Opinion issued July 28, 2015




                                     In The

                               Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                               NO. 01-14-00521-CV
                           ————————————
                         DAVID LUCYK, Appellant
                                       V.
                   KINDRON HOLDINGS, LLC, Appellee


                   On Appeal from the 11th District Court
                           Harris County, Texas
                     Trial Court Case No. 2013-26399


                         MEMORANDUM OPINION

      In this contract dispute, appellant David Lucyk appeals a summary judgment

granted in favor of Appellee Kindron Holdings, LLC. Lucyk’s issues on appeal are

substantially predicated on the outcome of the separate but related appeal in

Marhaba Partners Ltd. P’ship v. Kindron Holdings, LLC, 457 S.W.3d 208 (Tex.
App.—Houston [14th Dist.] 2015, pet. filed). The Fourteenth Court of Appeals

decided that appeal in a manner adverse to Lucyk’s interests, affirming a judgment

favorable to Kindron. Likewise, we affirm the judgment for Kindron in this case.

                                   Background

      This dispute arises out of a loan obtained by Marhaba Partners Limited

Partnership from City Bank in 2007.1 As part of an agreement with Harris County

Municipal Utility District No. 402, Marhaba planned to use the loaned funds to

develop a large tract of land. In return, Marhaba would receive the proceeds (the

“Receivables”) from a bond sale. The Bank secured its loan with multiple sources

of collateral, including the MUD 402 Receivables and a lien on the real property.

      In 2009, Marhaba refinanced the loan with the Bank and executed three

promissory notes. To induce the Bank to enter into the agreements, Lucyk, a partial

owner of Marhaba, executed personal guaranty agreements (the “Guaranties”),

under which he would be personally liable for payment of Marhaba’s debt on two

of the three notes. Together, the two notes evidenced a principal debt of

$9,353,111.




1
      The background regarding the loan between Marhaba and the Bank is given
      in Marhaba Partners Ltd. P’ship v. Kindron Holdings, LLC, 457 S.W.3d
      208 (Tex. App.—Houston [14th Dist.] 2015, pet. filed). To maintain
      uniformity, we use the same terminology as the Fourteenth Court to refer to
      the parties and the loan collateral.
                                         2
      After Marhaba defaulted on the loan, the Bank foreclosed on the real

property. At a non-judicial foreclosure sale in 2011 the Bank purchased one tract

of the land with a high bid of $7,140,000. An unrelated third party purchased

another tract for $995,000. The bid amounts from the foreclosure sales were

credited against Marhaba’s indebtedness under the note. According to the Bank,

the proceeds from the foreclosure sales did not extinguish Marhaba’s debt.

      The Bank sold its interests in the notes to Kindron. Along with the

promissory notes, the Bank assigned its rights under the Guaranties to Kindron.

      Kindron conducted a foreclosure sale of the remaining collateral, including

the MUD 402 Receivables, and purchased the collateral with a bid of $300,000.

After crediting the $300,000 against Marhaba’s indebtedness, Kindron asserted

that $1,235,905.38 remained unpaid.

      To recover the remaining sum, Kindron sought first to collect the proceeds

of the Receivables from Harris County MUD 402. The MUD refused to recognize

Kindron’s purchase of the Receivables, so Kindron sued Marhaba, requesting a

declaration that it was entitled to foreclose on the Receivables and that it was the

current owner of the Receivables. The trial court granted Kindron’s request and

signed a final judgment in which it declared that Kindron (1) obtained a valid and

enforceable security interest in the MUD 402 Receivables; (2) was entitled to

foreclose on the Receivables; and (3) was the current owner and holder of the


                                         3
Receivables. Marhaba appealed the trial court’s judgment, and the case became the

subject of a related appeal in the Fourteenth Court of Appeals. See Marhaba, 457

S.W.3d at 210–12. In that appeal, Marhaba argued that Kindron’s declaratory

judgment claim was an action brought to recover a deficiency and, therefore, a fact

question regarding the fair market value of the collateral precluded the trial court

awarding Kindron summary judgment on its claim. See id. at 213.

      Meanwhile, Kindron sued Lucyk for breach of the Guaranties. Kindron’s

petition alleged that Lucyk personally guaranteed the indebtedness of Marhaba,

that Kindron had demanded payment from Lucyk for the remaining indebtedness,

and that Lucyk failed to perform his obligation under the Guaranties. Kindron

further alleged that Lucyk had waived his rights and defenses under Chapter 51 of

the Texas Property Code.

      Kindron filed a traditional motion for summary judgment on its breach-of-

contract claim. Lucyk responded that Marhaba’s indebtedness already had been

extinguished by the Bank’s sale of the real property. Because the question of

Marhaba’s right to offer evidence of the fair market value of the collateral to

reduce the amount of the remaining indebtedness was then pending in the

Fourteenth Court of Appeals, Lucyk also filed a motion for continuance or

abatement of the contract claim while the Marhaba appeal was pending.




                                         4
       Instead of abating the case, the trial court granted Kindron’s motion for

summary judgment against Lucyk. The court’s order authorized Kindron to recover

from Lucyk the remaining principal sum of $1,235,905.38, attorney’s fees, court

costs, and post-judgment interest. Lucyk appealed from the final judgment entered

in the trial court.

                                      Analysis

       Lucyk’s appeal is expressly predicated on the premise that there was no

remaining deficiency owed by Marhaba after the sale of its real property collateral,

and therefore Kindron had no interest in the Receivables. On this theory, Lucyk

would not be liable to Kindron in his individual capacity.

       In his first issue, Lucyk appeals from the trial court’s grant of summary

judgment against him. In his second issue, Lucyk asserts that the trial court abused

its discretion when it denied his motion for continuance or abatement of this

lawsuit pending resolution of the Marhaba appeal in the Fourteenth Court of

Appeals.

 I.    Summary judgment on Kindron’s breach-of-contract claim

       Summary judgment is proper if the movant establishes that there is no

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

TEX. R. CIV. P. 166a(c). We employ the established standard and review the trial




                                          5
court’s summary judgment de novo. See Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005).

      Lucyk contends that the trial court erred when it awarded Kindron summary

judgment on its breach-of-contract claim because, he argues, no deficiency existed

after the Bank’s sale of the real property. To this end, he asserts that the trial court

in the Marhaba suit erred when it granted a declaratory judgment stating that

Kindron properly foreclosed on the MUD 402 Receivables, thereby becoming the

owner of the Receivables. Lucyk argues that, if the Fourteenth Court of Appeals

were to reverse the trial court in the Marhaba appeal, then Marhaba’s evidence of

the fair market value of the collateral would demonstrate that the debt was satisfied

and no deficiency exists. Thus, Lucyk contends that the trial court in this case erred

by granting Kindron summary judgment because no remaining debt exists for

which Lucyk is personally liable under the Guaranties.

      In this respect, Lucyk’s entire argument on appeal is premised on the

Fourteenth Court of Appeals reversing the trial court in the Marhaba appeal,

allowing Marhaba to offer evidence of the fair market value of the collateral and

potentially demonstrate that no remaining indebtedness exists. Since the time

Lucyk filed his brief, however, the Fourteenth Court of Appeals has issued its

opinion in the Marhaba appeal.




                                           6
       A.   The Marhaba appeal

      At issue in the Fourteenth Court of Appeals was a declaratory judgment

stating that Kindron was entitled to foreclose on the MUD 402 Receivables. See

Marhaba, 457 S.W.3d at 212.

      Marhaba argued that the trial court erred when it awarded the declaratory

judgment because a fact issue existed regarding the fair market value of the real

property sold by the Bank. Marhaba asserted that Kindron’s declaratory-judgment

action was an “action brought to recover the deficiency” as a result of the Bank’s

sale of the real property. Thus, the argument continued, Texas Property Code

section 51.003 applied to the action2 and allowed Marhaba to obtain an offset



2
      Section 51.003 states, in relevant part:

            (a) If the price at which real property is sold at a foreclosure sale
            under Section 51.002 is less than the unpaid balance of the
            indebtedness secured by the real property, resulting in a deficiency,
            any action brought to recover the deficiency must be brought within
            two years of the foreclosure sale and is governed by this section.

            (b) Any person against whom such a recovery is sought by motion
            may request that the court in which the action is pending determine
            the fair market value of the real property as of the date of the
            foreclosure sale. . . .

            (c) 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
                                          7
against the alleged deficiency by presenting evidence of the fair market value of

the real property collateral. See id. at 213–14.

      The Fourteenth Court of Appeals held that a “deficiency” under the statute is

not calculated until (1) after all the collateral has been sold; or (2) the lender seeks

to impose personal liability against the debtor through judicial action. Id. at 216.

Because Kindron’s declaratory-judgment suit against Marhaba did not seek to

impose personal liability on the debtor, and the foreclosure at issue was the sale of

remaining collateral from a series of non-judicial sales, the court determined that

Kindron’s action was not an “action brought to recover the deficiency” within the

meaning of section 51.003. Id. at 216–17.

      In sum, the Fourteenth Court of Appeals reached the opposite conclusion as

the one Lucyk assumed as central to his argument in this appeal. Because Marhaba

was not allowed to present evidence of fair market value under section 51.003, no

offset was applied against its debt. Thus, contrary to Lucyk’s assertion, at the time

the trial court awarded Kindron summary judgment in this case, Marhaba’s debt

had not been extinguished.




             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 § 51.003.
                                           8
       B.    Lucyk’s liability under the Guaranties

      The Guaranties provided that, as an inducement for the Bank to extend

financing, Lucyk would unconditionally guarantee “the prompt and full payment

and performance of the Guaranteed Indebtedness when due or declared to be due

and at all times thereafter.” The term “Guaranteed Indebtedness” was defined in

the agreements as “(i) the indebtedness arising under the certain promissory notes

from [Marhaba] to [the Bank] in the original principal amount of [$9,353,111];

(ii) all indebtedness, obligations and liabilities of [Marhaba] to Bank of any kind or

character, now existing or hereafter arising . . . .”

      Additionally, the Guaranties provided that “[t]o the maximum extent

permitted by applicable law, [Lucyk] hereby waives all rights, remedies, claims

and defenses based on or related to Sections 51.003, 51.004 and 51.005 of the

Texas Property Code (as amended from time to time).”

      Lucyk does not argue in this appeal that the Guaranties did not make him

personally liable for payment of Marhaba’s debt. He does not dispute that he can

waive his section 51.003 rights. See Moayedi v. Interstate 35/Chisam Rd., L.P.,

438 S.W.3d 1, 6 (Tex. 2014) (holding that parties can waive their rights under

section 51.003). Nor does he argue that his waiver was ineffective in any way. See

id. (“To be effective, a waiver must be clear and specific.”).




                                            9
        In essence, this appeal presents no dispute concerning whether Lucyk is

liable for the remaining debt under the Guaranties if Marhaba was not entitled to

an offset, or whether he waived his section 51.003 rights to the calculation of an

offset. As noted above, his entire appellate argument is premised on his position

that no deficiency existed on which he could be liable after the Bank’s sale of the

real property collateral. The Fourteenth Court of Appeals, however, affirmed the

trial court’s judgment establishing Marhaba’s remaining debt after the sale of the

real property. See Marhaba, 457 S.W.3d at 217. Although Lucyk makes arguments

in his brief about Kindron’s inability to recover from him if Marhaba establishes an

offset under 51.003, the Fourteenth Court’s decision renders those arguments

moot.

        Accordingly, we overrule Lucyk’s first issue.

II.     Motion to stay

        In his second issue, Lucyk argues that the trial court abused its discretion

when it denied his motion for a continuance and a plea of abatement pending

resolution of the Marhaba appeal in the Fourteenth Court of Appeals.

        Lucyk argued that the Marhaba appeal and this lawsuit involved the same

causes of action, concerned the same subject matter, involved the same issues, and

sought the same relief. It further argued that any resolution of the Marhaba appeal

would moot the issues raised in this case.


                                          10
       We review a trial court’s denial of a motion for continuance for an abuse of

discretion. See State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988).

Likewise, we review a court’s ruling on a plea of abatement for an abuse of

discretion. See Dolenz v. Cont’l Nat’l Bank of Ft. Worth, 620 S.W.2d 572, 575

(Tex. 1981).

       Lucyk does not present distinct arguments regarding the motion for

continuance and the plea in abatement. He argues that the issue is whether the trial

court should have “stayed” the proceedings. To this end, he argues that a stay was

appropriate because harm to him was likely in the event of Kindron attempting to

recover the debt immediately, because conservation of judicial resources favored a

stay, and because the Fourteenth Court’s decision would likely moot the resolution

of this case.

       Given the Fourteenth Court’s decision in the Marhaba appeal, which

compels us to overrule Lucyk’s first issue, the denial of a continuance has proved

harmless. Even if the trial court erred by failing to stay the case until resolution of

the Marhaba appeal, such an error did not cause the rendition of an improper

judgment or prevent Lucyk from properly presenting his case in this court. See

TEX. R. APP. P. 44.1.




                                          11
                                   Conclusion

      We affirm the trial court’s judgment.




                                              Michael Massengale
                                              Justice

Panel consists of Chief Justice Radack and Justices Higley and Massengale.




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