File: 070758F - From documents
RENDER and Opinion Filed August 21, 2008
Court of Appeals
District of Texas at Dallas
SEARS, ROEBUCK AND CO., Appellant
AIG ANNUITY INSURANCE CO., ET
On Appeal from the 192nd Judicial District
Trial Court Cause No.
Wright, Bridges, and Mazzant
Sears, Roebuck and Co.
(Sears) appeals from a judgment awarding a group of investors over $61,453,826.00 on their claim that Sears breached an
indenture agreement. In seven issues, Sears contends: (1) the special redemption
provision in the indentures unambiguously provides that Sears may redeem the
bonds if customer receivables fall below a certain threshold for three
consecutive months; (2) the sale of Sears' credit card business triggered the
special redemption provision as a matter of law because the amount of customer
receivables fell below the redemption threshold for a three-month period; (3)
the trial court erred in submitting the breach of contract question to the jury;
(4) the investors failed to present any evidence of the level of customer
receivables during the three-month period following Sears' sale of its credit
card business; (5) the evidence is legally and factually insufficient to support
the damages award; (6) the trial court erred in refusing to submit Sears'
requested question and instruction on its affirmative defense of mitigation of
damages; and (7) the trial court erred in denying Sears' motion for new trial on
the ground that one of the jurors was statutorily disqualified. We sustain
Sears' first and fourth issues, reverse the trial court's judgment, and render a
take nothing judgment against the investors.
In 1991 and 1992, Sears
entered into four indenture agreements. Pursuant to the indentures, Sears issued a series of redeemable bonds in 1991 and
1992. The bonds were to mature either in 2011 or 2012. The bonds provided for
semi-annual interest payments and the repayment of the par value at maturity or
upon redemption. Appellees, a group of institutional investors, purchased the
bonds in the secondary market.
In March 2003, Sears
announced its plan to sell its credit card business, including the receivables generated by that business, and to use the
proceeds from the sale to retire its debt. Sears entered into a Purchase, Sale
and Servicing Transfer Agreement with Citicorp on July 15, 2003. This agreement
provided for the sale of Sears' credit card business to Citicorp. The sale of
over $29 billion in credit card receivables occurred on November 3, 2003.
Pursuant to the redemption provision in the indentures, Sears redeemed the bonds
on February 2, 2004.
The investors filed suit
against Sears on October 12, 2004. They alleged claims for breach of contract, estoppel, violations of the Trust Indenture Act,
and unjust enrichment. See Footnote 1
According to the investors, Sears did not have the right to redeem the bonds
under section 4.8 of the indentures because the requirements for redemption had
not been met. The case was tried before a jury who returned a verdict in favor
of the investors. The trial court rendered judgment in the amount of
$61,453,826.00. This appeal followed.
In its first issue, Sears
contends the indentures unambiguously allow it to redeem the bonds if customer receivables fall below a certain threshold
for three consecutive months. The investors counter that Sears may redeem the
bonds if the customer receivables decline over three consecutive months.
They contend that the bonds are not redeemable following a one-time sale of
customer receivables. Alternatively, the investors argue the indentures are
Pursuant to section 14.12
of the indentures, Illinois law governs the indenture agreements. Accordingly, we follow Illinois law in construing the
indentures. The construction of a contract is a question of law for the court.
Avery v. State Farm Mut. Auto. Ins. Co., 835 N.E.2d 801, 821 (Ill. 2005).
If the contract terms are unambiguous, the court looks only to the language of
the contract to ascertain the parties' intent. Farm Credit Bank of St. Louis
v. Whitlock, 581 N.E.2d 664, 667 (Ill. 1991). Contract language is not
ambiguous merely because the parties disagree about its meaning. Ford v.
Dovemuehle Mortgage, Inc., 651 N.E.2d 751, 754 (Ill. App. Ct. 1995). A
contract is ambiguous only if the language used is reasonably susceptible to
more than one meaning. Lenzi v. Morkin, 452 N.E.2d 667, 669 (Ill. App.
Ct. 1983), aff'd, 469 N.E.2d 178 (Ill. 1984).
The indentures included
the following provision:
Unless otherwise provided in the form of Securities of any series under Section 2.1, the Securities of that series are
subject to redemption at any time prior to Stated Maturity, in whole or in part,
at the option of the Company at 100% of the principal amount of such Securities
to be redeemed together with interest accrued and unpaid to the Redemption Date
if and whenever, as of the last day of each month in any three-calendar-month
period, the amount of outstanding Customer Receivables arising from the
merchandise business (including credit granting) of the Company and any
Subsidiary or Subsidiaries which succeed to all or part of the merchandise
business of the Company (whether or not any such Customer Receivables are then
owned by them) is less than two-thirds of the highest arithmetic average amount
of such Customer Receivables outstanding on the last day of each of any three
consecutive calendar months ending on or after the last day of the calendar
month during which such series of Securities is issued, provided the Redemption
Date is not more than 90 days next following the last day of any such later
are defined in the indentures as “amounts owing to the Company or its Affiliates as a result of sales of goods or services
(including, but not limited to, financial services) whether by such entities or
others.” The customer receivables sold to Citicorp were amounts owed to Sears as
the result of sales of its products. Pursuant to the language of section 4.8,
such receivables are included in the redemption formula regardless of the fact
that those receivables are no longer owned by them. Receivables generated after
the sale to Citicorp are not owing to Sears and thus, would not be included in
calculating the level of customer receivables under section 4.8.
next argue that the definition of company in the Indentures includes Citicorp and, therefore, receivables generated after
the sale also constitute customer receivables. We disagree. The indentures
define “company” as Sears “and, subject to the provisions of Article IX, shall
also include its successors and assigns.” The words “subject to” are unambiguous
and indicate a condition when used in a contract. See Interway Inc. v.
Alagna, 407 N.E.2d 615, 619-20 (Ill. App. Ct. 1980). Section 9.1 of article
IX addresses the merger, consolidation, or sale of
substantially all of the assets of the company. See Footnote 2
Thus, the definition of company includes Sears and any other company or
corporation that Sears merges or consolidates with or a company that purchases
substantially all of Sears' assets. Citicorp does not fit within the indentures'
definition of company. We
conclude that the indentures are unambiguous and that they allow Sears to redeem
the bonds prior to maturity if the customer receivables fall below a high
watermark for three consecutive months. Customer receivables include those that
Sears owned as of the date of the sale but does not include those generated
after the sale. We sustain Sears' first issue.
In its fourth
issue, Sears contends the investors failed to establish a breach because they did not present any evidence of the level of
customer receivables for the three-month period prior to redemption.
The jury found that Sears
breached the indentures. See
Sears redeemed the bonds pursuant to section 4.8
of the indentures. We have determined that the unambiguous language of section
4.8 means that Sears' customer receivables as of the date of the sale to
Citicorp continue to count for purposes of calculating when the receivables fall
below the high watermark. Thus, to establish a breach, the investors had to
establish that on February 2, 2004, the date that Sears redeemed the bonds, the
customer receivables had not fallen below the high watermark on the last day of
each of the preceding three months. After reviewing the evidence, we conclude
that the investors failed to meet their burden.
Because Sears is
challenging the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must
demonstrate there is no evidence to support the adverse finding. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex.1983); Pulley v. Milberger, 198
S.W.3d 418, 426 (Tex.App.-Dallas 2006, pet. denied). To evaluate the legal
sufficiency of the evidence to support a finding, we must “determine whether the
proffered evidence as a whole rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” St. Joseph Hosp. v.
Wolff, 94 S.W.3d 513, 519 (Tex.2002). We sustain a no evidence point only if
there is no more than a scintilla of evidence proving the elements of the claim.
Id. at 520. In making this determination, we must “view the evidence in
the light favorable to the verdict, crediting favorable evidence if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could
not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). We look
to see whether any record evidence supports the challenged finding. Casino
Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex.App.-Dallas 2001, pet. denied).
Evidence does not exceed a scintilla if it is so weak as to do no more than
create a mere surmise or suspicion that the fact exists. Kroger Tex. Ltd. v.
Suberu, 216 S.W.3d 788, 793 (Tex.2006). An inference stacked only on other
inferences is not legally sufficient evidence. Marathon Corp. v. Pitzner,
106 S.W.3d 724, 728 (Tex. 2003) (per curiam).
The plaintiff in any
breach of contract case bears the burden of proving the breach. See Perlman v. Time, Inc., 478 N.E.2d 1132, 1136 (Ill.
App. Ct. 1985); Vandevier v. Mulay Plastics, Inc., 482 N.E.2d 377, 380
(Ill. App. Ct. 1985). The investors attempt to shift this burden by arguing that
it was Sears' burden to establish that it had the right to redeem the bonds when
it did. Citing to Camofi Master LDC v. College P'ship, Inc., 452 F.Supp.
2d 462, 470 (S.D.N.Y. 2006), they argue that their only burden was to show proof
of the indentures and Sears' failure to make the required payments. Camofi
Master is not on point. It was a suit on a promissory note. To establish a
prima facie case of breach, the lenders simply had to show proof of the
promissory note and that the borrower has failed to make payment. Id.
Here, the investors contend that Sears breached the indentures when it redeemed
the bonds prior to maturity. Redemption of the bonds was a breach only if
the requirements for redemption had not been met. Thus, it was the investors'
burden to establish that, on February 2, 2004, Sears did not have the right to
redeem the bonds under section 4.8 of the indentures.
investors contend there is evidence of the amount of customer receivables during the pertinent three-month period. Most of
the evidence they cite to, however, deals with the amount of receivables prior
to the sale to Citicorp. This is not the pertinent time for establishing a
breach under section 4.8. The only evidence the investors rely upon for the
level of customer receivables following the sale is the testimony of Sears'
damages expert, Michael Cragg. He prepared a runoff analysis to determine when
Sears' customer receivables that it owned at the time of the sale to Citicorp
would have naturally fallen below the high watermark. Cragg testified, that
using the numbers from Robert Sherwin, the investors' damages expert, the bonds
would have been redeemable by July 1, 2004. Thus, the investors contend, this
testimony is evidence that the customer receivables were not at a level
permitting redemption on February 2, 2004.
Taking a closer look at
Cragg's runoff analysis, however, we see that his testimony is speculative at best. On cross-examination, he testified that
there were competing choices of different ways to apply payments and that he
assumed that payments would be applied to the oldest receivables first.
His runoff analysis is based on the method that Sears had at one time used in
paying off its receivables. Cragg infers that the bonds would have met section
4.8's formula for redemption by July 1, 2004. He reached this inference by
assuming that the bonds would have been paid off according to the way Sears used
to pay off its receivables at one time. More importantly, following the sale,
Citicorp paid off the receivables according to its own method. There is no
evidence in the record that shows the payoff method used by Citicorp to pay off
its receivables. Expert opinion must be supported by facts in evidence, not
conjecture. Marathon Corp., 106 S.W.3d at 729. We conclude that Cragg's
speculative testimony built upon inferences and assumptions rather than
facts in evidence does not constitute legally sufficient evidence. See
Id. at 728.
It was the investors'
burden to establish that Sears breached the indentures when it redeemed the bonds in February 2004. Critically, the investors
failed to put on any evidence of the balance of the relevant customer
receivables at the end of November 2003, December 2003, and January 2004. In his
closing statement, the attorney for the investors argued as
Now let's walk through
this one last time. I think it is very clear. First of all, remember that Sears had to demonstrate to you that they had
the right to redeem early at face value. And they hitched their wagon to say
three months, you know - they wanted to rewrite it and forget about the three
months. How many times did they ask people, now, if suddenly, quickly,
dramatically, all at once it goes way down you, know, below 66 percent then is
triggered? Well, wait a minute. What about this three consecutive months, what
about the declining receivables? But anyhow, they hitched their wagon to say
September, October, and November of '03 were those three months. That's what
they've said. When they issued the notice to say these are the three months,
September, October, November of '03 it fell below some other higher number, and
a lot of things were thrown around.
Did they ever bring you
those exact numbers? Have they ever showed you exactly? No. They just stood up and said, we sold it and essentially it
dropped to zero, or maybe was 1.5 billion, or maybe it was - they didn't even do
that. And then with their Mr. Cragg, they want to change things around a little
bit. But what they based their, and claimed they had the right to do, was for
what happened in September, October and November, but we don't really see that.
. . .
This argument highlights
the determinative issue in this case. It was not Sears' burden to put
on evidence of the level of the customer
receivables on the last day of the pertinent three-month period. Rather, it was
the investors' burden to prove the breach. The only way to establish that Sears
breached the indentures was to show that the mathematical formula permitting
redemption under section 4.8 had not been met. Because the investors failed to
present any evidence of breach, we sustain Sears' no evidence challenge asserted
in its fourth issue.
We sustain Sears' first and
fourth issues. See
We reverse the trial court's judgment and render
a take nothing judgment against the
At the close of their case, the investors withdrew their claims for unjust
enrichment and estoppel. The trial court
directed a verdict on those claims along with the investors' claim for
violations of the Trust Indenture Act. Thus, we consider only the investors'
claim for breach of contract.
Section 9.1 of the Indentures provides as follows:
Nothing in this Indenture
shall prevent any consolidation or merger of the Company with or into any other corporation, or any consolidation or
merger of any other corporation with or into the Company, or any sale or
transfer of all or substantially all of the property and assets of the Company
to any other corporation lawfully entitled to acquire the same; provided,
however, that, so long as Securities are outstanding hereunder, the Company
covenants and agrees that no such consolidation, merger, sale or transfer shall
be made unless after giving effect to any such transaction Unencumbered assets
plus Capitalized Rentals (calculated in each case for the surviving or acquiring
corporation); and provided, further, that, so long as Securities are outstanding
hereunder, the Company covenants and agrees, that any such consolidation,
merger, sale or transfer shall be upon the condition that the due and punctual
payment of the principal of (or premium, if any, on) and interest on, all the
Securities according to their tenor, and the due and punctual performance and
observance of all the terms, covenants and conditions of this Indenture to be
kept or performed by the Company shall, by an indenture supplemental hereto,
executed and delivered to the Trustee, be assumed by the corporation (if other
than the Company) formed by or resulting from any such consolidation or merger,
or which shall have received the transfer of all or substantially all of the
property and assets of the Company, just as fully and effectually as if such
successor corporation had been the original party of the first part hereto; and
in the event of any such sale or transfer the predecessor Company may be
dissolved, wound up and liquidated at any time thereafter.
We note that the question submitted to the jury simply asked whether Sears
breached the indentures by redeeming the bonds
prior to their scheduled maturity. It is only a breach to redeem the bonds prior
to scheduled maturity if receivables have not fallen below a high watermark for
the preceding three-month period.
In light of our disposition of Sear's first and fourth issues, we do not address
Sears' remaining issues.