Edwin A. White v. MLMT 2004-BPC1 Carlyle Crossing, LLC, a Delaware Limited Liability Company ( 2011 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-10-00233-CV
    EDWIN A. WHITE                                                     APPELLANT
    V.
    MLMT 2004-BPC1 CARLYLE                                              APPELLEE
    CROSSING, LLC, A DELAWARE
    LIMITED LIABILITY COMPANY
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    FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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    MEMORANDUM OPINION1
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    This is an appeal from a judgment in favor of appellee MLMT 2004-BPC1
    Carlyle Crossing, LLC for $1,766,355.52 in a bench trial on appellee’s cause of
    action for waste of collateral.    In two issues, appellant Edwin A. White, an
    indemnitor under the loan agreements, contends that the evidence is insufficient
    1
    See Tex. R. App. P. 47.4.
    to support the damage award and that the express negligence doctrine does not
    apply to relieve appellee of its own negligence. We affirm.
    Background Facts
    MBS-Carlyle Crossing, Ltd. (MBS), through its agent, Michael Smuck,
    executed a $5.5 million promissory note made payable to PNC Bank; the debt
    was secured by real property, the Carlyle Crossing Apartments. Appellant did
    not sign the note or deed of trust, but he did sign a nonrecourse indemnification
    agreement along with Smuck in which he “assume[d] liability for and agree[d] to
    pay . . . [PNC] from and against any and all liabilities . . . which at any time may
    be imposed upon, incurred by[,] or awarded against [PNC] and for which
    borrower at any time may be personally liable.” A section of the note said that
    PNC could obtain personal, recourse judgments against any person or entity
    relating to PNC’s losses sustained by fraud, intentional misrepresentation, or
    waste.
    PNC assigned the note, deed of trust, and other loan documents to
    LaSalle Bank National Association, as trustee for Merrill Lynch Mortgage Trust
    2004-BPC1.2 MBS began missing payments on the note in September 2007,
    and LaSalle as trustee delivered a demand letter to appellant, MBS, and Smuck.
    The trust then accelerated the maturity of the note, advised appellant, MBS, and
    Smuck of the acceleration, and posted the property for foreclosure.
    2
    The loan to MBS was placed into a securitized pool.
    2
    In October 2007, the trust hired Jay Parmelee with Lincoln Property
    Company to investigate whether a receivership was warranted.        Upon initial
    inspection, Parmelee found that the property was not highly occupied and that
    there was broken glass in windows, holes in the parking lot, running water
    bubbling up in the pavement, and fences and access gates down, among other
    problems.    A trial court appointed Parmelee receiver of the property on
    November 1, 2007 at 4:35 p.m. Parmelee and a team from Lincoln took over
    management of the apartments and performed a unit-by-unit inspection of the
    property, noting numerous problems with both the exterior and interior of the
    property that required significant repair and replacement.
    The trust formed appellee to take title to the property on foreclosure and
    assigned the loan documents to appellee. Appellee was the successful bidder at
    the foreclosure sale.
    Appellee sued MBS, Smuck, appellant, and appellant’s wife, Ellen,
    claiming that waste had occurred at the property for which they were responsible
    under the note, deed of trust, and indemnity agreement. The trial court rendered
    judgment against MBS, Smuck, and White for $1,766,355.52.3 White appealed.
    Damages for Waste
    In his first issue, appellant contends that the damage award is not
    supported by the evidence.
    3
    Appellee nonsuited Ellen.
    3
    Standard of Review
    Findings of fact entered in a case tried to the court have the same force
    and dignity as a jury=s answers to jury questions. Anderson v. City of Seven
    Points, 
    806 S.W.2d 791
    , 794 (Tex. 1991). The trial court=s findings of fact are
    reviewable for legal and factual sufficiency of the evidence to support them by
    the same standards that are applied in reviewing evidence supporting a jury=s
    answer. Ortiz v. Jones, 
    917 S.W.2d 770
    , 772 (Tex. 1996); Catalina v. Blasdel,
    
    881 S.W.2d 295
    , 297 (Tex. 1994).
    We may sustain a legal sufficiency challenge only when (1) the record
    discloses a complete absence of evidence of a vital fact; (2) the court is barred
    by rules of law or of evidence from giving weight to the only evidence offered to
    prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
    mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital
    fact. Uniroyal Goodrich Tire Co. v. Martinez, 
    977 S.W.2d 328
    , 334 (Tex. 1998),
    cert. denied, 
    526 U.S. 1040
    (1999); Robert W. Calvert, "No Evidence" and
    "Insufficient Evidence" Points of Error, 
    38 Tex. L. Rev. 361
    , 362–63 (1960). In
    determining whether there is legally sufficient evidence to support the finding
    under review, we must consider evidence favorable to the finding if a reasonable
    factfinder could and disregard evidence contrary to the finding unless a
    reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 
    228 S.W.3d 649
    , 651 (Tex. 2007); City of Keller v. Wilson, 
    168 S.W.3d 802
    , 807, 827
    (Tex. 2005).
    4
    When reviewing an assertion that the evidence is factually insufficient to
    support a finding, we set aside the finding only if, after considering and weighing
    all of the evidence in the record pertinent to that finding, we determine that the
    credible evidence supporting the finding is so weak, or so contrary to the
    overwhelming weight of all the evidence, that the answer should be set aside and
    a new trial ordered. Pool v. Ford Motor Co., 
    715 S.W.2d 629
    , 635 (Tex. 1986)
    (op. on reh’g); Garza v. Alviar, 
    395 S.W.2d 821
    , 823 (Tex. 1965). Accordingly,
    when the party without the burden of proof on a fact issue complains of an
    adverse fact finding, that party must show that there is Ainsufficient evidence@
    supporting the finding, that is, that the credible evidence supporting the finding is
    too weak or that the finding is against the great weight and preponderance of the
    credible evidence contrary to the finding.      See 
    Garza, 395 S.W.2d at 823
    ;
    W. Wendall Hall, Standards of Review in Texas, 38 St. Mary=s L.J. 47, 263, 265
    (2006).
    Analysis
    According to appellant, appellee failed to prove with specificity the amount
    of damages above normal wear and tear on a building; thus, appellee failed to
    prove damages attributable to “waste” rather than depreciation.
    The indemnification agreement stated that appellant would indemnify
    appellee for any losses incurred by appellee for which MBS was personally liable
    under paragraph 12 of the note. Paragraph 12 of the note provided that MBS
    would not be personally liable for any damages in connection with the loan
    5
    documents except for certain specified situations, including “waste,” which is
    undefined.   The trial court found that appellant committed waste and that
    “correction and/or repair of the waste has a reasonable cost of $1,066,355.32
    [and] lease-up costs of $700,000.00.”
    Because waste is not defined in the contract, and there is no indication the
    parties intended a technical or specialized meaning, we use its plain, ordinary
    meaning. See DeWitt Cnty. Elec. Co-op, Inc. v. Parks, 
    1 S.W.3d 96
    , 101 (Tex.
    1999); Jamestown Partners, L.P. v. City of Fort Worth, 
    83 S.W.3d 376
    , 381 n.3
    (Tex. App.––Fort Worth 2002, pet. denied). To establish a claim of waste, a
    party must show an injury to the reversionary interest in land caused by the
    wrongful act of a tenant or other party rightfully in possession.    R.C. Bowen
    Estate v. Cont’l Trailways, 
    256 S.W.2d 71
    , 72 (Tex. 1953); Fath v. CSFB 1999-
    C1 Rockhaven Place Ltd. P’ship, 
    303 S.W.3d 1
    , 7 (Tex. App.––Dallas 2009, pet.
    denied); King’s Court Racquetball v. Dawkins, 
    62 S.W.3d 229
    , 232–33 (Tex.
    App.––Amarillo 2001, no pet.). A mortgagee may bring an action for waste when
    the value of security is threatened.4 Taylor v. Brennan, 
    605 S.W.2d 657
    , 658
    4
    The parties submitted the damage issue to the trial court on a cost-of-
    repair-and-replacement theory; appellant has not challenged that measure of
    damages theory at trial or on appeal, only whether the evidence submitted
    supports that theory. See Carroll v. Edmondson, 
    41 S.W.2d 64
    , 65 (Tex.
    Comm’n App. 1931, judgm’t adopted); Frio Invs., Inc. v. 4M-IRC/Rohde, 
    705 S.W.2d 784
    , 786 (Tex. App.––San Antonio 1986, writ ref’d n.r.e.); Payne v.
    Snyder, 
    661 S.W.2d 134
    , 141 (Tex. App.––Amarillo 1983, writ ref’d n.r.e.);
    Wheeler v. Peterson, 
    331 S.W.2d 81
    , 83 (Tex. App.––Fort Worth 1959, writ
    dism’d).
    6
    (Tex. Civ. App.––Houston [1st Dist.] 1980), rev’d in part on other grounds, 
    621 S.W.2d 592
    (Tex. 1981); Brader v. Ellinghausen, 
    154 S.W.2d 662
    , 665 (Tex. Civ.
    App.––Fort Worth 1941, no writ).
    Parmelee testified that he performed an initial walk through of the complex
    upon being named receiver and estimated the readily observable damage at
    $847,200; that is, that amount was his estimate and opinion of what was
    immediately necessary to make the complex marketable and was not attributable
    to ordinary wear and tear. For example, Parmelee testified that a number of the
    units had leaks that were so bad that significant mold had grown on the walls,
    carpets, and flooring; in some, sheetrock was missing from the ceiling.            In
    addition, in some units, electricity had been disconnected for nonpayment,
    meters had been removed, and air conditioning units had been removed from
    their pads and were missing. “Hot” wires from the missing air conditioning units
    had been left exposed where even a child could touch them. The pool had been
    closed for health infractions and code compliance issues.          Some units were
    missing refrigerators, stoves, appliances, and locks.       Some units had broken
    glass that appeared to have been in that condition for some time, fences were
    down, and the parking lot had holes and running water bubbling up through the
    pavement. Out of 138 total units, 101 needed repairs before being ready to
    lease, and 32 were completely uninhabitable and had to be “taken down to the
    shell.”     From December 2007 through May 2008, all expenses paid by the
    receiver other than utilities were for deferred maintenance, i.e., repairs and
    7
    replacement occasioned by the routine maintenance that had been delayed.
    According to Parmelee, this type of damage was beyond normal wear and tear.
    Parmelee also testified that when he took over as receiver, the occupancy
    rate had gone from 94% in July 2004 to less than 50% in November 2007.
    Moreover, the property had been mismanaged:          tenants were not properly
    qualified, maintenance requests had not been adequately responded to, items
    were missing from the disorganized leasing files, and rental payments from
    November 1, 2007 may not have been credited.
    Michael Walker, appellee’s expert witness, testified that of the $847,200 in
    damage observed by Parmelee, only ten to fifteen percent of those items were
    attributable to normal wear and tear. Thus, $720,120 would be above normal
    wear and tear.    Walker also testified that an additional $400,000 would be
    necessary to fully restore the damage to the property beyond normal wear and
    tear. He based this estimation on a December 2007 report from CB Richard Ellis
    estimating that $1,242,000 would be required to make all the necessary repairs.
    Accordingly, the evidence supports a damage award of at least $1,120,120 for
    repairs over and above normal wear and tear, which is more than what the trial
    court found.
    Appellee presented evidence that its actual expenditures for the necessary
    repairs and replacements totaled $1,254,535.67; the trial court’s damage award
    deducts fifteen percent from this amount for total repair and replacement
    damages of $1,066,355.32. This amount is thus supported by the evidence.
    8
    Walker also testified that the income from the property was much lower
    than it should have been because of the low occupancy rate. In fact, it was not
    enough to cover the property’s operating expenses. Accordingly, Walker testified
    that appellee would lose $700,000 in income stream for the twenty-two months it
    would take to achieve a 90% occupancy rate at the property. Accordingly, the
    evidence supports the trial court’s total award of $1,766,355.32.
    One of appellant’s main arguments at trial was and on appeal is that
    appellee could not prove which of the items needing repair and replacement
    would have needed that work anyway because of ordinary wear and tear. But
    Walker testified that such a determination would be impossible with missing
    items, especially; appellee would have no way of knowing in what condition those
    items were before they were removed. In addition, although Walker testified that
    some amount of deferred maintenance was acceptable, both Walker and
    Parmelee testified that the overall condition of the property showed a pattern of
    long-term neglect and deferred maintenance, which caused damage to become
    progressively worse and eventually caused more damage. Thus, the trial court
    could have believed Walker’s and Parmelee’s testimony that the extent of the
    damage was such that it was above and beyond normal wear and tear.
    Appellant also contends that the evidence is insufficient to support the trial
    court’s failure to find that appellee’s own negligence caused the waste, a theory
    appellant advanced at trial. The trial court did not apportion any responsibility to
    appellee in its findings of fact and conclusions of law; accordingly, we presume
    9
    that it found appellee zero percent negligent. See First Nat’l Bank of Denver City
    v. Brewer, 
    775 S.W.2d 51
    , 55 (Tex. App.––Amarillo 1989, no pet.). Therefore,
    we will review whether the trial court’s finding of zero percent negligence has any
    support in the record.
    Parmelee testified that he was appointed receiver at 4:35 p.m. on
    November 1, and he immediately dispatched a team from Lincoln to the property.
    The team arrived after 5:00 p.m. and found the property management office
    locked and inaccessible, so they came back the next morning at 8:30 a.m. and
    had a locksmith open the office. When they first got into the office, they saw that
    equipment and files were missing, and the phones had been disconnected; the
    team had not yet seen the interior of the units, so they did not know they would
    need on-site security in the event of vandalism.
    Walker testified on cross-examination that he had been told by Kela
    Brooks, a manager for Lincoln on November 1, 2007, that she had gone by the
    property on the night of November 1, that there was a truck with a trailer parked
    outside the property management office, and that people were taking files and
    other items out of the office. This would have been after 4:35 p.m. when the trial
    court appointed Parmelee as receiver.       But Walker also testified that MBS
    remained responsible for the property until Parmelee had taken physical
    possession of the property.
    Although there is some evidence that the property was unsecured during a
    short period after the receiver was appointed, the trial court could have
    10
    reasonably inferred from Parmelee’s and Walker’s testimony that the damage to
    the property resulted from long-term neglect rather than vandalism or other
    damage occurring solely on one night after the receiver took over.
    Appellant also cross-examined Parmelee and Walker, as well as Michael
    Cocanougher, a representative of one of the loan’s servicers, about whether the
    lender was negligent by failing to more closely inspect the property according to
    its rights in the loan documents. The deed of trust gave the lender the right to
    physically inspect the property to make sure that it was being maintained
    appropriately. If, upon doing so, the lender determined that corrective measures
    were necessary, it could demand that MBS complete those corrections within
    ninety days or face default.
    The evidence showed that Parmelee performed two physical inspections in
    early and mid-October 2007 when he was investigating whether a receivership
    was warranted. Although he did note numerous problems, he was not able to
    see the interior of units, so he did not know the full extent of the damage until he
    was able to access the property as receiver. Parmelee was asked about annual
    reports the lender had received from third-party inspection companies; according
    to Parmelee, it was hard for him to imagine that a grossly mismanaged property
    would receive a good rating from an inspector “[i]f an adequate job of inspection
    was being done as written by the inspector.” He also said that the reported
    income from the property was inconsistent with the occupancy level.
    11
    Cocanaugher testified that the lender received property condition
    inspections in 2004 when the loan was originated and also in 2005, 2006, and
    2007. The inspectors rated the property as “good” in 2005, 2006, and November
    2007; the property’s rating in the August 2007 inspection was “fair.” The 2006
    report noted that there was “major” deferred maintenance that needed to be done
    at the property, but it also stated that the property was “in better condition [than]
    the majority of the immediate competition.” Cocanaugher testified that after the
    lender received the August 2007 report, it sent MBS a letter pursuant to the deed
    of trust demanding that the items listed in the report be fixed, but MBS stopped
    making payments in September 2007 and, thus, was already in default by the
    end of the ninety-day period for making such repairs.         Cocanaugher further
    testified that the November 1, 2007 report was “absolutely” inaccurate, and that
    the lender did not accept it and refused to pay for it.
    Cocanaugher and Walker testified that a property manager could
    manipulate the results of an inspection by showing the inspector only units that
    were in good condition. Property management knows about the inspections in
    advance and chooses the units to show to the inspector. Parmelee testified that
    from what he saw when he inspected the property in October 2007, the reports
    were not accurate and that he would have taken issue with them. According to
    Walker, although the inspection reports showed some “deterioration” at the
    property, it probably looked fine to the lender based on the photographs attached
    12
    to the reports. And although the reports showed a decline, they did not reflect
    the true condition of the property.
    Finally, Cocanaugher testified that although lenders contract for periodic
    inspections and collect financial and operating statements from borrowers, a
    lender cannot always discern local or regional differences in property
    performance, especially if a loan is securitized, as this one was. According to
    Cocanaugher, the lender’s main goal in reviewing these types of reports is to
    compare them against what was budgeted at loan origination and try to discern
    any “significant meaningful variance.”
    We conclude and hold that there was sufficient evidence from which the
    trial court as factfinder could have determined that none of the waste occurring at
    the property was attributable to any negligence of appellee, its predecessor, or
    both.
    We overrule appellant’s first issue.
    Express Negligence
    In his second issue, appellant argues that the express negligence rule
    does not apply to relieve appellee of its own negligence.
    The express negligence requirement is a rule of contract interpretation
    providing that an agreement purporting to indemnify the indemnitee against
    liability for its own negligence must clearly state that intent within the four corners
    of the agreement itself. See Storage & Processors, Inc. v. Reyes, 
    134 S.W.3d 13
    190, 192 (Tex. 2004); Ethyl Corp. v. Daniel Constr. Co., 
    725 S.W.2d 705
    , 708
    (Tex. 1987).
    The indemnity provision here contains no language obligating appellant to
    indemnify appellee from its own negligence; instead, the indemnity provision
    seeks to have appellant indemnify appellee from any losses appellee incurred for
    which MBS was liable under the note.       In effect, the indemnity agreement
    functioned as a guarantee that if MBS did not make good on any obligation for
    which it was liable under recourse provisions of the note and deed of trust,
    appellant would make good on them. See Nat’l City Mortg. Co. v. Adams, 
    310 S.W.3d 139
    , 143–44 (Tex. App.––Fort Worth 2010, no pet.) (op. on reh’g).
    Accordingly, the express negligence rule does not apply here to bar appellee’s
    recovery pursuant to the terms of the indemnity agreement because appellee
    was not seeking recovery for its own negligence. See, e.g., MAN GHH Logistics
    GMBH v. Emscor, Inc., 
    858 S.W.2d 41
    , 43 (Tex. App.––Houston [14th Dist.]
    1993, no writ). We overrule appellant’s second issue.
    14
    Conclusion
    Having overruled both of appellant’s issues, we affirm the trial court’s
    judgment.
    TERRIE LIVINGSTON
    CHIEF JUSTICE
    PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
    DELIVERED: August 18, 2011
    15