Opinion issued July 31, 2026.
In The
Court of Appeals
For The
First District of Texas
NO. 01-24-00550-CV
CLAYTON A. HENSLEY, Appellant
V.
BRYAN W. ALEXANDER AND LARRY L. ALEXANDER, Appellees
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2019-37498
MEMORANDUM OPINION
Appellees Bryan and Larry Alexander filed suit against Appellant Clayton A.
Hensley to collect $250,000 on an unpaid promissory note. The jury found in favor
of the Alexanders finding that (1) Hensley signed the promissory note, (2) Hensley
ratified the promissory note, and (3) the Alexanders were owners or holders of the promissory note. In three issues on appeal, Hensley argues there is legally and
factually insufficient evidence to support the jury’s findings.
We affirm the trial court’s judgment.
Background
The Parties’ History
Appellant Clayton Hensley played collegiate baseball at Alvin Community
College, where Bryan Alexander was his coach. Larry Alexander is Bryan’s father,
and Hensley only knew him through Bryan. Hensley did well in collegiate baseball
and was eventually drafted by the San Francisco Giants. He played in the major
leagues for several years and kept in touch with Bryan during that time. They had
shared interests in real estate and hunting.
After retiring from baseball, Hensley started a software company, worked as
a baseball analyst, and participated in some real estate deals. He formed Caltex
Energy Resources, LLC to try and take advantage of opportunities in the
downstream sector of the oil and gas business, particularly the purchase and sale of
refined petroleum products.
Bryan, who now worked for 5 Oaks Commodities, reached out to Hensley to
discuss potential fuel deals in the European market. Around this time, Hensley hired
Renato Corzo as a consultant for Caltex, and he gave him the title of “Director of
Project Logistics.” Hensley testified that he hired Corzo because Bryan
2
recommended him as someone who could help him with landing trading fuel deals
in Europe. Bryan testified that he did not know Corzo personally, but he got Corzo’s
name from a business associate and passed it along to Hensley.
At some point, Hensley asked Bryan whether he knew anyone who wanted to
invest in a fuel tank deal he was doing with a company named Rosneft. Hensley
claimed he did not ask Bryan for money personally, but Bryan testified that he did.
Hensley planned to use proceeds from promissory notes to pay for fuel-tank storage
in Europe, and to then sell the product inside the tanks to customers. Although both
Hensley and the Alexanders acknowledge they discussed using promissory notes for
fuel-tank storage payments, Hensley testified he did not know that Bryan personally
would loan the money, or that he personally would owe the money.
The Draft Promissory Note
On July 17, 2016, Bryan sent an email to Corzo with a cc: to Hensley with the
subject line, “FWD: Promissory Note and Cal Tex Agreement.” In the email, Bryan
stated, “Please find all documents ready for signatures and notary. We look forward
to getting all documents returned ready to go tomorrow morning.” Attached to the
email was a draft promissory note, the first paragraph of which stated:
For good and valuable consideration received, the sufficiency of which
is hereby acknowledged the undersigned, Renato Corzo (in his
individual capacity), Clay Hensley (in his individual capacity) and Cal
Tex Energy Resources, LLC (“Borrowers”), jointly and severally
promise to pay to [Bryan Alexander, Larry Alexander, and Steve M.
3
Garrett, Sr.1] the principal sum of Two Hundred and Fifty Thousand
and xx/100 ($250,000.00) plus interest at the lesser rate of ten percent
per annum or the highest rate allowed by law, payable in one lump sum
in full on or before July 30, 2016.
The draft promissory note was prepopulated with Corzo’s and Hensley’s electronic
signatures, but the Alexanders do not contend that this was the final authorized
contract, and the lawsuit is not based upon this document.
The draft promissory note indicated that the note was “payable in one lump
sum in full on or before July 30, 2016.” Bryan testified that after the draft promissory
note was circulated, he and Hensley had discussions about the maturity date. Hensley
did not mention anything about the prepopulated signature or signing in his
individual capacity. Instead, he told Bryan that he needed more time to get
“everything across the finish line.”
On July 18, 2016, Hensley sent an email to Corzo and cc’d Bryan with the
subject-line “Promissory Note Agreement.” In the email, Hensley stated that the
documents required certain changes, “as well as the date to the promissory note in
which Bryan, Sterlin,2 and myself have discussed and agreed to.” Hensley
concluded, “Let’s get the wire out first thing in the morning and lets truly get to work
1
Although Garrett was designated as a lender, the parties agree that he did not sign
the promissory note or contribute any portion of the $250,000.
2
Sterlin was a business associate of Bryan. He was not party to this lawsuit, nor was
he a witness at trial.
4
and start creating stuff together. It’s going to be good.” When questioned about this
email at trial, Hensley agreed that it referenced “a” promissory note, but he testified
it was not the same note on which the Alexanders were suing. Hensley testified at
trial that the discussions about moving the maturity date of the note “were about
something else.” Neither during discovery nor at trial did Hensley produce a copy
of any draft promissory note or final promissory note other than the one made the
basis of the Alexanders’ lawsuit—Plaintiff’s Exhibit 3.
The Promissory Note
Also on July 18, 2016, Corzo sent an email to Bryan and cc’d Hensley with
the subject line “Re: Promissory note.” The text stated in all capital letters,
“PROMISSORY NOTE EXECUTED. PLEASE NOTE THE WIRING
INSTRUCTIONS ARE IN THE INVOICE.” The promissory note is similar to the
July 17 draft promissory note, except that the maturity date was changed to August
15, 2016, and Corzo’s electronic signature was replaced with a “wet” signature. The
promissory note states that it was “EXECUTED on the 18th day of July.” Hensley’s
signature was still electronic and not notarized; Corzo’s “wet” signature was
notarized by a California notary.3 Both the draft promissory note and the executed
note upon which the Alexanders filed suit state that Hensley is signing in his
3
The jury was charged that Texas law does not require a signature on a promissory
note to be notarized.
5
individual capacity. And typed above his electronic signature on both documents are
the words, “In his individual capacity.”
Either the day on which the promissory note was executed, or the next day,
Bryan spoke to Hensley. According to Bryan, Hensley told him he had “signed [the
promissory note] and we’re going to go and it is going to be—it’s going to be a good
ride” and “I’ve signed it, we’ve signed it, and we’re good to go.” Hensley, on the
other hand, testified that he notified Bryan during a telephone conversation that he
had not executed the promissory note.
At trial and on appeal, Hensley suggests that the copy of the promissory note
admitted at trial—Plaintiff’s Exhibit 3—is not authentic, pointing to staple marks,
color variations, and the background. He also testified at trial that, even though he
was copied on the July 18 email transmitting the promissory note, and he
acknowledged receiving the email, he did not know what was attached to the July
18 email from Corzo to the Alexanders. Although Hensley acknowledged that Corzo
attached something to the email, he testified that “[Corzo] executed something that
has nothing to do with me.” Hensley acknowledged that “[i]f [the promissory note]
was attached to that e-mail, I’m sure I would have seen it, yes.”
On August 1, 2016, Hensley sent the Alexanders wiring instructions stating
“[p]lease wire funds to Caltex Energy Resources, LLC” and including the bank
address and necessary information for Caltex’s account with U.S. Bank. According
6
to the Alexanders, on August 1, 2016, after Hensley told them that he had signed the
note, the Alexanders wired the money as required under the terms of the note.
Hensley received the money on behalf of Caltex and then wired the money to gas
storage facilities in Rotterdam.
The Aftermath
The August 15 maturity date on the promissory note came and went with no
repayment by either Corzo, Hensley, or Caltex, who, according to the terms of the
note, were all jointly and severally liable. Then began several months of the
Alexanders seeking repayment and Hensley seeking more time to pay.
On August 30, 2016, Bryan sent an email to Hensley and Corzo with the
subject line “Promissory note.” In the email, Bryan stated, “Knowing that our
promissory note was dated for maturity as of August 15, 2016[,] we very much
should be regarded more as an ally than a burden.” He asked to be “kept in the loop”
as the prospective deal progressed. At trial, Hensley pointed to another line of the
same email that referred to “our three transactions,” suggesting that Bryan’s email
was not about the promissory note made the basis of this suit, but some other
promissory note.
On September 8, 2016, Bryan sent Hensley an email stating in part: “We have
a problem I wanted to make you aware of so we can head it off . . . Steve Garrett that
loaned a 100K of the money is getting really impatient.” He also mentioned that
7
Garrett “has strong connections with somebody at Interpol.” At trial, Bryan admitted
that the email was not true because Garrett, though named on the note, had not
contributed any of the funds loaned. Bryan testified that by lying to Hensley about
Garrett, he had hoped to pressure Hensley into repaying the note.
On September 13, 2017, Larry sent an email to Hensley, with the subject line
“$250,000,” in which he stated that he gave him “$250,000 in July of 2016” because
“Bryan assured me that you were an honest honorable man.” Larry explained that he
had taken the money out of his retirement account, and that even though Hensley
“ha[d] a history” with Bryan, Larry perceived Hensley “as a dishonorable, dishonest
person.”
On October 6, 2016, Larry sent another email to Hensley “in the hopes that
[he would] send [the] $250,000 back to [the Alexanders].” In the email, Larry
referenced two of his friends “who make a very good living by litigating against
people for contract disputes.” He suggested that his friends were “very familiar with
[the] business that [Hensley] and [Corzo] were doing,” and that he could “send a few
letters, file several lawsuits, file several injunctions . . . basically making it
impossible for [Hensley] and [Corzo] to continue doing deals . . . .” When questioned
about this email at trial, Larry admitted that it was an exaggeration because he was
frustrated and desperate to get his money back.
8
On October 17, 2016, Larry sent another email to Hensley with the subject
line “Promissory Note Due August 15, 2016,” in which he stated:
Throughout this whole process I have been given promises that a deal
was closing in a few days. This has been going on for months. I made
the decision to enter the promissory note for $202,000 with you because
Bryan trusted you. I want my money wired to me no later than
Wednesday, October 19, 2016, or I will be forced to move forward with
the legal action to recover my money. I think you and [Corzo] should
make plans to borrow the $256,000, and wire it to Bryan and I on
Wednesday.
Hensley responded to Larry’s email the same day. In an email with the subject line
“Re: Promissory Note,” he stated in part:
The promissory notes were given because of the introduction that was
made by Bryan and Sterlin expressing that [Corzo] was the guy and can
get all of this supply and we would be up and rolling. Furthermore,
[Corzo] instructed me to give the promissory notes to get the investors
as we would close a deals (sic) prior to the expiration date.
Hensley concluded his response by promising that he was “trying to get a loan for
your money to meet your deadline.”
The reporter’s record from the trial contains 172 pages of text messages
exchanged between Hensley and Bryan. In these texts, Bryan repeatedly pleads and
threatens legal action against Hensley in an effort to get the note repaid, and Hensley
repeatedly promises to do so and asks for more time. The two also blame one another
for the failed European gas sales that never came to fruition and the resulting
financial burdens that ruined their lives.
9
The Lawsuit
The Alexanders sued Hensley, Corzo, and Caltex for breach of the promissory
note dated July 18, 2016. They moved for a default judgment, and in September
2019, the trial court signed a default judgment against Caltex. Caltex was severed
from the lawsuit on September 16, 2019.
Unable to collect from Caltex, the Alexanders moved forward with the case
against Hensley and Corzo. The Alexanders nonsuited Corzo and shortly after, in
October 2020, Hensley answered the lawsuit. Hensley’s answer did not include a
verified denial challenging the authenticity of his signature on the promissory note.
It was not until the Alexanders moved for summary judgment that Hensley, on April
5, 2021, filed a verified denial disputing the authenticity of his signature on the note.
The case proceeded to a jury trial. The jury found that Hensley (1) signed the
promissory note, (2) ratified the promissory note, and (3) that the Alexanders were
the holders of the promissory note. The trial court entered judgment on the jury’s
verdict awarding the Alexanders $250,000.00 in damages, plus interest, costs and
expenses, and attorney’s fees.
In three issues on appeal, Hensley challenges the legal and factual sufficiency
of the evidence supporting the jury’s findings and requesting that we reverse the trial
court’s judgment.
10
Applicable Law and Standard of Review
In a suit for recovery on a promissory note, a plaintiff need not establish all
essential elements for a breach of contract claim. The plaintiff only needs to establish
the note in question, that the defendant signed or ratified the note, that the plaintiff
is the holder or owner of the note, and that a balance is due and owing. Roth v.
JPMorgan Chase Bank, N.A., 439 S.W.3d 508, 512 (Tex. App.—El Paso 2014, no
pet.).
In reviewing a legal sufficiency challenge to the evidence, we view the
evidence in the light most favorable to the finding, crediting favorable evidence if a
reasonable factfinder could, and disregarding contrary evidence unless a reasonable
factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A
party bringing a legal sufficiency challenge to a finding on which it did not have the
burden of proof must demonstrate that there is no evidence to support the adverse
finding. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215
(Tex. 2011). We may not sustain a legal sufficiency or no-evidence point unless the
record demonstrates that (1) there is a complete absence of a vital fact; (2) the court
is barred by the rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact; (3) the evidence to prove a vital fact is no more than a
scintilla; or (4) the evidence established conclusively the opposite of the vital fact.
City of Keller, 168 S.W.3d at 810 (quoting Robert W. Calvert, “No Evidence and
11
“Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–63 (1960)). The
factfinder is the sole judge of the witnesses’ credibility and the weight to give their
testimony. Id. at 819.
In reviewing the factual sufficiency of the evidence, we are required to
examine all the evidence, and we will set aside the judgment only if it is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain
v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Unlike a legal-sufficiency review, a
factual-sufficiency review requires that we review the evidence in a neutral light.
Id.; Nelson v. Najm, 127 S.W.3d 170, 174 (Tex. App.—Houston [1st Dist.] 2003,
pet. denied). The factfinder may choose to “believe one witness and disbelieve
others” and “may resolve inconsistencies in the testimony of any witness.”
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also City of Keller,
168 S.W.3d at 820–21.
When, as here, a party challenges both the legal and factual sufficiency of the
evidence, appellate courts should address the legal sufficiency issues first. Glover v.
Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); see TEX. R. APP. P. 43.3;
Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999)
(concluding that appellate courts must first address points that afford greatest relief,
that Rule 43.3 “incorporates this principle,” and that court “erred by not deciding the
rendition issue before the remand issue”).
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DISCUSSION
Was the promissory note signed by Hensley?
In his first issue, Hensley contends there is legally and factually insufficient
evidence to support the jury’s finding that he signed the promissory note. Hensley
does not contest that his electronic signature appears on the note. Instead, he argues
that he never saw the promissory note in its final form and that he does not know
how his electronic signature came to be on it. He argues he would never have signed
the note in his individual capacity.
A contract may not be denied legal effect or enforceability solely because an
electronic record was used in its formation; if the law requires a signature, an
electronic signature satisfies the law. TEX. BUS. & COM. CODE § 322.007(b), (d). An
electronic signature is attributable to a person if it was the act of the person, which
may be “shown in any manner.” See id. § 322.009(a). The effect of an electronic
signature is determined “from the context and surrounding circumstances at the time
of its creation, execution, or adoption, including the parties’ agreement, if any, and
otherwise as provided by law.” Id. § 322.009(b).
When, as here, a maker challenges the authenticity of his signature in a
verified pleading, the burden of proof is on the person claiming validity—the
Alexanders—“but the signature is presumed to be authentic and authorized unless
the action is to enforce the liability of the purported signer and the signer is dead or
13
incompetent at the time of trial of the issue of the issue of validity of the signature.”
TEX. BUS. & COM. CODE § 3.308(a). Hensley is not dead or incompetent, so his
signature is presumed authentic, but the Alexanders still bore the burden of proof at
trial.
Legal Sufficiency
Beginning with the presumption of authenticity, we review the evidence in
the light most favorable to the jury’s finding to determine whether the Alexanders
presented more than a scintilla of evidence that Hensley signed the promissory note.
City of Keller, 168 S.W.3d at 810. Several pieces of evidence are critical.
First, on July 18, 2016, Hensley sent an email to Corzo copying Bryan with
the subject line, “Promissory Note Agreement.” The email references an
“agreement” to change the maturity date on the note and concludes, “Let’s get the
wire out first thing in the morning and let’s truly get to work . . . .” Also on July 18,
Corzo sent an email to both Bryan and Hensley that said “promissory note executed,”
with a copy of the signed promissory note with Hensley’s electronic signature
attached.4 Hensley does not dispute receiving this email. And the promissory note
attached to the email reflected a changed maturity date of August 15. The jury
4
Though Hensley argues that the promissory note on which he was sued was not the
promissory note attached to the July 18 email, for purposes of legal sufficiency
review we disregard this assertion. Instead, we address the issue in the factual
sufficiency review below.
14
reasonably could have concluded that this change was in accordance with Hensley’s
prior email requesting a change in the maturity date.
Bryan also testified that on July 18 or July 19, he had a telephone conversation
with Hensley, in which Hensley told him he “signed [the note] and we’re going to
go and it is going to be—it’s going to be a good ride” and “I’ve signed it, we’ve
signed it, and we’re good to go.” After speaking with Hensley and receiving bank
wiring instructions from him, the Alexanders wired $250,000 to Caltex Energy
Resources, which accepted the money on Caltex’s behalf.
Viewing this evidence in the light most favorable to the jury’s finding, and
disregarding all other evidence, we conclude there is more than a scintilla of
evidence to support the jury’s finding that Hensley signed the promissory note. We
thus overrule Hensley’s legal-sufficiency challenge to the jury’s finding that he
signed the promissory note.
Factual Sufficiency
We next consider the evidence in a neutral light to determine whether the
jury’s finding that Hensley signed the promissory note is against the great weight
and preponderance of the evidence. Cain, 709 S.W.2d at 176. Hensley contends the
evidence is factually insufficient because (1) no one witnessed him signing the note,
(2) Corzo’s July 18 email “arguably” referenced only his own signature on the
promissory note, (3) Bryan’s and Larry’s testimony is not credible because both
15
admitted lying or exaggerating in their emails to Hensley, (4) Hensley’s promises
that Bryan and Larry would not lose money is not evidence that he individually
signed the promissory note, (5) none of the emails expressly state that Hensley
individually signed the promissory note, and (6) Bryan’s August 2016 email
referencing “three transactions” supports Hensley’s argument that his own July 18,
2016 email “may have referred” to another document being signed.
Reviewing each of these contentions, we conclude that the jury’s finding that
Hensley signed the note is not against the great weight and preponderance of the
evidence.
(1) No eyewitness saw Hensley sign the note
It is true that no one testified they saw Hensley sign the promissory note, but
direct eyewitness testimony of execution is not required. See State v. $11,014.00,
820 S.W.2d 783, 785 (Tex. 1991) (stating that any ultimate fact may be proved by
circumstantial evidence). For this reason, the jury was instructed that Texas law does
not require that signatures on a promissory note be notarized. See Suttles v. Thomas
Bearden Co., 152 S.W.3d 607, 611 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
(noting that to prove defendant is maker of note, only his signature on note is
required). That no one witnessed Hensley signing the note is thus not conclusive
evidence that he did not do so. It was only one factor the jury could consider.
(2) Corzo’s July 18 email addresses only his own signature
16
In his July 18, 2016 email Corzo states, “PROMISSORY NOTE
EXECUTED.” Hensley argues that Corzo was referring only to his own signature
on the note and not Hensley’s. In support, Hensley points to differences between the
draft promissory note and the final note that is the basis of this suit. Hensley argues
that in the draft promissory note, both Corzo’s and Hensley’s signatures were
prepopulated with electronic signatures, but in the final document, Corzo had
replaced his electronic signature with a “wet” signature, which was then notarized.
He argues that because his own signature remained the same, Corzo “arguably” was
referring only to the fact that he had executed the promissory note, not that Hensley,
too, had signed it.
As the Alexanders note, the difference between the draft note and the executed
note as it pertains to Corzo’s signature is not conclusive evidence that Hensley did
not, after reviewing the draft note and obtaining certain requested changes, apply his
electronic signature to the note. There is evidence in the record that Hensley had
utilized electronic signatures in the past, that one electronic signature was stored on
his computer to be used for such situations, and that the electronic signature on the
note looked like the electronic signature Hensley had previously used. Again, the
difference in the draft note and the executed note created a fact issue for the jury to
resolve, which the jury did in the Alexanders’ favor.
(3) Bryan’s and Larry’s credibility
17
Hensley argues that the Alexanders’ testimony is not credible. He points out
that Bryan admitted to lying when he tried to use Steve Garrett’s name and purported
connections to Interpol to pressure Hensley into repaying the loan. He also points
out that Larry admitted “exaggerating” when he told Hensley that he had friends that
were familiar with Hensley’s business and that he would sue and make it impossible
for Hensley to continue business.
In our review, we may not engage in credibility determinations. The jury, as
the sole fact finder, assesses the credibility of witnesses and may choose to believe
all, some, or none of a witness’s testimony. Bufkin v. Bufkin, 259 S.W.3d 343, 355
(Tex. App.—Dallas 2008, pet. denied); Miller v. Kendall, 804 S.W.2d 933, 939 (Tex.
App.—Houston [1st Dist.] 1990, no writ). Likewise, the jury may choose to “believe
one witness and disbelieve others” and “may resolve inconsistencies in the testimony
of any witness.” McGalliard, 722 S.W.2d at 697.
We note that both Bryan and Larry readily admitted to the jury that, at times,
they were untruthful with Hensley in an effort to pressure him into repaying the note.
The jury was entitled to accept their explanation and to believe whichever portions
of their testimony it found credible. Bryan testified that Hensley told him that he
signed the note; Henley denied that he did so. The jury was entitled to accept Bryan’s
testimony and reject Hensley’s testimony.
(4) Hensley’s assurances that the Alexanders would be repaid
18
Bryan testified that Hensley told him that, no matter what, his money and his
dad’s money would be safe. Hensley argues that this statement, which he denied
making, “is not evidence that [he] individually signed the Promissory Note.” We
agree that his statement to Bryan is not conclusive proof that he signed the
promissory note in his individual capacity. Rather, it is just one more piece of
evidence the jury could consider in making its determination, along with the
typewritten notation above Hensley’s signature on both the draft note and the
executed note that he was signing the note “In his individual capacity.” The jury was
entitled to determine whether it believed Bryan or Hensley, and the jury was also
entitled to determine what weight to give their testimony.
(5) The post-execution emails referencing a promissory note
Bryan and Larry both wrote post-execution emails in which they referenced a
promissory note. Bryan wrote his email on August 30, 2016, and Larry on October
17, 2016. Hensley argues that neither email—though referencing a promissory
note—mentions that Hensley signed the note in his individual capacity, and thus,
they are not evidence he signed the note individually.
We agree that the emails do not prove conclusively that Hensley signed the
note in his individual capacity, but they are circumstantial evidence the jury was
entitled to consider in making its final determination. As the Alexanders point out,
even though Hensley argued at trial that he never saw the promissory note, he never
19
produced any other promissory note or agreement that he and the Alexanders may
have been discussing. The jury could have found Hensley to be not credible when
he testified that the repeated references to a promissory note in the emails between
the parties was about “something else” or one of “three transactions.” And the jury
could have believed that Hensley, in fact, executed the note with his electronic
signature placed under the typewritten notation “In his individual capacity.”
(6) “Other” transactions between the parties
Hensley argues that Bryan’s August 2016 email referencing “three
transactions” is proof that Hensley’s own email on the date of execution “may have
referred” to some agreement other than the promissory note that is the basis of this
suit. But the jury considered that issue and decided that it did not, and it was the
jury’s province to decide what the parties meant when they repeatedly referred to a
promissory note. In finding that Hensley signed the note under the typewritten words
“In his individual capacity,” the jury necessarily rejected Hensley’s argument that
the parties’ repeated references to a promissory note referred to anything other than
the note executed on July 18, 2016, especially given Hensley’s inability to produce
another document to which the emails purportedly referred.
Considering the evidence in a neutral light, we hold that the jury’s finding that
Hensley signed the promissory note is not against the great weight and
preponderance of the evidence.
20
Having found legally and factually sufficient evidence to support the jury’s
finding that Hensley signed the promissory note, we overrule Hensley’s first issue.
Was the promissory note ratified by Hensley?
In his second issue, Hensley contends that there is legally and factually
insufficient evidence to support the jury’s finding that he ratified the promissory
note. Having determined that there was legally and sufficient evidence to support
the jury’s finding that Hensley signed the note, we need not address whether there is
also legally and factually sufficient evidence that he ratified the note.
Signing and ratifying a note are separate methods of establishing contractual
liability. See Coastal Shutters and Insulation, Inc. v. Derr, 809 S.W.2d 916, 920
(Tex. App.—Houston [14th Dist.] 1991, no writ). Proof that a maker either signed
or ratified a contract is sufficient to establish his liability—the holder of the note
need not prove both. See id.
Because Hensley’s second issue is not necessary to the final disposition of this
appeal, we need not address it. See TEX. R. APP. 47.1.
Did the Alexanders own or hold the promissory note?
In his third issue, Hensley contends there is legally and factually insufficient
evidence to support the jury’s finding that the Alexanders are the owners or holders
of the promissory note. Hensley argues that the Alexanders are not holders of the
note because they never possessed the original promissory note, and they are not
21
owners of the note because “it was unreasonable for the jury to credit their
conclusory testimony about ownership of the promissory note.” We reject Hensley’s
contentions for two reasons.
First, there is no requirement that the Alexanders produce the original note
with “wet” signatures to establish they are the holders of the note. In Texas, a
plaintiff may establish the existence of a note by producing a photocopy of the
promissory note attached to an affidavit in which the affiant swears that the
photocopy is a true and correct copy of the original note; no contrary authority
requires that a plaintiff produce the original note to enforce it. See Zarges v. Bevan,
652 S.W.2d 368, 369 (Tex. 1983) (holding that, in summary-judgment proceeding,
photocopy of note attached to affidavit of holder or owner, who swears that it is true
and correct copy of note, is sufficient as matter of law to prove owner or holder
status, if uncontroverted); see also Just Fondue It, L.L.C. v. Comerica Bank, No. 03-08-00066-CV, 2019 WL 1372018, at *2 (Tex. App.—Austin Mar. 27, 2019, no pet.)
(mem. op.) (holding in bench trial that, under Zarges, original note was not required
to establish plaintiff was owner or holder of note because ownership could be proven
by affidavit or testimony).
Because this was jury trial and not a summary-judgment proceeding, the
Alexanders did not simply submit an affidavit attesting that the promissory note—
Plaintiff’s Exhibit 3—was a true and correct copy and that they were the holders of
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the note. They instead testified at length, and were subject to cross-examination,
about the terms of the note, the signatures on the note, and how the note came to be
attached to the emails exchanged among the parties. And they also testified that they
never assigned or transferred the note to someone else. There was thus legally and
factually sufficient evidence to support the jury’s finding that the Alexanders were
the holders of the note, and the absence of the original note with the “wet” signatures
is of no import.
We further note that even if the evidence were legally and factually
insufficient to establish that the Alexanders were the holders of the note, the
Alexanders could still enforce the note if they established they were the owners of
the note. Leavings v. Mills, 175 S.W.3d 301, 309–10 (Tex. App.—Houston [1st.
Dist.] 2004, no pet.) (“Thus, even if a person is not the holder of a note, he may still
be able to prove that he is the owner and entitled to enforce the note . . . .”). There is
legally and factually sufficient evidence to support the jury’s finding that the
Alexanders owned the note. Both Bryan and Larry testified that they owned the
promissory note. They also testified that they had never transferred the note and that
it had never been repaid.
Nonetheless, Hensley contends that it was “unreasonable” for the jury to give
any weight to the Alexanders’ testimony, and he again points to evidence that they
lied to him in their emails so that he would repay the note. As we have already
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discussed, both Bryan and Larry readily admitted to the jury that, at times, they were
untruthful with Hensley in an effort to pressure him into repaying the note. The jury
was entitled to accept their explanations and to believe whichever portions of their
testimony it found credible.
Here, the Alexanders testified that they were the owners of the note admitted
into evidence as Plaintiff’s Exhibit 3, that Hensley signed the note, and that the
balance remained unpaid. In contrast, Hensley testified that he never saw or signed
Plaintiff’s Exhibit 3. The jury was entitled to accept the Alexanders’ testimony and
reject Hensley’s testimony. See McGalliard, 722 S.W.2d at 697.
Given the Alexanders’ testimony, the jury’s finding that they owned the
promissory note is legally sufficient. The credibility issues raised by Hensley do not
render the jury’s finding that the Alexanders’ owned the note to be outweighed by
the great weight and preponderance of any contrary evidence.
We thus overrule Hensley’s third issue.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Rivas-Molloy, Johnson, and Dokupil.
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