Shumway v. Horizon Creditcorp

Decision Date09 March 1989
Docket NumberNo. 01-88-00028-CV,01-88-00028-CV
Citation768 S.W.2d 387
PartiesGene A. SHUMWAY and Sandra Shumway, Appellants, v. HORIZON CREDITCORP, Appellee. (1st Dist.)
CourtTexas Court of Appeals

Debra Jo Catlett and Roy W. Hendrick, Houston, for appellant-relator.

Mary Lou Leyh Baker and Patricia Ann Hancock, Brown, Sharman & Parker, Houston, for appellee.

Before EVANS, C.J., and COHEN and WARREN, JJ.

OPINION ON REHEARING

COHEN, Justice.

Our prior opinion dated December 15, 1988, is withdrawn, and the following opinion is substituted. The motion for rehearing is granted.

This is an appeal from a summary judgment on a promissory note, awarding appellee $37,777.77, plus interest and attorney's fees.

Appellee alleged that appellants had defaulted on a note that was secured by an interest in a sailing vessel. As summary judgment evidence, appellant attached copies of the note and the security agreement, and an affidavit of its agent, Roger Plosa. The note provides that upon default by non-payment, appellee may accelerate the entire unpaid balance, plus accrued interest, without prior notice or demand. The note also provides that appellants remain liable despite any damage to, or destruction of, the vessel. Mr. Plosa testified in his affidavit that: (1) on July 16, 1984, appellants executed the note payable to appellee for a total amount of $84,454.68, and granted appellee a security interest in a sailing vessel; (2) that when the vessel was damaged, appellants ceased paying the note; (3) that the outstanding balance was $37,777.77, including principal and interest earned through February 27, 1987; (4) that the note was in default; and (5) that appellee, in accordance with its rights under the agreement, had accelerated the note.

Appellants filed affidavits stating that the vessel was a total loss.

In their sole point of error, appellants contend that "appellee's pleadings were insufficient as a matter of law to support the trial court's granting of appellee's motion for summary judgment for default under the terms of the promissory note." Appellants argue that the summary judgment evidence was legally insufficient because: (1) there was no proof of demand or notice of acceleration, other than a legal conclusion by an interested witness; 1 and (2) there was no proof to support the amount of damages due and owing. Appellants also contend that there was a fact issue raised about whether they were liable on the note.

A summary judgment is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Tex.R.Civ.P. 166a. In a summary judgment proceeding, the burden of proof is on the movant, and all doubts as to the existence of a genuine issue of fact are resolved against him. Roskey v. Texas Health Facilities Comm'n, 639 S.W.2d 302, 303 (Tex.1982) (per curiam). Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant, who must then present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).

Appellants first argue that there is no evidence to show demand, notice of intent to accelerate, and notice of acceleration, other than Mr. Plosa's statement that appellee "has executed its rights in accordance with the written agreement to accelerate the promissory note and declare all remaining payments due and owing." However, the promissory note expressly provides that upon default, appellee "may require that the entire unpaid balance of the Amount of Loan plus accrued interest and late charges be paid at once without prior notice or demand." (Emphasis added.) Language to this effect is an express waiver of demand and notice of acceleration requirements. See Real Estate Exchange, Inc. v. Bacci, 676 S.W.2d 440, 441 (Tex.App.--Houston [1st Dist.] 1984, no writ); Slivka v. Swiss Ave. Bank, 653 S.W.2d 939 (Tex.App.--Dallas 1983, no writ); Valley v. Patterson, 614 S.W.2d 867, 871-72 (Tex.Civ.App.--Corpus Christi 1981, no writ); Phillips v. Whiteside, 426 S.W.2d 350, 351-52 (Tex.Civ.App.--Houston [14th Dist.] 1968, no writ).

Appellants next contend that there is no evidence to support the $37,777.77 award of damages. They argue that appellee's summary judgment proof of damages is ambiguous because there is no breakdown of the damages. The note provided that the total amount due under the note for a period of 180 months was $84,454.68, to be paid as follows: the first 12 monthly installments in the amount of $397.55 each; the next 167 monthly installments in the amount of $474.31; and the final monthly installment for the remaining unpaid balance, estimated to be $474.31. The note also specified that the estimated interest would be $49,283.68, calculated at an annual percentage rate of 10.9% during the first 12 months, and at 14.25% during the remainder of the term. Mr. Plosa testified in his affidavit that the outstanding balance was $37,777.77, including principal and interest earned through February 27, 1987.

This evidence was sufficient as a matter of law to prove damages, see Western Federal Sav. & Loan Corp. v. Atkinson Fin. Corp., 747 S.W.2d 456, 463 (Tex.App.--Fort Worth 1988, no writ), and appellants did not assert prior offsets or payments as an affirmative defense. See Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162, 163 (Tex.1963); Tex.R.Civ.P. 93.

Lastly, we reject appellants' contention that a fact issue was raised about whether the insurance company was liable on the note. Appellants did not plead and verify by affidavit that there was any defect of parties, nor did they deny execution of the note. Tex.R.Civ.P. 93(4). In an action by a holder of a promissory note against the maker, where execution of the note has not been properly denied, the introduction of the note in evidence makes a prima facie case for the holder. Clark v. Dedina, 658 S.W.2d 293, 296 (Tex.App.--Houston [1st Dist.] 1983, dism'd w.o.j.); Hagar v. Texas Distrib., Inc., 560 S.W.2d 773, 775 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). Appellants' only summary judgment evidence went to the issue of whether the vessel was totally destroyed. The note provided, however, that appellants remained liable if the boat were damaged or destroyed.

Appellants' point of error is overruled.

The judgment is affirmed.

EVANS, Chief Justice, dissenting.

I disagree with the majority holding because in my opinion, the waiver provision in the note does not, as a matter of law, constitute a waiver of the maker's right to notice of the holder's intent to accelerate maturity.

When a promissory note provides an optional right to accelerate in the event of default, three types of notice must ordinarily be given. First, the holder must make presentment and demand for payment. Ogden v. Gibralter Sav. Ass'n, 640 S.W.2d 232 (Tex.1982); Allen Sales & Servicecenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975). Second, the holder must give notice of intent to accelerate maturity. Ogden, 640 S.W.2d at 233-34. Third, the holder must give notice that the note has actually been accelerated. Id. at 234.

All three prerequisites to the exercise of an optional acceleration clause must be performed unless expressly waived. Ogden, 640 S.W.2d at 233-34; Baldazo v. Villa Oldsmobile, Inc., 695 S.W.2d 815 (Tex.App.--Amarillo 1985, no writ).

The exercise of the power of acceleration provided for in a promissory note is a harsh remedy that deserves close scrutiny. Dhanani Inv., Inc. v. Second Master Bilt Homes, Inc., 650 S.W.2d 220, 223 (Tex.App.--Fort Worth 1983, no writ). Thus, the Texas Supreme Court has consistently held that acceleration clauses must be clear and unequivocal. See Ramo, Inc. v. English, 500 S.W.2d 461, 466 (Tex.1973); Motor & Indus. Fin. Corp. v. Hughes, 157 Tex. 276, 289, 302 S.W.2d 386, 394 (1957).

The majority opinion refers to four cases holding that waiver provisions, somewhat similar to the one here, constituted an effective waiver of notice of the holder's intent to accelerate maturity. In my opinion, each of those cases is distinguishable from the circumstances in this case.

In Real Estate Exchange Inc. v. Bacci, 676 S.W.2d 440, 441 (Tex.App.--Houston [1st Dist.] 1984, no writ), the note provided that in the event of a default in payment, the holder had the optional right "without demand or notice" to accelerate maturity. Id. This Court held that the maker had expressly waived the right to receive notice of the holder's intent to accelerate. The waiver provision in Real Estate Exchange Inc. is different from the note provision involved here. In that case, the waiver provision was clearly referrable to the holder's obligation to give notice of his intent to accelerate. Such express terms are not contained in the instant note.

Slivka v. Swiss Avenue Bank, 653 S.W.2d 939 (Tex.App.--Dallas 1983, no writ), was an appeal from a judgment after a full trial on the merits. The court simply held that the provisions of a note, which authorized optional acceleration of maturity "without demand, presentment, and notice," constituted "some" evidence that the maker waived notice of intent to accelerate. Id. at 941. The waiver provision in Slivka, as the provision in Real Estate Exchange, was clearly referrable to the holder's obligation to give notice of intent to accelerate.

Valley v. Patterson, 614 S.W.2d 867, 871-72 (Tex.Civ.App.--Corpus Christi 1981, no writ), was an appeal from the trial court's denial of an application for a temporary injunction to restrain a trustee's sale. One claim asserted by the applicants was that the holder of the note had not properly accelerated...

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3 cases
  • Shumway v. Horizon Credit Corp.
    • United States
    • Texas Supreme Court
    • 16 January 1991
    ...balance due on the note upon default. The trial court rendered summary judgment for the note holder, and the court of appeals affirmed. 768 S.W.2d 387. We hold that the makers waived presentment and notice of acceleration, but not notice of intent to accelerate. Accordingly, we reverse the ......
  • Strickland v. Coleman
    • United States
    • Texas Court of Appeals
    • 7 November 1991
    ...denied, the introduction of the note in evidence makes a prima facie case for the holder. Shumway v. Horizon Creditcorp, 768 S.W.2d 387, 389 (Tex.App.--Houston [1st Dist.] 1989, writ granted); Gonzalez v. Nielson, 770 S.W.2d 99, 102 (Tex.App.--Corpus Christi 1989, writ denied); Clark v. Ded......
  • Schlager v. Harris, 13-90-033-CV
    • United States
    • Texas Court of Appeals
    • 28 February 1991
    ...note has not been properly denied, the introduction of the note in evidence makes a prima facie case for the holder. Shumway v. Horizon Creditcorp, 768 S.W.2d 387, 388-389 (Tex.App.--Houston [1st Dist.] 1989, no writ). Possession of the note at time of suit when no marks or endorsements on ......

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