Dewit Cty. Elec. v. Parks

• Decision Date: 21 October 1999
• Citation: 1 S.W.3d 96
• Parties: (Tex. 1999) DEWITT COUNTY ELECTRIC COOPERATIVE, INC., PETITIONER v. DANIEL S. PARKS AND SUZANNE PARKS, RESPONDENTS NO. 98-0446
• Court: Texas Supreme Court

Page 96

1 S.W.3d 96 (Tex. 1999)

DEWITT COUNTY ELECTRIC COOPERATIVE, INC., PETITIONER v. DANIEL S. PARKS AND SUZANNE PARKS, RESPONDENTS

NO. 98-0446

IN THE SUPREME COURT OF TEXAS

Argued December 10, 1998

Decided July 1, 1999

Rehearing Overruled October 21, 1999.

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS

[Copyrighted Material Omitted]

JUSTICE OWEN delivered the opinion of the Court.

When an electric utility cut down two trees that were on its easement and trimmed another that had grown within the easement, this suit by the landowners resulted. We are called upon to construe the easement agreement between the parties and to determine the viability of certain DTPA and negligence claims. The trial court granted a directed verdict for the utility on all claims. The court of appeals reversed, holding that the easement agreement was ambiguous and that there were fact questions with regard to two of the DTPA claims and the negligence claim. We hold that the easement agreement unambiguously gave the utility the right to cut the trees at issue. We further hold that the negligence claim and all but one of the DTPA claims fail as a matter of law. Accordingly, we reverse the judgment of the court of appeals in part and render judgment that the plaintiffs take nothing on their breach of contract claim, their negligence claim, and all but one of their DTPA claims. We remand the remaining DTPA claim to the trial court for further proceedings.

I

Daniel and Suzanne Parks own rural property for which DeWitt County Electrical Cooperative, Inc. provided electrical service for several years. After a voluntary but temporary disconnection of service, Daniel Parks contacted the Cooperative to reestablish electrical service in connection with his plans to renovate the property. The Parkses entered into a new electric service contract with the Cooperative and, in a separate instrument, granted the Cooperative a thirty-foot-wide electric utility easement. The easement agreement gave the Cooperative certain rights with regard to trees that were located on or near the easement.¹

About a year and a half after the easement agreement was executed, three employees of the Cooperative entered the Parkses' property and removed two oak trees and substantially cut back another. The Cooperative contended that it had the right to do so and that its employees had acted in accordance with its policy that permitted them to completely clear easements of all obstructions. The Parkses, however, had not been told of this "strip-the-right-of-way" policy. Moreover, the Parkses contend that the Cooperative's employees did not cut the trees to facilitate the provision of electric service but instead that their motive was to obtain firewood for a barbeque the Cooperative held for its linesmen.

The Parkses sued the Cooperative for damages, alleging breach of contract, Texas Deceptive Trade Practices-Consumer Protection Act² (DTPA) violations, and negligence. At trial both parties tendered motions for directed verdict at the close of the evidence. The trial court denied the motions and submitted all causes of action to the jury.

After the jury retired to deliberate, the trial court requested another judge to substitute for the remainder of the trial and to receive the verdict. The jury then deadlocked on the first question, which asked whether the Cooperative had breached the easement agreement. The jury had not considered the Parkses' DTPA or negligence claims. The jury's impasse on the contract question prompted the substitute judge to review the previously-filed motions for directed verdict. After conducting a hearing, the court concluded that the easement agreement was unambiguous and that the Cooperative had acted within its contractual rights. The court also concluded that the remaining claims were precluded because the action sounded only in contract. The court granted a directed verdict for the Cooperative on all claims.

The court of appeals reversed, holding that the easement agreement was ambiguous, and remanded the breach of contract claim for another trial.³ The court of appeals further held that two of the Parkses' DTPA claims and their negligence claims were cognizable independent of the breach of contract claim and remanded those claims as well.⁴

The Parkses and the Cooperative filed petitions for review in this Court. Both sides ask this Court to reverse and render judgment, contending that there are no disputed issues of material fact. The Parkses contend in the alternative that there were fact questions regarding at least two of their DTPA claims and that the court of appeals did not err in remanding those claims to the trial court. We first consider the Parkses' breach of contract claim.

II

A

The Parkses contend that the easement agreement is unambiguous and did not permit the Cooperative to cut down the trees at issue. The Cooperative agrees that the easement is unambiguous but contends that it expressly allowed the removal of any trees within the thirty-foot-wide easement and the cutting and trimming of trees that overhung the easement.

Paragraph six of the easement agreement details the specific actions that the Cooperative may take to maintain the right-of-way:

The Cooperative shall have the right to clear the right-of-way of all obstructions, to cut and trim trees within the right-of-way or chemically treat trees or shrubbery with herbicides and to cut down from time to time all dead, weak, leaning, or dangerous trees that are tall enough to strike the wires in falling.

The court of appeals concluded that the terms "obstruction," "cut," and "cut down" are ambiguous.⁵

The rules of contract construction and interpretation apply to easement agreements.⁶ When a court concludes that contract language can be given a certain or definite meaning, then the language is not ambiguous, and the court is obligated to interpret the contract as a matter of law.⁷ A term is not ambiguous because of a simple lack of clarity.⁸ Nor does an ambiguity arise merely because parties to an agreement proffer different interpretations of a term.⁹ An ambiguity arises only after the application of established rules of construction leaves an agreement susceptible to more than one meaning.¹⁰ Further, for an ambiguity to exist, both potential meanings must be reasonable.¹¹

The Parkses contend that paragraph six of the easement agreement, quoted above, should be construed so that no tree can be removed unless it is: (1) within the right-of-way; (2) dead, weak, leaning, or dangerous; (3) in imminent danger of falling; and (4) tall enough to strike wires in falling. The Cooperative responds that this construction fails grammatically because it does not give effect to three separate clauses that identify three different rights the Cooperative has with regard to trees. The Cooperative further argues that the Parkses' construction renders superfluous the easement's reference to the "right-of-way" in clauses one and two and the omission of "right-of-way" in clause three. We agree with the Cooperative.

The language in an agreement is to be given its plain grammatical meaning unless to do so would defeat the parties' intent.¹² A grammatical reading of paragraph six reflects that it contains three separate and independent clauses:

The Cooperative shall have the right[: (1)] to clear the right-of-way of all obstructions[; (2)] to cut and trim trees within the right-of-way or chemically treat trees or shrubbery with herbicides[; and (3)] to cut down from time to time all dead, weak, leaning, or dangerous trees that are tall enough to strike the wires in falling.

Thus, the Cooperative had the right to clear the right-of-way of "all obstructions," which includes trees as well as structures, and "to cut and trim trees within the right-of-way or chemically treat" them. The limitation regarding trees that are dead, weak, leaning, or dangerous and tall enough to strike the wires in falling applies only to trees that are not growing on or over the right-of-way.

We cannot agree with the Parkses' contention that the term "obstructions" means only something that actually hinders the flow of electricity. The easement agreement does not define "obstructions." When a term in a conveyance is not specifically defined, that term should be given its plain, ordinary, and generally accepted meaning.¹³ And we must read the easement as a whole in determining its meaning.¹⁴ The agreement provides in paragraph two that the Cooperative has the right to "keep[] the easement clear of all buildings, structures, or other obstructions." Construing the easement agreement in its entirety, the term "obstructions" includes trees that are growing on the easement.

The Parkses also contend that if "obstructions" included trees, then there would be no need for the second clause, which permits the Cooperative to "cut and trim trees within the right-of-way or chemically treat trees or shrubbery with herbicides." Again, we cannot agree. This clause determines what the Cooperative may do when a tree's branches or girth has grown "within" the right-of-way. In that case, the Cooperative may cut and trim or chemically treat the tree. It is only when a tree is wholly outside the easement-when it is neither on nor over the right-of-way-that the Cooperative is limited to cutting down "dead, weak, leaning, or dangerous trees that are tall enough to strike the wires in falling."

It is undisputed that the trunks of two of the trees that the Cooperative cut down were located on the right-of-way. As a matter of law, the easement permitted the Cooperative to remove those trees either because they were "obstructions" or because they were "within the right-of-way." The third tree had its base outside the right-of-way, but its limbs and branches extended into the right-of-way, like a canopy. The record reflects that the Cooperative removed only those parts of the third...