Basic Capital Management, Inc. v. Dynex Commercial, Inc

348 S.W.3d 894 (2011)

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Nature of the Case

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Facts

P managed publicly traded real estate investment trusts in which it also owned stock, including American Realty Trust, Inc. ('ART') and Transcontinental Realty Investors, Inc. ('TCI'). D agreed to loan three companies owned by TCI, $37 million to acquire and rehabilitate three commercial buildings - one each - in New Orleans if P would propose other acceptable SABREs to borrow $160 million over a two-year period. The agreements were eventually formalized in letters. The $160 million commitment was between P and D. It also stated that each borrower would be a 'Single Asset, Bankruptcy Remote Borrowing Entity acceptable to Lender.' The SABREs would be owned by ART or TCI. D stressed, 'the two transactions [were] intertwined.' D loaned TCI's three SABREs the money to acquire the New Orleans buildings and funded a $6 million loan presented by P under the Commitment. But then market interest rates rose, making the terms of the Commitment unfavorable to D. D refused to provide further funding for improvements to the New Orleans buildings or to make any other loans under the Commitment. P sued D for breach of the Commitment. ART and TCI alleged that they 'were intended beneficiaries of the $160 million Commitment because their wholly owned subsidiaries would own the properties and borrow the funds advanced by D under the commitment.' D claimed ART and TCI 'lack[ed] standing to assert claims under the alleged $160 million loan commitment'. The trial court issued an order in limine forbidding reference to the standing arguments before the jury. The jury found that D breached the Commitment, resulting in $256,233.25 lost profits for Basic, $25,367,090 lost profits for ART and TCI, and $2,183,287 increased costs in obtaining alternate financing for ART and TCI. The jury also found that TCI lost $252,577 in profits as a result of D's breach of the New Orleans Agreement. D moved for judgment notwithstanding the verdict. The trial court granted the motion and rendered a take-nothing judgment for D. Ps appealed and the court of appeals found that ART and TCI were not third-party beneficiaries of the Commitment, nor TCI of the New Orleans Agreement. The Supreme Court of Texas granted review.