the

repairs, which Bass and Emergency Services never intended to complete. With


1
      Both parties blame the other party for failing to adequately document Emergency
      Services’ role in the project.

                                         4
respect to the subject matter of this lawsuit, Greatland alleged that Bass and

Emergency Services had obtained insurance proceeds from Greatland’s insurer to

cover the $31,393.50 payment to ThyssenKrupp and had retained the insurance

proceeds despite having secured a chargeback of the payment. The court ultimately

dismissed that suit by agreement of the parties to the suit.

      In August, ThyssenKrupp demanded that CSL reimburse the $31,393.50

chargeback pursuant to the indemnity provision in the assumption agreement. CSL

disputed any indemnity obligation and also did not pay ThyssenKrupp the

$60,875.50 balance owed under the subcontract for ThyssenKrupp’s elevator work.

ThyssenKrupp initiated this suit in November 2009 to recover both

indemnification for the $31,393.50 initial payment and payment of the $60,875.50

for the elevator work performed. CSL and Greatland filed counterclaims and

“cross-claims” against ThyssenKrupp asserting that ThyssenKrupp had failed to

deliver functioning elevators. According to ThyssenKrupp, the elevators were

completed but not turned on due to CSL’s nonpayment. A few months after

ThyssenKrupp filed suit, CSL sent ThyssenKrupp a check for $60,875.50 but

labeled the check, “Final payment in complete satisfaction of assumption of the

subcontract agreement.” ThyssenKrupp returned the check to CSL’s attorneys.




                                           5
      Shortly before trial, the parties filed cross-motions for summary judgment.2

The trial court granted summary judgment in favor of ThyssenKrupp on all of its

claims, awarding ThyssenKrupp $92,269 on its claims against CSL, plus attorneys’

fees and interest, and entering a take-nothing judgment on CSL’s and Greatland’s

claims against ThyssenKrupp. This appeal followed.

                            ThyssenKrupp’s Claims

      CSL’s and Greatland’s first three issues challenge the trial court’s judgment

in favor of ThyssenKrupp on its claims against CSL. ThyssenKrupp sought and

obtained summary judgment against CSL on its claims for breach of contract and

suit on verified account, each of which sought recovery of damages in the amount

of $92,269—the full contract price, including reimbursement for the initial

payment. The trial court granted ThyssenKrupp’s summary judgment motion and

awarded ThyssenKrupp $92,269 in damages.

A.    Standard of review

      The parties filed cross-motions for traditional summary judgment on

ThyssenKrupp’s claims against CSL. We review summary judgments de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); City of

Galveston v. Tex. Gen. Land Office, 196 S.W.3d 218, 221 (Tex. App.—Houston

2
      ThyssenKrupp moved for summary disposition of all claims, including CSL’s and
      Greatland’s claims against it. CSL and Greatland moved for traditional summary
      judgment on ThyssenKrupp’s claim for contractual indemnity only.

                                         6
[1st Dist.] 2006, pet. denied). When, as here, the parties file cross-motions for

summary judgment on overlapping issues, and the trial court grants one motion and

denies the other, we review the summary judgment evidence supporting both

motions and “render the judgment that the trial court should have rendered.” FM

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

      ThyssenKrupp was entitled to summary judgment on its claims against CSL

if it conclusively established each element of its claims. See TEX. R. CIV. P.

166a(c); Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010);

City of Galveston, 196 S.W.3d at 221. CSL was entitled to summary judgment on

ThyssenKrupp’s claims if it conclusively negated at least one essential element of

the claims or conclusively established each element of an affirmative defense to

the claims. See TEX. R. CIV. P. 166a(c); Frost Nat’l Bank, 315 S.W.3d at 508–09.

Because the summary judgment does not specify the grounds on which it was

granted, CSL and Greatland must demonstrate that none of the proposed grounds is

sufficient to support the judgment. See Rogers v. Ricane Enters., 772 S.W.2d 76,

79 (Tex. 1989); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.—Houston [1st

Dist.] 1988, writ denied); West v. SMG, 318 S.W.3d 430, 437 (Tex. App.—

Houston [1st Dist.] 2010, no pet.). Conversely, we will affirm the judgment if any

one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine

Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004); West, 318 S.W.3d at 437.

                                        7
B.    ThyssenKrupp’s indemnity claim

      In their first issue, CSL and Greatland challenge the trial court’s traditional

summary judgment in favor of ThyssenKrupp on its contractual indemnity claim

for the $31,393.50 initial payment.

      1.     The parties’ arguments

      CSL and Greatland contend that CSL’s indemnity obligation applies only to

claims “brought or made . . . from February 20, 2009 forward,” and therefore does

not apply to the $31,393.50 chargeback, which CSL asserts was first initiated with

the credit card company in January 2009. Alternatively, CSL and Greatland

contend that the $31,393.50 charge dispute falls within the indemnity clause’s

exclusion of claims by Emergency Services “for improper Elevator Work provided

by ThyssenKrupp” before February 20, 2009. CSL and Greatland further argue that

the indemnity provision should be construed against ThyssenKrupp, as the drafter,

and should not be construed as applying to the initial payment because CSL

rejected the “additional compensation” draft provision that required CSL to

compensate ThyssenKrupp for the full contract price in the event that

ThyssenKrupp was required to return the initial payment. Finally, CSL contends

that it is ThyssenKrupp’s fault that Bass’s credit card company approved the

chargeback, and therefore ThyssenKrupp seeks indemnification for its own

negligence and is subject to the express negligence doctrine.

                                         8
      ThyssenKrupp responds that the indemnity provision expressly contemplates

indemnification relating to “ThyssenKrupp Elevator’s retention of the Initial

Payment” from Emergency Services; that it agreed to deletion of the “additional

compensation” provision only because the assumption agreement contained the

indemnity provision; that January 2009 is not the relevant date for the chargeback,

which the parties were not aware of until April 2009 and which did not actually

occur until June 2009; and that the chargeback did not arise out of “improper

Elevator Work” but rather out of Greatland’s removal of Emergency Services as

general contractor on the project. ThyssenKrupp also disputes that it was the

drafter of the assumption agreement, asserting that the parties worked together to

reach a mutually agreeable contract, and that it was at fault for the chargeback.

      2.     The summary judgment evidence of Bass’s claim

      CSL identifies January 30, 2009 as the relevant date based on a letter to Bass

from his credit card company that Bass filled out and returned. The letter from the

credit card company, dated January 29, 2009, states that it relates to Bass’s

“inquiry about the transaction dated 11/11/2008 in the amount of $31,393.50.” The

letter requests that Bass provide the credit card company with specific information

about when “the order was (CIRCLE ONE) cancelled/ returned,” why the “order

was cancelled,” and “the merchant’s response when you attempted to resolve your

dispute.” The letter also states that a “conditional credit has been issued in your

                                          9
account while we investigate this matter on your behalf.” Handwritten on the letter

is Bass’s response: he circled that the “order” was “returned” and provided the

return date as December 1, 2008. In the blank next to the sentence beginning, “This

order was cancelled because,” he wrote, “cancelled not my contract.” In response

to the request for details about “the merchant’s response when you attempted to

resolve your dispute,” he wrote, “The owner of elevator is to pay for this.” Bass

signed the letter and dated his signature January 30, 2009. The evidence does not

conclusively establish when the credit card company received Bass’s response, but

the letter bears a “received” stamp dated February 12, 2009.

      The record also contains a letter from Bass to his credit card company dated

March 3, 2009, with the subject line “re: Unauthorized charge on Personal Account

for Micah D. Bass.” In this letter, Bass asserted that ThyssenKrupp’s contract was

with Emergency Services, not Bass personally, and ThyssenKrupp did not have

authority to charge the initial payment to his personal credit card.

      Bass’s credit card company executed an “Expedited Billing Dispute

Resolution Process Form” on April 15, 2009. ThyssenKrupp and CSL each assert

that this is the date on which they became aware of the chargeback procedure.

Bass’s credit card company charged-back the initial payment on June 23, 2009,

and sent ThyssenKrupp notice of the chargeback on the same date.




                                          10
      3.    Rules of construction

      We construe indemnity provisions pursuant to the ordinary principles of

contract interpretation. See Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423

(Tex. 2000). Our primary purpose is to give effect to ThyssenKrupp’s and CSL’s

intent, as expressed in their agreement. See id.; Houston Exploration Co. v.

Wellington Underwriting Agencies, Ltd., 352 S.W.3d 462, 469 (Tex. 2011); Don’s

Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 23 (Tex. 2008). We

construe the assumption agreement in light of the facts and circumstances

surrounding its execution, but we may not consider parol evidence to vary the

terms of the agreement or to create ambiguity where the language of the agreement

is clear and unambiguous. See Houston Exploration, 352 S.W.3d at 469; Don’s

Bldg. Supply, 267 S.W.3d at 23; David J. Sacks, P.C. v. Haden, 266 S.W.3d 447,

450–51 (Tex. 2008). If the contract uses unambiguous language, we enforce it as

written. See David J. Sacks, 266 S.W.3d at 450–51; Fiess v. State Farm Lloyds,

202 S.W.3d 744, 753 (Tex. 2006). This is because the parties’ intent is “governed

by what they said in the agreement, not by what one side or the other alleges they

intended to say but did not.” Gilbert Tex. Const., L.P. v. Underwriters at Lloyd’s

London, 327 S.W.3d 118, 127 (Tex. 2010).




                                        11
      4.    Construction of the indemnity provision

      Under the assumption agreement’s indemnity provision, CSL agreed to

indemnify ThyssenKrupp “from any and all claims, demands, suits, and/or

proceedings . . . brought or made by” Emergency Services and its agents “arising

out of or related to . . . ThyssenKrupp Elevator’s retention of the Initial Payment

. . . from February 20, 2009 forward.” The central issue here is whether the

chargeback of the initial payment was brought or made “from February 20, 2009

forward.” The February 20 date used in the indemnity provision is also used

throughout the assumption agreement, demonstrating the parties’ intent that CSL

would effectively step into Emergency Services’ shoes with respect to the elevator

subcontract, but only from February 20 forward. For example, CSL “accept[ed]

and assume[d] the terms and conditions of the Subcontract from [Emergency

Services] and assume[d] all of the rights, benefits and obligations of [Emergency

Services], from February 20, 2009 forward and covenant[ed] and agree[d] to

observe and perform all of the duties and obligations including but not limited to

the payment directly to ThyssenKrupp for Elevator Work pursuant to the

Subcontract.” The parties do not specify in their briefing why they chose February

20 as the pivotal date. The evidence indicates that the assumption agreement,

which was ultimately executed in March, initially bore a February execution date.




                                        12
      Unlike the remainder of the contract, under which CSL’s obligations to

ThyssenKrupp generally arose on February 20 and continue forward in time,

CSL’s obligations under the indemnity provision may extend to events and

occurrences before February 20. So long as a “claim[], demand[], suit[], and/or

proceeding[]”is brought on or after February 20, and the subject matter is within

the scope of the indemnity provision, it does not matter when the events giving rise

to the claim, demand, suit, or proceeding occurred; the exception to this is the

exclusion for “improper” elevator work, discussed below.3 Relatedly, while the

remainder of the contract focuses on CSL’s assumption of pre-existing right and

obligations previously afforded to Emergency Services, the indemnity provision

3
      The terms “claim,” “demand,” and “proceeding” are not defined in the assumption
      agreement. We therefore give those terms their ordinary meaning, and may look to
      dictionaries for commonly accepted usages. See, e.g., Gilbert Tex. Const., 327
      S.W.3d at 127; E.I. Du Pont De Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800,
      806 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Black’s Law Dictionary’s
      definitions of “claim” include: “[t]he aggregate of operative facts giving rise to a
      right enforceable by a court,” “[t]he assertion of an existing right; any right to
      payment or to an equitable remedy, even if contingent or provisional,” “[a]
      demand for money or property to which one asserts a right,” “[a]n interest or
      remedy recognized at law; the means by which a person can obtain a privilege,
      possession, or enjoyment of a right or thing,” and “[a] right to payment or to an
      equitable remedy for breach of performance if the breach gives rise to a right to
      payment.” BLACK’S LAW DICTIONARY 240–41 (7th ed. 1999). It defines a
      “demand” as “[t]he assertion of a legal right” and “[a] request for payment of a
      debt or an amount due.” Id. at 441. Finally, it defines a “proceeding” as “[t]he
      regular and orderly progression of a lawsuit, including all acts and events between
      the time of commencement and the entry of judgment,” “[a]ny procedural means
      for seeking redress from a tribunal or agency,” “[a]n act or step that is part of a
      larger action,” and “[t]he business conducted by a court or other official body; a
      hearing.”

                                           13
imposes a new duty on CSL, not defined by Emergency Services’ rights or

obligations under the subcontract.

      A primary purpose of the assumption agreement, as evidenced on the face of

the agreement, is to protect ThyssenKrupp from the risks associated with

Greatland’s removal of Emergency Services as the general contractor for the

project after the project commenced, especially with respect to payment of the

contract price. References to this can be found throughout the agreement: “CSL

hereby . . . covenants and agrees to observe and perform all of the duties and

obligations including but not limited to the payment directly to ThyssenKrupp for

Elevator Work pursuant to the Subcontract”; “CSL further acknowledges and

agrees with ThyssenKrupp that, subject to the applicable provision(s) of the

Subcontract, CSL is responsible for the payment of any and all compensation to

ThyssenKrupp for services and/or materials provided or to be provided by

ThyssenKrupp per the subcontract.” And the indemnity provision evidences a

specific intent to protect ThyssenKrupp with respect to the risk that Emergency

Services would seek to rescind the initial payment as a result of Emergency

Services’ removal from the project by requiring CSL to indemnify ThyssenKrupp

“from any and all claims, demands, suits, and/or proceedings brought or made by”

Emergency Services or its agents “arising out of or relating to . . . ThyssenKrupp

Elevator’s retention of the Initial Payment[.]”

                                         14
      Additionally, the contract documents demonstrate the parties’ intent that

ThyssenKrupp would receive the full contract price―$92,269―for its elevator

work, as modified by the first change order. The change order executed between

Emergency Services and CSL after Emergency Services left the project reflects a

contract price of $92,269. The assumption agreement recites that CSL requested

that ThyssenKrupp “retain” the $31,393.50 initial payment made by Emergency

Services and that CSL “owe[d] ThyssenKrupp the balance remaining under the

Subcontract . . . $60,875.50.” CSL admits that it submitted the ThyssenKrupp

subcontract to its insurer, and its insurer issued payment “for that full price, the

[$]92,000.”

      In light of these provisions, the contract unambiguously establishes the

parties’ intent that CSL would indemnify ThyssenKrupp from Emergency

Services’ revocation of the initial payment. CSL’s alternative interpretation of the

provision would allow CSL to avoid one of its principle obligations to

ThyssenKrupp under the contract by relating the chargeback back to the date on

which Bass filled out one of his credit card company’s charge dispute forms.

Nothing in the contract supports a contention that the parties intended the February

20 date in the indemnity provision to relieve CSL of its indemnity obligation in the

event that, purportedly unbeknownst to the parties, Emergency Services or Bass




                                        15
had contacted his credit card company about the charge before February 20 and the

execution of the agreement.

      Instead, we read the February 20 date as excluding any disputes that had

developed into a claim, demand, proceeding or lawsuit between Emergency

Services and ThyssenKrupp before that date. This is consistent with the indemnity

provision’s exclusion, which carves out pre-February 20 disputes between

Emergency Services and ThyssenKrupp relating to ThyssenKrupp’s elevator work

under the subcontract. CSL is obligated under the assumption agreement to

indemnify ThyssenKrupp for claims, demands, proceedings, and suits relating to

the initial payment “from February 20, 2009 forward,” and that obligation was in

effect in April 2009 when the Bass’s credit card company initiated its expedited

billing dispute resolution process and in June 2009 when the credit card company

demanded chargeback of the initial payment. Because the assumption agreement is

unambiguous as to the parties’ intent with respect to ThyssenKrupp’s retention of

the initial payment, we need not consider extrinsic evidence. See Houston

Exploration, 352 S.W.3d at 469–70 (stating that contract negotiations “may have

some relevance in ascertaining the dominant purpose and intent of the parties

embodied in the contract interpreted as a whole”).

      We reject CSL’s contention that the chargeback falls within the indemnity

provision’s exclusion for “improper Elevator Work.” There is no evidence in the

                                        16
record that the chargeback related to the nature or quality of ThyssenKrupp’s

elevator work. To the contrary, the evidence establishes that the chargeback is the

result of Bass’s representations to his credit card company that he did not receive

the merchandise for which he paid. The chargeback notice repeatedly represents

that the reason for the charge back was “Non-Receipt of Merchandise” and that

“[t]he chargeback occurred because your customer claims they have paid for items

that were to be delivered from your establishment but have not yet been received.”

Although CSL and Greatland assert that this is evidence that ThyssenKrupp “failed

to install an elevator at the Sterling Center,” it is clear that the customer referenced

by the credit card company is Bass, not CSL or Greatland.

      We likewise reject CSL’s reliance on the express negligence doctrine.

Because indemnification of a party for its own negligence is an extraordinary

shifting of risk, indemnity provisions that require one party to indemnify another

for losses caused by the other party’s own negligence are subject to special notice

requirements. See, e.g., Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d

505, 508 (Tex. 1993). One such notice requirement is the express negligence

doctrine. Id. This doctrine states that “a party seeking indemnity from the

consequences of that party’s own negligence must express that intent in specific

terms within the four corners of the contract.” Id.; see Audubon Indem. Co. v.

Custom Site-Prep, Inc., 358 S.W.3d 309, 319 (Tex. App.—Houston [1st Dist.]

                                          17
2011, pet. denied) (“The express negligence doctrine dictates that a party’s intent

to be released or indemnified from its own future negligence must be clear and

unambiguous.”).

      The express negligence doctrine applies when the claim for which indemnity

is owed is based on the negligence of the party seeking indemnity; it does not

apply to CSL’s obligation to indemnify ThyssenKrupp from the chargeback when

Bass did not assert that ThyssenKrupp was negligent in obtaining the chargeback

and the credit card company did not rely on any allegation of negligence by

ThyssenKrupp in processing the chargeback. See, e.g., Dresser Indus., 853 S.W.2d

at 508; Audubon Indem., 358 S.W.3d at 319. The only allegation of negligence on

the part of ThyssenKrupp is CSL’s allegation that ThyssenKrupp was negligent in

failing to better document the initial payment charge and would have prevailed in

the chargeback appeal if it had provided better documentation. CSL has not

identified any Texas case extending the express negligence doctrine to such

circumstances, and we decline to do so here. Cf. Audubon Indem., 358 S.W.3d at

319 (declining to apply express negligence doctrine when claim against indemnitee

was not based on indemnitee’s negligence).

      We overrule CSL’s and Greatland’s first issue.




                                        18
C.    ThyssenKrupp’s breach of contract claim

      In their second issue, CSL and Greatland challenge the trial court’s summary

judgment in favor of ThyssenKrupp on its breach of contract claim, arguing that

“ThyssenKrupp refused to fulfill its contractual obligations even though CSL had

offered and had tendered payment of the full amount required under the

Assumption Agreement for the turnover of a working elevator.” Because we have

held that CSL was obligated to indemnify ThyssenKrupp for the chargeback of the

initial payment, CSL’s “tendered payment” necessarily was not fulfillment of

CSL’s contractual obligations to ThyssenKrupp. See Baucum v. Great Am. Ins. Co.

of N.Y., 370 S.W.2d 863, 866 (Tex. 1963) (“A tender is an unconditional offer by a

debtor or obligor to pay another . . . a sum not less in amount than that due . . . .”).

Moreover, the evidence in the record shows an offer of payment only after this

lawsuit was filed and expressly conditioned the payment on acceptance in

“complete satisfaction” of the parties’ dispute.4 See C. R. Bean Corp. v. Rodriguez,


4
      In their reply brief, CSL and Greatland contend that there is evidence in the record
      that they made an offer of payment before the settlement offer made in the course
      of this lawsuit, but the evidence they cite in support of this contention does not
      establish any pre-lawsuit offers of settlement. First, they cite to affidavit testimony
      that does not provide any dates or otherwise establish the timing of payment
      offers, and that is not inconsistent with the evidence that CSL and Greatland
      offered a check to ThyssenKrupp only once, after the lawsuit was filed and in
      complete satisfaction of all claims. Second, they cite to deposition testimony from
      Isabell Howard who, when asked whether Ms. Le (of CSL) “[]ever told you that
      they were refusing to pay the payment,” responded, “She didn’t say ‘refused.’ She
      wasn’t going to pay this until there was resolution on the – that initial 31,000 and
      change.” This testimony supports ThyssenKrupp’s contention that CSL refused to
                                            19
583 S.W.2d 900, 901 (Tex. App.—Corpus Christi 1979, no writ) (“A tender, to be

effective, must be legally valid; it must be unconditional; it is without legal effect

if it is accompanied by conditions which the debtor has no right to impose.”)

(citing Baucum, 370 S.W.2d 863; Plasky v. Gulf Ins. Co., 335 S.W.2d 581 (Tex.

1960)). Thus, we reject CSL’s contention that its post-lawsuit, conditional offer of

$60,875.50 fulfilled its contractual obligations to ThyssenKrupp or constituted a

valid tender of payment that imposed on ThyssenKrupp a duty to turn over the

elevator.

      In their reply brief, CSL and Greatland contend that there is no evidence that

ThyssenKrupp ever completed the elevator work or arranged for a final inspection.

But the record does contain evidence that the elevator work was completed—it

contains deposition testimony, affidavit testimony, invoices, and records showing

the elevator parts and services rendered by ThyssenKrupp and the amounts due in

payment for these parts and services under the contract. The record also establishes

that the parties never arranged for the final turnover meeting—at which the

inspection would be performed, payment of any outstanding amounts due under

the contract would be made, and the elevator would be turned on—and that CSL

refused to make payment. This is not limited to CSL’s refusal to indemnify



      make any payment unless ThyssenKrupp dropped its demand for indemnity of the
      $31,393.50 initial payment.

                                         20
ThyssenKrupp for the $31,393.50 initial payment—CSL had not paid any of

ThyssenKrupp’s invoices and made no payment or offer of payment until after this

lawsuit was filed.

      Although there is also evidence in the record that ThyssenKrupp was not

willing to turn over the elevator until CSL paid the full contract price, including the

initial payment, we have held that ThyssenKrupp was entitled to recover this

amount from CSL under the contracts. Additionally, the subcontract does not place

the burden of arranging for turnover of the elevator on ThyssenKrupp, as opposed

to CSL. The only specific duty imposed by the contract with respect to

arrangements for turning over the elevator are imposed on CSL: “Upon notice

from [ThyssenKrupp] that the installation of the elevator has been completed,

[CSL] will arrange to have present at the installation site a person duly authorized

to make the final inspection and to provide a written acceptance.” Moreover, as

CSL and Greatland point out in their briefing, CSL and Greatland demanded that

ThyssenKrupp remove the elevator from the premises.

      We overrule CSL’s and Greatland’s second issue.

D.    ThyssenKrupp’s suit on sworn account

      In their third issue, CSL and Greatland challenge the trial court’s summary

judgment in favor of ThyssenKrupp on its suit on sworn account. Because we have

affirmed the trial court’s summary judgment on the basis of ThyssenKrupp’s

                                          21
breach of contract suit, we need not determine whether the summary judgment

could also be affirmed on the basis of ThyssenKrupp’s suit on sworn account.

      We overrule CSL’s and Greatland’s third issue.

            CSL’s and Greatland’s Claims against ThyssenKrupp

      In their live pleadings, CSL asserted counterclaims against ThyssenKrupp

for “breach of contract, fraud, fraud in the inducement, violations of the Texas

Deceptive Trade Practices – Consumer Protection Act, breach of express and

implied warranties of merchantability, of fitness for a particular purpose, of good

and workmanlike services, and unreasonable collection efforts,” and Greatland

asserted “cross-claims” against ThyssenKrupp for “violations of the Texas

Deceptive Trade Practices – Consumer Protection Act, breach of express and

implied warranties of merchantability, of fitness for a particular purpose, of good

and workmanlike services, and unreasonable collection efforts.” They also asserted

defenses based on, among other things, fraud and estoppel theories. ThyssenKrupp

moved for no-evidence summary judgment on each of CSL’s and Greatland’s

claims and affirmative defenses.

A.    Standard of review

      ThyssenKrupp was entitled to a no-evidence summary judgment on each of

CSL’s and Greatland’s claims and affirmative defenses as to which (1)

ThyssenKrupp asserted in its motion that there was no evidence of one or more

                                        22
specified elements and (2) CSL and Greatland produced no summary judgment

evidence raising a genuine issue of material fact on those elements. See TEX. R.

CIV. P. 166a(i); Frost Nat'l Bank, 315 S.W.3d at 508–09; LMB, Ltd. v. Moreno,

201 S.W.3d 686, 688 (Tex. 2006); City of Galveston, 196 S.W.3d at 221; Wilson v.

Shanti, 333 S.W.3d 909, 916 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

To avoid summary judgment, CSL and Greatland were required to file a timely

response identifying evidence in the record sufficient to raise an issue of fact on

each challenged element of their claims and affirmative defenses. See TEX. R. CIV.

P. 166a(i); Imkie v. Methodist Hosp., 326 S.W.3d 339, 343 (Tex. App.—Houston

[1st Dist.] 2010, no pet.) (“If a nonmovant wishes to assert that, based on the

evidence in the record, a fact issues exists to defeat a no-evidence motion for

summary judgment, the nonmovant must timely file a response to the motion

raising this issue before the trial court.”).

B.     Fraud claims and defenses

       In their fourth issue, CSL and Greatland argue,

       The trial court erred in granting no-evidence summary judgment for
       ThyssenKrupp on CSL’s and Greatland’s affirmative claims and
       defenses of fraud, fraud in the inducement, promissory estoppel, and
       equitable estoppel. ThyssenKrupp moved for no-evidence [summary
       judgment] on these claims contending that (1) there was no evidence
       of a misrepresentation or promise; and (2) there was no evidence of
       any reliance on the misrepresentation or promise. The summary
       judgment record[] presents evidence as to each of these challenged
       elements. ThyssenKrupp represented and promised that it would
       deliver a functional elevator upon payment of $60,875.50[].
                                            23
      ThyssenKrupp further represented that CSL would only be
      responsible for payment of $60,875.50[]. ThyssenKrupp never
      disclosed that it would take steps to hold CSL hostage with an
      inoperable elevator in the event [Emergency Services’] credit card
      payment was returned. CSL and Greatland relied on these
      representations and nondisclosures in the execution of the Assumption
      Agreement. ThyssenKrupp’s representations were however false.
      Accordingly, ThyssenKrupp’s motion for no-evidence summary
      judgment should have been denied.

(record citations omitted). CSL and Greatland made the same argument in their

response to ThyssenKrupp’s motion for summary judgment.

      CSL and Greatland do not accurately portray ThyssenKrupp’s grounds for

summary judgment on their fraud-related claims. ThyssenKrupp specifically

challenged CSL’s and Greatland’s evidence of each element of fraud, including the

elements that ThyssenKrupp (1) made a false representation with knowledge that

the representation was false or recklessly made a positive assertion without

knowledge as to the truthfulness of the representation and (2) intended that CSL

and Greatland rely on the representation. See Dow Chem. Co. v. Francis, 46

S.W.3d 237, 242 (Tex. 2001) (identifying elements of fraud). These elements are

likewise necessary to a fraudulent inducement claim. See Coastal Bank SSB v.

Chase Bank of Tex., N.A., 135 S.W.3d 840, 843 (Tex. App.—Houston [1st Dist.]

2004, no pet.). Knowledge of falsity and intent are also necessary elements of




                                       24
CSL’s and Greatland’s equitable estoppel defense.5 See Schroeder v. Texas Iron

Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991) (identifying elements of equitable

estoppel), overruled on other grounds by In re United Servs. Auto. Ass’n, 307

S.W.3d 299 (Tex. 2010).

      Because CSL and Greatland failed to identify, in their summary judgment

response and on appeal, evidence raising an issue of fact on these necessary

elements of their fraud claims and defenses, we must affirm the trial court’s

summary judgment. See TEX. R. CIV. P. 166a(i); Imkie, 326 S.W.3d at 343, 347.

We overrule CSL’s and Greatland’s fourth issue.

C.    Breach of contract and prior breach

      In their fifth issue, CSL and Greatland contend that the trial court erred in

granting a no-evidence summary judgment on their breach of contract claim and

prior-breach defense because the summary judgment evidence “conclusively

establish[ed] that ThyssenKrupp was required to provide a working elevator upon


5
      CSL’s and Greatland’s promissory estoppel defense is not applicable to the claims
      at issue here. Promissory estoppel is an exception to the statute of frauds that
      allows the enforcement of an otherwise unenforceable promise. See Nagle v.
      Nagle, 633 S.W.2d 796, 800 (Tex. 1982) (holding that Texas Supreme Court had
      narrowed promissory estoppel doctrine “to cases where the promise was ‘to sign a
      written agreement which itself complies with the Statute of Frauds.’”) (quoting
      “Moore” Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 934 (Tex.
      1973); Dodson v. Kung, 717 S.W.2d 385, 389 (Tex. App.—Houston [14th Dist.]
      1986, writ ref’d n.r.e.) (“Promissory estoppel operates only in those cases where
      the promise is to sign a written agreement which complies with the Statute of
      Frauds.”).

                                         25
payment of $60,875.50, the agreed-upon purchase price” and that “CSL repeatedly

offered and did make payment of the purchase price.” We have already held that

ThyssenKrupp was also entitled to indemnity from CSL for the initial payment

charged-back by Bass’s credit card company and that CSL’s offer of $60,875.50 in

satisfaction of all of ThyssenKrupp’s claims after ThyssenKrupp filed this lawsuit

was not a full and proper tender under the assumption agreement. These holdings

defeat CSL’s and Greatland’s argument on their breach of contract claim and prior-

breach defense.

      We overrule CSL’s and Greatland’s fifth issue.

D.    Express negligence rule

      In their sixth issue, CSL and Greatland contend that the trial court erred in

granting a no-evidence summary judgment on the express negligence rule because

it is not an affirmative defense but, rather, a rule of contract construction. We have

already addressed the applicability of express negligence rule to this case.

      We overrule CSL’s and Greatland’s sixth issue.

E.    Comparative or proportionate responsibility

      In their seventh issue, CSL and Greatland contend that the trial court erred in

granting a no-evidence summary judgment on their defense of proportionate

responsibility because the chargeback was based on ThyssenKrupp’s negligence.

ThyssenKrupp did not seek, and the trial court did not grant, a no-evidence

                                         26
summary judgment on proportionate responsibility, which is not an independent

cause of action but, rather, the law governing apportionment of liability in certain

tort actions. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.001–.003 (West 2008).

      We overrule CSL’s and Greatland’s seventh issue.

F.    DTPA claims

      In their eighth issue, CSL and Greatland contend that the trial court erred in

granting a no-evidence summary judgment on their DTPA claims. CSL’s and

Greatland’s DTPA claims are all founded on ThyssenKrupp’s purported failure to

deliver a functioning elevator to CSL upon payment of $60,875.50, pursuant to the

assumption agreement. We have already held that CSL and Greatland were in

breach of the assumption agreement because they failed to honor their indemnity

obligations under the agreement and that CSL’s offer to pay ThyssenKrupp

$60,875.50 “in complete satisfaction of the assumption of the subcontract

agreement” during the course of this litigation was not a proper tender of CSL’s

payment obligations under the agreement. The trial court therefore did not err in

granting a no-evidence summary judgment on CSL’s and Greatland’s DTPA

claims.

      We overrule CSL’s and Greatland’s eighth issue.




                                        27
G.    Unreasonable collection efforts

      In their ninth issue, CSL and Greatland contend that the trial court erred in

granting a no-evidence summary judgment on their unreasonable collection efforts

claims. CSL and Greatland assert that ThyssenKrupp “exceeded the bounds of

reason or moderation” by “burden[ing] the Sterling Center with an inoperable

elevator until [ThyssenKrupp] received payment of the chargeback.” Specifically,

CSL and Greatland assert that, in the event CSL failed to make payments due to

ThyssenKrupp under the subcontract, ThyssenKrupp was contractually obligated to

remove its elevator from the building. CSL and Greatland cite page ten of the

elevator subcontract to support this contention. Page ten of the subcontract

contains a “Title and ownership” clause. This clause provides that ThyssenKrupp

retains title to all equipment supplied under the subcontractor until CSL fulfills all

payment obligations, that “ThyssenKrupp may take immediate possession of the

equipment and enter upon the premises where it is located (without legal process)

and remove such equipment or portions thereof,” and that the parties agree that the

equipment “can be removed without material injury to the real property.”

      By providing that ThyssenKrupp retains ownership over its equipment and

may remove the equipment in the event of non-payment, the contract authorized

ThyssenKrupp to remove and retain the equipment but did not require

ThyssenKrupp to do so. Given its plain and common meaning, the term “may” is

                                         28
generally permissive rather than mandatory. See Nalle v. Taco Bell Corp., 914

S.W.2d 685, 687 (Tex. App.—Austin 1996, writ denied) (“The word ‘may’ means

possibility, permission, liberty, or power; it does not indicate a mandatory

requirement.”) (citing BLACK’S LAW DICTIONARY 979 (6th ed. 1990)); see also

McCarty v. Montgomery, 290 S.W.3d 525, 534 (Tex. App.—Eastland 2009, pet.

denied) (holding that contract providing, “Buyer may terminate this contract,”

“described [termination] permissively,” and did not limit buyer’s remedies to

termination of contract). Construing the “Title and ownership” provision as giving

ThyssenKrupp a right in the event of default by CSL, rather than imposing an

additional obligation on ThyssenKrupp in the event of default by CSL, is

consistent with the tenor of the provision and with the subcontract agreement as a

whole. “We interpret a word in a contract according to its usual grammatical

meaning unless it clearly appears that the parties intended otherwise.” Nalle, 914

S.W.2d at 687 (holding that lease provision stating that lessee “may” use leased

premises for particular purpose did not obligate lessee to use premises for that

purpose).

      Because the elevator subcontract did not require ThyssenKrupp to remove

the elevator from Sterling Center upon CSL’s failure to make payments, and

because CSL identifies no other basis for imposing a duty on ThyssenKrupp to

remove the elevator, ThyssenKrupp’s failure to do so does not constitute an

                                       29
unreasonable collection effort. See Montgomery Ward & Co. v. Brewer, 416

S.W.2d 837, 844 (Tex. Civ. App.—Waco 1967, writ ref’d n.r.e.) (describing

conduct giving rise to common law tort for unreasonable collection efforts as

“efforts that amount to a course of harassment that was willful, wanton, malicious,

and intended to inflict mental anguish and bodily harm.”).

      We overrule CSL’s and Greatland’s ninth issue.

H.    Trespass

      In their tenth issue, CSL and Greatland contend that the trial court erred in

granting a no-evidence summary judgment on Greatland’s claim for trespass. Like

its unreasonable collection efforts claim, Greatland’s claim for trespass is founded

on ThyssenKrupp’s failure to remove the elevator from Sterling Center after CSL

failed to make payment. We have already held that ThyssenKrupp was not

obligated to remove the elevator from Greatland’s premises. The trial court

therefore did not err in granting summary judgment on Greatland’s trespass claim.

      We overrule CSL’s and Greatland’s tenth issue.

I.    Damages

      In their eleventh issue, CSL and Greatland contend that the trial court erred

in granting a no-evidence summary judgment on the grounds that CSL and

Greatland failed to present evidence of damages. Because we have affirmed the

trial court’s summary judgment on each of CSL’s and Greatland’s claims on other

                                        30
grounds, we need not address whether summary judgment was also proper on the

ground that there was no evidence of damages. See Joe, 145 S.W.3d at 157; West,

318 S.W.3d at 437.

      We overrule CSL’s and Greatland’s eleventh issue.

                                   Conclusion

      We hold that the trial court did not err in granting a traditional summary

judgment in favor of ThyssenKrupp on its breach of contract claims against CSL.

We further hold that the trial court did not err in granting a no-evidence summary

judgment in favor of ThyssenKrupp on CSL’s and Greatland’s claims and

affirmative defenses against it. Accordingly, we affirm the trial court’s judgment.

All outstanding motions are dismissed as moot.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Keyes, Massengale, and Brown.




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