                           In The
                     Court of Appeals
       Sixth Appellate District of Texas at Texarkana

               ______________________________

                     No. 06-06-00095-CV
               ______________________________


            RAY AND CAROL CLAXTON, Appellants

                                V.

(UPPER) LAKE FORK WATER CONTROL AND IMPROVEMENT
                  DISTRICT NO. 1, Appellee



              On Appeal from the 62nd Judicial District Court
                          Hopkins County, Texas
                        Trial Court No. CV30583




               Before Morriss, C.J., Carter and Moseley, JJ.
                    Opinion by Chief Justice Morriss
                                            OPINION

       In a decade-old, muddy dispute flowing from a 1963 easement, Ray and Carol Claxton sued

the (Upper) Lake Fork Water Control and Improvement District No. 1 (District). The Claxtons had

purchased Hopkins County land on part of which was already located the District's flood control

project, including a dam and a "sediment pool" just downstream of the dam.

       Since 1995, the Claxtons have been attempting to obtain from the District a degree of control

over the dam and sediment pool, which appear to have been poorly maintained in recent years. The

Claxtons sought authority to make some changes in the sediment pool and to take actions involving

the level of water in the pool, without interfering with the District's right to maintain or repair the

dam and overflow system. The Claxtons alternatively asked for a declaration requiring the District

to perform certain alleged duties under the terms of the easement. By July 19, 2006, the date the trial

court granted summary judgment in favor of the District, the Claxtons were seeking a declaratory

judgment construing the easement and declaring it to have been abandoned, damages for the

District's failure to perform duties allegedly required by the easement, recovery in quantum meruit

for repairs undertaken by the Claxtons when the District failed to perform its alleged duties, recovery

of the land under adverse possession theories, and "exclusion of property from the District."




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       Assailing the summary judgment,1 the Claxtons raise various contentions of error.2 We


       1
         One complaint on appeal is that the trial court erred in denying the Claxtons' special
exceptions to the District's motion for summary judgment. We agree that this appeal does not turn
on that issue. Rather, we find that fact issues exist which preclude the grant of summary judgment.

       The Claxtons asked the trial court to order the District to replead its motion for summary
judgment for several reasons. The summary judgment motion is over 110 pages long, and is, well,
muddy in failing to identify which elements of any of the Claxtons' causes of action the District
thought it could conclusively disprove. The Claxtons were put into a position to set out each of their
causes of action, provide a list of the elements of each, and direct the trial court to summary
judgment evidence that they believed provided some proof of each.

       The Texas Supreme Court has stated that a summary judgment motion that does not identify
or address causes of action or their essential elements—even though it states that it embraces all
causes of action—does not support summary judgment against those causes of action. Black v.
Victoria Lloyds Ins. Co., 797 S.W.2d 20 (Tex. 1990). We review a trial court's ruling on special
exceptions for an abuse of discretion. Martin v. McDonold, No. 08-05-00301-CV, 2006 WL
3517854 (Tex. App.—El Paso Dec. 7, 2006, no pet.) (mem. op.); Hefley v. Sentry Ins. Co.,
131 S.W.3d 63, 65 (Tex. App.—San Antonio 2003, pet. denied); Kutch v. Del Mar College, 831
S.W.2d 506, 508 (Tex. App.—Corpus Christi 1992, no writ). The test for an abuse of discretion is
whether the trial court acted without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

       Had we been forced to rule on this issue, we would conclude the trial court did not properly
apply the rule on summary judgments and abused its discretion by denying the requested special
exceptions.
       2
         Some of the Claxtons' claims on appeal involve an "agreed judgment" that was entered in
2002, which would have ended this altercation. The District nevertheless filed a motion for new
trial, which was facially untimely but nonetheless granted. We initially dismissed the case because
of the 2002 "final" judgment. Counsel then obtained a judgment nunc pro tunc stating that the 2002
judgment was actually signed at a date later than shown on the judgment—which had the effect of
making the motion for new trial timely—and the litigation then continued. The 2006 summary
judgment was then the final judgment. We reinstated the case, and the appeal continued.

        On this appeal, the Claxtons again claim that the 2002 judgment is truly the final judgment
and that we, therefore, have no jurisdiction over this case. We addressed these issues in our opinion

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reverse the summary judgment and remand this case to the trial court for further proceedings

consistent with this opinion, because fact issues preclude summary judgment on this motion.

       Summary judgment for a defendant is proper when the defendant negates at least one element

of each of the plaintiff's theories of recovery or pleads and conclusively establishes each element of




on rehearing on our dismissal for want of jurisdiction. Claxton v. (Upper) Lake Fork Water Control
& Improvement Dist. No. 1, 220 S.W.3d 537 (Tex. App.—Texarkana 2007, no pet.) (op. on reh'g).
For the reasons stated there, the 2006 judgment is the final judgment, and we do have jurisdiction
over this appeal.

        The Claxtons also contend that the trial court erred by granting the 2002 motion for new trial
in favor of the District, arguing that the grant was error for a variety of reasons. The merits of that
claim are irrelevant, because an order granting a new trial within the plenary power period of the trial
court is not subject to review either by direct appeal from that order, or from a final judgment
rendered after further proceedings in the trial court. Cummins v. Paisan Constr. Co., 682 S.W.2d
235, 236 (Tex. 1984).

        We overrule both contentions of error challenging our finding that the 2006 judgment is the
final judgment.

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an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Wornick

Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993).3 In this respect, the District's motion fails.4

       Key to this lawsuit are four paragraphs from the easement in which the District is the grantee:

       5) The Grantee is responsible for operating and maintaining the above described
       works of improvement.



       3
        The general rule is that the movant has the burden of showing that there is no genuine issue
of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548–49 (Tex. 1985). Once the movant establishes that it is entitled to summary
judgment, the burden shifts to the nonmovant to show why summary judgment should not be
granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In reviewing a summary judgment, we
accept all the nonmovant's proof as true and indulge every reasonable inference in the nonmovant's
favor. Science Spectrum, 941 S.W.2d at 911. All doubts about the existence of a genuine issue of
a material fact must be resolved against the movant. Johnson County Sheriff's Posse, Inc. v. Endsley,
926 S.W.2d 284, 285 (Tex. 1996).
       4
          One difficulty with the District's summary judgment motion is that it does not state whether
it is a traditional or a no-evidence motion. When a motion for summary judgment appears to be
ambiguous, appellate courts will construe it as a traditional summary judgment. Creative Thinking
Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 514 (Tex. App.—Corpus Christi 2002, no
pet.); see Michael v. Dyke, 41 S.W.3d 746, 750–51 n.3 (Tex. App.—Corpus Christi 2001, no pet.).
Better summary-judgment practice is to refer to the appropriate subsection in the title or the body
of the motion, but the requirement of specificity under Rule 166a(c) is satisfied if the grounds stated
in the motion give fair notice to the nonmovant. Garrett v. L.P. McCuistion Cmty. Hosp., 30 S.W.3d
653, 655 (Tex. App.—Texarkana 2000, no pet.); Roth v. FFP Operating Partners, L.P., 994 S.W.2d
190, 194 (Tex. App.—Amarillo 1999, pet. denied). In this case, the grounds are not set out; thus,
fair notice has not been given, and we cannot conclude that this is a no-evidence motion.

         Also, nowhere does the motion for summary judgment identify the elements of the various
causes of action or try to connect evidence, or lack thereof, to those elements. Rule 166a(i) of the
Texas Rules of Civil Procedure explicitly requires a party seeking a no-evidence summary judgment
to, in his or her motion, "state the elements as to which there is no evidence." See TEX . R. CIV . P.
166a(i). The District's motion does not do that. Thus, we conclude this motion is a traditional
summary judgment motion.

                                                  5
       6) The Grantee shall control the water level in the sediment storage pool until
       adequate vegetation is established and thereafter as necessary for maintenance or
       repair of the works of improvement.

       7) The Grantee shall have the right to construct fences with gates or gaps around the
       works of improvement, and such fences, gates, or gaps shall not be changed in any
       way without consent of the Grantee. Any livestock found within such fences, except
       as authorized in writing by the Grantee, may be ejected therefrom by the Grantee.

       8) Special Provision-: [separately typed in] Reduce sediment pool to an elevation
       of approximately 486.5. If possible and feasible, xxxxxxxxxxxx [sic] it will be
       satisfactory to move the emergency spillway to the north to the extent that all of the
       emergency xxxx [sic] spillway will be on the above described lands.

       The Claxtons asked the trial court to declare rights under these provisions. That is not

possible without reference to evidence beyond the four corners of this document. In paragraph 8,

the cryptic "486.5" is virtually meaningless without outside evidence to show the measurement scale

that is being referenced. The term "reduce sediment pool to an elevation of . . . ." is similarly

unclear. Is the level of water in the pool being measured? Is the level of sediment in the pool being

measured? Further, although paragraph 6 discusses a way to determine an end date for regularly

controlling the water level, paragraph 8 contains no such limitation. Further, paragraph 8 does not

state whose duty it is to reduce the level, and an argument can be made that the duty resides with

either the grantor or grantee.

       In paragraph 5, the easement states that the grantee is responsible for operating and

maintaining the improvements. What constitutes operation? What is necessary for maintenance,

and has it occurred? Is it necessary to keep the sediment levels below a particular level in the pool



                                                 6
so its purpose can be fulfilled? Is it necessary, as part of maintenance, to clear the pool of trash,

debris, or vegetation?

        In paragraph 6, the easement states the grantee shall control the water level "until adequate

vegetation is established" and thereafter as necessary for maintenance or repair. What constitutes

"adequate" vegetation?

        Claxton asked the trial court to declare the meaning of this document. The District's motion

for summary judgment argues that the District had proved its compliance with the requirements of

the easement, based on its presumed meaning of the document. Before the trial court could

determine whether the District had complied, it would first have to understand the meaning of the

easement.

        Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v.

NationsBank, 939 S.W.2d 118 (Tex. 1996). If the language of a contract is subject to two or more

reasonable interpretations, it is ambiguous. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI

Indus., Inc., 907 S.W.2d 517 (Tex. 1995). In determining whether a contract is ambiguous, we

consider the contract as a whole, in light of the circumstances existing at the time it was executed

and bearing in mind the particular business activity the contract sought to serve. Reilly v. Rangers

Mgmt., Inc., 727 S.W.2d 527, 529–30 (Tex. 1987). Not every difference in the interpretation of a

contract amounts to an ambiguity. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994).

If a written instrument is worded so that it can be given a definite legal meaning, it is not ambiguous,



                                                   7
and courts must construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.

1983).5 An ambiguity exists only if the contract language is susceptible to two or more reasonable

interpretations. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). Granting

summary judgment based just on an ambiguous contract is improper because the intent of the

contracting parties is an issue of fact. Coker, 650 S.W.2d at 394; Harris v. Rowe, 593 S.W.2d 303,

306 (Tex. 1979); Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass'n, 205

S.W.3d 46, 56 (Tex. App.—Dallas 2006, pet. denied).

       This easement, from its language alone, cannot be given a definite legal meaning on a number

of points, including those set out above. Therefore, the easement is ambiguous. A trier of fact must

resolve the ambiguity by determining the true intent of the parties. See Coker, 650 S.W.2d at

394–95.

       The Claxtons have directed this Court's attention to some summary judgment evidence

presented in their favor on each of the issues set out above. The District has also presented evidence

and has taken the position that its evidence should prevail. In a trial, perhaps it will. At this stage,

however, the District has directed our attention to no summary judgment evidence that proves its



       5
          Only where a contract is first determined to be ambiguous may the courts consider the
parties' interpretation. See Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 732 (Tex. 1981),
and admit extraneous evidence to determine the true meaning of the instrument. See R & P Enters.
v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980). Further, an ambiguous contract
is to be strictly construed against its author. Temple-Eastex, Inc. v. Addison Bank, 672 S.W.2d 793
(Tex. 1984).


                                                   8
case as a matter of law—required to prevail in a summary judgment proceeding. Summary judgment

was improperly rendered.

       We reverse the trial court's judgment and remand this case for further proceedings consistent

with this opinion.



                                                     Josh R. Morriss, III
                                                     Chief Justice

Date Submitted:       January 16, 2008
Date Decided:         February 12, 2008




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