Duarte-Viera v. Mae

560 S.W.3d 258
CourtCourt of Appeals of Texas
DecidedFebruary 23, 2016
DocketNo. 07–14–00271–CV
StatusPublished
Cited by2 cases

This text of 560 S.W.3d 258 (Duarte-Viera v. Mae) 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
Duarte-Viera v. Mae, 560 S.W.3d 258 (Tex. Ct. App. 2016).

Opinions

James T. Campbell, Justice

Appellants Anibal J. Duarte-Viera, Edward M. Reiss and Antonio P. Pardo, guarantors of a note held by appellee Fannie Mae, appeal a final summary judgment awarding Fannie Mae $732,708.31. We will affirm the judgment.

Background

In 2009, La Fiesta Apartments, LLC obtained a real estate loan from Arbor *261Commercial Funding, LLC for the purchase of a San Antonio apartment complex.1 Duarte-Viera, Reiss and Pardo (the Guarantors), owners of La Fiesta, signed a guaranty agreement. By the guaranty's terms, the Guarantors "absolutely, unconditionally and irrevocably" guaranteed the "full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise ... and the full and prompt performance when due" of three categories of obligations: (a) "The entire Indebtedness"; (b) "The payment and performance of all of [La Fiesta's] obligations under Section 18 of the [deed of trust] [dealing with environmental hazards]"; and (c) "All costs and expenses, including reasonable fees and out of pocket expenses of attorneys and expert witnesses, incurred by [Arbor] in enforcing its rights under this Guaranty." Arbor's interest was subsequently assigned to Fannie Mae.

In 2013, Fannie Mae declared the loan in default. Fannie Mae then conducted a foreclosure sale, at which it was sole bidder and acquired the apartment complex for a credited bid of $2,376,918.48. Fannie Mae sued the Guarantors for the deficiency. The Guarantors plead an offset based on the property's fair market value on the date of sale. Fannie Mae moved for summary judgment and the Guarantors responded. The trial court rendered final summary judgment in favor of Fannie Mae and then denied the Guarantors' motion for new trial after a hearing.

Analysis

In this court, the Guarantors present three issues, contending (1) Fannie Mae did not meet its summary judgment burden of proof to show La Fiesta defaulted in payment of the indebtedness; (2) it failed to meet its summary judgment burden of proof of the amount of the deficiency; and (3) the trial court erred by striking the Guarantors' summary judgment evidence in support of their statutory offset based on the property's fair market value.

Standard of Review on Summary Judgment

We review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). The movant for summary judgment filing a traditional motion must establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX.R. CIV. P. 166a(c) ; Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003). A movant seeking affirmative relief by summary judgment must prove each element of its cause of action as a matter of law. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999). "Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case." City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005) (footnote omitted). Only if the movant meets its summary judgment burden does the burden shift to the non-movant to produce evidence demonstrating the existence of a genuine issue of material fact precluding summary judgment. Steel, 997 S.W.2d at 222-23. The court takes as true evidence favorable to the nonmovant, indulges every reasonable inference in favor of the nonmovant, and resolves any doubts in favor *262of the nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005) ; Knott, 128 S.W.3d at 215. "[A]n objection that an affidavit is conclusory is an objection to the substance of the affidavit that can be raised for the first time on appeal." Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.App.-Houston [1st Dist.] 1999, no pet.) ; see also Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839 (Tex.2010) (per curiam) (noting in summary judgment case that conclusory statements cannot support a judgment even when no objection was made to the statements at trial). A conclusory statement is one that is not susceptible to being readily controverted and does not provide the underlying facts to support the conclusion. Hon. David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 52 HOUS. L.REV. 773, 842 (2015) (citing Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex.App.-Dallas 2008, no pet.) ).

Issue One-Proof of Default

A plaintiff seeking to enforce a guaranty must prove: "(1) the existence and ownership of the guaranty agreement; (2) the terms of the underlying contract by the holder; (3) the occurrence of the conditions upon which liability is based; and (4) the failure or refusal to perform the promise by the guarantor." Fannie Mae v. United States Prop. Solutions, No.H-08-3588, 2011 WL 66161, at *5, 2011 U.S. Dist. LEXIS 1954, at *14 (S.D.Tex. Jan. 10, 2011) (citing Byrd v. Estate of Nelms, 154 S.W.3d 149, 157 (Tex.App.-Waco 2004, pet. denied) ).

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Bluebook (online)
560 S.W.3d 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duarte-viera-v-mae-texapp-2016.