author: JOHN CAYCE, Chief Justice.

text:
    Anton ANTONOV and Tanev & Son Trucking, Appellants, v. Sonja WALTERS and Shawn Brown, in his Capacity as Chapter 7 Trustee for the Bankruptcy Estate of Delbert and Sonja Walters, Appellees.
    No. 2-04-255-CV.
    Court of Appeals of Texas, Fort Worth.
    June 30, 2005.

      Downs & Stanford, P.C., M. Gaddy Wells, Dallas, TX, for Appellant.
    Wells, Purcell, Kraatz & Brookman, Davis Purcell, Fort Worth, TX, for Appel-lee.
    PANEL A: CAYCE, C.J.; HOLMAN, J.; and SAM J. DAY, J. (Retired, Sitting by Assignment).
   OPINION

JOHN CAYCE, Chief Justice.

Anton Antonov and Tanev & Son Trucking appeal from an adverse judgment for Sonja Walters and Shawn Brown in his capacity as chapter 7 trustee for the bankruptcy estate of Delbert and Sonja Walters. In three issues, appellants complain that the trial court’s judgment is void because Sonja’s lack of standing to sue deprived the trial court of subject matter jurisdiction; the trial court erred by denying appellants’ motion to strike Brown’s intervention in the lawsuit; and the evidence is legally and factually insufficient to support the jury’s damages award for future medical expenses. We will affirm.

On January 31, 2001, Antonov and Sonja were involved in a motor vehicle accident during which Sonja was injured. On September 27, 2001, Sonja and her husband Delbert filed a chapter 7 bankruptcy proceeding. Brown was appointed chapter 7 trustee for the Walterses’ bankruptcy estate. The Walterses listed on their personal property schedule Sonja’s personal injury claims against appellants. On October 25, 2001, the Walterses claimed as exempt from the bankruptcy estate the following claims resulting from the accident: a personal injury claim valued at $17,425 and a “los[t] wages claim” of unlimited value. No objections were made to these exemptions.

Thereafter, on August 15, 2002, Sonja sued appellants for damages she allegedly-sustained in the January 2001 accident. Brown was not a party to the lawsuit when it was filed, nor did he participate in the subsequent trial.

On April 21, 2004, a jury found that Antonov’s negligence had caused the accident and Sonja’s injuries and awarded her $745,790 in past and future damages. Six days later, Brown petitioned for the first time to intervene in the lawsuit on behalf of the bankruptcy estate. Over appellants’ objection, the trial court rendered judgment that appellants were jointly and severally liable to both Sonja and Brown for the full amount of the jury’s verdict plus interest and court costs. The trial court overruled appellants’ postjudgment motions, including a plea to the jurisdiction based on Sonja’s alleged lack of standing and a motion to strike Brown’s intervention, and this appeal followed.

In their first issue, appellants contend that the trial court erred in overruling their plea to the jurisdiction and in refusing to dismiss the case for want of jurisdiction. Appellants assert that Sonja’s lack of standing deprived the trial court of subject matter jurisdiction and rendered its judgment void.

A plaintiff must have standing to bring a lawsuit. The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit to have a justiciable interest in its outcome. A plaintiff has standing when she is personally aggrieved, regardless of whether she is acting with legal authority. Thus, in Texas, the test for standing requires that there be (1) a real controversy between the parties (2) that will be actually determined by the judicial declaration sought. Standing is a component of subject matter jurisdiction and may be raised at any time. We apply a de novo standard of review to the trial court’s determination regarding standing.

When a debtor files a bankruptcy petition, all of her property — including any legal claims that belonged to the debtor before the petition was filed — becomes property of a bankruptcy estate. Once a claim belongs to the bankruptcy estate, the bankruptcy trustee, as the estate representative, has exclusive standing to assert the claim.

Nonetheless, a debtor may file a list of property that the debtor claims is exempt from the bankruptcy estate. Unless a party in interest objects, “the property claimed as exempt on such fist is exempt.” Thereafter, the debtor’s entitlement to the exemption is invulnerable to attack, regardless of whether the debtor had a colorable statutory basis for claiming the exemption. Further, “[i]t is well-settled law that the effect of this self-executing exemption is to remove property from the [bankruptcy] estate and to vest it in the debtor.” These principles apply to both pending and potential causes of action claimed as exempt.

Applying these principles to this case, we hold that Sonja had standing to sue appellants. Sonja was personally aggrieved by the accident and, in October 2001, she fisted as exempt her personal injury and “los[t] wages” claims resulting from the accident. No one ever objected to those exemptions. Therefore, those claims became exempt, were removed from the bankruptcy estate, and were re-vested in Sonja. Once the claims were no longer part of the bankruptcy estate, Sonja had a real, justiciable interest in the outcome of the controversy between her and appellants, which could be actually determined by the judicial declaration she sought when she filed suit in August 2002.

Appellants contend that Sonja “did not claim any part of the personal injury cause of action in her exemptions,” but only her right to receive payment on her claims. To support this contention, appellants point out that Sonja fisted bankruptcy code section 522(d)(ll)(D)-(E) as statutory authority for exempting her claims. These subsections provide that a debtor may exempt from the bankruptcy estate the right to receive payment on account of personal bodily injury and in compensation for loss of future earnings.

Appellants assert that these subsections do not authorize the exemption of a cause of action from the bankruptcy estate, but only authorize the exemption of part of the proceeds from a claim or cause of action after the proceeds have been collected. They contend that, “[w]ith the statutory references to modify the descriptions of her exemptions, no reasonable person would conclude that [Sonja] was claiming the personal injury cause of action itself’ as exempt. They also contend that Sonja could not exempt her cause of action from the bankruptcy estate because neither the Bankruptcy Code nor the Texas Property Code allows a debtor to exempt a cause of action. We disagree.

Sonja described the property she was claiming as exempt as “PI claim for Debt- or Spouse resulting from auto accident; no lawsuit pending at this time. Loss [sic] wages claim resulting from auto accident; no lawsuit pending at this time.” [Emphasis supplied.] “Cause of action” is included within the definition of “claim.” Further, because no lawsuit was pending at the time Sonja claimed the exemptions, we construe her property descriptions as claiming at least part of her cause of action itself as exempt, not merely the right to receive proceeds in the event the trustee chose to sue. Moreover, regardless of whether Sonja had a statutory basis for claiming all or part of her cause of action as exempt, she is entitled to the exemption because no one objected when she claimed it.

For all of these reasons, we hold that Sonja had standing to sue appellants. Therefore, the trial court did not err by overruling appellants’ plea to the jurisdiction challenging Sonja’s standing to sue, and the trial court’s judgment is not void for want of jurisdiction. We overrule appellants’ first issue.

In their second issue, appellants complain that the trial court erred by denying their motion to strike Brown’s post-verdict intervention on behalf of the bankruptcy estate. Appellants assert that the intervention was improper because the statute of limitations had run, Sonja’s suit had not tolled the limitations period as to Brown, and Brown therefore no longer had an enforceable interest to protect.

Any party may intervene by filing a pleading, subject to being stricken by the trial court for sufficient cause. The party opposed to the intervention has the burden to challenge it via a motion to strike. We review a trial court’s ruling on a petition in intervention under an abuse of discretion standard.

Here, regardless of whether limitations had run, Brown had an enforceable interest to protect. When two persons claim an interest in a single cause of action, and one of those persons timely files suit, the remaining party’s intervention in the suit outside the limitations period to protect his interest relates back to the timely-filed suit and is not barred by limitations.

In this case, there was only one cause of action—Sonja’s personal injury claim against appellants—in which both she and Brown, as bankruptcy trustee, claimed an interest. The purpose of Brown’s intervention was to protect the bankruptcy estate’s interest in Sonja’s recovery on her claim against appellants, not to assert an independent cause of action against them. It is undisputed that Sonja’s suit, filed less than two years after the accident, was timely. Therefore, Brown’s intervention related back to Sonja’s timely filing of the suit and is not barred by limitations. Accordingly, we hold that the trial court did not abuse its discretion by overruling appellants’ motion to strike Brown’s petition in intervention. We overrule appellants’ second issue.

In their third issue, appellants challenge the legal and factual sufficiency of the evidence to support the jury’s award of $100,000 for Sonja’s future medical expenses.

In determining a “no evidence” issue, we are to consider only the evidence and inferences that tend to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. That is, we must “credit[] favorable evidence if reasonable jurors could, and disregard[] contrary evidence unless reasonable jurors could not.” Anything more than a scintilla of evidence is legally sufficient to support the finding. More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact.

An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding.

Texas follows the “reasonable probability” rule for damages for future medical expenses. Thus, the plaintiff must show that there is a reasonable probability that such medical expenses will be incurred in the future. Although the preferred practice is to establish future medical expenses through expert medical testimony, no rule requires the plaintiff to establish such expenses through expert testimony or based on a reasonable medical probability. The jury may make its award for future medical care based upon the nature of the plaintiffs injuries, medical care rendered before trial, and the plaintiffs condition at the time of trial.

An award of future medical expenses lies largely within the jury’s discretion. Because issues such as life expectancy, medical advances, and the future costs of products and services are, by their very nature, uncertain, appellate courts are particularly reluctant to disturb a jury’s award of these damages.

In this case, the evidence regarding Sonja’s future medical expenses is as follows:

At the time of trial, Sonja was 49 years old. The record shows that she suffered a minor, but irreversible, brain injury as a result of the accident, which left her functioning just above the level at which someone would be classified as mentally retarded, caused her considerable pain, and required ongoing treatment and medication.

Dr. Arnold J. Morris, Jr., Sonja’s treating physician, and Dr. Andrew William Houtz, a clinical neuropsychologist who had tested Sonja’s cognitive function extensively on three different occasions, both testified regarding the permanent nature of Sonja’s brain injury. Dr. Morris also testified that he had treated Sonja for chronic pain resulting from her brain injury since July of 2001 and was continuing to treat her at the time of trial. In the year before trial, Dr. Morris had seen Sonja slightly more often than once a month (fourteen times), at an average cost of $126.64 per visit. Dr. Morris testified that these medical services were necessary to properly treat Sonja for her injuries and that the charges were reasonable.

In addition, throughout his treatment of Sonja, Dr. Morris had regularly prescribed for her a narcotic for pain, as well as muscle relaxers and anti-anxiety drugs. The medications ranged in price from $51.30 to $134.34 per prescription, and Sonja’s pharmacy records indicate that several of the prescriptions were refilled at least monthly. Dr. Morris testified that Sonja did not function well, that her pain was “prominent,” and that she did not have any way of dealing with it other than through medication. Sonja testified at trial that she was taking two medications prescribed by Dr. Morris four times a day. Dr. Morris testified that the prescriptions were necessary to help relieve the effects of Sonja’s injuries from the accident and that the charges for the medications were reasonable for the area and the dates on which they were prescribed.

Further, the jury awarded Sonja $27,910 for past medical care, or approximately $8,587.69 per year, and appellants do not challenge that finding.

We hold that this evidence of the nature of Sonja’s injuries, her past medical care, and her condition at the time of trial is more than a scintilla of evidence that Sonja will in reasonable probability incur $100,000 in future medical expenses. Moreover, this evidence is not so weak, nor is the evidence to the contrary so overwhelming, that the jury’s finding should be set aside and a new trial ordered. Accordingly, the evidence is legally and factually sufficient to support this element of the jury’s damages award. We overrule appellants’ third issue.

Having overruled all of appellants’ issues, we affirm the trial court’s judgment.

      . Our recitation of the facts is not based on Brown’s affidavit, which is attached to appel-lees’ brief, because that affidavit is not part of the record. See Tex.R.App. P. 38.1(h) (providing that argument must be supported by citations to appellate record); Till v. Thomas, 10 S.W.3d 730, 733 (Tex.App.-Houston [1st Dist.] 1999, no pet.) (stating that appellate court cannot consider documents attached to appellate brief that do not appear in record). At appellees’ request, however, we take judicial notice of the facts set forth in the certified record from the Walterses' bankruptcy proceeding, which appellees have filed as a separate appendix. See Tex.R. Evid. 201(d).

      . Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex.2001).

      . Austin Nursing Ctr. v. Lovato, 48 Tex. Sup. Ct. J. 624, 626, 2005 WL 1124764, at ⅝3 (Tex. May 13, 2005) (citing 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1559, at 441 (2d ed.1990)).

      . Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex.1996). In contrast, capacity is a procedural issue dealing with the personal qualifications of a party to litigate. Austin Nursing Ctr., 48 Tex. Sup. Ct. J. at 626, 2005 WL 1124764, at *3 (citing 6A Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 1559, at 441). A party has capacity when she has the legal authority to act, regardless of whether she has a justiciable interest in the controversy. Nootsie, Ltd., 925 S.W.2d at 661.

      . Id. at 662.

      . Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex.1993); Cadle Co. v. Lobingier, 50 S.W.3d 662, 670 (Tex. App.-Fort Worth 2001, pet. denied).

      . Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); City of Arlington v. Scalf, 117 S.W.3d 345, 347 (Tex.App.-Fort Worth 2003, pet. denied).

      . 11 U.S.C.A. § 541 (West 2004); Taylor v. Freeland & Kronz, 503 U.S. 638, 642, 112 S.Ct. 1644, 1647, 118 L.Ed.2d 280 (1992);
        Douglas v. Delp, 987 S.W.2d 879, 882 (Tex. 1999).

      . 11 U.S.C.A. § 323(a); Douglas, 987 S.W.2d at 882.

      . 11 U.S.C.A. § 522(b), (d) (West 2004 & Supp.2005).

      . Id. § 522(1).

      . Taylor, 503 U.S. at 642-44, 112 S.Ct. at 1647-48; In re Sadkin, 36 F.3d 473, 477 (5th Cir.1994); In re Montgomery, 80 B.R. 385, 388 (Bankr.W.D.Tex.1987).

      . In re Bell, 225 F.3d 203, 215 (2nd Cir.2000); see also Owen v. Owen, 500 U.S. 305, 308, 111 S.Ct. 1833, 1835, 114 L.Ed.2d 350 (1991) ("An exemption is an interest withdrawn from the estate ... for the benefit of the debtor.”).

      . See Taylor, 503 U.S. at 642-44, 112 S.Ct. at 1647-48 (applying exemption to cause of action that was pending when bankruptcy was filed); Sadkin, 36 F.3d at 474, 477-78 (applying exemption to claim that was only a potential cause of action when bankruptcy was filed).

      . See Sadkin, 36 F.3d at 474, 477-78 (holding that debtor’s potential cause of action for lost income due to wrongful garnishment was exempt from bankruptcy estate because no timely objection to exemption was filed). Objections to property claimed as exempt must be made within thirty days after the conclusion of the first meeting of creditors unless the bankruptcy court grants additional time. Fed. R. Bankr.Proc. 4003(b); Taylor, 503 U.S. at 642, 112 S.Ct. at 1647. Here, the first meeting of creditors was held on October 23, 2001.

      . See Owen, 500 U.S. at 308, 111 S.Ct. at 1835; Bell, 225 F.3d at 215.

      . Austin Nursing Ctr., 48 Tex. Sup.Ct. J. at 626, 2005 WL 1124764, at ⅝3; Nootsie, Ltd., 925 S.W.2d at 661.

      . Section 522(d) provides:
      The following property may be exempted
      (11) The debtor’s right to receive, or property that is traceable to — ■
      (D) a payment, not to exceed $18,450, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, ...; or
      (E) a payment in compensation of loss of future earnings of the debtor ... to the extent reasonably necessary for the support of the debtor and any dependent of the debtor.
      11 U.S.C.A. § 522(d)(ll)(D)-(E). At the time of Sonja’s lawsuit, the amount in subsection (D) was only $17,425, which is the value Sonja attached to her personal injury claim on her list of exemptions. See Revision of Certain Dollar Amounts in the Bankruptcy Code Prescribed Under Section 104(B) of the Code, 69 Fed.Reg. 8482-01, 2004 WL 329158 (Feb. 24, 2004).

      . See 11 U.S.C.A. § 522; Tex Prop.Code Ann. ch. 42 (Vernon 2000 & Supp.2004-05).

      . Black’s Law Dictionary 264 (8th ed.2004).

      . See Taylor, 503 U.S. at 642-44, 112 S.Ct. at 1647-48; Sadkin, 36 F.3d at 477; Montgomery, 80 B.R. at 388. Appellants' reliance on Tignor v. Parkinson, 729 F.2d 977 (4th Cir.1984), Douglas, 987 S.W.2d at 882, and Carter v. Carter, 21 S.W.3d 441 (Tex.App.-San Antonio 2000, no pet.) is misplaced. The bankruptcy trustee in Tignor objected to the debtor’s claimed exemption of the settlement proceeds from a personal injuiy claim, and the debtors in Douglas and Carter did not claim any part of their causes of action were exempt from the bankruptcy estate. See Tignor, 729 F.2d at 978; Douglas, 987 S.W.2d at 881-82; Carter, 21 S.W.3d at 444.

      . Tex.R. Civ. P. 60.

      . Id.; Guar. Fed. Sav. Bank v. Horseshoe Op. Co., 793 S.W.2d 652, 657 (Tex.1990).

      . Guar. Fed. Sav. Bank, 793 S.W.2d at 657.

      . See, e.g., Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex.1997) (holding, in worker’s compensation subrogation case, that because there is but one cause of action for employee’s injuries, which belongs to employee, employee’s intervention in compensation carrier’s subrogation suit two years after limitations period had expired was not barred by limitations).

      . See Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon 2002).

      . See Franks, 936 S.W.2d at 960. Rodriguez v. Printone Color Corp., upon which appellants rely, is inapposite because Brown did not seek to assert an independent cause of action against appellants. See 982 S.W.2d 69, 73 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (unpublished text) (holding that trial court did not abuse its discretion by striking petition in intervention of potential coplaintiff whose intervention was simply an attempt to avoid consequences of filing his separate but related causes of action outside limitations period).

      . See Guar. Fed. Sav. Bank, 793 S.W.2d at 657.

      . Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

      . City of Keller v. Wilson, 168 S.W.3d 802, 807, No. 02-1012, 2005 WL 1366509, at *1 (Tex. June 10, 2005).

      . Cont’l Coffee, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996).

      . Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).

      . Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

      . Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).

      . Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 862-63 (Tex.App.-Forl Worth 2003, pet. denied).

      . Id.

      . Id. at 863; see also Pipgras v. Hart, 832 S.W.2d 360, 366 (Tex.App.-Fort Worth 1992, writ denied) (holding that "no precise evidence is required to support an award of future medical damages”).

      . Tagle v. Galvan, 155 S.W.3d 510, 519 (Tex. App.-San Antonio 2004, no pet.).

      . Columbia Med. Ctr., 122 S.W.3d at 863.

      . Sanmina-SCI Corp. v. Ogburn, 153 S.W.3d 639, 642-43 (Tex.App.-Dallas 2004, pet. filed).

      . The period of time between the accident and trial — January 31, 2001 through April 12, 2004 — was just over thirty-nine months.

      . See Cont’l Coffee, 937 S.W.2d at 450; Leitch, 935 S.W.2d at 118; Garza, 395 S.W.2d at 823.


source: Caselaw Access Project

author: Opinion by Justice BRIDGES.

license: Public Domain

text:
    Henry DONALDSON, Appellant, v. DIGITAL GENERAL SYSTEM, Appellee.
    No. 05-03-01794-CV.
    Court of Appeals of Texas, Dallas.
    July 22, 2005.
    Rehearing Overruled Aug. 25, 2005.

      Richard N. Countiss, Countiss Law Firm, Houston, Jody Sheets, Glast, Phillips & Murray, P.C., Dallas, for Appellant.
    William David Dunn, Jeremy Martin, Gardere Wynne Sewell LLP, Dallas, for Appellee.
    Before Justices MORRIS, BRIDGES, and RICHTER.
   OPINION

Opinion by Justice BRIDGES.

Henry Donaldson, former president and chief operating officer of Digital General System (DGS), sued DGS for refusing to honor his alleged right to exercise stock options after he left the company. Donaldson argues that (1) his contract with the company permitted him to exercise the option within one year, not merely three months, after his termination; (2) his failure to submit a written demand to exercise the option was excused by DGS’s actions; and (3) there is no or insufficient evidence to support the take-nothing judgment against him. We affirm the trial court’s judgment.

Facts

DGS is a telecommunications company. In 1993, with Richard Harris as chairman of the board, Donaldson was hired as president and chief executive officer. In 1998, DGS accepted a significant investor, who ultimately put a new management team in place. Donaldson was asked to stay on with the company as chief operating officer during a transition period.

Donaldson negotiated an employment agreement (Employment Agreement) with Harris that provided, among other things, for 150,000 shares of “incentive stock options.” It purports to permit Donaldson to exercise the option up to one year following his termination of employment with the company. Donaldson also executed a related “Incentive Stock Option Agreement” (Option Agreement), effective the same day as the Employment Agreement. The Option Agreement provides only a 30-day period after termination in which to exercise the option. Both are subject to the company’s stock option plan (the Plan), which allows only 30 days after termination in which to exercise incentive stock options.

It is undisputed Donaldson’s employment terminated on March 31, 2001. In July 2001, Donaldson called Kelly Aaron, the DGS employee in charge of administering stock options, about the option. She testified that she told him her records showed that he had no active stock options and that she decided to refer the matter to Omar Choucair, the chief financial officer. Choucair and Donaldson spoke in August 2001. Choucair testified he told Donaldson he had no option to exercise because it had terminated on April 30, which was 30 days after Donaldson’s termination.

After a bench trial, the trial court made findings and conclusions and held that the 30-day time period in the Option Agreement prevailed over any apparently conflicting time frame in the other documents. The trial court also held that, even if Donaldson had one year to exercise the option, his failure to submit written demand was not excused by any conduct of DGS. Thus, any attempt he made to exercise the option orally was ineffective. Donaldson appealed, asserting error in the trial court’s construction of the contract and asserting the evidence was legally and factually insufficient to support the judgment.

Standard of Review

We review challenges to a trial court’s conclusions of law as a matter of law. Boyd v. Diversified Fin. Sys., 1 S.W.3d 888, 890 (Tex.App.-Dallas 1999, no pet.). We view the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). We uphold the finding if it is supported by more than a scintilla of evidence. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. Concerning the scope of review for legal sufficiency, we credit all favorable evidence that a reasonable factfinder could believe and disregard all contrary evidence except that which a reasonable factfinder could not ignore. See City of Keller v. Wilson, No. 02-1012, 168 S.W.3d 802, at 807, 822-23, 2005 WL 1366509 at *1, *11 (Tex. June 10, 2005). When reviewing findings of fact for factual sufficiency, we consider and weigh all of the evidence and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

Principles of Contract Construction

In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. Id. No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument. Id. A court must give the language of a contract its plain grammatical meaning unless doing so would defeat the parties’ intentions. DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 101 (Tex.1999).

Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered. Coker, 650 S.W.2d at 393-94. If the written instrument is worded so that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe the contract as a matter of law. Id. A contract, however, is ambiguous when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning. Id.

Once a contract is found to be ambiguous, the interpretation of the contract becomes a fact issue. Id. at 394. Extrinsic evidence is admissible to determine the meaning of an ambiguous contract. Robinson v. Robinson, 961 S.W.2d 292, 298 (Tex.App.-Houston [1st Dist.] 1997, no pet.).

The Contract Provisions at Issue

Three documents raise the issue concerning what time period the parties intended Donaldson to have after termination to exercise the option. The Employment Agreement purports to provide a one-year post-termination period in which to exercise the incentive stock option:

Stock Options. Subject to the approval of the Board, the Company shall grant [Donaldson] an incentive stock option covering 150,000 shares of the Company’s Common Stock. ... The term of such option shall be 10 years, subject to earlier expiration one year following the termination of [Donaldson’s] Employment or other service with the Company. ... [T]he grant of such option shall be subject to the other terms and conditions set forth in one of the [DGS] Stock Option Plans and in the company’s standard form of stock option agreement ...

(Emphasis added.)

The Option Agreement provided for a 30-day period only:

Termination of status as an employee. In the event of termination of [Donaldson], he may, but only within thirty days after the date of such termination ... exercise this Option.... [I]f he does not exercise this Option within the time specified herein, the Option shall terminate.

Both the Employment Agreement and Option Agreement were subject to the company stock option plan. The Plan was the one approved in 1992. It provided for a 30-day post-termination period to exercise “Incentive Stock Options” and a 6-month post-termination period for “non-statutory options” as follows:

(b) Termination of Status as an Employee or Consultant. In the event of termination of an Optionee’s Continuous Status as an Employee ..., such Optionee may, but only within thirty (30) days (or such other period of time, not exceeding three (3) months in the case of an Incentive Stock Option or six (6) months in the case of a Nonstatutory Stock Option, as is determined by the Board, with such determination in the case of an Incentive Stock Option being made at the time of grant of the Option) after the date of such termination. ...

The Trial Court’s Findings and Conclusions

The trial court concluded the documents are ambiguous, given the seemingly conflicting time period in the Employment Agreement and Option Agreement, with both subject to the Plan, which has yet another articulation of time limits. Examining the language of the documents and other evidence, the trial court determined that

the agreements themselves provide the answer for what “trumps” what. Because the Employment Agreement expressly refers to and is made subject to the Plan and the Stock Option Agreement, but the Stock Option Agreement is not made expressly subject to the Employment Agreement, the Stock Option Agreement’s contrary term controls.
In related findings, the trial court found:
Harris’s testimony is equivocal and demonstrates that Harris has no recollection of actually discussing the one-year term. Further, this “recollection” would put the agreement of the parties in direct opposition to even the most generous grant of time (six months for a Nonstat-utory option) in the 1992 Stock Option Plan.

Donaldson argues that the “plain language” of the Employment Agreement resolves the issue: after providing a one-year post-termination period, it states the Employment Agreement is subject to the “other” terms set forth in the Plan and the standard stock option agreement. Thus, he argues, to give meaning to the term “other,” contradictory terms in the Plan and Option Agreement do not apply. Donaldson also argues that Harris, the party with whom he negotiated the Employment Agreement, provided undisputed extrinsic evidence that they intended for Donaldson to have a one-year post-termination period in which to exercise the option. He points to Harris’s testimony when asked, “Did you ever have the belief that [Donaldson] had only 30 days under this agreement to exercise his option?” Harris answered, “No.” Harris also denied that he knew of any document that would change the one-year provision in the Employment Agreement.

We conclude, as the trial court did, that the contract is ambiguous concerning the intended time limit in which to exercise the option. Accordingly, determination of the parties’ intent through extrinsic evidence is a question of fact. Robinson, 961 S.W.2d at 298.

In our review for legal sufficiency, we view the evidence in the light favorable to the verdict, crediting favorable evidence if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See City of Keller v. Wilson, No. 02-1012, 168 S.W.3d at 807, 822-23, 2005 WL 1366509 at *1, *11 (Tex. June 10, 2005). We disagree with Donaldson’s contention that Harris provided “undisputed” evidence that the two negotiators intended the one-year provision to apply rather than the 30-day limit in the Option Agreement. Harris testified he thought he told Donaldson’s lawyer the terms seemed “all standard kind of stuff to me.” He also testified, ‘We discussed 150,000 shares of options under the normal routine, although we didn’t specifically get into dotting I’s and crossing T’s in that negotiation (emphasis added).” Importantly, Harris could not recall having any discussion with Donaldson about the one-year provision or any other specific contract language. We conclude there is more than a scintilla of evidence to support the trial court’s finding that the parties’ intended the standard 30-day limit in the Option Agreement to apply.

To test for factual sufficiency, we consider and weigh all of the evidence. Cain, 709 S.W.2d at 176. As noted, Harris’s testimony was equivocal on whether he intended a one-year provision or the 30-day limit under the “normal routine.” Concerning Donaldson, the evidence shows he was well-versed in the details of the Plan. As top manager, he had recommended option grants to others under the Plan. He had personally received at least four previous options subject to the Plan and had previously exercised three of them. He acknowledged that the Board was authorized to issue “incentive stock options” only under the approved Plan, and that the Plan permitted only a 30-day post-termination exercise period for incentive stock options.

After reviewing all of the evidence, we conclude the determination that the parties intended the 30-day period to apply is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We resolve Donaldson’s first issue against him as well as his evidentiary challenge in the fourth issue concerning the option’s exercisability term.

Written Demand

The Option Agreement provided the option was “exercisable by written notice,” and set forth details required in the notice. It further stated, the option would be “deemed to be exercised upon receipt by the Company of such written notice.” The Plan as well provided that an option “shall be deemed to be exercised when written notice of such exercise has been given to the Company.” It was undisputed that Donaldson never submitted a written request to exercise the option. The trial court held that, even if Donaldson could have exercised his option within one year, he was “not excused from making a demand in writing by any conduct of Defendant.”

Donaldson argues that, when in July 2001 he spoke to Kelly Aaron at the company, she informed him that he had no active options on her books. This, he argues, constituted a breach of the company’s obligation to honor the option, and thus excused him from any further obligation to submit written notice. Ware v. Miller, 82 S.W.3d 795, 804 (Tex.App.Amarillo 2002, pet. denied) (“As a matter of public policy, courts do not require performance of useless acts.”). DGS argues the written-notice requirement is a condition precedent, which Donaldson was required to perform in order to trigger DGS’s obligation, if any, to honor the option.

“A condition precedent is an event that must happen or be performed before a right can accrue to enforce an obligation.” Centex Corp. v. Dalton, 840 S.W.2d 952, 956 (Tex.1992). Whether a contractual provision is a condition, rather than a promise, must be gathered from the contract as a whole and from the intent of the parties. Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex.1976).

Texas courts may excuse nonperformance of a condition precedent without other reason if the condition’s requirement “will involve extreme forfeiture or penalty” and “its existence or occurrence forms no essential part of the exchange for the promisor’s performance.” Beard Family P’ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 853-54 (Tex.App.-Austin 2003, no pet.). Texas courts have focused on whether performing the condition precedent was the object of the contract or “merely incidental” to it. Id. In addition, if one party prevents the other from performing a condition precedent, then the condition is “considered as fulfilled.” Houston County v. Leo L. Landauer & Assocs., Inc., 424 S.W.2d 458, 464 (Tex.Civ.App.-Tyler 1968, writ ref d n.r.e.) (citing Miller v. Hodges, 260 S.W. 168, 172 (Tex.Com.App.1924, judgm’t adopted)).

Donaldson testified that when he spoke with Kelly Aaron, he advised her he wished to exercise the stock option and that Aaron said the books showed he had no options. Aaron testified that Donaldson did not request, nor did she send, the standard form to exercise an option. Rather, she testifies, she referred the matter to Omar Choucair, the chief financial officer. In August, Choucair and Donaldson spoke. Choucair testifies he told Donaldson the company considered that the option had terminated on April 30, which was 30 days after Donaldson’s termination.

Donaldson’s testimony indicates he understood the importance to the company of written notice in order to set the optionee’s exercise date. The record also shows he was well-versed in the contents of the one-page form, having submitted it three times previously. Moreover, there is no evidence that the company prevented Donaldson from submitting a written notice to exercise an option. Landauer, 424 S.W.2d at 464.

We conclude, as did the trial court, that the written-notice requirement was not excused by any act of DGS and that Donaldson’s failure to deliver a written notice was fatal to his claim that DGS breached the contract. We resolve Donaldson’s third issue against him, as well as his evidentia-ry challenges to the written-notice requirement in his fourth issue.

Accordingly, we affirm the trial court’s take-nothing judgment against Donaldson.


author: Opinion by Justice LANG.

text:
    FIRST UNION NATIONAL BANK n/k/a Wachovia Bank, N.A., Appellant, v. RICHMONT CAPITAL PARTNERS I, L.P., Appellee.
    No. 05-03-01686-CV.
    Court of Appeals of Texas, Dallas.
    Aug. 1, 2005.

      Brian J. Hurst and Daniel Patrick Elms, Baker & McKenzie, Dallas, for Appellant.
    LaDawn H. Conway and Steven A. Harr, Munsch, Hardt Kopf & Harr P.C., Dallas, Dallas, for appellee.
    Before Justices O’NEILL, LANG, and LANG-MIERS.
   OPINION

Opinion by Justice LANG.

First Union National Bank n/k/a Wacho-via Bank, N.A., intervenor-plaintiff below, appeals the trial court’s final summary judgment that it take nothing against Richmont Capital Partners I, L.P., defendant below. The underlying suit involves an intricate web of financial transactions which includes, among others, several mul-ti-million dollar loans, a guaranty, a lender participation agreement, intercreditor agreements, and an intervening bankruptcy of a central party to the transactions.

First Union raises three issues on appeal: (1) the trial court erred when it granted summary judgment finding that, as a matter of law, First Union does not have a security interest in Richmont’s Guaranty; (2) the trial court erred when it granted summary judgment finding that, as a matter of law, First Union was not an intended third party beneficiary of Rich-mont’s Guaranty; and (3) the trial court erred when it granted summary judgment finding that, as a matter of law, Richmont was not unjustly enriched.

We conclude that the trial court did not err by granting Richmont’s motion for final summary judgment. First Union’s issues on appeal are decided against it. The trial court’s final summary judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

From 1997 to March 30, 2000, First Union was the primary lender to Marketing Specialist Corporation, a food brokerage distribution company. This debt exceeded $34 million and was secured by a first hen security interest in a substantial amount of Marketing Specialist’s assets.

On March 30, 2000, Marketing Specialist and The Chase Manhattan Bank entered into a Credit Agreement. The Credit Agreement gave Marketing Specialist an additional $50 million loan through a revolving credit facility from Chase. Rich-mont, a private venture capital firm, signed a Guaranty on March 30, 2000, guaranteeing payment to Chase of up to $10 million of the Chase $50 million loan.

Because First Union and Chase claimed an interest in the same collateral of Marketing Specialist, they executed an Inter-creditor Agreement dated March 30, 2000. The Intercreditor Agreement set out the priority of rights in Marketing Specialist’s collateral and the order of payment to the lenders. Richmont, the guarantor, was not a party to the Intercreditor Agreement.

Later, in November of 2000, Marketing Specialist needed additional financing. Hence, four additional agreements were executed which must be addressed in our analysis.

First, on November 17, 2000, in order to increase the Chase loan to $60 million, Marketing Specialist and Chase executed a Second Amendment to Credit Agreement. Under the terms of the Second Amendment to Credit Agreement, the $60 million loan from Chase was divided into two parts: (1) Tranche A, a $41 million loan; and (2) Tranche B, a $19 million loan. It also provided that all payments on the Chase loan were to be applied to Tranche A until the debt within that part of the facility was paid in full and then additional payments were to be applied to reduce the debt in Tranche B.

Second, on November 17, 2000, MS Acquisition, a third party and subsidiary of Richmont, entered into a Master Participation Agreement with Chase. Under the terms of the Master Participation Agreement, MS Acquisition: (1) purchased a 100 percent participation interest in the Tranche B component of the Chase credit facility; (2) gained the right to be paid any amounts received by Chase on the Tranche B portion of the loan; and (3) gave Chase the unilateral right to agree to “any amendment, modification, restructure, waiver, substitution, or release of any terms of any portion of the Loan Documents.”

Third, on November 17, 2000, Richmont executed an Obligated Party Consent, which was attached to the Second Amendment to Credit Agreement between Chase and Marketing Specialist. The Obligated Party Consent expanded the Guaranty to cover the Tranche A and Tranche B components of the Chase credit facility, but the Guaranty remained limited to a total of $10 million.

Fourth, on November 17, 2000, Marketing Specialist, Chase, First Union, MS Acquisition, and Richmont executed an Amended Intercreditor Agreement, which added an “Additional Collateral” category. In section 2.21 of the Amended Intercreditor Agreement, the parties agreed that each secured party would not accept as security for the Chase or First Union loans any “Additional Collateral,” unless each secured party is granted a perfected security interest in the “Additional Collateral.” Section 2.6 of the Amended Inter-creditor Agreement directs that proceeds from “Shared Collateral” will be applied first to Tranche A of the Chase loan, second to the First Union loan, and third to Tranche B of the Chase loan in which MS Acquisition purchased a 100 percent participation interest.

Marketing Specialist filed for chapter 11 bankruptcy protection on May 24, 2001. This triggered a suit by Chase against Richmont for payment under the Guaranty. First Union intervened in the litigation asserting: (1) a right to payment under the Guaranty by seeking enforcement of its security interest in MS Acquisition’s right to payment under the Guaranty; (2) in the alternative, claiming it was an intended third party beneficiary of the Guaranty and seeking enforcement of payment under the Guaranty directly to First Union; and (3) in the alternative, claiming that Richmont was unjustly enriched through its failure to pay the proceeds of the Guaranty to MS Acquisition.

Richmont filed its first motion for traditional summary judgment seeking judgment, as a matter of law, on First Union’s claims. The trial court granted Rich-mont’s first motion for traditional summary judgment, in part, concluding First Union had no security interest in the Guaranty and denied the motion, in part, with respect to First Union’s remaining claims.

After Richmont’s first motion for summary judgment and, while First Union’s remaining claims were still pending, Chase and Richmont settled their dispute. Their settlement reduced Richmont’s liability to Chase from $10 million to $7.8 million. Then, Chase accepted $7.8 million in exchange for a release of its claims.

Richmont filed a second motion for traditional summary judgment seeking judgment, as a matter of law, against First Union on its claim that it is a third party beneficiary of the Richmont Guaranty. The trial court granted this motion. Then, Richmont filed a third motion for traditional summary judgment seeking judgment, as a matter of law, on First Union’s remaining unjust enrichment claim. The trial court granted the motion and issued its final summary judgment ordering that First Union take nothing on any of its claims.

In three issues, First Union appeals the trial court’s final summary judgment. Our analysis will proceed from First Union’s third issue regarding whether it had a security interest in the Guaranty, to First Union’s second issue regarding whether it is a third party beneficiary of the Guaranty, and finally to First Union’s first issue regarding its unjust enrichment claim. The conclusions on each of First Union’s issues build logically in that sequence to a conclusion.

II. TRADITIONAL SUMMARY JUDGEMENT STANDARD OF REVIEW

The standard for reviewing a traditional summary judgment is well-established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex.R. Crv. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex.1982). When reviewing a motion for summary judgment, the court takes the nonmovant’s evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. Willrich, 28 S.W.3d at 23-4. When a trial court’s order does not specify the grounds for its summary judgment, an appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.2003).

III. SECURITY INTEREST IN THE GUARANTY

In its third issue on appeal, First Union argues the trial court erred when it granted summary judgment finding that, as a matter of law, First Union does not have a security interest in Richmont’s Guaranty. First Union claims that: (1) because there is no specific definition of “Additional Collateral” in the Amended Intercreditor Agreement, there is a fact issue regarding whether the parties intended Richmont’s Guaranty to be included within the provision entitled, “Additional Collateral”; (2) “the parties’ failure to specifically exclude guaranties from this broad definition [of ‘Additional Collateral’] evidences their intent to include them” [emphasis in orig.]; and (3) Marketing Specialist obtained the Guaranty for the purpose of providing additional security for the Chase loan and, because it is axiomatic that collateral is security for a loan, First Union has a security interest in the Guaranty. Rich-mont responds that First Union did not assert that the meaning of “Additional Collateral” is unclear because of ambiguity and evidence of intent is not admissible to explain the meaning of an unambiguous contract. Also, Richmont responds to First Union’s assertions by arguing First Union was aware of the Guaranty because the Guaranty is included in the recital in paragraph “F” of the Amended Intercreditor Agreement and, if they intended to address the rights and issues affecting the Guaranty, they could have done so by specific reference. We agree with Richmont.

A. Applicable Law

Agreements executed at the same time, with the same purpose, and as part of the same transaction, are construed together. In re Prudential Ins. Co. of America, 148 S.W.3d 124, 135, (Tex.2004). It is a basic premise of contract interpretation that unambiguous contracts are construed as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983); Pratt-Shaw v. Pilgrim’s Pride Corp., 122 S.W.3d 825, 829 (Tex.App.-Dallas 2003, no pet.). The entire instrument, taken by its four corners, must be read and considered to determine the true intention of the parties. Pratt-Shaw, 122 S.W.3d at 829; Dedier v. Grossman, 454 S.W.2d 231, 234 (Tex.Civ.App.-Dallas 1970, writ refd n.r.e.). We give terms their plain, ordinary, and gen erally accepted meaning unless the instrument shows that the parties used them in a technical or different sense. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996); Pratt-Shaw, 122 S.W.3d at 829.

"When interpreting a contract, we examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be meaningless. MCI Telecomms. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 651 (Tex.1999); Pratt-Shaw, 122 S.W.3d at 829. We presume that the parties to a contract intend every clause to have some effect. Heritage Res., Inc., 989 S.W.2d at 121; Pratt-Shaw, 122 S.W.3d at 829. When interpreting a promise or agreement, “[s]pecific and exact terms are given greater weight than general language.” Prattr-Shaw, 122 S.W.3d at 829.

A guaranty of payment creates a secondary obligation where the guarantor promises to pay the debt when due if the debtor fails to perform. See Rep. Nat. Bank of Dallas v. Northwest Nat. Bank of Fort Worth, 578 S.W.2d 109, 114 (Tex.1978); Cox v. Lerman, 949 S.W.2d 527, 530 (Tex.App.-Houston [14th Dist.] 1997, no pet.). Because a guaranty is ancillary to the underlying contract, a dispute as to the rights and obligations of the guarantor can only be resolved by a factual determination of the rights and obligations of the parties to the underlying contract. Rep. Nat. Bank, 578 S.W.2d at 114; Pham v. Mongiello, 58 S.W.3d 284, 288 (Tex.App.-Austin 2001, pet. denied).

The rule of strictissimi juris applies so that a guaranty agreement is construed strictly in favor of the guarantor under Texas law. See Reece v. First State Bank of Denton, 566 S.W.2d 296, 297 (Tex.1978); Cox, 949 S.W.2d at 530. This rule prohibits the extension, by construction or implication, of the guarantor’s obligations beyond the written terms of the agreement. See Reece, 566 S.W.2d at 297; Preston Ridge Financial Services Corp. v. Tyler, 796 S.W.2d 772, 780 (Tex.App.-Dallas 1990, writ denied); Pham, 58 S.W.3d at 288; Cox, 949 S.W.2d at 530. However, the rule of strictissimi juris applies after the terms of the guaranty agreement have been ascertained. Preston Ridge, 796 S.W.2d at 780.

B. Application of the Law to the Facts

First, we address First Union’s argument that because there is no specific definition of “Additional Collateral” in the Amended Intercreditor Agreement, there is a fact issue regarding whether the parties intended Richmont’s Guaranty to be included within the provision entitled, “Additional Collateral.” Richmont responds that because the agreement is unambiguous, evidence of intent is not admissible to explain the meaning of an unambiguous contract, and had the parties intended for the Guaranty to be included within “Additional Collateral,” they could have done so by specific reference.

Although the parties do not dispute that the Amended Intercreditor Agreement is unambiguous, they disagree on the effect of its provision concerning “Additional Collateral.” The Amended Intercreditor Agreement states the following regarding “Additional Collateral”:

Section 2.21. Additional Collateral.
(a) Each Secured Party agrees that it shall not accept, either directly or indirectly, as security for any of the [Chase] Obligations or the [First Union] Obligations, any additional collateral from any Person (the “Additional Collateral”), other than Secured Collateral and Other Collateral, unless each Secured Party is granted a perfected security interest in such Additional Collateral. Additional Collateral shall, for all purposes be treated as Shared Collateral.
(b) If [sic] furtherance of clause (a) above:
(i) MS Acquisition and Richmont each hereby grant to [First Union], a security interest in any Additional Collateral which they provide to [Chase].
(ii) [Chase] agrees to hold for the benefit of the Lenders, as Shared Collateral hereunder, any such Additional Collateral received by it.

The term “Additional Collateral” is not defined in the Amended Intercreditor Agreement.

The definition section of the Amended Intercreditor Agreement refers to Exhibit A for a definition of “Shared Collateral.” Exhibit A states, in part:

Shared, Collateral
“Shared Collateral” means (i) the Additional Collateral described in Section 2.21 of the [Amended Intercreditor Agreement], and (ii) all of right, title and interest of each Debtor in and to the following, whether now owned or hereafter arising or acquired and wherever located (collectively, the “Collateral”):
(a) all Accounts;
(b) all Inventory;
(c) all Deposit Accounts and all funds, certificates, Documents, Instruments, checks, drafts, wire transfer receipts and other earnings, profits or other Proceeds from time to time representing, evidencing, deposited into or held in the Deposit Accounts; and
(d) all Instruments, Financial Assets, other Investment Property, Documents, Chattel Paper, General Intangibles, products and Proceeds evidencing title to, or the right to possession of, arising from the sale or other disposition of, necessary for or used in connection with the production, manufacture, sale or other disposition of, or otherwise relating to, or arising or created out of the property described in the foregoing clauses (a) through (c).
Notwithstanding the definition above, Collateral shall not include any Debtor’s equipment, fixtures, Intellectual Property, real estate, insurance policies (other than casualty insurance specifically relating to a casualty loss with respect to Shared Collateral) or stock of subsidiaries, or any Proceeds thereof (other than proceeds of casualty insurance specifically relating to a casualty loss with respect to Shared Collateral).

Because First Union does not argue the Amended Intercreditor Agreement is ambiguous, it is construed as a matter of law. See Coker, 650 S.W.2d at 393; Pratt-Shaw, 122 S.W.3d at 829. The entire Amended Intercreditor Agreement must be read and considered within its four corners to determine the true intention of the parties. See Pratt-Shaw, 122 S.W.3d at 829; Dedier, 454 S.W.2d at 234. While the Amended Intercreditor Agreement provides First Union an undivided interest in “Additional Collateral,” there is no specific term or other language identifying the Guaranty as “Additional Collateral” or including it within the terms setting out the priority of rights in the Amended Inter-creditor Agreement. See Pratt-Shaw, 122 S.W.3d at 829 (when interpreting unambiguous language specific and exact terms are given greater weight than general language).

Second, we address First Union’s claim that in the absence of a specific definition of “Additional Collateral” in the Amended Intercreditor Agreement, we should look to the common, ordinary meaning of the word “collateral.” We are advised by First Union that such an analysis will lead us to conclude that the Guaranty is “collateral” in which First Union holds a security interest. We are also advised by First Union that we can find such common meaning using two sources. The first source to which we are directed is Webster’s New World Dictionary where “collateral” is defined as “anything, such as stocks or bonds, that secures or guarantees the discharge of an obligation.” WebsteR’s New WORLD DictionaRY 274 (3d college ed.l988)[emphasis added]. The second is § 9.102(a)(12) of the Texas Business and Commerce Code which defines “collateral” as the property subject to a security interest or agricultural lien, including: (A) proceeds to which a security interest attaches; (B) accounts, chattel paper, payment intangibles, and promissory notes that have been sold; and (C) goods that are the subject of a consignment. See Tex. Bus. & Com.Code Ann. § 9.102(a)(12) (Vernon 2002).

We agree generally with First Union that a court should interpret terms using their plain, ordinary, and generally accepted meaning unless the instrument shows the parties used them in a technical or different sense. Heritage Res., Inc., 939 S.W.2d at 121; Pratt-Shaw, 122 S.W.3d at 829. However, we disagree with First Union’s argument that these dictionary or statutory definitions of collateral support the characterization of the Guaranty as “Additional Collateral” in the Amended In-tercreditor Agreement.

The dictionary does not define a guaranty as collateral. Rather, that definition identifies “collateral” as “anything, such as stocks or bonds, that secures or guarantees ” an obligation, [emphasis added]. First Union does not describe how this dictionary definition should cause us to construe the term “collateral” to include the Guaranty except that it “secures or guarantees” an obligation. The operative language in the definition describes “anything such as stocks and bonds.” We do not see that the Guaranty can be considered to be like “stocks or bonds.” Likewise, we cannot agree the Guaranty is within the list of property which may be subject to a security interest as set out in § 9.102(a)(12). That list does not refer to guaranties. Accordingly, we cannot conclude that these definitions reflect a common and generally accepted meaning of “collateral” which would operate to include the Guaranty within the “Additional Collateral” provision of the Amended Inter-creditor Agreement.

Third, we address First Union’s position that because Marketing Specialist obtained the Guaranty for the purpose of providing additional “security” for the Chase loan, it should be considered collateral. Therefore, First Union asserts that, pursuant to the Amended Intercreditor Agreement, it has a security interest in the Guaranty. First Union contends its position is supported by this Court’s opinion in Preston Ridge, which First Union contends recognizes a guaranty as a means of “securing” a debt. Preston Ridge, 796 S.W.2d at 778, 781.

In Preston Ridge, the appellee executed a guaranty agreement in which he guarantied all amounts of principal due under a note in excess of $735,000. The guarantor agreed to pay, immediately upon demand, the guarantied portion of the indebtedness if the maker defaulted on the note. The note was also secured by a deed of trust on which the lender foreclosed. The guarantor argued the foreclosure proceeds should be applied to reduce the portion of the debt he guarantied. See Preston Ridge, 796 S.W.2d at 778. He argued that because he was not required to pay until the lender made demand, his liability should be fixed at the time of demand, which occurred after foreclosure. This court disagreed with that proposition.

First Union’s reliance on Preston Ridge is misplaced. In Preston Ridge, this Court did not conclude the guaranty was “collateral.” Rather, this Court referred to the guaranty only as additional “security.” In fact, the guaranty was contrasted with the collateral in the loan package. We said the guaranty was required because the parties “... realized the value of the collateral under the deed of trust” may not be sufficient in the future. Preston Ridge, 796 S.W.2d at 779. The guaranty was enforced according to its terms and required the guarantor to pay the sums required to be paid, (ie., amounts owed in excess of $735,000, at the time the debt was due, owing, and unpaid). The guaranty in Preston Ridge was not conditional or contingent on the enforcement of any remedies against the borrower, on the assertion of any lien right, or realization on any other security interest available to the lenders.

Finally, it does not follow that the Guaranty can be an asset subject to the Amended Intercreditor Agreement. That agreement encompasses collateral that is property of the borrower, Marketing Specialist. On this record, we cannot characterize the Guaranty as property of Marketing Specialist. Rather, it is an independent contractual obligation of Rich-mont to Chase. The Amended Inter-creditor Agreement does not in any way purport to assign to First Union any of Chase's rights in the Richmont Guaranty. That Guaranty was payable directly and only to Chase.

We conclude the trial court did not err when it granted summary judgment finding that, as a matter of law, First Union does not have a security interest in Rich-mont’s Guaranty.

First Union’s third issue on appeal is decided against it.

IV. INTENDED THIRD PARTY BENEFICIARY

In its second issue on appeal, First Union argues the trial court erred when it granted summary judgment finding that, as a matter of law, First Union was not an intended third party beneficiary of the Richmont Guaranty. First Union contends that whether it was an intended third party beneficiary of the Guaranty is an issue of material fact precluding summary judgment because MS Acquisition was contractually required to pay any money it received on its participation interest in Tranche B to First Union pursuant to the terms of the Amended In-tercreditor Agreement. Further, the Guaranty was extended to Tranche B pursuant to the terms of the Obligated Party Consent. Richmont responds that a plain reading of the controlling documents demonstrates First Union is not a third party beneficiary of the Guaranty. Rather, under the Amended Intercreditor Agreement, the Guaranty is not “Additional Collateral,” which is to be treated as “Shared Collateral.” The proceeds payable under the Guaranty were payable to Chase only. However, any guaranty payments were subject to prioritization between the parties only because the Tranche A debt was to be paid before the Tranche B debt under the Second Amendment to Credit Agreement. We agree with Richmont.

A. Applicable Law

A third party may recover on a contract made between other parties only if: (1) the other parties intended to secure some benefit for that third party; and (2) the contracting parties entered into the contract directly for the third party’s benefit. MCI, 995 S.W.2d at 651.

To show the other parties intended to secure some benefit for the third party, the third party must demonstrate he is either a donee or creditor beneficiary of the performance of the contract. See MCI, 995 S.W.2d at 651; Dallas Firefighters Ass’n v. Booth Research Group, Inc., 156 S.W.3d 188, 192-93 (Tex.App.-Dallas 2005, pet. denied). A third party is a donee beneficiary if the performance promised under the contract will, when rendered, come to the third party as a pure donation. See MCI, 995 S.W.2d at 651. A third party is a creditor beneficiary if the performance comes to the third party in satisfaction of a legal duty owed to that third party by the promisee. See id. The legal duty owed to a creditor beneficiary by the promisee may be an indebtedness, contractual obligation, or other legally enforceable commitment. See id. The fact that a third party might receive an incidental benefit from a contract does not give that third party a right to enforce the contract. See id.

The intention to contract or confer a benefit to a third party must be clearly and fully spelled out in order to show the contracting parties entered into the contract directly for the third party’s benefit. See id. A presumption exists that the parties contracted for themselves, unless it “clearly appears” that they intended a third party to benefit from the contract. Id.; Dallas Firefighters, 156 S.W.3d at 193. The intention of the contracting parties is controlling when determining whether a third party can enforce a contract. MCI, 995 S.W.2d at 651; Dallas Firefighters, 156 S.W.3d at 193. A court will not create a third-party beneficiary contract by implication. MCI, 995 S.W.2d at 651; Dallas Firefighters, 156 S.W.3d at 193. If there is any reasonable doubt as to the intent of the contracting parties to confer a direct benefit on the third party, then the third-party beneficiary claim must fail. Dallas Firefighters, 156 S.W.3d at 193; Whitten v. Vehicle Removal Corp., 56 S.W.3d 293, 312 (Tex.App.-Dallas 2001, no pet.); see MJR Corp. v. B&B Vending Co., 760 S.W.2d 4, 10 (Tex.App.-Dallas 1988, writ denied).

B. Application of the Law to the Facts

First Union argues: (1) it is “intuitive” that if MS Acquisition was required to forward all payments to First Union under the Amended Intercreditor Agreement until its loans were fully satisfied, then First Union was a third party beneficiary of the Guaranty; and (2) “if Richmont ever made a payment under the Guaranty to MS Acquisition” because the Tranche A and First Union loans were already paid, then Rich-mont was paying itself.

First, in order to address First Union’s contentions, we scrutinize the Guaranty. The Guaranty is for the benefit of Chase and states the following:

14. This Guaranty Agreement is for the benefit of [Chase] and the banks and their successors, assigns and participants, and in the event of an assignment of the Guaranteed Indebtedness, or any part thereof, the rights and benefits hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness. This Guaranty Agreement is binding on [Richmont], but not on [Richmont’s] successors and assigns.

Obviously, First Union was not a party to the Guaranty.

Second, we must review the language of the subsequently executed Obligated Party Consent, which was attached to the Second Amendment to Credit Agreement. That document states:

Obligated Party Consent
Richmont: (i) consents and agrees to this Amendment; (ii) agrees that the Loan Documents to which it is a party shall remain in full force and effect and shall continue to be its legal, valid and binding obligation enforceable against it in accordance with their respective terms; (iii) agrees that the obligations, indebtedness and liabilities of [Marketing Specialist] arising under this Amendment and the Notes executed pursuant hereto are “Obligations” as that term is used in the Guaranty Agreement dated March 30, 2000 executed by Richmont in favor of [Chase] (the “Guaranty”) and “Guaranteed Indebtedness” as defined in the Guaranty; (iv) agrees that it remains obligated on the Guaranty for the “Guaranteed Indebtedness” defined therein in an amount up to $10,000,000; (v) acknowledges that it has transferred (and hereby does transfer) all of its right, title and interest in and to the Richmont Deposit and MS Deposit to MS Limited and waives any right, title or interest therein....

First Union is not identified as an intended third party beneficiary in the Obligated Party Consent.

Third, we review the Amended Inter-creditor Agreement in conjunction with the above agreements. The Amended Inter-creditor Agreement provides for the subordination to the First Union loan of MS Acquisition’s right to payment from the proceeds of collateral on the Tranche B portion of the Chase loan. However, as previously discussed, the Amended Inter-creditor Agreement does not specifically define “Additional Collateral” to include the Guaranty and the only specific reference to the Guaranty is a mere recital in paragraph “F” that Richmont has guaranteed a portion of Marketing Specialist’s indebtedness to Chase.

First Union’s interpretation does not “clearly appear” on any of the documents and the documents do not “clearly and fully spell out” that Richmont and Chase intended the Guaranty to be directly and primarily for the benefit of First Union. See MCI, 995 S.W.2d at 651; Dallas Firefighters, 156 S.W.8d at 193. It is not “unmistakable” that a benefit to First Union was within Richmont’s and Chase’s contemplation. See Dallas Firefighters, 156 S.W.3d at 193. At most, in its proof, First Union shows that the documents “imply” it is a third party beneficiary of the Guaranty. However, implication does not create a third-party beneficiary contract in favor of First Union or defeat the presumption that Chase and Richmont contracted for themselves. See MCI, 995 S.W.2d at 651; Dallas Firefighters, 156 S.W.3d at 193. To survive summary judgment, First Union must come forward with more than mere intuition, conclusory allegations, improbable inferences, and unsupported speculation. See Chhim v. University of Houston, 76 S.W.3d 210, 218-19 (Tex.App.-Texarkana 2002, pet. denied); Fenley v. Mrs. Baird’s Bakeries, Inc., 59 S.W.3d 314, 320 (Tex.App.-Texarkana 2001, pet. denied).

We conclude the trial court did not err when it granted summary judgment finding that as a matter of law First Union was not an intended third party beneficiary of the Guaranty.

First Union’s second issue on appeal is decided against it.

V. UNJUST ENRICHMENT

In its first issue on appeal, First Union argues the trial court erred when it granted summary judgment finding that as a matter of law Richmont was not unjustly enriched. First Union contends there is an issue of fact precluding summary judgment because Richmont was unjustly enriched by $2.2 million as a result of Richmont’s settlement with Chase, which permitted Richmont to reduce the guaranteed amount from $10 million to $7.8 million. Richmont responds that MS Acquisition had no payment obligation to First Union and First Union’s unjust enrichment claim is barred by the express contracts. Once again, we agree with Riehmont.

A. Applicable Law

The doctrine of unjust enrichment belongs to the measure of damages known as quasi-contract or restitution. Burlington Northern R. Co. v. Southwestern Elec. Power Co., 925 S.W.2d 92, 96 (Tex.App.-Texarkana 1996), aff'd, 966 S.W.2d 467 (Tex.1998). A party may recover under a theory of unjust enrichment when one party has obtained a benefit from another by fraud, duress, or the taking of an undue advantage. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 891 (Tex.1998); Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex.1992). However, unjust enrichment is not a proper remedy merely because it “might appear expedient or generally fair that some recompense be afforded for an unfortunate loss” to the claimant, or because the benefits to the party sought to be charged amount to a windfall. Heldenfels, 832 S.W.2d at 42. The doctrine of unjust enrichment does not operate to rescue a party from the consequences of a bad bargain, and the enrichment of one party at the expense of the other is not unjust where it is permissible under the terms of an express contract. Burlington Northern, 925 S.W.2d at 97.

The unjust enrichment doctrine applies the principles of restitution to disputes which are not governed by a contract between the contending parties. Burlington Northern, 925 S.W.2d at 97. Unjust enrichment claims are based on quasi-contract and are predicated on the absence of an express contract controlling the circumstances. See Fortune Production Co. v. Conoco, Inc., 52 S.W.3d 671, 683 (Tex.2000); Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 227 (Tex.App.Houston [1st Dist.] 2004, pet. denied); Inglish v. Prudential Ins. Co., 928 S.W.2d 702, 706 (Tex.App.-Houston [1st Dist.] 1996, writ denied). Generally, when a valid, express contract covers the subject matter of the parties’ dispute, there can be no recovery under a quasi-contract theory because parties should be bound by their express agreements. See Fortune Production Co., 52 S.W.3d at 683; Burlington Northern, 925 S.W.2d at 97. Further, the doctrine of unjust enrichment does not apply when the contractual duty at issue has been performed. Burlington Northern, 925 S.W.2d at 97.

B. Application of the Law to the Facts

First Union contends there are fact issues precluding summary judgment because: (1) the forgiven $2.2 million was owed to MS Acquisition; (2) First Union has a right to that $2.2 million because Riehmont expanded the Guaranty in the Obligated Party Consent to include MS Acquisition’s participation interest in Tranche B; and (3) MS Acquisition was required to forward all funds to First Union. First Union also claims that “if funds had been paid to MS Acquisition, [those funds] would have been immediately payable to First Union,” and “Richmont’s corporate ownership and control over MS Acquisition is the only reason MS Acquisition has not already demanded and recovered that $2.2 million.” [emphasis in orig.]. However, First Union does not argue or point this court to any summary judgment evidence that would show actual control of MS Acquisition by Riehmont. Accordingly, we must determine if an express contract controls the rights of the parties, thereby precluding recovery by First Union under a quasi-contract theory of unjust enrichment.

First Union’s unjust enrichment claim arises essentially out of the Amended In-tercreditor Agreement. In the Amended Intercreditor Agreement, the parties agreed that First Union would have a security interest in the “Additional Collateral” and they agreed that MS Acquisition’s right to payment under Tranche B would be subordinate to First Union’s right to payment under the First Union loan. As we determined in our discussion of First Union’s third and second issues on appeal, the Amended Intercreditor Agreement did not give First Union a security interest in the Guaranty or establish that it was a third party beneficiary of the Guaranty. First Union could have bargained with Chase expressly to agree that First Union obtain an interest in the Guaranty and to describe that interest in the Amended In-tercreditor Agreement. No such agreement between First Union and Chase was set out in any of the written agreements.

The doctrine of unjust enrichment does not operate to rescue First Union from the consequences of a bad bargain, and the settlement agreement between Chase and Richmont permitting Richmont to execute the Amended Guaranty reducing Rich-mont’s liability by $2.2 million is not unjust where it is permissible under the terms of the parties’ express agreements. See Burlington Northern, 925 S.W.2d at 97. Because First Union had no right to payment under the Guaranty, Richmont was not unjustly enriched by $2.2 million as a result of its settlement with Chase.

We conclude the trial court did not err when it granted summary judgment finding that, as a matter of law, Richmont was not unjustly enriched.

First Union’s first issue on appeal is decided against it.

VI. CONCLUSION

We conclude the trial court did not err when it granted summary judgment finding that, as a matter of law: (1) First Union does not have a security interest in Richmont’s Guaranty; (2) First Union was not an intended third party beneficiary of the Guaranty; and (3) Richmont was not unjustly enriched. We decide First Union’s three issues on appeal against it.

The trial court’s final summary judgment is affirmed.

      . The Amended Intercreditor Agreement does not define the term “Secured Collateral.” Also, the Amended Intercreditor Agreement states the following regarding “Other Collateral”:
      Section 2.3. Other Collateral; License in Intellectual Property. In addition to [First Union’s] security interests in the Shared Collateral, [First Union] also holds, or may in the future hold, mortgages and security interests in all other assets of [Marketing Specialist], including without limitation, all real property interests, equipment, fixtures, stock of subsidiaries, Intellectual Properly, insurance policies (other than casualty insurance specifically relating to a casualty loss with respect to Shared Collateral), and proceeds thereof (the "Other Collateral”). [First Union] acknowledges that any right, title or interest it holds in Other Collateral consisting of Intellectual Property is subject to the licenses granted by [Marketing Specialist] in favor of [Chase] pursuant to the [Chase] Loan Documents permitting [Chase] to use such Intellectual Properly in connection with the sale or other disposition of any Shared Collateral. In furtherance of the foregoing, and to the extent of [First Union’s] interest in the Intellectual Property, [First Union] also hereby grants to [Chase] an irrevocable, nonexclusive license (exercisable without payment of royalty or other compensation to [First Union] ) to use any of the Intellectual Property for purposes of enabling [Chase] to exercise its rights and remedies under the [Chase] Documents and enabling [Chase] to enjoy the full benefits of the Shared Collateral (in each case as [Chase] shall be entitled under the [Chase] Documents).