The issue in this case is whether the trial court properly found that a real property lease purporting to lease a single point for construction of a broadcasting tower was ambiguous. The case was tried to the court, which held the property description in the lease was ambiguous and resolved the factual issue of the location of the leased premises in favor of Towers of Texas, Inc. (Towers), as assignee of the lease. The court of appeals reversed the trial court judgment and rendered judgment for the lessor.
Towers was assigned a long-term lease for a radio broadcasting tower site. The lease provided:
Lessor hereby leases to Lessee a site on the top of Double Mountain coordinates 33° 03' 55" latitude, 110° 26' 20" longitude and elevation approximately 2590 feet above sea level for the purpose of erecting and maintaining a radio transmission tower....
Lessee shall have the exclusive use of the space on top of said Double Mountain hereinabove described for said radio transmission tower and lessor shall not lease any space on top of said Double Mountain for said purpose to any other party.
After a bench trial, the court filed findings of fact and conclusions of law. In particular, the trial court found that the geographical coordinates referenced in the lease indicated a point on the side of the mountain unsuitable for construction of a radio transmission tower, buildings, telephone poles, and a road; that the top was the only space on Double Mountain economically feasible for location and operation of a radio transmission tower; and that the original parties to the lease, as well as plaintiff and defendants, all interpreted the contract to be a lease of all the property on top of Double Mountain, and not a lease of only the point referenced by the geographical coordinates in the lease. The trial court rendered judgment for Towers consistent with its findings.
J & J Systems and the Baughs appealed. They complained of no evidence or insufficient evidence to support the trial court’s various findings of fact. The court of appeals agreed with a position asserted in respondents’ trial court pleading that “the top of the mountain” violated the statute of frauds as an insufficient property description. The court of appeals reversed the trial court, rendering judgment instead that Towers take nothing. The court of appeals held “that the real property covered by the lease is clearly and unambiguously limited to the geographical coordinates.”
A written instrument is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning, taking into consideration the circumstances present when the instrument was executed.
Coker v. Coker,
We have reviewed the record. There is evidence to support the trial court’s findings and the court of appeals committed reversible error in substituting its judgment for that of the trial court.
Davis v. Huey,
Notes
. The lease details coordinates described in degrees, minutes and seconds of arc. There was testimony at trial that to avoid going out of the "point” thus described, to the extent it can be approximated on the ground, one would be confined to an area of approximately eighteen inches by twenty-four inches. Thus file testimony and portions of the briefs refer to the 18" X 24" area. Whether the location was the actual theoretical "point” or an 18" x 24" area about that "point” makes no difference for purposes of determining ambiguity, since even the expanded "point" on its face is too small to support a broadcast tower. We refer to a “point” using the trial court’s findings treating it as a single theoretical point.
. When only no evidence and insufficient evidence points are presented the court of appeals may reverse and remand because of insufficient evidence to support the facts found, but it may not render judgment contrary to the trial court’s unless there is no evidence to support an essential trial court finding.