Compass Bank v. Jerry Durant ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00390-CV
COMPASS BANK APPELLANT
V.
JERRY DURANT APPELLEE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV13-0933
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CONCURRING AND DISSENTING OPINION
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I agree with much of the majority opinion. I agree that the trial court erred
by granting appellee Jerry Durant’s motion for summary judgment on his breach-
of-contract and declaratory-judgment claims brought against appellant Compass
Bank based on the unambiguous language of their loan and swap agreement. I
agree that Durant raised fact issues precluding summary judgment in favor of
Compass on its traditional motion for summary judgment on Durant’s breach-of-
contract claim. And I agree that the issue of attorney’s fees must be
reconsidered on remand in light of these holdings. But I disagree with the
majority opinion’s failure to consider all grounds Compass fairly raised in its
summary-judgment motion to defeat Durant’s declaratory-judgment claim in our
review of the trial court’s general summary-judgment denial.
The majority opinion holds that Compass’s summary-judgment ground
directed to Durant’s declaratory-judgment claim was limited to its argument that
there was no justiciable controversy as to the rights and status of the parties
based on the plain language of the loan and swap agreement, rendering
declaratory relief unavailable. Based on this narrow reading of Compass’s
summary-judgment motion, the majority opinion concludes that Compass was
not entitled to judgment as a matter of law on Durant’s declaratory-judgment
claim.
Indeed, Compass moved for judgment as a matter of law regarding
Durant’s request for declaratory relief because there was no justiciable
controversy. But Compass also argued in its motion that it was entitled to
judgment as a matter of law on Durant’s declaratory-judgment claim “[f]or the
same reasons Durant’s breach of contract claim fails,” i.e., because “[t]he plain
terms of the loan documents to which Durant agreed, obligate him to pay a
closeout fee in the event that the amount due under the promissory note was
paid off.” In other words, Compass argued that the plain language of the loan
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documents mandated judgment as a matter of law in Compass’s favor on
Durant’s declaratory-judgment claim. Compass further asserted that declaratory
relief would be duplicative of Durant’s other requested relief, entitling Compass to
judgment as a matter of law on that claim. Durant responded to Compass’s
summary-judgment argument that the terms of the unambiguous loan documents
prevented the declaration Durant sought. On appeal, Compass again argues
that Durant was not entitled to a nonliability declaration as a matter of law
because it would be duplicative of Durant’s other requested relief and for the
same reasons Durant was not entitled to judgment on his breach-of-contract
claim—the terms of the loan documents prevented Durant’s proposed
interpretation.1
I recognize that Compass’s summary-judgment motion was not a primer
on summary-judgment practice, but it was sufficient to fairly alert the trial court
and Durant to the specific grounds upon which Compass believed judgment as a
matter of law in its favor could be entered on Durant’s request for a nonliability
declaration. This is all that is required. See, e.g., Timpte Indus., Inc. v. Gish,
286 S.W.3d 306, 310–11 (Tex. 2009); Laredo ISD v. Trevino, 25 S.W.3d 263,
264–65 (Tex. App.—San Antonio 2000, pet. denied); Golden Harvest Co. v. City
of Dallas, 942 S.W.2d 682, 691–92 (Tex. App.—Tyler 1997, writ denied); Pettite
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Interestingly, Compass does not clearly raise its justiciability argument on
appeal.
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v. SCI Corp., 893 S.W.2d 746, 748 (Tex. App.—Houston [1st Dist.] 1995, no
writ).
The grounds Compass fairly raised in the trial court and briefed on appeal
should be included in our review of the trial court’s denial of Compass’s
summary-judgment motion directed to Durant’s request for declaratory relief.
Because the majority opinion correctly determines that the loan documents
unambiguously provided that Durant was obligated to pay the termination fee,
Compass was entitled to judgment as a matter of law on Durant’s declaratory-
judgment claim. Because the majority declines to address each ground
Compass asserted to defeat Durant’s declaratory-judgment claim and does not
render judgment in favor of Compass on this claim, I respectfully dissent to that
portion of the opinion and judgment and concur in the remainder.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
DELIVERED: January 5, 2017
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