SAFEWAY STORES, INC., TOM THUMB STORES, INC., AND CULLUM COMPANIES INC., Appellants v. TYCHER INVESTMENTS, INC., Appellee

Reversed and Remanded and Opinion filed December 12, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00400-CV
............................
SAFEWAY STORES, INC., TOM THUMB STORES, INC., AND CULLUM
 
COMPANIES INC., Appellants
V.
TYCHER INVESTMENTS, INC., Appellee
 
.................................................................
On Appeal from the 95TH DISTRICT COURT
Dallas County, Texas
Trial Court Cause No. 87-7030-D
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O P I N I O N
Before Justices Stewart, Baker, and Kinkeade
Opinion By Justice Baker
        
        This appeal involves the construction of a lease agreement between Tycher Investments, Inc. and Safeway Stores, Inc. The trial court found the relevant paragraph ambiguous and rendered summary judgment for Tycher, holding that Safeway could not sublease the property to Tom Thumb Stores, Inc. without Tycher's consent. Safeway contends that the trial court erred in: 1) denying Safeway's motion for summary judgment; 2) granting Tycher's motion for summary judgment; 3) cancelling the lease between Safeway and Tycher because there were no pleadings or proof to support that relief; and 4) denying Safeway's request for attorney's fees.
        The issue of whether Safeway may sublease or assign the lease without Tycher's consent depends upon the construction of paragraph thirteen of the Tycher/Safeway lease. This paragraph appears as follows:
except to another supermarket      13. Assignment and subletting. Lessee shall not assign this lease nor/sublet the leased premises without lessor's written consent, which shall not be unreasonably withheld, except that lessee may, without lessor's consent, assign this lease or sublet the leased premises to any affiliated or successor company, or sublet portions of the leased premises to concessionaires. If lessee assigns this lease, lessee shall remain liable as a surety to lessor for full performance of lessee's obligation. Should lessee want to assign to another supermarket, will give lessor 60 days' notice & lessor shall have right to cancel.
 
In the trial court, Safeway contended that the assignment and subletting clause is unambiguous in its intent to establish its right to sublease the premises to another supermarket without the lessor's consent. Tycher argued and the trial court agreed that the clause is ambiguous because it is susceptible to two or more interpretations. The trial court concluded that the clause failed to clearly establish the parties' intent to overcome section 91.005 of the Property Code forbidding the assignment or sublease of a lease without the landlord's prior consent. See Reynolds v. McCullough, 739 S.W.2d 424 (Tex. App.--San Antonio 1987, writ denied); Young v. De La Garza, 368 S.W.2d 667 (Tex. Civ. App.--Dallas 1963, no writ); Tex. Prop. Code Ann. § 91.005 (Vernon 1984). The trial court held that the sublease was void and cancelled the Tycher/Safeway lease.
        For a summary judgment to be proper, the movant must prove that there exists no genuine issues of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985); Tex. R. Civ. P. 166a(c). When both sides have filed motions for summary judgment, the reviewing court may determine whether the granting or denial of any of the motions was error and in a proper case render judgment for the losing party as a matter of law. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex 1988); Tobin v. Garcia, 316 S.W.2d 396, 400-01 (Tex. 1958).
        The question of whether a contract is ambiguous is a question of law to be decided by the court. R&P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980). If a written contract is so worded that a court may properly give it a certain or definite legal meaning or interpretation, it is not ambiguous. A contract is ambiguous only when the application of pertinent rules of interpretation result in genuine uncertainty as to which one of two or more meanings is the proper meaning. R&P, 596 S.W.2d at 519; Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 517, 243 S.W.2d 154, 157 (1951). The primary concern in interpreting a contract is ascertaining and giving effect to the intentions of the parties as expressed in their agreement. R&P, 596 S.W.2d at 518. Although the entire contract should be considered so that its parts are interpreted together with all other parts, the parties' intent concerning a particular matter may be determined from only one portion of the contract. Monesson v. Champion Internat'l Corp., 546 S.W.2d 631, 636 (Tex. Civ. App.--Tyler 1976, writ ref'd n.r.e.). A contract is to be interpreted in accordance with its plain language. General Am. Indem. Co. v. Pepper, 161 Tex. 263, 264, 339 S.W.2d 660, 661 (1960).
        In our view, the sentence in question is unambiguous. An ordinary reading of the sentence and application of ordinary English language construction to it permits the subletting of the lease to other supermarkets without the lessor's consent. However, the clause does not permit the assigning of the lease to other supermarkets without the prior written consent of the lessor which, in such a case, will not be unreasonably withheld. This interpretation is bolstered by the legal distinction between a sublease and an assignment. See Amco Trust, Inc. v. P.C. Naylor, 317 S.W.2d 47, 50 (Tex. 1958). We hold that the trial court erred in concluding that the assignment/subletting clause was ambiguous. We hold that the granting of Tycher's motion for summary judgment was improper. We sustain Safeway's second point of error.
        In determining whether the court erred in denying Safeway's motion, we must find that Safeway has proved all the essential elements of its cause of action. Safeway contends that it has proved as a matter of law that it could sublease the property without Tycher's consent. However, the record reflects that Tycher's response to Safeway's cross-motion controverted Safeway's allegation that the Safeway/Tom Thumb agreement was a sublease. Tycher asserts its controverting summary judgment evidence created an issue on this question. In our view, this issue has not been resolved, and we cannot render judgment for Safeway on its cross-motion for summary judgment. We overrule Safeway's first point of error.
        Because of our disposition of Safeway's first two points of error, it is unnecessary to consider its remaining points. We reverse the trial court's judgment and remand the cause for further proceedings.
 
                                        
                                                          JAMES A. BAKER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
890400F.U05
 
 
File Date[12-12-89]
File Name[890400F]