Opinion
No. 05-09-00962-CV
Opinion Filed August 2, 2011.
On Appeal from the 429th Judicial District Court Collin County, Texas, Trial Court Cause No. 429-00551-2009.
Before Justices RICHTER, LANG, and FILLMORE.
MEMORANDUM OPINION
This case involves a contract (the "Contract") for the sale of real property in Collin County, Texas (the "property"). After electing to terminate the Contract, appellants Crow-Billingsley Stover Creek, Ltd.; UPB/McKinney, LLC; BCC/McKinney, LLC; 380 North/McKinney, LLC; and Henry/McKinney, LLC (collectively, "appellants") filed a breach of contract suit against appellees SLC McKinney Partners, L.P.; Southern Land Company, LLC; and SLC McKinney GP, LLC (collectively, "appellees") alleging appellees "failed to tender the . . . additional fee pursuant to the Sixth Amendment to the [Contract]." The trial court granted appellees' motion for traditional summary judgment and denied appellants' competing traditional summary judgment motion.
Appellants assert three issues on appeal. In their first and second issues, appellants contend the trial court erred by denying appellants' motion for summary judgment and granting appellees' motion for summary judgment. In their third issue, appellants assert in the alternative that the trial court erred by "concluding that the `exclusive remedy' provision upon which [a]ppellees rely is unambiguous." We decide against appellants on all three issues. The trial court's judgment is affirmed. Because the law to be applied in this case is well settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 6, 2005, appellant Crow-Billingsley Stover Creek, Ltd. and several other entities not involved in this case, acting collectively as "Seller," entered into the Contract with appellee Southern Land Company, LLC as "Purchaser." Pursuant to the Contract, Purchaser had the option to purchase the property from Seller. The Contract provided that it was the intent of the parties that the sale of the property would close within approximately three years. Purchaser agreed to pay Seller an annual option fee equal to seven percent of the purchase price of the property for each of those three years (the "Option Fee"). The Option Fee was calculated to be $1,027,787.20 per year. The Option Fee was due and payable in advance each year, but the Contract allowed Purchaser to defer the payment date up to twelve months for each annual term by providing an irrevocable letter of credit to Seller in the total amount of the annual Option Fee. Appellees complied with that letter of credit and deferral of payment provision for each of the three years following execution of the Contract.
The fee interests in the property to which the Contract pertains were subsequently transferred and came to be held collectively by appellants. Further, the rights and obligations of Southern Land Company, LLC under the Contract were subsequently assigned to appellee SLC McKinney Partners, L.P., of which appellee SLC McKinney GP, LLC is the general partner.
According to the Contract, that calculation was based on the assumption that the property contained 419.505 acres. The Option Fee was subject to adjustment if an "approved Survey" showed that acreage to be incorrect. The record does not show any such adjustment occurred.
Section 10.2 of the Contract provided, in relevant part, Default by Purchaser. In the event Purchaser fails to perform its obligations pursuant to this Contract for any reason except (a) the failure by Seller to perform any of its obligations hereunder, or (b) the termination of this Contract by Seller or Purchaser pursuant to the terms hereof, Seller shall be entitled as its sole and exclusive remedy to terminate this Contract and recover the Earnest Money (together with any interest earned thereon) as liquidated damages and not as a penalty, in full satisfaction of claims against Purchaser hereunder. Seller and Purchaser agree that Seller's damages resulting from Purchaser's default will be difficult to determine and that the Earnest Money is a fair estimate of those damages which has been agreed upon in an effort to cause the amount of said damages to be certain. (emphasis original).
The closing of the sale of the property was initially scheduled to occur on March 5, 2008. However, six amendments to the Contract were executed, ultimately extending the closing date to December 17, 2008. The sixth amendment to the Contract (the "Sixth Amendment"), dated December 12, 2008, required Purchaser to pay an additional fee at closing (the "Additional Fee") calculated as follows: a sum "equal to the product of (x) the Option Fee applicable to said third 12-month period, multiplied by (y) a fraction, the numerator of which is the number of days from March 5, 2008 through the Closing Date, and the denominator of which is 365."
The sale of the property was never consummated. In a January 7, 2009 letter from appellants received by appellees, appellants stated appellees had defaulted "under Section 10.2 of the [Contract]" and "based on such defaults Seller hereby elects to terminate the [Contract]." Appellants demanded appellees pay "the Option Fee and additional fee in the aggregate amount of $1,835,937.60." Appellants' demand for payment of the option fee was subsequently satisfied by the irrevocable letter of credit previously provided by appellees. The Additional Fee was not paid. On February 10, 2009, appellants filed this lawsuit against appellees. Appellants asserted, inter alia, claims for (1) breach of contract based on appellees' nonpayment of the Additional Fee and (2) attorneys' fees. According to appellants, appellees owed them, in relevant part, "the amount of $808,150.60 for the additional fee agreed to in the Sixth Amendment."
Appellees filed a general denial answer and asserted an affirmative defense that "[appellants] are barred, as a matter of law, from recovering damages against [appellees] that are in excess of the earnest money under the contract at issue, which amount, one hundred dollars ($100.00), is the sole and exclusive remedy available to [appellants] under the contract at issue." Additionally, appellees filed a motion for traditional summary judgment pursuant to Texas Rule of Civil Procedure 166a(c). See Tex. R. Civ. P. 166a(c). In that motion, appellees contended they were entitled to summary judgment on appellants' breach of contract claim for three reasons: (1) the parties are bound by the plain meaning of the Contract, which "specifies Seller's sole and exclusive remedy in the event the parties do not consummate the transaction," and the Contract does not provide for the damages sought by appellants; (2) the clear and unambiguous language of the Contract specifies that the sole and exclusive remedy available to Seller is the "Earnest Money"; and (3) appellants exercised their rights under the Contract and terminated the Contract, "thus requiring [appellants] to retain the Earnest Money as liquidated damages." Appellants filed a response to appellees' motion and, in addition, filed their own motion for traditional summary judgment. Appellants contended they were entitled to summary judgment because "the evidence establishes as a matter of law that [appellees] have breached the Sixth Amendment to [the Contract] by failing to pay the Additional Fee on December 17, 2008." Further, appellants argued appellees' "exclusive remedy" defense "fails under the general rules of contract construction." According to appellants, "the exclusive remedy provision is only applicable if [appellants] are suing for [appellees'] failure to perform an obligation pursuant to the Original Contract" (emphasis original), and the obligation to pay the Additional Fee was not such an obligation. Additionally, appellants asserted that "looking at the Original Contract as a whole (and not at one provision in isolation), it is clear that the parties never intended for the Earnest Money to serve as the sole, exclusive remedy for any failure by [appellants] to pay a fee for holding the Property." Finally, appellants argued appellees' interpretation fails because "it would amount to a forfeiture."
After a hearing, the trial court signed a "final, appealable" order in which it granted appellees' motion for summary judgment in its entirety, denied appellants' summary judgment motion in its entirety, and "ordered, adjudged, and decreed" that appellants take nothing on their claims. This appeal timely followed.
II. APPELLANTS' ISSUES A. Standard of Review and Applicable Law 1. Summary Judgment
Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary judgment, the movant must show that there is no issue of material fact and that it is entitled to judgment as a matter of law. See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). Evidence favorable to the nonmovant is taken as true and every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Id. at 548-49.
When both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). When the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both parties and determine all questions presented. Id. The reviewing court should render the judgment that the trial court should have rendered or reverse and remand if neither party has met its summary judgment burden. Id. If a defendant moves for summary judgment on an affirmative defense, it must conclusively establish each essential element of the affirmative defense. Selz v. Friendly Chevrolet, Ltd., 152 S.W.3d 833, 836 (Tex. App.-Dallas 2005, no pet.) ("To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action."). Similarly, if a party seeks to avoid summary judgment by way of an affirmative defense, it must come forward with summary judgment evidence sufficient to raise a fact issue on each element of its affirmative defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).
2. Contract Interpretation
The interpretation of an unambiguous contract is a question of law, which we review de novo. See MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 650-51 (Tex. 1999). When the parties disagree over the meaning of an unambiguous contract, the court must determine the parties' intent by examining and considering the entire writing in an effort to give effect to the parties' intentions as expressed in the contract. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Nicol v. Gonzales, 127 S.W.3d 390, 394 (Tex. App.-Dallas 2004, no pet.). The parties' intent must be taken from the agreement itself, and the agreement must be enforced as written. Wells Fargo Bank, Minn., N.A. v. N. Cent. Plaza I, L.L.P., 194 S.W.3d 723, 726 (Tex. App.-Dallas 2006, pet. denied); Nicol, 127 S.W.3d at 394; see also Nat'l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995) (only where contract is first determined to be ambiguous may courts consider parties' interpretation or admit extraneous evidence to determine true meaning of instrument). Further, under the "Four Corners Rule," the parties' intent must be "ascertained from the instrument as a whole and not from isolated parts thereof." Calpine Producer Servs., L.P. v. Wiser Oil Co., 169 S.W.3d 783, 787 (Tex. App.-Dallas 2005, no pet.). All writings that pertain to the same transaction will be considered together, even if they were executed at different times. DeWitt Cnty. Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 102 (Tex. 1999). Unless the agreement shows that the parties used a term in a technical or different sense, we give the terms their plain, ordinary, and generally accepted meaning. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). "Courts will not declare a forfeiture unless they are compelled to do so by language which can be construed in no other way." Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 530 (Tex. 1987).
When a contract contains an ambiguity, the granting of a motion for summary judgment is improper because the interpretation of the instrument becomes a fact issue. See Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979). If a written instrument is so worded that it can be given "a certain or definite legal meaning or interpretation," then it is not ambiguous. Coker, 650 S.W.2d at 394. "A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation." Las Colinas Obstetrics-Gynecology-Infertility Ass'n, P.A. v. Villalba, 324 S.W.3d 634, 640 (Tex. App.-Dallas 2010, no pet.); accord Seagull Energy E P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). A disagreement over the meaning of a contract provision does not render the provision ambiguous. See Nicol, 127 S.W.3d at 394. The question of whether a contract is ambiguous is a question of law, which is reviewed de novo. See MCI Telecomms. Corp., 995 S.W.2d at 650.
B. Analysis 1. Denial and Granting of Parties' Respective Summary Judgment Motions
Because appellants assert a combined argument as to their first and second issues, we address those two issues together. In those issues, appellants contend the trial court erred by (1) denying appellants' motion for summary judgment "when Appellants' summary judgment evidence conclusively established each element of their breach of contract claim, and Appellees failed to raise a fact issue on any defense" and (2) granting appellees' motion for summary judgment "when the unambiguous language of the contract at issue does not support the affirmative defense urged by Appellees."
First, appellants contend the language in section 10.2 that limits their relief to liquidated damages is inapplicable because they are suing appellees "for breaching the Sixth Amendment to Contract of Sale, which is supported by independent consideration and which was entered into almost four years after the Original Contract." According to appellants, "the obligation to pay the Additional Fee does not appear anywhere in the Original Contract, and, therefore, cannot be an obligation `pursuant to the [Original] Contract,' which is required to implicate Section 10.2 of the Original Contract." Second, appellants argue that "looking at the Original Contract as a whole (and not at one provision in isolation), it is clear that the parties never intended for the Earnest Money to serve as the sole, exclusive remedy in any event for any failure by Appellees to pay a fee for holding the Property." Finally, appellants assert that denying them the Additional Fee in this case would constitute a forfeiture, which this Court must avoid.
Appellees contend "the Sixth Amendment is, by its own terms, still subject to the Exclusive Remedy Clause of Section 10.2 of the Option Contract." According to appellees, section 10.2 "unambiguously means as follows: in the event that [Purchaser] failed to perform, [Seller's] `sole and exclusive remedy' is to terminate the contract and retain the Earnest Money `in full satisfaction of claims against [Purchaser] hereunder.'" (emphasis original). As to the issue of forfeiture, appellees respond (1) no forfeiture occurred because appellants received consideration for pushing back the closing date under the Sixth Amendment in the form of the Additional Fee appellants would have received if the sale had closed and (2) even if this Court concludes appellees' failure to pay appellants the Additional Fee somehow amounts to a forfeiture, "the Court must nonetheless give effect to that forfeiture because it is compelled to do so by the plain language of Section 10.2."
Now we proceed with our analysis of the Contract language. We must determine whether the Sixth Amendment is an amendment of and subject to the terms of the original contract so that section 10.2 is appellants' exclusive remedy upon appellees' default of the Sixth Amendment and appellants' termination of the Contract. In doing so, we must take the parties' intent from the agreement itself. See Wells Fargo Bank, Minn., N.A., 194 S.W.3d at 726; Nicol, 127 S.W.3d at 394; see also Nat'l Union Fire Ins. Co., 907 S.W.2d at 520.
The first paragraph of the Contract identifies the "contract" and the parties to it, stating, "This Contract of Sale (this `Contract') is entered into by [Seller] and [Purchaser]." (emphasis original). Two provisions critical to our analysis follow. Section 10.2 provides, in part, that "[i]n the event Purchaser fails to perform its obligations pursuant to this Contract for any reason . . . Seller shall be entitled as its sole and exclusive remedy to terminate this Contract and recover the Earnest Money." In section 11.5, titled "Amendment," the Contract states, in part,
[T]his Contract may not be modified or amended, except by an agreement in writing signed by the Seller and Purchaser. The parties may waive any of the conditions contained herein or any of the obligations of the other party hereunder, but any such waiver shall be effective only if in writing and signed by the party waiving such conditions or obligations. The Sixth Amendment begins with this statement that identifies it and the parties: "This Sixth Amendment to Contract of Sale (this `Amendment') is entered into by [Seller] and [Purchaser]." The amendment defines the term "Original Contract" as "that certain Contract of Sale dated as of January 6, 2005" and the parties recite in detail the subject matter of the "Contract of Sale" and the assignment and five amendments pertaining thereto. Then, the Sixth Amendment states "[t]he Original Contract, as so amended and assigned, is herein called the Contract and each capitalized term used, but not expressly defined, herein shall have the same meaning attributed to such term in the Contract." The final recital in the Sixth Amendment states, "WHEREAS, Seller and Purchaser now desire to amend the Contract as set forth herein." (emphasis original).
Paragraph two of the Sixth Amendment provides for payment of the Additional Fee at closing. Paragraph three of that amendment states, in part, "Seller has no right to terminate the Contract under the terms of the Contract, except as set forth in Sections 3.2 and 10.2 of the Contract." Finally, in paragraph five, the Sixth Amendment states Except as specifically set forth herein, all other terms and conditions set forth in the Contract shall remain the same, in full force and effort [sic]. In the event of any conflict between the terms of this Amendment and the terms of the Contract, the terms of this Amendment shall control.
Section 3.2 of the Contract provides generally for termination in the event that the option to purchase is not exercised by Purchaser or the Option Fee is not paid. The parties do not contend that section is pertinent to our decision in this case.
The Sixth Amendment is signed by the parties to this appeal as "Seller" and "Purchaser."
Appellants assert section 10.2 is applicable only to the "Original Contract" and does not apply to the obligation to pay the Additional Fee in the Sixth Amendment. In support of that position, appellants argue (1) "[t]he first sentence of section 10.2 of the Original Contract begins, `In the event Purchaser fails to perform its obligations pursuant to this Contract. . . .' (emphasis added)" and (2) "[i]n the first paragraph of the Original Contract, the parties expressly defined the `Contract' to be the January 6, 2005 Contract of Sale with Southern Land." Further, in their reply brief in this Court, appellants contend that "[i]n view of the circumstances existing at the time the parties agreed to Section 10.2," there is no basis for applying that section to "a promise made by Appellees four years later."
We cannot agree with appellants' interpretation of the provisions at issue. At the time the Contract was executed, amendment of the Contract was specifically contemplated in section 11.5 quoted above.
The express language of the Sixth Amendment preserves all terms not specifically modified or amended. The rights of Seller to terminate the "Contract" are expressly described in the Sixth Amendment as being limited to "Sections 3.2 and 10.2 of the Contract." Appellants identify no change or modification to section 10.2 in the Sixth Amendment, nor do they identify language in the Sixth Amendment that deletes or waives the agreed limitation of the remedies of Seller. Accordingly, we conclude the Sixth Amendment is a written amendment of the Contract pursuant to section 11.5. Additionally, nothing in section 10.2 or any other provision at issue indicates section 10.2 was to be limited in its application to the "Original Contract" as it existed prior to execution of the amendments.
As noted above, the first paragraph of the Contract identifies it and the parties, stating, "This Contract of Sale (this `Contract') is entered into by [Seller] and [Purchaser]." (emphasis original). While appellants contend that "[i]n the first paragraph of the Original Contract, the parties expressly defined the `Contract' to be the January 6, 2005 Contract of Sale with Southern Land," there is in fact no date mentioned in the first paragraph of the Contract. The Sixth Amendment refers directly back to the Contract and recites in detail the subject matter of the "Contract of Sale" and the assignment and five amendments pertaining thereto. Then, it makes plain it is an amendment to the Contract, stating "[t]he Original Contract, as so amended and assigned, is herein called the Contract and each capitalized term used, but not expressly defined, herein shall have the same meaning attributed to such term in the Contract." There is nothing in the Sixth Amendment indicating it is to be considered separate from the Contract. Further, the section of the Contract providing for amendment, section 11.5, makes no statement that any written amendments will be deemed separate from the Contract. Rather, section 11.5 expressly provides only that any waiver of "any of the conditions . . . or any of the obligations" must be written. We conclude the provisions at issue unambiguously provide that section 10.2 is applicable to the Sixth Amendment. See Coker, 650 S.W.2d at 393.
Next, we address appellants' contention that the parties did not intend for the Earnest Money to serve as the sole, exclusive remedy under the circumstances at issue. Appellants assert (1) the "default" at issue here is appellees' failure to pay an agreed specific sum of money, and thus the resulting damages are not "difficult to determine" like the damages contemplated in section 10.2 and (2) there was "no risk" under the "Original Contract" that appellants would not be paid the Option Fee for holding the property for appellees, and the parties' agreement should be interpreted to provide for a similar lack of risk as to the Additional Fee. Again, we cannot agree with appellant's position. Section 10.2 expressly states that the remedy therein is the "sole and exclusive" remedy of Seller upon default by Purchaser. It also provides in part, "Seller and Purchaser agree that Seller's damages resulting from Purchaser's default will be difficult to determine and that the Earnest Money is a fair estimate of those damages which has been agreed upon in an effort to cause the amount of said damages to be certain." That section is the only provision of the Contract in which remedies upon default by Purchaser are addressed. The remedies provision is not in conflict with any other provision of the Contract and it was in no way amended or modified by any language in the Sixth Amendment. Further, payment of the Additional Fee was addressed only in the Sixth Amendment and specifically only in paragraph two of the Sixth Amendment.
That paragraph two stated only that the Additional Fee was to be paid at closing. Appellants' contention that the limitations of section 10.2 should not apply to the claim for the Additional Fee based upon an alleged absence of difficulty of calculating damages or the alleged absence of risk associated with payment is contrary to the unambiguous language in the contract documents before us. The words appellants use and the meaning they attribute to the agreement would require us to totally ignore the directions of section 10.2. We will not do that. We cannot interpret an agreement other than from the words written within the four corners of the agreement. See Coker, 650 S.W.2d at 393; Nicol, 127 S.W.3d at 394; see also Nat'l Union Fire Ins. Co., 907 S.W.2d at 520. For these reasons, we agree with appellees' interpretation of section 10.2.
Finally, we address appellants' contention that appellees' interpretation of the Contract "fails because it would amount to a forfeiture." According to appellants, denying them a claim for the Additional Fee would constitute a forfeiture because, after fully performing their obligation under the Sixth Amendment by holding the property for appellees, they will have received "no consideration" from appellees under the Sixth Amendment.
In support of this position, appellants cite us case law stating, "Courts will not declare a forfeiture unless they are compelled to do so by language which can be construed in no other way." Reilly, 727 S.W.2d at 530. However, assuming without deciding that the nonpayment of the Additional Fee in this case indeed constitutes a forfeiture, we conclude, based on our analysis above, that the plain language of section 10.2 can be construed in no other way. See id. Applying the established principles of contract interpretation, we conclude the parties' intent as expressed in the Contract was to limit appellants to the recovery of their earnest money in the event of termination by appellants under the circumstances at issue. See Coker, 650 S, W.2d at 393; Nicol, 127 S.W.3d at 394. No written amendment or modification in this record states to the contrary. Accordingly, we conclude the affirmative defense asserted by appellees was conclusively established. See Selz, 152 S.W.3d at 836. We decide against appellants on their first and second issues.
2. Ambiguity of Contract
In their third issue, appellants contend, in the alternative, that the trial court erred by concluding the "exclusive remedy" provision upon which appellees rely is unambiguous. Appellants argue their own interpretation of the Contract is, "at a minimum," a reasonable one, demonstrating the Contract is "susceptible to two or more reasonable interpretations." Hence, they argue, the Contract is ambiguous and material issues of fact remain to be decided. Appellees respond (1) the Contract is not ambiguous and (2) appellants "neither plead nor argued ambiguity" in the trial court. The record shows that in the trial court, appellants did not plead or otherwise argue the Contract is ambiguous. Appellants contend it is "inconsequential" that they did not plead ambiguity in the trial court because "it is not necessary to plead ambiguity at the trial court level before raising the issue in this Court." In support of that position, appellants cite Sage Street Associates v. Northdale Construction Co., 863 S.W.2d 438, 445 (Tex. 1983). However, the court in Sage Street Associates stated "[a] court may conclude that a contract is ambiguous even in the absence of such a pleading by either party." Id. (emphasis added). Further, unlike this case, Sage Street Associates involved an appeal after a jury trial in which ambiguity was not pled, but was tried by consent. See id.
Appellants certainly do not contend the issue was somehow "tried by consent." We cannot agree Sage Street Associates stands for the proposition that it is "not necessary" to plead ambiguity at the trial court level in order to raise that issue in this Court in a summary judgment case. See Tex. R. Civ. P. 166a(c) (in summary judgment proceedings, "[i]ssues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal"); cf. Simba Ventures Shreveport, L.L.C. v. Rainier Capital Acquisitions, L.P., 292 S.W.3d 173, 178 (Tex. App.-Dallas 2009, no pet.) (considering ambiguity for first time on appeal in summary judgment case and citing Sage Street Associates for proposition that court "may" do so).
Moreover, in their argument on this issue, appellants do not explain why their interpretation of the Contract which they describe as "reasonable" requires a conclusion the Contract is ambiguous. Rather, they merely refer this Court to preceding sections of their appellate brief and reply brief. The law is clear that a disagreement over the meaning of a contract provision does not render the provision ambiguous. See Nicol, 127 S.W.3d at 394. Further, "[t]he parties' intent must be taken from the agreement itself, not from the parties' present interpretation, and the agreement must be enforced as it is written." Id.
We have carefully analyzed above appellants' contentions as to how the provisions of the documents should be construed. Those contentions were raised in the context of interpretation of unambiguous language. There was no mention of the Contract language appellants cited being anything other than clear. In fact, appellants argue appellees ignore the "plain language of the Original Contract." Those contentions do not demonstrate ambiguity. We decide against appellants on their third issue.
III. CONCLUSION
We conclude the trial court did not err by (1) denying appellants' motion for summary judgment, (2) granting appellees' motion for summary judgment, or (3) concluding the "exclusive remedy" provision upon which appellees rely is unambiguous. We decide appellants' three issues against them.
The trial court's judgment is affirmed.