v - 5th Court of Appeals

NO. 05-11-00422-CV
ACCEPTED
225EFJ016392557
FIFTH COURT OF APPEALS
DALLAS, TEXAS
11 July 8 P3:49
Lisa Matz
CLERK
IN THE COURT OF APPEALS FOR THE
FIFTH DISTRICT OF TEXAS
DALLAS, TEXAS
STEVE ROUSE
Appellant,
v.
TEXAS CAPITAL BANK
Appellee.
______________________________________________________________________________
AMENDED BRIEF OF APPELLANT STEVE ROUSE
______________________________________________________________________________
Michael Wynne
State Bar No. 22110800
Wynne & Smith
707 West Washington Street
Sherman, Texas 75090
(903) 893-8177
(903) 892-0916 Fax
ATTORNEYS FOR APPELLANT
APPELLANT REQUESTS ORAL ARGUMENT
CERTIFICATE OF INTERESTED PERSONS
Steve Rouse, Appellant
Michael C. Wynne
NALL, WYNNE & SMITH
Attorneys for Appellant
Douglas E. Stall
THE STALL LAW FIRM , PLLC
Attorneys for Appellant (Oklahoma case, only)
Marcus Ratcliff
LATHAM , WAGNER, STEELE AND LEHMAN
Attorneys for Appellant (Oklahoma case, only)
Texas Capital Bank, Appellee
Randall K. Price
James T. Phillips
CANTEY HANGER, L.L.P.
Attorneys for Appellee
The Honorable Lorraine Raggio
162nd Judicial District Court
Dallas, Texas
Presiding Judge (Texas case, only)
Tri-County Autoplex, Borrower
La Vona Ellen Norfield, Guarantor
Jerry D. Norfield, Guarantor
Dwight M. Francis
Aimee Oleson
GARDERE WYNNE SEWELL, LLP
Attorneys for Tri-County Autoplex and the Norfields
Tommy W. Davis
William R. Power
LAW OFFICE OF WILLIAM R. POWER
Attorneys for Tommy W. Davis
Michael S. Calhoun
Carrie L. Morris
Automotive Transfers
i
John K. Vaughan
Stacey D. Walvoord
Michelle S. Sorter
VAUGHAN , RAMSEY & WALVOORD
Attorneys for Automotive Transfers
James Kayvonfar
Steven J. Berry
BERRY , ODOM , RABINOWITZ & BOBO , LLP
Attorneys for James Kayvonfar
Charles M. Spires
Texas SS, Inc.
Karen S. Burdette
Carol S. “Susie” Chambers
ii
TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
APPEAL POINTS
I.
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
ISSUES PRESENTED FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
APPEAL POINT No. 1:
Whether the trial court erred in granting an antisuit injunction.
III.
STATEMENT OF FACTS
.........................................3
IV.
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
V.
ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.
The Texas Case and the Oklahoma Case Do Not Involve the Same Issues,
Facts or Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.
TCB Has Failed to Satisfy Texas Law’s Heavy Burden to Show a Clear
Equity in Favor of an Anti-Suit Injunction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3.
Plaintiff’s Application for Anti-Suit Injunction Against Rouse Should
Not be Granted Because it Does Not Fall Within Any of the Four
Grounds Recognized by the Texas Supreme Court... . . . . . . . . . . . . . . . . . . . . 8
a)
There is No Threat to This Court’s Jurisdiction.. . . . . . . . . . . . . . . . . . 8
b)
Enjoining Rouse’s Suit in Oklahoma Will Not Protect
TCB From Vexatious or Harassing Litigation... . . . . . . . . . . . . . . . . . . 9
c)
No Multiplicity of Suits Exists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
d)
TCB Has Failed to Show That an Injunction is Necessary
to Prevent an Irreparable Miscarriage of Justice or
Evasion of an Important Public Policy.. . . . . . . . . . . . . . . . . . . . . . . . . 10
4.
Enforcement of the Forum-Selection Clause on Rouse’s Oklahoma Tort
Claims is Unreasonable Because the Clause Does Not Cover Those
Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5.
TCB Has Made No Showing of Imminent, Irreparable Harm, and as a
Matter of Law, Has Adequate Remedies at Law.. . . . . . . . . . . . . . . . . . . . . . . 12
6.
Rouse Did Not “Race to the Courthouse.”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
iii
VI.
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
APPENDICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
iv
INDEX OF AUTHORITIES
Cases
Page
Avco Corporation v. Interstate Southwest, Ltd.,
145 S.W.3d 257 (Tex.App-Houston [14th Dist.] 2004, reh’g denied). . . . . . . . . . . . . . . . 8
Busse v. Pacific Cattle Feeding Fund No. 1, Ltd., 896 S.W.2d 807, 812 (Tex. App. – 1995). . . 11
Butnaru, v. Ford Motor Co., 84 S.W.3d 198, at 204, (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . 13
Coastal Steel Corporation v. Tilghman Wheelabrator Ltd.,
709 F.2d 190, U.S. Ct. Appeals (3rd Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8, 10, 12
Ginter Ex. Rel. Ballard vs. Belcher, Prendergast & Laporte,
536 F.3d 439, 444 (5th Cir. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Golden Rule Ins. Co. v. Harper, 925 S.W.2d 649, 651 (Tex. 1996). . . . . . . . . . . . . 2, 8-10, 12-13
Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d at 716.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Harris v. Guerra & Moore,
2005 Tex. App. LEXIS 7166, at *7 (Tex.App.–Corpus Christi 2005, no pet.). . . . . . . . 6-8
In Re Int’l Profit Assocs., I, 274 S.W.3d 672, 675 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . 11
In Re Laibe Corp.. 307 S.W.3d at 316, 210 Tex. LEXUS 280. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
In re Lisa Laser USA, Inc., 310 S.W.3d 880, 884-85 (Tex. 2010). . . . . . . . . . . . . . . . . . . . . 10, 11
Lambert v. Kysar, 983 F.2d 1110, U.S. Ct. Appeals (1st Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . 12
London Market Insurers v. American Home Assurance Co.,
95 S.W. 3d 702 (Tex.App– Corpus Christi 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . 6, 10
Manetti-Farrow Inc. v. Gucci America, Inc., 858 F.2d 509, U.S. Ct. Appeals (9th Cir. 1988). . . 12
Markel v. World Flight, Inc.,
938 S.W.2d 74,79 (Tex. App.–San Antonio 1996, no writ). . . . . . . . . . . . . . . . . . . . . . . 13
TCW Global Project Fund II, Ltd.,
274 S.W.3d 166, 169 (Tex. App. – Houston [14th Dist.] 2008,
orig. proceeding [mand. denied]). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Travelers Insurance Co. v. J. Ray McDermott, Inc.,
2006 Tex. App. LEXIS 3047 (Tex. App., Beaumont). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tri-State Pipe & Equipment, Inc. v. Southern County Mutual Ins. Co.,
8 S.W.3d 394, 399 (Tex.App–Texarkana 1999, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 7
v
Valero Energy Corp. v. Wagner & Brown, II,
777 S.W.2d 564, 566 (Tex. App. – El Paso 1989, writ denied). . . . . . . . . . . . . . . . . . . . 11
University of Texas v. Morris, 344 S.W.2d 426, 429 (Tex. 1961).. . . . . . . . . . . . . . . . . . . . . . . 7-8
Rules & Statutes
Page
TEXAS THEFT LIABILITY ACT .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
18 U.S.C. 1964 (Civil RICO). .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
vi
No. 05-11-0422-CV
______________________________________________________________________________
IN THE COURT OF APPEALS
FIFTH JUDICIAL DISTRICT COURT OF TEXAS
AT DALLAS
_____________________________________________________________________________
STEVE ROUSE
Appellant,
v.
TEXAS CAPITAL BANK
Appellee.
______________________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW APPELLANT, Steve Rouse (“Rouse”), a defendant in the trial court, who
submits this brief, and would respectfully show the Court the following:.
I.
STATEMENT OF THE CASE
The original Texas lawsuit is a suit filed by Texas Capital Bank on a promissory note
executed by Defendant Tri-County Autoplex, an Oklahoma partnership, and a suit on certain
guaranty agreements, including a guaranty agreement executed by Rouse. (RR V2 px 6; px 3; px 4
(Appendix C); RR V1 P 26, L 19-25; P 27, L 6-18). This appeal arises from the entry of an antisuit injunction order by the trial court in favor of Texas Capital Bank, prohibiting Rouse from
pursuing his tort claims in an Oklahoma lawsuit filed against Texas Capital Bank and six other
defendants for fraud, breach of implied covenant of good faith and fair dealing, conversion, unjust
enrichment, constructive trust, tortious interference with a business relationship, and civil
conspiracy. (Appendix A, CR 769; RR V2 px 7).
This appeal tenders the question of whether a Texas Court should prohibit an Oklahoma
resident from proceeding against a defendant in Oklahoma when he was unaware he had been sued
by that defendant in Texas eleven (11) days earlier for an unrelated claim. The guiding principle of
-1-
law is that an anti-suit injunction should not be utilized to control a sister-state’s previous orders
accepting jurisdiction, unless there are very special circumstances. See Golden Rule Inc. Co. v.
Harper, 925 S.W.2d 649 (Tex. 1996). There are no special circumstances in this case and the Texas
District Court abused its discretion when it issued the anti-suit injunction. (Appendix A, CR 769).
The Oklahoma Supreme Court has already examined the issue now before this Court. After a full
hearing and voluminous briefing, Oklahoma’s highest court left undisturbed its trial court’s rulings
that Oklahoma has jurisdiction to hear Rouse’s fraud case against Texas Capital Bank (“TCB”). (RR
V2 px 40).
Three weeks later, regardless of the time-honored principle of comity, TCB requested and
ultimately obtained an overbroad and unmerited anti-suit injunction. The 4-page Order was customdesigned by TCB and, except for a few lines, was endorsed by the presiding judge’s signature. The
Order does not cite a single case and is devoid of legal analysis. It is comprised of sixteen (16)
conclusory paragraphs culminating in a ban on Rouse’s right to pursue TCB in his Oklahoma action.
The Order prohibits all action by Rouse against TCB in Oklahoma; he was forbidden from filing
motions, seeking discovery, and seeking a judgment or proceeding to trial. (Appendix A, CR 769).
The Trial Court could reasonably have expected that when TCB urged and obtained this antisuit injunction, that it would thereafter litigate its claims in the Texas Court and not escalate
litigation in Oklahoma. The opposite occurred. TCB asked for equity to preclude Rouse from
litigating in Oklahoma, and then, when Rouse could not take action due to the injunction, TCB
utilized the Oklahoma court to conduct discovery.
On the very same day the writ of injunction was signed, TCB served Rouse’s former
Oklahoma attorney with a subpoena to produce their billing records. Within one week, TCB
proceeded with an Oklahoma Notice of Deposition of Jerry Norfield, a defendant in the Oklahoma
action. Thus, after convincing the Trial Court that it would suffer harm if it were required to litigate
in Oklahoma, TCB served discovery, proceeded with a deposition, and filed multiple motions in the
Oklahoma Court. Among these were motions to exclude witnesses, strike damages, compel
production of documents, exclude evidence in limine, bifurcate trial, abate the action against it,
-2-
transfer trial venue, and grant summary judgment. TCB also filed deposition designations, proposed
jury instructions, and appeared in court for a pretrial conference.
TCB used Oklahoma discovery process because it knew a Texas court could not compel
obedience to a subpoena issued to an Oklahoma resident. Furthermore, TCB calculated that once
it obtained an injunction precluding Rouse from taking any action, it would win unfettered freedom
to conduct discovery and request relief which Rouse could not oppose without the threat of contempt
by the Texas court. TCB’s conduct demonstrates unclean hands, estoppel, and waiver.
II.
ISSUES PRESENTED FOR REVIEW
APPEAL POINT No. 1:
The Trial Court erred in granting Appellee’s application for
anti-suit injunction.
A.
The trial court acted arbitrarily, unreasonably or without
reference to any guiding rules or legal principles in
entering an anti-suit injunction.
B.
The trial court abused its discretion in entering an antisuit injunction.
III.
STATEMENT OF FACTS
Fifteen years ago, Rouse and Jerry Norfield (“Norfield”) formed a partnership and began
operating Tri-County Autoplex (“Tri-County”) to sell automobiles in Hugo, Oklahoma. In 2007,
they decided to sell their interest in the business to Mike Calhoun (“Calhoun”) and Tommy Davis
(“Davis”). The terms of the sale required Rouse to retire in exchange for a stipend of $2,500/month
until the final sales price of $2.8 million could be paid. Norfield was to remain involved in the daily
operations of the business. Soon after Calhoun and Davis began operating Tri-County, TCB
solicited Calhoun and Norfield to provide a floor plan financing agreement1 of Tri-County’s
inventory. (RR V2 px 1 and px2).
1
Floor plan lending is a form of inventory financing for sellers of retail goods in which each
loan advance is made against a specific piece of collateral. Floor plan lending involves a high level
of risk requiring expertise, experience, and extensive controls.
-3-
In 2007, Norfield, Calhoun and Davis conspired with TCB to embezzle money from TriCounty. They did this by obtaining credit from TCB for vehicles the dealership never owned. TCB
was complicit in the fraudulent scheme; it neglected to properly obtain proof of ownership or audit
Tri-County’s stock. Because there were no sales of the non-existent vehicles, Norfield, Calhoun and
Davis fell into arrears on the payments and were declared in default. The deception was intentional
and malicious, and it directly resulted in harm to Rouse. Rouse is irreparably damaged. As a result
of the actions of Norfield, Calhoun, Davis and TCB, among others, Rouse lost his income, his
business, his reputation and suffered severe financial distress.
Texas Lawsuit for Breach of Promissory Note and Guaranty Agreements - TCB
commenced foreclosure proceedings on the guaranty agreement in Texas on April 30, 2010. The
original allegations disclose an action by a “lender” against the “borrower” and “guarantors.” The
suit sought recovery of the amount in “default.” The Petition alleges three counts: (1) breach of
contract, (2) breach of guaranty agreement, and (3) attorney’s fees. The defendants were Tri-County
Autoplex, Jerry Norfield, LaVonna Norfield, and Steve Rouse. (See Texas original petition, RR V2
px 6).
Rouse’s Oklahoma Lawsuit - Before TCB served its Texas Petition on Rouse (and before
he was aware that the Texas Case existed), Rouse filed his Petition in Choctaw County, Oklahoma
on May 11, 2010. (See Oklahoma petition, RR V2 px 7). When the Oklahoma suit was filed, Rouse
had not been served with the Texas lawsuit, and was unaware that it had been filed. (RR V1 P 67,
L 7-20). The Oklahoma suit is based in tort, not contract. Rouse sued 7 defendants, including TCB,
under eight theories of liability: (1) fraud, (2) breach of the implied covenant of good faith and fair
dealing, (3) conversion, (4) unjust enrichment, (5) constructive trust, (6) tortious interference with
a business relationship, (7) civil conspiracy, (8) constructive fraud and estoppel by silence. The
claims made in the Oklahoma suit are not related to, or dependent on, the guaranty agreement
executed by Rouse, and are not covered by the forum selection clause. TCB was served with the
Oklahoma Petition on May 26, 2010. (See Return of Service RR V2 dx 3).
-4-
TCB’s First Amended Texas Petition - On June 14, 2010, after the Oklahoma suit was filed
and served on TCB, (RR V2 px 7; dx 3), TCB amended its original petition adding all of the parties
sued by Rouse in the Oklahoma suit, and adding causes of action for fraud, conspiracy, conversion,
breach of fiduciary duty, negligent hiring and supervision, and violation of the TEXAS THEFT
LIABILITY ACT and Civil RICO. (See Amended Texas Petition RR V2 px 10). Not only did TCB
amend the claims in its petition to mirror the claims alleged by Rouse in Oklahoma, TCB also added
almost every person Rouse sued in Oklahoma to its suit in Texas. Therefore, any similarities
between the Oklahoma and Texas suits have arisen because TCB orchestrated it to be so.
Subsequent Pleadings filed by TCB in the trial court - In its response to a co-defendant’s
motion to stay, TCB argued to the trial court that the Texas suit and the Oklahoma suit do not
involve the same issues, facts or evidence. More specifically, it represented to the trial court that
“the two lawsuits allege two different and distinct injuries occurring in two different jurisdictions,
that will in all likelihood have significant factual distinctions.” (RR V2 dx 6 at P3, 4).
Trial Settings - The Oklahoma suit is scheduled for trial on August 15, 2011. The Texas
lawsuit is scheduled for trial on November 7, 2011 (RR V2 px 48).
VI.
SUMMARY OF ARGUMENT
1.
The Trial Court erred in granting Appellee’s Application for the anti-suit
injunction.
A.
The trial court acted arbitrarily, unreasonably or without
reference to any guiding rules or legal principles in
entering an anti-suit injunction.
B.
The trial court abused its discretion in entering an antisuit injunction.
C.
The anti-injunction order affected a substantial right of
the Appellant.
D.
Enforcement of the forum-selection clause on Rouse's
Oklahoma tort claims is unreasonable because the clause
does not cover those claims.
-5-
Texas Supreme Court recognizes only four narrow instances where an anti-suit injunction
may be granted:
(1)
to protect the Court’s jurisdiction;
(2)
to prevent evasion of an important public policy;
(3)
to prevent a multiplicity of suits; and
(4)
to protect a party from vexatious or harassing litigation.
The trial court abused its discretion in granting the anti-suit injunction because none of the
grounds established by the Supreme Court apply here.
V.
ARGUMENT AND AUTHORITIES
1.
The Texas Case (when originally filed) and the Oklahoma Case Do Not Involve
the Same Issues, Facts or Evidence.
Anti-suit injunctions exist solely to prevent identical cases from proceeding in separate
courts. Harris v. Guerra & Moore, 2005 Tex. App. LEXIS 7166, at *7 (Tex. App.–Corpus Christi
2005, no pet.). Therefore, an anti-suit injunction necessarily requires a definite showing that the two
cases are identically related in issues, facts and evidentiary support. London Market Insurers v.
American Home Assurance Co., 95 S.W.3d 702 (Tex. App.–Corpus Christi 2003, no pet.). A review
of the original Texas suit (RR V2 px 6) and the Oklahoma suit (RR V2 px 7) clearly shows that the
two suits are far from identical.
ORIGINAL TEXAS SUIT
Legal Issues
Evidence Expected
OKLAHOMA SUIT
Breach of Guaranty
Agreement
Fraud, conspiracy to defraud, breach of
fiduciary duty, conversion, breach of
implied covenant of bad faith and fair
dealing, tortious interference with a
business relationship.
Guaranty Agreement and
loan documents
Evidence reflecting Defendants’
knowledge that floor plan was “out of
trust,” fraudulent documents were
submitted and approved to increase line
of credit, results of floor plan audits were
signed.
-6-
Remedies Sought
TCB seeks recovery of loan
balance and attorney’s fees
Rouse seeks recovery of loss of his
business income from dealership loss of
income and exemplary damages.
TCB has itself admitted that the two cases are not identical, and should be estopped from
now taking a different position. More specifically, on August 24, 2010, TCB filed a written
response to Defendant Automotive Transfer Inc.’s motion to stay the Texas case. In its response,
TCB argues that the two lawsuits “allege two different and distinct injuries occurring in two different
jurisdictions, which will in all likelihood have significant factual distinctions.” (RR V2 dx 6).
2.
TCB Has Failed to Satisfy Texas Law’s Heavy Burden to Show a Clear Equity
in Favor of an Anti-Suit Injunction.
TCB seeks to enjoin Rouse from pursuing his claims in the Oklahoma litigation. An anti-suit
injunction should be used sparingly. University of Texas v. Morris, 344 S.W.2d 426, 429 (1961);
Tri-State Pipe & Equipment, Inc. v. Southern County Mutual Ins. Co., 8 S.W.3d 394, 399 (Tex.
App.–Texarkana 1999, no pet.). It should only be used in compelling circumstances. Gannon v.
Payne, 706 S.W.2d 304, 306 (Tex. 1986). The party seeking the injunctive relief has the heavy
burden of showing that a clear equity demands the injunction id. and show an irreparable miscarriage
of justice. Harris v. Guerra & Moore, 2005 Tex. App. LEXIS 7166, at *7 (Tex. App.–Corpus
Christi 2005, no pet.). The record on appeal shows that TCB has failed to meet its heavy burden.
A trial court abuses its discretion if its decision "is arbitrary, unreasonable, and without reference to
guiding principles." Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Furthermore, a trial
court has no "discretion" in applying the law to the facts. Thus, "a clear failure by the trial court to
analyze or apply the law correctly will constitute an abuse of discretion." Travelers Insurance Co.
v. J. Ray McDermott, Inc., 2006 Tex. App. LEXIS 3047 (Tex. App., Beaumont). In this case, the
Court did not follow the guiding principles for entering an anti-suit injunction and it failed to apply
the law correctly. Therefore, the decision was an abuse of discretion and this Court should reverse
the Order and dissolve the injunction.
-7-
3.
Plaintiff’s Application for Anti-Suit Injunction Against Rouse Should Not be
Granted Because it Does Not Fall Within Any of the Four Grounds Recognized
by the Texas Supreme Court.
The general rule for the issuance of anti-suit injunctions in Texas provides that courts have
the “power to restrain persons from proceeding with suits filed with other courts.” Harris v. Guerra
& Moore, 2005 Tex. App. LEXIS 7166, at *7 (Tex. App.–Corpus Christi 2005, no pet.). However,
in order to maintain the principles of comity, Texas courts may only exercise the power to enjoin
foreign suits extremely sparingly and only in very special circumstances. Golden Rule Inc. Co. v.
Harper, 925 S.W.2d 649, 651 (Tex. 1996). An excellent discussion concerning the very limited
circumstances in which such an injunction may be granted can be found in Avco Corporation v.
Interstate Southwest, Ltd., 145 S.W.3d 257 (Tex. App.–Houston [14th Dist.] 2004, reh’g denied).
The Texas Supreme Court recognizes only four narrow instances where an anti-suit injunction may
be granted:
(1)
to protect the Court’s jurisdiction;
(2)
to prevent evasion of an important public policy;
(3)
to prevent a multiplicity of suits; and
(4)
to protect a party from vexatious or harassing litigation.
The trial court abused its discretion in granting the anti-suit injunction because none of the
grounds established by the Supreme Court apply here. TCB has failed to meet the very high burden
necessary to warrant the issuance of an anti-suit injunction. It is a device that should be employed
sparingly and with care, and only when the most compelling circumstances exist. University of Texas
v. Morris, 344 S.W.2d 426, 429 (Tex. 1961); Gannon v. Payne, 706 S.W.2d 304, 306 (Tex. 1986).
a)
There is No Threat to This Court’s Jurisdiction.
TCB has shown no threat to this court’s jurisdiction. The pending action in Oklahoma
does not interfere with this court’s jurisdiction over this case, nor does it violate the forum selection
clause contained in the guaranty agreement signed by Rouse. More specifically, it would not interfere
with a Texas fact finder deciding the issue of whether Rouse breached the guaranty agreement. The
Oklahoma lawsuit will not prevent this Court from exercising any jurisdiction it has over TCB’s
-8-
claims against Rouse on the guaranty agreement or the alleged amounts TCB claims it is due from
Rouse. TCB would like to have this Court believe that if it does not enter an anti-suit injunction,
jurisdiction of its breach of guaranty agreement claim will be wrested from this court. This is simply
not true. Rouse has never attempted to have the Texas case abated, dismissed or transferred (RR V1
P 68, L 2-15).
A court may not issue an anti-suit injunction merely because another case involves
overlapping issues and parties. It is not enough even if the other case is a complete mirror image of
the first and involves exactly the same parties. Golden Rule Ins. Co., 925 S.W.2d at 651. An
examination of the claims made in the respective lawsuits shows that no direct conflict or active
interference is likely. The Oklahoma action will not prevent this Court from exercising any
jurisdiction it has over TCB’s claims against Rouse for breach of the guaranty agreement, or for the
amount it claims is due. The Court or jury will remain free to make the determinations required on
the breach of guaranty agreement claims.
b)
Enjoining Rouse’s Suit in Oklahoma Will Not Protect TCB From
Vexatious or Harassing Litigation.
TCB has presented no evidence that an anti-suit injunction against Rouse would
prevent vexatious or harassing litigation. Rouse testified he had not been served with a copy of the
Texas lawsuit at the time he filed his Oklahoma case. (RR V1, P 67, L 14-16). Further, the
Oklahoma suit of which TCB now complains was already pending when TCB filed its amended
petition mirroring the Oklahoma petition. Rouse was legally entitled to file the Oklahoma suit, and
it concerns numerous claims and parties that are not directly related to the guaranty agreement which
forms the basis of TCB’s Texas lawsuit. TCB’s dislike for the allegations made against it in the
Oklahoma suit may make them vexatious to TCB, but it certainly does not make an anti-suit
injunction a proper mechanism to eliminate it. In addition, the trial court expressly determined that
there was no “race to the courthouse” because the judge crossed-out those portions of TCB’s
proposed order. (Order, CR 769 at ¶ 9).
-9-
c)
No Multiplicity of Suits Exists
In its application, TCB did not argue that multiplicity of suits was a reason for the trial
court to enter an anti-suit injunction against Rouse. Even if it had, the result would be the same
because a single parallel proceeding in a foreign forum does not constitute a multiplicity. Golden
Rule,925 S.W.2d 649, citing Gannon, 706 S.W.2d at 307. The court in Golden Rule held that even
“mirror image” cases which carry with them the risk of inconsistent judgments, do not justify an antisuit injunction. The trial court expressly determined there was not a multiplicity of suits because the
judge crossed-out those portions of TCB’s proposed order. (Appendix A, Order, CR 769 at ¶ 9).
d)
TCB Has Failed to Show That an Injunction is Necessary to Prevent an
Irreparable Miscarriage of Justice.
In London Market Insurers v. American Home Assurance Co., 95 S.W. 3d 702 (Tex.
App.– Corpus Christi 2003, no pet.), the court noted that in addition to the four prerequisites to justify
an anti-suit injunction, an applicant must show that the injunction is “necessary to prevent an
irreparable miscarriage of justice.” In evaluating the potential for “irreparable miscarriage of justice,”
the court stated that the circumstances justifying entry of an anti-suit injunction must exceed mere
“special circumstances.” To justify entry of such an injunction, there must be “very special and
compelling circumstances.” TCB argues that the forum selection clause in the Guaranty Agreement
provides the necessary circumstance but that argument fails. The forum selection provision relied on
by TCB provides that Texas courts shall have jurisdiction over disputes “arising under or pertaining
to this Guaranty Agreement.” (Appendix C, RR V2 px 4). In order for a court to rely on a forum
selection clause to support an anti-suit injunction, the plaintiff’s claims must fall within the scope of
that clause. In re Lisa Laser USA, Inc., 310 S.W.3d 880, 884-85 (Tex. 2010). The claims made by
Rouse in the Oklahoma suit do not pertain to the Guaranty Agreement, and are not covered in the
forum selection clause. They go far beyond that agreement, alleging that TCB knew that the TriCounty borrowing dealership was “out of trust,” knew that fraudulent manufacturers statements of
origin (“MSO’s”) were being submitted to serve as security for its loan, and disregarded floor plan
audits showing evidence of the fraudulent activities. (RR V2 px 7). These claims are not related to,
-10-
or dependent on the execution of the guaranty agreement by Rouse. Rouse would have the same
claims even if the guaranty agreement did not exist. Even assuming arguendo that Rouse’s claims
in the Oklahoma lawsuit were covered by the forum selection clause, the result would be the same
because TCB waived its right to enforce said clause with regard to those claims. More specifically,
TCB waited over 10 months from the time it was served with the Oklahoma lawsuit, to file its
application for anti-suit injunctive relief.
4.
Enforcement of the Forum-Selection Clause on Rouse's Oklahoma Tort Claims
is Unreasonable Because the Clause Does Not Cover Those Claims.
It is proper to invalidate a forum-selection clause when enforcement would be unreasonable.
In Re Int’l Profit Assocs., I, 274 S.W.3d 672, 675 (Tex. 2009).
In examining whether claims brought by a plaintiff are within the scope of a forum-selection
clause, the court should engage in a “common-sense examination of the claims and the forumselection clause to determine if the clause covers the claims.” In Re Lisa Laser United States, Inc.,
310 S.W.3d 880, 884 (Tex. 2010), citing In Re Int’l Profit Assocs., I, 274 S.W.3d 672, 677 (Tex.
2009), citing Ginter Ex. Rel. Ballard vs. Belcher, Prendergast & Laporte, 536 F.3d 439, 444 (5th Cir.
2008); In Re Laibe Corp.. 307 S.W.3d at 316, 210 Tex. LEXUS 280.
Forum-selection clauses will not apply if construction of the rights and liabilities of the parties
under the contract is not involved. Busse v. Pacific Cattle Feeding Fund No. 1, Ltd., 896 S.W.2d 807,
812 (Tex. App. – 1995). In determining whether the forum-selection clause applies, a court should
review the nature of the tort claims to determine whether they could stand alone or are so interwoven
with the agreement that they could not be maintained without reference to the agreement. See Valero
Energy Corp. v. Wagner & Brown, II, 777 S.W.2d 564, 566 (Tex. App. – El Paso 1989, writ denied).
In this case, the tort claims asserted by Rouse in the Oklahoma lawsuit do not fall within the scope
of the forum-selection clause and he should not be bound by that clause with respect to those claims.
TCW Global Project Fund II, Ltd., 274 S.W.3d 166, 169 (Tex. App. – Houston [14th Dist.] 2008, orig.
proceeding [mand. denied]).
-11-
Rouse’s Oklahoma tort claims do not constitute a dispute “arising under or pertaining to the
guaranty agreement” because:
A.
His tort claims do not ultimately depend on the existence of a contractual relationship
between the parties. Coastal Steel Corporation v. Tilghman Wheelabrator Ltd., 709
F.2d 190, U.S. Ct. Appeals (3rd Cir. 1983);
B.
The resolution of Rouse’s Oklahoma tort claims do not relate to an interpretation of
the guaranty agreement. Manetti-Farrow Inc. v. Gucci America, Inc., 858 F.2d 509,
U.S. Ct. Appeals (9th Cir. 1988); and
C.
Rouse’s Oklahoma tort claims do not involve the same operative facts as TCB’s claim
for breach of the guaranty agreement. Lambert v. Kysar, 983 F.2d 1110, U.S. Ct.
Appeals (1st Cir. 1993).
5.
TCB Has Made No Showing of Imminent, Irreparable Harm, and as a Matter
of Law, Has Adequate Remedies at Law.
A fundamental prerequisite for the issuance of a temporary injunction is that the applicant
demonstrate “probable injury.” Harbor Perfusion, 45 S.W.3d at 716. The probable injury element
requires a showing that the harm is imminent, the injury would be irreparable, and that the plaintiff
has no other adequate legal remedy. There is no evidence at all to suggest that any harm to TCB is
“ imminent.” At the time of the hearing on TCB’s application, the Oklahoma lawsuit had been on
file for more than 10 months. TCB has offered nothing to identify any actual harm it has suffered
from the Oklahoma suit during the more than 10 month period, nothing to explain why it waited 10
months to seek injunctive relief, and nothing to show how any future harm is imminent.
The only irreparable injury argument advanced by TCB is that it would incur additional
attorneys fees if both cases were allowed to proceed. (RR V1 P 46, L 15-22). The Texas Supreme
Court has expressly rejected this very argument as irreparable harm justifying the issuance of an antisuit injunction. More specifically, the Supreme Court in Golden Rule and Gannon id. held that the
possibility of inconsistent judgments does not justify an injunction, nor does extra expenses that might
be incurred constitute a sufficient reason to grant an anti-suit injunction. The added inconvenience
-12-
and expense which are common to and largely inevitable in a situation involving a single parallel
lawsuit cannot justify an injunction. Golden Rule Ins. Co., 925 S.W.2d at 651. TCB merely offers
speculative and conclusory arguments about the harm it might suffer as a result of the Oklahoma
lawsuit. What TCB has presented thus far is vague conjecture which is no substitute for specific
evidence of imminent and irreparable harm. As the Court of Appeals stated in Markel v. World
Flight, Inc., 938 S.W.2d 74,79 (Tex. App.–San Antonio 1996, no writ), an injunction will not lie to
prevent an alleged threatened act, the commission of which is speculative and the injury from which
is purely conjectural. Further, an injury is irreparable only if the injured party cannot be adequately
compensated in damages or if the damages cannot be measured by any certain pecuniary standard.
Butnaru, v. Ford Motor Co., 84 S.W.3d 198, at 204 (Tex. 2002). TCB’s alleged damages (additional
attorneys fees, etc.) are definitely capable of calculation. (RR V1 P 46, L 22-25; P 47, L 1-25; and
P 48, L 1-7).
Additionally, TCB’s post-injunction conduct demonstrates an absence of probable harm. A
party cannot obtain an injunction by arguing it would be subject to harm by being forced to litigate
in Oklahoma, and then, once the injunction is obtained, aggressively litigate in Oklahoma anyway.
TCB has an adequate remedy at law. It could file or agree to a plea in abatement of the Texas
case until the Oklahoma case is concluded, or it may proceed in the Texas case pursuant to the
scheduling order agreed to by the parties. Either way, it would not be precluded from pursuing its
breach of guaranty agreement claims against Rouse and the Norfield parties, or its other claims.
6.
Rouse Did Not “Race to the Courthouse.”
TCB’s argument that Rouse “raced to the courthouse” in Oklahoma to file his lawsuit is
without merit. At the time the Oklahoma suit was filed, Rouse had neither been served with the
Texas lawsuit or was otherwise aware that a lawsuit had been filed in Texas (RR V1 P 67, L 7-20).
In addition, the trial court expressly determined there was no “race to the courthouse” because the
judge crossed-out those portions of TCB’s proposed order. (Appendix A, Order, CR 769 at ¶ 9). If
there was a “race to the courthouse,” it was run by TCB in an effort to mirror the Oklahoma lawsuit
and thwart it from proceeding. In TCB’s original suit, filed on April 30, 2010, it sued only Tri-
-13-
County as borrower, and Rouse and the Norfield parties as guarantors, for breach of the promissory
note and guaranty agreements. (RR V2 px 6). TCB was served with the Oklahoma tort lawsuit filed
against it and six other defendants, on May 26, 2010. (RR V2 dx 3). Within 15 days of receiving the
Oklahoma lawsuit, TCB amended its suit to include all of the Oklahoma parties except for one, and
many of the causes of action made in the Oklahoma suit. (RR V2 px 10). Interestingly, when TCB
filed its original petition, it was not aware of any claims that it might have had against any other
parties. (RR V1 P 28, L 10-14). Between the filing of TCB’s original petition on April 30,2010, and
the filing of its amended petition on June 14, 2010 (which added nine other parties, and seven tort
claims), TCB did not obtain any additional information concerning tort claims it might have against
these additional parties other than the receipt of Rouse’s Oklahoma lawsuit. (RR V1 P 36, L 15-23).
Thus, it appears that TCB amended its petition for the purpose of trying to mirror the Oklahoma
lawsuit, with the ultimate goal of preventing Rouse from pursuing that suit.
VII.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Appellant Steve Rouse prays that this Court
reverse the trial court’s anti-suit injunction order in all respects. Appellant further prays that all costs
incurred be taxed against Appellee. Appellant prays for such other and further relief to which
Appellant may show himself justly entitled.
Respectfully submitted,
WYNNE & SMITH
707 W. Washington Street
Sherman, TX 75092
TEL: 903.893.8177
FAX: 903.892.0916
By:
/s/ Michael C. Wynne
MICHAEL C. WYNNE
State Bar #22110800
[email protected]
ATTORNEYS FOR APPELLANT/DEFENDANT
STEVE ROUSE
-14-
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has been
served upon the following parties, on this 8th day of July, 2011:
Randall K. Price - Via Electronic Mail
James T. Phillips
CANTEY HANGER LLP
1999 Bryan Street, Suite 3300
Dallas, TX 75201
Dwight M. Francis-Via Electronic Mail
Aimee Oleson
GARDERE WYNNE SEWELL LLP
1601 Elm Street, Suite 3000
Dallas, TX 75201
John K. Vaughan - Via Electronic Mail
Stacey D. Walvoord
Michelle S. Sortor
VAUGHAN , RAMSEY & WALVOORD
530 S. Carrier Parkway, Suite 300
Grand Prairie, TX 75051
William R. Power - Via Electronic Mail
LAW OFFICE OF WILLIAM R. POWER
705B North Pacific Street
Mineola, TX 75773
Steven J. Berry - Via Electronic Mail
BERRY , ODOM , RABINOWITZ & BOBO LLP
611 9th Avenue
Fort Worth, TX 76104
Michael S. Calhoun- Via Electronic Mail
10827 Hwy 154 South
Yantis, TX 75497
Carrie L. Morris - Via Regular Mail
745 Mansfield Road
Paris, TX 75462
/s/ Michael C. Wynne
-15-
APPENDICES
APPENDIX A. . . . . . . . . . . . . . . . . . . . . . . . . . . . Order Granting Plaintiff’s Temporary Injunction
dated April 5, 2011
APPENDIX B. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . O.S. § 2013
APPENDIX C. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Unlimited Guaranty Agreement
-16-
APPENDIX A
NO. !0-05169-I
TEXAS CAPITAL BANK, N.A.,
§
§
§
Plaintiff,
IN THE DISTRICT COURT
§
v
l62"d JUDICIAL DISTRICT
§
TRI-COUNTY AUTOPLEX, an
Oklahoma General Partnership,
1ERRY D. NORFIELD, STEVE ROUSE,
LA VONA ELLEN NORFIELD a!k/a
LAVONNANORFIELD, TOMMYW_
DAVIS, MICHAEL S. CALHOUN,
CARRIE L. MORRIS, AUTOMOTIVE
TRANSFERS, INC., JAMES D_
KAYVONFAR, CHARLES M. SPIRES,
TEXAS SS INC., KAREN S. BURDETTE
and CAROL S. CHAMBERS
§
§
§
§
§
§
§
§
§
§
§
§
§
§
Defendants
DALLAS COUNTY, TEXAS
ORDER GRANTING PLAINTIFF'S T£MPORARY INJUNCTION
On this day, the Court considered the Application for Anti-Suit Injunction filed by
Plaintiff Texas Capital Bank, N.A. ("the Bank") against Defendant Steve Rouse ("Defendant
Rouse"), due notice having been given_ The parties appeared by and through their attorneys.
After considering the Application, the evidence received, and the response and argument of
counsel, if any, the Court finds and concludes the following:
l. That the Bank filed suit against Defendant Rouse based upon an Unlimited Guaranty
Agreement (''Unlimited Guaranty");
2. That the Bank's address for notice purposes in the Unlimited Guaranty is in Dallas
County, Texas;
Page 1
ORDER GRANTING PLAINTIFF'S TEMPORARY INJ\NCTION
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3. That Defendant Rouse agreed in paragraph 21 of the Unlimited Guaranty with the Bank
that venue and jurisdiction for any and all disputes arising under or pertaining to the
Unlimited Guaranty shall be in Dallas County, Texas;
4. That the Bank filed this cause on April 30, 20 10;
5. That Defendant Rouse filed Cause No. CJ-10-50, styled Rouse v. Texas Capilal Bank, et
at, in the District Court of and for Choctaw County, Oklahoma, (the "Oklahoma Suit")
on May 11, 2010, on the same issues over which this Court has jurisdiction in this cause;
6. That the Bank will likely prevail on the trial of the Bank's claim of Defendant Rouse's
breach of paragraph 21 of the Unlimited Guaranty;
7. That Defendant Rouse intends to pursue litigation against the Bank in the Oklahoma Suit
to avoid litigating the same issues before this CoUrt;
8. That Defendant Rouse has attempted to circumvent the trial setting in this cause in an
attempt to reach a judgment against the Bank in the Oklahoma Suit on the issues over
which this Court has jurisdiction in this cause;
9. T
Defendant Rouse
e trial
tting in
is
cause in
use prior to this
issue
the
d a "race to
thereby creating
use;
10. That, after agreeing in the Unlimited Guaranty to venue and jurisdiction in Dallas
County, Texas, Defendant Rouse's conduct in filing the Oklahoma Suit, causing the
Bank to litigate in the Oklahoma Suit the same issues over which this Court has
jurisdiction in this cause, circumventing the trial setting in this cause, and attempting to
Pagc2
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reach a judgment against the Bani( in the Oklahoma suit before a judgment is rendered in
this cause is (1) a threat to this Court's jurisdiction and (2) vexatious and harassing to the
Bank;
11. That Texas has a strong public policy in favor of enforcing contractual fornm selection
clauses such as the provisions in paragraph 21 of the Unlimited Guaranty, and that if
Defendant Rouse continues the Oklahoma Suit, he will evade and undermine this policy;
12. That the Bank has requested the Oklahoma trial court and the Oklahoma Supreme Court
to stay or abate the Oklahoma Suit, and those courts have declined to stay or abate the
claims against the Bank in the Oklahoma Suit, and as a result, unless Defendant Rouse is
enjoined from pursuing the Oklahoma Suit, Defendant Rouse's pursuing the Oklahoma
Suit is harassment of the Bank, and the Bank will be without an adequate remedy at law
because the Bank has exhausted its pre-appeal remedies in the Oklahoma courts;
13. That the only benefit to Defendant Rouse of the Oklahoma Suit is the avoidance of
paragraph 21 of the Unlimited Guaranty, and there is no benefit to The Bank if
Defendant Rouse is allowed to avoid paragraph 21 of the Unlimited Guaranty;
14. That unless Defendant Rouse is enjoined from pursuing the Oklahoma Suit, the status
quo will be altered by allowing him to avoid paragraph 21 of the Unlimited Guaranty;
15. That Defendant Rouse's promises in the Unlimited Guaranty relating to venue and
jurisdiction will be rendered meaningless if Defendant Rouse is not required to litigate
his claims against the Bank in this Court; and
16. That Texas Capital Bank has shown a probable right of recovery and a probable injury in
the event this Court does not issue this injunction.
Page 3
ORDER GRANTING PLAINTIFF'S TEMPORARY INJUNCTION
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IT IS, THEREFORE, ORDERED that Defendant Steve Rouse is commanded forthwith
to desist and refrain from taking any further action against the Bank, including the following, in
Cause No. CJ-10-50, styled Rouse v. Texas Capital Bank, eta!, in the District Court of and for
Choctaw County, Oklahoma until this Court renders judgment in this cause:
1. Pursuing the Oklahoma Suit against Texas Capital Bank, N.A.
2. Serving or seeking further discovery from Texas Capital Bank, N .A. in the Oklahoma
Suit;
3. Filing any motions or seeking any rulings affecting Texas Capital Bank, N.A. in the
Oklahoma Suit;
4. Seeking any judgment against Texas Capital Bank, N.A. in the Oklahoma Suit; and/or
5. Proceeding to trial against Texas Capital Bank, N.A. in the Oklahoma Suit.
IT IS FURTHER ORDERED that trial on the merits of this cause is set for November 7,
2011.
This Order shall not be effective unless and until the Bank executes and files with the
clerk a bond, in conformity with the law, in the amount
of.~~~
'
($&:~./}0
).
?
The clerk shall forthwith, on the filing by the Bank of the bond, and on approving the
bond according to the law, issue a temporary injunction in conformity with the law and the terms
of this Order.
SIGNED this
Page4
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APPENDIX B
OSCN Found Document:Counterclaim and Cross-Claim
Title 12. Civil Procedure
Oklahoma Statutes Citationized
Title 12. Civil Procedure
Chapter 39 - Oklahoma Pleading Code
Section 2013 - Counterclaim and Cross-Claim
Cite as: O.S. §, __ __
A. COMPULSORY COUNTERCLAIMS. A pleading shall state as a counterclaim any claim which at the time of serving the pleading
the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing
party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But
the pleader need not state the claim if:
1. At the time the action was commenced the claim was the subject of another pending action; or
2. The opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to
render a personal judgment on that claim, and the pleader is not stating any counterclaim pursuant to this section.
B. PERMISSIVE COUNTERCLAIMS; CONTINGENT COUNTERCLAIMS.
1. A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is
the subject matter of the opposing party's claim.
2. A pleading may state as a counterclaim against an opposing party a contingent claim that the opposing party may be liable to the
counterclaimant for all or part of a claim asserted in the action against the counterclaimant.
C. COUNTERCLAIM EXCEEDING OPPOSING CLAIMS; STATUTES OF LIMITATION. A counterclaim may or may not diminish or
defeat the recovery sought by the opposing party. It may claim relief exceeding in amount or different in kind from that sought in the
pleading of the opposing party. Where a counterclaim and the claim of the opposing party arise out of the same transaction or
occurrence, the counterclaim shall not be barred by a statute of limitation notwithstanding that it was barred at the time the petition
was filed, and the counterclaimant shall not be precluded from recovering an affirmative judgment. Where a counterclaim and the
claim of the opposing party:
1. Do not arise out of the same transaction or occurrence;
2. Both claims are for money judgments;
3. Both claims had accrued before either was barred by a statute of limitation; and
4. The counterclaim is barred by a statute of limitation at the time that it is asserted, whether in an answer or an amended answer,
the counterclaim may be asserted only to reduce the opposing party's claim.
Where a counterclaim was barred by a statute of limitation before the claim of the opposing party arose, the barred counterclaim
cannot be used for any purpose.
D. COUNTERCLAIMS AGAINST ASSIGNED CLAIMS. A party, other than a holder in due course, who acquires a claim by
assignment or otherwise, takes the claim subject to any defenses or counterclaims that could have been asserted against the person
from whom he acquired the claim, but the recovery on a counterclaim may be asserted only to reduce the recovery of the opposing
party.
E. CLAIM MATURING OR ACQUIRED AFTER PLEADING. A claim which either matured or was acquired by the pleader after serving
his pleading may, with the permission of the court, be presented as a counterclaim or a cross-claim by supplemental pleading.
F. OMITTED COUNTERCLAIM. When a pleader fails to set up an omitted counterclaim by amendment within twenty (20) days after
service as authorized by subsection A of Section 2015 of this title, he may with leave of court or by written consent of the adverse
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OSCN Found Document:Counterclaim and Cross-Claim
party set up the counterclaim by amendment where the failure to assert it was due to oversight, inadvertence, excusable neglect, or
where justice requires.
G. CROSS-CLAIMS. A pleading may state as a cross-claim any claim by one party against any party who is not an opposing party
arising out of the transaction or occurrence that is the subject matter either of the original action or of a claim therein or relating to any
property that is the subject matter of the original action. A cross-claim may assert a claim that the party against whom it is asserted is
or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.
H. JOINDER OF ADDITIONAL PARTIES. Persons other than those made parties to the original action may be made parties to a
counterclaim or cross-claim in accordance with the provisions of Sections 2019 and 2020 of this title.
I. SEPARATE TRIALS; SEPARATE JUDGMENTS. A court may order separate trials of a counterclaim or a cross-claim. A
counterclaim or a cross-claim may proceed to trial and judgment thereon may be rendered even if the claim of the opposing party has
been dismissed or otherwise disposed of.
Historical Data
Added by Laws 1984, SB 417, c. 164, § 13, eff. November 1, 1984; Amended by Laws 1986, HB 1838, c. 227, § 6, eff. November 1,
1986; Amended by Laws 1988, HB 1732, c. 181, § 2, eff. November 1, 1988; Amended by Laws 2002, HB 1939, c. 468, § 24, emerg.
eff. November 1, 2002 (superseded document available).
Citationizer© Summary of Documents Citing This Document
Cite Name
Oklahoma Court of Civil Appeals Cases
Cite
1991 OK CIV APP 5, 805 P.2d 130, 62
OBJ 707,
1993 OK CIV APP 83, 855 P.2d 1074,
64 OBJ 2195,
2005 OK CIV APP 1, 107 P.3d 609,
1995 OK CIV APP 156, 911 P.2d 311,
67 OBJ 560,
2007 OK CIV APP 106, 173 P.3d 108,
2008 OK CIV APP 33, 180 P.3d 697,
2010 OK CIV APP 66, 239 P.3d 160,
2011 OK CIV APP 38,
1997 OK CIV APP 52, 945 P.2d 513, 68
OBJ 3137,
Oklahoma Supreme Court Cases
Cite
1989 OK 27, 769 P.2d 158, 60 OBJ 536,
1989 OK 158, 784 P.2d 61, 60 OBJ
3127,
1991 OK 116, 831 P.2d 613, 62 OBJ
3418,
1993 OK 3, 846 P.2d 376, 64 OBJ 334,
1994 OK 147, 890 P.2d 895, 65 OBJ
4220,
1995 OK 46, 898 P.2d 136, 66 OBJ
1584,
2002 OK 99, 72 P.3d 1,
2003 OK 103, 81 P.3d 662,
2004 OK 50, 100 P.3d 673,
2007 OK 16, 157 P.3d 117,
1996 OK 77, 921 P.2d 338, 67 OBJ
2242,
1999 OK 30, 979 P.2d 252, 70 OBJ
1215,
Level
Name
Turner v. Federal Deposit Ins. Corp.
Level
Discussed at Length
American Biomedical Group, Inc. v. Norman Regional Hosp. Authority
Cited
BANKERS TRUST COMPANY v. BROWN
Bank of Oklahoma, N.A. v. Briscoe
Cited
Cited
PANGAEA EXPLORATION CORPORATION v. RYLAND
FREEMAN v. SEARS, ROEBUCK AND CO.
PANGAEA EXPLORATION CORP. v. RYLAND
WINTERHALDER v. BURGGRAF RESTORATION, INC.
Fowler Equipment Co. v. Harry Houston Oil Co., Inc.
Discussed
Discussed
Cited
Discussed at Length
Cited
Name
Roach v. Atlas Life Ins. Co.
Oklahoma Gas & Elec. Co. v. District Court, Fifteenth Judicial Dist., Cherokee
County
F.D.I.C. v. Moss
Level
Discussed
Discussed at Length
Langley v. District Court of Sequoyah County
Greenberg v. Wolfberg
Cited
Cited
Cockings v. Austin
Discussed
C & L ENTERPRISES, INC., v. CITIZEN BAND POTAWATOMI TRIBE
TULSA COUNTY BUDGET BOARD v. TULSA COUNTY EXCISE BOARD
ROBINSON v. TEXHOMA LIMESTONE, INC.
BROWN v. PATEL
U.S. Through Farmers Home Admin. v. Hobbs
Cited
Cited
Discussed at Length
Cited
Discussed at Length
McDaneld v. Lynn Hickey Dodge, Inc.
Discussed at Length
Discussed at Length
Citationizer: Table of Authority
Cite Name
Level
Title 12. Civil Procedure
Cite
Name
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=94874[7/8/2011 1:35:13 PM]
Level
OSCN Found Document:Counterclaim and Cross-Claim
12 O.S. 2013,
Counterclaim and Cross-Claim.
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=94874[7/8/2011 1:35:13 PM]
Cited
APPENDIX C
UNLIMITED GUARANTY
THIS UNLIMITED GUARANTY ("Guaranty") is made as of August 8, 2007, by
Guarantor (as hereinafter defined) for the benefit of TEXAS CAPITAL BANK, N.A. ("Bank").
1. Definitions. As used in this Guaranty, the following terms shall have the
meanings indicated below:
(a)
The Bank’s address for notice purposes is the following:
Texas Capital Bank
2100 McKinney Avenue, Suite 900
Dallas, Texas 75201
Attention: Clint Kuykendall
Tel: 214-932-6600 (main)
Fax: 214-932-6607
(b) The term "Borrower" (wheth£r one or more) shall mean TRI-COUNTY
AUTOPLEX, an Oklahoma general partnership.
(c) The term "Guaranteed Indebtedness" shall mean (i) all indebtedness,
obligations and liabilities of Borrower to Bank of any kind or character, now existing or
hereafter arising, whether direct, indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several or joint and several, and regardless of whether such
indebtedness, obligations and liabilities may, prior to their acquisitions by Bank, be or
have been payable to or in favor of a third party and subsequently acquired by Bank (it
being contemplated that Bank may make such acquisitions from third parties), including
without limitation all indebtedness, obligations and liabilities of Borrower to Bank now
existing or hereafter arising by note, draft, acceptance, guaranty, endorsement, letter of
credit, assignment, purchase, overdraft, discount, indemnity agreement or otherwise, (ii)
all accrued but unpaid interest on any of the indebtedness described in (i) above, (iii) all
obligations of Borrower to Bank under any documents evidencing, securing, governing
and!or pertaining to all or any part of the indebtedness described in (i) and (ii) above
(collectively, the "Loan Documents"), (iv) all costs and expenses incurred by Bank in
connection with the collection and administration of all or any part of the indebtedness
and obligations described in (i), (ii) and (iii) above or the protection or preservation of, or
realization upon, the collateral securing all or any part of such indebtedness and
obligations, including without limitation all reasonable attorneys’ fees, and (v) all
renewals, extensions, modifications and rearrangements of the indebtedness and
obligations described in (i), (ii), (iii) and (iv) above.
(d) The term "Guarantor" shall mean each of the following, jointly and
severally: i) Jerry D. Norfield, an individual Oklahoma resident, ii) Steve Rouse, an individual
Oklahoma resident, and iii) La Vona Ellen Norfield (a/k/a Lavonna Norfield), an individual
Oklahoma resident, each of whose address for notice purposes is the following: 1700 East
Jackson, Hugo, Oklahoma 74743.
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2.
Obligations. As an inducement to Bank to extend or continue to extend credit and
other financial accommodations to Borrower, Guarantor, jointly and severally with each other
Guarantor, and for value received, does hereby unconditionally and absolutely guarantee the
prompt and full payment and performance of the Guaranteed Indebtedness when due or declared
to be due and at all times thereafter.
3. Character of Obligations. This is an absolute, continuing and unconditional
guaranty of payment and not of collection and if at any time or fi:om time to time there is no
outstanding Guaranteed Indebtedness, the obligations of each Guarantor with respect to any and
all Guaranteed Indebtedness incurred thereafter shall not be affected. All Guaranteed
Indebtedness heretofore, concurrently herewith or hereafter made by Bank to Borrower shall be
conclusively presumed to have been made or acquired in acceptance hereof. Each Guarantor
shall be liable, jointly and severally, with the other Guarantors and Borrower of all or any part of
the Guaranteed Indebtedness.
4.
Intentionally Omitted.
5. Representations and Warranties. Each Guarantor hereby represents and warrants
the following to Bank:
(a) This Guaranty may reasonably be expected to benefit, directly or
indirectly, each Guarantor, and (i) if any Guarantor is a corporation, the Board of
Directors of Guarantor has determined that this Guaranty may reasonably be expected to
benefit, directly or indirectly, such Guarantor, or (ii) if any Guarantor is a partnership, the
requisite number of its partners have determined that this Guaranty may reasonably be
expected to benefit, directly or indirectly, such Guarantor, or (iii) if any Guarantor is a
limited liability company, the requisite actions by its managers and members have
occurred to determine that this Guaranty may reasonably be expected to benefit, directly
or indirectly, such Guarantor and to authorize this Guaranty; and
(b) Each Guarantor is familiar with, and has independently reviewed the
books and records regarding, the financial condition of Borrower and is familiar with the
value of any and all collateral intended to be security for the payment of all or any part of
the Guaranteed Indebtedness; provided, however, such Guarantor is not relying on such
fmancial condition or collateral as an inducement to enter into this Guaranty; and
(c) Each Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial condition of Borrower and each
Guarantor is not relying on Bank to provide such information to such Guarantor either
now or in the furore; and
(d) Each Guarantor has the power and authority to execute, deliver and
perform this Guaranty and any other agreements executed by such Guarantor
contemporaneously herewith, and the execution, delivery and performance of this
Guaranty and any other agreements executed by each Guarantor contemporaneously
herewith do not and will not violate (i)any agreement or instrument to which such
Guarantor is a party, (ii) any law, rule, regulation or order of any governmental authority
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to which such Guarantor is subject, or (iii) its articles or certificate of incorporation or
bylaws, if such Guarantor is a corporation, or its partnership agreement, if such Guarantor
is a partnership, or (iv) its articles of formation and regulations, if such Guarantor is a
limited liability company; and
(e) Neither Bank nor any other party has made any representation, warranty or
statement to any Guarantor in order to induce such Guarantor to execute this Guaranty;
and
(f) The financial statements and other financial information regarding each
Guarantor heretofore and hereafter delivered to Bank are and shall be tree and correct in
all material respects and fairly present the financial position of such Guarantor as of the
dates thereof, and no material adverse change has occurred in the financial condition of
such Guarantor reflected in the financial statements and other financial information
regarding such Guarantor heretofore delivered to Bank since the date of the last statement
thereof; and
(g) As of the date hereof, and after giving effect to this Guaranty and the
obligations evidenced hereby, (i) each Guarantor is and will be solvent, (ii) the fair
saleable value of each Guarantor’s assets exceeds and will continue to exceed that
Guarantor’s liabilities (both f~xed and contingent), (iii) each Guarantor is and will
continue to be able to pay its debts as they mature, and (iv) if a Guarantor is not an
individual, such Guarantor has and will continue to have sufficient capital to carry on its
business and all businesses in which it is about to engage.
(h) (i) No Guarantor is a Barred Person (hereinafter defined); (ii) No
Guarantor is owned or controlled, directly or indirectly, by any Barred Person; and (iii)
No Guarantor is acting, directly or indirectly, for or on behalf of any Barred Person. As
used in this Guaranty, the term "Barred Person’’ shall mean (1) any person, group or
entity named as a "Specially Designated National and Blocked Person’’ or as a person
who commits, threatens to commit, supports, or is associated with terrorism as designated
by the United States Department of the Treasury’s Office of Foreign Assets Control
("OFAC"), (2) any person, group or entity named in the lists maintained by the United
Stated Department of Commerce (Denied Persons and Entities), (3) any government or
citizen of any country that is subject to a United States Embargo identified in regulations
promulgated by OFAC and (4) any person, group or entity named as a denied or blocked
person or terrorist in any other list maintained by any agency of the United States
government
6.
Covenants. Each Guarantor hereby covenants and agrees with Bank as follows:
(a) Such Guarantor shall not, so long as its obligations under this Guaranty
continue, transfer or pledge any material portion of its assets for less than full and
adequate consideration; and
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(b) Each such Guarantor shall promptly furnish to Bank at any time and from
time to time such financial statements and other financial information of such Guarantor
as the Bank may require, in form and substance satisfactory to Bank; and
(c) Each Guarantor shall comply with all terms and provisions of the Loan
Documents that apply to such Guarantor; and
(d) A Guarantor shall promptly inform Bank of (i) any litigation or
govemmental investigation against such Guarantor or affecting any security for all or any
part of the Guaranteed Indebtedness or this Guaranty which, if determined adversely,
might have a material adverse effect upon the financial condition of such Guarantor or
upon such security or might cause a default under any of the Loan Documents, (ii) any
claim or controversy which might become the subject of such litigation or governmental
investigation, and (iii) any material adverse change in the financial condition of such
Guarantor.
7.
Consent and Waiver.
(a) Each Guarantor waives (i) promptness, diligence and notice of acceptance
of this Guaranty and notice of the incurring of any obligation, indebtedness or liability to
which this Guaranty applies or may apply and waives presentment for payment, notice of
nonpayment, protest, demand, notice of protest, notice of intent to accelerate, notice of
acceleration, notice of dishonor, diligence in enforcement and indulgences of every kind,
and (ii) to the extent permitted by law, the taking of any other action by Bank, including
without limitation, giving any notice of default or any other notice to, or making any
demand on, Borrower, any other guarantor of all or any part of the Guaranteed
Indebtedness or any other party.
(b) Each Guarantor to the extent permitted by law, waives any rights such
Guarantor has under, or any requirements imposed by, Chapter 34 of the Texas Business
and Commerce Code, as in effect on the date of this Guaranty or as it may be amended
from time to time.
(c) Bank may at any time, without the consent of or notice to any Guarantor,
without incurring responsibility to any Guarantor and without impairing, releasing,
reducing or affecting the obligations of any Guarantor hereunder: (i) change the manner,
place or terms of payment of all or any part of the Guaranteed Indebtedness, or renew,
extend, modify, rearrange or alter all or any part of the Guaranteed Indebtedness; (ii)
change the interest rate accruing on any of the Guaranteed Indebtedness (including,
without limitation, any periodic change in such interest rate that occurs because such
Guaranteed Indebtedness accrues interest at a variable rate which may fluctuate from
time to time); (iii) sell, exchange, release, surrender, subordinate, realize upon or
otherwise deal with in any manner and in any order any collateral for all or any part of
the Guaranteed Indebtedness or this Guaranty or setoff against all or any part of the
Guaranteed Indebtedness; (iv) neglect, delay, omit, fail or refuse to take or prosecute any
action for the collection of all or any part of the Guaranteed Indebtedness or this
Guaranty or to take or prosecute any action in connection with any of the Loan
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Documents; (v) exercise or refrain from exercising any fights against Borrower or others,
or otherwise act or refrain from acting; (vi) settle or compromise all or any part of the
Guaranteed Indebtedness and subordinate the payment of all or any part of the
Guaranteed Indebtedness to the payment of any obligations, indebtedness or liabilities
which may be due or become due to Bank or others; (vii) apply any deposit balance,
fund, payment, collections through process of law or otherwise or other collateral of
Borrower to the satisfaction and liquidation of the indebtedness or obligations of
Borrower to Bank, if any, not guaranteed under this Guaranty pursuant to paragraph 11
herein; and (viii) apply any sums paid to Bank by Guarantor, Borrower or others to the
Guaranteed Indebtedness in such order and manner as Bank, in its sole discretion, may
determine.
(d) Should Bank seek to enforce the obligations of any or all Guarantors
hereunder by action in any court or otherwise, each Guarantor waives any requirement,
substantive or procedural, that (i) Bank first enforce any fights or remedies against
Borrower or any other person or entity liable to Bank for all or any part of the Guaranteed
Indebtedness, including without limitation that a judgment first be rendered against
Borrower or any other person or entity, or that Borrower or any other person or entity
should be joined in such cause, or (ii) Bank shall first enforce fights against any collateral
which shall ever have been given to secure all or any part of the Guaranteed Indebtedness
or this Guaranty. Such waiver shall be without prejudice to Bank’s right, at its option, to
proceed against Borrower or any other person or entity, whether by separate action or by
joinder.
(e) In addition to any other waivers, agreements and covenants of each
Guarantor set forth herein, each Guarantor hereby further waives and releases all claims,
causes of action, defenses and offsets for any act or omission of Bank, its directors,
officers, employees, representatives or agents in connection with Bank’s administration of
the Guaranteed Indebtedness, except for the willful misconduct and gross negligence of
any such party.
8.
Obligations Not Impaired.
(a) Each Guarantor agrees that its obligations hereunder shall not be released,
diminished, impaired, reduced or affected by the occurrence of any one or more of the
following events: (i) the death, disability or lack of corporate power of Borrower, such
Guarantor (except as provided in paragraph 11 herein) or any other guarantor of all or
any part of the Guaranteed Indebtedness, (ii) any receivership, insolvency, bankruptcy or
other proceedings affecting Borrower, any Guarantor or any other guarantor of all or any
part of the Guaranteed Indebtedness, or any of their respective property; (iii) the partial or
total release or discharge of Borrower or any other guarantor of all or any part of the
Guaranteed Indebtedness, or any other person or entity from the performance of any
obligation contained in any instrument or agreement evidencing, governing or securing
all or any part of the Guaranteed Indebtedness, whether occurring by reason of law or
otherwise; (iv) the taking or accepting of any collateral for all or any part of the
Guaranteed Indebtedness or this Guaranty; (v) the taking or accepting of any other
guaranty for all or any part of the Guaranteed Indebtedness; (vi) any failure by Bank to
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acquire, perfect or continue any lien or security interest on collateral securing all or any
part of the Guaranteed Indebtedness or this Guaranty; (vii) the impairment of any
collateral securing all or any part of the Guaranteed Indebtedness or this Guaranty; (viii)
any failure by Bank to sell any collateral securing all or any part of the Guaranteed
Indebtedness or this Guaranty in a commercially reasonable manner or as otherwise
required by law; (ix) any invalidity or unenforceability of or defect or deficiency in any
of the Loan Documents; or (x) any other circumstance which might otherwise constitute a
defense available to, or discharge of, Borrower or any other guarantor of all or any part of
the Guaranteed Indebtedness.
(b) This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of all or any part of the Guaranteed Indebtedness is
rescinded or must otherwise be returned by Bank upon the insolvency, banlm~ptcy or
reorganization of Borrower, any Guarantor, any other guarantor of all or any part of the
Guaranteed Indebtedness, or otherwise, all as though such payment had not been made.
(c) In the event Borrower is a corporation, joint stock association or
partnership, or is hereafter incorporated, none of the following shall affect each
Guarantor’s liability hereunder: (i) the unenforceability of all or any part of the
Guaranteed Indebtedness against Borrower by reason of the fact that the Guaranteed
Indebtedness exceeds the amount permitted by law; (ii) the act of creating all or any part
of the Guaranteed Indebtedness is ultra vires; or (iii) the officers or partners creating all
or any part of the Guaranteed Indebtedness acted in excess of their authority. Each
Guarantor hereby acknowledges that withdrawal from, or termination of, any ownership
interest in Borrower now or hereafter owned or held by any Guarantor shall not alter,
affect or in any way limit the obligations of each Guarantor hereunder.
9. Actions A~ainst Guarantor. In the event of a default in the payment or
performance of all or any part of the Guaranteed Indebtedness when such Guaranteed
Indebtedness becomes due, whether by its terms, by acceleration or otherwise, each Guarantor
shall, without notice or demand, promptly pay the amount due thereon to Bank, in lawful money
of the United States, at Bank’s address set forth in subparagraph l(a) above. One or more
successive or concurrent actions may be brought against any Guarantor, either in the same action
in which Borrower is sued or in separate actions, as often as Bank deems advisable. The
exercise by Bank of any right or remedy under this Guaranty or under any other agreement or
instrument, at law, in equity or otherwise, shall not preclude concurrent or subsequent exercise of
any other right or remedy. The books and records of Bank shall be admissible in evidence in any
action or proceeding involving this Guaranty and shall be prima facie evidence of the payments
made on, and the outstanding balance of, the Guaranteed Indebtedness.
10. Payment by Guarantor. Whenever any Guarantor pays any sum which is or may
become due under this Guaranty, written notice must be delivered to Bank contemporaneously
with such payment. Such notice shall be effective for purposes of this paragraph when
contemporaneously with such payment Bank receives such notice either by: (a) personal
delivery to the address and designated department of Bank identified in subparagraph 1 (a) above,
or (b) United States mail, certified or registered, remm receipt requested, postage prepaid,
addressed to Bank at the address shown in subparagraph l(a) above. In the absence of such
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notice to Bank by such Guarantor in compliance with the provisions hereof, any sum received by
Bank on account of the Guaranteed Indebtedness shall be conclusively deemed paid by
Borrower.
11. Death of Guarantor. In the event of the death of a Guarantor, any duly authorized
representative of the estate of such Guarantor may revoke such Guarantor’s furore obligations
under this Guaranty by giving Bank written notice of such Guarantor’s death and that the estate
of such Guarantor shall not be liable hereunder for any indebtedness or obligations of Borrower
incurred on or after the effective date of such revocation. Such revocation shall be deemed to be
effective on the day following the day Bank receives such notice delivered either by: (a) personal
delivery to the address and designated department of Bank identified in subparagraph l(a) above,
or (b) United States mail, registered or certified, return receipt requested, postage prepaid,
addressed to Bank at the address shown in subparagraph l(a) above. Notwithstanding such
revocation, the obligations of such deceased Guarantor shall continue as an obligation against his
estate as to (x) all of the Guaranteed Indebtedness that is outstanding on the effective date of
such revocation, and any renewals or extensions thereof, and (y) all loans, advances and other
extensions of credit made to or for the account of Borrower on or after the effective date of such
revocation pursuant to an obligation of Bank under a commitment or agreement made to or with
Borrower prior to the effective date of such revocation. The terms and conditions of this
Guaranty, including without limitation the consents and waivers set forth in paragraph 7 hereof,
shall remain in effect with respect to the Guaranteed Indebtedness described in the preceding
sentence in the same manner as if such revocation had not been made.
12. Notice of Sale. In the event that any Guarantor is entitled to receive any notice
under the Uniform Commercial Code, as it exists in the state governing any such notice, of the
sale or other disposition of any collateral securing all or any part of the Guaranteed Indebtedness
or this Guaranty, reasonable notice shall be deemed given when such notice is deposited in the
United States mail, postage prepaid, at the address for such Guarantor set forth in subparagraph
1 (d) above, five (5) days prior to the date any public sale, or after which any private sale, of any
such collateral is to be held; provided, however, that notice given in any other reasonable manner
or at any other reasonable time shall be sufficient.
13. Waiver by Bank. No delay on the part of Bank in exercising any right hereunder
or failure to exercise the same shall operate as a waiver of such right. In no event shall any
waiver of the provisions of this Guaranty be effective unless the same be in writing and signed
by an officer of Bank, and then only in the specific instance and for the purpose given.
14. Successors and Assigns. This Guaranty is for the benefit of Bank, its successors
and assigns. This Guaranty is binding upon each Guarantor and each Guarantor’s heirs,
executors, administrators, personal representatives and successors, including without limitation
any person or entity obligated by operation of law upon the reorganization, merger, consolidation
or other change in the organizational structure of any Guarantor.
15. Costs and Expenses. Each Guarantor, jointly and severally, shall pay on demand
by Bank all costs and expenses, including without l’,maitation, all reasonable attorneys’ fees
incurred by Bank in connection with the preparation, administration, enforcement and/or
TXCap Bank TriCty Little 00120
collection of this Guaranty. This covenant shall survive the payment of the Guaranteed
Indebtedness.
16. Severabilitv. If any provision of this Guaranty is held by a court of competent
jurisdiction to be illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, shall not impair or invalidate the remainder of this Guaranty and the
effectthereof shall be confined to the provision held to be illegal, invalid or unenforceable.
17. No Obligation. Nothing contained herein shall be construed as an obligation on
the part of Bank to extend or continue to extend credit to Borrower.
18. Amendment. No modification or amendment of any provision of this Guaranty,
nor consent to any departure by any Guarantor therefrom, shall be effective unless the same shall
be in writing and signed by an officer of Bank, and then shall be effective only in the specific
instance and for the purpose for which given.
19. Cumulative Rights. All rights and remedies of Bank hereunder are cumulative of
each other and of every other right or remedy which Bank may otherwise have at law or in equity
or under any instrument or agreement, and the exercise of One or more of such rights or remedies
shall not prejudice or impair the concurrent or subsequent exercise of any other rights or
remedies.
20. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
AND ~APPLICABLE FEDERAL LAWS.
21. Venue. This Guaranty has been entered into in the county in Texas where Bank’s
address for notice purposes is located, and it shall be performable for all purposes in such county.
Courts within the State of Texas shall have jurisdiction over any and all disputes arising under or
pertaining to this Guaranty and venue for any such disputes shall be in the county or judicial
district where the Bank’s address for notice purposes is located.
22. Compliance with Applicable Usury Laws. Notwithstanding any other provision
of this Guaranty or of any instrument or agreement evidencing, governing or securing all or any
part of the Guaranteed Indebtedness, each Guarantor and Bank by its acceptance hereof agree
that each Guarantor shall never be required or obligated to pay interest in excess of the maximum
nonusurious interest rate as may be authorized by applicable law for the written contracts which
constitute the Guaranteed Indebtedness. It is the intention of each Guarantor and Bank to
conform strictly to the applicable laws which limit interest rates, and any of the aforesaid
contracts for interest, if and to the extent payable by such Guarantor, shall be held to be subject
to reduction to the maximum nonusurious interest rate allowed under said law.
23. Descriptive Headings. The headings in this Guaranty are for convenience only
and shall not define or limit the provisions hereof.
24. Gender. Within this Guaranty, words of any gender shall be held and construed to
include the other gender.
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25. Entire Agreement. This Guaranty contains the entire agreement between each
Guarantor and Bank regarding the subject matter hereof and supersedes all prior written and oral
agreements and understandings, if any, regarding same; provided, however, this Guaranty is in
addition to and does not replace, cancel, modify or affect any other guaranty of any Guarantor
now or hereafter held by Bank that relates to Borrower or any other person or entity.
Signature Page Follows
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68-18-87 18:31
Fax fro~ : 5883Z6Z478
Pg: 8
EXECUTED as of the date first above wr~uen.
GUAI~kNTORS:
3"~eve Rouse
La Vona Ellen Norfiekl~
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