Preview
Electronically Filed
11/16/2023 4:55 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
CAUSE NO. C-0859-20-J
RAUL A. ACEVEDO, § IN THE DISTRICT COURT
Plaintiff §
§
v. § 430TH JUDICIAL DISTRICT
§
CARLOS PEÑA, §
Defendant § HIDALGO COUNTY, TEXAS
PLAINTIFF’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THIS COURT:
COMES NOW Raul A. Acevedo, Plaintiff, and pursuant to Rule 166a of the Texas Rules
of Civil Procedure, files this Traditional Motion for Partial Summary Judgment, and in
connection therewith, would respectfully show unto the Court as follows:
I.
Introduction
This is a suit on a Promissory Note. Defendant Carlos Pena is the maker of the note. The
undisputed summary judgment evidence establishes as a matter of law that Plaintiff Raul A.
Acevedo is the owner and holder of the note, that the note is in default and that he is thus entitled
to summary judgment against the Defendant for the principal and interest due on the note,
together with additional interest as it accrues, and attorney fees.
This motion is based on the pleadings on file herein and the affidavit of Raul A. Acevedo
attached hereto, as well as the other summary judgment evidence on file.
II.
The Summary Judgment Standard
When a traditional summary judgment is sought under Texas Rule of Civil Procedure
166a(c), the movant has the burden of showing that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d
Electronically Filed
11/16/2023 4:55 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
420, 425 (Tex. 1997). The court accepts as true evidence in support of the motion if not
controverted. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Once the movant establishes
its right to summary judgment as a matter of law, the burden shifts to the nonmovant to present
evidence sufficient to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197
(Tex. 1995). As demonstrated below, no issue of material fact exists, and Raul A. Acevedo is
entitled to summary judgment as a matter of law.
III.
Entitled to Summary Judgment
The summary judgment evidence demonstrates that Raul A. Acevedo is the owner and
holder of the note sued on.1 Such note was executed for good and valuable consideration; that is
the sale of an accounting practice.2 Defendant defaulted on payment of the note.3 Defendant
Carlos Pena is the maker of the note.4
The principal balance due and owing on the note dated February 9, 2016, as of November
15, 2023, is $79,340.02.5 As of November 16, 2023, the interest owing on such note is
$69,643.206 and interest continues to accrue thereafter in the amount of $39.12 per day.7
There are no valid defenses to Defendant’s liability for the sums described above.
Defendant asserts that “other monies were paid” to Plaintiff in satisfaction of the note; however,
Defendant lacks capacity to assert said claim as no other monies were paid by Defendant to
Plaintiff.8 Further, Defendant’s allegation is subject to the affirmative defense of waiver and
ratification. “Other monies paid” to Plaintiff were not made in satisfaction of the debt sued
1
Acevedo Affidavit, ¶ 2.
2
Acevedo Affidavit, ¶ 2.
3
Acevedo Affidavit, ¶ 2
4
Exhibit A; Acevedo Affidavit, ¶ 2
5
Acevedo Affidavit, ¶ 3.
6
Acevedo Affidavit, ¶ 3.
7
Acevedo Affidavit, ¶ 3.
8
Acevedo Affidavit, ¶ 4
Plaintiff’s Traditional Motion for Partial Summary Judgment, p2
Electronically Filed
11/16/2023 4:55 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
upon. Sanati v. Arab, 01-18-00325-CV, 2020 WL 826724, at *4 (Tex. App. – Houston [1st Dist.]
Feb. 20, 2020, pet. denied); Colony Flooring & Design, Inc. v. Regions Bank, No. 01-13-00210-
CV, 2014 WL 2021823, at *5 (Tex. App. – Houston [1st Dist.] May 15, 2014, no pet.); Stucki v.
Noble, 963 S.2d 776, 781-82 (Tex. App. – San Antonio 1998, pet. denied). Accordingly,
Defendant’s contention that “other monies were paid” to Plaintiff must be denied and summary
judgment granted in favor of Plaintiff.
V.
Conclusion
There is no genuine issue of material fact and Plaintiff, as a matter of law, is entitled to
recover the sums described above against Defendant. Thus, Plaintiff is entitled to a summary
judgment. Following the summary judgment, Plaintiff’s claims for attorney’s fees remain.
WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Court set this
matter for hearing and, that following the hearing, Plaintiff’s partial summary judgment be
granted as requested above, together with such other and further relief, both at law and in equity,
to which he may be justly entitled.
Plaintiff’s Traditional Motion for Partial Summary Judgment, p3
Electronically Filed
11/16/2023 4:55 PM
Hidalgo County District Clerks
Reviewed By: Jeremy Longoria
Respectfully submitted,
LAW OFFICES OF EZEQUIEL REYNA, JR., P.C.
/s/ Sonia I. Lopez
Ezequiel Reyna, Jr.
State Bar No. 16794798
lsmiguel@zreynalaw.com
Sonia I. Lopez
State Bar No. 24003862
slopez@zreynalaw.com
702 W. Expressway 83, Suite 100
Weslaco, Texas 78596
(956) 968-9556 Telephone
(956) 969-0492 Facsimile
ATTORNEYS FOR RAUL A. ACEVEDO
CERTIFICATE OF SERVICE
I hereby certify that on this the 16th day of November 2023, a true and correct copy of the
foregoing instrument was served in accordance with the Texas Rules of Civil Procedure to all
parties of record as follows:
VIA E-SERVICE
Mr. Kelly K. McKinnis
3423 W. Alberta Road
Edinburg, Texas 78539
Attorney for Defendant
/s/ Sonia I. Lopez
SONIA I. LOPEZ
Plaintiff’s Traditional Motion for Partial Summary Judgment, p4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Linda San Miguel on behalf of Sonia Lopez
Bar No. 24003862
lsmiguel@zreynalaw.com
Envelope ID: 81736842
Filing Code Description: Motion (No Fee)
Filing Description:
Status as of 11/17/2023 9:08 AM CST
Associated Case Party: RaulAAcevedo
Name BarNumber Email TimestampSubmitted Status
Sonia IrisLopez slopez@zreynalaw.com 11/16/2023 4:55:53 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Kelly K.McKinnis mckinnis22@yahoo.com 11/16/2023 4:55:53 PM SENT
Preview
Electronically Filed 11/16/2023 4:55 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria CAUSE NO. C-0859-20-J RAUL A. ACEVEDO, § IN THE DISTRICT COURT Plaintiff § § v. § 430TH JUDICIAL DISTRICT § CARLOS PEÑA, § Defendant § HIDALGO COUNTY, TEXAS PLAINTIFF’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: COMES NOW Raul A. Acevedo, Plaintiff, and pursuant to Rule 166a of the Texas Rules of Civil Procedure, files this Traditional Motion for Partial Summary Judgment, and in connection therewith, would respectfully show unto the Court as follows: I. Introduction This is a suit on a Promissory Note. Defendant Carlos Pena is the maker of the note. The undisputed summary judgment evidence establishes as a matter of law that Plaintiff Raul A. Acevedo is the owner and holder of the note, that the note is in default and that he is thus entitled to summary judgment against the Defendant for the principal and interest due on the note, together with additional interest as it accrues, and attorney fees. This motion is based on the pleadings on file herein and the affidavit of Raul A. Acevedo attached hereto, as well as the other summary judgment evidence on file. II. The Summary Judgment Standard When a traditional summary judgment is sought under Texas Rule of Civil Procedure 166a(c), the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d Electronically Filed 11/16/2023 4:55 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria 420, 425 (Tex. 1997). The court accepts as true evidence in support of the motion if not controverted. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Once the movant establishes its right to summary judgment as a matter of law, the burden shifts to the nonmovant to present evidence sufficient to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). As demonstrated below, no issue of material fact exists, and Raul A. Acevedo is entitled to summary judgment as a matter of law. III. Entitled to Summary Judgment The summary judgment evidence demonstrates that Raul A. Acevedo is the owner and holder of the note sued on.1 Such note was executed for good and valuable consideration; that is the sale of an accounting practice.2 Defendant defaulted on payment of the note.3 Defendant Carlos Pena is the maker of the note.4 The principal balance due and owing on the note dated February 9, 2016, as of November 15, 2023, is $79,340.02.5 As of November 16, 2023, the interest owing on such note is $69,643.206 and interest continues to accrue thereafter in the amount of $39.12 per day.7 There are no valid defenses to Defendant’s liability for the sums described above. Defendant asserts that “other monies were paid” to Plaintiff in satisfaction of the note; however, Defendant lacks capacity to assert said claim as no other monies were paid by Defendant to Plaintiff.8 Further, Defendant’s allegation is subject to the affirmative defense of waiver and ratification. “Other monies paid” to Plaintiff were not made in satisfaction of the debt sued 1 Acevedo Affidavit, ¶ 2. 2 Acevedo Affidavit, ¶ 2. 3 Acevedo Affidavit, ¶ 2 4 Exhibit A; Acevedo Affidavit, ¶ 2 5 Acevedo Affidavit, ¶ 3. 6 Acevedo Affidavit, ¶ 3. 7 Acevedo Affidavit, ¶ 3. 8 Acevedo Affidavit, ¶ 4 Plaintiff’s Traditional Motion for Partial Summary Judgment, p2 Electronically Filed 11/16/2023 4:55 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria upon. Sanati v. Arab, 01-18-00325-CV, 2020 WL 826724, at *4 (Tex. App. – Houston [1st Dist.] Feb. 20, 2020, pet. denied); Colony Flooring & Design, Inc. v. Regions Bank, No. 01-13-00210- CV, 2014 WL 2021823, at *5 (Tex. App. – Houston [1st Dist.] May 15, 2014, no pet.); Stucki v. Noble, 963 S.2d 776, 781-82 (Tex. App. – San Antonio 1998, pet. denied). Accordingly, Defendant’s contention that “other monies were paid” to Plaintiff must be denied and summary judgment granted in favor of Plaintiff. V. Conclusion There is no genuine issue of material fact and Plaintiff, as a matter of law, is entitled to recover the sums described above against Defendant. Thus, Plaintiff is entitled to a summary judgment. Following the summary judgment, Plaintiff’s claims for attorney’s fees remain. WHEREFORE, PREMISES CONSIDERED, Plaintiff requests that the Court set this matter for hearing and, that following the hearing, Plaintiff’s partial summary judgment be granted as requested above, together with such other and further relief, both at law and in equity, to which he may be justly entitled. Plaintiff’s Traditional Motion for Partial Summary Judgment, p3 Electronically Filed 11/16/2023 4:55 PM Hidalgo County District Clerks Reviewed By: Jeremy Longoria Respectfully submitted, LAW OFFICES OF EZEQUIEL REYNA, JR., P.C. /s/ Sonia I. Lopez Ezequiel Reyna, Jr. State Bar No. 16794798 lsmiguel@zreynalaw.com Sonia I. Lopez State Bar No. 24003862 slopez@zreynalaw.com 702 W. Expressway 83, Suite 100 Weslaco, Texas 78596 (956) 968-9556 Telephone (956) 969-0492 Facsimile ATTORNEYS FOR RAUL A. ACEVEDO CERTIFICATE OF SERVICE I hereby certify that on this the 16th day of November 2023, a true and correct copy of the foregoing instrument was served in accordance with the Texas Rules of Civil Procedure to all parties of record as follows: VIA E-SERVICE Mr. Kelly K. McKinnis 3423 W. Alberta Road Edinburg, Texas 78539 Attorney for Defendant /s/ Sonia I. Lopez SONIA I. LOPEZ Plaintiff’s Traditional Motion for Partial Summary Judgment, p4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Linda San Miguel on behalf of Sonia Lopez Bar No. 24003862 lsmiguel@zreynalaw.com Envelope ID: 81736842 Filing Code Description: Motion (No Fee) Filing Description: Status as of 11/17/2023 9:08 AM CST Associated Case Party: RaulAAcevedo Name BarNumber Email TimestampSubmitted Status Sonia IrisLopez slopez@zreynalaw.com 11/16/2023 4:55:53 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Kelly K.McKinnis mckinnis22@yahoo.com 11/16/2023 4:55:53 PM SENT