Court of Appeals of Texas, Eighth District, El Paso
Petition for review filed by, 03/28/2014
Appeal from the 141st Judicial District Court of Tarrant County, Texas. (TC#141-23625709-09).
Before McClure, C.J., Rivera, and Rodriguez, JJ.
YVONNE T. RODRIGUEZ,
This case concerns a guaranty agreement executed by a limited liability company no longer in existence because of its merger with a similarly-named limited partnership. The issue is whether Appellant--owner of the guaranty--may hold Appellees--the limited partnership and its members--liable for satisfaction of a judgment awarded against the limited liability company. The trial court granted a take-nothing summary judgment in favor of Appellees. We affirm, in part, and reverse and remand, in part.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2000, Ancor Holdings LLC (Ancor LLC) executed a guaranty agreement in favor of Bank of America. The agreement prohibited Ancor LLC from merging or consolidating with any other company unless Ancor LLC was the survivor and further provided that Ancor LLC could not change its legal structure without Bank of America's permission. When Ancor LLC failed to pay the guaranty, Peterson, Goldman & Villani, Inc. (PGV)--as successor to Bank of America--sued Ancor LLC in Dallas County in February 2004. After three years of arbitration, PGV obtained a judgment in May 2008 confirming the arbitrator's award against Ancor LLC.
In July 2008, PGV discovered that--unbeknownst to it and Bank of America and in breach of the guaranty--Ancor LLC had merged with Ancor Holdings L.P. (Ancor LP) approximately eight years earlier. The Agreement and Plan of Merger between Ancor LLC and Ancor LP provides that Ancor LP, as the surviving entity, " shall assume all the liabilities of every kind and description of [Ancor LLC] and [Ancor LP]."
Consequently, PGV moved to modify the judgment to include Ancor LP as the judgment debtor on grounds of misnomer. Ancor LLC opposed the motion, arguing that a misidentification, rather than a misnomer had occurred, because Ancor LLC and Ancor LP were two separate, distinct entities. The trial court denied PGV's motion but modified the judgment for reasons not relevant to this appeal. Both Ancor LLC and PGV timely appealed the trial court's modified final judgment to the Dallas Court of Appeals.
While that judgment was being appealed, PGV sued Ancor LP and Ancor LP's members, Timothy McKibben, Joseph Randall Keene, and Ancor Partners, Inc., in September 2008 for satisfaction of the judgment awarded against Ancor LLC. Appellees asserted res judicata and limitations as defenses. In its third amended petition filed in March 2010, PGV sought a declaratory judgment that Appellees were liable for the judgment awarded against Ancor LLC and brought various causes of action sounding in tort and contract. Appellees responded by filing an amended motion for summary judgment in which they argued that all of PGV's claims in its third amended petition were barred by limitations and by res judicata and that PGV's tort claims, alter ego claims, and claims for estoppel, conspiracy, and punitive damages failed for other reasons.
After responding to this motion, PGV filed a fourth amended petition. Once more, PGV sought a declaratory judgment that Appellees were bound by the judgment against Ancor LLC and, once again, brought causes of action sounding in tort and contract. In conjunction with this petition, PGV moved for partial summary judgment on its declaratory-judgment and breach-of-contract claims against Ancor LP. In this motion, PGV asserted Ancor LP was liable for the judgment awarded against Ancor LLC because Ancor LP had assumed all of Ancor LLC's liabilities. Appellees countered by filing a supplement motion for summary judgment in which they ...