Opinion issued April 18, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-12-00742-CV
                          ———————————
               THE ESTATE OF TYLER D. TODD, Appellant
                                      V.
           INTERNATIONAL BANK OF COMMERCE, Appellee



                  On Appeal from the 125th District Court
                          Harris County, Texas
                    Trial Court Case No. 2009-21107A



                        MEMORANDUM OPINION

      Appellant, the estate of Tyler Todd (“Todd”), challenges the trial court’s

rendition of summary judgment in favor of appellee, International Bank of

Commerce (“IBC”), in IBC’s suit against him for breach of a guaranty agreement
and attorney’s fees. In three issues, Todd contends that the trial court erred in

granting IBC summary judgment.

      We reverse and remand.

                                    Background

       In its petition, IBC alleged that Todd and Dan Silvestri had executed

personal guaranty agreements, each promising to pay one-half of the outstanding

debt owed to IBC by Rainsong Partners, Ltd. (“Rainsong”), which had defaulted

on three promissory notes secured by real estate liens. IBC further alleged that

concurrent with the execution of the promissory notes, Todd and Silvestri had

signed their guaranty agreements, under which they were each liable for fifty

percent of “the outstanding principal amount at the time of demand for payment,

accrued and unpaid interest, late charges, [attorney’s] fees, collection costs, and all

other sums owing” by Rainsong to IBC. IBC asserted that both Todd and Silvestri

defaulted in their obligations and brought suit for breach of the guaranty

agreements. 1

      In his answer, Todd generally denied IBC’s allegations and asserted that

“the foreclosure sale price of the property securing the indebtedness sought to be

recovered was less than the fair market value of such property on the date of the


1
      This Court recently issued an opinion concerning Silvestri’s appeal from the
      judgment in Silvestri v. International Bank of Commerce, No. 01-11-00921-CV,
      2013 WL 485804 (Tex. App.—Houston [1st Dist.] 2013, no pet. h.).
                                          2
foreclosure sale” and IBC “only is entitled to seek a deficiency judgment equal to

the difference between the amount owing on the note” and “the fair market value

of the Mortgaged Property.” In his counterclaim against IBC, Todd also sought

attorney’s fees from IBC if “successful in reducing and/or eliminating the

indebtedness sought to be recovered” by IBC. The trial court later severed IBC’s

suit against Todd from its suit against Silvestri.

      In its summary-judgment motion, IBC asserted that the express terms of the

guaranty agreements alone entitled it to judgment as a matter of law. And it noted

that on April 2, 2009, it made to Todd its final demand of repayment before

foreclosing on the properties on April 7, 2009. IBC attached to its motion the real

estate lien notes and guaranty agreement, which contained an addendum that

provides,

      Anything in the Guaranty to the contrary notwithstanding, the term
      “Guaranteed Indebtedness,” with respect to principal only, shall mean
      fifty percent (50%) of the outstanding principal amount at the time of
      demand by Lender on Guarantor for payment on the Guaranty of all of
      Borrower’s obligations to Lender (the “Obligations”), without giving
      effect to any prior or contemporaneous payment by any other
      guarantor(s).     Accordingly, for the purposes of calculating
      Guarantor’s liability pursuant to the Guaranty, the amount of the
      Obligations shall not be reduced by any payment or payments made
      by any other guarantor(s) on any of the obligations. The term
      Guaranteed Indebtedness shall also include fifty percent (50%) of all
      accrued and unpaid interest, late charges, attorneys’ fees, all costs
      incurred by Lender in connection with the Borrower to Lender arising
      in connection with the Obligations . . . .



                                           3
IBC asserted that, at the time of demand, there was $858,251.80 owing on the first

note, $2,285,185.44 owing on the second note, $924,838.62 owing on the third

note, and $1,459,666.94 in accrued interest, expenses, and attorney’s fees, for a

total balance due of $5,527,942.80. It maintained that it was entitled to recover

from Todd one-half of this amount, or $2,763,971.40. IBC also attached to its

motion its winning bids at the foreclosure sale, which indicated that the three

properties were sold to IBC for a combined total of $1,694,000. However, IBC

argued that Todd was not entitled to a credit for the price paid at the foreclosure

sale because, at the time of demand, the foreclosure sale had not taken place.

      In his response to IBC’s summary-judgment motion, Todd asserted that the

promissory notes were all secured by deeds of trust. He attached to his motion

each of the deeds of trusts, which contained identical addendums that define the

“Mortgaged Property” for each note to include:

      [A]ll permits, licenses, franchises, certificates, utility commitments
      and/or reservations, wastewater capacity reservations and other rights
      and privileges obtained in connection with the property described
      hereafter.

The addendums to the deeds of trust further provide:

      4.     Fair    Market   Value     for    Calculating     Deficiencies.
             Notwithstanding the provisions of §§ 51.003, 51.004 and
             51.005 of the Texas Property Code (as the same may be
             amended from time to time), and to the extent permitted by law,
             Grantors agree that Beneficiary shall be entitled to seek a
             deficiency judgment from Grantors and any other party
             obligated on the Note or guaranty of the Note equal to the
                                         4
              difference between the amount owing on the Note and fair
              market value of the Mortgaged Property as hereinafter
              determined.

Todd asserted that the addendum unambiguously provides that IBC is entitled to

recover a deficiency judgment from Todd only if IBC proved the fair market value

of the mortgaged property and IBC presented no competent evidence of the fair

market value. Todd further asserted that the fair market value of the properties

“exceeded the entire indebtedness” and “eliminate[d] all deficiency against Todd.”

Finally, Todd asserted that IBC’s claims for attorney’s fees were “grossly

excessive.”

      Todd attached to his response the affidavit of Jack L. Hughey, a real estate

appraiser. Hughey testified that he reviewed an appraisal dated February 23, 2009,

prepared for IBC by Barletta & Associates, valuing the properties at $2,420,000.

Hughey stated that the Barletta appraisal was “incomplete” because it failed to

include the value of Municipal Utility District (“MUD”) receivables, which had

been previously appraised by Barletta & Associates “on an ‘as completed’ basis” at

$3,455,000 on February 1, 2006.       Based on audit reports from the MUD’s

accountant, Hughey testified that IBC had received $988,688 in receivables from a

2011 bond sale. Hughey also testified that e-mails between Rick Alejo and Alan

Hirshman, two of the engineers for the MUD, indicated that more than $2,000,000

in receivables remained to be reimbursed in future bond sales. Hughey concluded

                                        5
that, as of April 7, 2009, the value of the real estate was at least $2,420,000 and the

value of the MUD receivables was at least $1,800,000. Todd also filed a “Motion

to Determine the Fair Market Value of the Property” with the trial court.

      In its reply to Todd’s response, IBC asserted that the guaranty agreement

“expressly sets forth the manner by which ‘Guaranteed Indebtedness’ will be

calculated for purposes of determining liability against Todd,” without reference to

the deeds of trusts or their addendums. IBC argued that, even if Todd was entitled

to a credit for the fair market value of the property, the burden of establishing the

credit rested with Todd and he had “contractually waived any offset defense.”

Finally, IBC asserted that Todd’s evidence of fair market value was irrelevant and

inadmissible.

      IBC also filed objections to Todd’s summary-judgment evidence.              IBC

specifically objected to Hughey’s affidavit on the grounds that it refers to

“inadmissible hearsay” and is irrelevant, unreliable, and conclusory. It asserted

that the October 31, 2005 appraisal, from which Hughey based his valuation of the

MUD receivables, constitutes hearsay and is too far removed from the date of the

foreclosure sale to rely upon. Finally, IBC argued that any speculation regarding

the value of the MUD receivables is “unreliable and conclusory” because the

properties at issue were never developed.




                                          6
      The trial court granted IBC’s summary-judgment motion, and it entered a

final judgment that IBC recover $2,763,971.40 in actual damages from Todd,

including $122,788.63 in attorney’s fees and $10,000 for post-judgment collection

actions.

                                Standard of Review

      To prevail on a summary-judgment motion, a movant has the burden of

proving that it is entitled to judgment as a matter of law and there is no genuine

issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex.1995). When a plaintiff moves for summary judgment on its claim, it

must establish its right to summary judgment by conclusively proving all the

elements of its cause of action as a matter of law. Rhone Poulenc, Inc. v. Steel,

997 S.W.2d 217, 223 (Tex. 1999); Anglo–Dutch Petroleum Int’l, Inc. v. Haskell,

193 S.W.3d 87, 95 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). When

deciding whether there is a disputed, material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Nixon v.

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable

inference must be indulged in favor of the non-movant and any doubts must be

resolved in his favor. Id. at 549.




                                        7
                        Breach of Guaranty Agreement

      In his first issue, Todd argues that the trial court erred in granting IBC

summary judgment because it refused to consider evidence of the fair market value

of the properties. In his second issue, Todd argues that the trial court erred in

granting IBC summary judgment because it did not take into account the value of

the MUD receivables.

Construction of the Guaranty

      Our primary concern in construing a written contract is to ascertain the true

intent of the parties as expressed in the instrument. Seagull Energy E & P, Inc. v.

Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006); Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). Usually, the intent of the parties can be

discerned from the instrument itself. ExxonMobil Corp. v. Valence Operating Co.,

174 S.W.3d 303, 312 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). When

an issue regarding the construction of a contract is presented, we must examine and

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

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

Energy E & P, Inc., 207 S.W.3d at 345. Contract terms will be given their plain,

ordinary, and generally accepted meanings unless the contract itself shows them to

be used in a technical or different sense. Dorsett, 164 S.W.3d at 662. When the

parties have entered into an unambiguous contract, the courts will enforce the

                                        8
intention of the parties as written in the instrument. Sun Oil Co. (Del.) v. Madeley,

626 S.W.2d 726, 731 (Tex. 1981).

      A guarantor’s liability is measured by the principal’s liability unless a more

extensive or more limited liability is expressly provided for in the guaranty. W.

Bank–Downtown v. Carline, 757 S.W.2d 111, 113 (Tex. App.—Houston [1st Dist.]

1988, writ denied). To determine the extent of the guarantor’s liability, we look to

the language of the guaranty agreement. Id. If the guaranty agreement is so

worded that it can be given a certain or definite legal meaning or interpretation, it

is not ambiguous, and we construe the contract as a matter of law. Id. at 114. If

uncertainty exists as to the meaning of the guaranty contract, and if two reasonable

interpretations may be made, we apply the construction most favorable to the

guarantor. Coker v. Coker, 650 S.W.2d 391, 394 & n.1 (Tex. 1983) (explaining

that “guarantor is entitled to have his agreement strictly construed so that it is

limited to his undertakings, and it will not be extended by construction or

implication”); Clarke v. Walker–Kurth Lumber Co., 689 S.W.2d 275, 278 (Tex.

App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).

      IBC largely relies on the following provision, found in the addendum to the

guaranty, for the proposition that Todd was not entitled to a credit for the fair

market value of the properties,

      Anything in the Guaranty to the contrary notwithstanding,
      “Guaranteed Indebtedness,” with respect to principal only, shall mean
                                         9
      fifty percent (50%) of the outstanding principal amount at the time of
      the demand by Lender on Guarantor for payment on the Guaranty of
      all Borrower’s obligations to Lender (the “Obligations”), without
      giving effect to any prior or contemporaneous payment by any other
      guarantor(s).     Accordingly, for the purposes of calculating
      Guarantor’s liability pursuant to the Guaranty, the amount of the
      Obligations shall not be reduced by any payment or payments made
      by any other guarantor(s) on any of the Obligations. The term
      Guaranteed Indebtedness shall also include fifty percent (50%) of all
      accrued and unpaid interest, late charges, attorneys’ fees, all costs
      incurred by Lender in connection with the collection of the
      Obligations and the enforcement of the Guaranty, and all other sums
      owing by Borrower to Lender in connection with the Obligations, and
      all documents securing payment thereof and executed in connection
      therewith . . . .

IBC argues that because the addendum provides that “Guaranteed Indebtedness . . .

shall mean fifty percent (50%) of the outstanding principal amount at the time of

demand,” it provides a “method for ascertaining the guaranty liability” and

constitutes a “formulaic guaranty.”     The same addendum later provides that

“[c]apitalized terms used in this Addendum shall have the same meaning as

ascribed to such terms in the Guaranty unless defined otherwise herein.”

      IBC argues that the Deeds of Trust and their Addendums are not relevant to

Todd’s liability because Todd is not a party to them. However, the guaranty

defines “Guaranteed Indebtedness” as “all liabilities and obligations of

Borrower . . . to Lender,” including, but not limited to, “any indebtedness, however

evidenced, whether by promissory note, bookkeeping entry, electronic transfer,

checks, drafts or other items, or by any other manner or form.” It specifically

                                        10
guarantees “the performance and discharge of the obligations of Borrower

specified under any and all promissory notes, letters of credit, and all other

documents and instruments (the “Security Instruments”) executed by Borrower

and/or other parties in connection with the Guaranteed Indebtedness.” Thus, the

guaranty itself references the documents comprising the underlying transaction in

describing Todd’s obligations.

      Furthermore, the language and the context of the guaranty addendum reflect

that its purpose was not to provide the sole “method for ascertaining the guaranty

liability” as proposed by IBC. Immediately after the sentence providing that fifty

percent of the principal balance is due “at the time of demand,” the guaranty

addendum states that, “[a]ccordingly, for the purposes of calculating Guarantor’s

liability pursuant to the Guaranty,” Todd’s obligations “shall not be reduced by any

payment or payments made by any other guarantor(s).” Thus, the purpose of the

guaranty addendum was to provide that one guarantor’s repayment of his

obligations did not discharge the other’s obligations.     Its purpose was not to

provide a “formula” or the sole method for calculating the underlying obligations.

      Accordingly, we look to the underlying documents to determine the extent

of Todd’s obligations. See Carline, 757 S.W.2d at 113 (providing that guarantor’s

liability is measured by principal’s liability unless “expressly set forth in the

guaranty agreement” that guarantor’s liability is to be measured otherwise); First

                                        11
Union Nat. Bank v. Richmont Capital Partners I, L.P., 168 S.W.2d 917, 924 (Tex.

App.—Dallas 2005, no pet.) (“Because a guaranty is ancillary to the underlying

contract, a dispute as to the rights and obligations of the guarantor can only be

resolved by a factual determination of the rights and obligations of the parties to

the underlying contract.”).

      In its brief, IBC notes that the Todd guaranty was executed “[c]oncurrent

with the execution of the Real Estate Lien Notes.”           Separate instruments or

contracts executed at the same time, for the same purpose, and in the course of the

same transaction are to be considered as one instrument, and are to be read and

construed together. Jones v. Kelley, 614 S.W.2d 95, 98 (Tex. 1981). Instruments

may be construed together even though they are not between the same parties. Id.

      Here, each real estate lien note incorporates the deeds of trust, stating that,

      Payment hereof is secured by a vendor’s lien retained in Deed of even
      date herewith, to the Borrower, and is additionally secured by a Deed
      of Trust, Security Agreement, and financing Statement of even date
      herewith, executed by the borrower and/or Granters thereof . . . .

The addendums to the deeds of trust further provide,

      4.     Fair    Market    Value    for    Calculating     Deficiencies.
             Notwithstanding the provisions of §§ 51.003, 51.004 and
             51.005 of the Texas Property Code (as the same may be
             amended from time to time), and to the extent permitted by law,
             Grantors agree that Beneficiary shall be entitled to seek a
             deficiency judgment from Grantors and any other party
             obligated on the Note or guaranty of the Note equal to the
             difference between the amount owing on the Note and fair

                                          12
            market value of the Mortgaged Property as hereinafter
            determined.

(Emphasis added.) Thus, the addendums to the deeds of trust, not the guaranty,

provide the specific formula for calculating the underlying liability, i.e., the

difference between the amount owing on the notes and the fair market value of the

mortgaged properties. And they provide that IBC is entitled to seek this amount

from the Grantors and “any other party obligated on the Note or guaranty of the

Note.”

      A review of all of the documents reveals that the intent of the parties was not

for IBC to be entitled to foreclose on the properties and then also receive the full

value owing on the notes from the guarantors, but instead to be made whole by

being entitled to foreclose upon the properties and then receive the remaining

portion of the debt not satisfied through foreclosure from the liable parties. Under

IBC’s construction, it could receive a windfall by receiving the full amount of the

indebtedness from the individual guarantors, plus the fair market value of the

property it holds upon foreclosure, which, looking at all of the documents, would

circumvent the intent of the parties and go beyond merely making IBC whole.

      IBC relies on two cases for the proposition that the addendum to the

guaranty entitles it to apply any offset first to the portion of the indebtedness not

guaranteed by Todd: Preston Ridge Financial Services Corporation v. Tyler, 796

S.W.2d 772 (Tex. App.—Dallas 1990, writ denied) and Humphreys v. Amwest
                                         13
Savings Association, No. 05-94-00969-CV, 1995 WL 479603 (Tex. App.—Dallas

Aug. 8, 1995, no writ) (mem. op.) (not designated for publication). In Tyler, the

defendant, Tyler, signed a guaranty agreement, personally guaranteeing a portion

of the amount due under a promissory note secured by real property. 796 S.W.2d

at 774. The guaranty provided that Tyler was to pay “when due” all interest on

the note and “that amount of principal indebtedness equal to the amount by with

the sum of the outstanding principal balance of the indebtedness . . . exceeds

$735,000.” Id. Tyler argued that because the guaranty agreement provided that

he was to pay the guaranteed portion of the indebtedness “upon demand,” and the

plaintiff had already foreclosed upon the properties before it had made a demand,

he was entitled to a credit from the foreclosure proceeds, thereby reducing the

guaranteed indebtedness below $735,000. Id. at 778. The court held that Tyler’s

liability was measured by the principal’s liability, which became fixed when the

principal defaulted on the note before the foreclosure sale. Id. at 779. The court

specifically noted that the guaranty was only for a portion of the underlying debt

and that Preston Ridge would not receive a windfall by applying the foreclosure

proceeds to the unguaranteed portion of the debt. Id. at 780.

     Likewise, in Humphreys, the defendant, Humphreys, executed a real estate

lien note, secured by a deed of trust, that provided that he was personally liable for

“all amounts of principal due at any time in excess of $432,149.00.” 1995 WL

                                         14
    479603 at *1. The deed of trust similarly limited Humphreys’s personal liability

    to any amount due in excess of $432,149. Id. Humphreys argued that proceeds

    from a foreclosure sale should be applied first to the portion of the debt on which

    he agreed to be personally liable. Id. at *3. The court concluded that the principal

    became due at the time of the acceleration, when no foreclosure sale had occurred,

    so Humphreys was liable for all of the debt in excess of $432,149, without first

    applying a credit for the foreclosure sale. Id. Again, the court noted that only a

    portion of the debt was guaranteed, so the plaintiff was entitled to apply any

    foreclosure proceeds to the unguaranteed portion of the debt. Id. at *3–4.

         Here, unlike in Preston Ridge and Humphreys, the entire portion of the debt

    was guaranteed by Todd and Silvestri, and IBC would receive a windfall were it

    able both to foreclose on the properties and recover the entire indebtedness from

    both guarantors, which the transaction documents expressly disallowed. And,

    most importantly, the documents comprising the underlying debt specifically

    provided a credit for the fair market value of the properties.2 See Carline, 757

    S.W.2d at 113.




2
         Because we hold that the deeds of trust are controlling and separately provide a
         credit for the fair market value of the properties, we need not address the parties’
         arguments concerning the default statutory provisions that provide a credit for
         proceeds from a foreclosure sale. See TEX. PROP. CODE ANN. § 51.003 (Vernon
         2007).
                                              15
      IBC further argues that Todd contractually waived his right to an offset in

the guaranty agreement. Specifically, IBC asserts that the following provision of

the guaranty amounts to a waiver:

      The liability of Guarantors shall remain and continue in full force and
      effect notwithstanding . . . (iv) any defenses or rights of set-off or
      counterclaims with Borrower may have or assert.

The addendums to the deeds of trust provide that IBC is entitled to seek a

deficiency judgment from the borrowers or “any other party obligated on the Note

or guaranty of the Note.” Thus, the addendums to the deed of trust do not provide

a right to an offset, but, rather, the means by which IBC could recover its

deficiency judgment, and the amount owed under the guaranty before any offset.

      Finally, in regard to the MUD receivables, the addendums to the deed of

trust define “Mortgaged Property” to include:

      [A]ll permits, licenses, certificates, utility commitments and/or
      reservations, wastewater capacity reservations and other rights and
      privileges obtained in connection with the property herein, . . .

      [A]ll rights, rents, revenues, benefits, leases, contracts, accounts,
      general intangibles, money, instruments, documents, tenements,
      hereditaments and appurtenances now or hereafter owned by Grantors
      and appertaining to, generated from, arising out of or belonging to the
      above-described properties or any part thereof.

IBC asserts that, nevertheless, Todd “failed to present any evidence or legal

support that the MUD receivables were part of the property sold at foreclosure.”

The addendums to the deed of trust require that the indebtedness be offset by the

                                        16
fair market value of the property. And the above provisions clearly provide for the

inclusion of MUD receivables as a “benefit,” “contract,” or “general intangible . . .

appertaining to, generated from, arising out of or belonging to” the properties and

thus are appropriately a part of any fair market value assessment of the properties.

      Furthermore, Todd presented evidence that Rainsong had completed its

obligations entitling it to collect the MUD receivables. Todd attached to his

response to IBC’s summary-judgment motion three receipts, signed by IBC in

2011, indicating it had received three payments from the MUD. The receipts state

that “Rainsong made all payments due to the contractors under the Construction

Contracts in accordance with the terms of the Financing Agreement” and

“Rainsong executed an Assignment of Agreements, assigning some or all of its

right to receive funds from the District to IBC.”

Evidence of Fair Market Value

      IBC also argues that, even if Todd is entitled to a proportional credit for the

fair market value of the properties, he failed to satisfy that burden because he

“failed to present any competent evidence of the fair market value of the property

on the date of foreclosure.” Todd asserts that he presented proper summary-

judgment evidence creating a “fact issue sufficient to defeat the Bank’s summary

judgment.”




                                         17
      Todd attached Hughey’s affidavit to his response to IBC’s summary-

judgment motion. Relying upon an appraisal from Barletta made only two months

before the foreclosure sale, Hughey valued the properties at $2,420,000, which he

testified was a reasonable value as of April 7, 2009, the date of the foreclosure

sale. Hughey also noted that the maximum bid prices at the foreclosure sale,

which were attached to IBC’s summary-judgment motion, totaled $2,240,000, and

IBC had been able to sell 31 vacant lots on the properties at $20,000 per lot. The

summary-judgment evidence also included IBC’s winning bids at the foreclosure

sale, which totaled $1,694,000. IBC argues that because it took place two months

prior to the foreclosure sale, the appraisal is irrelevant and Hughey’s reliance on it

is conclusory. However, a respondent to a summary-judgment motion is “‘not

required to marshal its proof; its response need only point out evidence that raises a

fact issue on the challenged elements.’” Hamilton v. Wilson, 249 S.W.3d 425, 426

(Tex. 2008) (quoting TEX. R. CIV. P. 166a(i) cmt. (1997)).

      Indulging every reasonable inference in favor of Todd and taking his

evidence as true, we conclude that he at least presented a material issue of fact

regarding the fair market value of the properties, precluding the granting of

summary judgment in favor of IBC. Accordingly, we hold that the trial court erred

in granting IBC summary judgment. See Nixon, 690 S.W.2d at 548–49.

      We sustain Todd’s first and second issues.

                                         18
                                  Attorney’s Fees

      In his third issue, Todd argues that the trial court erred in awarding IBC

attorney’s fees because they are “unreasonable,” he presented evidence that

“creates a fact issue concerning the Bank’s attorney’s fees,” and IBC’s evidence

supporting the award of attorney’s fees is “conclusory and insufficient.”

      The guaranty provided for the award of attorney’s fees as follows,

      In the event any legal action or arbitration proceeding is commenced
      in connection with the enforcement of any declaration of rights under
      this Guaranty and/or any instrument or written agreement required or
      delivered under or pursuant to the terms of this Guaranty or the
      Guaranteed Indebtedness, and/or any controversy or claim, whether
      sounding in contract, tort or statute, legal or equitable, involving in
      any way the Guaranteed Indebtedness, or any other proposed or actual
      loan or extension of credit involving Borrower, the prevailing party
      shall be entitled to recover reasonable and necessary attorneys’ fees,
      paralegal costs, expert witness fees and costs, expenses and costs and
      other necessary disbursements made in connection with any such
      action or proceeding, in the amount determined by the fact-finder or
      arbitrator.

(Emphasis added.) A prevailing party is the party “who successfully prosecutes

the action or successfully defends against it, prevailing on the main issue.” See

Johns v. Ram Forwarding, Inc., 29 S.W.3d 635, 637–38 (Tex. App.—Houston [1st

Dist.] 2000, no pet.). Thus, the guaranty expressly granted an award of attorney’s

fees only for the prevailing party. Having held that the trial court erred in granting

IBC summary judgment, we further hold that the trial court erred in awarding IBC

its attorney’s fees at this juncture. See Probus Props. v. Kirby, 200 S.W.3d 258,

                                         19
265 (Tex. App.—Dallas 2006, pet. denied) (reversing trial court’s award of

attorney’s fees to plaintiff, after holding that trial court erred in not granting

defendant judgment notwithstanding the verdict, because plaintiff was no longer

“prevailing party” under their contract).

      We sustain Todd’s third issue.

                                    Conclusion

      We reverse the judgment of the trial court and remand for proceedings

consistent with this opinion.




                                                 Terry Jennings
                                                 Justice

Panel consists of Justices Jennings, Bland, and Massengale.




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