Opinion issued August 29, 2014




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00306-CV
                            ———————————
                   WILLIAM J. MITCHELL, JR., Appellant
                                        V.
    CONRAD MITCHELL, INDIVIDUALLY AND AS INDEPENDENT
    EXECUTOR OF THE ESTATE OF E. L. MITCHELL, DECEASED,
                         Appellee


        On Appeal from County Court at Law No. 1 & Probate Court
                         Brazoria County, Texas
                     Trial Court Case No. PRO28848


                                 OPINION

      William J. Mitchell, Jr. filed suit against his brother, Conrad Mitchell,

individually and as independent executor of their mother’s estate, for numerous

causes of action relating to Conrad’s handling of the estate, as well as a claim for
breach of contract.1 In three issues, William, Jr. is appealing both the trial court’s

denial of his motion for partial summary judgment and the trial court’s granting of

Conrad’s motion for summary judgment. We reverse the trial court’s grant of

summary judgment in Conrad’s favor, and we overrule William, Jr.’s issues

pertaining to the denial of his motion for partial summary judgment on his breach

of fiduciary duty claim against Conrad. We remand to the trial court for further

proceedings.

                                    Background

      William, Jr., Conrad, and Robert Mitchell are the only children of William

Mitchell, Sr. and Edna L. Mitchell. William, Sr. died on July 2, 1993; Edna died

on May 15, 2006. William, Jr., Conrad and Robert are each one-third residual

beneficiaries under Edna’s will. Conrad, who also served as Edna’s attorney-in-

fact since 1995, is the executor of Edna’s estate.

      This appeal is the most recent round in a costly legal battle among these

three brothers that has resulted in multiple legal proceedings over the last

decade-and-a-half in various state and federal courts. In the instant suit, William,

Jr. is suing his brother Conrad, both individually and as executor of Edna’s estate,

for multiple causes of actions stemming from Conrad’s alleged failure to account


1
      The individuals involved in this appeal all share the same surname. For the sake
      of clarity, we will address them by their first names.



                                          2
for or collect rental income allegedly owed to Edna’s estate, Conrad’s breach of a

December 2004 letter agreement, in which he agreed to assume William, Jr.’s

liability to Edna’s estate for his promissory note, and Conrad’s failure to collect on

the three promissory notes payable to Edna, including William, Jr.’s.

A.    The Bermuda Properties

      On February 18, 1992, Edna and William, Sr. executed deeds conveying

ownership of two rental properties in Bermuda (the “Bermuda Properties”) to each

of their sons in equal shares. As part of the transaction, William, Jr., Conrad, and

Robert leased the Bermuda Properties back to their parents for a period of time not

to exceed more than fifteen years (the “Lease Agreement”).2 Under the terms of

the Lease Agreement, Edna and William, Sr. agreed to lease the properties for

$600 per year and to pay all “maintenance, taxes, insurance, etc.” owing on the

Bermuda Properties. In return, Edna and William, Sr. were entitled to receive any

rental income generated by the Bermuda Properties during the leasehold. Edna and

William, Sr. also expressly reserved the right to terminate the Lease Agreement at

any time during the life of the contract.

      William, Jr. contends that the Bermuda Properties generated an average of

$141,923.88 in rental income per year between 2001 and 2007, and that Conrad


2
      If neither Edna nor William, Sr. terminated the Lease Agreement beforehand, the
      agreement expired on its own terms on February 20, 2007—fifteen years after the lease
      was executed.


                                            3
failed to account for or collect any rental income belonging to Edna’s estate

pursuant to the Lease Agreement. Conrad, however, contends that the Lease

Agreement “never went into effect” and that neither William, Sr. nor Edna

received any rental income from the Bermuda Properties from 1992 until their

respective deaths in 1993 and 2006. Conrad further contends that any rental

income generated by the Bermuda Properties was disbursed to all three brothers in

equal shares until November 30, 2000—the date William, Jr. signed the

Stipulation, selling his interest in the Bermuda Properties, “including, without

limitation, any claim to the income, profits or other thing of value derived from

operations of the property.”

B.    Mitchell Family Enterprises, Ltd.

      Edna also held an ownership interest in a hotel property in New Jersey

through a closely held New Jersey corporation named Slumber Inc. On July 31,

2002, a family limited partnership named Mitchell Family Enterprises, Ltd. (the

“Family Partnership”) was organized in which Edna and her three sons were

limited partners. Certain assets, including Edna’s ownership interest in Slumber

Inc., were transferred to the Family Partnership.

      On December 5, 2003, Edna transferred her interest in the Family

Partnership to William, Jr., Conrad, and Robert in equal shares. Each son executed

a promissory note in favor of Edna in the principal amount of $1,143,000, with a



                                          4
maturity date of December 5, 2008. Interest on each note accrued at a rate of 3.5%

per annum and became due on the last day of December of each year until

maturity. The notes further provided that interest would accrue at a rate of 10%

per annum on all unpaid sums following maturity. According to the unobjected-to

summary judgment evidence, the transfer of Edna’s ownership interest in Slumber

Inc. to her sons by means of the Family Partnership was part of a “sophisticated

estate plan,” under the terms of which each son was to receive his own promissory

note back after Edna’s death as part of the equitable distribution of her estate, as

set forth in her will.

C.     Prior Litigation and Relevant Settlement Agreements

       Beginning in the late 1990’s, William, Jr. filed multiple lawsuits in New

Jersey against Conrad, Edna, Robert, and others regarding the handling of the

family businesses, including Conrad’s alleged diversion of funds from Slumber

Inc. to another family business, constructive termination of William, Jr.’s

employment with Slumber Inc. and Conrad’s failure to account for and release

payments of rental income generated by the Bermuda Properties. Those suits

eventually culminated in a Stipulation of Settlement entered in the Superior Court

of New Jersey Chancery Division, Bergen County, on November 30, 2000 (the

“Stipulation”), which, according to William, Jr., “ostensibly resolved the many . . .

issues of ownership, governance, control and operation of the family businesses.”



                                         5
      1.     New Jersey Stipulation of Settlement

      The Stipulation, which was entered into on November 30, 2000, states in

pertinent part that “[i]t is the intention of the signatories to this agreement

[including, inter alia, William, Jr., Conrad, Robert, and Edna] to reach a global

settlement on all issues affecting them, including those claims that have been

brought in other jurisdictions and those that have been raised as of this time.”

Under the terms of the Stipulation, Conrad and Robert agreed to purchase William,

Jr.’s one-third interest in the Bermuda Properties for $775,000. “This payment

shall be in consideration for all William [Jr.]’s right[,] title[,] and interest in the

property, including, without limitation, any claim to the income, profits or other

thing of value derived from operations of the property.”

      2.     New Lawsuits

      The Stipulation, however, did not end the litigation, and the following year,

William, Jr. filed suit in Brazoria County, Texas, seeking appointment as Edna’s

guardian and termination of the general power of attorney that Edna had previously

executed appointing Conrad as her agent. William, Jr. also filed suit in Harris

County, Texas, in 2003 against Conrad, Robert, Edna, the Family Partnership, and

others in which he alleged claims for breach of fiduciary duty, oppression of a

minority shareholder, and breach of contract based in part on Conrad’s handling of

Slumber, Inc. and his control of the Bermuda Properties.



                                          6
      3.     Compromise Settlement Agreement

      In order to resolve their ongoing legal disputes, including these new 2001

and 2003 lawsuits, William, Jr., Conrad, Robert, and Edna entered into a

Compromise Settlement Agreement on October 12, 2004 (the “Settlement

Agreement”).    The Settlement Agreement purports to resolve “all claims and

causes of action of any kind whatsoever which the Releasing Parties [have] or may

have in the future against the Released Parties.”       The Settlement Agreement

defines the term “Releasing Parties” as William, Jr. and “Released Parties” as, inter

alia, Edna, Conrad, both individually and as attorney-in-fact for Edna, Robert, the

Family Partnership, and Slumber, Inc. The Settlement Agreement further states:

      This Settlement Agreement shall be global that will forever bar any of
      the parties from re-instituting any law suits concerning . . . the
      handling of Edna Mitchell’s estate up to the date of this settlement
      and/or any subsequent actions dealing with her estate in relation to
      [the Family Partnership], Mitchell Management, Inc., created for the
      benefit of Edna Mitchell and her heirs.

The Settlement Agreement’s “Release” section further provides:

      The Releasing Parties generally release and forever discharge for the
      Released Parties from any and all claims, demands, and causes of
      action of whatever kind or character which the Releasing Parties have,
      or may have in the future, based on any events that have occurred
      prior to the date this Settlement Agreement is signed, known or
      unknown, whether or not growing out of or connected in any way
      with, the matters alleged in the Litigation, save and except claims for
      breach of the Settlement Agreement.




                                         7
“This Settlement Agreement may not be amended, altered, modified or changed in

any way except in writing signed by all Parties to this Settlement Agreement.”

      Under the terms of the Settlement Agreement, William, Jr. agreed to sell 187

shares of Slumber Inc. to Conrad and Robert (and/or their designees and/or their

heirs) for $3,740,000 on or before December 5, 2004. He also agreed to sell to

Conrad and Robert (and/or their designees and/or their heirs) on December 5, 2004

the additional 146 shares that he had “bought from his mother by executing a note

for $1,143,000.00 payable to Edna Mitchell that are held in the Family Limited

Partnership.”

      4.     Supplemental Letter Agreement

      On December 10, 2004, Conrad’s attorney sent a letter to William, Jr.’s

attorney regarding the “Mitchell Settlement” (the “Supplemental Letter

Agreement”). The letter, which expressly states that it is “For Settlement Purposes

Only,” provides:    “As per our conversation please find the changes to the

Settlement Agreement herein. If this proposal appears to be acceptable to you,

please sign and return this agreement to me.”           The Supplemental Letter

Agreement’s proposed changes include the following:

           3. Slumber Inc.,    will   purchase   94   shares   initially   for
              $1,880,000.00.

           4. Then by January 14, 2005 Slumber will buy 93 shares [for]
              $1,860,000.00.



                                         8
         5. The remaining 146 shares will be purchased by May 14, 2005
            . . . less the assumption of $1,143,000.00 and [sic] to Edna
            Mitchell leaving a balance of $1,777,000.00.

         6. Conrad and Robert will assume effective December 6, 2004, the
            principal obligation of the $1,143,000.00 promissory note from
            [William, Jr.] to Edna and the obligation to pay Post-December
            6, 2004 interest. [William, Jr.] will remain responsible for the
            payment of accrued interest at 3.5% for one year and two days
            ending December 4, 2004.

         7. Conrad and Robert (or Slumber Inc.) will pay [William, Jr.] on
            or before January 14, 2005, $1,860,000.00 plus 3.5% interest
            thereon, and remaining balance due.

         8. Conrad and Robert (or Slumber Inc.) will pay [William, Jr.] on
            or before May 14, 2005, $1,777,000.00 plus 3.5% interest
            thereon.

The Supplemental Letter Agreement is not signed by the parties to the Settlement

Agreement, only their attorneys, and it does not indicate that the attorneys are

signing the agreement on behalf of their respective clients.

      William, Jr. later sued Robert and Conrad for breach of the Settlement

Agreement and Supplemental Letter Agreement. That suit, which was removed to

federal court, was based on Robert and Conrad’s alleged failure to (1) assume

William, Jr.’s promissory note to Edna, (2) purchase William, Jr.’s 146 shares of

the Family Partnership, and (3) pay interest on the dollar amounts due to William,

Jr. William, Jr. moved for summary judgment on his breach of contract claim and

request for attorney’s fees. The February 13, 2007 order denying the motion states

that William, Jr. was not entitled to judgment as a matter of law on his breach of


                                          9
contract claim because he did not allege that he had suffered any actual damage

when he filed his motion. The order further states that Robert and Conrad (or their

designee) paid all claims on the breach and that, as William, Jr. acknowledged,

Robert and Conrad’s obligations under both agreements were satisfied in full as of

August 15, 2006.3

D.    Present Litigation

      Edna died on May 15, 2006, while William, Jr.’s suit was pending before the

federal court. On May 30, 2006, Edna’s last will and testament was admitted to

probate in County Court at Law Number One and the Probate Court of Brazoria

County, Texas under docket No. PR028848. Conrad was appointed executor of

Edna’s estate.

      William, Jr., as a one-third beneficiary under Edna’s will, filed suit seeking

an accounting and distribution of the estate and the removal of Conrad as executor.

William, Jr. also alleged the following causes of action against Conrad,

individually and/or as executor of Edna’s estate: (1) breach of fiduciary duty, (2)

fraud, (3) breach of contract, (4) conspiracy to defraud, (5) misapplication of

fiduciary property, and (6) tortious interference with inheritance rights. William,

Jr.’s claims are based on Conrad’s and Robert’s alleged agreement to assume

3
      The court also denied William, Jr.’s claim for attorney’s fees because (1) William,
      Jr. accepted payment in full before a judicial determination of the merits of his
      claim, and thus, he did not “prevail” on his breach of contract claim and (2) he did
      not recover any damages based on a judicial determination of his claim.

                                           10
William, Jr.’s liability to Edna’s estate for his promissory note, Conrad’s failure to

collect on the promissory notes payable to Edna, including William, Jr.’s, and the

disposition of the proceeds from the Bermuda Properties.

      Conrad responded and pleaded the affirmative defenses of res judicata,

judicial estoppel, equitable estoppel, and accord and satisfaction. He later filed a

counterclaim against William, Jr. The third brother, Robert, intervened in the suit

on July 26, 2011 to protect his interests. Robert ultimately non-suited his claims,

and his pleadings are not otherwise relevant to this appeal.

      In November 2012, William, Jr. moved for partial summary judgment on his

breach-of-fiduciary-duty claim. The following month, Conrad moved for summary

judgment based on three of his four pleaded affirmative defenses (i.e., res judicata,

equitable estoppel, and accord and satisfaction). Both sides objected to portions of

the other’s summary-judgment evidence.4 The trial court denied William, Jr.’s

motion and granted Conrad’s motion.5 This appeal followed.

                     Standard of Review and Applicable Law

      We review a trial court’s decision to grant or deny a motion for summary

judgment de novo. Mid–Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621

(Tex. 2007); Harvest House Publishers. v. Local Church, 190 S.W.3d 204, 209
4
      The appellate record does not reflect that the trial court ever expressly ruled on either
      side’s objections.
5
      The judgment, however, did not become final until Robert, the intervener, non-suited his
      claims, which were not the subject of any motion for summary judgment.


                                             11
(Tex. App.—Houston [1st Dist.] 2006, pet. denied) (stating that same standard of

review applies to denials and grants of summary judgment).

      Under the summary judgment standard set forth in Rule of Civil Procedure

166a(c), the movant has the burden to show that no genuine issues of material fact

exist and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748

(Tex. 1999); see also Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366, 376

(Tex. App.—Houston [1st Dist.] 2012, pet. denied). Similarly, a defendant moving

for summary judgment on an affirmative defense pursuant to Rule 166a(c) has the

burden to conclusively establish each element of that defense as a matter of law.

See KPMG Peat Marwick, 988 S.W.2d at 748; Essex Crane Rental Corp., 371

S.W.3d at 381. If the movant meets its burden, then and only then must the non-

movant respond and present evidence raising a material fact issue. See Rhone–

Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999); KPMG Peat Marwick,

988 S.W.2d at 748; see also Essex Crane Rental Corp., 371 S.W.3d at 376. In

deciding whether there is a disputed material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true, and every

reasonable inference must be indulged in favor of the non-movant and any doubts

resolved in its favor. See KPMG Peat Marwick, 988 S.W.2d at 748; see also Essex

Crane Rental Corp., 371 S.W.3d at 376.



                                         12
         When a contract contains an ambiguity, its interpretation becomes a fact

issue.    Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983); Hackberry Creek

Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 56

(Tex. App.—Dallas 2006, pet. denied). When construing a written contract, the

primary concern of the court is to ascertain the parties’ intent as expressed in the

contract’s terms. Chrysler Ins. Co. v. Greenspoint Dodge of Hous., Inc., 297

S.W.3d 248, 252 (Tex. 2009); Coker, 650 S.W.2d at 393. “No single provision

taken alone will be given controlling effect; rather, all the provisions must be

considered with reference to the whole instrument.” Coker, 650 S.W.2d at 393.

         Contract language that can be given a certain or definite meaning is not

ambiguous and is construed as a matter of law. Chrysler, 297 S.W.3d at 252;

Coker, 650 S.W.2d at 393. A contract is ambiguous when its meaning is uncertain

and doubtful or it is reasonably susceptible to more than one meaning. Coker, 650

S.W.2d at 393; United Protective Servs., Inc. v. W. Vill. Ltd. P’ship, 180 S.W.3d

430, 432 (Tex. App.—Dallas 2005, no pet.). A court may conclude that a contract

is ambiguous even in the absence of such a pleading by either party. Sage St.

Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993); see Coker,

650 S.W.2d at 392–94 (although both parties asserted property settlement

agreement was unambiguous and moved for summary judgment, supreme court

concluded ambiguity existed).



                                         13
                                      Discussion

      In three issues, William is appealing both the trial court’s denial of his

motion for partial summary judgment and the granting of Conrad’s motion for

summary judgment.

A.    Conrad’s Motion for Summary Judgment 6

        Conrad essentially argues that we can affirm the trial court’s grant of

summary judgment in his favor based on the evidence—without regard to the legal

bases for summary judgment that he argued to the trial court in his motion.

      Here, Conrad pleaded the affirmative defenses of res judicata, judicial

estoppel, equitable estoppel, and accord and satisfaction. Affirmative defenses

must be pleaded, otherwise they are deemed to be waived. See TEX. R. CIV. P. 94

(requiring that party plead matters like estoppel and other avoidances or

affirmative defenses); KPMG Peat Marwick, 988 S.W.2d at 749–50 (stating that

party asserting fraudulent concealment as affirmative defense to statute of

limitations claim has burden to plead defense and to provide sufficient evidence to

raise questions of fact). Conrad moved for summary judgment based on three of

these defenses (i.e., res judicata, equitable estoppel, or accord and satisfaction).

6
      In his third issue, William, Jr. argues that, to the extent it relied on inadmissible
      evidence when ruling on the summary judgments, the trial court erred by
      admitting such evidence over William, Jr.’s objections. Because we can determine
      whether the trial court erred by granting Conrad’s motion based on evidence that
      was not objected to by either party, it is not necessary for us to address William,
      Jr.’s third issue, as it pertains to Conrad’s motion. See TEX. R. APP. P. 47.1.

                                           14
The trial court granted Conrad’s motion without specifying the basis for its ruling

(i.e., res judicata, equitable estoppel, and accord and satisfaction). Therefore, we

must affirm the summary judgment if any of the grounds presented to the trial

court and preserved for appellate review are meritorious. See Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003), 128 S.W.3d at 216;

Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); see also

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002) (“A court

cannot grant summary judgment on grounds that were not presented.”); McConnell

v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“[A] motion for

summary judgment must itself expressly present the grounds upon which it is

made. A motion must stand or fall on the grounds expressly presented in the

motion.”).

      On appeal, however, Conrad argues only that he conclusively established his

affirmative defense of equitable estoppel; he does not dispute William, Jr.’s

arguments that he failed to meet his burden of proof with regard to his affirmative

defenses of res judicata and accord and satisfaction. By doing so, Conrad has

effectively abandoned res judicata and accord and satisfaction as grounds for

summary judgment on appeal. Accordingly, we will limit our discussion to the

only ground asserted in Conrad’s motion for summary judgment that he has not

abandoned—equitable estoppel. See Wojcik v. Wesolick, 97 S.W.3d 335, 336–37



                                        15
(Tex. App.—Houston [14th Dist.] 2003, no pet.) (citing Hall v. Tomball Nursing

Ctr., Inc., 926 S.W.2d 617, 619 (Tex. App.—Houston [14th Dist.] 1996, no writ)

(holding that court of appeals need not address ground in motion for summary

judgment that appellee abandons on appeal))).

      1.     Equitable Estoppel

      William, Jr. argues that the trial court erred in granting Conrad’s motion for

summary judgment because Conrad failed to conclusively establish his affirmative

defense of equitable estoppel. “[T]he doctrine of equitable estoppel requires: (1) a

false representation or concealment of material facts; (2) made with knowledge,

actual or constructive, of those facts; (3) with the intention that it should be acted

on; (4) to a party without knowledge or means of obtaining knowledge of the facts;

(5) who detrimentally relies on the representations.” Johnson & Higgins of Tex.,

Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16 (Tex. 1998).

      Conrad’s equitable estoppel argument is premised on his interpretation of

the Settlement Agreement and the Stipulation—both of which he contends are

unambiguous. With regard to his equitable estoppel argument, Conrad argues that:

      William[, Jr.] has repeatedly agreed to settle and resolve his claims
      concerning the [Family Partnership] and the Bermuda [P]roperties,
      only to engage equally repeatedly in a campaign of litigation, re-
      litigation, and re-litigation, again. Conrad’s payments, in his
      individual and representative capacities, to William[, Jr.] constitute a
      change of position—a reliance—on William[, Jr.]’s false statements
      that he intended to abide by the various settlement agreements into
      which he entered, including the [Settlement Agreement] and


                                         16
      [Stipulation] raised by Conrad in his Motion for Summary Judgment.
      Individually, as Edith Mitchell’s personal representative, and as the
      representative of her Estate, Conrad relied upon William[, Jr.]’s
      statements that he intended to resolve these matters, only to find
      himself embroiled in continuing litigation that began long before his
      mother’s death and continues to this day.

“When a contract contains an ambiguity, the granting of a motion for summary

judgment is improper because the interpretation of the instrument becomes a fact

issue.” Coker, 650 S.W.2d at 394. Thus, in order to determine whether the trial

court’s granting of summary judgment on the affirmative defense of equitable

estoppel was appropriate, we must first determine whether the agreements these

arguments are based upon are ambiguous. See id.

             (a) The Settlement Agreement

      Conrad argues that, by its plain language, the Settlement Agreement

contains a prospective release that bars any future claim by William, Jr. relevant to

the Family Partnership or the promissory notes given by each brother to Edna in

December 2003 in exchange for Edna’s interest in the Family Partnership.

William, Jr., on the other hand, contends that nothing in the Settlement Agreement

indicates that he intended to release or settle any claims he may have in the future

as a beneficiary of Edna’s will and that the agreement does not “absolve[] Executor

Conrad years in advance of his future failures to discharge the fiduciary duties with

which he was charged upon becoming executor of Edna’s estate.”




                                         17
      Although the Settlement Agreement resolves “all claims and causes of

action of any kind whatsoever” that William, Jr. has or may have in the future

against Conrad, both individually and as attorney-in-fact for Edna, Robert, and

Edna herself, and it purports to be “global” and “forever bar” any of the parties

from “re-instituting suits concerning . . . any subsequent actions dealing with

[Edna’s] estate in relation to the [Family Partnership],” the Settlement Agreement

does not expressly prohibit William, Jr. from suing Conrad, as executor of their

mother’s estate, to protect William, Jr.’s interest as a beneficiary of the estate.

Having reviewed the Settlement Agreement and the parties’ arguments, we

conclude that the Settlement Agreement is ambiguous with respect to whether it

applies to William, Jr.’s instant claims. While one might reasonably interpret the

Settlement Agreement to cover future interests acquired by William, Jr. as a

beneficiary under Edna’s will with respect to the Family Partnership, the

agreement does not expressly say that, and it would be just as reasonable to

interpret the Settlement Agreement to only cover claims that are based on events

leading up to the signing of the Settlement Agreement in 2004, particularly in light

of the language utilized in the “Release” section of the agreement (i.e., releasing

claims “based on any events that have occurred prior to the date this Settlement

Agreement is signed”). Under such an interpretation, any actions taken by Conrad

since 2006, as executor of Edna’s estate, would not be covered by the Settlement



                                        18
Agreement. Thus, there is a question of fact with respect to whether William, Jr.’s

claims in the underlying suit are covered by the Settlement Agreement. See Coker,

650 S.W.2d at 393–94 (stating contract is ambiguous when it is reasonably

susceptible to more than one meaning and that such ambiguity creates fact issue

which precludes summary judgment).

            (b) The Stipulation

      Conrad argues that the plain language of the Stipulation unambiguously

demonstrates that William, Jr. sold his ownership interest in the Bermuda

Properties to Conrad and Robert in December 2000, along with any claim William,

Jr. had or may have in the future—in any capacity—to any proceeds and rental

income derived from those properties.        According to Conrad, the Stipulation,

which by its terms was intended by the parties to be “global” in nature, was

intended to resolve any claims among the parties—including claims to any interest

or proceeds derived from the Bermuda Properties—“fully, finally, and once and for

all.” William, Jr., however, argues that the Stipulation, which predates Edna’s

death by five years, does not expressly indicate that he agreed to give up any

interest to which he would be entitled in the future under his mother’s will. As a

result, William, Jr. argues, the Stipulation is inapplicable to his instant claims,

which were brought solely as a beneficiary of Edna’s estate. The Stipluation

states, in pertinent part: “It is the intention of the signatories to this agreement



                                        19
[including, inter alia, William, Jr., Conrad, Robert, and Edna] to reach a global

settlement on all issues affecting them, including those claims that have been

brought in other jurisdictions and those that have been raised as of this time.”

Under the terms of the Stipulation, the parties agreed that Conrad and Robert

would purchase William, Jr.’s interest in the Bermuda Properties for $775,000 and

that this payment was “in consideration for all William [Jr.]’s right title and

interest in the property, including, without limitation, any claim to the income,

profits or other thing of value derived from operations of the property.”

      Having reviewed the agreement and the parties’ arguments, we conclude that

the Stipulation is ambiguous. While one might reasonably interpret the Stipulation

as Conrad does (i.e., encompassing all claims to all proceeds and rental income

from the Bermuda Properties, whenever accrued, whenever paid, by William, Jr. in

any capacity), the agreement does not expressly say that, and it would be just as

reasonable to interpret the Stipulation to only apply to William, Jr.’s claims to

proceeds and rental income that accrued as of that time (December 2000), and not

to any claim William, Jr. might have to such proceeds and rental income as a

beneficiary to his mother’s estate at some future time. Thus, there is a question of

fact with respect to whether William, Jr.’s claims in the underlying suit are covered

by the Stipulation.    See Coker, 650 S.W.2d at 393–94 (stating contract is




                                         20
ambiguous when it is reasonably susceptible to more than one meaning and that

such ambiguity creates fact issue which precludes summary judgment).

      2.     Conclusion

      Because Conrad’s equitable estoppel argument was premised upon his

interpretation of two agreements that we have determined to be ambiguous, the

trial court erred in rendering summary judgment in favor of Conrad on his

affirmative defense of equitable estoppel. See Coker, 650 S.W.2d at 394 (“When a

contract contains an ambiguity, the granting of a motion for summary judgment is

improper because the interpretation of the instrument becomes a fact issue.”).

      On appeal, William, Jr. contends that the trial court erred in granting a final

summary judgment that purported to dispose “of all matters at issue before the

Court” because Conrad’s motion for summary judgment did not address William,

Jr.’s claims for removal of Conrad as executor or William, Jr.’s claim for

accounting and distribution of the estate. Because we are reversing the trial court’s

grant of summary judgment and remanding the case for further proceedings, we

need not address this issue. See TEX. R. APP. P. 47.1.

B.    William, Jr.’s Motion for Partial Summary Judgment

      William, Jr. moved for summary judgment on his breach of fiduciary duty

claim, pursuant to Rule 166a(c). See TEX. R. CIV. P. 166a(c) (stating movant

entitled to summary judgment on claim if he can show that there is no genuine



                                         21
issue of material fact and that he is entitled to judgment as matter of law). The trial

court denied his motion.

      Generally, the denial of a motion for summary judgment is an interlocutory

order that, with a few exceptions, is not appealable. Cincinnati Life Ins., 927

S.W.2d at 625. One such exception arises when the parties file motions for

summary judgment on the same issues and the trial court grants one motion and

denies the other. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872

(Tex. 2000)).    Under such circumstances, the reviewing court considers the

summary judgment evidence presented by both sides, determines all questions

presented, and, if the reviewing court determines that the trial court erred, renders

the judgment the trial court should have rendered. See Valence Operating Co., 164

S.W.3d at 661.

      William, Jr. argues that this case is similar to Fletcher v. Energy Resource

Technology GOM, Inc., in which we reviewed the granting of the plaintiff’s motion

for summary judgment and the denial of the defendant’s motion for partial

summary judgment. No. 01–11–00553–CV, 2012 WL 3628896, at *1–2 (Tex.

App.—Houston [1st Dist.], Aug. 23, 2012, no pet.) (mem. op.). Fletcher, however,

is distinguishable. In that case, the plaintiff moved for summary judgment on his

breach of contract claim and the defendant moved for summary judgment on the



                                          22
plaintiff’s breach of contract claim, as well as on the defendant’s affirmative

defense of lack of consideration. Id.   As such, that case fits squarely within the

parameters of the exception for cross motions for summary judgment recognized in

Valence Operating Co. See Valence Operating Co., 164 S.W.3d at 661 (stating

trial court has jurisdiction to consider denial of motion for summary judgment

when trial court grants one motion and denies the other on same issue).

      Unlike in Fletcher, the cross-motion exception is inapplicable in the instant

case because the parties did not move for summary judgment on the same issue—

William, Jr. moved for summary judgment on his breach of fiduciary duty claim

and Conrad moved for summary judgment solely on the basis of three of his

affirmative defenses. Accordingly, we overrule William, Jr.’s issues pertaining to

the denial of his motion for partial summary judgment on his breach of fiduciary

duty claim against Conrad. Cf. Frankoff v. Norman, No. 14–11–00152–CV, 2012

WL 2394050, at *6, 8 (Tex. App.—Houston [14th Dist.] Jun. 26, 2012, no pet.)

(mem. op.) (reversing trial court’s grant of summary judgment on defendant’s

affirmative defenses and overruling plaintiff’s appellate challenge to trial court’s

denial of plaintiff’s motion for summary judgment on his breach of fiduciary duty

claim because challenge did not fit within any exception to general rule that

appellate courts may not review denials of summary judgment).




                                        23
                                    Conclusion

      We reverse the trial court’s grant of summary judgment in Conrad’s favor

and we overrule William, Jr.’s issues pertaining to the denial of his motion for

partial summary judgment on his breach of fiduciary duty claim against Conrad.

We remand to the trial court for further proceedings consistent with this opinion.




                                              Jim Sharp
                                              Justice


Panel consists of Justices Jennings, Higley, and Sharp.




                                         24
