Court of Appeals of Texas, Houston (14th Dist.).

Steve WALSH, Appellant,

v.

Antoine YOUNIS, M.D., P.A., Appellee.

No. A14-91-00109-CV.

|

Sept. 26, 1991.

Before J. CURTISS BROWN, C.J., and MURPHY and CANNON, JJ.

OPINION

CANNON, Justice.

*1 This is an appeal from a summary judgment granted on appellees’ claim of breach of contract. Appellant brings two points of error. We affirm.

Lorenzo Cortez sustained job-related injuries and hired appellant, an attorney, to assist him with his workers’ compensation claims. Appellee rendered medical services to Cortez for which there was an outstanding balance due of $1,535.00. Regarding this outstanding debt, appellant wrote appellee the following letter:

Dear Dr. Younis:

This is to confirm my conversation with Janet, from you[r] office, regarding Mr. Cortez’ heart catherization.

As you know, this is a workers’ compensation claim. Dr. Virgadamo has indicated that the need for catherization could be related to his injury on the job.

We will seek to have the workers’ compensation insurance company pay you for the catherization.

In the event they fail to do so, please be advised that we will pay your bill (to the extent of $1,000.00) out of Mr. Cortez’ portion of the final settlement or award when this case is disposed of.

Mr. Cortez has authorized us to pay you in this manner so please be advised that you will be paid prior to Mr. Cortez or myself receiving payment from the final settlement or award.

Very truly yours,

STEVE WALSH

LORENZO CORTEZ

Upon nonpayment of the debt, appellee filed suit against Cortez for the amount due and sued appellant claiming that the letter constituted a guaranty. Appellee then filed a motion for summary judgment, attaching a copy of Cortez’s account showing the outstanding balance, an affidavit by the custodian of such records at appellee’s office, and an affidavit by appellee’s counsel regarding attorney’s fees. The trial court granted appellee’s motion, finding that services were rendered as shown in the statement of account, that the amount due was $1,535.00, that these charges were the “usual, customary and reasonable fair market value of such services,” that appellant executed a letter agreement agreeing to withhold and pay appellee $1,000.00 for services rendered, and that neither Cortez nor appellant had paid appellee for the services rendered. Based on these findings, the trial court ordered that appellee recover $1,535.00 plus interest from Cortez and recover $1,000.00 plus interest from appellant. The trial court further ordered that Cortez and appellant were jointly and severally liable for attorney’s fees in the amount of $1,000.00 and for court costs.

In two points of error, appellant claims that genuine issues of fact existed. Specifically, appellant contends that a condition precedent to payment was not fulfilled. According to appellant, payment was conditioned on appellee informing appellant of nonpayment before August 1987, when final funds were dispensed.

A trial court properly grants summary judgment when the movant establishes that there is no genuine issue 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). In reviewing the evidence in a summary judgment case, this court will look at the evidence in the light most favorable to the nonmovant. Id. at 548-59. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id.

*2 In a breach of contract case, summary judgment is proper where a contract is unambiguous. RGS, Cardox Recovery, Inc. v. Dorchester Enhanced Recovery Co., 700 S.W.2d 635, 638 (Tex. App.–Corpus Christi 1985, writ ref’d n.r.e.). 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 circumstances existing at the time the contract was signed. Reilly v Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex. 1987). Alternatively, if the contractual provision in dispute is ambiguous, the summary judgment evidence must be examined to determine whether there were material issues of fact precluding summary judgment. RGS, Cardox Recovery, Inc., 700 S.W.2d at 638. If after examining the entire contract in an attempt to harmonize its provisions with the one in dispute, we find that the provision is not reasonably susceptible to more than one interpretation, we must find the contract unambiguous. See id.

In construing a written contract, the court’s primary concern is to ascertain the true intentions of the parties as expressed in the instrument. R&P Enterprises v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980). No single provision taken alone is to be given controlling effect; rather, all the provisions are considered with reference to the whole instrument. Myers v. Gulf Coast Minerals Management Corp., 361 S.W.2d 193, 196 (Tex. 1962). If the written instrument is so worded that it can be given a definite legal meaning, then it is not ambiguous and this court will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d at 393.

The terms of the letter agreement in this case are unambiguous. The provisions of the agreement specifically state that appellant would first attempt to have the workers’ compensation insurance company pay appellee for the services rendered but that if he was unsuccessful, he would pay appellee up to $1,000.00 out of any settlement. Appellant also agreed to pay appellee before either himself or Cortez. Because a writing is construed most strictly against its author, Republic Nat’l Bank of Dallas v. N.W. Nat’l Bank of Fort Worth, 578 S.W.2d 109, 115 (Tex. 1978), we find that appellee had a right to rely on the provisions of the agreement. See RGS, Cardox Recovery, 700 S.W.2d at 639.

Appellant contends the trial court erred in determining that all conditions precedent to appellee’s entitlement to recovery had been performed or have occurred. In particular, appellant asserts that appellee, as a condition precedent, should have notified appellant of nonpayment. Courts are reluctant to construe any provision as a condition precedent; rather, the presumption is towards a covenant. Texas City Ref., Inc. v. Universal Oil Prods. Co., 681 S.W.2d 303, 305 (Tex. App.–Houston [14th Dist.] 1984, no writ)(citing Schwarz-Jordan, Inc. v. Delisle Constr., 569 S.W.2d 878 (Tex. 1978)). Moreover, in construing a contract, a court should avoid finding a condition precedent that results in forfeiture if another reasonable reading of the contract is possible. Criswell, 792 S.W.2d at 948. To make a performance conditional, expressions such as “if,” “provided that,” “on condition that,” or other similar phrase must be used. Criswell v. European Crossroads Shopping Center, 792 S.W.2d 945, 948 (Tex. 1990). The absence of such words in the agreement here indicate that a promise was made, rather than a condition imposed, so that the terms will be construed as a covenant. Id.

*3 Appellant’s allegation of a condition precedent is in direct conflict with the clear and concise language of the agreement. Rather than requiring appellee to seek payment from the workers’ compensation insurance carrier or to notify appellant that he had not been paid by the carrier, the letter agreement clearly places those obligations on appellant. Thus, we find no error by the trial court in determining that all conditions precedent to recovery had occurred.

We further find that appellee met his summary judgment burden of establishing that there was no genuine issue of material fact regarding the breach of contract claim. The trial court properly granted appellee’s motion for summary judgment. We overrule appellant’s first and second points of error.

Accordingly, the judgment of the trial court is affirmed.

Do not publish – TEX. R. APP. P. 90.