McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Bland)
promissory note suit, extinguishment by guarantor)
Opinion by Justice Bland   
Before Justices Taft, Bland and Sharp
01-08-00493-CV Mark S. McShaffry v. Amegy Bank National Association  
Appeal from 125th District Court of Harris County
Trial Court Judge: Hon. John Coselli  


In this suit on a promissory note, Mark McShaffry appeals the trial court’s judgment rendered in
favor of Amegy Bank National Association holding McShaffry and his fellow guarantors jointly
and severally liable, together with the maker of the note, for the balance due.  After entering an
initial summary judgment, the trial court later amended it to remove one of the guarantors,
Jonathan Brinsden, at Amegy’s request.  McShaffry contends that the trial court erred in
refusing to vacate the judgment because Brinsden paid the amount owed in the initial summary
judgment in exchange for Amegy’s assignment of the judgment to him, and thus the debt is

We conclude that McShaffry timely raised a defense of extinguishment by a co-guarantor in this

We therefore reverse and remand.


McShaffry, Brinsden, and David Gerow formed three business ventures:  Zephyr Willowbrook
Partners, L.P., Zephyr Investments General Partnership, and Zephyr Willowbrook, Inc.  In
November 2004, Zephyr Willowbrook Partners executed a promissory note, borrowing a
principal amount of $175,000 from Amegy, which the parties later modified to $200,000.  
Zephyr Investments General Partnership, Zephyr Willowbrook, Inc., McShaffry, Brinsden, and
Gerow each executed a guaranty agreement for the prompt payment of the indebtedness of the
Zephyr Willowbrook Partners to Amegy.  

In March 2007, Amegy sued the maker and the guarantors of the note, seeking to collect the
unpaid principal balance of $139,244.87, plus interest and attorney’s fees.  The defendants
answered the suit in a general denial, pleading no affirmative defenses.  In April 2007, Amegy
moved for summary judgment and set the motion for a hearing.  The defendants failed to
respond.  The trial court reset the motion five times, never receiving a response from the
defendants.  On October 25, 2007, the trial court entered judgment granting Amegy the right to
recover on the note jointly and severally from the limited partnership and the guarantors of the
loan.     Thereafter, according to McShaffry, Brinsden and Amegy entered into an agreement
whereby Brinsden paid $139,244.87 and Amegy assigned the note and judgment to him.  In
December, Amegy moved to remove Brinsden as a judgment creditor.  The trial court modified
the judgment on January 4, 2008.  McShaffry moved for a new trial, alleging that he had not
been served with the motion to modify the judgment and that Brinsden had paid the note, and
thus the debt was extinguished.  The trial court vacated the January 4 modified judgment
because Amegy’s motion to modify judgment had not been served on McShaffry.  The trial
court then set the motion for summary judgment for an oral rehearing.  The day before the
hearing, McShaffry filed an amended answer, asserting the affirmative defense of payment,
and responded again to the motion to modify, asserting that the debt was extinguished.  

On March 14, the trial court entered judgment identical to the January 4 modified judgment,
removing Brinsden as a judgment debtor.  McShaffry again moved for a new trial.  Brinsden
meanwhile filed notice of an assignment of the judgment from Amegy to Brinsden.  On June 14,
to clarify its previous actions, the trial court again entered a final judgment granting Amegy’s
motion for summary judgment.


McShaffry complains that the trial court’s summary judgment was improper because Brinsden,
a co-guarantor on the note, paid Amegy the amount of the judgment before it became final and
thus extinguished the debt.  
Standard of Review

We review a trial court’s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.
W.3d  656, 661 (Tex. 2005); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.
2003).  In a traditional motion for summary judgment, the movant has the burden to show that no
genuine issue of material fact exists and that the trial court must grant a judgment as a matter of
law.  Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.
W.2d 746, 748 (Tex. 1999).  We review the evidence in a light favorable to the nonmovant and
indulge every reasonable inference in the nonmovant’s favor.  Dorsett, 164 S.W.3d at 661;
Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  

Recovery on a Promissory Note and Guaranty

To recover for a debt on a promissory note, a party must establish that it is the legal holder of
the note, the debtor’s execution of the note, and that an outstanding balance is due and owing.  
Austin v. Countrywide Homes, 261 S.W.3d 68, 72 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied).  To recover on the guaranty of a note, a party must show proof of the existence and
ownership of the guaranty contract, the terms of the underlying contract by the holder, the
occurrence of the conditions upon which liability is based, and the failure or refusal to perform
by the guarantor.  Wiman v. Tomaszewicz, 877 S.W.2d 1, 8 (Tex. App.—Dallas 1994, no writ).  
Here, the affidavit testimony of Steven Shreck, Vice President of Amegy, attached to Amegy’s
April 2007 motion for summary judgment, establishes that Amegy is the holder of a note and
that the note was executed by the limited partnership.  Shreck averred that Amegy was the
holder of the note and that there was an outstanding balance due and owing of $139,244.87 on
the note.  He provided a true and correct copy of the note attached to his affidavit.  Shreck also
attached copies of the guaranty agreements to his affidavit.  Thus, Amegy carried its burden of
proof for summary judgment.  When a movant has carried its summary judgment burden, the
non-movant then must raise a material fact issue precluding summary judgment.  Virginia
Indonesia Co. v. Harris County Appraisal Dist., 910 S.W.2d 905, 907 (Tex. 1995).  McShaffry
contends that he raised the issue of extinguishment when Amegy (now Brinsden) moved to
modify the judgment.

Extinguishment of the Debt by a Co-Guarantor

“The general rule is that the assignment of a judgment to or for the benefit of the judgment
debtor satisfies the judgment, for the reason that two antagonistic rights of creditor and debtor
merge in one and the same person.” Rich v. Smith, 481 S.W.2d 162, 163 (Tex. Civ. App.—Fort
Worth 1972, writ ref’d n.r.e.) (citing 46 Am. Jur. 2d 1028 §§ 891, 996; 18 Am. Jur. 2d,
Contribution, §§ 59, 76, 79 and 80 and Greenspan v. Green, 255 S.W.2d 917 (Dallas Civ.
App., 1953, writ ref’d, n.r.e.)).  In Rich, one co-debtor on a judgment paid a sum in partial
satisfaction of the debt on a note in exchange for an assignment of the judgment.  Id. at 162.  
She then pursued her co-judgment debtors by application for a writ of garnishment.  Id.  The co-
debtors sued for wrongful execution and garnishment on the basis that her payment on the
judgment in exchange for an assignment extinguished the note.  Id. at 162–63.  The trial court
and the court of appeals agreed, ruling that a co-debtor does not succeed to the rights of a
judgment creditor because the payment and assignment extinguished the debt.  Id. at 163.  
Thus, under the doctrine of extinguishment of a judgment, “if two parties are jointly and severally
liable on a judgment, the acquisition of the judgment by one judgment debtor extinguishes the
judgment for all judgment debtors.”  Hageman/Fritz, Byrne, Head & Harrison L.L.P. v. Luth, 150
S.W.3d 617, 623 (Tex. App.—Austin 2004, no pet.).

None of the defendants responded to Amegy’s initial motion for summary judgment, and with
sufficient evidence in hand to support it, the trial court correctly granted it on October 25.  But
the issue presented here is whether that interlocutory judgment became subject to an
extinguishment defense when Amegy later moved to modify it to remove Brinsden as a liable
party and Brinsden filed a notice of assignment of the judgment.  We conclude that it did.

Amegy notes that McShaffry did not plead an affirmative defense of payment until his March 13
amended answer, the day before the hearing its motion to modify the judgment.  Amegy itself,
however, sought a modification to the judgment to remove one of the judgment debtors.  
McShaffry then amended his answer and also presented evidence to counter Amegy’s motion.  
McShaffry attached an affidavit authenticating a January 15 email and spreadsheet from
Brinsden, indicating that Brinsden had paid Amegy the amount of the judgment (not including
interest), and attaching a January 8 email in which Brinsden writes that he is “now the owner of
the judgment.”  Brinsden thereafter filed a notice that he was now the holder of the note.  
Parties may amend their pleadings and respond to pleadings on file of other parties by filing
such pleas with the clerk at such time as not to operate as a surprise to the opposite party.  
Tex. R. Civ. P. 65.  None of this operated as a surprise to Amegy and Brinsden, who reached
an assignment agreement sometime after the initial summary judgment.  

The analysis in Rich applies here:  McShaffry has raised evidence that there was a note, a
judgment obtained on the note, and one of the jointly and severally liable judgment debtors paid
at least part of the note value and obtained an assignment of the judgment, which extinguished
it.  See Rich, 481 S.W.2d at 163; see also Hageman, 150 S.W.3d at 623.  We hold that the
trial court erred in entering the modified summary judgment, in light of the evidence raised in
the response to the motion to modify the judgment putting the matter of extinguishment of the
debt at issue.  See id.   

Subrogation Rights of Surety

Brinsden, however, is not without a remedy for a recovery on the note.  Rather, he has a
statutory right of subrogation against his co-sureties “for the amount his payment exceeded his
proportionate share of the judgment plus interests and costs.”  Chapter 34.04 of the Texas
Business and Commerce Code provides,

(a)       A judgment is not discharged by a surety’s payment of it in whole or part if the payment
is compelled or, if voluntarily made, is applied to the judgment because of the suretyship

(b)      A surety who pays on a judgment as described in Subsection (a) of this section is
subrogated to all of the judgment creditor’s rights under the judgment.  A subrogation surety is
. . . .
(2)  if there is more than one surety, to execution on the judgment against both the principal’s
property and the property of his cosurety or cosureties for the amount his payment exceeded
his proportionate share of the judgment, plus interest and costs.

See Tex. Bus. & Com. Code Ann. § 34.04(a), (b) (Vernon 2002).  Section 34.01 defines
“surety” to include a guarantor of a contract.  See id. § 34.01 (Vernon 2002).  Thus, Section
34.04 provides subrogation rights for guarantors who have paid a judgment.  Brinsden became
the holder of the note, thus raising the issue of whether the judgment was extinguished.  On,
remand, if Amegy’s earlier judgment was, in fact, extinguished by Brinsden’s payment of it,
Brinsden then may assert his rights against his co-guarantors in a statutory claim for
contribution for their proportionate share of the payment.[1]


We hold that McShaffry raised evidence of extinguishment of the debt as a defense to the
judgment against him, in response to Amegy’s motion to modify the judgment to remove a co-
guarantor, and Amegy (now Brinsden) thus has not established that it is entitled to judgment as
a matter of law for the full amount of the judgment.  

We therefore reverse the judgment of the trial court and remand for further proceedings.

                                                 Jane Bland


Panel consists of Judges Taft, Bland, and Sharp.

[1] See Polk v. Seale, 144 S.W. 329, 332–33 (Tex. Civ. App.—Galveston 1912, no writ).  In Polk, the
court, relying on Fort Worth National Bank v. Daugherty, 16 S.W. 1028 (Tex. 1891), stated that where a
judgment is rendered against several persons jointly, the general rule is that the judgment is
extinguished by a payment by one of the judgment debtors and cannot be kept alive by a transfer of the
judgment to the party paying, but instead the law creates right of contribution among them, available by
a separate action. In Polk, the judgment specifically stated that any defendant paying more than his
one-fourth share of the judgment became subrogated to the rights of the plaintiff against the other
defendants under the judgment, thus preserving the right of subrogation in the judgment.