AFFIRM and DENY; Opinion Filed July 8, 2024 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-01325-CV JA-LYNN KUO, JLKUO, PLLC, SUBHO MULLICK, SM ER, PLC, SALIMA AMIN THOBANI, AND SR G CONSULTING, LLC, Appellants V. REGIONS BANK, Appellee
and IN RE JA-LYNN KUO, JLKUO, PL LC, SUBHO MULLICK, SM ER, PLC, SALIMA AMIN THOBANI, AND SR G CONSULTING, LLC, Relators On Appeal from the 192nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-22-12984 MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Kennedy Appellee Regions Bank (the Bank) file d suit against appe llants Ja-Lynn Kuo, JLKUO, PLLC, Subho Mullick, SM ER, PLC, Salima Amin Thobani, and SRG Consulting, LLC (appellants) to enforce th eir guarantees of payment of two loans Regions Bank made for the construction a nd operation of a stand-alone emergency room. The trial court granted summary j udgment in favor of the Bank on appellants’–2– affirmative defenses and counterclaims a nd, in a subsequent order, on the Bank’s breach-of-contract claim against appellants. The trial court later granted a motion severing the remaining claims between a ppellants and other de fendants, which did not involve the Bank, and entered a September 16, 2022 final judgment in the severed case, incorporati ng by reference the earlie r order granting summary judgment against appellants on the Bank’s breach-of-contract claim. Appellants appeal from that final j udgment and also seek mandamus relief from the trial court’s order compelling post-ju dgment discovery. In their first issue, appellants argue the final judgment is not a final, appealable order and instead impermissibly requires re ference to additional facts in or der to enforce it, such that this Court lacks jurisdiction over this a ppeal. In their second and third issues, appellants urge the trial c ourt erred in granting summary judgment because the Bank did not prove it satisfied conditions preced ent and failed to conc lusively prove its damages. In their fourth is sue, appellants challenge the sufficiency of the evidence to support the trial court’s award of attorney ’s fees. In their fifth issue, appellants urge the trial court erred by granting su mmary judgment on appellants’ affirmative defense of offset. In their petition for writ of mandamus, a ppellants urge the tr ial court abused its discretion by granting the Bank’s motion to compel post-judgment discovery and for sanctions because the final judgment incorporating the summary judgment on–3– the Bank’s breach of contract claim, the basis of post-judgment discovery, is not a final, appealable order. We affirm the trial court’s judgment a nd deny appellants’ pe tition for writ of mandamus. Because all dispositive issues are settled in law, we issue this memorandum opinion. See T EX

. R. A PP

. P. 47.2(a), 47.4.
B ACKGROUND On April 11, 2014, the Bank made a c onstruction loan in the amount of $2,500,000 to Ascent Realty, LLC for the c onstruction of a stand-alone emergency medical facility in Dallas, Texas. Simultaneously, the Bank made a second revolving loan in the amount of $600,000 to Ascent Group, LLC for operation of the business. Appellants execut ed Unconditional Guarantees in connection with each loan to guarantee a certain pe rcentage of the principal ba lance of the respective note. 1 Other parties not part of this appeal al so signed guarantees of the two loans. In 2016, Ascent Group, LLC filed for bankruptcy, and, in 2017, with the Bank’s consent, Uptown ER, LLC (Uptown) purchased th e assets and assumed the

1 The percentage of the principal balance gua ranteed varied by each guarantor is as follows: Guarantor Percentage of Principal Balance Subho Mullick 51.75% SM ER, PLC 51.75% Salima Amin Thobani 24.75% SRG Consulting, LLC 24.75% Ja-Lynn Kuo 21.00% JLKUO, PPC 21.00%–4– obligations under the two loans throu gh a Debt Assumption and Modification Agreement (DAMA). Th e DAMA also refers to the guarantees of John Turner, the managing member and principal of Uptown ER, LLC, and Ryan Cradeur, another member and principal of the same. Si multaneously with the DAMA, Turner and Cradeur signed Unconditional Guarantees of payment of the two loans. When Uptown failed to make payments on both loans, the Bank proceeded to notify Uptown of “events of default” of both loans via a January 18, 2019 letter. The Bank also sent letters dated January 18, 2019, to Turner and Cradeur, notifying them of Uptown’s default and demanding th at all guaranteed amounts be paid immediately. On February 14, 2019, the Bank filed suit against Uptown ER, LLC, Turner, and Cradeur for breach of contract, a nd on September 19, 2019, the Bank added appellants as defendants to its suit. In their first amende d answer, appellants asserted numerous affirmative defenses, including that the Bank “must first collect or reasonably exhaust collection efforts agai nst the primary guarantors” of Uptown, Turner, and Cradeur, as well as offset of any amount paid on their obligations by any other party. In March 2021, appellants file d counterclaims against the Bank, as well as cross-claims against Uptown and Turn er, for breach of contract, waste of collateral and accounting, fraud, negligent misreprese ntation, and promissory estoppel.–5– On May 27, 2021, the Bank moved for su mmary judgment against appellants on their affirmative defenses to its breach-o f-contract claim, including offset, and on their counterclaims. On July 13, 2021, the Bank moved for summary judgment against appellants on its breach-of-contract claim. In August 2021, the Bank entered into an agreed judgment with Uptown, in which the Bank was awarded judgment for the outstanding principal of both loans as well as outstanding interest, pre-judgment interest, and attorney’s fees. That same month, the trial c ourt granted summary judgment in favor of the Bank on appe llants’ affirmative defenses and counterclaims. On October 12, 2021, the trial court granted summary judgment in favor of the Bank on its claims against appellants, awarding the Bank the amounts guaranteed by each, as well as outstanding in terest on the loans, per diem interest, post-judgment interest, and attorney’s fees. The Bank filed, and the trial court gran ted, motions to sever its judgments against Uptown and Turner fr om the remaining proceedings. 2 Subsequently, the Bank filed a second motion to sever, asserting the only remaining claims were crossclaims between defendants, which the tria l court denied. At a later hearing in September 2022, the trial court sua sponte r econsidered its ruling on that motion and granted the motion and entered a Septembe r 16, 2022 final judgment in the severed

2 The Bank sought summary judgment on its claims ag ainst all of the defendants, but in November 2020, the trial court granted summary judgment as to Turner and denied same as to appellants and other remaining defendants. Cradeur filed for bankruptcy and was nonsuited without prejudice from the case on April 7, 2020.–6– case, incorporating by reference the Oc tober 12, 2021 order granting summary judgment against appellants. Appellants filed a motion for new trial, which was overruled by operation of law. This appeal followed.
J URISDICTION In their first issue, appellants argue this Court should dismiss this appeal for want of jurisdiction because the Septembe r 16, 2022 judgment appealed from is not a final judgment as a matter of law. Absent statutory authority, this C ourt has no jurisdictio n to review an interlocutory ruling. Masa Custom Homes, LLC v. Shahin , 547 S.W.3d 332, 338 (Tex. App.—Dallas 2018, no pet.) (citing Qwest Commc’ns Corp. v. AT&T Corp. , 24 S.W.3d 334, 336 (Tex. 2000)). There are tw o paths for an order to become a final judgment without a trial: the order can (1) di spose of all remaini ng parties and claims then before the court, regardless of its language; or (2) incl ude unequivocal finality language that expressly disposes of all claims and parties. Sealy Emergency Room, L.L.C. v. Free Standing Emergenc y Room Managers of Am., L.L.C. , 685 S.W.3d 816, 820 (Tex. 2024) (citing Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 200 (Tex. 2001)). We have also recognized that, “[a]s a rule, the severance of an interlocutory judgment into a separate cause makes it final.” Id. (quoting Diversified Fin. Sys., Inc. v. Hill, Heard, O’Nea l, Gilstrap & Goetz, P.C ., 63 S.W.3d 795, 795 (Tex. 2001)).–7– The September 16, 2022 judgment conclude s by stating, “This Final Judgment disposes of all claims and all parties in th e Severed Case; it is final and appealable.” Although no “magic language” is required, a trial court may expr ess its intent to render a final judgment by descri bing its action as (1) final, (2) a disposition of all claims and parties, and (3) appealable. Bella Palma, LLC v. Young , 601 S.W.3d 799, 801 (Tex. 2020). Thus, by two separate measures, this judgment was intended to be final. See id. ; see also Sealy Emergency Room , 685 S.W.3d at 820. Appellants argue that the September 16, 2022 judgment is not final because it incorporates the prior, interlocutory summary judgment order, which provided: [T]he respective Kuo Defendants shall be given credit for any payments on the loans in question, outstanding interest on those loans, and attorneys’ fees only to the extent any other person or entity makes payment on those items such that the amount owed to Plaintiff is reduced to an amount less than what the respective Kuo Defendants owe for each of those items under this judgment. Appellants urge this language would leav e any ministerial officer “unable to determine the amount of the judgment agains t any of the Kuo Appellants,” such that the September 16, 2022 judgme nt and incorporated summary judgment order are indeterminate and interlocutory. Indeed, “[a] final judgment must be definite and certain.” Int’l Sec. Life Ins. Co. v. Spray , 468 S.W.2d 347, 350 (Tex. 1971); see also Hinde , 701 S.W.2d at 639. “A judgment must [also] be sufficiently defi nite and certain to de fine and protect the rights of all litigants, or it must provide a de finite means of ascertaining such rights, to the end that ministerial officers can carry the judgment to execution without–8– ascertainment of facts not therein stated.” Hinde , 701 S.W.2d at 639 (quoting Steed
v. State , 183 S.W.2d 458, 460 (Tex. 1944)). A judgment may be definite and certain even if “the amount eventually to be co llected by plaintiff from defendant remains uncertain.” See Hargrove v. Ins. Inv. Corp. , 176 S.W.2d 744, 748 (Tex. 1944) (“All of the provisions last mentioned are for the purpose of carrying the judgment into effect and are incidental to the proper enfo rcement of the rights of the parties as determined by the judgment.”); see also Dallas Cnty. Cmty. Coll. Dist. v. Bolton , 89 S.W.3d 707, 713 (Tex . App.—Dallas 2002), rev’d on other grounds , 185 S.W.3d 868 (Tex. 2005) (“The provision allowing Cl ass counsel to recover their fees incurred in connection with post-judgment collection and distribution efforts does not render the judgment interlocutory.”). “So long as the judgment of the court makes the figure which the clerk is to plac e in the writ of execution determinable by ministerial act, the judgment cannot be said to lack definiteness.” See Spray , 468 S.W.2d at 350. We conclude this case is one where th e amount adjudged is certain even if “the amount eventually to be collected by plaintiff from defendant remains uncertain.” See Hargrove , 176 S.W.2d at 748. The order granting summary judgment incorporated by reference in th e September 16, 2022 j udgment orders the–9– Bank to recover certain amounts from each a ppellant for the principal balance of each loan, 3 interest, 4 and attorney’s fees, 5 both trial and appellate.

3 In relevant part, the final judgment provides: It is, therefore, ORDERED, ADJUDGED, a nd DECREED that Plaintiff Regions Bank have and recover of and fiom JLKUO, PLLC judgment for the amount of $360,931.23, representing $296,823.11 for 21% of the principa l of the construction loan and $64,108.12 for 21% of the revolving loan. It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover of and from Ja-Lynn Kuo judgment for the amount of $360,931.23, representing $296,823.11 for 21% of the principal of th e construction loan and $64,108.12 for 21% of the revolving loan. It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover of and from SM ER, PLC judgment for the amount of $889,437.67, representing $731,456.95 for 51.75% of the principal of the construction loan and $157,980.72 for 51.75% of the revolving loan. It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover of and from Subho Mullick judgment for the amount of $889,437.67, representing $731,456.95 for 51.75% of the principal of the construction loan and $157,980.72 for 51.75% of the revolving loan. It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover of and from SRG Consulting, LLC judgment for the amount of $425,383.23, representing $349,827.24 for 24.75% of the principal of the construction loan and $75,556.00 for 24.75% of the revolving loan. It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover of and from Salima Thobani judgment for the amount of $425,383.23, representing $349,827.24 for 24.75% of the principal of the construction loan and $75,556.00 for 24.75% of the revolving loan. It is, further, ORDERED, ADJUDGED, and DECREED Plaintiff Regions Bank have and recover of and from the Kuo Defendants, jointly and severally, judgment for the outstanding interest on the loans as of July 6, 2021, in the amount of $310,423.50, as well as per diem interest in the amount of $208.88 for the construction loan and $66.51 for the revolving loan from July 7, 2021 until the date this Judgm ent is entered. It is, further, ORDERED, ADJUDGED, and DECREED that Plai ntiff have and recover of and from the Kuo Defendants, jointly and severally, post-j udgment interest on the unpaid amount of the Judgment at the Default Rate of 9.32% per annum, compounded a nnually, beginning on the day this Judgment is signed and entered and continuing until the Judgment is paid in full, released, or otherwise discharged.
4 In relevant part, the final judgment provides: It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff have and recover of and from the Kuo Defendants, jointly and sev erally, post-judgment interest on the unpaid amount of the Judgment at the Default Ra te of 9.32% per annum, compounded annually,–10– We further conclude this case is un like the authorities cited by appellants where no specific amount of dama ges or fees was awarded. Cf. Chado v. PNL Blackacre, L.P. , No. 05-04-00312-CV, 2005 WL 428824, at *1 (Tex. App.—Dallas Feb. 24, 2005, no pet.) (m em. op.) (where parties c onceded impossibility of executing on attorney’s fees portion because order did not specify amount of attorney’s fees, we concluded “the trial co urt’s judgment is not final because it does not dispose of all issues between th e parties and lack s definiteness”); In re Blankenhagen , 513 S.W.3d 97, 101 (Tex. App.—Hous ton [14th Dist.] 2016, pet. dism’d) (concluding judgment not final wher e “[a]t most, this statement states a potential range of damages, not an aw ard of damages in a certain amount.”). 6 Accordingly, we conclude the Sept ember 16, 2022 judgment is a final, appealable judgment. We overrule appellant’s first issue.

beginning on the day this Judgment is signed and entered and continuing until the Judgment is paid in full, released, or otherwise discharged.
5 In relevant part, the final judgments provides: It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff have and recover of and from the Kuo Defendants, jointly and sev erally, reasonable and necessary attorneys’ fees in the amount of $603,795.78, plus r easonable and necessary attorneys’ fees in the amount of $30,000.00 in the event this case is appealed to the Court of Appeals, and $20,000.00 in the event a petition for review is filed with the Texas Supreme Court.
6 Similarly, we distinguish this case from other opinion s of this Court where the appealed judgment left attorney’s fees amount to be determined or otherwise failed to specify an amount: CryoUSA Imp. & Sales, LLC v. Revitalize360, LLC , No. 05-20-01058-CV, 2022 WL 2037968, at *1 (Tex. App.—Dallas June 7, 2022, no pet.) (mem. op.); Daniels v. SS Cottages LLC , No. 05-21-00759-CV, 2022 WL 391509, at *1 (Tex. App.—Dallas Feb. 9, 2022, no pe t.) (mem. op.). And, we distinguish this case from that where the judgment conditioned the awarded amount on what actions parties might take post-judgment. Sanchez v. F&M Props. , No. 05-23-00794-CV, 2023 WL 8862698, at *1 (Tex. App.—Dallas Dec. 22, 2023, no pet.) (mem. op.) (judgment “provided that in the event injunctiv e relief is either not sought or the request denied, a further hearing would be held to determine the amount of attorney’s fees”); Paxton v. Simmons , 640 S.W.3d 588, 597 (Tex. App.—Dallas 2022, no pet.) (j udgment conditioned on whether “intervention is filed in this case by those Defendants”).–11– D ISCUSSION I. Preservation of Issues In their second and third issues, appella nts urge the trial court erred granting summary judgment because the Bank did not prove it satisfied conditions precedent and failed to conclusi vely prove its damages. In their fourth issue, appellants challenge the sufficiency of the evidence to support the trial court’s award of attorney’s fees. As an initial matter, we note that thes e three issues challenge sufficiency of the evidence to support the trial court’s October 12, 2021 grant of summary judgment to the Bank, which was incor porated into the September 16, 2022 judgment. However, the appellate record is missing the exhibits to the Bank’s July 13, 2021 motion for summary judgment. An appellant bears the burden to bring forward a record that enables the appellate court to determine whether appellant’s complaints constitute reversible error. See Palla v. Bio-One, Inc. , 424 S.W.3d 722, 727 (Tex. App.—Dallas 2014, no pet.) (citing Enter. Leasing Co. of Houston v.
Barrios , 156 S.W.3d 547, 549 (Tex. 2004) (per curiam); Christiansen v. Prezelski , 782 S.W.2d 842, 843 (Tex. 1990); Nicholson v. Fifth Third Bank , 226 S.W.3d 581, 582 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). Issues depending on the state of the evidence cannot be review ed without a complete record. See id. (citing Favaloro v. Comm’n for Lawyer Discipline , 994 S.W.2d 815, 820 (Tex. App.— Dallas 1999, pet. stricken)). “If the pertinent summary judgment evidence–12– considered by the trial court is not included in the appellate record , an appellate court must presume that the om itted evidence supports the trial court’s judgment.”
Barrios , 156 S.W.3d at 550 (citing DeSantis v. Wackenhut Corp. , 793 S.W.2d 670, 689 (Tex. 1990), and Crown Life Ins. Co. v. Gonzalez , 820 S.W.2d 121, 122 (Tex. 1991). Thus, because the second, third, and fourth issues require review of a record not brought forward on appeal, we overrule such issues as not preserved for our review. 7 See Barrios , 156 S.W.3d at 549–50 (holding appellant bore burden to bring forward record of summary judgment eviden ce to provide appellate court with basis to review claim of harmful error) (citing DeSantis v. Wackenhut Corp. , 793 S.W.2d 670, 689 (Tex. 1990); Escontrias v. Apodaca , 629 S.W.2d 697, 699 (Tex. 1982)); see also T EX

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. P. 34.5(a) (only the items listed in Rule 34.5(a) are included in the appellate record absent a re quest from one of the parties). 8

7 The clerk’s record consists of one original and th ree supplemental volumes, totaling over 4,000 pages. In their briefs, the parties cite the exhibits attach ed to the August 27, 2020 motion for summary judgment, which was denied. The record contains no indication that those exhibits were the same as those supporting the July 13, 2021 motion or that the later motion inco rporated by reference the exhibits supporting the earlier motion.
8 Rule 34.5(a) requires the record include copies of the following: (1) in civil cases, all pleadings on which the trial was held; (2) in criminal cases, the indictment or inform ation, any special plea or defense motion that was presented to the court and overruled, any written waiver, any writte n stipulation, and, in cases in which a plea of guilty or nolo co ntendere has been entered, any documents executed for the plea; (3) the court’s docket sheet; (4) the court's charge and the jury's verdict, or the court's findings of fact and conclusions of law;–13– II. Affirmative Defense of Offset In their fifth issue, appellants urge the trial court erred by granting summary judgment on appellants’ affirma tive defense of offset. We review a grant of summary judgment de novo. Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481 (Tex. 2015) (citing State v. Ninety Thousand Two Hundred Thirty–Five Dollars & No Cents in U.S. Currency ($90,235) , 390 S.W.3d 289, 292 (Tex. 2013)). A party moving fo r traditional summary judgment has the burden to prove that there is no genuine issu e of material fact and that it is entitled to judgment as a matter of law. Id. (citing T EX

. R. C IV . P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (T ex. 2009)). “When reviewing a summary judgment, we take as true all ev idence favorable to the nonmovant, and we indulge every reasonabl e inference and resolve any doubts in

(5) the court’s judgment or other order that is being appealed; (6) any request for findings of fact and conc lusions of law, any post-judgment motion, and the court’s order on the motion; (7) the notice of appeal; (8) any formal bill of exception; (9) any request for a reporter’s record, including any statement of points or issues under Rule 34.6(c); (10) any request for preparation of the clerk’s record; (11) in civil cases, a certified bill of costs, in cluding the cost of preparing the clerk’s record, showing credits for payments made; (12) in criminal cases, the trial court's certifi cation of the defendant's right of appeal under Rule 25.2; (13) in civil cases, any supersedeas bond or certificate of cash deposit in lieu of a bond; and (14) subject to (b), any filing that a party designates to have included in the record. T EX

. R. A PP . P. 34.5(a).–14– the nonmovant’s favor.” Id. (quoting Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005)). The right of offset, set-off, or re imbursement agains t damages is an affirmative defense. See Tenet Health Sys. Hosps. Da llas, Inc. v. N. Tex. Hosp. Physicians Grp., P.A. , 438 S.W.3d 190, 204 (Tex. App. —Dallas 2014, no pet.). Therefore, to be entitled to summary judgmen t, the Bank must have proven that there was no genuine issue of material fact as to whether appellants had the right to offset and that it was entitled to judgment as a matter of law on appe llants’ affirmative defense. In its May 27, 2021 motion for summary judgment, the Bank argued appellants had waived, among others, the affi rmative defense of offset, through the following language of the Unconditional Gu arantees each appellant signed related to each of the construction and revolving loans. No setoff, counterclaim, reduction or diminution of any obligation, or any defense of any kind which Guar antor has or may have against Borrower or Lender shall be ava ilable hereunder to Guarantor. This is a continuing guaranty of pa yment, not a guaranty of collection . . . . If one or more additional guaranty agreements are executed by one or more additional guarantor s (“Other Guarantors”), which guarantee the Obligations, it is speci fically agreed that the liability hereunder of Guarantor or Other Guaran tors shall be joint and several. Appellants do not dispute the effect of broad waivers in the Unconditional Guarantees on their right to the affirmative defense of offset, but instead they urge, as they did in their response to the Ba nk’s motion, that the DAMA included language–15– that modified the Bank’s rights against all of the guarantors of the two loans. More particularly, appellants contend the follo wing language in the DAMA entitles them to an offset. Lender agrees that the guarantees of Dr. John Turner and Dr. Ryan Cradeur (collectively, th e “New Guarantees”) given at Closing shall be the first to be enforced by Lende r as all guarantees, meaning that, subject to the exceptions below, Le nder will proceed with demand to enforce and actions to enforce the Ne w Guarantees for a period of one hundred eighty (180) days, cumulatively measured from the initial on such New Guarantees, before ma king any renewed, post-Closing demands or undertaking enforcem ent actions on the Preexisting Guarantees, except that Lender proceed with immediate and enforcement against any particular Preexisting Guarantor on his, her or its Preexisting Guarantee if: [listi ng exceptions not at issue here]. Appellants interpret the fore going language to require the Bank to enforce Turner’s and Cradeur’s guarantees before enforcing a ppellants’ guarantees. They further urge that the intent of this portion of the DAMA “was to require Reg ions Bank to exhaust assets of Turner and Cradeur before taki ng an[y] action to enforce any pre-existing guarantees, such as [appellants’].” Thus, conclude appellants, the DAMA modified appellants’ guarantees and expressly pr ovided for the defense of offset. The Bank responds that the DAMA could not have modified the relationship between itself and a ppellants or revived appellants’ defense of offset because appellants are neither parties to nor third- party beneficiaries of the DAMA. As a general rule, the benefits and burdens of a contract belong solely to the contracting parties, and “no person can sue upon a contract except he be a party to or in privity with it.” First Bank v. Brumitt , 519 S.W.3d 95, 102 (Tex. 2017) (quoting House v.–16– Hous. Waterworks Co. , 31 S.W. 179, 179 (Tex. 1895)). An exception to this general rule permits a person who is not a party to the contract to sue for damages caused by its breach if the person qualifies as a third-party beneficiary. Id. (citing MCI Telecomms. Corp. v. T ex. Utils. Elec. Corp. , 995 S.W.2d 647, 651 (T ex. 1999)). A person seeking to establish third-party-bene ficiary status must demonstrate that the contracting parties “intended to secure a benefit to that th ird party” and “entered into the contract directly for th e third party’s benefit.” Id. (quoting Stine v. Stewart , 80 S.W.3d 586, 589 (Tex. 2002 )). To create a third-party beneficiary, the contracting parties must have intended to grant the third party the right to be a “claimant” in the event of a breach. Id. (citing Corpus Christi Bank & Tr. v. Smith , 525 S.W.2d 501, 505 (Tex. 1975)). To determine whether the contracting pa rties intended to directly benefit a third party and entered into the contract fo r that purpose, courts must look solely to the contract’s language, construed as a whole. Brumitt , 519 S.W.3d at 102 (citing Southland Royalty Co. v. Pan Am. Petroleum Corp ., 378 S.W.2d 50, 53 (Tex. 1964); Citizens Nat’l Bank in Abile ne v. Tex. & P. Ry. Co ., 150 S.W.2d 1003, 1006 (Tex. 1941)). The contract must include “a cl ear and unequivocal expression of the contracting parties’ intent to directly benefit a third part y,” and any implied intent to create a third-party benefi ciary is insufficient. Id. at 103 (quoting Tawes v. Barnes , 340 S.W.3d 419, 425 (Tex. 2011)) (citing Stine , 80 S.W.3d at 589; MCI , 995 S.W.2d at 651; Citizens Nat’l Bank , 150 S.W.2d at 1006). Cour ts may not presume the–17– necessary intent. Id. To the contrary, “we must be gin with the presumption” that the parties contracted solely “for themse lves,” and only a clear expression of the intent to create a third-party benefici ary can overcome that presumption. Id. (quoting Corpus Christi , 525 S.W.2d at 503–04). If the contract’s language leaves any doubt about the parties’ intent, t hose “doubts must be resolved against conferring third-party beneficiary status.” Id. (citing Tawes , 340 S.W.3d at 425). Although a contract may expressly provide th at the parties do not intend to create a third-party beneficiary, the absence of such language is not determinative. Id. (citing MCI, 995 S.W.2d at 651–52). “Instead, the c ontrolling factor is the absence of any sufficiently clear and unequivocal language demonstrating” the necessary intent. Id. (quoting Tawes , 340 S.W.3d at 428). Having reviewed the DAMA and considered appellants’ arguments that the quoted language above was inte nded to benefit appellants, we cannot conclude the DAMA contains any “suffici ently clear and unequivocal language demonstrating” any intent to create third-party beneficiaries of appellants. Id. At best the quoted language implies but does not actually state su ch an intent. Moreover, as both parties point out, the paragraph preceding the abov e quoted language provides that the Bank “is expressly not waiving but reserving all rights incident to any guarantees previously obtained.” Therefore, constr uing the DAMA as a whole, the language that could potentially demonstrate any intent to create third-party beneficiaries of appellants is even less clea r and even more equivocal. See Brumitt , 519 S.W.3d at–18– 102 (citing Southland Royalty Co. v. Pan Am. Petroleum Corp ., 378 S.W.2d 50, 53 (Tex. 1964); Citizens Nat’l Bank in Abile ne v. Tex. & P. Ry. Co ., 150 S.W.2d 1003, 1006 (Tex. 1941)). Accordingly, we overrule appellants’ fifth issue.
W RIT OF M ANDAMUS In their petition for writ of mandamus, a ppellants urge the tr ial court abused its discretion by granting the Bank’s motion to compel post-judgment discovery and for sanctions because the summary judgm ent made the basis of post-judgment discovery is not a final, appealable orde r. Appellants do not challenge the order’s terms, only whether the trial court could co mpel answers to post-judgment discovery absent a final, appe alable judgment. Entitlement to mandamus relief requires a relator to show that the trial court clearly abused its discretion and that the re lator lacks an adequate appellate remedy. In re Prudential Ins. Co. of Am ., 148 S.W.3d 124, 135–3 6 (Tex. 2004) (orig. proceeding). In light of our resolution of appellants’ issue, in which we concluded the summary judgment made the basis of post-judgment discovery is a final, appealable order, we deny their petition for writ of mandamus.–19– C ONCLUSION We affirm the trial cour t’s September 16, 2022 judg ment and deny appellants’ petition for writ of mandamus.

Molberg, J., concurring in ju dgment only, without opinion.

221325F.P05 /Nanc y Kenned y / NANCY KENNEDY JUSTICE–20– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JA-LYNN KUO, JLKUO, PLLC, SUBHO MULLICK, SM ER, PLC, SALIMA AMIN THOBANI, AND SRG CONSULTING, LLC, Appellants

No. 05-22-01325-CV V. REGIONS BANK, Appellee
and IN RE JA-LYNN KUO, JLKUO, PLLC, SUBHO MULLICK, SM ER, PLC, SALIMA AMIN THOBANI, AND SRG CONSULTING, LLC, Relators On Appeal from the 192nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-22-12984. Opinion delivered by Justice Kennedy. Justices Molberg and Nowell participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee REGIONS BANK recover its costs of this appeal from appellants JA-LYNN KUO, JLKUO, PLLC, SUBHO MULLICK, SM ER, PLC, SALIMA AMIN THOB ANI, AND SRG CONSULTING, LLC.
Judgment entered this 8th day of July 2024.