Eix, Inc., and Saeed Moradi v. JP Morgan Chase Bank, N.A.

• Court: Court of Appeals of Texas
• Decided: February 19, 2009
• Docket: 14-08-00042-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed February 19, 2009

Affirmed and Memorandum Opinion filed February 19, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-08-00042-CV

EIX, INC., AND SAEED MORADI, Appellants

V.

JP MORGAN CHASE BANK, N.A., Appellee

On Appeal from County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 857055

M E M O R A N D U M   O P I N I O N

Appellants Eix, Inc., and Saeed Moradi appeal from a summary judgment in favor of appellee, JP Morgan Chase Bank, N.A. (AChase@), in connection with Chase=s debt collection lawsuit.  Eix and Moradi contend that the trial court erred by (1) considering inaccurate and misleading summary judgment evidence; and (2) granting Chase=s summary judgment motion.  We affirm.

Background

Chase sued Eix and Moradi in Harris County Civil Court at Law No. 3 on February 3, 2006.  Chase alleged that Eix executed and delivered to Chase a revolving credit agreement with Chase on or about October 20, 1998, and that Moradi personally guaranteed repayment.  Chase further alleged that Eix and Moradi failed to make payments under the revolving credit agreement and failed to pay off the debt when Chase notified them of their default and demanded payment in full.  Eix and Moradi filed an answer denying Chase=s allegations on March 6, 2006.

Chase filed two conventional motions for summary judgment pursuant to Texas Rule of Civil Procedure 166a(a) on March 21, 2006, and November 7, 2006.  The trial court denied both motions. 

Chase filed a third summary judgment motion under Rule 166a(a) on September 17, 2007.  This motion was supported by an affidavit from Christine Betz, assistant vice-president of Chase.  Betz=s affidavit was accompanied by a sworn copy of a ABusiness Unsecured Revolving Credit Application for up to $100,000@ signed by Moradi on October 16, 1998 on behalf of Eix in his capacity as president and secretary.  Moradi also signed in his individual capacity and dated a portion of the application entitled APersonal Guaranty.@

Betz=s affidavit identified her as an assistant vice-president of Chase authorized to make an affidavit on Chase=s behalf.  Betz stated in her affidavit that, on or about October 20, 1998, Eix executed and delivered to Chase a ABusiness Revolving Credit Application and Agreement@ in the original amount of $50,000, and that Moradi signed a personal guaranty for sums borrowed under the agreement.  The affidavit stated that Eix and Moradi had defaulted in payment of the amounts owed under the agreement; Chase was the legal owner and holder of the debt; and Chase had sustained damages of $44,817.54 through May 4, 2007, itemized as (1) $42,821.58 for the unpaid balance; (2) $1,590.29 for the unpaid accrued interest; (3) $405.67 for fees and charges; and (4) per diem interest of $10.40. 

Chase=s third summary judgment motion was set for submission on October 12, 2007.  Eix and Moradi filed a late response on October 10, 2007, in which they objected to Betz=s affidavit and the accompanying application.  Eix and Moradi simultaneously filed a motion for leave to file a late response to Chase=s third summary judgment motion.  The record contains no order from the trial court addressing the motion for leave to file a late response.

The trial court signed an order granting Chase=s third summary judgment motion on October 23, 2007.  Eix and Moradi appeal from this order.

Standard of Review

We review a trial court=s grant of summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

The affidavit of an interested witness may support summary judgment if the evidence is clear, positive, direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.  See Perez v. Cueto, 908 S.W.2d 29, 31 (Tex. App.BHouston [14th Dist.] 1995, no writ).  ACould have been readily controverted@ means that if the testimony is of a nature which can be effectively countered by opposing evidence _ such as facts subject to observation _ then summary judgment is proper in the absence of controverting proof.  See id. at 32; Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).  Issues such as an actor=s intent or knowledge are the types of matters that cannot be readily controverted.  See Perez, 908 S.W.2d at 32.

Once a movant has established a right to summary judgment, the non-movant has the burden to respond and present to the trial court evidence that would preclude summary judgment.  See Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex. App.BHouston [1st Dist.] 1996, writ denied).

Except with leave of the trial court, a non-movant must file any written response and opposing affidavits no later than seven days before the day of submission.  See Tex. R. Civ. P. 166a(c).  If a trial court grants leave to file a late response to a summary judgment motion, it must affirmatively indicate in the record acceptance of the late filing.  INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex. 1985).  If nothing in the record indicates that leave was granted, we must presume that the trial court did not consider the late-filed response and we cannot consider it.  Id.

Analysis

Eix and Moradi contend on appeal that the trial court (1) abused its discretion by allowing Chase to present inaccurate and misleading summary judgment evidence; and (2) erred in granting Chase=s third summary judgment motion because Chase failed to establish entitlement to summary judgment as a matter of law.

I.        Assertedly Defective Summary Judgment Evidence

Before we can address any asserted defects in Chase=s evidence supporting its third summary judgment motion, we first must decide whether Eix and Moradi waived their objections to such defects. 

Defects in the form of affidavits or attachments offered as summary judgment evidence _ rather than defects in substance _ are not grounds for reversal unless the complaining party obtains a ruling from the trial court on its objection.  See Rogers v. Continental Airlines, Inc., 41 S.W.3d 196, 200 (Tex. App.BHouston [14th Dist.] 2001, no pet.); Hicks v. Humble Oil & Ref. Co., 970 S.W.2d 90, 93 (Tex. App.BHouston [14th Dist.] 1998, pet. denied); see also Tex. R. Civ. P. 166a(f).

Eix and Moradi asserted objections to Chase=s summary judgment evidence but did not obtain a ruling from the trial court.  Therefore, Eix and Moradi waived all objections to the form of the summary judgment evidence.  See Rogers, 41 S.W.3d at 200; Hicks, 970 S.W.2d at 93.

We therefore examine the objections that Eix and Moradi assert on appeal to determine whether they are objections to form or substance.  Under their first issue, Eix and Moradi assert that the trial court erred in overruling their objection to the document attached to Betz=s affidavit on the grounds that Betz inaccurately states that the attached document was in the original amount of $50,000 while the document does not state an original amount of $50,000.  In addition, Eix and Moradi assert that Betz=s affidavit is unreliable because she incorrectly states that the title of the attached document is ABusiness Revolving Credit Application and Agreement.@  Eix and Moradi further complain that Betz=s testimony as an interested witness could not have been readily controverted.  See Tex. R. Civ. P. 166a(c).  All of these objections are objections to form rather than substance, and thus Eix and Moradi waived these objections by failing to obtain a ruling on them from the trial court.^[1]  See Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 589 (Tex. App.BHouston [1st Dist.] 2005, no pet.); Rogers, 41 S.W.3d at 200; Hicks, 970 S.W.2d at 93.

We overrule Eix=s and Moradi=s issue regarding asserted defects in Chase=s summary judgment evidence.

II.       Propriety of Granting Summary Judgment

In their second issue, Eix and Moradi assert that the trial court erred in granting Chase=s third summary judgment motion because Chase failed to establish entitlement to summary judgment as a matter of law.  Eix and Moradi contend that Chase=s summary judgment evidence failed to establish (1) that a contract existed between Chase and Eix and Moradi; (2) the existence and amount of a debt owed by Eix and Moradi to Chase; and (3) that Moradi had any personal liability as guarantor. 

A plaintiff may establish status as legal holder and owner of a debt obligation by attesting to such status in a sworn affidavit.  See Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.BHouston [14th Dist.] 1994, no writ).  A plaintiff may establish that a certain balance is due and owing on a debt obligation by stating this fact in a sworn affidavit.  Id. at 238-39.

Betz stated in her affidavit that (1) Eix executed and delivered a ABusiness Revolving Credit Application and Agreement@ in the original amount of $50,000 on or about October 20, 1998; (2) the agreement included language whereby Moradi personally guaranteed repayment; (3) the agreement provided for Eix and Moradi to make payments of all principal and interest; (4) the complete terms of the agreement are described in the document attached to Betz=s affidavit; (5) Eix and Moradi failed to abide by the terms of the agreement by failing and refusing to make payments as required under the terms of the agreement after receiving a demand from Chase; (6) Eix and Moradi were notified by Chase of such default and payment was demanded, but Eix and Moradi failed to cure their default; (7) Chase is the legal owner and holder of the agreement and guaranty; (8) the unpaid principal under the agreement as of May 4, 2007 was $42,821.58; (9) the total amount owed as of May 4, 2007 including pre-judgment interest was $44,817.54; and (10) each day after May 4, 2007, $10.40 more in additional interest will accrue.  The trial court granted summary judgment to Chase for the amount specified in Betz=s affidavit, as well as for attorneys= fees found in the attorneys= fees affidavit submitted by Chase.

Eix and Moradi filed an untimely response to Chase=s motion.  See Tex. R. Civ. P. 166a(c).  They did not obtain leave to file a late response.  See Bryant, 686 S.W.2d at 615.  However, even if they had obtained leave, their response did not contain any summary judgment evidence to preclude summary judgment if Chase established entitlement to summary judgment as a matter of law.  See Barbouti, 927 S.W.2d at 64.

After reviewing Chase=s summary judgment evidence under the applicable de novo standard, we conclude this evidence establishes as a matter of law that (1) a contract existed between Chase and Eix and Moradi; (2) Eix and Moradi owe a debt to Chase in the amounts stated in Betz=s affidavit; and (3) Moradi had personal liability for this debt based on his personal guaranty.  See Perez, 908 S.W.2d at 31-32; Blankenship, 899 S.W.2d at 238-39; Casso, 776 S.W.2d at 558.

We overrule Eix=s and Moradi=s issue regarding the propriety of the trial court=s grant of Chase=s third summary judgment motion.

Conclusion

The trial court=s grant of summary judgment is affirmed.

/s/      William J. Boyce

Justice

Panel consists of Justices Frost, Brown, and Boyce.

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¹           Under their first issue, Eix and Moradi make passing reference to the asserted insufficiency of Chase=s summary judgment evidence to support the trial court=s granting of Chase=s motion.  These statements do not relate to evidentiary objections.  The sufficiency of Chase=s summary judgment evidence is addressed in Part II of this opinion.