J. Rodney Black v. William R. Bruner--Appeal from 131st Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00733-CV
J. Rodney BLACK,
Appellant
v.
William R. BRUNER,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-01848
Honorable Solomon Casseb, Jr., Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: March 5, 2003

REVERSED AND REMANDED

In this restricted appeal, J. Rodney Black challenges the trial court's summary judgment in favor of William R. Bruner ("Bruner"). In a restricted appeal, we review four elements: (1) notice filed within six months of the date of judgment; (2) by a party to the suit; (3) who did not participate at trial; and (4) the error complained of must be apparent from the face of the record. Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). In this case, notice was timely filed by Black, who was a defendant in the suit and who did not participate at trial. The sole remaining issue is whether the error complained of is apparent on the face of the record. See Norman Communications, 955 S.W.2d at 270. Black contends that error is apparent on the face of the record because the record demonstrates that Bruner was not entitled to summary judgment based on the evidence he presented. See Havens v. Ayers, 886 S.W.2d 506, 510 (Tex. App.--Houston [1st Dist.] 1994, no writ) (finding error apparent on face of record where record contained no evidence to support one of the elements essential to movant's claim); Mora v. Southwestern Bell Media, Inc., 763 S.W.2d 527, 529 (Tex. App.--El Paso 1988, no writ) (failure of summary judgment proof appears on the face of the record). We agree.

Bruner sued Black for contractual indemnity under two agreements. One agreement provided for Bruner to be indemnified by WBB Enterprises, L.C., a Texas limited liability company of which Black is a member. The other agreement provided for Bruner to be indemnified by Ground Stabilizers, L.P., a Texas limited partnership of which WBB is the general partner. As a matter of law, the agreements are not ambiguous. See Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex. 1996) (noting whether contract is ambiguous is question of law).

Both agreements are signed by Black and others as members of WBB. As a member of WBB, Black is not individually liable for the obligations of WBB unless WBB's regulations otherwise provide. See Tex. Rev. Civ. Stat. Ann. art. 1528n, art. 4.03 (Vernon 1997). No summary judgment evidence was presented to prove that WBB's regulations provide that its members are individually liable for WBB's obligations. Accordingly, the agreements did not conclusively establish that Black had any contractual obligation to indemnify Bruner, and Bruner's affidavit to the contrary cannot contradict the express terms of the agreement. See Friendswood Dev. Co., 926 S.W.2d at 283 (parol evidence may not be admitted for the purpose of creating an ambiguity and may not be admitted to contradict the express terms of an unambiguous agreement).

The trial court's judgment is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.

Alma L. L pez, Chief Justice

PUBLISH