Bagwell v. Ridge at Alta Vista Investments I, LLC

440 S.W.3d 287, 2014 WL 3955084, 2014 Tex. App. LEXIS 9060
CourtCourt of Appeals of Texas
DecidedAugust 14, 2014
DocketNo. 05-12-01115-CV
StatusPublished
Cited by18 cases

This text of 440 S.W.3d 287 (Bagwell v. Ridge at Alta Vista Investments I, LLC) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bagwell v. Ridge at Alta Vista Investments I, LLC, 440 S.W.3d 287, 2014 WL 3955084, 2014 Tex. App. LEXIS 9060 (Tex. Ct. App. 2014).

Opinions

OPINION

Opinion by Justice MOSELEY.

Appellants guaranteed three promissory notes payable to appellee’s predecessor-in-interest. Each note was secured by a deed of trust on a (separate) tract of land. Appellee sued appellants on the guaranty agreements and obtained a partial summary judgment as to liability. After acquiring the properties securing the notes at separate sales, appellee obtained a summary judgment on the sole remaining issue — damages. Appellants1 assert six issues on appeal. They argue the trial court erred by refusing to allow them to amend their pleadings to assert a statutory right of offset under the property code, see Tex. Prop.Code Ann. § 51.003(c) (West 2007); alternatively, they argue their live pleadings were sufficient to raise offset. They [289]*289also complain the trial court erred by striking an affidavit filed in response to the motion for summary judgment as to damages relating to the offset issue. Lastly, they complain the trial court erred by granting appellee’s two motions for summary judgment2 because the affidavits filed in support of those motions were not from a corporate representative with knowledge of the facts.3 We overrule appellants’ issues and affirm the trial court’s judgment.

FACTUAL BACKGROUND

Three Texas limited partnerships (that are not parties to this action) executed three promissory notes in favor of appel-lee’s predecessor-in-interest (which also is not a party to this lawsuit). Each note was secured by a deed of trust lien on a separate tract of land. At the same time, appellants executed guaranty agreements to guarantee payment of the promissory notes. The borrowers later defaulted on the notes and appellee sued them to recover the amounts owed. After the borrowers filed for bankruptcy protection, appel-lee filed this suit against appellants to recover on the guaranty agreements. Appellants timely answered and denied the allegations.

The trial court entered the parties’ Agreed Scheduling Order, which required any amended pleadings asserting new causes of action or affirmative defenses to be -filed no later than thirty days before the end of the discovery period. The Agreed Scheduling Order also set the case for trial on June 27, 2011.

On November 2, 2010, appellee filed a motion for summary judgment on its claims for breach of the guaranty agreements. Attached as an exhibit to the motion was the affidavit of Robert G. Paul (First Paul Affidavit). Appellants responded to the motion and objected to the First Paul Affidavit on several grounds, including that the affidavit did not show Paul had personal knowledge of the facts. The trial court overruled appellants’ objections to the affidavit and granted appel-lee’s motion for summary judgment as to liability; however, it denied the motion as to damages.

Appellee obtained relief from the bankruptcy court’s automatic stays. Thereafter, on August 2, 2011, it conducted a non-judicial foreclosure and acquired the property securing one of the notes (the Old Grove Property). That same day and two days later, it also acquired the properties securing the other two notes through auctions conducted by the respective bankruptcy trustees. On October 4, 2011, appellee filed its first amended original petition seeking amounts “due and owing!’ under each note after “all offsets and credits” were applied.

The original June 27, 2011 trial date was delayed several times.4 The third trial [290]*290setting was for March 5, 2012. Shortly before the March 2012 trial date, appellants sought a continuance. On March 6, 2012, the trial court held a hearing on appellants’ motion for continuance. At that hearing, the trial judge stated:

The Court has continued this case only for a very limited purpose. And consistent with the scheduling orders entered previously and because the Court agrees with [appellee] that it is past the time where anybody should be asserting new theories of defense or counterclaims, or on [appellee’s] side for that matter, no further pleadings may be filed without leave of Court with good cause shown, unless there is agreement of the parties, and I don’t anticipate that would happen.

The trial court reset the trial for the week of April 16, 2012.

On March 14, 2012, appellee filed a second motion for summary judgment, supported by a second affidavit from Paul (Second Paul Affidavit), seeking judgment on the amounts due and owing and for attorney’s fees. Appellants timely filed their response, supported by an affidavit from appellant Bagwell. They also objected to the Second Paul Affidavit.

At the same time, appellants filed a motion for leave to amend their answer to add an affirmative defense under section 51.003 of the property code with respect to the note that had been secured by the Old Grove Property. Appellants sought to obtain an offset against the deficiency balance of that note in the amount that the Old Grove Property’s fair market value exceeded the amount received at the foreclosure sale. Appellants also filed a motion to determine the fair market value of the Old Grove Property.

Appellee objected to appellants’ motions as untimely pursuant to the Agreed Scheduling Order. On April 19, 2012, the trial court conducted a hearing on appellants’ motion for leave to amend their pleadings and on appellee’s second motion for summary judgment. At the conclusion of the hearing, the trial court denied appellants’ motion for leave to amend, struck Bag-well’s affidavit, overruled appellants’ objections to the Second Paul Affidavit, and granted appellee’s second motion for summary judgment.

Appellants filed a motion for new trial, which the trial court denied. This appeal followed.

LAW & ANALYSIS

It is undisputed that appellants sought to amend their pleading after the deadline for doing so in the Agreed Scheduling Order had passed. The Agreed Scheduling Order required any amended pleadings asserting new causes of action or affirmative defenses be filed no later than thirty days before the end of the discovery period. Discovery in the case was controlled by rule 190.3 (Discovery Level 2), which states that the discovery period ends the earlier of thirty days before the date set for trial or nine months after the earlier of the date of the first oral deposition or the due date of the first response to written discovery. Tex.R. Civ. P. 190.3(b).

From the record, it is unclear when the discovery period closed in this case. However, assuming in appellants’ favor that it closed on the latest date possible — thirty [291]*291days prior to the April 16, 2012 final trial setting — appellants were required to amend their pleading to assert any affirmative defenses no later than thirty days before that date — i.e., before February 17, 2012. However, appellants did not attempt to file their amended petition until the end of March 2012, approximately six weeks later.

On appeal, appellants argue that their live pleadings (even without their proposed amendment) were sufficient to raise the issue of offset and the trial court abused its discretion by denying their motion for leave to amend and striking the pleadings related to the motion.

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Cite This Page — Counsel Stack

Bluebook (online)
440 S.W.3d 287, 2014 WL 3955084, 2014 Tex. App. LEXIS 9060, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bagwell-v-ridge-at-alta-vista-investments-i-llc-texapp-2014.