OPINION
Opinion By
Appellee LNA, LLC brought this action against appellants Affordable Motor Company, Inc. and Charles A. Ray to recover sums allegedly due and owing under a promissory note and guaranty agreement. The trial court granted summary judgment in favor of LNA and rendered judgment against appellants for the amount of the note plus interest and attorneys’ fees. Apрellants raise two issues on appeal. In their first issue appellants argue that (1) the trial court erred in granting summary judgment in favor of LNA on the Note because fact issues preclude summary judgment, and (2) the trial court erred in awarding attorneys’ fees to LNA as a matter of law because the affidavit filed in support of LNA’s request for attorneys’ fees is inadequаte and controverted. In their second issue appellants argue that the trial court erred when it implicitly overruled their objections to LNA’s summary-judgment evidence. We reverse the award of attorneys’ fees and affirm the trial court’s final judgment in all other respects.
Background
In January 2009, LNA filed suit against appellants to recover sums it alleged were due and оwing under a two-page promissory note and guaranty agreement dated November 6, 2002 (the Note). The relevant terms of the Note state (with page break noted in brackets and hand-written interlineations, right brace, initials, and signatures noted in italics):
*518 Maker: Affordable Motor Company, Inc.
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Payee: LNA, LLC
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Principal Amount: $66,500
Annual Interest Rate of Unpaid Principal from Date: 12%
Annual Interest Rate on Matured, Unpaid Accounts: 18%
Terms of Payment $250-Dec 1, 2002 (principal and interest):
$500-Jan 1, 2003
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$=⅜<3= month beginning Decombei-l-r2Q82 for a total of si;; paymontB, at which timo tho balance is
Balance is due Feb 1, 2003.
This may be prepaid without penalty at any time.
On default in the payment of this Nоte, followed by written notice of default to Maker and any Guarantors, and the failure to cure such default within 10 days of receipt of the notice, the unpaid principal balance and earned interest on this Note shall become due at the election of Payee. If any of the regular monthly payments is not received in LNA, LLC’s office by the lаst day of the month, there will be a late fee of 10% of the amount of such payment.
If this note is given to an attorney for collection, or if suit is brought for collection, or if it is collected through probate, bankruptcy, or other judicial proceeding, then Maker shall pay Payee all costs of collection, including reasonable attorneys’ fees actually incurred and court costs, in
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addition to other amounts due.
Interest on the debt evidenced by this Note shall not exceed the maximum amount of nonusurious interest that may be contracted for, taken, reserved, charged, or received under law, any interest in excess of that maximum amount shall be credited on the principal of the debt or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess shall be canceled automatically as of the acceleration or prepayment or, if already paid, credited of the debt or, if the principal of the debt has been paid, refunded. This provision overrides other provisions in this and all other instruments concerning the debt.
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Each Maker is responsible for all obligations represented by this Note.
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This Promissory Note is non-assignable by the Payee.
Affordable Motor Company, by Charles A. Ray
Its President
This note is personally guaranteed by Charles A. Ray
In its petition, LNA alleged that it is the owner of the Note and that the Note “is fully due and owing and in default.” LNA sought to recover $66,500, all accrued but unpaid pre-judgment interest, reasonable attorneys’ fees, and post-judgment interest. In response to the petition, appellants filed general denials “[i]n accordance with Tex.R. Civ. P. 92.” In addition, Ray asserted that the statute of limitations bars LNA’s claim.
In September 2009, LNA filed a motion for summary judgment along with supporting evidence including an affidavit of LNA’s custodian of records attesting to the authenticity of the Note. In response, appellants amended their answers and alleged four affirmative defenses: (1) failure of a condition precedent, (2) statute of *519 limitations, (3) ambiguity, and (4) laches. Appellants also filed a response in opposition to LNA’s motion, along with supporting evidence and objections to LNA’s evidence.
After a hearing, and without ruling on appellants’ evidentiary objections, the trial court granted LNA’s motion and rendered judgment against appellants, jointly and severally, for (1) the principal sum of $66,500, (2) $37,702.88 in unpaid pre-judgment interest, (3) post-judgment interest on the total sum of $104,202.88 at the rate of 18% per annum pursuant to the Note, (4) $1,800 in attorneys’ fees through trial, and (5) $9,000 in conditional appellate attorneys’ fees. Appellants filed a motion for reconsideration, which the trial court denied after a hearing.
Summary Judgment and Standard of Review
When a plaintiff moves for traditional summary judgment it has the burden to conclusively establish all elements of its claim as a matter of law.
See
Tex.R. Civ. P. 166a(c);
MMP, Ltd. v. Jones,
Analysis
Appellants raise two issues on appeal. In their first issue appellants argue that (1) the trial court erred in granting summary judgment in favor of LNA on the Note because fact issues preclude summary judgment, and (2) the trial court erred in awarding attorneys’ fees to LNA as a matter of law because the affidavit filed in support of LNA’s request for attorneys’ fees is inadequate and controverted. In their second issue appellants argue that the trial court erred when it implicitly overruled their objections to LNA’s summary-judgment evidence.
LNA’s Summary Judgment Evidence
We address appellants’ second issue first. In their second issue appellants state that they “made several objections” to LNA’s summary-judgment evidence. They cite generally to their summary-judgment resрonse included in the clerk’s record, in which they listed multiple hearsay and other objections to at least 13 separate statements in the authenticating affidavit. Next, appellants state that the trial court implicitly overruled their objections when it granted summary judgment in favor of LNA and when it denied appellants’ motion for reconsideration. Finally, appellants conclude the argument in their second issue as follows:
*520 In this case, the objections made and presented by [ajppellants were of substance and of form and the objections should have been sustained and the evidence not considered by the trial court. To the extent that the trial court considered inadmissible or incompetent evidence, the summary judgment is improper.
Appellants do not provide any analysis concerning any of their objections, nor do they cite any rule of evidence or other authority that applies to their objections. As a result, appellants’ second issue is inadequately briefed and presents nothing for review.
See
Tex.R.App. P. 38.1(i);
Cooper v. Cochran,
Summaky Judgment on the Note
In their first issue appellants argue, that LNA did not satisfy its burden under Texas Rule of Civil Procedure 166a(c) and thаt fact issues preclude summary judgment in favor of LNA on the Note. We address those arguments separately.
Did LNA Satisfy Its Summary-Judgment Burden?
First, and without citing to the record, appellant’s argue on appeal that LNA did not satisfy its burden on summary judgment because “[a]n analysis of the note indicates that neither AMC nor the guarantor, Charles Ray, agreed to the handwritten changes initialed by Mike Beene on behalf of LNA.” We do not agree.
To prevail on its motion for summary judgment to enforce the promissory note, LNA was required to prove that (1) the note exists, (2) LNA is the legal owner and holder of the note, (3) Affordable Motor is the maker of the note, and (4) a certain balance is due and owing on the note.
Levitin v. Michael Group, L.L.C.,
We conclude that LNA established thе four elements as a matter of law. The first element was satisfied because LNA attached a photocopy of the Note to the summary-judgment motion, along with the affidavit of Mike Beene, LNA’s president and custodian of records, in which he attests to the authenticity of the Note.
See Wheeler v. Sec. State Bank, N.A.,
The second element was satisfied because the Note identifies LNA as the payee and states that it is not аssignable. The third element was satisfied because the Note states that Affordable Motor is the maker. The fourth element was satisfied because the Beene affidavit states that a certain balance is due an owing on the note:
After allowing for all just and lawful credits and offsets, the principal amount owing on the Note is Sixty-Six Thousand Five Hundred Dollars ($66,500.00), plus accrued but unpaid interest as provided in the Note, totaling Thirty-Six Thousand Five Hundred Eighty-Eight Dollars and Two Cents ($36,588.02), through and including August 31, 2009. In addition, the interest on the Note is continuing to accrue at the rate of Twenty-One Dollars and Eighty-Six Cents ($21.86) per day. There are no other credits, offsets, payments or rebates which are due, or which should be allowed on the Note.
*521
We conclude that LNA satisfied its summary-judgment burden.
See, e.g., Fritz v. Inter Nat’l Bank,
No. 13-01-00851-CV,
Did Appellants Satisfy Their Burden to Demonstrate that a Material Fact Issue Precludes Summary Judgment on the Note?
With respect to appellants’ burden to raise a fact issue, appellants argue that “there is a question of fact as to whether the parties assented to the terms of payment of the promissory note.” But Appellants did not file a verified denial below in accordance with Texas Rule of Civil Procedure 93(7) denying the execution of the Note. As a result, appellants did not raise a fact issue in the trial court concerning the terms of payment of the Note.
See
Tex.R. Civ. P. 93(7) (in the absence of a verified plea denying the execution of any instrument in writing “the instrument shall be received into evidence as fully proved”);
see also Rockwall Commons Assocs., Ltd. v. MRC Mortg. Grantor Trust I,
Next, appellаnts argue on appeal that “a condition precedent — giving notice expressly required by the [Note] — has failed.” We disagree. The Note matured on February 1, 2003, when the final payment was due. The Note also allowed LNA to accelerate payment of the remaining balance of the Note prior to the maturity date if any payments wеre missed. In this case, LNA did not accelerate the Note. Instead, after the Note matured it sued for the balance due under the terms of the Note. And under the terms of the Note, notice of default was not required when payment was due after the Note matured.
See, e.g., CA Partners v. Spears,
Appellants also argue on appeal that “if the [Note] is determined to be due on demand, then it is uncontroverted in the record that the limitations period expired on November 6, 2008, approximately two (2) months prior to the date that suit was actually filed by LNA.” Appellants did not argue below, however, that the statute of limitations barred LNA’s claim because the Note was a demand note and the statute of limitations expired on November 6, 2008. Instеad, they argued that “due to the lack of assent as to the payment terms and the failure to provide notice of default, the statute of limitations bars [LNA’s] *522 claims,” and “[LNA] must prove that a notice of default was sent within six years 1 of [February 1, 2003].” We cannot address appellants’ argument on appeal because it was not raised below in responsе to the motion for summary judgment. See Tex.R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal”).
In summary, we resolve this portion of appellants’ first issue against them. 2
ATTORNEYS’ FEES
In their first issue appellants also challenge the award of attorneys’ feеs to LNA. Appellants argue that it was improper to award attorneys’ fees as a matter of law because appellants raised a fact issue by submitting a controverting affidavit from their attorney. We agree with appellants.
To support its request for attorneys’ fees LNA submitted the affidavit of its attorney in which she opined that (1) $8,500 would be a reasоnable fee through the summary judgment phase of the case, and (2) if the case is appealed, $10,000 would be a reasonable fee for an appeal to the court of appeals and $15,000 would be a reasonable fee for an appeal to the supreme court. In response, appellants submitted an affidavit from their attorney in which she opined that the fees sought by LNA were excessive and that attorneys’ fees through summary judgment should be no more than $1,800, and conditional appellate fees should be no more than $4,000 and $5,000, respectively. Because appellants raised material fact issues regarding LNA’s attorneys’ fees, the trial court erred when it awarded attоrneys’ fees to LNA as a matter of law.
3
See, e.g., Gen. Specialties, Inc. v. Charter Nat’l Bank
—Houston,
Conclusion
We reverse the award of attorneys’ fees and remand this cause to the trial court for further proceedings consistent with this opinion. We affirm the trial court’s final judgment in all other respects.
Notes
. In response to Ray’s answer asserting the statute of limitations as an affirmative defense, LNA asserted in its motion for summary judgment that "the six (6) year statute of limitations found in Texas Business & Commerce Code § 3.118 governs this action.”
. Appellants raise two additional arguments on appeal that were not raised below. First, appellants argue in their opening brief that "the effect of the handwritten language on the promissory note effectively create an ambiguity establishing a question of fact as to the parties' intent.” Second, appellants argue in their reply brief that LNA's claim is governed by the four-year statute of limitations under section 16.004 of the Texas Civil Practice and Remedies Code, rather than by the six-year statute of limitations under section 3.118(a) of the Texas Business and Commerce Code. "[W]e do not consider arguments raised for the first time in a reply brief.”
Hunter v. PriceKubecka, PLLC,
.We also note that LNA did not seеk summary judgment on its attorneys' fees. Instead, in its motion for summary judgment, LNA (1) stated there are no genuine issues as to any material fact "except as to the question of [LNA's] reasonable attorneys’ fees for the handling of this suit,” and (2) asked the trial court to "set a trial on the merits immediately after the hearing on this motion to determine the question of attorneys' fees.”