COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00027-CV

SUDHA MANANDHAR APPELLANT

V.

MOHAMMAD K. JAMSHED APPELLEE

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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Appellant Sudha Manandhar appeals the trial court’s judgment in favor of 

her brother-in-law, appellee Mohammad K. Jamshed. In one issue, appellant 

contends that the trial court should not have granted summary judgment for 

appellee because he did not conclusively establish his statute of limitations 

affirmative defense to her breach of contract claim. We affirm.

Background Facts

 

1See Tex. R. App. P. 47.4.
2

In January 1998, appellee purportedly signed a document stating the 

following:

This is to acknowledge that [appellant] has provided . . . funds 

in the sum of $65,000.00 a check and also the sum of $61,000.00 in 

cash to purchase the . . . T&J Conoco at 501 Renfro [S]t. in Crowley 

and also to help in running the business and also doing the check 

cashing.

This money will return with interest as [has] been discussed 

verbally.[

2

]

In November 2005, appellant signed a demand for payment. The demand 

was addressed to appellee and recited,

It has been eight years that I have lent you money one check 

from my brother’s account sum of $65,000.00 and $61,000.00 cash 

in US dollars.

To purchase the T&J Conoco which is at 501 Renfro [S]t. in 

Crowley, it has been a while but now it is time to demand my money.

I am requesting you in full payment so I can pay back to my 

lenders.

In October 2009, appellant sued appellee, alleging that appellee had not 

made any payments.3 Appellant brought claims for breach of contract, quantum 

meruit, and promissory estoppel. Appellee filed a verified answer in which he 

pled a statute of limitations affirmative defense.

 

2

The record contains a copy of a $65,000 check that is signed by appellant 

and is made out to T&J Conoco.

3Appellant asserted in her verified petition that payment was to be made by 

appellee ―when demand was made.‖
3

In July 2010, appellee filed a motion for summary judgment on his statute 

of limitations defense. He contended, in summary, that the November 2005 

―demand for loan repayment [was] over seven (7) years from the date of the loan 

and th[e] suit [was] filed more than eleven (11) years from the date of the loan. 

Th[e] suit is therefore . . . barred by the applicable four year statute of limitation.‖ 

Appellant responded to the motion and filed an affidavit stating the following 

facts:

appellant gave appellee $126,000 when appellee signed the 

acknowledgement in January 1998;

appellee agreed to return the money to appellant, with interest, ―when he 

had the money to do it‖;

six or seven times between 1998 and 2004, appellant agreed, at appellee’s 

request, to extend appellee’s time for repayment;

each time appellee asked for an extension on repayment, he admitted 

owing the amount and said that he ―would have the money soon to repay 

the amount‖;

in 2005, appellee ―changed his mind and indicated he was breaching [the] 

agreement . . . and would not honor his promise,‖ so appellant sent him the 

November 2005 demand; and

appellee refused to repay appellant, which forced her to file the suit in 

October 2009.

Appellant’s husband (and appellee’s brother), Mohammad T. Jashmed, also filed 

an affidavit that repeated the facts contained in appellant’s affidavit.
4

The trial court granted appellee’s motion for summary judgment; the court’s 

order stated that it disposed of all parties and claims and was final and 

appealable. Appellant brought this appeal.

The Trial Court’s Decision to Grant Appellee’s Summary Judgment Motion4

In her only issue, appellant argues that the trial court erred by granting 

appellee’s motion for summary judgment. In a summary judgment case, the 

issue on appeal is whether the movant met the summary judgment burden by 

establishing that no genuine issue of material fact exists and that the movant is 

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort 

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 

S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light 

most favorable to the nonmovant, crediting evidence favorable to the nonmovant 

if reasonable jurors could, and disregarding evidence contrary to the nonmovant 

unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848. 

 

4

The trial court disposed of appellant’s quantum meruit and promissory 

estoppel claims although appellee had not expressly sought summary judgment 

on those claims. Appellant has not argued that the trial court’s decision to grant 

summary judgment against her breach of contract claim on the basis of 

appellee’s statute of limitations defense should be analyzed differently than its 

decision to grant summary judgment against her quantum meruit and promissory 

estoppel claims. In other words, she has not asserted any reason that the trial 

court’s judgment should be reversed on the latter claims even if we affirm it on 

the breach of contract claim. We cannot raise grounds for reversing a summary 

judgment sua sponte, so we will resolve appellant’s quantum meruit and 

promissory estoppel claims under the same rationale that applies to her breach 

of contract claim. See Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990). 
5

We indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). 

A defendant is entitled to summary judgment on an affirmative defense if 

the defendant conclusively proves all the elements of the affirmative defense. 

Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. 

denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P. 166a(b), (c); see also Tarrant 

Cnty. Hosp. Dist. v. GE Automation Servs., Inc., 156 S.W.3d 885, 888 (Tex. 

App.—Fort Worth 2005, no pet.) (describing the assertion of a statute of 

limitations as an affirmative defense). To accomplish this, the defendant-movant 

must present summary judgment evidence that conclusively establishes each 

element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 

(Tex. 2008).

We construe the document that appellee signed in 1998 as a 

nonnegotiable promissory note.5 See Edlund v. Bounds, 842 S.W.2d 719, 724 

(Tex. App.—Dallas 1992, writ denied) (op. on reh’g) (―In short, a note is a written 

unconditional promise to pay another a certain sum of money . . . .‖); Sibley v. 

Cont’l Supply Co., 290 S.W. 769, 771 (Tex. Civ. App.—Fort Worth 1926)

 

5

The note is not negotiable because it is not payable to bearer or to order. 

See Tex. Bus. & Com. Code Ann. § 3.104(a)(1) (West Supp. 2010), § 3.109 

(West 2002); Mauricio v. Mendez, 723 S.W.2d 296, 298 (Tex. App.—San Antonio 

1987, no writ). Thus, the statutes of limitations to enforce negotiable notes do 

not apply in this case. See Tex. Bus. & Com. Code Ann. § 3.118 (West 2002); 

McStay v. Heady Fin. Corp., No. 11-02-00014-CV, 2003 WL 21710534, at *2

(Tex. App.—Eastland July 24, 2003, no pet.) (mem. op.).
6

(explaining that a note is a written promise to pay a certain some of money at a 

future time), writ denied, 116 Tex. 402, 292 S.W. 155 (1927); see also Black’s 

Law Dictionary 1162 (9th ed. 2009) (defining ―note‖ as a ―written promise by one 

party . . . to pay money to another party‖).

6 A person must bring suit to collect a 

debt not later than four years after the cause of action accrues. Tex. Civ. Prac. & 

Rem. Code Ann. § 16.004(a)(3) (West 2002); see also Sheffield Capital Corp. v. 

Konen, No. A14-94-00157-CV, 1995 WL 128250, at *1 (Tex. App.—Houston [14th 

Dist.] Mar. 23, 1995, no writ) (relying on section 16.004(a)(3) to explain that ―the 

applicable statute of limitations for bringing suit on a note is four years‖).

Appellant emphasizes that appellee’s note ―did not have a payable on 

demand clause.‖ But if no time for payment of a debt is stated in a note, it is a 

demand note. Martin v. Ford, 853 S.W.2d 680, 682 (Tex. App.—Texarkana 1993, 

writ denied); McCraine v. Manz, 730 S.W.2d 366, 367 (Tex. App.—Dallas 1987, 

no writ); see also Salinas v. Wright, 11 Tex. 572, 575 (1854) (―The plaintiff 

declared as upon a promissory note, which did not specify any day of payment. 

The legal import of such a note is that it is payable on demand[.]‖). The note in 

this case does not specify a date for repayment, and therefore, we conclude that 

it is a demand note.

 

6An unqualified acknowledgment of an existing debt implies a promise to 

pay it. Starr v. Ferguson, 140 Tex. 80, 83, 166 S.W.2d 130, 131 (1942); 

Mercantile Nat’l Bank at Dallas v. Acoustics, Inc., 589 S.W.2d 773, 776 (Tex. Civ. 

App.—Eastland 1979, no writ); see also Tex. Bus. & Com. Code Ann. 

§ 3.103(a)(12) (West Supp. 2010) (defining ―promise‖ as a written undertaking to 

pay money signed by the person undertaking to pay).
7

Generally, the statute of limitations begins to run on a demand note when 

the note is executed. Martin, 853 S.W.2d at 682; McCraine, 730 S.W.2d at 367; 

Andrews v. Cohen, 664 S.W.2d 826, 829 (Tex. App.—Tyler 1984, writ ref’d n.r.e.); 

see G & R Inv. v. Nance, 683 S.W.2d 727, 728 (Tex. App.—Houston [14th Dist.] 

1984, writ ref’d n.r.e.).7 Appellant asserts that appellee executed the note in 

January 1998, so under the authority cited above, to comply with the statute of 

limitations, appellant would normally be required to file suit on the note by 

January 2002. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3).

Appellant argues, however, that appellee’s oral acknowledgements of his 

debt and his requests for extensions of the time for repayment, occurring 

between 1998 and 2005, extended the statute of limitations until appellee 

repudiated the note by telling appellant that he would not pay it. Appellant 

contends, therefore, that there are ―fact issues regarding reviving the agreement, 

extensions agreed to in the performance of the agreement and final deadline for 

 

7

The court in Nance stated, ―When demand is a condition precedent to suit 

on a note, the statute of limitations begins to run on the date of demand.‖ 

683 S.W.2d at 728; see Martin, 853 S.W.2d at 682 (―If . . . a demand is an 

integral part of a cause of action, or a condition precedent to the right to sue, 

limitations does not begin to run until a demand is made, unless demand is 

waived or is unreasonably delayed.‖). Appellant does not argue that the trial 

court’s judgment should be reversed because her demand for payment was a 

condition precedent to her ability to collect money or sue on appellee’s note, and 

the record does not establish such a fact. Instead, appellant’s affidavit states that 

she and appellee ―agreed that [appellee] would return the money to me when he 

had the money to do it.‖ At any rate, because appellant’s affidavit states that she 

granted four to five extensions on repayment between 1998 and 2002, it is 

apparent that appellant first demanded that appellee repay the money well before 

four years from the date she sued appellee in 2009.
8

performance.‖ She asserts that each extension took her action out of the 

operation of the statute of limitations.

In 1931, the commission of appeals outlined the effect of oral agreements 

extending the repayment of debt on the statute of limitations:

Where the parties to a promissory note, which is past due but 

is unbarred by limitation, and which by its terms bears interest until 

paid, mutually agree to an extension of the time of payment of the 

note to a future date, a new contract, based upon a new 

consideration deemed valuable in law, arises between the parties. 

By such an agreement, each of the parties becomes obligated to the 

other in respects not comprehended by the contract arising from the 

note. The payee impliedly promises to surrender his present right to 

demand immediate payment of the indebtedness represented by the 

note, and to forego suit during the extension period; the payor 

impliedly promises to pay said indebtedness on the new maturity 

date, together with interest up to that date, in any event, at the rate 

provided in the note. Each of these new promises constitutes the 

consideration for the other, and a binding contract, embodying the 

terms of the note, as modified by the new agreement, results. 

In such a case we understand the rule to be that, despite the fact 

that said agreement is oral, the existing right of action, which 

accrued to the creditor under the note, is relinquished, and that 

another right of action for the debt does not accrue to him until the 

new promise of the debtor to pay is breached. Limitation does not 

commence to run against an action to enforce the debtor’s new 

promise to pay, until the time for performance of the new promise 

arrives.

McNeill v. Simpson, 39 S.W.2d 835, 835–36 (Tex. Comm’n App. 1931, holding 

approved) (citation omitted). Thus, a statute of limitations may, in some 

circumstances, be based on the breach of a later oral agreement to pay a note

rather than the earlier date that the note was issued. See McElwee v. Estate of 

Joham, 15 S.W.3d 557, 559–60 (Tex. App.—Waco 2000, no pet.). But various 

courts, including our own, have emphasized that for an oral extension of time for 
9

payment of a note to be binding, it must be supported by consideration, and the 

extension must be to a time certain in which the holder of the note gives up the 

right to sue. See Thompson v. First Austin Co., 572 S.W.2d 80, 82 (Tex. Civ. 

App.—Fort Worth 1978, writ ref’d n.r.e.) (―Agreement to pay what is already owed 

is no consideration to extend time for payment of note . . . .‖); Maceo v. Doig, 558 

S.W.2d 117, 119–20 (Tex. Civ. App.—Austin 1977, writ ref’d n.r.e.); see also

Austin Real-Estate & Abstract Co. v. Bahn, 87 Tex. 582, 584, 30 S.W. 430, 430 

(1895) (op. on reh’g) (―The promise of the debtor to forego his right to pay at any 

time after the note was originally due secured to the creditor the absolute right to 

secure the interest for the entire time of the extension, and constituted the 

consideration for the creditor’s promise.‖); Voelker v. Hera, 616 S.W.2d 647, 648 

(Tex. Civ. App.—Texarkana 1981, no writ) (explaining that for there to be a 

binding oral extension of the time for the payment of a note, it must be shown 

that (1) the maker binds himself not to make payment before a new due date, 

(2) the extension must be for a certain length of time, and (3) there must be valid 

consideration, such as the creditor’s ability to earn a set amount of interest during 

the extension). In other words, as explained many years ago,

In case of a debt, which bears interest either by convention or by 

operation of law, when an extension for a definite period is agreed 

upon by the parties thereto, the contract is that the creditor will 

forbear suit during the time of the extension, and the debtor foregoes 

his right to pay the debt before the end of that time. The latter 

secures the benefit of the forbearance; the former secures an 

interest bearing investment for a definite period of time. One gives 

up his right to sue for a period, in consideration of a promise to pay

interest during the whole of the time; the other relinquishes his right 
10

to pay during the same period, in consideration of the promise of 

forbearance.

Benson v. Phipps, 87 Tex. 578, 580, 29 S.W. 1061, 1061 (1895) (emphasis 

added).

According to the affidavits that appellant filed, the agreements between 

appellant and appellee between 1998 and 2004 only indefinitely extended 

appellee’s time to pay the note. Appellant’s affidavit recites,

Between 1998 through 2002, [appellee’s] business grew and 

prospered. About 4 or 5 times during that time period, I agreed, at 

his request, to extend the agreement for his repayment. Each time I 

asked when he would have the money, he’[d] say[,] ―Trust me, you 

don’t have to worry[.]‖ Because he was my brother-in-law, I trusted 

him.

. . . Each time [appellee] asked for an extension he admitted 

he owed the amount and would have the money soon to repay the 

amount.

. . . Each time, [appellee] acknowledged the justness of the 

debt and requested extensions on the repayment. Stating to me that 

he would pay it back as soon as he had money to do it. [Emphasis 

added.]

Thus, under the authority cited above, we cannot agree with appellant that the 

oral extensions in this case qualified as contracts that changed accrual of the 

statute of limitations from January 1998 to another date.

8

 See First State Bank of 

 

8Moreover, there is no express indication in the record that appellant and 

appellee agreed that interest would continue to accrue during the indefinite 

extensions. In her petition, appellant pled for damages of $126,000; although 

she pled for prejudgment and postjudgment interest, she did not expressly plead 

for interest on the principal of the note. We also note that according to the civil 

practice and remedies code, an ―acknowledgment of the justness of a claim that 

appears to be barred by limitations is not admissible in evidence to defeat the law 
11

Eustace v. Bowman, 203 S.W. 75, 76 (Tex. Civ. App.—Texarkana 1918, no writ) 

(explaining that to have the effect of postponing a statute of limitations, an oral 

agreement regarding a note must be based upon a new consideration, and ―must 

be something more than a gratuitous indulgence on the part of the creditor which 

adds nothing to the burden of the original obligation of the debtor‖).

Because the facts of this case require application of a four-year statute of 

limitations that began to run when appellee allegedly signed the note in 1998, we 

conclude that the trial court did not err by holding that appellant’s suit, which she 

filed in 2009, was barred by the statute of limitations.9 See Tex. Civ. Prac. & 

Rem. Code Ann. § 16.004(a)(3); Martin, 853 S.W.2d at 682; McCraine, 730 

S.W.2d at 367. We conclude that appellee conclusively established the statute of 

 

of limitations if made after the time that the claim is due unless the 

acknowledgment is in writing and is signed by the party to be charged.‖ Tex. Civ. 

Prac. & Rem. Code Ann. § 16.065 (West 2008).

9We acknowledge that estoppel might, in some circumstances, be used to 

avoid a statute of limitations affirmative defense. See Manzell v. Hightower, 159 

S.W.2d 552, 554 (Tex. Civ. App.—Texarkana 1942, no writ) (holding that estoppel 

precluded the maker of a note from relying on a statute of limitations). 

But appellant did not plead estoppel. See Simmons v. Compania Financiera 

Libano, S.A., 830 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.] 1992, writ 

denied) (stating that if a plaintiff desires to rely on an affirmative matter in 

avoidance of a defense pled in the defendant’s answer, he must allege it in a 

supplemental petition, unless it is already put in issue by the petition); LoBue v. 

United Servs. Planning Ass’n, 467 S.W.2d 574, 576 (Tex. Civ. App.—Fort Worth 

1971, writ dism’d). Moreover, appellant has not expressly relied on estoppel in 

the trial court or on appeal to avoid appellee’s statute of limitations affirmative 

defense. Thus, we conclude that we need not address whether estoppel could 

have prevented appellee’s assertion of his defense. See San Jacinto River Auth. 

v. Duke, 783 S.W.2d 209, 210 (Tex. 1990).
12

limitations affirmative defense, and we therefore overrule appellant’s only issue. 

See Fernandez, 315 S.W.3d at 508–09.

Conclusion

Having overruled appellant’s sole issue, we affirm the trial court’s 

judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: August 31, 2011