author: EVELYN Y. KEYES, Justice.

text:
    ARCHON INVESTMENTS, INC. d/b/a GEMS Custom Homes, Appellant, v. GREAT AMERICAN LLOYDS INSURANCE COMPANY and Mid-Continent Casualty Company, Appellees.
    No. 01-03-01299-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Aug. 25, 2005.
    Rehearing Overruled Sept. 28, 2005.

      Lee Howard Shidlofsky, Nickens, Kee-ton, Lawless, Farrell & Flack, L.L.P., Austin, TX, for Appellant.
    Jennifer Bruch Hogan, Hogan & Hogan, L.L.P., John Engvall, J. Jonathan Hlavin-ka, Engvall & Hlavinka, L.L.P., Richard P. Hogan Jr., Pillsbury Winthrop Shaw Pittman, L.L.P., Houston, TX, for Appellees.
    Panel consists of Justices TAFT, KEYES, and HANKS.
   OPINION

EVELYN Y. KEYES, Justice.

This is an insurance coverage case decided on cross-motions for summary judgment in which the trial court construed a commercial general liability (CGL) policy in favor of appellees, Great American Lloyds Insurance Company (Great American) and Mid-Continent Casualty Company and against appellant, Archon Investments, Inc. d/b/a GEMS Custom Homes (Archon). In three issues, Archon contends that the trial court erred in rendering summary judgment for Great American because Great American (1) had a duty to defend Archon; (2) had a duty to indemnify Archon; and (3) violated article 21.55 of the Texas Insurance Code. The parties do not dispute the pertinent facts; the issue in this case is whether those facts triggered Great American’s duty to defend. Because we conclude Great American has a duty to defend Archon in the underlying litigation, we reverse.

Factual & Procedural Background

In 1994, Dr. William F. Braden contracted with Archon to build a custom home for him in Baytown, Texas. A few years after the house was built, Braden noticed that wood was rotting around the windows, possibly as a result of leakage from the stucco siding or because some of the windows might have been installed by a subcontractor without the requisite flashing. In 2001, Braden sued Archon and two of its subcontractors, contending that the defendants had used materials that did not meet industry standards and had failed to construct the home in a good and workmanlike manner. Based on these allegations, Braden brought causes of action for breach of the implied warranties of good and workmanlike construction and suitability for habitation, breach of contract, violation of the Deceptive Trade Practices Act (DTPA), violation of chapter 27 of the Property Code, negligence, and negligent misrepresentation. Braden sought to recover his actual damages, punitive damages, and attorney’s fees.

Great American refused to provide counsel to defend Archon and sought a declaratory judgment from the trial court that it owed no duty to defend or indemnify Ar-chon. The parties filed cross-motions for summary judgment on the coverage issue. The trial court granted Great American’s motion and denied Archon’s motion, finding that Great American had no duty to defend or indemnify Archon.

Standard of Review

We follow the usual standard of review for traditional summary judgments rendered under rule 166a(a) and (b) of the Rules of Civil Procedure: The party with the burden of proof must prove it is entitled to judgment by establishing each element of its claim or defense as a matter of law, or by negating an element of a claim or defense of the opposing party as a matter of law. Tex.R. Civ. P. 166a(a), (b). These standards are applicable in insurance-coverage cases. See e.g., State Farm Fire & Cas. Co. v. Vaughan, 968 S.W.2d 931, 933 (Tex.1998); Hanson v. Republic Ins. Co., 5 S.W.3d 324, 327 (Tex.App.Houston [1st Dist.] 1999, pet. denied). When, as here, both parties move for summary judgment and the trial court grants one motion and denies the other, we may determine all questions presented, including the propriety of overruling the losing party’s motion, provided each party has fully met its burden and sought final judgment relief. CU Lloyd’s v. Feldman, 977 S.W.2d 568, 569 (Tex.1998); Hanson, 5 S.W.3d at 327.

Discussion

In its first and second issues, Archon contends the trial court erred in concluding that Great American had no duty to defend or indemnify it in the underlying lawsuit and in rendering summary judgment for Great American on that basis. Archon contends that its CGL policy provides coverage for inadvertent construction defects that cause damage after a home has been sold to a buyer when the damages arise from the work of the insured’s subcontractors, as alleged in the underlying suit; and therefore Great American has a duty to defend and indemnify it. Great American contends that a suit for construction defects does not constitute an “occurrence” triggering the indemnification provisions of the GCL policy; thus, it has had no duty to defend Archon. The policy provisions and definitions and Bra-den’s pleadings comprise the foundation of our analysis.

Policy Terms

The policy issued to Archon is a standard 1993 broad-form CGL policy. Section I of the policy contains the insuring agreement and the terms of coverage. “Coverage A,” providing coverage for “Bodily Injury and Property Damage Liability,” addresses the duties to defend and to indemnify. Coverage A provides that the insurer has a duty to defend Archon in any suit seeking damages for “bodily injury” and “property damage” and to indemnify Archon for those sums it becomes legally obligated to pay as damages as follows:

COVERAGE A. BODILY INJURY AND PROPERTY DAMAGE LIABILITY

1. Insuring Agreement
a. We will pay those sums that the Insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend any “suit” seeking those damages. We may at our discretion investigate any “occurrence” and settle any claim or suit that may result....
b. This insurance applies to “bodily injury” and “property damage” only if:
(1) the “bodily injury” or “property damage” is caused by an “occurrence” that takes place in the “coverage territory”;. ...

“Property damage” is defined in relevant part in Section V(15) of the CGL policy as “physical injury to tangible property, including all resulting loss of use of that property.” The definition further provides that “loss of use shall be deemed to occur at the time of the physical injury that caused it.” An “occurrence” is defined in Section V(12) of the CGL policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

Coverage A Section 2(j) provides that certain property damage is excluded from coverage, including property damage to “(5). that particular part of real property on which you or any contractors or subcontractors working directly or indirectly on your behalf are performing operations, if the ‘property damage’ arises out of those operations,” and “(6). that particular part of any property that must be restored, repaired or replaced because ‘your work’ was incorrectly performed on it.” Section 2(j) then states, “Paragraph (6) of this exclusion does not apply to ‘property damage’ included in the ‘products-completed operations hazard.’ ”

Section 2(1) of Coverage A excludes coverage for “ ‘[property damage’ to ‘your work’ arising out of it or any part of it and included in the ‘products-completed operations hazard.’ ” But that section too states, “This exclusion does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.” Section V(14)(a) defines a “[pjroducts-completed operations hazard” as including “all ‘bodily injury’ and ‘property damage’ occurring away from premises you own or rent and arising out of ‘your product’ or ‘your work.’ ”

Construction of the CGL Policy

Insurance contracts are subject to the same rules of construction as ordinary contracts. Trinity Universal Ins. Co. v. Cowan, 945 S.W.2d 819, 823 (Tex.1997); Hanson, 5 S.W.3d at 328, When a policy permits only one interpretation, we construe it as a matter of law and enforce it as written. Upshaw v. Trinity Cos., 842 S.W.2d 631, 633 (Tex.1992); Hanson, 5 S.W.3d at 328. We must strive to effectuate the policy as the written expression of the parties’ intent. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). It is well settled that insurance policies should be construed in favor of the insured; however, this rule does not apply when the term to be construed is unambiguous and susceptible of only one construction. Devoe v. Great Am. Ins., 50 S.W.3d 567, 571 (Tex.App.-Austin 2001, no pet.). In such a case, we give the words in the policy their plain meaning. Id.

Duty to Defend

Great American asks us to declare that a claim by a homeowner against a general contractor “for the costs to repair and/or replace the insured general contractor’s own defective work” is not an occurrence that triggers either the duty to defend or the duty to indemnify under the CGL policy. Archon replies that it is not claiming that Great American has a duty to defend it against claims for the costs of repairing or replacing its own defective work, but rather that Great American has a duty to defend it against claims for losses caused by the negligent work of Archon’s subcontractors on Braden’s house, which are covered by the policy.

To determine whether an insurer has the duty to defend its insured, Texas courts apply the “eight corners” rule. See Nat’l Union Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex.1997); Pilgrim Enters., Inc. v. Maryland Cas. Co., 24 S.W.3d 488, 493 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Under the “eight corners” rule, we compare the allegations in the live pleadings to the terms of the insurance policy without regard for the truth or falsity of the allegations. See Pilgrim, 24 S.W.3d at 493. When determining the insurer’s duty to defend, we interpret the allegations liberally in favor of the insured. Nat’l Union, 939 S.W.2d at 141; Collier, 64 S.W.3d at 62. Any doubt as to whether the insurer has a duty to defend is resolved in favor of the insured. King v. Dallas Fire Ins. Co., 85 S.W.3d 185, 186 (Tex.2002); Collier, 64 S.W.3d at 59.

As a general rule, the insurer is obligated to defend if there is, potentially, an action alleged within the policy coverage, even if the allegations do not clearly show there is coverage. Nat’l Union, 939 S.W.2d at 141; Heyden Newport Chem. Corp. v. So. Gen. Ins. Co., 387 S.W.2d 22, 26 (Tex.1965); Collier, 64 S.W.3d at 59. It is the underlying facts alleged that determine coverage, rather than the causes of action enumerated. Nat’l Union, 939 S.W.2d at 141; Collier, 64 S.W.3d at 59; Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 677 (Tex.App.-Houston [14th Dist.] 1993, writ denied). A duty to defend any of the claims requires the insurer to defend the entire suit. CU Lloyd’s of Tex. v. Main St. Homes, Inc., 79 S.W.3d 687, 692 (Tex.App.-Austin 2002, no pet.); Gehan Homes, Ltd. v. Employers Mut. Cas. Co., 146 S.W.3d 833, 843 & n. 9 (Tex.App.-Dallas 2004, pet. filed).

An insurer’s duty to defend its insured is separate and distinct from its duty to indemnify. Great Am. Ins. Co. v. Calli Homes, 236 F.Supp.2d 693, 697 (S.D.Tex.2002). The duty to indemnify is not based on the pleadings in the underlying lawsuit, but on the facts that establish liability. Id. at 698. It arises only after the insured has been adjudicated legally responsible for damages in a lawsuit by judgment or settlement. The duty to defend is thus broader than the duty to indemnify; if an insurer has no duty to defend, it has no duty to indemnify; but an insurer may have a duty to defend without being ultimately shown to have a duty to indemnify. See id.; Collier, 64 S.W.3d at 59.

Application of Eight-Corners Rule

Under its plain language, the CGL policy requires Great American to defend Ar-chon in any suit seeking recovery for property damage covered by the policy. Damage to real property on which Archon or its subcontractors are performing operations at the time of the loss and damage due to Archon’s own incorrectly performed work are excluded from coverage. However, the policy covers damages arising out of work performed on Archon’s behalf by a subcontractor if the loss occurred on property not then owned by Archon, ie., if the loss was a “products completed operations hazard.” The property damage must be caused by an “occurrence” as defined in the policy.

The insured’s standpoint controls in determining whether there has been an “occurrence” that triggers the duty to defend. King, 85 S.W.3d at 188. The CGL policy defines an “occurrence” as an “accident,” but it does not further define the word accident. An injury is “accidental” from the point of view of the insured if “it is not the natural consequence of the action or occurrence which produced the injury; or, in other words, if the injury could not reasonably be anticipated by [the] insured, or would not ordinarily follow from the action or occurrence which caused the injury.” Hartrick v. Great Am. Lloyd’s Ins. Co., 62 S.W.3d 270, 276 (Tex.App.-Houston [1st Dist] 2001, no pet.). “The actor’s intent is not imputed to the insured in determining whether there has been an occurrence.” King, 85 S.W.3d at 191-92.

In the common law, the definition of an accident in the context of an insurance policy has been held to include “negligent acts of the insured causing damage which is undesigned and unexpected.” Trinity Universal Ins., 945 S.W.2d at 827-28 (citing Massachusetts Bonding & Ins. Co. v. Orkin Exterminating Co., 416 S.W.2d 396, 400 (Tex.1967)); Hartrick, 62 S.W.3d at 276(“Texas courts have long-construed the term ‘accident’ to encompass negligently caused losses.”); Westchester Fire Ins. Co. v. Gulf Coast Rod, Reel & Gun Club, 64 S.W.3d 609, 613 (Tex.App.Houston [1st Dist.] 2001, pet. denied) (allegations of negligence satisfy “occurrence” requirement in duty to defend context). If intentionally performed acts are not intended to cause harm, but do so because of negligent performance, a duty to defend arises. See Main St. Homes, 79 S.W.3d at 693 (if there was nothing in underlying petition to indicate that builder intentionally constructed foundations to fail, insurer had duty to defend general contractor against homeowners’ suits to recover for property damage from inadequate foundation design); accord Gehan Homes, 146 S.W.3d at 843 & n. 9; see also Federated Mut. Ins. Co. v. Grapevine Excavation, Inc., 197 F.3d 720, 730 (5th Cir.1999); Calli Homes, 236 F.Supp.2d at 700; Mt. Hawley Ins. Co. v. Steve Roberts Custom Builders, 215 F.Supp.2d 783, 790 n. 2 (E.D.Tex.2002) (focus should not have been on whether damage should have been expected when builder performed its duties negligently, but on intended or expected results when it performed those duties non-negligently).

Here, Braden seeks to recover for damage to the property he bought from Ar-chon that was allegedly caused by work done on Archon’s behalf by a subcontractor, ie., he seeks to recover for damage to his property allegedly caused by leakage from the siding or by incorrectly installed windows. Because Archon could not have intended that the negligent work of its subcontractors cause physical damage to Braden’s home, damage to Braden’s property due to the negligence of Archon’s subcontractors falls within the scope of an occurrence under the language of the CGL policy as such language has consistently been interpreted by the Texas courts.

Great American, however, asks us to find that, under the “economic loss” doctrine, Archon can be held liable in the underlying suit only for economic loss to the subject of Archon’s contract with Bra-den; that it has no duty to indemnify Archon for economic loss to the subject of Archon’s contract; thus, it has no duty to defend Archon. In making this argument, Great American relies principally on a recent federal case, Lamar Homes, Inc. v. Mid-Continent Cas. Co., 335 F.Supp.2d 754, 758-59 (W.D.Tex.2004), citing it as authority for four propositions: “(1) the nature of the injury determines whether a tort or contract duty is breached under Texas law; (2) when the injury is only the economic loss to the subject of the contract itself, the action sounds in contract alone; (3) something other than pure economic loss must be proved to trigger coverage under a commercial general liability insurance policy; and (4) in Texas, the purpose of comprehensive liability insurance coverage is to protect the insured from liability resulting from property damage or bodily injury caused by the insured’s product, but not the replacement or repair of that product.” Lamar Homes, relies in turn on Jim Walter Homes v. Reed, 711 S.W.2d 617 (Tex.1986), which holds that “[w]hen the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.” Id. at 618. We turn, therefore, to Jim Walter Homes.

Jim Walter Homes was a suit for damages arising out of the sale and construction of a house. 711 S.W.2d at 617. The jury found that Jim Walter Homes had breached the warranty of good workmanship and had been grossly negligent in supervising construction of the house, and it awarded the plaintiff homebuyers both actual and exemplary damages. Id. The issue on appeal to the supreme court was whether the gross negligence found by the jury was an independent tort that would support the award of exemplary damages. See id. at 617-18. The supreme court held that it was not; rather, the plaintiffs’ injuries sounded only in contract in that the house they were promised and paid for was not the house they received. Id. at 618. Thus they had lost only the benefit of their bargain, and punitive damages were not recoverable. Id. Significantly, the supreme court acknowledged that “[t]he contractual relationship of the parties may create duties under both contract and tort law” and that “[t]he acts of a party may breach duties in tort or contract alone or simultaneously in both.” 711 S.W.2d at 618.

The case before us concerns an insurance company’s duty to defend its insured on the pleadings under the terms of the insurance policy, not the correctness of assessing punitive damages in an adjudicated case. Braden has pleaded not only that Archon was negligent, breached the warranties of good workmanship, construction and suitability, made negligent misrepresentations, and violated the DTPA, but also that Archon’s subcontractors were negligent and caused damage to the house Braden bought. Application of the economic loss doctrine of Jim Walter Homes would require us to extend the economic loss doctrine beyond the area of exemplary damages in an adjudicated case into the area of an insurance company’s duty to defend on the pleadings (as the federal court did in Lamar Homes) and to subsume under Braden’s breach of warranty claims both the torts that Braden has alleged Archon committed and the alleged torts of Archon’s subcontractors, while ignoring the character of those claims. We decline to extend Jim Walter Homes as Great American requests.

We cannot ignore the pleadings and the language of the CGL policy in assessing Great American’s duty to defend. Although property damage to Ar-chon’s work is excluded from coverage under the terms of the policy, that exclusion does not apply if the damage to property occurred after the house was completed and sold if the work out of which the damage arose was performed on Archon’s behalf by a subcontractor. As the Dallas Court of Appeals noted in Gehan:

Since the decision of whether there is a duty to defend is based exclusively on the pleadings and the language of the policy, we cannot read language into the policy that simply is not there. Such an interpretation would render as surplus-age the language in the exclusions that applies to property damage.

146 S.W.3d at 843; see also King, 85 S.W.3d at 192-93 (noting that insurer’s construction of “occurrence,” ignoring point of view of insured, would impermissi-bly render exclusion for intended injury mere surplusage; “our duty is to give effect to all contract provisions and render none of them meaningless”). Nor can we make a legal determination as to the merits of Braden’s claims on the basis of his pleadings alone. As the Gehan court noted:

[Tjexas courts will not look beyond the pleadings and determine facts when the issue is duty to defend, as opposed to duty to indemnify. There is a vast difference between a court analyzing pleadings to determine whether there is a claimed “occurrence” on the face of the pleadings and a court conducting an evaluation of the merits of the underlying claim.If we were to hold that there is no duty to defend, we would be doing precisely what Texas courts have long held we cannot do — evaluate the merits of the claim and ignore the facts alleged. Instead, we must liberally interpret the pleadings to determine whether an occurrence is potentially claimed.

Id.

Applying the eight-corners rule and liberally construing both the pleadings and Archon’s CGL policy, we conclude, based on a plain reading of the entire policy, including the subcontractor exception, that Braden’s pleadings allege a claim potentially within the scope of coverage of the CGL policy. Because facts supporting both intentional and unintentional wrongful acts have been pleaded, Great American has a duty to defend Archon in the underlying suit.

Whether Great American also has a duty to indemnify Archon is a separate question whose answer depends on the facts to be developed at trial. Specifically, before Great American’s duty to indemnify Archon can be assessed, the jury must determine whether Braden’s losses — hence Archon’s liability — arise out of work negligently performed by Archon itself, out of Archon’s intentional acts, or out of the negligence of its subcontractors. The cause of the loss as determined at trial will determine whether the loss is covered by the policy or not. See Main St. Homes, 79 S.W.3d at 694-95; Calli Homes, 236 F.Supp.2d 693, 700 (S.D.Tex.2002).

Great American contends, however, that this Court’s opinion in Hartrick v. Great American supports the conclusion that an insurer has no duty to indemnify, and thus, can have no duty to defend a cause alleging breach of the warranties of good and workmanlike construction and suitability for habitation, even when the pleadings allege facts potentially supporting a cause of action for which coverage is provided by a CGL policy. Great American reasons that because such claims are essentially claims to recover for breach of contract, the claims are subject to the economic loss doctrine. We disagree with this characterization of Hartrick and with the contention that Hartrick governs Great American’s duty to defend.

Hartrick is not a duty-to-defend case; it is a duty-to-indemnify case. In Har-trick, homeowners sued their builder and its subcontractor for negligence, violation of the DTPA, and breach of the implied warranties of good and workmanlike construction and suitability for habitation in connection with structural problems and defects in the foundation of the house. 62 S.W.3d at 272-73. In contrast to this case, the builder’s insurer — also Great American — honored its duty to defend. A jury found that Claremont, the builder, had breached the implied warranties of good and workmanlike construction and suitability, but that neither Claremont nor its subcontractor was negligent, nor was Claremont liable under the DTPA. Id.

In the homeowners’ suit against Great American to recover on the judgment, this Court held that Claremont’s conduct was not an “accident” for purposes of coverage under its CGL policy; rather, Claremont voluntarily and intentionally failed to comply with the implied promises imposed on it as a matter of law as a homebuilder by not preparing the soil properly and not constructing the foundation properly. Thus, the duty to indemnify was not triggered. We opined, “Although Claremont denied any intent to cause the consequences of not complying with its implied warranties, the jury’s responses to the charge in the underlying case, and the resulting verdict and judgment in that case, established that Claremont did not comply with them.” Id. at 277-78. The determinations that neither Claremont nor its subcontractor was negligent and that Claremont intended the consequences of its breach of warranty could not have been made from the pleadings alone; hence Great American’s duty to defend was triggered even though, given the jury verdict and judgment, it ultimately had no duty to indemnify. Far from supporting Great American’s contention that it has no duty either to defend or to indemnify Archon, Hartrick illustrates the difference between the duty to defend and the duty to indemnify.

Conclusion

We hold that Great American has a duty to defend Archon in the underlying suit and that the trial court erred in rendering summary judgment for Great American. Whether Great American also has a duty to indemnify Archon is a separate matter we do not reach today; thus, we decline to address Archon’s remaining issues.

We reverse the judgment of the trial court and remand the cause for further proceedings in accordance with this opinion.

      . Although Mid-Continent remains in the style of the case, it is not a party to the appeal.

      . See Tex. Ins.Code Ann. art. 21.55 (Vernon Supp.2004-2005) (governing prompt payment of insurance claims).

      . See Tex. Bus. & Com.Code Ann. §§ 17.46(b)(2), (5), (6), (7), & (23) (Vernon 2002).

      . Tex. Prop.Code Ann. § 27.001 (Vernon Supp. 2004-2005) (governing actions to recover damages resulting from construction defect). This cause of action was brought against Ar-chon only.

      . The parties stipulated to certain facts, the two most pertinent of which are that (1) Bra-den did not allege any bodily injury or injury to tangible personal property and (2) Braden did allege that his home was physically damaged — he contended that the home was not constructed properly and sought damages for the repair and reconstruction of that physical damage.

      . "Your work" is defined in Section V(17) as (a) "work or operations performed by you or on your behalf” and (b) "material, parts or equipment furnished in connection with such work or operations."

      . The federal District Court for the Northern District of Texas reached the same conclusion in an unpublished opinion. First Tex. Homes v. Mid-Continent Cas. Co., No. 3-00-CV-1048-BD, 2001 WL 238112 (N.D.Tex. Mar.7, 2001) (unpublished opinion) (allegation that "home was ... not of proper quality and not designed or constructed in a good and workmanlike manner” and that foundation "was insufficient and resulted in a foundation and home that were not properly designed or built” was sufficient to allege "occurrence” for purpose of duty to defend). Likewise, while this case was pending, the Texas Court of Appeals for the Fourteenth District, in a memorandum opinion, rejected Great American’s contention that the economic loss doctrine precluded its liability for defective construction on grounds similar those in this opinion. See Lennar Corp. v. Great American Ins. Co., No. 14-02-00860-CV, 2005 WL 1324833 at *7-*8 (Tex.App.-Houston [14th Dist.] June 5, 2005, no pet.).

      . Great American also relies on Jim Johnson Homes, Inc. v. Mid-Continent Cas. Co., which held that claims for indemnity for negligent design, construction, and supervision of employees and subcontractors made in the context of claims of intentional misconduct and arising during course of construction were not claims for accidental damage to property and that artful pleading could not overcome the basic facts underlying the plaintiff's breach of contract and fraud claims; thus there was no occurrence and no duty to defend. 244 F.Supp.2d 706, 715-17 (N.D.Tex.2003). Because Braden’s claims against Archon, as alleged in Braden's pleadings, do not arise from Archon’s intentional misconduct during the course of construction, but rather from property damage suffered by the homeowner after construction was completed that was allegedly caused by Archon's own actions or by Ar-chon's subcontractors, different provisions of the CGL policy are implicated, and Jim Johnson Homes does not apply.

      . See also Main St. Homes, 79 S.W.3d at 694—95 (likewise rejecting application of Hartrick to the duty to defend).


source: Caselaw Access Project

author: RICHARD BARAJAS, Chief Justice.

license: Public Domain

text:
    PACIFIC EMPLOYERS INSURANCE CO., Appellant, v. Severiano TORRES, Appellee.
    No. 08-05-00086-CV.
    Court of Appeals of Texas, El Paso.
    Aug. 25, 2005.

      Karen L. Landinger, Ray, Valdez, McChristian <& Jeans, P.C., El Paso, TX, for Appellant.
    Robert E. Riojas, El Paso, TX, for Ap-pellee.
    Before BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from the trial court’s granting of an award of attorney’s fees under Section 408.221 of the Texas Labor Code in favor of Appellee. For the reasons stated herein, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Pacific Employers Insurance Co. filed a petition July 1, 2008 appealing from a Texas Workers’ Compensation Commission Appeals Panel decision suing the injured employee and contesting the award. Appellee answered, filing a general denial and claim for attorney’s fees under Section 408.221 of the Texas Labor Code. On January 19, 2005, after almost 19 months of litigation, and less than three weeks before trial, Appellant filed a notice of nonsuit dismissing all claims against Appellee without prejudice. The order granting the nonsuit was filed on January 24, 2005. Appellee filed a motion for attorney’s fees and a supplemental motion for attorney’s fees on January 20, and January 21, 2005. On February 3, 2005, the trial court entered an order awarding attorney’s fees and expenses be paid to counsel for Appellee in the amount of $15,175 plus interest, with an additional award of $5,000 for an appeal to this Court and an additional award of $5,000 for an appeal to the Supreme Court.

Appellant appeals the award, contending in one issue that the Texas Labor Code does not provide for an award of attorney’s fees to an employee when a lawsuit filed by an insurance carrier seeking judicial review of the final decision of a commission appeals panel is disposed of by nonsuit. Appellant contends that the employee is not a “prevailing party” as contemplated by the statute and, therefore, is not entitled to an award of attorney’s fees. We disagree, and for the reasons stated below, affirm the decision of the trial court.

II. ISSUE ON APPEAL

In one issue, Appellant challenges the court’s award of attorney’s fees in favor of the Appellee employee after the filing of a non-suit in the underlying litigation. Appellant asserts that because a non-suit was filed disposing of the litigation, the employee is not a prevailing party as contemplated by the statute in the absence of a judicial ruling on the merits of the claim. We disagree.

III. STANDARD OF REVIEW

The availability of attorney’s fees under a particular statute is a question of law for the court. Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex.1999). We therefore review the issue de novo. El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999). Further, because the only issue presented for review is one of statutory construction, involving purely legal determinations, the proper standard of review is de novo. See Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992); Tex. Dep’t of Pub. Safety v. Loeb, 149 S.W.3d 741, 743 (Tex.App.-Austin 2004, no pet.); Travel Music of San Antonio, Inc. v. Douglas, No. 04-00-00757-CV, 2002 WL 1058527, at *3 (Tex.App.-San Antonio May 29, 2002, pet. denied).

As stated previously, statutory construction is a question, of law, and we review a trial court’s interpretation of a statute under a de novo standard of review. Needham, 82 S.W.3d at 318. When interpreting statutes, our primary objective is to ascertain and give effect to legislative intent. Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex.1999); see Tex. Gov’t Code Ann. § 311.023 (Vernon 2005). We look first to the plain and common meaning of the language of the statute. Fitzgerald, 996 S.W.2d at 865; see Tex. Gov’t Code Ann. § 311.011 (Vernon 2005). We must read the statute as a whole and not just isolated portions. Tex. Dep’t. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004). If the meaning of the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. Id. We read every word as if it were deliberately chosen and presume that omitted words were excluded purposefully. See Cornyn v. Universe Life Ins. Co., 988 S.W.2d 376, 379 (Tex.App.-Austin 1999, pet. denied). We also consider the objective the law seeks to obtain and the consequences of a particular construction. City of Sunset Valley, 146 S.W.3d at 642. We apply the above principles in construing Section 408.221, and we examine the award in the context of the facts of this particular case. See Group v. Vicento, 164 S.W.3d 724, 730 (Tex.App.-Houston [14th Dist.] 2005, pet. filed).

We agree that in ascertaining the legislative intent of this statute, we should liberally construe these compensation provisions in favor of injured workers. See Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000); see also Cigna Ins. Co. of Texas v. Middleton, 63 S.W.3d 901, 903 (Tex.App.-Eastland 2001, pet. denied).

Bearing those canons of construction in mind, we hold that there is a basis for the award of attorney’s fees under this record. The statute authorizes the award to the worker if the worker prevails in the underlying case being pursued by the insurance carrier. Here, Pacific Employers Insurance Co. nonsuited its claims on the eve of trial and after considerable discovery had been undertaken. After all of its claims were nonsuited, the employee-defendant, here Appellee, is in the same position he would be in if he had prevailed after a trial on the matter. In fact, he is in the same position that he was prior to the lawsuit being filed, and during the proceedings. As the prevailing party below, he is defending against a challenge by the insurance carrier. We recognize that cases involving a challenge to a workers’ compensation award present a novel situation where each party may in fact appeal seeking a trial court review of the administrative decision rendered. Here, we think it significant that Appellee did not appeal or challenge the award below. He was merely in the position of defending that which had been awarded to him by the commission. The reason for the nonsuit is not apparent from the record. We recognize the inequity, however, of allowing an insurance carrier the option of filing a lawsuit and challenging an award, requiring an employee to retain an attorney to defend against the challenge, and then nonsuit the claim with no risk of consequences to the insurance carrier.

Section 408.221(c) of the Texas Labor Code provides for the recovery of attorney’s fees by an employee after appeal of the commission’s decision by an insurance carrier seeking judicial review as follows:

An insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of a commission appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney’s fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier in accordance with the limitation of issues contained in Section 410.802. If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall apportion and award fees to the claimant’s attorney only for the issues on which the claimant prevails. In making that apportionment, the court shall consider the factors prescribed by Subsection (d).

Tex. Lab.Code Ann. § 408.221(c) (Vernon Supp.2004-05).

We are mindful that the legislature contemplated that the insurance carrier be held responsible for attorney’s fees in the event of and to the extent that the employee is considered to be a prevailing party. We believe that under the facts of this case, the employee is a prevailing party for purposes of the statute. We are mindful of the Eastland Court of Appeals decision in Cigna Ins. Co. of Texas v. Middleton, 63 S.W.3d 901 (Tex.App.-Eastland 2001, pet. denied) holding that attorney’s fees were not recoverable by a claimant after a non-suit was filed in the case. We find it distinguishable, however, on the facts. In Cigna, both the insurance carrier and the employee appealed and each entered a nonsuit of their respective cases. We believe that the inequities inherent in the defense of an award by an employee to a challenge by an insurance carrier was contemplated by the statute, even recognizing that an employee may recover attorney’s fees when prevailing on only some of the claims. The situation found in Cigna was consistent with the fact that both parties challenged the award and each filed a non-suit, in essence, making both parties prevailing parties. It was within the court’s discretion to determine the extent of attorney’s fees to be awarded, if any. Here, the only party challenging the award essentially conceded defeat by nonsuiting its challenge making the claimant a prevailing party who has prevailed “on an issue on which judicial review is sought by the insurance carrier....” Tex. Lab.Code Ann. § 408.221(c) (Vernon Supp.2004-05).

We therefore overrule Appellant’s issue on appeal and affirm the order of the trial court.

      . Tex.Lab. Code Ann. § 408.221 (Vernon Supp. 2004-05).


author: DIXON W. HOLMAN, Justice.

text:
    The BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Appellant, v. SOUTH PLAINS SWITCHING, LTD. CO., Appellee.
    No. 2-04-364-CV.
    Court of Appeals of Texas, Fort Worth.
    Aug. 26, 2005.
    Rehearing Overruled Sept. 15, 2005.

      Kelly, Hart & Hallman, P.C., Donald E. Herrmann, Jeffrey R. Grable, Caj D. Boat-right, Michael D. Roper, Fort Worth, for Appellant.
    James L. Gorsuch, Lubbock, and Thomas F. McFarland, Chicago, IL, for Appel-lee.
    PANEL B: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
   OPINION

DIXON W. HOLMAN, Justice.

This case arises from a dispute over the meaning of certain provisions in an Asset Sales Agreement (the Agreement) between Appellant Burlington Northern and Santa Fe Railway Company (BNSF) and Appel-lee South Plains Switching, Ltd. Co. (South Plains). After careful consideration of Appellant’s issues, we affirm in part and reverse and render in part.

BACKGROUND AND PROCEDURAL HISTORY

BNSF and South Plains executed the Agreement in May 1999. Under this Agreement, BNSF conveyed to South Plains certain “rail line” properties (tracks) in Lubbock, Texas, and certain rail freight transportation business conducted on those tracks. The tracks conveyed were known as the “Lower Yard.” Under the Agreement, BNSF retained its “through route” business, conveying to South Plains only the “switching services” provided to BNSF’s “through route” customers.

“Through route” business consists of shipments that originate with BNSF at one location and, although some of the shipping takes place on rail lines owned by other carriers, continue to be billed by BNSF for the entire trip. South Plains’ switching services for these shipments includes interchanging cars and moving them to and from the industry track destinations on the rail lines conveyed to South Plains by the Agreement. For these switching services, South Plains receives a “division of revenue.” South Plains began operations under the Agreement on July 5, 1999.

During negotiations surrounding the creation of the Agreement, South Plains expressed an interest in acquiring additional properties known as the North Yard. No official arrangements were made with regard to the North Yard property before execution of the Agreement. From execution of the Agreement in 1999 through mid-2001 there were conversations between BNSF and South Plains regarding the sale of the North Yard.

Sometime in June or July 2001, BNSF informed South Plains that the property and switching operations for the North Yard were not for sale, ending any negotiations regarding the conveyance of that property. On January 17, 2002 and February 4, 2002 South Plains wrote letters to BNSF requesting BNSF’s consent to impose surcharges on all cars interchanged (or “switched”) by South Plains. South Plains explained the need for a surcharge by stating that it had underbid the “division of revenue” deal under the Agreement because it relied on oral promises that the North Yard would be conveyed, thereby providing South Plains with another source of revenue.

On February 22, 2002, exercising its rights under the Agreement, BNSF denied consent to the surcharge request, stating its belief that the additional surcharge would adversely affect its volume of business because shippers might resort to using trucks instead of paying the extra rail line fee. BNSF initiated an action for declaratory judgment on the surcharge issue on April 16, 2002. South Plains asserted several counterclaims that were either disposed of through summary judgment or nonsuited prior to trial.

The case proceeded on four declaratory judgment claims brought by BNSF. The jury answered adversely to BNSF on all four jury questions regarding the parties’ rights under the Agreement. The court denied BNSF’s motions for directed verdict, judgment notwithstanding the verdict, and a new trial. On August 23, 2004, the trial court rendered judgment on the verdict. In three issues, BNSF appeals the trial court’s judgment.

SURCHARGE ISSUE

In its first issue, BNSF contends that the jury’s finding that BNSF unreasonably withheld consent to South Plains’ surcharge request is not supported by the judgment for two reasons. First, the trial court erred by refusing to instruct the jury on the proper legal meaning of the term “unreasonably.” Second, the evidence is legally and factually insufficient to support the jury’s finding.

Was a deftnition required?

The phrase in question used in the Agreement is as follows: “[South Plains] shall not impose a surcharge upon [rail] traffic without the prior written consent of [BNSF], which consent shall not be unreasonably withheld.”

BNSF asserts that without an instruction from the trial court defining the term “unreasonable,” the jury incorrectly applied its own subjective definition of the term, rather than the proper legal meaning, which resulted in an improper verdict. In support of its contention, BNSF relies upon Mitchell’s Inc. v. Nelms, 454 S.W.2d 809, 813 (Tex.Civ.App.-Dallas 1970, writ ref'd n.r.e.).

Texas courts have not settled on a legal definition of “unreasonable.” “What constitutes the elements of unreasonableness in the act of withholding consent presents a question not simple in resolution.” Id. In Mitchell’s, the court held that a landlord did not unreasonably withhold consent to a sublease as mandated by the terms of the lease. Id. at 814. In reaching this decision, the court examined the specific terms of the lease to determine the intention of the parties. Id. After considering the lessor’s reason for denying consent, the court examined the original intention of the parties as evidenced in the lease and decided that the lessor did not act unreasonably or arbitrarily. Id. at 815.

In examining the elements of unreasonableness in the act of withholding consent, the Mitchell’s court noted that unreasonable conduct compares to arbitrary action. Id. at 813-14. The court also mentioned the definition of arbitrary — “without fair, solid and substantial cause or reason.” Id. However, the word “arbitrary” is only used as a “yardstick” in Mitchell’s to show that for something to be reasonable it must be something more than arbitrary. Id. The Mitchell’s court did not hold that overcoming arbitrariness equates to reasonableness. See id.

Mitchell’s, in fact, proposes several meanings for the term “unreasonable,” in-eluding a definition of the word from Webster’s dictionary and definitions applied by other courts. Id. The Mitchell’s court did not rely on any particular definition of unreasonable but instead “made reference to various definitions of ‘reasonable’ and ‘unreasonable,’ including the definition supplied by Webster’s Dictionary, but did not approve any specific language that would necessarily be suitable for a jury instruction.” Terry I. Cross, The Ties That Bind: Preemptive Rights and Restraints On Alienation That Commonly Burden Oil and Gas Properties, 5 Tex. Wesleyan L.Rev. 198, 224 n. 182 (1999).

Furthermore, “[ajlthough the court in Mitchell’s discussed various definitions of unreasonableness in the abstract, it relied on the specific terms of the contract to hold that the landlord had acted reasonably in withholding his consent.” B.M.B. Corp. v. McMahan’s Valley Stores, 869 F.2d 865, 868 (5th Cir.1989) (emphasis added). Further interpreting Mitchell’s, the B.M.B. court opined, “[i]t thus appears that under Texas law, the reasonableness of a refusal to consent ... is determined by reference to the terms and conditions of the original ... [agreement].” Id. at 869.

The conclusion reached in B.M.B. is consistent with another case decided by the Fifth Circuit in which the jury instruction stated: “The term ‘unreasonable withholding of consent’ means that a decision to withhold consent is made without any reasonable basis.... [T]he question is whether there was any reasonable basis under the circumstances for the decision[ ] ... to withhold its consent.” Perez v. Jefferson Standard Life Ins. Co., 781 F.2d 475, 479 (5th Cir.1986) (emphasis added). The court, rather than supplying a legal definition of the word “unreasonable,” allowed the jury to apply a meaning to the word based on the circumstances or evidence presented. Id.

According to another court, the standard is generally anything that falls below what a reasonable person in like circumstances would do. Haack v. Great Atl. & Pac. Tea Co., 608 S.W.2d 645, 650 (Mo.Ct.App.1980). What equates to reasonable or unreasonable cannot be readily defined. See id. Unreasonableness is relative, and “[e]very case must be judged on its own particular facts.” Id.

However, an interpretation of Mitchell’s in a reporter’s note to the Restatement Second of Property claims that “a general statement of what constitutes unreasonableness in this area [landlord granting sublease to tenant] was given in Mitchell’s ... that being: without fair, solid and substantial cause or reason.” Restatement (Second) of PropeRty § 15.2 note (1977). The proper standard applicable to the reasonableness of a landlord’s refusal to consent to an assignment or sublease is that of a reasonable person in the landlord’s position. Funk v. Funk, 102 Idaho 521, 524-25, 633 P.2d 586, 589-90 (1981).

Moreover, in determining whether a lessor is acting unreasonably in denying a sublease or assignment, courts have examined various factors, including the intended use of the property, the financial status of the proposed tenant, and the evidence supporting the commercial reasonableness of the denial. See Pletz v. Standard Homes Co., 342 S.W.2d 621, 621 (Tex.Civ.App.-San Antonio 1961, no writ) (holding that landlord’s desire to prevent business competition between tenants justified his refusal to consent to sublease without first obtaining knowledge of intended use of property); Johnson v. Jaquith, 189 So.2d 827, 829-30 (Fla.Dist.Ct.App.1966) (holding landlord’s refusal to consent to assignment is not unreasonable without proof of prospective assignee’s financial status); Bismarck Hotel Co. v. Sutherland, 175 Ill.App.3d 739, 125 Ill.Dec. 15, 529 N.E.2d 1091, 1097 (1988) (stating that a suitable sublessee is “one who is ready, willing and able to sublease the premises and who, at least, meets reasonable commercial standards”), appeal denied, 124 Ill.2d 553, 129 Ill.Dec. 147, 535 N.E.2d 912 (1989).

Here, BNSF asserts that the trial court erred by not instructing the jury to apply a strict definition of the term “unreasonable” as used in the phrase “unreasonably withhold consent” in the Agreement between BNSF and South Plains. BNSF contends that because the trial court refused to instruct the jury as to the definition of “unreasonable,” it was unfairly held to a higher standard of care. South Plains argues that the legal definition of “unreasonable” was not adopted by the Mitchell’s court or by any other court in Texas. We agree. Because no legal definition of “unreasonable” has been adopted or approved by Texas courts, the trial court did not err by refusing to submit a definition of the word “unreasonable” to the jury. We hold that the jury was free to consider the ordinary meaning of the phrase in light of the evidence presented.

Legal and Factual Sufficiency

BNSF contends that the evidence is legally and factually insufficient to support the jury’s finding that BNSF unreasonably withheld its consent to South Plains’ surcharge request. BNSF argues that the evidence conclusively established that its refusal to consent was reasonable because the surcharge 1) was nothing more than a negotiating tactic, 2) was arbitrary, having no economic or analytical basis, 3) would have adversely affected the volume of rail traffic, and 4) was itself patently unreasonable.

A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; - (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if reasonable jurors could, and disregard evidence contrary to the finding unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

An assertion that the. evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541,142 L.Ed.2d 450 (1998).

Here, the jury heard testimony regarding the circumstances and background of BNSF’s backing out of the North Yard sale, as well as its denial of the surcharge based on economic reasons. Larry Wisener manager/president for South Plains Switching, testified that he was informed by BNSF personnel that if South Plains performed well, the North Yard would be conveyed to South Plains. Larry Cronin, a former employee of BNSF, testified that Jerry Johnson, also an employee of BNSF, told him that if South Plains did a good job, BNSF would convey the North Yard to South Plains. There was also testimony that Johnson announced at a luncheon that BNSF’s intent was to convey the North Yard to South Plains. There was testimony that South Plains initially accepted a lower division of revenue because it was under the impression that it would eventually receive the North Yard tracks and the imposition of the surcharge would not have been necessary if the North Yard had been conveyed to South Plains, as promised by BNSF.

Wisener testified that in considering whether to request a surcharge, he calculated revenues lost from not acquiring the North Yard as promised by BNSF and what it would take to cover current expenses of operation. He testified that requesting the surcharge was not used as any type of tactic. The jury heard testimony from Johnson that before making his decision to deny South Plains’ request for the surcharge, he did not obtain or request the records of South Plains, he did not look at the cost and expenses of South Plains, and he did not meet with anyone from South Plains to talk about the surcharge request.

The jury could have determined that BNSF’s denial of South Plains’ request for a surcharge was unreasonable. Accordingly, we hold that the evidence in this case was legally and factually sufficient to support the jury’s finding. We overrule BNSF’s first issue.

Access to TRack 9200

The Agreement between BNSF and South Plains contains a “Description of Business Sold” section conveying the property interests in certain rah line segments, including track 9200, from BNSF to South Plains. The Agreement states that this grant is subject to BNSF’s retained interests including “continued access by rail” to track 9200. Immediately following this provision is a subsection granting South Plains the rail freight transportation business conducted by BNSF on the rail line segments conveyed but, subject to the aforementioned retained interests.

Prior to execution of the Agreement, BNSF conducted freight transportation business with Vulcan Construction Materials, L.P. (Vulcan) on track 9200. For nearly four years after the execution of the Agreement in May of 1999, BNSF continued to conduct its business with Vulcan on track 9200. In 2003, South Plains denied BNSF access to track 9200 to service Vulcan. Both BNSF and South Plains claim that the other party’s actions regarding track 9200 violate the terms of the Agreement. It is BNSF’s position that the retained interest of “continued access by rail” reserved for BNSF the right to continue conducting that portion of its freight transportation business with Vulcan on track 9200. BNSF claims that the ordinary meaning of the phrase “continued access” as used in the Agreement, unambiguously permits BNSF to use track 9200 to the extent that it had before the Agreement.

South Plains argues that the language of the Agreement grants South Plains the freight transportation business conducted on track 9200, including all the business done with Vulcan, and that the “continued access” provision of the Agreement is for storage purposes only. South Plains maintains that the word “access” refers to the right to approach, not use the track.

In its second issue, BNSF argues that the jury’s finding that the “continued access” provision of the Agreement does not permit BNSF to continue to service Vulcan on track 9200 fails to support the judgment because 1) the provision unambiguously permits BNSF unrestricted continued access to track 9200 and should have been enforced by the trial court as a matter of law, and 2) the trial court erred by admitting parol evidence regarding South Plains’ intended meaning for the unambiguous provision.

An unambiguous contract must be construed by the court as a matter of law and not left open to the interpretation of its terms by a jury; however, it is proper to allow the trier of fact to interpret an ambiguous contract. Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). The question of whether a contract is ambiguous is one of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Id. A contract is not ambiguous if its words can be given a definite or certain meaning as a matter of law. Coker, 650 S.W.2d at 393. Not every difference in the interpretation of a contract amounts to an ambiguity. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994). When a potential ambiguity arises, deciding whether the language is ambiguous is an issue of contract construction. Candlelight Hills Civic Ass’n, Inc. v. Goodwin, 763 S.W.2d 474, 477 (Tex.App.Houston [14th Dist.] 1988, writ denied).

Webster’s Dictionary defines “continued” as both “stretching out in time or space without interruption” and “resumed after interruption.” WebsteR’s ThiRD New International Dictionaey 493 (2002). Applying these definitions, the use of the word “continued” within the Agreement can be interpreted to mean either continued from a point before the Agreement was executed or continued throughout the Agreement without interruption.

“Access” is defined by the same dictionary as both the “ability to enter, approach, ... or pass to and from” and the “ability to ... make use of.” Id. at 11. Accordingly, access can mean either the right to make use of or the ability or right to approach. BNSF contends that the phrase “continued access” is not ambiguous when given its plain, ordinary, and generally accepted meaning.

From the phrase alone, it cannot be ascertained which definition of “access” the parties intended, “use ” or “approach.” However, individual words, phrases, or clauses should not be isolated and read out of context, but rather the document should be read as a whole to determine the intentions of the parties as expressed in the writing. State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 433 (Tex.1995). To achieve this the court will examine and consider the entire instrument so that none of the provisions will be rendered meaningless. R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519 (Tex.1980). If the written instrument permits the court to ascertain a definite interpretation as to which one of two possible meanings is proper, the contract is not ambiguous. Id. It is presumed that the parties to a contract intend every clause to have some effect. Heritage Res., Inc., 939 S.W.2d at 121.

Within the clause of the Agreement that reserves “continued access by rail to track 9200,” there is an additional provision stating that BNSF will pay $1000 per year for such continued access beginning six years from the date of closing “and thereafter until such time as [BNSF] notifies [South Plains] in writing, that [BNSF] no longer desires to use said tracks.” South Plains’ contention that the “access” was limited to the right to “approach” the tracks but not to “use” them renders this portion of the Agreement meaningless. Therefore, by applying the applicable rules of construction and interpretation, which requires construing the contract as a whole, we conclude the “right to use” track 9200 is the only reasonable interpretation of the meaning of “access” from the face of the Agreement.

When the Agreement is read as a whole, the term “continued access” is unambiguous. Therefore, the trial court erred by admitting parol evidence regarding the parties’ intended meaning for this unambiguous provision, and erred in submitting a jury question regarding interpretation of the term “continued access” in the Agreement. See Transcon. Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 665 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (stating that a trial court errs when it does not construe an unambiguous provision as a matter of law, and instead, submits the issue to a fact finder). We sustain BNSF’s second issue and render a declaratory judgment that the Agreement’s “continued access” provision permits BNSF to continue to use track 9200 with no restrictions, except payment after five years as provided by the terms of the Agreement.

The meaning of “Billed”

Under the Agreement, when a freight shipment is interchanged between BNSF and South Plains, BNSF bills the freight customer for the whole shipping movement and then shares the revenue with South Plains according to the division of revenue provision. South Plains receives $40 for each carload of freight “billed in a block of 27 or more cars for an individual shipper or receiver,” and a higher rate of $125 for each carload of freight “billed” in a block of less than 27 cars.

A dispute arose between the parties over the meaning of the term “billed,” as used in the division of revenue provision. South Plains took the position that “billed” meant “waybilled” — i.e., that it should receive $125 for each car “waybilled” in less than a block of 27 cars. BNSF responded that “billed” meant “billed to the customer” — i.e., if BNSF billed a customer at lower unit train rates (because cars moved in a block of 27 cars or more) then South Plains was paid at the lower rate of $40.

The jury was asked to determine whether the intent of the parties at the time they signed the Agreement was that the term “billed” in the division of revenue provision meant “billed to the customer” or “way-billed.” The jury answered that the term meant “waybilled.”

In issue three, BNSF asserts that the term “billed” used in the Agreement unambiguously means “billed to the customer” rather than “waybilled.” Alternatively, BNSF argues that the evidence is legally and factually insufficient to support the jury’s finding.

When a term in a written agreement is not specifically defined, it should be given its plain, ordinary, and generally accepted meaning. Heritage Res., Inc., 939 S.W.2d at 121. If a written contract is worded so that it can be given a definite or certain legal meaning, then it is not ambiguous. Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995); Coker, 650 S.W.2d at 393. Parol evidence is not admissible for the purpose of creating an ambiguity. See Nat’l Union, 907 S.W.2d at 520. If, however, the language of a contract is subject to two or more reasonable interpretations, it is said to be ambiguous. Id. Only after a contract is found to be ambiguous may parol evidence be admitted for the purpose of ascertaining the true intentions of the parties expressed in the contract. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex.1996). in particular, a specialized industry or trade term may require extrinsic evidence of the commonly understood meaning of the term within a particular industry. See Nat’l Union, 907 S.W.2d at 521 & n. 6.

Here, the term at issue in the Agreement is “billed.” The division of revenue provision of the Agreement does not contain the words “waybilled,” “billed to the customer,” or “freight bill.” BNSF’s contention that the term “billed” is unambiguous would require us to conclude that there is only one reasonable interpretation of the term “billed” as used in the Agreement between BNSF and South Plains.

An ambiguity in a contract may be said to be “patent” or “latent.” Id. at 520. A patent ambiguity is evident on the face of the contract. Id. A latent ambiguity arises when a contract that is unambiguous on its face is applied to the subject matter with which it deals and an ambiguity appears by reason of some collateral matter. Id. If a latent ambiguity arises from this application, parol evidence is admissible for the purpose of ascertaining the true intention of the parties as expressed in the agreement. Id. When a latent ambiguity arises, the focus shifts to the facts and circumstances under which the agreement was made. GTE Mobilnet of S. Tex. Ltd. v. Telecell Cellular, Inc., 955 S.W.2d 286, 290 (Tex.App.-Houston [1st Dist.] 1997, writ denied) (op. on reh’g).

Once a contract is found to be ambiguous, the interpretation of the contract becomes a fact issue. Coker, 650 S.W.2d at 394. Where application of the language used to the subject matter of the contract creates a genuine uncertainty as to which of two meanings is correct, the issue is properly resolved by a jury. Sec. Sav. Ass’n v. Clifton, 755 S.W.2d 925, 930 (Tex.App.-Dallas 1988, no writ).

The trial court heard testimony regarding the facts and circumstances of the making of the Agreement. The testimony included the use of the terms “ireight bill” and “billed to the customer,” which terms are used interchangeably in the railroad industry, while the term “waybilled” has a distinctively different meaning. We conclude that the trial court properly found that the Agreement is latently ambiguous because the Agreement uses the term “billed” but does not specify whether the referenced term means “waybilled” or “billed to the customer.” Therefore, because the Agreement was latently ambiguous, the trial court properly allowed extrinsic evidence to be considered by the jury in order to determine the intention of the parties. See Nat’l Union, Inc., 907 S.W.2d at 520.

The jury heard testimony from Dennis Olmstead, who acted as a consultant for South Plains, and who was involved in the drafting of the Agreement between BNSF and South Plains, regarding the term “billed.” He explained the difference between “waybilled” and “freight billed” and the impact of each. Olmstead testified that in the original draft of the Agreement, the term “switched” was in the division of revenue paragraph, and that he wanted the term “switched” to be replaced with the term “billed.” Specifically, he stated that if the term “switched” was in the Agreement, BNSF could gather trains in its yard and make sure that each train contained more than twenty-seven cars before calling South Plains to come in and “switch” a train. In that event, South Plains would never be able to claim the higher division of revenue, even though more work was required on the part of South Plains. Olmstead testified that when he stated that the term “billed” should replace the term “switched,” he meant “waybilled” and not “freight billed.” Additionally, he testified that the “freight bill” goes to the customer and not to South Plains. Therefore, South Plains would not have any way to verify the accuracy of the payment. Considering all the testimony at trial, we hold that the evidence is legally and factually sufficient to support the jury’s finding that the ambiguous term “billed” meant “waybilled.” We overrule BNSF’s third issue.

Conclusion

We reverse that portion of the trial court’s judgment that pertains to the “continued access” provision of the Agreement. We render a declaratory judgment that the Agreement’s “continued access” provision permits BNSF to continue to use track 9200 with no restrictions except payment after five years as provided by the terms of the Agreement. We affirm the remainder of the trial court’s judgment.

      . The record reveals that Larry Wisener signed the Agreement as "manager/president” for South Plains Switching. Wisener testified that South Plains Switching was formed for the purpose of entering into the Asset Sale Agreement with BNSF. He also stated that South Plains Switching does not have any employees or equipment. In order to operate South Plains Switching, employees and equipment from South Plains Lamesa, another railroad owned by Wisener, are utilized.

      . A waybill is a document prepared by a transportation line at the point of a shipment showing the point of origin, route, description of shipment, and amount charged. A freight bill is a document issued by the carrier based on the waybill and other information. It is sent directly to the customer and is the document by which the customer compensates the companies for the rail service they provide.


author: EVA M. GUZMAN, Justice.

text:
    Herbert and Amy GOEBEL, as Next Friends and Parents of Katie Goebel and Brent Goebel, Minors, Appellants, v. William BRANDLEY, Appellee.
    No. 14-04-00510-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Aug. 30, 2005.

      J. Michael Fieglein, Galveston, for appellants.
    Amanda Bedford, Daniel Ward Jackson, Houston, for appellee.
    Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
   OPINION

EVA M. GUZMAN, Justice.

Appellants, Herbert and Amy Goebel, as next friends and parents of Katie and Brent Goebel (collectively “Goebels”), appeal a summary judgment in favor of ap-pellee William Brandley, claiming the trial court erred in concluding Amy Goebel’s purchase of United States Savings Bonds Series EE (“savings bonds”) in her children’s names, through payroll deductions, was a fraudulent transfer under Texas Uniform Fraudulent Transfer Act (“TUF-TA”). Because the parties do not dispute that Amy purchased the savings bonds with her wages, but Brandley failed to establish the wages were “assets” as defined under TUFTA, we reverse the judgment of the trial court and render judgment in favor of the Goebels.

I. Facts and PROCEDURAL BackgRound

The parties stipulated to the following facts. In January 1996, Amy entered into a voluntary payroll deduction program offered by her employer UTMB-Galveston, in which she purchased a $200 savings bond each month for her minor son, Brent. The following year, in April 1997, Amy began purchasing savings bonds through the program in the same amount for her minor daughter, Katie. At the time of their purchase, the savings bonds were issued in the children’s names. Amy continued purchasing a $200 bond each month for each child through these payroll deductions until August 2003.

In March 2001, Brandley was awarded a judgment against Herbert and Amy for $37,433.52 in connection with a property dispute. In August 2003, Brandley filed suit against Herbert and Amy, as next friends and parents of Katie and Brent, under TUFTA, claiming the savings bonds were fraudulently transferred to the children.

Brandley filed a summary judgment motion, asserting that (1) Amy fraudulently transferred the savings bonds after his claim arose, (2) she did not receive a reasonably equivalent value in exchange for the transfer of those assets, and (3) Amy was insolvent at the time of the transfer. The Goebels also filed a summary judgment motion claiming that there was no transfer of assets as a matter of law because Amy purchased the savings bonds with her “current wages” which, as exempt property, are not subject to TUFTA’s provisions. In his response to the their motion, Brandley incorporated the stipulation of facts executed by the parties. In addition to the facts set forth above, the stipulation included, in pertinent part, the following:

• At all times, Amy Goebel has maintained control over her participation in this voluntary payroll deduction program.
• At any time, Amy Goebel could have discontinued the payroll deduction used to purchase the savings bonds in question.
• Amy Goebel voluntarily used her wages to purchase savings bonds for Brent and Katie Goebel.
• As their parent and legal guardian, Amy Goebel has always controlled Katie and Brent Goebel’s assets, including the U.S. savings bonds.
• Katie and Brent Goebel paid no value for the savings bonds.
• Amy and Herbert Goebel have been insolvent at all times since Brandley’s March 6, 2001 judgment against them.

The trial court entered a final judgment, granting summary judgment to Brandley, denying the Goebels’ motion, and ordering that Brandley recover $6,000 from Katie and $6,000 from Brent.

II. Discussion

In their first appellate issue, the Goebels contend the trial court erred in granting Brandley’s summary judgment motion because Amy purchased the savings bonds with her wages, prior to receipt of those wages, and she began participating in the payroll deduction program several years before Brandley’s judgment. They also argue that Amy never owned the savings bonds because all were purchased in the name of her children. Consequently, according to the Goebels, there was no transfer of “assets” as defined under TUFTA and, therefore, they argue in their second issue that Katie and Brent cannot be liable to Brandley for damages under that statute.

Brandley argues that Amy’s participation in the payroll deduction program was entirely voluntary; therefore, because she controlled the funds used to purchase the savings bonds, those wages were not exempt as “current wages.”

A. Standard of Review

Under the summary judgment standard of review, a movant has the burden to show at the trial level that there are no genuine issues of material fact, and he is entitled to judgment as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In determining whether there is a genuine fact issue precluding summary judgment, evidence favorable to the non-movant is taken as true and we make all reasonable inferences in his favor. Id. We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005), A movant is entitled to summary judgment only if he conclusively proves all essential elements of his claim. Johnston v. Crook, 93 S.W.3d 263, 273 (Tex.App.-Houston [14th Dist.] 2002, pet. denied) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986)).

When cross-motions for summary judgment are filed, a reviewing court examines all of the summary judgment evidence presented by both sides, determines all questions presented and, if reversing, renders such judgment as the trial court should have rendered. Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex.1999); Vill. of Pheasant Run Homeowners Ass’n v. Kastor, 47 S.W.3d 747, 750 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). Each party must carry its own summary judgment burden and neither can prevail due to the other’s failure to meet that burden. W.H.V., Inc. v. Assocs. Hous. Fin., LLC, 43 S.W.3d 83, 87 (Tex.App.-Dallas 2001, pet. denied).

B. Fraudulent Transfers

TUFTA provides remedies to creditors of debtors who fraudulently transfer assets under certain circumstances, as set out in the statute. See Tex. Bus. & Com.Code Ann. §§ 24.005-006, 24.008 (Vernon 2002); see also Kaufmann v. Morales, 93 S.W.3d 650, 653 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (“The purpose of the [T] UFTA is to ‘prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach.’ ”). Although there are different methods of establishing a claim under TUFTA, in this case Brandley acknowledges he is not asserting any claims or allegations of fraud or fraudulent intent against the Goebels. He moved for summary judgment based only on section 24.006(a) of the statute, which provides:

A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.

Tex. Bus. & ComlCode Ann. § 24.006(a). “Transfer” is defined as every manner of “disposing of or parting with an asset or an interest in an asset,” including the payment of money. See id. § 24.002(12).

1. Asset

Under TUFTA, “asset” is defined as “property of a debtor,” but does not include, as it relates to this case, property to the extent it is generally exempt under non-bankruptcy law. See id. § 24.002(2). Section 42.001 of the Property Code expressly provides that “current wages” are exempt from garnishment, attachment, or execution. See Tex. PROP.Code Ann. § 42.001(a), (b)(1) (Vernon 2000).

In his summary judgment motion, Brandley stated “[i]t is undisputed that [Amy] transferred $200 per month in savings bonds to both Katie and Brent every month from the date of Brandley’s judgment until August, 2003.” (Emphasis added). In support of his motion, Brandley attached copies of interrogatories completed by Katie and Brent indicating Amy had purchased the savings bonds for the children through the payroll deduction program. In response to Brandley’s summary judgment motion, and in their own subsequent motion, the Goebels argued that the property Amy transferred was her “current wages,” which is exempt property falling outside the purview of TUFTA’s provisions.

Brandley argued in his reply that the savings bonds were not exempt, asserting it was an “irrefutable fact” Amy fraudulently transferred assets. He claimed that, because Amy had the ability to stop the payroll deductions, her wages became nonexempt property. Brandley further argued that wages, once received by the wage-earner, are no longer considered exempt property and when Amy purchased the savings bonds, her wages lost their status as “current wages.”

a. current wages

Under this State’s constitution, current wages are exempt from garnishment. Tex. Const. Art. XVI, § 28. Current wages are also exempt from attachment, execution or other seizure under the Property Code. See Tex. Prop.Code Ann. § 42.001(b)(1). Generally, a conveyance of exempt property may not be attacked as a fraud on creditors. Duran v. Henderson, 71 S.W.3d 833, 842-43 (Tex.App.-Texarkana 2002, pet. denied). The rationale underlying this rule is that the law already has removed exempt property from the reach of creditors and conveyance of the property, whether fraudulent or not, does not deprive a creditor of his rights in the property. Id. at 843. Under TUFTA, if the property transferred is exempt, a defrauded creditor is not afforded any relief. See Tex. Bus. & Com.Code Ann. §§ 24.002(2), 24.002(12); Duran, 71 S.W.3d at 843.

In this case, the stipulated facts and the case law establish that the property transferred was Amy’s “current wages” and was, therefore, exempt property under TUFTA. The parties agreed that Amy purchased the savings bonds with her “wages” through the payroll-deduction program. There is no dispute that all the savings bonds were purchased through the program, nor any dispute that Amy never directly received the subject wages. Further, the savings bonds were purchased in the children’s names. Thus, under these circumstances, the assets transferred were Amy’s “current wages” and, to the extent those wages failed to qualify as “current wages” as a matter of law, Brandley had the burden to prove that issue as the movant on that ground.

In support of his argument that Amy’s wages lost their status as exempt property, Brandley relies primarily on cases decided before 1989. Prior to that time, in determining whether wages were subject to the turnover statute, some Texas courts concluded that once the wages had been paid and received by the debtor, they were no longer “current” wages. See Burns v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 323 (Tex.App.-Dallas 1997, writ denied). In 1989, however, the legislature overruled that line of cases by amending the turnover statute to exclude current wages from its scope, except in cases involving court-ordered child support. See Caulley v. Caulley, 806 S.W.2d 795, 797-98 (Tex.1991); Burns, 948 S.W.2d at 323. Following the 1989 amendment, a court can no longer enter or enforce an order that requires the turnover of the proceeds of, or the disbursement of, property exempt under any statute. See Tex. Civ. PRAC. & Rem.Code Ann. § 31.002(f) (Vernon 1997); Burns, 948 S.W.2d at 323.

Brandley attached copies of two cases to his motion, both unpublished, which stand for the proposition that wages deposited in a bank account lose their status as “current wages.” Brandley also cited to a published case, Massachusetts Mutual Life Insurance v. Shoemaker, 849 F.Supp. 30, 33 (S.D.Tex.1994), in which the court noted that under Texas law, “[wjages cease to be ‘current’ for purposes of the exemption laws when they ‘are paid to and received by the wage earner.’ ” (Emphasis added). And, in his appellate brief, Brandley included a cite to Leibman v. Grand, 981 S.W.2d 426, 435 (Tex.App.-El Paso 1998, no pet.), in which the appellate court, after acknowledging the 1989 amendment to the turnover statute and its purpose to protect wages received by the debtor, distinguished the situation present in that case as follows:

[A]n entirely different situation is presented where a judgment debtor ... voluntarily liquidates exempt personal property, such as an automobile, and holds the funds for several months before investing them in an exempt annuity. A finding that the funds realized from the sale of the vehicle are not exempt, particularly where the judgment debtor has purchased a replacement vehicle, does not defeat the purpose of the exemption provided by Section 42.002(9). To hold otherwise would permit Leibman to claim an exemption not only for his two automobiles but also for the funds realized from the sale of a third vehicle. This we decline to do.

Id. at 435. Based on these authorities, Brandley asks us to construe Amy’s ability to stop the payroll deductions as her “receipt” of the wages. Thus, Brandley’s argument is in fact a “constructive receipt” argument. Brandley, however, does not cite to any authority supporting his “constructive receipt” theory. And, as indicated by the quotation from Leibman, the cases Brandley relies on do not support his position under the facts of this case.

Brandley also likens the purchase of the savings bonds to depositing a paycheck into a bank account and, quoting from an unpublished case, states “[fjunds in a bank account, even when their stated use is to pay the mortgage on the homestead, are not exempt.” Whether this is a correct statement of the law is not the issue before us, however, because there is no dispute in this case that Amy did not receive the subject wages and, certainly, no dispute that Amy had not deposited those wages into her bank account.

Finally, notwithstanding the fact the cases relied on by Brandley are not binding precedent for this court, those cases also involve more obvious or egregious circumstances of purposeful avoidance of creditors than are present here. In this case, it is undisputed that Amy began the payroll deductions years before Brandley received his judgment against the Goebels. It is also undisputed that the savings bonds were issued in the children’s names, and Amy never actually received the wages. Because the purpose of TUFTA is to prevent fraudulent transfers of property by a debtor who intends to defraud creditors by placing assets beyond their reach, concluding that Amy’s wages are-no longer exempt under these circumstances would not further this statutory purpose. See Tel. Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 607 (Tex.App.Houston [1st Dist.] 2002, no pet.).

In sum, Brandley has failed to establish that Amy’s wages lost their exempt character for purposes of TUFTA merely because she had the ability to end the payroll deduction program. We cannot conclude, as Brandley advocates, that Amy’s voluntary participation — beginning several years prior to Brandley’s judgment — in a payroll deduction program to purchase savings bonds in her children’s names, with wages she did not receive, qualifies as a transfer of assets under TUFTA. We sustain the Goebels’ first issue presented and hold that Amy’s wages deducted under the savings bond payroll deduction program were exempt property and therefore, not “assets” as defined under TUFTA. Consequently, Katie and Brent cannot be liable to Brandley for damages under TUFTA, and therefore we sustain the Goe-bels’ second issue. Accordingly, we reverse the trial court’s judgment and render a take-nothing judgment against Brandley in the Goebels’ favor.

      . See Tex. Bus. & Com.Code Ann. §§ 24.001-012 (Vernon 2002).

      . Herbert and Amy filed a Chapter 7 bankruptcy proceeding on May 6, 2003, two years after Brandley’s judgment. At oral argument, the parties agreed the bankruptcy proceedings were completed and Brandley's debt was “discharged.” The Goebels do not raise any arguments concerning the bankruptcy.

      . The total awarded, $12,000, appears to represent the value of the savings bonds at maturity, purchased from March 2001 through August 2003.

      . Specifically, the interrogatory was as follows:

        INTERROGATORY NO. 4:

      Please identify every transfer made by your parents, or at your parents' authorization or instruction, of savings bonds from January 1, 2001 to the present, including amount, date, and to whom the transfer was made.
      ANSWER: My parents, specifically my mother, has participated in an employer-sponsored payroll deduction U.S. savings bond program monthly for her children since December, 1995.
      There is no explanation in the record for the discrepancy in the parties’ stipulations, which stated Amy entered into the payroll deduction program in January 1996, and the response contained in the interrogatory; however, the discrepancy is inconsequential here. Another interrogatory requested Katie and Brent "identify every asset transferred to you from January 1, 2001 to the present.” The children objected to this interrogatory as being overly broad and ambiguous, and did not provide a response.

      . As summary judgment evidence, the Goe-bels attached an affidavit from Amy stating she began purchasing the savings bonds through her employer’s payroll-deduction program in 1996 in Brent’s name, and in 1997, in Katie’s name. She averred the payroll-deduction program was established several years before Brandley’s judgment as a savings fund for her children, and was not intended to divert funds from any creditor. The Goebels also attached a copy of Burns v. Miller, Hiersche, Martens & Hayward, P.C., 948 S.W.2d 317, 323 (Tex.App.-Dallas 1997, writ denied), in support of their claim that the wages transferred were exempt property.

      .Although Brandley initially alleged that the property actually transferred was the savings bonds, he does not dispute that the bonds were purchased in the children’s names. See generally 31 C.F.R. §§ 315.15, 315.36-.39, 315.5, 315.62 (2004) (providing that savings bonds are issued only in registered form, the registration must express the actual ownership of and interest in the bond, and the registration is conclusive of ownership). Subsequent to his initial motion, Brandley correctly argued that Amy’s wages were the asset transferred. See id.; Tex Bus. & Com.Code Ann. § 24.007(3) (providing that a transfer is made when it becomes effective between the debtor and the transferee).

      . The following was contained in the stipulation of facts: "The funds used to purchase all savings bonds at issue in this matter were wages that either were or could have been paid to Amy Goebel.” (Emphasis added). The inclusion of "either were” cannot be considered as conclusive evidence that Amy received a paycheck for any of the subject wages. See Rosenboom Mach. & Tool, Inc. v. Machala, 995 S.W.2d 817, 822 (Tex.App.Houston [1st Dist.] 1999, pet. denied) (stating that ambiguous or unclear stipulations should be disregarded by the trial court). The Goe-bels have consistently asserted that Amy never received the wages transferred.

      . We acknowledge that this court has previously determined that a party claiming an exemption bears the burden of proving that exemption. See Roosth v. Roosth, 889 S.W.2d 445, 459 (Tex.App.-Houston [14th Dist.] 1994, writ denied). But, Brandley, as the summary judgment movant, had the burden to establish Amy’s wages failed to qualify as "current wages” once the parties (1) agreed that Amy’s wages were transferred, and (2) that she had never directly received those wages. Because it was Brandley's contention that Amy’s "control” over those wages served to strip them of their exempt status, it was his burden to prove that proposition as a matter of law.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 31.002 (Vernon 1997 & Supp.2004-05).

      . See Guiberson v. Bohnefeld, No. 05-92-03011-CV, 1993 WL 175242, at * 1 (Tex.App.Dallas May 24, 1993, writ denied) (not designated for publication); Tarter v. Akin & . McMullen, P.C., No. 05-90-01563-CV, 1991 WL 284467, at *5 (Tex.App.-Dallas December 20, 1991, no writ) (not designated for publication).

      . In addition, Brandley cites to a bankruptcy case decided in 1995, which concluded that under Sloan v. Douglass, 713 S.W.2d 436, 440 (Tex.App.-Fort Worth 1986, writ ref'd n.r.e.), the debtor’s control over the wages was “an element to consider in determining whether wages are current.” In re Standel, 185 B.R. 227, 234 (N.D.Tex.1995) (emphasis added). The Standel court relied only on Sloan, a preamendment case, in reaching its conclusion. Regardless, Standel does not stand for the proposition suggested by Brandley, that is, the ability to end a payroll deduction program begun years prior to a creditor’s receipt of judgment qualifies as "constructive receipt” of wages such that they lose their exempt character for purposes of TUFTA. Indeed, Standel indicates that the debtor's control over the wages is merely an element to consider in determining whether the wages are "current.”

      . Brandley cites Tarter, 1991 WL 284467, at *5.