Kinner Transportation & Enterprises, Inc. v. State , 614 S.W.2d 188 ( 1981 )

614 S.W.2d 188 (1981)

KINNER TRANSPORTATION & ENTERPRISES, INC. d/b/a K. T. & E., Inc., Appellant,
v.
The STATE of Texas, Appellee.

No. 5629.

Court of Civil Appeals of Texas, Eastland.

March 19, 1981. Rehearing Denied April 16, 1981.

Larry G. Byrd, Williams, Byrd & Haglund, Lufkin, for appellant.

Phyllis B. Schunk, Asst. Atty. Gen., Austin, for appellee.

RALEIGH BROWN, Justice.

This is a summary judgment case. Suit was instituted by the State of Texas against Kinner Transportation & Enterprises, Inc. d/b/a K.T. & E., Inc. at the request of the License and Weight Division of the Texas Department of Public Safety to determine the extent of authority granted by Specialized Motor Carrier Certificate of Convenience and Necessity, No. 35140 held by Kinner. The State contended that Kinner was not authorized by its certificate to transport plywood, fiberboard, and other manufactured wood products. Kinner contended that its certificate authorized the transporting of "timber" which term would include plywood, fiberboard and other manufactured wood products. The State's motion for summary judgment was granted. Kinner appeals. We reverse and remand.

Kinner argues first that the trial court erred in granting summary judgment because there are genuine issues of material fact. Kinner asserts that the stipulation between the parties cannot be used in a summary judgment proceeding because it recited that the stipulation "shall be considered by the Court upon a trial on the merits of this case."

A stipulation has been held to be such an admission as to constitute a waiver of proof as to the matters stipulated. International Security Life Insurance Company v. Rosson, 466 S.W.2d 52 (Tex.Civ.App.—Amarillo 1971, error dism'd); Reasoner v. State, 463 S.W.2d 55 (Tex.Civ.App.—Houston [14th Dist.] 1971, writ ref'd n. r. e.); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex. Civ.App.—Fort Worth 1964, writ ref'd n. r. e.). Our Supreme Court in the City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979), sustained a summary judgment which was based in part on stipulations.

Under the stipulation at issue Kinner agreed that it owned Specialized Motor Carrier Certificate No. 35140, that it transported plywood and fiberboard as shown by Exhibit "B" of Plaintiff's Original Petition, that Exhibit "A" of Plaintiff's Original Petition is a true and correct copy of Certificate No. 35140 and accurately reproduces the authority held by Kinner on the dates shown on Exhibit "B" of Plaintiff's Original Petition, and that all movements alleged in Exhibit "B" were made under and pursuant to Certificate No. 35140. We hold that Kinner did not stipulate to these facts in connection with the State's motion for summary judgment and, therefore, these are unresolved issues of material fact. Tex.R. Civ.P. 166-A; Wilcox v. St. Mary's University of San Antonio, Inc., 531 S.W.2d 589 (Tex.1975).

A stipulation is a contract between the parties to a proceeding. First National Bank in Dallas v. Kinabrew, 589 S.W.2d 137 (Tex.Civ.App.—Tyler 1979, writ ref'd n. r. e.). Its use may be limited to only a part of the proceedings. Hommel v. Southwestern Greyhound Lines, 195 S.W.2d 803 (Tex.Civ. App.—Fort Worth 1946, no writ); 53 Tex. Jur.2d Stipulations § 15 (1964). As stated by the court in United States Fire Insurance Company v. Carter, 468 S.W.2d 151 (Tex.Civ.App.—Dallas 1971), writ ref'd n. r. e. per curiam, 473 S.W.2d 2 (Tex.1971):

A stipulation is an agreement or contract between the parties made in a judicial proceeding in respect to some matter incident thereto and for the purpose, ordinarily, of avoiding delay, trouble and expense. While a stipulation is one of the favorites of the law yet to be effective it must possess the essential characteristics of a binding agreement. Being a contract the stipulation must truly express the intentions of the parties making same. A court will not construe a stipulation so as to effect an admission of something intended to be controverted or so as to waive a right not plainly agreed to be relinquished. King v. Elson, 30 Tex. 246 (1867). Moreover, a stipulation will be limited in effect to what is imported by its terms, and a conditional stipulation will not support a judgment where there is no showing that the condition has been complied with. Board of Insurance Commissioners v. Highway Insurance Underwriters, 169 S.W.2d 541 (Tex.Civ.App., Austin 1943); H. B. Zachry Co. v. Maerz, 223 S.W.2d 552 (Tex. Civ.App., San Antonio 1949); Wyss v. Bookman, 235 S.W. 567 (Tex.Comm.App., Sec. B., 1921, approved by S.Ct.); Matthews v. Looney, 123 S.W.2d 871 (Tex. Comm.App.1939).

We note that the contested stipulation was entered into approximately three months prior to the hearing on the motion for summary judgment, and its use at the summary judgment hearing was opposed by Kinner in its response to the State's motion. The issue is whether there is a distinction between a trial on the merits and a summary judgment proceeding because the stipulation was agreed upon in connection with its use upon "a trial on the merits." Our Supreme Court recognized such a distinction in Kelley v. Bluff Creek Oil Company, 158 Tex. 180, 309 S.W.2d 208 (1958).

The stipulation, being limited to use upon a trial on the merits, did not constitute summary judgment proof. We sustain Kinner's point of error. The judgment is reversed and the cause remanded.