law-personal-guaranty | personal liability | guarantor | liability-of-directors-officers-of-corporation | forfeiture of
corporate privileges | individual liability for debt | liability based on personal guaranty agreement | alter ego
theory |
To recover under a guaranty, the plaintiff must establish (1) existence and ownership of the guaranty
agreement, (2) the terms of the underlying contract by the holder, (3) occurrence of the conditions upon
which liability is based, and (4) failure or refusal to perform the promise by the guarantor. Marshall v.
Ford Motor Co., 878 S.W.2d 629, 631 (Tex. App.—Dallas 1994, no writ).
PERSONAL GUARANTY
A guaranty agreement is a person's promise to perform the same act that another person is contractually
bound to perform. Simmons v. Compania Financiera Libano, S.A., 830 S.W.2d 789, 792 (Tex. App.-Houston
[1st Dist.] 1992, writ denied). A guaranty creates a secondary obligation under which the guarantor promises to
answer for the debt of the primary obligor if the primary obligor fails to perform. Garner v. Corpus Christi Nat'l
Bank, 944 S.W.2d 469, 475 (Tex. App.-Corpus Christi 1997, writ denied).
To recover under a guaranty agreement, a plaintiff must show (1) the existence and ownership of the guaranty
agreement, (2) the terms of the underlying contract by the holder, (3) the occurrence of the conditions upon
which liability is based, and (4) the failure or the refusal to perform the promise by the guarantor. Byrd v. Estate
of Nelms, 154 S.W.3d 149, 157 (Tex. App.-Waco 2004, pet. denied); Roye Enter., Inc. v. Roper, No. 02-04-
00132-CV, 2005 WL 1791964, at *3 (Tex. App.-Fort Worth July 28, 2005, no pet.) (mem. op.); see also
Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.-Dallas 1987, writ ref'd n.r.e.) (stating that
when a guaranty is in writing and signed by the guarantor, the guaranty's existence presumes consideration).
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). McShaffry v. Amegy Bank N.A. (Tex.App.- Houston [1st Dist.] Apr. 2, 2009)(Bland)
(promissory note suit, extinguishment by guarantor)
Eix, Inc. v. JP Morgan Chase Bank (Tex.App.- Houston [14th Dist.] Feb. 19, 2009)(Boyce)
(commercial debt suit, personal guaranty, summary judgment evidence, affidavit by interested witness)
AFFIRMED: Opinion by Justice William Boyce
Before Justices Frost, Brown and Boyce
14-08-00042-CV Eix, Inc., and Saeed Moradi v. JP Morgan Chase Bank, N.A.
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge: Linda Storey
Nguyen v. JP Morgan Chase Bank (Tex.App. Houston [14th Dist.] May 22, 2008)(Anderson) (personal guaranty
for debt on business line of credit enforced) AFFIRMED: Opinion by Justice Anderson
Before Justices Brock Yates, Anderson and Brown
14-07-00086-CV Thu Mong Nguyen v. JP Morgan Chase Bank
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle
Loredana Enterprises, Inc. v. Rewards Network Services, Inc. (Tex.App.- Houston [14th Dist.] Dec. 18, 2007)
(Seymore)(biz litigation, breach of contract, BoC, personal guaranty, joint and several liability, admission of
evidence, business records)
AFFIRMED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00118-CV Loredana Enterprise, Inc., d/b/a Babbo Bruno and Stefano Bertolotti v. Rewards Network
Services, Inc., f/k/a Idine Restaurant Group, Inc.
Appeal from 280th District Court of Harris County (Hon. Tony Lindsay)
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