Justices affirm bank's summary judgment win against area surgeon

David Yates May 11, 2012, 8:23am


The Ninth Court of Appeals recently affirmed a summary judgment award to Community Bank of Texas against Dr. Saeed Ally, a Beaumont cardiovascular surgeon.

In July 2010, Ally filed a lawsuit against his former attorney, Rhett B. Phares, after receiving e-mails demanding $100,000 cash payment in exchange for keeping confidential certain private information.

Court records show Community Bank filed a third-party claim against Ally to recover the unpaid balances on four promissory notes: a $100,000 note, $357,342.26, $349,650 note; and a $289,350 note – all of which Ally guaranteed payment.

Soon after entering the case, CBTX filed a motion for a traditional summary judgment on its breach of contract claim against Ally, which was granted by Judge Milton Gunn Shuffield, 136th District Court.

On Sept. 27 Ally appealed the judge's ruling. Ninth Court justices delivered their opinion on May 10, court records show.

"... Ally asserts that CBTX's motion for summary judgment attempted to apply late charges, for which the notes do not provide," writes Justice Steve McKeithen in the court's opinion.

"However, the loan histories in the record indicate that the only note for which CBTX assessed late charges was the $100,000 note, which provided that if a payment was made more than 10 days after the due date, a late charge of five percent of all or any part of the payment which was over ten days late would be paid.

"Accordingly, Ally failed to raise a genuine issue of material fact with respect to the late charges. Because the trial court did not err by granting CBTX's motion for summary judgment, we overrule Ally's sole appellate issue and affirm the trial court's judgment."

Case background

In his original petition, Ally accuses Phares of a deliberate and continual pattern of breach of fiduciary duty, extortion and breach of attorney-client privilege.

Allegedly Phares demanded $100,000 in cash from Dr. Ally's spouse and said if he did not receive payment "all hell would break loose."
Community Bank was severed out of the original cause, court records show.

Beaumont attorney John S. Morgan of Harris, Duesler & Hatfield represents Ally.

Community Bank is represented by Beaumont attorney Gary Reger.

Trial Case No. D187-321-B
Appeals case No. 09-11-00537-CV

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