DIXIE DOCK ENTERPRISES AND JOANN SKOLD D/B/A DIXIE DOCK ENTERPRISES, Appellants v. OVERHEAD DOOR CORPORATION D/B/A W.B. MCGUIRE, Appellee

Reversed and remanded; Opinion issued February 21, 2002
        
 
                                
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-01-00639-CV
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DIXIE DOCK ENTERPRISES AND JOANN SKOLD
D/B/A DIXIE DOCK ENTERPRISES, Appellants
V.
OVERHEAD DOOR CORPORATION D/B/A W.B. MCGUIRE, Appellee
.............................................................
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DV99-07372-I
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OPINION
Before Justices Bridges, Farris,   See Footnote 1  and Rosenberg   See Footnote 2 
Opinion By Justice Farris
        In two points of error, Dixie Dock Enterprises and Joann Skold d/b/a Dixie Dock Enterprises (collectively Dixie Dock) appeal the trial court's granting of summary judgment to Overhead Door Corporation d/b/a W.B. McGuire (Overhead) declaring Overhead properly terminated the contract between the parties and determining Dixie Dock failed in its response to Overhead's no-evidence motion for summary judgment to offer any probative evidence that Dixie Dock suffered damages from Overhead's alleged failure to comply with its contractual obligations. We conclude that the contract between the parties could not be terminated until July 24, 2003 and that Dixie Dock produced more than a scintilla of evidence that it suffered damage from Overhead's alleged breach of contract. We reverse the trial court's granting of Overhead's traditional and no-evidence motions for summary judgment and remand this case for further proceedings.
Factual and Procedural Background
        On July 24, 1998, Dixie Dock and Overhead entered into a written contract for Overhead to purchase a minimum of fifty dock seals or shelters every month from Dixie Dock. Overhead allegedly failed to purchase all the required items and, on April 30, 1999 and July 30, 1999, notified Dixie Dock that Overhead was terminating the contract effective July 24, 2000. Dixie Dock responded, contending the parties had agreed to an initial term of five years and the contract was not subject to termination until July 24, 2003.
        The parties are familiar with this case's convoluted procedural history, and we will not repeat it here. On December 14, 2000, the trial court resolved the substantive issues by granting Overhead's no-evidence motion for summary judgment and amended motion for summary judgment and denying Dixie Dock's amended motion for summary judgment. The trial court, therefore, concluded, as a matter of law, that (1) the contract could be terminated on July 24, 2000, (2) Overhead properly terminated the contract, and (3) Dixie Dock failed to produce a scintilla of probative evidence that it suffered damages due to any failure by Overhead to perform under the contract. The trial court entered final judgment on January 30, 2001, determining that all matters other than attorney's fees and taxable costs had been decided by summary judgment and assessing $36,125.60 against Dixie Dock in attorney's fees and costs. Dixie Dock then brought this appeal.
Standard of Review
        This case involves both no-evidence and traditional motions for summary judgment. Under traditional summary judgment standards, a party moving for summary judgment must establish its right to summary judgment on the issues presented to the trial court by conclusively proving all elements of the movant's claim or defense as a matter of law. See Tex. R. Civ. P. 166a(c); Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000). When both sides move for summary judgment and the trial court grants one motion and denies the other, this Court should review de novo all summary judgment proof, determine all issues presented, and render the judgment that the trial court should have rendered. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
        Because a no-evidence motion for summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no-evidence judgment as we apply in reviewing a directed verdict. Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 683 (Tex. App.-Dallas 2000, no pet.). A no-evidence summary judgment is improperly granted if the non- movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact as to the element on which the motion is based. Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 834 (Tex. App.-Dallas 2000, no pet.).
Contract Interpretation
        Dixie Dock contends in its first issue that the trial court erred in concluding the contract was subject to termination on July 24, 2000 and Overhead properly terminated the contract. At issue is paragraph 2 of the contract which defines the initial term of the contract as two years and provides for renewal of the contract for subsequent two-year terms. Paragraph 2 also provides that either party may terminate the contract at the end of any term by giving 90 days prior written notice of the termination. The parties “changed” paragraph 2 through Appendix “C” which provides that the “contract shall remain in effect until July 24, 2003.” Appendix “C” did not change the renewal and termination provisions in paragraph 2. Overhead contends Appendix “C” sets a maximum five-year period during which the contract would remain in effect. Dixie Dock argues Appendix “C” changed the “initial term” to five years and the contract may not be terminated until July 24, 2003.
        If the language in a contract can be given a certain or definite meaning, it is not ambiguous, and we are obligated to interpret the contract as a matter of law. DeWitt County Elec. Co-op, Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999). An ambiguity does not arise merely because the parties to an agreement advance differing interpretations. See Lopez v. Munoz, Hockema & Reed, 22 S.W.3d 857, 861 (Tex. 2000). The contract is ambiguous only if the application of established rules of construction leaves an agreement susceptible to more than one reasonable meaning. DeWitt County, 1 S.W.3d at 100; Lopez, 22 S.W.3d at 861.
        The objective intent of the parties must be determined from the entire agreement. Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 210 (Tex. 1998); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). If possible, we give effect to all contract provisions so that none will be rendered meaningless. Coker, 650 S.W.2d at 393. We give the language of the contract its plain meaning unless to do so would defeat the parties' intention. Dewitt, 1 S.W.3d at 101.
        The contract between Overhead and Dixie Dock is not ambiguous. The “initial term” of the contract was originally defined in paragraph 2 to be a two-year period. Appendix “C” changed the term of the contract to five years, stating in plain language the contract would remain in effect until July 24, 2003. The plain meaning of the “change” made by Appendix “C” is that the initial term of the contract would be five years and, after the initial term, the contract could be renewed or terminated as provided by paragraph 2.
        We conclude Overhead's interpretation that Appendix “C” was intended to add a maximum term to the contract is not reasonable. The parties in no way evidenced in the contract that a maximum term was included or even necessary. Instead, the parties clearly set out the times and the means by which the contract could be terminated thus insuring it was not a “perpetual” contract.
        The trial court erred in granting Overhead's amended motion for summary on the contract termination issue. We, therefore, sustain Dixie Dock's first issue.
Overhead's No-Evidence Motion For Summary Judgment
        Overhead moved for summary judgment under Texas Rule of Civil Procedure 166a(i) on the ground that Dixie Dock could produce no evidence of damages due to any breach of the contract by Overhead. The general rule is that the victim of a breach of contract should be restored to the position it would have been in had the contract been performed. Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 760 (Tex. App.-El Paso 2000, no pet.). A proper measure of damages for a breach of contract is the loss of contractual profit. Interceramic, Inc. v. S. Orient R. Co., Ltd., 999 S.W.2d 920, 928 (Tex. App.-Texarkana 1999, pet. denied).
        As evidence of the expenses Dixie Dock incurred in reliance on the contract and the profits lost by Dixie Dock due to Overhead's failure to purchase the required items, Dixie Dock offered the September 18, 2000 affidavit of Joann Skold, attached to Dixie Dock's original response to Overhead's no-evidence motion, and certain business records of Dixie Dock including the contract, the records of purchases made by Overhead under the contract, and a summary of Dixie Dock's lost profits, attached to Dixie Dock's amended response.   See Footnote 3  We conclude Dixie Dock produced more than a scintilla of probative evidence regarding its damages from Overhead's alleged breach.
        Overhead contends Joann's September 18, 2000 affidavit may not be considered because Dixie Dock filed a combined amended response to both Overhead's no-evidence and traditional motions for summary judgment. Overhead argues the amended response superceded Dixie Dock's original response thereby precluding the consideration of Joann's affidavit. It is true an amended response to a motion for summary judgment supercedes the previous response. See Frias v. Atl. Richfield Co., 999 S.W.2d 97, 102 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). However, the amended response does not preclude the consideration of the summary judgment evidence attached to the original pleading. See Evans v. First Nat'l Bank of Bellville, 946 S.W.2d 367, 376 (Tex. App.-Houston [14th Dist.] 1997, writ denied); Whitaker v. Huffaker, 790 S.W.2d 761, 763 (Tex. App.-El Paso 1990, writ denied)(“[O]nce filed, an affidavit in support of summary judgment is subject to consideration in connection with a subsequent amended motion even though not attached to the latter.”); McCurry v. Aetna Cas. & Sur. Co., 742 S.W.2d 863, 867 (Tex. App.-Corpus Christi 1987, writ denied). Joann's September 18, 2000 affidavit is part of the summary judgment proof and may be considered in determining whether Dixie Dock carried its burden.   See Footnote 4 
        Further, the same evidence regarding Dixie Dock's lost profits attached to Joann's affidavit as Exhibit A was included in the business records attached to Dixie Dock's amended response. Overhead did not object to Dixie Dock's business records. If a party objects to certain evidence, but later does not object when the same evidence is introduced, the party waives the objection. Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984); Duperier, 28 S.W.3d at 755. By failing to object to Dixie Dock's business records Overhead waived its objection to the chart detailing Dixie Dock's lost profits and that chart is part of the summary judgment record. See Chapman Children's Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 436 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).
        Because Dixie Dock produced more than a scintilla of probative evidence regarding the damages it suffered due to Overhead's alleged breach, the trial court erred in granting Overhead's no-evidence motion for summary judgment.   See Footnote 5  We sustain Dixie Dock's second issue.
Conclusion
        We conclude the contract could not be terminated until July 24, 2003. The trial court, therefore, erred in granting Overhead's amended motion for summary judgment. Further, we conclude Dixie Dock produced more than a scintilla of probative evidence that it suffered damages from Overhead's alleged breach of contract. The trial court, therefore, erred in granting Overhead's no-evidence motion for summary judgment. We remand this case for further proceedings.
 
 
                                                          
                                                          DAVID F. FARRIS
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1         The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
Footnote 2          The Honorable Barbara Rosenberg, Former Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
Footnote 3         The record does not reflect the trial court ruled on Overhead's objections to the September 18, 2000 affidavit, and the affidavit, therefore, remained before the trial court. See Crow v. Rockett Special Util. Dist., 17 S.W.3d 320, 324 (Tex. App.-Waco 2000, pet. denied). Further, Overhead has not objected to this Court regarding the substance of Joann's September 18, 2000 affidavit, and it remains a part of the summary judgment proof. W.H.V., Inc. v. Assoc. Hous. Fin., LLC, 43 S.W.3d 83, 86 n.1 (Tex. App.-Dallas 2001, pet. denied).
Footnote 4         Dixie Dock attached a second, virtually identical affidavit from Joann to its amended response. The trial court sustained Overhead's objections to the second affidavit, striking it from consideration as summary judgment evidence. Overhead contends that it filed the same objections to Joann's first affidavit. However, Overhead was required to object and obtain a ruling every time the objectionable evidence was offered. Duperier v. Tex. State Bank, 28 S.W.3d 740, 755 (Tex. App.-Corpus Christi 2000, pet. dism'd by agr.). By failing to do so, Overhead waived its objection to the September 18, 2000 affidavit.
Footnote 5         Overhead argues Dixie Dock was a full capacity seller and, therefore, suffered no damages from any breach by Overhead. In considering whether Dixie Dock met its burden in response to the no-evidence motion for summary judgment, we consider only the evidence favorable to Dixie Dock and do not consider any controverting evidence offered by Overhead in response to Dixie Dock's traditional motion for summary judgment. Espalin, 27 S.W.3d at 683.