                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-10-00289-CV


WELLS FARGO BANK, N.A. F/K/A                        APPELLANT
WELLS FARGO BANK MINNESOTA,
N.A., AS TRUSTEE FOR THE
REGISTERED HOLDERS OF J.P.
MORGAN CHASE COMMERCIAL
MORTGAGE SECURITIES CORP.,
COMMERCIAL MORTGAGES PASS-
THROUGH CERTIFICATES, SERIES
2003-PMI, ACTING BY AND THROUGH
ORIX CAPITAL MARKETS, LLC

                                    V.

MBS - THE HILLS, LTD., 3101 W.                      APPELLEES
NORMANDALE, L.L.C., MICHAEL B.
SMUCK, AND EDWIN A. WHITE


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         FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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              DISSENTING MEMORANDUM OPINION
                 ON EN BANC CONSIDERATION1

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     1
     See Tex. R. App. P. 47.4.
      I continue to respectfully dissent from the majority‘s holding that the

agreement between Wells Fargo and Smuck and White is not a guaranty and

that Smuck and White are not liable for the judgment against MBS - The Hills and

Normandale (the Borrowers).      I withdraw the prior dissenting memorandum

opinion issued December 8, 2011, and substitute the following.

I. The indemnity agreement functions as a guaranty.

      As the majority explains, MBS - The Hills is a limited partnership, and its

general partner Normandale is a limited liability company. Wells Fargo required

Smuck and White to sign the indemnification agreement so that it would have an

avenue to recoup its investment should the nonrecourse exceptions be

triggered.2   Indeed, the indemnification agreement states, ―As a condition to

making the Loan, Lender has required that Indemnitor indemnify Lender with

respect to the matters set forth herein.‖ When we construe the agreement, we

are required to bear that intention in mind. See Coker v. Coker, 650 S.W.2d 391,

393 (Tex. 1983) (―In construing a written contract, the primary concern of the

court is to ascertain the true intentions of the parties as expressed in the

instrument.‖).

      When the exceptions were triggered, the Borrowers became liable under

the note for ―the amount of any losses or damages sustained by [Wells Fargo] in

      2
       The majority opinion recognizes the intent of the parties by stating, ―Wells
Fargo‘s predecessor-in-interest had Smuck and White sign the nonrecourse
indemnification agreement, seeking indemnification from Smuck and White if the
nonrecourse exceptions under the note were triggered.‖ Maj. Op. at 9.


                                        2
connection with‖ the exceptions. When the Borrowers became liable under the

note, Smuck and White became liable under the indemnity agreement.             The

agreement, although styled as an indemnity agreement, essentially ―functioned

as a guarantee that if [MBS - The Hills] did not make good on any obligation for

which it was liable under recourse provisions of the note . . . , [Smuck and White]

would make good on them.‖ White v. MLMT 2004-BCP1 Carlyle Crossing, LLC,

No. 02-10-00233-CV, 2011 WL 3672022, at *6 (Tex. App.—Fort Worth Aug. 18,

2011, pet. denied) (mem. op.) (construing a nearly identical indemnity

agreement);3 see also Farmers & Merchs. State Bank of Krum, 79 S.W.3d 615,

617 (Tex. App.—Eastland 2002, pet. denied) (―A ‗guaranty‘ is a species of

indemnity contract. It is a promise to stand responsible for occurrence of an

event that may not be directly within the control of the immediate parties to the

contract.‖) (quoting Bohart v. Universal Metals & Machinery, Inc., 523 S.W.2d

279, 288–90 (Tex. Civ. App.—Dallas 1975) (Guittard, J., dissenting), rev’d, 539

S.W.2d 874 (Tex. 1976)).

      Paragraph 2 of the agreement states, in whole,

          2. Indemnity. INDEMNITOR HEREBY ASSUMES LIABILITY
      FOR AND AGREES TO PAY, PROTECT, INDEMNIFY, DEFEND

      3
       As discussed infra, the majority distinguishes the facts of this case from
those of MLMT. I cite MLMT here for the proposition that the indemnity
agreement in that case ―functioned as a guarantee,‖ precisely as the agreement
functions in this case. I believe the majority‘s holding that this agreement does
not function as a guarantee directly conflicts with our construction of the almost
identical agreement in MLMT regardless of the distinctions upon which the
majority relies.


                                        3
      AND HOLD HARMLESS LENDER . . . FROM AND AGAINST ANY
      AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
      COSTS AND EXPENSES (INCLUDING ATTORNEYS‘ FEES),
      CAUSES OF ACTION, SUITS, CLAIMS, DEMANDS AND
      JUDGMENTS WHICH AT ANY TIME MAY BE IMPOSED UPON,
      INCURRED BY OR AWARDED AGAINST LENDER AND FOR
      WHICH BORROWER AT ANY TIME MAY BE PERSONALLY
      LIABLE PURSUANT TO THE NON-RECOURSE EXCEPTIONS (AS
      DEFINED IN PARAGRAPH 12 OF THE NOTE). EACH PERSON
      OR PARTY EXECUTING THIS INDEMNITY AGREES THAT THE
      LIABILITY HEREUNDER SHALL BE JOINT AND SEVERAL.

      Smuck argues that the language ―judgments which at any time may be

imposed upon, incurred by or awarded against Lender and for which Borrower at

any time may be personally liable‖ requires Smuck and White to assume liability

only for obligations for which Wells Fargo would be liable to a third party based

on MBS - The Hills‘s violation of the nonrecourse exceptions. This is far too

narrow a reading and makes little sense in light of the reason why Wells Fargo

required the agreement. See Coker, 650 S.W.2d at 393 (noting that to achieve

the objective of ascertaining the parties‘ intentions, ―courts should examine and

consider the entire writing in an effort to harmonize and give effect to all the

provisions of the contract so that none will be rendered meaningless‖).

Paragraph 2 protects against much more than just claims against Wells Fargo for

the Borrowers‘ actions.    It also offers coverage for ―any and all liabilities,

obligations, losses, damages, costs and expenses . . . incurred by . . . Lender‖ as

the result of the nonrecourse exceptions, which was the case here.

      While an indemnity agreement protects against actions by third parties,

Nat’l City Mortg. Co. v. Adams, 310 S.W.3d 139, 144 (Tex. App.—Fort Worth


                                        4
2010, no pet.) (noting that an indemnity contract ―obligates the indemnitor to

protect the indemnitee against liability claims of persons not a party to the

agreement‖) (internal quotation mark omitted) (quoting Dresser Indus., Inc. v.

Page Petroleum, Inc., 821 S.W.2d 359, 362–63 (Tex. App.—Waco 1991), aff’d in

part and reversed in part 853 S.W.2d 505, 508 (Tex. 1993)), the agreement

between Smuck and White and Wells Fargo protects against more than that.

Further, it is clear from the language of the agreement that the parties intended

the agreement not to stand alone like a traditional indemnity agreement but to be

―collateral and secondary to the principal contract that is guaranteed in the

secondary contract‖ like a guaranty.       Joseph Thomas, Inc. v. Graham, 842

S.W.2d 343, 346 (Tex. App.—Tyler 1992, no writ).

      The trial court agreed with Smuck‘s argument. In its findings of fact, the

trial court stated, ―[O]n July 16, 2003, [Smuck and White] executed a Non-

Recourse Indemnification Agreement with [Wells Fargo] in which they agreed to

indemnify [Wells Fargo] against certain claims that might be brought by third-

parties.‖ Further, the court found that ―[t]he indemnification agreement does not

operate as a guaranty of any obligation of the defendant business entities, which

were not party to the agreement.‖ [Emphasis added.]            Thus, the trial court‘s

judgment in favor of Smuck and White is based on the finding that they agreed

only to indemnify the noteholder against third-party claims.

      It is that exact finding that Wells Fargo challenges in its first issue on

appeal. In affirming the trial court‘s judgment, the majority opinion implicitly holds


                                          5
this finding to be in error.   Yet the majority also holds that the indemnity

agreement in question ―gives Wells Fargo recourse against Smuck and White for

‗the amount of any losses or damages sustained by the lender in connection with

such Non-Recourse Exceptions.‘‖ Maj. Op. at 11. This is contrary to the trial

court‘s finding and assumedly to the reason for the trial court‘s denial of Wells

Fargo‘s claim against Smuck and White. The majority ultimately holds that with

proper evidence, Smuck and White would be personally liable for waste

damages pursuant to the nonrecourse exceptions. Nevertheless, the majority

overrules Wells Fargo‘s first issue and, contrary to its own reasoning, holds ―that

the evidence supports the trial court‘s ‗finding‘ that the nonrecourse

indemnification agreement did not operate as a guaranty of any obligation of

MBS - The Hills and Normandale.‖       Maj. Op. at 12. I agree with the recent

decision out of our sister court, construing an identical indemnity clause in a

contract between Wells Fargo and another MBS special entity and referencing

this court‘s now-withdrawn opinion in this case, that the majority‘s reasoning here

―effectively held [that] the Indemnification Agreement is a guaranty of all the

borrower‘s liability under the Non-Recourse Exceptions, which would include

Wells Fargo‘s own losses in connection with the Non-Recourse Exceptions.‖

Wells Fargo Bank, N.A. v. Smuck, No. 14-12-00574-CV, 2013 WL 3422888, at

*4–5 (Tex. App.—Houston [14th Dist.] July 9, 2013, no pet. h.) (―The

Indemnification Agreement functions as appellees‘ [i.e., Smuck and White‘s]

guaranty of all MBS - The Falls‘s liability under the Non-Recourse Exceptions.‖).


                                        6
The contract should be construed as functioning as a guaranty of payment if the

nonrecourse exceptions were violated. See White, 2011 WL 3672022, at *6. I

would sustain Well Fargo‘s first issue.

II. Wells Fargo is not required to re-prove its damages because its

interlocutory summary judgment against the Borrowers is not before us.

      The majority cites to the Fourteenth Court of Appeals opinion in Smuck as

support for its position, but the Smuck court went to such pains to distinguish its

practically identical facts from the facts of this case in order to reach what it

considered to be the correct decision—a decision opposite to that of the

majority‘s in this case. Smuck noted that Wells Fargo could only have gotten a

summary judgment against MBS - The Falls based on the non-recourse

exceptions because that is the only cause on which summary judgment is

sought. 2013 WL 3422888, at *8 (―[I]t was not necessary for either order to

expressly state the summary judgment represented recovery based on a Non-

Recourse Exception. . . . Wells Fargo‘s petition in the Tarrant County suit

demonstrates the only ‗claims‘ pleaded against MBS - The Falls were for

damages in connection with the Non-Recourse Exceptions.‖). Such is the case

here. Smuck noted that although the interlocutory summary judgment in the

case awarded an amount equal to the balance of the note, the damages were for

violations of the non-recourse exceptions. Id. at *11. Such is the case here.

Smuck also held that ―requiring [Wells Fargo] to establish a Non-Recourse

Exception in the present case would amount to allowing an impermissible,


                                          7
collateral attack on the‖ interlocutory summary judgment, which had not been

challenged. Id. at *7, 10 (―If Wells Fargo failed to meet [its evidentiary] burden

relative to its claims under the Non-Recourse Exceptions, MBS - The Falls could

have appropriately raised such complaint in an appeal of the summary judgment.

White‘s raising that complaint in the present case constitutes an impermissible

collateral attack on the judgment.‖). Such, too, is the case here.

      At trial, Wells Fargo entered into evidence the promissory note, the

nonrecourse indemnification agreement, a summary of its damages (showing

damages of $6,575,686.72), and an affidavit of Bruce Woodward, the appointed

receiver, in which he described the waste that had occurred to the property.

Wells Fargo also introduced the requests for admissions it had served on the

Borrowers and to which they had failed to respond. As a result, the following

requests were deemed admitted:

      REQUEST FOR ADMISSION NO. 3:
           Admit that [MBS - The Hills] took unreasonable actions and
      unreasonably failed to act in its management of the Property.

      REQUEST FOR ADMISSION NO. 4:
           Admit that Normandale took unreasonable actions and
      unreasonably failed to act in its management of the Property.

      REQUEST FOR ADMISSION NO. 5:
            Admit that [MBS - The Hills] committed waste with respect to
      the Property.

      REQUEST FOR ADMISSION NO. 6:
           Admit that Normandale committed waste with respect to the
      Property.

            ....


                                         8
      REQUEST FOR ADMISSION NO. 13:
            Admit that under the Note, [MBS - The Hills] agreed that
      impairing the rights of [Wells Fargo] to foreclose on the Deed of
      Trust and obtain title to the Property would be excepted from the
      otherwise non-recourse nature of the Note.

      REQUEST FOR ADMISSION NO. 14:
            Admit that liens remained on the Property after the foreclosure
      sale of the Property.

            ....

      REQUEST FOR ADMISSION NO. 16:
             Admit that allowing the liens to remain on the Property
      triggered full recourse liability for [MBS - The Hills].

      REQUEST FOR ADMISSION NO. 17:
            Admit that commission of waste on the Property triggered full
      recourse liability for [MBS - The Hills].

      REQUEST FOR ADMISSION NO. 18:
            Admit that [MBS - The Hills] and Normandale are jointly and
      severally liable under the Note for all losses and damages resulting
      from waste committed on the Property.

            ....

      REQUEST FOR ADMISSION NO. 20:
            Admit that [MBS - The Hills] and Normandale are jointly and
      severally liable under the Note for all losses and damages from
      [MBS - The Hills]‘s failure to clear the liens that impaired [Wells
      Fargo]‘s right to foreclose on the Property.

      The deemed admissions establish that the nonrecourse exceptions had

been violated. See Oliphant Fin., LLC v. Galaviz, 299 S.W.3d 829, 838 (Tex.

App.—Dallas 2009, no pet.) (―Deemed admissions may be employed as proof,

and once admissions are deemed admitted by operation of law and where the

admissions fully support each element of a cause of action, including damages,


                                       9
they will fully support a judgment based thereon.‖). 4     Wells Fargo provided

competent summary judgment evidence in the form of deemed admissions

proving that the Borrowers committed waste on the property and that liens

remain on the property, both of which triggered the Borrowers‘ personal liability

under the nonrecourse exceptions.      This evidence, as well as Woodward‘s

affidavit testifying to the waste he witnessed and the summary of the damages,

was admitted at the final hearing regarding Smuck and White‘s liability as

evidence of violations of the nonrecourse exceptions.

      The Borrowers‘ liability under the nonrecourse exceptions was limited to

―the amount of any losses or damages sustained by Lender in connection with

such Non-Recourse Exceptions.‖ However, the Borrowers were deemed to have

admitted that they were liable for the full balance of the note. In its motion for

summary judgment, Wells Fargo argued in essence that its damages resulting

from the Borrowers‘ violations of the nonrecourse exceptions equaled the

balance of the note. The Borrowers did not file a response to the motion or


      4
       The majority argues that the admissions are ―inaccurate‖ and ―unilaterally
modify the terms of a bargained-for agreement.‖ Maj. Op. at 10–11. I, however,
continue to maintain that the merits of the interlocutory summary judgment are
not before us, and thus am bound to accept the trial court‘s findings based on
these admissions. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627
(Tex. 1996) (holding that appellate courts should consider all summary judgment
grounds the trial court rules on and that the movant preserves for appellate
review); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts,
Inc., 300 S.W.3d 348, 373 (Tex. App.—Dallas 2009, pet. denied) (refusing on
appeal to disregard affidavit because motion at trial to disregard affidavit under
sham affidavit doctrine was denied and not appealed).


                                       10
otherwise argue that they were liable for any lesser amount.         The trial court

granted summary judgment against the Borrowers and awarded Wells Fargo the

full $5,904,537.61 that it sought. This order was not appealed and remains to

this day unchallenged—except by the majority‘s opinion.

      The trial court‘s order set the amount of damages in connection with the

violation of the nonrecourse exceptions as a matter of law. See Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009) (noting

that a movant meets 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). The trial court specifically found in the Additional Findings of

Fact and Conclusions of Law that the Borrowers are jointly and severally liable

through the nonrecourse liability exceptions. The trial court obviously understood

that Wells Fargo was not seeking, nor entitled to, a deficiency judgment but was

entitled to recover only under the defined nonrecourse exceptions.5

      In its motion, Wells Fargo argues that it is entitled to the balance of the

note because the Borrowers‘ commission of waste and allowance of liens to

      5
        Even Smuck recognizes that the trial court‘s judgment was not a
deficiency judgment but instead ―[t]he Interlocutory Judgment against [MBS - The
Hills] was for waste damages caused [to] Wells Fargo by [MBS - The Hills] . . . .‖
White is the only party to this litigation who argues that the interlocutory summary
judgment order granted a deficiency judgment. He states that the trial court‘s
summary judgment order did not specify that waste had occurred. His argument
is defeated however by the trial court‘s specific finding of October 20, 2010 that
―[the Borrowers] are jointly and severally liable under the Note by reason of and
through the non-recourse liability exceptions . . . .‖ The trial court was explicit,
and simply calling it a deficiency judgment does not make it so.


                                         11
remain on the property triggered full recourse liability. It moved for summary

judgment on no other ground. The majority states that Wells Fargo ―relie[d] upon

waste or foreclosure impairment to justify recovering the balance due on the

note.‖     Maj. Op. at 14.      But Wells Fargo noted in its motion for summary

judgment,

               Although Wells Fargo meets the elements for recovery under
         a promissory note . . . , the obligations of [the Borrowers] are
         generally non-recourse unless certain exceptions exist. Exceptions
         do exist, and [the Borrowers] are jointly and severally liable for the
         losses, damages and expenses incurred by Wells Fargo pursuant to
         Sections 12(a) and 12(b) of the Note for:

               (a) Waste; and

              (b) Impairment of [Wells Fargo‘s] right to foreclose on the
         Property.

         A court cannot grant summary judgment on grounds not presented in the

motion. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011); State

Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010). The amount of the

damages award, regardless of whether it equaled the balance of the note, could

only be damages for Wells Fargo‘s cause of action against the Borrowers for

their violation of the nonrecourse exceptions as proven by the deemed

admissions.

         Paragraph 12 of the promissory note states, ―Borrower‘s liability under the

Non-Recourse Exceptions . . . shall be limited to the amount of any losses or

damages sustained by Lender in connection with such Non-Recourse

Exceptions.‖ What amount Wells Fargo lost ―in connection‖ with the Borrowers‘


                                          12
waste was a question determined in the interlocutory summary judgment

proceedings. If the majority‘s complaint is about the adequacy of the evidence to

support the amount of damages Wells Fargo incurred in connection with the

nonrecourse exceptions, I note that the summary judgment order that allegedly

incorrectly found the evidence sufficient is not before us. 6        The only issues

presented for our review involve that part of the final judgment of July 15, 2010,

regarding the claims against Smuck and White. It is immaterial to the issue of

Smuck and White‘s liability that the award against the Borrowers equaled the

balance on the note. The majority‘s holding requires us to essentially retry Wells

Fargo‘s case against the Borrowers, despite no party appealing the first

judgment. See Smuck, 2013 WL 3422888, at *10 (―[T]he summary judgment

constitutes a judgment on the merits of MBS - The Falls‘s liability under the Non-

Recourse Exceptions even if the motion was unopposed or not supported by

sufficient evidence.‖).

      The majority‘s opinion only references the deemed admissions concerning

liability for ―the full principal amount due on the Note.‖ As set forth above in full in


      6
        The majority distinguishes this case from previous cases from our court
involving Smuck and White, reasoning that in those previous cases, the lender
provided evidence of waste. See White v. JPMC 2004-C3 Trails Apartments
LLC, No. 02-12-00164-CV, 2012 WL 6632776, at *1 (Tex. App.—Fort Worth
Dec. 21, 2012, no pet.) (mem. op.); MLMT, 2011 WL 3672022, at *1. In neither
of those cases, however, did the lender already have a judgment setting the
amount of losses incurred from the non-recourse exceptions.




                                          13
this dissent, there are requests which were also deemed admitted that MBS -

The Hills and Normandale were jointly and severally liable under the note for all

losses and damages resulting from waste committed on the property and from

MBS - The Hills‘s failure to clear the liens that impaired Wells Fargo‘s right to

foreclose. The trial court found the Borrowers liable under the note based solely

on the nonrecourse liability exceptions.

      In affirming the trial court, the majority on rehearing also rejects the trial

court‘s finding that the $5,904,537.61 was the appropriate amount of damages

for violations of the nonrecourse exceptions. The only issue in this appeal is the

extent of Smuck and White‘s liability under the indemnity agreement—not the

amount of damages flowing from that liability. The majority opines that the trial

court erred in finding that the $5,904,537.61 was the appropriate amount of

damages for the recourse liability under the note. I respectfully disagree. This

court, in this appeal, should not revisit an order and a finding that was not

appealed and which set the amount of damages as a matter of law. The amount

of the summary judgment award has not been challenged, and we are not to

examine whether it was a correct or fair amount. If Wells Fargo was awarded

more than it should have been, that is the risk the guarantors took when they

agreed to guaranty another‘s obligation. Smuck and White agreed to pay for the

damages Wells Fargo suffered as a result of the nonrecourse exceptions, and

they are liable for the amount that was awarded. See id. (―[I]n return for the

‗substantial benefit‘ to appellees from the loan to MBS - The Falls, appellees


                                           14
guaranteed MBS - The Falls‘s liability under the Non-Recourse Exceptions, with

no limitation on how that liability might be established.   Therefore, appellees

agreed to the possibility they would be held liable under the Indemnification

Agreement if MBS - The Falls failed to oppose or challenge a judgment against it

under the Non-Recourse Exceptions.‖).

      The interlocutory summary judgment was not based on the Borrowers‘

failure to pay the note; it was based on the Borrowers‘ waste and failure to clear

the liens on the property. The indemnification agreement makes the indemnitors‘

liability co-extensive with that of the Borrowers‘ personal liability under the

nonrecourse exceptions.       The Borrowers were found to have violated the

nonrecourse exceptions, triggering their personal liability. Because the indemnity

agreement functions as a guaranty, I would hold Smuck and White liable to Wells

Fargo for the unchallenged damages award and bring the outcome of this case in

line with the similar cases out of this court and others.




                                                     LEE GABRIEL
                                                     JUSTICE

DELIVERED: August 8, 2013




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