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Ecofriendly Water Co., LLC v. Mercer

Court of Appeals of Texas, Fifth District, Dallas

May 2, 2019

ECOFRIENDLY WATER CO., LLC AND JAY LAFRANCE, Appellants
v.
JEFFREY W. MERCER, AS INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS K. LOWERY, Appellee

          On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-00498-2016

          Before Justices Myers, Molberg, and Carlyle

          MEMORANDUM OPINION

          CORY L. CARLYLE JUSTICE.

Appellant Jay LaFrance[1] challenges the trial court's summary judgment holding him personally liable for a $492, 664.42 debt to appellee.[2] In four issues, LaFrance contends the evidence did not establish his personal liability for the debt or the correct amount owed. We affirm.

         I. Background

         Lowery sued LaFrance and EFW for, among other claims, breach of contract based on a written loan agreement. LaFrance and EFW filed a joint general denial answer.

         After deposing LaFrance, Lowery moved for partial summary judgment against him on the claim for breach of the written loan agreement. In his summary judgment motion, Lowery asserted (1) he and LaFrance executed a November 20, 2013 written "Personal Loan Agreement" (the "agreement"), under which he loaned LaFrance $350, 000; (2) the agreement "required LaFrance to repay the loan, together with interest, in monthly installments of $2, 767.78 beginning on January 1, 2014" and "provided that the entire unpaid balance, including principal and interest, shall be automatically accelerated in the event of any untimely payment"; (3) "LaFrance admits that only the first two required payments were paid"; (4) "[t]herefore, the remaining unpaid balance of the loan, including principal and interest for a total of $492, 664.42, automatically accelerated"; and (5) LaFrance "failed and refused to repay all or any part of the accelerated debt."

         The evidence attached to Lowery's summary judgment motion included (1) "Exhibit 1," a two-page "Personal Loan Agreement" between EFW and Lowery, and (2) "Exhibit 2," excerpts from a transcript of Lafrance's September 8, 2016 deposition.[3] "Exhibit 1" stated as follows:

Within 180 months from today, Borrower promises to pay the Lender Three Hundred and Fifty Thousand dollars ($350, 000.00) and interest as well as other charges avowed below.
Liability:
Although this agreement may be signed below by more than one person, each of the undersigned understands that they are each as individuals responsible and jointly and severally liable for paying back the full amount.
Details of Loan: Agreed Between Borrower and Lender:
Amount of Loan:
$350, 000.00
Other (Describe)
$ ___
Amount financed:
$350, 000.00
Finance charge:
$148, 199.98
Total of payments:
$498, 199.98
ANNUAL PERCENTAGE RATE 5.0%
Repayment of Loan:
Borrower will pay back in the following manner. Borrower will repay the amount of this note in 180 equal continuous monthly installments of $ 2, 767.78 each on the 1st day of each month preliminary on the 1st day of January, 2014, and ending on December, 2028.
Failure to pay:
If for any reason Borrower not succeeds to make any payment on time, Borrower shall be in default. The Lender can then order instant payment of the entire remaining unpaid balance of this loan, without giving anyone further notices.

         At the bottom of Exhibit 1's second page, a line labeled "Borrower's Signature" contained the handwritten signature "Jay LaFrance." Also, a small rectangular label on the first page's lower right-hand corner stated ...


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