law-promissory-note-suit-damages-proof  | promissory note suit elements | personal guaranty

Proving Amount of Damages in Suit for Breach of Promissory Note

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.
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 JUDGMENT 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
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.


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