MARK DOMMER, Appellant v. INWOOD NATIONAL BANK OF DALLAS, Appellee

Reversed and Remanded, and Opinion filed October 18, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00069-CV
............................
MARK DOMMER, Appellant
V.
INWOOD NATIONAL BANK OF DALLAS, Appellee
 
.................................................................
On Appeal from County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC88-11072-D
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O P I N I O N
Before Justices Howell, Rowe and Kinkeade
Opinion By Justice Rowe
        Appellee Inwood National Bank of Dallas sued appellant Mark Dommer on a promissory note and obtained a summary judgment for $44,066.47. In his sole point of error, Dommer complains that the trial court erred in granting the summary judgment because the evidence raised a material fact issue. For the reasons discussed below, we reverse the trial court's judgment and remand this case for further proceedings.
        Dommer executed a promissory note payable to Inwood covering principal and interest. When Dommer defaulted by failing to make two interest payments, Inwood demanded full payment of the note. When Dommer failed to pay the amount due, Inwood sued on the note. Dommer filed a verified answer raising lack of consideration as a defense. Thereafter, Inwood moved for summary judgment.
        In a summary judgment case, the question on appeal is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The movant has the burden to establish entitlement to a summary judgment by conclusively proving all of the elements of the cause of action as a matter of law. Tex. R. Civ. P. 166a. On appeal, all doubts are resolved against the movant. Montgomery v. Kennedy, 669 S.W.2d 309, 310 (Tex. 1984).
        Inwood's burden was to conclusively prove the elements of its suit on the promissory note as a matter of law. In discharge of this burden, Inwood set forth in its motion for summary judgment the pertinent details concerning the promissory note and attached to its motion a supporting affidavit of a bank officer attesting to his personal knowledge of these details. The bank officer attached a copy of the promissory note to his affidavit. Dommer appears as the maker, and Inwood appears as the legal owner and holder. Inwood's affidavit also attests to default in payment by Dommer after demand by Inwood. In response to Inwood's motion for summary judgment, Dommer reasserted, among other allegations, want of consideration as an affirmative defense to the promissory note.
         When a party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). In his supporting affidavit, Dommer states that Inwood never advanced any money to him or to a third party at his direction based upon the promissory note or upon any renewal of the note. Dommer contends in his affidavit that he executed the note at the insistence of his former employer and guarantor of the note, Jim Allee Olds. The purpose of the note, according to Dommer, was to pay for advancements on commissions he owed to Jim Allee Olds which at the time had exceeded the line of credit which Inwood had extended to it. Reinsurance proceeds owed to Dommer through Jim Allee Olds would be applied when received in payment of the note.
        Because the promissory note sued upon was a written contract, the sufficiency of consideration is presumed, and the burden was on Dommer to show that there was none. Decor v. Dimensionals, Inc. v. Smith, 494 S.W.2d 266, 268 (Tex. App.--Dallas 1973, no writ). Dommer's sworn plea of no consideration did not shift the burden to Inwood to show consideration; but it did put the matter of consideration in issue. Id. By supporting his sworn plea with specific affidavit testimony as to want of consideration, Dommer presented a disputed fact issue material enough to defeat Inwood's summary judgment motion. Accordingly, we reverse the summary judgment granted to Inwood by the trial court and remand the case for further proceedings.
 
 
 
                                                                                                                                                     GORDON ROWE
                                                                          JUSTICE
 
DO NOT PUBLISH
TEX R. APP. P. 90.
 
890069F.U05
 
 
File Date[10-25-89]
File Name[890069F]