MMP, Ltd. v. Jones, 04-83-00524-CV

Citation695 S.W.2d 208
Decision Date29 March 1985
Docket NumberNo. 04-83-00524-CV,04-83-00524-CV
PartiesMMP, LTD., a Texas Limited Partnership, Appellant, v. Robert C. JONES, Individually and d/b/a Frank Jones Insurance Agency, Inc., Appellee.
CourtCourt of Appeals of Texas

Thomas H. Crofts, Jr., Sharon E. Callaway, Groce, Locke & Hebdon, San Antonio, for appellant.

Tom Stolhandske, San Antonio, Charles E. Jones, Jr., Austin, for appellee.

Before CANTU, TIJERINA, and DIAL, JJ.

TIJERINA, Justice.

This is an appeal from a summary judgment in a suit on sworn account for unpaid insurance premiums. The summary judgment proof included two letters which the trial court interpreted as an acknowledgment of the debt at issue that would otherwise have been barred by the statute of limitations.

Appellant initially transacted business as a limited partnership consisting of several limited partners and the MMP Corporation d/b/a Downtown Motor Inn as a general partner. The original certificate was cancelled but the partnership continued doing business with the owners as general partners. The insurance policies issued by appellee provided coverage for the Downtown Motor Inn; MMP, Ltd. and MMP Corporation were listed as the insured. M.N. Murray, one of the limited partners, signed the certificate for the formation of the partnership as president of MMP Corporation, the general partner. Murray sent a letter to appellee wherein some of the general partners agreed to pay all of the insurance expenses of the Downtown Motor Inn. Appellee continued providing insurance coverage for the Downtown Motor Inn until April 14, 1978, when appellant became delinquent in the payment of the insurance premiums. The second letter was from W. Ernest Norcross and was mailed to appellee July 10, 1978; it stated that MMP Corporation would "make every effort" to start making payments of $1,000.00 per month. There were no payments made; appellee filed suit on July 15, 1982.

Appellant asserts that the trial court erred in granting appellee's motion for summary judgment because: (1) there was no conclusive proof that the open account was not barred by limitations; (2) appellee failed to prove that appellant was liable on the account; and (3) appellee was not entitled to summary judgment as a matter of law.

TEX.REV.CIV.STAT.ANN. art. 5539 (Vernon 1958) provides:

When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.

Thus, in order for a written instrument to be sufficient to take a debt otherwise barred out of the operation of the statute of limitations, it must acknowledge the justness of the debt and express a willingness to pay. Where the debt is clearly acknowledged, however, the promise to pay is implied. See Appell Petroleum Corp. v. Moreman Tire Co., 416 S.W.2d 470 (Tex.Civ.App.--Eastland 1967, no writ). The court in Appell, supra, stated: "There was but one debt, the one sued upon. The letter referred to that debt and removed it from the force of [the limitations] statute." The sufficiency of the letter to bind appellant on the barred debt is a question of law. McFadin v. Haggard, 398 S.W.2d 638, 640 (Tex.Civ.App.--San Antonio 1966, no writ); Martindale Mortgage Co. v. Crow, 161 S.W.2d 866, 870 (Tex.Civ.App.--El Paso 1941, writ ref'd w.o.m.). The letter from Murray to appellant stated "all monies needed to meet expenses for the operation of the McAllen Downtown Motor Inn would be shared equally." The letter from Norcross to appellant's attorney was more specific. It acknowledged the existence of the particular debt at issue owed by MMP Corporation to Frank Jones Insurance Agency and made a new promise to "make every effort" to commence making $1,000.00 per month installments, beginning with the month of October. The letter neither disputed the debt nor questioned its correctness.

The record indicates that MMP, Ltd. was certified for the purpose of owning, developing and operating hotel and apartment facilities, with its principal place of business at 1302 South 9th Street, McAllen, Texas. The partnership consisted of several limited partners and the MMP Corporation as a general partner. M.N. Murray executed the partnership agreement both as a limited partner and as president of MMP Corporation, the general partner. On January 10, 1973, the limited partners and the general partner executed an instrument cancelling the limited partnership; however, the partnership continued by agreement as a general partnership. The insurance policy endorsement shows the insured as MMP Corporation and/or MMP, Ltd., and the location of the premises insured included 1304 to 1314 9th Street in McAllen, Texas. It appears that appellant and MMP Corporation were jointly doing business as general partners. In Delaney v. Fidelity Lease, Ltd., 526 S.W.2d 543, 545 (Tex.1975), a case involving limited partners and a corporation managing the business as the general partner, the supreme court, quoting from the dissenting opinion below, stated:

I find it difficult to separate their acts for they were at all times in the dual capacity of limited partners and officers of the corporation. Apparently the corporation had no...

To continue reading

Request your trial
5 cases
  • Adams v. Petrade Intern., Inc.
    • United States
    • Texas Court of Appeals
    • 17 Marzo 1988
    ...agent of the partnership in the gasoline transaction, are binding on the partnership and on Box as a partner. MMP, Ltd. v. Jones, 695 S.W.2d 208, 210 (Tex.App.--San Antonio 1985), rev'd on other grounds, 710 S.W.2d 59 (Tex.1986); Boyd v. Leasing Assoc., Inc., 516 S.W.2d 485, 489 (Tex.Civ.Ap......
  • In re Estate of Curtis
    • United States
    • Texas Court of Appeals
    • 3 Junio 2015
    ...is clearly acknowledged, however, the promise to pay is implied.” Bright & Co., 995 S.W.2d at 745 (quoting MMP, Ltd. v. Jones, 695 S.W.2d 208, 209 (Tex.App.–San Antonio 1985) ), rev'd on other grounds, 710 S.W.2d 59 (Tex.1986). Jaeckle admits that he wrote and signed this letter. Jaeckle co......
  • Bright & Co. v. Holbein Fam. Mineral, 050599, 04-98-00674-CV
    • United States
    • Texas Court of Appeals
    • 5 Mayo 1999
    ...express a willingness to pay. Where the debt is clearly acknowledged, however, the promise to pay is implied." MMP, Ltd. v. Jones, 695 S.W.2d 208, 209 (Tex. App.-San Antonio 1985), rev'd on other grounds, 710 S.W.2d 59 (Tex. 1986); see also House of Falcon, Inc. v. Gonzalez, 583 S.W.2d 902,......
  • Stewart v. Stine
    • United States
    • Texas Court of Appeals
    • 9 Agosto 2001
    ...& Co. v. Holbein Family Mineral Trust, 995 S.W.2d 742, 745 (Tex. App. San Antonio 1999, pet. denied) (quoting MMP, Ltd. v. Jones, 695 S.W.2d 208, 209 (Tex. App. San Antonio 1985), rev'd on other grounds, 710 S.W.2d 59 (Tex. 1986)). An acknowledgment is a new and separate obligation and debt......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT