## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 1 1 - 00 0 2 7 - CV

SUDHA MANANDHAR APPELLANT
V. MOHAMMAD K. JAMSHED APPELLEE

---------- FROM THE 236TH DISTRICT C OURT OF TARRANT COUN TY

---------- 

### MEMORANDUM OPINION 1

---------- Appe llant 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 conclusiv ely establish his statute of limitations affirmative defense to her breach of contract claim. We affirm. Background Facts

1 See 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 int erest as [has] b een discussed verbally. [ 2 ] In November 2005, appellant signed a d emand for p ayment. The demand was addressed to appellee and recited,

It has been eight years that I have lent you money one check from m y brother’s account sum of $65,000.0 0 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, app ellant su ed appellee , alleging that appellee had not made any payments. 3 A ppellant brought claims for breach of contract, quantum meruit, and promissory estoppel. Appellee filed a verified answer in which he pled a statute of lim itations affirmative defe nse.

2 The record contains a copy of a $65,000 check that is signed by appellant and is made out to T&J Conoco.

3 Appellant 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 st atute 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] f iled more than eleven (11) years from the date of the loan. Th[e] suit is therefore . . . barred by the applicable four year statute of limita tion.‖ Appellant responded to the motion and filed an affidavit stating the following facts:

a ppellant gave appe llee $126,000 when appellee signed the acknowledgement in January 1998;

a ppellee agreed to return the money to appellant, with interest, ―when he had the money to do it‖;
six or seven times between 1998 and 200 4 , 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 breac hing [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) , Mohamma d T. Jashmed, also filed an affidavit that repeated the facts contai ned in appellant’s affidavit.4

The trial court granted appelle e’s motion for summary judgment; the court’s order stated that it disposed of all parties and claims and was final and appeala ble. A ppellant brought this appeal. The Trial Court’s Decision to Grant Appellee’s Summary Judgment Motion 4
In her only issue, appellant argues that the trial court erred by granting appelle e’s motion for summary judgment. In a summary judgment case, th e 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 Advi

sors, 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 evi dence 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 di sposed 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 contr act 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 esto ppel 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

no nmovant’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. Fernan dez , 315 S.W.3d 494, 508

– 09 (Tex. 2010), cert. d enied , 131 S. Ct. 1017 (2011) ; see Tex. R. Civ. P. 166a(b), (c) ; see also Tarrant Cnty. Hosp. Dist. v. GE Auto mation Servs

. , Inc. , 156 S.W.3d 885, 888 (Tex. App.

— Fort Worth 2005, no pet.) (describing the asse rtion 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 su m 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. § 3.10 4(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 acc rues. 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.

— Hous ton [14th Dist.] Mar. 23, 1995, no writ) (relying on section 16.004(a)(3) to explain th at ― 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 i f no time for payment of a debt is stated in a note, it is a
demand note. Ma rtin 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[.]‖). T he note in this case does not specify a date for repayment, and therefore, we conclude that it is a demand note.

6 An unqualified acknowledgment of an existing debt implies a promise to pay it. Starr v. Ferguson , 140 Tex. 80, 8 3, 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 undertakin g to pay money signed by the person undertaking to pay ).7

Generally, t he statute of limita tions 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

. — Hou ston [14th Dis t .] 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 no te 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 extension s of the time for repayment, occurring bet ween 1998 and 2005, extended the statute of limit ation s 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 an d 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 f irst 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 c ommission of a ppeals outlined the effect of oral agreements extending the repayment of debt on the sta tute 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 contr act, 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 promis es 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 interes t 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. L imitation 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 Joh am , 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 for9

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 fo r payment of note . . . .‖); Maceo v. Doig , 558 S.W.2 d 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 fo rego 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 , 61 6 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 consideratio n, 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 right10

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 affida vits that appellant filed, t he agreement s between appellant and appellee between 1998 and 2004 only indefinitely extended

a ppellee’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 w hen he would have the money, he’[d] say [,] ―Trust me, you don’ t have to worry[.]‖ Because he was my brother

- in

- law, I tru sted 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
stat ute of limitations from January 1998 to another date

. 8 See First State Bank of

8 Moreover, there is no express indication in the record that appellant and appellee agreed that interest would continue to accrue during the indefin ite 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 law11

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 limitation s , an oral agreement regard ing 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 app lication 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 limitatio ns. 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 a nd is signed by the party to be charged .‖ Tex. Civ. Prac. & Rem. Code Ann. § 16.065 (West 2008).

9 We 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, 79 2 (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 is sue 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 limitat ions 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 onl y 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