                                 NO. 07-12-00215-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL C

                                 JANUARY 28, 2013


              MCCRAW MATERIALS, LLC, MAYFIELD MCCRAW, AND
                     BRENDA MCCRAW, APPELLANTS

                                          v.

                DIVLEND EQUIPMENT LEASING, L.L.C., APPELLEE


           FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2011-558,321; HONORABLE LESLIE HATCH, JUDGE


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION

      Appellants, McCraw Materials, LLC, Mayfield McCraw, and Brenda McCraw

(collectively “McCraw”), appeal the trial court’s entry of a Partial Summary Judgment 1

that awarded appellee, DivLend Equipment Leasing, LLC, a $403,750 insurance

payment and attorney’s fees. We will affirm.




      1
        The trial court’s Partial Summary Judgment was made final and appealable
when the trial court signed an Order Granting Plaintiff’s Motion to Sever Remaining
Claims and Causes of Action on February 28, 2012.
                                       Background


         McCraw Materials and DivLend entered into an equipment lease in June of 2008.

The lease covered an agricultural spray airplane that was valued at approximately

$425,000. The lease was for a five-year term. After McCraw Materials made a down

payment of $42,500, monthly payments were to be made throughout the term of the

lease but the amount of these monthly payments would vary based on the income

McCraw Materials was able to produce from the airplane.


         The lease required McCraw Materials to obtain insurance on the airplane. The

lease further required that DivLend be named as “Owner/Lessor” of the airplane on the

policy. McCraw Materials obtained insurance on the airplane. However, it had itself

listed as the loss payee and DivLend listed as a lienholder.


         On April 13, 2011, the airplane was destroyed in a crash. The insurance carrier

declared the airplane a total loss and issued a check in the amount of $403,750, 2

payable to McCraw Materials, DivLend, and Platinum Bank. 3           DivLend requested

McCraw indorse the check over to DivLend, but McCraw refused.             Consequently,

DivLend filed suit against McCraw in July of 2011. By order of the trial court, the

insurance check was placed in the Registry of the Court pending disposition by the trial

court.




         2
          This amount represents the $425,000 value of the airplane under the insurance
policy, less a $21,250 deductible.
         3
        Platinum Bank is not a party to the present case, and the record does not reflect
the nature of its interest in the airplane or insurance payment.

                                            2
      In December of 2011, DivLend filed a motion for summary judgment. By this

motion, DivLend sought an order turning over the insurance check to DivLend, a

judgment against McCraw for $425,000, and an award of attorney’s fees. McCraw filed

a response to DivLend’s motion. By a letter dated February 20, 2012, the trial court

notified the parties of its intent to grant DivLend a partial summary judgment. The trial

court signed a partial summary judgment that awarded DivLend the insurance payment

that was held in the Registry of the Court, and attorney’s fees in the amount of

$18,330.50. After the trial court severed DivLend’s remaining claims into a separate

cause number, McCraw appealed.


      McCraw presents seven issues by this appeal.            Each of McCraw’s issues

challenge the trial court’s ability to grant summary judgment in favor of DivLend. By

their first issue, McCraw contends that the lease agreement was not enforceable

because it is ambiguous. By their second issue, McCraw contends that a fact issue was

raised regarding whether McCraw materially breached the lease agreement. By their

third issue, McCraw contends that there was no personal liability of the guarantors of

the lease agreement because there was no liability of McCraw Materials under the

lease agreement. By their fourth, fifth, and sixth issues, McCraw contends that the trial

court erred in granting summary judgment on the bases of DivLend’s claims for money

had and received, fraudulent inducement, and the damage or loss provision of the lease

agreement. Finally, by their seventh issue, McCraw contends that the trial court erred in

overruling their objection to DivLend’s attorney’s affidavit as so conclusory that it could

not be controverted.




                                            3
                                   Standard of Review


       Each of McCraw’s issues challenge the propriety of the trial court’s grant of

summary judgment in favor of DivLend. We review the trial court's decision to grant

summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005).   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. Id. A trial court properly grants a motion for

summary judgment when the movant has established that there are no genuine issues

of material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P.

166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.

2003). When the trial court does not specify the grounds for its summary judgment, the

appellate court must affirm the summary judgment if any of the theories presented to

the trial court and preserved for appellate review are meritorious. Knott, 128 S.W.3d at

216.


                                  Issue One - Ambiguity


       McCraw’s first issue on appeal contends that the trial court erred in granting

summary judgment because the lease agreement is not a valid, enforceable contract

because it is ambiguous.       We disagree with McCraw’s contention and find the

applicable lease provision to be unambiguous and to support the trial court’s summary

judgment ruling.


       Whether a contract is ambiguous is a question of law that is reviewed de novo.

Bowden v. Phillips Petro. Co., 247 S.W.3d 690, 705 (Tex. 2008). If a contract can be


                                             4
given a certain or definite legal meaning or interpretation, then it is not ambiguous and

we will construe it as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.

1983). However, if a contract’s meaning is reasonably susceptible to more than one

meaning, it is ambiguous, and the interpretation of the contract becomes a fact issue.

See id. at 393-94.


       In construing a written contract, the primary concern of the court is to ascertain

the true intentions of the parties as expressed in the instrument. Valence Operating

Co., 164 S.W.3d at 662. To achieve this objective, courts must consider the entire

writing with the goal of harmonizing and giving effect to all the provisions of the contract

so that none will be rendered meaningless. Id. Courts are to give contract terms their

plain, ordinary, and generally accepted meanings unless the contract itself shows them

to be used in a technical or different sense. Id.


       In the present case, the provision of the lease agreement that addresses

entitlement to insurance payments provides that, “[t]he proceeds of such insurance

payable as a result of loss or damage to any item of the Equipment shall be applied to

satisfy Lessee’s obligations as set forth in Paragraph 5 above, and Paragraph 9 below.”

Paragraph 5 of the lease agreement identifies rent and other rent-related obligations

under the lease. Paragraph 9 of the lease agreement identifies the terms of McCraw’s

option to purchase equipment covered by the lease.             Undisputed evidence was

presented to the trial court that, as of July 25, 2011, the remaining rent-related

obligations under the lease were $386,060.           Further, undisputed evidence was

presented to the trial court that, as of February of 2011, exercise of the option to



                                             5
purchase would be $363,532.71, which appears to reflect payoff of the remaining rent-

related obligations under the lease plus a $42,500 purchase option.


      McCraw advances multiple constructions of the lease agreement and contends

that the lease agreement is ambiguous as to what obligations would arise if the airplane

was destroyed and payment was received under the insurance policy on the plane.

However, we conclude that the language of the provision quoted above can be given

only one reasonable construction, and that is that insurance payable as a result of loss

of the airplane shall be applied to satisfy McCraw’s remaining rent-related obligations

under the lease and the cost of McCraw’s exercise of the option to purchase. Because

we construe the lease agreement’s plain language to have a definite legal meaning, we

conclude that it is not ambiguous and will construe it as a matter of law. See Coker,

650 S.W.2d at 393.


      Based on our construction of the lease agreement, we conclude that the trial

court did not err in awarding the $403,750 insurance payment to DivLend. The lease

provided that insurance payable as a result of loss of the airplane shall be applied to

satisfy McCraw’s remaining rent-related obligations under the lease, which undisputed

evidence established to be at least $386,060, and the cost of McCraw’s exercise of the

option to purchase, which undisputed evidence established to be at least $42,500. 4 As




      4
         This $42,500 purchase option price is predicated on DivLend’s February 22,
2011 letter. This letter provided that, under the lease, McCraw was obligated to meet all
remaining rent obligations under the lease and could then exercise the purchase option
and purchase the airplane for 10 percent of the plane’s value, or $42,500.


                                           6
such, the undisputed evidence establishes that DivLend was entitled to at least

$428,560. 5


       Consequently, we conclude that the lease agreement was not ambiguous and

overrule McCraw’s first issue. Further, when we construe the lease agreement as a

matter of law and consider the undisputed evidence of the minimum amount due under

the lease agreement, we conclude that the trial court did not err in awarding DivLend

the $403,750 insurance payment that had been held in the Registry of the Court.


                                     Issues 2, 4, and 5


       By their second, fourth, and fifth issues, McCraw challenges additional bases

upon which the trial court could have granted summary judgment in favor of DivLend.

Specifically, McCraw contends that they did not materially breach the lease agreement,

and DivLend’s claims of money had and received and fraudulent inducement do not

support summary judgment. Because we have determined that the trial court did not err

in granting summary judgment in favor of DivLend under the unambiguous terms of the

lease agreement, we need not address whether these additional grounds might support

the trial court’s ruling. See TEX. R. APP. P. 47.1.




       5
          Our identification of the remaining amounts due under the lease agreement
should not be taken as conclusive. Rather, we conclude only that these amounts reflect
the minimum amounts due under paragraphs five and nine of the lease agreement. The
trial court did not make specific factual determination of the amount due under the lease
agreement. We reference the undisputed evidence regarding McCraw’s obligations
under the lease agreement only to establish that the evidence supports the trial court’s
award of the $403,750 insurance payment to DivLend. Any damages beyond the
$403,750 insurance payment were not determined by the trial court’s summary
judgment and, therefore, are not before this Court in this appeal.

                                              7
                             Issue 6 – “Remaining Damages”


       By their sixth issue, McCraw contends that the trial court erred in determining

that DivLend was entitled to seek remaining damages under the damage or loss

provision of the lease agreement. However, nothing in the summary judgment that is

before this Court addresses, explicitly or implicitly, DivLend’s right to seek remaining

damages under the damage or loss provision of the lease agreement. 6 Therefore, this

issue is not properly before this Court in the present appeal.


                               Issue 3 – Guarantors’ Liability


       By their third issue, McCraw challenges the individual liabilities of Brenda

McCraw and Mayfield McCraw as guarantors of the lease agreement. However, rather

than contending that Brenda and Mayfield are not liable for some particular reason

related to the guaranty agreements, McCraw argues that Brenda and Mayfield are not

liable under the lease agreement because McCraw Materials is not liable under the

lease agreement.      Having previously determined that the trial court did not err in

awarding DivLend damages under the summary judgment against McCraw Materials,

we overrule McCraw’s third issue.


                             Issue 7 – Attorney’s Fee Affidavit


       By their seventh issue, McCraw contends that the trial court erred in overruling

their objection that the attorney’s fee affidavit of DivLend’s attorney was conclusory and

       6
          The trial court’s February 20, 2012 letter ruling does indicate that DivLend’s
entitlement to damage or loss under the lease agreement was not decided by the
summary judgment and would be addressed at trial. However, we cannot review the
trial court’s indication that the issue will be addressed at the trial of a different cause in
the context of an appeal from a summary judgment that does not address the issue.

                                              8
could not be controverted. The admission or exclusion of evidence is a matter within

the trial court’s sound discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). While

McCraw’s issue relates to the trial court’s decision to admit the attorney’s fee affidavit

over McCraw’s objection, McCraw’s argument in support of the issue focuses on

whether the affidavit was a proper basis upon which to award attorney’s fees by

summary judgment.


        A trial court may not grant summary judgment on the basis of conclusory

statements in affidavits because the same are not credible or susceptible to being

readily controverted. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.

1996). In support of their position that DivLend’s attorney’s fee affidavit was not a

proper basis for the trial court’s award of attorney’s fees, McCraw cites Eberstein v.

Hunter, 260 S.W.3d 626, 630 (Tex.App.—Dallas 2008, no pet.), as discussing an

attorney’s fee affidavit that was so conclusory as to not constitute competent evidence.

However, the affidavit in Eberstein did no more than detail the attorney’s work

experience and training before opining as to a reasonable fee for the representation.

See id.    In the present case, DivLend’s counsel went beyond simply detailing the

attorney’s work experience and training, but also indicated that the attorney is familiar

with the factors to be considered in determining the reasonableness of attorney’s fees in

Texas and, further, identified those factors that were relevant to the attorney’s opinion

regarding what constituted reasonable and necessary fees for the prosecution of this

case.     Thus, we conclude that the attorney’s fee affidavit in the present case is

distinguishable from the affidavit in Eberstein.




                                             9
         Furthermore, on January 18, 2012, before the trial court ruled on DivLend’s

motion, DivLend’s counsel supplemented its designation of expert witnesses and

included a detailed itemization of the attorney’s fees that were incurred by DivLend in

prosecution of this case up to that date. While this detailed accounting of attorney’s

fees was filed after the deadline for submissions on DivLend’s motion for summary

judgment, it was before the trial court when the trial court ruled on McCraw’s objection

and McCraw neither raised an objection to this evidence nor attempted to controvert this

evidence of the reasonable and necessary attorney’s fees related to prosecution of this

case. The trial court recited that it considered “the evidence on file,” which included

DivLend’s supplemented designation of expert witnesses, before rendering its ruling on

DivLend’s motion for summary judgment.


         As such, we conclude that the trial court did not abuse its discretion in overruling

McCraw’s objection to DivLend’s attorney’s fee affidavit. Further, we affirm the trial

court’s award of attorney’s fees to DivLend. We overrule McCraw’s seventh issue.


                                         Conclusion


         Having overruled each of McCraw’s issues, we affirm the judgment of the trial

court.



                                                   Mackey K. Hancock
                                                       Justice




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