Melanie Dorsett, as Executrix of Melanie Foster's Estate v. Hispanic Housing and Education Corporation

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Laws-info.com » Cases » Texas » 14th District Court of Appeals » 2012 » Melanie Dorsett, as Executrix of Melanie Foster's Estate v. Hispanic Housing and Education Corporation

State: Texas

Court: Texas Northern District Court

Docket No: 14-11-00039-CV

Case Date: 12/13/2012

Plaintiff: Melanie Dorsett, as Executrix of Melanie Foster's Estate

Defendant: Hispanic Housing and Education Corporation

Preview:Reversed and Remanded and Opinion and Concurring Opinion filed December 13, 2012.

In The

Fourteenth Court of Appeals
NO. 14-11-00039-CV MELANIE DORSETT, AS EXECUTRIX OF MELANIE FOSTER'S ESTATE, Appellant V. HISPANIC HOUSING AND EDUCATION CORPORATION, Appellee On Appeal from the 189th District Court Harris County, Texas Trial Court Cause No. 2008-31769

CONCURRING OPINION
Appellant/plaintiff Melanie Dorsett, as executrix of Melanie Foster's Estate, pleaded a single claim to recover on a promissory note against appellee/defendant Hispanic Housing and Education Corporation (the "Corporation"). In its no-evidence motion for summary judgment the Corporation did not assert that there was no evidence of one or more of the essential elements of Dorsett's promissory-note claim, as required by Texas Rule of Civil Procedure 166a(i). Therefore, the Corporation's motion was

insufficient as a matter of law, and the trial court erred in granting summary judgment. Though the majority reaches the right result in reversing the trial court's judgment, it does so after concluding that the summary-judgment evidence raised a fact issue as to two essential elements of Dorsett's promissory-note claim. This analysis is incorrect because the Corporation did not challenge these elements in its no-evidence motion, and even if the Corporation had done so, the summary judgment evidence does not raise a fact issue as to one of these essential elements of Dorsett's claim.

DORSETT'S PROMISSORY-NOTE CLAIM
In her petition, Dorsett asserts a single claim against the Corporation--a promissory-note claim. As noted by the majority, to recover on this claim, Dorsett must prove (1) there is a note, (2) Dorsett is the legal owner and holder of the note, (3) the Corporation is the maker of the note, and (4) a "certain balance" is due and owing on the note. See McLernon v. Dynegy, Inc., 347 S.W.3d 315, 324 (Tex. App.--Houston [14th Dist.] 2011, no pet.); Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.--Houston [14th Dist.] 1994, no writ). An "essential element" of a claim is an element that, under the law, the claimant must prove before the claimant can recover on the claim in question. See Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 434 (Tex. App.-- Houston [14th Dist.] 1999, no pet.). Therefore, these four elements are the essential elements of Dorsett's promissory-note claim. See McLernon, 347 S.W.3d at 324;

Lampasas, 988 S.W.2d at 434; Blankenship, 899 S.W.2d at 238.

THE CORPORATION'S SUMMARY-JUDGMENT MOTION
The Corporation attached no evidence to its summary-judgment motion, and the Corporation did not assert any traditional summary-judgment grounds. The Corporation asserted only no-evidence grounds. In its motion, however, the Corporation did not mention the essential elements of Dorsett's promissory-note claim. Instead, the Corporation asserted that Dorsett's claim was for breach of contract. The Corporation then listed the alleged essential elements of a breach-of-contract claim, none of which are the same as the essential elements of a promissory-note claim.
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In the course of

challenging three of the four essential elements of a breach-of-contract claim that it had listed, the Corporation asserted that Dorsett had no evidence that (1) the Corporation had a duty to pay the promissory note in question, (2) the Corporation had a duty to pay late fees and accrued interest under the note, (3) the Corporation defaulted in paying the note, (4) the Corporation breached the contract, (5) the Corporation failed to pay the note, or (6) the Corporation's alleged breach of contract caused Dorsett "injury."

THE LEGAL INSUFFICIENCY OF THE CORPORATION'S MOTION
For the Corporation's no-evidence motion for summary judgment to be deemed legally sufficient, the Corporation must have stated in the motion that there was no evidence of one or more essential elements of Dorsett's promissory-note claim. See Tex. R. Civ. P. 166a(i); Cuyler v. Minns, 60 S.W.3d 209, 212 (Tex. App.--Houston [14th Dist.] 2001, pet. denied); Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n.2 (Tex. App.--Houston [1st Dist.] 1999, no pet.). The Corporation was not entitled to summary judgment as to a claim Dorsett did not assert. See Miller v. Schwartz, No. 14-04-00352CV, 2005 WL 757249, at *2 (Tex. App.--Houston [14th Dist.] Apr. 5, 2005, no pet.) (mem. op.). Even though a promissory note is considered a species of contract, Texas courts have specified different essential elements for a claim on a promissory note than for a claim for breach of other types of contracts. Compare McLernon, 347 S.W.3d at 324, with Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.--Houston [14th Dist.] 2005, pet. denied). To have been entitled to a no-evidence summary judgment as to Dorsett's promissory-note claim, the Corporation would have had to state in its motion that there was no evidence of one or more essential elements of this claim. See Tex. R. Civ. P. 166a(i); Cuyler, 60 S.W.3d at 212; Weaver, 4 S.W.3d at 829 n.2. Because the Corporation did not do so, the Corporation's motion is insufficient as a matter of law. See Tex. R. Civ. P. 166a(i); Miller, 2005 WL 757249, at *2 (holding trial court erred in granting no-evidence summary judgment challenging element that was not an essential element of the plaintiff's claim); Cuyler, 60 S.W.3d at 212; Weaver, 4 S.W.3d at 829 n.2. Even if Dorsett failed to specially except or otherwise point out this deficiency in the trial
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court, she may do so for the first time on appeal. See Cuyler, 60 S.W.3d at 212

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