### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00315- CV

Jadon F. Ne wman, Appellan t

v. F irstm ark Cre dit Union , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-1 3-0 0080 8, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J adon F. Newma

n appea ls from the trial court’s summary judgme nt in favor of Firstmar k Credit Union. Firstmar

k sued Newma

n on a g uara

nty on a lending ag ree ment. Newma n

asser ted aff irmative defe nses and counter claims. The trial court g rante d Firstmar k ’s motion for

sum m ar y judgme nt on its claims and Newma n’s counter claims. For the rea sons that follow, we aff irm the trial cour

t’s judgme nt.

F ACTUAL AND P ROCEDURAL BACK GR OUND Firstmar k is a nonprofit cre dit union whose membership consists larg ely of educators who live in Be x ar C o u n t y . Newma n was the manag er of NCFM, L L C, a commerc ial mortg ag e banker that loaned money to borrowe rs secur ed by their commerc ial rea l estate. I n September 2008,NCFM obtained f unding from Firstmark for a war ehouse line of cre dit. The pa

rties’ re lationship 1 was g overne d by

a ser ies of docume nts, including a Promissory

Note in the amount of $5 million,

a Commercial L oan Ag ree ment, an Assignme nt of Not e, an d a Disclaimer of Ora l Ag ree ments. Thus, the ag ree men t betwee n Firstmar k and NCFM was a $5 milli on war ehouse line of cre dit,

secur ed by the Note, that was in turn secur ed by the Assignme nt of the borrowe rs’ promissory notes. Attache d as Ex hibit A to the L oan Agr eeme nt was a list of items require d for a draw reque st. I n addition, Newma

n signe d a Guar anty g uara nteeing the L oan, the Note, any other debt incurre d, and rela ted ex penses. NCFM d re w aga i n st the Note in a series of t ransa ctions totaling approxi mately $11 milli on and made commerc ial mortg ag e loans to borrowe rs—althoug h the parti es d ispute whether it did so in compliance with the terms of the loan d o cu ments. NCFM repa id all but $748,964.55 of the princ ipal loan amount. I n the fa ll of 2009, Firstmark revised the chec klist and beg an requiring NCFM to assig n to it the borrowe rs’ first lien deeds of trust. NCFM complied with this require ment. NCFM defa ulted on the Note in late 2009 and in 2010 filed for bankruptc y under Chapter 11. I n Marc h 2013, afte r conducting multipl e fore closures and participa ti n g in two adver sary proce eding s in the bankru p tc y c o u r t, F ir s tm a r k f il e d s u it ag ainst Newma

n seeking rec overy

on the Guar anty

. Newma n filed a g ener al denial, and approximately three months later, Firstmar k filed a tra ditional moti on for summary judgme nt with supporting evide nce. I n J une 2013, prior to a hearing on the m otion, the parties enter ed int o a R ule 11 ag ree ment to postpone the hearing and

“A ware house l ine of cre dit ref ers to a s u m of m oney that larg e financial i nstitut ions set 1 aside for t h e purpose of making loans to smaller financ ial instit utions.” Flagstar Bank, FSB v. W alker , 451 S.W .3d 490, 494 n.1 (Tex. App.—Dallas 2014, no pe t.). 2conduct informal discovery

. The parties dispute whether Firstmark co m p l ied with the Rule 11

ag ree ment as t o discovery . On Octobe r 18, 2013, Ne wman filed a n amende d answe r and a sserted aff irmative defe nses and counter claims. Firstmar k filed an amende d motion for summary judgme nt with additional evidenc e. Newma n filed a response and attache d evidenc e consisting of his aff idavit and exhibi ts. Eac h party objected to portions of the other’s summary judgme nt evidenc e. The trial
court ove rruled N ewman’ s objections—with one ex ception not rele vant t o this appeal—sustained Firstmar k’s objections, and g rante d Firstmar k’s motion for summary judgm ent. The judgme nt

awa rded the principal amount of $748,964.55; acc rued interest in the amount of $2,013,797.86; fee s for late pay

ment, appra isals, and acc ounting in the amount of $139,539.60; and attorney ’s fee s in the
amount of $85,000. Newma n filed a motion for new trial, which was overr uled by opera

tion of law. This appea l followed.

STANDARD OF REVIEW

We revie w t he trial court’s de cision to gr ant summary judgme nt de novo. Valence Operating Co. v. Dorsett , 164 S

. W

. 3 d 6 5 6 , 661 (Tex. 2005). To preva il on a sum mary judgme nt motion, the movant must demonstrate that there are no g enuine issues of materia l fac t and that it is entitled to judgme nt as a matter of law. Tex. R. Civ. P. 166a(c ); Provident Life & Acc ident Ins. Co.

v. Knott , 128 S.W .3d 211, 215–16 (Tex. 2003). When the trial cour t does not specify

the g rounds for g ranting the motion, we must uphold the judgme nt if any of the g rounds asser ted in the motion and prese rved for appellate revie w is meritorious. Knott , 128 S.W .3d at 216. Newma n’s issues also involve matters of contra ct construction. Our primary conce rn i n co n s t ru ing a contra ct is to

asce rtain and g ive eff

ect to the intent of the parties as expressed in the instrument. Frost Nat’l Bank
3v. L&

F Distribs., Ltd. , 165 S.W .3d 310, 311–12 (Tex

. 2005) (per curia m). We must not look to isolated terms but are to consider the instrument as a whole. Plainsman Trading Co

. v. Crews , 898 S.W .2d 786, 789 (Tex. 1995); Coker v. Cok er , 650 S.W .2d 391, 393 (Tex. 1983) (“No s ingle provision taken alone will be g iven controlling eff ect; rathe r, all the provisions must be considere d with ref ere nce to the whole instrument.”). When the provisions of a contra ct appea r to conflict, we must attempt to harmonize and g ive eff ect to all of the terms so that no part will be rendered meaning les s . Dorsett , 164 S.W .3d at 662; Ogden v. Dickinson State Bank , 662 S.W .2d 330, 332 (Tex. 1983). “Contrac t terms are g iven their plain, ordinary , and g ener ally acc epted meaning s unless
t h e co n trac t itself shows them to be used in a technica l or differ ent sense.” Dorsett , 164 S.W .3d at 662.

DISCUSSIO N Refusal to Contin ue Hearing

I n his third issue, Newma

n arg ues that the trial court err ed by ref using to continue the hear ing on the motion for summa ry j u d gm en t fo r discovery to be conducte d. We revie w a trial court’s denial of a motion for continuance for abuse of discretion. Joe v. Two Thirt y Nine Joint Venture , 145 S.W .3d 150, 161 (Tex. 2004). Howeve r, the rec ord ref lects that Newma

n did not file

a motion for continuance or otherwise prese nt such a reque s t t o t h e court. I nstead, counsel for Newma n appea red at the hear ing and prese nted arg ument wi t h o u t any indication that he was not prepa red to proce ed. Newma n d i d asser t in his response to Firstmar k’s motion for summary j u dg ment that the motion was “pre mature” and that Firstmar k had ref used discovery , an d h e reque sted that the motion “be denied or continued until [Newman] has had adequate time to conduct

4discovery on [certain] issues

. . . .” Howeve r, even wer e we to construe this asser tion as a purported motion for continuance , it was insufficient under Rules 251 and 252. See Tex. R. Civ. P. 251, 252. Rule 251 provides, in rele vant part, that no continuance shall be g rante d “except for sufficie nt cause supported by aff

idavit.” See id. R. 251. Although there wer e two aff idavits attache d to Newma n’s response , neither was offe red in support of a continuance

. I n addition, under Rule 252, “[a] motion for continuance seeking time for discovery must be supported by an aff idavit that descr ibes the evidenc e soug ht, e x plains its materiality , and shows that the party reque

sting the continuance has used due diligence to timely o b t a i n the evide nce . The aff idavit of diligenc e must state with particula rity what diligenc e was used; conclusory alleg ations of diligenc e are not sufficie nt.” Landers v. State Farm Lloyds , 257 S.W .3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (interna l citations omitted) (empha sis in orig inal). Newma n offe red no such aff

idavit or evidenc e. I n the absenc e of a proper motion for continuance , we conclude that the trial court did not abuse its discretion in failing to continue the hear ing for addi t i o n al d i s cover y . We overr

ule Newma

n’s 2 third issue.

Exclusion of E vidence

I n his second issue, Newma n arg ues that the trial court err ed in sustaining Firstmar k’s objections to Newma

n’s summary judgme nt evidenc e. We revie w a trial court’s exclusion o f

Even if we were to construe Newman’ s response as sufficient under Rules 251 and 252, 2 we would still conclude that the trial court did not abuse its discretion. Firstmar k prese nted sworn evidenc e that i t had complied with the parties’ Rule 11 ag ree ment reg arding discovery , and the rec ord ref lects that Newma

n never serve d any formal discovery reque sts on Firstmar k during the ten months the case had been pending prior to the hear ing on Firstmar k’s motion for summary judgme nt. 5evidenc e for abuse of discretion. W aste Mgmt. of Tex., Inc. v. T ex as Disposal Sys. Landfil l, Inc. , 434 S.W .3d 142, 157 (Tex. 2014). Ex clusion of evidenc e, even if err oneous, is harmless unless the

err or p ro b ab ly cause d rendition of an improper judgme nt or probably preve nted the appellant from prese ntin g t h e ca s e on appea l. See Tex. R. App. P. 44.1(a) ; Ford Motor Co. v. Castil lo , 279 S.W .3d 656, 667 (Tex. 2009). I n support of hi s response to Firstmar k’s m otion for summ ary judgme nt, Newma

n filed an aff

idavit in which he testified reg arding war ehouse lending proce dures, the parties’ neg otiations prior to and discussio n s fo l l owing execution of the loan documents, the
contents of the loan documents, alleg ed admissions by Firstmar k, and damag es. Firstmar k objected
to Newma

n’s testimony on eac h of these subjects. Prior to the hea ri n g, Newma n filed a supplemental af

fidavit curing some, but not all, of Firstmar k’s objections. Assuming wi t h out deciding that some or all of Firstmar k’s objections wer e

err oneously sustained, Newma n has failed to show that the exclusion of portions of his aff idavit was harmful err or. Newma

n’s only arg

uments with reg ard to reve rsib l e er ro r are that all of the err ors

asser ted in his br ief are reve rsible bec ause F irstmark “bloc ked [him] from sec uring evidenc e” a nd the trial court “denie d [hi m] a jury trial on ever y aspec t of his case .” Newma n makes no attempt to establish how the trial court’s exclusion of his aff idavit testimony probably cause d the rendition of

an improper judgme nt or probably preve nted him f rom prese nting his c ase on appea l. See Tex. R. App. P. 44.1(a); Castil lo , 279 S.W .3d at 667. We overr ule New man’s sec ond issue.

Summ ary Judgm ent on F irstm ark’s Breac h of Guaranty C laim I n his fourth issue, Newma n asser ts that the trial court err ed i n gra n ting summary judgme nt on the merits of Firstmar k’s g uara nty claim beca

use Firstmar

k did not conclusively prove 6the elements of its claim. The elements of a brea ch of g uara nty claim are : (1 ) t h e exis tence and

owner ship of the g uara

nty ; (2) perf

ormanc e of the u n d erly

ing contra ct; (3) the occur renc e of the conditions upon which liability is based; and (4) the failure or ref usal to perf

orm the promise by the g uara ntor. Vince Posc ente I

nt’l, Inc. v . Compass Bank , 460 S.W .3d 211, 214 (Tex. App.—Dallas 2015, no pet.). Newma

n disputes only the second and fourth elements, arg uing tha t Firstmark ha s not established its perf

ormanc e or his failur e t o p er fo rm beca use the loan documents wer e incomplete and ambig uous. This arg ument is predic ated on his contention that the documents wer e

s i l en t as to Firstmar

k’s rig ht to require assig nment of the first lien deeds of trust. Acc ording t o Newma n, the abse nce of

specific lang uag e in the loan doc uments to that effe ct cr eate s a fa ct issue and pre cludes summary

judgme nt. Although Newma

n did not arg ue ambig uity in the trial court, this Court may consider ambig uity of a contra ct raised for the first time on appea l. See Progressive Cnty. Mut. Ins. Co.

v. Kelley , 284 S.W .3d 805, 808–09 (Tex. 2009) (per curia m) (conc luding contra ct ambig uous wher e neither party asser

ted ambig uity

); Sage St. Assocs. v. Northdale Constr. Co. , 863 S.W .2d 438, 445 (Tex. 1993) (holding that court can decide contra ct is amb iguous on its own motion). Newma n contends that “without expressly asser ting ‘ambig uity ,’ a crux of this dispute is the parties’ differ ent interpre tations of the Ag ree ment.” Howeve r, “ambig uity does not arise simply beca use the parties advanc e conflicting interpre tations of the contra ct.” Columbia Gas Transmissi on Corp. v. New Ulm Gas, Ltd. , 940 S.W .2d 587, 589 (Tex. 1 9 9 6 ). On l y wher e a contra ct is first found to be ambig uous may the courts consider the parties’ interpre tations. Sun Oil Co. ( Del.) v. Madele

y , 626 S.W .2d 726, 732 (Tex. 1 9 8 1 ). Where the meaning of t he contract is plain and unambiguous,

7a party ’s construction i s immaterial. Id. There fore , Newma n’s and Firstmar

k’s differ ing constructions of the l oan documents do not make them ambig uous, and we conclude that they are not ambig uous. See Kelley , 284 S.W .3d at 808 (holding whether contra ct is ambig uous is question of law to be decide d by

court). Newma n also contends that we may consider as evidence of ambig uity repr esenta tions conce rning who was to reta in the deeds of trust alleg edly made by Firstmar k during neg otiations prior to execution of the loan documents and Firstmar k’s actions afte r execution of the documents. Howeve r, we may consider sur

rounding circ umstances a nd extrinsi c evide nce only if

we find the ag ree ment to be ambig uous; they m ay not be considere d to introduce ambig uity

. See Exx on Corp. v. W

est T ex. Gathering Co. , 868 S.W .2d 299, 302 (Tex. 1993) (stating that wher e contra ct i s unambig uous, courts g ive eff ect to intention of parties as expressed in writing and interpre t contra ct as matter of law); Madele y , 626 S.W .2d at 732 (par ol evidenc e not admissible to rende r ambig uous contra ct capa ble of being g iven definite leg al meaning ); Zapata Cnty. Appraisal Dist. v. Coastal Oil & Gas Corp. , 90 S.W .3d 847, 852 (Tex. App.—San Antonio 2002, pet. denied) (par ol evidenc e rule prec ludes consideration of extrinsic evidence that contra dicts, varie s, or adds
to terms of unambig uous written ag ree ment). Fur ther, we ag ree with Firs t m ark that Newton’ s ambig uity arg ument is essentially a restate ment of his arg uments conce rning his aff irmative defe nse of materia l altera tion of the g uara nty

. As explained more fully in our discussion of that issue below,

we conclude that the loan documents contain lang uag e authorizing Firstmar k to require assig nment of deeds of trust and that Firstmar k did not materia lly alter the parties’ ag ree ment by doing so. We

overr ule New man’s four

th issue.

8Summ ary Judgm ent on Newm an’s Aff irm ative De fenses I n h i s fi ft h issue, Newma n arg ues that the trial court err ed in g ranting summary judgme nt in favor of Firstmar k beca use he raised a fac t issue as to eac h of his aff irmative defe nses of materia l altera tion, equitable estoppel, waiver , and quasi-estoppe l. Howeve r, in his response to 3 Firstmar k’s motion for summary judgme nt, Newma n substantively raised only materia l altera tion. 4 “[I ]ss ues a non -movant contends avoid the movant’s entitlement to summary judgme nt must be expressly prese nted by written answe r to the motion or by other written response to the motion and

are not expressly prese nted by mere ref ere nce to sum m ar y j u d gment evidenc e.” McConnell

v. Southside Indep. Sch. Dist. , 858 S.W .2d 3 3 7 , 341 (Tex. 1993); see Murray v. Pinnacle Health Facilities XV

, No. 01-13-00527- CV, 2014 Tex. App. L EXI S 7642, at *6 (Tex. App.—Houston [1st Dist.] J uly 15, 2014, pet. denied) (mem. op.) (same, citing McConnell). There fore , Newma n has waived his arg uments as to his aff irmative defe nses other than materia l altera tion. See McConnell , 858 S.W .2d at 341; Murray , 2014 Tex. App. L EXI S 7642, at *6. We turn, then, to that issue.

Be cause courts strictly construe g uara nties and beca

use g uara ntors are bound only by the prec ise terms of the contra ct t hey have secur ed, a g uara ntor may be discharg ed by the materia l altera tion of a contra ct betwe en t h e p ri n cipal debtor and the cre ditor. Vastine v. Bank of Dallas , 808 S.W .2d 463, 464–65 (Tex. 1991) (per curia m); Futerfas Family Partners v. Griffin ,

I n his amende d an s we r, Newma n also asser

ted the aff

irmative defe nses of waiver and 3 rele ase, modification of obliga tion, pay ment, equitable estoppel, quasi-estoppe l, failure of consideration, fra

ud, failure to mitigate, discharg e, acc ord and satisfac tion, impairment of subrog ation, impairment of collate ral, a nd voidable contr act. I n the conclusion and pray er of his response , Newma n asser ted that Firstmar

k had 4 “re fuse[d] to allow him time to investiga te

. . .[and] develop [hi s aff irmative defe nses].” Howeve r, materia l altera tion is t he only aff irmative def

ense on w hich he of

fer ed any arg ument. 9374 S.W .3d 473, 478 (Tex. App.—Dallas 2012, no pet.); FDIC v. Attayi , 745 S.W .2d 939, 944 (Tex.

App.—Houston [1 s t Di st.] 1988, no writ). A m ater ial altera tion is an alteration of t he underly ing
contra ct that lacks the consent of the g uara ntor and either injures the g uara ntor or enhanc es the risk of injury to the g u ar an t o r. Gr iffin , 374 S.W .3d at 478; Attayi , 745 S.W .2d at 944. To establish materia l altera tion, a g uara ntor must show (1) a materia l altera tion of the underly ing con trac t, (2) made without his consent, (3) to his detriment. Brauss v. Tripl e M Holding GmbH , 411 S.W .3d 614, 626 (Tex. App.—Dallas 2013, pe t. denied) ( citing Griffin , 374 S.W .3d at 478–79).

N e w ma n arg ues that more than a scintilla of evidenc e shows that Firstmar k ma te r ia ll y chang ed the underly ing ag ree ment with N CFM by requiring assig nment of the deeds of trusts. He contends that neither the L oan Ag ree ment nor the chec klist for making draw s require d assig nment of the deeds of trust and that Firstmar k did not require them at first. Newma n further contends that the deeds of trust wer e NCFM’s “sepa rate proper

ty ” and that Firstmar

k “improper ly took” them in the name of requir ing “ additional documents,” prejudicing NCFM’s and Newma n’s i ntere sts. He also arg ues that beca

use an assig nment is a contra ct b et we en t h e assig nor and assig nee, the assig nments of the deeds of trust wer e not “additional do cu mentation.” We do not find these arg uments persua sive.

I n the L oan Ag ree ment, NCFM ag ree d to “sig n, deliver, and file any additional documents or cer

tifications that [Firstmark] may consider nece s sary to perf ect, continue, and prese rve [Newman’s] obl i gat ions under this L oan and to confirm [Firstmark’s] status on any Property .” Assignme nts of the deeds of t rust fall into this broad cate g ory . Moreve r, the L oan Ag ree ment left the deter

mination of what additional documents wer e neede d entirely to Firstmar k’s

10discretion. I n addition, the Assignme nt of Note provided that NCFM assig ned a secur ity interest to

Firstmar k in “all of the Property descr ibed in this Ag ree ment

. . . and all

. . . proce eds

. . . of the Property .” Property was define d as the c ollatera l give n as sec urity for the debt and “include[d] all obliga tions that support the pay ment or per formanc e of the Property .” “Procee ds” was define d as including “any rig hts and claims arising from the Property .” Dee ds of trust that cre ated the liens on the borrowe rs’ proper

ties, which s er v ed as collater al for the assig ned notes and which would not have exis ted in the absenc e of the notes, “support the pay ment” of or “ar ise from” the notes. I n the Assignme nt of Note, NCFM further ag ree d to “deliver any . . . documents or instruments evidenc ing the” collatera l, to “execute all item s as nece ssary to ref lect [ Firstmar

k’s] secur ity interest,” and t o “do wh atever [Firstmark] require d to protec t [Firstmark’s] secur ity interest.” There fore , both the L oan Ag ree ment and the Assignme nt of Note support the rig ht of Firstmar k t o re q u i re NC FM to assig n the deeds of trust, and that require ment was not a materia l altera tion. See Griffin , 374 S.W .3d at 478; Attayi , 745 S.W .2d at 944.

Whil e assig nments are considere d contra cts betwee n the assig nor and assig nee, see D Design Holdings, L.P. v. MMP Corp. , 339 S.W .3d 19 5 , 2 0 0

– 0 1 (Tex. App.—Dallas 2011, no pet.), we are not convince d that t h e assig nments of the deeds of trust wer e separ ate contra cts, as Newma n arg ues. Rather, they wer e “additional documentation” executed as Firstmar k deter mined

nece ssary to “per fec t, continue, and prese rve” Firstmar k’s exis ting liens on its exis ting collater al under the loan documents. They “ar ise from” the assig ned notes and would not have exis ted but for the notes. “Unde r g ener ally acc epted principles of c ontrac t interpreta tion, all writings that per

tain
to the same transac tion will be considere d toge ther, even if they wer e executed at differ ent times and

11do not expressly ref er to one another .” Id. at 201. Construing all of the loan doc uments toge ther, harmonizing them, and assuming the parties i n t en d ed ever y provision to have some eff ect, we conclude that the assig nments of the deeds of trust wer e contemplated and that Firstmar k was authorized to r equire them as additional documentation in its discretion. See Dorsett , 164 S.W .3d
at 662; D Design Holdings , 339 S.W .3d at 202 (construing contra ct and assig nment toge ther and holding that assig nment applied to rents alre ady acc rued as well as to rents to acc rue in future despite lack of express ref

ere nce to r ents ac crue d in past). Even if we wer e t o co n s t rue the assig nments of the deeds of trust as separ ate contra cts, Newma

n offe rs no authority for the proposition that written contra cts such as assig nments

are not “docume nts” that Firstmar k, in its discretion under the terms of the L oan Ag ree ment, could require

. Nor does he cite any authority t h at s u pports his arg ument that the deeds of trust wer e

5 NCFM’s “ separ ate pr operty .” I n fac t, if the dee ds of trust wer e NCF M’s proper ty , NCFM would 6 have been able to for ec l o s e on the deeds of trust and deprive Firstmar k of collater al to secur e the
notes. See Morlock, L.L.C

. v. Bank of N. Y

. , 448 S.W .3d 514, 518 (Tex. App.—Houston [1st Dist.] 2014, pet. filed) (re fer

ring to sever ability of note and deed of trust and rule that deed of trust may be enfor ced by mortgage e re gardle ss of whether mortg ag ee also holds note). Construing the loan

Newma n cites D Design Holdings, L.P. v. MMP Corp. , 339 S.W .3d 195, 200–01 (Tex. 5 App.—Dallas 2011, no pet.), which holds that an assig nment is a contra ct but does not hold that an assig nment is not a “docume nt” or c annot be “ additional documentation.”

Newman’s relianc e on Stephens v. LPP Mortgage, Ltd. , 316 S.W .3d 742, 747 (T ex . 6 App.—Austin 2010, pet. denied) in support of hi s arg ument that th e d ee d s o f t rust wer e NCFM’s “sepa rate proper

ty ” constituting “sepa

rate bundles of rig hts” is misplace d. I n Stephens , this Court mere ly rea ffirme d the principle that a cre ditor can file suit to establish liability on a promissory note withou t wa i v ing its rig ht to fore close later under the deed of trust. See id. Stephens offe rs no support for Ne wman’s c ontention that the deeds of trust were NCFM’s “ separ ate pr operty .” 12documents as a whole, we cannot conclude that the parties intended such a re sult. See F rost Nat’l Bank , 165 S.W .3d at 311–12; Crews , 898 S.W .2d at 789. As for the chec klist of items require d for a draw request, al t h o ug h it did not expressly include assignment of deeds of trust, it did include a require ment for “Assig nment of L ien” for “Exist ing Notes Rece ivables,” and there is nothing in the loan documents to indicate the chec klist could not be expanded. Firstmar k does not dispute that it did not orig inally require assig nment of the deeds of trust; howeve r, the L oan Ag ree ment provided that Firstma rk ’s forbe ara nce from the exercise of any of its rig hts under the ag ree ment did not constitute waiver of those ri gh t s . We conclude that Newma n did not cre ate a g enuine issue of materia l fac t as to his aff

irmative defe nse of materia l altera tion and overr ule Newma

n’s fifth issue.

Summ ary Judgm ent on Newm an’s Counterclaim s

I n his six th issue, Newma n arg ues that Firstmar

k did n o t conclusively neg ate an essential element o f al l o f Newma n’s counter claims or prove ever y element of its aff

irmative defe nses to his counter claims. Newma n asser ted counter claims for fra

ud in the inducement, fra

ud by nondisclosure, and neg lige nt misrepre sentation and soug ht a decla ratory judgme nt that the Guar anty is void. Firstmar k asser ted by way of aff

irmative defe nse, and arg ues on appea l, that the 7
counter claim for neg lige nt misrepre sentation is barr ed b y the applicable s tatute of limit ations and that the fra

ud-base d counter claims are prec luded by Newma n’s disclaimer of relianc e in the Guar anty . We ag ree .

Although Newma

n states that he also asser

ted a counter claim for tortious interfe renc e, the 7 rec ord contains no evidenc e that he filed such a counter claim

. Fu rt h er , the record reflec ts that he asser ted a counter claim for an acc ounting, which he does not raise on appea l. Newma n has there fore waived his c omplaints on appeal a s to these counter claims. See Tex. R. App. P . 33.1, 38.1(i). 13Negligent Misrepresentation Newma n alleg ed that Firstmar

k made materia l repr esenta t i o n s conce rning its experience in war ehouse lending and who would hold the deeds of trust on which he relied when he ag ree d to sign the Guar anty

. The statute of limit ations for neg lige nt misrepre sentation is two y ear s. Tex. Civ. Prac. & Rem. Code § 16.003(a) ; Exx on Corp. v. Emerald Oil & Gas Co. , 348 S.W .3d 194, 202 (Tex. 2011). The repr esenta tions forming the basis of Newma n’s counter claims—on which he alleg es he re l i ed in enter ing the ag ree ment—nece ssarily occur red on or befor e the date the loan documents wer e ex ec u t ed, which was September 9, 2008. Newma n filed his counter claims on October 18, 2013, more than five y ear s afte r the date of the alleg ed misrepre sentations. His
counte rc l ai m fo r neg lige nt misrepre sentation is there fore barr ed by the statute of limit ations, see Exx on C o r

p . , 348 S.W .3d at 202, and the trial court did not err in g ranting summary judgme nt in favor of F irstmark on Ne wman’s c ounterc laim for neg lige nt misreprese ntation.

Fraud in the Induce ment and Fraud by Nondisclosure I n his fra udulent inducement counter claim, Newma n alleg ed that Firstmar

k made materia l repr esenta tions to induce him to g uara ntee the NCFM loan but did not specify the alleg ed misrepre sentations. I n his fr aud by nondisclosure counter claim, Newma n alleg ed that Firstmar

k fail ed t o d i s close its lack of experience with commerc ial war ehouse lending

. The statute of limit ations for a fra

ud action is four y ear s. Tex. Civ. Prac. & R em . C o d e § 1 6.004(a) (4); Exx on Corp. , 348 S.W .3d at 202, 216. The statute of limit ations for fra ud beg ins to run from the time the par t y knew of the misrepre sentation. Exx on Corp. , 348 S.W .3d at 216. Newma n arg ues that his fra ud claims d i d n o t accrue until less than four y ear s befor e he asser ted his claims. Although

14Firstmar

k disputes that arg umen t, it a ls o contends that the fra ud-base d counter claims are nonetheless barr ed by the disclaimer of relianc e contained in the Guar anty

. Assuming without deciding that the
statut e o f limit ations does not bar Newma n’s fra ud claims, we ag ree with Firstmar k that the disclaimer of

relianc e does. Reliance by the party asser ting fra ud is an element of both fra udulent inducement and fra ud by nondisclosure. See In r e In t er national Profit Assocs., Inc. , 274 S.W .3d 672, 678 (Tex. 2009) (orig

. proce eding ) (per curia m) (fr audulent inducement) ; Schlumberge r T ech. Corp. v. Sw anson , 959 S.W .2d 171, 1 7 9 (T ex . 1 9 97) (fraud by nondisclosure); W ise v. SR Dallas, LLC , 436 S.W .3d 402, 409 (T ex . Ap p.—Dallas 2014, no pet.) (fr aud by nondisclosure). A party to a transac tion may contra ctually ag ree to waive relianc e on another party ’s stat ements. See Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am. , 341 S.W .3d 323, 332 (Tex. 2011). “The
contra ct and the circ umstances surrounding its formation deter mine whether the disclai m er o f relianc e is binding.” Schlumberge r , 959 S.W .2d at 179. To be enfor cea ble, a contra ctual disclaimer of relianc e m u s t co ntain lang uag e that is clea r and unequivoca l. Italian Cowboy Partners , 341 S.W .3d at 331, 333–34, 336. This is a threshold require ment; if it is not satisfied, the disclaimer i s i nvalid. Id. at 331–36 & n.8. I f the clar ity require ment is satisfied, four extrinsi c fa ct o rs ar e considere d: whether (1) the terms of the contra ct wer e neg otiated rathe r than boilerplate, and during neg otiations the parties specific ally discussed the issue that has become the topic of the subsequent dispute; (2) the complaining party was repr esente d by counsel; (3) the parties dealt with eac h other
at arms’ l en gt h ; an d (4) the parties wer e knowledg eable in business matters

. Forest Oil Corp.

v. McAllen , 268 S.W .3d 51, 60 (Tex. 2008) (cla rify ing fac tors that s h o u l d gu i d e decision on

15enfor cea

bility of disclaimer of relianc e); Texas S t a n d a r d Oil & Gas, L.P. v. Frankel Offshore Energy, Inc. , 394 S.W .3d 7 53, 763 (Tex. App.—Houston [14t h Dist.] 2012, no pet.) (discussing Texas Supreme Court’s clar ification in Forest Oil of fac tors to be considere d). Whether a disclaimer of relianc e is adequate to neg ate asser tion of fra ud as a defe nse is a question of law. Italian Cowboy Partners , 341 S.W .3d at 333; Leibovitz v. Sequoia Real Estate H o ld ings, L.P. , No. 05-14-00125- CV,

___ S.W .3d ___, 2 0 15 Tex. App. L EXI S 5512, at *16–17 (Tex. App.—Dallas May 29, 2015, no pet. h.). A clea

r and unequ ivocal disclaimer of relianc e g ener ally contains a form of the word “re ly .” See, e.g . , F o r est Oil , 268 S.W .3d at 57, 60 (disclaimer of relianc e containing word “re ly ing” was clea r and unequivoca l) ; B er r y v. Encore Bank , No. 01-14-00246- CV, 2015 Tex. App. L EXI S 5551 , at *26 (Tex. App.—Houston [1st Dist.] J une 2, 2015, no pet. h.) (mem. op.) ( same). H ere , the Guar anty contained the following provision: [Newman] f

urther repr esent[s] and wa rra nt[ s] t hat [Newman has] not relied on any repr esenta tions or omissions from [Firstmark] or any information provided by [Firstmark] respe cting the Bor rowe r, the Bor

rowe r’s financ ial condition and exis ting indebtedn e s s , th e B orrowe r’s authority to borrow, or the Bor rowe r’s use and intended use of a ll Debt proce eds.
Thus, the terms of the Guar anty clea rly and unequivoca lly state that Newma n waived relianc e on any repr esenta tion or omissi ons by Firstmar k. The first extrinsi c fac tor asks whether the terms of the Guar anty wer e neg otiated. I n his counter clai m , Ne wm an stated that the loan documents wer e executed “af ter more than four months of ne g otiation.” Newma n’s own statement indicates that substantial ne g otiations a s to the

16terms of the loan documents occur red. There fore , the rec ord ref lects that the terms of the ag ree ment

wer e neg otiated and wer e not me rely boilerplate. As for the second prong of this fac tor, there was

no summary judgme nt e vidence conce rning whether the parties “discussed the issue[s] that ha[ve] become the topic of subsequent dispute.” See Forest Oil , 268 S.W .3d at 60 (identify ing as second prong whether parties specific ally discussed issue that has become topic of subsequent dispute). The topics of dispute wer e who, under the terms of the loan documents, was to r etain the deeds of trust and whether Fi rs tmark failed to disclose its lack of experience in war ehouse lending

. Newma n’s only alleg ations reg arding who was to reta in the deeds of trust wer e contained in his neg lige nt misrepre sentation counter claim, whi ch is barr ed by the statute of limit ations. Consequently , this fac tor weig hs in favor of enfor ceme nt, at least as to Newma n’s claims reg arding the deeds of trust, the ce ntral issue in this case.

The next fac tor asks whether the g uara ntor was repr esente d by counsel. There is no indication in the rec ord that Newma n was repr esente d by counsel. This fac tor there fore weig hs in favor of Newman. See Berry , 2015 Tex. App. L EXI S 5551 , at *26 (whe re there was no evidenc e in rec ord as to whether parties neg otiated terms, fac tor weig hed in favor of g uara ntor). Nex t we consider whether t he loan documents resulted from an arms’ leng th transac tion. Newma n is an experience d commerc ial mortg ag e lender , and Firstmar k is an established cre dit union. The parties’ ag ree ment was a $5 milli on transac tion. I t appea rs from the rec ord that all aspec ts of the transac tion

wer e consistent with an arms’ leng th rela tionship. This fac tor weig hs in favor of enfor ceme nt of the disclaimer. The final fac tor is whether Newma n was knowledg eable in business matters. Newma n

17was the manag er of NCFM, a commerc ial mortg ag e lender, an d wa s ex perie nced in war ehouse

lending , the ty

pe of tra nsaction at issue. This fa ctor we ighs in fa vor of e nforc ement. I n sum, two of the fou r ex t ri n s ic fac tors favor enfor ceme nt, and a third favor s enfor ceme nt at l ea s t i n p art. “[I ]t is unnece ssary to satisfy eac h fac tor when the parties’ intent to prec lude a fraud claim is clea r and unequivoca l and a sufficie nt number of fac tors are satisfied to meet the public policy conce rns expressed in Schlumberge r and its prog eny .” Allen v. Dev on Energy Holdings, L.L.C

. , 367 S.W .3d 355, 384 (Tex. App.—Houston [1st Dist.] 2012, pet. g rante d, judgm’ t

vacated w.r.m.). This was a commerc ial transac tion betwee n sophisticated parties who neg otiated 8
at arms’ leng th a

n ag ree ment that contained a clea r and unequivoca l disc laimer. The clar ity of the disclaimer and the s ophistication of t he parties meet the public policy conce rn that a pa

rty be able
to understand the terms of the di s claimer. See id. at 385 (stating that fac tors of clar ity , sophistication, and repr es en t at i o n by counsel focus on public policy conce rn that party be able to understand terms of disclaimer)

. The arms’ leng th transac tion and the neg otiation of terms addre ss the public policy conce rn that a party be able “t o al t er t h e disclaimer’ s terms so that a party voluntarily surre nders its rig hts to a fra ud claim.” Id. ; see Fore

st Oil , 268 S.W .3d at 58 (enf orcing “fr eely neg otiated” disclaimer) ; Sch lu m berger , 959 S.W .2d at 179 (stating that parties should be able
to “bar g ain for” ag ree ment that prec ludes further disputes betwee n them). There fore , we conclude that the totality of circ umstances supports enfor cing the disclaimer and that Newma n contra ctually disclaimed relianc e on any repr esenta tions or omissions made by Firstmar k reg arding its experience

See Tex. R. App. P . 56.3 (noting that intermediate appellate opinions retain pre cede ntial 8 value e ven if c ase is dismissed as re sult of settlement followingfiling of petition for discre tionary revie w unless orde r of Te x as Supreme Court spe cifica lly provides other

wise). 18or t h e t er m s o f the l oan documents so as t o prec lude hi s counter claims for fraudulent inducement

and fra ud b y nondisclosure. See Forest Oil , 268 S.W .3d at 61 (conc luding that wher e all fac tor s we re prese nt, disclaimer of relianc e prec luded fra udulent inducement claim); Berry , 2015 Tex. App. L E XIS 5 5 5 1 , at *28–29 (upholding summary judgme nt in favor of g uara ntee on claim of neg lige nt misrepre sentation wher e three of four ex tr i n s i c fa ct ors favored enforc ement of disclaimer of relianc e); cf. Devon Energy , 367 S.W .3d at 384–85 (declining to enforc e dis claimer under totalit y of circumstance s wher e factors favoring enfor ceme nt addre ssed p o l icy conce rn t hat parties be able to understand terms, but no fac tor that addre ssed party ’s ability to alter terms favor ed enfor ceme nt). Acc ording ly , the trial court did not err in g ranting s u m m ar y j udg ment in favor of Firstmar k on Newma

n’s counter claims for f

raud in the induc ement and f raud by nondisclosure.

Dec laratory Judgment Newma n soug ht a decla

ration that “the Guar anty is void and that his obliga tions wer e rele ased due to Firstmar k’s actions.” See Tex. Civ. Prac. & Rem. Code § 37

. 0 0 4 (a ) (p er son interested unde r written c ontrac t may have de termined que stion of construction or validit y arising under contra ct). On appea l, Newma n states that his “rig ht to rema n d o n h i s d eriva

tive claim for decla ratory relief is conting ent on preva iling on an issue above.” Having deter mined that Newma

n does not preva il on any of the issues discussed above, we further conclude that the trial court did not

err in g ranting summary judgme nt in favor of Firstmar k on Newma

n’s counter claim for decla ratory relief , which raised the same issues addre ssed by the parties’ other claims. See Universal Printing Co. v. Premie r Victorian Homes, Inc

. , 73 SW .3d 283, 296 (Tex. App.—Houston [1s t Dist.] 2001, pet. denied) (“The re is no basis for declar atory relief when a party is seeking in t h e s am e ac t ion a

19differ ent, enfor cea ble reme dy , and a judicial decla ration would ad d n o t hing to what would be implicit or express in a final judgme nt for the enfor cea ble reme dy .”). We overr

ule Newma

n’s six th issue. 9

CONCLUSION

Having overr

uled Newman’s is sues, we affir m the trial court’s summary judgme nt in favor of

Firstmar k.

__________________________________________ Melissa Goodwin, Jus tice

Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med Filed: Aug ust 21, 2015

I n his first issue, Newma

n asser ts g ener ally that the trial court err ed in g ranting summary 9 judgme nt in favor of Firstmar k. Be cause that arg ument is subsumed in issues four throug h six , we overr ule New man’s first issue. 20