Opinion issued April 25, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00002-CV
                            ———————————
                         SHAKEEL UDDIN, Appellant
                                        V.
JACQUELINE K. CUNNINGHAM, DEPUTY RECEIVER OF SOUTHERN
   TITLE INSURANCE CORPORATION. AND SOUTHERN TITLE
             INSURANCE CORPORATION, Appellee


                    On Appeal from the 334th District Court
                             Harris County, Texas
                       Trial Court Case No. 2012-29600

                          MEMORANDUM OPINION

      Appellant Shakeel Uddin guaranteed a loan made by Sterling Bank to Nabeel

& Amaan Investments, Inc. NAI used the loan to purchase real property. Following

NAI’s loan default and a superior lienholder’s foreclosure on the property, Sterling

filed a claim under the title-insurance policy it received from Appellee Southern
Title Insurance Company. STIC, as Sterling’s subrogee, sued Uddin as guarantor of

the loan. After paying on Sterling’s insurance claim and being assigned the rights

under the loan, STIC amended its petition against Uddin, abandoning its subrogation

action and asserting a direct claim on the guaranty. STIC successfully moved for

summary judgment over Uddin’s arguments that the statute of limitations deprived

STIC of standing or capacity, STIC failed to prove each element of its claim, and he

had raised material issues of fact on his affirmative defenses. Uddin now appeals,

raising the same arguments. We conclude that the statute of limitations did not

implicate STIC’s standing, any defect in STIC’s capacity was cured by the relation-

back doctrine, STIC established each element of its claim, and Uddin contractually

waived his right to assert his other affirmative defenses. We therefore affirm.

                                    Background

      Nabeel & Amaan Investments, Inc. obtained a $1,400,000 loan from Sterling

Bank on January 10, 2008, to finance its purchase of real property located at 9112

North Broadway, Houston. By the terms of the Promissory Note, NAI had five years

to pay off the loan and granted Sterling a first lien on the property. That same day,

NAI’s president, Appellant Shakeel Uddin, signed a Guaranty Agreement,

promising Sterling that he would be responsible for NAI’s obligations under the

Note if NAI defaulted.




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      Appellee Southern Title Insurance Company, a Virginia corporation

authorized to do business in Texas, issued an Owner’s Policy to NAI and a Lender’s

Policy to Sterling.1 Under the Owner’s Policy, STIC insured NAI against loss caused

by any lien on the sold property. Under the Lender’s Policy, STIC insured Sterling

against loss caused by any lien on the property that was superior to Sterling’s lien.

Unknown to STIC and Sterling, a superior lien existed: JLE Investors, Inc. possessed

an unpaid Deed of Trust on the property that predated Sterling’s lien.

      Following NAI’s failure to make several payments on the Note, Sterling sent

a letter to NAI and Uddin on February 10, 2011, demanding full payment on the

Note and the Guaranty Agreement. Neither NAI nor Uddin paid. Twelve days later,

Sterling accelerated the Note. Sometime within the following month, Sterling

discovered that JLE’s lien was superior to its own and notified STIC. Because JLE’s

lien was never paid off, JLE foreclosed on the property in October 2011. The

property was later sold during a trustee’s sale. By this time, STIC was in serious

financial trouble.



1
      STIC issued these policies through one of its issuing agencies, American
      National Title. ANT’s director was Uddin’s business partner and fifty-percent
      co-owner of NAI, Syed Rizwan Mohiuddin. STIC filed a complaint in an
      adversary proceeding against Mohiuddin in United States Bankruptcy Court,
      seeking a determination that Mohiuddin was liable to STIC for his fraudulent
      issuance of eight title polices—including the two involved with this case.
      STIC was ultimately awarded a $8,497,832.62 nondischargeable judgment
      against Mohiuddin.
                                         3
      The State Corporation Commission of Virginia filed an application with the

Circuit Court of the City of Richmond, seeking its appointment as STIC’s receiver.

In December 2011, the Virginia circuit court found that STIC was “in a hazardous

financial condition such that any further transaction of its business will be hazardous

to its insureds, policyholders, creditors, and the public.” Accordingly, the

Commission was appointed as STIC’s receiver and was authorized “to proceed with

the rehabilitation or liquidation of [STIC] and to take whatever steps . . . reasonably

necessary . . . for the protection of [STIC’s] insureds, policyholders, creditors, or the

public.”

      On May 21, 2012, through its Virginia-appointed receiver, STIC sued Uddin

in Harris County District Court. STIC, being subrogated to Sterling’s rights against

third parties by the Lender’s Policy’s terms, sought payment from Uddin for the

damages it would incur from its having to pay Sterling under the policy. After

Sterling formally filed its claim with STIC under the Lender’s Policy in September

2012, the trial court granted an agreed plea in abatement that removed the case from

the trial court’s docket until Sterling’s claim against STIC was “settled or resolved

such that the exact amount of damages sought by [STIC could] be confirmed.”

Sterling eventually received $710,000 from STIC on its Lender’s Policy claim.

      Through a series of assignments that concluded in June 2016, Sterling’s rights

under the Note were assigned to STIC. And on August 30, 2016, STIC filed an


                                           4
amended petition against Uddin, abandoning its subrogation action and seeking full

recovery under the terms of the Guaranty Agreement. During the nearly two years

of litigation that followed, STIC unsuccessfully moved for summary judgment

numerous times, and Uddin repeatedly asserted a number of defenses, including the

statute of limitations and offsets.

      In STIC’s final attempt at summary judgment, it argued, among other things,

that under Paragraph 11 of the Guaranty Agreement, Uddin waived all defenses,

including his statute-of-limitations and offset defenses. STIC also contended that,

even if Uddin did not waive the statute-of-limitations defense, its claim under the

Note was still timely. The trial court granted STIC’s motion and ultimately signed a

judgment requiring Uddin to pay $1,656,269.28, which consisted of the Note’s

remaining principal balance, interest, and various fees. Uddin unsuccessfully moved

for a new trial and now appeals.

                                       Analysis

      Uddin contends that the trial court improperly granted summary judgment

because the statute of limitations deprived it of subject-matter jurisdiction; STIC did

not cure its lack of capacity until after the statute of limitations lapsed; STIC failed

to prove each breach-of-contract element; and Uddin raised fact issues on his other

affirmative defenses.




                                           5
I.    Statute of limitations and its effect on STIC’s capacity

      Uddin contends that the trial court erred by granting summary judgment for

STIC because he raised a fact issue concerning his statute-of-limitations defense.

We review a trial court’s rendition of summary judgment de novo, interpreting all

summary-judgment evidence and making all reasonable inferences in favor of the

nonmovant. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756–57 (Tex.

2007). To prevail on summary judgment, the movant must demonstrate that no

genuine issue of material fact exists and that it is entitled to judgment as a matter of

law. Tarr v. Timberwood Park Owners Ass’n, 556 S.W.3d 274, 278 (Tex. 2018).

Once the movant makes this showing, the burden shifts to the nonmovant to show

that there exists a genuine issue of material fact sufficient to preclude summary

judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.

1979). A genuine issue of fact exists when reasonable and fair-minded jurors could

differ in their conclusions in light of all summary-judgment evidence. Goodyear

Tire, 236 S.W.3d at 755.

      The statute of limitations for a breach-of-contract action is four years from the

date of accrual. TEX. CIV. PRAC. & REM. CODE § 16.004(a)(3). A breach-of-contract

claim accrues when, according to the language of the agreement, facts that authorize

the claimant to seek a judicial remedy come into existence. See Exxon Mobil Corp.




                                           6
v. Rincones, 520 S.W.3d 572, 591 (Tex. 2017). Whether and when accrual occurs is

a question of law. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).

      The Guaranty Agreement provides, “In each event whenever any of the

Obligations shall become due and remain unpaid . . . Guarantor will, on demand, pay

the amount due thereon to Lender . . . .” On February 10, 2011, Sterling demanded

payment of all past-due amounts no later than February 22, 2011. Uddin failed to

make that payment, and Sterling accelerated the Note on February 22, 2011.

Accordingly, Sterling’s breach-of-contract claim accrued in February 2011,

meaning the statute of limitations expired in February 2015.

      An assignee “takes the assigned rights subject to all defenses which the

opposing party might be able to assert against his assignor.” Burns v. Bishop, 48

S.W.3d 459, 466 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Therefore, a

claim otherwise barred by the applicable statute of limitations cannot be made viable

by assignment. Uddin stresses that, by February 2015, STIC had not been assigned

the rights under the Guaranty Agreement and that Sterling first sued on the Guaranty

Agreement in August 2016, well after the statute of limitations expired in February

2015. It follows, Uddin contends, that “[b]y the time STIC acquired Sterling’s claim

on the Guaranty Agreement through assignment in June 2016, limitations had

already expired, and the claim was barred.”




                                         7
      In its motion for summary judgment and its reply to Uddin’s motion for new

trial, STIC argued that, under the Guaranty Agreement, Uddin waived all defenses,

including his statute-of-limitations defense. Paragraph 11 of the Guaranty

Agreement provides:

      Guarantor waives . . . all defenses given to sureties or guarantors at law
      or in equity other than actual payment of the indebtedness and
      performance of the actions constituting the Obligations, including, but
      not limited to, any rights pursuant to Rule 31 of the Texas Rules of Civil
      Procedure, Sections 51.003 – 51.005 of the Texas Property Code, and
      Chapter 34 of the Texas Business and Commerce Code.

Uddin contends that this language unambiguously does not waive the limitations

defense. He contends alternatively that even if the language did waive the limitations

defense, it did so improperly because, in general, a contract that waives a statute-of-

limitations defense without explicitly referencing the applicable statute of

limitations and defining the length of time that the limitations defense is suspended

is contrary to public policy and therefore void. See Segal v. Emmes Capital, L.L.C.,

155 S.W.3d 267, 280–81 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

      STIC, on the other hand, contends that Paragraph 11 unambiguously waives

the limitations defense and that Uddin cannot make his public-policy argument here

because he failed to file a verified denial alleging that Paragraph 11 was void to the

extent that it purports to waive the limitations defense. See 950 Corbindale, L.P. v.

Kotts Capital Holdings Ltd. P’ship, 316 S.W.3d 191, 196 (Tex. App.—Houston

[14th Dist.] 2010, no pet.) (“An allegation that a provision in a contract is void,
                                          8
unenforceable, or unconscionable is a matter in the nature of avoidance and must be

affirmatively pleaded.” (citing TEX. R. CIV. P. 94)). We need not address this issue,

however, because the relation-back doctrine obviates any potential limitation issue.

      Franks v. Sematech, Inc., 936 S.W.2d 959 (Tex. 1997) is instructive. After

paying workers’ compensation benefits to workers injured by the defendant, the

insurance carrier filed suit against the third parties who allegedly caused the

workers’ injuries. Id. at 959. The carrier brought the subrogation action in its own

name before the applicable two-year statute of limitations had expired. Id. After

limitations expired, but while the suit was still pending, one of the injured workers

intervened and asserted claims against the third-party defendants. Id. at 960. The

trial court granted the third-party defendants’ motion for summary judgment on the

ground that the intervenor’s claims were barred by limitations. Id. The court of

appeals affirmed, but the supreme court reversed.

      In holding that the intervenor’s claim was not time barred, the supreme court

explained that, even though the “carrier . . . assert[ed] its subrogation claim

independently of the employee, . . . [its] claim [was] still derivative of the

employee’s claim.” Id. “After limitations has run, a carrier who originally limited its

demand to benefits paid could amend its pleadings to demand full recovery of all

damages owed.” Id. Accordingly, the court concluded, “There is no reason why the

employee should not be able to accomplish the same result by intervening in the


                                          9
subrogation action, even after limitations has run, to claim full recovery from the

third party.” Id. at 960–61.

      We see no reason why the Franks rationale should not apply here. Relation

back was permissible in Franks because the carrier’s initial subrogation action was

derivative of the claims of the workers injured by the defendants. Id. at 960. Similar

to Franks, STIC’s original petition was a subrogation action derivative of Sterling’s

claim against Uddin. Therefore, STIC’s claims in its amended petition relate back to

its original petition and are not barred by limitations. See id. at 961.

II.   Statute of limitations and its effect on STIC’s standing

      Uddin contends that the statute-of-limitations issue presents a standing

problem, not a capacity problem curable by the relation-back doctrine. Standing is a

component of a trial court’s subject-matter jurisdiction. Texas Ass’n of Bus. v. Texas

Air Control Bd., 852 S.W.2d 440, 445–46 (Tex. 1993). When a plaintiff lacks

standing to bring a claim, the trial court is deprived of subject-matter jurisdiction

and the case must be dismissed. See id. Because standing implicates a trial court’s

subject-matter jurisdiction, we typically address standing arguments first. See BP

America Prod. Co. v. Laddex, Ltd., 513 S.W.3d 476, 479 (Tex. 2017). But because

Uddin’s standing argument requires an understanding of the relation-back doctrine

discussed above, we address Uddin’s standing argument here.




                                           10
       According to Uddin, when STIC filed its original subrogation action on May

21, 2012, it lacked standing to sue on the Guaranty Agreement because it had not

yet been assigned the rights under the Note. Uddin maintains that because standing

cannot be waived nor cured by the relation-back doctrine, and because STIC was

assigned Sterling’s rights under the Note in June 2016—over a year after the statute

of limitations expired—allowing STIC’s August 30, 2016 amended petition to relate

back to its original May 21, 2012 petition to cure its lack of standing was improper.

      Uddin correctly states that standing cannot be waived nor cured by the

relation-back doctrine. Heckman v. Williamson Cty., 369 S.W.3d 137, 164 (Tex.

2012); Raytheon Co. v. Boccard USA Corp., 369 S.W.3d 626, 631 (Tex. App.—

Houston [1st Dist.] 2012, pet. denied). Nevertheless, we reject Uddin’s argument

because the four-year statute of limitations imposed on STIC’s claims is not a

jurisdictional requirement.

      Limitations is generally classified as an affirmative defense and is not

jurisdictional in nature. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex.

2010). Absent some contrary expression of legislative intent, courts should follow

this general rule and not construe an applicable statute of limitations as imposing a

jurisdictional requirement that the claim be timely filed. See id. (citing for example

TEX. GOV’T CODE § 311.034 (providing that “statutory prerequisites to a suit,

including the provision of notice, are jurisdictional requirements in all suits against


                                          11
a governmental entity”)). Because nothing in section 16.004 of the Texas Civil

Practice and Remedies Code or related statutes suggest a legislative intent to impose

a jurisdictional requirement, we hold that subsection 16.004(a)(3)’s four-year

limitations period is not jurisdictional. Rather, it presents an issue of capacity, and

deficient capacity can be cured by the relation-back doctrine. See, e.g., Intracare

Hosp. North v. Campbell, 222 S.W.3d 790, 796–97 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (citing Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845 (Tex.

2005)). Accordingly, we overrule Uddin’s statute-of-limitations issues.

III.   Contractual waiver of Uddin’s defenses

       Uddin contends that summary judgment was nevertheless improper because

he raised material issues of fact relating to his defense of offset, which was based on

alleged misrepresentation, conversion, negligence, breach of contract, breach of

fiduciary duty, Insurance Code and DTPA violations, unjust enrichment, and

equitable estoppel. STIC counters by arguing that Uddin waived these offset

defenses under Paragraph 11 in the Guarantee Agreement.

       STIC is correct. “The right of offset is an affirmative defense.” Brown v. Am.

Transfer & Storage Co., 601 S.W.2d 931, 936 (Tex. 1980). In Paragraph 11, Uddin

waived “all defenses given to sureties or guarantors.” Accordingly, Uddin waived

his offset defense and its underlying theories.




                                          12
      We are not swayed from our conclusion by Uddin’s argument that Paragraph

11 waived only those defenses that are exclusively available to guarantors and

sureties. We give a contract’s language the plain and ordinary meaning it deserves.

ConocoPhillips, 547 S.W.3d at 837. Uddin reads the Paragraph 11 as stating,

“Guarantor waives . . . all defenses given only to sureties or guarantors at law or in

equity . . . .” But that is not what it says. Under the contract, Uddin waived “all

defenses given to sureties or guarantors.” That the offset defense is not a defense

exclusive to sureties or guarantors does not change the fact that it is a defense “given

to sureties or guarantors.”

      Further, that Paragraph 11 goes on to specifically describe certain defenses as

being waived does not suggest, as Uddin contends, that the parties were limiting the

waiver to those defenses available only to sureties or guarantors. For example,

Paragraph 11 states explicitly that the waiver encompasses “any rights pursuant to

. . . Sections 51.003 – 51.005 of the Texas Property Code.” In rejecting a guarantor’s

argument that a waiver was insufficiently specific to waive section 51.003(a)’s two-

year statute of limitations, our sister court held that a waiver stating that a “Guarantor

also waives any and all rights or defenses arising by reason of . . . [any] ‘anti-

deficiency law’” was sufficiently specific to waive all defenses based on an anti-

deficiency law, “includ[ing] a defense based on 51.003(a)’s two-year statute of

limitations.” Godoy v. Wells Fargo Bank, N.A., 542 S.W.3d 50, 52–53 (Tex. App.—


                                           13
Houston [14th Dist.] 2017, pet. granted). Accordingly, that Paragraph 11 specifically

identified some defenses and not others is not conclusive proof that the parties

intended to waive defenses available only to sureties and guarantors, as Uddin

contends; rather, that fact simply confirms the party’s intent, as expressed in

Paragraph 16 of the Guaranty Agreement, to draft a contract that “compl[ied] with

usury and all other laws relating to this Guaranty.” Accordingly, we overrule

Uddin’s issues regarding his other affirmative defenses.

IV.   Conclusively establishing each element of breach of contract

      Uddin contends that summary judgment was improperly granted because

STIC failed to conclusively prove each element of its breach-of-contract claim. A

plaintiff seeking to enforce a note must establish that the note exists, it is the owner

or holder of the note, and “a certain balance is due and owning on the note.” Leavings

v. Mills, 175 S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2004, no pet.). Uddin

argues that STIC offered no evidence establishing as a matter of law that

$1,656,269.28 was the amount owed under the Guarantee Agreement.

      STIC’s summary-judgment evidence included the Note, Uddin’s guaranty of

the Note, the assignment of the Note to STIC, and a “payoff statement” that was part

of Sterling’s business records. Each document was described either by the affidavit

of John Cox, a STIC receiver, or Mary Hensley, a records custodian for Sterling. To

establish the amount owed under the Guaranty Agreement, STIC largely relied on


                                          14
the “payoff statement” attached to Hensley’s affidavit. Generally, a “payoff

statement” is a “statement of the amount of . . . the unpaid balance of a loan secured

by a mortgage, including principal, interest, and other charges properly assessed

under the loan documentation of the mortgage . . . and . . . interest on a per diem

basis for the unpaid balance.” TEX. PROP. CODE § 12.017(a)(5).

      The “payoff statement” provides that a principal balance of $1,082,525.55

was due and owing on September 15, 2016. It also lists as due and owing by that

same date interest in the amount of $541,690.99, late fees in the amount of

$10,075.41, and other fees in the amount of $21,977.33. It then lists the total

“payoff” as $1,656,269.28, which is the cumulative amount of the principal balance,

interest, and fees. The trial court’s judgment ordered Uddin to pay STIC

$1,656,269.28. Uddin contends, however, that there are numerous inconsistencies

and unexplained numbers in this “payoff statement” that make it incapable of

conclusively establishing the amount owed. We disagree.

      Uddin contends that the payoff statement does not conclusively demonstrate

that it describes the Note, pointing out that the payment statement reads,

“GUARANTEE : NO,” “ORG EFF DATE: [November 14, 2011.],” and “ORIG LN

AMOUNT: 1,332,525.55. He maintains that because this lawsuit is based on the

Note that he guaranteed for $1,400,000 and that was executed on January 10, 2008,

these three discrepancies raise the reasonable possibility that the payoff statement


                                         15
addresses some other loan. But Uddin swore in an affidavit that Sterling extended

only one loan to NAI, and the payoff statement lists the loan as being provided to

“NABELL AMAAN IN.” Further, November 14, 2011 is the same date the trial

court signed an order of nonsuit dismissing Sterling’s claim against NAI for

collection on the Note without prejudice. Further, the Note required NAI to pay off

the entire loan balance within five years, and the payoff statement lists the “MAT

DATE” as January 10, 2013, exactly five years after the Note was executed. Last,

under the heading “PAYMENT INFO,” the payoff statement lists “1,400,000” as the

“PAYOFF AMOUNT.” This amount conforms with the amount listed in the Note,

the Guaranty Agreement, the Purchaser’s and Seller’s Statements, and Uddin’s

affidavit. The discrepancies that Uddin identifies in the payoff statement are negated

by reference to the other summary-judgment evidence and therefore do not raise a

genuine issue of material fact. The trial court properly determined that STIC

conclusively established $1,656,269.28 as the amount due and owing under the

Note. We therefore overrule Uddin’s last issue.

                                    Conclusion

      The trial court’s judgment is affirmed.



                                                Richard Hightower
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.
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