NAVIDEA BIOPHARMACEUTICALS, INC. AND MACROPHAGE THERAPEUTICS, INC., Appellants
CAPITAL ROYALTY PARTNERS II, L.P., CAPITAL ROYALTY PARTNERS II - PARALLEL FUND "A", L.P., CAPITAL ROYALTY PARTNERS II (CAYMAN) L.P., AND CAPITAL ROYALTY PARTNERS II - PARALLEL FUND "B" (CAYMAN) L.P., Appellees
Appeal from the 151st District Court Harris County, Texas
Trial Court Cause No. 2016-22242
consists of Justices Wise, Zimmerer, and Spain.
case involves a commercial loan dispute resolved by a
high-low settlement agreement and a trial to the court. After
several days of trial, the court found that the borrowers
owed the lenders an amount in excess of the maximum recovery
permitted by the settlement agreement. The court signed a
judgment in favor of the lenders for the maximum allowed
minus an amount the borrowers had agreed to pay under the
settlement agreement. On appeal, the borrowers contend that
the evidence is legally and factually insufficient to support
the judgment. Because we conclude that appellants agreed to
waive their right to appeal and do not assert a valid basis
to invalidate the waiver, we dismiss the appeal.
with the parties' briefing in the trial court and on
appeal, we refer to appellants as Navidea and appellees as
We discuss only those matters necessary to advise the parties
of the court's decision and the basic reasons for it.
Tex. R. App. 47.4.
entered into a loan agreement and related documents with CRG.
In accordance with the terms of the loan documents, CRG
initially loaned $50 million to Navidea. One year later, on
April 7, 2016, CRG filed suit against Navidea asserting that
Navidea had committed several events of default under the
loan agreement. CRG initially sought a declaratory judgment
and damages for breach of contract. Shortly after that, CRG
exercised its contractual right under the loan documents to
require U.S. Bank to transfer funds from a certain Navidea
account to CRG. U.S. Bank provided CRG $4, 112, 434.17 from
the account. The parties refer to the roughly $4.1 million
that CRG received from U.S. Bank as the "swept
scope of the litigation quickly escalated to involve
proceedings between CRG and Navidea in Texas and Ohio.
Eventually, however, Navidea and CRG agreed to settle their
disputes. In February 2017, the parties stipulated to the
terms of a settlement in open court during a proceeding in an
Ohio court of common pleas. Among other things, Navidea
agreed to pay CRG $59 million and CRG agreed to allow Navidea
to sell certain of its assets to a third party. Navidea also
agreed to withdraw its counterclaims in the Texas suit and to
not assert such (or similar) counterclaims in the future in
the Texas suit.
parties reduced their settlement to writing in a document
titled "Global Settlement Agreement." Under the
settlement agreement, CRG and Navidea would litigate
CRG's claims and Navidea's defenses in the Texas suit
subject to a high-low agreement. The settlement agreement
also provided that the Texas court's decision would be
"final and non-appealable." In relevant part, the
settlement agreement provided:
The Texas Court shall adjudicate the Texas Claims to
determine the final amount of the Obligations owed by the
Company to the Lenders under the Loan Documents (the
"Final Obligation Amount"), provided, that the
Final Obligation Amount shall in no event be less than $47,
000, 000 (the "Obligation Minimum") or more than
$66, 000, 000 (the "Obligation Maximum) with each such
amount net of any amounts received by the Lenders on or prior
to receipt of the Deposit Amount,  and (1) provided however,
that the Company retains, among other rights, the right to
assert that all offsets, payments and credits have not been
allowed, including without limitation, the credit due for the
U.S. Bank funds previously taken by Lenders and (2) provided
further, that the Texas Court's decision shall be final
and non-appealable and not subject to reconsideration, and
shall be binding on all the Parties to this Agreement.
Texas suit was tried to the court over several days in
December 2017. After hearing the evidence, the court found
that Navidea had breached the loan agreement with CRG and
that CRG had incurred damages in excess of $66 million. After
subtracting the $59 million Navidea had paid under the
settlement agreement from the Final Obligation Amount of $66
million, the court signed a judgment ordering Navidea to pay
CRG $7 million.
immediately filed a letter and emergency motion to stay
execution, arguing that the trial court should correct its
"math errors" and reduce the judgment to account
for CRG's receipt of the swept funds and other
reductions. Navidea also filed a motion to correct the
judgment in which it argued that the trial court should
correct the "math error" in its judgment to reduce
the amount of money owed to CRG from $7 million to
approximately $2 million.
January 10, 2018, the trial court signed an amended final
judgment again ordering Navidea to pay CRG $7 million
damages. The judgment specified that the $7 million "is
new money, in addition to the $59, 000.000.00 previously paid
to [CRG] pursuant to the high-low settlement in this
case." The judgment also informed the parties that
"no additional filings or motions or corrections will be
accepted by this Court pursuant to the plain language of the
Parties' agreements" and that the court would
"not hold any additional hearings in this case."
The same day, the court filed detailed amended findings of
fact and conclusions of law.
then filed an "Emergency Motion to Set Supersedeas Bond
and to Modify the Judgment," arguing that the trial
court's judgment failed to account for the swept funds
and seeking a supersedeas bond in the amount Navidea believed
it owed to CRG. Because Texas procedure requires the court to
set the amount of a supersedeas bond, the court held a
hearing on Navidea's motion. At the hearing, the court
rejected Navidea's argument, stating:
The answer is that it is not in excess of what the Court
intended to issue. The Court meant what it said, $7 million
in new money, period. That's what the judgment says.
That's what it means. That's what the evidence was at
court also stated that "the evidence sufficiently
demonstrated that [CRG is] entitled to an additional $7
million and that the swept funds were just as easily
contemplated in the 59 million." The trial court ordered
that Navidea file a cash bond of ...