L. A. \"Al\" Greene, Jr. v. Deuteche Bank National Trust Company ( 2005 )

Menu:

Opinion issued May 26, 2005

In The

Court of Appeals

For The

First District of Texas

  NO. 01-04-00483-CV

____________

L.A. “AL” GREENE JR., Appellant

V.

DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 2003-04019

  MEMORANDUM OPINION

          Appellant, L.A. “Al” Greene, Jr. (“Greene”), appeals a summary judgment in which the trial court rendered judgment (1) that he take nothing in his suit for declaratory and other relief relative to the efforts of appellee, Deutsche Bank National Trust Company (“Deutsche”), to exercise legal remedies contained in a real estate loan agreement with Greene and (2) that on its counter-suit against Greene, Deutsche be authorized to foreclose and receive declaratory relief. We affirm.

Factual and Procedural Background

          Greene received from Banker’s Trust Company of California (“Banker’s Trust”), predecessor in interest to Deutsche, a cash-out Texas home equity loan secured by his homestead (“the property”) as collateral. After a dispute arose over Greene’s payment of the loan note, Banker’s Trust brought a suit to foreclose on its security interest in the property. By an assignment of Greene’s loan, Deutsche succeeded to Banker’s Trust’s interest in the loan. Greene brought a separate suit, the one involved in this appeal, for declaratory relief, economic damages, and general relief. In his suit, Greene asserted that Deutsche’s security interest was invalid because the loan transaction violated home-equity-loan-law. Relative to his claim for economic damages, Greene alleged that Deutsche had violated federal and state law in notifying various credit-reporting companies that he had defaulted on the loan although he was not personally liable for the debt.

          Deutsche answered Greene’s suit with a general denial and various affirmative defenses. Deutsche also counter-sued for foreclosure of its security interest and for declaratory relief.

          Later, Deutsche moved for summary judgment on Greene’s causes of action and on its own cause of action for foreclosure and declaratory relief. Relative to Greene’s causes of action, Deutsche attached documentary evidence, Exhibits A-1 through A-11, and the affidavit of Toni Klysz, Exhibit A, to show that there was no genuine issue of material fact that the allegations that Greene had pleaded in support of his causes of action were without merit. Klysz was the Foreclosure Manager for Chase Manhattan Mortgage Corporation (“Chase”), the loan servicing agent for Deutsche.           Deutsche also attached documentary and affidavit evidence to support its assertions in its motion for summary judgment that there were no genuine issues of material fact that it was entitled to judicial foreclosure on the property and to declaratory relief. The affidavit evidence included another affidavit, Exhibit B, from Klysz, as the Chase custodian of records, testifying that the attached loan paperwork, Exhibits B-1 through B-5, were Deutsche business records. Deutsche also included the affidavit of Janie Luna, custodian of records of Brown and Shapiro, a law firm handling foreclosure work for Deutsche through Chase. In her affidavit, Luna testified that the attached paperwork, Exhibit C-1, notice to Greene of acceleration of the loan note, was a business record. Additionally, the motion contained the affidavit of Deutsche attorney, Warren Johnsey, testifying to the amount and reasonableness of Deutsche’s attorney’s fees as of the date of the motion for summary judgment.

          Regarding Deutsche’s summary judgment motion on Greene’s causes of action, Greene responded that Klysz’s affidavit, Exhibit A, did not establish her personal knowledge of all the facts necessary to show that she was qualified to make the opinions she asserted in the affidavit and that, in the affidavit, she relied on hearsay, to which he objected. Further, Greene objected to Exhibits A-1 through A-11, attached to Deutsche’s motion for summary judgment, as being hearsay, which was not properly identified or authenticated, and which would not justify the granting of a motion for summary judgment.

          Relative to the summary judgment motion for foreclosure and declaratory relief, Greene objected to Klysz’s Exhibit B affidavit as not being based on personal knowledge and as containing hearsay and opinions without identifying Klysz as an expert when Greene had not been allowed enough time to seek additional discovery concerning Klysz’s expert status and opinions. Greene objected to the documents Exhibits B-1 through B-5 as hearsay and as not properly identified or authenticated.

          In his response, Greene also objected to the affidavits of Luna and Johnsey. Regarding Luna’s affidavit, Greene objected that, in response to discovery, Deutsche did not identify her as a person having knowledge of facts. Concerning Johnsey’s affidavit, Greene objected that, in its response to discovery, Deutsche did not designate Johnsey as an expert.

          The trial court granted Deutsche’s motion for summary judgment on Greene’s causes of action, ordering that Greene take nothing on his claims against Deutsche. The court also granted summary judgment on Deutsche’s counter-suit declaring (1) that Greene had defaulted on the loan agreement in the amount of $330,304.21, plus attorney’s fees, costs, and prejudgment interest; (2) declaring that Deutsche have a judgment lien to the extent of the preceding debt; and (3) that the judgment lien be satisfied through a non-judicial foreclosure sale of the property. The trial court combined its two orders granting Deutsche’s two summary judgment motions into one summary judgment document.

          Greene appeals the summary judgment.

Standard of Review

          A party moving for summary judgment must conclusively prove all the elements of its cause of action or defense as a matter of law. Tex. R. Civ. P. 166(a) ; Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). A defendant is entitled to summary judgment if it conclusively negates at least one element of the plaintiff’s cause of action or conclusively establishes all of the elements of an affirmative defense. Johnson County Sheriff’s Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).

Finality of Judgment

          In issue one, Greene asserts that the summary judgment is not final because it did not address his claim for attorney’s fees and because Deutsche’s motion for summary judgment was an improper substitute for special exceptions.

          The trial court’s summary judgment provided that Greene “take nothing” against Deutsche, and further provided that “[t]his Final Summary Judgment is, and is intended to be, a final order, which disposes of any claims of any nature in this cause.” (Emphasis added.) When a trial court purports to rule on all claims in the plaintiff’s petition, the summary judgment order is final. Ortega v. City Nat. Bank, 97 S.W.3d 765, 771 (Tex. App.—Corpus Christi 2003, no pet.). Greene’s argument that the summary judgment is not final because it did not address Greene’s claim for attorney’s fees is without merit.

          Greene did not present to the trial court the argument that Deutsche’s motion for summary judgment was an improper substitute for special exceptions and thus has waived the opportunity to present this argument to this Court. See Millhouse v. Wiesenthal, 757 S.W.2d 103, 107 (Tex. App.—Houston [1st Dist.] 1988) (“This issue was not expressly presented to the trial court by [appellant’s] written response, and therefore cannot be considered on appeal as grounds for reversal.”), aff’d, 775 S.W.2d 626 (Tex. 1989)

          We overrule issue one.

Propriety of Summary Judgment on Greene’s Causes of Action

          In issue two, Greene asserts that the trial court erred in granting Deutsche’s motion for summary judgment on his causes of action because the affidavit evidence of Klysz was defective in that she was an employee of a company unrelated to the suit, the affidavit did not contain the requisite information to qualify her as an expert, Deutsche did not designate Klysz as an expert in response to Greene’s discovery and disclosure requests, her affidavit was not a proper business-records affidavit, and there was inconsistency in her affidavit concerning whether she had personal knowledge of the facts stated in her affidavit.

          Klysz’s affidavit established her relationship to the suit, averring that she was the Foreclosure Manager of Chase, the authorized servicing agent for Deutsche. Greene’s complaints about the affidavit’s being inadequate to establish Klysz as an expert are of no consequence because, in the affidavit, Klysz did not offer an expert opinion. Regarding Greene’s complaint about inconsistency in Klysz’s affidavit concerning her personal knowledge, Klysz did aver that “I have personal knowledge of all the facts . . . in this affidavit.” Greene complains that Klysz later stated, “[B]ecause of my position . . . , which allows me to review the business records of Chase, and its predecessor service, and the business records of Deutsche Bank . . . Exhibits A-1 through A-11 attached hereto are business records of Chase . . . .” The business-records exception to the hearsay rule does not require that the person making the affidavit regarding the business records have personal knowledge of the facts behind each and every business record, but, rather, that the records be made in the regular course of business by an employee of the business having personal knowledge of the transaction either to make such record or to transmit the information to someone else who makes the record and that the entries be made at or near the time of the act event or condition or reasonably soon thereafter. See Tex. R. Evid. 902(10)(b); Trawick v. Trawick, 671 S.W.2d 105, 111 (Tex. App.—El Paso 1984, no writ); Villiers v. Repub. Fin. Serv., 602 S.W.2d 566, 572 (Tex. Civ. App.—Texarkana 1980, writ ref’d n.r.e.). Here, Klysz swore:

‘Exhibits ‘A-1 through A-11’ attached hereto are the business records of Chase, the authorized servicing agent of Deutsche Bank. Said business records are kept by Chase in the regular course of business, and it was the regular course of business of Chase for an employee or representative of Chase with knowledge of the act, event, or condition, or opinion recorded to make the records or transmit information thereof to be included in such records; and the records were made at or near the time or reasonably soon thereafter . . . .

This testimony contained the information necessary to meet the requirements of Texas Rule of Evidence 902(10)(b). We overrule Greene’s second issue.

Propriety of Granting Summary Judgment

on Deutsche’s Counter-Petition

          In issue three, Greene challenges the propriety of the trial court’s grant of summary judgment on Deutsche’s counter-petition for judicial foreclosure and declaratory relief. He does this by attacking the summary judgment affidavits of Klysz, Luna, and Johnsey, as well as the documentary evidence supporting Deutsche’s motion for summary judgment.

          Greene has failed to preserve this issue because he has not presented us with a record showing that the trial court ruled on his objections. See Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex. App.—Waco 2000, pet. denied) (absence from record of trial court ruling on Fletchers’ objection to late-disclosed document in support of summary judgment motion cited as a reason why Fletchers had not preserved for appellate review complaint of document’s consideration in grant of summary judgment).

          We overrule issue three.

Deutsche’s Authority to Maintain an Action in Texas

          In the “Issues Presented” section of his brief, Greene states a fourth issue: “Can Deutsche maintain an action in Texas when it is not authorized to do business in Texas and does not have a certificate of Authority from the Texas Secretary of State?” In the body of the brief, Greene makes no mention of this issue, and, accordingly, it is waived. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 336 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (holding Ryan’s failure to include any citation of authority or discussion of relevant facts waived consideration of appellate points).

Motion for Continuance

          In the next-to-last paragraph of his brief, Greene asserts that he sought a continuance and that the trial court erred in not granting it. Greene cites no legal authority or relevant facts to support this contention. Accordingly, Greene has waived consideration of this argument. See Tesoro Petroleum v. Nabors Drilling, USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that uttering brief conclusory statements unsupported by legal citations in brief waives complaint); Ryan, 39 S.W.3d at 336.

Pleadings and Summary Judgment Proof

to Support Summary Judgment

          In his supplemental brief, Greene first raises the issue: “Were there pleadings and summary judgment proof to support the granting of the Motions for Summary Judgment?”

          In presubmission pleadings filed with this Court, Greene has referred to unsuccessful attempts to have the district clerk file a supplemental clerk’s record containing Deutsche’s counter-petition for foreclosure and declaratory relief. This supplemental issue carries forward Greene’s complaint about the absence of Deutsche’s counter-petition in the clerk’s record. However, Greene has not shown how the omission of this document from the clerk’s record has harmed his ability to prosecute this appeal. Because Greene has not demonstrated how the omission of this document has prejudiced his ability to challenge the trial court’s judgment, we hold that this part of the issue is without merit. See Born v. Virginia City Dance Hall & Saloon, 857 S.W.2d 951, 954 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (overruling point of error complaining about insufficient appellate record when Born had failed to specify how alleged errors and omissions in record were harmful).

          The second part of this issue, asking whether there was summary judgment proof to support the granting of the motions for summary judgment, is a repetition of arguments that Greene previously made under issues two and three, which we have already overruled.

          We overrule Greene’s supplemental issue.

Deutsche’s Motion to Dismiss Appeal

          In light of our foregoing disposition of Greene’s issues, we dismiss Deutsche’s motion to dismiss the appeal as moot.

Conclusion

          We affirm the judgment of the trial court.

Tim Taft

    Justice

Panel consists of Justices Taft, Keyes, and Hanks.