IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11114

TEXAS CAPITAL BANK N.A., 

 Plaintiff - Appellee

v.

DANIEL ZEIDMAN, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:17-CV-3109

Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.

PER CURIAM:*

Daniel Zeidman asserts several affirmative defenses to the breach of a 

guaranty agreement (the “Guaranty”) with Texas Capital Bank (the “Bank”). 

The Bank misconstrues Zeidman’s defenses and wrongly characterizes them 

as a purported oral modification to the Guaranty, which is covered by the 

statute of frauds. Finding the Bank’s argument unpersuasive and finding that 

Zeidman has introduced evidence supporting several of his theories, we reverse

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 27, 2019

Lyle W. Cayce

Clerk

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part of the district court’s grant of summary judgment to the Bank and remand 

for further proceedings consistent with this opinion. 

FACTS AND PROCEEDINGS

Gallery Homestore, PA, LLC (“Gallery Homestore”) secured a $1 million 

loan from the Bank. Daniel Zeidman and Scott Cooper, co-members of Gallery 

Homestore, each personally and fully guaranteed the debt by executing 

separate guarantees. 

In 2010, Zeidman and Cooper ended their business relationship, and 

Cooper continued to operate Gallery Homestore. Zeidman contends that he 

“had very few communications” with the Bank after that. Yet, over the next six

years, the loan was renewed and extended several times. Each time, Zeidman 

renewed his Guaranty. At the time of the last renewal, the loan’s principal 

balance was approximately $1,318,058. Zeidman executed another Guaranty. 

In 2011, the parties had added another company, Gallery Internet, LLC 

(“Gallery Internet”), as a co-borrower. Zeidman was a managing member of 

Gallery Internet, but states he had no role in its operations. In 2012, Gallery 

Homestore was released as an obligor. 

On August 11, 2016, Kirk Gibson, a Bank agent, emailed Cooper, 

confirming the current terms of the loan and setting a payment schedule. Two 

days later, Cooper emailed Zeidman, notifying him that he owed 38% of the 

debt. Zeidman contends that he and Cooper agreed that each would be 

responsible for $500,000, and that one of Cooper’s companies would be 

responsible for the remainder. According to Zeidman, he then decided that 

since he and Cooper were no longer partners, he preferred to pay his share of 

the debt in a lump sum and obtain a release of his Guaranty from the Bank. 

Zeidman emailed Gibson on August 22, 2016 and asked to talk. Zeidman 

contends that he then called Gibson to arrange a complete release of liability 

in return for paying 38% ($500,000) of the total remaining balance (then, 

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$1,318,058). Zeidman claims that Gibson agreed to this arrangement. Zeidman 

then wired the Bank $500,000 through another company he controlled. 

In an email addressed to both Zeidman and Cooper on September 1, 

2016, Gibson acknowledged receipt of the payment, reduced the loan’s 

principal, and stated the loan’s remaining balance. Gibson also recommended 

further payment options. The email stated:

With the pay down of $500,000 on the Term Loan on 08/24/16 – the 

term loan balance is $818,057.62. As originally underwritten, the 

loan was scheduled to amortize over 48 months with a principal

payment of $27,459.53 per month. If we keep the payment amount 

at the $27k – the loan will pay off in approximately 30 months. We 

could amortize the $818M over 48 months if you guys would like. 

Please advise on which direction you would like us to take.

Cooper responded, but Zeidman did not. Neither Zeidman nor Gibson 

mentioned that Zeidman was released from his Guaranty. 

Zeidman claims that, starting in April 2017, the Bank asked him weekly 

if he knew how they could contact Cooper because the loan was in default. 

Then, on August 10, 2017, the Bank notified Zeidman that the loan and note 

were in default and demanded payment from him. Zeidman refused, claiming 

he had been released from the Guaranty. 

The Bank sued Zeidman in Texas state court, alleging breach of the 

Guaranty. Zeidman removed the case to federal district court under diversity 

jurisdiction. The Bank moved for summary judgment, and Zeidman responded 

and filed a cross-motion for summary judgment. Zeidman asserted several 

affirmative defenses, arguing that he was not liable for the remaining sum 

because he had agreed with Cooper that he would be responsible for only 

$500,000. 

The district court granted the Bank’s motion for summary judgment and 

denied Zeidman’s cross-motion. The district court held summary judgment was 

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appropriate since Zeidman “failed to produce any evidence of a written 

modification [as required by the Guaranty] agreed to and signed by the 

parties.” The district court also held that Zeidman failed to produce evidence 

supporting his defenses. It stated that Zeidman’s “subject [sic] belief as to what 

the payment constituted is insufficient to create a genuine issue of material 

fact—especially in light of the explicit terms contained in the agreement he 

executed barring any oral modifications.” 

STANDARD OF REVIEW

This court reviews a grant of summary judgment de novo. Renwick v. 

PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018). Summary 

judgment is appropriate where, viewing the evidence in the light most 

favorable to the non-moving party, the pleadings and record show no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law. FED. R. CIV. P. 56(a). “In determining whether a case presents 

triable issues of fact, we, like the district court, may not make credibility 

determinations or weigh the evidence and we must resolve all ambiguities and 

draw all permissible inferences in favor of the non-moving party.” 

MetroplexCore, L.L.C. v. Parsons Transp., Inc., 743 F.3d 964, 972 (5th Cir. 

2014) (per curiam) (quotation omitted).

If the moving party initially shows the non-movant’s case lacks support, 

“the non-movant must come forward with ‘specific facts’ showing a genuine 

factual issue for trial.” TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th 

Cir. 2002). To defeat a properly supported motion for summary judgment,

“[t]he mere existence of a scintilla of evidence . . . will be insufficient; there 

must be evidence on which the jury could reasonably find for the [nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

One way for a party to support an assertion that a fact “is genuinely 

disputed” is to cite to “affidavits.” FED. R. CIV. P. 56(c). “When a motion for 

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summary judgment is made . . . , an adverse party may not rest upon the mere 

allegations or denials of his pleading, but his response, by affidavits . . . must 

set forth a genuine issue for trial.” Beaufort Concrete Co. v. Atl. States Constr. 

Co., 352 F.2d 460, 463 (5th Cir. 1965).

DISCUSSION

Zeidman contends that the trial court erred because there were genuine 

issues of material fact stemming from various defenses to the enforcement of 

the Guaranty: quasi-estoppel, equitable estoppel, release, and accord and 

satisfaction. We consider each defense in turn.

A. Quasi-Estoppel 

First, Zeidman claims he offered summary judgment evidence to 

establish a quasi-estoppel defense. “Quasi-estoppel precludes a party from 

asserting, to another’s disadvantage, a right inconsistent with a position 

previously taken. The doctrine applies when it would be unconscionable to 

allow a person to maintain a position inconsistent with one to which he 

acquiesced, or from which he accepted a benefit.” Lopez v. Munoz, Hockema & 

Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) (citation omitted). But “unlike 

equitable estoppel, quasi[-]estoppel requires no showing of misrepresentation 

or detrimental reliance.” Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 240 

(Tex. App.—Corpus Christi 1994, writ denied).

Zeidman claims that the summary judgment evidence supports his 

quasi-estoppel defense. Taking, as we must, the factual allegations in 

Zeidman’s affidavit as true, the Bank orally agreed to accept a $500,000 

payment in satisfaction of the Guaranty, Zeidman wired that amount to the 

Bank, the Bank accepted the payment, and it later demanded additional 

payment under the Guaranty. On its face, this alleged scenario appears to 

satisfy the elements of quasi-estoppel. 

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But the Bank contends that the Guaranty is subject to the statute of 

frauds. So, says the Bank, Zeidman cannot argue that an alleged oral 

agreement creates a genuine dispute of material fact as to a modification of the 

Guaranty. “Parties to a written contract that is within the provisions of the 

statute of frauds . . . may not by mere oral agreement alter one or more of the 

terms.” Dracopoulas v. Rachal, 411 S.W.2d 719, 721 (Tex. 1967) (internal 

quotation marks omitted); see also Blackstone Med., Inc. v. Phoenix Surgicals, 

L.L.C., 470 S.W.3d 636, 647 (Tex. App.—Dallas 2015, no pet.) (“An oral 

modification of a written contract is enforceable under the statute of frauds 

only if the modification does not materially alter the obligations imposed by

the underlying agreement.”). 

However, this argument is unavailing because it improperly 

recharacterizes Zeidman’s affirmative defense as a claim that the underlying 

Guaranty was modified. While it is true that oral modification of the Guaranty 

appears to be prohibited by the text of the Guaranty and the statute of frauds, 

the Bank has cited to no case holding or even suggesting that the availability 

of quasi-estoppel as a defense depends on the existence of a writing. 

The Bank also seems to suggest that Zeidman cannot maintain a quasiestoppel claim because the Bank received no benefit from Zeidman when he 

wired it $500,000. But this argument represents economic sophistry. Of course, 

it is true that, in the event of a default on the underlying loan, Zeidman would 

have been bound under the Guaranty to repay the entire balance due (which 

at the time of his payment exceeded $500,000). But when Zeidman wired 

$500,000 to the Bank, the underlying loan was not in default and accordingly 

Zeidman was under no immediate—or even certain future—obligation to pay 

the Bank anything. So, it cannot be said that the Bank received no benefit 

when it allegedly agreed to accept $500,000 now in exchange for giving up the 

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legal right to hold Zeidman to account for any amounts outstanding should the 

borrower on the loan default at some point in the future. 

Because Zeidman has offered a specific factual account, in an affidavit,

which could satisfy the elements of quasi-estoppel, and because the Bank 

appeals only to the tangentially related doctrine of contract modification, the 

district court erred in finding that Zeidman did not produce evidence 

supporting this defense.

B. Equitable Estoppel

Zeidman also advances a theory of equitable estoppel.

The elements of equitable estoppel are: (1) a false representation 

or concealment of material facts made with the intent that another 

party act on the false representation or silence, (2) the false 

representation or concealment of material facts was made by a 

party with knowledge of the facts, (3) the party to whom the 

representation was made or from whom facts were concealed was 

without knowledge or the means of knowledge of the real facts, and 

(4) detrimental reliance. 

Steubner Realty 19, Ltd. v. Cravens Rd. 88, Ltd., 817 S.W.2d 160, 163 (Tex. 

App.—Houston [14th Dist.] 1991, no writ). 

Zeidman again relies on his affidavit and his payment to the Bank. He

claims that the Bank made a false representation to him by orally agreeing to 

modify their written agreement and concealing the fact it would not release 

him from his Guaranty. He argues that he made the payment in detrimental 

reliance on that representation. 

The Bank adopts essentially the same argument that it advances in 

response to Zeidman’s quasi-estoppel defense. First, it argues that Zeidman is 

seeking to modify the underlying Guaranty. Then it argues that Zeidman could 

not have detrimentally relied on the supposed oral agreement with the Bank 

because he was already on the hook for the full amount of the debt. But, as 

explained above, neither of these arguments hold water. The Bank cannot 

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reformulate Zeidman’s defense as a claim of modification and economic reality 

belies the assertion that each party’s position remained unchanged upon 

completion of the wire transfer. Because the Bank has offered no plausible 

theory undermining Zeidman’s factually supported claim of equitable estoppel, 

the district court erred in finding that Zeidman did not produce evidence 

supporting this defense.

C. Release

Zeidman next argues that he offered evidence supporting a release 

defense. “A release is an agreement or contract in which one party agrees that 

a legal right or obligation owed by the other party is surrendered.” D.R. HortonTex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 226 (Tex. App.—

Fort Worth 2013, no pet.). “A release extinguishes a claim or cause of action 

and is an absolute bar to any right of action on the released matter.” Id.

“Because a release is essentially a contract, a defendant must prove the 

elements of a contract to establish the affirmative defense of release of 

liability.” Reytec Constr. Res., Inc. v. Baptist Hosps. of Se. Texas, No. 09-15-

00085-CV, 2016 WL 6900874, at *8 (Tex. App.—Beaumont Nov. 23, 2016, no 

pet.) (citing Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 17 (Tex. 

App.—San Antonio 1998, no pet.)).

Zeidman claims that “[a] guaranty may be orally released” and that 

Gibson agreed on behalf of the Bank to release him from his Guaranty. For this 

proposition, he cites Dicker v. Lomas & Nettleton Fin. Corp., 576 S.W.2d 672 

(Tex. Civ. App.—Texarkana 1978, writ ref’d n.r.e.). In Dicker, the court held 

that where a lender continually advised the guarantor that he would not sue 

for deficiency if the guarantor attempted to find a buyer, the guarantor’s 

affidavit was “sufficient to raise a fact question as to whether or not the parties’

agreement and subsequent conduct thereunder was sufficient to prevent the 

operation of the Statute of Frauds.” Id. at 675.

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Again, in response, the Bank cites to unhelpful and inapposite caselaw 

dealing with general claims of contract modification rather than the particular 

affirmative defense of release. Indeed, while contracts subject to the statute of 

frauds may not generally be modified orally, “an exception to the rule exists 

where the party relying on the oral agreement has performed his undertaking 

thereunder so that a refusal to enforce the modified agreement would result in 

wrong to him.” McCreless Shopping Vill., Inc. v. Burton, 352 S.W.2d 802, 803 

(Tex. Civ. App.—San Antonio 1961, writ ref’d n.r.e.). And here, construing the 

facts in Zeidman’s favor, there exists an oral release agreement under which 

he performed, and the Bank reaped a benefit. The district court erred in finding 

that Zeidman did not produce evidence supporting this defense.

D. Accord and Satisfaction 

Finally, Zeidman contends that he offered summary judgment evidence 

to establish an accord and satisfaction defense. “Accord and satisfaction is a 

defense that rests upon a new contract, express or implied, in which the parties 

agree to the discharge of an existing obligation in a manner otherwise than 

originally agreed.” Melendez v. Padilla, 304 S.W.3d 850, 852 (Tex. App.—El 

Paso 2010, no pet.). “The accord is merely a new agreement whereby one party 

agrees to give or perform, and the other to accept something other than or 

different from what she is, or considers herself to be, entitled to. Satisfaction is

then the performance of the agreement.” Id. at 852–53 (citation omitted). “[F]or 

this defense to prevail, there must be a dispute and an unmistakable 

communication to the creditor that tender of the reduced sum is upon the 

condition that acceptance will satisfy the underlying obligation.” Lopez, 22 

S.W.3d at 863. Additionally, “[t]he parties must specifically and intentionally 

agree to the discharge of one of the parties’ existing obligations.” Id.

Once again, Zeidman argues that his affidavit provides evidence that he 

reached an oral agreement with the Bank about his Guaranty. He claims that 

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this oral agreement constituted an accord of his obligation and his payment 

constitutes satisfaction. He contends that the evidence of the oral agreement 

(his affidavit) “creates a genuine issue of material fact on the meeting of the 

minds over those simple terms and the parties’ consent to them.” Zeidman 

contends that the Bank orally agreed to the arrangement and accepted the 

payment although it was initially entitled to a different arrangement—full 

guaranty. 

However, Zeidman offers no evidence to support at least one element of 

this defense—a dispute.1 For the defense of accord and satisfaction “to prevail, 

there must be a dispute” as to the terms of the underlying agreement. Id. 

Because there is no evidence of such a dispute, we affirm the district court’s 

decision to grant summary judgment to the Bank on this issue.

CONCLUSION

For the foregoing reasons we REVERSE and REMAND in part and 

AFFIRM in part.

 

1 We express no view as to whether he might have satisfied the others.

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