Wyrick v. Bus. Bank of Tex., N.A.

• Decision Date: 30 April 2019
• Docket Number: NO. 14-18-00062-CV,14-18-00062-CV
• Parties: Michael Lee WYRICK a/k/a Mike Wyrick and Gregory Michael Ruhnke a/k/a Greg Ruhnke, Appellants v. BUSINESS BANK OF TEXAS, N.A., Appellee
• Court: Texas Court of Appeals

577 S.W.3d 336

Michael Lee WYRICK a/k/a Mike Wyrick and Gregory Michael Ruhnke a/k/a Greg Ruhnke, Appellants

v.BUSINESS BANK OF TEXAS, N.A., Appellee

NO. 14-18-00062-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed April 30, 2019

Rehearing Denied July 2, 2019

Marcy Hogan Greer, Austin, TX, Siena Magallanes, Gerald T. Drought, San Antonio, TX, for Appellants.

Molly Jean Mitchell, Srinivas Behara, Alysia Wightman, J. Hampton Skelton, Austin, TX, Donna Brown, West Lake Hills, TX, for Appellees.

Panel consists of Chief Justice Frost and Justices Christopher and Jewell.

Kevin Jewell, Justice

Two individual guarantors of a $ 3 million promissory note appeal the trial court’s summary judgment enforcing the guaranty in favor of a bank and dismissing the guarantors' tort claims. In their first two issues, the note guarantors, appellants Michael Lee Wyrick and Gregory Michael Ruhnke, contend the trial court erred in granting summary judgment to the bank, appellee Business Bank of Texas, N.A., (the "Bank"), because legally sufficient evidence supports their contract defenses (fraudulent inducement, negligent misrepresentation, mutual mistake, and equitable estoppel) and affirmative counterclaims (fraud, tortious interference, negligence, and gross negligence). We conclude that appellants lack standing to assert some of their counterclaims and that the summary judgment evidence does not raise a fact issue as to the remainder of their counterclaims and their contract defenses.

In their third and fourth issues, appellants challenge the trial court’s permanent anti-suit injunction, which bars appellants and others, including a company they own, Barquero Energy Services, LLC ("Barquero"), from initiating or proceeding with any related claims they may have against the Bank in any other forum. After careful review of the record, we conclude the trial court erred in granting the anti-suit injunction, and we modify the judgment to dissolve the injunction. We otherwise affirm the trial court’s judgment as modified.

Background

Read in the light most favorable to appellants, ¹ the record reveals the following pertinent background facts. The Bank loaned $ 3,000,000 to Barquero for investment in a salt water disposal well (the "Barquero SWD"), and Barquero signed a promissory note to the Bank in that amount. The note promising the loan’s repayment specifies as "security for payment" (1) "an Assignment of Leases" covering the leasehold interest in the Barquero SWD and (2) an assignment of interest in Barquero stock and three life insurance policies. Wyrick signed the note as managing member of Barquero. The Bank did not sign the note, though appellants contend the Bank drafted the note’s terms. The Bank’s representatives, Ed Lette and Ray Bearden, assured Wyrick and Ruhnke, another Barquero member, that the loan would be secured by a valid security interest in the Barquero SWD lease. By a separate document signed the same day as the note, the Bank and Barquero agreed to arbitrate all claims, disputes, and controversies between and among them arising out of or relating to the loan.

Each of the appellants signed an agreement titled "Unlimited, Unconditional Guaranty," which provides in relevant part:

1. Guarantor unconditionally, irrevocably, and absolutely ... guarantees to Lender ... that (a) the principal of and interest on, and attorneys' fees provided in, the Note ... will be promptly paid when due in accordance with the provisions thereof ...; (b) all covenants and agreements of Borrower contained in the Note, the Assignment, the Debt, and any other instrument, ... will be duly and promptly observed and performed and (c) all additional amounts owing or which hereafter become owing by Borrower under the terms of the Note, the Assignment, the Debt, and any other instrument ... will be promptly paid when due.

2. The obligations of Guarantor shall be performable without demand of Lender and shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of the Note, the Assignment, or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or a guarantor, and Guarantor hereby waives the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Unconditional Guaranty, and agrees that the obligations of Guarantor shall not be affected by any circumstances, whether or not referred to in this Unconditional Guaranty, which might otherwise constitute a legal or equitable discharge of a surety or guarantor . Specifically, to the extent this Unconditional Guaranty is governed by the laws of the State of Texas, the Guarantor waives all rights and remedies accorded by law to guarantors and sureties and further waives the benefits of any right of discharge under Article 34 of the Texas Business and Commerce Code² and any other rights of sureties and guarantors thereunder, together with all rights and remedies under Texas Property Code Sections 51.003 to 51.005, as amended. Without limiting the generality of the foregoing, the Guarantor hereby waives diligence, presentment, demand of payment, protest, all notices (whether of nonpayment, intention to accelerate, acceleration, dishonor, protest or otherwise) with respect to the note, notice of acceptance of this Unconditional Guaranty and of the incurring by borrower of any of the obligations hereinbefore mentioned, all demands whatsoever, and all rights to require Lender to (a) proceed against the borrower; (b) proceed against or exhaust any collateral held by Lender to secure the payment of the indebtedness or (c) pursue any other remedy it may now or hereafter have against the borrower.

3. Guarantor hereby agrees that, at any time or from time to time, without notice to Guarantor and without affecting the liability of Guarantor, ... any security for the Debt may be modified, exchanged, surrendered or otherwise dealt with or additional security may be pledged or mortgaged for the Debt.

(Emphases added).

Appellants acknowledge signing the guaranties but contend the Bank assured them that it would execute on the collateral, rather than pursue the guaranties, in the event of Barquero’s default on the note.

Barquero defaulted on the note. However, contrary to what appellants allegedly were led to believe through the Bank’s assurances, the Bank did not foreclose on the Barquero SWD but rather sought to enforce the personal guaranties. Appellants refused to honor their guaranties. According to appellants, the Bank was unable to foreclose on the collateral due to a problem of its own making: the Bank failed to secure all necessary leasehold assignments and landowner consent to the assignments, as contemplated by the note. Further, appellants contend, the Bank began operating as if it were the owner of the Barquero SWD, which interfered with appellants' ability to sell the well for its true value or to attract investors. Appellants claim that the Bank’s actions caused them to lose potential investors and buyers, and negatively impacted their credibility with vendors.

The Bank sued appellants in Travis County for breach of their personal guaranties.³ Appellants answered with a general denial and asserted affirmative defenses of fraudulent inducement and negligent misrepresentation. They later amended their answers to also plead mutual mistake and equitable estoppel. Appellants filed counterclaims against the Bank, Lette, and Bearden, alleging fraud, tortious interference with prospective contracts, negligence, and gross negligence. Barquero asserted similar cross-claims against the Bank, but Barquero and the Bank agreed to arbitrate Barquero’s claims pursuant to the arbitration agreement between them. The trial court signed an agreed order compelling all of Barquero’s claims against the Bank to arbitration, and severing and abating those claims. Barquero nonsuited its cross-claims that were subject to the arbitration order.

After the parties agreed to arbitrate Barquero’s claims in Travis County, Barquero Fund I, LLC ("Barquero Fund")—an entity owned by Barquero and ostensibly controlled by appellants—filed suit against the Bank in Dimmit County, asserting claims similar if not identical to those Barquero had asserted against the Bank in Travis County. The Bank filed a motion for sanctions and for an anti-suit injunction in Travis County when it discovered Barquero Fund’s lawsuit in Dimmit County.

Meanwhile, in the Travis County lawsuit, the Bank, Lette, and Bearden sought summary judgment against appellants in two similar motions on both traditional and no-evidence grounds.⁴ In the traditional portion of the motions, the movants asserted that: (1) appellants are liable for breach of their guaranties; (2) appellants' affirmative defenses of fraudulent inducement and negligent misrepresentation fail for lack of justifiable reliance; (3) the defense of mutual mistake does not void the guaranties because appellants assumed the risk of any failure of collateral;⁵ (4) appellants lack standing to bring counterclaims because those claims belong to Barquero; and (5) appellants' counterclaims fail because the damages are speculative. In the no-evidence portion of the motions, the movants argued that appellants had no evidence of any required elements of their fraud, tortious interference, negligence, or gross negligence counterclaims.

Appellants filed responses to each summary judgment motion, asserting that they were not liable on the guaranties due to the Bank’s purported misrepresentations concerning the loan collateral—i.e., that the Bank had or would obtain a valid security interest in the Barquero SWD leasehold. Appellants also asserted that they had standing to assert their counterclaims, that their damages were based on reasonable certainty, and that they had substantial evidence supporting their fraud, tortious interference, and negligence-based claims.

The...