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Banking, Business and Contracts No. 01-01-00620-CV, 5/8/2003. Click here for the full text of this decision FACTS: The appellee, Enterprise Leasing of Houston, sued the appellant, Horacio Barrios, for breach of contract. The trial court rendered a partial summary judgment for Enterprise on the issue of liability. The issues of attorney’s fees and damages were then presented to the court. The partial summary judgment later became final when the trial court rendered a final judgment, awarding Enterprise $24,579 in damages, $1,500 in attorney’s fees, prejudgment and postjudgment interest and court costs. Barrios appeals the rendition of summary judgment. HOLDING: Reversed and remanded. Barrios contends that the trial court erred in rendering summary judgment because: 1. Enterprise’s motion was not supported by competent summary judgment evidence because Barrios’s responses to Enterprise’s request for admissions were not attached to the summary judgment motion or included in the clerk’s record on appeal; and 2. the evidence created a genuine issue of material fact. Enterprise contends that Barrios breached his promise under the rental contract to pay not only for the cost of renting the car and for damage or loss to the car, but also for loss of the full retail value of the car if stolen through no fault or negligence of his own. The question before us, therefore, is whether the summary judgment proof established that Enterprise is entitled as a matter of law to recover for breach of contract. To establish its right to recover the value of the stolen car from Barrios without a trial, Enterprise had to establish as a matter of law that 1. Barrios rented the car; 2. under the terms of the rental contract, Barrios promised to return the car or pay Enterprise the retail value of the car in the event it was stolen through no fault or negligence of his own; 3. the car was stolen, and Barrios, therefore, did not return it, nor did he pay Enterprise its retail value; and 4. Enterprise suffered the loss of the value of the car. The court is persuaded that the contract itself does not establish as a matter of law that Barrios promised to pay Enterprise the retail value of the rental car in the event it was stolen without fault or negligence on his part. The court looks to the contract to determine its terms. 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 and the court will construe the contract as a matter of law. A contract, however, is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. 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. 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. To establish Barrios’s liability, Enterprise relies on a provision on the reverse side of the first page of the rental contract. The court is troubled by what it perceives to be a lack of clear disclosure in the rental car contract. The provision relied on by Enterprise to establish Barrios’s liability raises a question: Does this provision, read in its entirety, impose liability on Barrios, regardless of fault, for loss of a stolen vehicle? The title of the provision is ” Damage toRented Car,” not ” Loss ofRented Car”; and all references in the provision are, correspondingly, to loss or damage tothe rental car. Moreover, after specifically providing that the renter agrees to pay Enterprise “the retail value of replacing and/or repairing all losses and damages to the rented car,” the provision continues, “including ‘ loss of use‘ during the period it is unavailable for rental use as measured by reasonable rental value of renting a replacement car.” A natural reading of the language of the provision is that the general terms “loss or damage” are limited to loss or damage “to” the car, which is compensable by paying the retail value of replacement or loss to it, including the loss of rent while the car is out of service. Nowhere does the “Damage to Rented Car” provision (or any other provision in the contract) expressly state that the renter promises to pay the retail replacement value of the car itself if it is stolen. Although the dissent relies upon the statutory language in Texas Revised Civil Statutes article 9026 �3 that defines “damage” to a rental car as including theft, that statute was not included in the evidence before the trial court at the time it rendered its summary judgment; Enterprise relied solely upon the contract itself. The court sees nothing within the four corners of the contract that conveys to the renter his obligation to reimburse Enterprise for the value of a stolen car. It finds, therefore, that the “Damage to Rented Car” provision in the rental contract is ambiguous as to whether it expresses a promise by the renter to pay Enterprise the retail value of a rented vehicle that is stolen through no fault or negligence of his own. OPINION: Keyes, J.; Hedges, Keyes and Evans, JJ. En banc consideration was requested and a majority of the court voted to grant en banc consideration. The en banc court consists of Radack, CJ, Hedges, Taft, Nuchia, Jennings, Keyes, Alcala, Hanks, Higley, and Evans, JJ. Keyes, J, writing for the majority of the en banc court, joined by Taft, Alcala, Higley, and Hanks, JJ. Evans, J, concurring. Hedges, J, dissenting, joined by Radack, CJ and Nuchia and Jennings, JJ. Jennings, J, dissenting. CONCURRING: Evans, J. “In my opinion, the language of the rental contract “does not clearly advise the renter that he will be liable for the full market value of the vehicle in the event it is stolen through no fault of his own. Accordingly, I join in the majority holding that the trial court erred in rendering summary judgment.” DISSENTING OPINION: Hedges, J. “I respectfully dissent. “The majority states that the Enterprise agent’s verbal assurance ‘can reasonably be interpreted as reassurance to a renter that he is insured against legal liability for unintentional loss or damage to the vehicle, including loss of the vehicle, without the necessity of buying additional insurance.’ I disagree. The rental contract states, ‘Texas Personal Auto Policies Cover Legal Liabilities for Loss or Damage, Except Intentional, to Rented Vehicles.’ There is no evidence in the record to show that Barrios’s personal automobile insurance policy contained the type of comprehensive coverage necessary to reimburse Barrios in the event the car was stolen. “The contract additionally stated, ‘Purchase of Optional Damage Waiver Which Is Not Insurance May Not Be Necessary or Mandatory.’ For an additional fee, Enterprise offered an optional ‘damage waiver’ which would relieve the renter of any deductible on the renter’s policy and an additional amount. However, the contract stated that the damage waiver ‘does not apply if the car is stolen.’ Because the car was stolen, therefore, the collision damage waiver would not have given Barrios any additional protection or exclusion from the terms of the contract. “I would hold that the trial court did not err in rendering summary judgment for Enterprise. Accordingly, I would affirm the judgment of the trial court.” DISSENTING OPINION: Jennings, J. “I respectfully dissent. ‘All losses’ means alllosses.”

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