                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                               ________________

                              NO. 09-14-00142-CV
                               ________________

ELTON JAMES SENEGAL D/B/A SENEGAL CONSTRUCTION, Appellant

                                       V.

            COMMUNITYBANK OF TEXAS, N.A., Appellee
___________________________________________________________________

             On Appeal from the County Court at Law No. 1
                        Jefferson County, Texas
                        Trial Cause No. 120575
___________________________________________________________________

                         MEMORANDUM OPINION

      Elton James Senegal d/b/a Senegal Construction (“Senegal”) appeals from

the granting of summary judgment in favor of CommunityBank of Texas, N.A.

(“CBTX”) in CBTX’s suit on a promissory note. In his sole appellate issue,

Senegal argues that the trial court erred by granting summary judgment in favor of

CBTX because genuine issues of material fact exist. We affirm the trial court’s

judgment.



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      CBTX alleged that Senegal executed a $50,000 promissory note, payable to

CBTX, and had failed to pay the note in accordance with its terms, leaving

$48,185.62 owing. Senegal alleged the affirmative defenses of accord and

satisfaction and payment. The trial court denied CBTX’s first motion for summary

judgment, to which Senegal had filed a response asserting that certain payments

had not been properly credited, and a fact issue existed concerning accord and

satisfaction as well as the balance, if any, Senegal owed. Senegal had attached as

exhibits to his response a list of seventeen payments he allegedly made toward the

note, as well as copies of bank statements and proofs of payment.

      CBTX subsequently filed a second motion for traditional summary

judgment, in which it alleged that no genuine issues of material fact exist and it is

entitled to judgment as a matter of law. Attached as an exhibit to CBTX’s second

motion were Senegal’s responses to requests for admissions of fact, in which

Senegal admitted that he executed the note, CBTX is the owner and holder of the

note, he received value in exchange for the note, and by execution of the note, he

unconditionally promised to pay $50,000 to CBTX. In his responses to requests for

admissions, Senegal denied that no payments had been made and denied that the

amount due as principal and accrued interest was $48,185.62.



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      Also attached as an exhibit to CBTX’s motion was the affidavit of George

A. Casseb, CBTX’s Senior Executive Vice President. Casseb stated in the affidavit

that the promissory note involved loan number 1646, and he explained that Senegal

and an entity in which Senegal claimed an interest also had two prior loans from

CBTX. Attached to Casseb’s affidavit were the loan histories of loan number 1646

and the other two loans, as well as statements from two deposit accounts Senegal

owned or in which Senegal claimed an interest. In the affidavit, Casseb itemized

the seventeen alleged payments referenced in Senegal’s response to CBTX’s first

motion for summary judgment, explained that only eight of those payments were

actually toward loan number 1646, explained the remaining nine transactions, and

averred that “[a]fter allowing all just credits and payments, the total amount due

and owing . . . is $48,581.04 plus interest, late charges, attorney fees, and court

costs.”

      Senegal did not file a response to CBTX’s second motion for summary

judgment. The trial court signed a final judgment in which it granted CBTX’s

second motion for summary judgment, and Senegal appealed. On appeal, Senegal

argues that Casseb’s affidavit and the CBTX’s summary judgment “conflict with

each other” and that Senegal’s evidence conflicts with that of CBTX.



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      We review summary judgment orders de novo. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). The movant for a traditional summary

judgment must establish that no genuine issues of material fact exist and it is

entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power

Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Randall’s Food Mkts., Inc. v.

Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In deciding whether there is a disputed

material fact issue precluding summary judgment, we take evidence favorable to

the nonmovant as true. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-

49 (Tex. 1985). We indulge every reasonable inference in favor of the nonmovant

and resolve any doubts in his favor. Id. at 549. If the movant produces sufficient

evidence to establish its entitlement to summary judgment, the burden shifts to the

nonmovant to produce evidence that raises a genuine issue of material fact. Rhone-

Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223-24 (Tex. 1999).

      A plaintiff who sues to recover on a promissory note must establish the note

in question and demonstrate that (1) the defendant signed it, (2) the plaintiff is the

legal owner and holder thereof, and (3) a certain balance is due and owing on the

note. Rockwell Commons Assocs., Ltd. v. MRC Mort. Grantor Trust I, 331 S.W.3d

500, 505 (Tex. App.—El Paso 2010, no pet.) (citing TrueStar Petroleum Corp. v.

                                          4
Eagle Oil & Gas Co., 323 S.W.3d 316, 319 (Tex. App.—Dallas 2010, no pet.)). To

defeat summary judgment by raising an affirmative defense, a nonmovant must do

more than simply plead the affirmative defense; instead, it must produce evidence

sufficient to raise a genuine issue of material fact on each element of its affirmative

defense. Divin v. Tres Lagos Prop. Owners’ Ass’n, No. 06-13-00124-CV, 2004

WL 3865846, at *3 (Tex. App.—Texarkana Aug. 7, 2014, pet. denied) (mem. op.).

The nonmovant must offer evidence sufficient to raise a genuine issue of material

fact on each element of his affirmative defense. Id.

      Based upon our review of the record, we conclude that CBTX presented

sufficient evidence to establish the essential elements of its suit to recover on the

promissory note. See Rockwall Commons Assocs., 331 S.W.3d at 505; see also

Atchley v. NCNB Tex. Nat’l Bank, 795 S.W.2d 336, 337 (Tex. App.—Beaumont

1990, writ denied) (Affidavit of bank vice president concerning amount of

principal and interest owed on the note on the date of default and the per diem

interest accruing from that date forward was sufficient to support summary

judgment.). Therefore, the burden of proof shifted to Senegal to produce evidence

that created a genuine issue of material fact. See Steel, 997 S.W.2d at 223-24. We

conclude that Senegal failed to establish his affirmative defenses of payment and

accord and satisfaction, and he failed to raise a genuine issue of material fact. The

                                          5
trial court did not err by granting CBTX’s motion for summary judgment.

Accordingly, we overrule Senegal’s sole appellate issue and affirm the trial court’s

judgment.

      AFFIRMED.

                                               ___________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice


Submitted on May 12, 2015
Opinion Delivered May 21, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.




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