Court of Appeals of Texas, Third District, Austin
Bryan L. Gano, Appellant
Dimas Diaz and Tracy Diaz, Appellees
THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY, NO.
C-1-CV-15-009940, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING
Chief Justice Rose, Justices Pemberton and Goodwin
Melissa Goodwin, Justice
L. Gano appeals from the trial court's final judgment
denying his motion for summary judgment and granting that of
Dimas Diaz and Tracy Diaz. The Diazes sued Gano for breach of
a contract whereby Gano purchased a business from the Diazes.
For the reasons that follow, we affirm the trial court's
Diazes owned Day Ventures, LLC, which operated a wine
business in Round Rock, Texas. Day Ventures had executed a
lease (Lease) with landlord Capital City-Socrates, Ltd. On
December 30, 2009, the Diazes sold Day Ventures to Gano,
effecting the sale through a "Membership Interest
Purchase Agreement" (Purchase Agreement), which
transferred the Lease to Gano. That same day, in accordance
with the terms of the Lease, the Diazes sent a letter to the
landlord notifying it about the proposed assignment of the
Lease. In the letter, Dimas Diaz agreed to continue the
personal guaranty of performance under the Lease that he had
executed when Day Ventures first entered the Lease in 2005.
The letter was signed by Dimas Diaz on behalf of tenant Day
Ventures, as transferor, and as guarantor; by Tracy Diaz, as
transferor; and by Gano, as transferee. The Purchase
Agreement contained the following provision relating to the
guaranty in paragraph 6.5:
No Renewal of Shopping Center Lease Absent Termination of
Sellers Guaranty. Purchaser and Day Ventures covenant
with Sellers that following Closing, Day Ventures will not
exercise its option to extend Day Ventures's existing
shopping center lease for the premises at the Round Rock
Crossing Center Suite 120, and Purchaser will not cause Day
Ventures to extend such lease, without having previously
obtained a release from the landlord of Sellers' existing
guaranty of lease obligations in form acceptable to Sellers.
The foregoing is a material condition to Sellers'
decision to enter into the transactions contemplated herein
and any breach of this covenant shall give Sellers the right
to seek equitable relief against such extension without
posting bond therefor.
Purchase Agreement also contained the following indemnity
provision in paragraph 11.3:
Indemnity of Sellers. Subject to the terms and
conditions of this Article 11, Purchaser and Day Ventures,
jointly and severally, shall indemnify, defend and hold
harmless Sellers and their respective officers, members,
managers, employees, agents, affiliates, successors and
assigns (the "Seller Indemnified Parties") from and
against any and all Losses incurred by the Seller Indemnified
Parties as a result of or arising out of: (a) any breach of
any of the representations, warranties or covenants made by
Purchaser or Day Ventures in this Agreement; (b) any Assumed
Liability; or (c) the use of the Transferred Assets or
operation of the Business subsequent to the Closing Date.
2.3(d) of the Purchase Agreement defined "Assumed
Liabilities" to include "the store lease."
February 2011, Gano, as owner of Day Ventures, and Round Rock
Crossings, L.P., as successor in interest to landlord Capital
City-Socrates, executed a "2nd Amendment" to the
Lease, extending the term for one year. Gano did not
obtain a release or termination of Dimas Diaz's personal
guaranty of Lease obligations from the landlord. In 2012,
Gano executed a "3rd Amendment" to the Lease,
extending the lease until January 2015. Gano again did not
obtain a release or termination of Dimas Diaz's personal
guaranty of lease obligations from the landlord. In 2012,
according to the Diazes, or 2014, according to Gano, Gano
sold Day Ventures and assigned the Lease to the new owners,
who eventually closed the business and defaulted under the
Lease. The landlord sued the new owners and Dimas Diaz, as
guarantor. Dimas Diaz settled with the landlord and was
nonsuited on June 4, 2015. The Diazes made demand on Gano for
reimbursement of $5, 000 expended in defending and settling
the new owner's suit against Dimas Diaz. When Gano did
not offer reimbursement, the Diazes brought this suit against
Gano, alleging that Gano breached the Purchase Agreement by
failing to obtain a termination of the guaranty and by
failing to indemnify Diaz.
parties both filed traditional motions for summary judgment
and submitted evidence. In his motion, Gano did not dispute
that the Diazes had established the elements of a breach of
contract claim but contended that his affirmative defenses,
including the defense that the claim was barred by the
statute of limitations, defeated the claim for failure to
terminate the guaranty. In their response and motion, the
Diazes argued that Gano had failed to address their claim for
breach of contract based on the indemnity provision and that
they had shown that there was no genuine issue as to any
material fact necessary to establish the elements of that
claim. In his response, Gano contended that because the
Diazes' claim for breach of contract based on his failure
to terminate the guaranty was barred by the statute of
limitations, their claim for breach of the indemnity
provision was also barred. In separate orders, the trial
court denied Gano's motion and granted the Diazes'
motion without stating a basis in either order. The trial
court then rendered final judgment, granting the Diazes'
motion, denying Gano's motion, and awarding the Diazes
$5, 000 in actual damages plus attorney's fees and
contingent attorney's fees on appeal. Gano filed a motion
for new trial that was overruled by operation of law and a
second motion for new trial that appears to have been
overruled by operation of law, as well. This appeal followed.
review a trial court's summary judgment de novo.
Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579
(Tex. 2017) (citing Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). When the
trial court does not specify the grounds for granting the
motion, we must uphold the judgment if any of the grounds
asserted in the motion and preserved for appellate review are
meritorious. Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 216 (Tex. 2003). To prevail on a
summary judgment motion, the movant must demonstrate that
there are no genuine issues of material fact and that it is
entitled to judgment as a matter of law. Tex.R.Civ.P.
166a(c); Knott, 128 S.W.3d at 215-16. When both
parties move for summary judgment on the same issues and the
trial court grants one motion and denies the other, we