IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-2046
_____________________
BANK ONE TEXAS NATIONAL ASSOCIATION,
Plaintiff-Appellee,
Cross-Appellant,
v.
GARY E. MORRISON,
Defendant-Appellant,
Cross-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
(July 7, 1994)
Before KING and WIENER, Circuit Judges, and ROSENTHAL*, District
Judge:
PER CURIAM:
Appellant Gary E. Morrison ("Morrison") appeals from a
judgment rendered against him on the basis of a guaranty he
executed in favor of the predecessor to appellee Bank One Texas
National Association ("Bank One"). Bank One cross-appeals from
the district court's refusal to award attorneys' fees. Finding
that the district court erred in disregarding pertinent jury
findings, we reverse its judgment and render for Morrison. In
*
District Judge of the Southern District of Texas, sitting
by designation.
light of our disposition of the case, we do not reach the issue
of Bank One's attorneys' fees.
I. Background
A. The Note and Guaranty
Morrison and others formed Triple M Drilling Company
("Triple M") in January of 1984. In 1985, Triple M obtained a
$200,000 line of credit from MBank Houston, N.A. ("MBank").
Morrison executed an unconditional personal guaranty in favor of
MBank for that line of credit, as well as for any debt incurred
after the issuance of the credit line (the "guaranty"). The
guaranty expressly provided that Morrison could unilaterally
cancel at any time by giving written notice and thereby limit his
obligation to those sums previously borrowed by Triple M,
protecting him from subsequently-incurred indebtedness. The
evidence does not reflect that Morrison ever sent such a notice
to MBank.
Triple M drew upon the line of credit, but quickly repaid
the loan and never again borrowed money under that line of
credit. Both Morrison, and Robert Baldwin ("Baldwin"), the MBank
officer responsible for the loan, testified that the parties
intended that the guaranty be cancelled upon repayment of the
original $200,000 line of credit. Baldwin stated that MBank
required the guaranty as to the $200,000 line initially because
Triple M was a new company and had no receivables with which
MBank could secure the loan. Once the company began generating
2
receivables, he testified, MBank released the guaranty. Bank One
did not offer any evidence to refute this testimony.
Baldwin additionally stated that he informed MBank's note
department that the instruments were cancelled and instructed the
employees to return the cancelled documents to Morrison.
Although Baldwin testified that it was his normal practice to
give such instructions in writing, no such writing is in
evidence. MBank did, however, return a package of loan documents
to Morrison, including the original $200,000 note and a copy of
the guaranty, conspicuously stamped across the first page with
the word "CANCELLED."
Morrison's assistant, Carolyn Harbeson ("Harbeson"), placed
these documents in Morrison's safe, believing them to be
originals. When she subsequently discovered that Morrison had
received only a copy of the guaranty, she requested the original
from Baldwin at MBank, who assured here that the original was in
MBank's "dead files" and was therefore effectively cancelled.
In February of 1986, Triple M obtained a second line of
credit in the amount of $500,000. MBank's official loan
documents reflect that this line was not guaranteed. For
example, the loan application discloses the guarantors as "none,"
and states that "[a]lthough [Morrison] has a strong personal
financial statement, he has no personal liability on this loan."
Further, when the credit line was renewed and increased to
$750,000 in August of 1986, the loan application again
specifically recited that there were no guarantors and that
3
"[Morrison] does not guarantee this line; therefore [he] has no
personal liability." Numerous additional MBank memoranda and
official bank documents consistently reflect that this loan was
not guaranteed.
B. The Triple M Suit
After the March 3, 1987, stated maturity date on the
$750,000 note passed, MBank declared the note to be in default
and seized as an offset approximately $400,000 in Triple M's
payroll account at MBank, an action which apparently forced
Triple M into bankruptcy. MBank did not, however, make demand
upon Morrison to pay off the note. Triple M filed suit against
MBank in state court alleging that, in seizing the payroll
account, MBank breached an agreement to extend the maturity date
of the note until the end of 1987 (the "Triple M suit").
Morrison intervened in the Triple M suit seeking damages that he
claimed he suffered directly as a result of MBank's misconduct in
connection with Triple M's $750,000 note.
In March of 1989, MBank was declared insolvent, and the FDIC
was appointed as receiver. After its appointment, the FDIC
intervened in the Triple M suit and removed it to federal court.
After the Deposit Insurance Bridge Bank, N.A., n/k/a Bank One,
acquired substantially all of MBank's assets (including the note
and guaranty at issue) as part of a purchase and assumption
transaction with the FDIC, Bank One attempted to intervene in the
action and, although it originally permitted Bank One to do so,
the district court changed its mind on rehearing, declining to
4
exercise any supplemental jurisdiction over that dispute, and
struck the intervention.
C. The Instant Case
Bank One filed this lawsuit against Morrison in state court
on January 21, 1991, asserting the continued validity of the
guaranty and seeking to recover the balance of the $750,000 note.
Morrison counterclaimed against Bank One and made certain
allegations regarding MBank. Perceiving that Morrison had stated
claims against the defunct MBank, the FDIC intervened as receiver
for MBank and removed the case to federal court. The FDIC moved
for, and was granted, partial summary judgment on some of
Morrison's affirmative defenses. In response to the FDIC's
motion, Morrison asserted that his counter-claim was based solely
upon the conduct of Bank One in filing suit against him on an
alleged guaranty obligation that it knew from its own records had
been cancelled, but that he did not challenge any action of MBank
in the instant action. After Morrison made clear that his
surviving claims were asserted only against Bank One and not
against MBank, the FDIC withdrew from the case with the consent
of the parties and the court. Upon the FDIC's dismissal,
Morrison moved unsuccessfully to dismiss the case for lack of
subject matter jurisdiction.
At trial, the court submitted, over objections from both
parties, a jury question asking whether Bank One had released
Morrison from the guaranty. The jury found that Bank One did
5
not.1 The jury also found that the guaranty was not intended to
apply to the $750,000 note. The court, however, disregarded the
jury's finding on the parties' intentions, deeming that answer to
be irrelevant in the face of what it considered to be an
unambiguous guaranty contract, and entered judgment in favor of
Bank One. The court also disregarded the jury's finding that
$12,000 would adequately compensate Bank One for its attorneys'
fees and entered a final judgment on February 11, 1993. Morrison
timely appealed the judgment notwithstanding the verdict, and
Bank One cross-appealed, contesting the district court's failure
to award attorneys' fees.
II. Analysis
A. Morrison's Appeal
1. Subject matter jurisdiction
Morrison first contends that the district court erred in
failing to dismiss or remand the case for want of subject matter
jurisdiction. He argues that the FDIC was never made a proper
party to the litigation because it had no legitimate interest in
the case; consequently, no right to a federal forum ever arose,
and removal was improper. See NCNB Texas Nat'l Bank v. Fennell,
942 F.2d 934, 936 (5th Cir. 1991) (assuming that the FDIC must
have a legitimate interest in the case in order to be a "proper"
party); FSLIC v. Griffin, 935 F.2d 691, 696 (5th Cir. 1991)
(same), cert. denied, 112 S. Ct. 1163 (1992); see also Bank One,
1
Morrison contends that the jury's answer in this regard is
irrelevant because the pertinent inquiry was whether MBank had
released Morrison.
6
Texas, N.A. v. Elms, 764 F. Supp. 85, 89-90 (N.D. Tex. 1991)
(remanding cause to state court upon determination that the FDIC
had no legitimate interest). Resolution of this contention turns
on whether Morrison actually stated claims against MBank in his
counter-claim. According to Morrison, the reference to MBank in
his counter-claim )) which the FDIC used as the basis of its
intervention and subsequent removal )) was a mere clerical error,
and the misnomer should have been apparent from the face of the
pleading.
Although we share Morrison's concern that federal
jurisdiction should not be manipulated by the FDIC's simple
intervention in a given case, we find that, under the
circumstances presented, the FDIC had a interest in the case at
bar sufficient to support its intervention. Morrison's counter-
claim refers to "counter-defendant MBank, Bank One's predecessor"
and asserts that "[t]he actions of MBank and Bank One constitute
a fraud on Gary Morrison and an attempt to unjustly enrich
themselves." The relief sought was against "counter-defendant."
Interspersed among his defenses, Morrison challenges the guaranty
as having been "executed under duress, that there was a failure
of consideration and that his signature was obtained by fraud,"
defenses which clearly go to the actions or omissions of MBank.
The combination of allegations in the counter-claim leads us to
conclude that the FDIC validly perceived that Morrison was
asserting claims against the MBank receivership estate and that
its intervention was proper.
7
Further, Morrison never moved to dismiss any claims against
the FDIC or request a remand on the basis that federal
jurisdiction was lacking )) even though it was clear that the
FDIC's only purpose in intervening was to defend against claims
it believed were asserted against the fallen MBank )) until after
the trial court had granted partial summary judgment in favor of
the FDIC. Once the FDIC became a party to the action, the suit
was deemed to arise under federal law, see 12 U.S.C.
§ 1819(b)(2)(A), and the FDIC had the right to remove it, 28
U.S.C. §§ 1441 and 1446. Because jurisdiction is determined as
of the time of removal and post-removal events will generally not
deprive the court of jurisdiction, Asociacion Nacional de
Pescadores v. Dow Quimica de Colombia, S.A., 988 F.2d 559, 565
(5th Cir. 1993), cert. denied, 114 S. Ct. 685 (1994); Griffin,
935 F.2d at 696, the FDIC's subsequent dismissal from the case
did not deprive the court of subject matter jurisdiction.
Morrison contends nonetheless that the FDIC's dismissal was
not a post-removal event but rather a recognition that
jurisdiction never existed from the first. See Dow Quimica, 988
F.2d at 565 (observing that federal court was examining
jurisdictional facts as of the time the case was removed but
considering information submitted after removal). We disagree.
First, Morrison's assertion that Bank One and the FDIC knew or
should have known at the time of removal that he did not intend
any claims against MBank based upon pre-receivership conduct is
disingenuous in light of his prolonged delay in taking any action
8
to clarify or amend his pleading. Morrison's response to the
FDIC's motion for summary judgment did little to clarify that
MBank's actions were not at issue, especially when he did not
amend his counter-claim to reflect this alleged intention. In
fact, it was not until the pre-trial order stage of these
proceedings that Morrison appeared to have abandoned completely
and unequivocally any claims against the FDIC. Under the facts
presented, we cannot find that the FDIC's dismissal was on the
basis that there was no subject matter jurisdiction as of the
time of removal. Therefore, we construe the dismissal as a post-
removal event which could not have ousted subject matter
jurisdiction.
2. The Issue of Intent
Morrison raises a compelling argument that the court below
erred in disregarding a jury finding that it was not "the mutual
intent of the parties that the Morrison guaranty apply to the
$750,000 Triple M Company note." There is ample support in the
record for the jury's conclusion. Nonetheless, the district
court concluded that the jury question on intent was warranted
only if Morrison had pled and proved that the guaranty agreement
was ambiguous. Because it considered the guaranty to apply
unambiguously to the debt at issue, the court below regarded the
jury's intent finding as irrelevant and entered judgment in favor
of Bank One. We are not so persuaded. As Morrison correctly
points out, contract interpretation principles are irrelevant
where, as here, there is a dispute over whether the guaranty was
9
even in existence as to the $750,000 note. Preston Farm & Ranch
Supply, Inc. v. Bio-Zyme Enter., 625 S.W.2d 295, 298 (Tex. 1981)
("The question of whether an agreement was reached by the parties
is generally a question of fact where the existence of the
agreement is disputed."). The question of whether the parties
intended the guaranty to be in effect was both clearly relevant
and appropriate for jury resolution. It went directly to
Morrison's pled (and evidently proven) defense of cancellation or
release.2 In disregarding this jury finding and refusing to
submit a question asking whether MBank released Morrison from the
guaranty (which refusal, as noted below, is also asserted as
error), the district court held )) essentially as a matter of law
)) that the guaranty could not have been released by MBank,
primarily because Morrison never sent any written notice as
required under the guaranty. However, the provision which allows
Morrison to cancel his guaranty obligation unilaterally does not
render the intent question irrelevant because that clause does
not speak to, or prohibit, a mutual cancellation or novation of
the guaranty agreement. E.g., Knight v. Wirotzious, 495 F.2d
543, 545 (5th Cir. 1974) (holding that a guaranty can be "waived
or surrendered by the bank without regard to the means prescribed
2
In the joint pre-trial order, the following issue was
listed as a disputed fact:
Whether there is a guaranty agreement between Morrison
and Bank One securing Triple M's $750,000 loan
agreement.
10
for cancellation by a guarantor").3 Therefore, a fact issue
existed as to whether the parties agreed to cancel the guaranty
)) or at the very least modify the contract to exclude the
obligation at issue. This issue was properly submitted to the
jury in the form of the intent question.
The loan applications and supporting MBank documents show
that Morrison did not guarantee the $750,000 obligation. The
indispensable, component loan documents reflect that the parties
specifically agreed that the $750,000 obligation was not
guaranteed, presumably because the guaranty contract was either
cancelled or modified to exclude that note. See, e.g., 3 A.
CORBIN, CORBIN ON CONTRACTS § 574, at 371 (1960) ("Any contract,
however made or evidenced, can be discharged or modified by
subsequent agreement of the parties."). MBank's own internal
memos specifically recite that Morrison was to have no personal
liability on the notes. For example, when Triple M's financial
condition began to deteriorate, Kathryn Seider ("Seider"), the
MBank officer who replaced Baldwin, requested that Morrison
execute a new guaranty for the $750,000 credit line. Seider's
own credit analyses which carefully discuss sources of repayment
do not mention Morrison as a potential resource. MBank's
3
The district court's other possible justification for
finding that the guaranty was not cancelled by MBank is similarly
unpersuasive because it is clear that the original guaranty
agreement need not have been returned to Morrison in order to
cancel it. A guaranty is not a negotiable instrument; rather, it
is a contract, see FDIC v. Payne, 973 F.2d 403, 408 (5th Cir.
1992), which may be cancelled as any written agreement by mutual
consent of the parties.
11
objective actions and inactions )) specifically, its failure to
make demand upon or otherwise pursue Morrison as a guarantor
though its own records estimated his net worth to exceed
$4,000,000 )) further reflect an understanding that Morrison had
not guaranteed the $750,000 line of credit. Indeed, Bank One's
own actions in seeking relief from the Triple M bankruptcy court
by representing that Triple M's secured assets were "virtually"
the only assets from which satisfaction could be made4 support
the view that the guaranty was likely unearthed after the fact
from deep within the MBank "dead files" where it maintained
cancelled instruments. We thus conclude that the jury properly
determined that the parties did not intend the guaranty to cover
the line of credit at issue. The trial court's disregard of this
finding was in error.
3. The Applicability of D'Oench, Duhme
Bank One asserts that the court below was precluded from
asking about the parties' intent because that determination would
necessarily and impermissibly cause the jury to evaluate whether
there existed, in effect, an unrecorded side agreement to cancel
the guaranty as prohibited by the doctrine first set forth in
D'Oench, Duhme & Co. v. FDIC, 315 U.S. 447 (1942).
4
Bank One filed a motion for relief from the automatic stay
in Triple M's bankruptcy proceedings in order to seize Triple M's
accounts receivable, representing to the bankruptcy court that
these accounts were "virtually the only source of payment" for
the $750,000 note. On the basis of this representation, the
bankruptcy court granted the relief requested and permitted Bank
One to collect the collateral.
12
Morrison counters that the cancellation of the guaranty is
not subject to D'Oench, Duhme because (i) Bank One failed to meet
its burden of showing that the guaranty was in MBank's active
files at the time its predecessor, the FDIC, acquired MBank's
assets, and (ii) the voided guaranty could not have been acquired
by the FDIC. As Morrison implicitly acknowledges, each of these
arguments hinges upon some evidence in the record as to where the
guaranty was found. Morrison, however, points only to the
testimony of his assistant, Harbeson, to confirm its location.
Harbeson's testimony as to what Baldwin at MBank told her
regarding the location of the purportedly cancelled guaranty was
objected to at trial as inadmissible hearsay, and we believe that
Bank One was correct in labelling it as such. The testimony was
clearly offered for the truth of the matter asserted, and it
fails to meet any of the enumerated exceptions to the hearsay
rule )) including the statement against interest exception
because MBank was clearly a separate entity from Bank One. Even
if we assume that the guaranty was in MBank's "active" files,
however, that assumption does not require the application of
D'Oench, Duhme here because other documents which undisputedly
were contained in MBank's "active" files clearly reflect that the
parties agreed that the guaranty did not apply to the $750,000
obligation.
The seminal case of D'Oench, Duhme has spawned a host of
litigation exploring the parameters of its rule of estoppel which
precludes a borrower from asserting against the FDIC defenses
13
based upon secret or unrecorded "agreements" that alter the terms
of the obligation. E.g., Campbell Leasing, Inc. v. FDIC, 901
F.2d 1244, 1248 (5th Cir. 1990). The doctrine has been
interpreted expansively to shield the FDIC from claims and
defenses based upon collateral agreements not firmly established
in the official records of the failed institution. Resolution
Trust Corp. v. Oaks Apartments Joint Venture, 966 F.2d 995, 999
(5th Cir. 1992). However, "[t]he doctrine . . . has not been
read to mean that there can be no defenses at all to attempts by
the FDIC to collect on promissory notes. . . . Rather, [i]t only
bars those defenses which [the] FDIC could not have been put on
notice by reviewing records on file with the bank." FDIC v.
Waggoner, 999 F.2d 826, 828 (5th Cir. 1993) (quoting FDIC v.
Laguarta, 939 F.2d 1231, 1237 (5th Cir. 1991), and RTC v. Sharif-
Munir-Davidson Dev. Corp., 992 F.2d 1398, 1404 (5th Cir. 1993))
(internal quotations omitted).
The D'Oench, Duhme rule has been partially codified at 12
U.S.C. § 1823(e), and the federal "courts generally give similar
interpretations to § 1823(e) and the doctrine of D'Oench, Duhme."
Laguarta, 939 F.2d at 1238. Therefore, § 1823(e) is viewed as
supplementing, not replacing, the D'Oench, Duhme doctrine. FDIC
v. Castle, 781 F.2d 1101, 1106-08 n.3 (5th Cir. 1981). Section
1823(e) requires that the agreement sought to be enforced be:
(1) in writing;
(2) executed by the depository institution and any
person claiming an adverse interest thereunder,
including the obligor, contemporaneously with the
14
acquisition of the asset by the depository
institution;
(3) approved by the board of directors of the
depository institution or its loan committee, and
the approval reflected in the minutes of the board
or committee; and
(4) an official record of the depository institution
continuously from the time of its execution.
12 U.S.C. § 1823(e).
Morrison argues that the stringent requirements of § 1823(e)
need not be met in the case presented because he is not relying
upon any unwritten side agreement; rather, he is attempting to
enforce the parties' agreement as reflected clearly in the loan
documents. Alternatively, he contends that the loan documents
read together as a whole constitute a written agreement between
the parties which satisfies § 1823(e). As Morrison properly
points out, neither D'Oench, Duhme nor § 1823(e) requires that
the agreement between the parties be confined to one document;
rather, a collection of official bank documents can reflect the
agreement reached. Sharif-Munir-Davidson, 992 F.2d at 1405 n.13
(observing that Texas law permits a contract to "consist of
multiple writings, all of which are integral to the agreement");
Oaks Apartments, 966 F.2d at 999 ("The fact that an agreement
between the failed lender and the borrower is manifested in more
than one document does not automatically imply a deceptive secret
agreement."); Laguarta, 939 F.2d at 1238-39 (holding that the
loan documents that are integral to a given transaction are to be
read together). With respect to the first § 1823(e) requirement,
it is undisputed that the loan documents are all in writing. The
15
second prong of the inquiry is also met because (i) Baldwin, the
MBank senior vice president handling the transactions, signed the
loan applications, (ii) Morrison signed the promissory notes that
were the result of, and in accordance with, the loan
applications, and (iii) Baldwin tied the two sets of documents
together by testifying that the loan applications he signed were
the same ones which were eventually approved by the loan
committee and which formed the basis of the $500,000 and
subsequent $750,000 credit extensions.
With respect to the third requirement, Bank One pointed out
at trial that the loan applications upon which Morrison relies
are incomplete because there are no written indicia of committee
approval. This court, however, has previously held that board
approval can be established by testimony regarding the board's
"custom and routine practice." Park Club, Inc. v. RTC, 967 F.2d
1053, 1057 (5th Cir. 1992). Baldwin testified that it was the
"custom and routine practice" of MBank to obtain loan committee
approval prior to the extension of credit under the circumstances
presented. Baldwin was certain that the transaction would not
have been effected in the manner it was absent both a completed
application in the form of the one introduced at trial and
committee approval. As noted above, he testified unequivocally
that the loan applications in evidence )) which clearly reflect
no guarantors )) were the ones upon which the loan was made and
that the credit was extended without any guaranty.5 Furthermore,
5
In this regard, the trial transcript of Baldwin's
16
the record contains other, committee-approved applications which
resulted in letters of credit cross-collateralized with the loan
at issue, and these applications again reflect that there were no
guarantors. All of this evidence supports the view that the
$750,000 loan at issue obtained the requisite approval, and Bank
One did not offer any countervailing evidence. Cf. Park Club,
967 F.2d at 1057 (finding an issue of fact as to board approval
where there was a dispute as to the normal procedures of the
board and as to whether those procedures were followed).
Consequently, the loan documents satisfy the third precondition.
Finally, with respect to the fourth § 1823(e) factor, the
evidence at trial was uncontroverted that these loan documents
were continuously in the official MBank financial records since
their inception. Accordingly, under the particular facts
presented, D'Oench, Duhme and § 1823(e) do not eliminate
Morrison's defense that he did not guarantee the obligation at
issue.
testimony reads as follows:
Q: So, if the loan was funded without [the guaranty],
it had to be funded as set out on the face of the
application, wouldn't it?
A: That's correct.
Q: And the face of the application contains what
reference to guaranties. . . . That there are none?
A: That's correct.
17
Moreover, and more fundamentally, in cases such as the one
at bar where the parties' understanding is unequivocally embodied
in the loan documents, "`[n]one of the policies that favor the
invocation of [§ 1823(e)] are present . . . because the terms of
the agreement that tend to diminish the rights of the FDIC appear
in writing on the face of the agreement that the FDIC seeks to
enforce.'" Laguarta, 939 F.2d at 1239 (quoting Riverside Park
Realty Co. v. FDIC, 465 F. Supp. 305, 312-13 (M.D. Tenn. 1978)).
Time and time again, we have stated that the purpose of the
D'Oench, Duhme doctrine is to safeguard the reliance of federal
regulators upon the records of the financial institution, to the
exclusion of any extraneous matters, so that they may evaluate
accurately the assets and liabilities of the institution.
Langley v. FDIC, 484 U.S. 86, 91-92 (1987); see also Griffin, 935
F.2d at 697. Essentially, because the regulators must perform
their analyses of an institution both quickly and accurately, the
allowance of defenses or claims against a facially unqualified
obligation based upon facts outside the document would eviscerate
the federal policy underlying the doctrine. Langley, 484 U.S. at
91-92; Bowen v. FDIC, 915 F.2d 1013, 1016 (5th Cir. 1990). That
purpose is not served here where all of the memoranda and
supporting loan documents consistently reflect that the $500,000
and superseding $750,000 obligations were not guaranteed. E.g.,
Waggoner, 999 F.2d at 828 (holding that D'Oench, Duhme did not
preclude borrower's reliance upon superseded notes clearly
reflecting that his liability was non-recourse in defending
18
against new note into which the superseded notes were "rolled
over" and consolidated which failed to reflect that liability
limitation).
Accordingly, under the circumstances of this case, we hold
that D'Oench, Duhme and § 1823(e) did not preclude the trial
court from asking the jury to consider whether the parties
intended that the $750,000 note be guaranteed by Morrison. The
integrated loan documents which evidence the parties' agreement
as to the $750,000 obligation satisfy the notoriety requirements
of D'Oench, Duhme and § 1823(e), resulting in a fact issue as to
whether the parties intended the guaranty to apply. The jury's
answer in the negative, which, as discussed above, is supported
by the record, should therefore be upheld, and the district court
erred in disregarding it.
4. Other Defenses: Res Judicata, Judicial Estoppel,
and Release
Morrison proffers additional bases for reversing the
district court's order, including res judicata, judicial
estoppel, and an allegedly erroneous jury instruction asking
whether Bank One )) rather than MBank )) released him from the
guaranty. We need not evaluate these issues because of our
disposition of the case on the basis of the jury question which
was properly asked and answered. See supra at section II.A.2.
B. Bank One's Cross-Appeal
Because we find that the guaranty was not in effect as to
the $750,000 note at issue and render judgment in favor of
Morrison on that point, we have effectively negated the existence
19
of the very agreement upon which Bank One depends to receive its
attorneys' fees; accordingly, we decline to modify the district
court's ruling preventing Bank One from receiving its fees.
III. Conclusion
For the foregoing reasons, we REVERSE the judgment of the
district court and RENDER judgment in favor of Morrison.
20