Dissenting Opinion Filed March 24, 2014




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-12-00447-CV

                                COMPASS BANK, Appellant
                                           V.
                              STEPHEN L. GOODMAN, Appellee

                        On Appeal from the 44th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. 10-02082-B


       OPINION DISSENTING FROM THE DENIAL OF
   APPELLEE’S MOTION FOR EN BANC RECONSIDERATION
                           Before Justices Bridges, Fillmore, and Lewis
                            Dissenting Opinion by Justice FitzGerald

       I respectfully dissent from the denial of appellee’s motion for en banc reconsideration in

this case for the reasons stated in my dissenting opinion in Compass Bank v. Manchester

Platinum Management, Inc., No. 05-11-00912-CV, 2013 WL 4081420 (Tex. App.—Dallas Aug.

13, 2013, pet. filed) (mem. op.) (FitzGerald, J., dissenting).

       I also agree with appellee’s complaint in his motion for en banc reconsideration in which

he presents the question of whether appellee waived his offset rights under section 51.003 of the

property code by agreeing to guaranties containing the following language: “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.” In his appellee’s brief,
appellee argued that this language in the guaranties should be read in the context of the entire

transaction, including the deeds of trust. Paragraph 4.11 of the deeds of trust, entitled “Waiver of

Exemption,” contained a much more specific waiver clause: “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.” Appellee reasoned that

the use of different language in different clauses indicated that the parties intended different

things by those clauses. And, more specifically, appellee argued that the inclusion of a specific

waiver of statutory setoff rights in the deeds of trust but not in the guaranties implies that the

parties to the guaranties did not intend a waiver of appellee’s statutory setoff rights. I agree with

appellee. See PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 708 (Tex. App.—

Dallas 2011, pet. denied) (“The use of different language in different parts of a contract generally

means that the parties intended different things.”). Manchester did not address or resolve this

argument.

       For the foregoing reasons, I dissent from the denial of appellee’s motion for en banc

reconsideration.




120447HD.P05                                          /Kerry P. FitzGerald/
                                                      KERRY P. FITZGERALD
                                                      JUSTICE




                                                –2–
