                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-167-CV


JMW PARTNERS, L.P., DANIEL                                             APPELLANTS
MCDONALD, AND MARC W ILSON

                                            V.

NORTHSTAR BANK OF TEXAS                                                   APPELLEE

                                        ------------

            FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

                                   I. Introduction

      In a single issue, Appellants Daniel McDonald and Marc W ilson, guarantors

of two loans by Appellee Northstar Bank of Texas (“Northstar”) to JMW Partners,

L.P. (“JMW ”),2 assert that the trial court erred by granting summary judgment in favor


      1
           See Tex. R. App. P. 47.4.
      2
         The trial court entered judgment against JMW on both notes. JMW is
listed as a party to this appeal, but did not file a brief. By letter, JMW requested to
be joined as a party to the brief previously filed by McDonald and W ilson. Any party
of Northstar. The trial court decreed (1) McDonald and W ilson jointly and severally

liable for 100 percent of JMW ’s 2005 loan from Northstar, and (2) McDonald and

W ilson each severally liable for 33.33 percent of JMW ’s 2007 loan from Northstar.



      Appellants contend that the 2007 guaranty agreements superseded the 2005

guaranty agreements and limited each Appellant’s share of liability to 33.33 percent

of both debts JMW owed Northstar. W e affirm the summary judgment as to the

2007 loan, but reverse the summary judgment as to the 2005 loan and remand that

claim for new trial.

                               II. Factual Background

      JMW signed a promissory note to Northstar dated June 28, 2005, in the

amount of $162,500. The note provides that it would be secured by unlimited

personal guaranties executed by McDonald, W ilson, and Greg Johnson. Each

individual signed a guaranty agreement dated June 28, 2005, whereby each jointly

and severally guaranteed all of the indebtedness JMW owed Northstar, including

the indebtedness it owed under the note of the same date. The 2005 guaranty

agreements define “Guaranteed Indebtedness” as

      [A]ll obligations, indebtedness, and liabilities of Borrower owed to
      Lender, now existing or hereafter created, acquired, or incurred, . . .


may join in all or any part of a brief filed in an appellate court by another party in the
same case. Tex. R. App. P. 9.7. Thus, we grant JMW ’s request. However, no
issues are asserted by McDonald and W ilson’s brief complaining of the judgment
against JMW . Therefore, we will affirm as to JMW .

                                            2
     including, without limitation, the obligations, indebtedness and
     liabilities of Borrower under that certain Promissory Note dated of
     even date herewith in the principal amount of $162,500, signed by
     Borrower and payable to the order of Lender and all interest
     accruing thereon and all attorney’s fees and other expenses incurred
     in the enforcement or collection thereof.

The 2005 guaranty agreements further provide:

     2. This instrument shall be an absolute, continuing, irrevocable and
     unconditional guaranty of payment and performance and . . . Guarantor
     shall remain liable on the obligations thereunder until the payment and
     performance in full of the Guaranteed Indebtedness.

     5. Guarantor hereby agrees that his obligations under this Agreement
     shall not be released, diminished, impaired, reduced, or affected by the
     occurrence of any reason or event, including, without limitation, one or
     more of the following events, whether or not with notice to or the
     consent of Guarantor:

                  ....

         d. Any renewal, extension, modification, waiver, amendment
         or rearrangement of any or all of the Guaranteed Indebtedness
         or any instrument, document, or agreement evidencing,
         securing or otherwise relating to any or all of the Guaranteed
         Indebtedness.

     Eighteen months later, JMW executed a second note payable to Northstar

dated January 1, 2007, for additional funds in the amount of $168,071.73.

McDonald, W ilson, and Johnson each signed a second guaranty agreement also

dated January 1, 2007. The 2007 guaranty agreements state,

     [f]or good and valuable consideration, Guarantor absolutely and
     unconditionally guarantees full and punctual payment and satisfaction
     of Guarantor’s Share of the Indebtedness of Borrower to Lender, and
     the performance and discharge of all Borrower’s obligations under the
     Note and the related documents. [Emphasis added.]


                                        3
      The 2007 guaranty agreements define “Note” as all of “Borrower’s loan

obligations in favor of Lender, together with all renewals of, extensions of,

modifications of, refinancings of, consolidations of and substitutions for promissory

notes . . . .” The term “related documents” is defined as “all promissory notes, credit

agreements, loan agreements, . . . guaranties, . . . and all other instruments,

agreements and documents, whether now or hereafter existing, executed in

connection with the indebtedness.” However, the 2007 guaranty agreements limit

each guarantor’s liability to 33.33 percent of JMW ’s “Indebtedness” to Northstar, as

follows:

      GUARANTOR’S SHARE OF THE INDEBTEDNESS: The words
      ‘Guarantor’s Share of the Indebtedness’ as used in this Guaranty mean
      33.330% of the principal amount of the Indebtedness that is
      outstanding from time to time and at any one or more times.
      ‘Guarantor’s Share of the Indebtedness’ also includes all accrued
      unpaid interest on the Indebtedness and all collection costs, expenses,
      and Lender’s reasonable attorneys’ fees . . . .

      As in the previous agreements, the 2007 guaranty agreements define

“Indebtedness” as “all of the principal amount outstanding from time to time and at

any one or more times,” together with accrued interest, collection costs and legal

expenses, and Lender’s reasonable attorneys’ fees, “arising from any and all debts,

liabilities and obligations of every nature or form, now existing or hereafter arising

or acquired, that Borrower individually or collectively or interchangeably with others,

owes or will owe Lender.” The term “Indebtedness” specifically includes . . . “loans,

advances, debts, . . . and liabilities of Borrower, and . . . future advances, loans or


                                          4
transactions that renew, extend, modify, refinance, consolidate or substitute these

debts, liabilities and obligations . . . .”

       The 2007 guaranty agreements do not specifically reference the 2007 Note

which had been executed on the same date, with the exception that “Loan No.

44518" (the loan number for the 2007 note) is typed or printed in the upper left hand

corner of pages two and three of each 2007 guaranty agreement. Nor do the 2007

guaranty agreements specifically reference the 2005 note or its guaranty

agreements. Instead, the 2007 guaranty agreements provide:

       If Lender presently holds one or more guaranties, or hereafter receives
       additional guaranties from Guarantor, Lender’s rights under all
       guaranties shall be cumulative. This Guaranty shall not (unless
       specifically provided below to the contrary) affect or invalidate any such
       other guaranties. Guarantor’s liability will be Guarantor’s aggregate
       liability under the terms of this Guaranty and any such other
       unterminated guaranties. [Emphasis added.]

                              III. Procedural Background

       After JMW defaulted on payments under both notes, Northstar filed its original

petition seeking recovery of the balance owed on both notes from JMW and alleging

joint and several liability for the entire balance owed under both notes by McDonald,

W ilson, and Johnson as guarantors of both notes. Northstar filed an Amended

Motion for Summary Judgment and later filed a Supplemental Motion for Summary

Judgment3 seeking judgment against the maker and guarantors jointly and severally



       3
     The Clerk’s Record does not include Plaintiff’s Original Motion for
Summary Judgment.

                                              5
for the amount of the balance owed on the 2005 note but seeking only several

liability against each guarantor for 33.33 percent of the balance owed on the 2007

note.

        By counter-claims, cross-motions for summary judgment, and a combined

response to Northstar’s amended and supplemental motion for summary judgment,

Appellants and JMW alleged that the 2007 guaranty agreements “superseded” the

2005 guaranty agreements, thereby limiting Appellants’ obligations under both the

2005 and 2007 agreements to several liability of 33.33 percent of the amounts owed

under both notes. Following a hearing, the trial court entered summary judgment

against the guarantors for (1) joint and several liability on the balance owed under

the 2005 Note, and (2) several liability of 33.33 percent per guarantor on the debt

remaining under the 2007 Note. 4

                                   IV. Discussion

        Appellants contend that the trial court erred in granting summary judgment to

Northstar on the 2005 guaranty agreements for joint and several liability of

Appellants as to the entire amount owed on the 2005 note. They argue that the only

reasonable interpretation of the 2007 guaranty agreements is that they supersede

the 2005 guaranty agreements, and that the 33.33 percent limitation on Appellants’




        4
       Johnson neither answered Plaintiff’s Supplemental Motion for Summary
Judgment nor appeared at the summary judgment hearing and is not a party to this
appeal. See Tex. R. App. P. 38.8(a)(1).

                                          6
liability in the 2007 guaranty agreements applies to their obligations as guarantors

as to the 2005 Note as well as the 2007 Note.

      Alternatively, Appellants assert that the guaranty agreements are ambiguous,

and that under the rule of strictissimi juris applicable to guaranty agreements, the

trial court must apply the more favorable interpretation to them and limit each

guarantor’s indebtedness to 33.33 percent of JMW’s indebtedness under both notes.

Northstar responds that there is only one reasonable interpretation of the guaranty

agreements, that the terms of the 2007 guaranty agreements limiting each

guarantor’s obligation to 33.33 percent of liability apply only to the 2007 note, and

that the 2005 guaranty agreements remain enforceable for Appellants’ joint and

several liability for the entire amount owed under the 2005 note.

          A. Standard of Review

      In a traditional summary judgment case, the issue on appeal is whether the

movant met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W .3d 844, 848 (Tex. 2009). W e review a summary judgment de novo. Id. The

summary judgment will be affirmed only if the record establishes that the movant has

conclusively proved all essential elements of the movant’s cause of action or

defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W .2d

671, 678 (Tex. 1979). Once the movant establishes that he is entitled to judgment


                                          7
as a matter of law, the burden shifts to the nonmovant to present evidence raising

a genuine issue of material fact.    Id.   A nonmovant who wishes to assert an

affirmative defense must urge it in the response and provide enough evidence to

create a fact issue on each element of the defense. Rabe v. Dillard’s, Inc., 214

S.W .3d 767, 768 (Tex. App.—Dallas 2007, no pet.).

      B. Rules of Guaranty Construction and Interpretation

      W e construe a guaranty as any other contract. Mid-South Telecomm. Co. v.

Best, 184 S.W .3d 386, 390 (Tex. App.—Austin 2006, no pet.). Our primary concern

is to ascertain the intent of all parties as expressed in the contract. Don’s Bldg.

Supply, Inc. v. OneBeacon Ins. Co., 267 S.W .3d 20, 23 (Tex. 2008).            The

construction of an unambiguous contract is a question of law for the court to

determine de novo. Buys v. Buys, 924 S.W .2d 369, 372 (Tex. 1996) (citing Coker

v. Coker, 650 S.W .2d 391, 393 (Tex. 1983)). W e examine the entire document and

consider each part with every other part so that the effect and meaning of one part

on any other part may be determined. Heritage Res., Inc. v. NationsBank, 939

S.W .2d 118, 121 (Tex. 1996). W e interpret the contract by ascertaining the true

objective intentions of the parties, based on the contract language, and presuming

that the parties intended every clause to have some effect. SAS Inst., Inc. v.

Breitenfeld, 167 S.W .3d 840, 841 (Tex. 2005); Heritage Res., Inc., 939 S.W .2d at

121. W e give words their plain, common, or generally accepted meaning unless the




                                           8
instrument shows that the parties used them in a technical or different sense.

Heritage Res., Inc., 939 S.W .2d at 121.

      Appellants contend that guaranty agreements differ from other contracts in

that the rule of strictissimi juris applies, which requires that a guaranty agreement be

strictly construed in favor of the guarantor, citing Reece v. First State Bank of

Denton, 566 S.W .2d 296, 297 (Tex. 1978). However, this rule only applies when

ordinary rules of contract construction render the parties’ obligations uncertain or

ambiguous. Coker, 650 S.W .2d at 393 n.1; Pham v. Mongiello, 58 S.W .3d 284, 288

(Tex. App.—Austin 2001, pet. denied). A contract is ambiguous when its meaning

is uncertain and doubtful or when it is reasonably susceptible to more than one

meaning. Coker, 650 S.W .2d at 393; Pham, 58 S.W .3d at 288. That the parties to

a contract disagree over the interpretation of the contract does not necessarily

render it ambiguous. Pham, 58 S.W .3d at 288. Likewise, uncertainty or a lack of

clarity in the language used in the contract does not automatically render it

ambiguous.    Id.   And an ambiguity does not arise simply because the parties

advance conflicting interpretations; rather, for an ambiguity to exist, both

interpretations must be reasonable. Lopez v. Munoz, Hockema & Reed, L.L.P., 22

S.W .3d 857, 861 (Tex. 2000); Sefzik v. Mady Dev., L.P., 231 S.W .3d 456, 460 (Tex.

App.—Dallas 2007, no pet.).         An ambiguity exists only after application of

established rules of interpretation leaves an agreement susceptible to more than one




                                           9
reasonable interpretation. DeWitt County Elec. Coop. Inc. v. Parks, 1 S.W .3d 96,

100 (Tex. 1999).

     C. Whether the 2007 Guaranties Limit Appellants’ Liability Under the
2005 Guaranty Agreements

      The 2005 guaranty agreements were executed at the same time as the 2005

note, and the parties do not disagree that the 2007 guaranty agreements were

executed contemporaneously with the 2007 note.            W hile the 2007 guaranty

agreements do not specifically reference the 2007 note, the 2005 note, or the prior

guaranty agreements, we may consider together all writings relating to the same

transaction, even if they were executed at different times. Id. at 102. “Under

generally accepted principles of contract interpretation, all writings that pertain to

the same transaction will be considered together, even if they were executed at

different times and do not expressly refer to one another.” Id., see also Miles v.

Martin, 159 Tex. 336, 321 S.W .2d 62, 65 (1959) (holding writings relating to same

transaction may be considered together unless surrounding circumstances indicate

different intent); IP Petroleum Co. v. Wevanco Energy, L.L.C., 116 S.W .3d 888, 898

(Tex. App.—Houston [1st Dist.] 2003, pet. denied) (op. on reh’g) (considering earlier

joint operating agreement and later participation agreement pertaining to same

operation together to determine whether one superseded the other).             Under

Appellants’ theory, the 2007 guaranties relate at least in part to the earlier

transaction by altering their obligations under the earlier guaranties; thus, we will



                                         10
consider all four documents together in determining the intent of the parties. See

Parks, 1 S.W .3d at 102.

      The terms of the 2005 guaranty agreements show the continuing nature of

those agreements.      A continuing guaranty contemplates a series of future

transactions such that the guaranty remains in effect for an indefinite time or until

revoked. Houston Furniture Distribs., Inc. v. Bank of Woodlake, N.A., 562 S.W .2d

880, 884 (Tex. Civ. App.—Houston [1st Dist.] 1978, no writ). Under the 2005

guaranty agreements, each Appellant also agreed that his obligations would be

“irrevocable.” They further agreed that their obligations under the 2005 guaranty

agreements would not be “released, diminished, impaired, reduced, or affected

by . . . modification . . . of any or all of the Guaranteed Indebtedness or any

instrument, document, or agreement evidencing, securing or otherwise relating to

any or all of the Guaranteed Indebtedness.” This language indicates that the 2007

guaranty agreements were not intended to supersede the 2005 agreements.

      Additionally, the 2007 guaranties contained no specific language that

superseded, modified, or affected the previous guaranties. To the contrary, the

2007 guaranties specifically stated that they did not “affect or invalidate” any other

guaranties “presently [held] by Lender” but would be “cumulative” of any other such

guaranty agreements, and the guarantors’ liability would be their “aggregate”

liability under the 2007 guaranties and any such other unterminated guaranties.




                                         11
These provisions further reinforce a conclusion that the later guaranty agreements

were not intended to supersede the earlier guaranties in whole or in part.

      Considering the two sets of agreements together, the language of both sets

of guaranty agreements can reasonably be read to mean that Northstar’s rights

under the 2005 and 2007 guaranty agreements continue to exist simultaneously,

and that the reduction in each guarantor’s share of liability under the 2007

agreements did not affect, modify, or supersede their joint and several liability under

the 2005 agreement for the entire balance owed under the 2005 note. However,

Appellants contend that, considering other language of the guaranty agreements,

they may be reasonably interpreted such that the terms of the later guaranties

superceded the earlier guaranties. W e agree.

      W hen two contracts between the same parties are so inconsistent that they

cannot subsist together, it will be conclusively presumed that the later contract

supersedes the earlier contract. Willeke v. Bailey, 144 Tex. 157, 189 S.W .2d 477,

479 (1945) (holding where contracts are so inconsistent that both cannot subsist

together, “the [contract] made first is conclusively presumed to have been

superseded by the other”); IP Petroleum Co., 116 S.W .3d at 899 (holding joint

operating agreement superseded participation letter agreement where they were

so mutually inconsistent that both could not stand); Savitch v. Sw. Bell Yellow

Pages, Inc., No. 2-04-257-CV, 2005 W L 1839092, at *3 (Tex. App.—Fort W orth

Aug. 4, 2005, no pet.) (holding that, although new agreement may establish


                                          12
novation as matter of law if reasonable minds cannot differ as to its effect, evidence

supported trial court finding that no novation occurred as result of new contract).



       In absence of such inconsistent provisions as will constitute an implied

novation, a second contract will supersede or operate as a novation of the first only

when the parties to both contracts intend and agree that the obligations of the

second contract will be substituted for and operate as a discharge of the obligations

of the earlier agreement. Chastain v. Cooper & Reed, 152 Tex. 322, 257 S.W .2d

422, 424 (1953) (holding evidence of conduct and acts of parties established intent

that contract with new party constituted novation and release of former debtor as

matter of law); CTTI Priesmeyer, Inc. v. K & O Ltd. P’ship, 164 S.W .3d 675, 681

(Tex. App.—Austin 2005, no pet.) (holding evidence supported jury’s finding that

later agreement was not intended to replace earlier contract absent express

language of novation or inconsistent provisions). 5

       A subsequent agreement does not supersede a prior agreement if it is not

inconsistent with the prior agreement, is made for separate consideration, or is such

an agreement as might naturally be made as a separate agreement by parties

situated as were the parties to the written agreement. Hubacek v. Ennis State

Bank, 159 Tex. 166, 317 S.W .2d 30, 33 (1958); Fish v. Tandy Corp., 948 S.W .2d


       5
           The party urging novation as a defense bears the burden of proof. Honeycutt v.
Billingsley, 992 S.W.2d 570, 577 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (op. on reh’g)
(holding “novation” is an affirmative defense); Savitch, 2005 WL 1839092, at *3 (same).

                                              13
886, 898 (Tex. App.—Fort W orth 1997, writ denied); Boy Scouts of Am. v.

Responsive Terminal Sys., Inc., 790 S.W .2d 738, 744 (Tex. App.—Dallas 1990, writ

denied). W hether a subsequent agreement is intended to supersede the first or to

constitute a novation is usually a question of fact, and can only become a question

of law if reasonable minds cannot disagree. Willeke, 189 S.W .2d at 479; CTTI

Priesmeyer, 164 S.W .3d at 681; Savitch, 2005 W L 1839092, at *3.

      The evidence in the record in this case is the notes and guaranties. W hen

both sets of guaranties are considered together under Northstar’s interpretation, the

relevant language of the 2007 guaranties is not inconsistent with that of the 2005

unlimited guaranties for the 2005 note, the 2007 guaranties were made for separate

consideration, and they were made under circumstances that they would naturally

be considered separate agreements intended by their provisions to co-exist with the

2005 guaranties, which would be “cumulative.”

      By their own terms, the 2007 guaranties require specific language to affect,

modify, or invalidate any other guaranty held by Northstar from Appellants. But the

2007 guaranties contain no such language specifically referencing the 2005

guaranties. If the parties had intended to have the 2007 guaranties supersede,

modify, or otherwise affect the 2005 guaranties, they could have included specific

language to that effect, but they did not do so. 6 Northstar’s arguments are thus


      6
        Page two of the 2007 guaranties specifically references the 2005 Note
under the definition of “collateral” by stating, ”Assignment of franchise agreement
between JMW Partners and Dermacare for five (5) franchise locations in the Denton

                                         14
persuasive that the summary judgment was proper as to Appellants’ liability on the

2005 note, and that the 2007 guaranties did not limit Appellants’ joint and several

liability for the entire balance owed on the 2005 note under their 2005 guaranty

agreements.

      On the other hand, as Appellants point out, the 2007 guaranty agreements

expressly provide that each guarantor’s share of liability is limited to 33.33 percent

of the “Indebtedness,” which is in turn expressly defined as all of the principal

amount arising from “any and all” debts and obligations “now existing” that JMW

owes to Northstar, which would include the balance owed on JMW ’s 2005 loan

guaranteed by Appellants.      Nothing in the 2007 guaranty agreements limits

“Guarantors’ Share of the Indebtedness” to the amount owed under the 2007 loan.

      Additionally, Appellants note that the paragraph in the 2007 guaranty

agreements stating that all guaranty agreements with Northstar are cumulative

contains a qualifying clause, “(except as specifically stated below),” and the very

next paragraph is the provision defining “Guarantors’ Share of the Indebtedness”

as 33.33 percent of the principal amount arising from “any and all” of JMW ’s “debts,

liabilities, and obligations owed to Northstar.” These provisions support Appellant’s

interpretation that the 2007 agreements modify and limit each guarantor’s liability




County area, cross-pledged with Northstar Bank of Texas loan #84078.” Loan No.
84078 is the loan documented by the 2005 Note. If the parties had intended to have
the 2007 Guaranty affect or modify the 2005 Guaranty, they could have inserted
specific language to that effect in the 2007 Guaranty.

                                         15
under the 2005 guaranties to 33.33 percent of JMW ’s debt obligation to Northstar.

W e conclude that Appellants’ interpretation of the 2007 agreement—that their

liability under both agreements is limited to 33.33 percent of the amounts due under

both JMW ’s 2005 and 2007 loan 7 —is as reasonable as Northstar’s.

      Standing alone, the 2005 and 2007 guaranty agreements are clear and

unambiguous, but when read together, they are subject to more than one

reasonable interpretation. Applying Northstar’s interpretation would give effect to

the provisions in the 2007 guaranties that all guaranties held by Northstar are

“cumulative,” but would conflict with the language in those guaranties that

Appellants’ liability is limited to a 33.33 percent share each of JMW ’s indebtedness

“arising from any and all debts,” (not just the 2007 note) it owed to Northstar.

Conversely, giving effect to Appellants’ interpretation and thus limiting their liability

under both the 2005 and 2007 guaranties to 33.33 percent each of JMW ’s

indebtedness would give effect to the language in the 2007 guaranties limiting their

liability as to “all debts,” but would conflict with the language in the 2005 guaranties

stating that those guaranties were “absolute, continuing, and irrevocable,” and “shall


      7
         Appellants also rely on language in a small, shaded area at the top of the
2007 Guaranty that reads: “References in the shaded area are for Lender’s use only
and do not limit the applicability of this document to any particular loan or item.” W e
find that the “shaded area” language simply explains the use of the shaded area and
contains information for Northstar that does not modify, supplement, or amend any
terms of any guaranties or other documents. Cf. Mark Rotella Custom Homes, Inc.
v. Cutting, No. 2-07-133-CV, 2008 W L 623785, at *5 (Tex. App.—Fort W orth March
6, 2008, no pet.) (mem. op.) (holding that the opening paragraph of an addendum
indicates that it amends, supplements, and modifies a referenced contract).

                                           16
not be released, diminished, impaired, reduced or affected” by any reason or event

including any agreement securing or otherwise relating to that indebtedness.

      W hen the guaranty agreements are considered together, we conclude that

a latent ambiguity is presented, not as to the meaning of a specific provision in

either set of agreements, but as to the interaction of the agreements.           See

Progressive County Mut. Ins. Co. v. Kelley, 284 S.W .3d 805, 807 (Tex. 2009) (per

curiam) (holding that a latent ambiguity arises when a contract that is unambiguous

on its face is applied to the subject matter with which it deals and an ambiguity

appears by reason of some collateral matter); Parks, 1 S.W .3d at 102. Under these

circumstances, we cannot accept Appellants’ argument that the rule of strict

construction applicable to guaranty agreements requires that we adopt Appellant’s

interpretation of the agreements as a matter of law. W e conclude that a fact issue

exists as to whether the parties intended for the 2007 guaranty agreements to

supersede the 2005 agreements and thereby limit each Appellants’ liability under

the 2005 agreements to several liability for 33.33 percent of the 2005 note, requiring

remand for trial. See Kelley, 284 S.W .3d at 809 (holding, where latent ambiguity

appeared from interaction of two documents rather than in construing a provision

or exclusion of single insurance policy, fact issue as to parties’ intent regarding

whether one or two policies existed required remand for trial rather than rendition

in favor of insured under usual rule of strict construction applicable to insurance

policies). W e sustain Appellants’ sole issue.


                                         17
                                  IV. Conclusion

      Having sustained Appellants’ sole issue, we affirm in part and reverse in part.

W e affirm the judgment against JMW Partners, L.P., and the judgment of the trial

court in favor of Northstar as to McDonald’s and W ilson’s liability on their 2007

guaranty agreements. W e reverse the trial court’s judgment in favor of Northstar

as to McDonald’s and W ilson’s liability as guarantors for the balance owed by JMW

on the 2005 note, and remand that portion of the cause to the trial court for further

proceedings consistent with this opinion.




                                              ANNE GARDNER
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: June 10, 2010




                                         18
