author: Opinion by Chief Justice MORRISS. JACK CARTER, Justice,

text:
    In re: LUFKIN INDUSTRIES, INC.
    No. 06-10-00038-CV.
    Court of Appeals of Texas, Texarkana.
    Submitted July 7, 2010.
    Decided July 8, 2010.

      John R. Mercy, Mercy * Carter * Tid-well, LLP, Texarkana, Clay M. White, White Shaver, PC, Tyler, Mike Parker, Law Office of Mike Parker, Carthage, William C. Book, Tekell, Book, Matthews & Limmer, LLP, Houston, for appellant.
    Christopher T. Coco, Paul Chip Ferguson, Provost Umphrey Law Firm, Beaumont, Robert Underwood, R. Collin Underwood, Underwood Law Offices, Carthage, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by Chief Justice MORRISS.

In this high-stakes personal-injury, products-liability contest, there have been two trials that reached diametrically different results: the first, a multi-million dollar verdict; the second, a take-nothing verdict. After the take-nothing verdict, the trial court ordered a third trial. By petition for writ of mandamus, we are asked to override the trial court’s order granting a new trial. We deny the petition for writ of mandamus, because — although (1) Lufkin has no adequate remedy by appeal, and (2) the trial court’s reasons for granting a new trial are reviewable on appeal — (3) the trial court was within its discretion, on at least one ground, in granting a new trial.

Kelleigh Terran Falcon, Kierra Falcon, and Kelese Falcon were injured when the vehicle in which they were riding collided with, and ran under the side of, an eighteen-wheeler trailer manufactured by Luf-kin Industries, Inc. (Lufkin). Terrence Baker, as guardian of the person and estate of Kelleigh Terran Falcon, and as next friend for Kierra Falcon and Kelese Falcon, minor children (Baker), sued Luf-kin Industries, Inc., for products liability, asserting that Lufkin had a duty to install side under-ride guards on its eighteen-wheeler trailers. After an initial trial resulted in a multi-million dollar verdict, the parties agreed that a new trial was warranted, and one was granted.

After years of additional testing and discovery, a second trial was held. It lasted almost two months and resulted in a take-nothing judgment. Subsequently, the trial court, acting sua sponte and on Baker’s motion for new trial, granted a new trial, citing juror inattention, the brevity of jury deliberations, erroneous exclusion of evidence, newly discovered evidence, inadmissible evidence presented to the jury, and the interest of justice and fairness.

Seeking a writ of mandamus, Lufkin argues that the trial court abused its discretion by granting a new trial because the reasons for granting the new trial are not supported by the record, were not preserved, and are invalid, and because the new trial will deprive Lufkin of its constitutional right to a jury trial.

(1) Lufkin Has No Adequate Remedy by Appeal

Generally, mandamus will issue only to correct a clear abuse of discretion or the violation of a duty imposed by law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). It is available only if an adequate remedy by appeal does not exist. Perry Homes v. Cull, 258 S.W.3d 580, 586 (Tex.2008); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex.2004). Mandamus should not issue to correct grievances that may be addressed by other remedies. See Walker, 827 S.W.2d at 840. Whether a remedy by ordinary appeal is adequate so as to preclude mandamus review depends on the circumstances presented and is better guided by general principles than by simple rules. Prudential, 148 S.W.3d at 137.

In some cases, a remedy at' law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate. See, e.g., Houston & T.C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 656 (1905) (“there is not a plain, adequate, certain, and speedy remedy’); City of Highland Park v. Dallas Ry. Co., 243 S.W. 674, 681 (Tex.Civ.App.-Dallas 1922, writ ref'd) (remedy must be “equally convenient, beneficial, and effective as the proceeding by mandamus”).
Given the subjective nature of such terms as “plain” and “uncertain,” “convenient” and “inconvenient,” “effective” and “ineffective,” this Court must examine the specific circumstances of each case and carefully exercise its discretion before deciding whether a particular remedy at law is adequate. See, e.g., Dickens v. Second Court of Appeals, 727 S.W.2d 542, 551-52 (Tex.Crim.App.1987) (discussing the adequacy of reviewing pretrial discovery orders through appeal). In addition, equitable principles are necessarily involved when we consider whether mandamus should issue. See Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, 795 (1941).

Smith v. Flack, 728 S.W.2d 784, 792 (Tex.Crim.App.1987).

Lufkin’s only other possible alternative remedy to the trial court’s order is direct appeal to the court of appeals after a third trial. Under the extraordinary circumstances of this case, requiring the parties to endure a third trial before appellate review of the order for new trial is not “equally convenient [or] beneficial” as mandamus; rather, it is “tedious, burdensome, slow [and] inconvenient.” See id. Accordingly, we find Lufkin has no adequate remedy by appeal.

(2) The Trial Court’s Reasons for Granting a New Trial Are Reviewable on Appeal

Here, the trial court gave several specific reasons for granting a new trial. Lufkin argues that the trial court’s reasons are not supported by the record. Baker contends that, as long as the trial court’s reasons are specific enough to meet the requirements of In re Columbia Medical Center of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex.2009) (orig. proceeding), they are unreviewable. Although we find no explicit binding precedent on the subject, we disagree.

While a trial court has significant discretion in granting new trials, the Texas Supreme Court recently held that a trial court must specify the reasons it disregarded the jury’s verdict by granting a new trial. Id. at 212-15. “The reasons should be clearly identified and reasonably specific. Broad statements such as ⅛ the interest of justice’ are not sufficiently specific.” Id. at 215. The court’s majority opinion explained that, while a trial court has considerable discretion in granting a new trial, that discretion has limits. Id. at 210. That “discretion should not, and does not, permit a trial judge to substitute his or her own views for that of the jury without a valid basis.” Id. at 212. By stating that the trial court must have a “valid basis” for granting a new trial, the Court is, in effect, authorizing appellate review of the reasons given. Otherwise, who is to say whether the reasons given are “valid”?

Even if we read too much into the Texas Supreme Court’s words, there is a further basis for having appellate review of the reasons given for the new trial. The law does not require a vain or useless act. See City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987) (stating the equitable maxim that “a court should not require the doing of a useless thing”). If we were to determine that the trial court’s reasons for granting a new trial were not reviewable on appeal, we would be saying that the court’s requirement that a trial court give reasons for its ruling was a useless requirement.

Among the rationales used by the Texas Supreme Court in requiring trial courts to express reasons for granting new trials are that the requirement enhances respect for the rule of law, provides transparency for the legal system, and respects expectations of parties and the public from a jury trial. Columbia Med. Ctr., 290 S.W.3d at 213. Each of those purposes is supported by making the reasons reviewable; each element is sullied by having any reasons be unreviewable.

We conclude, therefore, that the trial court’s reasons for granting a new trial are subject to appellate review.

(3) The Trial Court Was Within Its Discretion, on at Least One Ground, in Granting a New Trial

Here, the trial court granted a new trial based on (1) juror inattention, (2) length of jury deliberations, (3) the exclusion of evidence, (4) newly discovered evidence, (5) the injection of inadmissible evidence before the jury, and (6) the interest of justice and fairness. So long as the trial court is within its discretion to grant a new trial for even one of its stated reasons, the order granting a new trial will be affirmed and mandamus relief will be denied. Here, because we find the trial court was within its discretion in at least one of its stated reasons for granting a new trial, we need not review the remaining reasons given.

In detailing its reasons, the trial court stated:

The Defendant showed an unredacted copy of the police report to the Jury that informed them that the two children in the back seat of the Ford Taurus were not restrained. This was directly contrary to the Court’s ruling on this admissibility of this matter. Having seen the effect that this had, the Court believes that [a] new trial is warranted on this basis....
... The Defendant displayed a photograph of the backseat [sic] of the Ford Taurus and speculated that items in the rear seat indicated that the driver was inattentive at the time leading up to this collision.... [T]he court believes this inexcusable conduct nevertheless constitutes prejudice and harm necessitating a new trial.

Lufkin did not indicate to the jury that the children were unrestrained, but did point out a mascara container that appeared in the photograph of the back seat floorboard of the car and asked whether “putting on makeup in a vehicle” was “a distraction.”

Trial courts are allowed “great discretion” in the granting of new trials. Id. at 214. Trial judges have the benefit of observing the dynamics and atmosphere of the courtroom as well as the demeanor, tone, and tenor of witnesses, attorneys, and jurors — factors that may not be reflected in the record. See Murff v. Pass, 249 S.W.3d 407, 411 (Tex.2008) (per curiam) (citing Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 753 (Tex.2006)); see also Columbia Med. Ctr., 290 S.W.3d at 220 (O’Neill, J., dissenting). Similarly, in jury voir dire issues, the Supreme Court of Texas has noted that an interpretation of juror behavior “turns on the courtroom context, and perhaps the looks on their faces.” Hyundai Motor Co., 189 S.W.3d at 755. We believe the same to be applicable in this case.

Here, the trial court reviewed “the pleadings and evidence” as well as “its own notes from the proceedings,” and it noticed the “effect” of and “prejudice and harm” caused by the inadmissible police report and Lufkin’s statements to the jury regarding the driver’s possible inattention. Affording great discretion to the trial court in its firsthand observations and viewing the record in the light most favorable to the trial court’s ruling, we find that the trial court was within its discretion to grant a new trial because of the inadmissible evidence being shown and argued to the jury.

We deny the petition for writ of mandamus.

Concurring Opinion by Justice CARTER.

JACK CARTER, Justice,

concurring.

While I agree with the court’s conclusion in this case, I am concerned that we are initiating an improper process of review of a trial court’s order granting a new trial.

The granting of a new trial cannot be reviewed and scrutinized in the same way as many other actions of the judge; it is a decision by the judge that something occurred during the trial to skew the trial process. This may be based on one major event or it may be a series of minor incidents that coalesce to interfere with the advocacy process. Only the trial judge is in a position to make this call after being intimately involved in every aspect of the trial. I think it is a mistake to attempt to review this decision with the same prism as reviewing an evidentiary ruling. Such an order comes from the trial judge’s experience, understanding of the case, and even a feel for what occurred at trial. It does not lend itself to the usual appellate review process; perhaps that is the reason the law of this State has for generations authorized this action without review.

Even from a cynical viewpoint, we must recognize that a trial judge has a docket to manage and the last thing the judge wants is a retrial of a two-month case. If the judge grants a new trial, we should be well assured that the judge earnestly believes a new trial is essential; that decision should be given great deference.

For us to consider the mandamus, there must be no other adequate remedy. Two aged civil cases and a criminal case are the only authorities cited to support such a finding. Neither of the civil cases discusses whether an ordinary appeal is an adequate remedy. In Houston & T.C. Ry. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648 (1905), the issue was whether the enforcement of one city ordinance rather than another was an adequate remedy. Likewise, City of Highland Park v. Dallas Ry. Co., 243 S.W. 674 (Tex.Civ.App.-Dallas 1922, writ ref'd), involved an issue of whether the city had the right to enforce, by mandamus, a statute requiring the railway company to make certain installations. Neither of these cases sheds light on whether an ordinary appeal is an adequate remedy. If the question is simply whether mandamus is more convenient, the usual appeal process may become a relic.

But the more basic question is what is an appellate court to do with a trial court order granting a new trial when the trial judge has complied with Columbia Medical Center and specifically stated reasons for granting the new trial? We know that the trial court has a different set of rules for overturning a jury verdict than an appellate court. Columbia Med. Ctr., 290 S.W.3d at 211. There are valid reasons for requiring a different standard for the two: the trial court has listened and watched every witness, is involved in the dynamics of the trial, has observed the jury, whereas the appellate court reads volumes of typed transcript. Here, the trial judge gave principled reasons for granting the new trial and did not rely on a simple “in the interest of justice” ground. For instance, one of the reasons stated was juror inattention. Is it necessary to establish in the record juror inattention, or do we trust the trial judge’s evaluation? Are trial judges required to act as advocates and “protect the record” to preserve every possible reason that might be given as the ground for granting the new trial, or is it more important that judges continue their core function of conducting and ensuring a fair trial?

If it is our duty to review the record, even that is impossible since we do not have a full record; our record consists of an appendix containing what must be very minor portions of a two month trial. Luf-kin has brought this mandamus action, so it is logical that, at a minimum, it has the burden to prove that the trial judge’s reasons for granting the new trial are not supported in the record. Since we do not have a full record, how can we find that Lufkin has shown the evidence will not support the trial judge’s finding? Generally when a full record is not before us, we presume the missing portion of the record contains evidence to support the trial court’s determinations. Feldman v. Marks, 960 S.W.2d 613, 614 (Tex.1996); In re Estate of Arrendell, 213 S.W.3d 496, 503 (Tex.App.-Texarkana 2006, no pet.). Ultimately, this attempt to review the record will not result in an expeditious disposition as trial attorneys will insist that a full record be prepared which will cause delay and prohibit a speedy new trial. The participants will be engaged in appellate practice rather than retrying the case.

When such a review is attempted, how do we determine if a trial judge has abused his or her discretion? Here, we sustained the granting of the new trial because we found that some evidence was improperly presented to the jury. The rejoinder argument is: that evidence was inconsequential in a two-month trial. May a trial judge grant a new trial even if the inadmissible evidence, on review, is found to be harmless? We are beginning a process of review for which no guidelines exist. Must a reversible error be presented before the trial judge can grant a new trial? If not, upon what basis are we deciding other than the rule that has been followed in this State for decades — we grant discretion to the trial judge.

The majority opinion acknowledges that trial judges are in a position to observe factors that may not be in the written record and accords great discretion to the judge. When a trial judge has complied with Columbia Medical Center and given specific plausible reasons for determining that good cause exists to grant a new trial, we should defer to that finding based on the trial judge’s unique position to evaluate the trial and the authority granted by Rule 320. Tex.R. Civ. P. 320.

I concur with the judgment.

      . Prudential, 148 S.W.3d at 137 n. 53 (quoting 16 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3934.1, at 572, 574 (1996) (“stating that ‘[w]rit review that responds to occasional special needs provides a valuable ad hoc relief valve for the pressures that are imperfectly contained by the statutes permitting appeals from final judgments and interlocutory orders,’ and that '[¡Important questions of procedure often are difficult to review by appeal, and at times may demand appellate intervention to secure uniformity between different judges, or simply to bring the balancing perspective that appellate review is intended to provide in controlling the practices as well as the substantive decisions of trial courts.’ ”)).

      . Here, there is no dispute that the trial court’s reasons for granting a new trial are sufficiently specific to meet the requirements of Columbia Medical Center.

      . In Columbia Medical Center, the Texas Supreme Court pointed out that, although the standards for setting aside a jury verdict were different for a trial court than for a court of appeals, "there is no meaningful difference to the parties between an appellate court reversing a judgment based on a jury verdict and a trial court setting the verdict aside or disregarding it. The end result is that the prevailing party loses the jury verdict and the judgment, or potential judgment, based on it.” Columbia Med. Ctr., 290 S.W.3d at 211-12. An appellate court has always been required to detail the evidence given in support of and against a verdict when setting a verdict aside for want of evidence but the trial court has not been traditionally required to do so. It is noted that the federal system and some forty other States require that a trial court explain its reasoning in disregarding a jury finding to assure that the trial court "does not simply substitute [its] judgment for that of the jury, thus depriving the litigants of their right to trial by jury.” Id. at 212 (quoting Scott v. Monsanto Co., 868 F.2d 786, 791 (5th Cir. 1989)).

      . Lufkin asserts that Baker failed to preserve this basis for our review. However, in civil cases, our procedural rules expressly permit a trial court to grant a new trial on its own motion for any good cause. Tex.R. Civ. P. 320. Here, in granting a new trial, the trial court acted "on its own Motion and on the Motion of [Baker].”

      . In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex.2009).


source: Caselaw Access Project

author: Justice MARTIN RICHTER.

license: Public Domain

text:
    FALK & FISH, L.L.P., Appellant, v. PINKSTON’S LAWNMOWER AND EQUIPMENT, INC., Appellee.
    No. 05-08-01389-CV.
    Court of Appeals of Texas, Dallas.
    July 20, 2010.

      Richard G. Danner, Jr., Dallas, TX, for Appellant.
    Daniel J. Sheehan, Jr., John M. Phalen, Jr., Daniel Sheehan & Associates, L.L.P., Dallas, TX, for Appellee.
    Before Justices MARTIN RICHTER, LANG-MIERS, and MYERS.
   OPINION

Opinion by

Justice MARTIN RICHTER.

This appeal involves an attorney-client contract dispute. Appellant, Falk & Fish, L.L.P., appeals from the trial court’s order of dismissal which sustained the amended special appearance of Pinkston’s Lawnmower and Equipment, Inc. and dismissed the claims of Falk & Fish for lack of personal jurisdiction. In two issues, appellant contends the trial court erred by failing to enforce a unambiguous forum selection clause whereby appellee consented to jurisdiction in Texas, or alternatively, if the forum selection clause is ambiguous, by not submitting it to the jury for interpretation. We affirm.

I. BACKGROUND

Pinkston’s Lawnmower and Equipment, Inc. (PLE) is a North Carolina corporation with its principal place of business in North Carolina. Randy Pinkston (Pink-ston), a North Carolina resident, is the president of PLE. Robert Hardy Falk (Falk) is the managing partner of the Dallas, Texas law firm of Falk & Fish, L.L.P. (Falk & Fish). Falk is licensed to practice law in North Carolina and Texas. PLE hired Falk to represent it in a lawsuit in North Carolina federal court. From October 2005 through March 2006, Falk & Fish billed PLE for eighty-five hours of legal services performed. In March 2006, Falk met with Pinkston at PLE’s offices and gave him an attorney-client engagement agreement which detailed the terms of Falk & Fish’s representation of PLE. Pinkston signed the agreement as president of PLE.

PLE’s North Carolina lawsuit did not go well. Likewise, the attorney-client relationship between PLE and Falk & Fish deteriorated. Falk & Fish billed PLE for legal services and expenses and PLE failed to pay all of the amounts billed. Ultimately, Falk & Fish filed a breach of contract lawsuit against PLE in Dallas County, Texas. In its original petition, Falk & Fish stated the court had jurisdiction over PLE by virtue of the contract between the parties in which PLE consented to jurisdiction in this state and county.

PLE filed a special appearance, asserting the trial court did not have general or specific jurisdiction over it and the contract at issue did not evidence consent to such jurisdiction. PLE attached a copy of the agreement and an affidavit of its president, Pinkston, who averred that PLE had no contacts with Texas. Further, Pinkston stated that prior to signing the attorney-client agreement, no Falk & Fish attorney explained the terms of the agreement, including the meaning of the following clause: “[y]ou agree our relationship and our agreement is controlled by Texas law, and the applicable courts of Dallas, Texas shall be the for a [sic] for all attorney-client disputes.” PLE filed an amended special appearance, supported by additional exhibits and a more detailed affidavit of Pinkston in which he stated, “[a]t no time before signing the Engagement Agreement did Robert Falk advise me that any dispute between Pinkston Lawnmower and Falk & Fish, LLP would have to be resolved in Dallas, Texas. Nor did Mr. Falk advise me that Pinkston Lawnmower, by signing the agreement, was waiving its right to litigate any disputes with Falk & Fish, LLP in North Carolina. At the time I signed the Engagement Agreement, I did not understand that Pinkston Lawnmower was agreeing to litigate any disputes with Falk & Fish, LLP in Texas and I believed that any such disputes would be resolved in North Carolina.”

In its response to PLE’s amended special appearance, Falk & Fish asserted the forum selection clause in the attorney-client agreement was valid and enforceable. Falk & Fish attached the affidavit of Falk, who stated he explained the engagement letter, including the forum selection clause, to Pinkston before Pinkston signed it. Falk & Fish also attached a copy of the transcript of a deposition of Pinkston in which he admitted he did not read the attorney-client agreement before signing it.

On June 5, 2008, the trial court conducted a hearing on PLE’s amended special appearance. The record does not contain a reporter’s record of the hearing. On June 16, 2008, the trial court signed an order of dismissal, sustaining PLE’s amended special appearance, and dismissing Falk & Fish’s claims for lack of personal jurisdiction over PLE.

On July 16, 2008, Falk & Fish filed an untimely request for findings of fact and conclusions of law with a motion to suspend rule 296 of the Texas Rules of Civil Procedure to allow a late request. Falk & Fish also filed a motion for new trial. The record does not reflect a ruling by the trial court on Falk & Fish’s motion for new trial. Consequently, the motion was overruled by operation of law. This appeal followed.

II. STANDARD OF REVIEW

When we review a trial court’s order granting a special appearance, we review the court’s factual findings for legal and factual sufficiency and its legal conclusions de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.2002); Hoffmann v. Dandurand, 180 S.W.3d 340, 345 (Tex.App.-Dallas 2005, no pet.). When a trial court does not issue findings of fact and conclusions of law, we infer all facts necessary to support the judgment if they are supported by the evidence. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex.2007); BMC Software Belgium, 83 S.W.3d at 795. Here, the trial court did not issue findings of fact and conclusions of law. Consequently, by granting the special appearance, the court impliedly found that the forum selection clause in the attorney-client agreement was unenforceable.

We review the validity and enforceability of a forum selection clause under an abuse of discretion standard. CNOOC Southeast Asia Ltd. v. Paladin Resources (Sunda) Ltd., 222 S.W.3d 889, 894 (Tex.App.-Dallas 2007, pet. denied); Phoenix Network Techs. (Europe) Ltd. v. Neon Sys., Inc., 177 S.W.3d 605, 610 (Tex.App.Houston [1st Dist.] 2005, no pet.). We review contractual interpretation of a forum selection clause de novo. Id.

III. DISCUSSION

On appeal, Falk first complains that the trial court erred by failing to enforce the forum selection clause in the attorney-client agreement. The agreement contains the following provision: “[y]ou agree our relationship and our agreement is controlled by Texas law, and the applicable courts of Dallas, Texas shall be the for a [sic] for all attorney-client disputes.” Falk argues this provision is a valid and enforceable forum selection clause whereby PLE voluntarily consented to the jurisdiction of the Dallas, Texas courts.

Forum selection clauses are generally enforceable. In re AIU Ins. Co., 148 S.W.3d 109, 111-12 (Tex.2004). A party attempting to show that such a clause should not be enforced bears a heavy burden to prove the clause is invalid. In re Int’l Profit Assocs., Inc. 286 S.W.3d 921, 923 (Tex.2009) (orig. proceeding) (per cu-riam). A trial court abuses its discretion if it refuses to enforce a forum selection clause unless the party opposing enforcement clearly shows that: (1) enforcement would be unreasonable or unjust; (2) the clause is invalid for reasons of fraud or overreaching; (3) enforcement would contravene a strong public policy of the forum where the suit was brought; or (4) the selected forum would be seriously inconvenient for trial. Id.

In its amended special appearance, PLE asserted it did not consent to jurisdiction in Texas because “the plain wording of the clause is insufficient to establish personal jurisdiction over Pinkston.” PLE contends the provision is unintelligible and therefore, unenforceable. We first consider whether the subject provision is a forum selection clause. On its face, the provision does not appear to be a forum selection clause. The plain and unequivocal language of the provision does not include the words “forum” or “jurisdiction,” two words commonly included in forum selection clauses. Falk & Fish concedes the provision contains a typographical error, “for a” instead of “forum,” but argues the omission of the word “forum” does not matter because Pinkston did not read the contract before signing it. We do not construe contracts or decide cases based on the inclusion or exclusion of “magic words.” Deep Nines, Inc. v. McAfee, Inc., 246 S.W.3d 842, 846 (Tex.App.-Dallas 2008, no pet.). However, we are mindful that in this case the forum selection clause is the basis for personal jurisdiction over PLE. PLE asserts it has no contacts with Texas that would otherwise give rise to the jurisdiction of Texas courts.

Falk & Fish argues the provision is not confusing or ambiguous because the agreement must be read as a whole and its provisions harmonized to express the intent of the parties. Falk & Fish also argues the provision is not ambiguous because PLE has not proposed an alternative reasonable interpretation of the provision. A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). However, when a written contract is worded so that it can be given a certain or definite legal meaning or interpretation, it is unambiguous and the court construes it as a matter of law. Id.; see also Sefzik v. Mady Development, L.P., 231 S.W.3d 456, 460 (Tex.App.-Dallas 2007, no pet.). When interpreting a contract, we also examine the entire agreement in an effort to harmonize and give effect to all provisions of the contract so that none will be meaningless. Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owners Ass’n, 205 S.W.3d 46, 55 (Tex.App.-Dallas 2006, pet. denied); Pratt-Shaw v. Pilgrim’s Pride Corp., 122 S.W.3d 825, 829 (Tex.App.-Dallas 2003, pet. denied). With respect to typographical errors, “written contracts will be construed according to the intention of the parties, notwithstanding errors and omissions, by perusing the entire document and to this end, words, names, and phrases obviously intended may be supplied.” City of Galveston v. Galveston Mun. Police Ass’n, 57 S.W.3d 532, 539 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). After examining the entire agreement as a whole in an effort to harmonize and give effect to the provision in question, we conclude the provision is not ambiguous. The typographical error “for a” may be interpreted to mean “forum” and thus give meaning to the provision.

Because the forum selection clause was not clear on its face and required harmonization and interpretation to give meaning to the language of the provision, we next consider whether it constitutes a waiver of PLE’s objection to personal jurisdiction in Dallas, Texas. A forum selection clause obtained through freely negotiated agreements does not offend due process, provided it is not unreasonable and unjust. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 473 n. 14, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); CNOOC Southeast Asia, 222 S.W.3d at 894. In its brief, Falk & Fish refers us to a number of cases in which the Texas Supreme Court held enforcement of forum selection clauses is mandatory unless the party opposing enforcement clearly shows that enforcement is unreasonable and unjust, or that the clause is invalid for reasons such as fraud or overreaching. See In re AIU, 148 S.W.3d at 112; In re Automated Collection Technologies, Inc., 156 S.W.3d 557, 559 (Tex.2004). However, in the cases cited by Falk & Fish, the forum selection clauses were clear and unequivocal and did not require interpretation to give meaning to the provisions. See In re AIU, 148 S.W.3d at 111 (“[T]he Insured and the Company agree that the law of the State of New York shall apply and that all litigation, arbitration or other form of dispute resolution shall take place in the State of New York”); In re Automated Collection Technologies, 156 S.W.3d at 558 (“The parties hereto consent to the exclusive jurisdiction of the courts of Montgomery County, Pennsylvania”). We do not have a clear, explicit forum selection clause in this case.

Falk & Fish drafted the attorney-client engagement agreement. On March 24, 2006, approximately six months after Falk & Fish began representing PLE, Falk gave PLE the agreement which detailed the terms of Falk & Fish’s representation of PLE. It is troubling that the parties entered into the attorney-client agreement after representation had begun. See Restatement (Third) of the Law Governing Lawyers § 18 cmt. c (2000) (“[C]lient-law-yer fee contracts entered into after the matter in question is under way are subject to special scrutiny.”). A client might accept such an agreement because it is difficult or expensive to change attorneys after representation has begun or a client might be reluctant to suggest changes to the terms proposed by the attorney in the agreement. Id.

When interpreting and enforcing an attorney-client agreement, the Texas Supreme Court has admonished us to be mindful of the ethical considerations overlaying the contractual relationship between an attorney and client. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 560 (Tex.2006). An attorney has a special responsibility to maintain the highest standards of conduct and fair dealing when contracting with a client or otherwise taking a position adverse to the client’s interests. Id. To place the burden of clarifying attorney-client agreements on the attorney is justified, not only by the attorney’s greater knowledge and experience with respect to such agreements, but also by the trust the client has placed in the attorney. Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95 (Tex.2001). According to the Restatement of the Law Governing Lawyers, contracts between an attorney and client should first be construed from the standpoint of a reasonable person in the client’s circumstances. See Restatement (Third) of the Law Governing Lawyers § 18 cmt. h. “The lawyer thus bears the burden of ensuring that the contract states any terms diverging from a reasonable client’s expectations.” Id. Although much of the case law illustrating this construction principle addresses disputes over fee terms, the principle is applied to other terms as well. Id. One of the reasons for this rule of construction is that attorneys are more able than most clients to detect and repair omissions or ambiguities in attorney-client agreements. Id. This does not preclude reliance on the usual resources of contractual interpretation such as the contract language, the circumstances in which the contract was made, the client’s sophistication and experience in retaining and compensating attorneys, and whether the contract terms were truly negotiated. Id.

In this case, we do not have a sophisticated and experienced client who vigorously negotiated the fee agreement with his attorney. Instead, the record reflects that Pinkston, who signed the contract as president of PLE, is an unsophisticated and inexperienced individual whose attorney presented an already drafted agreement six months after representation had begun. There is nothing in the record to indicate the agreement was negotiated. According to the record, Pinkston signed the agreement without reading it. Being unaware of the forum selection clause does not make it invalid. In re Lyon Fin. Sews., Inc., 257 S.W.3d 228, 233 (Tex.2008). “Parties to a contract have an obligation to protect themselves by reading what they sign and, absent a showing of fraud, cannot excuse themselves from the consequences of failing to meet that obligation.” Id. In this case, however, even if Pinkston had read the contract prior to signing it, the drafting error by Falk & Fish resulted in a provision that was not a clear forum selection clause.

The parties dispute whether Falk explained the forum selection provision to Pinkston. In his affidavit supporting PLE’s amended special appearance, Pink-ston asserted Falk did not advise him of the forum selection provision or explain its meaning. In Falk’s affidavit in support of Falk & Fish’s defense to PLE’s amended special appearance, Falk stated he explained the terms of the agreement to Pinkston before he signed it, including the forum selection clause. We question why Falk did not detect and correct the typographical error at the time he explained to Pinkston that the provision in question meant that any attorney-client disputes would be litigated in the applicable courts of Dallas, Texas. Given the language of the contract, the circumstances in which it was made, the client’s lack of sophistication and experience in retaining lawyers and the lack of negotiation, we conclude Falk & Fish had the burden of ensuring the contract clearly stated any terms that diverged from PLE’s expectations. Restatement (Third) of the Law Governing Lawyers § 18 com. h.

In its amended special appearance, PLE also argued the forum selection clause was unenforceable because (i) such enforcement would be unreasonable or unjust, and (ii) the clause was overreaching. The party claiming a forum selection clause should not be enforced bears a heavy burden of proof. In re AIU Ins. Co., 148 S.W.3d at 113. When the inconvenience of litigating in the chosen forum is foreseeable at the time of contracting, the party seeking to avoid the forum selection clause must establish that “trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Id.,quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). To be found overreaching, the forum selection clause must result in unfair surprise or oppression. In re ADM Investor Servs., Inc., 257 S.W.3d 817, 823 (Tex.App.-Tyler 2008, no pet.); see also In re Lyon Fin. Servs., 257 S.W.3d at 232-33. The record reflects that at the time PLE entered into the attorney-client agreement with Falk & Fish, it did not contemplate litigating in Texas. PLE hired Falk, an attorney licensed in North Carolina, to represent PLE in litigation in North Carolina. The attorney-client agreement does not contain a clear, explicit forum selection clause. When a provision must be harmonized and interpreted in order to ascertain that it is a forum selection clause, we cannot conclude it is a mutually agreed forum, or that such forum was foreseeable at the time of contracting. We conclude PLE met its burden of proving the forum selection clause unreasonable in this case.

Because the forum selection clause was not clear on its face and required interpretation to give meaning to the language of the provision, we conclude PLE did not consent to personal jurisdiction in Dallas, Texas. We also conclude that enforcement would be unreasonable or unjust. Accordingly, the trial court did not abuse its discretion by refusing to enforce the forum selection clause.

In its second issue, Falk & Fish argues if the contract is ambiguous, which it contends it is not, the trial court erred by dismissing the lawsuit instead of giving the issue of interpretation to the jury. Because we conclude the contract is not ambiguous, we need not address Falk & Fish’s second issue.

IV. CONCLUSION

We conclude the trial court did not err by sustaining PLE’s special appearance and dismissing Falk & Fish’s claims for lack of personal jurisdiction over PLE. The trial court’s order of dismissal is affirmed.


author: Opinion By Justice MOSELEY.

text:
    MIDWEST MEDICAL SUPPLY CO., L.L.C., Appellant, v. Mark A. WINGERT, Specialty Med Care GP, L.L.C., and Specialty Med Care, L.P., Appellees.
    No. 05-07-01645-CV.
    Court of Appeals of Texas, Dallas.
    July 20, 2010.

      Hilaree A. Casada, Cowles & Thompson, Monte K. Hurst, Hermes Sargent Bates, L.L.P., Dallas, TX, for Appellant.
    Mark Wingert, Mansfield, TX, for Ap-pellee.
    Before Justices MOSELEY, RICHTER, and FRANCIS.
   OPINION

Opinion By Justice MOSELEY.

Midwest Medical Supply Co., L.L.C. filed a lawsuit for breach of contract and breach of fiduciary duty against its former employee, Mark Wingert, and for business torts against two corporate defendants related to Wingert. A jury found Wingert breached the contracts and his fiduciary duty to Midwest and awarded Midwest damages for past lost profits. After several post-verdict motions and hearings, the trial court rendered judgment on the jury’s verdict. However, it denied Midwest’s request for attorneys’ fees, and awarded costs in part to Midwest against Wingert and in part to the corporate defendants against Midwest.

Midwest appeals the portions of the judgment denying its post-verdict motion for attorneys’ fees and awarding court costs to the corporate defendants. We conclude the trial court correctly applied Missouri law to the claim for attorneys’ fees and did not abuse its discretion in awarding costs. We affirm the trial court’s judgment.

BACKGROUND

Midwest, a Missouri limited liability company, is a regional distributor of healthcare products. In November 1999, it acquired a distributor of medical products in Dallas and hired Wingert as a sales representative. On December 16, 1999, Wingert signed a non-competition agreement as well as a confidentiality/conflict of interest agreement with Midwest’s local distributor. (This latter agreement is called the “Texas Agreement.”) The Texas Agreement provided that it “shall be interpreted and construed according to the laws of the State of Texas.”

On March 19, 2001, Wingert signed a confídentiality/conflict of interest agreement with Midwest (the “Missouri Agreement”). The Missouri Agreement provided it would be “interpreted and construed according to the laws of the State of Missouri.” The Missouri Agreement is identical to the Texas Agreement except for the date of execution, the name of the employer, a sentence requiring the employee to report any conflicts of interest to the employer, and the choice of law provision.

In both the Texas Agreement and the Missouri Agreement, Wingert agreed, as a condition of continued employment: (1) not to misuse any trade secrets of Midwest; (2) not to do anything that interfered with his duties or loyalty to Midwest; (3) not to use his position with Midwest for personal advantage or gain; and (4) to remain free of conflicting business interests which would interfere with his duty to act at all times in the best lawful and ethical interest of Midwest. Neither agreement provided for the award of attorneys’ fees in the event of litigation.

Midwest alleged and presented evidence at trial that beginning in 2002, while he was still employed by Midwest, Wingert took steps to form a competing business, Specialty Med Care, L.P., and began soliciting clients away from Midwest to his competing business. In late December 2002, a client notified Midwest it was canceling its contract with Midwest. Another client canceled in January 2003. Win-gert’s last day of employment with Midwest was January 31, 2003.

Midwest filed suit against Wingert on several theories, including breach of contract. Midwest alleged Wingert breached two contracts: (1) the December 16, 1999 non-competition agreement; and (2) the Missouri Agreement. Midwest requested attorneys’ fees under section 38.001 of the civil practices and remedies code. Midwest also sued the corporate defendants, Specialty Med Care GP, L.L.C. and Specialty Med Care, L.P., for misappropriation of trade secrets and tortious interference with contracts.

The jury charge asked the jury whether Wingert failed to comply with four specific paragraphs of the “Conflict of Interest Agreements,” a phrase defined to refer to the Texas Agreement and the Missouri Agreement. The jury found Wingert failed to comply with three of those paragraphs. The jury also found damages of over $113,000 for past lost profits resulting from Wingert’s failure to comply with the three paragraphs. The jury found that Midwest did not provide Wingert with confidential information during his employment, and thus found against Midwest on whether Wingert violated the non-competition agreement. In addition, the jury found against Midwest on the misappropriation of trade secrets claim against Win-gert and Specialty Med Care GP, L.L.C. Midwest abandoned its tortious interference claim against Specialty Med Care, L.P.

After the verdict, Midwest filed a motion for judgment on the verdict and a motion for attorneys’ fees based on the Texas statute authorizing an award of fees for breach of contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008). Midwest attached evidence and requested over $320,000 in attorneys’ fees through trial and post-verdict motions, plus conditional awards of appellate attorneys’ fees. Midwest segregated about $18,000 in fees related solely to the non-compete claim, on which it did not prevail, and to tort claims, for which fees are not recoverable, and excluded that amount from its request. All other fees, it contended, represented fees for discrete legal services advancing both recoverable and non-recoverable claims and were so intertwined with the breach of contract claims they need not be segregated. See Tony Gullo Motors, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex.2006). Midwest did not segregate fees related to the breach of and damages resulting from the Texas Agreement from those relating to the breach of and damages resulting from the Missouri Agreement.

Wingert moved for judgment notwithstanding the verdict on the breach of contract findings, arguing the Texas and Missouri Agreements were without consideration. Based on the jury’s finding that Midwest did not provide him with confidential information during his employment, Wingert argued his continued employment was not sufficient consideration for a bilateral contract.

In response, Midwest cited the Missouri choice of law provision in the Missouri Agreement and argued that under “controlling Missouri law,” continued employment was valid consideration for the Texas and the Missouri Agreements. (The response did not discuss the Texas choice of law provision in the Texas Agreement.) Midwest provided the trial court with Missouri case law supporting this contention. Alternatively, Midwest argued continued employment constituted valid consideration under Texas law because the contract provisions did not involve the enforceability of a eovenant-not-to-compete under the business and commerce code. See Tex. Bus. & Com.Code Ann. §§ 15.50-.52 (Vernon 2002 & Supp.2009).

Wingert also moved for attorneys’ fees under the declaratory judgment act arguing he was successful in challenging the enforceability of the covenant-not-to-compete. He requested fees of over $120,000, and argued Midwest’s attorneys’ fees were grossly inflated because most of the case was about the enforceability of the non-compete agreement and other causes of action.

After a hearing, the trial court denied Wingert’s motion for judgment notwithstanding the verdict. The trial court stated on the record that the court did not believe there was a conflict between Texas and Missouri law on the issue of consideration, but if there were a conflict, Missouri law applied under the choice of law provision and Missouri law was clear that continued employment is sufficient consideration for the contract.

Regarding attorneys’ fees, the trial court sent a letter to the parties stating the court’s opinion that Missouri law was “likely dispositive” of Midwest’s request for fees and outlining proposed conclusions of law the court believed were correct: the contract claim on which Midwest prevailed was based on the Missouri Agreement; the Missouri Agreement did not provide for attorneys’ fees; the Missouri Agreement provided it would be “interpreted and construed” according to Missouri law; under Missouri law, attorneys’ fees are recoverable only if the contract specifically provides for attorneys’ fees; the court can take judicial notice of Missouri law on its own motion; and Midwest argued forcefully in response to Wingert’s motion for judgment notwithstanding the verdict that because of the choice of law provision, the Missouri Agreement was subject to Missouri law.

After further briefing and hearings, the trial court denied both parties’ motions for attorneys’ fees in its final judgment. Midwest filed a request for findings of fact and conclusions of law on its motion for attorneys’ fees. When the trial court failed to file written findings, Midwest filed a notice of past-due findings. The trial court did not file any findings of fact or conclusions of law.

ISSUES ON APPEAL

Midwest requested a partial reporter’s record and included a statement of issues on appeal. We presume the partial reporter’s record designated by the parties is the entire record for purposes of reviewing the issues stated in Midwest’s request for a partial record. Tex.R.App. P. 84.6(c). Midwest raises five issues on appeal; however, the third issue — whether the trial court erred in determining that the Missouri Agreement was the only agreement upon which judgment could be based — was not included in the statement of issues for the partial reporter’s record. Thus, we do not consider it. Tex.R.App. P. 34.6(c)(1). The remaining four issues are (1) whether the trial court erred by denying Midwest’s motion for attorneys’ fees; (2) whether the trial court erred by determining that Missouri law applied to the issue of attorneys’ fees; (3) whether a remand is necessary to determine the amount of attorneys’ fees; and (4) whether the trial court erred by awarding costs to the corporate defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Midwest points out that the trial court did not file written findings of fact and conclusions of law after its initial request and subsequent reminder of past due findings. Midwest, however, states the error in not filing findings has not harmed it because the issue of entitlement to attorneys’ fees is a question of law. We agree. An error in failing to file findings of fact and conclusions of law when properly requested is presumed harmful unless the record affirmatively shows the complaining party suffered no harm. See Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex.App.-Dallas 2003, pet. denied). An appellant is harmed if, under the circumstances of the case, it must guess at the reason the trial court ruled against it. Id. Midwest does not have to guess at the trial court’s reason for ruling against it. The attorneys’ fee issue turns on the choice of law issue; Midwest is entitled to attorneys’ fees if Texas law applies, but not if Missouri law applies. Similarly, whether Midwest is entitled to costs against the corporate defendants turns on whether it was the successful party under rule 131. Tex.R. Civ. P. 131. Midwest is not required to guess at the reason the trial court ruled against it. See Larry F. Smith, 110 S.W.3d at 614. Thus, we conclude the trial court’s failure to file written findings of fact and conclusions of law was harmless.

ATTORNEYS’ FEES

Under Texas law, Midwest must have a valid claim for breach of a written contract and may recover reasonable attorneys’ fees in addition to that claim. Tex. Civ. Prac. & Rem.Code Ann. § 38.001(8). Under Missouri law, Midwest may recover attorneys’ fees for breach of a written contract only if the contract provides the prevailing party will be entitled to recover fees. See Brown v. Mercantile Bank of Poplar Bluff, 820 S.W.2d 327, 339-40 (Mo.App.1991) (discussing other exceptions not applicable here).

Midwest argues its first two issues together. First, it says the scope of the choice of law provision in the Missouri Agreement is narrow and does not apply to the issue of attorneys’ fees. Second, it says the Missouri Agreement did not supersede the Texas Agreement because the trial court submitted both agreements to the jury and because Wingert waived the application of Missouri law to the issue of attorneys’ fees.

The availability of attorneys’ fees under a particular statute is a question of law and will be reviewed de novo. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999). Similarly, the trial court’s decision on what law to apply is a question of law and is also reviewed de novo. See Minnesota Min. & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex.1996); Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d 529, 534 (Tex.App.Houston [1st Dist.] 2005, pet. denied).

Generally, the parties’ contractual choice of law will be given effect if the contract bears a reasonable relationship to the chosen state and no countervailing public policy of the forum demands otherwise. SAVA Gumarska in Kemijska Industria D.D. v. Advanced Polymer Sciences, Inc., 128 S.W.3d 304, 314 (Tex.App.Dallas 2004, no pet.); Restatement (Second) of Contracts § 187(1) (1971) (“The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.”).

A. Scope of Choice of Law Provision

As noted earlier, under Missouri law, Midwest may recover attorneys’ fees for breach of a written contract only if the contract so provides. See Brown, 820 S.W.2d at 339-40. The choice of law provision in the Missouri Agreement states that it shall be “interpreted and construed” according to Missouri law.

Midwest does not question the relationship of the Missouri Agreement to Missouri or that the issue of attorneys’ fees could be resolved by an explicit provision of the agreement. Nor does Midwest suggest that applying Missouri law to the issue of attorneys’ fees would offend a fundamental public policy of Texas. See Smith v. EMC Corp., 393 F.3d 590, 598 (5th Cir.2004) (“Texas courts frequently deny attorney’s fees if prohibited by the state law designated by contractual choice-of-law provisions.”); Rapp Collins Worldwide, Inc. v. Mohr, 982 S.W.2d 478, 487-88 (Tex.App.-Dallas 1998, no pet.) (“We conclude the issue of attorneys’ fees is a substantive part of a lawsuit and therefore should be governed by the law of the state governing the substantive issues.”). Thus, ordinarily we would give effect to the parties’ agreement and—in this case—apply Missouri to the issue of whether Midwest is entitled to attorneys’ fees.

However, relying on Stier v. Reading & Bates Corp., 992 S.W.2d 423 (Tex.1999), Midwest argues the Missouri Agreement’s choice of law provision does not apply to the recovery of attorneys’s fees. In Stier, the supreme court concluded a Texas choice of law provision applying to the interpretation and enforcement of the injured seaman’s employment contract did not entitled him to assert his tort claims for personal injury under Texas law. Id. at 438. The court recognized that the tort claims did “not rise or fall on the ‘interpret[ation] and enforce[ment]’ of any contractual provision.” Id. This Court has reached a similar conclusion. Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 684 (Tex.App.-Dallas 2007, pet. denied) (agreement providing it would be “interpreted, construed and enforced” according to Ohio law, did not require application of Ohio law to statutory and tort claims).

However, both Stier and Red Roof sought to determine whether a contractual choice of law provision determined the law applicable to non-contractual tort and statutory claims. In contrast, the issue here is whether the contractual choice of law provision determines the law applicable to the substantive issue of the recovery of attorneys’ fees for breach of that contract. Thus, both Stier and Red Roof are distinguishable from this case.

Unlike the mixture of tort and statutory claims found in the cases cited by Midwest, “the attorney’s fees claim here arises directly from a breach of the contract containing the choice-of-law provision.” Fairmont Supply Co. v. Hooks Industrial, Inc., 177 S.W.3d 529, 535 (Tex.App.-Houston [1st Dist.] 2005, pet. denied).

The court in Fairmont addressed the same issue we face: whether the law applicable to the recovery of attorneys’ fees for breach of contract is determined by the choice of law provision in that contract. Id. at 534. There the contract provided that the “validity, construction and performance” of the contract would be determined in accordance with Pennsylvania law. Id. Because the “award of attorney’s fees is inextricably intertwined with the substantive issue of contractual liability— an issue that is undisputably governed by the choice-of-law provision,” the court concluded the award of attorneys’ fees was a substantive contractual issue governed by the law chosen by the parties. Id. at 535-36.

A claim for attorneys’ fees for breach of contract is not an independent cause of action. We have recognized that the recovery of attorneys’ fees for breach of a contract is a substantive, not a procedural, issue and will be governed by the law governing the substantive issues. Rapp Collins, 982 S.W.2d at 487-88. There, we affirmed the denial of attorneys’ fees in a breach of contract case because the contract provided that New York law controlled the substantive issues and, under New York law and the facts of the case, attorneys’ fees were not recoverable. Id. at 487.

We conclude Midwest’s claim for attorneys’ fees is part of its substantive claim for breach of contract. But for Midwest’s breach of contract claim, it could not assert a claim for attorneys’ fees against Wingert under either Texas or Missouri law. As such, Midwest’s ability to recover attorneys’ fees is governed by Missouri law, which does not permit such relief when — as here — the contract does not provide for the recovery of attorneys’ fees by the prevailing party. See Brown, 820 S.W.2d at 339-40.

B. Superseded Contract

Midwest recognizes the general rule that when parties enter into a second contract dealing with the same subject matter as their first contract without stating whether the second contract operates to discharge or substitute for the first contract, the two contracts must be interpreted together and the latter contract prevails to the extent they are inconsistent. The Courage Co., L.L.C. v. The Chemshare Corp., 93 S.W.3d 323, 333 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Crown W. Invs., Inc. v. Mercantile Nat. Bank at Dallas, 504 S.W.2d 785, 789 (Tex.Civ.App.-Tyler 1974, no writ) (quoting 6 Arthur L. Corbin, Corbin on Contracts § 1293, p. 198 (1962)). The two agreements in this case are identical except for the choice of law provisions. Thus, if we follow the general rule we would apply the choice of law provision in the later agreement — the Missouri Agreement — to the attorneys’ fees issue.

In its second issue, however, Midwest argues the Missouri Agreement did not supersede the Texas Agreement because the trial court submitted both agreements to the jury and because Wingert waived the application of Missouri law to the issue of attorneys’ fees.

1. Jury charge

The trial court’s charge asked the jury to determine whether Wingert failed to comply with identical paragraphs of the “Conflict of Interest Agreements,” defining that term as referring “collectively to [the Texas Agreement and the Missouri Agreement].” Midwest argues this submission treated the agreements as separately and distinctly enforceable. We disagree. Collectively does not mean separately and distinctly. The trial court submitted the factual issues of whether Wingert breached certain identical paragraphs of the two agreements. The difference in the two agreements — the choice of law provisions — did not present a fact question for the jury.

Moreover, as described above, the different choice of law provisions in the two agreements raise a question of law for the court to resolve, not a fact question. That legal issue — which choice of law provision applied — is not affected by the trial court’s submission of the fact issues to the jury here.

Additionally, regardless of whether trial court should have submitted to the jury whether Wingert breached provisions in both the Texas Agreement and the Missouri Agreement, no issue was submitted as to any fact issue that might render inapplicable the general rule described above — i.e. that the choice of law provision in the Missouri Agreement (as the later contract) prevails over the choice of law provision in Texas Agreement. See Courage, 93 S.W.3d at 333; Crown W. Invs., 504 S.W.2d at 789. Accordingly, we reject Midwest’s argument that the submission of both agreements to the jury in this case precludes application of the general rule.

2. Waiver

We also reject Midwest’s argument that Wingert waived the choice of law issue by not presenting evidence of Missouri law. It was Midwest itself that first raised the application of Missouri law under the Missouri Agreement in response to Wingert’s motion for judgment notwithstanding the verdict. Further, the waiver cases cited by Midwest are distinguishable because they involved situations where the court presumed the foreign law was the same as Texas absent proof the laws were different. See, e.g., Coco-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 695-96 (Tex.2006) (Brister, J., dissenting) (when party fails to request judicial notice of law of another state “Texas courts will simply presume that the law of the other state is identical to Texas law”); Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 769-70 (Tex.App.-Corpus Christi 1999, pet. denied); Clayton v. Newton, 524 S.W.2d 368, 871 (Tex.App.-Fort Worth 1975, no writ). That is not the situation before us. As the trial court recognized, the court can take judicial notice of such matters at any stage of the proceedings and on its own motion. See Tex.R. Evid. 202. We conclude that Midwest, having raised the applicability of Missouri law, “cannot now argue that [Wingert] did not sufficiently raise the issue or that [he is] somehow estopped from asserting the application of’ Missouri law. Nexen Inc. v. Gulf Interstate Eng’g Co., 224 S.W.3d 412, 418-19 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (finding no waiver where party asserting waiver itself raised the choice of law issue).

C. Conclusion

We overrule Midwest’s first two issues. Based on this ruling, we need not address Midwest’s third issue concerning segregation of the amount of fees. Tex.R.App. P. 47.1.

AWARD OF COSTS

Midwest’s fourth and final issue challenges the award of costs against it in favor of the corporate defendants. A defendant who obtains a take nothing judgment is a successful party entitled to the award of costs under rule 131. Tex.R. Civ. P. 131; Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 630 (Tex.App.-Dallas 2004, pet. denied). We review the trial court’s award of costs for an abuse of discretion and absent such an abuse of discretion, we will not reverse the assessment of costs. Mitchell, 156 S.W.3d at 630.

The record indicates Midwest abandoned its tortious interference claim against Specialty Med Care, L.P. and the jury rejected its misappropriation of trade secrets claim against Specialty Med Care GP, L.L.C. The trial court’s judgment awarded no relief to Midwest against the corporate defendants. Midwest contends, however, that because it was successful on some of its claims against Wingert, it was the successful party and entitled to recover costs from the corporate defendants. We disagree.

The only authorities cited by Midwest deal with counterclaims and off-sets against a successful plaintiffs claims. See, e.g., Gateley v. Humphrey, 247 S.W.2d 919, 921 (Tex.Civ.App.-Dallas 1952, no writ). The corporate defendants did not off-set a successful claim against them by Midwest, rather, they successfully defended against Midwest’s claims. See Dover Elevator Co. v. Servellon, 876 S.W.2d 166, 169 (Tex.App.-Dallas 1993, no writ) (defendant was successful party when jury rejected plaintiffs claims against it after all other defendants settled with plaintiff).

Midwest was not successful on any of its claims against the corporate defendants. Midwest has not shown the trial court abused its discretion in awarding costs against Midwest in favor of the corporate defendants. We overrule Midwest’s fourth issue.

CONCLUSION

We have overruled each of the issues necessary to resolve this limited appeal. Tex.R.App. P. 47.1. Accordingly, we affirm the trial court’s judgment.

      . Wingert filed suit against Midwest the same day seeking a declaratory judgment that the covenant-not-to-compete in the non-competition agreement was not enforceable under Texas law. The parties were later realigned with Midwest as plaintiff and Wingert and the corporate defendants as defendants.

      . The charge defined the “Conflict of Interest Agreements” as referring “collectively to the two agreements titled 'Confidentiality/Conflict of Interest Agreement' — the first agreement, dated December 16, 1999, between Defendant Mark Wingert and Campbell Critical Care (Plaintiff’s Exhibit No. 3), and the second agreement, dated March 19, 2001, between Defendant Mark Wingert and Plaintiff [Midwest] (Plaintiff's Exhibit No. 7).”


author: ADELE HEDGES, Chief Justice.

text:
    HOLMAN STREET BAPTIST CHURCH, Appellant, v. Limas JEFFERSON, Appellee.
    No. 14-09-00214-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 22, 2010.
    Rehearing Overruled Aug. 26, 2010.

      Richard Earl Griffin, Alan B. Daughtry, Houston, for appellants.
    Grant Cook, Reginald E. McKamie, Sr., Robert L. Galloway, Levi James Benton, Houston, for appellees.
    Panel consists of Chief Justice HEDGES and Justices ANDERSON and CHRISTOPHER.
   OPINION

ADELE HEDGES, Chief Justice.

Holman Street Baptist Church appeals from a judgment notwithstanding the verdict (JNOV) favoring Limas Jefferson. Jefferson initially sued Holman Street seeking a declaratory judgment that because the statute of limitations had run on a promissory note signed by Jefferson, Jefferson was entitled to the return of stock given to Holman Street as collateral. Holman Street then filed a counterclaim seeking to collect on the note. At the conclusion of trial, the jury returned findings favorable to Holman Street.

In his motion for JNOV, Jefferson alleged that there was no evidence of his having received consideration in exchange for signing the promissory note. He also argued that as a matter of law, the statute of limitations barred Holman Street’s attempt to collect on the note. The trial court granted the motion and ordered the collateral returned to Jefferson. On appeal, Holman Street contends that (1) the evidence was legally sufficient to establish that Jefferson received consideration for signing the promissory note; (2) because Jefferson had sought affirmative relief in his lawsuit, Holman Street could raise its claims despite the running of the statute of limitations; (3) the statute of limitations was extended by Jefferson’s promises to repay the loan; and (4) Jefferson was not entitled to return of the collateral. We reverse and remand for further proceedings in accordance with this opinion.

I. Background

Certain key facts in this case are undisputed, including that (1) in 1992, Jefferson signed a promissory note agreeing to pay Holman Street $93,674.72 plus interest; (2) also in 1992, Jefferson signed a security agreement granting Holman Street a security interest in 142,906 shares of stock in Unity National Bank; (3) Holman Street took possession of the stock on the day the security agreement was signed; (4) Jefferson has made no payments of principal or interest; and (5) the accrued principal and interest was $1,252,837.37 as of June 16, 2008. In the late 1980s, Jefferson and Reverend Manson Johnson, pastor of Holman Street Baptist Church, were on the board of directors of Unity National Bank, which was owned at the time by a bank holding company called Bay Bancshares. In 1989, Bay Bancshares agreed to sell Unity to a group of investors that included Jefferson, Holman Street, and St. Agnes Baptist Church. The purchase price was $1.1 million, with $450,000 paid initially and $650,000 financed with Bay Banc-shares.

According to Johnson, in 1989, when the investor group began having trouble making payments on the financed portion of the purchase price, an agreement was reached for a cash settlement. Johnson explained that Jefferson subsequently had difficulty coming up with his $82,600 share of the $200,000 settlement amount. On October 23, 1989, attorneys representing Unity Bank sent a letter to the Federal Reserve Bank of Dallas, in which they stated that: “The viability of the settlement is in jeopardy due to the illiquidity of one of the investors and his consequent inability to pay his $82,600 cash share of the settlement amount.” The letter further explained that:

To avoid the failure of the settlement and the likelihood of ensuing litigation, the current owners and Mr. Johnson, pastor of Holman, and Mr. Moore, pastor of St. Agnes, have tentatively agreed to the following arrangement:
1. Mr. Moore and Mr. Johnson will each lend Mr. Jefferson $41,300, which will allow Mr. Jefferson to fund his $82,600 share of the settlement.
2. Each $41,800 promissory note will be non-recourse to Mr. Jefferson and bear interest at 10% per annum. A single payment of principal and interest will be due one year from the date the note is funded....
3. Each $41,300 note will be secured by the pledge of 71,453 of Mr. Jefferson’s shares of Unity....

Johnson testified that Jefferson agreed to the letter and the loan. Drafts of a promissory note and security agreement were produced showing that Jefferson received copies of them. According to Johnson, when St. Agnes was unable to fund its portion of the loan, Holman Street ultimately loaned the entire amount to Jefferson. Johnson authorized Holman Street’s money to be transferred into Jefferson’s account “[b]y check or some manner,” and he testified that Jefferson never denied receiving the money from Holman Street.

While acknowledging that he met with Holman Street officials in 1992 regarding money paid by the church on his behalf, Jefferson denied having acknowledged any personal loan obligation. Meeting minutes were produced from the business records of Holman Street demonstrating that a meeting occurred on March 15, 1992 between Jefferson, Johnson, and several deacons, or “Administrators,” in charge of Holman Street’s financial affairs. When pressed to repay the loan, Jefferson stated that he would see if he could generate the necessary funds from his other business assets.

After that meeting, Holman Street received a signed promissory note and, a few days later, a signed security agreement. Under the terms of the promissory note, signed by Jefferson in his individual capacity, Jefferson agreed to pay, “For Value Received,” $93,674.72, plus 5% interest per annum. Such sum was due on demand, or if no demand was made, “then on or before December 31, 1992.” The promissory note further explained that “THIS NOTE is entitled to the benefits and security afforded by that certain Security Agreement ... covering the following described collateral: [142,906] shares of common stock of Unity National Bank.”

Under the terms of the Security Agreement, “for a valuable and sufficient consideration, the receipt of which [was thereby] acknowledged,” Jefferson “assign[ed], transfer [red], convey[ed], and delivered]” to Holman Street 142,906 shares of stock in Unity National Bank and granted Holman Street a security interest therein. The security interest was specifically granted to secure the obligations contained in the promissory note and “any and all renewals, extensions, rearrangements or modifications” thereof. The Security Agreement further provides that in the event of a default, and any time thereafter, Holman Street shall have all the rights and remedies of a secured party under the uniform Commercial Code “or other applicable law” or agreement, including “the right and power to sell ... or otherwise dispose of or utilize the Collateral.” Additionally, “[w]hen all of the indebtedness shall have been paid in full and [Holman Street] is not obligated to make additional advances,” Holman Street was required to reassign all of its rights in the collateral back to Jefferson. “No delay or omission” by Holman Street in exercising any rights granted under the agreement were to operate as a waiver of any right under the agreement. Lastly, the security interest and all other terms of the agreement were to continue in full force “until first to occur of the following: (i) the expiration of four (4) years from the date of payment of Debtor’s last Obligation to Secured Party; or (ii) the payment by Debtor of all obligations secured” by the agreement.

In a letter dated March 16,1993, Jefferson acknowledged having signed the note “as a personal favor” to Johnson. He also expressed concern about Holman Street’s apparent desire to sell its interest in Unity Bank, including the promissory note, to an investor group. He further stated: “This letter is to convey my continued interest and commitment to meet the obligations of the note .... ”

Johnson testified that beginning after the maturity date of the note, December 31, 1992, but sometime before December 31, 1996 (the cut-off date for the statute of limitations), Jefferson made an at-least annual request for another year to pay the note. When Johnson saw Jefferson each year at the annual shareholders meeting: Johnson asked about the debt, Jefferson agreed to repay it but said he needed another year, and Johnson agreed to extend the note for another year.

In 2004, Roosevelt Weeks, Holman Street Board Chairman, wrote a letter to Jefferson requesting payment of the amount then due on the note, calculated at $497,865.27. In the letter, Weeks noted that Jefferson had “enjoyed the financial benefit” of having the stock in his name, since Jefferson had received over $1 million in dividend payments from Unity Bank. At a meeting with Weeks, Jefferson acknowledged the debt but claimed to need more time to pay it. Later, Johnson showed Weeks an email from Jefferson in which Jefferson complained about the note. When Weeks asked Jefferson directly about the complaint, Jefferson questioned only the calculation of interest.

In 2006, Jefferson filed the present lawsuit against Holman Street, seeking a declaratory judgment that any action on the promissory note or the security agreement was barred by the applicable statutes of limitations and seeking return of the col-lateralized stock. In his original petition, Jefferson also sought attorney’s fees. Holman Street filed a counterclaim to recover on the debt, alleging, among other things, that (1) because Jefferson sought affirmative relief in his lawsuit, the statute of limitations did not bar Holman Street’s claims based on the same transaction or occurrence, and (2) Jefferson had entered into a series of oral contracts that extended the debt and the start date for calculating limitations. In response, Jefferson reasserted the statute of limitations and argued that he had not received consideration for signing the promissory note and the security agreement. He further contended that Holman Street’s security interest in the stock had expired by its own terms, and he requested a temporary injunction requiring that the stock certificates be placed in the court’s registry. The trial court entered an “Agreed Order” in compliance with that request. Although several of his amended petitions included claims for exemplary damages, Jefferson ultimately dropped his exemplary damages claims from later amended petitions and specifically nonsuited his request for attorney’s fees before trial.

At the conclusion of the trial, the jury found that Jefferson had received money as consideration for signing the promissory note and the security agreement. It further found that he entered into an oral contract with Holman Street in which he acknowledged the debt and agreed to pay it by December 31, 1996. Lastly, the jury found that Jefferson entered into an oral contract acknowledging the debt and agreeing to pay the past due amount at least once every four years, from the date of the first oral contract through December 31, 2004.

Jefferson then moved for JNOV, arguing that (1) there was no evidence that he had received consideration; (2) Holman Street’s claims on the promissory note and security agreement were barred by the applicable statutes of limitations; (3) the filing of the declaratory judgment action did not revive Holman Street’s stale claims; (4) by its own terms, the security agreement was no longer effective; and (5) Holman Street could not recover on the basis of alleged oral contract extensions. The trial court initially granted the motion without specifying the underlying basis. In an amended final judgment, however, the court specifically explained that it granted JNOV based on its determinations that (1) Holman Street’s claims were barred by the applicable statutes of limitations; and (2) the claims were not revived by the filing of the declaratory judgment. The court further ordered that the stock certificates held in the registry of the court be delivered to Jefferson.

II. Claims Revival

We begin by addressing Holman Street’s second issue, in which it contends that the trial court erred in granting a JNOV on statute of limitations grounds because section 16.069(a) of the Texas Civil Practice and Remedies Code authorized Holman Street’s claims for collection of the debt despite the running of the statute of limitations. Tex. Civ. Prac. & Rem.Code § 16.069(a). That section provides as follows:

If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be barred by limitation on the date the party’s answer is required.

Id. Section 16.069(a) is intended to prevent a party from waiting until an opponent’s valid claim, arising out of the same transaction or occurrence, is time-barred before asserting its own claim. Wells v. Dotson, 261 S.W.3d 275, 281 (Tex.App.Tyler 2008, no pet.) (citing Hobbs Trailers v. J.T. Arnett Grain Co., Inc., 560 S.W.2d 85, 88-89 (Tex.1977) (discussing substantially similar prior law, Texas Revised Civil Statutes art. 5539c)).

Courts have interpreted section 16.069 as permitting a party’s otherwise time-barred counterclaims or cross claims only when the opposing party has sought “affirmative relief,” rather than just a declaration on a dispute between the parties. See, e.g., CDB Software, Inc. v. Kroll 992 S.W.2d 31, 36 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); ECC Parkway Joint Venture v. Baldwin, 765 S.W.2d 504, 513-14 (Tex.App.Dallas 1989, writ denied); see also Lyles v. Johnson, 585 S.W.2d 778, 783 (Tex.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.) (applying article 5539c). For example, if a plaintiff files an action seeking only a declaration that the defendant would be barred by a statute of limitations if it chose to bring a particular cause of action, the defendant could not use section 16.069 to then bring the otherwise time-barred cause of action. See Ball v. SBC Commc’ns, Inc., No. 04-02-00702-CV, 2003 WL 21467219, at * 4 (Tex.App.San Antonio June 25, 2003, pet., denied) (not designated for publication). Hence, in the present case, Jefferson’s mere seeking of a declaration on limitations regarding his purported debt to Holman Street did not trigger section 16.069(a). However, the question remains whether, in addition to the declaration on limitations, Jefferson also sought affirmative relief.

Holman Street contends that Jefferson requested affirmative relief in that he sought attorney’s fees and exemplary damages in various pleadings and requested the return of his collateralized stock. We do not opine on whether affirmative claims that were abandoned before or during trial fulfill the requirements of Sec. 16.069(a). We hold that the request for return of the stock was a request for affirmative relief triggering section 16.069(a).

Jefferson’s potential recovery is “affirmative” in that the stock would have to be handed over to Jefferson in the event he was successful. See Black’s Law Dictionary 23 (2d Pocket ed. 2001). It constitutes “relief’ because it is a redress or benefit asked of a court. See id. at 596. Not only does the requested relief meet the qualifications of section 16.069, philosophically, it fulfills the purpose of that section: preventing a party’s waiting until an adversary’s cause of action is time-barred before pursuing its own relief on the same transaction or occurrence. See Hobbs Trailers, 560 S.W.2d at 88-89; Wells, 261 S.W.3d at 281. In requesting return of the stock based on limitations, Jefferson is using the statute of limitations offensively in an attempt to obtain affirmative relief, rather than defensively to defeat Holman Street’s recovery on the promissory note.

We disagree with Jefferson’s contention that he is not seeking affirmative relief because return of the collateral is just a natural consequence of the running of the statute of limitations. As explained in Miller, Hiersche, Martens & Hayward, P.C. v. Bent Tree National Bank, when a lender holds personal property as collateral to guarantee a debt, the running of the statute of limitations on an action to collect personally from the debtor does not bar the right of the lender to use the collateral to repay the debt. 894 S.W.2d 828, 829-30 (Tex.App.-Dallas 1995, no writ). The statute of limitations provides a personal defense that protects the debtor from an action to collect on the debt after the designated passage of time, but it does not defeat the right of the lender to utilize the collateral already held. Id.; see also Goldfrank, Frank & Co. v. Young, 64 Tex. 432, 436-39 (1885) (explaining that while the running of the statute of limitations defeats a lender’s judicial remedy, it does not defeat the lender’s right to use the security to collect the debt). Consequently, Jefferson’s suit seeking to recover his collat-eralized stock requested affirmative relief in the loan transaction between him and Holman Street; thus, pursuant to section 16.069, Holman Street’s action for recovery of the debt was revived. The trial court erred in granting JNOV favoring Jefferson based on statute of limitations grounds. Accordingly, we sustain Holman Street’s second issue.

III. Other Grounds for Vitiating the Verdict

In his motion for JNOV, Jefferson argued in addition to his statute of limitations grounds that (1) there was no evidence that he received consideration, and (2) by its own terms the security agreement was no longer effective. As explained above, the trial court did not grant the JNOV on either of these additional grounds. The court gave specific reasons for its holding in its amended judgment, and those reasons did not include a lack of consideration or expiration of the security agreement by its own terms. When a trial court specifies the ground or grounds upon which it grants a JNOV, an appellant need only challenge those grounds actually relied upon by the trial court. Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 795 (Tex.App.Houston [1st Dist.] 2008, pet. denied); Swink v. Alesi, 999 S.W.2d 107, 111-12 (Tex.App.-Houston [14th Dist.] 1999, no pet.).

But when a trial court grants a JNOV, the appellee may bring forward by cross-point any additional issue “that would have vitiated the verdict or that would have prevented an affirmance of the judgment if the trial court had rendered judgment on the verdict.” Tex.R.App. P. 38.2(b); see also Tex.R. Civ. P. 324(c); Edascio, 264 S.W.3d at 795. Although Jefferson did not explicitly term his consideration or expiration arguments as “cross-points,” he did make such arguments in response to Holman Street’s issues. We will therefore consider these arguments as cross-points and assess the merits of Jefferson’s contentions.

A. Consideration

In the first cross-point, Jefferson contends that there was no evidence supporting the jury’s determination that he received consideration for signing the promissory note. See Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex.2009). In reviewing a no-evidence issue, we must “credit evidence favoring the jury verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007). The final test is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005).

When there is no consideration from one party to another, the contract lacks mutuality, is unilateral, and unenforceable. Wilson & Wilson Tax Servs., Inc. v. Mohammed, 131 S.W.3d 231, 242 (Tex.App.-Houston [14th Dist.] 2004, no pet.). As long as something of real and legally cognizable value is given in exchange for a promise to pay under a promissory note, the note is supported by adequate consideration. Suttles v. Thomas Bearden Co., 152 S.W.3d 607, 614, (Tex.App.-Houston [1st Dist.] 2004, no pet.). A promissory note is issued for value when it is issued as payment of, or as security for, an antecedent debt. Tex. Bus. & Com. Code § 3.303(a)(3); Sutiles, 152 S.W.3d at 614. In three pages of his brief, Jefferson argues that the Church failed to establish that he received consideration for signing the promissory note or the security agreement because (1) no one testified to having personally given money to Jefferson or his company; (2) Holman Street had no documentary evidence establishing that consideration was given; (3) contrary evidence established that it was Jefferson’s company, Jefferson Associates, that actually loaned him the money, not Holman Street; and (4) in the absence of alter ego evidence, Johnson’s testimony that a check was issued to Jefferson Associates for Jefferson’s benefit does not establish that Jefferson received the money.

When Jefferson signed the promissory note, he represented that he was promising to pay the indicated sum “For Value Received.” Furthermore, in signing the security agreement, Jefferson represented that the given security was in exchange “for a valuable and sufficient consideration, the receipt of which [was thereby] acknowledged.” Thus, the promissory note and the security agreement themselves constituted evidence that consideration was given in exchange for signing these documents. See Wilson & Wilson, 131 S.W.3d at 242 (holding that promissory note itself constituted evidence that consideration was given wherein it stated that it was entered “For Value Received”). Additionally, both documents indicate that Jefferson signed them in his individual capacity, refuting Jefferson’s contention that it was his company and not he himself that was involved in the transaction with Holman Street.

Moreover, Johnson testified that Holman Street loaned Jefferson the money because he needed it to fund the settlement with Bay Bancshares for the purchase of Unity Bank. Johnson also testified that Jefferson confirmed the debt and agreed to pay it on numerous occasions. This testimony concerning the loan was corroborated by the letter proposal sent to federal authorities, the Holman Street meeting minutes concerning a meeting between Jefferson and deacons of the church, subsequent letters between Jefferson and Johnson, a letter from Roosevelt Weeks to Jefferson, and Weeks’ testimony.

That no one testified to physically handing money to Jefferson is of no moment given the substantial evidence that he was loaned the money and acknowledged the debt. Further, the possibility that the money may have passed through his business, Jefferson Associates, does not negate the evidence that the money was loaned for Jefferson’s use as an individual to fund his share of the Unity settlement. The jury was entitled to believe Johnson’s and Weeks’ testimony, as well as the statements in the promissory note and the security agreement, that money was loaned by Holman Street to Jefferson. See Wilson, 168 S.W.Bd at 827. Accordingly, we overrule Jefferson’s cross-point concerning consideration.

B. Expiration of Security Agreement

In his second cross-point, Jefferson argues that prior to the instigation of this lawsuit, the security agreement had expired under its own terms. He references the following language contained in the agreement:

The security interest hereby granted and all the terms and provisions hereof shall be deemed a continuing security agreement and shall continue in full force and effect, and all the terms and provisions hereof shall remain effective as between the parties, until first to occur of the following: (i) the expiration of four (4) years from the date of payment of Debtor’s last Obligation to Secured Party; or (ii) the payment by Debtor of all obligations secured hereby and the giving by Debtor of ten (10) days written notice of revocation of the terms and provisions hereof.

In construing a contract, our primary concern is to ascertain the parties’ intent as expressed in the instrument. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex.2006). To ascertain those intentions, we examine the entire contract in an effort to harmonize and give effect to all of its provisions so that none will be rendered meaningless. Id. No single provision should be given controlling effect, but all provisions must be construed in reference to the whole. Id. When a written contract is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous, and the court construes it as a matter of law. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex.2003).

Jefferson specifically asserts that because “the date of the last payment obligation under the Promissory Note w as December 31, 1992,” the security agreement expired by its own terms on December 31, 1996. Jefferson’s argument misreads the language of the security agreement, which- states that it remains effective until payment of Jefferson’s last obligation thereunder or all of his obligations thereunder. Jefferson has acknowledged that he made no payments on his obligations to Holman Street. Having made no payments, Jefferson cannot be said to have paid his last obligation, or all of his obligations, to Holman Street. Furthermore, an earlier section of the agreement refutes Jefferson’s reading of this section, wherein it states that “[n]o delay or omission” by Holman Street in exercising any rights granted under the agreement would operate as a waiver of any right under the agreement. Thus, the security agreement has not expired by its own terms, and Jefferson’s cross-point is without merit.

IV. Disposition

We sustain Holman Street’s second issue and hold that the trial court erred in granting a JNOV on statute of limitations grounds. We overrule Jefferson’s presumed cross-points stating additional grounds on which he asserts that JNOV should have been granted. Because of our resolution of these issues, we sustain Holman Street’s fourth issue in which it contended that the trial court erred in ordering the collateralized stock released to Jefferson because limitations barred any action on the underlying debt. We need not address Holman Street’s remaining appellate issues. We reverse the trial court’s judgment, reinstate the jury’s verdict, and remand for entry of judgment in keeping with that verdict.

      . Both Jefferson and Johnson explained the churches' involvement in the purchase of the bank as driven by a desire to have a minority-owned bank in Houston’s Third Ward community.

      . The last three digit of the typewritten number ‘‘71,451” are crossed out in the letter, and "453” are handwritten in their place.

      . Holman Street maintains that the promissory note included both the amount Holman Street loaned Jefferson on its own behalf, the amount it loaned him because St. Agnes was not able to produce the amount it was supposed to loan him, and interest on those amounts up to the time the promissory note was signed.

      . Jefferson attempts to distinguish Miller, Hiersche by pointing out that it involved an attempt to collect the debt by using collateral pledged by a guarantor rather than the debt- or. A careful review of both Miller, Hiersche and the cases it cites, however, reveals that this distinction was not a meaningful one in terms of the rule espoused in the case. When the court in Miller, Hiersche speaks of the statute of limitations as being a "personal privilege,” it means that it protects the debtor from an action against his or her person to recover on the debt; it does not mean that only the debtor, and not a guarantor, can assert limitations to prevent the lender from using collateral it holds to collect the debt. 894 S.W.2d at 829; see also Goldfrank, Frank & Co. v. Young, 64 Tex. 432, 436-39 (1885) (holding lender was entitled to use collateral-ized property to collect debt even though property was put forth by debtor and not guarantor). Except for the fact that the property was pledged by a guarantor, the salient facts of Miller, Hiersche on this issue are nearly identical to those in the present case.
      Jefferson also cites a number of cases in which courts held that liens on real property were effectively extinguished by the running of the statute of limitations on the underlying debt. See, e.g., Holford v. Patterson, 113 Tex. 410, 257 S.W. 213 (1923) (mortgage lien); Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379 (Tex.App.-Fort Worth 1994, writ denied) (mechanic's and materialman’s lien); Neely v. Herman, No. 6:04cv172, 2005 WL 5015557 (E.D.Tex.2005) (equitable lien). The present case does not involve a lien against real property; it involves personal property physically held by the lender as collateral under a security agreement. Consequently, the real property lien cases cited by Jefferson are readily distinguishable. Jefferson further cites McBryde v. Curry for the proposition that "when a debt is barred by the statute of limitations, an action to foreclose on the security for the debt is also barred." 914 S.W.2d 616, 619 (Tex.App.Texarkana 1996, writ denied). McBryde is distinguishable because it is not a case where the lender held collateral; instead, it involved the lender's attempt to collect life insurance proceeds after the right to action on the debt had expired under the statute of limitations. Id. at 618.

      . Consequently, Holman Street’s first issue asserting that the trial court erred in granting JNOV based on a lack of consideration is moot.

      . Sutiles is the only authority Jefferson cites in the portion of his brief discussing consideration.

      . The security agreement allowed for multiple loans to be secured by the same collateral, although there is no indication that it actually secured more than one loan.

      . In the trial court, Jefferson argued that the running of the statute of limitations extinguished his debt under the promissory note and related security agreement. This is clearly not so under Texas law. See, e.g., Miller, Hiersche, 894 S.W.2d at 830 ("Texas has consistently followed the legal principle that the statute of limitations may bar an action to recover on a debt, but the debt still exists and the holder of collateral may use the collateral to repay the debt according to the terms of the collateral agreement.”).