law-promissory-note-suit | breach of note |

law-promissory-note-suit | personal guaranty by guarantor in personal individual capacity | promissory note
damages | HEQ foreclosure suits | promissory estoppel claim |

A promissory note is a contract evincing an obligation to pay money. Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex.
App.-Houston [1st Dist.] 2003, no pet.). As such, the construction of its terms is controlled by the rules generally
applicable to interpreting contracts. Id. The elements of a valid contract are: (1) an offer, (2) an acceptance, (3) a
meeting of the minds, (4) each party's consent to the terms, and (5) execution and delivery of the contract with the
intent that it be mutual and binding. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-
Houston [1st Dist.] 2002, pet. denied). The determination of a meeting of the minds, and thus offer and
acceptance, is based on the objective standard of what the parties said and did and not on their subjective state
of mind. Baroid Equipment, Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 17 (Tex.App.-Houston [1st Dist.] 2005, pet.
denied). The delivery of the note is "made for the purpose of giving effect to the instrument according to its terms,
unless it be shown that by agreement of the parties, including the payee, the delivery was made for some other
purpose." Anderson v. Ladd, 131 Tex. 479, 115 S.W.2d 608, 610 (1938); Morton v. Samuels, 268 S.W.2d 490,
(Tex.Civ.App. 1954). DeClaire v. G&B McIntosh Family LP DeClaire v. G & B MCINTOSH FAMILY LTD., 260 SW
3d 34 01-06-00423-CV.- Tex: Court of Appeals, Houston May 8, 2008

RECOVERY ON A PROMISSORY NOTE AND GUARANTY

ELEMENTS: To recover for a debt on a promissory note, a party must establish that it is
the legal holder of the note, the debtor’s execution of the note, and that an outstanding
balance is due and owing. Austin v. Countrywide Homes, 261 S.W.3d 68, 72 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied).
McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Bland)
(promissory note suit, extinguishment by guarantor)
To recover on the guaranty of a note, a party must show proof of the existence and ownership of the guaranty
contract, the terms of the underlying contract by the holder, the occurrence of the conditions upon which liability is
based, and the failure or refusal to perform by the guarantor. Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex. App.
—Dallas 1994, no writ).

Here, the affidavit testimony of Steven Shreck, Vice President of Amegy, attached to Amegy’s April 2007 motion
for summary judgment, establishes that Amegy is the holder of a note and that the note was executed by the
limited partnership. Shreck averred that Amegy was the holder of the note and that there was an outstanding
balance due and owing of $139,244.87 on the note. He provided a true and correct copy of the note attached to
his affidavit. Shreck also attached copies of the guaranty agreements to his affidavit. Thus, Amegy carried its
burden of proof for summary judgment. When a movant has carried its summary judgment burden, the non-
movant then must raise a material fact issue precluding summary judgment. Virginia Indonesia Co. v. Harris
County Appraisal Dist., 910 S.W.2d 905, 907 (Tex. 1995). McShaffry contends that he raised the issue of
extinguishment when Amegy (now Brinsden) moved to modify the judgment.

PROVING THE ELEMENTS OF BREACH OF PROMISSORY NOTE

To prove its promissory-note claim, Pinglia Investments had to establish (1) there was a note, (2) Pinglia
Investments was the legal owner and holder of the note, (3) Sandhu was the maker of the note, and (4) a certain
balance was due and owing on the note. Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.- Houston [14th
Dist.] 1994, no writ).
To prove its claim, Pinglia Investments presented a copy of the note and an affidavit from Sumer Pinglia, stating
that the copy of the note was true and correct. A photocopy of a promissory note, attached to an affidavit in
which the affiant swears that the photocopy is a true and correct copy of the original note, is proper
summary-judgment proof to establish the existence of the note. Id. The payee establishes ownership of
the note when he attests in an affidavit that he is the owner of the note, attaches a sworn “true and correct" copy
of the original note to his affidavit, the note shows on its face it was issued to him, and there is no summary-
judgment proof showing the note has ever been pledged, assigned, transferred, or conveyed. Id. (citing Zarges v.
Bevan, 652 S.W.2d 368, 369 (Tex. 1983)). When the defendant does not deny the genuineness of his
signature on the note, he is established as the maker. Id. (citing Groschke v. Gabriel, 824 S.W.2d 607, 610
(Tex. App.- Houston [1st Dist.] 1991, writ denied)).
Sandhu v. Pinglia Investments of Texas, LLC (Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Seymore)
(commercial real estate transaction: financing of purchase of shopping center, br each of promissory note,
summary judgment procedure, sufficiency of response to PMSJ, affirmative defenses not properly asserted in
response to Plaintiff's motion, proof of balance due and damages in note suit, challenges to summary judgment
evidence, affidavit conclusory)
Decision: TRIAL COURT'S JUDGMENT AFFIRMED: Opinion by Justice Charles Seymore
Panel members: Chief Justice Hedges, Justices Anderson and Seymore
14-08-00184-CV Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia
Appeal from 164th District Court of Harris County

Suit on Note Cases on Appeals (with links to opinions)

Blitz Holding Corp. v. Grant Thornton, LLP (Tex.App. - Houston [1st Dist.] May 8, 2008)(Opinion on rehearing by
Radack) (investments, debt restructuring, promissory note, foreclosure, proof of damages, recusal on appeal)
(Justice Alcala recused)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justice Jennings
01-04-00627-CV Blitz Holdings Corp., and GMC Corporation, Ltd v. Grant Thornton, LLP, Deloitte & Touche, LLP,
Chamberlain, Hrdlicka, White, Williams & Martin, LLP and C. Thomas Scott
Appeal from 208th District Court of Harris County, according to docket (should be 280th District, though)
Trial Court Judge: Hon. Tony Lindsay

Song v Alliance Laundry Systems, LLC (Tex.App.- Houston [14th Dist.] May 27, 2008)(Seymore)
(promissory note, appellate attorney's fees)
AFFIRMED AS MODIFIED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00049-CV Soon A. Song d/b/a Washateria E-Z and Kon Ho Song d/b/a Washateria E-Z v. Alliance Laundry
Systems, L.L.C. f/k/a Global Fox Financial, Inc.
Appeal from 151st District Court of Harris County
Trial Court Judge: Caroline Elizabeth Baker

DeClaire v. G&GB McIntosh Family Limited Partnership (Tex.App.- Houston [1st Dist.] May 8, 2008)(Opinion on
rehearing by Keyes) (promissory note)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Keyes
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00423-CV Christopher G. DeClaire ("DeClaire") v. G&B McIntosh Family Limited Partnership
Appeal from 269th District Court of Harris County
Trial Court Judge: The Honorable John T. Wooldridge

Simulis, L.L.C. v. Gen. Elec. Capital Corp., No. 14-06-00701-CV, 2008 WL 1747483, at *1 (Tex. App.—Houston
[14th Dist.] Apr. 17, 2008, no pet.)
Simulis LLC v. GE Capital Corp. (Tex.App.- Houston [14th Dist.] Apr. 17, 2008)(Yates)
(promissory note, estoppel, quantum meruit)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Brock Yates
Before Justices Brock Yates, Fowler and Guzman
14-06-00701-CV Simulis, L.L.C. v. General Electric Capital Corporation [GE Capital Corp]
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble

Fe De La Calzada v. American First National Bank (Tex.App.- Houston [14th Dist] Feb. 7, 2008) (Seymore)
(promissory note)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00022-CV Fe De La Calzada v. American First National Bank
Appeal from 234th District Court of Harris County (no judge name shown)

St u rm v. Muens (Tex.App.- Houston [14th Dist.] Mar. 8, 2007)(Edelman)
St u rm v. Muens (Tex.App.- Houston [14th Dist.] Mar. 8, 2007)(Dissent by Frost)
(promissory note, counterclaim, usury, fraud)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Edelman
Before Justices Anderson, Edelman and Frost
14-04-00917-CV Lawrence Edward Stirm, Sr. v. Guenther Muens
Appeal from 151st District Court of Harris County
Trial Court Judge: C aroline Elizabeth Baker
Dissenting Opinion by Justice Frost

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