Reverse and Render in part and Remand in part; Opinion Filed August 13, 2013.




                                             In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas

                                      No. 05-11-00912-CV

                     COMPASS BANK, Appellant
                               V.
            MANCHESTER PLATINUM MANAGEMENT, INC.,
  TODD ALLAN DEVEILLENEUVE, AND ALLAN R. DEVEILLENEUVE, Appellees

                     On Appeal from the 191st Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. DC10-1478-J

                              MEMORANDUM OPINION
                        Before Justices FitzGerald, Fillmore, and Evans
                                   Opinion by Justice Evans
       This is an appeal from a summary judgment in a deficiency action. Compass Bank brings

two issues contending the trial court erred in denying its motion for summary judgment and

granting appellees’ motion for summary judgment because appellees waived their right to a fair

market value offset against the deficiency owed.        Because we conclude that appellees

contractually waived their right to an offset, we reverse the trial court’s judgment and render

judgment in part for Compass.

                                           BACKGROUND

       The relevant facts of this case are undisputed. On August 7, 2007, Manchester Platinum

Management, Inc. executed and delivered a promissory note to Compass promising to pay the

principal amount of $873,700 along with interest due. The note was secured by a deed of trust
on real property. Among other provisions, the deed of trust stated that “Borrower waives the

benefit of any statute regulating the obtaining of a deficiency judgment or requiring that the

value of the Property be set off against any part of the indebtedness secured hereby.” The note

was further secured by continuing guaranties signed by Todd Allan deVeilleneuve and Allan R.

deVeilleneuve. Both guaranties included the following language:

             The obligations of the Guarantor hereunder are independent of the obligations of
             the Borrower, and a separate action or actions may be brought and prosecuted
             against Guarantor whether action is brought against Borrower or whether
             Borrower be joined in any such action or actions; and Guarantor waives, to the
             fullest extent permitted by applicable law, the benefit of any statute of limitations
             or other defenses affecting its liability hereunder or the enforcement thereof.

             Manchester eventually defaulted on the note. Pursuant to the deed of trust, Compass sold

the real property securing the note at a nonjudicial foreclosure sale on July 6, 2010, for $538,650

resulting in a deficiency of $392,892. Compass sued appellees seeking to recover the deficiency

plus costs, interest, and attorney’s fees.

             Appellees filed a motion in the trial court requesting a determination of the property’s fair

market value, along with a counterclaim under section 51.003 of the Texas Property Code

seeking an offset against the deficiency in the amount that the property’s fair market value

exceeded the amount paid for the property at foreclosure. See TEX. PROP. CODE ANN. § 51.003

(West 2007).1 Appellees then filed a motion for summary judgment asserting that the fair market

value of the foreclosed property was $855,000 and requesting an offset against the deficiency in

the amount of $316,350.



1
    Section 51.003(c) states:
               If the court determines that the fair market value is greater than the sale price of the real property at the foreclosure
               sale, the persons against whom recovery of the deficiency is sought are entitled to an offset against the deficiency in
               the amount by which the fair market value, less the amount of any claim, indebtedness, or obligation of any kind that
               is secured by a lien or encumbrance on the real property that was not extinguished by the foreclosure, exceeds the sale
               price.
TEX. PROP. CODE ANN. § 51.003(c).



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       Compass filed its own motion for summary judgment arguing that appellees had waived

their right to an offset by virtue of the waiver language in the deed of trust and the guaranties.

Following a hearing, the trial court granted appellees’ motion for summary judgment and denied

the motion filed by Compass. The court then signed a final judgment applying the offset to the

amount owed by appellees and awarding Compass the sum of $18,700 plus prejudgment interest.

It is from this final judgment that Compass appeals.

                                          ANALYSIS

I. Standard of Review

       The standard for reviewing a traditional summary judgment is well established. See

Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994). We review a summary

judgment de novo to determine whether a party has established its right to prevail as a matter of

law. See First Union Nat’l Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 923

(Tex. App.—Dallas 2005, no pet.). When, as here, both parties move for summary judgment,

each party bears the burden of establishing its entitlement to judgment as a matter of law. See

Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46,

50 (Tex. App.—Dallas 2006, pet. denied). If the trial court grants one motion for summary

judgment and denies the other, we review the summary judgment evidence presented by both

sides, determine all questions presented, and render the judgment the trial court should have

rendered. See Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648

(Tex. 2004).

II. Waiver Under the Guaranty Agreements

        We first address Compass’s argument that the trial court erred in denying its motion for

summary judgment, and granting summary judgment in favor of the guarantors because the

guarantors waived their right to a fair market value offset against the deficiency in the guaranty

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agreements. We construe guaranty agreements as any other contract. See Interstate 35/Chisam

Road, L.P. v. Moayedi, 377 S.W.3d 791, 796 (Tex. App.—Dallas 2012, pet. filed). We favor an

interpretation that harmonizes and gives effect to all the provisions of the contract so that none is

rendered meaningless and no single provision taken alone will be given controlling effect. Id. at

797. Unless the agreement shows the parties used a term in a technical or different sense, the

terms are given their plain, ordinary, and generally accepted meaning. See Heritage Res., Inc. v.

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996).

       The language in the guaranty agreements provides in pertinent part that the “Guarantor

waives, to the fullest extent permitted by applicable law, the benefit of any statute of limitations

or other defenses affecting its liability hereunder or the enforcement thereof.” Appellees do not

contend that their right to an offset under section 51.003 was not subject to waiver. Appellees

argue only that the waiver language in the guaranties was not specific enough to waive their

rights under section 51.003. We disagree.

        In Moayedi, this Court held that language in a guaranty waiving “any defense” was

sufficient to waive a guarantor’s right to an offset under section 51.003. See Moayedi, 377

S.W.3d at 800. We reasoned that the term “any” was synonymous with the terms “each” and

“every” and, therefore, the general waiver language encompassed all possible defenses that

might exist including the right to offset. Id. In this case, the guarantors contractually agreed to

waive “the benefit of any statute of limitations or other defenses affecting [their] liability” under

the guaranty. Based on our holding in Moayedi, we conclude this language was sufficient to

waive the guarantors’ right to an offset against the deficiency. See Smith v. Town N. Bank, No.

05-11-00520-CV, 2012 WL 5499406, at *3 (Tex. App.—Dallas Aug. 3, 2012, pet. denied)

(mem. op.) (following Moayedi as binding); see also MobileVision Imaging Servs. v. LifeCare

Hosps. of N. Tex., L.P., 260 S.W.3d 561, 566 (Tex. App.—Dallas 2008, no pet.) (stating earlier

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decision of this Court binding absent intervening change in law by legislature, higher court, or

this Court sitting en banc).

       Appellees contend the language of the guaranty does not apply in this case because the

guarantors asserted their right to an offset as a counterclaim and not as a defense. This is a

distinction without a difference. The fact that appellees postured their request for an offset as a

counterclaim does not change the fundamental nature of the request as an affirmative defense.

See Martin v. PlainsCapital Bank, No. 05-10-00235-CV, 2013 WL 1313770, at *6 (Tex. App.—

Dallas Mar. 28, 2013, pet. filed) (“Section 51.003 is an affirmative defense because the borrower

is seeking an offset.”); Branch Banking & Trust Co. v. TCI Luna Ventures, LLC, No. 05-12-

00653-CV, 2013 WL 1456651, at *5 (Tex. App.—Dallas Apr. 9, 2013, no. pet.) (op. on reh’g)

(section 51.003(b) “provides that requesting a court to determine fair market value is a defense

for reducing liability for a deficiency judgment”).     The offset would not give appellees a

recovery, but rather would allow them to negate a portion of Compass’s claim for deficiency.

See Moayedi, 377 S.W.3d at 799.        The language of the guaranty agreements applies and,

pursuant to that language, the guarantors waived their right to an offset under section 51.003 as a

matter of law. Accordingly, we reverse the trial court’s judgment in favor of Todd Allan

deVeilleneuve and Allan R. deVeilleneuve and render judgment for Compass on the guaranty

agreements against Todd Allan deVeilleneuve and Allan R. deVeilleneuve in the principal

amount of $392,892.

III. Waiver Under the Deed of Trust

       We next address whether Manchester waived its right to an offset pursuant to the waiver

language in the deed of trust. The deed of trust states that “Borrower waives the benefit of any

statute regulating the obtaining of a deficiency judgment or requiring that the value of the

Property be set off against any part of the indebtedness secured hereby.” This language is more

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specific than that found in the guaranty agreements and clearly encompasses a waiver of the right

to offset under section 51.003.

       Appellees contend the cases holding that the right to an offset may be waived do not

apply to Manchester as the maker of the note because the opinions address only waiver by a

guarantor. While the cases addressing the ability to waive the right to an offset have done so in

the context of a guaranty, appellees make no argument that, and we can see no reason why, the

reasoning of the opinions is not equally applicable to the maker of a note. Section 51.003 was

designed to protect both borrowers and guarantors in a deficiency suit. Id. at 797. As we noted

in Moayedi, the Texas Legislature specifically chose not to make the offset right non-waivable

and such a waiver does not offend fundamental Texas policy. Id. at 797–98. Nothing in the

language of section 51.003 would compel us to distinguish between a maker of a note and a

guarantor for the purposes of waiver. Because the right to an offset may be waived and the

waiver language in the deed of trust clearly encompassed this right, we conclude Manchester

waived its right to an offset against the deficiency as a matter of law. The trial court erred in

denying Compass’s motion for summary judgment as to the deed of trust and in granting

summary judgment in favor of Manchester. Accordingly, we reverse the trial court’s judgment

in favor of Manchester and render judgment for Compass against Manchester on the note in the

principal amount of $392,892.

IV. Attorney’s Fees

       In addition to the deficiency, Compass sought to recover attorney’s fees. The final

judgment of the trial court did not award attorney’s fees to Compass. The summary judgment

evidence reflects that both the note and the guaranties require the payment of reasonable costs

and attorney’s fees incurred in collecting on the note and enforcing the deed of trust. Because

we conclude the trial court erred in denying Compass’s motion for summary judgment and in

                                              –6–
granting summary judgment in favor of appellees, we also conclude the issue of attorney’s fees

must be remanded to the trial court for reconsideration in light of this opinion.

                                         CONCLUSION

       Based on the foregoing, we reverse the trial court’s judgment in favor of Manchester

Platinum Management, Inc., Todd Allan deVeilleneuve, and Allan R. deVeilleneuve and denying

summary judgment in favor of Compass Bank; we render judgment for Compass Bank on the

note and guaranty agreements against Manchester Platinum Management, Inc., Todd Allan

deVeilleneuve, and Allan R. deVeilleneuve, jointly and severally, in the principal amount of

$392,892; and we remand the case to the trial court for further proceedings consistent with this

opinion including the calculation of interest after July 6, 2010.




FitzGerald, J. dissenting
110912F.P05                                           /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE




                                                –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

COMPASS BANK, Appellant                             On Appeal from the 191st Judicial District
                                                    Court, Dallas County, Texas
No. 05-11-00912-CV         V.                       Trial Court Cause No. DC10-1478-J.
                                                    Opinion delivered by Justice Evans,
MANCHESTER PLATINUM                                 Justices FitzGerald and Fillmore
MANAGEMENT, INC., TODD ALLAN                        participating.
DEVEILLENEUVE, AND ALLAN R.
DEVEILLENEUVE, Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that COMPASS BANK recover the principal
amount of $392,892 from MANCHESTER PLATINUM MANAGEMENT, INC., TODD
ALLAN DEVEILLENEUVE, and ALLAN R. DEVEILLENEUVE, jointly and severally. In all
other respects, the case is REMANDED to the trial court for further proceedings consistent with
this Court’s opinion.
        It is ORDERED that appellant COMPASS BANK recover its costs of this appeal from
appellees MANCHESTER PLATINUM MANAGEMENT, INC., TODD ALLAN
DEVEILLENEUVE, AND ALLAN R. DEVEILLENEUVE.


Judgment entered this 13th day of August, 2013.




                                                    /David Evans/
                                                    DAVID EVANS
                                                    JUSTICE




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