Opinion issued August 27, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00593-CV
BRADLEY E. COX, Appellant
V.
U.S. SPECIALTY INSURANCE COMPANY, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2022-48679
MEMORANDUM OPINION
Appellee U.S. Specialty Insurance Company filed suit against Appellant
Bradley E. Cox for his failure to provide collateral in connection with a series of indemnity agreements.1 Appellee moved for summary judgment on its claim and
the trial granted summary judgment entering a final judgment ordering Cox to pay
the requested collateral in accordance with the terms of the indemnity agreements.
In seventeen issues,2 Cox complains about the trial court’s order granting
Appellee’s motion for summary judgment generally arguing that Appellee failed to
satisfy its summary judgment burden, that genuine issues of material fact
precluded summary judgment, that his affirmative defenses precluded summary
judgment, and that the trial court erred in denying his motion to exclude Appellee’s
summary judgment evidence.
We affirm.
Indemnity Agreements and Supplement
Appellant Bradley Cox, who according to Appellee is a “seasoned oil and
gas businessman with over 20 years of experience,” owned and operated several
1
Appellee originally filed suit against Cox and seven companies in which,
according to Appellee, Cox has or had an ownership or operating interest. The
companies are EPL Oil & Gas, Inc. n/k/a EPL Oil & Gas, LLC; Energy XXI Gulf
Coast, Inc.; Cox Operating, LLC; Cox Oil & Gas, LLC; MLCJR, LLC; CEXXI,
Inc. n/k/a CEXXI, LLC; and Cox Oil Offshore, LLC. Appellee eventually nonsuited its claims against the companies without prejudice proceeding only against
Cox individually. Cox is the only appellant in this appeal.
2
Cox’s appellate brief identifies seventeen purported issues. Most of them are
multifarious and do not track the arguments in his brief. To the extent possible, we
address his arguments.
2
companies and affiliates involved in the oil and gas industry (“Companies”).3 As it
concerns this appeal, the Companies were involved in certain oil and gas
operations and they had obligations to plug and abandon (“P&A”) certain wells at
the end of their useful life.
To secure their decommissioning obligations, the Companies approached
U.S. Specialty Insurance Company (“Surety”) requesting issuance of performance
bonds in connection with their P&A obligations. Before issuing any performance
bonds, the Surety required the Companies to execute payment and indemnity
agreements providing indemnity to the Surety “in connection with any bond or
bonds executed or to be executed on behalf of any Principal and to induce the
Surety to execute or procure the execution of such bond(s).”
To that end, the Surety, the Companies, and Cox entered into a
comprehensive indemnity package consisting of several payment and indemnity
agreements executed by each of the Companies (“Indemnity Agreements”) and a
“Supplement No. 1” executed by Cox in favor of the Surety (“Supplement”), under
which he agreed to assume all obligations and become the “principal” under
3
Cox states that he never owned an interest in Energy Partners, Ltd. and disputes
whether he owned or operated the other named entities.
3
“Payment and Indemnity Agreement No. 1152—one of the Companies’ indemnity
agreements.4 5
According to the Surety, in addition to the “obligation to pay premiums,
exonerate the Surety from harm, reimburse the Surety for loss, and discharge any
liability, the Companies and Cox”—in consideration of the “execution or
procurement of the Bonds”—specifically agreed in the Indemnity Agreements and
Supplement “to provide collateral security as requested” by the Surety in its sole
discretion. The Surety alleged that it “bargained for a right to receive collateral for
any reason necessary to secure the [Companies’] obligations.”
Payment and Indemnity Agreement No. 1152 (“2017 Agreement”) contained
the following language:
3. Security. The Surety may at any time and from time to time
hereafter, in its sole and absolute discretion, require the Principals to
provide collateral, in form and amounts acceptable to the Surety (such
4
Payment and Indemnity Agreement No. 1152—dated February 16, 2017—was
executed by Energy XXI Gulf Coast, Inc. (“Energy XXI GC”) and EPL in favor of
the Surety. In the Supplement—dated October 1, 2020—Cox agreed to assume the
obligations under Payment and Indemnity Agreement No. 1152. During his
deposition, Cox testified that he intended to abide by the Supplement, which added
him as a personal indemnitor. (“If I signed something . . . then I intended to do
it.”).
5
The Surety described Cox as “a seasoned oil and gas businessman with over 20
years of experience” who “owned and operated multiple corporate entities reliant
on surety bonds for their operations[.]” Among other things, Cox testified that he
had been in the oil and gas business since 2004, had some familiarity with bonds
required for the plugging and abandonment of wells, and had “seen [his] fair share
of contracts.” He testified that indemnity agreements routinely are standard in
agreements for sureties with respect to bonds in the oil and gas business.
4
amounts not to exceed the aggregate penalty sum of all then-issued
Bonds) to secure the Principals’ obligations to the Surety hereunder
and/or to establish reserves to cover any actual or potential liability,
claim, suit, or judgment under any Bond. Immediately upon the
Surety’s demand therefor, each Principal shall execute such
documents and take such further action as may be necessary in order
to provide such collateral. Each Principal hereby grants to the Surety a
security interest in all money and other property now or hereafter
delivered by such Principal to the Surety, and all income (if any)
thereon.6
The 2017 Agreement was executed by Energy XXI GC and EPL in favor of the
Surety. Pursuant to the terms of the Supplement, Cox agreed to assume the
obligations under the 2017 Agreement. The Supplement—which “shall be attached
to and shall become a part of the Payment and Indemnity Agreement No. 1152”—
provides that
The undersigned individual [Cox] hereby agrees to be considered as
and shall become a Principal under the Agreement [No. 1152] but
only for indemnity and obligations not to exceed $5.7 million.
The individual signing below certifies he/she (a) has access to and has
read [Agreement No. 1152]; (b) is familiar with the financial
condition of the other Principals; (c) is named correctly below; and (d)
is freely executing this Supplement.
Cox signed the Supplement on October 1, 2020.
The Surety issued two performance bonds to secure the decommissioning
obligations of the Companies: one on behalf of Cox Operating, LLC in favor of the
State of Louisiana for $1.25 million (“Louisiana Bond”) and one on behalf of
6
Similar provisions were in the other Indemnity Agreements.
5
Energy Partners, Ltd.7 in favor of Apache Corp. for $5.7 million (“Apache Bond”).
According to the Surety, the bonds “have liability if the Principal[s] on the [b]onds
fail to honor” their P&A obligations. “The [b]onds are continuing obligations and
cannot be cancelled” by the Surety.
In 2022, pursuant to the terms of the Indemnity Agreements, the Surety
requested that the Companies and Cox—“provide collateral security” for the bonds
based on the Surety’s “expressed concerns to Cox about the overall risk profile of
the account.” The Surety alleged that the “internal reports of the account provided
to the Surety revealed that the bonded assets [the wells for which the Companies
had P&A obligations] showed a marked diminishing value and useful life . . . with
P&A liability approaching in the relative near term.” When the Companies and
Cox failed to provide the requested collateral, the Surety filed suit for breach of
contract asking the court to require the parties to provide the requested collateral.
The Surety eventually non-suited its claims against the Companies without
7
According to the Surety, Energy Partners, Ltd. was a direct subsidiary of EPL Oil
& Gas, Inc. n/k/a EPL Oil & Gas, LLC—the party to the 2017 Agreement. It is no
longer an independent operating entity. Cox avers he “never had anything to do”
with the company and that Energy Partners, Ltd. was “never a direct subsidiary of
EPL Oil & Gas, Inc. or EPL Oil & Gas, LLC.”
6
prejudice “based on bankruptcy-related issues” leaving only its claim against Cox
pending.8
Cox filed a general denial and pled—as an affirmative defense—that the
Indemnity Agreements were ambiguous, that they failed for lack or failure of
consideration, that the Surety’s interpretation of the agreements “would lead to an
absurd result,” and that the agreements were contracts of adhesion. Cox later filed
an amended answer asserting the same affirmative defenses but this time included
a verification supporting his lack or failure of consideration defense.
Summary Judgment Motion and Response9
The Surety filed a traditional motion for summary judgment, which it later
amended. The Surety argued that under the express terms of the Indemnity
Agreements and the Supplement, it was contractually entitled to a deposit of $5.7
million in collateral security from Cox, but Cox had refused to provide the
collateral despite request. The Surety argued Cox had “not contest[ed] his
indemnity obligations or dispute[d] the Surety’s entitlement to collateral” during
his two depositions. “Rather, Cox simply thought it was not suitable for the Surety
8
Two days before the Surety filed its amended summary judgment motion, the
Companies filed an emergency motion to convert their bankruptcy proceeding to a
Chapter 7 liquidation proceeding because they were “administratively insolvent.” 9
All references to the summary judgment motion refer to the Surety’s amended
motion for summary judgment.
7
to request collateral under the circumstances[.]”10 The Surety argued that it did not
need a reason to request collateral under the Indemnity Agreements because the
agreements gave it the right “at any time” and in “its sole and absolute discretion”
to “require the Principals to provide collateral, in form and amounts acceptable to
the Surety”—in the case of Cox, not to exceed the amount of $5.7 million. And it
argued that none of Cox’s affirmative defenses—ambiguity, lack or failure of
consideration, absurd result, or adhesion contracts—created a fact issue precluding
summary judgment. The Surety attached to its summary judgment motion the
affidavits of its underwriting manager and its senior bond claims attorney. It also
attached excerpts from Cox’s depositions.
In his response and supplemental response, Cox did not address any of his
pled affirmative defenses, other than to argue that there was a genuine issue of
material fact over “whether [he] was provided with legally sufficient consideration
for executing any contract.” He argued that the Surety had not plead or presented
evidence (1) establishing it had issued a valid bond in consideration for execution
of the Indemnity Agreements or related documents, or (2) establishing it “ever
provided any valid consideration” in connection with the execution of any
document requiring the payment of collateral. Cox attached his declaration and the
10
Cox stated in his deposition that there should not be a requirement to provide
collateral because he had addressed the P&A requirements and there was no claim
against the bond.
8
declarations of Craig Sanders and Jack Jamison to his summary judgment
responses.11
Cox raised new defenses in his summary judgment responses that were not
pled—the validity of the bonds, unclean hands, and impossibility. He also argued,
without elaboration, that fact issues precluded summary judgment.12 And he argued
that the Surety’s summary judgment evidence should be excluded because it had
not been properly disclosed by the Surety in response to his request for disclosures.
He filed a motion for “automatic” exclusion of the Surety’s summary judgment
motion pursuant to Rule of Civil Procedure 193.6, requesting that the trial court
exclude all evidence submitted by the Surety.
The Surety replied that Cox’s summary judgment response “raise[d] new
arguments centered on the validity of the bonds, the purported ‘unclean hands’ of
[the Surety], . . . and ‘factual and logical impossibility’ dealing with [the Surety’s]
11
Cox stated in his declaration that he signed the Supplement without seeing the
other Indemnity Agreements. He stated that with one exception, he did not recall
what he understood “was meant by the clause ‘indemnity and obligations’” when
he signed the Supplement. Craig Sanders, who had been Cox Operating L.L.C.’s
chief executive officer and manager of Cox Oil Offshore, L.L.C., discussed the
relationship of the Companies in his affidavit. Both Cox and Sanders testified in
their declarations that the Surety had not provided consideration to Cox in
exchange for his execution of the Supplement. Jack Jamison—Cox’s counsel—
provided an affidavit in support of Cox’s evidentiary objections. 12
Cox argued without any explanation that there were genuine issues of material fact
precluding summary judgment. The Surety argued that all but one of the
arguments presented a question of law, not fact, and the remaining one (whether
Cox could perform any obligation for which the trial court granted specific
performance) was a collection issue, not a basis for “precluding liability.”
9
reliance on the various indemnity agreements.” The Surety argued that the
defenses could not be considered because Cox had not pled them in any of his
three answers and the pleading deadline had since passed.13 The Surety also argued
that Cox’s attempt to have the court impose “death penalty” sanctions seeking the
exclusion of all summary judgment evidence was improper given that Cox had not
requested a hearing on his filed motion to exclude the evidence. In addition, the
evidentiary objections did not address “the validity of the documents before the
Court and the issue of whether Cox ha[d] an obligation to provide collateral.”
The trial court conducted a hearing and granted the Surety’s motion for
summary judgment, ordering that Cox provide the Surety $5.7 million in collateral.
This appeal ensued.
Standard of Review and Applicable Law
We review a trial court’s ruling on a motion for summary judgment de novo.
Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018);
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). The party moving for traditional summary judgment has the burden to
establish that no genuine issue of material fact exists and that it is entitled to
13
The Surety argued that even if Cox’s new arguments were not affirmative
defenses, they were challenges to “condition precedents” which Cox had not
properly raised. In its pleadings, the Surety pled that all conditions precedent had
been performed or had occurred and Cox did not specifically deny the allegations
as required by Rule of Civil Procedure 54. See infra, Section B.
10
judgment as a matter of law. Id. (citing TEX. R. CIV. P. 166a(c)). In our review,
“we take as true all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor.” Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citations omitted).
We give contract terms their “plain, ordinary, and generally accepted
meaning” unless the contract indicates that the terms were used in “a technical or
different sense.” Lopez v. Muñoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864
(Tex. 2000). If a contract is worded such that it can be given a certain or definite
legal meaning or interpretation, then it is not ambiguous, and the court will
construe it as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983)
(citations omitted). The court enforces unambiguous contracts “as written.” Lopez,
22 S.W.3d at 862.14
Indemnity agreements are construed pursuant to the rules of contract
interpretation “in order to give effect to the parties’ intent as expressed in the
agreement.” Indus. Specialists, LLC v. Blanchard Refin. Co. LLC, ___ S.W.3d ___,
No. 01-23-00704-CV, 2025 WL 3712203, at *4 (Tex. App.—Houston [1st Dist.]
Dec. 23, 2025, pet. filed) (citing Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d
417, 423 (Tex. 2000)).
14
See generally David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008)
(“Only where a contract is ambiguous may a court consider the parties’
interpretation[.]”).
11
Multifarious Issues
“Multifarious issues bring forth combined complaints based on more than
one legal theory within a single issue.” Walker v. Walker, 642 S.W.3d 196, 212
(Tex. App.—El Paso 2021, no pet.) (internal citation omitted). While “we may
consider multifarious issues when we can determine, with reasonable certainty, the
alleged error about which the complaint is made,” we “may disregard any
assignment of error that is multifarious.” Id.; Rich v. Olah, 274 S.W.3d 878, 885
(Tex. App.—Dallas 2008, no pet.).
In his “Issues Presented,” Cox identifies seventeen appellate points spanning
twelve pages challenging the trial court’s summary judgment in favor of the
Surety. Cox’s issues are difficult to understand at times, and many of them
encompass several issues within each alleged point of error. Most of the points are
multifarious and do not track the arguments in Cox’s appellate brief.
Liberally construing Cox’s brief, the issues we can ascertain “with
reasonably certainty” can be distilled into three categories, and we analyze each
category below: (1) whether the trial court erred in granting summary judgment in
favor of the Surety based on the terms of the Indemnity Agreements and
Supplement—that is, whether the Surety established it had a legal entitlement to
collateral; (2) whether Cox established any defenses to liability, and (3) whether
12
the trial court abused its discretion in declining to strike the Surety’s summary
judgment evidence.
A. The Surety Established its Entitlement to Collateral
As a preliminary matter, Cox argues that summary judgment was improper
because the Surety’s motion failed to comply with Rule of Civil Procedure
166a(c). He argues that the motion did not identify any essential element of the
Surety’s claim or “characterize any fact as constituting an essential element thereof
or otherwise “material”; identify any fact about which it contended there was no
genuine issue; assert the summary judgment evidence showed there was no
genuine issue as to any specified fact; identify any issue on which it contended it
was entitled to judgment as a matter of law; or otherwise “state the specific
grounds” for the summary judgment. We reject each of these arguments.
To prevail on its breach of contract claim, the Surety had to establish that
(1) a valid contract existed, (2) it performed under the contract, (3) Cox breached
the contract, and (4) the Surety suffered damages as a result. USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018). Surety’s summary judgment
motion states:
The Surety extended credit in the form of nearly $7 million in bonding
for oil and gas operations tied to the businesses owned and operated
by Cox . . . Among the promises made by Cox and his corporate
entities was a contractual obligation [under the Indemnity
Agreements] to deposit collateral as requested by the Surety in its
discretion . . . .
13
Cox contractually ‘bound’ himself to ‘provide collateral in a form and
amounts acceptable to the Surety.’ The Indemnity Agreements—and
specifically the provisions requiring collateral—are unambiguous.
The Surety is entitled to collateral ‘at any time and . . . in its sole and
absolute discretion.’ It is further undisputed that the Surety requested
that collateral be provided, and Cox refused. Cox was notified that his
refusal to provide collateral constituted a default of the Indemnity
Agreements. By failing to collateralize the Surety, Cox breached the
Indemnity Agreements. . . . [and] Cox has no valid defense that would
otherwise preclude his obligation to collateralize the Surety and
reimburse it for its losses to date.
This sufficiently identifies the specific grounds the Surety argued entitled it to
judgment as a matter of law.
The summary judgment motion states that (1) a valid agreement exists—the
Indemnity Agreements and Supplement; (2) pursuant to the Supplement, Cox
agreed to become a principal under the 2017 Indemnity Agreement; (3) the Surety
performed under the Indemnity Agreements, (4) the Surety requested collateral
from Cox pursuant to the terms of the Indemnity Agreements; (5) Cox failed to
provide the collateral despite request; and (6) the Surety is entitled to relief as a
result. The motion thus sufficiently articulates the essential elements of the
Surety’s claim and allowed Cox to determine the nature of the issues. We overrule
Cox’s issues on this point.
Cox also argues that the Surety did not perform the “bargained-for act under
the Indemnity Agreements necessary to effectuate [] acceptance of any offer.” That
14
is, Cox contends there was no performance by the Surety because there was no
evidence that any bonds were issued.15 To the contrary, the Surety produced the
Indemnity Agreements and Supplement and produced evidence that it issued the
Louisiana and Apache bonds. The Surety attached to its summary judgment motion
the affidavit of David McCluskey—an underwriting manager for the Surety—who
testified that the Surety issued two performance bonds in connection with the
Companies’ decommissioning obligations related to the oil and gas business, and
that in exchange, the Companies and Cox agreed to provide the Surety with
indemnity, as set forth in the Indemnity Agreement and Supplement, copies of
which were attached to the affidavit. McCluskey explained that under the
Indemnity Agreements, the Companies and Cox—via the Supplement—agreed to
15
Cox also argues that the bonds are invalid because (1) one of the Indemnity
Agreements was not signed by the principal—Cox Operating, LLC—and (2) the
2017 Agreement was signed for the Surety on behalf of an agent who exceeded his
authority. The Surety did not seek to enforce the Cox Operating, LLC Indemnity
Agreement against Cox—it sought to enforce the Supplement pursuant to which
he assumed obligations under the 2017 Agreement, which Cox does not dispute
was fully executed. In any event, the arguments lack legal merit. See Shade v.
Anderson, 36 S.W.2d 1041, 1042 (Tex. Civ. App.—Fort Worth 1931) (“[I]f the
principal was bound by the bond, then the sureties could not escape liability
merely on the ground that the bond was not signed by the principal.”) (citation
omitted); Tolbert v. Standard Acc. Ins. Co., 218 S.W.2d 488, 490 (Tex. Civ.
App.—Galveston 1949), rev’d on other grounds, 148 Tex. 235, 223 S.W.2d 617
(1949) (same); Farmer v. Cassity, 264 S.W.2d 145, 148 (Tex. App.—Beaumont
1953, no writ) (“[A] surety executing [] a bond under these circumstances would
be estopped to deny the authority of its agent if it accepted the benefits of the
bond.”); see also 68 TEX. JUR. 3d Suretyship and Guaranty § 156 (2026) (“Where
the facts are sufficient to show the existence of an agency relationship, authorized
acts of the agent of a surety company with respect to the terms of the bond and
changes therein are deemed to be the acts of the company.”).
15
“immediately deposit collateral as requested by the Surety in its sole discretion.”
The Surety demanded the collateral and Cox refused to provide it. The Surety
attached the letters demanding collateral from Cox to McCluskey’s affidavit. The
Surety also produced the affidavit of Joseph Rosas—a senior bond claims attorney
for the Surety—who averred that the Surety issued Louisiana Bond for $1.25
million and the Apache Bond for $5.7 million, and that “[b]ased on the existence
of the claims against the Bonds, the Surety has suffered losses under the Bonds of
at least $146,438.19”—representing the amount of “attorney’s fees incurred by the
Surety.” Cox testified in his deposition that he had no reason to dispute the
issuance of the bonds. The Surety thus produced undisputed evidence that it
performed under the Indemnity Agreements.
Cox argues there was no consideration in connection with the Supplement,
pursuant to which again he assumed the obligations of the 2017 Agreement.16 The
Surety, however, explained that the Supplement was supported by consideration
because Cox “reasonably expected his promise to induce action or forbearance of a
substantial character on the part of the Surety”—that is, that Cox executed the
Supplement to avoid the Surety from issuing a collateral cash call on the
underlying Companies’ obligations. Cox appeared to concede this at his deposition
16
Cox’s counsel said during the summary judgment hearing that “the primary
defense in the case is there’s no consideration” and that “[t]he whole case is about
no consideration.”
16
when he testified that the Surety “demanded that we put up a personal guarantee . .
. so that they wouldn’t do a full cash collateral call on us [the Companies].”
“Surrendering a legal right represents valid consideration.” Ulico Cas. Co. v. Allied
Pilots Ass’n, 262 S.W.3d 773, 791 (Tex. 2008) (citing N. Nat. Gas Co. v. Conoco,
Inc., 986 S.W.2d 603, 607 (Tex. 1998)); see also generally Alamo Lumber Co. v.
Gold, 661 S.W.2d 926, 932 (Tex. 1983) (“[C]onsideration may be found in an
agreement, by the lender, to forbear from foreclosing upon the borrower’s
collateral[.]”) (citing cases); Dyer v. Metallic Bldg. Co., 410 S.W.2d 56, 58–59
(Tex. App.—Tyler 1966, no writ) (holding promise to forbear from asserting
mechanic’s and materialman’s liens for ninety days constituted valid consideration
for promissory note).
We overrule Cox’s issues concerning the validity of the Indemnity
Agreement and the Supplement and the Surety’s entitlement to collateral under the
terms of the agreements.
B. Cox’s Defenses to Liability
In his answer, Cox asserted four affirmative defenses to the Surety’s claim
for collateral: (1) ambiguity, (2) lack or failure of consideration, (3) that the
Surety’s interpretation of the Indemnity Agreements “would lead to an absurd
result,” and (4) that the Indemnity Agreements are contracts of adhesion. And in
17
his summary judgment response and amended response, he argued unclean hands,
validity of the bonds, and “factual and logical impossibility.”17
The only defense referenced in Cox’s appellate brief is lack of consideration.
Because Cox does not argue the applicability of any of his other pled affirmative
defenses—and indeed, did not argue any in his summary judgment response—we
need not address them. See Yilaam Hous., LLC v. Vivaldi Group, LLC, No. 14-25-00384-CV, 2026 WL 1955924, at *3 (Tex. App.—Houston [14th Dist.] July 7,
2026, no pet. h.) (mem. op.) (“The [appellant] abandoned its affirmative defenses
by not asserting them in its response to the [appellee’s] traditional summary
judgment motion[.]”). We equally need not address the additional unpled defenses
Cox asserted in his summary judgment responses because he does not raise them in
his appellate brief. See Sibley v. Eckhardt, No. 01-11-00117-CV, 2012 WL
2928499, at *3 (Tex. App.—Houston [1st Dist.] July 19, 2012, no pet.) (mem. op.)
(“[W]e may not reverse a judgment for a reason not raised on appeal.”) (citing
Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.—
Houston [1st Dist.] 1994, writ denied)).
17
None of these defenses were pled in his answers, and during the summary
judgment hearing, the Surety objected to those defenses—as well as the invocation
of the UCC as a defense. See Proctor v. White, 172 S.W.3d 649, 652 (Tex. App.—
Eastland 2005, no pet.) (“[W]hen a non-movant relies on an unpleaded affirmative
defense or an unpleaded matter constituting a confession and avoidance to defeat a
motion for summary judgment, the movant must object in order to avoid trying the
issue by consent.”). See supra, note 13.
18
With respect to the only pled defense Cox raised in his summary judgment
responses and in his appellate brief—lack of consideration—we have already
concluded that the Surety established consideration for the Indemnity Agreements
and Supplement. We thus overrule Cox’s issues with respect to that defense.
Cox next argues that the statement in the Supplement that “[t]he undersigned
individual hereby agrees to be considered as and shall become a Principal under
the Agreement but only for indemnity and obligations not to exceed $5.7 million”
is “not sufficiently clear, certain, and definite to have the operative legal effect of
forming any enforceable contract” between the Surety and Cox. This is an
ambiguity argument, and Cox waived that defense by failing to argue it in response
to the Surety’s summary judgment motion. See Brown v. Alcatel USA, Inc., No. 05-02-01678-CV, 2004 WL 1434521, at *2 (Tex. App.—Dallas June 28, 2004, pet.
denied) (mem. op.) (argument that contract was ambiguous was waived because
appellant failed to raise it in summary judgment response).
We similarly reject Cox’s additional arguments that (1) the summary
judgment evidence did not establish there was no genuine issue of fact as to a
meeting of the minds between the Surety and Cox, and (2) the agreements were
based on an illusory promise.18 Those arguments were not raised in the summary
18
The Surety argued in its summary judgment that Cox violated the indemnity
agreements by failing to provide collateral as requested. The Surety argued that
Cox had “not contest[ed] his indemnity obligations or dispute[d] the Surety’s
19
judgment response. See Gutierrez v. Elizondo, 139 S.W.3d 768, 773 (Tex. App.—
Corpus Christi–Edinburg 2004, no pet.) (holding objection to contract for failure to
reflect meeting of minds as to parties’ legal obligations was waived on appeal
when not raised at trial) (citing TEX. R. APP. P. 33.1); Doxey v. CRC-Evans
Pipeline Int’l, Inc., No. 14-14-01009-CV, 2016 WL 6652727, at *4 (Tex. App.—
Houston [14th Dist.] Nov. 10, 2016, no pet.) (mem. op.) (holding appellate point
on illusory promise waived because not raised in trial court).
Cox next argues at length that summary judgment was improper because the
agreements were subject to Article 9 of the Uniform Commercial Code (“UCC”)
and because there was a lack of mutuality in the 2017 Agreement. The Surety
argues that both arguments are affirmative defenses which Cox did not—as
required—plead in his answer.
Rule of Civil Procedure 94 provides that “a party shall set forth affirmatively
. . . any [] matter constituting an avoidance or affirmative defense.” TEX. R. CIV. P.
94. Lack of mutuality is an affirmative defense that must be specifically pled and
entitlement to collateral” during his depositions but, rather, “thought it was not
suitable for the Surety to request collateral under the circumstances[.]” The Surety
argued that under the terms of the Indemnity Agreement, it did not need a reason
to request collateral because it had the unilateral contractual right to demand
collateral “in its sole and absolute discretion” to “secure the Principal’s obligations
to the Surety.” But that in any event, it had provided one because it had expressed
to Cox and the Companies its concerns “about the overall risk profile of the
account.” The Surety argued that when it first requested collateral from Cox given
its concerns, Cox stated there was no risk but soon after, the “Companies were
plunged into bankruptcy.”
20
established. See Dynamic Publ’g. & Distrib. L.L.C. v. Unitec Indus. Ctr. Prop.
Owners Ass’n, Inc., 167 S.W.3d 341, 349 (Tex. App.—San Antonio 2005, no pet.)
(noting lack of mutuality is affirmative defense that “must be specifically pled and
proved”) (citing TEX. R. CIV. P. 94). Cox did not plead lack of mutuality, nor did
he establish that the defense was tried by consent. On the contrary, the Surety
objected to such a defense on the basis it was not pled. We thus overrule Cox’s
issues on this point.
Cox also did not plead his UCC defense. Assuming, without deciding that
Cox’s UCC argument did not have to be pled and that the defense was properly
raised in response to the Surety’s summary judgment response, we overrule his
issue. In his summary judgment response, Cox argued without elaboration that
there were “genuine issues of material fact as to the “[w]hether Mr. Cox ever
granted a security interest in any money or other property to [the Surety], and, if
so, whether [the Surety] is actually entitled to possession of such collateral, as
determined by Article 9 of the Texas Business & Commerce Code.” In his
appellate brief, Cox argues, without more, that the trial court “misconstrued” the
Indemnity Agreements because the collateral obligations under Section 3 of the
agreements constitute security agreements that are governed by Chapter 9 of the
Texas Business & Commerce Code and do not impose “any obligation upon any
‘Principal’ thereunder to otherwise deliver possession of any sum of money to [the
21
Surety]” or entitle the Surety “to judgment ordering a ‘Principal” to make such
payment” because “collateral”—by definition—is subject to a security interest.
Cox does not provide any citations in support of his arguments, nor does he
provide further meaningful analysis. See Fredonia State Bank v. Gen. Am. Life Ins.
Co., 881 S.W.2d 279, 284 (Tex. 1994) (discussing “long-standing rule” that
inadequate briefing waives issue on appeal); see also Ross v. St. Luke’s Episcopal
Hosp., 462 S.W.3d 496, 500 (Tex. 2015) (“Failure to provide citations or argument
and analysis as to an appellate issue may waive it.”) (citing ERI Consulting Eng’rs,
Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010). Even if we consider his
argument, we conclude it lacks merit.
Section 3 of the 2017 Agreement provides:
The Surety may at any time and from time to time hereafter, in its sole
and absolute discretion, require the Principals to provide collateral, in
form and amounts acceptable to the Surety (such amounts not to
exceed the aggregate penalty sum of all then-issued Bonds) to secure
the Principals’ obligations to the Surety hereunder and/or to establish
reserves to cover any actual or potential liability, claim, suit, or
judgment under any Bond. Immediately upon the Surety’s demand
therefor, each Principal shall execute such documents and take such
further action as may be necessary in order to provide such collateral.
Each Principal hereby grants to the Surety a security interest in all
money and other property now or hereafter delivered by such
Principal to the Surety, and all income (if any) thereon.19
19
Similar provisions were in the other Indemnity Agreements.
22
Cox argues that Section 3 of the 2017 Agreement, which is incorporated into the
Supplement, is a security agreement under Section 9.102(a)(74) of UCC and not a
contractual obligation to provide collateral upon demand. We disagree.
As the Surety correctly notes, Section 3 imposes a contractual obligation to
deliver collateral upon demand by the Surety, who can request such collateral “at
any time” in its “sole and absolute discretion” in “form and amounts acceptable to
the Surety (such amounts not to exceed the aggregate penalty sum of all thenissued Bonds).” It does not impose a duty to pledge an “immediate lien on specific
property.” Indeed, in his deposition, Cox understood this provision to be a
“collateral request.”
The language in Section 3 referencing a “security interest” does not change
our analysis. That language merely provides that once the “Principal” complies
with its contractual obligation to provide collateral upon demand, each “Principal”
is required to “grant[]to the Surety a security interest in all money and other
property now or hereafter delivered by such Principal to the Surety.” (Emphasis
added). As the Surety argues, a security interest was never granted here because
such an interest “activates only upon delivery [of collateral], which never occurred
due to Cox’s refusal.” We overrule Cox’s point on this issue.
23
Finally, we address Cox’s arguments that the bonds are invalid or null and
void and thus the Supplement and 2017 Agreement cannot be enforced.20 Cox
argues that the Surety cannot make a collateral demand unless and until the
underlying performance bond is in force. Thus, he argues, the issuance of the bond
constitutes a condition precedent to the demand for collateral.
Rule of Civil Procedure 54 provides that
[i]n pleading the performance or occurrence of conditions precedent,
it shall be sufficient to aver generally that all conditions precedent
have been performed or have occurred. When such performances or
occurrences have been so plead, the party so pleading same shall be
required to prove only such of them as are specifically denied by the
opposite party.
TEX. R. CIV. P. 54. In its pleadings, the Surety pled that all conditions precedent to
recovery from Cox “ha[d] occurred or ha[d] been performed.” Cox did not
specifically deny that any conditions precedent to the Surety’s claim had occurred.
The Surety was thus not required—in moving for summary judgment—to establish
the performance or occurrence of conditions precedent to its claim. See Cmty. Bank
& Tr., S.S.B. v. Fleck, 107 S.W.3d 541, 542 (Tex. 2002) (“Absent a specific denial,
[plaintiff] was relieved of the burden of proving that conditions precedent to
recovery had been met.”); Granbury Marina Hotel, L.P. v. Berkel & Co.
Contractors, Inc., 473 S.W.3d 834, 840 (Tex. App.—El Paso 2015, no pet.)
(“Because Hilton did not specifically deny the occurrence of this condition 20
See supra, note 15 (rejecting Cox’s argument that bonds were void).
24
precedent, Berkel did not have to prove at trial that the condition precedent was
satisfied, had been performed, or had occurred.”).
And to the extent that Cox argues that the failure to meet a condition
precedent is the failure to perform under the Indemnity Agreements, we have
already concluded that the Surety produced undisputed evidence it performed by
issuing the performance bonds. We overrule Cox’s issues pertaining to his
defenses to liability.
C. Cox’s Evidentiary Challenges
Cox argues that the trial court abused its discretion in denying its motion to
exclude and failing to “exclude all testimonial evidence set forth in paragraph 1,
footnote 2, and paragraphs 7, 9-11, 13-15, 17, and 19” of McCluskey’s affidavit.
He avers that McCluskey was designated as an expert even though the Surety
failed to disclose the general substance of his mental impressions and opinions and
a brief summary of the basis for them; all documents and things provided to,
reviewed by, and prepared by or for him; his CV; any publications he wrote in the
past ten years; a list of other cases he had testified in as an expert in the past four
years; and information regarding his compensation for his testimony or study. See
TEX. R. CIV. P. 195.5(a).
The Surety argues that “all of the operative documents that Cox [complains
about on appeal] were attached to the Original Petition and were litigated heavily
25
over two years of the case (including a request for injunctive relief and companion
hearing with the Court, two depositions of Cox, and an earlier MSJ that was
withdrawn when Cox amended his answer at the 11th hour to allege new
defenses).” (Emphasis in original.) It argues that Cox was thus not unfairly
surprised or unduly prejudiced and did not argue that he was.21 “Rather, he simply
made the conclusory leap from the timing of the service of formal disclosures to a
complete exclusion of evidence.”
Rule of Civil Procedure 193.6 governs the consequences for failing to timely
respond to discovery requests, including requests for disclosures. TEX. R. CIV. P.
193.6(a). It provides that a party who seeks to introduce evidence not previously
disclosed has the burden to establish good cause or lack of unfair surprise or unfair
prejudice. Id. 193.6(a), (b). We review a trial court’s decision to admit or exclude
evidence under Rule 193.6(a) for abuse of discretion. Jackson v. Takara, 675
S.W.3d 1, 6 (Tex. 2023).
Although there was no express ruling on Cox’s motion to exclude, we
conclude (1) the trial court took up the motion during the hearing on Cox’s motion
for summary judgment, and (2) implicitly denied the motion. See Lopez v. La
21
Indeed, Cox acknowledges that paragraphs five through sixteen of McCluskey’s
affidavit repeat verbatim the allegations made in the original petition. And, as the
Surety notes, the only documents attached to McCluskey’s affidavit are copies of
the Indemnity Agreements, the Supplement, the performance bonds, and the
requests for collateral the Surety sent to Cox.
26
Madeleine of Tex., Inc., 200 S.W.3d 854, 862 (Tex. App.—Dallas 2006, no pet.)
(concluding trial court impliedly found failure to timely supplement discovery
response did not unfairly surprise or unfairly prejudice opposing party); Bellino v.
Comm’n for Lawyer Discipline, 124 S.W.3d 380, 384 (Tex. App.—Dallas 2003,
pet. denied) (recognizing implicit finding of good cause and lack of unfair surprise
in late disclosure of witness when trial court allowed witness to testify). Indeed,
counsel for the Surety asked during the summary judgment hearing whether he
should “address any of the evidentiary issues that are going to be taken up on [the]
motion to exclude,” and the trial court judge answered in the affirmative.
During the summary judgment hearing, the Surety’s counsel argued that any
argument “that the [late] initial disclosures somehow prejudiced or surprised Cox
is an impossibility.” He argued the Surety had
met its burden of showing a lack of prejudice and a lack of surprise
through the record, through the declaration that provides the history of
it . . . . You got to look at the whole history of the case. You don’t just
look at the last discovery violation. . . . [I]t is absolutely false and the
whole history of the case reflects that it’s false to say that any of that
information in the disclosures was not disclosed multiple times, over
and over and over and over and over again.
He further argued that
[Cox] cannot, with a straight face, argue that [he] didn’t know what
this case was about. We had a contested injunction hearing. There was
a separate motion to stay. There was a motion for summary judgment.
There were multiple depositions. There was an amended motion for
27
summary judgment. There was expert designations. There was written
discovery back and forth.22
Cox did not argue otherwise. Indeed, during the summary judgment hearing when
the motion to exclude was discussed, counsel for Cox stated, “I will admit to you
freely that [McCluskey is] saying what is in the petition, mostly.”
To determine “whether a party has adequately shown a lack of unfair
surprise or unfair prejudice from its discovery violation, a trial judge may consider
whether the other parties had enough information to reasonably assess settlement,
to avoid trial by ambush, and to prepare rebuttal evidence.” Monzingo v. Flories,
No. 05-22-00719-CV, 2023 WL 6632799, at *3 (Tex. App.—Dallas Oct. 12, 2023,
pet. denied) (mem. op.). “A finding of good cause or lack of unfair surprise or
unfair prejudice could be supported by counsel’s uncontested representations to the
trial judge about the state of discovery in the case.” Id. (citation omitted).
As noted, none of McCluskey’s testimony advances facts or opinions that
are not in the Surety’s original petition. Thus, the trial court did not abuse its
discretion in denying Cox’s motion to exclude the Surety’s summary judgment
evidence. See generally In re A.K.B., No. 04-23-00154-CV, 2024 WL 3056663, at
*24 (Tex. App.—San Antonio June 20, 2024, pet. denied) (mem. op.) (noting that
experts’ testimony during temporary orders hearing “preview[ed] much of the
testimony they would later provide at trial” and thus trial court (1) could have 22
The Surety’s expert designation is not in the appellate record.
28
properly found appellant “was able to assess settlement, avoid trial by ambush, and
prepare rebuttal” to expert testimony, and (2) did not abuse discretion by
concluding burden to establish lack of unfair surprise or unfair prejudice was
satisfied despite late disclosures).23
We overrule Cox’s issues regarding the admission of the Surety’s summary
judgment evidence.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney.
23
The A.K.B. court also noted that the experts had been designated in interrogatory
answers more than a year before trial. In re A.K.B., No. 04-23-00154-CV, 2024
WL 3056663, at *24 (Tex. App.—San Antonio June 20, 2024, pet. denied) (mem.
op.).
29