In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-14-00142-CV
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ELTON JAMES SENEGAL D/B/A SENEGAL CONSTRUCTION, Appellant
V.
COMMUNITYBANK OF TEXAS, N.A., Appellee
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On Appeal from the County Court at Law No. 1
Jefferson County, Texas
Trial Cause No. 120575
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MEMORANDUM OPINION
Elton James Senegal d/b/a Senegal Construction (“Senegal”) appeals from
the granting of summary judgment in favor of CommunityBank of Texas, N.A.
(“CBTX”) in CBTX’s suit on a promissory note. In his sole appellate issue,
Senegal argues that the trial court erred by granting summary judgment in favor of
CBTX because genuine issues of material fact exist. We affirm the trial court’s
judgment.
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CBTX alleged that Senegal executed a $50,000 promissory note, payable to
CBTX, and had failed to pay the note in accordance with its terms, leaving
$48,185.62 owing. Senegal alleged the affirmative defenses of accord and
satisfaction and payment. The trial court denied CBTX’s first motion for summary
judgment, to which Senegal had filed a response asserting that certain payments
had not been properly credited, and a fact issue existed concerning accord and
satisfaction as well as the balance, if any, Senegal owed. Senegal had attached as
exhibits to his response a list of seventeen payments he allegedly made toward the
note, as well as copies of bank statements and proofs of payment.
CBTX subsequently filed a second motion for traditional summary
judgment, in which it alleged that no genuine issues of material fact exist and it is
entitled to judgment as a matter of law. Attached as an exhibit to CBTX’s second
motion were Senegal’s responses to requests for admissions of fact, in which
Senegal admitted that he executed the note, CBTX is the owner and holder of the
note, he received value in exchange for the note, and by execution of the note, he
unconditionally promised to pay $50,000 to CBTX. In his responses to requests for
admissions, Senegal denied that no payments had been made and denied that the
amount due as principal and accrued interest was $48,185.62.
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Also attached as an exhibit to CBTX’s motion was the affidavit of George
A. Casseb, CBTX’s Senior Executive Vice President. Casseb stated in the affidavit
that the promissory note involved loan number 1646, and he explained that Senegal
and an entity in which Senegal claimed an interest also had two prior loans from
CBTX. Attached to Casseb’s affidavit were the loan histories of loan number 1646
and the other two loans, as well as statements from two deposit accounts Senegal
owned or in which Senegal claimed an interest. In the affidavit, Casseb itemized
the seventeen alleged payments referenced in Senegal’s response to CBTX’s first
motion for summary judgment, explained that only eight of those payments were
actually toward loan number 1646, explained the remaining nine transactions, and
averred that “[a]fter allowing all just credits and payments, the total amount due
and owing . . . is $48,581.04 plus interest, late charges, attorney fees, and court
costs.”
Senegal did not file a response to CBTX’s second motion for summary
judgment. The trial court signed a final judgment in which it granted CBTX’s
second motion for summary judgment, and Senegal appealed. On appeal, Senegal
argues that Casseb’s affidavit and the CBTX’s summary judgment “conflict with
each other” and that Senegal’s evidence conflicts with that of CBTX.
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We review summary judgment orders de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant for a traditional summary
judgment must establish that no genuine issues of material fact exist and it is
entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power
Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Randall’s Food Mkts., Inc. v.
Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In deciding whether there is a disputed
material fact issue precluding summary judgment, we take evidence favorable to
the nonmovant as true. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-
49 (Tex. 1985). We indulge every reasonable inference in favor of the nonmovant
and resolve any doubts in his favor. Id. at 549. If the movant produces sufficient
evidence to establish its entitlement to summary judgment, the burden shifts to the
nonmovant to produce evidence that raises a genuine issue of material fact. Rhone-
Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223-24 (Tex. 1999).
A plaintiff who sues to recover on a promissory note must establish the note
in question and demonstrate that (1) the defendant signed it, (2) the plaintiff is the
legal owner and holder thereof, and (3) a certain balance is due and owing on the
note. Rockwell Commons Assocs., Ltd. v. MRC Mort. Grantor Trust I, 331 S.W.3d
500, 505 (Tex. App.—El Paso 2010, no pet.) (citing TrueStar Petroleum Corp. v.
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Eagle Oil & Gas Co., 323 S.W.3d 316, 319 (Tex. App.—Dallas 2010, no pet.)). To
defeat summary judgment by raising an affirmative defense, a nonmovant must do
more than simply plead the affirmative defense; instead, it must produce evidence
sufficient to raise a genuine issue of material fact on each element of its affirmative
defense. Divin v. Tres Lagos Prop. Owners’ Ass’n, No. 06-13-00124-CV, 2004
WL 3865846, at *3 (Tex. App.—Texarkana Aug. 7, 2014, pet. denied) (mem. op.).
The nonmovant must offer evidence sufficient to raise a genuine issue of material
fact on each element of his affirmative defense. Id.
Based upon our review of the record, we conclude that CBTX presented
sufficient evidence to establish the essential elements of its suit to recover on the
promissory note. See Rockwall Commons Assocs., 331 S.W.3d at 505; see also
Atchley v. NCNB Tex. Nat’l Bank, 795 S.W.2d 336, 337 (Tex. App.—Beaumont
1990, writ denied) (Affidavit of bank vice president concerning amount of
principal and interest owed on the note on the date of default and the per diem
interest accruing from that date forward was sufficient to support summary
judgment.). Therefore, the burden of proof shifted to Senegal to produce evidence
that created a genuine issue of material fact. See Steel, 997 S.W.2d at 223-24. We
conclude that Senegal failed to establish his affirmative defenses of payment and
accord and satisfaction, and he failed to raise a genuine issue of material fact. The
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trial court did not err by granting CBTX’s motion for summary judgment.
Accordingly, we overrule Senegal’s sole appellate issue and affirm the trial court’s
judgment.
AFFIRMED.
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STEVE McKEITHEN
Chief Justice
Submitted on May 12, 2015
Opinion Delivered May 21, 2015
Before McKeithen, C.J., Kreger and Johnson, JJ.
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