REVERSE and REMAND; and Opinion Filed May 7, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-01597-CV

                          CHARLES J. WUNDERLICK, Appellant
                                        V.
                           MARTHA JANE WILSON, Appellee

                      On Appeal from the 429th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 429-02410-2010

                                          OPINION
                          Before Justices Moseley, O'Neill, and Lewis
                                   Opinion by Justice Lewis
       Appellant Charles J. Wunderlick appeals from the trial court’s order granting the motion

for summary judgment filed by appellee Martha Jane Wilson. In four issues, Wunderlick asserts

the trial court erred in granting Wilson’s motion. Wunderlick contends the summary judgment

evidence failed to conclusively establish that his compensation was not substantially reduced

without good cause and the trial court should have interpreted “good cause” in the employment

context. For the reasons that follow, we reverse and remand to the trial court for further

proceedings.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       On December 11, 1990, Wunderlick and Wilson entered into a marriage settlement

agreement (the agreement) to settle their interests and obligations in all marital property as part

of their divorce. The agreement obligated Wunderlick to pay Wilson contractual alimony of
$1,000 per month for an indefinite term, to continue until terminated pursuant to the agreement.

According to the agreement, there were five events that would terminate Wunderlick’s alimony

obligation: (1) the death of husband or wife, (2) husband’s termination from Frisco Wholesale

Lumber Company (FWL) without good cause by action of the board of directors, (3) substantial

alteration of husband’s position at FWL without good cause, (4) substantial reduction of

husband’s compensation without good cause by action of the board of directors of FWL, or (5)

the sale of FWL. Wunderlick paid Wilson alimony of $1,000 per month for twenty years, until

January 10, 2010.

       On November 3, 2008, the FWL board of directors reduced the annual salaries of its

officers, including Wunderlick, to $1.00 per year in response to the recession. Wunderlick is the

chairman, president, treasurer and shareholder of FWL. The board also eliminated the officers’

expense accounts, laid off half of the company’s employees, and closed one facility.

Notwithstanding the reduction in his salary, Wunderlick continued paying monthly alimony to

Wilson until January 10, 2010, when he ceased making payments.

       On June 15, 2010, Wilson filed suit against Wunderlick for breach of contract.

Wunderlick filed an answer and separate counter-petition for declaratory relief, alleging that a

termination event had occurred on November 3, 2008, and seeking recovery of alleged

overpayments.    Wilson filed a traditional and no-evidence motion for summary judgment,

asserting that no termination event had occurred and Wunderlick had breached the agreement by

failing to make the monthly alimony payments. On August 16, 2011, the trial court signed an

order granting Wilson’s motion for summary judgment. On September 21, 2011, the trial court

signed a judgment, detailing the amount of damages and attorneys’ fees awarded to Wilson, and

dismissing Wunderlick’s claims against Wilson.          The trial court subsequently denied




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Wunderlick’s motion to reconsider, motion for findings of fact and conclusions of law, and

motion for new trial. This appeal followed.

                                   II. APPLICABLE LAW

A. Summary Judgment Standard Of Review

       The standard for reviewing a traditional motion for summary judgment is well

established. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v.

Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548–49 (Tex. 1985). We review a summary

judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex.

2007); Kaye/Bassman Int’l Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 812 (Tex. App.—

Dallas 2010, pet. denied). We will affirm a summary judgment if the record establishes that

there is no genuine issue of material fact and the movant is entitled to judgment as a matter of

law. See TEX. R. CIV. P. 166a(c); see also Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 215–16 (Tex. 2003). A matter is conclusively established if ordinary minds could

not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine

Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex 1982); Ogg v. Dillard’s, Inc., 239 S.W.3d

409, 416 (Tex. App.—Dallas 2007, pet. denied).

       When a party files a no-evidence summary judgment, the burden shifts to the non-movant

to present enough evidence to raise a genuine issue of material fact on the challenged elements.

TEX. R. CIV. P. 166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We

review a no-evidence motion for summary judgment under the same legal sufficiency standard

used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.

2003); Pollard v. Hanschen, 315 S.W.3d 636, 638 (Tex. App.—Dallas 2010, no pet.). Our

inquiry focuses on whether the non-movant produced more than a scintilla of probative evidence

to raise a fact issue on the challenged elements. King Ranch, 118 S.W.3d at 750–51; Wal-Mart

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Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). Evidence is no more than a scintilla

if it is “so weak as to do no more than create a mere surmise or suspicion” of a fact. King Ranch,

118 S.W.3d at 750–51. We examine “the entire record in the light most favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts against the motion.”

Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller v. Wilson,

168 S.W.3d 802, 824 (Tex. 2005)).

B. Construction Of Written Agreement

       In construing a written contract, our primary concern is to ascertain and give effect to the

true intentions of the parties as expressed in the agreement. El Paso Field Services, L.P. v.

MasTec North America, Inc., 389 S.W.3d 802, 805 (Tex. 2012); Carbona v. CH Medical, Inc.,

266 S.W.3d 675, 680 (Tex. App.—Dallas 2008, no pet.). We consider the entire writing and

attempt to harmonize and give effect to all the provisions of 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) (per curiam); Hackberry Creek Country Club, Inc. v. Hackberry

Creek Home Owners Ass’n, 205 S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet. denied). “No

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

considered with reference to the whole instrument.” J.M. Davidson, Inc. v. Webster, 128 S.W.3d

223, 229 (Tex. 2003). If we determine that the contract’s language can be given a certain or

definite legal meaning or interpretation, then the contract is not ambiguous and we will construe

it as a matter of law. El Paso Field Services, 389 S.W.3d at 806. But if the contract language is

susceptible to two or more reasonable interpretations after applying the pertinent rules of

construction, the contract is ambiguous. J. M. Davidson, 128 S.W.3d at 229; Seagull Energy E

& P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). Whether a contract is

ambiguous is a question of law. In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006)

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(orig. proceeding); Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). A court may conclude 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); Hackberry Creek, 205 S.W.3d at 56.

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

improper because the intent of the contracting parties is an issue of fact. Coker, 650 S.W.2d at

394; Hackberry Creek, 205 S.W.3d at 56.

                                          III. DISCUSSION

       Wunderlick argues the trial court erred in granting Wilson’s motion for summary

judgment because: (1) the trial court incorrectly concluded that no terminating event had

occurred under the agreement, (2) the summary judgment evidence failed to conclusively

establish that Wunderlick’s compensation was not substantially reduced without good cause by

his employer, (3) the summary judgment evidence established that Wunderlick’s compensation

was substantially reduced for the employer’s benefit and through no fault of Wunderlick, and (4)

the trial court erroneously applied the common, ordinary meaning to the contract term “good

cause,” instead of interpreting the term in the employment context.       Wilson responds that

summary judgment was properly granted. Wilson asserts the trial court correctly applied the

common, ordinary meaning of “good cause” because neither the agreement nor Texas law define

the term or require it be interpreted in the employment context.       Wilson also argues that

summary judgment evidence established that Wunderlick agreed that his compensation was

substantially reduced for a good reason and therefore, Wunderlick admitted that no terminating

event had occurred.

       We are asked to review the agreement to ascertain whether Wunderlick’s obligation to

make alimony payments to Wilson was terminated. The pertinent language is as follows:

       The alimony will also terminate if the Husband is terminated in his employment
       with Frisco Wholesale Lumber Company without good cause by action of the
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        Board of Directors of such company, or if the Husband’s position at Frisco
        Wholesale Lumber Company is substantially altered without good cause, or his
        compensation is substantially reduced without good cause, by action of the Board
        of Directors of Frisco Wholesale Lumber Company.

The parties dispute whether Wunderlick’s compensation was substantially reduced without good

cause. Neither party contends the agreement is ambiguous.

        The agreement does not define “good cause.” The trial court also did not define the term

in its order granting Wilson’s motion for summary judgment. Wunderlick contends that the term

“good cause” must be interpreted in the employment context, based solely upon the employee’s

conduct. He claims that under Texas law, “good cause” is a term of art with a specific meaning

in the employment context and refers us to a number of employment law cases in which courts

considered whether an employee was terminated for “good cause.”            Wunderlick argues an

employer does not have “good cause” to demote or terminate an employee when it does so for its

own business reasons or because of a downturn in the economy. Although Wunderlick does not

cite to any cases in which the term “good cause” was construed in the employment context in a

divorce settlement agreement, he nevertheless argues that the intent of the parties to so interpret

“good cause” is evident because the parties used language tying his alimony obligation to the

source of his income when drafting the agreement.

        In response, Wilson argues there is no legal authority for Wunderlick’s position that

Texas law defines and imposes a strict meaning on the term “good cause” any time the term is

used.   Wilson contends that because the parties did not define “good cause” within the

agreement, the plain, common, and ordinary meaning of “good cause” must be applied. She

asserts the plain, common, and ordinary meaning of “good cause” is synonymous with “good

reason.” Because Wunderlick admitted in deposition testimony that (1) his compensation was

substantially reduced because of the economic downturn, and (2) the economic downturn was a

good reason, Wilson argues Wunderlick admitted his compensation was substantially reduced for
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good cause.    Therefore, Wilson argues, Wunderlick’s obligation to pay alimony was not

terminated even though his compensation was substantially reduced.

         We have considered the entire writing and attempted to harmonize and give effect to all

the provisions by analyzing them with reference to the whole agreement. Frost Nat’l Bank, 165

S.W.3d at 312; J.M. Davidson, 128 S.W.3d at 229.            If we construe “good cause” in the

employment context as suggested by Wunderlick, it could mean that Wunderlick’s compensation

was substantially reduced without good cause and his obligation to make alimony payments

terminated on November 3, 2008. If we give the term “good cause” its plain, common, and

ordinary meaning as suggested by Wilson, the provision could be construed to mean that

Wunderlick’s compensation was substantially reduced with good cause and his obligation to

make alimony payments continues. For purposes of construing a contract, “[a]mbiguity does not

arise simply because the parties advance conflicting interpretations of the contract; rather, for an

ambiguity to exist, both interpretations must be reasonable.” Lopez v. Munoz, Hockema & Reed,

L.L.P., 22 S.W.3d 857, 861 (Tex. 2000); see Jacobson v. DP Partners Ltd. P’ship, 245 S.W.3d

102, 106 (Tex. App.—Dallas 2008, no pet.); Sefzik v. Mady Dev., L.P., 231 S.W.3d 456, 460

(Tex. App.—Dallas 2007, no pet.).

       In sum, the language in the agreement relating to whether Wunderlick’s compensation

was substantially reduced for “good cause” cannot be given a certain and definite meaning, and

we cannot determine the true intentions of Wunderlick and Wilson from the writing itself.

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011).

We conclude the agreement is subject to two or more reasonable interpretations. Accordingly,

the agreement is ambiguous, and a fact issue exists as to the parties’ intent. See Milner v. Milner,

361 S.W.3d 615, 619 (Tex. 2012); J.M. Davidson, 128 S.W.3d at 229. The trial court therefore

erred in granting summary judgment in favor of Wilson. Coker, 650 S.W.2d at 394; Hackberry

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Creek, 205 S.W.3d at 56. We sustain Wunderlick’s fourth issue, and do not reach his remaining

issues. See TEX. R. APP. P. 47.1.

                                       IV. CONCLUSION

       Having sustained Wunderlick’s fourth issue, we reverse the trial court’s judgment and

remand this case to the trial court for further proceedings.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE



111597F.P05




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                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

CHARLES WUNDERLICK, Appellant                         On Appeal from the 429th Judicial District
                                                      Court, Collin County, Texas
No. 05-11-01597-CV          V.                        Trial Court Cause No. 429-02410-2010.
                                                      Opinion delivered by Justice Lewis.
MARTHA JANE WILSON, Appellee                          Justices Moseley and O'Neill participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings.
       .
       It is ORDERED that appellant CHARLES WUNDERLICK recover his costs of this
appeal from appellee MARTHA JANE WILSON.


Judgment entered this 7th day of May, 2013.




                                                      /David Lewis/
                                                      DAVID LEWIS
                                                      JUSTICE




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