Jawad N. Alsheikh v. Arabian National Shipping Corporation ( 2006 )

Affirmed and Memorandum Opinion filed June 20, 2006

Affirmed and Memorandum Opinion filed June 20, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00787-CV

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JAWAD N. ALSHEIKH, Appellant

V.

ARABIAN NATIONAL SHIPPING CORPORATION, Appellee

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 05-14907

M E M O R A N D U M   O P I N I O N

This is an appeal from a summary judgment.  In six issues, appellant Jawad N. Alsheikh argues that (1) the trial court erred in granting summary judgment in favor of appellee Arabian National Shipping Corporation (AArabian@) and in denying his own motion for summary judgment based on limitations, (2) acknowledgment of a loan does not necessarily revive a lien securing the loan, (3) the trial court erred in failing to grant his motion for new trial, and (4) Arabian=s award of attorney=s fees should be reversed.  We affirm.

Factual and Procedural Background

The underlying dispute concerns two promissory notes (the ANotes@) made by Alsheikh to Arabian on May 21, 1990 that totaled about $154,000.  The Notes matured one year after issuance, had identical interest rates, and were secured by deeds of trust on the same real property Alsheikh owns in Harris County (the AProperty@).  Alsheikh did not timely pay the Notes.  The parties filed a AJoint Stipulation of Fact and Law@ in which they agreed Alsheikh paid Arabian at least $56,000 between 1990 and 1997 and that after 1997, he made the following payments to Arabian:  $1,000 on November 3, 2001,^[1] $1,000 on November 5, 2001; $2,000 on February 10, 2003; $2,000 on August 8, 2003; and $5,000 on May 8, 2004.  The record contains several checks and receipts signed by Alsheikh reflecting these payments.  Some of these documents note the payments were for Aland,@^[2] and two receipts dated August 7, 2003 and May 8, 2004^[3] note that payment was toward Athe out standing [sic] Loan [Alsheikh] borrowed from [Arabian]@ and Athe outstanding Loan [Alsheikh] has with Arabian,@ respectively.  Further, Alsheikh handwrote on the August 7, 2003 receipt, AI am in agreement.@  Most of the documents recite the total Alsheikh had paid to date.

After May 8, 2004, Alsheikh made no further payments on the Notes.  On February 1, 2005, Arabian sent Alsheikh a notice of default and demand for payment.  Subsequently, Alsheikh filed suit in the trial court seeking declaratory judgment that the liens securing the Notes had expired based on the four-year statute of limitations governing real property liens.  He then moved for summary judgment on his claim.  Arabian answered Alsheikh=s original claim, raised several counterclaims, and filed its own summary judgment motion.  The trial court granted Arabian=s and denied Alsheikh=s motion for summary judgment, finding that the Notes Aare not barred by limitations . . . [and] remain secured by the [Property].@  Alsheikh moved for a rehearing and/or a new trial, alleging, among other things, that the trial court=s summary judgment was ambiguous and self-contradictory and seeking clarification, withdrawal, or amendment of its judgment.  The trial court denied appellant=s motion, and this appeal followed.

Analysis

A.  Acknowledgment of the Notes

In his first three issues, Alsheikh claims the trial court erred in granting Arabian=s motion for summary judgment and in denying his own motion. Specifically, he argues that Arabian=s causes of action on the Notes accrued when they matured on May 21,1991 and that he neither extended nor acknowledged them after that date, causing limitations to run on May 21, 1995.  The standard of review for a traditional summary judgment motion is whether the successful movant carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  To be entitled to summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  Under this traditional standard, we must take as true all evidence favorable to the nonmovant and must make all reasonable inferences in the nonmovant=s favor.  See id.  Where, as here, the parties file cross-motions for summary judgment, one of which was granted and the other denied, we review the summary judgment evidence presented by both sides, determine all questions presented, and affirm or reverse accordingly.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

If the holder of a real property lien does not bring suit for recovery of the property or foreclose on it within four years after the cause of action accrues, the lien and power of sale become void.  Tex. Civ. Prac. & Rem. Code Ann. ' 16.035(a), (d) (Vernon 2002).  However, the statute of limitations can be avoided if the party to be charged acknowledges the debt.  See id. _ 16.065 (Vernon 1997).  The acknowledgment must (1) be in writing and signed by the party to be charged, (2) contain an unequivocal acknowledgment of the justness or the existence of the particular obligation, and (3) refer to the obligation and express a willingness to honor it.  Stine v. Stewart, 80 S.W.3d 586, 591 (Tex. 2002).  Additionally, the amount of the acknowledgment described must be susceptible of ready ascertainment.  Id. at 591B92.  Fulfilment of these conditions creates a new obligation.  See id. at 591.  Whether a written instrument sufficiently acknowledges a debt is a question of law. Bright & Co. v. Holbein Family Mineral Trust, 995 S.W.2d 742, 745 (Tex. App.BSan Antonio 1999, pet. denied).

Arabian concedes it filed suit more than four years after its claim against Alsheikh arose.  However, in its summary judgment motion and on appeal, Arabian claims that by writing checks and signing and noting receipts in 2001B2004, Alsheikh acknowledged his debt, and thus Arabian=s counterclaims were timely.  In his own summary judgment motion and accompanying affidavit, Alsheikh argued that he never agreed to extend limitations or the Notes= maturity date.

After reviewing the record, we find that Alsheikh acknowledged both Notes. Alsheikh signed the checks and receipts, most of which recited the total amount paid on his debt to Arabian and some of which specified they were land payments.  Thus, he acknowledged the existence of his obligation in a signed writing, satisfying two of the requirements of debt acknowledgment.  See Stine, 80 S.W.3d at 591. Additionally, Alsheikh never indicated an intent to repudiate the debt, but instead signed receipts reflecting payment on his Aoutstanding@ loan from Arabian, and he noted his agreement on the August 7, 2003 receipt.  Moreover, Texas courts have held a party may make an implied promise to pay a debt.  See, e.g., Matherne v. Carre, 7 S.W.3d 903, 907 (Tex. App.CBeaumont 1999, pet. denied) (finding implied promise to pay in divorce proceeding where husband listed debt to wife=s mother on inventory and appraisement); Mercantile Nat=l Bank at Dallas v. Acoustics, Inc., 589 S.W.2d 773, 775 (Tex. App.CEastland 1979, no writ) (finding implied promise to pay when entries on corporate balance sheet showed debt and reflected three check payments, and no evidence showed debtor intended to repudiate debt).  Alsheikh had no other debts to Arabian, and his course of payment (albeit untimely), the notations on his checks and receipts referring to his obligation, and his failure to repudiate either or both Notes constitute an implied promise to pay.  Thus, he satisfied the final requirement of debt acknowledgment.  See Stine, 80 S.W.3d at 591.

Alsheikh argues that an implied promise cannot exist, nor can the amount of the obligation be susceptible of ready ascertainment, if more than one debt exists and the acknowledgment fails to specify to which debt it refers.  We agree with Alsheikh that generally, the failure to specify a particular debt may defeat a claim of acknowledgment.  See Stine, 80 S.W.3d at 591B92 (noting that the amount of the obligation the acknowledgment describes Amust be susceptible of ready ascertainment@); Cotulla v. Urbahn, 135 S.W. 1159, 1162B63 (Tex. 1911) (finding no acknowledgment where more than one debt existed and evidence of acknowledgment failed to specify which debt). However, the record shows Alsheikh executed the Notes under nearly identical terms on the same day and secured them with the same collateral.  Thus, it appears the Notes were separate parts of one transaction.  In their course of dealing and in their stipulations, Alsheikh and Arabian referred collectively to the Notes and treated them as one debt, further indicating they were part of the same transaction. Moreover, the parties stipulated that on November 3, 2001, Alsheikh Apaid [Arabian] $1,000 on the Notes.@ The record shows that on that date, Alsheikh signed a receipt certifying payment of $2,000 in two checks of $1,000 each toward Athe out standing [sic] Loan on the Land.@ The receipt recited the total paid as $58,000, which was $2,000 more than the amount the parties agreed Alsheikh paid before November 3.  This suggests that on November 3, Alsheikh paid $1,000 on each Note, thus acknowledging both Notes.  We are unpersuaded by Alsheikh=s argument that the checks and receipts use the singular Aloan@ and thus it is unclear whether Alsheikh intended to or acknowledged only one of the Notes.  Rather, given the evidence before us, we find Arabian sufficiently demonstrated that no genuine issue of material fact exists on whether Alsheikh acknowledged the Notes and Alsheikh failed to negate any essential elements of Arabian=s acknowledgment claim.  We overrule Alsheikh=s first three issues.

B. Revival of the Liens

In his fourth issue, Alsheikh argues that acknowledgment of a note does not necessarily revive the accompanying lien.  He claims that even if the Notes are still valid, the plain language of section 16.035(d) renders the liens void and thus inactionable.  See Tex. Civ. Prac. & Rem. Code Ann. ' 16.035(d) (AOn the expiration of the four-year limitations period, the real property lien and a power of sale to enforce the real property lien become void.@).  However, case law supports the proposition that a lien is also revived if the debt it secured is revived.  See, e.g., Davidson v. F.D.I.C., 44 F.3d 246, 255 (5th Cir. 1995) (A[A]s between the parties, an informal, unrecorded, and unacknowledged written promise to pay a limitations barred debt is held to revive both the debt and the lien securing it.@ (citing Beeler v. Harbour, 116 S.W.2d 927, 930B31 (Tex. Civ. App.BFort Worth 1938, writ ref=d))); see also Dominguez v. Castaneda, 163 S.W.3d 318, 327B28, 331 (Tex. App.CEl Paso 2005, pet. denied) (finding property was subject to lien that predated homestead claim when debtor acknowledged debt secured by the lien).  Thus, Alsheikh=s post-limitations acknowledgment of the Notes revived the liens as well as his underlying obligation to pay the Notes.  We overrule Alsheikh=s fourth issue.

C.  Motion for New Trial

In his fifth issue, Alsheikh claims the trial court erred in failing to grant his motion for a new trial.  He contends the summary judgment was self-contradictory and ambiguous in its resolution of Arabian=s counterclaims.  Whether to grant or deny a motion for new trial is within the trial court=s discretion.  See Balias v. Balias, Inc., 748 S.W.2d 253, 257 (Tex. App.CHouston [14th Dist.] 1988, writ denied).  Thus, we do not disturb the trial court=s ruling on such a motion absent abuse of discretion.  Vickery v. Tex. Carpet Co., Inc., 792 S.W.2d 759, 761 (Tex. App.CHouston [14th Dist.] 1990, writ denied).

When Alsheikh sought declaratory judgment that the liens had expired, Arabian filed several counterclaims seeking to declare the debt valid and to recover on the debt.  Specifically, Arabian=s declaratory judgment counterclaim asked the trial court to find the debt Astill valid and not barred by limitations or, in the alternative, that >new= debt exists in the same amount and with the same collateral.@  The trial court=s order granting summary judgment specifically stated the debt was Anot barred by limitations@ and also that A[a]ll relief requested and not expressly granted is denied.@  After the trial court granted its summary judgment, Arabian nonsuited all its claims seeking to recover on the debt.  Alsheikh claims the order is ambiguous and self-contradictory because, although it says the debt is not barred, it does not expressly grant Arabian=s counterclaim, yet denies all relief requested but not expressly granted.  We disagree. The trial court explicitly found that the Notes were not barred by limitations and thus granted Alsheikh=s declaratory judgment counterclaim.  We find nothing ambiguous or self-contradictory about this order, and thus the trial court did not abuse its discretion in refusing to order a new trial.^[4]

Having overruled Alsheikh=s first five issues, we need not address his sixth issue regarding whether the award of attorneys= fees to Arabian should be reversed.

We affirm the trial court=s summary judgment.

/s/      Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed June 20, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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^[1]  The record shows that on November 3, 2001, Alsheikh signed a receipt that stated he paid Arabian $2,000 in two separate checks of $1,000 each and noted that his total paid to date was $58,000.  This is the first payment reflected in the record since 1997, at which time the parties agreed Alsheikh had paid at least $56,000. Thus, because the parties stipulated that Alsheikh paid Arabian $1,000 on the Notes on November 3, 2001, the checks were presumably $1,000 paid on each Note.

^[2]  A receipt dated November 3, 2001 states that payment was toward Athe out standing [sic] Loan on the Land,@ and a check dated two days later states on the memo line that it was for Aland payment.@

^[3]  The receipt appears to be dated May 18, 2004. However, the parties stipulated that Alsheikh paid Arabian $2,000 on May 8, 2004 and attached the May 18, 2004 receipt as an exhibit to the stipulations.  Therefore, we assume for purposes of this opinion that the correct date is May 8, 2004.

^[4]  Alsheikh also claims that Arabian erred in calculating the amount owed on the Notes after the trial court granted Arabian=s summary judgment motion.  However, he fails to provide argument or authority why such a post-judgment miscalculation by an opposing party entitles him to a new trial.  Thus, he waives this issue for appellate review.  See Tex. R. App. P. 38.1(h).