Ja-Lynn Kuo, JLKUO, PLLC, Subho Mullick, SM ER, PLC, Salima Amin Thobani, and SRG Consulting, LLC v. Regions Bank

AFFIRM and DENY; Opinion Filed July 8, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01325-CV

JA-LYNN KUO, JLKUO, PLLC, SUBHO MULLICK, SM ER, PLC,
SALIMA AMIN THOBANI, AND SRG CONSULTING, LLC, Appellants
V.
REGIONS BANK, Appellee

and

IN RE JA-LYNN KUO, JLKUO, PLLC, SUBHO MULLICK, SM ER, PLC,
SALIMA AMIN THOBANI, AND SRG CONSULTING, LLC, Relators

On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-22-12984

MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Kennedy
Appellee Regions Bank (the Bank) filed suit against appellants Ja-Lynn Kuo,

JLKUO, PLLC, Subho Mullick, SM ER, PLC, Salima Amin Thobani, and SRG

Consulting, LLC (appellants) to enforce their guarantees of payment of two loans

Regions Bank made for the construction and operation of a stand-alone emergency

room. The trial court granted summary judgment in favor of the Bank on appellants’
affirmative defenses and counterclaims and, in a subsequent order, on the Bank’s

breach-of-contract claim against appellants. The trial court later granted a motion

severing the remaining claims between appellants and other defendants, which did

not involve the Bank, and entered a September 16, 2022 final judgment in the

severed case, incorporating by reference the earlier order granting summary

judgment against appellants on the Bank’s breach-of-contract claim.

Appellants appeal from that final judgment and also seek mandamus relief

from the trial court’s order compelling post-judgment discovery. In their first issue,

appellants argue the final judgment is not a final, appealable order and instead

impermissibly requires reference to additional facts in order to enforce it, such that

this Court lacks jurisdiction over this appeal. In their second and third issues,

appellants urge the trial court erred in granting summary judgment because the Bank

did not prove it satisfied conditions precedent and failed to conclusively prove its

damages. In their fourth issue, appellants challenge the sufficiency of the evidence

to support the trial court’s award of attorney’s fees. In their fifth issue, appellants

urge the trial court erred by granting summary judgment on appellants’ affirmative

defense of offset.

In their petition for writ of mandamus, appellants urge the trial court abused

its discretion by granting the Bank’s motion to compel post-judgment discovery and

for sanctions because the final judgment incorporating the summary judgment on

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the Bank’s breach of contract claim, the basis of post-judgment discovery, is not a

final, appealable order.

We affirm the trial court’s judgment and deny appellants’ petition for writ of

mandamus. Because all dispositive issues are settled in law, we issue this

memorandum opinion. See TEX. R. APP. P. 47.2(a), 47.4.

BACKGROUND

On April 11, 2014, the Bank made a construction loan in the amount of

$2,500,000 to Ascent Realty, LLC for the construction of a stand-alone emergency

medical facility in Dallas, Texas. Simultaneously, the Bank made a second

revolving loan in the amount of $600,000 to Ascent Group, LLC for operation of the

business. Appellants executed Unconditional Guarantees in connection with each

loan to guarantee a certain percentage of the principal balance of the respective note.1

Other parties not part of this appeal also signed guarantees of the two loans.

In 2016, Ascent Group, LLC filed for bankruptcy, and, in 2017, with the

Bank’s consent, Uptown ER, LLC (Uptown) purchased the assets and assumed the

1
The percentage of the principal balance guaranteed varied by each guarantor is as follows:
Guarantor Percentage of Principal Balance
Subho Mullick 51.75%
SM ER, PLC 51.75%
Salima Amin Thobani 24.75%
SRG Consulting, LLC 24.75%
Ja-Lynn Kuo 21.00%
JLKUO, PPC 21.00%

–3–
obligations under the two loans through a Debt Assumption and Modification

Agreement (DAMA). The DAMA also refers to the guarantees of John Turner, the

managing member and principal of Uptown ER, LLC, and Ryan Cradeur, another

member and principal of the same. Simultaneously with the DAMA, Turner and

Cradeur signed Unconditional Guarantees of payment of the two loans.

When Uptown failed to make payments on both loans, the Bank proceeded to

notify Uptown of “events of default” of both loans via a January 18, 2019 letter. The

Bank also sent letters dated January 18, 2019, to Turner and Cradeur, notifying them

of Uptown’s default and demanding that all guaranteed amounts be paid

immediately.

On February 14, 2019, the Bank filed suit against Uptown ER, LLC, Turner,

and Cradeur for breach of contract, and on September 19, 2019, the Bank added

appellants as defendants to its suit. In their first amended answer, appellants asserted

numerous affirmative defenses, including that the Bank “must first collect or

reasonably exhaust collection efforts against the primary guarantors” of Uptown,

Turner, and Cradeur, as well as offset of any amount paid on their obligations by any

other party. In March 2021, appellants filed counterclaims against the Bank, as well

as cross-claims against Uptown and Turner, for breach of contract, waste of

collateral and accounting, fraud, negligent misrepresentation, and promissory

estoppel.

–4–
On May 27, 2021, the Bank moved for summary judgment against appellants

on their affirmative defenses to its breach-of-contract claim, including offset, and on

their counterclaims. On July 13, 2021, the Bank moved for summary judgment

against appellants on its breach-of-contract claim. In August 2021, the Bank entered

into an agreed judgment with Uptown, in which the Bank was awarded judgment for

the outstanding principal of both loans as well as outstanding interest, pre-judgment

interest, and attorney’s fees. That same month, the trial court granted summary

judgment in favor of the Bank on appellants’ affirmative defenses and

counterclaims. On October 12, 2021, the trial court granted summary judgment in

favor of the Bank on its claims against appellants, awarding the Bank the amounts

guaranteed by each, as well as outstanding interest on the loans, per diem interest,

post-judgment interest, and attorney’s fees.

The Bank filed, and the trial court granted, motions to sever its judgments

against Uptown and Turner from the remaining proceedings.2 Subsequently, the

Bank filed a second motion to sever, asserting the only remaining claims were cross-

claims between defendants, which the trial court denied. At a later hearing in

September 2022, the trial court sua sponte reconsidered its ruling on that motion and

granted the motion and entered a September 16, 2022 final judgment in the severed

2
The Bank sought summary judgment on its claims against all of the defendants, but in November
2020, the trial court granted summary judgment as to Turner and denied same as to appellants and other
remaining defendants. Cradeur filed for bankruptcy and was nonsuited without prejudice from the case on
April 7, 2020.
–5–
case, incorporating by reference the October 12, 2021 order granting summary

judgment against appellants. Appellants filed a motion for new trial, which was

overruled by operation of law. This appeal followed.

JURISDICTION

In their first issue, appellants argue this Court should dismiss this appeal for

want of jurisdiction because the September 16, 2022 judgment appealed from is not

a final judgment as a matter of law.

Absent statutory authority, this Court has no jurisdiction to review an

interlocutory ruling. Masa Custom Homes, LLC v. Shahin, 547 S.W.3d 332, 338

(Tex. App.—Dallas 2018, no pet.) (citing Qwest Commc’ns Corp. v. AT&T Corp.,

24 S.W.3d 334, 336 (Tex. 2000)). There are two paths for an order to become a final

judgment without a trial: the order can (1) dispose of all remaining parties and claims

then before the court, regardless of its language; or (2) include unequivocal finality

language that expressly disposes of all claims and parties. Sealy Emergency Room,

L.L.C. v. Free Standing Emergency Room Managers of Am., L.L.C., 685 S.W.3d

816, 820 (Tex. 2024) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex.

2001)). We have also recognized that, “[a]s a rule, the severance of an interlocutory

judgment into a separate cause makes it final.” Id. (quoting Diversified Fin. Sys.,

Inc. v. Hill, Heard, O’Neal, Gilstrap & Goetz, P.C., 63 S.W.3d 795, 795 (Tex.

2001)).

–6–
The September 16, 2022 judgment concludes by stating, “This Final Judgment

disposes of all claims and all parties in the Severed Case; it is final and appealable.”

Although no “magic language” is required, a trial court may express its intent to

render a final judgment by describing its action as (1) final, (2) a disposition of all

claims and parties, and (3) appealable. Bella Palma, LLC v. Young, 601 S.W.3d 799,

801 (Tex. 2020). Thus, by two separate measures, this judgment was intended to be

final. See id.; see also Sealy Emergency Room, 685 S.W.3d at 820.

Appellants argue that the September 16, 2022 judgment is not final because it

incorporates the prior, interlocutory summary judgment order, which provided:

[T]he respective Kuo Defendants shall be given credit for any payments
on the loans in question, outstanding interest on those loans, and
attorneys’ fees only to the extent any other person or entity makes
payment on those items such that the amount owed to Plaintiff is
reduced to an amount less than what the respective Kuo Defendants
owe for each of those items under this judgment.

Appellants urge this language would leave any ministerial officer “unable to

determine the amount of the judgment against any of the Kuo Appellants,” such that

the September 16, 2022 judgment and incorporated summary judgment order are

indeterminate and interlocutory.

Indeed, “[a] final judgment must be definite and certain.” Int’l Sec. Life Ins.

Co. v. Spray, 468 S.W.2d 347, 350 (Tex. 1971); see also Hinde, 701 S.W.2d at 639.

“A judgment must [also] be sufficiently definite and certain to define and protect the

rights of all litigants, or it must provide a definite means of ascertaining such rights,

to the end that ministerial officers can carry the judgment to execution without
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ascertainment of facts not therein stated.” Hinde, 701 S.W.2d at 639 (quoting Steed

v. State, 183 S.W.2d 458, 460 (Tex. 1944)). A judgment may be definite and certain

even if “the amount eventually to be collected by plaintiff from defendant remains

uncertain.” See Hargrove v. Ins. Inv. Corp., 176 S.W.2d 744, 748 (Tex. 1944) (“All

of the provisions last mentioned are for the purpose of carrying the judgment into

effect and are incidental to the proper enforcement of the rights of the parties as

determined by the judgment.”); see also Dallas Cnty. Cmty. Coll. Dist. v. Bolton, 89

S.W.3d 707, 713 (Tex. App.—Dallas 2002), rev’d on other grounds, 185 S.W.3d

868 (Tex. 2005) (“The provision allowing Class counsel to recover their fees

incurred in connection with post-judgment collection and distribution efforts does

not render the judgment interlocutory.”). “So long as the judgment of the court

makes the figure which the clerk is to place in the writ of execution determinable by

ministerial act, the judgment cannot be said to lack definiteness.” See Spray, 468

S.W.2d at 350.

We conclude this case is one where the amount adjudged is certain even if

“the amount eventually to be collected by plaintiff from defendant remains

uncertain.” See Hargrove, 176 S.W.2d at 748. The order granting summary

judgment incorporated by reference in the September 16, 2022 judgment orders the

–8–
Bank to recover certain amounts from each appellant for the principal balance of

each loan,3 interest,4 and attorney’s fees,5 both trial and appellate.

3
In relevant part, the final judgment provides:
It is, therefore, ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank
have and recover of and fiom JLKUO, PLLC judgment for the amount of $360,931.23,
representing $296,823.11 for 21% of the principal of the construction loan and $64,108.12
for 21% of the revolving loan. It is, further,
ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover
of and from Ja-Lynn Kuo judgment for the amount of $360,931.23, representing
$296,823.11 for 21% of the principal of the construction loan and $64,108.12 for 21% of
the revolving loan. It is, further,
ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover
of and from SM ER, PLC judgment for the amount of $889,437.67, representing
$731,456.95 for 51.75% of the principal of the construction loan and $157,980.72 for
51.75% of the revolving loan. It is, further,
ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover
of and from Subho Mullick judgment for the amount of $889,437.67, representing
$731,456.95 for 51.75% of the principal of the construction loan and $157,980.72 for
51.75% of the revolving loan. It is, further,
ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover
of and from SRG Consulting, LLC judgment for the amount of $425,383.23, representing
$349,827.24 for 24.75% of the principal of the construction loan and $75,556.00 for
24.75% of the revolving loan. It is, further,
ORDERED, ADJUDGED, and DECREED that Plaintiff Regions Bank have and recover
of and from Salima Thobani judgment for the amount of $425,383.23, representing
$349,827.24 for 24.75% of the principal of the construction loan and $75,556.00 for
24.75% of the revolving loan. It is, further,
ORDERED, ADJUDGED, and DECREED Plaintiff Regions Bank have and recover of
and from the Kuo Defendants, jointly and severally, judgment for the outstanding interest
on the loans as of July 6, 2021, in the amount of $310,423.50, as well as per diem interest
in the amount of $208.88 for the construction loan and $66.51 for the revolving loan from
July 7, 2021 until the date this Judgment is entered. It is, further,
ORDERED, ADJUDGED, and DECREED that Plaintiff have and recover of and from the
Kuo Defendants, jointly and severally, post-judgment interest on the unpaid amount of the
Judgment at the Default Rate of 9.32% per annum, compounded annually, beginning on
the day this Judgment is signed and entered and continuing until the Judgment is paid in
full, released, or otherwise discharged.
4
In relevant part, the final judgment provides:
It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff have and recover of
and from the Kuo Defendants, jointly and severally, post-judgment interest on the unpaid
amount of the Judgment at the Default Rate of 9.32% per annum, compounded annually,

–9–
We further conclude this case is unlike the authorities cited by appellants

where no specific amount of damages or fees was awarded. Cf. Chado v. PNL

Blackacre, L.P., No. 05-04-00312-CV, 2005 WL 428824, at *1 (Tex. App.—Dallas

Feb. 24, 2005, no pet.) (mem. op.) (where parties conceded impossibility of

executing on attorney’s fees portion because order did not specify amount of

attorney’s fees, we concluded “the trial court’s judgment is not final because it does

not dispose of all issues between the parties and lacks definiteness”); In re

Blankenhagen, 513 S.W.3d 97, 101 (Tex. App.—Houston [14th Dist.] 2016, pet.

dism’d) (concluding judgment not final where “[a]t most, this statement states a

potential range of damages, not an award of damages in a certain amount.”).6

Accordingly, we conclude the September 16, 2022 judgment is a final,

appealable judgment. We overrule appellant’s first issue.

beginning on the day this Judgment is signed and entered and continuing until the Judgment
is paid in full, released, or otherwise discharged.
5
In relevant part, the final judgments provides:
It is, further, ORDERED, ADJUDGED, and DECREED that Plaintiff have and recover of
and from the Kuo Defendants, jointly and severally, reasonable and necessary attorneys’
fees in the amount of $603,795.78, plus reasonable and necessary attorneys’ fees in the
amount of $30,000.00 in the event this case is appealed to the Court of Appeals, and
$20,000.00 in the event a petition for review is filed with the Texas Supreme Court.
6
Similarly, we distinguish this case from other opinions of this Court where the appealed judgment left
attorney’s fees amount to be determined or otherwise failed to specify an amount: CryoUSA Imp. & Sales,
LLC v. Revitalize360, LLC, No. 05-20-01058-CV, 2022 WL 2037968, at *1 (Tex. App.—Dallas June 7,
2022, no pet.) (mem. op.); Daniels v. SS Cottages LLC, No. 05-21-00759-CV, 2022 WL 391509, at *1
(Tex. App.—Dallas Feb. 9, 2022, no pet.) (mem. op.). And, we distinguish this case from that where the
judgment conditioned the awarded amount on what actions parties might take post-judgment. Sanchez v.
F&M Props., No. 05-23-00794-CV, 2023 WL 8862698, at *1 (Tex. App.—Dallas Dec. 22, 2023, no pet.)
(mem. op.) (judgment “provided that in the event injunctive relief is either not sought or the request denied,
a further hearing would be held to determine the amount of attorney’s fees”); Paxton v. Simmons, 640
S.W.3d 588, 597 (Tex. App.—Dallas 2022, no pet.) (judgment conditioned on whether “intervention is
filed in this case by those Defendants”).
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DISCUSSION

I. Preservation of Issues

In their second and third issues, appellants urge the trial court erred granting

summary judgment because the Bank did not prove it satisfied conditions precedent

and failed to conclusively prove its damages. In their fourth issue, appellants

challenge the sufficiency of the evidence to support the trial court’s award of

attorney’s fees.

As an initial matter, we note that these three issues challenge sufficiency of

the evidence to support the trial court’s October 12, 2021 grant of summary

judgment to the Bank, which was incorporated into the September 16, 2022

judgment. However, the appellate record is missing the exhibits to the Bank’s July

13, 2021 motion for summary judgment. An appellant bears the burden to bring

forward a record that enables the appellate court to determine whether appellant’s

complaints constitute reversible error. See Palla v. Bio-One, Inc., 424 S.W.3d 722,

727 (Tex. App.—Dallas 2014, no pet.) (citing Enter. Leasing Co. of Houston v.

Barrios, 156 S.W.3d 547, 549 (Tex. 2004) (per curiam); Christiansen v. Prezelski,

782 S.W.2d 842, 843 (Tex. 1990); Nicholson v. Fifth Third Bank, 226 S.W.3d 581,

582 (Tex. App.—Houston [1st Dist.] 2007, no pet.)). Issues depending on the state

of the evidence cannot be reviewed without a complete record. See id. (citing

Favaloro v. Comm’n for Lawyer Discipline, 994 S.W.2d 815, 820 (Tex. App.—

Dallas 1999, pet. stricken)). “If the pertinent summary judgment evidence

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considered by the trial court is not included in the appellate record, an appellate court

must presume that the omitted evidence supports the trial court’s judgment.”

Barrios, 156 S.W.3d at 550 (citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670,

689 (Tex. 1990), and Crown Life Ins. Co. v. Gonzalez, 820 S.W.2d 121, 122 (Tex.

1991).

Thus, because the second, third, and fourth issues require review of a record

not brought forward on appeal, we overrule such issues as not preserved for our

review.7 See Barrios, 156 S.W.3d at 549–50 (holding appellant bore burden to bring

forward record of summary judgment evidence to provide appellate court with basis

to review claim of harmful error) (citing DeSantis v. Wackenhut Corp., 793 S.W.2d

670, 689 (Tex. 1990); Escontrias v. Apodaca, 629 S.W.2d 697, 699 (Tex. 1982));

see also TEX. R. APP. P. 34.5(a) (only the items listed in Rule 34.5(a) are included in

the appellate record absent a request from one of the parties).8

7
The clerk’s record consists of one original and three supplemental volumes, totaling over 4,000 pages.
In their briefs, the parties cite the exhibits attached to the August 27, 2020 motion for summary judgment,
which was denied. The record contains no indication that those exhibits were the same as those supporting
the July 13, 2021 motion or that the later motion incorporated by reference the exhibits supporting the
earlier motion.
8
Rule 34.5(a) requires the record include copies of the following:
(1) in civil cases, all pleadings on which the trial was held;
(2) in criminal cases, the indictment or information, any special plea or defense motion that
was presented to the court and overruled, any written waiver, any written stipulation, and,
in cases in which a plea of guilty or nolo contendere has been entered, any documents
executed for the plea;
(3) the court’s docket sheet;
(4) the court's charge and the jury's verdict, or the court's findings of fact and conclusions
of law;

–12–
II. Affirmative Defense of Offset

In their fifth issue, appellants urge the trial court erred by granting summary

judgment on appellants’ affirmative defense of offset.

We review a grant of summary judgment de novo. Cantey Hanger, LLP v.

Byrd, 467 S.W.3d 477, 481 (Tex. 2015) (citing State v. Ninety Thousand Two

Hundred Thirty–Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d

289, 292 (Tex. 2013)). A party moving for traditional summary judgment has the

burden to prove that there is no genuine issue of material fact and that it is entitled

to judgment as a matter of law. Id. (citing TEX. R. CIV. P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). “When

reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts in

(5) the court’s judgment or other order that is being appealed;
(6) any request for findings of fact and conclusions of law, any post-judgment motion, and
the court’s order on the motion;
(7) the notice of appeal;
(8) any formal bill of exception;
(9) any request for a reporter’s record, including any statement of points or issues under
Rule 34.6(c);
(10) any request for preparation of the clerk’s record;
(11) in civil cases, a certified bill of costs, including the cost of preparing the clerk’s record,
showing credits for payments made;
(12) in criminal cases, the trial court's certification of the defendant's right of appeal under
Rule 25.2;
(13) in civil cases, any supersedeas bond or certificate of cash deposit in lieu of a bond;
and
(14) subject to (b), any filing that a party designates to have included in the record.
TEX. R. APP. P. 34.5(a).
–13–
the nonmovant’s favor.” Id. (quoting Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005)).

The right of offset, set-off, or reimbursement against damages is an

affirmative defense. See Tenet Health Sys. Hosps. Dallas, Inc. v. N. Tex. Hosp.

Physicians Grp., P.A., 438 S.W.3d 190, 204 (Tex. App.—Dallas 2014, no pet.).

Therefore, to be entitled to summary judgment, the Bank must have proven that there

was no genuine issue of material fact as to whether appellants had the right to offset

and that it was entitled to judgment as a matter of law on appellants’ affirmative

defense.

In its May 27, 2021 motion for summary judgment, the Bank argued

appellants had waived, among others, the affirmative defense of offset, through the

following language of the Unconditional Guarantees each appellant signed related

to each of the construction and revolving loans.

No setoff, counterclaim, reduction or diminution of any obligation, or
any defense of any kind which Guarantor has or may have against
Borrower or Lender shall be available hereunder to Guarantor.

This is a continuing guaranty of payment, not a guaranty of collection
. . . . If one or more additional guaranty agreements are executed by
one or more additional guarantors (“Other Guarantors”), which
guarantee the Obligations, it is specifically agreed that the liability
hereunder of Guarantor or Other Guarantors shall be joint and several.

Appellants do not dispute the effect of broad waivers in the Unconditional

Guarantees on their right to the affirmative defense of offset, but instead they urge,

as they did in their response to the Bank’s motion, that the DAMA included language

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that modified the Bank’s rights against all of the guarantors of the two loans. More

particularly, appellants contend the following language in the DAMA entitles them

to an offset.

Lender agrees that the guarantees of Dr. John Turner and Dr. Ryan
Cradeur (collectively, the “New Guarantees”) given at Closing shall be
the first to be enforced by Lender as all guarantees, meaning that,
subject to the exceptions below, Lender will proceed with demand to
enforce and actions to enforce the New Guarantees for a period of one
hundred eighty (180) days, cumulatively measured from the initial on
such New Guarantees, before making any renewed, post-Closing
demands or undertaking enforcement actions on the Preexisting
Guarantees, except that Lender proceed with immediate and
enforcement against any particular Preexisting Guarantor on his, her or
its Preexisting Guarantee if: [listing exceptions not at issue here].

Appellants interpret the foregoing language to require the Bank to enforce Turner’s

and Cradeur’s guarantees before enforcing appellants’ guarantees. They further urge

that the intent of this portion of the DAMA “was to require Regions Bank to exhaust

assets of Turner and Cradeur before taking an[y] action to enforce any pre-existing

guarantees, such as [appellants’].” Thus, conclude appellants, the DAMA modified

appellants’ guarantees and expressly provided for the defense of offset.

The Bank responds that the DAMA could not have modified the relationship

between itself and appellants or revived appellants’ defense of offset because

appellants are neither parties to nor third-party beneficiaries of the DAMA. As a

general rule, the benefits and burdens of a contract belong solely to the contracting

parties, and “no person can sue upon a contract except he be a party to or in privity

with it.” First Bank v. Brumitt, 519 S.W.3d 95, 102 (Tex. 2017) (quoting House v.

–15–
Hous. Waterworks Co., 31 S.W. 179, 179 (Tex. 1895)). An exception to this general

rule permits a person who is not a party to the contract to sue for damages caused by

its breach if the person qualifies as a third-party beneficiary. Id. (citing MCI

Telecomms. Corp. v. Tex. Utils. Elec. Corp., 995 S.W.2d 647, 651 (Tex. 1999)). A

person seeking to establish third-party-beneficiary status must demonstrate that the

contracting parties “intended to secure a benefit to that third party” and “entered into

the contract directly for the third party’s benefit.” Id. (quoting Stine v. Stewart, 80

S.W.3d 586, 589 (Tex. 2002)). To create a third-party beneficiary, the contracting

parties must have intended to grant the third party the right to be a “claimant” in the

event of a breach. Id. (citing Corpus Christi Bank & Tr. v. Smith, 525 S.W.2d 501,

505 (Tex. 1975)).

To determine whether the contracting parties intended to directly benefit a

third party and entered into the contract for that purpose, courts must look solely to

the contract’s language, construed as a whole. Brumitt, 519 S.W.3d at 102 (citing

Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 53 (Tex. 1964);

Citizens Nat’l Bank in Abilene v. Tex. & P. Ry. Co., 150 S.W.2d 1003, 1006 (Tex.

1941)). The contract must include “a clear and unequivocal expression of the

contracting parties’ intent to directly benefit a third party,” and any implied intent to

create a third-party beneficiary is insufficient. Id. at 103 (quoting Tawes v. Barnes,

340 S.W.3d 419, 425 (Tex. 2011)) (citing Stine, 80 S.W.3d at 589; MCI, 995 S.W.2d

at 651; Citizens Nat’l Bank, 150 S.W.2d at 1006). Courts may not presume the

–16–
necessary intent. Id. To the contrary, “we must begin with the presumption” that

the parties contracted solely “for themselves,” and only a clear expression of the

intent to create a third-party beneficiary can overcome that presumption. Id.

(quoting Corpus Christi, 525 S.W.2d at 503–04). If the contract’s language leaves

any doubt about the parties’ intent, those “doubts must be resolved against

conferring third-party beneficiary status.” Id. (citing Tawes, 340 S.W.3d at 425).

Although a contract may expressly provide that the parties do not intend to create a

third-party beneficiary, the absence of such language is not determinative. Id. (citing

MCI, 995 S.W.2d at 651–52). “Instead, the controlling factor is the absence of any

sufficiently clear and unequivocal language demonstrating” the necessary intent. Id.

(quoting Tawes, 340 S.W.3d at 428).

Having reviewed the DAMA and considered appellants’ arguments that the

quoted language above was intended to benefit appellants, we cannot conclude the

DAMA contains any “sufficiently clear and unequivocal language demonstrating”

any intent to create third-party beneficiaries of appellants. Id. At best the quoted

language implies but does not actually state such an intent. Moreover, as both parties

point out, the paragraph preceding the above quoted language provides that the Bank

“is expressly not waiving but reserving all rights incident to any guarantees

previously obtained.” Therefore, construing the DAMA as a whole, the language

that could potentially demonstrate any intent to create third-party beneficiaries of

appellants is even less clear and even more equivocal. See Brumitt, 519 S.W.3d at

–17–
102 (citing Southland Royalty Co. v. Pan Am. Petroleum Corp., 378 S.W.2d 50, 53

(Tex. 1964); Citizens Nat’l Bank in Abilene v. Tex. & P. Ry. Co., 150 S.W.2d 1003,

1006 (Tex. 1941)).

Accordingly, we overrule appellants’ fifth issue.

WRIT OF MANDAMUS

In their petition for writ of mandamus, appellants urge the trial court abused

its discretion by granting the Bank’s motion to compel post-judgment discovery and

for sanctions because the summary judgment made the basis of post-judgment

discovery is not a final, appealable order. Appellants do not challenge the order’s

terms, only whether the trial court could compel answers to post-judgment discovery

absent a final, appealable judgment.

Entitlement to mandamus relief requires a relator to show that the trial court

clearly abused its discretion and that the relator lacks an adequate appellate remedy.

In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). In light of our resolution of appellants’ issue, in which we concluded

the summary judgment made the basis of post-judgment discovery is a final,

appealable order, we deny their petition for writ of mandamus.

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CONCLUSION

We affirm the trial court’s September 16, 2022 judgment and deny appellants’

petition for writ of mandamus.

/Nancy Kennedy/
NANCY KENNEDY
JUSTICE

Molberg, J., concurring in judgment only, without opinion.

221325F.P05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JA-LYNN KUO, JLKUO, PLLC, On Appeal from the 192nd Judicial
SUBHO MULLICK, SM ER, PLC, District Court, Dallas County, Texas
SALIMA AMIN THOBANI, AND Trial Court Cause No. DC-22-12984.
SRG CONSULTING, LLC, Opinion delivered by Justice
Appellants Kennedy. Justices Molberg and
Nowell participating.
No. 05-22-01325-CV V.

REGIONS BANK, Appellee

and

IN RE JA-LYNN KUO, JLKUO,
PLLC, SUBHO MULLICK, SM ER,
PLC, SALIMA AMIN THOBANI,
AND SRG CONSULTING, LLC,
Relators

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee REGIONS BANK recover its costs of this
appeal from appellants JA-LYNN KUO, JLKUO, PLLC, SUBHO MULLICK, SM
ER, PLC, SALIMA AMIN THOBANI, AND SRG CONSULTING, LLC.

Judgment entered this 8th day of July 2024.

–20–