                            NUMBER 13-06-00690-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ERA REALTY GROUP, INC.,                                                      Appellant,

                                           v.

ADVOCATES FOR CHILDREN AND FAMILIES, INC.,                                    Appellee.


  On appeal from the 267th District Court of Victoria County, Texas.


                                      OPINION

    Before Chief Justice Valdez and Justices Garza and Benavides
                   Opinion by Chief Justice Valdez

      Appellant, ERA Realty Group, Inc. (“ERA”), appeals from a summary judgment

favoring appellee, Advocates for Children and Families, Inc. (“Advocates”). ERA sued

Advocates over an alleged breach of a real estate representation agreement. Advocates

moved for summary judgment and sought attorney’s fees. The trial court granted summary

judgment in favor of Advocates and awarded it $15,000 in attorney’s fees. By three issues,
ERA contends that the trial court: (1) erred in granting summary judgment; (2) was biased

and unobjective; and (3) lacked sufficient evidence to award attorney’s fees. We affirm.

                                              I. BACKGROUND

        On March 23, 2005, ERA and Advocates entered into a residential buyer/tenant

representation agreement (the “agreement”). The agreement was a standardized pre-

printed form that contained blanks that were completed by ERA in typeface print.1 By the

agreement’s terms, Advocates granted ERA the exclusive right to act as Advocates’ real

estate agent for the purpose of buying or leasing property in Calhoun or Victoria Counties

from March 23, 2005 through September 30, 2005.2 The agreement contained the

following real estate commission terms:

        Commission: The parties agree that [ERA] will receive a commission
        calculated as follows: (1) 6.00 % of the gross sales price if [Advocates]
        agrees to purchase property in the market area, and (2) if [Advocates]
        agrees to lease property in the market a fee equal to (check only one box)
        G ___ % of one month’s rent or G 6 % of all rents to be paid over the term
        of the lease.


As to the lease provisions, neither box was checked but the number “6" is typed into the

final blank space.

        Advocates entered into a twelve year lease with College Church of Christ in Victoria

County on July 8, 2005, without ERA’s participation. ERA subsequently learned of

Advocates’ lease and filed a breach of contract suit seeking its purported commission and

attorney’s fees. See TEX . CIV. PRAC . & REM . CODE ANN . § 38.001(8) (Vernon 1997).


        1
            Advocates m ade som e handwritten interlineations to the agreem ent.

        2
         By handwritten interlineation, the agreem ent included the buying or leasing of property in Victoria
County after June 30, 2005.

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Advocates answered by generally denying ERA’s allegations.

        On May 11, 2006, Advocates moved for traditional summary judgment on the

grounds that the agreement between the parties did not create a duty for Advocates to pay

ERA a commission when Advocates leased property. See TEX . R. CIV. P. 166a(c). The

rationale for Advocates’ argument was that the terms of the agreement did not obligate

Advocates to pay a commission to ERA on a lease because an appropriate box was not

checked. Advocates also sought attorney’s fees from ERA.3 Advocates offered the

agreement and an affidavit executed by Joyce Hyak, an Advocates’ representative, as

summary judgment evidence.

        ERA responded to Advocates’ summary judgment motion by arguing that the

contract evidenced an intent to pay ERA commission on a lease because the number “6"

was typed into an appropriate blank, even though no box was checked. Attached to ERA’s

response was an affidavit of Tom Tucker, ERA’s owner, and portions of the transcript of

Hyak’s deposition testimony.

        The trial court granted Advocates a summary judgment without providing a rationale.

It also awarded Advocates $15,000 in attorney’s fees. No findings of fact or conclusions

of law were requested. This appeal ensued.

                                        II. SUMMARY JUDGMENT

        By its first issue, ERA contends that the trial court erred in granting summary

judgment because the agreement, when read in its entirety, evidences an intent by both

        3
          Advocates supplem ented its sum m ary judgm ent m otion to include a request for attorney’s fees.
Advocates argued that the agreem ent’s term s provide for attorney’s fees. The relevant provision reads, “If
[Advocates] or [ERA] is a prevailing party in any legal proceeding brought as a result of a dispute under this
agreem ent or any transaction related to this agreem ent, such party will be entitled to recover from the non-
prevailing party all costs of such proceeding and reasonable attorney’s fees.”

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parties to pay lease commissions.

A.     Standard of Review

       We analyze a traditional motion for summary judgment under a well-established

standard of review. The movant bears the burden to show that there is no genuine issue

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

166a(c). We review the motion and the evidence de novo, taking as true all evidence

favorable to the nonmovant, indulging every reasonable inference, and resolving any

doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005). When, as here, the trial court does not specify the grounds on which the

judgment is based, we will affirm the judgment if it is correct on any legal theory expressly

placed at issue and supported by the evidence. See TEX . R. CIV. P. 166a(c) (stating that

issues must be "expressly set out in the motion or in an answer or any other response");

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam) (holding that

when the grounds for the ruling are not specified, we are to affirm "if any of the theories

advanced are meritorious").

B.     Applicable Law

       The primary goal in interpreting a contract is to give effect to the written expression

of the parties' intent. See Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 741 (Tex. 1998).

To determine the parties’ intent, courts must consider the entire writing in an effort to

harmonize all the provisions of the instrument. See Preston Ridge Fin. Servs. Corp. v.

Tyler, 796 S.W.2d 772, 775 (Tex. App.–Dallas 1990, writ denied) (citing Coker v. Coker,

650 S.W.2d 391, 393 (Tex. 1983)). Parol evidence is not admissible to render a contract



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ambiguous; however, "the contract may be read in light of the surrounding circumstances

to determine whether an ambiguity exists." Balandran, 972 S.W.2d at 741; see also Nat’l

Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995).

         Not every difference in the interpretation of a contract creates an ambiguity. See

Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994). The mere disagreement

over the meaning of a particular provision in a contract does not make it ambiguous. GTE

Mobilnet of S. Tex. Ltd. P’ship v. Telecell Cellular, Inc., 955 S.W.2d 286, 289 n.1 (Tex.

App.–Houston [1st Dist.] 1997, pet. denied). In order for an ambiguity to exist when the

parties advance conflicting interpretations, both interpretations must be reasonable. See

Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.

1996).

         If a contract is found ambiguous, it must be construed strictly against the author and

in a manner so as to reach a reasonable result that is consistent with the intent of the

parties. See, e.g., Gonzalez v. Mission Am. Ins. Co., 795 S.W.2d 734, 737 (Tex. 1990

(providing that an insurance company has the duty to make its policy clear and

unambiguous because the terms, language, and conditions of the insurance policy are

selected by the insurance company itself); Republic Nat'l Bank v. Nw. Nat'l Bank, 578

S.W.2d 109, 115 (Tex. 1978).

C.       Analysis

         The beginning of the agreement evidences an intent by the parties to have ERA

represent Advocates in the purchase or lease of appropriate real estate. The provision

contains a commission calculation if Advocates purchases property and also a commission



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calculation if Advocates leases property. No lease calculation is selected, although the

number “6" is typed before the phrase, “% of all rents to be paid over the term of the

lease.” Clearly, the instruction to “check only one box” was not followed because no box

is checked. The agreement, therefore, can be read in one of two ways: (1) as providing

for a lease commission because the number “6" is typed, or (2) as making no provision for

a lease commission because no box is checked.

      ERA argues that the number “6" is a specific provision that conflicts with the

“general provision” reading “check only one box.” See generally Ostrowski v. Ivanhoe

Prop. Owners Improvement Ass'n, 38 S.W.3d 248, 254 (Tex. App.–Texarkana 2001, pet.

denied) (providing that a general rule of construction is that when there is a conflict

between two provisions, the specific provision controls over the general provision.). We

disagree. What ERA considers a “general provision” is in fact an instruction that ERA did

not follow. The omission of a check and the number “6" in the lease provision, are properly

characterized as scrivener errors rather than what ERA terms “specific provisions.”

      Because an ambiguity exists and ERA completed the form, we strictly construe the

agreement against ERA. See Gonzalez, 795 S.W.2d at 737. We hold that the agreement

made no provision for a commission when Advocates leased property because no

commission calculation was selected. ERA’s first issue is overruled.

                                 III. TRIAL COURT’S BIAS

      By its second issue, ERA contends that it was the victim of a biased judge. ERA

points to two statements made by the trial court at the summary judgment hearing, which

it contends is evidence that the trial court favored non-profit causes to ERA’s detriment.



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ERA relies on Sicott v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986) and Pitt v. Bradford

Farms, 843 S.W.2d 705, 708 (Tex. App.–Corpus Christi 1992, no writ) to support its

position. Neither case cited by ERA is applicable, however, because each deals with

allegations of judicial misconduct by a judge who presided over a jury trial. Instead, this

case was decided by the trial court on Advocates’ motion for summary judgment and

without the aid of a jury. We note that the summary judgment granted in Advocates’ favor

has already been sustained on the merits. Furthermore, an independent review of the

record does not evidence any bias on the trial court’s part. ERA’s second issue is

overruled.

                                   IV. ATTORNEY’S FEES

       By its third issue, ERA argues that the trial court lacked sufficient evidence to award

Advocates $15,000 in attorney’s fees. ERA points to the affidavit submitted by Terry

Carroll Jr., an attorney representing Advocates, which states the following:

       I am a licensed attorney practicing in Victoria County, Texas[.] I have
       practiced in that county since 1990, and I am familiar with the rates charged
       by attorneys in that county for legal services of the type provided to
       Defendant in this matter. I am one of the attorneys representing Defendant
       [Advocates] in [this lawsuit,] I have been designated an expert witness on
       attorney’s fees in this matter[,] and I am familiar with the pleadings,
       correspondence, discovery, and other actions. I have also considered the
       nature of the dispute and the complexity of the legal issues.

       Based on the above-cited information, I state that the reasonable amount of
       attorney’s fees for the services provided to Defendant in this matter through
       the completion of the hearing scheduled for July 31, 2006 is $15,000.

ERA did not object to Carroll’s affidavit. On appeal, ERA argues that the affidavit is legally

insufficient because it is conclusory. We disagree.

       Generally, the testimony of an interested witness, such as a party to the suit, though


                                              7
not contradicted, does no more than raise a fact issue to be determined by the factfinder.

Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (per curiam).

Where the testimony of an interested witness, however, is not contradicted by any other

witness, or attendant circumstances, and the same is clear, direct and positive, and free

from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it

is taken as true, as a matter of law. Id. This is especially true where the opposing party

had the means and opportunity to disprove the testimony or evidence and failed to do so.

Id. at 882. This exception to the general rule regarding interested witness testimony,

however, does not mean in every case in which a party offers uncontradicted testimony,

such testimony mandates an award of the entire amount sought. Ragsdale, 801 S.W.2d

at 882; Welch v. Hrabar, 110 S.W.3d 601, 602 (Tex. App.–Houston [14th Dist.] 2003, pet.

denied); Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 91 (Tex.

App.–Dallas 1996, writ denied). Even though the evidence might be uncontradicted, if the

offered evidence is unreasonable, incredible, or its belief is questionable either from

another witness or attendant circumstances, then such evidence would only raise a fact

issue to be determined by the trier of fact. Ragsdale, 801 S.W.2d at 881-82; Welch, 110

S.W.3d at 602; Hanssen, 938 S.W.2d at 91.

       Based on our review, Carroll’s affidavit is legally sufficient to support the trial court's

award of attorney's fees. Carroll testified that he is a duly licensed attorney, he is familiar

with the usual and customary attorney's fees in Victoria County, he has personal

knowledge of the services rendered to Advocates on this matter, and those services were

reasonable and necessary. See Columbia Rio Grande Regional Hosp. v. Stover, 17



                                               8
S.W.3d 387, 397 (Tex. App.–Corpus Christi 2000, no pet.) (finding a similar affidavit

sufficient to support an award of attorney’s fees). Accordingly, we conclude Carroll’s

affidavit was legally sufficient to support the trial court's judgment for attorney's fees. See

Tex. Commerce Bank v. New, 3 S.W.3d 515, 517-18 (Tex. 1999); see also Cap Rock Elec.

Coop. v. Tex. Utils. Elec. Co., 874 S.W.2d 92, 101-02 (Tex. App.–El Paso 1994, no writ)

(uncontested affidavit establishing prima facie case for attorney's fees legally sufficient to

support fee award). ERA’s third issue is overruled.

                                       V. CONCLUSION

       The trial court’s judgment is affirmed.



                                                          _______________________
                                                          ROGELIO VALDEZ,
                                                          Chief Justice

Opinion delivered and filed this
the 5th day of June, 2008.




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