Rip Wallace, Individually and D/B/A 101 Ranch v. Wendell Munson D/B/A Munson Cattle Co.

NUMBER 13-03-188-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG RIP WALLACE, INDIVIDUALLY AND D/B/A 101 RANCH, Appellant, v. WENDELL MUNSON D/B/A MUNSON CATTLE CO., Appellee. On appeal from the 343rd District Court of Live Oak County, Texas. MEMORANDUM OPINION Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Yañez By three issues, appellant, Rip Wallace, individually and d/b/a 101 Ranch (Wallace), complains of the trial court’s judgment in favor of appellee, Wendell Munson d/b/a Munson Cattle Company (Munson). Specifically appellant contends the trial court erred in: (1) determining that the pasturage agreement between the parties was a valid and enforceable contract; (2) considering appellee’s evidence on damages; and (3) considering appellee’s evidence regarding attorney’s fees. As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. By his first issue, appellant contends that the judgment should be reversed because the pasturage agreement is an ambiguous contract. We disagree. The interpretation of an unambiguous contract is a question of law for the court to decide. Frost Nat'l Bank v. L & F Distribs., 122 S.W.3d 922, 930 (Tex. App.–Corpus Christi 2003, no pet.); see Nat'l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995). The appellate court reviews questions of law de novo. Parts Indus. Corp. v. A.V.A. Servs., 104 S.W.3d 671, 678 (Tex. App.–Corpus Christi 2003, no pet.). Legal conclusions of the trial court are always reviewable, and the appellate court is not obliged to give any particular deference to those conclusions. Id. The rules of contract interpretation favor validity and instruct courts of appeals to examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Lavaca Bay Autoworld v. Marshall Pontiac Buick Oldsmobile, 103 S.W.3d 650, 657 (Tex. App.–Corpus Christi 2003, no pet.); see Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). If a written contract is worded so that it can be given a definite or certain legal meaning, then it is unambiguous. Frost Nat'l Bank, 122 S.W.3d at 930; see Coker, 650 S.W.2d at 393. An ambiguity does not arise simply because the parties offer conflicting interpretations. Frost Nat'l Bank, 122 S.W.3d at 930. A contract is ambiguous if its meaning is uncertain and doubtful. Goff v. Southmost Sav. & Loan Ass’n, 758 S.W.2d 822, 825 (Tex.App.–Corpus Christi 1988, writ den'd). An ambiguity arises if an instrument is difficult to comprehend or distinguish, of doubtful import, or if there is doubt as to the true meaning. Id. The circumstances at the time the instrument was executed must be taken into consideration. Lenape Res. Corp. v. Tenn. Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex. 1996). Parol evidence is admissible to construe an ambiguous document. Goff, 758 S.W.2d at 825; see Wesson v. Jefferson Sav. & Loan Ass’n., 641 S.W.2d 903, 905 (Tex. 1982); Gibson v. Bentley, 605 S.W.2d 337, 339 (Tex. Civ. App.–Houston [14th Dist.] 1980, writ ref'd n.r.e.). The primary object of contract construction is to arrive at the intentions of the parties. Goff, 758 S.W.2d at 825; see Lenape, 925 S.W.2d 565, 574 (Tex. 1996). Using the tests outlined above, we conclude that the pasturage agreement was ambiguous in regard to the term “adequate feed.” See Goff, 758 S.W.2d at 825. The term “adequate feed” is essential to the case at hand. It is unclear from the face of the document what amount of feed is required to be “adequate.” Does “adequate” mean that the cattle must simply stay alive, maintain weight, or gain weight? The meaning of “adequate” within the document is uncertain. Id. Appellant is incorrect, however, in his assertion that the finding of an ambiguity in the pasturage agreement results in an unenforceable contract. The ambiguity allows for the admission of parol evidence in order to ascertain and give effect to the intentions of the parties as expressed in the agreement. Goff, 758 S.W.2d at 825; see Wesson, 641 S.W.2d at 905; Gibson, 605 S.W.2d at 339. At trial, Munson testified that his motivation for entering into the agreement was for his cattle to gain weight. Wallace testified that he knew that Munson likely entered into the pasturage agreement so that the cattle would gain weight and make a profit. Thus, we conclude that the parol evidence established that “adequate feed” meant an amount of food sufficient that the cattle would gain weight. Therefore, we hold that the contract was enforceable. If the cattle lost weight while being pastured on Wallace’s property, as they did, clearly they did not receive “adequate feed” as that term was understood by the parties to the contract. Accordingly, we find appellant breached the pasturage agreement. We overrule appellant’s first issue. By his second issue, appellant contends that the trial court erred in considering evidence regarding the fair market value of appellee’s cattle because the evidence was not disclosed to appellant in discovery. We review the trial court's evidentiary rulings under an abuse of discretion standard. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). Unless the trial court's erroneous evidentiary ruling probably caused the rendition of an improper judgment, we will not reverse the ruling. Id. When a party fails to make, amend, or supplement a discovery response in a timely manner, sanctions are appropriate. Tex. R. Civ. P. 193.6(a)(1); see Matagorda County Hosp. Dist. v. Burwell, 94 S.W.3d 75, 81 (Tex. App.–Corpus Christi 2002, no pet.). The exclusion of the evidence is the sole remedy for not timely supplementing discovery. Tex. R. Civ. P. 193.6(a)(1); see Burwell, 94 S.W.3d at 81; Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). The remedy is mandatory and automatic. See Alvarado, 830 S.W.2d at 914. An exception to the rule exists when the court finds there was good cause for the failure to amend or supplement, or that the failure will not unfairly surprise or prejudice the other party. Tex. R. Civ. P. 193.6(a)(1); Burwell, 94 S.W.3d at 81. At trial, appellee offered evidence of his damages based on the fair market value of the cattle, both before and after being pastured on appellant’s land. Before trial, appellee had represented that his measure of damages would be based on the cost of recapturing the lost weight of the cattle. The record reflects, however, that appellant was well aware of the fair-market-value measure of damages because prior to trial, appellant brought to appellee’s attention a case identifying the fair-market-value method as the proper measure of damages in a case involving a pasturage contract. See J.B. Wallis & Co. v. Wallace, 92 S.W. 43, 44 (Tex. Civ. App. 1905, no writ). Additionally, while taking appellee’s deposition, appellant questioned appellee about the possibility of using fair market value as a measure of damages. Therefore, we conclude appellant was not unfairly surprised or prejudiced by evidence concerning the fair market value of the cattle. See Tex. R. Civ. P. 193.6(a)(1); Burwell, 94 S.W.3d at 81. The trial court properly allowed the admission of evidence as to the fair market value of the cattle. See Tex. R. Civ. P. 193.6(a)(1); Burwell, 94 S.W.3d at 81. We overrule appellant’s second issue. By his third issue, appellant contends that the trial court improperly considered evidence of attorney’s fees. The "trial court has broad discretion to determine admissibility" of expert testimony and the appellate court should "reverse only if there is an abuse of that discretion." Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); see Llanes v. Davila, 133 S.W.3d 635, 638 (Tex. App.–Corpus Christi 2003, pet. ref’d). An abuse of discretion occurs only when a trial court's decision is "arbitrary, unreasonable, and without reference to guiding rules and principles." Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). A party may request disclosure of the general substance of an expert’s mental impressions and opinions as well as a brief summary of the basis for them. See Tex. R. Civ. P. 194.2(f). Appellee identified his attorney as an expert who would testify as to attorney’s fees. According to appellant, appellee failed to identify the expert’s mental impressions and opinions because appellee did not disclose the amount of time expended thus far, the hourly rate charged, or expenses. While we agree that appellee should have provided this information under rule of civil procedure 194.2(f), we cannot say that the lack of information unfairly prejudiced or surprised appellant. See Tex. R. Civ. P. 194.2(f); Burwell, 94 S.W.3d at 81. Appellant knew that appellee’s attorney planned to testify regarding attorney’s fees. The trial court’s decision to allow the testimony was not "arbitrary, unreasonable, and without reference to guiding rules and principles." Goode, 943 S.W.2d at 446. Therefore, the trial court did not abuse its discretion in allowing the testimony. Wilkins, 47 S.W.3d at 499; Llanes, 133 S.W.3d at 638. We overrule appellant’s third issue. The JUDGMENT of the trial court is AFFIRMED. LINDA REYNA YAÑEZ Justice Memorandum opinion delivered and filed this the 26th day of August, 2004.