Instone Travel Tech Marine & Offshore v. International Shipping Partners, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 18, 2003
June 12, 2003

Charles R. Fulbruge III
IN THE UNITED STATES COURT OF APPEALS Clerk

FOR THE FIFTH CIRCUIT

___________________

No. 02-20344

INSTONE TRAVEL TECH MARINE & OFFSHORE,

Plaintiff-Appellee-Cross-Appellant,

v.

INTERNATIONAL SHIPPING PARTNERS, INC.

Defendant-Appellant-Cross-Appellee.

______________________________________________

Appeals from the United States District Court
for the Southern District of Texas, Houston Division
______________________________________________

Before WIENER, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

I.

International Shipping Partners, Inc. (“ISP”) is a Florida

corporation that provides passenger ship management services for

vessel owners. As part of its services, ISP provides crews and

makes travel arrangements to get the crew members to and from the

vessels. ISP contracted with Instone Travel Tech Marine &

Offshore (“Instone”), a Texas corporation, in a “Credit
Agreement”, whereby Instone would supply ISP with airline tickets

and related travel products and services.

Between June 23, 2000, and October, 2000, Instone provided

ISP with approximately $52,000 worth of airline tickets that were

never paid. ISP does not dispute that Instone is owed $52,000.

ISP purchased the airline tickets, for which it was never

reimbursed, on behalf of a now-defunct client, Premier Cruise

Lines (“Premier”). ISP asserts that because it purchased the

tickets from Instone in its capacity as an agent of Premier,

Premier, and not Instone, is liable for the cost of the tickets.

Instone, in turn, contends that the express terms of the

Agreement between itself and ISP1 require ISP to reimburse

1
The Agreement between the parties consists of a two-page
printed form prepared by Instone titled “Instone Travel Tech
Marine & Offshore Credit Agreement,” and a typewritten addendum
titled “Additional Clauses to Instone Travel Tech Marine &
Offshore Credit Agreement.” Throughout the Agreement, “Client”
refers to ISP, and “Contractor” refers to Instone. The
Agreement, in part, reads as follows:

INSTONE TRAVEL TECH MARINE & OFFSHORE
CREDIT AGREEMENT

I. CHARGES – Upon approval of Client’s Credit Application,
Contractor shall open an account for the purchase of air
transportation and related services by Client...The value of
tickets and other documents and services purchased...will be
charged to Client’s account. For each transaction or
service that results in a charge to Client’s account,
Contractor shall issue to Client an invoice...

II. CREDIT LIMIT – Contractor shall have the right to establish
a credit limit for Client’s account...

III. PAYMENT – Client will remit the amount of all charges and
credits reflected on each statement within fourteen (14)

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 days of the statement date, and the remittance will be
credited to Client’s account.

IV. SERVICE CHARGES FOR BILLING AND FOR LATE PAYMENT – ...
...
V. REFUND OF TICKET OR OTHER DOCUMENTS – ...
...
VI. REPRESENTATIONS AND WARRANTIES OF CLIENT – Client represents
and warrants to Contractor the following:

A. Contractor Acting As Agent – Client has been advised by
Contractor that, notwithstanding any other provisions
of this Agreement,...Contractor is acting as an agent
for the airline, carrier...or other service provider
and becomes responsible for payment for the ticket or
document immediately upon issuance to Client.
Contractor’s requirement to pay the vendor is
unconditional and does not depend on Client’s ultimate
usage of the ticket or document. Accordingly, Client
acknowledges that it is unconditionally obligated to
pay Contractor for each ticket or document issued to
Client hereunder. Whenever a ticket or document
purchased by Client hereunder is unused...Client
acknowledges that it may seek to recover only from the
carrier or service provider and not from Contractor.

B. Lost Tickets Or Documents – ...
...

VII. TERMIINATION AND SETTLEMENT – This Agreement shall continue
in effect until terminated by either party... Contractor
may, however, terminate it immediately...in the event of a
default by Client....In the event there are unpaid charges
in Client’s account upon termination of this Agreement,
Client agrees to remit the amount of such charges to
Contractor immediately upon receipt of a statement
therefor....

VIII. SUBJECT TO LAW, TARIFFS AND CONDITIONS OF CARRIAGE –
...
...
IX. EFFECTIVE DATE – ...
...
Additional clauses, as attached hereto, are deemed to be
fully incorporated into this agreement. [handwritten, followed by
initials].

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Instone even for those services that it purchased for the benefit

of its clients in its capacity as an agent.

On October 19, 2000, Instone filed a breach of contract suit

against ISP in the 11th Judicial District Court of Harris County,

Texas. ISP removed the case to federal court on the basis of

diversity jurisdiction. The district court granted summary

judgment in favor of Instone, finding that the plain terms of the

Agreement obligated ISP to reimburse Instone for the tickets.

ISP appeals the district court’s grant of summary judgment, and

Instone cross-appeals the district court’s refusal to grant

attorneys’ fees to fund a defense of this appeal.

II.

A district court’s grant of summary judgment is reviewed de

novo. Quorum Health Res., L.L.C. v. Maverick County Hosp. Dist.,

308 F.3d 451, 458 (5th Cir. 2002); Rivers v. Central and South

[separate page]

Additional Clauses to
Instone Travel Tech Marine & Offshore
Credit Agreement

CL V. Add Sentence REFUND OF TICKET OR OTHER
DOCUMENTS.
...
CL. X. Add Clause Client Acting As Agent
Contractor acknowledges that client is acting as agent for
an [sic] on behalf of certain vessels, vessel owners and/or
Charterers.

(emphasis in original).

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West Corporation, 186 F.3d 681, 682 (5th Cir.1999). Summary

judgment is appropriate, when, viewing the evidence in the light

most favorable to the nonmoving party, the record reflects that

no genuine issue of any material fact exists. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-324, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). See also Bridgmon v. Array Sys. Corp., 325 F.3d 572, 576

(5th Cir. 2003). A material fact is one that “might affect the

outcome of the suit under the governing law” and a “dispute about

a material fact is ‘genuine’...if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Sulzer Carbomedics, Inc. v. Oregon Cardio-Devices, Inc., 257 F.3d

449, 456 (5th Cir. 2001) (quoting Anderson, 477 U.S. at 248).

Summary judgment is improper if the evidence would permit a

reasonable jury to return a verdict for the nonmoving party.

Anderson, 477 U.S. at 248; Quorum Health Res., 308 F.3d at 458.

Because the court’s jurisdiction is premised upon diversity,

and the contract provides that “[i]n the event of a dispute, this

Agreement shall be construed and enforced according to the laws

of the State of Texas,” the substantive law of Texas applies.

Gen. Acc. Ins. Co. v. Unity/Waterford-Fair Oaks, Ltd., 288 F.3d

651, 653 (5th Cir. 2002); See Erie R.R. v. Tompkins, 304 U.S. 64,

78-79 (1938).

III.

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 Instone is entitled to summary judgment if there is no

genuine dispute of material fact regarding any of the elements of

its breach of contract claim. See Celotex Corp., 477 U.S. 317.

A successful breach of contract claim consists of: (1) a valid

contract, (2) performed by the plaintiff, and (3) breached by the

defendant, (4) resulting in damage to the plaintiff. Bridgmon,

325 F.3d at 577; Goss v. Bobby D. Assoc., 94 S.W.3d. 65, 68 (Tex.

App. 2002).

ISP acknowledges the existence of a contract, and that

Instone has incurred damages in the amount of $52,000. ISP

contends, however, that its status as an agent, acknowledged in

the Agreement, precludes it from being held financially

responsible for the services that it purchased on behalf of its

principals. ISP asserts that there was a genuine dispute of fact

regarding its liability, and thus whether it’s failure to

reimburse Instone constituted a breach of the Agreement. In the

alternative, ISP contends that the Agreement is ambiguous

regarding its liability for products and services that it

purchased on behalf of vessel owners. Thus, ISP concludes that

summary judgment was improper.

A. Agency Immunity

It is well established that an agent acting for a disclosed

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principal2 is not liable for claims arising out of contracts

executed by the agent on behalf of its principal.3 It is equally

evident, however, that the parties to a contract may alter this

general rule by agreement so that the agent will be liable on the

contract.4 “The mere fact that an agency relationship exists

does not preclude the imposition of personal liability on an

express contract with a third party, even though the contract is

primarily for the benefit of the principal.” United States v.

Gissel, 353 F. Supp. 758, 779 (S.D. Texas, 1973), aff’d, 493 F.2d

27 (5th Cir. 1974). “Where upon a construction of the contract

it is determined that the agent has substituted his own

responsibility for that of his principal, or has pledged his own

responsibility in addition to that of his principal, he will be

2
The question of whether ISP disclosed the identities of its
principals (the vessel owners) and thus is even able to claim
agency immunity in the first place, is a factual question that
Instone conceded for the purpose of summary judgment.
3
Port Ship Serv., Inc. v. Norton, Lilly & Co., Inc., 883
F.2d 23, 24 (5th Cir. 1989); Port Ship Serv., Inc. v. Int’l Ship
Mgmt. & Agencies Service, Inc., 800 F.2d 1418, 1420-1421 (5th
Cir. 1986); Atl. & Gulf Stevedores, Inc. v. Revelle Shipping
Agency, Inc., 750 F.2d 457, 458 (5th Cir. 1985); Lake City
Stevedores, Inc. v. East West Shipping Agencies, Inc., 474 F.2d
1060, 1063 (5th Cir. 1973); Bernson v. Live Oak Ins. Agency, 52
S.W.3d 306, 309 (Tex. App. 2001); Eppler, Guerin & Turner, Inc.
v. Kasmir, 685 S.W.2d 737, 738 (Tex. App. 1985); 3 Tex. Jur. 3d §
185 (2002).
4
George W. Bennett Bryson & Co., Ltd. v. Norton Lilly & Co.,
Inc., 502 F.2d 1045, 1049 (5th Cir. 1974); Murphy v. Cain, 711
S.W.2d 302, 304 (Tex. App. 1986). See Shaughnessy v. D’Antoni,
100 F.2d 422, 424 (5th Cir. 1939).

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bound accordingly. His liability is not predicated upon his

agency, but upon his contract obligations.” Vincent Murphy

Chevrolet Co. v. Auto Auction, Inc., 413 S.W.2d 474, 477-478

(Tex. Civ. App. 1967) (quoting American Nat’l Bank v. American

Loan & Mortgage Co., 228 S.W. 169 (Tex. Comm’n App. 1921), and

citing numerous Texas Court of Civil Appeals cases). See Eppler,

Guerin & Turner, Inc. v. Kasmir, 685 S.W.2d 737, 738 (Tex. App.

1985); Richards Group, Inc. v. Stone Container Corp., 1997 WL

78916 *3 (Tex. App. 1997)(not designated for publication); 3 Tex.

Jur. 3d § 186.

B. The Agreement

Contract interpretation, including the question of whether

the contract is ambiguous, is a legal question, subject to de

novo review. Quorum Health Resources, 308 F.3d at 458; Fina,

Inc. v. ARCO, 200 F.3d 266, 268 (5th Cir. 2000). In construing

the Agreement, we are guided by general principles of contract

interpretation under Texas law. The court’s primary concern is

to give effect to the written expression of the parties’ intent.

General Acc. Ins. Co. v. Unity/Waterford-Fair Oaks, Ltd., 288

F.3d 651, 653 (5th Cir. 2002); Nat’l Union Fire Ins. Co. v. Care

Flight Air Ambulance Serv., Inc., 18 F.3d 323, 328-29 (5th Cir.

1994). In doing so, the court should read all parts of the

contract together to ascertain the agreement of the parties,

ensuring that each provision of the contract is given effect and

-8-
none are rendered meaningless. Int’l Turbine Serv., Inc. v. VASP

Brazilian Airlines, 278 F.3d 494, 497 (5th Cir. 2002); Petula

Associates, Ltd. v. Dolcon Packaging Corp., 240 F.3d 499, 502

(5th Cir. 2001); Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).

“Texas law requires us to ‘peruse the complete document to

understand, harmonize, and effectuate all its provisions.’” Kona

Tech. Corp. v. S. Pac. Trans. Co., 225 F.3d 595, 610 (5th Cir.

2000).

1. Do the terms of the Agreement obligate ISP to reimburse
Instone for purchases it made on behalf of vessel
owners?

Instone maintains that the district court correctly

concluded that the express terms of the contract unambiguously

obligate ISP to pay for the purchases that it made on behalf of

vessel owners. ISP, in response, maintains that such an

interpretation fails to give effect to Provision X, where Instone

acknowledged that ISP is acting as an agent for vessel owners.

Provision X, it maintains, unambiguously releases ISP from

liability.

From within the four corners of the contract, it appears

that ISP did indeed agree to be held liable for the goods and

services it ordered from Instone. The contract is entitled

“Credit Agreement,” and the entire agreement is concerned with

establishing the parameters by which an account, in the name of

ISP, is to be managed. The Agreement makes reference to the

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Client’s [ISP’s] Credit Application, the establishment of the

Client’s credit limit, the requirement that the Client remit

payment within fourteen days of each statement date, and the

method by which refunds and service charges are to be added and

deducted from the Client’s account. The first provision of the

contract contains a blank for the name of the Client.

International Shipping Partners, Inc. is written in the blank.

There is no language regarding credit applications, credit

limits, or the management of accounts for ISP’s principals.

Furthermore, Provision VI.A., labeled “Representations and

Warranties of Client,” states, “Client acknowledges that it is

unconditionally obligated to pay Contractor for each ticket or

document issued to Client hereunder.”5 It is thus evident from

the Agreement that Instone intended ISP to be obligated to pay

for the goods and services that it ordered.6

5
The district court, in supporting its conclusion that ISP
bound itself to pay for each ticket or document, quotes portions
of Provision VI.A. out of context. The court referred to that
provision as stating “‘notwithstanding any other provisions of
this Agreement...[International] acknowledges that it is
unconditionally obligated to pay Contractor for each ticket or
document issued to Client hereunder.’” The phrase
“notwithstanding any other provisions of this Agreement” actually
modifies the portion of Provision VI.A. that continues
“Contractor [Instone] is acting as an agent...and becomes
responsible for payment for the ticket or document immediately
upon issuance to the Client.” ISP thus did not acknowledge an
obligation to pay for the services provided “notwithstanding any
other provisions of the agreement.”
6
This does not mean that Instone did not also intend for
ISP’s principals to be liable for the services purchased on their

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 a. Provision VI.A.

ISP contends that despite its acceptance of liability in

Provision VI.A., the fact that it does so in the midst of a

provision that discusses Instone’s status as an agent for

airlines and other transportation vendors, and Instone’s

unconditional obligation to pay its vendors, mitigates the

phrase’s import. While it would appear, given its placement,

that Instone included the phrase requiring its clients (i.e. ISP)

to accept liability for services rendered to guard against the

possibility that a client would claim that it did not need to pay

for tickets that were unused, lost, or issued for travel on

carriers who subsequently halted service.

The phrase, however, was not modified by any statements that

limited its applicability to such scenarios. Instone’s standard

contract simply does not contemplate that a signatory would

claim, after ordering and consuming the provided services, that

it was not the party from whom Instone should seek payment. In

the end, although the phrase “Client acknowledges that it is

unconditionally obligated to pay Contractor” may have been

included in the Agreement in order to prevent a client from

wriggling out of the duty to pay for the goods that it ordered

for reasons other than those claimed by ISP, this is not a

behalf. That is a question not raised by this appeal and which
we do not address.

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sufficient ground to disregard the clear import of the phrase.

b. Provision X

ISP contends that the district court’s grant of summary

judgment holding it liable under the Agreement ignores the impact

of Provision X, and thus violates the rule of construction that

requires each provision of a contract to be given effect. See In

re El Paso Refinery, LP, 302 F.3d 343, 352 (5th Cir. 2002); Int’l

Turbine Serv., 278 F.3d at 497.

ISP argues that Provision X, which states, “Contractor

acknowledges that client is acting as agent for an [sic] on

behalf of certain vessels, vessel owners and/or Charterers,”

effectively substituted “International Shipping, as agent for its

principals” for the term “Client” everywhere that “Client”

appears in the Agreement. In doing so, continues ISP, Provision

X clarified that ISP would not only purchase services from

Instone as an agent for vessel owners, but also signed the

Agreement itself in its capacity as an agent for vessel owners.

Thus, ISP concludes, the vessel owners on whose behalf it signed

the Agreement are bound by its terms – not ISP.

ISP’s interpretation of Provision X, however, requires two

cognitive leaps that stretch the plain meaning of the provision a

bit too far. First, if ISP intended the term “Client” to mean,

“ISP, as agent for its principals,” then why did it not simply

redefine the meaning of “Client” in Provision X instead of

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cryptically stating “Contractor acknowledges that client is

acting as agent...”? Alternatively, why did ISP not insert “as

agent for its principals” next to its name in the blank that

defines the meaning of “Client” in the first sentence of the

Agreement?

Second, ISP’s contention that Instone’s acknowledgment of

its status as an agent releases it from liability presupposes

that an agent is necessarily not liable on a contract where the

other party is aware that it is acting as an agent. The case law

does not support such an argument. 3 Tex. Jur. 3d § 186 (“An

agent may be personally liable on contracts made for the benefit

of his or her principal...even where the principal is

disclosed.”). See Nagle v. Duncan, 570 S.W.2d 116, 117-18 (Tex.

Civ. App. 1978) (holding attorney liable for fees due court

reporter despite court reporter’s knowledge that the transcript

had been ordered for the client that the attorney represented);

Mediacomp, Inc. v. Capital Cities Communication, Inc., 698 S.W.2d

207, 209-211 (Tex. App. 1985) (holding media buyer liable to

radio station for airtime purchased on behalf of disclosed

client); Kaiser Aluminum & Chemical Corp. v. M/V Zephyros, 1994

WL 589711, *1-2 (E.D. La. 1994)(rejecting agent’s argument that

as a disclosed agent, it was not liable for the debts of its

principal). As previously noted, the general rule that an agent

is not liable for those contracts that it enters on behalf of a

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disclosed principal is overcome when the agent expressly or

implicitly accepts liability. See infra at n. 4. There is thus

nothing inconsistent about the district court’s decision to hold

ISP liable under the Agreement in the face of Provision X’s clear

statement of ISP’s status as an agent. See Kaiser Aluminum &

Chemical Corp. v. M/V Zephyros, 1994 WL 589711, *1-2 (E.D. La.

1994)(rejecting agent’s argument that as a disclosed agent, it

did not become a party to the contract for services that were

provided at its request for the principal). Holding ISP liable

on the Agreement does not deny that ISP entered the Agreement as

an agent for vessel owners, and thus does not render Provision X

meaningless.

While we applaud ISP for its creativity, we do not find its

interpretation of Provision X persuasive. Had ISP intended to

sign the Agreement on behalf of its clients, there were myriad

other, more direct methods of doing so than through the language

of Provision X. ISP’s status as an agent, alone, is insufficient

to override the indicia of liability that pervade the Agreement.

The district court did not err in finding that ISP bound itself

in the Agreement to reimburse Instone for the tickets that it

purchased on behalf of Premier.

2. Is the contract ambiguous?

ISP contends that because its interpretations of Provisions

VI.A. and X are reasonable, the Agreement was ambiguous regarding

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its liability, and summary judgment was inappropriate.7 See In

re El Paso Refinery, LP, 302 F.3d at 352 (noting that if a

contract is ambiguous, a fact issue remains regarding the

parties’ intent). Instone responds that summary judgment was

properly granted because the district court’s interpretation of

the provisions, and its ultimate conclusion that the Agreement

requires ISP to reimburse Instone, was the only reasonable

interpretation in the absence of inadmissible parol evidence.

Whether a contract is ambiguous is a question of law for the

court to decide by looking at the contract as a whole in light of

the circumstances present when the contract was entered into. In

re El Paso Refinery, LP, 302 F.3d at 353 (5th Cir. 2002);

Friendswood Development Co. v. McDade & Co., 929 S.W.2d 280, 282

(Tex. 1996). If the contract terms are susceptible to only one

reasonable construction, the contract is unambiguous and will be

enforced as written. Guaranty Nat. Ins. Co. v. Azrock Industries

Inc., 211 F.3d 239, 243 (5th Cir. 2000). “[A] contract is

ambiguous only when the application of the applicable rules of

interpretation to the instrument leave it genuinely uncertain

7
Instone contends that this is a new argument raised for the
first time on appeal and is therefore waived. ISP, however,
argued that the Agreement was ambiguous in its Motion for
Rehearing/Reconsideration, dated February 22, 2002. This court
has held that issues raised for the first time in post judgment
motions are preserved for appeal. New York Life Ins. Co. V.
Brown, 84 F.3d 137, 141 n. 4 (5th Cir. 1996); First Nat’l Bank of
Commerce v. De Lamaze, 7 F.3d 1227, 1229 n. 9 (5th Cir. 1993).
Accordingly, this issue is properly before the court.

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which one of the two meanings is the proper meaning...”. R & P

Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 519

(Tex. 1980). A contract is not ambiguous because it suffers from

mere “uncertainty or lack of clarity.” Madera Prod. Co. v

Atlantic Richfield Co., 1998 WL 292872, *3 (N.D. Tex. 1998).

“The failure to include more express language of the parties’

intent does not create an ambiguity when only one reasonable

interpretation exists.” Columbia Gas Transmission Corp. v. New

Ulm Gas, Ltd., 940 S.W.2d 587, 591 (Tex. 1996).

We find that the district court’s interpretation of

Provisions VI.A. and X is the only plausible interpretation.

The first two pages of the Agreement between Instone and ISP are

concerned with ensuring that the “Client”’s (ISP’s) account is

credit-worthy and properly managed. In the final provision of

the contract, Provision X, the Contractor acknowledges that the

client is acting as an agent. These provisions are unambiguous

on their face. Any claimed ambiguity in the document must

therefore be latent. See Constitution State Ins. Co., 61 F.3d at

408 (explaining the difference between patent and latent

ambiguities). A latent ambiguity must become evident when the

contract is applied to the surrounding circumstances. National

Union Fire Ins. Co. v. CBI Indus., Inc., 38 Tex.Sup.Ct.J. 332,

1995 WL 92215, *2 (Tex. 1995). Parol evidence of intent may not

be admitted to create an ambiguity. Id; Constitution State Ins.

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Co. v. Iso-Tex Inc. 61 F.3d 405, 408 (5th Cir. 1995).

ISP points to the following as “circumstances” surrounding

the contract’s execution that support the reasonableness of its

interpretation, and thus the ambiguity of the contract with

respect to its liability: (1) Prior to contract execution, ISP

notified Instone that Instone would not receive payment until ISP

received payment from the vessel owners; (2) Instone asked for,

and ISP provided, a list of the shipowners who would be paying

the invoices;8 (3) In prior dealings, ISP had instructed Instone

that it acted as an agent and did not advance money or guarantee

payments on behalf of its principals; and (4) Instone’s

representative acknowledged that he understood that ISP did not

advance money or guarantee payments on behalf of its principals.9

These are not “circumstances” surrounding the contract’s

execution, but parol evidence. See, e.g., Columbia Gas

Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 591

(Tex. 1996) (noting that the fact that a “huge volume of gas

8
Instone disputes this assertion.
9
ISP also contends that ISP and Instone were careful to set
up separate accounts for each separate shipowner. ISP has not set
forth evidence substantiating this assertion with respect to
Instone. Moreover, such activity implies that Instone intended
to hold ISP’s principals liable for their debts. It does not
demonstrate that Instone intended to do so to the exclusion of
ISP’s liability under the contract, and is therefore not
necessarily a “circumstance” indicating ambiguity regarding ISP’s
liability under the contract.

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would be deregulated on a particular date” was a “circumstance”

of the contract that could be properly considered in determining

whether a gas contract was ambiguous).

Parol evidence is defined as “evidence given orally.”

Black’s Law Dictionary 579 (7th ed. 1999). Seeing that ISP has

not provided the court with any written documentation regarding

the asserted “circumstances,” we presume that they relate to oral

exchanges between the parties. These assertions should therefore

not be considered in determining whether the contract is

ambiguous with respect to ISP’s liability. See 36 Tex. Jur. 3d §

351 (“Absent fraud, accident, or mistake, the intent of the

parties to a written agreement that is clear and unambiguous on

its face must ordinarily be ascertained from the instrument

alone, without the aid of extrinsic evidence”); American

Petrofina Co. of Texas v. Bryan, 519 S.W.2d 484, 487 (Tex. Civ.

App. 1975) (“Even if we assume that the Appellees were crying to

the heavens that they would not be bound individually by the

guaranty...the exclusionary rule controls as to this

instrument.”). But see Mobil Exploration and Producing U.S.,

Inc. v. Dover Energy Exploration, L.L.C., 56 S.W.3d 772, 776

(Tex. App. 2001) (considering prior negotiations, the testimony

of negotiators, and “all other relevant incidents bearing on the

intent of the parties,” while claiming fidelity to the rule

barring consideration of parol evidence in determining the

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question of ambiguity). Doing otherwise would nullify the

requirement that parol evidence not be used to create an

ambiguity, but only to resolve an acknowledged ambiguity.

Balandran v. Safeco Ins. Co. of Am., 972 S.W.2d 738, 741 (Tex.

1998); Standard Constructors, Inc. v. Chevron Chem. Co., Inc.,

101 S.W.3d 619, 624 (Tex. Ct. App. 2003).

When properly confined to the four corners of the document,

ISP’s interpretation that Provision X releases it from liability

under the Agreement is not reasonable. ISP’s construction of

Provision X’s impact upon the remainder of the contract stretches

the meaning of the phrase “Contractor acknowledges that client is

acting as agent” beyond the logical import of the words. The

Agreement unambiguously holds ISP responsible for the cost of all

of the goods that it ordered, regardless of whether it did so on

behalf of others. The district court properly granted Instone

summary judgment on this basis.

IV.

Instone asks this court to either modify the judgment of the

district court to include an award of appellate attorney’s fees

or to remand the case to the district court solely for entry of

an additional award of appellate attorney’s fees. Instone

contends that it is entitled to such fees under the terms of the

contract, which permit it to recover “its costs and attorney’s

fees” in the event that it utilizes the services of an attorney

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to collect any debt owed under the Agreement. Instone states

that it sought “attorney’s fees” generally in its petition and in

its motion for summary judgment, and attached an uncontested

affadavit from its counsel testifying to the reasonable and

necessary attorney’s fees that would be incurred in the event of

an appeal.

It is difficult to imagine how a district court’s refusal to

award appellate attorney fees before an appeal had even been

taken could possibly be declared an error. Instone cites no

cases in support of its argument. The issue of appellate

attorney’s fees is a matter for the district court following the

resolution of an appeal. Now that we have ruled in favor of

Instone, the matter is ripe for adjudication. We remand in order

to allow the district court to make the initial determination and

award of appellate attorney’s fees.

CONCLUSION

Since ISP was unable to raise a genuine issue of material

fact regarding Instone’s breach of contract claim, we AFFIRM the

district court’s grant of summary judgment in favor of Instone.

We remand to the district court the question of appellate

attorney’s fees.

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