Richard A. Myers and Thomas J. Wouters v. HCB Real Holdings, LLC ( 2015 )


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  • Affirm in part and Reverse in part; and Remand; Opinion Filed May 14, 2015.
    S   In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-13-00113-CV
    RICHARD A. MYERS AND THOMAS J. WOUTERS, Appellants
    V.
    HCB REAL HOLDINGS, LLC, Appellee
    On Appeal from the 68th Judicial District Court
    Dallas County, Texas
    Trial Court Cause No. DC-11-02904
    MEMORANDUM OPINION
    Before Justices Francis, Evans, and Stoddart
    Opinion by Justice Evans
    Richard A. Myers and Thomas J. Wouters appeal the trial court’s judgment against them
    for breach of a guaranty agreement. The guarantors bring four issues contending the trial court
    erred in (1) failing to dismiss the case, (2) denying their motion to determine the fair market
    value of the property, (3) granting summary judgment despite the existence of genuine issues of
    material fact, and (4) granting HCB Real Holdings, LLC summary judgment on its request for
    attorney’s fees. We affirm the trial court’s judgment on HCB’s claim for breach of the guaranty.
    We reverse the award of attorney’s fees and remand the cause for further proceedings.
    I. FACTUAL BACKGROUND
    At issue in this case is a payment guaranty for a promissory note between Hillcrest Bank,
    a Kansas state banking association, (“Hillcrest State”) and RCC Indian Creek, Ltd. Under the
    terms of the guaranty, Richard A. Myers and Thomas J. Wouters agreed that, in the event of a
    default by Indian Creek, they would each be liable to pay Hillcrest State, its successors, and
    assigns, 50% of the remaining indebtedness. The purpose of the loan to Indian Creek was for the
    acquisition and development of property and the note was secured by a deed of trust on the
    property acquired.
    It is undisputed that Indian Creek defaulted on payment of the note. Subsequent to the
    default, Hillcrest State was closed and placed into receivership by the Kansas State Bank
    Commissioner and the FDIC. Hillcrest Bank, N.A. then entered into an agreement with the
    FDIC under which it purchased “all right, title, and interest of the [FDIC] in and to all of the
    assets . . . of [Hillcrest State] whether or not reflected on the books of [Hillcrest State] as of
    Bank Closing.” Hillcrest N.A. presented evidence that it then assigned the loan and guaranty to
    its wholly owned subsidiary, HCB Real Holdings, LLC. HCB foreclosed on the property under
    the deed of trust and sold it at public auction for $4,003,933 leaving an alleged deficiency.
    On March 11, 2011, Hillcrest N.A., brought this suit for breach of contract alleging that
    the guarantors had failed to pay under the terms of the guaranty agreement. The company filed a
    motion for summary judgment attaching the affidavit of Tracy Pancost, senior vice president in
    its Special Assets Group. In her affidavit, Pancost stated that Hillcrest N.A. conducted the
    foreclosure on the property and that it was seeking to enforce the guarantors’ obligations under
    the guaranty. The company argued it was entitled to summary judgment on its claim because
    there was no issue of material fact as to the guarantors’ liability and they had expressly waived
    any right to an offset against their liability under section 51.003 of the Texas Property Code. The
    motion was never set for a hearing.
    On January 10, 2012, the guarantors filed an amended answer asserting for the first time
    that Hillcrest N.A. could not show that it was the owner and holder of the guaranty. The
    guarantors also included in their answer a motion to determine the fair market value of the
    –2–
    foreclosed property for purposes of obtaining an offset under section 51.003 of the Texas
    Property Code.
    Shortly thereafter, HCB filed a first amended petition naming itself as plaintiff and
    stating that it was the assignee of the loan documents at issue, as well as a wholly owned
    subsidiary of Bank Midwest, N.A. which had merged with and succeeded Hillcrest N.A. HCB
    then filed a motion for summary judgment on essentially the same grounds as those urged in the
    motion filed previously by Hillcrest N.A. In addition, HCB’s motion addressed its status as the
    owner and holder of the note and guaranty. HCB’s motion included a new affidavit by Pancost
    that included testimony about the various transfers of the loan documents and attached
    authenticated copies of documents discussed in the affidavit. The motion was set to be heard on
    February 10, 2012.
    On February 2, the guarantors filed a motion to dismiss. The guarantors argued that the
    trial court did not have jurisdiction over the cause because the original plaintiff, Hillcrest N.A.,
    failed to show that it had standing to sue as the owner, holder, or beneficiary of the note or
    guaranty. Five days later, the guarantors filed a motion to continue the hearing on HCB’s motion
    for summary judgment contending they needed time to conduct discovery with respect to HCB.
    On February 23rd, the trial court signed an order granting HCB summary judgment on
    the offset issue. The court did not, however, rule on the other issues and instead granted the
    guarantors’ motion for continuance to conduct discovery. HCB subsequently filed an amended
    motion for summary judgment including another new affidavit by Pancost discussing both the
    transfers of the loan documents and how Hillcrest N.A. was mistakenly named as the plaintiff in
    the original petition and attached authenticated copies of the documents discussed in the
    affidavit. Pancost further testified that any statements she made in her original affidavit relating
    to Hillcrest N.A. were made in error and those statements were superseded by her current
    –3–
    testimony including that HCB was the real party in interest in the suit. The amended motion for
    summary judgment also included a second affidavit by a bank officer calculating the current
    amount owed under the note and stating that HCB was the current owner and holder of the loan
    and the assignee of the rights under the guaranty. The guarantors filed a response arguing that
    genuine issues of material fact existed as to whether HCB was the owner or holder of the note
    and/or beneficiary of the guaranty.
    A hearing was held on HCB’s amended motion for summary judgment on October 29,
    2012. The trial court granted HCB’s motion and awarded the company $873,786.50 in actual
    damages, $15,000 in attorney’s fees, and pre and post-judgment interest. The guarantors brought
    this appeal.
    II. ANALYSIS
    A. Owner/Holder Status
    1.) Evidence
    In their first issue, the guarantors contend the trial court erred in not dismissing this suit
    because “[t]he record is devoid of any evidence that the Note and Guaranty actually was [sic]
    transferred from the FDIC to Hillcrest NA, for Hillcrest NA to then subsequently assign the Note
    and Guaranty to HCB.” The guarantors reurge this argument in their third issue as a predicate to
    their arguments challenging the foreclosure sale arguing that there are genuine issues of material
    fact regarding HCB’s status as the owner or holder of the note and guaranty. The parties brief
    this as standing and capacity. We must review the trial court’s decision that HCB proved it was
    the owner and holder of the note, so we will not parse the procedural issues separately from the
    substantive.
    A party not identified in a note who is seeking to enforce it as the owner or holder must
    prove the transfer by which it acquired the note. See Leavings v. Mills, 
    175 S.W.3d 301
    , 309
    –4–
    (Tex. App.—Houston [1st Dist.] 2004, no pet.). An unexplained gap in the chain of title creates
    a genuine issue of material fact. 
    Id. But even
    if a party is not the holder of a note, it may still be
    able to prove that it is the owner and entitled to enforce the note, foreclose on collateral and
    obtain a deficiency judgment under common law principles of assignment. Id; see also, Manley
    v. Wachovia Small Bus. Capital, 
    349 S.W.3d 233
    , 240 (Tex. App.—Dallas 2011, pet. denied). In
    this case, the guarantors argue that the asset purchase agreement between the FDIC and Hillcrest
    N.A. does not conclusively show that Hillcrest N.A. became the owner or holder of the note or
    the beneficiary of the guaranty at issue. HCB responds that the unambiguous terms of the
    purchase agreement together with the affidavits of two bank officers clearly demonstrate that the
    note and guaranty, as well as the rights thereunder, were purchased by and transferred to
    Hillcrest N.A.
    Under the section of the purchase agreement entitled “Assets Purchased by Assuming
    Institution,” it states that “with the exception of certain assets expressly excluded in Sections 3.5
    and 3.6, [Hillcrest N.A.] hereby purchases from the [FDIC], and the [FDIC] hereby sells,
    assigns, transfers, conveys, and delivers to [Hillcrest N.A.], all right, title, and interest of
    Receiver in and to all of the assets … of [Hillcrest State] whether or not reflected on the books of
    [Hillcrest State] as of Bank Closing.” The guarantors point to section 3.6(a)(ii)(b) as raising a
    fact issue on whether the loan at issue was excluded from the purchase. Section 3.6(a)(ii)(b)
    states that the FDIC may refuse to sell to Hillcrest N.A. any asset that the FDIC determines to be
    “the subject of, or potentially the subject of, any legal proceedings.” Because the Indian Creek
    loan was in default at the time Hillcrest State was placed in receivership, that asset was
    potentially the subject of legal proceedings. Although section 3.6(a)(ii)(b) arguably gave the
    FDIC the prerogative to exclude the Indian Creek loan from the asset sale, the guarantors point
    to no evidence that the loan was actually excluded. The fact that the FDIC had the right to refuse
    –5–
    to sell the loan does not raise a fact issue as to whether this actually occurred. Indeed, the
    purchase agreement included schedules of certain assets excluded from the sale and the Indian
    Creek loan was not among those assets. There is also nothing to indicate that the FDIC chose to
    retain assets that were not listed in those schedules. To the contrary, the summary judgment
    evidence shows that the Indian Creek loan was specifically listed on a schedule of “Shared Loss
    Loans” that were transferred to Hillcrest N.A. pursuant to the purchase agreement and governed
    by a commercial shared-loss agreement that supplemented the purchase agreement.
    In addition to the purchase agreement, HCB also submitted affidavit testimony in support
    of its amended motion for summary judgment showing that the Indian Creek loan was
    transferred to Hillcrest N.A. under the purchase agreement and that the loan was later transferred
    to HCB. Under Texas law, the transfer of a note may be proved by testimony rather than
    documentation if the testimony is based on personal knowledge, admissible into evidence, and
    the affiant is competent to testify. See 
    Leavings, 175 S.W.3d at 312
    . In her summary judgment
    affidavit, Tracy Pancost, testified that she was an officer of Hillcrest State, Hillcrest N.A., and
    HCB’s parent company, Bank Midwest, during the relevant time periods and that she was
    responsible for the Indian Creek loan, the review and maintenance of the loan documents, and
    the foreclosure sale conducted on the property. Pancost explained that as part of her duties as an
    employee and officer of Bank Midwest she acted on behalf of its subsidiary, HCB, as regards
    this and other loans and Bank Midwest maintained the loan documentation for HCB. Pancost
    stated that the rights to the Indian Creek loan, including the guaranty, were included in Hillcrest
    N.A.’s purchase of assets from the FDIC and further testified that Hillcrest N.A. subsequently
    transferred and assigned those rights to HCB. Pancost testified that “HCB Real Holdings, LLC
    is the current holder of the Loan as the successor/assignee from Hillcrest Bank, N.A., the
    successor-in-interest to Hillcrest [State].” Attached to Pancost’s affidavit were true and correct
    –6–
    copies of the original loan documents and guaranty as well as the purchase agreement between
    the FDIC and Hillcrest N.A. and the assignment of the loan documents to HCB.
    HCB also submitted the affidavit of Freida Powers. Powers was senior vice president of
    loan operations at Hillcrest State when it was placed into receivership by the FDIC. After
    Hillcrest State closed, she became senior vice president in loan operations for Hillcrest Bank
    N.A.. When Hillcrest Bank N.A. merged with Bank Midwest, Powers became a senior vice
    president in the loan operations department at Bank Midwest. At all relevant times, Powers was
    also a senior vice president of HCB. Powers stated she was responsible for the loan operations
    of the Indian Creek loan including maintenance of the loan history and calculating the
    outstanding indebtedness. Powers further stated that she personally reviewed the loan history
    and that HCB was the current owner and holder of the loan and the assignee of the rights under
    the guaranty by virtue of the transfers, purchases and assignments of the loan from Hillcrest State
    to the FDIC to Hillcrest N.A. to HCB. Both the Powers and Pancost affidavits affirmatively
    demonstrate the basis of their personal knowledge and set forth sufficient facts to show how the
    rights under the Indian Creek loan and guaranty were transferred and assigned to Hillcrest N.A.
    and subsequently to HCB. The guaranty signed by the guarantors specifically contemplates the
    assignment of the lender’s rights when it states that the guaranty is for the benefit of Hillcrest
    State, “its successors and assigns.” 1 Because HCB submitted competent summary judgment
    evidence showing the chain of transfers and assignments from Hillcrest State to HCB, and the
    1
    The guarantors state in their brief that it is “arguable” that the successors and assigns language does not extend
    to purchasers of a note and guaranty after a bank failure. The guarantors cite no authority for this proposition,
    however, and we have found none.
    –7–
    guarantors failed to produce any controverting evidence, we conclude HCB conclusively
    demonstrated its status as owner and holder of the note and guaranty. 2
    2.) Plaintiff Substitution
    The guarantors next argue that HCB lacks standing because the misidentification of
    Hillcrest N.A. as the real party in interest in the original petition could not be cured by amending
    the petition to name HCB as the plaintiff. HCB responds that the error in the original petition
    was a misnomer rather than a misidentification and, therefore, the amendment was sufficient to
    name the correct plaintiff. In general, issues of misidentification and misnomer arise in the
    context of a limitations defense and concern whether an amended petition naming the correct
    party will relate back to the original filing or be deemed untimely. See e.g. In re Greater
    Houston Orthopedic Specialists, Inc., 
    295 S.W.3d 323
    , 326 (Tex. 2009). In this case, however,
    no limitations issue is presented. The amended petition naming HCB as plaintiff was filed well
    within the limitations period for a breach of contract claim. Accordingly, the only issue is
    whether HCB was permitted to substitute itself for Hillcrest N.A. as plaintiff in this case by
    amendment.
    A plaintiff may amend a petition to substitute new parties for those named so long as the
    addition by amendment does not unreasonably delay trial of the case or prejudice the defendant.
    See Int’l Shelters, Inc. v. Pinehurst Inv. Corp., 
    474 S.W.2d 497
    , 499 (Tex. App.—Corpus Christi
    1971, writ dism’d). 3 Amendment is permissible where the substitution of a new party plaintiff
    does not inject a matter that is materially different in substance or form into the lawsuit nor
    2
    In their reply brief, the guarantors raise new challenges to the summary judgment evidence not asserted in
    their original brief on appeal. We will not consider issues raised for the first time in a reply brief. See Humphries v.
    Advanced Print Media, 
    339 S.W.3d 206
    , 208 (Tex. App.—Dallas 2011, no pet.). Furthermore, these challenges
    consist entirely of unsupported speculation regarding the veracity of the documentary evidence.
    3
    We note that, although neither Hillcrest N.A. nor HCB sought leave of court to substitute HCB as the plaintiff
    in this action, the guarantors did not object or move to strike HCB’s pleading on this basis.
    –8–
    appreciably alter the rights and obligations of the parties to the prejudice of the defendants. See
    
    id. at 500.
    In this case, the substance of the lawsuit remained the same and guarantors have
    provided no evidence to show how the change in plaintiff prejudiced them in any way.
    The guarantors contend that, because Hillcrest N.A. was not the owner or holder of the
    note at the time it filed suit, the pleadings could not be amended to cure the defect. In support of
    this argument, the guarantors cite Gonzalez v. Greyhound Lines, Inc., 
    181 S.W.3d 386
    , 393 (Tex.
    App.—El Paso 2005, pet. denied). In Gonzalez, the court held, without authority or discussion,
    that “[s]ince the [plaintiffs] collectively lacked standing to sue the defendants in their lawsuit,
    their petition could not be amended to confer subject matter jurisdiction on the trial court.” 
    Id. Importantly, the
    plaintiffs in Gonzalez did not attempt to amend their lawsuit to name a new
    party plaintiff before the judgment of dismissal was rendered against them. In response to the
    motion to dismiss, they argued solely that they were the correct parties with standing to sue. It
    was only on appeal that they requested an opportunity to amend. In this case, the pleadings were
    amended to name the correct plaintiff long before any judgment in the case was signed.
    Even if the defect here could not be “cured” by amendment, at the very least the filing of
    the amended petition effectively initiated a new suit between HCB and the guarantors. See
    Roberson v. McIlhenny, Hutchins & Co., 
    59 Tex. 615
    , 617 (Tex. 1883). After the amendment
    was filed, the guarantors appeared and filed numerous pleadings thereby obviating the need for
    service of process. Id.; Exito Elecs. Co. v. Trejo, 
    142 S.W.3d 302
    , 304 (Tex. 2005). All
    substantive proceedings took place after HCB became the plaintiff and the summary judgments
    were based on motions filed by HCB. We conclude, therefore, HCB was properly before the
    court as plaintiff in this suit and that the trial court correctly denied the guarantors’ motion to
    dismiss. We resolve the guarantors first issue against them.
    –9–
    B. Waiver of Offset Claim
    In their second issue on appeal, the guarantors contend the trial court erred in denying
    their motion to determine the fair market value of the foreclosed property under section 51.003
    of the Texas Property Code. Under section 51.003,
    [a]ny person against whom [a deficiency] 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.... 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 ... exceeds the sale price.
    TEX. PROP. CODE ANN. § 51.003 (West 2014). HCB contends the guaranty signed by the
    guarantors waived their rights to seek an offset against the deficiency.
    The guaranty signed by the guarantors states that,
    [i]n the event of any default by [Indian Creek] in payment of the Indebtedness,
    after the expiration of any applicable cure or grace period, Guarantors agree, on
    demand by Lender or the holder of the Note, to pay the Indebtedness regardless of
    any defense, right of set-off or claims which Borrower or Guarantors may have
    against Lender or the holder of the Note.
    The guaranty further states that guarantors
    . . . (c) waive any defense, right of set-off or other claim which such Guarantor or
    Borrower may have against Lender, or the holder of the Note, [and] (d) waive any
    and all rights such Guarantor may have under any anti-deficiency statute or other
    similar protections . . . .
    This court has repeatedly held, and the Texas Supreme Court recently confirmed, that such
    language in a guaranty is sufficient to waive the protections afforded by section 51.003. See
    Moayedi v. Interstate 35/Chisam Rd., L.P. 
    438 S.W.3d 1
    , 6–8 (Tex. 2014). The guarantors argue
    extensively that this case is distinguishable because the guaranty agreement uses the terms
    “defenses,” “set-offs,” and “offsets” at different points, but the waiver provision only includes
    the terms “defenses” and “set-offs.” Based on this, the guarantors argue the waiver provision
    was not intended to cover the right of “offset” provided by section 51.003.
    –10–
    We first note that the terms “set-off” and “offset” are used interchangeably under Texas
    law. See Nussbaum v. OneWest Bank, FSB, No. 05-13-00081-CV, 
    2014 WL 2151996
    (Tex.
    App.—Dallas May 21, 2014, pet. denied) (mem. op.). The fact that the guaranty agreement uses
    both terms does not create a fact issue regarding its meaning. In addition, the guarantors ignore
    the fact that the guaranty includes a specific waiver of “any and all rights [they] may have under
    any anti-deficiency statute or other similar protections.” Section 51.003 is an anti-deficiency
    law. See 
    Moayedi, 438 S.W.3d at 6
    . Accordingly, the guaranty unambiguously waives the
    guarantors’ right to seek an offset under section 51.003.
    The guarantors also contend the guaranty does not waive their right to seek an offset
    because the language was insufficient to waive a statutory right accruing in the future. In
    making this argument, the guarantors rely on Salvagio v. Madison Realty Capital, L.P., No. H-
    11-2183, 
    2012 WL 5397190
    (S.D. Tex. Nov. 5, 2012). But Salvagio contradicts, rather than
    supports the guarantors’ argument. In Salvagio, the court held that waiver language referencing
    offset rights that the guarantor “has” or “ever had” waived only rights that existed at the time the
    guaranty was signed. 
    Id. at *3.
    The court contrasted the language before it with language
    waiving offset rights that “may be available” or that the guarantor “may or might have” which
    has been held effective to waive offset rights accruing in the future. 
    Id. The guaranty
    signed by
    the guarantors in this case waived all rights they “may have” under any anti-deficiency statute.
    As stated in Salvagio, this language waived prospective offset rights as well as those rights
    existing at the time the guaranty was signed. We resolve the guarantors’ second issue against
    them.
    C. Issue of Fact Regarding Foreclosure
    In their third issue on appeal, the guarantors contend there is a genuine issue of material
    fact regarding the propriety of the foreclosure because there is conflicting evidence on what
    –11–
    entity conducted the foreclosure sale.      The guarantors repeat many of the arguments they
    presented in their first issue on the evidence showing owner and holder status. The “conflicting
    evidence” the guarantors point to are all alleged inconsistencies in the summary judgment
    motions and affidavits. However, none of these alleged inconsistencies raises a fact issue.
    The guarantors first point to the fact that, in Pancost’s affidavit, she states in one
    paragraph that HCB is the current owner and holder of the note, but in a later paragraph “states
    that the Guaranty is a valid and enforceable agreement between Hillcrest State and [guarantors].”
    This argument is disingenuous. Pancost’s actual affidavit testimony was that “[t]he Guaranty is
    a valid and enforceable agreement between Hillcrest [State], its successors and assigns, and
    [guarantors].” Pancost clearly explains how HCB was an assignee of guaranty. Accordingly,
    there is nothing inconsistent in this testimony.
    The guarantors next argue there is conflicting testimony about whether Hillcrest N.A. or
    HCB conducted the foreclosure sale. This argument is also somewhat disingenuous. While it is
    true that Pancost originally testified the foreclosure sale was conducted by Hillcrest N.A., she
    later corrected that testimony to state she had made a mistake and that HCB, a wholly owned
    subsidiary, conducted the foreclosure sale. In discussing the error, Pancost stated
    [t]his lawsuit was originally filed in the name of Hillcrest Bank, N.A. because the
    bank believed that it was still the owner and holder of the Note and rights under
    the Guaranty. However, after learning that the Note and other Loan documents,
    including the Guaranty, had been transferred to HCB Real Holdings, LLC (as
    described above) and remained with HCB Real Holdings, LLC, the lawsuit was
    amended to include the proper party seeking to enforce the obligations under the
    Guaranty – HCB Real Holdings, LLC. Thus the information contained in my
    prior affidavit . . . is intended to be completely superseded by the information
    contained herein, which is true and correct. The information contained in my
    prior affidavit relating to Hillcrest Bank, NA was inadvertently included in error.
    I have checked the available records, attached hereto, which clearly demonstrate
    that HCB Real Holdings, LLC is the party in interest.
    –12–
    This correction of earlier testimony does not create an inconsistency giving rise to an issue of
    fact on who conducted the sale based on the timing of an assignment between a parent entity and
    its wholly owned subsidiary. 4
    The guarantors also attempt to create a fact issue by asserting that Powers applies an
    incorrect interest rate when calculating the amount owed on the Note in her affidavit. The
    guarantors do not explain, however, how this creates a fact issue regarding HCB’s status as
    owner and holder. Therefore, nothing is presented for our review.
    Finally, the guarantors concede that they are not directly challenging the propriety of the
    foreclosure with respect to whether the obligations under the deed of trust were met because they
    did not raise this issue in the trial court below. Appellant’s contend they are arguing only that
    there is a fact issue about whether HCB conducted the foreclosure sale. As discussed above, the
    summary judgment evidence conclusively shows that HCB conducted the sale. We resolve the
    guarantors’ third issue against them.
    D. Attorney’s Fees
    In their fourth issue, the guarantors contend the trial court erred in awarding HCB
    summary judgment on its request for attorney’s fees. We agree. An award of attorney’s fees in a
    summary judgment is improper unless the evidence of the reasonableness of the fees is
    uncontroverted and the amount of the fees is conclusively established. See Guity v. C.C.I. Enter.,
    Co., 
    54 S.W.3d 526
    , 528 (Tex. App.—Houston [1st Dist.] 2001, no pet.). When the amount of
    attorney’s fees is not conclusively established, the attorney’s fees question may be severed and
    remanded for trial. 
    Id. 4 The
    guarantors similarly note that the original and amended motions for summary judgment conflict because
    the former lists Hillcrest N.A. as the owner of the loan and the latter states that HCB owns the loan. The amended
    motion was filed to correct the same mistake of fact explained in Pancost’s affidavit and does not create a fact issue.
    –13–
    In this case, HCB submitted an affidavit in support of its request for attorney’s fees
    stating that $53,714.75 was a reasonable amount for the legal services rendered. The guarantors
    submitted an opposing affidavit in which their expert stated that “a reasonable fee would be no
    more than $15,000.” Although the trial court awarded HCB only $15,000 in attorney’s fees,
    nothing in the summary judgment evidence conclusively established $15,000 as the proper
    amount. HCB did not request or prove the reasonableness and necessity of that amount and the
    guarantors’ expert stated only that an amount in excess of $15,000 would be unreasonable.
    Absent conclusive and uncontroverted evidence of an amount certain, the trial court necessarily
    made a fact finding when it awarded HCB $15,000 as its reasonable attorney’s fees. Findings of
    fact have no place in a summary judgment proceeding. See IKB Indus. (Nigeria) Ltd. v. Pro-Line
    Corp, 
    938 S.W.2d 440
    , 441 (Tex. 1997). Because there was no specific amount that was
    uncontroverted, there was a genuine issue of material fact as to the amount of attorney’s fees to
    which HCB was entitled. See also Affordable Motor Co., Inc. v. LNA, LLC, 
    351 S.W.3d 515
    ,
    522 (Tex. App.—Dallas 2011, pet. denied). 5                 We resolve the fourth issue in favor of the
    guarantors.
    CONCLUSION
    We reverse the award of attorney’s fees and remand the cause to the trial court for further
    5
    The facts in Affordable Motor, are nearly identical to those presented here. In Affordable Motor, the appellee
    requested the trial court award it $28,500 in attorney’s fees and conditional appellate fees. 
    Id. at 522.
    The court
    awarded $1,800 in attorney’s fees through trial and $9,000 in conditional appellate fees. 
    Id. at 519.
    We concluded
    that appellant’s opposing affidavit stating that an award of fees “should be no more than $1,800, and conditional
    appellate fees should be no more than $4,000 and $5,000 [for an appeal to the court of appeals and the supreme
    court] respectively,” created a fact issue on the proper amount of fees rather than establishing those amounts as a
    matter of law. 
    Id. at 522.
    Although we also noted that the appellee did not seek summary judgment on the
    attorney’s fees issue in the trial court, the absence of that ground in the summary judgment motion was not the basis
    of our decision to reverse the award.
    –14–
    proceedings consistent with this opinion. We affirm the trial court’s judgment in all other
    respects.
    /David Evans/
    DAVID EVANS
    JUSTICE
    130113F.P05
    –15–
    S
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    RICHARD A. MYERS AND THOMAS J.                        On Appeal from the 68th Judicial District
    WOUTERS, Appellant                                    Court, Dallas County, Texas
    Trial Court Cause No. DC-11-02904.
    No. 05-13-00113-CV         V.                         Opinion delivered by Justice Evans. Justices
    Francis and Stoddart participating.
    HCB REAL HOLDINGS, LLC, Appellee
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's
    judgment awarding attorney's fees. In all other respects, the trial court's judgment is
    AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with
    this opinion.
    It is ORDERED that each party bear its own costs of this appeal.
    Judgment entered this 14th day of May, 2015.
    –16–