TPG (Post Oak) Acquisition, LLC TPG (Post Oak) Mezzanine, LLC The Picerne Group, Inc. TPG, Inc. Allied Realty Advisors, LLC Allied Realty Partners, LLC Allied Orion Group, LLC D/B/A Allied Realty And ACS Restoration GC, LLC D/B/A Allied Construction Services TPG2011-4 (Post Oak), LLC v. Greystone Multi-Family Builders, Inc., Greystone (Post Oak), LLC, and Walter B. Eeds

Opinion issued August 31, 2021

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-18-00396-CV
———————————
TPG (POST OAK) ACQUISITION, LLC, TPG (POST OAK) MEZZANINE,
LLC, THE PICERNE GROUP, INC., TPG, INC., ALLIED REALTY
ADVISORS, LLC, ALLIED REALTY PARTNERS, LLC, ALLIED ORION
GROUP, LLC D/B/A ALLIED REALTY, ACS RESTORATION GC, LLC
D/B/A ALLIED CONSTRUCTION SERVICES, AND TPG 2011-4 (POST
OAK), LLC, Appellants/Cross-Appellees
V.
GREYSTONE MULTI-FAMILY BUILDERS, INC., GREYSTONE (POST
OAK), LLC, AND WALTER B. EEDS, Appellees/Cross-Appellants

On Appeal from the 334th District Court
Harris County, Texas
Trial Court Case No. 2015-25232
 MEMORANDUM OPINION

Appellants/cross-appellees, TPG (Post Oak) Acquisition, LLC (“TPG

Owner”) and TPG 2011-4 (Post Oak), LLC (“TPG 2011-4”) (collectively, the “TPG

Parties”),1 challenge the trial court’s judgment, entered after a bench trial, partially

in favor of appellees/cross-appellants, Greystone Multi-Family Builders, Inc.

(“GMFB”), Greystone (Post Oak), LLC (“GPO”), and Walter B. Eeds (collectively,

the “Greystone Parties”), and partially in favor of the TPG Parties, in the Greystone

Parties’ suit against the TPG Parties for, among other things, breach of a construction

contract, TPG Owner’s countersuit for, among other things, breach of a construction

1
Although appellants/cross-appellees TPG (Post Oak) Mezzanine, LLC (“TPG
Mezzanine”), The Picerne Group, Inc., TPG, Inc., Allied Realty Advisors, LLC,
Allied Realty Partners, LLC, Allied Orion Group, LLC, doing business as Allied
Realty, and ACS Restoration GC, LLC, doing business as Allied Construction
Services, also filed a notice of appeal in this case, the appellants’ brief filed on their
behalf states that these specific appellants/cross-appellees do not intend to “raise
[any] appellate complaints.” An appellant’s brief must “state concisely all issues or
points presented for review.” TEX. R. APP. P. 38.1(f). And an appellant that does
not actually identify any issues in an appellant’s brief waives any issues that it
sought to raise in its appeal. See id.; Martinez v. Ward, 303 S.W.3d 326, 328 (Tex.
App.—El Paso 2009, no pet.); see also Custer v. Wells Fargo Bank, N.A., No.
03-15-00362-CV, 2016 WL 1084165, at *1 n.1 (Tex. App.—Austin Mar. 18, 2016,
pet. dism’d w.o.j.) (mem. op.) (holding appellant waived issue as inadequately
briefed when she did not actually raise issue on appeal). We hold that TPG
Mezzanine, The Picerne Group, Inc., TPG, Inc., Allied Realty Advisors, LLC,
Allied Realty Partners, LLC, Allied Orion Group, LLC, doing business as Allied
Realty, and ACS Restoration GC, LLC, doing business as Allied Construction
Services, have waived any issues that they sought to raise in this appeal by failing
to actually identify their issues in the appellants’ brief filed on their behalf. See
Strange v. Cont’l Cas. Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas Jan. 29, 2004,
pet. denied) (“We cannot remedy deficiencies in a litigant’s brief . . . .”).

2
contract, and TPG 2011-4’s suit in intervention for breach of a limited liability

company agreement and breach of a personal guaranty. In eight issues, the TPG

Parties contend that (1) the trial court erred in rendering judgment in favor of GMFB

on the competing claims for breach of a construction contract, (2) the evidence was

legally and factually insufficient to support the trial court’s award of damages to

GMFB on its claim for breach of a construction contract, (3) the trial court erred in

awarding GMFB—rather than TPG Owner—attorney’s fees under the construction

contract, (4) the trial court, after finding that TPG 2011-4 was the prevailing party

on its claims for breach of the limited liability company agreement and the personal

guaranty, erred in awarding an insufficient amount as damages for construction cost

overruns, and (5) the trial court erred in failing to award TPG 2011-4 any attorney’s

fees against Eeds under the guaranty.

In three issues on cross-appeal, the Greystone Parties contend that the trial

court erred in (1) awarding less than all of GMFB’s reasonable out-of-pocket

expenses on its claim for breach of a construction contract, (2) assessing damages

against GPO on TPG 2011-4’s claim for breach of a limited liability agreement, and

(3) awarding any, or alternatively excessive, attorney’s fees against GPO on TPG

2011-4’s claim for breach of a limited liability agreement.

We affirm in part, reverse in part, render in part, and remand in part.

3
 Background

In their third amended petition, the Greystone Parties alleged that in 2011,

Eeds had an option to purchase about three acres of land on South Post Oak Lane in

Houston, Texas, where he wanted to construct a midrise, multi-family apartment

complex. He and Kenneth Picerne, owner of The Picerne Group, Inc., agreed to

work cooperatively toward the development of the apartment complex (the

“Project”) and, for that purpose, formed various entities and executed a series of

contracts for the Project’s design, financing, and construction.

The Construction Contract2

In August 2012, TPG Owner, an entity affiliated with Picerne, and GMFB, an

entity affiliated with Eeds, executed a contract for the planned construction of the

Project (the “Construction Contract”). The Construction Contract included two

documents: (1) AIA Document A103-2007, a standard form agreement between an

owner and contractor where the basis of payment is the cost of the work plus a fee

without a guaranteed maximum price and (2) AIA Document 201-2007, the general

conditions of the contract for construction.3

2
The Greystone parties attached a copy of the Construction Contract to their petition.
A copy of the Construction Contract was also admitted into evidence at trial.
3
The terms of these form agreements were negotiated and amended by the parties.

4
 The Construction Contract designated TPG Owner as the owner and GMFB

as the builder. It provided that GMFB would be “solely responsible for, and have

control over, construction means, methods, techniques, sequences and procedures

and for coordinating all portions of the Work[4] under the [Construction] Contract,”

except when otherwise specified by the contract documents. “Communications by

and with Subcontractors and material suppliers” would be “through GMFB.” The

Construction Contract required TPG Owner to pay GMFB the “Contract Sum,”

which was defined as the “Cost of the Work” plus a three percent “Contractor’s Fee”

up to the budget amount (the “Controlled Estimate”), plus any change orders

approved by TPG Owner that raised the initial budget.

Both TPG Owner and GMFB could terminate the Construction Contract. As

to TPG Owner, the Construction Contract contemplated two types of termination:

(1) termination for convenience “at any time . . . without cause” and (2) termination

for cause based on a default by GMFB as the contractor. The nature of the

termination determined the recoverable damages. If TPG Owner terminated the

Construction Contract for convenience, GMFB, “as its sole remedy, [was] entitled

to receive payment for Work executed, and costs incurred by reason of such

termination,” not to exceed the Contract Sum. But if GMFB was in default “after

4
“Work” was defined in the Construction Contract as “the construction and services
required by the Contract Documents” and “the whole or a part of the Project.”

5
applicable notice and cure periods” and TPG Owner, upon written notice, terminated

GMFB’s right “to proceed or continue the Work or any part thereof,” then TPG

Owner’s recoverable damages consisted of “actual damages, together with any

increased costs to [TPG] Owner to achieve final completion and the cost of any delay

resulting from [GMFB’s] default.” And GMFB would not be “entitled to receive

any payment that may be claimed by [it] until after final completion and after [TPG]

Owner ha[d] assessed and charged [GMFB] for costs and damages for which

[GMFB was] liable to [TPG] Owner pursuant to the Contract Documents.” The

Construction Contract stated that TPG Owner’s rights upon termination for cause

based on a GMFB default “shall be in addition to and not in limitation of any other

rights of [TPG] Owner granted in the Contract Documents or at law or in equity.”

In the event of litigation between TPG Owner and GMFB, the Construction

Contract authorized the trial court to determine the prevailing party and order the

reimbursement of the prevailing party’s “reasonable out-of-pocket expenses

incurred in connection therewith, including without limitation reasonable

attorney[’s] fees[.]”

6
 The LLC Agreement5

In connection with the planned construction of the Project, TPG 2011-4, an

entity affiliated with Picerne, and GPO, an entity affiliated with Eeds, jointly formed

TPG (Post Oak) Mezzanine LLC (“TPG Mezzanine”) and entered into the Amended

and Restated Liability Company Agreement of TPG (Post Oak) Mezzanine, LLC

(the “LLC Agreement”). The stated purposes of TPG Mezzanine were to: (1) serve

as the sole member of TPG Owner (and thus the indirect owner of the Project),

(2) acquire the Project land, and (3) develop the Project land.

In this regard, the LLC agreement governed the ownership and financing of

the Project. It provided that TPG 2011-4 held an eighty percent ownership interest

in TPG Mezzanine and was the managing member “responsible for the day-to-day

management” of the Project’s “business and affairs.” GPO, designated as the

developer in the LLC Agreement, held a twenty percent interest in TPG Mezzanine

and, subject to TPG 2011-4’s “approval of all aspects of the design and permitting,”

was responsible for preparing the budget and planning the Project. A default under

the Construction Contract was incorporated as a default under the LLC Agreement.

Under the LLC Agreement, TPG 2011-4 made the initial capital contribution

for the land acquisition and agreed to contribute ninety-five percent of any additional

5
The Greystone parties attached a copy of the LLC Agreement to their petition. A
copy of the LLC Agreement was also admitted into evidence at trial.

7
capital contributions found to be necessary. GPO agreed to contribute the remaining

five percent of additional capital contributions and to pay “[a]ll Construction Cost

Overruns,” contractually defined in the LLC Agreement as “[t]he amount by which

the actual cost of the Land acquisition and the Construction Work exceed[ed] the

Construction Budget,” after the application of available contingencies and the

reduction of the Contractor’s Fee.

Like the Construction Contract, the LLC Agreement authorized the recovery

of fees and expenses in the event of legal proceedings to enforce its terms. It

rendered “the non-prevailing party” responsible for “all costs and expenses in

connection [with the legal proceedings], including without limitation, reasonable

attorney[’s] fees and witness fees.”

The Guaranty6

As a condition of entering into and performing its obligations under the LLC

Agreement, TPG 2011-4 required Eeds to personally guarantee certain obligations

of GPO. To that end, Eeds executed the Performance and Payment Guaranty (the

“Guaranty”) in which he guaranteed, among other things, “the prompt and complete

payment and performance” of GPO’s obligations to pay Construction Cost

Overruns, as defined in the LLC Agreement, unless such Construction Cost

Overruns were caused by any act, omission, or negligence of TPG 2011-4. Upon a

6
A copy of the guaranty was admitted into evidence at trial.

8
default of the guaranteed obligations, TPG 2011-4 could file suit against Eeds and

recover as damages: “(i) all cost related to the completion and performance of the

Guaranteed Obligations; (ii) damages arising from any delay in completing the

Guaranteed Obligations . . . ; and (iii) [TPG 2011-4’s] reasonable attorney[’s] fees

and costs . . . incurred in enforcing th[e] Guaranty.”

The Greystone parties alleged that problems arose during construction of the

Project. Although GMFB had 699 days to substantially complete construction of

the Project, circumstances beyond its control made it impossible to meet the

deadline. For instance, GMFB “encountered a previously undisclosed underground

obstruction” and GMFB’s construction activities were “significantly impacted by

severe Houston weather.” In addition, GMFB discovered “unanticipated

groundwater[] which impacted [its] ability to install footers and shoring and prepare

the site for vertical construction.” GMFB was also impacted by TPG Owner’s

failure to timely pay GMFB and subcontractors for work performed in connection

with the Project, and TPG Owner’s payment of “less than the amount” it was

obligated to pay. The late payments to subcontractors had a severe impact on the

Project as “[n]umerous subcontractors walked off the job, filed liens on the property,

and/or increased their prices in response.” A decrease in available workers directly

interfered with GMFB’s ability to comply with the construction schedules.

9
 According to the Greystone parties, TPG Owner also took on the role of a

“de-facto [g]eneral [c]ontractor” and actively interfered with GMFB’s performance

as the general contractor. Among other things, TPG Owner had a representative

present on site multiple days a week, required GMFB to include it on daily and

weekly reports and communications with subcontractors, refused to allow work to

proceed until it was able to evaluate the construction method and the material used,

changed the sequence of the work, met with subcontractors to question the means

and methods of their work, participated in interviews of potential GMFB personnel

who would be assigned to work on the Project, ordered additional inspections and

tests by third-party consultants or prevented third-party consultants from performing

regular tests and inspections, directed the protocol for work it determined needed to

be repaired, instructed subcontractors to perform their work in a manner inconsistent

with the Project’s plans and specifications, and directed GMFB to stop performing

certain work. Additionally, when TPG Owner interacted with subcontractors for the

Project, the interaction was negative and created an environment where the

subcontractors felt that “no one could do anything correctly.” TPG Owner’s

micromanagement of the Project “eliminated any chance GMFB had of completing

the [P]roject within the . . . budget.”

The Greystone parties also alleged that TPG Owner refused to sign valid

change orders. TPG Owner would typically verbally direct GMFB and the

10
subcontractors to perform work that was outside the scope of the subcontractor’s

contract or that was inconsistent with the Project’s plans and specifications. GMFB

and the subcontractors would comply, but when they approached TPG Owner with

a written change order showing the change, TPG Owner would refuse to sign it or

indefinitely delay signing it.

According to the Greystone parties, by April 2015, the Project was about

seventy-five percent complete. Yet, without any notice or opportunity to cure, TPG

Owner improperly terminated GMFB for cause. TPG Owner asserted that GMFB

had “[f]ail[ed] to make proper payment to a [s]ubcontractor or for materials or

labor,” “[d]isregard[ed] . . . applicable laws, ordinances, rules, and regulations or

violat[ed] . . . order[s] of any public authority claiming jurisdiction over the Work,”

“[f]ail[ed] to comply with the scheduling requirements set forth in the Construction

Schedule,” “[f]ail[ed] to promptly replace rejected materials or correct rejected

workmanship, “[r]efus[ed] or fail[ed] to prosecute the Work or any separate part

thereof with such diligence as will insure Substantial Complete on or before the

Scheduled Completion Date,” and “[failed to construct the Project] in compliance

with all applicable federal, state, and local laws, ordinances[,] and regulations.” But

GMFB was not “in default” and termination was improper because TPG Owner

failed to give GMFB the contractually-required notice of default, failed to provide

11
an opportunity to cure any alleged default, and failed to describe any of GMFB’s

alleged defaults with any degree of specificity.

Finally, the Greystone parties alleged that under the LLC Agreement, GPO

was entitled to access of TPG 2011-4’s books and records, and GPO was denied

access to the books and records for more than a year.

GMFB brought, among others, claims against TPG Owner for breach of the

Construction Contract and a declaratory judgment, requesting damages, attorney’s

fees, and declarations that it was not in default under the Construction Contract, TPG

Owner did not have “cause” to terminate the Construction Contract, and TPG Owner

failed to provide contractually-required notice and an opportunity to cure. Related

to its claim for breach of the Construction Contract, GMFB asserted that the

Construction Contract was a valid and enforceable agreement, GMFB was a proper

party to sue for breach of the Construction Contract, GMFB performed its

contractual obligations under the terms of the Construction Contract, TPG Owner

breached multiple provisions of the Construction Contract, which GMFB identified,

and TPG Owner’s breaches proximately caused GMFB to suffer damages.

GPO brought, among others, a claim against TPG 2011-4 for breach of the

LLC Agreement based on TPG 2011-4’s alleged failure to keep proper books and

records and requested damages and attorney’s fees. GPO asserted that the LLC

Agreement was a valid and enforceable contract, GPO was the proper party to sue

12
for breach of the LLC Agreement, GPO performed its contractual obligations under

the terms of the LLC Agreement, TPG 2011-4 breached multiple provisions of the

LLC Agreement, which GPO identified, and TPG 2011-4’s breaches proximately

caused GPO to suffer damages.

The TPG Parties answered, generally denying the allegations in the Greystone

parties’ petition and asserting certain defenses.

TPG Owner then brought, among others, a counterclaim against GMFB for

breach of the Construction Contract, requesting damages and attorney’s fees. TPG

Owner asserted that the Construction Contract was a valid and enforceable contract,

TPG Owner performed its contractual obligations under the Construction Contract,

and GMFB breached the Construction Contract by “failing to execute the Work,”

“breaching covenants to ‘exercise [GMFB]’s best skill, efforts[,] and judgments in

furthering the interests of [TPG] Owner,’” “failing to ‘achieve Substantial

Completion of the entire Work within six hundred ninety-nine . . . days of the

Commencement Date,” “failing to pay ‘liquidated damages, an amount equal [to

$2,089.00] per day, for each day of delay . . . until Substantial Completion of

Work . . . was achieved,’” “allowing the Project’s Cost of Work to exceed the

Control Estimate without TPG’s Owner’s prior written consent,” “breaching its duty

to ‘assign[] or divid[e] the Work among [s]ubcontractors as necessary,’” “failing ‘to

make proper payment to a [s]ubcontractor or for materials or labor,’” “disregarding

13
‘applicable governmental laws, ordinances, rules, and regulations’ and violating

‘[orders] of a[] public authority claiming jurisdiction over the Work,’” “failing ‘to

comply with the scheduling requirements set forth in the Construction Schedule,’”

“failing ‘to promptly replace rejected materials or correct rejected workmanship,’”

“refusing and/or failing ‘to prosecute the Work or any separate part thereof with such

diligence as w[ould] insure Substantial Completion on or before the Scheduled

Completion Date,’” “failing to construct the Project ‘in compliance with all

applicable federal, state[,] and local laws, ordinances[,] and regulations,’”

“breaching its duty to inspect ‘portions of Work already performed to determine that

such portions are in proper condition to receive subsequent work,’” “breaching its

warranties that ‘materials and equipment furnished under the [Construction]

Contract will be of good quality . . . and that the Work will conform to the

requirements of the Contract Documents and will be free from defects,’” “failing to

‘secure and pay . . . other permits or utility company fees, licenses, and inspections,

testing and approval of governmental agencies necessary for proper execution and

completion of the Work,’” “failing to ‘comply with and give notices required by

applicable laws, statutes, ordinances, codes, rules[,] and regulations, and lawful

orders of public authorities applicable to performance of the Work,’” “breaching its

duty ‘to employ a competent superintendent and necessary assistants who [were] in

attendance at the Project site during performance of the Work,’” “failing to ‘pay each

14
[s]ubcontractor upon receipt of payment from [TPG] Owner,’” “breaching its duty

to ‘promptly correct Work rejected by the Architect or [TPG] Owner which fail[ed]

to conform to the requirements of the Contract Documents,’” “breaching its duty to

‘remove from the site portions of the Work that [were] not in accordance with the

Contract Documents and [were] neither corrected by [GMFB] nor accepted by

[TPG] Owner,’” “failing to ‘bear the cost of correcting destroyed or damaged

construction,’” and “breaching its duty to ‘enclose and protect the Work, and all

material and equipment stored at the Project.’” According to TPG Owner, GMFB’s

breaches caused delays, cost overruns, and damages. TPG Owner requested the

contractually-specified-default remedies for termination for cause based on GMFB’s

alleged breaches.7

Additionally, TPG 2011-4 filed in a petition in intervention. In its second

amended petition in intervention, TPG 2011-4 brought a claim against GPO for

breach of the LLC Agreement and a claim against Eeds for breach of the Guaranty,

requesting damages and attorney’s fees. Related to the claim for breach of the LLC

Agreement, TPG 2011-4 alleged that the LLC Agreement was a valid and

enforceable contract, TPG 2011-4 was the proper party to sue for breach of the LLC

Agreement, TPG 2011-4 performed its contractual obligations under the LLC

7
GMFB answered, generally denying the allegations in TPG Owner’s counterclaim
and asserting certain defenses.

15
Agreement, and GPO breached the LLC Agreement by “failing to pay the Project’s

Construction Cost Overruns, failing to make Additional Capital Contributions

required under the [LLC] Agreement, and failing to guaranty completion of

construction.” GPO’s breaches proximately caused TPG 2011-4 to suffer damages.

As to its claim for breach of the Guaranty, TPG 2011-4 alleged that the Guaranty

was a valid and enforceable contract, TPG 2011-4 was the proper party to sue for

breach of the Guaranty, TPG 2011-4 performed its contractual obligations under the

Guaranty, and Eeds breached the Guaranty by “failing to pay for Construction Cost

Overruns[,] failing to make capital contributions required[,] . . . failing to pay for the

reduction required[,] . . . and failing to guaranty completion of construction.” Eeds’s

breaches proximately caused TPG 2011-4 to suffer damages.8

At trial, TPG Owner presented its claim that GMFB hired unqualified

subcontractors, missed contract deadlines, did not perform certain work according

to the specifications or applicable laws, failed to correct defective materials and

workmanship, and submitted requests for payment that were riddled with errors.

David McMahan, President of GMFB when GMFB was terminated under the

Construction Contract, testified that, in some areas of the Project, GMFB sought as

many as fourteen or fifteen bids from subcontractors, even though it was typical in

8
In response to the petition for intervention, GPO and Eeds answered, generally
denying the allegations in the petition and asserting certain defenses.

16
his experience to obtain only three to five bids “at most.” He explained that GMFB

“bid to a lot deeper group of subcontractors” in order to “drive the number down and

stay within budget.” A memorandum from Ken Picerne to two of TPG Owner’s

representatives for the Project, Eric Donnelly, Executive Vice President of

Construction for The Picerne Group, Inc., and Sam McInnis, a construction manager

for The Picerne Group, Inc., described the subcontractors hired by GMFB as “mostly

low bidders and in some instances not qualified to perform the work at all.”9

McMahan also testified to numerous missed deadlines under the Construction

Contract. TPG Owner attributed some of the delay to, among other things, GMFB’s

failure to correct structural and waterproofing problems. Donnelly testified that

noncompliant structural work was discovered by the structural engineer whose

approval was needed to obtain a City of Houston occupancy certificate during

inspection, but neither GMFB nor its framing subcontractor corrected it. Donnelly

also testified that on the building’s exterior, there were water leaks at balconies,

windows, and the roof, which GMFB was repeatedly asked to correct. Regarding

payment to GMFB, Donnelly testified that GMFB’s requests for payment included

numerous errors, often because GMFB allowed subcontractors to invoice for

incomplete or defective work and undelivered materials.

9
The trial court admitted the memorandum into the evidence at trial.
17
 In April 2015, when the Project was estimated to be about seventy-five

percent complete, TPG Owner purported to terminate the Construction Contract “for

cause.” In its “Notice of Termination of General Contractor,”10 TPG Owner alleged

that GMFB was “in material default under the terms and conditions of the

Construction Contract, including without limitation, for the reasons described in

[s]ections 2.4(c), 2.4(d), 2.4(e), 2.4(f), 2.4(g) and 2.4(h) of the A201.” The

Construction Contract subsections listed in the termination notice defined a default

by GMFB to include (1) the failure to make proper payment to a Subcontractor or

for materials or labor (section 2.4(c)); (2) the disregard of applicable governmental

laws, ordinances, rules and regulations (section 2.4(d)); (3) the failure to comply

with the contract scheduling requirements (section 2.4(e)); (4) the failure to

promptly replace rejected materials or correct rejected workmanship (section 2.4(f));

(5) the failure to prosecute the work, or any separate part thereof, with such diligence

as would insure substantial completion on or before the scheduled completion date

(section 2.4(g)); and (6) the failure to construct the Project in compliance with all

applicable federal, state, and local laws, ordinances and regulations (section 2.4(h)).

Donnelly and McInnis testified that TPG Owner discovered structural,

waterproofing, plumbing, electrical, and other defects after terminating GMFB.

10
TPG Owner’s notice of termination was admitted into the evidence at trial.
18
This, according to the testimony of Jon Demorest from The Picerne Group, Inc.,

required an investment of millions more dollars to complete the Project.

According to GMFB, most of the delay in construction was attributable to

TPG Owner or to other factors outside GMFB’s control. McMahan testified that

TPG Owner acted more like a contractor than an owner during construction.

Donnelly and other TPG representatives for the Project “would go directly to the

subcontractors, talk to them, [and] direct them to do things differently” than GMFB

had instructed. McMahan stated that this created confusion and delay because the

Project “need[ed] one voice and one boss to run it.” Consistent with McMahan’s

assessment of the reasons for delay, William Stewart, a project manager also with

GMFB, testified that TPG Owner’s aggressive management style hurt both morale

and productivity. TPG Owner often demanded that work be stopped until its

representatives, such as Carson Harris, a construction manager for the Project, were

available to personally inspect the work. According to Stewart, the constant

“stopping and waiting” made it “hard to get momentum.” And the resulting delay

caused subcontractors to go work elsewhere, which forced GMFB to get “back in

line” for the subcontractors’ time.

Mary Simcox, an accounting manager for the Greystone Parties, testified that

TPG Owner failed to pay draw requests on time and acted unreasonably in reviewing

those requests. This also caused subcontractors to walk off the Project and

19
sometimes forced GMFB to pay subcontractors out of its own pocket. As described

by Stewart, the Project “would get a little momentum going,” but then a

subcontractor “wouldn’t get paid” and “wouldn’t show up.” Stewart testified an

unpaid subcontractor’s absence was “understandable” because “[t]hey work on thin

margins and they have to go to another job where they’re going to get paid[.]” In

addition, GMFB’s Vice President, Keith Reilly, testified that TPG Owner failed to

sign change orders so that the work could be treated as a cost overrun for which the

GPO was responsible, rather than as part of the construction budget.

According to GMFB’s expert John Cotton, who was retained to

“independently identify, quantify, and apportion critical path delays that occurred

on the [P]roject,” all of this, along with changes made by TPG Owner to the sequence

of the construction intended by GMFB, negatively impacted the construction

schedule and budget, as well as the availability of skilled labor.

The trial court rendered judgment in favor of GMFB on the competing claims

for breach of the Construction Contract, awarding it (1) the unpaid Contract Sum of

$506,513.88, (2) all reasonable out-of-pocket expenses, including attorney’s fees

and costs, “incurred by GMFB in connection with its enforcement of obligations

under the Construction Contract, for a total of $3,620,306.62,” (3) court costs, and

(4) pre- and post-judgment interest against TPG Owner. The trial court ordered that

TPG Owner “shall take nothing under the Construction Contract.”

20
 The trial court also rendered judgment in favor of TPG 2011-4 on its claims

for breach of the LLC Agreement and Guaranty, awarding it $647,717.13 in

Construction Cost Overruns against GPO and Eeds, jointly and severally. And

against GPO, the trial court awarded TPG 2011-4 attorney’s fees of $2,565,526

under the LLC Agreement. The trial court did not award TPG 2011-4 any attorney’s

fees against Eeds under the Guaranty. The trial court ordered that “GPO shall take

nothing under the [LLC] Agreement.”

The trial court entered certain findings of fact and conclusions of law on

general facts about the parties’ course of dealings and specific facts about the

execution and performance of the Construction Contract, the LLC Agreement, and

the Guaranty. Generally, the trial court found:

1. On or about November 30th, 2011, [Eeds] and The Picerne
Group, Inc. . . . entered into an agreement . . . to work
cooperatively in the development of an approximately 277[-]unit
apartment project.

2. . . . Eeds and [The Picerne Group, Inc.] both formed separate
single purpose entities which then formed a single joint venture
entity.

3. Eeds formed [GPO] and [The Picerne Group, Inc.] formed [TPG
2011-4]. TPG 2011-4 and [GPO] jointly formed [TPG
Mezzanine] and entered into [the LLC Agreement].

4. The stated purpose of TPG Mezzanine was to be the sole member
of [TPG Owner]. Through TPG Owner, TPG Mezzanine would
acquire land for development of [the] 277[-]unit apartment
project.

21
5. TPG Owner entered into [the Construction Contract] with
[GMFB] to be the Contractor for the development.

6. From the beginning of the contractual relationship, both parties
failed to honor the formalities of the contracts.

7. From the beginning of the contractual relationship, there was
considerable delay—some attributable to the parties, and some
due to factors outside both parties[’] control.

Regarding the Construction Contract, the trial court found in pertinent part:

20. Pursuant to the Construction Contract, GMFB was hired as the
Contractor to develop the [P]roject for TPG Owner. TPG
Owner . . . agreed to pay GMFB the “Contract Sum[.]”

21. The Contract Sum is the “Cost of the Work” plus the
“Contractor’s Fee[.]”

22. Cost of the Work is defined in the Construction Contract as costs
necessarily incurred by [GMFB] in the proper performance of the
Work. Such costs should be at rates not higher than as set forth
in the Control Estimate except with the prior written consent of
[TPG] Owner. The Cost of the Work should include only the
items set forth [in] Article 7 of the Construction Contract, but
should not exceed the Control Estimate without [TPG] Owner’s
prior written approval.

23. The Control Estimate is attached as Exhibit D to the Construction
Contract. The Control Estimate should include the estimated
Cost of the Work plus the Contractor’s Fee.

24. The budget set forth in the Control Estimate for the Cost of the
Work is $32,367,617. This includes $1,460,173 in Hard Cost
Contingency.

25. The [Construction] [C]ontract provides for a Contractor’s Fee at
3% of the Cost of the Work. The Contractor’s Fee was not to
exceed $902,387, subject to any increases in the Cost of [t]he

22
 Work to the extent resulting from Change Orders or Construction
Change Directives.

26. GMFB, as Contractor, was to be solely responsible for, and have
control over, construction means, methods, techniques,
sequences, and procedures for coordinating all portions of the
Work under the [Construction] Contract.

27. TPG Owner’s representatives . . . Donnelly and . . . Harris
interfered with the means and methods of construction by
ordering multiple inspections, communicating directly to the
subcontractors, directing which subcontractors should be hired,
and exercising control over those subcontractors and the methods
in which they worked.

28. Changes in the Work were to be accomplished through valid
Change Orders or Construction Change Directives, only by prior
written consent of [TPG] Owner.

29. Change Orders are written instruments signed by [TPG] Owner
and [GMFB] stating their agreement upon 1) the change in the
Work, 2) the amount of the adjustment, if any, to the contract
sum, and 3) the extent of the adjustment, if any, in the contract
time.

30. TPG Owner directed GMFB and/or its subcontractors to perform
work that was beyond the scope of the Construction Contract.
These directives came orally and through emails.

31. TPG Owner allowed GMFB to commence Work to be done
under a Change Order prior to having a valid signed Change
Order. This arrangement was mutually beneficial to the parties
to avoid unnecessary delay.

32. GMFB completed Work to be done under the Change Orders and
requested that TPG Owner sign them. TPG Owner’s
representatives confirmed through emails that the Change Orders
were authorized, but did not sign them.

23
 33. Section 2.4 of the Construction Contract sets out conditions of
default.

34. [TPG] Owner could terminate [GMFB] for cause if [GMFB] was
in default of the Construction Contract after applicable notice
and cure periods[.] [TPG] Owner could, upon written notice to
[GMFB], terminate [GMFB]’s rights under the Construction
Contract.

35. TPG Owner did not serve GMFB with a written notice of default.

36. [TPG] Owner could, at any time, terminate the [Construction]
Contract for [TPG] Owner’s convenience and without cause.

37. In the case of such termination for [TPG] Owner’s convenience,
the [GMFB], as its sole remedy, would be entitled to receive
payment for Work executed, and costs incurred by reason of such
termination, but in no event in excess of the Contract Sum.

38. TPG Owner did serve GMFB with a written notice of
termination.

The trial court concluded that the Construction Contract was a valid and enforceable

agreement between TPG Owner and GMFB, governed by Texas law. The trial court

further concluded:

3. TPG Owner’s conduct waived the signing requirement for
[C]hange [O]rders.

4. TPG Owner’s conduct waived the non-waiver provision.

5. TPG Owner’s failure to sign the Change Orders d[id] not render
them invalid. The change in the work was authorized and GMFB
completed the work under the Change Orders. The [c]ourt finds
that the Change Orders were valid, and adjusts the Contract Sum
to reflect that finding.

24
6. The Control Estimate in the Construction Contract is the Hard
Costs in the Construction Budget found in the [LLC] Agreement.

7. The Control Estimate amount must be adjusted by the amount of
Change Orders that were effectively approved.

8. TPG Owner improperly terminated [GMFB] for cause. To
terminate for cause, TPG Owner first needed to deliver written
notice that GMFB was in default.

9. The third[-]party inspection reports provided by “SCA” do not
constitute written notice of default under the Construction
Contract.

10. TPG Owner’s representatives interfered with the means and
methods of construction, which under the Construction Contract
was the sole responsibility of GMFB as Contractor.

11. TPG Owner properly terminated [GMFB] for convenience. For
TPG Owner to terminate GMFB for convenience under the
Construction Contract, TPG Owner must simply provide written
notice of termination. TPG Owner delivered a notice for
termination, and the [c]ourt finds it was a termination by [TPG]
[O]wner for convenience.

12. TPG Owner’s termination of GMFB excused GMFB from
further performance under the [Construction] [C]ontract.

13. The Court finds TPG Owner is liable to [GMFB] for the unpaid
Contract Sum of $506,513.88.

14. Payments due an [sic] unpaid under the Construction Contract
shall bear interest from the date payment is due at the rate of
5.25%. The court finds that payment was due, and interest began
accruing on unpaid sums owed under the Construction Contract
on April 30th, 2015—the date GMFB filed its lawsuit against
TPG Owner.

15. [GMFB] is the prevailing party for purposes of [s]ection 15.6.2
of the Construction Contract.
25
 As to the LLC Agreement and the Guaranty, the trial court found, in pertinent

part:

10. Attached to [LLC] Agreement is the “Construction Budget,”
which is defined as [ ]the budget for the Land acquisition and the
Construction Work, which has been prepared by [GPO] (based
on virtually finals [sic] bids and final construction drawings) and
Approved by [TPG 2011-4] . . . .

11. “Construction Work” is defined to include the construction and
site work required to be performed by [GMFB] in connection
with the Construction of the Proposed Development, as set forth
in the Construction Contract.

12. Exhibit C to the [LLC] Agreement is a budget that contains three
categories of costs: (1) Land acquisition; (2) Soft Costs; and
(3) Hard Costs.

13. The Total Hard Costs amount is $32,367,617.

14. “Construction Cost Overruns” are the amount by which the
actual cost of the [L]and acquisition and the “Construction
Work” exceed the “Construction Budget[.]”

15. [TPG 2011-4] and [GPO] agreed that all Construction Cost
Overruns, after the application of available contingencies and the
reduction of the Contractor’s Fee as provided in [s]ection 9.16.2,
will be paid by [GPO].

16. [TPG 2011-4] and [GPO] agreed that the first $500,000 of the
Construction Cost Overruns paid by [GPO] would not constitute
Capital Contributions to [TPG Mezzanine]. The second
$500,000 of Construction Cost Overruns paid by [GPO] will be
treated as Capital Contributions to [TPG Mezzanine].
Construction Cost Overruns in excess of $1,000,000 paid by the
[GPO] would not constitute Capital Contributions to [TPG
Mezzanine].

26
 17. . . . Eeds agreed to a personal guaranty of [GPO’s] obligations
under the [LLC] Agreement.
The trial court made the following pertinent conclusions of law related to compliance

with the LLC Agreement and the Guaranty:

2. The [LLC] Agreement is governed by Delaware Law.

3. The [LLC] Agreement defines Construction Cost Overruns to be
the amount which the Hard Costs (including a contingency)
exceed $32,367,617 and the Land [a]cquisition costs exceed
$13,120,532.

4. At the time of termination, the unexpended Hard Cost
Contingency was $1,026,161.01.

5. [The LLC] Agreement does not contemplate a termination of the
Construction Contract for convenience. Therefore, the Court
finds it inequitable to allow either party the benefit of any unused
portions of the Hard Cost Contingency.

6. The budgeted Hard Cost less the unexpected contingency
amount equals $31,344,455.99. When GMFB was terminated as
contractor, the total Hard Costs expended was $31,989,173.12.
This total includes the $28,732,931.99 in budgeted Hard Costs,
$3,023,954.73 in Proposed Orders and Change Orders and
$232,286.50 in Contractor Fees.

7. The Court finds that the amount of the Construction Cost
Overruns that [GPO] is liable to [TPG 2011-4] under the [LLC]
Agreement totals $647,717.13.

8. [GPO]’s claim of breach of the [LLC] Agreement for failure to
keep proper books and records fails because [GPO] hasn’t
proved that such a breach caused it damages.

9. . . . Eeds personally guaranteed [GPO’s] obligation to pay
[C]onstruction [C]ost [O]verruns, and addition[al] capital

27
 contributions. . . . Eeds is liable for $647,717.13 in the event
[GPO] is unable to satisfy that obligation.

10. GPO is the non-prevailing party for purposes of [s]ection 19.12
of the [LLC] Agreement.

Standard of Review

In an appeal from a bench trial, the trial court’s findings of fact have the same

weight as a jury verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994); Nguyen v. Yovan, 317 S.W.3d 261, 269–70 (Tex. App.—Houston [1st Dist.]

2009, pet. denied). When the appellate record contains a reporter’s record, findings

of fact on disputed issues are not conclusive and may be challenged for the

sufficiency of the evidence. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52

(Tex. 2003). We review the trial court’s findings of fact under the

same sufficiency-of-the-evidence standard used to determine whether sufficient

evidence exists to support a jury finding. See Catalina, 881 S.W.2d at 297; Nguyen,

317 S.W.3d at 269–70.

When considering whether legally-sufficient evidence supports a challenged

finding, we must consider the evidence that favors the finding if a reasonable fact

finder could, and disregard contrary evidence unless a reasonable fact finder could

not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We view the

evidence in the light most favorable to the trial court’s finding and indulge every

reasonable inference to support it. Id. at 822. Because it acts as the fact finder in

28
a bench trial, the trial court is the sole judge of the credibility of witnesses and the

weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116

S.W.3d 757, 761 (Tex. 2003); see also Wise v. Conklin, No. 01-13-00840-CV, 2015

WL 1778612, at *3 (Tex. App.—Houston [1st Dist.] Apr. 16, 2015, no pet.) (mem.

op.) (“In a bench trial, the trial court is the sole judge of the witnesses’ credibility,

and it may choose to believe one witness over another; a reviewing court may not

impose its own opinion to the contrary.”). If the evidence at trial “would enable

reasonable and fair-minded people to differ in their conclusions,” we will not

substitute our judgment for that of the fact finder. City of Keller, 168 S.W.3d at 822.

When a party attacks the legal sufficiency of an adverse finding on an issue

on which it had the burden of proof, the party must show on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co.

v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a “matter of law”

challenge, the reviewing court must first examine the record for evidence that

supports the finding, while ignoring all evidence to the contrary. Id. If no evidence

supports the finding, the reviewing court will then examine the entire record to

determine whether the contrary proposition is established as a matter of law. Id.

The issue should be sustained only if the contrary proposition is conclusively

established. Id.

29
 In a factual-sufficiency review, we consider and weigh all the evidence.

See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Arias v. Brookstone, L.P., 265

S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). When a party

challenges an adverse finding on an issue on which it did not have the burden of

proof at trial, we set aside the finding only if the evidence supporting it is so weak

as to make it clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at

176; Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d

764, 782 (Tex. App.—Houston [1st Dist.] 2011, no pet.). When a party challenges

an adverse finding on an issue on which it had the burden of proof at trial, the party

must show on appeal that the adverse finding is against the great weight and

preponderance of the evidence. Dow Chem., 46 S.W.3d at 242; Reliant Energy

Servs., 336 S.W.3d at 782.

A party may not challenge the trial court’s conclusions of law for

factual sufficiency, but we may review the legal conclusions drawn from the facts to

determine their correctness. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d

789, 794 (Tex. 2002). In an appeal from a bench trial, we review the conclusions of

law as legal questions, de novo and will uphold them if the judgment can be

sustained on any legal theory supported by the evidence. Id. “If the reviewing court

determines a conclusion of law is erroneous, but the trial court rendered the proper

judgment, the erroneous conclusion of law does not require reversal.” Id.

30
 Construction Contract

In its first, second, third, fourth, and fifth issues, TPG Owner argues that the

trial court erred in rendering judgment in favor of GMFB on the competing claims

for breach of the Construction Contract because the trial court misinterpreted the

Construction Contract, the evidence raised a fact issue as to whether GMFB

breached the Construction Contract, the evidence was legally and factually

insufficient to support the trial court’s award of damages to GMFB under the

Construction Contract, and because TPG Owner should have been the prevailing

party on the breach of the Construction Contract claims, GMFB should not have

been awarded attorney’s fees under the Construction Contract.

In its second issue on cross-appeal, GMFB argues that the trial court erred in

awarding less than all of GMFB’s reasonable out-of-pocket expenses under the

Construction Contract because GMFB “proved up fees and expenses of over

$6 million, including a segregated amount of $3,620,306.62 in attorney[’s] fees

attributable to its claims under the Construction Contract.”

A. TPG Owner’s claim under the Construction Contract
1. Subsection 2.4(i)’s notice-to-allow-cure requirement does not apply
to GMFB’s defaults alleged by TPG Owner

In a portion of its first issue, TPG Owner argues that the trial court erred in

rendering judgment in favor of GMFB on TPG Owner’s claim for breach of the

Construction Contract because the trial court misconstrued the contractor-default

31
provision in section 2.4 of the Construction Contract.11 Specifically, TPG Owner

asserts that the trial court misinterpreted subsection 2.4(i) to require TPG Owner to

give GMFB written notice and an opportunity to cure all alleged defaults before

terminating GMFB for cause and this misinterpretation led the trial court to

erroneously treat TPG Owner’s termination of GMFB as a termination for

convenience and render judgment against TPG Owner on its request for the

contractually-specified-default remedies under the Construction Contract.

Our primary concern in construing a written contract is to determine the

parties’ true intent as expressed in the contract. Epps v. Fowler, 351 S.W.3d 862,

865 (Tex. 2011); Tellepsen Builders, L.P. v. Kendall/Heaton Assocs., Inc., 325

S.W.3d 692, 695 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). If the contract

is so worded that it can be given a definite or certain legal meaning, then it may be

construed as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983);

Tellepsen Builders, 625 S.W.3d at 696.

The Construction Contract permitted two types of termination by TPG

Owner—termination for convenience and termination for cause based on a

11
In the remainder of its first issue, TPG Owner asserts that even if the trial court’s
interpretation of section 2.4 was correct, it conclusively proved compliance with the
as-interpreted requirements for a termination based on alleged GMFB defaults and,
consequently, the trial court erred in failing to make findings of fact regarding the
alleged GMFB defaults and any resulting damages. We need not address this
portion of TPG Owner’s first issue. See TEX. R. APP. P. 47.1.

32
contractor default. Terminations for cause are by the terms of section 2.5, which

authorized TPG Owner to terminate the Construction Contract upon written notice

if GMFB was in default “after applicable notice and cure periods” and recover

specified damages consisting of “actual damages, together with any increased cost

to [TPG] Owner to achieve final completion and the cost of any delay resulting from

[GMFB’s] breach.”

A contractor default is contractually defined in section 2.4 of the Construction

Contract as follows:

§ 2.4 CONTRACTOR’S DEFAULT
[GMFB] shall be in default of this Contract if:
(a) [GMFB] becomes insolvent, is adjudged a
bankrupt, makes a general assignment for the benefit of its creditors, or
becomes a subject of any proceedings commenced under any statute or
law for the relief of debtors which is not dismissed within thirty (30)
days after commencement;
(b) A receiver, trustee or liquidator of any of the
property or income of [GMFB] shall be appointed;
(c) [GMFB] fails to make proper payment to a
Subcontractor or for materials or labor unless [GMFB]’s nonpayment
is due to [TPG] Owner’s direct payment to Subcontractor or [TPG]
Owner’s default in its obligations under this Contract to pay [GMFB]
for such portion of the Work or by reason of any good faith dispute with
such Subcontractor or material supplier;
(d) [GMFB] disregards applicable governmental laws,
ordinances, rules and regulations or violates any order of any public
authority claiming jurisdiction over the Work;
(e) [GMFB] fails to comply with the scheduling
requirements set forth in the Construction Schedule attached as Exhibit
“C” to the Agreement;
(f) [GMFB] fails to promptly replace rejected materials
or correct rejected workmanship as herein provided;

33
 (g) [GMFB] refuses or fails to prosecute the Work or
any separate part thereof with such diligence as will insure Substantial
Completion on or before the Scheduled Completion Date;
(h) The Project is not constructed in compliance with
all applicable federal, state and local laws, ordinances and regulations
(provided, however, that to the extent the Project has been constructed
in accordance with the Contract Documents, but the Contract
Documents are not in compliance and [GMFB] should not have known
of such lack of compliance, [GMFB] shall not be in default
hereunder); or
(i) [GMFB] fails to observe any other term, provision,
condition, covenant or agreement contained in this Contract, or
reasonably required by Lender, or to be observed and performed by
[GMFB], and [GMFB] fails to promptly cure such default within three
(3) days following notice thereof to [GMFB] by [TPG] Owner. If such
default is not capable of being cured within such 3-day period, [GMFB]
shall not be in default provided it has commenced to cure such default
within such 3-day period and thereafter diligently and continuously
prosecuted such cure to completion within thirty (30) days following
the expiration of such 3-day period.

(Emphasis added.)

As is often true in cases involving disputes over complex agreements, TPG

Owner and GMFB each assert that their own view of the notice-to-allow-cure

provision in subsection 2.4(i) is supported by the unambiguous terms of the

Construction Contract. According to TPG Owner, subsections 2.4(a) through 2.4(h)

list specifically defined defaults, while subsection 2.4(i) refers generally to defaults

due to GMFB’s failure “to observe any other term, provision, condition, covenant

or agreement contained in [the Construction] Contract.” (Emphasis added.) Under

TPG Owner’s interpretation, subsection 2.4(i)’s requirement to provide notice and

allow a cure period is not a standalone requirement applicable to all defaults in

34
subsections 2.4(a) through 2.4(i). Rather, subsection 2.4(i)’s notice-to-allow-cure

requirement applies only to defaults identified in subsection 2.4(i), not to the defaults

specified in subsections 2.4(a) through 2.4(h). Because it alleged defaults under

subsections 2.4(c) through subsection 2.4(h), and not under subsection 2.4(i), TPG

Owner argues the requirement that it provide notice and allow a cure period does not

apply in this case.

TPG Owner relies on several interpretative canons, including (1) the

scope-of-subparts canon, which instructs that “[m]aterial within an indented subpart

relates only to that subpart,”12 (2) the last-antecedent rule, which instructs that

“qualifying words, phrases and clauses are to be applied to the words or phrases

immediately preceding [them], and are not to be construed as extending to or

including others more remote,”13 (3) the instruction to construe contracts according

to their plain language,14 and (4) the instruction against reading a contract in a way

that renders certain words meaningless.15

In response, GMFB asserts that the trial court properly construed the

notice-to-allow-cure requirement to apply to all contractor defaults listed in

12
See Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 634 (Tex. 2018).
13
See Certain Underwriters at Lloyd’s of London v. Cardtronics, Inc., 438 S.W.3d
770, 782 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
14
See N. Shore Energy, L.L.C. v. Harkins, 501 S.W.3d 598, 602 (Tex. 2016).
15
See Pinto Tech. Ventures, L.P. v. Sheldon, 526 S.W.3d 428, 443 (Tex. 2017).

35
section 2.4 of the Construction Contract. Characterizing subsection 2.4(i) as a

“catch-all clause,” GMFB asserts that the scope-of-subparts canon does not apply

and the Court should instead look to the series-qualifier canon. See Sullivan v.

Abraham, 488 S.W.3d 294, 297 (Tex. 2016) (“When there is a straightforward,

parallel construction that involves all nouns or verbs in a series, a prepositive or

postpositive modifier normally applies to the entire series.”). More specifically,

GMFB asserts that the list of specific types of default in subsections 2.4(a) through

2.4(h) followed by a catch-all clause in subsection 2.4(i)—which, according to

GMFB, is broad enough to cover those defaults listed in subsections 2.4(a) through

2.4(h) plus other unlisted items—means that notice of a default and a cure period

must precede termination for cause based on any default. That is, the catch-all clause

incorporated the preceding clauses, as each preceding clause is a term or provision

“contained in th[e] [Construction] Contract,” and each also duplicated terms and

provisions in other parts of the Construction Contract.

GMFB urges that any other interpretation would render subsection 2.4(i)

meaningless by allowing TPG Owner to opt into or out of the notice-to-allow-cure

requirement through artful wording in a termination letter. GMFB asserts: “The

notice-and-cure provision was placed in [sub]section 2.4(i) so it would apply to ‘any

other term’ of the [Construction] Contract, just as inclusive, catch-all clauses are

intended to do.” In other words, “[r]equiring notice and cure for ‘any’ breach of the

36
[Construction] Contract requires it for every breach, since ‘any’ necessarily includes

every.”

We conclude that TPG Owner’s interpretation of the Construction Contract is

the proper one and that the notice-to-allow-cure requirement does not apply to the

defaults set out in subsection 2.4(a) through 2.4(h), but only to the subsection 2.4(i)

defaults. The grammatical structure of section 2.4 confirms this interpretation. It

contains nine subparts, each indented and preceded with a letter (a) through (i) and

each followed by a line break, signaled in subparts (a) through (h) with a semicolon

and in terminal subpart (i) with a period. Although each subpart identifies a situation

when GMFB is “in default,” a notice-to-allow-cure requirement appears only in

subpart (i).16

In this regard, the notice-to-allow-cure requirement is structurally constrained

to subsection 2.4(i), strongly suggesting that subpart (i) and each of the subparts

before it may be understood separately. See Jama v. Immigration & Customs

Enforcement, 543 U.S. 335, 344 (2005) (“Each clause is distinct and ends with a

period, strongly suggesting that each may be understood completely without reading

any further.”); ANTONIN SCALIA & BRYAN GARNER, READING LAW: THE

16
We note that subpart (a) also includes a form of cure period through its instruction
that GMFB shall be in default if it “becomes a subject of any proceedings
commenced under any statute or law for the relief of debtors which is not dismissed
within thirty (30) days after commencement.” (Emphasis added.)

37
INTERPRETATION OF LEGAL TEXTS 162 (2012) (“Periods and semicolons insulate

words from grammatical implications that would otherwise be created by the words

that precede or follow them.”). Otherwise, to read the notice-to-allow-cure

requirement in subpart (i) to apply to the defaults specified in subparts (a) through

(h), requires jumping over the line breaks. See Sullivan, 488 S.W.3d at 297

(“Punctuation is a permissible indicator of meaning.”).

This interpretation of the Construction Contract is confirmed even more by

the language used in subsection 2.4(i) itself. Subpart (i) does not expressly

incorporate the preceding subparts (a) through (h), as done in other provisions

imposing notice requirements we discuss below. Subpart (i) requires three-days’

notice of default and up to thirty-days’ opportunity to cure “such default.” The

backward reach of “such default” extends only to the first clause in subpart (i),

referencing GMFB’s failure to “observe any other term, provision, condition,

covenant or agreement contained in this [Construction] Contract, or reasonably

required by Lender, or to be observed and performed by [GMFB].” See Certain

Underwriters at Lloyd’s of London v. Cardtronics, Inc., 438 S.W.3d 770, 782 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (relative and qualifying words, phrases and

clauses are to be applied to the words or phrases immediately preceding and are not

to be construed as extending to or including others more remote).

38
 A question then is the meaning of “any other term, provision, condition,

covenant or agreement contained in this [Construction] Contract.” GMFB asserts

that because the specific defaults identified in subparts (a) through (h) are a term or

provision “contained in [the Construction] Contract” and also are duplicative of

terms and provisions in other parts of the Construction Contract, subpart (i) can only

reasonably be read as incorporating the preceding subparts. This, according to

GMFB, is because each specific default was also a failure “to observe any other

term, provision, condition, covenant or agreement contained in th[e] [Construction]

Contract” and so notice and a cure period were required.

In support of its assertion, GMFB emphasizes the word “any,” arguing that

“notice and cure for ‘any’ breach of the [Construction] Contract requires it for every

breach, since ‘any’ necessarily includes every.” But this interpretation ignores the

next word: “other.” The default that is the subject of the notice-to-allow-cure

requirement is not simply a failure to observe “any . . . term, provision, condition,

covenant or agreement” but to observe “any other term, provision, condition,

covenant or agreement.” (Emphasis added.) All the words must be considered. See,

e.g., Cross Timbers Oil Co. v. Exxon Corp., 22 S.W.3d 24, 26 (Tex. App.—Amarillo

2000, no pet.). Given its inclusion in subpart (i), after the list of specific defaults in

the preceding subparts, “other” must be read as excluding (a) through (h).

Otherwise, “other” is meaningless. See, e.g., J.M. Davidson, Inc. v. Webster, 128

39
S.W.3d 223, 229 (Tex. 2003) (courts should avoid construction that renders

provisions meaningless). The list of the specific defaults in subparts (a) through (h)

would also be meaningless under such an interpretation because, if they are

incorporated in subpart (i), it would be unnecessary to separately state them. See id.

That the failures identified in subparts (a) through (h) may also be addressed

elsewhere in the Construction Contract does not change our view.17 While there

may be some overlap in the provisions of the Construction Contract, that does not

prevent the conduct specifically identified in subsections 2.4(a) through 2.4(h) from

separately qualifying as a default.

Still other provisions of the Construction Contract support an interpretation of

section 2.4 that constrains the notice-to-allow-cure requirement to subpart (i). For

instance, the next section of the Construction Contract—section 2.5.1—provides:

If [GMFB] is in default of this [Construction] Contract after applicable
notice and cure periods, [TPG] Owner may, upon written notice to
[GMFB], terminate [GMFB’s] rights under this [Construction]
Contract to proceed or continue the Work or any part thereof.

17
GMFB offers five examples of purportedly duplicative provisions, pointing out that
(1) a failure to pay subcontractors would violate not only subsection 2.4(c), but also
sections 9.1, 12.1.10(c), and 5.5 of the Construction Contract, (2) a failure to comply
with federal, state, and local ordinances and regulations would violate not only
subsection 2.4(d) and 2.4(h) but also section 3.2.4, (3) a failure to comply with the
construction schedule would violate not only subsection 2.4(e) but also section
15.1.5.2, (4) a failure to promptly correct defective materials or work would violate
not only subsection 2.4(f) but also section 12.2.1, and (5) a failure to exercise
diligence to meet the Completion Date would violate not only subsection 2.4(g) but
also section 4.3.

40
(Emphasis added.) The qualification of “notice and cure periods” with “applicable”

signifies there may be no notice-and-cure period at all. See Applicable,

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2014) (“applicable”

means “capable of or suitable for being applied”); Applicable, BLACK’S LAW

DICTIONARY (11th ed. 2019) (“applicable” means “[c]apable of being applied; fit

and right to be applied”); see also In re Davenport, 522 S.W.3d 452, 457 (Tex. 2017)

(“Courts may look to dictionaries to discern the meaning of a commonly used term

that the contract does not define.”). That is, it provides that TPG Owner may

terminate the Construction Contract after notice and cure periods, if any notice and

cure periods apply.

GMFB disagrees that “applicable” can mean “if any.” According to GMFB,

if there is no such notice and cure period, the Construction Contract never says when

TPG Owner can terminate the contract. In other words, “without a notice and cure

period, the [Construction] Contract neither says nor implies whether [TPG Owner]

must terminate promptly or [if it] can wait for years to terminate for a default [that

GMFB] may not even [have] know[n] about.” But applying the notice-to-allow-cure

requirement in the manner that GMFB urges—as applying not just to the defaults

identified in subsection 2.4(i) but to the whole of section 2.4—does not solve the

problem that GMFB identifies. The notice-to-allow-cure requirement says nothing

about when TPG Owner must terminate after an alleged default. We do not find this

41
a reason to reach a different conclusion about the applicability of the

notice-to-allow-cure requirement.

A comparison of section 2.4 and the provision authorizing GMFB’s

termination of the Construction Contract also supports an interpretation of section

2.4 constraining the notice-to-allow-cure requirement to subpart (i). Sections 14.1.1

and 14.1.2 of the Construction Contract, respectively, authorized GMFB to terminate

the Construction Contract if (1) the Work was stopped for a period of thirty

consecutive days for certain specified reasons out of its control or (2) repeated

suspensions, delays or interruptions of the Work by TPG Owner “aggregate more

than 100 percent of the total number of days scheduled for completion, or 120 days

in any 365-day period, whichever is less.” Section 14.1.3 imposes a seven-day

notice requirement for termination “[i]f one of the reasons described in [s]ection

14.1.1 or 14.1.2 exists.” Language like that used in section 14.1.3, which expressly

makes the notice requirement applicable to both of its preceding subparts, is absent

from section 2.4(i).

In addition, section 14.1.4 of the Construction Contract allows GMFB to

terminate if the Work is stopped “for a period of [sixty] consecutive days” because

TPG Owner “has repeatedly failed to fulfill [its] obligations under the Contract

Documents with respect to matters important to the progress of the Work.” Like

section 2.4(i), this provision includes its own notice requirement: “upon seven

42
additional days’ written notice to [TPG] Owner, [GMFB may] terminate the

[Construction] Contract and recover from [TPG] Owner as provided in section

14.1.3.” And thus it also supports an interpretation constraining the

notice-to-allow-cure requirement to subsection 2.4(i) in the Construction Contract.

We disagree that such an interpretation would render illusory the clause

allowing GMFB to correct defects up to one year after substantial completion.

Section 12.2.2.1 of the Construction Contract provides that “if, within one year after

the date of Substantial Completion of the Work . . . any of the Work is found to be

not in accordance with the requirements of the Contract Documents, [GMFB] shall

correct it promptly after receipt of written notice from [TPG] Owner to do so unless

[TPG] Owner has previously given [GMFB] a written acceptance of such condition.”

A reading constraining section 2.4’s notice-to-allow-cure requirement to subpart (i)

is not inconsistent with this provision. The two may be harmonized by looking to

section 2.5.1, which recognizes that a termination for cause based on a default is a

termination of GMFB’s “rights under [the Construction] Contract to proceed or

continue the Work or any part thereof.”

We also consider GMFB’s caution to avoid a construction of the

notice-to-allow-cure requirement that would unreasonably convert every

construction defect into a contractual default. Our construction will not do this. No

matter if the notice-to-allow-cure requirement applies only to subpart (i) of section

43
2.4 or also to subparts (a) through (h), only those construction defects that fall within

the failures identified in section 2.4 qualify as defaults.

Finally, we disagree with GMFB that our construction of the

notice-to-allow-cure requirement achieves a forfeiture. GMFB correctly points out

that “[f]orfeitures are not favored in Texas, and contracts are construed to avoid

them.” Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.

2009). But the parties here expressly agreed to allow termination of the Construction

Contract for the defaults set out in section 2.4, which come with clear consequences

upon a proper election by TPG Owner to terminate the Construction Contract for

cause. There are contractually-specified-default remedies. TPG Owner’s damages

are defined to include “actual damages, together with any increased costs to [TPG]

Owner to achieve final completion and the cost of any delay resulting from

[GMFB’s] default.” And GMFB is not entitled to receive any payment “until final

completion and after [TPG] Owner has assessed and charged [GMFB] for costs and

damages for which [GMFB] shall be liable to [TPG] Owner pursuant to the Contract

Documents.” In this regard, payment to GMFB may be delayed and reduced, but it

is not necessarily forfeited. Under these circumstances, the Construction Contract

can be enforced as written.

We thus conclude that the notice-to-allow-cure requirement in section 2.4

does not apply to the defaults set out in subsections 2.4(a) through 2.4(h), but only

44
to subsection 2.4(i). And we conclude that the trial court erred in determining that

TPG Owner had to comply with the notice-to-allow-cure requirement to terminate

GMFB for cause based on the alleged defaults under subsections 2.4(c) through

2.4(h).

2. The error in interpreting subsection 2.4(i)’s notice-to-allow-cure
requirement is reversible

Although we have held that the trial court’s interpretation of the

notice-to-allow-cure requirement in subsection 2.4(i) was erroneous, we must still

consider whether the error is reversible. See TEX. R. APP. P. 44.1(a) (judgment is

not reversible on ground that “trial court made an error of law” unless complained-of

error (1) probably caused rendition of improper judgment or (2) probably prevented

appellant from properly presenting its appeal).

In another portion of its first issue, TPG Owner argues that the trial court’s

contract-interpretation error is reversible because it led the trial court to erroneously

render judgment against TPG Owner on its claim for breach of the Construction

Contract and its request for the contractually-specified default damages. GMFB

responds that the trial court’s contract-interpretation error is not reversible because

the judgment would be the same even if notice and cure were not required. See BMC

Software, 83 S.W.3d at 794 (“If the reviewing court determines a conclusion of law

is erroneous, but the trial court rendered the proper judgment, the erroneous

conclusion of law does not require reversal.”).
45
 We do not agree with GMFB that the contract-interpretation error is harmless

and so not reversible. In support of its harmless-error assertion, GMFB relies on

certain findings of the trial court that TPG Owner itself breached the Construction

Contract—findings which TPG Owner does not challenge on appeal. These include

the findings that:

• GMFB “was to be solely responsible for, and have control over,
construction means, methods, techniques, sequences, and procedures
for coordinating all portions of the Work under the [Construction]
Contract,” yet “TPG Owner’s representatives . . . Donnelly
and . . . Harris interfered with the means and methods of construction
by ordering multiple inspections, communicating directly to
subcontractors, directing which subcontractors should be hired, and
exercising control over those subcontractors and the methods in which
they worked.”

• TPG Owner directed GMFB or its subcontractors or both “to perform
work that was beyond the scope of the Construction Contract,” and its
representatives “confirmed through emails that the Change Orders were
authorized, but did not sign them.”

• Although unsigned, the “Change Orders were valid.”

• The considerable delays encountered on the Project were “attributable
to both parties” and to other “factors outside [their] control.”

• Termination “excused GMFB from further performance under the
contract.”

According to GMFB, it was the prevailing party under the Construction Contract

“because TPG Owner breached the [Construction] Contract” and “that one of its

46
breaches was failure to give notice and a chance to cure did not invalidate any of the

several other grounds.”

But each party had its own breach-of-contract claim under the Construction

Contract. And TPG Owner’s first issue on appeal concerns its claim under the

Construction Contract for the contractually-specified damages based on GMFB’s

alleged defaults, not GMFB’s claim based on the uncontested breaches of the

Construction Contract by TPG Owner. While the uncontested breaches by TPG

Owner might present alternative grounds to affirm the trial court’s findings on

GMFB’s claim for breach of the Construction Contract, the uncontested breaches by

TPG Owner will not avoid a conclusion that the trial court’s contract-interpretation

error probably caused the rendition of an improper judgment as to TPG Owner’s

breach-of-contract claim unless at least one of those breaches excused the GMFB

defaults raised by the pleadings and evidence. See, e.g., Mustang Pipeline Co., Inc.

v. Driver Pipeline Co., 134 S.W.3d 195, 196 (Tex. 2004) (holding one party’s prior

material breach excused other party’s further performance). Otherwise, both parties

maintain breach-of-contract claims under the Construction Contract.

The excuse identified by GMFB in its appellate briefing is its affirmative

defense of prior material breach. See Bartush-Schnitzius Foods Co. v. Cimco

Refrigeration, Inc., 518 S.W.3d 432, 436–37 (Tex. 2017) (discussing

prior-material-breach defense); Henry v. Masson, 333 S.W.3d 825, 834 (Tex.

47
App.—Houston [1st Dist.] 2010, no pet.) (prior material breach is affirmative

defense). The significance of a prior material breach is that it excuses the

non-breaching party from continuing to perform the contract. Mustang Pipeline,

134 S.W.3d at 196. By contrast, if a breach is immaterial, “the non-breaching party

is not excused from future performance but may sue for damages caused by the

breach.” Levine v. Steve Scharn Custom Homes, Inc., 448 S.W.3d 637, 654 (Tex.

App.—Houston [1st Dist.] 2014, pet. denied). The materiality of a breach generally

presents a dispute for resolution by the trier of fact. Henry, 333 S.W.3d at 835; see

also Mustang Pipeline, 134 S.W.3d at 199 (identifying seven-factor test for

materiality of breach).

Although the parties requested findings on which breached first, the trial court

did not make any express finding about GMFB’s prior-material-breach defense.

Thus, to hold, as GMFB, suggests would require us to presume a finding that GMFB

prevailed on its prior-material-breach defense, as GMFB urges we must do under

Texas Rule of Civil Procedure 299. See TEX. R. CIV. P. 299. That rule provides:

The judgment may not be supported upon appeal by a presumed finding
upon any ground of recovery or defense, no element of which has been
included in the findings of fact; but when one or more elements thereof
have been found by the trial court, omitted unrequested elements, when
supported by evidence, will be supplied by presumption in support of
the judgment.

TEX. R. CIV. P. 299. Emphasizing the rule’s second clause, GMFB asserts we must

presume findings in its favor at least from the trial court’s finding that TPG Owner’s
48
representatives Harris and Donnelly interfered with GMFB’s performance by

dictating numerous means and methods inconsistent with GMFB’s planned

approach from the beginning of the Project.

Even so, Texas Rule of Civil Procedure 299 “does not permit a finding to be

presumed when such finding was requested and refused by the trial judge.” Chapa

v. Reilly, 733 S.W.2d 236, 237 (Tex. App.—Corpus Christi–Edinburg 1986, writ

ref’d n.r.e.) (holding court would not presume findings on essential elements of

cause of action or defense under rule 299 when findings were requested and refused);

see also Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 253 (Tex. App.—

Houston [14th Dist.] 1999, writ denied) (“[W]here the trial court has been

specifically requested to make a particular finding in support of its judgment and it

fails to do so, the failure is tantamount to a refusal[.]”). In addition, while the trial

court’s findings that GMFB relies on concern GMFB’s claim that TPG Owner

breached the Construction Contract, they are not necessarily referrable to GMFB’s

prior-material-breach defense and do not answer questions of the materiality of the

breaches or the effect, if any, of GMFB’s election to continue work on the Project

despite the interference from TPG Owner’s representatives. See Bartush-Schnitzius,

518 S.W.3d at 436 (elements of contract claim require finding of breach, not finding

of material breach); Levine, 448 S.W.3d at 654 (when party commits non-material

breach, other party “is not excused from future performance but may sue for the

49
damages caused by the breach”). In sum, we may not presume a finding of excuse

on this record that would avoid a conclusion that the trial court’s error in interpreting

the notice-to-allow-cure requirement was harmless. See Guridi v. Waller, 98 S.W.3d

315, 317 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see also TEX. R. APP. P.

44.1(a).

Because of its error of contract interpretation, the trial court concluded that

TPG Owner “improperly terminated [GMFB] for cause” and it did not make any

findings on the alleged GMFB defaults under subsections 2.4(c) through 2.4(h) of

the Construction Contract, even though the issue was raised by the pleadings and

evidence and such findings were requested. Further, based on its finding that TPG

Owner failed to satisfy subsection 2.4(i)’s notice-to-allow-cure requirement as to the

alleged defaults under subsections 2.4(c) through 2.4(h), the trial court concluded

that TPG Owner terminated GMFB for convenience, making the

contractually-specified default remedies unrecoverable. On this record then, we

hold that the trial court’s contract-interpretation error did cause the rendition of an

improper judgment, and a new trial is required on TPG Owner’s claim for breach of

the Construction Contract based on GMFB’s alleged defaults under the Construction

Contract. See TEX. R. APP. P. 44.1(a).

50
 We sustain TPG Owner’s first issue.18

3. Error on the refusal to make findings as to GMFB’s alleged
breaches of the Construction Contract is also reversible

In its second issue, TPG Owner argues that the trial court erred in rendering

judgment in favor of GMFB on TPG Owner’s claim for breach of the Construction

Contract because the trial court refused to make findings on whether GMFB

breached the Construction Contract and “the evidence at least raised a fact issue on

whether GMFB breached the Construction Contract.” According to TPG Owner,

the same evidence of GMFB’s defaults is evidence of GMFB’s breaches of the

Construction Contract and the trial court’s refusal to make findings then was

reversible error because it precluded TPG Owner from recovering common-law

benefit-of-the-bargain damages. Thus, although the conduct that gave rise to the

claims is the same, TPG Owner asserts a claim for benefit-of-the-bargain damages

under the common law based on GMFB’s alleged breaches of the Construction

Contract along with its claim for the contractually-specified damages for GMFB’s

alleged defaults. This is permitted by section 2.6 of the Construction Contract,

which provided that TPG Owner’s contractual remedies for default were “in addition

to and not in limitation of any other rights of [TPG] Owner granted in the Contract

Documents or at law or in equity.”

18
To the extent that TPG Owner makes other arguments in support of its first issue,
we need not address them. See TEX. R. APP. P. 47.1.

51
 The record shows that TPG Owner made requests for additional, omitted, and

amended findings on the issue of GMFB’s breach of the Construction Contract and

that the issue was raised by the pleadings and evidence. For instance, even viewing

the evidence in the light most favorable to GMFB, TPG Owner presented evidence

that it asked GMFB to remove moldy lumber and repair waterproofing errors and

that, about three months later, the waterproofing repairs had not been corrected. This

evidence raised a fact issue as to whether GMFB breached the Construction Contract

by failing to promptly correct defective work and remove defective materials or by

failing to enclose and protect material stored at the Project from rain to avoid mold.19

But the trial court did not make findings on the alleged breaches of the Construction

Contract by GMFB.

19
Although we have noted the evidence raising a fact issue as to GMFB’s alleged
breaches, we do not make any determination of whether the evidence of GMFB’s
breaches was conclusive. TPG Owner does not assert that the evidence was
conclusive as to its unliquidated damages for breach of the Construction Contract.
Nor would the record support such a contention. Thus, even if TPG Owner
established GMFB’s breaches of the Construction Contract as a matter of law, the
issue of TPG Owner’s unliquidated damages would remain unresolved. A case
cannot be remanded to the trial court for a new trial solely on the issue of
unliquidated damages when, as here, liability is contested. See TEX. R. APP. P.
44.1(b) (“The court may not order a separate trial solely on unliquidated damages if
liability is contested.”); Pointe West Ctr., LLC v. It’s Alive, Inc., 476 S.W.3d 141,
150 (Tex. App.—Houston [1st Dist.] 2015, pet. denied) (“When liability is
contested, courts may not grant a new trial on unliquidated damages solely.”). It is
therefore unnecessary to determine whether the evidence is conclusive because any
remand to the trial court must be as to both liability and damages for TPG Owner’s
breach-of-contract claim. See TEX. R. APP. P. 47.1.

52
 GMFB responds that such findings were unnecessary because the trial court

found in favor of GMFB on the competing claims for breach of the Construction

Contract and “when each party claims the other breached a contract, a finding for

one side is necessarily a finding against the other.” But this response again rests on

a presumed finding on GMFB’s prior-material-breach defense, an assertion that we

have rejected in our analysis above. As we concluded about the trial court’s refusal

to make findings as to GMFB’s alleged defaults under the Construction Contract,

we cannot presume that the trial court found facts necessary to support and uphold

its judgment against TPG Owner as to GMFB’s alleged breaches of the Construction

Contract. See Nat’l Commerce Bank v. Stiehl, 866 S.W.2d 706, 707 (Tex. App.—

Houston [1st Dist.] 1993, no writ) (stating appellate court could not presume findings

to support trial court’s judgment when party requested additional, omitted, and

amended findings on ultimate issues raised by pleadings and evidence and necessary

to understand trial court’s judgment). We hold the trial court erred in rendering

judgment in favor of GMFB on TPG Owner’s claim for breach of the Construction

Contract because the trial court refused to make findings on whether GMFB

breached the Construction Contract.

We sustain TPG Owner’s second issue.

53
B. GMFB’s claim under the Construction Contract

In its fourth issue, TPG Owner argues that the trial court erred in rendering

judgment in favor of GMFB on GMFB’s claim for breach of the Construction

Contract because if, as we have determined, its claim for damages for GMFB’s

alleged default of the Construction Contract must be retried, then GMFB’s claim for

TPG Owner’s breach of the Construction Contract must also be retried “because the

measure of damages on that GMFB claim will be different if it is determined on

retrial that GMFB was properly terminated for cause/default.”20 In response, GMFB

asserts that even if a new trial is required, it was entitled to any unpaid Cost of the

Work and unpaid Contractor’s Fee no matter if it was terminated for cause or for

convenience. We agree with TPG Owner that our holding that the trial court

misinterpreted subsection 2.4(i)’s notice-to-allow-cure requirement requires a new

trial on GMFB’s claim for TPG Owner’s breach of the Construction Contract.

The Construction Contract provided in section 14.4.3 that if TPG Owner

terminated the Construction Contract for convenience, GMFB, “as its sole remedy,”

was “entitled to receive payment for Work executed, and costs incurred by reason

of such termination, as set forth below, but in no event in excess of the Contract

20
In its fourth issue, TPG Owner includes a second, alternative argument that even if
the trial court applied the correct measure of damages, a new trial is still required
because the evidence was not legally or factually sufficient to support the amount
awarded. Due to our disposition below, we need not address this argument. See
TEX. R. APP. P. 47.1.

54
Sum.”21 But if TPG Owner terminated GMFB’s right under the Construction

Contract to proceed or continue with the Work based on an alleged default under

section 2.5, GMFB was not entitled to receive any payment that it claimed “until

final completion and after [TPG Owner] . . . assessed and charged [GMFB] for costs

and damages for which [GMFB was] liable to [TPG Owner] pursuant to the Contract

Documents.”

Under this latter provision, if the fact finder determines on remand to the trial

court that TPG Owner properly terminated GMFB for cause based on a default, any

amount due to GMFB under the Construction Contract would be contractually

reduced by the costs and damages, if any, for which GMFB may be found liable to

TPG Owner under the Construction Contract. The issue of TPG Owner’s undecided

claim based on GMFB’s alleged default of the Construction Contract is thus

intertwined with GMFB’s claim based on TPG Owner’s breaches of the

Construction Contract, requiring a new trial on both claims. See TEX. R. APP. P.

44.1(b); see also Flying Diamond-West Madisonville Ltd. P’ship v. GW Petroleum,

Inc., No. 10-07-00281-CV, 2009 WL 2707405, at *15 (Tex. App.—Waco Aug. 26,

21
The “Contract Sum” is contractually defined as “the actual Cost of the Work as
defined in Article 7 plus the Contractor’s Fee.” Article 7 defines the “Cost of Work”
to mean “costs necessarily incurred by [GMFB] in the proper performance of the
work.”

55
2009, no pet.) (mem. op.) (remanding entire case because issues that required

reversal were interwoven with and not clearly separable from remainder).

Moreover, even though TPG Owner has not disputed on appeal that it

breached the Construction Contract, the remand to the trial court cannot be limited

to only GMFB’s damages because the appellate rules prohibit a trial on damages

alone when, as here, liability was contested. See TEX. R. APP. P. 44.1(b) (“The court

may not order a separate trial solely on unliquidated damages if liability is

contested.”); Pointe West Ctr., LLC v. It’s Alive, Inc., 476 S.W.3d 141, 150 (Tex.

App.—Houston [1st Dist.] 2015, pet. denied) (“When liability is contested, courts

may not grant a new trial on unliquidated damages solely.”). Thus, we hold that a

new trial is required as to both liability and damages on GMFB’s claim for TPG

Owner’s breach of the Construction Contract.

We sustain TPG Owner’s fourth issue on appeal.

C. Reimbursement of reasonable out-of-pocket expenses

Section 15.6.2 of the Construction Contract provides that the party who

prevails in litigation “shall be reimbursed by the non-prevailing party for all of the

prevailing party’s reasonable out-of-pocket expenses incurred in connection

therewith, including without limitation reasonable attorney’s fees[.]” The trial court

determined that GMFB was the prevailing party for purposes of section 15.6.2 and

56
awarded GMFB $3,620,306.62 as its “reasonable out-of-pocket expenses, including

attorney’s fees and costs[.]”

Both TPG Owner and GMFB challenge the trial court’s application of section

15.6.2 of the Construction Contract. In its third and fifth issues, TPG Owner argues

that because it should have been the prevailing party on the competing claims for

breach of the Construction Contract, the trial court should not have awarded any

attorney’s fees to GMFB, and the trial court should have awarded attorney’s fees to

TPG Owner instead. In its second issue on cross-appeal, GMFB argues that,

although it was the prevailing party on the competing claims for breach of the

Construction Contract, the trial court erred in awarding GMFB only its attorney’s

fees. That is, GMFB asserts that it was entitled to reimbursement under the

Construction Contract of not only its attorney’s fees but also its out-of-pocket

expenses, including the amounts it paid to third-party vendors for services associated

with depositions, other discovery, and expert testimony.

Given our holdings that both TPG Owner’s and GMFB’s claims for breach of

the Construction Contract must be retried, neither party has prevailed under the

Construction Contract and their respective claims for reimbursement under section

15.6.2 must be retried with the issues of liability and damages. See, e.g., Strebel v.

Wimberly, 371 S.W.3d 267, 285 (Tex. App.—Houston [1st Dist.] 2012, pet. denied)

(reversing and remanding award of attorney’s fees because court reversed and

57
remanded claim supporting attorney’s fees). Thus, without reaching TPG Owner’s

third or fifth issues or GMFB’s second issue on cross-appeal, we remand to the trial

court TPG Owner’s and GMFB’s respective claims for reimbursement under section

15.6.2 of the Construction Contract for a new trial.

LLC Agreement and Guaranty

In its sixth and seventh issues, TPG 2011-4 argues that the trial court, after

properly finding that TPG 2011-4 was the prevailing party on its claims for breach

of the LLC Agreement and the Guaranty, erred in awarding an insufficient amount

of damages against GPO and Eeds as Construction Cost Overruns because the trial

court misconstrued the LLC Agreement to limit the Construction Cost Overruns to

those incurred before TPG Owner terminated GMFB under the Construction

Contract, rather than as including all cost overruns for the entire Project. In its eighth

issue, TPG 2011-4 argues that the trial court erred in refusing to award it attorney’s

fees against Eeds under section 8.6 of the Guaranty because section 8.6 provided

that Eeds would pay all “reasonable attorney’s fees . . . reasonably incurred in any

effort to enforce any term of th[e] Guaranty.”

In their first and third issues on cross-appeal, GPO and Eeds argue that the

trial court erred in awarding Construction Cost Overruns and attorney’s fees to TPG

2011-4 on TPG 2011-4’s claims for breach of the LLC Agreement and the Guaranty

because the trial court did not “apply [an] available $1 million Contingency” which

58
“the parties set aside as a line item specifically to cover [situations] like this” and

the trial court awarded TPG 2011-4 “too much” in attorney’s fees against GPO.22

A. TPG 2011-4’s claim for Construction Cost Overruns

The trial court determined that TPG 2011-4 was the prevailing party on its

claims for breach of the LLC Agreement and Guaranty, concluded that GPO and

Eeds were jointly and severally liable for $647,717.13 in Construction Cost

Overruns, and ordered GPO to pay TPG 2011-4 an additional $2,565,526 in

attorney’s fees and expenses. The trial court did not order Eeds to pay any of TPG

2011-4’s costs and expenses.

1. The LLC Agreement does not require GPO to pay Construction
Cost Overruns incurred after GMFB’s termination

In its sixth and seventh issues, TPG 2011-4 argues that the trial court erred in

misconstruing the LLC Agreement to limit the Construction Cost Overruns to those

incurred before TPG Owner terminated GMFB under the Construction Contract

because it should have included all cost overruns for the entire Project. Thus, the

trial court awarded it an insufficient amount as Construction Cost Overruns against

22
GPO also asserted a claim against TPG 2011-4 under the LLC Agreement for failure
to keep proper books and records. The trial court concluded that this claim failed
because GPO did not prove that “such a breach caused it damages,” and ordered
that “GPO . . . take nothing under the [LLC] Agreement” in its final judgment. GPO
has not complained about the denial of its claim under the LLC Agreement on
appeal. See TEX. R. APP. P. 38.1(f).

59
GPO under the LLC Agreement and against Eeds based on his guaranty of GPO’s

obligation to pay Construction Cost Overruns.

After examining the LLC Agreement and analyzing the arguments presented,

we disagree with TPG 2011-4 that the LLC Agreement holds GPO liable for

Construction Cost Overruns incurred after GMFB’s termination under the

Construction Contract. We first note the trial court’s conclusion that the LLC

Agreement is governed by Delaware Law—a conclusion neither party challenges on

appeal. Thus, we apply Delaware law to interpret the LLC Agreement. See Maxus

Energy Corp. v. Occidental Chem. Corp., 244 S.W.3d 875, 878 (Tex. App.—Dallas

2008, pet. denied); Brown v. Pennzoil-Quaker State Co., 175 S.W.3d 431, 435 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied). We will still apply Texas standards

of appellate review, however, including the de novo standard for questions for law.

See Maxus Energy Corp., 244 S.W.3d at 878; Brown, 175 S.W.3d at 435.

“[Delaware] courts interpreting a contract will give priority to the parties

intentions as reflected in the four corners of the agreement, construing the agreement

as a whole and giving effect to all its provisions.” In re Viking Pump, Inc., 148 A.3d

633, 648 (Del. 2016); see also Kuhn Constr., Inc. v. Diamond State Port Corp., 990

A.2d 393, 396–97 (Del. 2010) (“We will read a contract as a whole and we will give

each provision and term effect, so as not to render any part of the contract mere

surplusage.”); Eugene A. Delle Donne & Son, L.P. v. Applied Card Sys., Inc., 821

60
A.2d 885, 887 (Del. 2003) (“In construing a contract, the document must be

considered as a whole[.]”). Courts will afford a contract’s clear and unambiguous

terms their ordinary and usual meaning. Allied Capital Corp. v. GC-Sun Holdings,

L.P., 910 A.2d 1020, 1030 (Del. Ch. 2006).

In asserting that GPO had to pay all Construction Cost Overruns for the entire

Project, including those incurred after GMFB was terminated under the Construction

Contract, TPG 2011-4 looks to section 6.3 of the LLC Agreement. That section

provides that “[a]ll Construction Cost Overruns, after the application of available

contingencies . . . , will be paid by [GPO].” Emphasizing the presence of the

adjective “all” before Construction Cost Overruns that “will be paid” by GPO as

well as the LLC Agreement’s commercial purpose related to the development of the

entire Project,23 TPG 2011-4 asserts that section 6.3’s scope cannot be restricted

“only to Construction Cost Overruns incurred before GMFB was terminated as

contractor under the Construction Contract.”

As TPG 2011-4 asserts, the “definition of ‘all’ is well known, and means ‘the

whole amount, quantity, or extent of.’” Great Hill Equity Partners IV, LP v. SIG

Growth Equity Fund I, LLLP, 80 A.3d 155, 158 (Del. Ch. 2013). But the question

is “the whole amount, quantity, or extent of” what? The answer must be of the

23
See Chi. Bridge & Iron Co. N.V. v. Westinghouse Elec. Co., 166 A.3d 912, 827 (Del.
2017) (“The basic business relationship between the parties must be understood to
give sensible life to any contract.”).

61
Construction Cost Overruns, as specifically defined in the LLC Agreement to mean

the “amount by which the actual cost of the Land acquisition and the Construction

Work exceeds the Construction Budget, if any.” See AT&T Corp. v. Lillis, 953 A.2d

241, 253 (Del. 2008) (Delaware law requires contractual terms to be given their plain

and ordinary meaning absent specific definition provided in contract). Construction

Work is also contractually defined. It means “all construction work and site work

required to be performed by [GMFB] in connection with the Construction of the

Proposed Development, as set forth in the Construction Contract.”

As GPO and Eeds point out, the definition of Construction Work includes

only the work “required to be performed by [GMFB] . . . as set forth in the

Construction Contract,” and any work the Construction Contract did not require

GMFB to perform was not part of the Construction Work and thus did not contribute

to Construction Cost Overruns. The Construction Contract—which the parties and

we agree should be read together with the LLC Agreement—does not require or

even permit GMFB to perform work after termination, no matter if GMFB is

terminated for cause based on a default or for convenience.24 See RESTATEMENT

24
The section of the Construction Contract addressing termination for cause based on
a contractor default—section 2.5.1—provides that “[i]f [GMFB] is in
default . . . , [TPG] Owner may . . . terminate [GMFB’s] right under th[e]
[Construction] Contract to proceed or continue the Work or any party thereof.”
(Emphasis added.) And the section of the Construction Contract addressing
termination for convenience—section 14.4.2—similarly contemplates the cessation
of work by GMFB after termination. It provides that upon receipt of written notice
62
(SECOND) OF CONTRACTS §202(2) (“A writing is interpreted as a whole, and all

writings that are part of the same transaction are interpreted together.”). We agree

with GPO and Eeds that “the general definition of the adjective ‘all’ cannot change

the specific definition of ‘Construction Cost Overruns’ to which the parties agreed.”

Because GMFB had to perform no work under the Construction Contract after

termination, section 6.3 cannot be read as requiring GPO to pay Construction Cost

Overruns after GMFB’s termination.

We are not persuaded that a more expansive interpretation of GPO’s liability

for Construction Cost Overruns is required by other provisions of the LLC

Agreement. For instance, we do not find that reading section 6.3 of the LLC

Agreement together with section 9.17 requires a different interpretation. Section

9.17 provides:

Guaranties. [GPO] shall guaranty completion of construction and shall
provide any completion and/or recourse carveout guaranties and
environmental indemnities required in connection with the
Construction Loan and/or the Mezzanine Loan. If [TPG 2011-4] or an
Affiliate of [TPG 2011-4] is required to provide any such guaranty or
indemnity, the economic detriment of each Guaranty shall be borne by
[GPO]; . . . . In furtherance of, but subject to, the foregoing, (a) if
[TPG 2011-4] makes a payment under a Member Guaranty, then [GPO]
[sic] promptly pay [TPG 2011-4] the amount of such payment, and
(b) if an Affiliate of [TPG 2011-4] makes a payment under an Affiliate
Guaranty, then [GPO] shall promptly pay the Affiliate guarantor the
amount of such payment. Amounts paid under or with respect to a

from TPG Owner of a termination for convenience, GMFB “shall . . . cease
operations as directed by [TPG] Owner in the notice.”

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 Member Guaranty or an Affiliate Guaranty shall not be deemed a
Capital Contribution.
TPG 2011-4 urges that GPO’s promises in section 9.17—to (1) “guaranty

completion of construction” and (2) “promptly pay [] the amount of [any] payment”

that TPG 2011-4 or any affiliate of TPG 2011-4 makes to project lenders—rendered

GPO financially responsible for project completion, meaning “the only reasonable

reading of [section] 6.3 is that . . . GPO promised to pay all Construction Cost

Overruns on the entire Project.” (First and second alterations in original.) (Internal

quotations omitted.) But section 9.17 does not answer who would pay to complete

construction, and it cannot be read so broadly as to include a promise by GPO to

guarantee completion after termination of GMFB. The specific clauses in the

Construction Contract suggesting that GMFB may not complete construction after

termination must prevail over the general clause guaranteeing completion. See

generally DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005)

(“Specific language in a contract controls over general language, and where specific

and general provisions conflict, the specific provision ordinarily qualifies the

meaning of the general one.”).

The recitals in the LLC Agreement also do not compel a different

interpretation. According to TPG 2011-4, the LLC Agreement recitals stating that

TPG 2011-4 and GPO’s joint-venture entity, TPG Mezzanine, will develop the

acquired land as well as “develop, construct, own, lease, manage, and operate” the

64
Project support a conclusion that the purpose of the LLC Agreement was to develop

the entire Project, and thus the trial court adopted an unreasonable interpretation by

limiting the recoverable Construction Cost Overruns to only part of the Project. But

recitals do not establish a substantive obligation. See Glidepath Ltd. v. Beumer

Corp., C.A. No. 12220-VCL, 2019 WL 855660, at *16 (Del. Ch. Feb. 21, 2019) (not

published) (generally recitals “are not a necessary part of a contract and can only be

used to explain some apparent doubt with respect to the intended meaning of the

operative or granting part of the instrument” but recitals do not control if they are

“inconsistent with the operative or granting part” and do not “establish a substantive

obligation”).

We conclude that the LLC Agreement does not require GPO to pay

Construction Cost Overruns incurred after GMFB’s termination. Thus, we hold that

the trial court did not err by limiting the Construction Cost Overruns to those

incurred before GMFB was terminated under the Construction Contract.

We overrule TPG 2011-4’s sixth issue.

Our conclusion rejecting an interpretation of section 6.3 of the LLC

Agreement that would require GPO to pay Construction Cost Overruns incurred

after GMFB’s termination also disposes of TPG 2011-4’s seventh issue. This is

because TPG 2011-4’s argument in the seventh issue is that the “award of

Construction Cost Overruns against Eeds under the Guaranty is wrong . . . for all the

65
same reasons . . . that the award of Construction Cost Overruns against GPO under

the [LLC] Agreement is wrong[.]” Because Eeds guaranteed GPO’s “obligation to

pay ‘Construction Cost Overruns,’ as defined in the [LLC Agreement], pursuant to

[s]ection 6.3,” the extent of his liability is commensurate with GPO’s under the LLC

Agreement.25 Because the LLC Agreement does not require GPO to pay

Construction Cost Overruns incurred after GMFB’s termination, we hold that Eeds’s

guarantee does not include an obligation to pay Construction Cost Overruns incurred

after GMFB’s termination.

We overrule TPG 2011-4’s seventh issue.

2. The Construction Cost Overruns are not recoverable against GPO
or Eeds

We must next address the first issue on cross-appeal of GPO and Eeds because

our holding on that issue dispose of the remaining issues in both the TPG Parties’

appeal and the Greystone Parties’ cross-appeal.

In their first issue on cross-appeal, GPO and Eeds argue that the trial court

erred in awarding any Construction Cost Overruns to TPG 2011-4 because the

$647,717.13 for Construction Cost Overruns found by the trial court is not

25
The extent of Eeds’s liability under the Guaranty is governed by the terms of the
Guaranty and the parties’ choice of law. The Guaranty provides in section 8.1 that
it “shall be governed and construed in accordance with California law.” Under
California law, “the liability of a surety is commensurate with that of the principal,”
and thus, “where the principal is not liable on the obligation, neither is the
guarantor.” U.S. Leasing Corp. v. duPont, 444 P.2d 65, 75 (Cal. 1968).

66
recoverable. They assert the estimated budget for the construction of the Project

included a contingency amount, the unused portion of which exceeded the

Construction Cost Overruns at the time of GMFB’s termination and, by the clear and

unambiguous terms of the LLC Agreement, should have been applied to reduce any

liability of GPO to zero. They also assert that because GPO was not liable under the

LLC Agreement for Construction Cost Overruns, neither was Eeds under the

Guaranty. We agree.

More than one of the findings and conclusions pertinent to this issue are

unchallenged on appeal. These include (1) the trial court’s finding that the estimated

budget for the construction of the Project—the Control Estimate defined to “include

the estimated Cost of the Work plus the Contractor’s Fee”—included $1,460,173 in

Hard Cost Contingency and (2) the trial court’s conclusion that, at the time of

GMFB’s termination, the unexpended Hard Cost Contingency was $1,026,161.01.

Given these unchallenged findings and conclusions, there is no dispute that the

amount of the unexpended Hard Cost Contingency exceeded the amount of the

Construction Cost Overruns found by the trial court.

Section 5.2.6 of the Construction Contract provided that the contingency line

item in the Controlled Estimate “shall be used to pay for additional costs incurred

by [GMFB] for its performance of the Work for which additional costs may not have

been included in the Control Estimate.” The LLC Agreement, as described above,

67
defined “Construction Cost Overruns” as the “amount by which the actual cost of

the Land acquisition and the Construction Work exceed[ed] the Construction

Budget,” and instructed that any unused contingency should be applied in

determining the Construction Cost Overruns payable by GPO. Reading these

provisions together, we conclude that the LLC Agreement clearly and

unambiguously required GPO to pay only the Construction Cost Overruns that

remained after application of the unexpended contingency, which in this case was

none given that the unexpended contingency exceeded the amount of the cost

overruns.

The trial court declined to apply the unused contingency per the LLC

Agreement’s requirement, concluding that it would be “inequitable to allow either

party the benefit of any unused portions of the Hard Cost Contingency” because the

LLC Agreement did not “contemplate a termination of the Construction Contract for

convenience.” But equity was not a valid basis for disregarding the LLC

Agreement’s requirement. See Heartland Del. Inc. v. Rehoboth Mall Ltd. P’ship, 57

A.3d 917, 925 (Del. Ch. 2012) (observing “[e]quity respects the freedom to contract”

and “if contract rights were only to be enforced upon a balancing of the equities,

mischief would result far greater than is imposed, on occasion, by letting parties

order their own affairs”); see also Gertrude L.Q. v. Stephen P.Q., 466 A.2d 1213,

1217 (Del. 1983) (courts cannot make new contract for parties). Moreover, the LLC

68
Agreement’s requirement to reduce Construction Cost Overruns by unexpended

contingency was not conditional on the nature of GMFB’s termination. As we have

already concluded, it clearly and unambiguously stated that GPO would pay

Construction Cost Overruns “after the application of available contingencies.”

Although it agrees that the trial court erroneously applied equity to rewrite the

LLC Agreement, TPG 2011-4 asserts that “the trial court’s resort to equity was

driven by the . . . contract-interpretation error” limiting the cost overruns only to

those accrued when GMFB was terminated as a contractor under the Construction

Contract, rather than determining cost overruns on the entire Project. We have

already rejected this argument in interpreting section 6.3 of the LLC Agreement to

not require GPO to pay Construction Cost Overruns incurred after GMFB’s

termination.

In sum, having found that the Construction Cost Overruns without applying

the contingency were $647,717.13 and that the unexpended contingency was

$1,026,161.01, the plain meaning of the LLC Agreement requires a conclusion that

no cost overruns were recoverable from GPO when the latter is subtracted from the

former. In addition, because the Guaranty does not set forth a more extensive

liability than GPO’s under the LLC Agreement, Eeds also was not liable for cost

overruns under the LLC Agreement. See U.S. Leasing Corp. v. duPont, 444 P.2d

69
65, 75 (Cal. 1968). We thus hold that the trial court erred in awarding cost overruns

against GPO under the LLC Agreement and against Eeds under the Guaranty.

We sustain GPO and Eeds’s first issue on cross-appeal.

B. TPG 2011-4’s Attorney’s Fees
Our conclusion that the Construction Cost Overruns were not recoverable

against GPO under the LLC Agreement disposes of the remaining issues—TPG

2011-4’s eighth issue and GPO’s third issue on cross-appeal—which concern the

attorney’s fees claimed by TPG 2011-4 related to its claim for breach of the LLC

Agreement.

More specifically, in its eighth issue, TPG 2011-4 argues that the trial court

erred in refusing to award it attorney’s fees against Eeds under section 8.6 of the

Guaranty because section 8.6 provided that Eeds would pay all “reasonable

attorney’s fees . . . reasonably incurred in any effort to enforce any term of th[e]

Guaranty.” But as acknowledged by TPG 2011-4, “to enforce the Guaranty against

Eeds, [it] had to establish both GPO’s underlying liability under the [LLC]

Agreement and Eeds’s liability under the Guaranty.” This, TPG 2011-4 has not

done. For the reasons we have stated, we conclude that TPG 2011-4 should not have

prevailed on its claim for Construction Cost Overruns against either GPO or Eeds,

and it thus should not have recovered any associated attorney’s fees against Eeds.

We overrule TPG 2011-4’s eighth issue.

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 Relatedly, in GPO’s third issue on cross-appeal, GPO contends that TPG

2011-4 also should not recover attorney’s fees against GPO “since GPO should not

have been held liable for any [Construction Cost Overruns] under the [LLC]

Agreement.” Again, for the reasons we have stated, TPG 2011-4 should not have

prevailed on its claim for Construction Cost Overruns against either GPO or Eeds,

and thus, we conclude that it should not have recovered any associated attorney’s

fees against GPO.

We sustain GPO’s third issue on cross-appeal.

Conclusion

We reverse the part of the trial court’s judgment in favor of GMFB against

TPG Owner on the competing claims for breach of the Construction Contract, and

we remand to the trial court both TPG Owner’s and GMFB’s claims for breach of

the Construction Contract for a new trial.

We also reverse the part of the trial court’s judgment in favor of TPG 2011-4

against GPO on TPG 2011-4’s claim for breach of the LLC Agreement and against

Eeds on TPG 2011-4’s claim for breach of the Guaranty, and we render judgment

that TPG 2011-4 shall take nothing under the LLC Agreement against GPO or under

71
the Guaranty against Eeds. We affirm the remainder of the trial court’s judgment

that GPO shall take nothing under the LLC Agreement.

Julie Countiss
Justice

Panel consists of Justices Goodman, Hightower, and Countiss.

Justice Goodman, dissenting.

72