
    THU BINH SI HO, Appellant v. SAIGON NATIONAL BANK, Appellee.
    No. 14-13-00607-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    July 22, 2014.
    Stephen H. Cagle Jr., Houston, for Appellant.
    Manfred Sternberg Jr., Houston, for Ap-pellee.
    Panel consists of Chief Justice FROST and Justices JAMISON and WISE (C.J. FROST, dissenting).
   MAJORITY OPINION

KEN WISE, Justice.

Appellee Saigon National Bank (“Saigon”) sued Appellant Thu Binh Si Ho, seeking to collect the principal balance due and owing on a promissory note, along with interest and fees. Saigon moved for traditional summary judgment, which the trial court granted.

In three issues, Ho contends that the trial court erred in granting Saigon’s motion for summary judgment because the evidence was legally insufficient. We reverse the trial court’s judgment and remand for further proceedings.

Background

Saigon filed suit to collect on a promissory note executed by Ho. Saigon alleged that Ho had defaulted on the note and a principal balance of $828,789.71 remained due and owing. Saigon requested the principal balance, pre- and post-judgment interest, and attorney’s fees. Ho generally denied the allegations.

Saigon filed a motion for summary judgment. As evidence for its motion, Saigon offered an affidavit from its Chief Credit Officer and Executive Vice President, Patrick Siu. Photocopies of the original promissory note and business loan agreement, both signed by Ho, were attached to the affidavit.

Ho responded to the summary-judgment motion, arguing that the Siu affidavit was improper summary-judgment evidence because it was not based on personal knowledge and contained conclusory statements. The trial court overruled these objections and granted Saigon’s motion. A final judgment was entered in favor of Saigon, awarding the bank $828,789.91, together with pre- and post-judgment interest until paid.

Standard of Review

We review the trial court’s grant of summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.2007). To prevail on a traditional summary-judgment motion under Texas Rule of Civil Procedure 166a(c), a movant must establish that there are no genuine issues of material of fact and that it is entitled to judgment as a matter of law. M.D. Anderson Hosp. and Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam). When reviewing a motion for summary judgment, we take the nonmovant’s evidence as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubts in favor of the nonmovant. Id.

Issues and Analysis

Ho contends the Siu affidavit is insufficient to support the trial court’s grant of summary judgment. In his first and third issues, Ho asserts that the trial court improperly considered the Siu affidavit because it contains conclusory statements and is not based on personal knowledge. In his second issue, Ho contends that the affidavit evidence does not establish that Saigon is entitled to judgment as a matter of law. We address Ho’s second issue first.

A. Waiver

As a threshold matter, Saigon contends that Ho did not preserve his second issue for appeal. In his brief, Ho states his second issue as follows: “The trial court erred in admitting the affidavit of Patrick Siu as summary judgment evidence because it does not prove the elements necessary to recover a debt.” Saigon asserts that Ho did not raise this objection in its response to Saigon’s motion for summary judgment, and issues not expressly presented to the trial court by written motion or response to the motion for summary judgment cannot be considered on appeal as grounds for reversal. See Tex.R. Civ. P. 166a(c).

To the extent that Ho is arguing in his second issue that the trial court erred in admitting the Siu affidavit as summary-judgment evidence because it does not prove the elements necessary to recover a debt, this is an evidentiary objection that would be waived if not preserved in the trial court. Ho may, however, challenge for the first time on appeal whether the summary-judgment evidence proved the movant’s entitlement to judgment as a matter of law as to a traditional summary-judgment ground. See Willrich, 28 S.W.3d at 23. In his brief, Ho concludes his argument regarding his second issue as follows:

The Affidavit of Siu is insufficient to satisfy the necessary elements in an suit [sic] to recover on a debt since a question of fact remains as to the existence of the promissory note, whether Saigon is the holder of the note, or that the balance on said note was due and owing in the amounts claimed by Saigon. Saigon, therefore failed to meet their burden of proof. Since questions of material fact exists, [sic] summary judgment was improper and this Court should remand this cause to the Trial Court.

We must construe appellate briefs reasonably, yet liberally, so that the right to appellate review is not lost by waiver. See Tex.R.App. P. 38.1(f); Perry v. Cohen, 272 S.W.3d 585, 587 (Tex.2008) (per curiam). We should reach the merits of an appeal whenever reasonably possible. Perry, 272 S.W.3d at 587. Although Ho introduces his issue as an objection to the admission of the affidavit, we interpret it as challenging whether Saigon’s proof is sufficient as a matter of law to support its summary judgment. Thus, Ho’s second issue is not waived. See Willrich, 28 S.W.3d at 23.

B. Whether Saigon’s Summary-Judgment Evidence Proved its Entitlement to Judgment as a Matter of Law

To prevail in a suit on a promissory note, a plaintiff must prove: (1) the note in question; (2) the party sued signed the note; (3) the plaintiff is the owner or holder of the note; and (4) a certain bal-anee is due and owing on the note. Dor-sett v. Hispanic Hous. and Educ. Corp., 389 S.W.3d 609, 613 (Tex.App.-Houston [14th Dist.] 2012, no pet.).

A true and correct copy of a note is sufficient to establish plaintiffs status as owner and holder when affidavit testimony claims ownership, absent controverting evidence. See, e.g., McLernon v. Dynegy, Inc., 347 S.W.3d 315, 326 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (citing Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (per curiam)); Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex.App.-Houston [14th Dist.] 1994, no writ). Siu avers in his affidavit that Saigon executed a loan agreement with Ho, that Ho subsequently defaulted on that agreement, and that Saigon made demand on an amount due and owing. But Siu does not state that Saigon is the current owner and holder of the note. Without any testimony claiming current ownership, simply attaching an alleged photocopy of the original note to the Siu affidavit is insufficient to establish Saigon as the owner and holder of the note. See Zarges, 652 S.W.2d at 369. Moreover, Siu’s affidavit states, “[t]he maturity date for this loan as amended is June 21, 2015.... ” The copy of the note attached to Siu’s affidavit only shows a maturity date of April 21, 2010. No amendment to the note or the loan agreement is attached, which further raises a question as to whether Saigon is the current owner of the note upon which it bases its claim.

Saigon counters that the trial court’s summary judgment should be upheld because Ho has not raised a fact issue controverting Saigon’s current ownership of the note. But, Ho is not obligated to raise a fact issue controverting Saigon’s ownership. Before the burden shifts to Ho to raise a material fact issue to defeat Saigon’s summary-judgment motion, Saigon must first conclusively prove all elements of its claim. See Willrich, 28 S.W.3d at 22.

Finally, Saigon asserts the trial court could determine Saigon’s ownership of the note because of our statements in the recent case of Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d 110 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). In that case, we explained that a bank’s affidavit in support of its motion for summary judgment did not contain impermissible legal conclusions when the documents it discussed were attached to the affidavit and included in the summary-judgment record. Id. at 125. Regarding each of the challenged paragraphs in the bank’s affidavit, we stated that, “a copy of the referenced document was attached to [the affiant’s] affidavit, so the court could determine the legal effect of the document for itself.” Id. Based on this language, Saigon urges us to hold that the trial court could determine Saigon’s current ownership of the note in this case by simply viewing the attached photocopy of the note.

In Grace Interest, we held that the affi-ant’s references in his affidavit to several disputed agreements in the case were not impermissible conclusory statements because the referenced agreements were attached to the affidavit. See id. at 125 & n. 5. For example, the plaintiffs affidavit testimony that, “pursuant to [the Agreement], Grace ... assumed payment of the Note and all other obligations,” was not conclusory because the Agreement was attached. See id. Here, Saigon argues that a trial court may find an essential element of a cause of action conclusively established when no affidavit testimony speaks to that element.

We did not hold in Grace Interest that a trial court may find an essential element of a claim conclusively established simply by viewing an attached document when neither the document nor the affidavit gives evidence of that element. We held only that a party’s affidavit testimony about the legal effects of certain agreements is not conclusory when the agreements are attached. See id. We reject Saigon’s argument.

We conclude that Saigon failed to conclusively establish its current ownership of the note, as is necessary to recover in a suit on a promissory note. See Dorsett, 389 S.W.3d at 613. Saigon did not present evidence of its current ownership of the note and, instead, described a note by affidavit testimony with a different maturity date than the version attached to the affidavit. Thus, Saigon failed to establish its entitlement to summary judgment as a matter of law. See Tex.R. Civ. P. 166a(c). Accordingly, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion.

KEM THOMPSON FROST, Chief Justice,

dissenting.

Appellee Saigon National Bank asserts both a note claim and a claim for breach of a loan agreement. Because the statements in the summary-judgment affidavit are conclusory as to both the balance due and owing under the note and the damages resulting from the alleged breach of the loan agreement, this court should sustain appellant Thu Binh Si Ho’s third issue, reverse the trial court’s judgment, and remand for further proceedings.

The Bank’s Claims

No special exceptions were sustained against the bank’s live petition; therefore, this court is to construe that pleading liberally in the bank’s favor to include all claims that reasonably may be inferred from the language used in the petition, even if the petition does not state all the elements of the claim in question. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.2000). Under this liberal construction, the bank pleaded both a note claim against Ho and a claim for breach of a loan agreement. The essential elements of a note claim are: (1) there is a note; (2) the party sued signed the note; (3) the claimant is the owner and holder of the note; and (4) a certain balance is due and owing on the note. See McLemon v. Dynegy, Inc., 347 S.W.3d 315, 324 (Tex.App.-Houston [14th Dist.] 2011, no pet.). The essential elements of a claim for breach of a loan agreement are: (1) the existence of a valid loan agreement; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. See Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). In its summary-judgment motion, the bank sought judgment as a matter of law on both of these claims.

In this opinion, it is presumed that (1) under a liberal construction, Ho’s appellate brief contains an argument that the summary-judgment evidence does not conclusively prove all the elements of a note claim; and (2) the summary-judgment evidence does not conclusively prove that the bank is the owner and holder of the note. Even under these presumptions, the absence of conclusive proof that the bank is the owner and holder of the note would not provide a basis for reversing summary judgment as to the bank’s claim for breach of the loan agreement. See McLemon, 347 S.W.3d at 324.

Summary-Judgment Evidence

Liberally construing Ho’s appellate brief, Ho complains that the summary-judgment evidence regarding the balance due and owing under the note and the bank’s damages resulting from the alleged breach of the loan agreement is concluso-ry. In his affidavit, Patrick Siu testified that the maturity date for the loan, as amended, was June 15, 2015, that Ho defaulted on his payments, and that the note is due in full. Siu also testified that Ho has failed and refused to pay the remaining balance of the loan, which Siu states is $828,789.71 — the amount of. actual damages awarded in the trial court’s summary judgment. Siu says nothing else about the balance under the note or the contract damages. Siu does not state the date on which this remaining balance was calculated or the date on which Ho defaulted. Nor does Siu state whether this amount includes accrued interest, attorney’s fees, late charges, or other amounts other than principal. Siu does not state that any amount of interest is accruing daily. He does not state that, in calculating this amount, the bank has allowed all just and lawful offsets, payments, and credits.

The copies of the note and loan agreement (the only documents attached to Siu’s affidavit) reflect a maturity date of April 21, 2010, a date long before Siu executed his affidavit in February 2013. A renewal agreement changing various terms and extending the maturity date is in our record attached to the bank’s original petition, a pleading that was superseded before the trial court granted summary judgment. That agreement, according to its terms, appears to have amended the terms of the note and loan agreement. If so, that document is not attached to Siu’s affidavit and is not contained in the summary-judgment evidence. In any event, it appears that some instrument or instruments amended or superseded the terms of the note and loan agreement, yet no such documents are attached to Siu’s affidavit or contained in the summary-judgment evidence.

Lack of Proof Necessary to Sustain Summary Judgment

The summary-judgment evidence regarding the balance due and owing under the note and the bank’s damages resulting from the alleged breach of the loan agreement is conclusory. Therefore, the bank did not conclusively prove all of the elements of either of these claims, and the trial court erred in granting summary judgment. See McLernon, 347 S.W.3d at 324; Aguiar, 167 S.W.3d at 450. Accordingly, this court should sustain Ho’s third issue, reverse the trial court’s judgment, and remand for further proceedings consistent with the analysis in this dissenting opinion. Because the court does not do so, I respectfully dissent. 
      
      . The trial court did not abuse its discretion in overruling Ho's objections to Siu’s affidavit based on lack of personal knowledge and hearsay. Ho waived his objections that (1) the bank failed to authenticate the note and (2) that the affidavit was not proper summary judgment evidence because it does not prove the elements necessary for the bank to recover on a debt, inasmuch as these complaints are objections to form that Ho failed to assert in the trial court. See Commint Tech. Servs., Inc. v. Quickel, 314 S.W.3d 646, 651 (Tex. App.-Houston [14th Dist.] 2010, no pet.).
     