Pankau, Edmund J. v. Robert I. Pack ( 2002 )

In The

Court of Appeals

For The

First District of Texas

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NO. 01-01-00084-CV

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EDMUND J. PANKAU, Appellant

V.

ROBERT I. PACK, Appellee

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On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 00-17518

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O P I N I O N

This appeal arises from the trial court's granting of a motion for summary judgment in favor of appellee. Appellant contends that the trial court erred because he raised material issues of fact. We affirm.

Background

This is a suit on a written promissory note for $50,000. The promissory note was signed on July 31, 1994, by appellee, Robert Pack, and appellant, Edmund Pankau. The promissory note provided that Pankau would pay Pack on December 20, 1994. After Pankau defaulted on the note, Pack filed suit on April 4, 2000.

Both parties moved for summary judgment. The trial court granted Pack's motion for summary judgment and denied Pankau's motion for summary judgment. In three issues on appeal, Pankau argues that the trial court erred in granting summary judgment because: (1) genuine issues of material fact existed as to the authenticity of the promissory note; (2) the statute of limitations had already expired; and (3) there were exceptions and objections to the evidence offered by Pack.

Standard of Review

A traditional motion for summary judgment is properly granted when the movant establishes that there are no genuine issues of material fact to be decided and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Rhone-Poulenc v. Steel, 997 S.W.2d 217, 222 (Tex. 1999). All doubts are resolved against the movant, and the reviewing court must view the evidence in the light most favorable to the nonmovant. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). If the movant's motion and summary judgment proof facially establish his right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. HBO v. Harrison, 983 S.W.2d 31, 35 (Tex. App.--Houston [14th Dist.] 1998, no pet.). In deciding whether a disputed material fact issue exists precluding summary judgment, we indulge every reasonable inference in favor of the non-movant and take all proof favorable to the non-movant as true. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Authenticity of Promissory Note

In his first issue on appeal, Pankau argues that there was a genuine issue of fact concerning the authenticity of the promissory note. In his affidavit attached to his response to Pack's motion for summary judgment, he stated, "I do not recall signing the Promissory Note sued upon by Mr. Pack" and "I am unsure that the purported signature on Page 5 of said Promissory Note is my signature." He also stated, "I do not owe any sums of money to Mr. Robert Pack."

Tex. R. Civ. P. 93(7) requires that the denial of the execution of a document must be sworn. Absent verification, the document is received into evidence as fully proved. Boyd v. Diversified Fin. Sys., 1 S.W.3d 888, 891 (Tex. App.--Dallas 1999, no pet.). The question becomes whether Pankau raised a genuine issue of fact by the statements given in his affidavit. Rule 93(7) requires a denial of the authenticity of a written instrument. We conclude that the statements in Pankau's affidavit do not qualify as a denial. Accordingly, Pankau has not raised a genuine issue of fact concerning the authenticity of the promissory note.

We overrule Pankau's first issue on appeal.

Statute of Limitations

In his second issue on appeal, Pankau argues that a four-year statute of limitations applies, pursuant to section 16.004. See Tex. Civ. Prac. & Rem. Code. Ann. § 16.004 (Vernon Supp. 2002). Pack argues, in contrast, that the six-year statute of limitations found in section 3.118(a) applies. See Tex. Bus. & Com. Code Ann. § 3.118(a) (Vernon Supp. 2002). We agree with Pack.

Pankau challenges the applicability of section 3.118(a) because its effective date post-dates the execution of the promissory note. Generally, the statute of limitations in force at the time suit is brought provides the applicable limitations period. See Raley v. Wichita County, 123 Tex. 494, 72 S.W.2d 577, 579 (1934). However, if a shorter limitations period had not fully run on the effective date of a new statute, a new longer limitations period will apply because the defense of limitations does not become a vested right until the limitations period has actually run. National Mar-Kit, Inc. v. Forrest, 687 S.W.2d 457, 460 (Tex. App.--Houston [14th Dist.] 1985, no writ).

Here, Pack's cause of action accrued on December 20, 1994. At that time, a four-year statute of limitations was in effect. Tex. Civ. Prac. & Rem. Code Ann. § 16.004. On January 1, 1996, section 3.118 became effective, amending the statute of limitations to six years. See Tex. Bus. & Com. Code Ann. § 3.118(a). Because the shorter limitations period found in section 16.004 had not vested when the new statute took effect, the new statute of limitations found in section 3.118 is applicable to this case. See National Mar-Kit, Inc., 687 S.W.2d at 460; see also Whittle v. MCORP Properties, 17 S.W.3d 718, 721 (Tex. App.--Amarillo 2000, pet. denied). We overrule Pankau's second issue on appeal.

Summary Judgment Evidence

In his third issue on appeal, Pankau argues that Pack's summary judgment evidence was improperly admitted by the trial court. In his response to Pack's motion for summary judgment, Pankau objected to the summary judgment evidence and makes the same objections on appeal. Pankau objected to: (1) Pack's affidavit because it was not competent evidence; (2) unsworn facts in the motion for summary judgment; (3) the lack of a seal on the promissory note; ⁽¹⁾ (4) calculations made in Pack's affidavit; (5) the lack of the original promissory note; and (6) reasonable and necessary attorney's fees.

1. Affidavit

To be considered by the trial or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial. See Hidalgo v. Surety Sav. & Loan Assoc., 462 S.W.2d 540, 545 (Tex. 1971). A party must object in writing to the form of summary judgment evidence and place the objections before the trial court, or its objections will be waived. See Grand Prairie I.S.D. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990). To complain on appeal, Pankau was required not only to object to the form, but to secure a ruling on its objections by the trial court. See Roberts v. Friendswood Development Co., 886 S.W.2d 363, 365 (Tex. App.--Houston [1st Dist.] 1994, writ denied). The record does not show that Pankau secured any ruling on his objections to Pack's affidavit. Therefore, Pankau has waived any complaint concerning the propriety of the affidavit.

2. Factual Section

Pankau next complains that Pack's summary judgment motion was not proper summary judgment evidence because the factual section was not sworn or verified. Proper summary judgment evidence consists of affidavits, admissions, stipulations, authenticated or certified public records, deposition transcripts, and interrogatory answers. The motion itself is not evidence. Tex. R. Civ. P. 166a(c); Bakali v. Bakali, 830 S.W.2d 251, 257 (Tex. App.--Dallas 1992, no writ). Accordingly, although Pankau's objection has merit, it presumes that Pack and the trial court relied on Pack's motion for summary judgment as evidence. Pankau's presumption is not supported by the record.

3. Remaining Objections

In Pankau's remaining objections to Pack's summary judgment evidence, he cites no authority. When an appellant cites no authority in support of its point of error, he waives error. See Tex. R. App. P. 38.1. Accordingly, Pankau has waived error, if any, to the summary judgment evidence.

We overrule Pankau's third issue on appeal.

Conclusion

We affirm the judgment of the trial court.

Adele Hedges

Justice

Panel consists of Justices Hedges, Jennings, and Price. ⁽²⁾

Do not publish. Tex. R. App. P. 47.

1.

Pack supplemented the record with an affidavit that showed the proper seal.

2. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.