*1 appellant’s the trial court in religious appellant’s probation activi- cation of was an abuse every ties also attended discretion and should be necessary action reversed. appellant to work outside his mother’s home: respectfully dissent. work, riding of a bus to entering the building, working building, inside the an-
swering phone, leaving building,
traveling home. reading
After question- the entire line of
ing, appellant it is clear job looked for a could not find one. When asked about his ASHCRAFT, Appellant, W.R. religious activities, appellant indicated he days witnessed two out of the week. He did perform any religious activities the other LOOKADOO, Appellee. Donald E. days five of the week. Because he could not No. 05-95-01211-CV. job, appellant find a had no income with pay which to requisite spec- costs. Mere Texas, Appeals Court of ulation on the State’s majority’s part and the Dallas. appellant may have been able to obtain a Aug. job at a nursing home is insufficient to defeat appellant’s defense inability pay.
In summary, nothing appel- controverted testimony
lant’s concerning his attendance at community agencies employment
guidance and job his search for a under his
physical handicap and the strict limitations of probation. fact, In produced the State
anot scintilla of appellant had
income or a realistic opportunity gain em-
ployment without violating stringent con- probation. such,
ditions of his As the State prove by
failed to preponderance a appellant
evidence that intentionally failed to
pay his fees and costs. conclusion, probationer when a has nev-
er appointment missed an probation with his
officer and has answered all the officer’s
questions relating to the conditions of his
probation to the extent knowledge, of his probation
trial court’s revocation of for fail- report
ure to supported by prepon- is not evidence, therefore,
derance of the con- Smith,
stitutes an abuse of discretion.
S.W.2d at 282. The State also failed to
by preponderance ap- of the evidence that
pellant intentionally costs, pay failed to
fine, and fees. Because the State failed to
prove by preponderance of the evidence appellant intentionally violated the con- probation,
ditions of his the trial court’s revo- *2 Pridavka, Pridavka,
Gary Spencer and P.C., Dallas, appellant. Dallas, Whittmore, appel-
Gregory A. lee.
OPINION HANKINSON, Justice. purchased deficiency Ashcraft a note
W.R. Company. The from the Resolution Trust whether, principal presented here is issue deficiency, purchased when he Ashcraft E. Donald acquired also note, ty, so that which secured the guaranty’s owner could became According against enforce it Lookadoo. transaction, governing the contract agreed Later, successfully RTC transfer to bid on deficiency deficiency at an auction. Be- any supporting docu- Ashcraft, auction, words, fore the his own file. ments located the asset diligence” “due and reviewed the concedes that the asset file received from *3 pertaining deficiency. asset file the note RTC not the did contain Lookadoo’s Although not recall in Ashcraft could detail ty expressly and that the RTC never as- contents, loan at trial he the file’s stated with signed argues to him. But he certainty copy not include a that, trial, nonjury after a the trial court guaranty. examining Lookadoo’s After the erroneously concluded from these facts that (which asset file and note referenced Looka- the RTC did not guar- transfer the Lookadoo guaranty), Ashcraft neither doo’s asked anty to him and he does not own it. any guaranties requested copy about nor a Instead, Ashcraft asks us assume that Instead, them from the RTC. without ever the assigned when him the discussing guar- the RTC whether deficiency, impliedly assigned it also him existed, winning anties he submitted the bid guaranty. reviewing Lookadoo’s After the signed and a document entitled Purchase and contract, parties’ we conclude Agreement. Sale did not the to Ashcraft. Af- evidence, Agreement reviewing gov- Purchase and Sale ter the we further con- parties’ erned the transaction. Under the prove clude Ashcraft did not terms, agreement’s only Ashcraft received even held the and was therefore the assets described in the asset schedule. capable of assigning it to Ashcraft. Conse- Later, the a Bill RTC issued Ashcraft of Sale quently, Ashcraft failed to that he was purchased that listed the asset a as the owner and holder of the We on deficiency commercial the note and for- affirm therefore judgment. trial court’s him. warded asset file to This file con- (attached agreement, tained the loan BACKGROUND affidavit), as an exhibit to a lost note In Savings United Joint Venture exe- trust, modification. deed and the The loan $1,500,000, a promissory pay- cuted note for file contained neither the nor a Metropolitan able to & Loan Savings Associ- of Lookadoo’s Real property ation. located downtown loan turned the file over to his partially Fort Worth secured the note. Al- attorney Although for collection. he did not though the note recites that Preston M. Car- physically possess any guaranties, Ashcraft ter, Jr., Kincaid, Douglas H. and Lookadoo Carter, Kincaid, Lookadoo, sued and as personal guaranties executed securing the note, deficiency. antors of the for the Be- note, it does not guaranties’ recite the terms. bankruptcy proceedings discharged cause parties In consensually modified debts, Kincaid’s and Carter’s Ashcraft non- and extended the note. Thus, trial sought suited them. only to collect on Af- Metropolitan In after placing in re- trial, ter bench the court entered a take- ceivership, the RTC declared note to be nothing favor, judgment in Lookadoo’s issued default, trustee, appointed a substitute findings of fact and conclusions posted property for foreclosure sale. that because Ashcraft was not determined The substitute trustee foreclosed the owner of the he could not en- $397,100. property and sold it for After appeal it. This force followed. crediting the proceeds foreclosure to the sum $1,048,922.39 default, error, due on the note at re- In points fifteen Ashcraft chal- lenges mained due. of facts1 findings certain and eonclu- challenges following findings: partici- 1. Ashcraft fact 10. In the Fall of W.R. Ashcraft pated by in an auction the RTC and was held terms, According to its lender could the successful the Note. bidder for guaranties Property look the Purchase and Under the terms of Sale satisfy secured Deed of Trust Agreement, obligation pro- Ashcraft had indebtedness. assignments any judg- vide written findings court’s supporting deter- trial fact of law2 in which trial court sions sale, reviewing legal we do when factual the terms mined that under sufficiency supporting impliedly assigned not expressly RTC had And, special Ashcraft; jury’s to a issue.4 therefore, answer judgment may not our for the substitute fact the owner and could not finder’s, though, reviewing after even specifically Although it. enforce does evidence, reach different we would conclu- challenge supporting the trial the evidence This trial court sion.5 is so because the findings, fact we assume that court’s judge credibility sole of the witnesses’ together points We intent. will discuss given testimony.6 weight and the to be their necessary disposition of of error to our final contrast, reviewing the trial when court’s appeal. *4 conclusions, indepen- them legal evaluate we dently the reviewing legal trial and thus review conclusions When the court’s solely to deter- findings of of drawn the facts found fact and conclusions the Keeping these stan- findings dignity the same mine their correctness.7 fact have force and mind, in now the jury’s special dards we examine evidence as a verdict on issues.3 We reviewing supports findings trial court’s fact apply the the that the same standards sufficiency validity legal the of its conclusions. legal or factual of the evidence ments, collateral, Guaranty No the other c. of or interests of given by the RTC. the Assets under the Purchase and Sale was to Ashcraft sold express assignment Guaranty Agreement. d. No of the by given 17. did not receive the or a to Ashcraft the RTC. Carter, Guaranty. guaranties of the of Kin- Messrs. e. Ashcraft does not have the caid, the language or Lookadoo from RTC. and Sale 6. Purchase memory support Agreement implied 26. had little Lookadoo events will not regarding Guaranty the involv- the loan or transactions of with ment the the Note. stated, ing executing Although expressly language the loan. He not remember 7. not the Note, Agreement, Guaranty implies the Deed the Loan the the does not of matically that it auto- capacity applies. Trust and the it the Modification in follow the Note to which partner partnership general 8. an essential ele- Ashcraft failed action; manager executing served as or a that he is the venture ment his cause Guaranty. an individual the or the Modification in owner and holder of Lookadoo capacity. identify signatures not He could 681, Note, Equip. Leasing, 3. FDIC 854 S.W.2d v.F & A Agreement, the Deed on the Loan 1993, writ); Trust, Corp. (Tex.App.—Dallas MJR Guaranty 684 or as Modification his 4, Co., (Tex. Vending 760 10 v. B & B S.W.2d signing the doc- because did not remember 1988, denied). App.—Dallas writ signature changed uments and because has intervening years. ten 672, (Tex. present- Baker, 32. The finds that the evidence Court v. 674-75 4. Baker 719 S.W.2d 1986, writ); ed does not that-Ashcraft received the App.—Fort establish Cain Worth see v. Guaranty Bain, (describ part (Tex.1986) a sale and transfer of as 176 S.W.2d Note, by separate assignment review); or an sufficiency ing standard for factual FDIC, express assignment. (describing at 685 standard S.W.2d language review). that sufficiency 33. The Court finds legal support Agreement will not Purchase and Sale implied Guaranty FDIC, 684-85; at Essex Crane 854 S.W.2d the Note. Corp. Rental v. Striland Constr. (Tex.App.—Dallas writ de- 755-56 challenges following conclusions 2.Ashcraft nied). of law: FDIC, 684; Clancy v. Zale express provision, a 4. Absent an is (Tex.App.—Dallas Corp., 705 S.W.2d buyer a note since the not transferable to n.r.e.). writ ref'd buyer party original guaranty is contract. Trustees, Morning v. presented 7. Dallas News Board of 5. The at trial does not (Tex.App.—Dallas Guaranty S.W.2d writ establish Ashcraft received the that Bludworth, denied); part of the Note. Mercer as the sale transfer (Tex.App.—Houston writ [1st Dist.] a. The sold what in the Asset File. RTC n.r.e.), hy grounds among Shum docu- ref’d overruled b. The was not way Corp., Credit
ments that Ashcraft received from RTC Horizon 1991). (Tex. after the sale.
9H
deficiency
“only
that
collectible
DISCUSSION
through
guaranties.”
Ac-
enforcement
here is
determinative issue raised
cordingly,
urges
imply
us
that
whether Ashcraft owns the
assigned
also
the Lookadoo
trial,
appeal,
can
it. At
thus
enforce
and on
ty
deficiency
purchased
to ensure that the
parties
diametrically
posi-
take
opposed
valueless.
parties
is not rendered
But the
tions. Lookadoo contends that
to answer
contract,
lack
here
their own
and we
made
question
only
we can look
terms of
power
vary
protect
those terms to
one
Agreement
gov-
Purchase
Sale
that
the unforeseen
consequences
of them from
agree-
transaction.
erns this
Because the
agreement.8
their
express provisions describing
ment contains
purchased
asset
from the
do
Further,
“implied provisions
not mention Lookadoo’s
Lookadoo
agreements
by
law.”9
are
favored
argues
we
imply
cannot
permit
parties
We
so
them
when the
assigned
contrast,
clearly contemplated
implied provision
argues
need neither
nor be
consider
unnecessary
they
expressing
deemed
parties’
constrained
terms of the
inferring
provision
necessary
when
agreement. Ashcraft
the sale
contends that
agreement’s
purpose
effectuate
full
irrelevant
and would have us
*5
gathered from the written
But
instrument.10
pronounce
sweepingly
assignment
that the
enough
implied provision
“it is not
that an
automatically
operates
note
as an
necessary
agreement
to make an
fair or
any separate guaranties
ment of
that secure
provision
agreement
without
would
such
regardless
party
of whether either
unwise,
improvident,
unjust;
be
or
im
about,
possessed,
knew
the guaranty.
plied provision
presumed
must arise from the
No
court
accepted
Texas
has addressed or
parties
gathered
intent of
argument,
Ashcraft’s
and the court below
a whole.”11
cannot
instrument as
And we
court,
accept
adopt-
refused to
it. The trial
express
imply
opposition
“terms
to the
ing
approach,
inquiry
confined
parties
language that
have
themselves
to the
the transaction
between
written into the contracts.”12
RTC and Ashcraft and
that based
concluded
terms,
agreement’s
on the
the RTC
case,
In
the terms
this
of the contract
guaranty Ashcraft,
to
Ashcraft did
(the
at
Agreement)
issue
Purchase and Sale
the guaranty,
not receive
and he therefore
define what
RTC
to
Ini
sold Ashcraft.
failed to
that he was the owner and
recitals,
tially, in the
it “is
RTC states
holder
Based on our review
Assets,
certain
the owner of
as defined be
presented
court,
of the evidence
to the trial
low,
to
and wishes
sell such Assets.” The
properly
we conclude that
the trial court
agreement
“any
then defines “assets” as
interpreted the terms of the
and the
sale
Off,
Charge
Deficiency
de
Judgment
it
implied
evidence before
any
foreclose
the Asset
Final
scribed on
Schedule or the
assignment of the guaranty.
any
Asset Schedule” and includes
related
appeal,
2.1,
In
“[t]he
On
Ashcraft claims that
escrow accounts.
section
the RTC
right
agreed
agreed
buy
RTC
the defi
and Ashcraft
[him]
sold
to collect
to sell
ciency
remaining
amount
on the note” and
“the
Assets described
the Asset Schedule.”
Id.;
Ashy,
County
8.
Deputies’
See Provident Fire Ins. Co. v.
139 Tex.
11.
see El Paso
Sheriffs
339-40,
684,
(1942).
(Tex.
162 S.W.2d
687
Samaniego, 802
Ass'n v.
S.W.2d
denied) ("Courts
App.—El
writ
can
Paso
Television, Inc.,
9.
v. D.F.W.
Thornton
Christian
import
implication
something
a writ
into
1995) (cit
(Tex.App.—Dallas
merely
might
ten instrument
because it
seem
Russell,
(Tex.
ing Sumrall v.
255 S.W.
agreement may appear
operate unjustly.”).
Civ.App.—El
w.o.j.)),
Paso
writ dism’d
(Tex.
grounds,
rev'd
other
the note to Ashcraft.19 He therefore did not Worth right 1986, writ)); had proof establish the party is the expressly or im- either possession payee, guaran named had pliedly. produced court, ty, it in and it into offered (see, objection e.g., Schubig evidence without points appellant’s We overrule of error one Investors, Realty Newport er v. First ten, three, through through eight, five and (Tex. Civ.App.—Dallas disposi- through Due to our twelve fourteen. n.r.e.)). ref 'd writ error, points tion of these we need not remaining points appellant’s reach of error.20 Bank, In Gotcher Lamar State judgment. the trial We affirm court’s appeals Beaumont court of reviewed a case clearly in which record demonstrated C.J., KINKEADE, THOMAS, and that the was the and holder of bank owner OVARD, MALONEY, CHAPMAN, question. in guaranties See Gotcher v. WHITTINGTON, JAMES, MORRIS, Bank, Lamar State BRIDGES, JJ., join MOSELEY and n.r.e.). (Tex.App.—Beaumont ref writ 'd majority opinion. contained the follow record Gotcher LAGARDE, J., concurring concurs with ing facts: bank named the notes opinion. payee; possessed guaranties th'e and as court; proved up sig produced them WRIGHT, J., dissenting dissents natures, execution, delivery guar opinion. himself; prof guarantor anties from the LAGARDE, Justice, concurring. the guaranties fered into evidence. See id. I would hold that the issue of whether the findings at 370-71. various detailed operates, of a matter of as a law, fact and conclusions of the trial court law, of a written guarantor was found that the liable general not be resolved need guaranties. bank based on properly case because the trial court found By necessary inference from See id. prove assignee the Note failed fact findings and conclusions of of his claim: that he essential element appeals the court that the bank was held guaranty.1 the owner and holder owner, holder, possessor guar ownership The existence and question. anties in See id. may by: guarantor’s shown admission be case, In this Ashcraft did not (see, e.g., that he executed the guaranty: owner holder Bosler, Ins. Co. v. Travelers executing Lookadoo not admit (Tex.App.—Fort writ de- Worth *8 an anty, provide did not affidavit nied)); copies an affidavit attached sworn copies guaranty, sworn attached to (see, id,.; Hooper e.g., note, payee not the named Trust, 383, Bank Mercantile S.W.2d possession origi- have not writ) 1988, (Tex.App.—San no Antonio produce (bank guaranty, nal Ashcraft did by presenting established court, guaranty in original and Ashcraft of- guaranty and an assistant vice- affidavit copy into fered unsworn president that he bank who stated had objection. The personal evidence over Lookadoo’s knowledge the attached true and following exchanges: copy guaranty); Rhodes v. record reflects the correct Wiman, liability upon at 8. occurrence of conditions See S.W.2d based, 4) perform the failure or refusal to 20. See 90(a). Tex.R.App. P. promise by guarantor. v. Ford Marshall 629, (Tex.App.—Dal- Motor guaranty, a a To recover on suit on Tomaszewicz, writ); las Wiman v. 1) ee the existence and of the note must writ). (Tex.App.—Dallas contract, 2) ownership holder, 3) contract Questions by guaranty, you original Ashcraft’s counsel of Ash- have the didn’t craft copy guaranty, on direct or a Lookadoo’s examination: of Mr. is that correct? Ashcraft, Q. going you Mr. I’m to hand exception folder. And with A. That’s correct. being
these copies here and with exception of this file folder not Questions by counsel of Looka- being Court, hole-punched for the )o: plaintiff’s file folder contains exhibit sheet; summary plain- asset Q. Lookadoo, you Mr. indicated that ais tiffs exhibit the substitute trust- purports what copy xerox to be a deed; plaintiff’s ee’s exhibit 7? Exhibit affidavit; plaintiff’s lost note exhibit A. Yes. agreement; plaintiff’s the loan exhibit Q. right. any All you Do have reason to note; promissory plaintiff’s ex- believe that document that’s been hibit promissory modification of identified as Exhibit 7 is not authen- note; and some other documents. tic? recall, you And can are—is that file Yes, A. I do. everything that the RTC delivered to you other than the bill of sale which reasons, Q. What sir? are those plaintiff’s has been marked exhibit past twenty-five years, A. Over the it has purchase and the agree- and sale practice always my been on ment, plaintiff’s exhibit with re- sign that I ini- spect your purchase of the Looka- every other than page signa- tialed doo loan file? page. ture is, yes. A. believe Q. right. your All what And reason practice,
for that Mr. Lookadoo? Q. you When did become first aware that pages A. I have had shuffled on me copy provid- wasn’t years throughout pages sub- you ed to provided with the documents stituted or deleted or added. by the RTC? Honor, [Counsel for Your Lookadoo]: A. It you seems to me made some men- object grounds. on two exhibit days prior tion of it a my few one, Number it hasn’t been authenticat- deposition. two, it ed. Number is not the question
document. is a as to There therefore, duplicate authenticity; cross-examination, On Lookadoo’s counsel document is admissible under questioning Ashcraft: Rule 10.002[sic] 10.003[sic]. Q. Ashcraft, Mr. you subsequent were Honor, Your I’ll [Counsel Ashcraft]: by [your attorney] [sic] informed my request withdraw admission at he had obtained a just go time and with the line of ty? questioning again re-urge before Yes, A. sir. admission of it. Q. When did did he that—when inform *9 that, you of sir? I Saturday.
A. believe it was on right. All [Counsel Ashcraft]: for Your Q. April That would be 15th? It’s Honor, within I for the move admission of weeks,
the last two isn’t it? plaintiff’s copy [the exhibit 7 anty]. A. That’s correct.
Q. now, prior All right. your objection [Counsel Lookadoo]: And for Same stated,
receiving [your attorney] previously notice from as Your Honor: locating regarding copy original him a has is not here. There been no Well, explanation why it not here. There Your [Counsel Ashcraft]: of is for Hon- or, authenticity. again, testimony—wheth- question a as to its I think is question there fact a er is in true raised Honor, Ashcraft]: for Your [Counsel authenticity, its again, as to Mr. Looka- question why original guaranty] [the of essence, testimony, in doo’s is doesn’t goes ‘possibility is not here anything recall about this transaction. holding the liable on the obli- defendant Now, “Well, coming saying, back he’s admissibility. gation, not as to Un- I’m certain this I one wouldn’t be.” der Texas Business and Commerce Simply, think is incredulous [sic]. talking under Section 3.804 about Code he does not recall. We do have a docu- lost, instruments, destroyed, or it stolen signature. ment bears his He states that “The owner of an instrument any proof doesn’t have that—other than lost, destruction, which is whether his bald statement that it probably isn’t theft, otherwise, may maintain an ac- already his. But he’s testified name tion his own and recover from anything regarding doesn’t recall this any prior party upon hable thereon due transaction. proof oumership, and its terms. you THE And I COURT: take have that, currently, ...” So the fact we have knowledge as to the whereabouts of explained why we don’t have the original? original guaranty good objection is not a for The RTC most [Counsel Ashcraft]: admissibility. ground to its It’s a for likely has knowledge it—that is the denying recovery potentially on this they have—and unable to locate it. provide explana- claim we can unless original THE And COURT: was tion. found where? Honor, for Your [Counsel Lookadoo]: This copy [Counsel for Ashcraft]: that’s what Rules of Evidence found— 1002,1003, respect provide, with to Rule mean, copy. THE COURT: point 1004. Additionally, I’d out to copy for This [Counsel Ashcraft]: particular portion the Court that that original closing binder applies the business and commerce code found Walker, and instruments, Jackson I will negotiable because inform personally that I went Court over “in- business and commerce code defines inspected Jackson and their Walker negotiable strument” as instruments represented know, closing loan which was and, law, ah Texas we under file closing me to loan be their negotiable not a instrument. file original loan. This was made—this Honor, Your for [Counsel Ashcraft]: made, copy was as well as the evidence, again, the rules under we do guaranties tors’ individual the other simply rule. have best evidence We guarantors, and this a true and cor- do not have the document. Under the which came rect document common we do not have the closing out Jackson Walker’s upon of the document. But the best fact, provide loan I will file. have, do do evidence rule we have with the exact documents which Court Mr. guaranty agreement which Looka- file of did obtain from the loan Jackson anything regarding doo does not recall They enough kind and Walker. were so He this transaction. does— me That is to let take those documents. Well, THE COURT: what about 1003? from the document the Jackson Again, that’s [Counsel Ashcraft]: closing they loan re- Walker file arguing, Honor. what was Your trieved archives. it, May I see [Counsel Lookadoo]: Well, THE there has COURT: been Your Honor? authenticity question as to raised *10 original; not it’s for And these other [Counsel Ashcraft]: the whether or valid not, originals tendering I to question raised. which have been there’s been however, Court, again, originals attorney, an those were interested witness. closing obtained from that same file objected loan Lookadoo to the admission of the Therefore, of Jackson and proof Walker. lack of evidence based on of authentici- question authenticity, to its I ty. do not judge within his to was discretion Walker—they evidence; however, believe that Jackson and admit the into have no financial finder, interest or stake fact also free to judge, as the was anything this whatsoever—would do weigh testimony procure- concerning they alter the correct loan which file ownership ment of the the issue of prepared closing time of this file. guaranty. any ques- don’t believe there be could In findings fact and conclusions of they forge signa- tion that raised would law, the trial court concluded that Ashcraft
tures, terms, change anything or do else. prove failed to essential element his They legal obligation are under a claim: that the owner holder of he is and clients; but, only to their under federal guaranty. Lookadoo Ashcraft not chal- does copies to maintain of documents lenge supporting finding by the evidence that that are true and correct. had, finding trial if court. Even Well, THE COURT: for Ash- [counsel any probative must stand if evidence there craft], your representation I’ll take as an Henry supporting it. S. Miller Residential Court, officer of the as I same would Arthur, (Tex. Service testimony under oath. writ). App.—Dallas Concluding support there is the trial court’s Honor, for [Counsel Your Lookadoo]: finding fact Ashcraft failed to here, think have a hearsay problem ishe the owner and holder of the Lookadoo respect with all due [counsel Ash- guaranty, I affirm judgment would testifying craft]. He’s as to what some- trial court. one at Jackson and Walker has told him. Well, THE COURT: without even con- Justice, WRIGHT, dissenting. statements, sidering hearsay Because I conclude in accordance would seems me it’s clear that Suretyship with the Restatement of and circumstances under secondary that a as a believe, liability,2 found indicate obligation, the underlying follows note that it that, even without I’m convinced that secures, I conclude that Ashcraft duplicates I’ll admissible. over- proving he was the owner holder of the objections rule the and admit Exhibit 7 note, agree- absence evidence of guaranty], [the contrary, proved ment to also he was original Ashcraft receive an owner and holder Accord- produced in the RTC file. Ashcraft ingly, respectfully majori- dissent from a copy two before weeks Further, ty opinion. I would reverse the trial, filing long after pleadings. judgment judgment trial court’s and render Lookadoo, testimony did not offer Met- in favor of Ashcraft. ropolitan Walker5, Jackson and showing majority according first concludes that transaction, owner governing and holder Ash- to the contract purchase craft’s attorney agreement, contended that went to the sale file, Jackson loan and Walker obtain the did not to Ashcraft. The that, including copy majority Ashcraft’s Ash- then concludes because light judgment, assignee of the trial court’s the use 4. The first note. "liability” appears typographi- the word abe therefore, error; we, say cal record to read the Metropolitan Attorneys in the loan transac- that the trial court found the "circumstances assignee tion and the RTC as of this later for reliability." under which this was found indicate note. payee 3. The note. holder *11 any secondary obligations to the and owner of prove
craft did not the RTC held the note. prove ty, failed to the was Ashcraft result, it to him. As a capable assigning of If, states, majority guaranty as the the majority failed to the concludes Ashcraft shows evidence trial “at best admitted into holder of prove that he was the owner and 1984,” guaranty’s as of the terms agree guaranty. I cannot with either the the contrary, to I of evidence the absence majority’s holding that Ash- analysis or guaranty of the terms the would conclude prove he was the owner and craft failed to of the executed 1984 remain the terms of guaranty. holder the the introduced When evidence, proved he the terms guaranty into principal of obli- the transfer the Whether guaranty.1 It then became Lookadoo’s of the operates of gation assignment as an that to evidence. See burden controvert impression in guaranty is an issue of first Co., Gregory v. Const. Metrocon Const. Co. notes, Although, majority as the no Texas. (Tex.App.—Dallas argu- Texas court has addressed Ashcraft’s (once n.r.e.) the terms of the con writ ref 'd of assignment ment about automatic established, seeking party to tract have been the Law of guaranty, the Restatement of the contract to modifica avoid effect of due juris- Suretyship and and the proof). of To hold tion bears the burden apply guar- to writing on this issue dictions place negative bur otherwise would be law general anties rule contract that The upon See id. at 465. den Ashcraft. automatically the transfer of a note carries majority requires used assignment with it all collateral I modified. would contract has not been follow, For the secure the note. reasons conclude that Ashcraft introduced jurisdictions I with the agree other showing the when Law the Restatement of the follow executed, to avoid and if Lookadoo seeks Guaranty. disagree with Suretyship and bear the terms should majority we need decide whether been proving terms have burden assignment provides Texas law for automatic Accord extinguished modified. See id. obligation. primary with ingly, majority’s with the conclu disagree case, necessary analysis in this As I view the presented no sion that because evi assignment we must whether the first decide “confirming that dence obligation operates to underlying as- RTC,” was still effect and owned any secondary obligation supporting it. sign prevent of this ease the circumstances Next, we there are must determine whether determining the transfer whether Court agreements prohibiting circumstances or as- automatically assigned secondary signment obligation. analysis Consequently, begin I would that Ashcraft majority concludes proposition guaran this case that the owned the with failed show prin thus, by general and, ty agreements governed anty not determine need Coker, Texas, ciples law. See jurisdictions of contract Coker whether like (Tex.1983); Restatement, Marshall general follows the and the (Tex. 629, 631 Motor assignment under con- Ford principle of automatic writ). A Initially, App.—Dallas disagree. we must tract law. whereby the obligation secondary provides Texas law creates determine whether promises to answer for the debt guarantor automatic perform because, may upon be called if automatic another primary obligation; per Texas, primary obligor failed to has law when Ash- once is the Bank, form. Dann v. Team proved assigned craft writ). RTC, (Tex.App.—Dallas any agreement absence of pri- distinct from a contract contrary, proved the RTC was holder Thus, appeal. do not guaranty into evi- sión of admitted the 1. The trial court authenticity challenge the admis- discuss does not dence. Lookadoo
919
Barr,
mary obligation.
872,
196,
Sav. v.
513
Sunbelt
824
U.S.
115 S.Ct.
rev’d
other
S.W.2d 627
837
the Law of Suretyship
Restatement of
1992). Nonetheless,
is a sec
general
Guaranty applies
principle
ondary obligation
pay
intended to secure the
agreements, reasoning that the
Dann,
primary
ment of the
debt. See
788 secondary obligation
underlying
follows the
S.W.2d
obligation
secondary obligation,
because the
interest,
security
only
like a
has value
as an
Texas,
guaranty agreements are classi
adjunct
underlying
obligation.
Re-
general
special.
as
or
fied
See Cobbv. Texas
SuRetyship
(Third)
statement
& Guaran-
Distrib., Inc.,
(Tex.Civ
342,
524
344
S.W.2d
ty
(1996).
§ 13
f
It
usually
cmt.
can
be
writ).
1975,
.App.—Dallas
general
no
A
person assigning
underly-
assumed that a
an
guaranty operates
person
favor of
who
ing obligation
assign any
to also
intends
sec-
may accept
special guaranty,
it. A
on the
ondary obligation
Thus,
supporting it.
Id.
hand,
only
is
particular
other
available
to the
agreement
contrary
unless there is an
person to whom it is addressed. See id.
assignment
prohibited,
or
is otherwise
as-
rights
assign
General
contract
are
signment
underlying obligation
of the
also
provisions
promise
able unless the
of the
or
Id,
assigns
secondary obligation.
As-
agreement of guaranty manifest the intention
(a)
signment
prohibited
is otherwise
when:
right
rights
that the
or
created shall not be
right
assignee
substitution of a
assigned.
v.
Thompson
See
North Tex. Nat’l
obligee
right
materially
of the
Bank,
(Tex.
735,
37 S.W.2d
738-39
Comm’n
change
duty
secondary obligor
of the
or
App.1931, holding approved); Lexington Ins.
materially increase the burden or risk im-
679,
Gray,
v.Co.
775
(Tex.App.—
682
contract; (b)
posed
by
on it
1989,
denied),
Austin
writ
disapproved on
by
ment is
or
forbidden
statute
is otherwise
grounds by Amberboy
v. Societe de
(c)
public policy;
ineffective as a matter of
Privee,
(Tex.1992).
Banque
Second, ownership must show: the existence and majority rely Lookadoo and on (2) contract; section 3.1 of Agree- the Purchase and the terms Sale ment, (3) provides: holder; which contract upon the conditions lia-
Buyer’s Preparation occurrence of which Assignments. (4) based; Upon bility Agreement, execution of this is the failure refusal it shall Buyer’s responsibility be the prepare perform promise by guarantor. to assignments judgment any Marshall, 878 See S.W.2d at 631. Based judgments all sold hereunder.... In the (1) my conclusions that: absent any assignments event of Seller’s contrary, admitted into evi- any interest in any Assets and col- trial dence at shows securing required, lateral the Assets is it (2) ty; operated the transfer be Buyer’s responsibility prepare shall (3) guaranty; transfer the the terms of the assignment and submit form of the it preclude assign- automatic (emphasis desires to use to the Seller ... (4) ment; intended to transfer added). note, would conclude “clearly Lookadoo contends this addresses that Ashcraft entitled to recover under the separate assignments.” the need for Like- wise, majority concludes 3.1 section Accordingly, I would reverse the trial responsibility to to follow “shifted take-nothing judgment court’s entered in fa- up on the obtain a written issue and judgment vor of Lookadoo and render assignment.” disagree. The issue to be favor of Ashcraft. determined is whether the RTC intended Nothing with the note. provision in this indicates that the RTC did
not intend to transfer simply provides if
provision collateral, required
ment it is responsibility prepare its own
Ashcraft’s and for- language, paperwork,
mat, in the case of the required is not previously execut-
automatic re- agreement. After general guaranty
ed Agreement,
viewing the Purchase Sale agree- not evidence
would conclude does the RTC and Ashcraft
ment between