Thomas A. "Kip" Hyde and Robert L. Winspear v. GACP Finance Co., LLC

Reversed and Rendered and Opinion Filed October 24, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00873-CV

THOMAS A. “KIP” HYDE AND ROBERT L. WINSPEAR, Appellants
V.
GACP FINANCE CO., LLC, Appellee

On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-02210

MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Wright1
Opinion by Justice Nowell
Appellee GACP Finance Co., LLC sued appellants Thomas A. “Kip” Hyde

and Robert L. Winspear for fraud. A jury awarded GACP $1,546,422.00 in actual

damages and $280,000 in punitive damages. Appellants raise four issues on appeal:

whether the trial court erred by (1) allowing GACP to amend its petition during trial;

(2) finding GACP did not waive its right to sue appellants; (3) submitting jury

instructions that incorrectly stated the elements of fraud and the measure of damages;

1
The Hon. Carolyn Wright, Justice, Assigned
and (4) awarding damages to GACP. We reverse the trial court’s judgment and

render judgment that GACP take nothing on its claims against Winspear and Hyde.

Background

The underlying facts of this case are well-known to the parties; therefore, we

provide only those facts relevant for disposition of the appeal. See TEX. R. APP. P.

47.1. GACP is a specialty finance lender that originates and underwrites senior

secured loans to asset-rich companies that support the ability of middle market

companies to grow, refinance, recapitalize, and restructure. On or about November

2, 2016, GACP entered into a Loan and Security Agreement (the Credit Agreement)

with Excel Corporation, a credit card processing company. Hyde was Excel’s CEO

and Winspear was the CFO.

The Credit Agreement defined the debts that were subordinated to GACP’s

loans (“Subordinated Indebtedness”), which included, in relevant part, “any

indebtedness, liability or obligation in respect of any deferred compensation

arrangement with any present, past or future employees or directors of the Borrower

(or its predecessor) or any of the Subsidiaries or Affiliates.” It also provided that no

Loan Party “shall permit any of its Subsidiaries to” make any payment with respect

to any of the “Subordinated Indebtedness . . . without the prior written consent of the

Agent whether or not any express subordination arrangement exists in respect

thereof.” Hyde and Winspear knew the terms and covenants of the Credit

Agreement because they negotiated and recommended the agreement to Excel’s

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board of directors for approval. Based on their recommendations, the board of

directors approved the Credit Agreement with GACP.

The three parties to the Credit Agreement were Excel as the borrower, GACP

as the “administrative agent and collateral agent,” and GACP I, L.P. (GACP Lender)

as the lender. GACP Lender loaned Excel $13.5 million. Excel gave GACP a

security interest in its assets, and among other obligations, Excel agreed to maintain

a certain liquidity as of the last date of every month. If Excel violated a loan

covenant, GACP Lender was entitled to receive an additional monthly interest

payment of 5% as a penalty rate.

When the parties entered into the Credit Agreement, Hyde and Winspear had

claims against Excel for alleged deferred compensation. Despite the Credit

Agreement requiring prior written consent before such “Subordinated Indebtedness”

could be paid, Hyde and Winspear paid themselves $750,000 ($375,000 a piece) in

deferred compensation without GACP’s prior consent. From GACP’s perspective,

“within days of GACP funding $13.5 million under the Credit Agreement,

Defendants Hyde and Winspear had taken $750,000 of GACP’s money for their

personal benefit, through a secret transfer, without any attempt to first ask GACP’s

permission.”

After Hyde and Winspear paid themselves the deferred compensation, Excel

had less than the $2 million in minimum liquidity required by the Credit Agreement.

In December 2016, GACP sent Excel a written Notice of Event of Default and

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Reservation of Rights based on Excel’s breach of section 5.23(n) of the Loan

Agreement, which required prior written consent for payments of “Subordinated

Indebtedness.”

On January 26, 2017, GACP and Excel agreed to the First Amendment and

Waiver to Loan Security Agreement (the First Amendment) in which Excel, among

other things, assumed certain obligations regarding a revised minimum liquidity. If

Excel met the conditions of the First Amendment, then GACP would waive and

release Excel’s breach of section 5.23(n) for the $750,000 in deferred compensation.

Excel did not satisfy its obligations under the First Amendment.

On May 5, 2017, GACP sent written notice to Excel demanding repayment of

the loan. Instead of foreclosing on Excel, GACP entered into a forbearance

agreement allowing for the sale of Excel’s assets through an auction. GACP alleged

the sale caused it to incur a multimillion-dollar loss, including $2.1 million for

Hyde’s and Winspear’s misconduct and $600,000 in transaction costs. GACP

subsequently filed suit against Hyde and Winspear for fraud.

A jury found Hyde and Winspear committed fraud against GACP and

awarded GACP $1,211,520.00 in loss of benefit-of-the-bargain damages and

$334,902.00 in out-of-pocket expenses. It further awarded $140,000 in punitive

damages against Hyde and $140,000 in punitive damages against Winspear. The

trial court signed the final judgment on June 7, 2023. The trial court denied

appellants’ post-judgment motions, and this appeal followed.

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Notice of Pleadings

In their first issue, appellants argue the trial court erred by allowing GACP to

shift trial strategy on the third day of trial and argue for the first time that it was not

seeking its own damages, but instead was seeking damages as agent on behalf of

GACP Lender. Appellants contend, in part, that the trial court’s ruling dispensed

with the fair notice of pleadings doctrine thereby shifting the burden to them to

engage in discovery to determine the meaning of GACP’s second amended petition

and which party was seeking damages. GACP maintains appellants knew it was

seeking damages as agent on behalf of GACP Lender from the inception of the

lawsuit, and to the extent it was unclear, appellants should have filed a special

exception. GACP further contends appellants are raising a capacity issue, which is

not preserved.

In its second amended petition, GACP repeatedly alleged “GACP Finance

Co., LLC (GACP)” was the plaintiff in the suit. Throughout discovery, GACP

referred only to itself with no mention of acting as agent on behalf of GACP Lender.

During appellants’ opening statement at trial, they emphasized, “I want to be really

clear that plaintiff in this lawsuit is Great American Capital Partners Finance, Co.,

LLC. That is the plaintiff in this lawsuit.” GACP did not correct appellants’

identification of plaintiff. The case then continued with testimony from Hyde and

Winspear.

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On the third day of trial, appellants argued in a hearing outside the jury’s

presence that GACP did not have capacity to seek its requested damages. GACP’s

counsel admitted, “[A]ll the damages that we’ve ever sought throughout this entire

case are losses suffered by the lender. They’re not losses suffered by GACP Finance

Co.” He argued the Credit Agreement gave GACP the right to sue, and GACP was

“pursing these claims as the agent on behalf of the lender, and the damages that are

sought are damages that only the lender suffered.” When the court questioned where

the second amended petition stated GACP was pursing damages as agent of GACP

Lender, GACP’s counsel admitted he could not cite to a specific statement and

instead cited to paragraph eleven under “FACTUAL ALLEGATIONS” which

stated, “On or about November 2, 2016, GACP, as agent for various Lenders, entered

into a Loan and Security Agreement . . . with Excel Corporation as Borrower.”

Appellants argued the pleadings and requests for disclosure consistently

referred to GACP’s damages, not GACP, as agent, seeking recovery of GACP

Lender’s damages. Thus, appellants contended GACP violated the fair notice of

pleadings doctrine, and GACP did not have capacity to seek GACP Lender’s

damages.

GACP maintained it “put them on notice since the outset of the case that the

named party in the lawsuit is bringing suit as agent on behalf of the lenders.” It

argued the singular reference to agent in the second amended petition “puts them on

notice that the claims and GACP’s ability to bring those claims arise from the credit

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agreement.” Despite the trial court recognizing that if appellants’ argument was

correct, “this is over” because rendering judgment would be appropriate, the trial

court allowed the trial to continue and granted appellants a running objection to any

evidence supporting GACP’s claim for damages incurred by GACP Lender.

Texas Rule of Civil Procedure 301 requires that the judgment of the trial court

must be supported by the pleadings. TEX. R. CIV. P. 301. Thus, a trial court cannot

enter judgment on a theory of recovery not sufficiently set forth in the pleadings or

otherwise tried by consent. Heritage Gulf Coast Props., Ltd. v. Sandalwood

Apartments, Inc., 416 S.W.3d 642, 658 (Tex. App.—Houston [14th Dist.] 2013, no

pet.).

This “fair notice” pleading standard “looks to whether the opposing party can

ascertain from the pleading the nature and basic issues of the controversy and what

testimony will be relevant.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d

887, 896 (Tex. 2000); Repsol Oil & Gas USA, LLC v. Matrix Petroleum, LLC, No.

04-18-00411-CV, 2023 WL 8897012, at *2 (Tex. App.—San Antonio Dec. 27,

2023, no pet.). The purpose of this rule is to give the opposing party information

sufficient to enable him to prepare a defense. Auld, 34 S.W.3d at 896. Ultimately,

the pleading must give the adversary parties notice of each parties’ claims and

defenses, as well as notice of the relief sought. Respol Oil & Gas USA, LLC, 2023

WL 8897012, at *2.

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We view the petition from the defendant’s perspective. Irwin v. Salem, No.

03-10-00508-CV, 2011 WL 3890406, at *3 (Tex. App.—Austin Aug. 31, 2011, no

pet.) (mem. op.). A “passing reference” in the factual portion of a pleading does not

equate to fair notice. Irwin, 2011 WL 3890406, at *3 (concluding defendants did

not have fair notice of unjust enrichment claim even though the petition mentioned

the term “unjust enrichment”). Though every fact need not be pleaded, we look to

what “can reasonably be inferred from what is specifically stated.” Bos v. Smith,

556 S.W.3d 293, 306 (Tex. 2018).

The second amended petition repeatedly stated “GACP Finance Co., LLC

(GACP)” is the plaintiff. Under “THE PARTIES” heading, it listed three parties to

the suit: (1) “Plaintiff GACP Finance Co., LLC”; (2) “Defendant Thomas A. ‘Kip’

Hyde Jr.”; and (3) “Defendant Robert L. Winspear.” It indicated, “GACP seeks

damages in a maximum amount of $6.3 million, including without limitation, all

economic and punitive or exemplary damages.”

The word “agent” appeared once in paragraph eleven of the second amended

petition under “FACTUAL ALLEGATIONS”: “On or about November 2, 2016,

GACP, as agent for various Lenders, entered into a Loan and Security Agreement

. . . with Excel Corporation as Borrower.” At most, this statement indicated GACP

entered into the Loan Agreement as GACP Lender’s agent. Reading the second

amended petition as a whole and from appellants’ perspective, we cannot conclude

this “passing reference” equated to fair notice that GACP was seeking damages on

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behalf of GACP Lender as its agent. See Irwin, 2011 WL 3890406, at *3; see, e.g.,

Schwartz v. Fipps, 553 S.W.3d 549, 554 (Tex. App.—San Antonio 2018, no pet.)

(“By its plain language, Appellees’ live pleading does not allege that Dr. Schwartz

breached the standard of pre- or postoperative care; it merely states that “[t]he

surgical procedure failed.”). The petition repeatedly stated GACP, not GACP as

agent for GACP Lender, filed suit to recover damages for appellants’ wrongful

conduct. The liberal construction of pleadings “does not require us to read into a

petition what is plainly not there.” Bos, 556 S.W.3d at 306.

In reaching this conclusion, we reject GACP’s reliance on the Credit

Agreement, which it argues gave GACP the exclusive power to bring suit on GACP

Lender’s behalf. When a document is incorporated into another by reference, both

instruments must be read and construed together. Bob Montgomery Chevrolet, Inc.

v. Dent Zone Cos., 409 S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.). Here,

GACP neither specifically incorporated the Credit Agreement into, nor attached it

to, its second amended petition. Although GACP argues a reasonably prudent

attorney would have been able to determine GACP was an agent for GACP Lender

during both the memorialization of the Credit Agreement and this lawsuit, we cannot

agree. The fair notice of pleadings doctrine requires a pleading to give the adversary

parties notice of each parties’ claims and defenses, as well as notice of the relief

sought. Respol Oil & Gas USA, LLC, 2023 WL 8897012, at *2. Fair notice is not

notice to dig deeper to determine the parties’ claims and damages. Thus, under these

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facts, we conclude reference to a document that is not specifically incorporated or

attached to a petition cannot establish an agency relationship satisfying the fair

notice of pleadings standard.

However, even if we considered the Credit Agreement, GACP’s argument

fails. GACP cites to section 10.11(d) of the Credit Agreement to support its

exclusive authority to bring suit as agent “for the benefit of all the Lenders.” The

relevant portion of the Credit Agreement states the following:

(d) Exclusive Right to Enforce Rights and Remedies.
Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the authority to enforce rights and remedies
hereunder and under the other Loan Documents against the Loan
Parties or any of them shall be vested exclusively in, and all actions and
proceedings at law in connection with such enforcement shall be
instituted and maintained exclusively by, Agent in accordance with the
Loan Documents for the benefit of all the Lenders.

GACP alleges that because GACP Lender was harmed by appellants’ fraud, GACP

had the exclusive authority, as agent, to initiate the proceeding. Section (d),

however, provided GACP authority to “enforce rights and remedies” and “all actions

and proceedings at law in connection with such enforcement” against “Loan

Parties.” The Credit Agreement defines “Loan Party” as “Borrower, or any

Guarantor” and “Loan Parties” as “Borrower and all Guarantors.” “Borrower” is

defined as “Excel Corporation,” and the “Guarantors” are defined as “each

Subsidiary listed on Schedule C, and each other Subsidiary that is or becomes a party

to this Agreement pursuant to Section 3.3.” The subsidiaries listed in Schedule C

included Excel Business Solutions, Inc., Payprotec Oregon, LLC, eVance
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Processing Inc., and Securus Consulting, LLC. Accordingly, the Credit Agreement

assigned GACP the right to file “all actions and proceedings at law” against the Loan

Parties, a defined term that does not include appellants. As such, appellants’

knowledge of the Credit Agreement, even if we assumed it was incorporated by

reference into GACP’s second amended petition, did not provide fair notice that

GACP filed suit as agent for GACP Lender.

Finally, we reject GACP’s argument that appellants’ capacity challenge is not

preserved because they did not file a special exception or a verified denial. Special

exceptions are designed to provide notice of pleading defects and to allow the

pleader to cure the defects. Bos, 556 S.W.3d at 306. A defendant raising a capacity

challenge, or “wrong plaintiff” problem, is usually required to file a verified denial

thereby providing the plaintiff an opportunity to correct the problem, if possible,

through assignment or joinder. See Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763,

779 (Tex. 2020).

The petition here was not defective. Appellants were entitled to rely on the

second amended petition in which GACP asserted it was seeking damages for fraud;

therefore, appellants had no reason to specially except for further clarification that

GACP might actually be bringing suit as GACP Lender’s agent. Id. at 780 (“issues

regarding . . . authority to sue for damages . . . will not always be apparent from the

face of the plaintiff’s petition” requiring a special exception). Further, appellants

did not discover until the third day of trial that GACP was seeking damages on behalf

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of GACP Lender rather than its own damages. Appellants timely raised the capacity

issue with the trial court as soon as the “bait and switch” became apparent. As

GACP’s pleadings did not disclose it was seeking damages on behalf of GACP

Lender, appellants were justified in assuming GACP was suing for its own damages

and “had no reason…to file a verified pleading challenging . . . capacity to recover

for damages” on behalf GACP Lender. Id.

Standing

Appellants also argue GACP lacked standing to bring suit. “A plaintiff has

standing when it is personally aggrieved, regardless of whether it is acting with legal

authority.” Pike, 610 S.W.3d at 775. Standing requires a concrete injury to the

plaintiff and a real controversy between the parties that will be resolved by the court.

Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 696 (Tex. 2021). To maintain

standing, a plaintiff must show, in part, an injury in fact that is both particularized

and concrete and actual and imminent, not conjectural or hypothetical. Id.

Here, on the third day of trial, GACP stipulated it had zero damages of its own

and was pursing damages for GACP Lender as its agent. GACP’s stipulation

established it had no concrete or particularized injury that would be resolved by the

court. Accordingly, once GACP stipulated it had no damages of its own, GACP no

longer had standing to bring suit against appellants.

To the extent GACP argues it had standing to sue on behalf of GACP Lender

because section 10.11(d) of the Credit Agreement explicitly assigned the right, we

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disagree. As discussed above, the Credit Agreement assigned GACP the right to

bring suit against the Loan Parties, a defined term that did not include appellants.

Accordingly, GACP was not assigned the right to “stand in the shoes” of GACP

Lender and “assert those rights that assignee could assert, including bringing suit.”

First-Citizens Bank & Tr. Co. v. Greater Austin Area Telecomms. Network, 318

S.W.3d 560, 566 (Tex. App.—Austin 2010, no pet.) (recognizing an assignee

receives the full rights of the assignor).

Conclusion

The trial court’s judgment awarded GACP, “as agent for the lender GACP I,

L.P.,” $1,546,422.00 in actual damages and $280,000 in punitive damages. Because

GACP’s second amended petition did not provide fair notice of the alleged agency

relationship between GACP and GACP Lender and GACP did not have standing to

bring suit on behalf of GACP Lender, the trial court’s judgment does not conform

to the pleadings and is invalid. See Bos, 556 S.W.3d at 306; see also TEX. R. CIV. P.

301 (judgment of the trial court must be supported by the pleadings). We sustain

appellants’ first issue. Because this issue resolves the appeal, we need not address

appellants’ remaining three issues. TEX. R. APP. P. 47.1.

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We reverse the trial court’s judgment and render judgment that GACP take

nothing on its claims against Winspear and Hyde.

230873f.p05 /Erin A. Nowell//
ERIN A. NOWELL
JUSTICE

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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THOMAS A. “KIP” HYDE AND On Appeal from the 134th Judicial
ROBERT L. WINSPEAR, District Court, Dallas County, Texas
Appellants Trial Court Cause No. DC-19-02210.
Opinion delivered by Justice Nowell.
No. 05-23-00873-CV V. Justices Reichek and Wright
participating.
GACP FINANCE CO., LLC,
Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED that:

Appellee GACP Finance Co., LLC take nothing in its claims against
appellants Thomas A. "Kip" Hyde and Robert L. Winspear.

It is ORDERED that appellants THOMAS A. “KIP” HYDE AND
ROBERT L. WINSPEAR recover their costs of this appeal from appellee GACP
FINANCE CO., LLC.

Judgment entered this 24th day of October, 2024.

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