Reversed and Remanded and Majority and Dissenting Opinions filed July 22,
2014.




                                    In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00607-CV

                        THU BINH SI HO, Appellant
                                       V.

                   SAIGON NATIONAL BANK, Appellee

                   On Appeal from the 11th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2012-08057


                 DISSENTING OPINION

      Appellee Saigon National Bank asserts both a note claim and a claim for
breach of a loan agreement. Because the statements in the summary-judgment
affidavit are conclusory as to both the balance due and owing under the note and
the damages resulting from the alleged breach of the loan agreement, this court
should sustain appellant Thu Binh Si Ho’s third issue, reverse the trial court’s
judgment, and remand for further proceedings.
                                 The Bank’s Claims

      No special exceptions were sustained against the bank’s live petition;
therefore, this court is to construe that pleading liberally in the bank’s favor to
include all claims that reasonably may be inferred from the language used in the
petition, even if the petition does not state all the elements of the claim in question.
See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).
Under this liberal construction, the bank pleaded both a note claim against Ho and
a claim for breach of a loan agreement. The essential elements of a note claim are:
(1) there is a note; (2) the party sued signed the note; (3) the claimant is the owner
and holder of the note; and (4) a certain balance is due and owing on the note. See
McLernon v. Dynegy, Inc., 347 S.W.3d 315, 324 (Tex. App.—Houston [14th Dist.]
2011, no pet.). The essential elements of a claim for breach of a loan agreement
are: (1) the existence of a valid loan agreement; (2) performance or tendered
performance by the plaintiff; (3) breach of the contract by the defendant; and (4)
damages sustained by the plaintiff as a result of the breach. See Aguiar v. Segal,
167 S.W.3d 443, 450 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). In its
summary-judgment motion, the bank sought judgment as a matter of law on both
of these claims.

      In this opinion, it is presumed that (1) under a liberal construction, Ho’s
appellate brief contains an argument that the summary-judgment evidence does not
conclusively prove all the elements of a note claim; and (2) the summary-judgment
evidence does not conclusively prove that the bank is the owner and holder of the
note. Even under these presumptions, the absence of conclusive proof that the
bank is the owner and holder of the note would not provide a basis for reversing
summary judgment as to the bank’s claim for breach of the loan agreement. See
McLernon, 347 S.W.3d at 324.

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                           Summary-Judgment Evidence

      Liberally construing Ho’s appellate brief, Ho complains that the summary-
judgment evidence regarding the balance due and owing under the note and the
bank’s damages resulting from the alleged breach of the loan agreement is
conclusory. In his affidavit, Patrick Siu testified that the maturity date for the loan,
as amended, was June 15, 2015, that Ho defaulted on his payments, and that the
note is due in full. Siu also testified that Ho has failed and refused to pay the
remaining balance of the loan, which Siu states is $828,789.71—the amount of
actual damages awarded in the trial court’s summary judgment. Siu says nothing
else about the balance under the note or the contract damages. Siu does not state
the date on which this remaining balance was calculated or the date on which Ho
defaulted.     Nor does Siu state whether this amount includes accrued interest,
attorney’s fees, late charges, or other amounts other than principal. Siu does not
state that any amount of interest is accruing daily. He does not state that, in
calculating this amount, the bank has allowed all just and lawful offsets, payments,
and credits.

      The copies of the note and loan agreement (the only documents attached to
Siu’s affidavit) reflect a maturity date of April 21, 2010, a date long before Siu
executed his affidavit in February 2013. A renewal agreement changing various
terms and extending the maturity date is in our record attached to the bank’s
original petition, a pleading that was superseded before the trial court granted
summary judgment.       That agreement, according to its terms, appears to have
amended the terms of the note and loan agreement. If so, that document is not
attached to Siu’s affidavit and is not contained in the summary-judgment evidence.
In any event, it appears that some instrument or instruments amended or
superseded the terms of the note and loan agreement, yet no such documents are

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attached to Siu’s affidavit or contained in the summary-judgment evidence.

               Lack of Proof Necessary to Sustain Summary Judgment

       The summary-judgment evidence regarding the balance due and owing
under the note and the bank’s damages resulting from the alleged breach of the
loan agreement is conclusory. Therefore, the bank did not conclusively prove all
of the elements of either of these claims, and the trial court erred in granting
summary judgment.1 See McLernon, 347 S.W.3d at 324; Aguiar, 167 S.W.3d at
450. Accordingly, this court should sustain Ho’s third issue, reverse the trial
court’s judgment, and remand for further proceedings consistent with the analysis
in this dissenting opinion. Because the court does not do so, I respectfully dissent.




                                              /s/       Kem Thompson Frost
                                                        Chief Justice

Panel consists of Chief Justice Frost and Justices Jamison and Wise. (Wise, J.,
majority).




1
  The trial court did not abuse its discretion in overruling Ho’s objections to Siu’s affidavit based
on lack of personal knowledge and hearsay. Ho waived his objections that (1) the bank failed to
authenticate the note and (2) that the affidavit was not proper summary judgment evidence
because it does not prove the elements necessary for the bank to recover on a debt, inasmuch as
these complaints are objections to form that Ho failed to assert in the trial court. See Commint
Tech. Servs., Inc. v. Quickel, 314 S.W.3d 646, 651 (Tex. App.—Houston [14th Dist.] 2010, no
pet.).

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