Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-12-00477-CV

Curtis WISE and Winston Hubbard,

Appellants

v.

Luke Development, 

LUKE DEVELOPMENT, LLC,

Appellee

From the 362nd District Court, Denton County, Texas

Trial Court No. 2011-40187-362

The Honorable Robert Bruce McFarling, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: August 21, 2013

AFFIRMED

Appellants Curtis Wise and Winston Hubbard challenge a summary judgment in favor of 

appellee Luke Development, LLC, in a dispute over a promissory note. In two issues, Wise and 

Hubbard argue the trial court erred (1) in granting summary judgment on the claims presented, and 

(2) in awarding attorney’s fees. We affirm. 

BACKGROUND

In March 2011, Luke Development filed suit against Wise and Hubbard alleging they had 

breached their obligation to repay a promissory note. In April 2009, Wise and Hubbard had 
04-12-00477-CV

purchased a business from the Salisbury Group Real Estate Investments, Inc., (“the Salisbury 

Group”). As part of this transaction, Wise and Hubbard signed a promissory note promising to pay 

the Salisbury Group $150,000.00 plus interest. The Salisbury Group later transferred the 

promissory note to Luke Development. 

Wise and Hubbard answered the suit, raising multiple affirmative defenses. In addition, 

Wise and Hubbard filed counterclaims against Luke Development, complaining Salisbury engaged 

in fraud and made misrepresentations during the underlying transaction. Wise and Hubbard also 

filed a third-party petition against Salisbury and the Salisbury Group. The claims against Salisbury 

and the Salisbury Group, like the claims against Luke Development, were based on Salisbury’s 

actions during the underlying transaction. 

Thereafter, Luke Development filed two summary judgment motions. In its first motion, 

Luke Development argued it had established its promissory note claim as a matter of law. In its 

second motion, Luke Development reiterated the arguments in its first motion, and further argued 

that Wise and Hubbard could not recover on their claims based on a ratification theory. The 

evidence attached to the summary judgment motions included a copy of the original promissory 

note; two agreements modifying the terms of the promissory note; a guaranty; a document 

memorializing the sale, assignment, and transfer of the promissory note and guaranty; and 

Salisbury’s affidavit. 

Wise and Hubbard filed three responses to the summary judgment motions. In these 

responses, Wise and Hubbard argued that the summary judgment motions should be denied 

because, among other things, (1) Luke Development failed to establish its claim as a matter of law, 

(2) genuine issues of material fact existed as to whether Luke Development established its claim, 

and (3) the summary judgment motions failed to address the claims brought by Wise and Hubbard. 

Wise and Hubbard attached evidence to their responses. 

- 2 -
04-12-00477-CV

The trial court granted the summary judgment motions, rendering judgment in favor of 

Luke Development in the amount of $121,400.00 for the balance owed on the promissory note, 

plus prejudgment interest, post-judgment interest, and court costs. The trial court also awarded 

attorney’s fees in favor of Luke Development in the amount of $34,872.00, and dismissed the 

claims against Luke Development, Salisbury, and the Salisbury Group with prejudice. Wise and 

Hubbard appealed.

STANDARD OF REVIEW

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 

656, 661 (Tex. 2005). Summary judgment is proper when there are no disputed issues of material 

fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); RhonePoulenc v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). When reviewing a summary judgment, we 

take as true all evidence favorable to the non-movant, and we indulge every reasonable inference 

and resolve any doubt in the non-movant’s favor. Dorsett, 164 S.W.3d at 661; Provident Life & 

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). 

When the plaintiff moves for traditional summary judgment, it must conclusively prove its 

entitlement to summary judgment on each element of its cause of action as a matter of law. See

TEX. R. CIV. P. 166a(c). If the plaintiff does so, the burden then shifts to the defendant to produce 

evidence creating a genuine issue of material fact as to the challenged element or elements in order 

to defeat the summary judgment. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). The 

defendant’s mere pleading of an affirmative defense does not prevent the rendition of summary 

judgment for a plaintiff who has conclusively established each element of its cause of action as a 

matter of law. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). 

- 3 -
04-12-00477-CV

SUMMARY JUDGMENT ON THE CLAIMS PRESENTED

In their first issue, Wise and Hubbard argue the trial court erred in granting summary 

judgment on the claims presented. 

1. Promissory Note Claim

“To prevail in a suit on a promissory note, a plaintiff need not prove all of the elements of 

breach of contract.” Dorsett v. Hispanic Housing and Educ. Corp., 389 S.W.3d 609, 613 (Tex. 

App.—Houston [14th Dist.] 2012, no pet.). Instead, a plaintiff must prove: (1) the note in question; 

(2) that the defendant signed the note; (3) that the plaintiff was the legal owner or holder of the 

note; and (4) that a certain balance was due and owing on the note. See Truestar Petroleum Corp. 

v. Eagle Oil & Gas Co., 323 S.W.3d 316, 319 (Tex. App.—Dallas 2010, no pet.); Hudspeth v. 

Investor Collection Serv. Ltd. P’ship, 985 S.W.2d 477, 479 (Tex. App.—San Antonio 1998, no p). 

A person not identified in a note who is seeking to enforce it as the owner must prove the transfer 

by which he acquired the note. Leavings v. Mills, 175 S.W.3d 301, 309 (Tex. App.—Houston [1st

Dist.] 2004, no pet.). 

In the present case, the summary judgment evidence presented by Luke Development 

showed that Wise and Hubbard were the makers of a promissory note dated April 3, 2009, in the 

principal amount of $150,000.00. The payee on the note was the Salisbury Group. The note was 

signed by Wise and Hubbard. The note was modified twice, on September 11, 2009, and on 

January 12, 2010, so as to revise the payment schedule. Both modification agreements were signed 

by Wise and Hubbard. The note was transferred and assigned to Luke Development on February 

16, 2011. The transfer agreement was signed by David Salisbury, individually, and in his capacity 

as president of the Salisbury Group. The evidence also showed Wise and Hubbard had made 

payments before they defaulted on the note, and the balance due and owing on the note. 

- 4 -
04-12-00477-CV

Wise and Hubbard argue the summary judgment was improper because the evidence 

presented by Luke Development failed to conclusively establish that it had acquired the note from 

Salisbury and the Salisbury Group. “Testimony in an affidavit that a particular person or entity 

owns a note is sufficient to conclusively establish ownership even in the absence of supporting 

documentation if there is no controverting summary judgment evidence.” First Gibralter Bank, 

FSB v. Farley, 895 S.W.2d 425, 428 (Tex. App.—San Antonio 1995, writ denied). Here, the 

summary judgment evidence contained an affidavit from Salisbury stating he and the Salisbury 

Group transferred their interest in the promissory note and guaranty to Luke Development. 

Salisbury’s affidavit recited that a true copy of the transfer agreement was attached to the second 

summary judgment motion. This transfer agreement shows that Salisbury and the Salisbury Group 

sold, assigned, and transferred to Luke Development all right and interest in the note. Thus, the 

evidence presented by Luke Development conclusively established that Luke Development 

acquired the note. Furthermore, the summary judgment evidence presented by Luke Development 

conclusively established the other elements of its claim. See Truestar, 323 S.W.3d at 319;

Leavings, 175 S.W.3d at 309; Hudspeth, 985 S.W.2d at 479. 

Because Luke Development conclusively established its promissory note claim, the burden 

shifted to Wise and Hubbard to produce evidence creating a genuine issue of material fact as to an 

element or elements of this claim. Wise and Hubbard argue they produced evidence creating a 

material fact issue as to whether Luke Development “received” the promissory note “as an 

assignment from David Salisbury for consideration or whether the intent of the parties was that 

[Luke Development] would pursue the note for [] Salisbury’s benefit to help reduce the amount 

[he] owed to [Luke Development].” In other words, Wise and Hubbard argue that they produced 

evidence creating a material fact issue concerning the purpose of the transfer agreement. In support 

of this argument, Wise and Hubbard direct our attention to excerpts from the depositions of Nathan 

- 5 -
04-12-00477-CV

Crawford, the principal member of Luke Development, and David Salisbury. These excerpts show 

that Crawford and Salisbury had engaged in multiple business transactions and that, as a result of 

these transactions, Salisbury and the Salisbury Group owed money to Crawford and Luke 

Development. These excerpts further show that Salisbury had transferred the promissory note to 

Luke Development to satisfy some, if not all, of the money he and the Salisbury Group owed to 

Crawford and Luke Development.1 Wise and Hubbard do not explain how the purpose of the 

transfer agreement is material to the elements of the promissory note claim. An immaterial issue 

of fact does not preclude summary judgment. Sasser v. Dantex Oil & Gas, Inc., 906 S.W.2d 599, 

604 (Tex. App.—San Antonio 1995, writ denied); Harris Cnty. v. Ochoa, 881 S.W.2d 884, 889 

(Tex. App.—Houston [14th Dist.] 1994, writ denied); see Peirce v. Sheldon Petroleum Co., 589 

S.W.2d 849, 852 (Tex. Civ. App.—Amarillo 1979, no writ) (noting that the materiality of a fact 

dispute is based on the elements of proof). Therefore, the deposition testimony of Crawford and 

Salisbury did not create a material fact issue to defeat summary judgment on the promissory note 

claim.

Wise and Hubbard further point out that Luke Development, as assignee, stepped into the 

shoes of Salisbury and the Salisbury Group, and assumed the promissory note subject to any 

defenses Wise and Hubbard had against Salisbury and the Salisbury Group. Nevertheless, Wise 

and Hubbard fail to explain how this issue relates to Luke Development’s acquisition of the note

from Salisbury and the Salisbury Group, or to any other element of Luke Development’s claim to 

recover on the promissory note.

1

The transfer agreement states, “To the extent that [Luke Development] actually receives funds from [Wise and 

Hubbard], [Luke Development] will credit [the Salisbury Group] and Mr. Salisbury for such good funds against the 

money that Mr. Salisbury owes to [Luke Development] under the Promissory Notes dated October 23, 2009, and 

October 30, 2009 (collectively, ‘the Salisbury Notes’).”

- 6 -

 
04-12-00477-CV

2. Affirmative Defenses 

Wise and Hubbard next argue the summary judgment was improper because Luke 

Development “failed to demonstrate the lack of [a] genuine issue of material fact” concerning their 

affirmative defenses. However, to avoid summary judgment, the burden was on Wise and Hubbard 

to produce evidence raising a fact issue on each element of their affirmative defenses. See A.J. 

Morris, M.D., P.A. v. De Lage Landen Fin. Serv., Inc., 2009 WL 161065, at *12 (Tex. App.—Fort 

Worth 2009, no pet.) (rejecting the argument that summary judgment was improper when the 

plaintiff did not move for summary judgment on the defendant’s affirmative defenses); Tesoro 

Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 124 (Tex. App.—Houston [1st 

Dist.] 2002, pet. denied) (noting that a plaintiff moving for summary judgment has no obligation 

to negate the defendant’s affirmative defenses). Wise and Hubbard do not argue they produced 

evidence raising a fact issue on each of the elements of their affirmative defenses.

3. Counterclaims and Third-Party Claims

Wise and Hubbard finally argue the summary judgment was improper because their claims 

against Luke Development, Salisbury, and the Salisbury Group were not addressed. The record, 

however, shows otherwise. In its second summary judgment motion, Luke Development argued 

Wise and Hubbard could not recover on their claims based on their ratification of the initial 

agreement with Salisbury and the Salisbury Group. In responding to the summary judgment, Wise 

and Hubbard did not dispute this ratification theory. 

When a party, who has been induced by fraud to enter into an agreement, engages in 

conduct that recognizes the agreement as binding after he becomes aware of the fraud, the party 

ratifies the agreement and waives any right to assert fraud as a ground to avoid the agreement. 

Cordero v. Tenet Healthcare Corp., 226 S.W.3d 747, 750 (Tex. App.—Dallas 2007, pet. denied) 

(citing Rosenbaum v. Tex. Bldg. & Mortg. Co., 167 S.W.2d 506, 508 (Tex. 1943)). The relevant 

- 7 -
04-12-00477-CV

inquiry is what actions were taken by the party after he became fully aware of the alleged fraud. 

Harris v. Archer, 134 S.W.3d 411, 427 (Tex. App.—Amarillo 2004, pet. denied). An express 

ratification is not necessary; any actions based upon a recognition of the agreement as subsisting, 

or any conduct inconsistent with an intention to avoid the agreement, has the effect of waiving the 

right of rescission. PSB, Inc. v. LIT Indus. Texas Ltd. P’ship, 216 S.W.3d 429, 433 (Tex. App.—

Dallas 2006, no pet.) (citing Rosenbaum, 167 S.W.2d at 508).

Here, the record included the pleadings filed by Wise and Hubbard. These pleadings 

showed that the claims brought by Wise and Hubbard were based on Salisbury’s conduct during 

the initial transaction. These pleadings alleged that Wise and Hubbard learned of Salisbury’s fraud 

and misrepresentations “shortly after” the original transaction took place in April 2009. The 

undisputed summary judgment evidence showed that Wise and Hubbard sought and obtained a 

modification of the repayment schedule on September 11, 2009, and a second modification of the 

repayment schedule on January 12, 2011. Based on this evidence, Luke Development argued that, 

even if Salisbury had committed fraud or made a misrepresentation during the original transaction, 

Wise’s and Hubbard’s subsequent actions in modifying the promissory note, and in making 

payments on the note in accordance with the modifications, amounted to a ratification of the initial 

agreement that precluded any recovery on their claims. Furthermore, in its summary judgment, the 

trial court expressly stated that all of the claims brought by Wise and Hubbard were dismissed 

with prejudice. 

After considering the arguments made by Wise and Hubbard, we conclude the trial court 

did not err in granting summary judgment on the claims presented. Wise’s and Hubbard’s first 

issue is therefore overruled. 

- 8 -
04-12-00477-CV

ATTORNEY’S FEES

In their second issue, Wise and Hubbard argue the trial court erred in awarding Luke 

Development attorney’s fees because there is no evidentiary support for the amount awarded. In 

support of its request for attorney’s fees, Luke Development submitted the affidavit of its attorney 

of record, Brian W. Erikson. Erikson’s affidavit establishes the number of hours devoted to the 

case, the nature of the preparation, the complexity of the case, the experience of the attorney, and 

the prevailing hourly rate. Erikson’s affidavit further established that the reasonable and necessary 

attorney’s fees for the work performed on this case by his firm, through the hearing on the summary 

judgment motion, was $34,872.00. Attached to Erikson’s affidavit were his firm’s billing records 

for this case. Wise and Hubbard produced no evidence controverting Erikson’s affidavit.

Wise and Hubbard complain that Erikson’s affidavit is conclusory and contains 

inadmissible hearsay. In addition, Wise and Hubbard complain that “other than conclusions there 

is no admissible evidence attached to the affidavit.” However, in making these complaints, they 

do not direct our attention to any particular statement in the affidavit or in the billing records 

attached to the affidavit. 

To support a request for reasonable attorney’s fees, testimony should be given regarding 

the hours spent on the case, the nature of preparation, the complexity of the case, the experience 

of the attorney, and the prevailing hourly rates. Hardin v. Hardin, 161 S.W.3d 14, 24 (Tex. App.—

Houston [14th Dist.] 2004, no pet.); Goudeau v. Marquez, 830 S.W.2d 681, 683 (Tex. App.—

Houston [1st Dist.] 1992, no writ). “Parties routinely submit affidavits to prove up fees and 

expenses.” Nath v. Texas Children’s Hosp., 375 S.W.3d 403, 439 (Tex. App.—Houston [14th

Dist.] 2012, pet. denied). Sworn testimony on attorney’s fees from an attorney representing a party 

to a suit is considered competent expert testimony. Hardin, 161 S.W.3d at 24; Marquez, 830 

- 9 -
04-12-00477-CV

S.W.2d at 683. Moreover, billing records may be used to substantiate a claim for attorney’s fees. 

El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012). 

Here, Erikson’s uncontroverted affidavit and his firm’s billing records provided ample 

evidentiary support for the attorney’s fees awarded. Wise’s and Hubbard’s second issue is 

therefore overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Karen Angelini, Justice

- 10 -