                                   NO. 07-06-0209-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                   JANUARY 28, 2008

                         ______________________________


                   SOUTH PLAINS LAMESA RAILROAD, LTD. AND
                      LARRY DALE WISENER, APPELLANTS

                                            V.

                      THE KITTEN FAMILY LIVING TRUST AND
                           JERRY KITTEN, APPELLEES

                       _________________________________

              FROM THE 99TH DISTRICT COURT, LUBBOCK COUNTY;

          NO. 2005-529,345; HONORABLE WILLIAM C. SOWDER, JUDGE

                         _______________________________


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


                               MEMORANDUM OPINION


       By four issues, Appellants, South Plains Lamesa Railroad, Ltd. (SPLR) and Larry

Dale Wisener (Wisener), appeal the judgment of the trial court entered in favor of

Appellees, The Kitten Family Living Trust (the Trust) and Jerry Kitten (Kitten), contending
that the trial court erred in (1) granting summary judgment in favor of the Trust and Kitten

(2 and 3) denying summary judgment in favor of SPLR and Wisener, and (4) awarding

attorney’s fees to the Trust and Kitten. We affirm in part and reverse and remand in part.


                                        Background


       SPLR owns a railroad right-of-way in Lubbock County, generally running southwest

from Slaton, Texas. On February 6, 1998, SPLR entered into a contract, entitled Lease

(hereinafter the lease agreement), with the Trust, for the purpose of allowing the Trust to

produce water from the railroad right-of-way. The lease agreement provided for the drilling

of “a water well” on the property. Eleven days later, on February 17, 1998, SPLR and the

Trust entered into a second contract, entitled Water Well and Pipeline Easement

(hereinafter the easement agreement), pertaining to the same property.1 In addition to

granting the Trust a right of first refusal to purchase the property in the event SPLR should

abandon the rail line, the easement agreement contained language that gave the Trust an


       1
        Although the parties agree that the two agreements pertain to the same property,
the legal description of the property, as contained on the face of each agreement, is
substantially different. The lease agreement describes the property as “the land
(hereinafter called “Premises), situated near Slaton, Lubbock County, Texas as described
or shown on the map hereto attached, dated February 5, 1998, marked Exhibit “A.” There
is attached to the lease agreement a map or plat designated Exhibit “A.” The easement
agreement describes the property as “[a] tract of land situated within the SE/4 of Section
23, Block 24, HE&WT Railway Co. Survey, Lubbock County, Texas,” and then describes
the easement as extending “from the East section line of Section 23, Block 24, identified
by a caliche roadway, thence Southward parallel to the existing railroad tracks into Section
6, Block 0, D & W Survey to a point 100 feet South of the South section line of Section 23,
Block 24, HE&WT Railway Co. Survey,” without attaching the map or plat identified in the
lease agreement.

                                             2
easement for the purpose of drilling “water wells” on the property. After the Trust drilled

more than one well on the property, a dispute arose between SPLR and the Trust

concerning the interpretation and interrelation of these two contracts, resulting in this

litigation.


        The Trust and Kitten brought suit and sought a Temporary Restraining Order to

prohibit SPLR and Wisener from interfering with their production of water from the land in

question. After the entry of a Temporary Injunction, both parties filed motions for summary

judgment. On April 20, 2006, the trial court entered a judgment granting the motion for

summary judgment filed by the Trust and Kitten, and denying the motion for summary

judgment filed by SPLR and Wisener. The judgment further enjoined SPLR and Wisener

from interfering with the Trust and Kitten’s use of irrigation wells and a water line located

on the property and awarded the Trust recovery of attorney’s fees. SPLR and Wisener

perfected this appeal.


                                     Issues Presented


        SPLR and Wisener contend that the lease agreement and the easement

agreement, when construed together, are ambiguous, that summary judgment in favor of

the Trust and Kitten should be set aside (including the award of attorney’s fees), and that

a trial should determine the intent of the parties. Alternatively, SPLR and Wisener contend

the lease agreement sets forth the existing agreement between the parties pertaining to

the extraction of water, and that the agreement has been breached. They further contend


                                             3
the easement agreement pertains to the Trust’s right of ingress and egress, and right of

first refusal, and that the easement has lapsed because the original lease was properly

terminated. The Trust and Kitten contend the doctrine of merger operates to allow the

easement agreement to supersede the lease agreement. The Trust and Kitten further

contend that because the lease agreement has been superseded by the easement

agreement, the trial court correctly construed the easement agreement as an unambiguous

document supporting the trial court’s granting of summary judgment in favor of the Trust

and Kitten.


                                    Standard of Review


       In reviewing a summary judgment, this Court must apply well-established standards

which are: (1) the movant for summary judgment 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; (2)

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 (3) every reasonable

inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

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).


       For a party to prevail on a motion for summary judgment, he must conclusively

establish the absence of any genuine question of material fact and that he is entitled to

judgment as a matter of law. Tex. R. Civ. P. 166a(c). Once the movant has established


                                             4
a right to summary judgment, the non-movant has the burden to respond to the motion for

summary judgment and present to the trial court any issues that would preclude summary

judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979);

Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.–Houston [1st Dist.] 1996, writ

denied). When both parties move for summary judgment, the reviewing court should

render the judgment the trial court should have rendered. Dow Chemical Co. v. Bright, 89

S.W.3d 602, 605 (Tex. 2002).


                                    Doctrine of Merger


       With respect to the law of contracts, merger refers to the extinguishment of one

contract by its absorption into another contract and is largely a matter of intention of the

parties. Commercial Bank of Mason v. Satterwhite, 413 S.W.2d 905, 909 (Tex. 1967); Hill

v. Spencer & Son, Inc., 973 S.W.2d 772, 775 (Tex.App.–Texarkana 1998, no pet.). As a

general principle, when two contracts are entered into by the same parties, covering the

same subject matter, but containing terms which are so inconsistent that the terms of the

two contracts cannot subsist together, the legal effect of the subsequent contract is to

rescind the earlier contract. Willeke v. Baylor, 144. Tex. 157, 189 S.W.2d 477, 479

(1945). The subsequent contract then becomes a substitute for the earlier contract and

is the only agreement between the parties upon that subject. A prior agreement is not,

however, superseded or invalidated by a subsequent agreement relating to the same

subject matter if the first agreement is one that might naturally be made as a separate

agreement or where the first agreement is not fully integrated into the second agreement

                                             5
and merely modifies the first agreement in some respect. Hubacek v. Ennis State Bank,

159 Tex. 166, 317 S.W.2d 30, 32 (1958); Boy Scouts of America v. Responsive Terminal

Systems, Inc,, 790 S.W.2d 738, 745 (Tex.App.–Dallas 1990, writ denied). Whether one

contract executed in a series of contracts is intended by the parties to become the sole

agreement of the parties presents a question of fact under the doctrine of merger. Sarte

v. Dommert, 184 S.W.3d 893, 899 (Tex.App.–Beaumont 2006, no pet.).


       Merger is largely a matter of intention of the parties. Smith v. Smith, 794 S.W.2d

823, 827-28 (Tex.App.–Dallas 1990, no writ). Merger is inapplicable when the parties

manifest an intent to have any of the original contract’s provisions survive. An agreement

that merges an original contract into a new contract is an agreement that is accepted in

satisfaction of the original contract and thereby completely discharges it.


                                        Ambiguity


       Deciding whether a contract is ambiguous is a question of law for the court to

determine. J. M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Multiple

contracts pertaining to the same transaction, executed by the same parties, at the same

time or contemporaneously with one another, may be construed as if they were part of a

single unified instrument, even if the contracts do not expressly refer to each other. Fort

Worth Independent School Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000).

To determine whether the multiple contracts, when construed together, are ambiguous, a

court must examine and consider the entire agreement in an effort to harmonize and give


                                             6
effect to all the provisions of the contract so that none of the provisions will be rendered

meaningless. J. M. Davidson, Inc., 128 S.W.3d at 229. Upon analysis, a contract is

unambiguous if it can be given a definite and certain legal meaning. Id. On the other

hand, if the agreement between the parties is subject to two or more reasonable

interpretations, after applying pertinent rules of construction, the contract is ambiguous,

creating a fact issue concerning the intent of the parties. Id.


                                           Analysis


       The easement agreement did not contain a merger clause expressly merging the

lease agreement into the easement agreement. The easement agreement included

specific provisions pertaining to the Trust’s right of first refusal to purchase the property in

the event SPLR should abandon the railway which were not mentioned in the lease

agreement. A right of first refusal is an agreement that might naturally be made as a

separate agreement in the context of leased property. Furthermore, the lease agreement

is not fully integrated into the easement agreement and the easement agreement merely

modifies the lease agreement in some respects. Because the easement agreement did

not expressly discharge the terms of the lease agreement (e.g., the Trust continued to pay

rent according to the terms of the lease agreement), and because the easement

agreement did not encompass the entire agreement of the parties, we find that the doctrine

of merger is inapposite. Accordingly, we find the lease agreement was not merged into the




                                               7
easement agreement. Because the two agreements pertained to the same property2 and

to the same subject matter (i.e., the Trust’s right to extract water from the property in

controversy), to the extent that the two contracts contained inconsistent terms, we find that

the two agreements, when construed together, created an ambiguity. The ambiguity

created a fact question as to the intent of the parties, and the existence of a fact question

precludes the granting of a summary judgment. Therefore, the trial court correctly denied

summary judgment in favor of SPLR and Wisener, but erred in granting summary judgment

in favor of the Trust and Kitten.


                                         Conclusion


           Issues one and four are sustained, and issues two and three are overruled.

Accordingly, we affirm that portion of the judgment of the trial court as to the denial of the

motion for summary judgment of South Plains Lamesa Railroad, Ltd. and Larry Dale

Wisener; we reverse that portion of the judgment of the trial court granting the motion for

summary judgment of the Kitten Family Living Trust and Jerry Kitten, and awarding

attorney’s fees, and remand this cause to the trial court for further proceedings consistent

with this opinion.



                                                  Patrick A. Pirtle
                                                     Justice



       2
       Construing the lease agreement together with the easement agreement, you have
an accurate and clear description of the property conveyed. See fn 1.

                                              8
