Aztec Services, Inc. v. Quintana-Howell Joint Venture

OPINION ON MOTION FOR REHEARING

Appellant, in his motion for rehearing, contends that we committed various errors.

We did not hold that the non-mov-ant in a Summary Judgment is required to *163file a response to a Motion for Summary Judgment. However, we did hold that, pursuant to City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979), if the non-movant wishes to contend on appeal that Summary Judgment was improperly granted, and does not file a written response to the Motion for Summary Judgment, the only issue before the appellate court is whether the grounds expressly presented to the trial court by the movant’s motion are insufficient as a matter of law to support Summary Judgment. Other issues raised by the non-movant in the appellate court must have first been raised in the trial court. In the case at bar, no other issues were raised by the appellant in the trial court since his response was ordered stricken because it was not timely filed. See: Fisher v. Capp, 597 S.W.2d 393 (Tex.Civ.App.—Amarillo 1980, writ ref’d n. r. e.).

The interpretation of a contract becomes a fact issue to be resolved by extrinsic evidence only when the application of pertinent rules of construction leave a genuine uncertainty as to which of two meanings is proper. Harris v. Rowe, 593 S.W.2d 303 (Tex.1979). When a question relating to the construction is presented, the Court should consider the wording of the instrument in the light of the surrounding circumstances and apply appropriate rules of construction to settle the meaning of the contract. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515 (Tex.1968). However, the consideration of the facts and circumstances surrounding the execution of a contract is simply an aid in the construction. When the language of the contract appears to be capable of only a single meaning under pertinent rules of construction, the Court will confine itself to the writing alone. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, Tex. (1981). Thus, in the contract before us, the contract being unambiguous, and the contract having no definite term, it can be terminated by either party at any time. Clear Lake City Water Authority v. Clear Lake Utilities Company, 549 S.W.2d 385 (Tex.1977).

We adhere to our original disposition of the case, and appellant’s Motion for Rehearing is denied.