note pay off early and obtain a destructor release of the guarantors guarantee agreement and there is an added wrinkle in this case which isn't a guarantee agreement the guarantee agreement contained language that said evidence in support of his defenses to the guaranty agreement based on the release saying that that language in the guarantee agreement that barred any such commodification that wasn't in writing that it barred this evidence and the district o helping sell a piece of property that was actually foreclosed on under the deed a trust that was a package with a promissory note but in addition your honor the texas supreme court and i did not cite this but the upper lip is studded the texas supreme an oral agreement now i think that there are several things that are clear in that case the first is that mr zeidan was not attempting to obtain orally in modification of the guaranteed remit for instance guaranty agreement says texas law  not attempting to go and get a modification that says no way oregon will apply it under the terms of the written agreement mr simon paid x he'd still be on the hook for the room right it wouldn't that wouldn't automatically get  from his guarantee for his guarantee why doesn't that modify because it's a subsequent agreement as to payment and it's additional consideration for that subsequent agreement that it's not an agreement to modify the game to guarantee still there dunn says i see my guarantee i recognize my obligation in the event of the default under the no but what i'd like to do creditor is i'd like to go ahead and get my guarantee released so i can move on down the road you've still got the note you've still got your security agreement that existing product guarantee he's entering into a new agreement or he's obtaining a release and as i said there are a number of theories under texas law where he can have the defense to the enforcement of that year in the agreement once he made th right so i mean we're here on the ground of summary judgment and your point is that the affidavit shows a genuine issue material fact broadcast to a number of misses so once you walk me through each one of those and tell me why there's a genuine issue material fact relying on a subsequent agreement and so an agreement a contract it was oral but that would require an offer acceptance meeting in the minds as to the terms and a performance of the contract and so  this court were not to look at mr simon's affidavit and say well you know we know that he made an offer he wanted to pay five hundred thousand we know that there was an acceptance of that offer by saying yes we'll release you but there is no book is an equitable doctrine that says that it precludes a party from asserting to another person's disadvantage or right it's inconsistent with the position that was previously taken and so in this case you texas capital bank taking the position that yes please pay us this five hundred thousand dollars that you have not no obligation to pay right now we want that money that lump sum up front from you and in exchange will go ahead and give you your release and then later down the road after there's a default by the will go on the road and after the bank is trying to collect from the co guarantor and they realize that they're having trouble doing that then the bank looks up and says oh wait you know we do have this other guarantee we know we released it but you know let's go take this position that the guarantee was not released and so mr zeidman is affidavit creates effect issue because mr zeidman tells the story he says i looked up i realized i don't want to be in this deal anymore i realized it was going to be making payments over a three or four year time period in contributing money on monthly payments i didn't want to do that i knew that mine portion of the guarantee even though it is an unlimited guarantee is five hundred thousand dollars i want to buy myself out of it and so in his affidavit he says he made the phone call to the bank officer who had the loan he said i'd like to come out of my guarantee my obligation with my business partners five hundred thousand when you take it and he in the bank officer  wire transfer the money in your release and again too what do we make of the e mail that the loan officer sent after the five hundred thousand dollars that says ok well we knowledge the receipts we've paid it down five hundred thousand seem to be inconsistent with the idea that sag and gets to just walk away an excellent question judge and at first i tortured over that and in the appendix to the appellant's brief at tab five on record excerpts is the actual promissory note and if you look at the signature page of the promissory note mr zeidman signed as manager of gallery internet l l c now what's interesting is mr zeidman is affidavit he testified to the fact that he had already essentially split sheets with his partner at that point and was no longer in it in any operational capacity just wasn't involved in the business but he was still an officer of the l l c that means ever responded to kirk's email i'm sorry are you never responded to kirk's email that is correct he did not respond to bring in in the record he didn't respond his his testimony is that he had been released i believe to get back in i'm so sorry if i didn't answer your question but to get back to juggle them is question which is that the the email is being sent by mr gibson to both because they're both officers and so he's right in the email to the officers of the note which is gallery internet l l c saying ok now that we've gotten this lump sum payment from a guarant and he doesn't mention that it's a release of the guarantee but he's not addressing the issue of the guarantee he's just writing it to the officers of the maker of the note and what's also interesting about that e mail is that he's mr kirk is reckon i'm sorry mr gibson is recognizing that the payment under this note that was executed june of two thousand and sixteen and then the notice says the monthly payment will be twenty seven thousand dollars and some change he says based on the new principle balance the new payment will be seventeen thousand dollars and some change and what's interesting is that in itself is a modification of the new and in other words the note does not say that it's a seventeen thousand dollars monthly payment and so what i believe to get the kind of close the circle to your question what i believe that e mail is recognizing is that the bank would like to and is willing to amortize if you will the monthly payments the noted it purports to say if we do it this way like we can only it's an invitation to the two officers in the two guarantors to say we have a five hundred thousand dollars now what would you what should we do with it here's an idea if we do it this way  then the the no to the monthly payment goes down and and everything and keep the images ations get all the same but it seems to be consistent with the idea that i should put it differently it seems to be inconsistent with the idea that there was an oral agreement prior that we were going to accept the five hundred thousand dollars as consideration but to let simon walk free in your honor i think that it is an interesting e mail i don't think it's inconsistent though because the guarantee  two separate documents in the loan transaction and so as a bank officer if you're if you've reached an agreement and you've cut one of the guarantors loose on a release then you're just dealing with the note and the obligations don't trigger and become liquid and non contingent until there's a default on promissory back to cause you stop all i have here from the lopez case from texas supreme court proposition that the doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which she acquiesced or from which he accepted a benefit now i understand you your your argument is is that the affidavit shows that gives the bank representative had one position on release and then took it and then had an inconsistent position and that's sort of the the ground of your why would it be in unconscionable given that mr zeidman already owed not just the five hundred thousand he paid but the entire amount that's an excellent question yarn it gets kind of the heart of the issue on it on a guarantee and a consideration for this subsequent agreement mr zeidan didn't owe any money at that point in time that he paid the five hundred thousand dollars and in the real world from the banks perspective just having a guarantee as opposed to having money are two very different things and so to have a guarantee it's kind of it's an additional security it makes it more secure just like a security agreement or a d trust it's something to fall back on if there's a default on the promissory note that it's not real money until it's room money and they can't even call the guarantee until the loan defaults and so they don't really know what the guarantee a guarantor is really going to have until the day about the other those qualities stop it what about equitable yes right but equitable stop all has essentially five elements simply requires that it would have required that the bank or the bank officer made a false representation or concealed material information and that that bank officer had actual or constructive knowledge of the facts that he was representing at the time that he was making them with the intent that they be acted on  holding it to tease cush lp and he devoted that five hundred thousand dollars which he did not have any obligation to pay at that time to the bank and so the false representation of course m the skipper leasing go to accord and satisfaction in accordance has faction is relatively simple concept therefore it is where there is an agreement where one party agrees to accept something other than what she is entitled to and then the satisfaction is the performance of the agreement you know what will release that obligation to you if you give us cash right now and so it's a discounted cash payment to get something on that guarantee right now in the bank's pocket and the satisfaction with the performance the agreement b guarantee they knew that mr simon owed that obligation and they agreed to release it when he paid the five hundred thousand in consideration and the consideration is the new consideration which is his payment but there are cases texas cases distinguish that's not consideration because now you own the whole amount and so by making this partial payment you're not giving new consideration because you know it but here you think there is that's right judge because at this time he didn't owe that amount at all pellon sole evidence in this case is based on this alleged oral agreement between the bank and self and that agreement is not admissible for multiple reasons number one the contract documents themselves that mr section twenty six point zero two b because it involves a loan book or fifty thousand dollars from a financial institution and in twenty six point zero one b two where it then applies that to personal guarantees and so on industries versus nelson and in that case the court stated this was a passive court of appeals case and stated a written contract not required by law to be in writing and may be modified by a subsequent oral agreement even though it provides that it can was a covenant not to sing that was involved in that case it's up to the it was such that it was subject to the statute of frauds but what the court stated in that cases multiple conversations followed by subsequent conduct to support it may take the contract out of the purview of the statute of frauds but that is not what we have in this case we have one conversation between the bank and mr zeidman one alleged conversation and the only objective evidence that the court has to look at is the e mail that in the that was referenced that was sent to the parties and said this is we've applied the loan we've applied the payment this is the new loan balance we have these options for future payments and there  fact issue in this case because the trial court correctly determined that this oral agreement in the itself was not admissible and it's it's also not admissible the the we talked about set your father we talked about the agreement but as the dallas court of appeal stated in blackstone versus phoenix surgical was a valid contract modification must include a meeting of the minds supported by new consideration so if we break those two elements out the dallas court appeals and said that meeting of the minds has to be an objective meeting of the minds not a subjective meeting in the minds and again we come back to the only objective evidence that we have in this case is that e mail that was sent from the bank to mr zeman to which there was no response case but effectively yes the bank denies that there was an agreement between between the parties but the bank had an opportunity to submit a counter affidavit from the other from the loan officer at the bank and say everything that i just said to lie and we never ever happened we didn't talk about it i didn't have an agreement with them i never agreed to release or you know modify the guarantee or anything that's correct the bank didn't do that because the bank didn't feel that that was necessary because of the statute  frauds because of the contract and because a contract modification hadn't been met in this brings us to the second prong of that contract modification which is new consideration so their point on concession which i asked him about as well getting the five hundred thousand new consideration for a modification of that contract but he didn't have any obligation to pay the five hundred thousand dollars it was no preexisting that his obligation was purely contingent as i understand to be tell me if this is the wrong way it looks is that if there's a default then he's on the  but prior to default his obligation is zero zero respectively his obligation is coexistent with that promissory note in the default alone isn't triggered in the obligation itself under that under the commercial guarantee that he signed made him jointly and severally bob along with the other guarantor in the borrower and so he had the obligation under this to pay the full balance along with the borrower now in his affidavit he states well i had this subjective belief that i owed thirty eight percent of this and and the other guarantor agreed with me and so i pay i offered this money to the bank but that consideration that was paid is based on on his already existing agreement with the bank and and so the payment of five hundred thousand dollars in and of itself is not new consideration because it's an existing obligation that already took place so as a result the  the bank asserts that there was no valid contract modification in the trial court's judgment should be sustained now the appellant has raised four separate issues on appeal that all relate to his affirmative defenses and they're all based again on the same oral agreement the court focused a little bit initially on the clause i stop agreement and was i stopped as an equitable doctrine that says party can't take a position differently than one they had taken previously to another party's detriment i understood it strictly just one question is is kwanza stoppel an exception to the statute of frauds a second question is assuming the answer to that is yes is there sufficient evidence to trigger was just awful here so i understand what you just said to answer the second question but do you disagree that there are multiple texas cases describing the doctrine of quasi stoppel as an exception to the statute frauds no i'm i think because i stop and may be an exception to the statute of frauds then over lake was i stopped to try a new doubt the statute of frauds i don't think there's any question that the contracts in the statute of frauds require any modifications these agreements could be in writing so if the bank had taken a written had to have done a written and so what do we do with the texas cases that describe it as an exception do we just think that those are outweighed by other cases saying the opposite well i think that the what we have to look at are the cases that apply the statute of fraud position in situations like this in which a we have a lender where the loan agreements required beyond its debts or frauds personal guarantee is required to be honored statute frauds and the documents themselves require this then i think that the those cases are are segregated by those by the facts in this case and so what conceivable justification would mr siteman have i realize you don't represent mr seidman but from the outside looking in at the transaction at the time he makes the five hundred thousand dollars payment he owes zero dollars right because the guarantee hasn't been triggered the promis note is the only thing that is in existence creating an obligation to pay if he makes a five hundred thousand dollars voluntary payment with no obligation to do it obviously isn't giving a gift to the bank presumably getting something in return for it so so again this is pure speculation on my part but it may be that the borrowing any needed their monthly payments reduced and so this capital infusion was made to reduce that monthly payments to make these payments for both for the borrowing and it is so continue to make th an alleged misrepresentation a defendant must have changed his position from a better position to a worse position and in this case that did not happen before this agreement occurred and before this payment was made the misters even was on the hook for the entire balance he made the payment and the bank is seeking the difference between the original balance of one point three million dollars and the five hundred thousand dollars that he paid so his position hasn't changed so he hasn't met his burden on the equitable stoppel defen e misters even also ready raises the defense of release and as the southern district of texas stated in vanderbilt mortgager says four is an order to establish the affirmative defense of release the a party of the party asserting it must prove the elements of a contract in this case we don't have the elements of a contract established there is no offer of acceptance objective meeting of the minds or new consideration that's paid and i know the the  multiple discussions between the parties and then there was subsequent conduct that happened and that's not what we have in this case and in the digger case interesting lee it didn't address whether the documents themselves contain language that  modifications to the agreements so i don't i just don't think that the digger case is on point for that for this particular set of facts and frankly the bigger case appears to just be an out most of the cases follow the texas supreme court holding in direct koppel is which states a party to a written contract that's within the provision of the statute of frauds may not by miro mere oral agreement alter one or more of the terms and that is precisely what required to show that there was a legitimate dispute about the underlying obligations we don't have that in this case in fact his own affidavit confirms prior to his payment that he agreed that the balance was one point three million dollars so there's no evidence to support the idea that there was a dispute on the underlying transaction what mr seidman appears to be saying is look there was this payment to the bank of five hundred thousand stated this is especially true where the payment was on account of a preexisting liquidated debt and more payment was unaccompanied by any restrictive endorsement or some other clear indication that the payee would consider the payment a release or satisfaction in the case before this court none of those none of those requirements have been established by mr seidman we have a liquidated that it was a preexisting debt and there was no restrictive covenant that accompanied his pa when you say liquidated debt you don't mean due and payable but what do you mean by liquidated liquidated debt was that the amount was not in dispute the one point three million dollars prior to his painting a five hundred thousand dollars was not in dispute but it wasn't actually get right because he didn't know one point three million a the agreement that he signed a commercial guarantee agreement bound him to be liable jointly and severally with the borrower on that amount for these reasons the bank asked the court to fund a trial court's decision on trial for instance over a contract it would keep one of the parties to the contract from introducing evidence outside of the four corners of the contract to say oh we're here to put everybody meant if the contract is not ambiguous correct if you're going to if you're going to guarantee a debt for someone else that guarantee agreement must be in writing and so that's why the banks always have it written guarantee agreement and that's why in this case there is a written guarantee agreement under twenty six point zero one b six that that all of the other items in the laundry list under twenty six point one have nothing to do with this subsequent agreement except twenty six point zero one b six which says an agreement that is not performable within this subsequent agreement by mr zeidman in the bank for mr simon to pay five hundred thousand dollars to get a release was clearly perform within one year which takes it outside of the statute of frauds and so of course a written guarantee agreement and by the way i think that's an excellent reason it's an excellent not a reason but it it evidences what banks have written provisions in the guaranty agreement that say a subsequent modification of the screen again of this agreement must be in writing because under the statute of frauds a guarantee agreement must be in writing so if you were only trying to change the language or to change the guarantee agreement it's subject to the statute of frauds and that would have to be in writing but if you're doing a subsequent agreement that changes the payment terms or that gives you a release or the changes where you make the payments that's something that's not subject to the guarantee agreement that's a subsequent agreement that is coal i think of the courts call it collateral to and i would like to point out that in the warriors constructors case that's an interesting guarantor only agreed to guarantee a portion of the overall debt and in that case the guarantor centeno payment not the maker of the obligation to the guarantor since an opinion is sent in with a letter and said i wan make sure that this payment is credited to my limited guarantee right and the creditor came back into issue with that and say well you know we're not sure we're going to allow that but they took the check and they accepted the check and then said additional checks with additional letters just like that saying i want this applied to my limited guarantee agreement the bank did not take in the issue those checks were accepted and they were taken they were and they were cleared  and a trial the the the bank and said no way or the creditor said no way we didn't agree to accept those and so we're not going to apply those to your limited guarantee and the court said send in the check was the all for keeping the check was acceptance and because the guarantor had no obligation to pay at that time that's sufficient for consideration for the subsequent agreement as to payment then the court made the point that whether a modification of a guarantee or a separate agreement is sufficient to bind the bank and so although that's not a release case it's a case where the court said yes