Affirmed and Memorandum Opinion filed August 15, 2013.

In The

Fourteenth Court of Appeals

NO. 14-12-00547-CV

TED TROUT ARCHITECT & ASSOCIATES, LTD., Appellant

V.

DR. MARTIN BASALDUA, Appellee

On Appeal from County Civil Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 1000782

M E M O R A N D U M O P I N I O N

In this suit to recover on a promissory note, Ted Trout Architect & 

Associates, Ltd. (“Trout”) contends that the trial court erroneously granted 

summary judgment in favor of Dr. Martin Basaldua because (1) there is no 

evidence to support the summary judgment; (2) Basaldua’s statute of limitations

argument cannot support summary judgment; and (3) summary judgment cannot 

be supported “on the grounds that [Basaldua] did not sign the Promissory Note, 
2

because this is a breach of contract case.” We affirm.

Factual and Procedural Background

Trout provided architectural services to Greater North Houston Physicians 

Alliance, Ltd. (“GNHPA”) for the construction of a hospital. Trout filed an 

architect’s lien after GNHPA failed to pay for Trout’s services. On June 8, 2006, 

Basaldua, as CEO of GNHPA, signed a Letter Agreement of Settlement and 

Modification of Contract. The Letter Agreement provided that, “[a]t the closing of 

GNHPA’s anticipated new development loan, but in no event later than ninety days 

from date hereof, unless otherwise agreed, GNHPA will pay Trout the sum of 

$400,000.00 and deliver an unsecured promissory note payable in one installment 

of $50,000.00 . . . being due and payable on September 16, 2008.” 

There seems to be no dispute that a $400,000.00 check was delivered to 

Trout as required by the Letter Agreement. Further, a promissory note was 

delivered to Trout; the note stated: “Northeast Houston Hospital Ltd., a Texas 

limited partnership, promises to pay to the order of Ted Trout & Associates the 

sum of Fifty Thousand and no/100 ($50,000.00) Dollars . . . . The indebtedness 

evidence hereby shall be due and payable on the 16th day of September (“Maturity 

Date”).” The date of delivery is unclear because the promissory note states at the 

top right-hand corner “As of April 16, 2006,” and a handwritten notation on the 

note states “Orig. mailed to client 10/26/06.” The promissory note was signed as 

follows:

NORTHEAST HOUSTON HOSPITAL, LTD.

By: Northeast Houston GP, L.P.,

 its General Partner

 By: NE Houston GP

 Management, LLC,
3

 its General Partner

 By: T Gallagher

 Name: Tom Gallagher

 Title: President

The note also stated: “This obligation is made and intended as a Tennessee contract 

and is to be so construed.”

Trout sued Basaldua, GNHPA, North East Houston Hospital, Ltd., North 

East Houston General Partnership, L.P., and North East Houston General 

Partnership Management, LLC on September 14, 2011, to recover on the unpaid 

promissory note. In its original petition, Trout alleged that the promissory note 

matured on September 16, 2008, but “[t]he maker’s [sic] of the note refused to pay 

it. On March 31, 2009, a notice and demand for payment was served on the 

appropriate responsible entities more than thirty days prior to filing this lawsuit.” 

Trout “further assert[ed] his rights under Senate Bill 323 which added new section 

101.002, which incorporates by reference the corporate veil-piercing standards set 

forth in Sections 21.223 through 21.226 of the TOBC.” Trout sued for $50,000 in 

damages from the named defendants for nonpayment of the promissory note and 

attorney’s fees.

Basaldua filed an answer on December 22, 2011, generally denying Trout’s 

allegations and contending that Trout’s claims against him are barred (1) by the 

applicable statute of limitations; (2) because Basaldua is not liable in the capacity 

in which he has been sued; and (3) because Basaldua “denies the person(s) who 

executed the promissory note at issue had any authority to execute the promissory 

note on Dr. Basaldua’s behalf.” 

Basaldua also filed a traditional motion for summary judgment on December 

22, 2011. He first argued that the trial court may apply Texas law regarding his
4

claim on the promissory note because Tennessee law “identified in the contract 

does not differ from the substantive law of Texas.” Basaldua also argued that he is 

entitled to summary judgment because he did not sign or make the promissory 

note, and because no representative of Basaldua signed the note on his behalf. 

Basaldua further contended that he is not liable for the obligations of (1) 

North East Houston Hospital, Ltd. because he is a limited partner and does not 

participate in the control of the business; (2) North East Houston GP, L.P., or 

North East Houston GP Management, LLC because he “is not, and has never been, 

affiliated with or an officer, director, or member of” these two entities; and (3) 

GNHPA GP, LLC1because he is a member only of GNHPA GP, LLC and thus not 

liable for its debts, even assuming that GNHPA GP, LLC “assumed the liabilities 

of Northeast Houston Hospital when GNHPA GP became its general partner.”

Basaldua lastly argued that, “[i]f Trout complains that the Letter Agreement 

required Dr. Basaldua, through GNHPA, to make and deliver a promissory note 

instead of Northeast Houston Hospital, Trout’s claim for the alleged breach of the 

Letter Agreement is time-barred” because a breach of contract claim is subject to a 

four year statute of limitations. According to Basaldua, the Letter Agreement 

required GNHPA to deliver a promissory note “‘in no event later than ninety days 

from date thereof;’” therefore, any cause of action “Trout may have had against 

GNHPA for any alleged failure to make and deliver a promissory note as set forth 

under the Letter Agreement accrued September 7, 2006, the ninety-first day from 

the date of the Letter Agreement and the date of the alleged breach.”

Trout filed its first amended petition on January 25, 2012. The amended 

 

1 Basaldua stated in his summary judgment motion that he is a member of GNHPA GP, 

LLC, and that GNHPA GP, LLC “became the general partner of Northeast Houston Hospital 

after Northeast Houston Hospital made the” promissory note.
5

petition mirrored Trout’s original petition and added a claim for breach of contract; 

the petition stated, “Trout pleads the settlement agreement constituted a new or 

modified contract between the parties.” The petition further stated that the 

defendants promised and delivered a promissory note for $50,000, and “[w]hen the 

note matured, Trout demanded payment thereof – Defendants’ [sic] breached their 

contract by failing and refusing to pay the note as agreed.”

On the same day, Trout filed a response to Basaldua’s summary judgment 

motion. Trout argued that the trial court may not apply Texas law in this case 

because “the court would be re-writing and/or altering the parties’ intent and 

purposes set forth in the contract, which the court is not empowered to do.” Trout 

did not argue that Texas law and Tennessee law differ in any respect with regard to 

this case. Trout also argued that a question of fact exists regarding whether (1)

Basaldua and “his partners” are responsible for payment of the note because 

Basaldua signed the Letter Agreement “authorizing the note;” and (2) “the 

signatories on the note were merely accommodation makers, or new players in the 

game.”

Trout further contended that the applicable four-year statute of limitation 

with regard to a breach of the Letter Agreement is found in section 16.004 of the 

Texas Civil Practice and Remedies Code and not in section 16.051. Finally, Trout 

contended that, because the note was issued on April 16, 2006, and matured on 

September 16, 2008, the “Texas four year limitation period ran from September 16, 

2008 to September 16, 2012,” and Trout timely filed its lawsuit on September 24, 

2011.

Basaldua filed a reply to Trout’s summary judgment response on January 28, 

2012, objecting to some of Trout’s summary judgment evidence. Basaldua further 

argued that there are no conflicts between Texas and Tennessee law, allowing the 
6

trial court to apply Texas law in this case and, in particular, the Texas four-year 

statute of limitations. Basaldua reiterated his previously asserted argument that 

any cause of action Trout may have had for any alleged failure of GNHPA to make 

and deliver a promissory note accrued on September 7, 2006, which is the ninetyfirst day from the date of the Letter Agreement and the alleged breach. According

to Basaldua, Trout’s claim for breach of the Letter Agreement is time-barred 

because he failed to bring the claim by September 7, 2011, and “Trout’s attempt to 

use the maturity date of the Note—a separate written agreement—is misplaced.”

Basaldua also argued that Trout failed to present any evidence that 

contradicted his summary judgment evidence. According to Basaldua, Trout did 

not present any evidence to (1) contradict Basaldua’s affidavit in which he asserted 

that he did not participate in Northeast Houston Hospital Ltd.’s control or act as its 

general partner; (2) show that Basaldua had any relationship with North East 

Houston GP, L.P. or North East Houston GP Management, LLC; and (3) 

demonstrate that Basaldua participated in the control of GNHPA.

The trial court signed a judgment on March 16, 2012, granting Basaldua’s 

summary judgment motion and dismissing Trout’s claims with prejudice. Trout 

filed a notice of nonsuit on April 3, 2012, without prejudice with regard to “his 

cause of action for breach of contract and other damages against Co-Defendants 

Greater North Houston Physicians Alliance, Ltd. (defunct), Greater North Houston 

Medical Alliance. Ltd., North East Houston Hospital, Ltd., North East Houston 

General GP, L.P., and North East Houston GP Management, LLC.” The trial court 

signed the notice on April 5, 2012.

Trout filed a motion for new trial on May 4, 2012, arguing that the trial court 

erred by granting summary judgment because (1) Trout filed suit within the 

applicable four-year statute of limitations based on the note’s maturity date; and 
7

(2) Basaldua is personally liable for payment of the promissory note (a) under 

Texas Business Organizations Code section 153.102 because he “participated in 

control of the business, and he negotiated and signed the Settlement Agreement as 

the CEO of GNHPA, Ltd.,” and (b) because Texas Civil Practice and Remedies 

Code section 17.022 provides that “Citation served on one member of a partnership 

authorizes a judgment against the partnership and the partner actually served.”

Trout also contended that summary judgment was erroneously granted 

because there is no evidence to support Basaldua’s summary judgment motion. In 

particular, Trout contended that “[n]one of the allegations and/or conclusions 

stated therein, or the exhibits attached thereto are admissible evidence because the 

proffered exhibits are not certified copies, nor sworn to, or otherwise authenticated, 

and therefore have no evidentiary value to support his motion.” Trout added 

Basaldua’s personal affidavit “has no evidentiary value because it is merely a 

personal disclaimer of any affiliation with NE Houston GP Management, LLC, and 

Northeast Houston GP, L.P., neither of which were parties to the Settlement 

Agreement made the basis of this lawsuit. Absent a properly authenticated 

affidavit, and properly authenticated exhibits, there was no evidence before the 

court supporting the summary judgment granted.”

Basaldua filed a response to Trout’s motion for new trial on May 11, 2012, 

and the trial court signed an order denying Trout’s motion for new trial on May 16, 

2012. Trout filed a timely notice of appeal on June 12, 2012.

Standard of Review

A traditional summary judgment is appropriate under Texas Rule of Civil 

Procedure 166a(c) when a movant establishes that there is no genuine issue of 

material fact and the movant is entitled to judgment as a matter of law. Tex. R. 

Civ. P. 166a(c). A trial court’s grant of traditional summary judgment is reviewed 
8

de novo on appeal. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 

2005). An appellate court examines “the entire record in the light most favorable 

to the nonmovant, indulging every reasonable inference and resolving any doubts 

against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

When the trial court’s order granting summary judgment does not specify the 

grounds upon which it was granted, we must affirm the trial court’s judgment if 

any of the theories advanced are meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 

547, 550 (Tex. 2005); Seber v. Union Pac. R.R., 350 S.W.3d 640, 645 (Tex. 

App.—Houston [14th Dist.] 2011, no pet.).

Analysis

I. Summary Judgment Evidence

In its first issue, Trout argues that summary judgment exhibits A through F 

are inadmissible and incompetent evidence to support Basaldua’s summary 

judgment motion. Trout argues that Basaldua’s affidavit does not authenticate any 

of the exhibits Basaldua attached to his summary judgment motion and that the 

affidavit is not based on personal knowledge. Trout concludes that none of 

Basaldua’s proffered exhibits will support his summary judgment motion because 

“they are either (1) not sworn or authenticated documents; or (2) not certified 

documents; or (3) are irrelevant to the issues presented and therefore have no 

evidentiary value to support Basaldua’s motion.”

Trout did not complain that the attached exhibits have “no evidentiary value 

to support” Basaldua’s summary judgment motion before the trial court granted 

summary judgment; Trout made this argument for the first time in its motion for 

new trial.

With regard to exhibits A and B, Trout states in its appellate brief: “Exhibit 
9

A – Promissory Note that is not certified, sworn, or authenticated. Exhibit B –

Letter Agreement of Settlement and Modification Of Contract that’s not certified, 

sworn to or otherwise authenticated.” Basaldua’s summary judgment exhibits A 

and B are copies of the Letter Agreement and promissory note that Trout had 

attached to its original petition; the copies are not sworn, certified, or 

authenticated. 

Trout attached copies of the Letter Agreement and promissory note to the 

affidavit of Ted Trout, which it attached to its summary judgment response. In the 

affidavit, Ted Trout avers that a true and correct copy of the Letter Agreement is 

attached to his affidavit as an exhibit, and an “identical copy of the same document 

is attached to [Basaldua’s summary judgment motion] as Exh. B.” In the affidavit, 

Ted Trout also avers that “[a]ttached to this affidavit is a true and correct copy of 

the original note.” Therefore, the Letter Agreement and the promissory note were 

properly before the trial court and have probative value.

With respect to exhibit C, Trout states in its brief: “Exhibit C – Affidavit Of 

Martin Basaldua in which (1) he qualifies himself to make the affidavit; (2) 

qualifies his partnership status in NEHH, Ltd., and denies any affiliation with the 

NE Houston GP Management, L.L.C.” Trout argues that Basaldua’s affidavit has 

“no evidentiary value to support” his summary judgment motion because it does 

not authenticate any of the documents attached to his motion, and it “makes no

reference to any exhibit attached to his motion.” However, an affidavit need not 

necessarily authenticate documents or reference exhibits attached to a summary 

judgment motion in order to have probative value. An affidavit has probative 

value beyond document authentication.

Trout also argues that, although Basaldua stated in his affidavit that he has 

personal knowledge of the facts and statements contained in his affidavit, the 
10

affidavit does not affirmatively show that Basaldua had personal knowledge. An 

affidavit’s failure to affirmatively show it was based upon personal knowledge of a 

witness competent to testify is a defect of form which requires an objection in the 

trial court in order to preserve error for review. Grand Prairie Indep. Sch. Dist. v. 

Vaughan, 792 S.W.2d 944, 945 (Tex. 1990); see also Wash. DC Party Shuttle, 

LLC v. IGuide Tours, LLC, No. 14-12-00303-CV, 2013 WL 3226768, at *8-10

(Tex. App.—Houston [14th Dist.] June 27, 2013, no pet. h.) (en banc) (litigant 

must object and obtain a ruling from the trial court to preserve a complaint that an 

affidavit fails to reveal the basis for the affiant’s personal knowledge of the facts 

state therein). Trout made no objection in the trial court that Basaldua’s affidavit is 

defective because it does not affirmatively show that Basaldua had personal 

knowledge of the facts and statements contained in the affidavit. Trout therefore 

waived any defect in the form of Basaldua’s affidavit, and the affidavit is not 

denied probative value. See Vaughan, 792 S.W.2d at 945.

With regard to exhibit D, Trout states: “Exhibit D – A Certificate of Fact 

certifying registration of the NEHH, Ltd. with the Secretary of State. (Note: This 

entity is not a party to this lawsuit).” Exhibit D is a Certificate of Fact issued by 

the Texas Secretary of State on December 21, 2011; it states that “The 

undersigned, as Secretary of State of Texas, does hereby certify that the document, 

Certificate of Formation for Northeast Houston Hospital, Ltd. (file number 

800628924), a Domestic Limited Partnership (LP), was filed in this office on 

March 17, 2006. It is further certified that the entity status in Texas is in 

existence.” Exhibit D is properly self-authenticated pursuant to Rule of Evidence

902(1); it contains the seal of the State of Texas and the signature of the Secretary 

of State. See Tex. R. Evid. 902(1) (providing for self-authentication when 

domestic public documents are under seal).
11

With regard to exhibit E, Trout states: “Exhibit E – A Certificate of Fact 

certifying that GNHPA GP, LLC is registered with the Secretary of State and 

naming Martin Basaldua.” Exhibit E is a certified copy of a Certificate of 

Formation for GNHPA GP, LLC issued by the Secretary of State on December 21, 

2011. It states that “The undersigned, as Secretary of State of Texas, does hereby 

certify that the attached is a true and correct copy of each document on file in this 

office as described below: GNHPA GP, LLC[,] Filing Number: 800627046[,] 

Certificate of Formation[,] March 15, 2006.” Exhibit E is generally admissible 

under Rule of Evidence 902(4) because it consists of a certified copy of a public 

record, certified as correct by its custodian, and, therefore, self-authenticating. See 

Tex. R. Evid. 902(4) (providing for self-authentication of certified copies of public 

records).

With regard to exhibit F, Trout states: “Exhibit F – A copy of Plaintiff’s 

Original Petition.” Trout makes no further argument regarding exhibit F and does 

not explain why this exhibit is inadmissible. Trout presents nothing for our review. 

See Tex. R. App. P. 38.1(i).

We overrule Trout’s first issue.

II. Liability on the Promissory Note

In his third issue, Trout argues the trial court erroneously granted summary 

judgment “predicated on Basaldua’s argument that he is not personally liable for 

payment of the note because he did not sign it.” Trout argues that Basaldua is 

personally liable for the payment of the promissory note because Basaldua 

negotiated and signed the Letter Agreement with Trout as a party to the Letter 

Agreement and as the CEO of GNHPA, Ltd. Trout states that Basaldua is “subject 

to personal liability for payment of the note” as a matter of law pursuant to Texas 

Business Organization Code section 153.102(a)(1) and (b). Trout argues that 
12

“Basaldua was the person with whom Trout negotiated – no one else. Whether 

Basaldua was a limited partner or a general partner is a question of fact, because he 

signed the [Letter] Agreement as CEO, which suggests he was more than an 

uninterested limited partner.”

Trout sued Basaldua for nonpayment of the promissory note. Trout did not 

sue Basaldua for breach of the Letter Agreement. 

To collect on a promissory note, a plaintiff must establish (1) there is a note; 

(2) the plaintiff is legal owner and holder; (3) the defendant is the maker; and (4) a 

certain balance is “due and owing.” McLernon v. Dynegy, Inc., 347 S.W.3d 315, 

324 (Tex. App.—Houston [14th Dist.] 2011, no pet.). There is no dispute that 

there is a note; that Trout is the legal owner of the note; and that the note is “due 

and owing.” The dispute centers around whether Basaldua is the maker of the note 

and is personally liable for payment of the note. To prove that the defendant is the 

maker of the note, there must be evidence indicating that the defendant’s signature 

appears on the note or that a representative of the defendant signed the note on the 

defendant’s behalf. Suttles v. Thomas Bearden Co., 152 S.W.3d 607, 611 (Tex. 

App.—Houston [1st Dist.] 2004, no pet.).

The summary judgment evidence conclusively establishes that Basaldua did 

not sign the promissory note, and that no representative signed it on his behalf. 

The promissory note provides that Northeast Houston Hospital, Ltd., a Texas 

limited partnership, promises to pay Trout $50,000 by September 16, 2008. The 

note is signed as follows:

NORTHEAST HOUSTON HOSPITAL, LTD.

By: Northeast Houston GP, L.P.,

 its General Partner

 By: NE Houston GP
13

 Management, LLC,

 its General Partner

 By: T Gallagher

 Name: Tom Gallagher

Title: President

The summary judgment evidence thus establishes that Basaldua did not sign the 

promissory note; rather, the note was signed by Tom Gallagher as President of NE 

Houston GP Management, LLC, which is the general partner of Northeast Houston 

GP, L.P., which in turn is the general partner of Northeast Houston Hospital, Ltd. 

Trout also acknowledges in its brief that Basaldua did not sign the promissory note

but that Gallagher signed it.

Additionally, nowhere in the note is there any indication that Gallagher 

signed the note as Basaldua’s representative on behalf of Basaldua; nor is there any 

mention of Basaldua anywhere in the note. Further, Basaldua averred in his 

affidavit: “[A]t all relevant times herein, I have been a limited partner of Northeast 

Houston Hospital, Ltd. . . . I am not, and have never been, a general partner of 

Northeast Houston Hospital. I have never participated in the control of Northeast 

Houston Hospital in addition to my rights and powers as a limited partner of 

Northeast Houston Hospital.” Basaldua also averred that he has never been 

affiliated with or acted as an officer, director, or member of NE Houston GP 

Management, L.L.C., and has never been affiliated with or acted as an officer, 

director, general partner, or limited partner of Northeast Houston GP, LP. The 

record does not reveal any controverting evidence. The evidence establishes that

neither Tom Gallagher nor any of the other entities referenced on the promissory 

note signed the note as Basaldua’s representative on behalf of Basaldua.

Trout argues that section 153.102(a)(1), (b) of the Texas Business 

Organizations supports his argument that Basaldua is personally liable on the 
14

promissory note. Section 153.102 provides:

(a) A limited partner is not liable for the obligations of a limited 

partnership unless:

(1) the limited partner is also a general partner; or

(2) in addition to the exercise of the limited partner’s rights and 

powers as a limited partner, the limited partner participates in 

the control of the business.

(b) If the limited partner participates in the control of the business, the 

limited partner is liable only to a person who transacts business with 

the limited partnership reasonably believing, based on the limited 

partner’s conduct, that the limited partner is a general partner.

Tex. Bus. Orgs. Code Ann. §153.102(a)(1), (b) (Vernon 2012).

As we have stated, the promissory note was signed by Tom Gallagher as 

President of NE Houston GP Management, LLC, which is the general partner of 

Northeast Houston GP, L.P. In turn, this entity is the general partner of Northeast 

Houston Hospital, Ltd. Basaldua stated in his affidavit that, at all relevant times, 

he (1) has been a limited partner of Northeast Houston Hospital, Ltd.; (2) has never 

been a general partner of Northeast Houston Hospital, Ltd.; (3) has never 

participated in the control of Northeast Houston Hospital, Ltd.; and (4) has never 

been affiliated with Houston GP Management, L.L.C. or Northeast Houston GP, 

LP. There is no evidence to the contrary. Based on the evidence before us, section 

153.102 does not support Trout’s argument that Basaldua is personally liable on 

the promissory note. 

We also reject Trout’s contention that Basaldua is personally liable on the 

promissory note because he negotiated and signed the Letter Agreement “as a 

party” and as the CEO of GNHPA, Ltd. 

Basaldua’s position in GNHPA, Ltd. is irrelevant in this case. Trout did not 

sue Basaldua for breach of the Letter Agreement, which was entered into between 
15

Trout and GNHPA, Ltd. Nor was there a breach of the Letter Agreement because 

Trout acknowledged in his live pleading that, “[i]n addition to the initial 

$400,000.00 payment, the defendants promised and in fact delivered a promissory 

note for $50,000.00” as required by the Agreement. Trout sued Basaldua for 

nonpayment of the promissory note, in which Northeast Houston Hospital, Ltd.,

and not GNHPA, Ltd. or Basaldua, promised to pay Trout $50,000. The Letter 

Agreement and the promissory note are separate contracts.

2

 The fact that Basaldua 

signed the Letter Agreement as GNHPA’s CEO does not make him personally 

liable for the payment of the promissory note, which is a separate contract that

Northeast Houston Hospital, Ltd. promised to pay. 

We conclude that the trial court did not err in granting summary judgment 

on the ground that Basaldua is not personally liable for payment of the promissory 

note. We overrule Trout’s third issue.3 

Conclusion

We affirm the trial court’s judgment.

/s/ William J. Boyce

Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Donovan.

 

2

“A promissory note is a contract evincing an obligation to pay money.” DeClaire v. G 

& B McIntosh Family Ltd. P’ship, 260 S.W.3d 34, 44 (Tex. App.—Houston [1st Dist.] 2008, no 

pet.).

3 We need not address Trout’s argument regarding whether the trial court erroneously 

granted summary judgment on the ground that Trout’s claim is barred by the statute of 

limitations. When the trial court’s order granting summary judgment does not specify the 

grounds upon which it was granted, we must affirm the trial court’s judgment if any of the 

theories advanced are meritorious. Urena, 162 S.W.3d at 550; Seber, 350 S.W.3d at 645.