      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00429-CV



                               James T. Jackson, Sr., Appellant

                                                v.

                                 Thomas W. Carlson, Appellee


              FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
        NO. C-1-CV-08-001859, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is an appeal from a summary judgment in a breach of contract case. Appellee

Thomas W. Carlson sued appellant James T. Jackson for failure to repay a $5,000 loan and was

granted summary judgment. Jackson appeals, arguing that there is a genuine issue of material fact

as to whether an enforceable contract existed. Because we hold that Carlson is entitled to judgment

as a matter of law, we affirm the order of the trial court granting summary judgment.


                                        BACKGROUND

               On November 2, 2004, Carlson wrote Jackson a check for $5,000. Jackson deposited

the check, and it cleared Carlson’s bank on November 3, 2004. In February 2008, Carlson filed suit

for breach of contract, alleging that the check had been a loan, that Carlson had demanded that

Jackson pay the $5,000 due under the loan, and that Jackson had refused to repay the loan. In

support of the allegations, Carlson attached a copy of the cancelled check, which contained the
notation “loan” in the memo section of the check.             In April 2008, Carlson moved for

summary judgment. Carlson attached an affidavit averring that Jackson had requested the $5,000

loan and agreed to repay that amount, and that Carlson had written the word “loan” on the front of

the check to indicate that agreement.

               In response to the motion for summary judgment, Jackson argued that a genuine issue

of material fact existed as to whether the $5,000 check was indeed a loan. Jackson’s response noted

that there was no promissory note or other loan documentation and argued that the $5,000 was used

to maintain Jackson’s ranch, on which Jackson and Carlson’s mutual grandsons hunted, and thus the

payment was made for the mutual benefit of both Jackson and Carlson. Jackson also filed an

affidavit in which he stated, “I do not recall the check having the word ‘loan’ in the memo section

when I received it.”

               On June 25, 2008, the trial court granted Carlson’s motion for summary judgment,

finding that “there is no genuine issue of material fact as to Plaintiff’s claim for breach of contract

and Plaintiff is entitled to summary judgment thereon.” The trial court further found that Jackson

had not pled any counter claim or affirmative defense that would preclude summary judgment.

               Jackson now appeals, arguing that there is a genuine issue of material fact as to

whether the $5,000 check was in fact a loan pursuant to an enforceable contract.


                                    STANDARD OF REVIEW

               Because the propriety of summary judgment is a matter of law, we review the trial

court’s decision de novo. Valance Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In

a traditional motion for summary judgment, the movant has the burden of showing that no genuine

                                                  2
issue of material fact exists as to any element of the cause of action and that it is entitled to judgment

as a matter of law. Tex. R. Civ. P. 166a; TX Far W., Ltd. v. Texas Invs. Mgmt., 127 S.W.3d 295, 301

(Tex. App.—Austin 2004, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49

(Tex. 1985)). If the movant’s motion and summary-judgment proof facially establish the right to

judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue

sufficient to defeat summary judgment. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197

(Tex. 1995); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.). We take

as true all evidence favorable to the non-movant and indulge every reasonable inference

and resolve any doubts in the non-movant’s favor. TX Far W.,127 S.W.3d at 301 (citing Nixon,

690 S.W.2d at 548-49).


                                            DISCUSSION

                Jackson argues that Carlson did not meet the initial burden to prove all of the

elements of breach of contract. To be entitled to summary judgment on the breach of contract claim,

Carlson must prove: (1) there was a valid, enforceable contract; (2) Carlson has standing to sue;

(3) Carlson performed his contractual obligations; (4) Jackson breached the contract; and

(5) Jackson’s breach caused Carlson injury. See Winchek v. American Express Travel Related Servs.

Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (op. on reh’g);

McLaughlin, Inc. v. Northstar Drilling Techs., Inc., 138 S.W.3d 24, 27 (Tex. App.—San Antonio

2004, no pet.). Jackson argues that Carlson’s evidence did not establish the first required

element—the existence of a valid, enforceable contract. Jackson further argues that, even if Carlson




                                                    3
did meet the initial burden, Jackson’s affidavit raises a genuine issue of material fact as to whether

there was an enforceable contract.

               Carlson’s evidence in support of his motion for summary judgment consisted of his

affidavit testimony and the copy of the cancelled check. In the affidavit, Carlson averred:


       James T. Jackson, Sr. asked me for a loan of $5,000.00 in November 2004. I agreed
       to loan him the money and wrote a check made payable to him in the amount of
       $5,000.00 on November 2, 2004. At the time I wrote the check, I wrote the word
       “loan” on the front of the check to indicate our agreement that he would repay the
       money.

       My bank account was debited $5,000.00 on November 3, 2004. I later received a
       copy of the cancelled check from my bank . . . .

       Despite demand by me to Defendant, through his attorney, Defendant refused and
       continues to refuse to make payments on all amounts due on the loan and has left a
       balance of $5,000.00.


Jackson argues that Carlson’s evidence is insufficient because it fails to establish the material terms

of the contract. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992)

(“The material terms of the contract must be agreed upon before a court can enforce the contract.”).

In a loan contract, the material terms are generally the amount to be loaned, the date the loan

matures, the interest rate, and the repayment terms. Id. Jackson contends that Carlson introduced

evidence of only one material element of a contract to loan money—the amount to be loaned.

               Jackson maintains that Carlson failed to produce any evidence of the maturity date

of the loan, the repayment terms of the loan, and the interest rate. We disagree. Carlson’s affidavit

avers that the balance of the loan was due and payable, and this fact is enough to establish that the

loan had matured. A loan contract need not include a specific due date to be enforceable; an

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agreement that the loan will be repaid “on demand” is sufficiently definite to be enforceable by a

court. See, e.g., Dorsett v. Cross, 106 S.W.3d 213, 215 (Tex. App.—Houston [1st Dist.] 2003,

pet. denied) (enforcing note due on demand); see also Salinas v. Wright, 11 Tex. 572, 575 (1854)

(enforcing note payable “so soon as circumstances will permit me”). If no due date is specified in

a written promissory note, payment is due on demand and demand may be made within a reasonable

time. See Tex. Bus. & Com. Code Ann. § 3.108 (West 2002) (where no due date specified on

negotiable instrument it is due on demand); Gabriel v. Alhabbal, 618 S.W.2d 894, 897

(Tex. App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.) (demand must be made within

reasonable time); Crenshaw v. Stallings, 222 S.W. 653, 654 (Tex. Civ. App.—Amarillo 1920,

writ dism’d w.o.j.) (stating the general rule that “a promissory note, in which no time is specified for

payment, is due upon demand”). Furthermore, courts regularly enforce contracts where no time for

performance is specified by implying a reasonable time requirement. See Hewlett-Packard Co.

v. Benchmark Elecs., Inc., 142 S.W.3d 554, 563 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)

(holding that where no payment due date was specified in sales contract, payment was due within

reasonable time); HECI Exploration Co. v. Clajon Gas Co., 843 S.W.2d 622, 634

(Tex. App.—Austin 1992, writ denied) (when no specific time for performance is stated in contract,

law will imply reasonable time); see also Snyder v. Eanes Indep. Sch. Dist., 860 S.W.2d 692, 697

(Tex. App.—Austin 1993, writ denied) (“It is conclusively presumed that the parties to a contract

knew the law and contracted with reference to it.”). We see no reason to require oral contracts to

be more specific than written ones. Therefore, we hold that Carlson’s affidavit evidence was

sufficient to prove a loan due on demand.



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               Because the repayment was due on demand, the question becomes whether Carlson’s

demand was made at a reasonable time. Carlson filed suit for Jackson’s failure to repay the loan on

demand three years and three months after the loan was issued. Given the small size of the loan and

the lack of interest charges, three years and three months is a more than reasonable amount of time

to wait to demand payment.1 Furthermore, the statute of limitations for recovery on a loan contract

is four years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (West 2002). “[I]n the absence

of mitigating circumstances, a time coincident with the running of the Statute will be deemed

reasonable, and if the demand is not made within that period the action will be barred.” Gabriel, 618

S.W.2d at 897. Therefore, we hold that the $5,000 was due on demand and that Carlson presented

his demand within a reasonable time.2

               Jackson correctly points out that Carlson did not introduce any evidence of an

applicable interest rate. However, this deficiency is not determinative because Carlson is not asking

for $5,000 plus interest. While it is true that the interest rate “will generally be” a material term,

“[e]ach contract should be considered separately to determine its material terms.” T.O. Stanley Boot,




       1
           We note that Jackson does not allege in his answer, in his summary-judgment response,
in his affidavit, or in his brief to this Court that payment was not yet due or that Carlson’s demand
was made at an unreasonable time.
       2
          In a related issue, Jackson asserts that if payments are due more than a year after the loan
was made, then the contract violates the statute of frauds, which requires any agreement that takes
more than a year to perform to be in writing. See Tex. Bus. & Com. Code Ann. § 26.01 (West Supp.
2008), § 26.02 (West 2002). However, full performance by one party to an oral contract removes
the contract from the statute of frauds. See Estate of Kaiser v. Gifford, 692 S.W.2d 525, 526-27
(Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.). Carlson fully performed his duties under
the contract by tendering the loan to Jackson. See id. Therefore, the statute of frauds does not bar
enforcement of the contract.

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847 S.W.2d at 221. Because Carlson does not seek to recover any interest, we hold that interest is

not a material term of the contract as alleged by Carlson.

                Because Carlson presented sufficient evidence with his motion for summary judgment

to establish that he is entitled to judgment as matter of law, the burden shifts to Jackson to present

evidence sufficient to raise a genuine issue of material fact. Centeq Realty, 899 S.W.2d at 197;

Holmstrom, 26 S.W.3d at 530. Jackson’s only evidence was his affidavit. Affidavits supporting or

opposing a motion for summary judgment must be made on personal knowledge and set forth facts

that would be admissible in evidence. See Tex. R. Civ. P. 166a(f). The question before us is

whether Jackson’s affidavit raises an issue of material fact as to whether the $5,000 check was a loan

which Jackson was obligated to repay.

                In his affidavit, Jackson averred:


         The $5,000 check referenced in Plaintiff’s lawsuit was paid to support the Ranch
         where my grandsons have hunted. Plaintiff is also the grandfather of my grandsons.
         I have spent well over $5,000 retaining the Ranch, its upkeep and expenses for my
         grandsons to hunt there.

         I do not recall the check having the word “loan” in the memo section when I
         received it. Even if the check was a loan, it has been more than repaid in all of the
         expenses I have incurred and paid for our grandsons to use the Ranch. It was always
         my understanding the payment was made to benefit our grandsons using and hunting
         on the Ranch.


Taking as true all the statements in Jackson’s affidavit, the affidavit does not raise a genuine issue

of material fact.

                While Jackson’s response to the motion for summary judgment argues that the check

was a gift, not a loan, his only evidence—his affidavit—does not directly dispute any of the key facts

                                                     7
contained in Carlson’s affidavit. Jackson does not dispute that he asked Carlson for a loan, that he

agreed to repay the amount of the loan, that he cashed the check, or that he refused to repay the loan

on demand. In short, Jackson produced no evidence in support of his claim that the check was not

a loan. See American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994) (“A mere pleading

or a response to the summary-judgment motion does not satisfy this burden of coming forward with

sufficient evidence to prevent summary judgment.”); Keenan v. Gibraltar Sav. Ass’n, 754 S.W.2d

392, 394 (Tex. App.—Houston [14th Dist.] 1988, no writ) (pleadings and responses are not

summary-judgment evidence). When the moving party establishes facts entitling it to prevail, we

will not deny a motion for summary judgment because the opposing party merely alleged matters

which might require a different judgment be rendered but has produced no such evidence. American

Petrofina, 887 S.W.2d at 830; Clear Creek, 589 S.W.2d at 678.

               The facts presented in Jackson’s affidavit are not inconsistent with the facts as

presented in Carlson’s affidavit. The fact that Jackson does not “recall” the word “loan” being

written in the memo section does not contradict Carlson’s assertion that the word loan was indeed

written on the check when Jackson received it. It could be true that the check was a loan and

simultaneously true that the loan “was made to benefit [their] grandsons using and hunting on the

ranch.” The fact that Jackson has “spent well over $5,000 retaining the Ranch, its upkeep and

expenses for [their mutual] grandsons to hunt there” does not, without more, negate Jackson’s duty

to repay the $5,000 loan. Jackson’s assertion that he “repaid” the loan through these expenditures

and thereby satisfied his obligations should have been raised through an affirmative defense of

payment or accord and satisfaction. See Tex. R. Civ. P. 94 (requiring defendant to affirmatively



                                                  8
plead payment and accord and satisfaction); Advantage Group Inv., Inc. v. Pacific Sw. Bank, F.S.B.,

972 S.W.2d 866, 869 (Tex. App.—Corpus Christi 1998, pet. denied) (payment and accord and

satisfaction are affirmative defenses); see also Harris v. Rowe, 593 S.W.2d 303, 306 (Tex. 1979)

(defendant has burden to prove accord and satisfaction defense, which “rests upon a new contract,

express or implied, in which the parties agree to the discharge of an existing obligation in a manner

otherwise than originally agreed”); Hunt, Hopkins & Mitchell, Inc. v. Facility Ins. Corp., 78 S.W.3d

564, 568 (Tex. App.—Austin 2002, pet. denied) (defendant must prove accord and satisfaction).

Affirmative defenses must be pleaded with the trial court to preserve the issue for appeal. Advantage

Group, 972 S.W.2d at 869. Because Jackson did not plead this defense below, it is waived. See id.

                Because we hold that Carlson presented evidence sufficient to establish his right to

judgment as a matter of law and that Jackson then failed to present evidence sufficient to raise a

material issue of fact, we affirm the order of the trial court granting summary judgment.3




        3
          Carlson requests that we remand the case to the trial court for the award of appellate
attorney’s fees. The prevailing party in a breach of contract case is entitled to recover reasonable
attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann. §§ 38.001-.002 (West 2008); see also
Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). Carlson requested attorney’s fees below and
claims that the trial court awarded them. The final judgment of the court provided in the clerk’s
record, however, does not reflect that the trial judge awarded any attorney’s fees. In either case,
Carlson did not file a notice of appeal on the issue of trial or appellate attorney’s fees; therefore, we
must deny his request. See Tex. R. App. P. 25.1(c) (“A party who seeks to alter the trial court’s
judgment or other appealable court order must file a notice of appeal.”); Pettus v. Pettus, 237 S.W.3d
405, 422 (Tex. App.—Fort Worth 2007, pet. denied) (“Texas appellate courts have uniformly
declined to afford relief to parties who have not filed a notice of appeal and make no showing of just
cause.”); Varo, Inc. v. Kross, 511 S.W.2d 719, 724 (Tex. App.—Eastland 1974, writ ref’d n.r.e.)
(appellate court cannot consider whether trial court erred in not awarding attorney’s fees where issue
not raised before trial court and no notice of appeal was filed).

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                                        CONCLUSION

              Because we hold that Carlson was entitled to judgment as a matter of law, we affirm

the order of the trial court granting summary judgment.



                                           ___________________________________________

                                           Diane M. Henson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: March 12, 2009




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