Lake Charles Harbor & Terminal Dist. v Bd Trustees Galveston Wharves

Decision Date18 October 2001
Citation62 S.W.3d 237
Parties<!--62 S.W.3d 237 (Tex.App.-Houston 2001) LAKE CHARLES HARBOR AND TERMINAL DISTRICT AND LAKE CHARLES STEVEDORES, INC., APPELLANTS, v. BOARD OF TRUSTEES OF THE GALVESTON WHARVES, APPELLEE NO. 14-00-00746-CV Court of Appeals of Texas, Houston (14th Dist.)
CourtTexas Court of Appeals

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Anderson, Hudson, and Frost, JJ.

OPINION

J. Harvey Hudson Justice

This appeal arises from a dispute between the purchaser of two cranes and the port at which the cranes were located over liability for damage caused by rodent infestation. In the trial court, appellants Lake Charles Harbor and Terminal District ("LCHTD") and Lake Charles Stevedores, Inc. ("LCS") (collectively, "Lake Charles"), complained that appellee Board of Trustees of the Galveston Wharves (the "Wharves") breached its duty to prevent vermin from despoiling the cranes. In eight points of error, appellants contend the trial court erred in granting appellees' motion for summary judgment and denying appellants' counter-motion for partial summary judgment. We affirm.

Factual and Procedural Background

In 1993, the Wharves leased property to ABT Galveston Limited Partnership ("ABT"). ABT, in turn, constructed on the property an automated facility for loading and unloading unitized cargo from ocean going vessels. Part of the automated equipment included two Bailey Dockside Unitizer Shiploader Gantry Cranes.

In August 1996, ABT failed when one of its creditors, CIT Group/Equipment Financing, Inc. ("CIT"), foreclosed. During negotiations for the purchase of the cranes from CIT, LCHTD and the Wharves entered into an "Access Agreement" on March 12, 1997, whereby LCHTD was permitted to store the cranes on the property and prepare them for eventual shipment to Louisiana. Thereafter, on March 27, 1997, LCHTD purchased the cranes and appurtenant equipment from CIT for approximately $14,000,000. LCHTD then entered into a separate agreement with LCS whereby the latter agreed, at its own cost, to dismantle the cranes and transport them to their new location. The Wharves terminated its lease with the now defunct ABT on March 31, 1997. In mid-June 1997, LCHTD became aware that the gnawing of rodents had caused substantial damage to the electrical wiring systems of the cranes.1 On August 26, 1997, LCHTD presented a claim to the Wharves for the cost of repairs. This claim was refused, and the instant litigation ensued.

Lake Charles sought recovery under statutory warehouse bailment provisions providing for liability where damage results from the location of the storage of the goods or from the failure to use reasonable care in their handling.2 In addition Lake Charles asserted claims for damages for negligence, breach of contract, breach of implied warranty and under common law bailment theory (1) for breach of agreement to maintain the cranes in the same condition they were in when the bailment commenced and (2) for breach of a duty of ordinary care in the storage of the cranes. Damages were requested in the amount of $365,000, exclusive of interest and attorney fees, for the cost of repairing the cranes. Alternatively, Lake Charles sought indemnification under the terms of the Access Agreement.

The Wharves filed a combined traditional and "no evidence" motion for summary judgment. Lake Charles responded with a counter-motion for partial summary judgment. The trial court rendered a take-nothing summary judgment for the Wharves without specifying the grounds therefor.

Standards of Review

A traditional motion for summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.--Austin 2000, no pet.). A defendant seeking summary judgment must negate as a matter of law at least one element of each of the plaintiff's theories of recovery or plead and prove as a matter of law each element of an affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant establishes a right to summary judgment, the burden shifts to the plaintiff to present evidence raising a fact issue. See id.

A party may also move for a "no-evidence" summary judgment. See TEX. R. CIV. P. 166a(i). Such a motion asserts there is no evidence of one or more essential elements of claims upon which the opposing party would have the burden of proof at trial. See id.; McCombs v. Children's Med. Ctr., 1 S.W.3d 256, 258 (Tex. App.--Texarkana 1999, no pet.). Unlike a movant for traditional summary judgment, a movant for a no-evidence summary judgment does not bear the burden of establishing a right to judgment by proving each claim or defense. See Holmstrom, 26 S.W.3d at 530. A no-evidence summary judgment is essentially a pretrial directed verdict, to which we apply the same legal sufficiency standard of review. See id.; Moore v. KMart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). A no-evidence summary judgment is properly granted if the non-movant fails to produce more than a scintilla of probative evidence raising a genuine issue of fact as to an essential element of a claim on which the non-movant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Holmstrom, 26 S.W.3d at 530.

In reviewing the grant of summary judgment, we view the evidence in the light most favorable to the non-movant and make every reasonable inference and resolve all doubts in favor of the non-movant. See Centeq Realty, 899 S.W.2d at 197; Robins v. Kroger Co., 982 S.W.2d 156, 159 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). When the trial court grants one party's motion for summary judgment and denies the other, we review both motions and if we find the trial court erred, we will reverse and render the judgment the trial court should have rendered. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999); Holmstrom, 26 S.W.3d at 530.

Breach of Contract

In the first point of error, Lake Charles alleges the trial court erred both in granting summary judgment for the Wharves on the breach of contract claims and in denying Lake Charles' counter motion for summary judgment on the same claims.

The only agreement between the Wharves and either LCHTD or LCS was the Access Agreement of March 12, 1997, by which CIT, LCHTD and the Wharves agreed that LCHTD would have access to the property formerly under lease by ABT so it could arrange for the cranes to be dismantled and removed. Section 1 of the agreement sets out its essence:

In reliance on the representations, warranties and covenants contained herein and subject to the terms and conditions hereof during the period from the Date of Foreclosure to and including the Final Removal Date [the Wharves] will provide to [LCHTD] access to the property specified on Schedule B to this Access Agreement ("Premises") and hereby authorizes [LCHTD] to take any and all actions required for [LCHTD] to remove the Assets from the Premises. [LCHTD] agrees that the removal of the Assets from the Premises will be conducted in a reasonable and non destructive (other than actions required to remove the Assets) manner and in a manner which does not unduly interfere with the activities of [the Wharves].

Lake Charles contends the Wharves had responsibility for vermin control based on two clauses in the Access Agreement. The first is Section 4, which provides that:

[i]n removing the Assets from the Premises, [LCHTD] agrees to comply with all of the safety procedures set forth on Schedule D to this Access Agreement.

Schedule D is a document entitled "Galveston Wharves Safety Management Policy and Procedure: Contractor, Tenant, User (February 1997)." The "Housekeeping" section of this document states, in pertinent part, that all employees, contractors, tenants, users, and guests of the Galveston Wharves should:

[k]eep all work sites clean to the extent that the nature of the work allows. This applies to equipment, power cords, air lines, waste disposal, and vermin control.

There is no other reference to Schedule D in the agreement. The second clause relied upon by Lake Charles, Section 15 of the Access Agreement, provides that:

[e]xcept for the fees specified in this Agreement which are to be paid by [CIT] or [LCHTD], all other costs, expenses and fees that may be payable with regard to the ownership or operation of the Premises will be paid by [the Wharves]. Each party will be liable for its own costs and expenses incurred in connection with the negotiation, preparation, execution or performance of the Access Agreement.

Based on these provisions, therefore, Lake Charles contends the Wharves had a contractual responsibility to keep the property free of vermin and failed in this duty. We disagree.

The primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. National Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995). If a written contract is so worded that it can be given a definite or certain legal meaning, then it is not ambiguous. Id.; Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Parol evidence is not admissible for the purpose of creating an ambiguity. See National Union Fire Ins. Co., 907 S.W.2d at 520; Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (Tex. 1951).

If, however, the language of a contract is subject to two or more reasonable interpretations, it is said to be ambiguous. National Union Fire Ins. Co., 907 S.W.2d at 520; see also Glover v. National Ins. Underwriters, 545 S.W.2d 755, 761 (Tex. 1977). Whether a...

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