Daryl Gillespie v. Wells Fargo Bank & New Century Morgage Corp.

• Court: Court of Appeals of Texas
• Decided: December 23, 2004
• Docket: 01-03-00742-CV
• Status: Published

Opinion

Opinion issued December 23, 2004 

In The

Court of Appeals

For The

First District of Texas

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NO. 01-03-00742-CV

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DARYL GILLESPIE, Appellant

V.

WELLS FARGO BANK MINNESOTA, N.A. AND NEW CENTURY MORTGAGE CORPORATION, Appellees

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On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 01-CV-121936 A

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MEMORANDUM OPINION

            Appellant, Daryl Gillespie, sued appellees, Wells Fargo Bank Minnesota, N.A. (Wells Fargo) and New Century Mortgage Corporation (New Century), alleging various causes of action and generally contending that appellees had wrongfully foreclosed on his property. Appellees moved for summary judgment, and the trial court rendered judgment for appellees. In two issues, Gillespie contends that the trial court erred by (1) denying his second request for a continuance and (2) granting the summary judgment in favor of appellees. We affirm the judgment of the trial court.BACKGROUND

          New Century provided Gillespie with a home equity loan in August 1999. New Century later assigned the loan to Wells Fargo, as trustee. After Gillespie stopped making payments on the loan, Wells Fargo filed a foreclosure action. Gillespie filed suit, pro se, on December 6, 2001, contending that appellees had wrongfully foreclosed on his property. Appellees filed a motion for summary judgment on August 30, 2002 and later filed two supplements to their motion for summary judgment. Gillespie filed a first motion for continuance to request a 60-day continuance to retain “trained counsel,” which the trial court granted by resetting the case until November 27, 2002. On November 27, 2002, Gillespie filed a notice of bankruptcy, which stayed the cause of action until February 18, 2003, when the bankruptcy court lifted the stay and allowed the suit to proceed. On April 1, 2003, Gillespie filed a second motion for continuance, again claiming that he needed an additional 60 days to retain “trained counsel” and that he was unable to hire counsel because of financial difficulties. The trial court denied Gillespie’s second motion for continuance. On April 4, 2003, the trial court conducted the summary judgment hearing and rendered summary judgment for appellees.

Motion for Continuance

          In his first issue, Gillespie claims that the trial court erred by denying his second motion for continuance. Rule of Civil Procedure 251 provides that a continuance shall not be granted “except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.” Tex. R. Civ. P. 251. Granting or denying a motion for continuance is within the sound discretion of the trial court. See Blake v. Lewis, 886 S.W.2d 404, 409 (Tex. App.—Houston [1st Dist.] 1994, no writ). If a motion for continuance is not verified or supported by affidavit, the appellate court will presume that the trial court did not abuse its discretion in denying the motion. Southwest Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 493 (Tex. App.—Fort Worth 1999, pet. denied).

          An affidavit is defined as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Tex. Gov’t Code Ann. § 312.011 (Vernon 2004). If an instrument does not include a jurat, the statement is not sworn, and the instrument is not an affidavit. Trimble v. Gulf Paint & Battery, Inc., 728 S.W.2d 887, 889 (Tex. App.—Houston [1st Dist.] 1987, no writ); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied) (“Without the jurat, the instrument is not an affidavit within the statutory definition”).           Gillespie did not support his motion for continuance with an affidavit containing a jurat. His motion for continuance has the signature of the person who allegedly administered the oath or affirmation of Gillespie, but the signature is illegible. The name of the person who allegedly administered the oath is not on the affidavit, and no notary seal or official certification under any seal or office appears on the document. The trial court did not abuse its discretion by denying Gillespie’s motion because he failed to attach a properly certified affidavit to his motion for continuance. See Lucky Lady Oil Co., 991 S.W.2d at 493.

          Accordingly, we overrule Gillespie’s first issue.

Summary Judgment

          In his second issue, Gillespie contends that the trial court erred by granting appellees’ motion for summary judgment because there are genuine issues of material fact as to his claims.

          Appellees filed a motion for summary judgment and later filed two additional supplements to their original motion for summary judgment, asserting both traditional and no-evidence grounds as to all of Gillespie’s claims. See Tex. R. Civ. P. 166a (c), (i). The trial court granted appellees’ motion for summary judgment, as well as both supplements to their motion for summary judgment, without stating any grounds and ordered that Gillespie take nothing. When, as here, the trial court’s summary judgment order does not specify the ground or grounds on which summary judgment was rendered, we will affirm the summary judgment if any of the grounds stated in the motion is meritorious. See Mayes v. Goodyear Tire and Rubber Co., 144 S.W.3d 50, 55 (Tex. App.—Houston [1st Dist.] 2004, no pet. h.) (citing Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)).

          After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 722 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The motion must specify which essential elements of the opponent’s claim or defense lack supporting evidence. Id. Once the party seeking the no-evidence summary judgment files a proper motion, the respondent must bring forth evidence that raises a fact issue on the challenged elements. Id. The party with the burden of proof at trial thus has the burden of proof in the summary-judgment proceeding. Id. If the respondent does not produce more than a scintilla of evidence to raise a genuine issue of material fact on the challenged element or elements, the trial court must grant the motion. Id.

          Appellees’ no-evidence motion for summary judgment encompassed all of the claims alleged by Gillespie and specifically listed each of the elements of each claim as to which Gillespie had no evidence, as required by Tex. R. Civ. P. 166a (i). The burden thus shifted to Gillespie to produce more than a scintilla of evidence to raise a genuine issue of material fact. See id.; Roventini, 111 S.W.3d at 722. Gillespie’s responsive motion, entitled “Non-Movant’s Response To Movant’s Motion For Summary Judgment,” had only unauthenticated “exhibits” attached to it. Unauthenticated or unsworn documents, or documents not supported by any affidavit, are not entitled to consideration as summary judgment evidence. Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App.—San Antonio 1997, pet. denied) (citing St. Paul Cos. v. Chevron, U.S.A., Inc., 798 S.W.2d 4, 5 (Tex. App.—Houston [1st Dist.] 1990, writ dism’d by agr.)). Because none of the documents attached to Gillespie’s response to the motion for summary judgment was authenticated, Gillespie did not properly present any evidence for consideration. See Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.) (noting that complete absence of authentication is defect of substance that is not waived by party’s failing to object and may be urged for first time on appeal). Furthermore, the comments appearing in Gillespie’s response to the motion for summary judgment were not competent summary judgment proof. See Feazell v. Mesa Airlines, Inc., 917 S.W.2d 895, 898 (Tex. App.—Fort Worth 1996, writ denied) (stating that one’s response to motion for summary judgment is not summary judgment evidence; nor is petition accompanying response).

          The trial court did not err in granting the no-evidence summary judgment motion because Gillespie failed to present any evidence that created a genuine issue of material fact. See Roventini, 111 S.W.3d at 722 (holding that if respondent does not produce more than a scintilla of evidence to raise genuine issue of material fact on challenged element or elements, trial court must grant motion.).

          We overrule Gillespie’s second issue.

CONCLUSION

          We affirm the judgment of the trial court.

                                                             Elsa Alcala

                                                             Justice

Panel consists of Chief Justice Radack and Justices Keyes and Alcala.