Opinion filed February 23, 2012




                                                      In The


    Eleventh Court of Appeals
                                                   __________

                                            No. 11-10-00210-CV
                                                __________

                                DONALD R. LYBRAND, Appellant

                                                          V.

            DONNA JOHNSON WILLIAMS, INDIVIDUALLY
       AND AS EXECUTRIX OF THE ESTATE OF LARUE JOHNSON,
      PEGGY CLINE AND LINDA NELSON, INDIVIDUALLY, Appellees


                                 On Appeal from the 106th District Court
                                         Dawson County, Texas
                                   Trial Court Cause No. 05-02-17147


                                  MEMORANDUM OPINION

         This appeal arises from cross motions for summary judgment. The trial court granted
appellees‘ motion for summary judgment1 and denied appellant‘s motion. We affirm.
         Believing that Donald R. Lybrand converted assets belonging to Larue Johnson, Donna
Johnson Williams, as attorney-in-fact for Johnson, sued Lybrand for fraud and malice, fraud in
the inducement and malice, unconscionable course of conduct and malice, conversion and


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           We note that the trial court denied appellees‘ motion for summary judgment as to a party that had already been
dismissed from the lawsuit.
malice, and breach of fiduciary duty and malice.         Johnson later died, and appellees were
substituted as plaintiffs. The crux of appellees‘ original underlying complaint was that Lybrand
had used a fraudulent power of attorney to transfer to himself certain assets that belonged to
Larue Johnson, including the financial accounts that are the subject of this appeal.
       The parties subsequently entered into a mediated Rule 11 Agreement. TEX. R. CIV. P. 11.
The pertinent part of the Rule 11 agreement that was entered into by the parties is as follows:
               The parties agree to the following division of property:

               The Estate of Larue Johnson shall receive all accounts in the name of
       Larue Johnson individually or Larue Johnson with Donald R. Lybrand as Joint
       Tenants or as Right of Survivor, more specifically those individual accounts that
       were transferred or modified in ownership prior to her death. Such ownership
       interest or accounts shall be transferred to the Estate of Larue Johnson in the same
       kind or character as it existed on the date of the transfer, whether in cash, shares,
       or otherwise, along with any gain, interest, or dividends derived thereof (The
       amounts as set forth below are approximate and used for descriptive purposes):
                Herndon-Plant Oakley           1213-4658-5425         671,552.58
                Bank of America                574036380               22,150.67
                EmigrantDirect.com             5801972075              63,531.92
                EmigrantDirect.com             3217376153              63,531.92
                Fidelity                       Z42862339              134,134.41
                Fidelity                       Z42393576               14,178.20
                Fidelity                       345156310               42,162.67
                Herndon-Plant Oakley           121346585450            16,791.92

               In addition to the accounts listed above, the Estate of Larue Johnson shall
       also receive [here follow references to additional property not involved in this
       appeal that is to belong to the Estate of Larue Johnson as well as references to
       specific property that is to belong to Lybrand].

Appellees, believing that Lybrand was not going to perform under the Rule 11 Agreement as
they understood it, added claims for specific performance, breach of contract, and promissory
estoppel. Lybrand filed a counterclaim for declaratory judgment. The dispute between the
parties centered on who was to receive the specific accounts listed in the Rule 11 Agreement.
The Herndon-Plant Oakley account ending in 5450 was not a part of the parties‘ dispute. The
parties agreed that the Estate of Larue Johnson was entitled to receive that account.
       Both sides of this lawsuit filed traditional motions for summary judgment. The trial court
granted appellees‘ motion for summary judgment and denied appellant‘s motion for summary
judgment.    Lybrand appealed from that judgment.         That judgment was not final, and we

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dismissed the appeal for want of jurisdiction. The trial court subsequently entered another
judgment. In that latter judgment, the trial court held that the Rule 11 Agreement was not
ambiguous and that it was enforceable. Among other things, the trial court awarded the accounts
to appellees and awarded trial court attorney‘s fees to them. The trial court denied all other
relief, including an award of appellate attorney‘s fees sought by appellees. That judgment was
final. Lybrand‘s motion for new trial was overruled, and Lybrand appealed.
       Lybrand raises two issues on appeal. First, Lybrand alleges that the trial court erred
when it denied his motion for summary judgment and granted appellees‘ motion. Specifically,
Lybrand argues that the trial court erred when it denied his motion because the Rule 11
Agreement is unambiguous and that he is entitled, as a matter of law, to receive the specific
accounts listed in the agreement. Lybrand also argues that the trial court issued judgment that
could only result from a finding that the agreement was ambiguous and, thus, that the trial court
erred when it granted appellees‘ motion. Lybrand contends in his second issue that the trial court
erred when it denied his motion for new trial. Appellees bring a cross-issue on appeal and allege
that the trial court erred when it denied the award of appellate attorney‘s fees that they sought in
their motion for summary judgment.
       We review the trial court‘s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215 (Tex. 2003). A trial court must grant a traditional motion for summary
judgment if the moving party establishes that no genuine issue of material fact exists and that the
movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 471 (Tex. 1991). Once the movant establishes a right to summary
judgment, the nonmovant must come forward with evidence or law that precludes summary
judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).
       When reviewing a traditional summary judgment, the appellate court considers all the
evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.
1985). The appellate court ―must consider whether reasonable and fair-minded jurors could
differ in their conclusions in light of all of the evidence presented‖ and may not ignore
―undisputed evidence in the record that cannot be disregarded.‖ Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).

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       When both parties move for summary judgment and the trial court grants one motion and
denies the other, the appellate court considers the summary judgment evidence presented by both
sides and determines all questions presented. Valence Operating, 164 S.W.3d at 661; FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). If the appellate court
determines the trial court erred, it must render the judgment the trial court should have rendered.
Valence Operating, 164 S.W.3d at 661; FM Props., 22 S.W.3d at 872; Escondido Servs., LLC v.
VKM Holdings, LP, 321 S.W.3d 102, 105 (Tex. App.—Eastland 2010, no pet.).
       In Issue 1(A), Lybrand contends that the trial court erred when it denied his motion for
summary judgment. Specifically, he argues that the agreement is unambiguous and that the only
reasonable interpretation of the agreement is that he is entitled, as a matter of law, to receive the
accounts. Therefore, he maintains that, because he has shown that he is entitled to judgment as a
matter of law and that there is no genuine issue as to any material fact, the trial court should have
granted his motion for summary judgment.
       Lybrand centers his argument on the following language in the agreement: ―The Estate
of Larue Johnson shall receive all accounts in the name of Larue Johnson individually or Larue
Johnson with Donald R. Lybrand as Joint Tenants or as Right of Survivor, more specifically
those individual accounts that were transferred or modified in ownership prior to her death‖
(emphasis added). Lybrand argues that the specific accounts listed in the agreement, except the
last account, were neither transferred nor modified in ownership prior to Larue Johnson‘s death.
Thus, because the accounts were not ―transferred or modified in ownership prior to‖ Larue
Johnson‘s death, Lybrand argues that, under the unambiguous language in the agreement, the
accounts are his.
       In Issue 1(B), Lybrand asserts that the trial court erred when it granted appellees‘ motion
for summary judgment. We take Lybrand‘s argument in this part of this issue to be that, under
the canons of construction, the agreement is unambiguous because the only reasonable reading of
the agreement is the one he presents but that the only way the trial court could have granted
appellees‘ motion for summary judgment would have been to first find that appellees‘ reading of
the agreement was just as reasonable as Lybrand‘s and then find that, because there were two
reasonable interpretations of the agreement, it was ambiguous. Lybrand correctly points out that
such a finding of ambiguity would result in a fact issue and therefore preclude summary



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judgment for appellees. The trial court, however, specifically found that the agreement was not
ambiguous.
       The same rules of interpretation and construction apply to settlement agreements as to
other types of contracts. Nevarez v. Ehrlich, 296 S.W.3d 738, 742 (Tex. App.—El Paso 2009, no
pet.). When courts construe a written contract, the primary concern is to ascertain the true
intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393
(Tex. 1983). In order to arrive at the true intention of the parties, courts are to examine and to
consider the entire writing in an effort to harmonize and give effect to each of the provisions of
the agreement so that none of its provisions is rendered meaningless. Id. All of the provisions in
the agreement must be considered with reference to the entire instrument, and no single
provision, taken alone, will be given controlling effect. Id.
       Whether a contract is ambiguous is a question of law.           Kelley-Coppedge, Inc. v.
Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998). If a written agreement is worded so that
it can be given a certain or definite legal meaning, then it is not ambiguous, and courts will
construe an unambiguous contract as a matter of law. State Farm Fire & Cas. Co. v. Vaughan,
968 S.W.2d 931, 933 (Tex. 1998); Coker, 650 S.W.2d at 393. Our review of an unambiguous
contract is a question of law that we review de novo. Chrysler Ins. Co. v. Greenspoint Dodge of
Houston, Inc., 297 S.W.3d 248, 252 (Tex. 2009); ACS Investors, Inc. v. McLaughlin, 943 S.W.2d
426, 430 (Tex. 1997). The court determines the question by examining the contract as a whole in
light of the circumstances that existed when the parties entered into the contract. Columbia Gas
Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). A court may
conclude that a contract is ambiguous even though the parties did not plead ambiguity. Sage
Street Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993).
       A contract is ambiguous when its meaning is uncertain and doubtful or when it is
reasonably susceptible to more than one meaning. Kelley-Coppedge, 980 S.W.2d at 464; Coker,
650 S.W.2d at 393–94. An ambiguity does not arise just because the parties advance conflicting
interpretations. Kelley-Coppedge, 980 S.W.2d at 465. Only when a contract is susceptible to
two or more reasonable interpretations, after a court applies the applicable rules of contract
construction, is the contract ambiguous. Id. If a contract is ambiguous, then a fact issue exists
regarding the intent of the parties, and summary judgment is improper. Coker, 650 S.W.2d at
394.

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       We are of the opinion that the Rule 11 Agreement here can be given a certain and definite
meaning, and that it is not ambiguous.
       Lybrand points us to the doctrine of last antecedent set forth in our opinion in Stewman
Ranch, Inc. v. Double M. Ranch, Ltd., 192 S.W.3d 808, 812 (Tex. App.—Eastland 2006, pet.
denied). That rule provides that we are to apply relative and qualifying phrases in a sentence to
the words or phrases immediately preceding them, unless that would impair the meaning of the
sentence. Id. It is Lybrand‘s position that the portion of the agreement wherein the parties stated
―more specifically those individual accounts that were transferred or modified in ownership prior
to [Johnson‘s] death‖ is intended to ―modify the previous phrase ‗all accounts in the name of
Larue Johnson.‘‖ Lybrand also argues that specific language and exact terms in a contract, such
as that just quoted, will control over general provisions such as ―all accounts‖ as used in the
agreement. Where differences exist between terms in the same agreement, those that contribute
most essentially to the agreement are entitled to greater consideration. Lavaca Bay Autoworld,
L.L.C. v. Marshall Pontiac Buick Oldsmobile, 103 S.W.3d 650, 659 (Tex. App.—Corpus Christi
2003, no pet.). We are aware of those canons, but we are also aware that we are not to give
controlling effect to any single provision taken alone. In addition, we are to consider the
agreement in light of the circumstances that existed at the time the parties entered into it. At the
time they entered into the agreement, the parties were embroiled in a lawsuit that involved,
among other things, the various accounts listed in the agreement and that are involved in this
suit. We are to consider the Rule 11 Agreement in its entirety in a manner that harmonizes and
gives effect to each of the provisions in it so that none of its provisions is rendered meaningless.
Coker, 650 S.W.2d at 393.
       To accept Lybrand‘s argument would be to render the entire listing of accounts
meaningless. There would be no reason to list them in the agreement if they were not to be
awarded to the estate. The accounts were very much involved in the lawsuit. Further, when we
take all of the provisions into account, we note that, immediately after the parties listed the
accounts, they placed these words: ―In addition to the accounts listed above, the Estate of Larue
Johnson shall also receive . . . .‖ We also note the way in which the parties arranged the
agreement. As an introductory sentence, the parties wrote the following in the agreement: ―The
parties agree to the following division of property: . . . .‖ In the next four paragraphs, the parties
listed property awarded to the estate. The financial accounts at issue were listed among these

                                                  6
paragraphs. The accounts were not listed among the paragraphs describing the property awarded
to Lybrand. We conclude that the agreement is not ambiguous and that the only reasonable
reading of the agreement is that the listed accounts were to belong to appellees.
        As a matter of law, the trial court erred neither when it granted summary judgment for
appellees nor when it denied Lybrand‘s motion for summary judgment. We overrule Lybrand‘s
first issue on appeal.
        In his second issue, Lybrand argues that the trial court erred when it denied his motion
for new trial. We review a trial court‘s denial of a motion for new trial for an abuse of
discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). A trial court abuses its discretion when
its ruling is arbitrary, unreasonable, or without reference to any guiding rules or principles.
Great W. Drilling, Ltd. v. Alexander, 305 S.W.3d 688, 696 (Tex. App.—Eastland 2009, no pet.).
Lybrand predicates this issue upon the trial court‘s alleged error when it granted appellees‘
motion for summary judgment and when it denied his. Because we have held that the trial court
did not err in either action, we find that the trial court did not abuse its discretion when it denied
Lybrand‘s motion for new trial. We overrule Lybrand‘s second issue on appeal.
        In a cross-issue, appellees argue that, although the trial court awarded trial court
attorney‘s fees to them, it erred when it did not grant them appellate attorney‘s fees. We
disagree. A trial court, in its discretion, may allow appellate attorney‘s fees but is not required to
do so. Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 221 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied); Mid County Rental Serv., Inc. v. Miner-Dederick Constr. Corp., 583
S.W.2d 428, 429 (Tex. Civ. App.—Beaumont 1979), rev’d on other grounds, 603 S.W.2d 193
(Tex. 1980); Bernard v. Bernard, 491 S.W.2d 222, 225 (Tex. Civ. App.—Houston [1st Dist.]
1973, no writ). We also note that appellees make no record references in this portion of their
brief. See TEX. R. APP. P. 38.1(g), (i). Appellees‘ cross-issue is overruled.
        We affirm the judgment of the trial court.




                                                              JIM R. WRIGHT
February 23, 2012                                             CHIEF JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.


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