Sandhu v. Pinglia Investments of Texas, LLC
(Tex.App.- Houston [14th Dist.] Jun. 25, 2009)(Seymore) (commercial real estate transaction: financing of
purchase of shopping center, suit for breach of promissory note, summary judgment procedure, affirmative
defenses not properly asserted in response to Plaintiff's motion, proof of balance due and damages in note suit)
Decision: TRIAL COURT'S SUMMARY JUDGMENT FOR PLAINTIFF-CREDITOR AFFIRMED:
Opinion by Justice Charles Seymore
Panel members: Chief Justice Hedges, Justices Anderson and Seymore
14-08-00184-CV Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia
Appeal from 164th District Court of Harris County
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NO. 14-08-00184-CV
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RAGHBIR SANDHU, Appellant
V.
PINGLIA INVESTMENTS OF TEXAS, L.L.C. AND SUMER PINGLIA, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2006-64473
M E M O R A N D U M O P I N I O N
Appellant, Raghbir Sandhu, appeals a summary judgment in favor of appellees, Pinglia Investments of Texas, L.
L.C. and Sumer Pinglia, in their suit to recover on a promissory note. In four issues, Sandhu contends (1) the
trial court erred by granting summary judgment after trial began, (2) there was a genuine issue of material fact
on whether Sandhu received the loan proceeds at issue, (3) there was no competent summary-judgment
evidence regarding the amount of damages, and (4) Sandhu raised a fact issue on each element of his
affirmative defenses. We affirm.
I. Background
In 2005, appellant, Raghbir Sandhu, was planning a move from California to Texas. He wished to purchase a
piece of property in Texas, and friends recommended he speak with Kuldip Singh. According to Sandhu, Singh
told him he was a real-estate broker.[1] Singh showed Sandhu the Woodforest North Plaza Shopping Center
and eventually arranged a meeting between Sandhu and appellee Sumer Pinglia. Appellee, Pinglia
Investments of Texas, L.L.C. ("Pinglia Investments"), was selling the property; Sumer Pinglia is the principal of
Pinglia Investments. The property contained rented retail space as well as a washateria, which was owned and
operated by Pinglia Investments. When Sandhu could not secure a loan to cover the purchase price, he asked
Pinglia to loan him the remaining amount of money. On August 29, 2005, Sandhu executed a Subordinate
Real Estate Lien Note in which he was listed as the maker and Pinglia Investments as the payee. The original
principal amount of the loan was $200,000; however, another version of the document shows that number
crossed out and $131,000 written in with the initials of the parties next to the change. During his deposition,
Sandhu admitted the parties made this change. According to the terms of the note, the scheduled maturity
date was August 29, 2006, twelve months from the date of the note.
In October 2006, Pinglia and Pinglia Investments sued Sandhu for breach of the promissory note, claiming
that Sandhu did not make any payments. Sandhu filed a verified original answer, denying the allegations,
contending conditions precedent to the filing of suit had not been satisfied, claiming the suit was barred by the
doctrine of release, and asserting the affirmative defenses of estoppel, waiver, statute of frauds, fraud, and
failure of consideration. In October 2007, Pinglia Investments moved for partial summary judgment. Sandhu
filed a response followed by a supplemental response.
The trial court considered the motion for partial summary judgment after the jury had been selected. At the end
of the hearing, the trial court orally granted the motion. Subsequently, Pinglia Investments filed a proposed
final judgment and motion for entry of final judgment. Sandhu filed a motion for reconsideration of the motion
for partial summary judgment, stating that, when the trial court heard the motion, it was unclear whether the
supplemental response was timely filed. Sandhu submitted a certified copy of his supplemental response and
requested the court to reconsider the motion for partial summary judgment. Sandhu also filed an objection and
exception to the proposed judgment. The trial court denied the motion for reconsideration and overruled the
objection and exception to final judgment. On January 25, 2008, the trial court signed a final judgment,
awarding Pinglia Investments $199,853.28 in damages, representing the principal, interest, and penalties owed
by Sandhu under the promissory note.
II. Standard of Review
A party moving for traditional summary judgment must establish that no genuine issue of material fact exists
and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). In particular, a plaintiff moving for summary judgment must
conclusively prove all essential elements of its claim. Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.-
Houston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)). If the
movant facially establishes its right to summary judgment, the burden shifts to the non-movant to raise a
genuine issue of material fact sufficient to defeat summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.
W.2d 195, 197 (Tex. 1995); Lundstrom v. United Servs. Auto. Ass'n-CIC, 192 S.W.3d 78, 84 (Tex. App.-
Houston [14th Dist.] 2006, pet. denied). If, as here, the non-movant relies on an affirmative defense to oppose
the summary- judgment motion, he must provide sufficient summary-judgment evidence to create a fact issue
on each element of the defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Anglo-Dutch
Petroleum Int'l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.- Houston [1st Dist.] 2006, pet. denied). The non-
movant is not required to prove the affirmative defense as a matter of law; raising a material fact issue is
sufficient to defeat summary judgment. See Brownlee, 665 S.W.2d at 112; Anglo-Dutch Petroleum, 193 S.W.3d
at 95.
We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take all evidence favorable to the
nonmovant as true and indulge every reasonable inference and resolve any doubts in favor of the nonmovant.
Id.
III. Analysis
A. Summary Judgment After Trial Began
In his first issue, Sandhu asserts the trial court erred in granting the motion for partial summary judgment after
trial had commenced. Furthermore, Sandhu contends the grant of the motion for summary judgment deprived
him of his fundamental right of trial by jury. The reporter's record is an excerpt from the proceedings and does
not indicate at what point the trial court conducted the hearing on the motion for partial summary judgment,
other than it was held outside the presence of the jury. According to the docket sheet entry, it was after the
jury had been seated and sworn.
The Texas Rules of Civil Procedure require only that a certain amount of notice be provided to the non-movant
before a motion for summary judgment is heard. See Tex. R. Civ. P. 166a(c) ("Except on leave of court, with
notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-
one days before the time specified for hearing."). Sandhu cites, and we find, no authority prohibiting a trial
court from considering a motion for summary judgment after trial has begun as long as the non-movant
received the requisite notice. In this case, it is uncontested that proper notice was given under the rules.[2]
Accordingly, the trial court did not err by hearing the motion for summary judgment after trial began.
Nor did the trial court deprive Sandhu of his right to a trial by jury when it granted the motion for summary
judgment.[3] The Texas Constitution provides, "The right of trial by jury shall remain inviolate." Tex. Const. art.
I, §15. The right to a jury trial in civil cases is not absolute; rather, it is regulated by rules specifying its
availability. See Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968). When a party cannot show
a material fact issue, there is nothing to submit to a jury, and the granting of summary judgment to the opposing
party does not violate the constitutional right to a jury trial. Querner Truck Lines, Inc. v. Alta Verde Indus., Inc.,
747 S.W.2d 464, 469 (Tex. App.- San Antonio 1988, no writ); Carrabba v. Employers Cas. Co., 742 S.W.2d
709, 717 (Tex. App.- Houston [14th Dist.] 1987, no writ). In issues two through four, we hold that Sandhu did
not raise a material fact issue to preclude summary judgment. Therefore, the trial court's granting of the motion
for partial summary judgment did not violate his constitutional right to a jury trial.
Accordingly, we overrule Sandhu's first issue.
B. Whether Sandhu Received Loan Proceeds
In his second issue, Sandhu contends the trial court erred in granting summary judgment because there were
disputed material facts regarding the promissory note. Specifically, Sandhu argues (1) his deposition testimony
reflected that he never received the $131,000, (2) the Notice of Final Agreement referred to $200,000 as
"extend credit or make financial accommodations," and (3) the Commercial Contract - Improved Property stated
that Pinglia Investments was to pay $131,000 and $69,000 to the co-operating broker and consultant,
respectively.
In the motion for partial summary judgment, Pinglia Investments claimed it loaned Sandhu $131,000 under the
note and Sandhu never made payments. Pinglia Investments stated it was entitled to recover the principal,
$131,000, plus interest and delinquency charges as a result. Pinglia Investments also argued that Sandhu's
defenses of breach of the commercial contract and fraudulent inducement failed as a matter of law. Attached
to the motion for partial summary judgment was (1) a copy of the promissory note, (2) an affidavit from Sumer
Pinglia, (3) excerpts from Sandhu's deposition, (4) a copy of Sandhu's supplemental responses to
interrogatories, (5) a copy of the notice of final agreement, and (6) a copy of the commercial contract B
improved property.
In Sandhu's response to Pinglia Investments's motion for partial summary judgment, Sandhu argued for a
continuance and objected to the motion because it was allegedly filed in violation of the trial court's docket
control order. In his supplemental response, Sandhu objected to Sumer Pinglia's affidavit, contending it was
conclusory, and other exhibits for lack of proper authentication. He alleged the affirmative defense of fraud and
contended summary judgment was not proper because exhibit C referred to an agreement for $131,000, exhibit
E referred to an agreement for $200,000, and exhibit F referred to an attached list of items required of Pinglia
Investments but no list was attached.[4]
For the first time on appeal, Sandhu argues he never actually received the $131,000. The non-movant must
expressly present to the trial court, by written answer or response, any issues defeating the movant's
entitlement to summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979); Tello v. Bank One, N.A., 218 S.W.3d 109, 118 (Tex. App.- Houston [14th Dist.] 2007, no pet.). “Issues
not expressly presented to the trial court by written motion, answer or other response shall not be considered
on appeal as grounds for reversal." Tex. R. Civ. P. 166a(c). However, a motion for traditional summary
judgment must stand or fall on its own merits, and the non-movant's failure to answer or respond cannot supply
by default the summary-judgment proof necessary to establish the movant's right. McConnell v. Southside
Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). Even if a non-movant fails to present any issues in its
response or answer, the movant's right is not established by default; the movant must still establish its
entitlement to summary judgment. Id. "The effect of such a failure is that the non-movant is limited on appeal
to arguing the legal sufficiency of the grounds presented by the movant." Id.
To prove its promissory-note claim, Pinglia Investments had to establish (1) there was a note, (2) Pinglia
Investments was the legal owner and holder of the note, (3) Sandhu was the maker of the note, and (4) a
certain balance was due and owing on the note. Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.-
Houston [14th Dist.] 1994, no writ). To prove its claim, Pinglia Investments presented a copy of the note and an
affidavit from Sumer Pinglia, stating that the copy of the note was true and correct. A photocopy of a
promissory note, attached to an affidavit in which the affiant swears that the photocopy is a true and correct
copy of the original note, is proper summary-judgment proof to establish the existence of the note. Id. The
payee establishes ownership of the note when he attests in an affidavit that he is the owner of the note,
attaches a sworn “true and correct" copy of the original note to his affidavit, the note shows on its face it was
issued to him, and there is no summary-judgment proof showing the note has ever been pledged, assigned,
transferred, or conveyed. Id. (citing Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983)). When the defendant
does not deny the genuineness of his signature on the note, he is established as the maker. Id. (citing
Groschke v. Gabriel, 824 S.W.2d 607, 610 (Tex. App.- Houston [1st Dist.] 1991, writ denied)).
Here, Sumer Pinglia, on behalf of Pinglia Investments, stated in the affidavit that Pinglia Investments's
ownership of the note had not been assigned or transferred, Pinglia Investments remained the holder of the
note, and as of October 5, 2007, Sandhu owed Pinglia Investments $199,853.28 under the note, which
included past due principal, interest, and contractual delinquency charges. The face of the note listed Sandhu
as the maker and contained Sandhu's signature, and Sandhu did not deny the genuineness of his signature.
Sandhu attempts to defeat summary judgment through his appellate contention that his deposition testimony
raised a fact issue on whether he received the money. Likewise, to the extent Sandhu is arguing Pinglia
Investments was to Aextend credit or make financial accommodations" and did not do so or that Pinglia
Investments was to pay $131,000 and $69,000 to the co-operating broker and consultant and it was not
Sandhu's obligation to do so, Sandhu was required to expressly present these issues to the trial court in
response to the motion for summary judgment. See Tex. R. Civ. P. 166a(c); Tello, 218 S.W.3d at 119.
Because he did not do so, we may not consider these issues as grounds for reversal. Tello, 218 S.W.3d at 119.
Therefore, we overrule Sandhu's second issue.
C. Amount of Damages
In his third issue, Sandhu contends the last sentence of Sumer Pinglia's affidavit was conclusory. In the last
sentence, Pinglia stated, “As of October 5, 2007, Raghbir Sandhu owes Pinglia Investments $199,853.28 under
the Subordinate Real Estate Lien Note, which includes past due principal, interest, and contractual delinquency
charges." Other than claiming for the first time on appeal that no money was paid to him, Sandhu has not
asserted the amount in the affidavit was incorrect. Rather, he contends the last sentence of the affidavit was
conclusory because there were no supporting facts and no evidence as to how the amount was calculated.
Pinglia Investments argues Sandhu did not obtain a ruling on his objection to this summary-judgment evidence
and, therefore, his third issue was not preserved for appeal. While at least one court has held this same
argument is not preserved when the appellant fails to object and obtain a ruling, other courts, including this
one, have stated that an objection an affidavit is conclusory challenges the substance of the affidavit and may
be raised for the first time on appeal. Compare Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d
25, 28-29 (Tex. App.- Dallas 1992, no writ) with Griffin v. Methodist Hosp., 948 S.W.2d 72, 76 n.2 (Tex. App.-
Houston [14th Dist.] 1997, no writ). We need not decide whether Sandhu preserved error because we hold the
affidavit was not conclusory.
An affidavit stating the balance due on a promissory note can be specific and sufficient on its face to establish
a fact that could be proven at trial so summary judgment based in part on the affidavit is proper. See Ecurie
Cerveza Racing Team, Inc. v. Texas Commerce Bank-Southeast, 633 S.W.2d 574, 575 (Tex. App.- Houston
[14th Dist.] 1982, no writ). Here, the affiant stated the specific amount due on the note as of a certain date and
represented that the amount included principal, interest, and contractual delinquency charges. The statement
in the affidavit was not conclusory. See Hudspeth v. Investor Collection Servs. Ltd. Partnership, 985 S.W.2d
477, 479 (Tex. App.- San Antonio 1998, no pet.) (holding statement not conclusory when affidavit and law firm
collection letter fixed liability on a note at certain amount without providing detailed proof of calculations); 8920
Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex. App.- Houston [14th Dist.] 1986, writ ref'd n.r.e.) (holding
statement not conclusory when affidavit recited principal balances and interest due). If there were any question
as to the break down of interest and delinquency charges, the note itself, a copy of which was attached as
summary-judgment evidence, set forth the principal amount, interest to be paid at 8 percent for the first six
months and 12 percent for the second six months, and the penalty on matured, unpaid amounts, namely 20
percent of the delinquent installment amount and interest accruing on past due amounts at a rate of 18 percent
per annum from the date on which payment is due until payment is received. Moreover, Sandhu has not
presented any controverting evidence raising a fact issue as to Pinglia Investments's method of computation
and the accuracy of its figures. See 8920 Corp., 722 S.W.2d at 720; Sharpe Lomas & Nettleton Finan. Corp.,
601 S.W.2d 55, 57 (Tex. App.- Dallas 1980, writ ref'd n.r.e.) (stating it was defendant's burden to point out any
inaccuracy in computation or reasons for inability to do so).
Accordingly, we overrule appellant's third issue.
D. Affirmative Defenses
In his fourth issue, Sandhu contends he pleaded and raised a fact issue on each element of the affirmative
defenses of failure of consideration, fraud, and estoppel. However, Sandhu did not raise failure of
consideration or estoppel in either his response or supplemental response to the motion for partial summary
judgment. A non-movant is required to expressly present to the trial court any issues defeating the movant's
entitlement to summary judgment. Tello, 218 S.W.3d at 118. Issues are "expressly" presented in accordance
with Rule 166a(c) when the written answer or response to the motion for summary judgment fairly apprises the
movant and the trial court of the issues the non-movant contends should defeat the motion. Id. at 119. In
determining which issues were expressly presented to the trial court, a reviewing court may not rely on the
appellate briefs or the summary-judgment evidence.[5] Dubose v. Worker's Med., P.A., 117 S.W.3d 916, 920
(Tex. App.- Houston [14th Dist.] 2003, no pet.). Any issues not expressly presented to the trial court in a written
response shall not be considered as grounds for reversal. Id. Therefore, Sandhu has waived these issues on
appeal. Id.
With regard to fraud, Sandhu's responses were minimal. Sandhu generally alleged the affirmative defense of
fraud, but failed to make any argument that summary judgment should not be granted based on his fraud claim.
[6] Instead, Sandhu referred to his affidavit attached as summary-judgment evidence. However, any issues a
non-movant contends avoid summary judgment must be expressed in a written response to the motion and are
not presented by mere reference to summary-judgment evidence. Mercier v. Southwestern Bell Yellow Pages,
Inc., 214 S.W.3d 770, 774-75 (Tex. App.- Corpus Christi 2007, no pet.) (citing McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)). Because Sandhu failed to present and specify the elements of
his fraud claim on which he alleged fact issues, he has not presented grounds for reversal.
Even if we considered Sandhu's fraud claim, he did not raise a fact issue as to each element of the claim. To
prove fraud, a party must establish (1) a material representation was made, (2) the representation was false,
(3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of
the truth and as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by
the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury. Lundy v. Masson,
260 S.W.3d 482, 492 (Tex. App.- Houston [14th Dist.] 2008, pet. denied). On appeal, Sandhu's fraud
argument consists of a single sentence: “Appellant proved and/or raised a fact issue on each element of his
fraud defense through his affidavit and deposition testimony regarding the various material false
representations of Appellees regarding repairs, over statement [sic] of the income of the Washateria, and
overstatement of the occupancy, and rent, that caused him injury." Sandhu points the court to his affidavit and
excerpts from his deposition testimony. In the affidavit, Sandhu alleged that Sumer Pinglia said to trust him on
the income from the washateria located in the shopping center, Sandhu relied on the representation in making
the purchase, and the washateria has not produced the income represented by Pinglia. However, Sandhu did
not present evidence that Pinglia knew the representation was false or made it recklessly without knowledge of
the truth or with the intent that it be relied upon by Sandhu.
Also in his affidavit as well as in the cited deposition testimony, Sandhu claimed that Pinglia agreed to make
certain repairs and improvements to the property and has not done so. "A promise of future performance
constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time
it was made." Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 47-48
(Tex. 1998). The party alleging fraud must present evidence the misrepresentation was made with intent to
deceive and with no intent to perform. Id. at 48. Sandhu did not present evidence that Pinglia made a
misrepresentation with the intent to deceive and with no intent to perform the repairs and improvements.
Finally, in his affidavit, Sandhu stated that Pinglia gave him leases for the shopping center and “one of the
leases was fake, another lease was for an unoccupied space and another has an incorrect amount of rent."
Again, Sandhu did not present evidence that Pinglia knew the leases were as Sandhu alleged or that Pinglia
recklessly gave him the leases without knowledge of the truth. Sandhu also did not present evidence that
Pinglia gave him the leases with intent Sandhu rely on the information when purchasing the shopping center. In
sum, Sandhu failed to present evidence raising a fact issue on each element of his affirmative defense of
fraud. We overrule his fourth issue.
Accordingly, the judgment of the trial court is affirmed.
/s/ Charles W. Seymore
Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.
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[1] Appellees also sued Kuldip Singh, but those claims are not at issue in this appeal.
[2] In his original response to the motion for partial summary judgment, Sandhu asserted he did not receive 21
days' notice of the hearing initially set on the motion because he received the motion on October 9, 2007 and
the hearing was set for October 29, 2007. The court addressed this issue in a hearing and granted Sandhu
more time to respond. The hearing on the motion was then held on November 13, 2007.
[3] Appellant did not object to the fact that the trial court was granting summary judgment after the jury had
been seated and sworn. Appellant contends he was not required to object because this action was
fundamental error that can be raised for the first time on appeal. We need not decide if appellant was required
to object because we conclude the trial court did not err by granting summary judgment after trial began.
[4] During the hearing on the motion for partial summary judgment and in Sandhu's motion for reconsideration,
there was a question about whether the supplemental response was timely filed because the file stamp was not
clear. We need not decide whether the trial court considered Sandhu's supplemental response because he did
not defeat summary judgment even if his supplemental response were considered.
[5] In addition, the requirement that issues be expressly presented by written answer or response refers to an
answer or response to the motion for summary judgment, not to the pleadings. Tello, 218 S.W.3d at 119 n.13.
[6] In his response to the motion for partial summary judgment, Sandhu stated, “Defendant has meritorious
affirmative defenses of fraud, among other things." In his supplemental response to the motion for partial
summary judgment, Sandhu stated, "The court should deny Plaintiff's Motion for summary judgment because
Defendant has plead [sic] the affirmative defense of fraud and by summary judgment evidence attached to this
response, Defendant has created a fact issue on each element of his affirmative defense."