Blankenship v. Robins, A14-93-00496-CV

• Decision Date: 01 September 1994
• Docket Number: No. A14-93-00496-CV,A14-93-00496-CV
• Citation: 899 S.W.2d 236
• Parties: J. David BLANKENSHIP II, Appellant, v. Ronald A. ROBINS, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 236

899 S.W.2d 236

J. David BLANKENSHIP II, Appellant, v. Ronald A. ROBINS, Appellee.

No. A14-93-00496-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Sept. 1, 1994.

Rehearing Overruled Oct. 13, 1994.

Michael Duncan, Raymond L. Britton, Jr., Houston, for appellant.

E. Lawrence Vincent, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and ELLIS, JJ.

OPINION ON REMAND

MURPHY, Justice.

Appellant, J. David Blankenship II, attacks a summary judgment granted in favor of appellee, Ronald A. Robins, claiming the supporting affidavit is defective. We affirm. ¹

On January 1, 1990, appellant executed two promissory notes in favor of appellee, for the amounts of $40,000.00 and $11,354.71. Each note provided that appellant was to begin payments on January 31, 1991, and if appellant failed to pay any installment, appellee had the right to declare the entire balance of the note, plus unpaid interest, due and payable. Appellant failed to make the required payments on the promissory notes. On June 3, 1991, appellee brought suit against appellant to recover the unpaid balance due on the notes. Appellee subsequently filed a motion for summary judgment. In support of the motion, appellee attached copies of the promissory notes and two affidavits. In his affidavit, appellee stated that he was and had been the sole owner of the notes since they were executed, that appellant "did not make the payments required by the terms of the notes," and that demand had been made on appellant for payment. Appellee also offered the affidavit of Patrice Ferguson, a certified public accountant, who recited the basis for her figures and calculated that the amount due on the notes was $66,488.89, including interest. The trial court granted summary judgment in favor of appellee.

In a single point of error, appellant argues that the trial court erred in granting summary judgment for appellee because appellee's affidavit offered in support of the motion for summary judgment is defective. Specifically, appellant claims that the affidavit only recites a legal conclusion, and therefore does not constitute competent summary judgment proof. We disagree.

Well established rules set the standard of review in a case involving summary judgment:

1. The movant has the burden of showing that there exists no genuine issue of material fact and that he is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue which would preclude summary judgment, evidence favorable to the non-movant is taken as true.

3. Every reasonable inference from the evidence must be indulged in favor of the non-movant, and any doubts resolved in his favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A movant establishes his entitlement to summary judgment when he conclusively establishes all essential elements of his cause of action as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990).

To collect on a promissory note as a matter of law, the holder or payee need only establish that (1) there is a note; (2) he is the legal owner and holder of the note; (3) the defendant is the maker of the note; and (4) a certain balance is due and owing on the note. Edlund v. Bounds, 842 S.W.2d 719, 724 (Tex.App.--Dallas 1992, writ denied); Resolution Trust Corp. v. Thurlow, 820 S.W.2d 51, 52 (Tex.App.--San Antonio 1991, no writ). When summary judgment proof establishes the above facts, the holder of the note is entitled to recover, unless the maker establishes a defense. Groschke v. Gabriel, 824 S.W.2d 607, 610 (Tex.App.--Houston [14th Dist.] 1991, writ denied).

A photocopy of the 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 which establishes the existence of the note. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 380 (Tex.1978); Clark v. Dedina, 658 S.W.2d 293, 296 (Tex.App.--Houston [1st Dist.] 1983, writ dism'd). 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 that it was issued to him, and there is no summary judgment proof showing that the note has ever been pledged, assigned, transferred, or conveyed. Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983); Affiliated Capital Corp. v. Musemeche, 804 S.W.2d 216, 218 (Tex.App.--Houston [14th Dist.] 1991, writ denied). When the defendant does not deny the genuineness of his signature on the note, he is established as the maker. Groschke, 824 S.W.2d at 610; Clark, 658 S.W.2d at 296. Here, all of the foregoing elements have been met. Appellee's affidavit is attached to a photocopy of the original promissory notes executed in his favor, and the affidavit states that the copies are true and correct copies of the notes. The affidavit also states that appellee is the sole owner and holder of the notes, and they have never been assigned, transferred, pledged, or delivered to another. Finally, appellant never denies that his signature appears on the notes, or that he is the maker of the notes.

At issue in this case is whether appellee has established as a matter of law that a balance was due and owing on the note. Appellant contends that appellee's statement in the affidavit that appellant "did not make the payments required by the...