Great Nat. Corp. v. Campbell
| Decision Date | 15 February 1985 |
| Docket Number | No. 05-84-00428-CV,05-84-00428-CV |
| Citation | 687 S.W.2d 450 |
| Parties | GREAT NATIONAL CORPORATION and GNC Energy, Appellants, v. D.W. CAMPBELL, T.J. Fouts, Jr., George Bristol, Charles Kuhn, A. Gary Muir, and Larvena Investments, Inc., Appellees. |
| Court | Texas Court of Appeals |
Thomas R. Hartnett, Dallas, for appellants.
Edward S. Koppman, Dallas, for appellees.
Before STEPHENS, WHITHAM and GUILLOT, JJ.
This is an appeal from separate trials in the same suit. For clarity's sake, we shall refer to appellants collectively as GNC and appellees collectively as Campbell. In the declaratory judgment trial, the jury found that incident to the formation of a joint venture GNC and Campbell agreed that a certain coal lease would be part of the joint venture. In the accounting trial, the jury found that certain expenses GNC charged were unreasonable and unnecessary. GNC assigns thirteen points of error; Campbell assigns four cross points. We affirm the judgment against GNC, but reverse and render judgment on two of Campbell's cross points.
Distilling the facts to their most basic elements, we find that in 1973 GNC and Campbell entered into a joint venture to acquire and exploit coal leases and resources in Oklahoma. In 1979 GNC obtained a coal lease on land owned by the United States and received income from that lease. Campbell maintained that the Federal coal lease was within the terms of the joint venture; GNC said not so.
In its first three points, GNC contends that the judgment must be reversed because the agreement between the parties is unambiguous and susceptible of only one reasonable construction, viz., that the lease in the joint venture did not embrace the land under the Federal coal lease. To support this, GNC points to this language: "The area of interest includes those portions of LeFlore and Haskell Counties, Oklahoma, described and referred to in an instrument entitled agreement of lease, dated in November 1972, between Charles W. Martin and W.E. Roberts, Bokoshe Industries, Inc. et al." (emphasis added). GNC argues that the word "includes" limits the area of the joint venture leases to those portions of LeFlore and Haskell Counties that are described in the Agreement of Release. It further argues that, because the joint venture is clearly limited, the contract between GNC and Campbell is unambiguous and that no parol evidence should have been offered to vary it. That being so, there would be no evidence to support the judgment.
Campbell, on the other hand, contends that the word "includes" is susceptible of more than one reasonable interpretation and, therefore, the contract is ambiguous. Specifically, Campbell contends that "includes" is a word of enlargement, not of limitation. They further argue that, ambiguity being established, the court correctly allowed the jury to hear parol evidence of the parties' intention, and that there is ample evidence to support the jury's finding that the Federal coal leases were included in the joint venture.
In examining the language of the contract, we note that the word "includes" has at least two reasonable meanings in the context of the entire contract. It may mean that only those portions of the LeFlore and Haskel Counties referred to in the Agreement of Release of November, 1972, are included in the joint venture. In that case, "includes" is a word of limitation. On the other hand, "includes" may be regarded as merely illustrative of those counties to be included. In that case, "includes" is a word of enlargement.
From the very instrument itself, we are unable to determine whether the parties intended the word "includes" to be a word of enlargement or a word of limitation. This is not surprising. There are many cases holding both ways in Texas and in other jurisdictions. Perhaps the court in Peerless Carbon Black Company v. Sheppard, 113 S.W.2d 996 (Tex.Civ.App.--Austin 1938, writ ref'd), best summarized the situation by stating that, although the word "including" is susceptible of different shades of meaning, most often it is used as a term of enlargement. "[T]he words 'includes' and 'including' are regarded.... as being identical or equivalent to each other; and ... unless the context in which such words are used requires, they are never regarded as being identical with or equivalent to ... 'meant,' 'meaning' or 'by which is meant.' " Peerless, 113 S.W.2d at 997. Another court has held that the term "including"--a variation of "includes"--is "generally employed as a term of enlargement and not a term of limitation or enumeration." Houston Bank & Trust Co. v. Lansdowne, 201 S.W.2d 834, 838 (Tex.Civ.App.--Galveston 1947, writ ref'd n.r.e.); cf. Skillman v. Abruzzo, 352 Mich. 29, 88 N.W.2d 420 (1958). We hold that the contract is ambiguous and that the court was correct in admitting evidence to ascertain the intention of the parties. See James Stewart & Co. v. Law, 149 Tex. 392, 233 S.W.2d 558 (1950). The jury heard evidence of the circumstances surrounding the execution of the joint venture contract, and there is ample evidence to support its finding. We overrule points of error one, two, and three.
In its next two points of error, GNC contends that the court erred in conducting a separate trial as to the accounting and attorney's fees because there were no pleadings to support it and because Campbell waived the accounting and attorney's fees by not presenting evidence thereon during the declaratory judgment trial.
We have examined the transcript and find a prayer for accounting and attorney's fees in Campbell's Second Amended Original Petition. Furthermore, GNC's contention that no separate trial should have been held on the issues of an accounting and attorney's fees is without...
To continue reading
Request your trial
-
Timberlake v. Douglas Cnty.
...584, 208 N.W. 742 (1926).20 See, Guerrant v. Roth, 334 Ill.App.3d 259, 777 N.E.2d 499, 267 Ill.Dec. 696 (2002) ; Great Nat. Corp. v. Campbell, 687 S.W.2d 450 (Tex.App.1985).21 Webster's Encyclopedic Unabridged Dictionary of the English Language 720 (1989).22 See Black's Law Dictionary 880 (......
-
Lyons v State Farms Lloyds
...only entails operation, loading, and unloading of property. We disagree with this argument. See Great Nat'l Corp. v. Campbell, 687 S.W.2d 450, 451-52 (Tex. App. Dallas 1985, writ ref'd n.r.e.) (the word "including" is most often meant as a term of enlargement). The phrase "arising from use"......
-
VMS/PCA LTD. PARTNERSHIP v. PCA Partners Ltd.
...It is not clear why the rule continues in Texas, since actions for accounting are often tried to a jury. See Great National Corp. v. Campbell, 687 S.W.2d 450, 451 (Tex.Ct.App.1985); Schwiff v. Priest, 650 S.W.2d 894, 897 (Tex.Ct.App.1983). But whatever the reason for the rule in Texas, it n......
-
U.S. Fire Ins. Co. v. Millard
...bad faith claims when a finding in the contract lawsuit could be peremptorily dispositive. See Great Nat'l Corp. v. Campbell, 687 S.W.2d 450, 452 (Tex.App.--Dallas 1985, writ ref'd n.r.e.) Abatement of the bad faith claims must necessarily accompany severance of those claims from the contra......