Opinion issued August 27, 2026
In The
Court of Appeals
For The
First District of Texas
indemnity agreements.1 Appellee moved for summary judgment on its claim and the trial granted summary judgment entering a final judgment ordering Cox to pay the requested collateral in accordance with the terms of the indemnity agreements.
In seventeen issues,2 Cox complains about the trial court’s order granting Appellee’s motion for summary judgment generally arguing that Appellee failed to satisfy its summary judgment burden, that genuine issues of material fact precluded summary judgment, that his affirmative defenses precluded summary judgment, and that the trial court erred in denying his motion to exclude Appellee’s summary judgment evidence.
We affirm.
Indemnity Agreements and Supplement Appellant Bradley Cox, who according to Appellee is a “seasoned oil and gas businessman with over 20 years of experience,” owned and operated several
1 Appellee originally filed suit against Cox and seven companies in which, according to Appellee, Cox has or had an ownership or operating interest. The companies are EPL Oil & Gas, Inc. n/k/a EPL Oil & Gas, LLC; Energy XXI Gulf Coast, Inc.; Cox Operating, LLC; Cox Oil & Gas, LLC; MLCJR, LLC; CEXXI, Inc. n/k/a CEXXI, LLC; and Cox Oil Offshore, LLC. Appellee eventually non-
suited its claims against the companies without prejudice proceeding only against Cox individually. Cox is the only appellant in this appeal.
2 Cox’s appellate brief identifies seventeen purported issues. Most of them are multifarious and do not track the arguments in his brief. To the extent possible, we address his arguments.
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companies and affiliates involved in the oil and gas industry (“Companies”).3 As it concerns this appeal, the Companies were involved in certain oil and gas operations and they had obligations to plug and abandon (“P&A”) certain wells at the end of their useful life.
To secure their decommissioning obligations, the Companies approached U.S. Specialty Insurance Company (“Surety”) requesting issuance of performance bonds in connection with their P&A obligations. Before issuing any performance bonds, the Surety required the Companies to execute payment and indemnity agreements providing indemnity to the Surety “in connection with any bond or bonds executed or to be executed on behalf of any Principal and to induce the Surety to execute or procure the execution of such bond(s).”
To that end, the Surety, the Companies, and Cox entered into a comprehensive indemnity package consisting of several payment and indemnity agreements executed by each of the Companies (“Indemnity Agreements”) and a “Supplement No. 1” executed by Cox in favor of the Surety (“Supplement”), under which he agreed to assume all obligations and become the “principal” under
3 Cox states that he never owned an interest in Energy Partners, Ltd. and disputes whether he owned or operated the other named entities.
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“Payment and Indemnity Agreement No. 1152—one of the Companies’ indemnity agreements.4 5 According to the Surety, in addition to the “obligation to pay premiums, exonerate the Surety from harm, reimburse the Surety for loss, and discharge any liability, the Companies and Cox”—in consideration of the “execution or procurement of the Bonds”—specifically agreed in the Indemnity Agreements and Supplement “to provide collateral security as requested” by the Surety in its sole discretion. The Surety alleged that it “bargained for a right to receive collateral for any reason necessary to secure the [Companies’] obligations.”
Payment and Indemnity Agreement No. 1152 (“2017 Agreement”) contained the following language:
3. Security. The Surety may at any time and from time to time hereafter, in its sole and absolute discretion, require the Principals to provide collateral, in form and amounts acceptable to the Surety (such
4 Payment and Indemnity Agreement No. 1152—dated February 16, 2017—was executed by Energy XXI Gulf Coast, Inc. (“Energy XXI GC”) and EPL in favor of the Surety. In the Supplement—dated October 1, 2020—Cox agreed to assume the obligations under Payment and Indemnity Agreement No. 1152. During his deposition, Cox testified that he intended to abide by the Supplement, which added him as a personal indemnitor. (“If I signed something . . . then I intended to do it.”).
5 The Surety described Cox as “a seasoned oil and gas businessman with over 20 years of experience” who “owned and operated multiple corporate entities reliant on surety bonds for their operations[.]” Among other things, Cox testified that he had been in the oil and gas business since 2004, had some familiarity with bonds required for the plugging and abandonment of wells, and had “seen [his] fair share of contracts.” He testified that indemnity agreements routinely are standard in agreements for sureties with respect to bonds in the oil and gas business.
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amounts not to exceed the aggregate penalty sum of all then-issued Bonds) to secure the Principals’ obligations to the Surety hereunder and/or to establish reserves to cover any actual or potential liability, claim, suit, or judgment under any Bond. Immediately upon the Surety’s demand therefor, each Principal shall execute such documents and take such further action as may be necessary in order to provide such collateral. Each Principal hereby grants to the Surety a security interest in all money and other property now or hereafter delivered by such Principal to the Surety, and all income (if any)
thereon.6
The 2017 Agreement was executed by Energy XXI GC and EPL in favor of the Surety. Pursuant to the terms of the Supplement, Cox agreed to assume the obligations under the 2017 Agreement. The Supplement—which “shall be attached to and shall become a part of the Payment and Indemnity Agreement No. 1152”— provides that
The undersigned individual [Cox] hereby agrees to be considered as and shall become a Principal under the Agreement [No. 1152] but only for indemnity and obligations not to exceed $5.7 million.
The individual signing below certifies he/she (a) has access to and has read [Agreement No. 1152]; (b) is familiar with the financial condition of the other Principals; (c) is named correctly below; and (d)
is freely executing this Supplement.
Cox signed the Supplement on October 1, 2020.
The Surety issued two performance bonds to secure the decommissioning obligations of the Companies: one on behalf of Cox Operating, LLC in favor of the State of Louisiana for $1.25 million (“Louisiana Bond”) and one on behalf of
6 Similar provisions were in the other Indemnity Agreements.
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Energy Partners, Ltd.7 in favor of Apache Corp. for $5.7 million (“Apache Bond”). According to the Surety, the bonds “have liability if the Principal[s] on the [b]onds fail to honor” their P&A obligations. “The [b]onds are continuing obligations and cannot be cancelled” by the Surety.
In 2022, pursuant to the terms of the Indemnity Agreements, the Surety requested that the Companies and Cox—“provide collateral security” for the bonds based on the Surety’s “expressed concerns to Cox about the overall risk profile of the account.” The Surety alleged that the “internal reports of the account provided to the Surety revealed that the bonded assets [the wells for which the Companies had P&A obligations] showed a marked diminishing value and useful life . . . with P&A liability approaching in the relative near term.” When the Companies and Cox failed to provide the requested collateral, the Surety filed suit for breach of contract asking the court to require the parties to provide the requested collateral. The Surety eventually non-suited its claims against the Companies without
7 According to the Surety, Energy Partners, Ltd. was a direct subsidiary of EPL Oil & Gas, Inc. n/k/a EPL Oil & Gas, LLC—the party to the 2017 Agreement. It is no longer an independent operating entity. Cox avers he “never had anything to do”
with the company and that Energy Partners, Ltd. was “never a direct subsidiary of EPL Oil & Gas, Inc. or EPL Oil & Gas, LLC.”
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prejudice “based on bankruptcy-related issues” leaving only its claim against Cox pending.8 Cox filed a general denial and pled—as an affirmative defense—that the Indemnity Agreements were ambiguous, that they failed for lack or failure of consideration, that the Surety’s interpretation of the agreements “would lead to an absurd result,” and that the agreements were contracts of adhesion. Cox later filed an amended answer asserting the same affirmative defenses but this time included a verification supporting his lack or failure of consideration defense.
Summary Judgment Motion and Response9 The Surety filed a traditional motion for summary judgment, which it later amended. The Surety argued that under the express terms of the Indemnity Agreements and the Supplement, it was contractually entitled to a deposit of $5.7 million in collateral security from Cox, but Cox had refused to provide the collateral despite request. The Surety argued Cox had “not contest[ed] his indemnity obligations or dispute[d] the Surety’s entitlement to collateral” during his two depositions. “Rather, Cox simply thought it was not suitable for the Surety
8 Two days before the Surety filed its amended summary judgment motion, the Companies filed an emergency motion to convert their bankruptcy proceeding to a Chapter 7 liquidation proceeding because they were “administratively insolvent.”
9 All references to the summary judgment motion refer to the Surety’s amended motion for summary judgment.
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to request collateral under the circumstances[.]”10 The Surety argued that it did not need a reason to request collateral under the Indemnity Agreements because the agreements gave it the right “at any time” and in “its sole and absolute discretion” to “require the Principals to provide collateral, in form and amounts acceptable to the Surety”—in the case of Cox, not to exceed the amount of $5.7 million. And it argued that none of Cox’s affirmative defenses—ambiguity, lack or failure of consideration, absurd result, or adhesion contracts—created a fact issue precluding summary judgment. The Surety attached to its summary judgment motion the affidavits of its underwriting manager and its senior bond claims attorney. It also attached excerpts from Cox’s depositions.
In his response and supplemental response, Cox did not address any of his pled affirmative defenses, other than to argue that there was a genuine issue of material fact over “whether [he] was provided with legally sufficient consideration for executing any contract.” He argued that the Surety had not plead or presented evidence (1) establishing it had issued a valid bond in consideration for execution of the Indemnity Agreements or related documents, or (2) establishing it “ever provided any valid consideration” in connection with the execution of any document requiring the payment of collateral. Cox attached his declaration and the
10 Cox stated in his deposition that there should not be a requirement to provide collateral because he had addressed the P&A requirements and there was no claim against the bond.
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declarations of Craig Sanders and Jack Jamison to his summary judgment responses.11 Cox raised new defenses in his summary judgment responses that were not pled—the validity of the bonds, unclean hands, and impossibility. He also argued, without elaboration, that fact issues precluded summary judgment.12 And he argued that the Surety’s summary judgment evidence should be excluded because it had not been properly disclosed by the Surety in response to his request for disclosures. He filed a motion for “automatic” exclusion of the Surety’s summary judgment motion pursuant to Rule of Civil Procedure 193.6, requesting that the trial court exclude all evidence submitted by the Surety.
The Surety replied that Cox’s summary judgment response “raise[d] new arguments centered on the validity of the bonds, the purported ‘unclean hands’ of [the Surety], . . . and ‘factual and logical impossibility’ dealing with [the Surety’s]
11 Cox stated in his declaration that he signed the Supplement without seeing the other Indemnity Agreements. He stated that with one exception, he did not recall what he understood “was meant by the clause ‘indemnity and obligations’” when he signed the Supplement. Craig Sanders, who had been Cox Operating L.L.C.’s chief executive officer and manager of Cox Oil Offshore, L.L.C., discussed the relationship of the Companies in his affidavit. Both Cox and Sanders testified in their declarations that the Surety had not provided consideration to Cox in exchange for his execution of the Supplement. Jack Jamison—Cox’s counsel—
provided an affidavit in support of Cox’s evidentiary objections.
12 Cox argued without any explanation that there were genuine issues of material fact precluding summary judgment. The Surety argued that all but one of the arguments presented a question of law, not fact, and the remaining one (whether Cox could perform any obligation for which the trial court granted specific performance) was a collection issue, not a basis for “precluding liability.”
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reliance on the various indemnity agreements.” The Surety argued that the defenses could not be considered because Cox had not pled them in any of his three answers and the pleading deadline had since passed.13 The Surety also argued that Cox’s attempt to have the court impose “death penalty” sanctions seeking the exclusion of all summary judgment evidence was improper given that Cox had not requested a hearing on his filed motion to exclude the evidence. In addition, the evidentiary objections did not address “the validity of the documents before the Court and the issue of whether Cox ha[d] an obligation to provide collateral.”
The trial court conducted a hearing and granted the Surety’s motion for summary judgment, ordering that Cox provide the Surety $5.7 million in collateral.
This appeal ensued.
Standard of Review and Applicable Law We review a trial court’s ruling on a motion for summary judgment de novo.
Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The party moving for traditional summary judgment has the burden to establish that no genuine issue of material fact exists and that it is entitled to
13 The Surety argued that even if Cox’s new arguments were not affirmative defenses, they were challenges to “condition precedents” which Cox had not properly raised. In its pleadings, the Surety pled that all conditions precedent had been performed or had occurred and Cox did not specifically deny the allegations as required by Rule of Civil Procedure 54. See infra, Section B.
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judgment as a matter of law. Id. (citing TEX. R. CIV. P. 166a(c)). In our review, “we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted).
We give contract terms their “plain, ordinary, and generally accepted meaning” unless the contract indicates that the terms were used in “a technical or different sense.” Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). If a contract is worded such that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous, and the court will construe it as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) (citations omitted). The court enforces unambiguous contracts “as written.” Lopez, 22 S.W.3d at 862.14 Indemnity agreements are construed pursuant to the rules of contract interpretation “in order to give effect to the parties’ intent as expressed in the agreement.” Indus. Specialists, LLC v. Blanchard Refin. Co. LLC, ___ S.W.3d ___, No. 01-23-00704-CV, 2025 WL 3712203, at *4 (Tex. App.—Houston [1st Dist.] Dec. 23, 2025, pet. filed) (citing Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000)).
14 See generally David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008)
(“Only where a contract is ambiguous may a court consider the parties’
interpretation[.]”).
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Multifarious Issues
“Multifarious issues bring forth combined complaints based on more than one legal theory within a single issue.” Walker v. Walker, 642 S.W.3d 196, 212 (Tex. App.—El Paso 2021, no pet.) (internal citation omitted). While “we may consider multifarious issues when we can determine, with reasonable certainty, the alleged error about which the complaint is made,” we “may disregard any assignment of error that is multifarious.” Id.; Rich v. Olah, 274 S.W.3d 878, 885 (Tex. App.—Dallas 2008, no pet.).
In his “Issues Presented,” Cox identifies seventeen appellate points spanning twelve pages challenging the trial court’s summary judgment in favor of the Surety. Cox’s issues are difficult to understand at times, and many of them encompass several issues within each alleged point of error. Most of the points are multifarious and do not track the arguments in Cox’s appellate brief.
Liberally construing Cox’s brief, the issues we can ascertain “with reasonably certainty” can be distilled into three categories, and we analyze each category below: (1) whether the trial court erred in granting summary judgment in favor of the Surety based on the terms of the Indemnity Agreements and Supplement—that is, whether the Surety established it had a legal entitlement to collateral; (2) whether Cox established any defenses to liability, and (3) whether
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the trial court abused its discretion in declining to strike the Surety’s summary judgment evidence. A. The Surety Established its Entitlement to Collateral As a preliminary matter, Cox argues that summary judgment was improper because the Surety’s motion failed to comply with Rule of Civil Procedure 166a(c). He argues that the motion did not identify any essential element of the Surety’s claim or “characterize any fact as constituting an essential element thereof or otherwise “material”; identify any fact about which it contended there was no genuine issue; assert the summary judgment evidence showed there was no genuine issue as to any specified fact; identify any issue on which it contended it was entitled to judgment as a matter of law; or otherwise “state the specific grounds” for the summary judgment. We reject each of these arguments.
To prevail on its breach of contract claim, the Surety had to establish that (1) a valid contract existed, (2) it performed under the contract, (3) Cox breached the contract, and (4) the Surety suffered damages as a result. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018). Surety’s summary judgment motion states:
The Surety extended credit in the form of nearly $7 million in bonding for oil and gas operations tied to the businesses owned and operated by Cox . . . Among the promises made by Cox and his corporate entities was a contractual obligation [under the Indemnity Agreements] to deposit collateral as requested by the Surety in its discretion . . . .
14
...
Cox contractually ‘bound’ himself to ‘provide collateral in a form and amounts acceptable to the Surety.’ The Indemnity Agreements—and specifically the provisions requiring collateral—are unambiguous.
The Surety is entitled to collateral ‘at any time and . . . in its sole and absolute discretion.’ It is further undisputed that the Surety requested that collateral be provided, and Cox refused. Cox was notified that his refusal to provide collateral constituted a default of the Indemnity Agreements. By failing to collateralize the Surety, Cox breached the Indemnity Agreements. . . . [and] Cox has no valid defense that would otherwise preclude his obligation to collateralize the Surety and reimburse it for its losses to date.
This sufficiently identifies the specific grounds the Surety argued entitled it to judgment as a matter of law.
The summary judgment motion states that (1) a valid agreement exists—the Indemnity Agreements and Supplement; (2) pursuant to the Supplement, Cox agreed to become a principal under the 2017 Indemnity Agreement; (3) the Surety performed under the Indemnity Agreements, (4) the Surety requested collateral from Cox pursuant to the terms of the Indemnity Agreements; (5) Cox failed to provide the collateral despite request; and (6) the Surety is entitled to relief as a result. The motion thus sufficiently articulates the essential elements of the Surety’s claim and allowed Cox to determine the nature of the issues. We overrule Cox’s issues on this point.
Cox also argues that the Surety did not perform the “bargained-for act under the Indemnity Agreements necessary to effectuate [] acceptance of any offer.” That
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is, Cox contends there was no performance by the Surety because there was no evidence that any bonds were issued.15 To the contrary, the Surety produced the Indemnity Agreements and Supplement and produced evidence that it issued the Louisiana and Apache bonds. The Surety attached to its summary judgment motion the affidavit of David McCluskey—an underwriting manager for the Surety—who testified that the Surety issued two performance bonds in connection with the Companies’ decommissioning obligations related to the oil and gas business, and that in exchange, the Companies and Cox agreed to provide the Surety with indemnity, as set forth in the Indemnity Agreement and Supplement, copies of which were attached to the affidavit. McCluskey explained that under the Indemnity Agreements, the Companies and Cox—via the Supplement—agreed to
15 Cox also argues that the bonds are invalid because (1) one of the Indemnity Agreements was not signed by the principal—Cox Operating, LLC—and (2) the 2017 Agreement was signed for the Surety on behalf of an agent who exceeded his authority. The Surety did not seek to enforce the Cox Operating, LLC Indemnity Agreement against Cox—it sought to enforce the Supplement pursuant to which he assumed obligations under the 2017 Agreement, which Cox does not dispute was fully executed. In any event, the arguments lack legal merit. See Shade v.
Anderson, 36 S.W.2d 1041, 1042 (Tex. Civ. App.—Fort Worth 1931) (“[I]f the principal was bound by the bond, then the sureties could not escape liability merely on the ground that the bond was not signed by the principal.”) (citation omitted); Tolbert v. Standard Acc. Ins. Co., 218 S.W.2d 488, 490 (Tex. Civ.
App.—Galveston 1949), rev’d on other grounds, 148 Tex. 235, 223 S.W.2d 617 (1949) (same); Farmer v. Cassity, 264 S.W.2d 145, 148 (Tex. App.—Beaumont 1953, no writ) (“[A] surety executing [] a bond under these circumstances would be estopped to deny the authority of its agent if it accepted the benefits of the bond.”); see also 68 TEX. JUR. 3d Suretyship and Guaranty § 156 (2026) (“Where the facts are sufficient to show the existence of an agency relationship, authorized acts of the agent of a surety company with respect to the terms of the bond and changes therein are deemed to be the acts of the company.”).
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“immediately deposit collateral as requested by the Surety in its sole discretion.” The Surety demanded the collateral and Cox refused to provide it. The Surety attached the letters demanding collateral from Cox to McCluskey’s affidavit. The Surety also produced the affidavit of Joseph Rosas—a senior bond claims attorney for the Surety—who averred that the Surety issued Louisiana Bond for $1.25 million and the Apache Bond for $5.7 million, and that “[b]ased on the existence of the claims against the Bonds, the Surety has suffered losses under the Bonds of at least $146,438.19”—representing the amount of “attorney’s fees incurred by the Surety.” Cox testified in his deposition that he had no reason to dispute the issuance of the bonds. The Surety thus produced undisputed evidence that it performed under the Indemnity Agreements.
Cox argues there was no consideration in connection with the Supplement, pursuant to which again he assumed the obligations of the 2017 Agreement.16 The Surety, however, explained that the Supplement was supported by consideration because Cox “reasonably expected his promise to induce action or forbearance of a substantial character on the part of the Surety”—that is, that Cox executed the Supplement to avoid the Surety from issuing a collateral cash call on the underlying Companies’ obligations. Cox appeared to concede this at his deposition
16 Cox’s counsel said during the summary judgment hearing that “the primary defense in the case is there’s no consideration” and that “[t]he whole case is about no consideration.”
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when he testified that the Surety “demanded that we put up a personal guarantee . . . so that they wouldn’t do a full cash collateral call on us [the Companies].” “Surrendering a legal right represents valid consideration.” Ulico Cas. Co. v. Allied Pilots Ass’n, 262 S.W.3d 773, 791 (Tex. 2008) (citing N. Nat. Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 607 (Tex. 1998)); see also generally Alamo Lumber Co. v. Gold, 661 S.W.2d 926, 932 (Tex. 1983) (“[C]onsideration may be found in an agreement, by the lender, to forbear from foreclosing upon the borrower’s collateral[.]”) (citing cases); Dyer v. Metallic Bldg. Co., 410 S.W.2d 56, 58–59 (Tex. App.—Tyler 1966, no writ) (holding promise to forbear from asserting mechanic’s and materialman’s liens for ninety days constituted valid consideration for promissory note).
We overrule Cox’s issues concerning the validity of the Indemnity Agreement and the Supplement and the Surety’s entitlement to collateral under the terms of the agreements. B. Cox’s Defenses to Liability In his answer, Cox asserted four affirmative defenses to the Surety’s claim for collateral: (1) ambiguity, (2) lack or failure of consideration, (3) that the Surety’s interpretation of the Indemnity Agreements “would lead to an absurd result,” and (4) that the Indemnity Agreements are contracts of adhesion. And in
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his summary judgment response and amended response, he argued unclean hands, validity of the bonds, and “factual and logical impossibility.”17 The only defense referenced in Cox’s appellate brief is lack of consideration.
Because Cox does not argue the applicability of any of his other pled affirmative defenses—and indeed, did not argue any in his summary judgment response—we need not address them. See Yilaam Hous., LLC v. Vivaldi Group, LLC, No. 14-25- 00384-CV, 2026 WL 1955924, at *3 (Tex. App.—Houston [14th Dist.] July 7, 2026, no pet. h.) (mem. op.) (“The [appellant] abandoned its affirmative defenses by not asserting them in its response to the [appellee’s] traditional summary judgment motion[.]”). We equally need not address the additional unpled defenses Cox asserted in his summary judgment responses because he does not raise them in his appellate brief. See Sibley v. Eckhardt, No. 01-11-00117-CV, 2012 WL 2928499, at *3 (Tex. App.—Houston [1st Dist.] July 19, 2012, no pet.) (mem. op.) (“[W]e may not reverse a judgment for a reason not raised on appeal.”) (citing Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.— Houston [1st Dist.] 1994, writ denied)).
17 None of these defenses were pled in his answers, and during the summary judgment hearing, the Surety objected to those defenses—as well as the invocation of the UCC as a defense. See Proctor v. White, 172 S.W.3d 649, 652 (Tex. App.—
Eastland 2005, no pet.) (“[W]hen a non-movant relies on an unpleaded affirmative defense or an unpleaded matter constituting a confession and avoidance to defeat a motion for summary judgment, the movant must object in order to avoid trying the issue by consent.”). See supra, note 13.
19
With respect to the only pled defense Cox raised in his summary judgment responses and in his appellate brief—lack of consideration—we have already concluded that the Surety established consideration for the Indemnity Agreements and Supplement. We thus overrule Cox’s issues with respect to that defense.
Cox next argues that the statement in the Supplement that “[t]he undersigned individual hereby agrees to be considered as and shall become a Principal under the Agreement but only for indemnity and obligations not to exceed $5.7 million” is “not sufficiently clear, certain, and definite to have the operative legal effect of forming any enforceable contract” between the Surety and Cox. This is an ambiguity argument, and Cox waived that defense by failing to argue it in response to the Surety’s summary judgment motion. See Brown v. Alcatel USA, Inc., No. 05- 02-01678-CV, 2004 WL 1434521, at *2 (Tex. App.—Dallas June 28, 2004, pet. denied) (mem. op.) (argument that contract was ambiguous was waived because appellant failed to raise it in summary judgment response).
We similarly reject Cox’s additional arguments that (1) the summary judgment evidence did not establish there was no genuine issue of fact as to a meeting of the minds between the Surety and Cox, and (2) the agreements were based on an illusory promise.18 Those arguments were not raised in the summary
18 The Surety argued in its summary judgment that Cox violated the indemnity agreements by failing to provide collateral as requested. The Surety argued that Cox had “not contest[ed] his indemnity obligations or dispute[d] the Surety’s
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judgment response. See Gutierrez v. Elizondo, 139 S.W.3d 768, 773 (Tex. App.— Corpus Christi–Edinburg 2004, no pet.) (holding objection to contract for failure to reflect meeting of minds as to parties’ legal obligations was waived on appeal when not raised at trial) (citing TEX. R. APP. P. 33.1); Doxey v. CRC-Evans Pipeline Int’l, Inc., No. 14-14-01009-CV, 2016 WL 6652727, at *4 (Tex. App.— Houston [14th Dist.] Nov. 10, 2016, no pet.) (mem. op.) (holding appellate point on illusory promise waived because not raised in trial court).
Cox next argues at length that summary judgment was improper because the agreements were subject to Article 9 of the Uniform Commercial Code (“UCC”) and because there was a lack of mutuality in the 2017 Agreement. The Surety argues that both arguments are affirmative defenses which Cox did not—as required—plead in his answer.
Rule of Civil Procedure 94 provides that “a party shall set forth affirmatively . . . any [] matter constituting an avoidance or affirmative defense.” TEX. R. CIV. P. 94. Lack of mutuality is an affirmative defense that must be specifically pled and
entitlement to collateral” during his depositions but, rather, “thought it was not suitable for the Surety to request collateral under the circumstances[.]” The Surety argued that under the terms of the Indemnity Agreement, it did not need a reason to request collateral because it had the unilateral contractual right to demand collateral “in its sole and absolute discretion” to “secure the Principal’s obligations to the Surety.” But that in any event, it had provided one because it had expressed to Cox and the Companies its concerns “about the overall risk profile of the account.” The Surety argued that when it first requested collateral from Cox given its concerns, Cox stated there was no risk but soon after, the “Companies were plunged into bankruptcy.”
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established. See Dynamic Publ’g. & Distrib. L.L.C. v. Unitec Indus. Ctr. Prop. Owners Ass’n, Inc., 167 S.W.3d 341, 349 (Tex. App.—San Antonio 2005, no pet.) (noting lack of mutuality is affirmative defense that “must be specifically pled and proved”) (citing TEX. R. CIV. P. 94). Cox did not plead lack of mutuality, nor did he establish that the defense was tried by consent. On the contrary, the Surety objected to such a defense on the basis it was not pled. We thus overrule Cox’s issues on this point.
Cox also did not plead his UCC defense. Assuming, without deciding that Cox’s UCC argument did not have to be pled and that the defense was properly raised in response to the Surety’s summary judgment response, we overrule his issue. In his summary judgment response, Cox argued without elaboration that there were “genuine issues of material fact as to the “[w]hether Mr. Cox ever granted a security interest in any money or other property to [the Surety], and, if so, whether [the Surety] is actually entitled to possession of such collateral, as determined by Article 9 of the Texas Business & Commerce Code.” In his appellate brief, Cox argues, without more, that the trial court “misconstrued” the Indemnity Agreements because the collateral obligations under Section 3 of the agreements constitute security agreements that are governed by Chapter 9 of the Texas Business & Commerce Code and do not impose “any obligation upon any ‘Principal’ thereunder to otherwise deliver possession of any sum of money to [the
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Surety]” or entitle the Surety “to judgment ordering a ‘Principal” to make such payment” because “collateral”—by definition—is subject to a security interest.
Cox does not provide any citations in support of his arguments, nor does he provide further meaningful analysis. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing “long-standing rule” that inadequate briefing waives issue on appeal); see also Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015) (“Failure to provide citations or argument and analysis as to an appellate issue may waive it.”) (citing ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Even if we consider his argument, we conclude it lacks merit.
Section 3 of the 2017 Agreement provides:
The Surety may at any time and from time to time hereafter, in its sole and absolute discretion, require the Principals to provide collateral, in form and amounts acceptable to the Surety (such amounts not to exceed the aggregate penalty sum of all then-issued Bonds) to secure the Principals’ obligations to the Surety hereunder and/or to establish reserves to cover any actual or potential liability, claim, suit, or judgment under any Bond. Immediately upon the Surety’s demand therefor, each Principal shall execute such documents and take such further action as may be necessary in order to provide such collateral.
Each Principal hereby grants to the Surety a security interest in all money and other property now or hereafter delivered by such Principal to the Surety, and all income (if any) thereon.19
19 Similar provisions were in the other Indemnity Agreements.
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Cox argues that Section 3 of the 2017 Agreement, which is incorporated into the Supplement, is a security agreement under Section 9.102(a)(74) of UCC and not a contractual obligation to provide collateral upon demand. We disagree.
As the Surety correctly notes, Section 3 imposes a contractual obligation to deliver collateral upon demand by the Surety, who can request such collateral “at any time” in its “sole and absolute discretion” in “form and amounts acceptable to the Surety (such amounts not to exceed the aggregate penalty sum of all then- issued Bonds).” It does not impose a duty to pledge an “immediate lien on specific property.” Indeed, in his deposition, Cox understood this provision to be a “collateral request.”
The language in Section 3 referencing a “security interest” does not change our analysis. That language merely provides that once the “Principal” complies with its contractual obligation to provide collateral upon demand, each “Principal” is required to “grant[]to the Surety a security interest in all money and other property now or hereafter delivered by such Principal to the Surety.” (Emphasis added). As the Surety argues, a security interest was never granted here because such an interest “activates only upon delivery [of collateral], which never occurred due to Cox’s refusal.” We overrule Cox’s point on this issue.
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Finally, we address Cox’s arguments that the bonds are invalid or null and void and thus the Supplement and 2017 Agreement cannot be enforced.20 Cox argues that the Surety cannot make a collateral demand unless and until the underlying performance bond is in force. Thus, he argues, the issuance of the bond constitutes a condition precedent to the demand for collateral.
Rule of Civil Procedure 54 provides that
[i]n pleading the performance or occurrence of conditions precedent, it shall be sufficient to aver generally that all conditions precedent have been performed or have occurred. When such performances or occurrences have been so plead, the party so pleading same shall be required to prove only such of them as are specifically denied by the opposite party.
TEX. R. CIV. P. 54. In its pleadings, the Surety pled that all conditions precedent to recovery from Cox “ha[d] occurred or ha[d] been performed.” Cox did not specifically deny that any conditions precedent to the Surety’s claim had occurred. The Surety was thus not required—in moving for summary judgment—to establish the performance or occurrence of conditions precedent to its claim. See Cmty. Bank & Tr., S.S.B. v. Fleck, 107 S.W.3d 541, 542 (Tex. 2002) (“Absent a specific denial, [plaintiff] was relieved of the burden of proving that conditions precedent to recovery had been met.”); Granbury Marina Hotel, L.P. v. Berkel & Co. Contractors, Inc., 473 S.W.3d 834, 840 (Tex. App.—El Paso 2015, no pet.)
(“Because Hilton did not specifically deny the occurrence of this condition 20 See supra, note 15 (rejecting Cox’s argument that bonds were void).
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precedent, Berkel did not have to prove at trial that the condition precedent was satisfied, had been performed, or had occurred.”).
And to the extent that Cox argues that the failure to meet a condition precedent is the failure to perform under the Indemnity Agreements, we have already concluded that the Surety produced undisputed evidence it performed by issuing the performance bonds. We overrule Cox’s issues pertaining to his defenses to liability. C. Cox’s Evidentiary Challenges Cox argues that the trial court abused its discretion in denying its motion to exclude and failing to “exclude all testimonial evidence set forth in paragraph 1, footnote 2, and paragraphs 7, 9-11, 13-15, 17, and 19” of McCluskey’s affidavit. He avers that McCluskey was designated as an expert even though the Surety failed to disclose the general substance of his mental impressions and opinions and a brief summary of the basis for them; all documents and things provided to, reviewed by, and prepared by or for him; his CV; any publications he wrote in the past ten years; a list of other cases he had testified in as an expert in the past four years; and information regarding his compensation for his testimony or study. See TEX. R. CIV. P. 195.5(a).
The Surety argues that “all of the operative documents that Cox [complains about on appeal] were attached to the Original Petition and were litigated heavily
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over two years of the case (including a request for injunctive relief and companion hearing with the Court, two depositions of Cox, and an earlier MSJ that was withdrawn when Cox amended his answer at the 11th hour to allege new defenses).” (Emphasis in original.) It argues that Cox was thus not unfairly surprised or unduly prejudiced and did not argue that he was.21 “Rather, he simply made the conclusory leap from the timing of the service of formal disclosures to a complete exclusion of evidence.”
Rule of Civil Procedure 193.6 governs the consequences for failing to timely respond to discovery requests, including requests for disclosures. TEX. R. CIV. P. 193.6(a). It provides that a party who seeks to introduce evidence not previously disclosed has the burden to establish good cause or lack of unfair surprise or unfair prejudice. Id. 193.6(a), (b). We review a trial court’s decision to admit or exclude evidence under Rule 193.6(a) for abuse of discretion. Jackson v. Takara, 675 S.W.3d 1, 6 (Tex. 2023).
Although there was no express ruling on Cox’s motion to exclude, we conclude (1) the trial court took up the motion during the hearing on Cox’s motion for summary judgment, and (2) implicitly denied the motion. See Lopez v. La
21 Indeed, Cox acknowledges that paragraphs five through sixteen of McCluskey’s affidavit repeat verbatim the allegations made in the original petition. And, as the Surety notes, the only documents attached to McCluskey’s affidavit are copies of the Indemnity Agreements, the Supplement, the performance bonds, and the requests for collateral the Surety sent to Cox.
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Madeleine of Tex., Inc., 200 S.W.3d 854, 862 (Tex. App.—Dallas 2006, no pet.) (concluding trial court impliedly found failure to timely supplement discovery response did not unfairly surprise or unfairly prejudice opposing party); Bellino v. Comm’n for Lawyer Discipline, 124 S.W.3d 380, 384 (Tex. App.—Dallas 2003, pet. denied) (recognizing implicit finding of good cause and lack of unfair surprise in late disclosure of witness when trial court allowed witness to testify). Indeed, counsel for the Surety asked during the summary judgment hearing whether he should “address any of the evidentiary issues that are going to be taken up on [the] motion to exclude,” and the trial court judge answered in the affirmative.
During the summary judgment hearing, the Surety’s counsel argued that any argument “that the [late] initial disclosures somehow prejudiced or surprised Cox is an impossibility.” He argued the Surety had
met its burden of showing a lack of prejudice and a lack of surprise through the record, through the declaration that provides the history of it . . . . You got to look at the whole history of the case. You don’t just look at the last discovery violation. . . . [I]t is absolutely false and the whole history of the case reflects that it’s false to say that any of that information in the disclosures was not disclosed multiple times, over and over and over and over and over again.
He further argued that
[Cox] cannot, with a straight face, argue that [he] didn’t know what this case was about. We had a contested injunction hearing. There was a separate motion to stay. There was a motion for summary judgment.
There were multiple depositions. There was an amended motion for
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summary judgment. There was expert designations. There was written discovery back and forth.22
Cox did not argue otherwise. Indeed, during the summary judgment hearing when the motion to exclude was discussed, counsel for Cox stated, “I will admit to you freely that [McCluskey is] saying what is in the petition, mostly.”
To determine “whether a party has adequately shown a lack of unfair surprise or unfair prejudice from its discovery violation, a trial judge may consider whether the other parties had enough information to reasonably assess settlement, to avoid trial by ambush, and to prepare rebuttal evidence.” Monzingo v. Flories, No. 05-22-00719-CV, 2023 WL 6632799, at *3 (Tex. App.—Dallas Oct. 12, 2023, pet. denied) (mem. op.). “A finding of good cause or lack of unfair surprise or unfair prejudice could be supported by counsel’s uncontested representations to the trial judge about the state of discovery in the case.” Id. (citation omitted).
As noted, none of McCluskey’s testimony advances facts or opinions that are not in the Surety’s original petition. Thus, the trial court did not abuse its discretion in denying Cox’s motion to exclude the Surety’s summary judgment evidence. See generally In re A.K.B., No. 04-23-00154-CV, 2024 WL 3056663, at *24 (Tex. App.—San Antonio June 20, 2024, pet. denied) (mem. op.) (noting that experts’ testimony during temporary orders hearing “preview[ed] much of the
testimony they would later provide at trial” and thus trial court (1) could have 22 The Surety’s expert designation is not in the appellate record.
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properly found appellant “was able to assess settlement, avoid trial by ambush, and prepare rebuttal” to expert testimony, and (2) did not abuse discretion by concluding burden to establish lack of unfair surprise or unfair prejudice was satisfied despite late disclosures).23 We overrule Cox’s issues regarding the admission of the Surety’s summary judgment evidence.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney.
23 The A.K.B. court also noted that the experts had been designated in interrogatory answers more than a year before trial. In re A.K.B., No. 04-23-00154-CV, 2024 WL 3056663, at *24 (Tex. App.—San Antonio June 20, 2024, pet. denied) (mem.
op.).