Reversed and Remanded Opinion and Concurring Opinion filed December 13,
2012.




                                         In The

                     Fourteenth Court of Appeals

                                 NO. 14-11-00039-CV

  MELANIE DORSETT, AS EXECUTRIX OF MELANIE FOSTER’S ESTATE,
                          Appellant

                                           V.

      HISPANIC HOUSING AND EDUCATION CORPORATION, Appellee


                      On Appeal from the 189th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2008-31769


                                   OPINION


      In this suit to recover on a promissory note, plaintiff Melanie Dorsett contends that
the trial court erred in granting a no-evidence summary judgment in favor of the
defendant, Hispanic Housing and Education Corporation. Because we conclude that
Dorsett produced sufficient evidence to raise a genuine issue of material fact on the
challenged elements of her claim, we reverse and remand.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
      In 2002, Melanie Foster loaned $79,000 to Hispanic Housing and Education
Corporation (“HHEC”). HHEC’s president and secretary executed a promissory note
setting forth the terms of the five-year loan. HHEC defaulted in payment of the loan.
After Foster’s death, her daughter Melanie Dorsett, the executor of Foster’s estate, sued
HHEC to recover on the note. HHEC filed a no-evidence motion for summary judgment
on August 28, 2009. The motion was set for hearing for September 18, 2009. Dorsett
filed a response to the motion on September 17, 2009. In what was obviously a clerical
error, the certificate of service signed by Dorsett’s attorney stated that the summary-
judgment response was served by facsimile to HHEC’s on August 21, 2009, a week
before the summary-judgment motion was even filed.

      The parties agreed to pass that hearing, and approximately a year later, the motion
was rescheduled for hearing by submission to take place on August 23, 2010. HHEC did
not file a new motion and Dorsett did not file a new response.

      The trial court granted the motion on September 28, 2010. Dorsett filed a motion
for reconsideration or for a new trial, and HHEC responded opposing the motion. In its
response to the new-trial motion, HHEC stated that Dorsett had never served it with a
copy of her summary-judgment response, and that HHEC first learned on August 20,
2010 that such a response had been filed; however, HHEC did not ask the trial court to
strike Dorsett’s summary-judgment response or the evidence on which she relied, and the
trial court allowed her motion for reconsideration or for a new trial to be overruled by
operation of law.

      In a single issue, Dorsett contends that the trial court erred in granting HHEC’s
motion for summary judgment.

                                      II. ANALYSIS

      Because HHEC stated in its response brief that Dorsett has the burden on appeal to
show that the trial court abused its discretion in excluding her summary-judgment


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response and evidence, we begin by clarifying the issue presented and the applicable
standard of review.

       Although evidentiary rulings generally are reviewed for abuse of discretion, the
record does not show that the trial court ever made any evidentiary rulings in this case.
The trial court was not asked to, and did not, strike Dorsett’s summary-judgment
response or exclude her evidence. HHEC assumes that the trial court did not consider
Dorsett’s response and evidence because, according to HHEC, her response was not
timely filed, and because she failed to serve HHEC with a copy of her response. The
record does not reflect that the response was untimely when the trial court granted
summary judgment or that HHEC timely raised the issue of Dorsett’s alleged failure to
serve her response.

       When a summary-judgment hearing is rescheduled to a later time, a response filed
less than seven days before the original setting can be rendered timely. See Dalehite v.
Nauta, 79 S.W.3d 243, 245 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). This is
because the time for a response is calculated by counting back from the date of the
hearing, not the date on which a hearing was passed. See TEX. R. CIV. P. 166a(c)
(“Except on leave of court, the adverse party, not later than seven days prior to the day of
hearing may file and serve opposing affidavits or other written response.”); Dalehite, 79
S.W.3d at 245. Thus, if the respondent cannot file a response at least seven days before
the time scheduled for the hearing, she can take steps to reschedule the hearing to a later
date. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 927 (Tex. 2009) (“[T]he
rules relating to summary judgment afford the defaulting party an opportunity to obtain
additional time to file a response . . . by requesting a continuance of the summary
judgment hearing.”). Here, it was unnecessary to move for a continuance from the trial
court because the parties agreed to reschedule the hearing. See Jones v. Smith, No. 09-
08-00440-CV, 2009 WL 2973056, at *2 (Tex. App.—Beaumont May 22, 2009, no pet.)
(mem. op.) (summary-judgment hearings may be set by agreement of counsel); Fraud-
Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 377 (Tex. App.—Fort Worth, pet.

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denied) (leave of court to file an untimely response was not required where the parties’
Rule 11 agreement altered the summary-judgment deadlines). Because the summary-
judgment motion was not actually heard until August 23, 2010, Dorsett’s response filed
on September 17, 2009 was timely. See Allen v. Roddis Lumber & Veneer Co., 796
S.W.2d 758, 761 (Tex. App.—Corpus Christi 1990, writ denied) (holding that although
the summary- judgment hearing originally was set for July 31 and the summary-judgment
response was not filed until August 31, the response was timely because the hearing was
rescheduled to September 7, so that the response was on file for seven days before the
hearing as required by Rule 166a).

      Although HHEC contends that Dorsett did not serve its counsel with a copy of her
summary-judgment response, this does not automatically result in the exclusion of the
response. Texas Rule of Civil Procedure 21b sets out the consequence for failure to serve
opposing counsel as required: the trial court may in its discretion impose sanctions, but
no sanctions were requested or imposed here. Here, HHEC admits that on August 20,
2010, its counsel learned that Dorsett had filed a summary-judgment response. The trial
court did not rule on the summary-judgment motion for nearly six weeks after that time,
during which HHEC did not move to strike Dorsett’s summary-judgment response or
exclude her evidence.    Five weeks after the trial court rendered judgment, HECC
complained for the first time that Dorsett did not serve her summary-judgment response,
and even then, HHEC did not ask the trial court to strike her summary-judgment
evidence, nor did the court do so. To the contrary, the trial court stated in its summary-
judgment order that it considered both the summary-judgment motion and “any response
thereto.” See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 358–59 (Tex.
1998) (per curiam) (giving effect, in an appeal of a summary judgment, to the recitation
in the trial court’s order that it considered the non-movant’s summary-judgment
response). See also Strother v. City of Rockwall, 358 S.W.3d 462, 468–69 (Tex. App.—
Dallas 2012, no pet.) (with the exception of objections to the substance of the evidence,
objections to summary-judgment evidence are waived by the failure to obtain a ruling);


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Plotkin v. Joekel, 304 S.W.3d 455, 486 (Tex. App.—Houston [1st Dist.] 2009, pet.
denied) (“As with any ruling, a summary-judgment order’s review generally extends to
the evidence that was before the court when it ruled, absent an indication that the court
did not consider certain evidence for purposes of that ruling.”). We therefore will review
the merits of the summary judgment.

A.       Standard of Review

         We review the trial court’s grant of a summary judgment de novo. Ferguson v.
Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam) (citing Tex.
Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.2d 184, 192 (Tex. 2007)).
We consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 582 (Tex. 2006). We must affirm the summary judgment if any
of the movant’s theories presented to the trial court and preserved for appellate review are
meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003).

         In a no-evidence motion for summary judgment, the movant represents that there
is no evidence of one or more essential elements of the claims for which the nonmovant
bears the burden of proof at trial. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish,
286 S.W.3d 306, 310 (Tex. 2009). The burden then shifts to the nonmovant to present
evidence raising a genuine issue of material fact as to the elements specified in the
motion. Mack Trucks, 206 S.W.3d at 582. We sustain a no-evidence summary judgment
when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to prove a
vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or
(4) the evidence conclusively establishes the opposite of the vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 816 (Tex. 2005). The evidence is insufficient if “it is ‘so weak
as to do no more than create a mere surmise or suspicion’” that the challenged fact exists.

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Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d
106, 115 (Tex. 2009) (quoting Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 793 (Tex.
2006)).

B.     Basis of the Motion

       In its motion for summary judgment, HHEC asserted that there was no evidence of
certain elements of a breach-of-contract claim, and no evidence to support various
allegations raised in Dorsett’s pleadings, but not all of these allegations were essential
elements of Dorsett’s suit on the promissory note. To prevail in a suit on a promissory
note, a plaintiff need not prove all of the elements of breach of contract. “To recover on a
promissory note, the plaintiff must prove: (1) the note in question; (2) the party sued
signed the note; (3) the plaintiff is the owner or holder of the note, and (4) a certain
balance is due and owing on the note.” Geiselman v. Cramer Fin. Group, Inc., 965
S.W.2d 532, 536 (Tex. App.—Houston [14th Dist.] 1997, no writ). HHEC stated in its
motion that Dorsett had no evidence that HHEC (1) had a duty to pay the Promissory
Note, (2) had a duty to pay late fees and accrued interest under the Note, (3) defaulted in
paying the Note, (4) breached the contract, (5) failed to pay, or (6) caused the Estate
damages. Dorsett did not specially except to the motion as ambiguous, so we presume
that she was able to understand which elements of her claim were challenged.

       As we understand it, HHEC’s assertion that there was no evidence that it had a
duty to pay the Note was, in effect, an assertion that there was no evidence that it had
signed the note. Similarly, by representing that there was no evidence that it failed to
pay, HHEC was asserting that there was no evidence that a balance was due. HHEC did
not challenge the existence or ownership of the note, and did not contend that that a
particular amount of the unspecified outstanding balance lacked support.

       In response, Dorsett relied on her own affidavit and a document prepared on
HHEC’s letterhead and titled, “Promissory Note.” Dorsett authenticated the note, and
HHEC neither disputed that the signatures identified as those of HHEC’s president and
secretary were in fact the signatures of those individuals, nor denied that they were

                                             6
authorized to bind HHEC; thus, Dorsett’s summary-judgment evidence was sufficient to
defeat HHEC’s argument that it had no duty to pay the Note. See TEX. R. CIV. P. 93
(party is required to raise by verified pleading the “[d]enial of the execution by himself or
by his authority of any instrument in writing, upon which any pleading is founded, in
whole or in part and charged to have been executed by him or by his authority, and not
alleged to be lost or destroyed”); Sandhu v. Pinglia Invs. of Tex., L.L.C., No. 14-08-
00184-CV, 2009 WL 1795032*4 (Tex. App.—Houston [14th Dist.] June 25, 2009, pet.
denied) (mem. op.) (“When the defendant does not deny the genuineness of his signature
on the note, he is established as the maker.”).

       This leaves only HHEC’s assertion that there was no evidence that it failed to pay,
but this basis for summary judgment was rebutted by Dorsett’s affidavit. There, she
attested that HHEC “made periodic payments for a period of time on the note. However,
[HHEC] missed numerous payments, was late with payment many times and in June
2007, ceased paying on the note altogether. The effect of the late payments and non-
payments was to extend the duration of the note significantly.”1              This evidence is
sufficient to raise a question of fact as to the existence of an outstanding balance under
the Note. See Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.—Houston [14th
Dist.] 1994, no writ) (holding that a statement that party did not make the payments on
the note is not conclusory, but instead is competent summary-judgment evidence that
there is an outstanding balance). We therefore conclude that the trial court erred in
granting the summary-judgment motion, and we sustain the sole issue presented for our
review.

                                      III. CONCLUSION

       Because Dorsett’s summary-judgment response presented evidence sufficient to
raise a question of fact as to each element of her cause of action challenged in HHEC’s
no-evidence motion for summary judgment, we reverse the trial court’s judgment and

       1
          The original five-year loan period began in May 2002; thus, if payments had been made as
agreed, the last payment on the note would have been made a year before suit was filed.

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remand the case for further proceedings consistent with this opinion.




                                          /s/       Tracy Christopher
                                                    Justice



Panel consists of Justices Frost, Christopher, and Jamison (Frost, J. concurring).




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