                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00180-CV


RAY L. FOSTER                                                    APPELLANT

                                      V.

SAM LECOMTE                                                       APPELLEE


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           FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 2012-70577-431

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                DISSENTING MEMORANDUM OPINION 1

                                   ----------

      Because I believe the trial court erred by granting appellee Sam LeComte

summary judgment based on the unambiguous language of the lease, I must

dissent.




      1
       See Tex. R. App. P. 47.4.
                                I. BACKGROUND

      As the majority opinion states, this appeal concerns LeComte’s alleged

breach of a commercial lease agreement for a hangar owned by appellant Ray L.

Foster located at a municipal airport.       The lease contained the following

covenants:

      1.    A repair covenant: “Lessee shall maintain and keep the leased
      premises in good repair and condition.”

      2.    A surrender covenant: “Lessee agrees to surrender the premises to
      Lessor at the end of the lease term, if the lease is not renewed, in the
      same condition as when Lessee took possession, allowing for reasonable
      use and wear and damages by acts of God, including fire and storms.”

During the lease term, the hangar was damaged by a fire. No party disputes that

the fire was caused by an electrical failure in a motor home that LeComte did not

own but had allowed to be stored in the hangar.          Foster filed suit against

LeComte for breach of the lease. Although Foster alleged that LeComte violated

four distinct lease provisions, 2 it is undisputed that the only claim he raised was

breach of contract. Foster and LeComte filed competing motions for summary

judgment, with LeComte filing a hybrid traditional and no-evidence motion and

Foster filing a traditional motion, arguing that their respective interpretations of




      2
      The four covenants were (1) the surrender covenant; (2) the covenant
that LeComte would “save, hold harmless and indemnify” Foster; (3) the
covenant that LeComte would “not commit waste on the premises”; and (4) the
covenant that LeComte would keep the hangar free of flammable liquids and
products.


                                         2
the lease based on largely undisputed facts mandated judgment as a matter of

law.

                            II. LEGAL PRINCIPLES

                  A. SUMMARY-JUDGMENT STANDARD OF REVIEW

       Foster now challenges the trial court’s grant of LeComte’s hybrid

summary-judgment motion, which we are to review de novo. See Travelers Ins.

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). The majority opinion fails to

recite our summary-judgment standard of review or address the effects on that

standard caused by the hybrid nature of LeComte’s motion and the fact that

LeComte and Foster filed competing motions. Such a recitation is necessary

because the standard and scope of review usually dictate the appellate result.

See, e.g., W. Wendell Hall et al., Hall’s Standards of Review in Texas, 42 St.

Mary’s L.J. 3, 13 (2010) (“[T]he appropriate standard of review and scope of

review generally determine the outcome of an appeal . . . .”).

       Although the burdens of proof vary for traditional and no-evidence motions,

LeComte’s motion was a hybrid motion and both LeComte and Foster brought

forth summary-judgment evidence. See Neely v. Wilson, 418 S.W.3d 52, 59

(Tex. 2013); see also Tex. R. Civ. P. 166a. Therefore, the differing burdens are

immaterial, and the ultimate issue is whether a fact issue exists, i.e., whether

more than a scintilla of probative evidence is present on an issue.       Buck v.

Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012); see Guynes v. Galveston Cnty.,

861 S.W.2d 861, 862 (Tex. 1993).         Finally, when a trial court grants one


                                         3
summary-judgment motion and denies the other, we review the summary-

judgment evidence presented by both sides and determine all questions properly

presented. See Mid–Continent Cas. Co. v. Global Enercom Mgmt., Inc., 323

S.W.3d 151, 153–54 (Tex. 2010); Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005). In doing so, we first review the order granting summary

judgment, and if erroneous, then review the trial court’s denial of the competing

motion.   Wolfe v. Devon Energy Prod. Co., LP, 382 S.W.3d 434, 443 (Tex.

App.—Waco 2012, pet. denied).

      To prevail on his breach-of-contract claim, Foster must show (1) the

existence of a valid contract, (2) that he performed or tendered performance,

(3) that LeComte breached the contract, and (4) that Foster suffered damages as

a result of LeComte’s breach.       See Expro Ams., LLC v. Sanguine Gas

Exploration, LLC, 351 S.W.3d 915, 920 (Tex. App.—Houston [14th Dist.] 2011,

pet. denied). By granting LeComte’s hybrid motion for summary judgment, the

trial court implicitly concluded that LeComte had not breached at least one of the

four lease provisions alleged by Foster.     On appeal, Foster argues that the

undisputed evidence showed as a matter of law that LeComte breached the

surrender covenant. Foster does not argue on appeal that LeComte breached

the other three lease provisions Foster raised in the trial court supporting his




                                        4
breach-of-contract claim. 3 Normally, the failure to specifically challenge each

ground upon which summary judgment could have been granted is fatal to a

summary-judgment appeal. See Star–Telegram, Inc. v. Doe, 915 S.W.2d 471,

473 (Tex. 1995). However, LeComte’s breach of any one provision as a matter

of law would render summary judgment in favor of LeComte in error. Further,

LeComte moved for summary judgment on the basis that the evidence showed

he did not breach the lease as a matter of law—the third element of Foster’s

claim—which Foster specifically challenges. Cf. Worldwide Asset Purchasing,

L.L.C. v. Rent-A-Ctr. E., Inc., 290 S.W.3d 554, 561–65 (Tex. App.—Dallas 2009,

no pet.) (analyzing each contractual provision raised by plaintiff as establishing

breach of contract in review of order granting summary judgment in favor of

defendant on plaintiff’s breach-of-contract claim).

                          B. CONTRACT INTERPRETATION

      When interpreting a contract, including a lease, we examine the entire

agreement in an effort to harmonize and give effect to all provisions of the

contract so that none will be meaningless. See NP Anderson Cotton Exch., L.P.

v. Potter, 230 S.W.3d 457, 463 (Tex. App.—Fort Worth 2007, no pet.); accord

Weingarten Realty Investors v. Albertson’s, Inc., 66 F. Supp. 2d 825, 838–39

(S.D. Tex. 1999), aff’d, 234 F.3d 28 (5th Cir. 2000). In other words, a reviewing


      3
      In other words, Foster waives on appeal his trial-court arguments that
LeComte breached the indemnification, the no-waste, and the flammable-liquid
covenants.


                                         5
court is to consider the entire writing and attempt to harmonize and give effect to

all provisions in the contract by analyzing the provisions with reference to the

whole agreement. Frost Nat’l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312

(Tex. 2005). We presume that the parties to a contract intended every clause to

have some effect. Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550, 554

(Tex. 2002). If contract language can be given a certain or definite meaning,

then it is not ambiguous. See, e.g., Universal Health Servs., Inc. v. Renaissance

Women’s Grp., P.A., 121 S.W.3d 742, 746 (Tex. 2003); Coker v. Coker, 650

S.W.2d 391, 393 (Tex. 1983). The interpretation of an unambiguous contract is

reviewed de novo. See, e.g., MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995

S.W.2d 647, 650–51 (Tex. 1999).

      If a court is unable to harmonize the provisions and give effect to all of a

contract’s clauses, the contract is susceptible to more than one reasonable

interpretation and is ambiguous. D Design Holdings, L.P. v. MMP Corp., 339

S.W.3d 195, 201 (Tex. App.—Dallas 2011, no pet.).            When a contract is

ambiguous, granting summary judgment based on the contract is improper.

Coker, 650 S.W.2d at 394. Whether a contract is unambiguous or ambiguous is

a question of law that is reviewed de novo. See Dynegy Midstream Servs., Ltd.

P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009).

                               III. APPLICATION

      Again, Foster argues on appeal that LeComte breached the lease as a

matter of law by surrendering the hangar with fire damage, rendering the trial


                                        6
court’s summary-judgment rulings in error, based on two covenants in the lease:

the repair covenant and the surrender covenant. I disagree with the majority

opinion’s assertion that Foster fails to recognize on appeal that the surrender

covenant includes a qualifying clause—“allowing for reasonable use and wear

and damages by acts of God, including fire and storms”—that modifies

LeComte’s duties upon surrender of the hangar. Foster acknowledges in his

brief that the surrender covenant includes this qualifier. His argument is that the

surrender covenant and the repair covenant contain no exception that would

immunize LeComte from the duty to repair the fire damage before surrender.

Foster raised this argument in the trial court in his motion for summary judgment:

“Le[C]omte had a duty to maintain and repair the hangar but instead returned a

property damaged by fire to Foster. This constitutes a breach of [the surrender

covenant] of the Lease Agreement.”          He further asserted in response to

LeComte’s hybrid motion that the surrender covenant, which included the act-of-

God exception, was “clear, specific and unconditional” and required LeComte to

repair the fire damage to the hangar before surrender because the fire was not

an act of God or reasonable use and wear. 4 LeComte also asserted in the trial


      4
        The majority opinion affirms the trial court’s summary judgment in part
because “Foster does not challenge on appeal LeComte’s [argument] that he
could not have breached the lease because the fire was an accidental act of God
under paragraph 7 of the lease.” Because I believe Foster sufficiently challenges
the trial court’s conclusion that LeComte did not breach the surrender covenant
as a matter of law, I would address the merits of Foster’s argument arising under
the surrender covenant.


                                        7
court and continues to assert on appeal that the surrender covenant and the

repair covenant “should be construed together” in determining whether he

breached the surrender covenant. See, e.g., Fisher v. Temco Aircraft Corp., 324

SW.2d 571, 575–76 (Tex. Civ. App.—Texarkana 1959, no writ) (holding repair

covenant and surrender covenant must be construed in context of entire lease).

      A general and unqualified repair covenant, as is included in LeComte’s

lease, usually imposes on the lessee a duty to make ordinary repairs. 49 Am.

Jur. 2d Landlord & Tenant § 704 (2015). But LeComte’s general repair covenant

is not an isolated duty; the surrender covenant also applies to LeComte’s duties

as a tenant. See Jerald M. Goodman et al., The Rodney Dangerfield Clauses:

Ten Lease Provisions That Get No Respect, 24 Prob. & Prop. 47, 49 (2010)

(“When surrender provisions are litigated, a court will likely interpret the

surrender provision in the context of the lease as a whole.”) In the surrender

covenant, LeComte must return the hanger to Foster in the same condition as

when received, “allowing for reasonable use and wear and damages by acts of

God, including fire and storms.” The clause “including fire and storms” directly

follows and only modifies “damages by acts of God” under the grammatical rule

of the last antecedent. 5 See Horseshoe Bay Resort, Ltd. v. CRVI CDP Portfolio,

LLC, 415 S.W.3d 370, 382 (Tex. App.—Eastland 2013, no pet.) (“Grammatical


      5
      The rule of the last antecedent holds that qualifying words, phrases, and
clauses are applied only to the immediately preceding words or phrase. See
Barnhart v. Thomas, 540 U.S. 20, 26, 124 S. Ct. 376, 380 (2003).


                                       8
usage is not separate from textual meaning.”); Gen. Fin. Servs., Inc. v. Practice

Place, Inc., 897 S.W.2d 516, 522 (Tex. App.—Fort Worth 1995, no writ) (op. on

reh’g) (recognizing court required to follow rules of grammar in construing

contract language); cf. Fazio v. Cypress/GR Houston I, L.P., 403 S.W.3d 390,

404–05 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (en banc op. on reh’g)

(using rules of grammar to determine that clause in contractual sentence

modified entire sentence). Therefore, a plain reading of the surrender covenant

in tandem with the repair covenant reveals that LeComte had a duty to repair the

hangar such that the hanger would be returned to Foster at the end of the lease

term in reasonably the same condition as received; however, LeComte was not

required to repair before surrender any damage caused by reasonable wear and

tear or any damage by acts of God, including fire and storms. See Fisher, 324

S.W.2d at 576 (holding exception in repair covenant necessarily was an

exception to the surrender covenant). In short, a fire that damaged the hangar

must be the result of an act of God before it may be included under the clear

terms of the exception in the surrender covenant. See generally B & B Vending

Co. v. Carpenter, 472 S.W.2d 281, 283 (Tex. Civ. App.—Waco 1971, no writ)

(“[T]he liability of a lessee will not be enlarged nor extended beyond the clear

meaning of the language the parties used in writing covenants in the lease.”).

      An act of God defies precise, legal definition. The common thread in all

attempts to define an act of God, however, is that such an act exclusively

involves the forces of nature. Black’s Law Dictionary 41 (10th ed. 2014). Here,


                                        9
the summary-judgment evidence did not raise a fact issue regarding whether the

motor-home fire was caused by a force of nature.         LeComte attached a fire

investigator’s report to his motion for summary judgment that concluded the fire

was caused by “the electrical breaker panel located on an interior wall near the

rear of the motor home[; t]he fire was electrical in nature.”             LeComte

characterized the cause of the fire to be “an electrical event.” The fire was not an

act of God as required in the surrender covenant; thus, LeComte had a duty to

repair the damage before returning the hangar to Foster. See Wichita City Lines,

Inc. v. Puckett, 295 S.W.2d 894, 900 (Tex. 1956) (holding, in negligence case,

repair covenant that specifically exempted roof damage did not immunize lessee

from liability for destruction of premises by fire); Daugherty v. Glass, 53 S.W.

705, 705–06 (Austin 1899, no writ) (recognizing lease for steam boiler with

general repair covenant obligated lessee to compensate lessor after steam boiler

destroyed by explosion); cf. Miller, Billups & Co. v. Morris, Ragsdale & Simpson,

55 Tex. 412, 421–22 (1881) (holding lessee not obligated to repair damage to

leased property caused by fire because lease did not include a repair covenant);

Howeth v. Anderson, 25 Tex. 557, 572 (1860) (holding lessee not liable for loss

of leased premises by accidental fire because surrender covenant specifically

excepted “usual wear and tear and unavoidable accidents” and lease contained

no repair covenant); B & B Vending, 472 S.W.2d at 282 (holding surrender

covenant, which excepted “reasonable wear and tear and damage by fire,

tornado or other casualty,” not violated after lessee failed to replace stolen air-


                                        10
conditioning unit on leased property); Fisher, 324 S.W.2d at 576 (holding lessee

had no duty to repair roof because repair covenant only applied to interior and

plumbing); Orr v. Vandygriff, 251 S.W.2d 573, 575–76 (Tex. Civ. App.—Waco

1952, no writ) (holding repair covenant and surrender covenant not breached by

lessee’s failure to repair building damaged by accidental fire because lease

specifically stated lessee was not required to make any “structural repairs to the

roof or main walls of the building”); Bachrach v. Estefan, 184 S.W.2d 640, 641–

42 (Tex. Civ. App.—San Antonio 1945, no writ) (holding surrender covenant,

which excepted “natural wear and tear, damage by fire and elements, or act of

God,” not breached because no evidence damage was more than ordinary wear

and tear).

                               IV. CONCLUSION

      I would conclude that the trial court erred by granting LeComte summary

judgment because there was less than a scintilla of probative evidence presented

that the damage to the hangar was excepted from the type of damage that

LeComte had the duty to repair before surrender under the unambiguous terms

of the lease. Because the trial court erroneously granted LeComte’s summary-

judgment motion, I would hold that this court must then specifically address

whether the trial court erred by denying Foster’s summary-judgment motion and

LeComte’s assertions that genuine issues of material fact regarding Foster’s




                                       11
attorney’s fees prevented summary judgment in Foster’s favor. 6 See Wolfe, 382

S.W.3d at 443; Haden v. David J. Sacks, P.C., 332 S.W.3d 503, 512 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied).    Because the majority opinion

concludes otherwise, I respectfully dissent.




                                                /s/ Lee Gabriel
                                                LEE GABRIEL
                                                JUSTICE

DELIVERED: July 30, 2015




      6
       I note that although LeComte asserted that fact issues regarding the
amount of Foster’s alleged damages prevented summary judgment in his favor,
an interlocutory summary judgment may be had “on the issue of liability alone
although there is a genuine issue as to amount of damages.” Tex. R. Civ. P.
166a(a); see Tex. R. Civ. P. 166a(c).


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