Steve Wimberly, Individually and D/B/A Erection Company, and 300 Baylor, Inc. v. Fritz, Byrne & Head, L.L.P.

• Court: Court of Appeals of Texas
• Decided: July 26, 2001
• Docket: 03-00-00500-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-00-00500-CV Steve Wimberly, Individually and d/b/a Erection Company, and

300 Baylor, Inc., Appellants

v.

Fritz, Byrne & Head, L.L.P., Appellee

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. 248,886, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

Fritz, Byrne & Head, L.L.P. ("the Firm") commenced this collection suit regarding fees and expenses for legal services rendered to Steve Wimberly both individually and doing business as Erection Company and 300 Baylor, Inc. (collectively "Wimberly"). See Tex. R. Civ. P. 185. After Wimberly answered by filing a general denial, the Firm moved for summary judgment. Wimberly then filed an amended answer and verified denial. The trial court granted the Firm's summary judgment motion. We will reverse the judgment and remand the cause to the trial court for further proceedings.

Factual and Procedural Background

On December 20, 1999, the Firm filed an original, unverified petition claiming that Wimberly executed an engagement agreement whereby it would pay the Firm for fees and expenses incurred in connection with the Firm's legal representation of Wimberly. The Firm attached a copy of the engagement agreement signed by Steve Wimberly and Ronald Houdyshell, a partner on behalf of the Firm. The engagement agreement provided the underlying basis for the charges and the work to be performed by setting out hourly rates for various law firm employees as well as charges for different services that might be rendered by the Firm on Wimberly's behalf. The Firm claimed that it performed legal services for Wimberly from March 1997 through August 1998, that Wimberly accepted these services and that the Firm kept a systematic record of these transactions and billed Wimberly accordingly. The Firm attached an affidavit from Marilynn Thompson, the law firm's administrator, stating that the amount of the account is due by Wimberly and that all just and lawful offsets, payments, and credits have been allowed. Attached to Thompson's affidavit were summaries of Wimberly's statements of account. The Firm claimed that Wimberly defaulted in making payments on the account and that in 1998 and 1999 the Firm sent Wimberly reminder notices of past due amounts owed. The Firm claimed that on October 14, 1999, it sent Wimberly a demand letter requesting $46,071.24 as payment in full and withdrew all previous settlement offers. The Firm attached a copy of the October 14 demand letter to its petition. The Firm also requested that Wimberly pay its attorney's fees made necessary by Wimberly's default and the filing of the underlying cause.

On January 11, 2000, Wimberly filed a general denial. On April 24, the Firm filed a motion for summary judgment. As its only summary judgment proof, the Firm submitted the same affidavit from Thompson and the same account summaries submitted with the original unverified petition and an affidavit from Bruce Perkins in support of the Firm's request for attorney's fees incurred in this action to collect the unpaid sums. The Firm contended as its basis for the motion that Wimberly failed to comply with the requirements of Texas Rules of Civil Procedure 93(10) and 185 in that the general denial was unverified and did not specifically deny the account. The Firm also alleged that it was entitled to judgment on its claim against Wimberly as a matter of law because there were no genuine issues about any material facts.

On June 9, Wimberly filed a first amended answer and verified denial in which it specifically denied each and every item in the Firm's sworn account. On June 20, Wimberly responded to the Firm's summary judgment motion alleging generally that the Firm did not carry its burden of proof on all the elements of its sworn account because there was no evidence to support or explain the services provided, whether the services were provided in connection with a specific agreement, and what the terms were of such an agreement. ⁽¹⁾ Although Wimberly objected to Thompson's affidavit, it tendered no controverting proof. On June 26, the trial court granted judgment in favor of the Firm, ruling that the Firm recover from Wimberly $46,071.29 as the total amount due, plus prejudgment and postjudgment interest, and attorney's fees.

Discussion

Rule 185 of the Texas Rules of Civil Procedure sets out the criteria for a suit on account and defines an open account to include "any claim . . . for personal services rendered." Tex. R. Civ. P. 185. Under this rule, a plaintiff's petition on a sworn account must contain a systematic, itemized statement of the goods or services sold, reveal offsets made to the account, and be supported by an affidavit stating the claim is within the affiant's knowledge, and that it is "just and true." Powers v. Adams, 2 S.W.3d 496, 498 (Tex. App.--Houston [14th Dist.] 1999, no pet.). A defendant's denial must be written and supported by an affidavit denying the account. Tex. R. Civ. P. 93(10). When a defendant files a sworn denial of the plaintiff's account in the form required by Rule 185, the evidentiary presumption afforded the plaintiff's petition and affidavit is destroyed and the plaintiff is forced to introduce proof of its claim. Id. (citing Roberts Express, Inc. v. Expert Transp., Inc., 842 S.W.2d 766, 770 (Tex. App.--Dallas 1992, no writ)). Once a defendant files a verified denial in a sworn account action, a plaintiff must present summary judgment proof establishing the following:

(1) the sale and delivery of merchandise or performance of services;

(2) that the amount of the account is "just," that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and

(3) that the outstanding amounts remain unpaid.

Superior Derrick Servs., Inc. v. Anderson, 831 S.W.2d 868, 872 (Tex. App.--Houston [14th Dist.] 1992, writ denied).

Here, the Firm filed the underlying cause seeking to collect unpaid attorney's fees and expenses for services it rendered to Wimberly pursuant to Texas Rule of Civil Procedure 185. After Wimberly filed a verified denial, the Firm was required to present proof of its claim. ⁽²⁾ See Powers, 2 S.W.3d at 499. A party moving for summary judgment must establish its right to judgment on the issues expressly presented to the trial court by conclusively proving all elements of its cause of action as a matter of law. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). When evaluating a summary judgment, the appellate court indulges every reasonable inference and resolves all doubts in favor of the non-movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

We determine whether the Firm's summary judgment motion and proof, all of which was submitted before Wimberly filed the verified denial, showed as a matter of law that the Firm was entitled to judgment on the account.

The Firm's only basis for judgment was its allegation that Wimberly had not filed a verified denial and there were no material facts in dispute. It never amended the motion after a verified denial was filed. Summary judgment must stand or fall on the grounds alleged in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). In addition, the parties' letter agreement which is the only underlying basis for the Firm's charges, was attached to the Firm's petition. The summary judgment motion does not refer to the letter agreement and, more importantly, the letter agreement was never presented as summary judgment proof. Although the letter agreement was attached to and incorporated into the Firm's unverified petition, pleadings do not qualify as competent summary judgment proof. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540, 543-44 (Tex. 1971). Proof in support of a summary judgment motion must be independent of the pleadings. Burghart v. Connecticut Gen. Life Ins. Co., 806 S.W.2d 324, 326 (Tex. App.--Texarkana 1991, writ denied). Pleadings serve to outline the issues, but they are not evidence. Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d336, 338 (Tex. App.--Texarkana 1991, writ denied). ⁽³⁾

Finally, while the Firm included brief summaries of Wimberly's account as summary judgment proof, these summaries reflect only various balances and are not itemized to show the underlying charges and the corresponding work performed by employees of the Firm. See Gallini & Assocs. v. Whelan, 625 S.W.2d 755, 760 (Tex. App.--San Antonio 1981, no writ) (face of account must show with reasonably certainty nature of each item, date of each sale, and reasonable charge therefor to support summary judgment on account).

We hold that the Firm has failed to show as a matter of law that it is entitled to judgment on Wimberly's account. Wimberly's first issue is sustained. The judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

Reversed and Remanded

Filed: July 26, 2001

Do Not Publish

1.   The clerk's record reflects that Wimberly's response was filed late--six days before the summary judgment hearing. See Tex. R. Civ. P. 166a(c) (except on leave of court, response to summary judgment motion must be filed not later than seven days before hearing date). Although Wimberly argues on appeal that the response was timely mailed, there is no proof in the clerk's record that shows that fact. The trial court, therefore, may not have considered Wimberly's response. We will assume, however, that the trial court considered Wimberly's response. The issue on appeal relates primarily to whether in its motion the Firm proved itself entitled to judgment as a matter of law.

2.   Only on appeal does the Firm contend that Wimberly's verified denial was substantively insufficient to rebut the Firm's prima facie evidence of the debt. The Firm contends that we may on that basis affirm the summary judgment. The Firm did not present this contention to the district court. See Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992) (summary judgment cannot be affirmed on ground not specifically presented in summary judgment motion).

3.   Additionally, to the extent the Firm relies on the letter agreement, there is no supporting affidavit regarding the letter agreement in the record. A party seeking to rely on a document that is not self-authenticating must support the document with an affidavit to prove it is a true copy of the original. Banowsky v. State Farm Mut. Auto. Ins. Co., 876 S.W.2d 509, 513 (Tex. App.--Amarillo 1994, no writ).

denial, showed as a matter of law that the Firm was entitled to judgment on the account.

The Firm's only basis for judgment was its allegation that Wimberly had not filed a verified denial and there were no material facts in dispute. It never amended the motion after a verified denial was filed. Summary judgment must stand or fall on the grounds alleged in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). In addition, the parties' letter agreement which is the only underlying basis for the Firm's charges, was attached to the Firm's petition. The summary judgment motion does not refer to the letter agreement and, more importantly, the letter agreement was never presented as summary judgment proof. Although the letter agreement was attached to and incorporated into the Firm's unverified petition, pleadings do not qualify as competent summary judgment proof. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540, 543-44 (Tex. 1971). Proof in support of a summary judgment motion must be independent of the pleadings. Burghart v. Connecticut Gen. Life Ins. Co., 806 S.W.2d 324, 326 (Tex. App.--Texarkana 1991, writ denied). Pleadings serve to outline the issues, but they are not evidence. Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d336, 338 (Tex. App.--Texarkana 1991, writ denied). ⁽³⁾

Finally, while the Firm included brief summaries of Wimberly's account as summary judgment proof, these summaries reflect only various balances and are not itemized to show the underlying charges and the corresponding work performed by employees of the Firm. See Gallini & Assocs. v. Whelan, 625 S.W.2d 755, 760 (Tex. App.--San Antonio 1981, no writ) (face of account must show with reasonably certainty nature of each item, date of each sale, and reasonable charge therefor to support summary judgment on account).

We hold that the Firm has failed to show as a matter of law that it is entitled to judgment on Wimberly's account. Wimberly's first issue is sustained. The judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings.

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

1.   The clerk's record reflects that Wimberly's response was filed late--six days before the summary judgment hearing. See Tex. R. Civ. P. 166a(c) (except on leave of court, response to summary judgment motion must be filed not later than seven days before hearing date). Although Wimberly argues on appeal that the response was timely mailed, there is no proof in the clerk's record that shows that fact. The trial court, therefore, may not have considered Wimberly's response. We will assume, however, that the trial court considered Wimberly's response. The issue on appeal relates primarily to whether in its motion the Firm proved itself entitled to judgment as a matter of law.

2.   Only on appeal does the Firm contend that Wimberly's verified denial was substantively insufficient to rebut the Firm's prima facie evidence of the debt. The Firm contends that we may on that basis affirm the summary judgment. The Firm did not present this contention to the district court. See Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992) (summary judgment cannot be affirmed on ground not specifically presented in summary judgment motion).

3.   Additionally, to the extent the Firm relies on the letter agreement, there is no supporting affidavit regarding the letter agreement in the record. A party seeking to rely on a document that is not self-authenticating must support the document with an affidavit to prove it is a true copy of the original. Banowsky v. State Farm Mut. Auto. Ins. Co.sented in summary judgment motion).

3.   Additionally, to the extent the Firm relies on the letter agreement, there is no supporting affidavit regarding the letter agreement in the record. A party seeking to rely on a document that is not self-authenticating must support the document with an affidavit to prove it is a true copy of the original. Banowsky v. State Farm Mut. Auto. Ins. Co.R1">

---

NO. 03-00-00500-CV Steve Wimberly, Individually and d/b/a Erection Company, and





FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY Fritz, Byrne & Head, L.L.P. ("the Firm") commenced this collection suit regarding fees and expenses for legal services rendered to Steve Wimberly both individually and doing business as Erection Company and 300 Baylor, Inc. (collectively "Wimberly"). See Tex. R. Civ. P. 185. After Wimberly answered by filing a general denial, the Firm moved for summary judgment. Wimberly then filed an amended answer and verified denial. The trial court granted the Firm's summary judgment motion. We will reverse the judgment and remand the cause to the trial court for further proceedings.

On December 20, 1999, the Firm filed an original, unverified petition claiming that Wimberly executed an engagement agreement whereby it would pay the Firm for fees and expenses incurred in connection with the Firm's legal representation of Wimberly. The Firm attached a copy of the engagement agreement signed by Steve Wimberly and Ronald Houdyshell, a partner on behalf of the Firm. The engagement agreement provided the underlying basis for the charges and the work to be performed by setting out hourly rates for various law firm employees as well as charges for different services that might be rendered by the Firm on Wimberly's behalf. The Firm claimed that it performed legal services for Wimberly from March 1997 through August 1998, that Wimberly accepted these services and that the Firm kept a systematic record of these transactions and billed Wimberly accordingly. The Firm attached an affidavit from Marilynn Thompson, the law firm's administrator, stating that the amount of the account is due by Wimberly and that all just and lawful offsets, payments, and credits have been allowed. Attached to Thompson's affidavit were summaries of Wimberly's statements of account. The Firm claimed that Wimberly defaulted in making payments on the account and that in 1998 and 1999 the Firm sent Wimberly reminder notices of past due amounts owed. The Firm claimed that on October 14, 1999, it sent Wimberly a demand letter requesting $46,071.24 as payment in full and withdrew all previous settlement offers. The Firm attached a copy of the October 14 demand letter to its petition. The Firm also requested that Wimberly pay its attorney's fees made necessary by Wimberly's default and the filing of the underlying cause.

On January 11, 2000, Wimberly filed a general denial. On April 24, the Firm filed a motion for summary judgment. As its only summary judgment proof, the Firm submitted the same affidavit from Thompson and the same account summaries submitted with the original unverified petition and an affidavit from Bruce Perkins in support of the Firm's request for attorney's fees incurred in this action to collect the unpaid sums. The Firm contended as its basis for the motion that Wimberly failed to comply with the requirements of Texas Rules of Civil Procedure 93(10) and 185 in that the general denial was unverified and did not specifically deny the account. The Firm also alleged that it was entitled to judgment on its claim against Wimberly as a matter of law because there were no genuine issues about any material facts.

On June 9, Wimberly filed a first amended answer and verified denial in which it specifically denied each and every item in the Firm's sworn account. On June 20, Wimberly responded to the Firm's summary judgment motion alleging generally that the Firm did not carry its burden of proof on all the elements of its sworn account because there was no evidence to support or explain the services provided, whether the services were provided in connection with a specific agreement, and what the terms were of such an agreement. ⁽¹⁾ Although Wimberly objected to Thompson's affidavit, it tendered no controverting proof. On June 26, the trial court granted judgment in favor of the Firm, ruling that the Firm recover from Wimberly $46,071.29 as the total amount due, plus prejudgment and postjudgment interest, and attorney's fees.

Rule 185 of the Texas Rules of Civil Procedure sets out the criteria for a suit on account and defines an open account to include "any claim . . . for personal services rendered." Tex. R. Civ. P. 185. Under this rule, a plaintiff's petition on a sworn account must contain a systematic, itemized statement of the goods or services sold, reveal offsets made to the account, and be supported by an affidavit stating the claim is within the affiant's knowledge, and that it is "just and true." Powers v. Adams, 2 S.W.3d 496, 498 (Tex. App.--Houston [14th Dist.] 1999, no pet.). A defendant's denial must be written and supported by an affidavit denying the account. Tex. R. Civ. P. 93(10). When a defendant files a sworn denial of the plaintiff's account in the form required by Rule 185, the evidentiary presumption afforded the plaintiff's petition and affidavit is destroyed and the plaintiff is forced to introduce proof of its claim. Id. (citing Roberts Express, Inc. v. Expert Transp., Inc., 842 S.W.2d 766, 770 (Tex. App.--Dallas 1992, no writ)). Once a defendant files a verified denial in a sworn account action, a plaintiff must present summary judgment proof establishing the following:

(1) the sale and delivery of merchandise or performance of services;

(2) that the amount of the account is "just," that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and

Superior Derrick Servs., Inc. v. Anderson, 831 S.W.2d 868, 872 (Tex. App.--Houston [14th Dist.] 1992, writ denied).

Here, the Firm filed the underlying cause seeking to collect unpaid attorney's fees and expenses for services it rendered to Wimberly pursuant to Texas Rule of Civil Procedure 185. After Wimberly filed a verified denial, the Firm was required to present proof of its claim. ⁽²⁾ See Powers, 2 S.W.3d at 499. A party moving for summary judgment must establish its right to judgment on the issues expressly presented to the trial court by conclusively proving all elements of its cause of action as a matter of law. Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999). When evaluating a summary judgment, the appellate court indulges every reasonable inference and resolves all doubts in favor of the non-movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).

We determine whether the Firm's summary judgment motion and proof, all of which was submitted before Wimberly filed the verified denial, showed as a matter of law that the Firm was entitled to judgment on the account.

The Firm's only basis for judgment was its allegation that Wimberly had not filed a verified denial and there were no material facts in dispute. It never amended the motion after a verified denial was filed. Summary judgment must stand or fall on the grounds alleged in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). In addition, the parties' letter agreement which is the only underlying basis for the Firm's charges, was attached to the Firm's petition. The summary judgment motion does not refer to the letter agreement and, more importantly, the letter agreement was never presented as summary judgment proof. Although the letter agreement was attached to and incorporated into the Firm's unverified petition, pleadings do not qualify as competent summary judgment proof. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540, 543-44 (Tex. 1971). Proof in support of a summary judgment motion must be independent of the pleadings. Burghart v. Connecticut Gen. Life Ins. Co., 806 S.W.2d 324, 326 (Tex. App.--Texarkana 1991, writ denied). Pleadings serve to outline the issues, but they are not evidence. Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d336, 338 (Tex. App.--Texarkana 1991, writ denied). ⁽³⁾

Finally, while the Firm included brief summaries of Wimberly's account as summary judgment proof, these summaries reflect only various balances and are not itemized to show the underlying charges and the corresponding work performed by employees of the Firm. See Gallini & Assocs. v. Whelan, 625 S.W.2d 755, 760 (Tex. App.--San Antonio 1981, no writ) (face of account must show with reasonably certainty nature of each item, date of each sale, and reasonable charge therefor to support summary judgment on account).

We hold that the Firm has failed to show as a matter of law that it is entitled to judgment on Wimberly's account. Wimberly's first issue is sustained. The judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings.

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

1.   The clerk's record reflects that Wimberly's response was filed late--six days before the summary judgment hearing. See Tex. R. Civ. P. 166a(c) (except on leave of court, response to summary judgment motion must be filed not later than seven days before hearing date). Although Wimberly argues on appeal that the response was timely mailed, there is no proof in the clerk's record that shows that fact. The trial court, therefore, may not have considered Wimberly's response. We will assume, however, that the trial court considered Wimberly's response. The issue on appeal relates primarily to whether in its motion the Firm proved itself entitled to judgment as a matter of law.

2.   Only on appeal does the Firm contend that Wimberly's verified denial was substantively insufficient to rebut the Firm's prima facie evidence of the debt. The Firm contends that we may on that basis affirm the summary judgment. The Firm did not present this contention to the district court. See Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992) (summary judgment cannot be affirmed on ground not specifically presented in summary judgment motion).

3.   Additionally, to the extent the Firm relies on the letter agreement, there is no supporting affidavit regarding the letter agreement in the record. A party seeking to rely on a document that is not self-authenticating must support the document with an affidavit to prove it is a true copy of the original. Banowsky v. State Farm Mut. Auto. Ins. Co., 876 S.W.2d 509, 513 (Tex. App.--Amarillo 1994, no writ).

denial, showed as a matter of law that the Firm was entitled to judgment on the account.

The Firm's only basis for judgment was its allegation that Wimberly had not filed a verified denial and there were no material facts in dispute. It never amended the motion after a verified denial was filed. Summary judgment must stand or fall on the grounds alleged in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). In addition, the parties' letter agreement which is the only underlying basis for the Firm's charges, was attached to the Firm's petition. The summary judgment motion does not refer to the letter agreement and, more importantly, the letter agreement was never presented as summary judgment proof. Although the letter agreement was attached to and incorporated into the Firm's unverified petition, pleadings do not qualify as competent summary judgment proof. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540, 543-44 (Tex. 1971). Proof in support of a summary judgment motion must be independent of the pleadings. Burghart v. Connecticut Gen. Life Ins. Co., 806 S.W.2d 324, 326 (Tex. App.--Texarkana 1991, writ denied). Pleadings serve to outline the issues, but they are not evidence. Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d336, 338 (Tex. App.--Texarkana 1991, writ denied). ⁽³⁾

Finally, while the Firm included brief summaries of Wimberly's account as summary judgment proof, these summaries reflect only various balances and are not itemized to show the underlying charges and the corresponding work performed by employees of the Firm. See Gallini & Assocs. v. Whelan, 625 S.W.2d 755, 760 (Tex. App.--San Antonio 1981, no writ) (face of account must show with reasonably certainty nature of each item, date of each sale, and reasonable charge therefor to support summary judgment on account).

We hold that the Firm has failed to show as a matter of law that it is entitled to judgment on Wimberly's account. Wimberly's first issue is sustained. The judgment of the trial court is reversed and the cause is remanded to the trial court for further proceedings.

Before Chief Justice Aboussie, Justices B. A. Smith and Patterson

1.   The clerk's record reflects that Wimberly's response was filed late--six days before the summary judgment hearing. See Tex. R. Civ. P. 166a(c) (except on leave of court, response to summary judgment motion must be filed not later than seven days before hearing date). Although Wimberly argues on appeal that the response was timely mailed, there is no proof in the clerk's record that shows that fact. The trial court, therefore, may not have considered Wimberly's response. We will assume, however, that the trial court considered Wimberly's response. The issue on appeal relates primarily to whether in its motion the Firm proved itself entitled to judgment as a matter of law.

2.   Only on appeal does the Firm contend that Wimberly's verified denial was substantively insufficient to rebut the Firm's prima facie evidence of the debt. The Firm contends that we may on that basis affirm the summary judgment. The Firm did not present this contention to the district court. See Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992) (summary judgment cannot be affirmed on ground not specifically presented in summary judgment motion).

3.   Additionally, to the extent the Firm relies on the letter agreement, there is no supporting affidavit regarding the letter agreement in the record. A party seeking to rely on a document that is not self-authenticating must support the document with an affidavit to prove it is a true copy of the original. Banowsky v. State Farm Mut. Auto. Ins. Co. submitted to the jury "the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted." The latter formulation allocates the respective burdens of the parties, viz: "... In other words, the defendant has the burden of producing evidence to raise a defense, but the prosecution has the final burden of persuasion to disprove it. Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972)." Practice Commentary to true copy of the original. Banowsky v. State Farm Mut. Auto. Ins. Co.