Conte Jr., Joseph P v. Ditta, Louis, Guardian of the Estate of Dorris L. Conte ( 2003 )

Affirmed and Memorandum Opinion filed May 22, 2003

Affirmed and Memorandum Opinion filed May 22, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00482-CV

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JOSEPH P. CONTE, JR., Appellant

V.

LOUIS DITTA, GUARDIAN OF

THE ESTATE OF DORIS L. CONTE, Appellee

On Appeal from Probate Court No. 1

Harris County, Texas

Trial Court Cause No. 294,307-403

M E M O R A N D U M   O P I N I O N

Appellant Joseph P. Conte, Jr. brings a pro se appeal from the granting of summary judgment in favor of appellee Louis M. Ditta, guardian of the estate of Doris L. Conte, an incapacitated person.  Asserting three points of error, appellant claims summary judgment was improper.  We affirm.

FACTUAL AND PROCEDURAL HISTORY

In compliance with the terms and conditions of a settlement agreement executed November 5, 1996, appellant Joseph Conte, Jr. executed and delivered two unsecured promissory notes to his mother, Doris L. Conte.  The notesCone for $171,000 and one for $180,000Cwere each payable on or before November 1, 2000. Appellant made no payment on the notes.

On February 1, 2001, Ditta, as guardian of the estate of Doris, who is now an incapacitated person, made demand on Joseph for payment.  Despite Ditta=s demand, appellant made no payments on the notes;  therefore, Ditta filed suit against Joseph.

On October 31, 2001, Ditta filed a motion for summary judgment asserting, as a matter of law, that appellant was liable on the notes.  This motion was heard on January 17, 2002, at which time the trial court granted appellee=s motion for summary judgment.  This appeal arises from the granting of that motion.

ISSUES ON APPEAL

On appeal, appellant asserts three points of error, contending the trial court erred in granting appellee=s motion for summary judgment for the following reasons: (1) appellant was excused from performing under the original settlement agreement because appellee materially breached Doris’ obligations under the agreement and appellant signed the settle-ment agreement under duress; (2) the matter was pending in another lawsuit filed by appel-lant against appellee; and (3) there were fact and law issues that preclude summary judgment.

STANDARD OF REVIEW

A summary judgment is proper only when a movant establishes there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).  In a summary judgment proceeding, the burden of proof is on the movant and all doubts as to the existence of a genuine issue of fact are resolved against the movant.  Roskey v. Tex. Health Facilities Com=n, 639 S.W.2d 302, 303 (Tex. 1982).  Once the movant has established a right to a summary judgment, the burden shifts to the nonmovant.  Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.CHouston [1st Dist.] 1999, no pet.).  The nonmovant must respond to the motion by presenting any fact issues that would preclude summary judgment.  City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979).

A summary judgment is reviewed de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).  The appellate court can consider the record only as it existed at the time summary judgment was entered.  Johnnie C. Ivy Plumbing Co. v. Keyser, 601 S.W.2d 158, 160 (Tex. App.CWaco 1980, no writ). 

If the reviewing court determines that summary judgment was improperly granted,  the reviewing court will reverse the judgment and remand the cause for further proceedings.  Lubbock County, Tex. v. Trammel=s Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002).

APPELLEE ENTITLED

TO JUDGMENT AS MATTER OF LAW

To collect on a promissory note, a plaintiff must establish (1) the existence of the note in question, (2) the defendant signed the note, (3) the plaintiff is the owner and holder of the note, and (4) a certain balance is due and owing on the note.  Cadle Co. v. Regency Homes, Inc., 21 S.W.3d 670, 674 (Tex. App.CAustin 2000, pet. denied); Commercial Services of Perry v. Wooldridge, 968 S.W.2d 560, 564 (Tex. App.CFort Worth 1998, no pet.); Blankenship, II v. Robins, 899 S.W.2d 236, 238  (Tex. App.CHouston [14th Dist.] 1994, no writ).  If no genuine issue of material fact exists as to any of these elements, plaintiff is entitled to summary judgment as a matter of law.  See Tex. R. Civ. P. 166a(c).

Here, appellee established all four elements as a matter of law.  First, he established existence of the notes by attaching true and correct copies of the notes as exhibits to his motion and filing a sworn affidavit in verification of the copies.^[1]  Next, he established appellant signed the notes because appellant failed to deny the genuineness of his signatures on the notes in his answer and his signatures were deemed admitted.^[2]  Third, he established ownership and possession of the notes because he offered summary judgment proof that the notes were payable to Doris L. Conte. Appellee, as guardian of Doris= estate, is entitled to enforce the instrument.^[3]  Finally, Ditta established a balance due and owing on the notes because he stated the following in his affidavit: (1) the notes have a total principal amount of $351,000, (2) the notes have accrued a total of $98,075.25 in interest and continue to accrue interest at ten percent annually, and (3) reasonable attorney=s fees will accrue at a rate of ten percent of all amounts due.

Because appellee offered undisputed summary judgment proof on each of the four elements necessary to establish the right to collect sums due under appellant=s promissory notes, there is no genuine issue as to any material fact and appellee is entitled to summary judgment as a matter of lawCunless appellant can present summary judgment proof to raise a fact issue on an affirmative defense.  See Kehoe v. Lambert, 633 S.W.2d 576, 578 (Tex. App.CHouston [14th Dist.] 1982, writ ref. n.r.e.) (nonmovant has burden of coming forward with proof which raises a fact issue with respect to affirmative defense). This appellant has not done.

APPELLANT=S AFFIDAVITS ARE NOT

PROPER SUMMARY JUDGMENT PROOF

Before considering appellant=s three points of error, we must first determine if the summary judgment proof upon which appellant relies was timely filed.

Appellee filed his motion for summary judgment on October 31, 2000.  This motion was heard on January 17, 2001,^[4] at which time appellant presented, for the first time, his response:

Trial Court:                Okay, for the record, the Court has had the opportunity to read the Motion for Summary Judgment.  There has been no response filed. Mr. Conte, have you filed a written response within the last seven days?

Appellant:                   Yes, sir.

Trial Court:                When did you file it?

Appellant:                   On the 10th.

Trial Court:                I=m sorry?

Appellant:                   On the 10th.  I have my receipt here.

Opposing Counsel:    We have not received any response to our motion.

Trial court:                 The Court hasn=t seen a response either and I don=t have a notation in the Court=s computer that it was filed.

Appellant:                   Here is my response with [a] postmark from the post office.  And I inadvertently didn=t notarize the affidavit and I sent that with proof of mailing as well.

Trial Court:                You are arguing duress, coercion, one in the same, economy, consolidation. Well, as to the actuality of the filing . . . you can keep those, Mr. Conte B the originals of those [are] with the clerk, I don=t know. The Court has taken the opportunity to read the response.  There being nothing in the response that would compel the Court not to grant the summary judgment, so I will enter that order for you today.

The trial court=s order was entered January 17, 2001.  The record also includes a written response from appellant, file-stamped January 14, 2001 (to which an unnotarized affidavit is attached), and a second affidavit by appellant, file-stamped January 15, 2001.  Appellant=s second affidavit was notarized January 11, 2001.

From the facts above, we conclude that, while appellant=s response was deposited in the mail on January 10, 2001Cseven days before the trial court=s hearingCand therefore was properly before the trial court on January 17, 2001, his affidavits were not.

1.         Appellant=s first affidavit cannot be considered because it was not notarized.

Without notarization, a statement is not an affidavit and is not competent summary judgment proof.  Coastal Cement Sand, Inc. v. First Interstate Credit Alliance, Inc., 956 S.W.2d 562, 567 (Tex. App.CHouston [14th Dist.] 1997, writ denied); Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex. App.CSan Antonio 1995, writ denied).

Thus, appellant=s first affidavitCwhich was unnotarized and filed with appellant’s responseCmay not be considered on appeal.   See Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970).

2.         Appellant’s second affidavit cannot be considered because it was untimely.

A response to a motion for summary judgment, including opposing summary judgment evidence, must be filed no later than the seventh day before the date of the summary judgment hearing, except on leave of court.  Tex. R. Civ. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Hubert v. Illinois State Assistance Com=n, 867 S.W.2d 160, 162 n. 1 (Tex. App.CHouston [14th Dist.] 1993, no writ).

Permission to file a late response may be reflected in a “separate order,” “a recital in the summary judgment,” or an oral ruling contained in the reporter=s record of the summary judgment hearing.  Neimes v. Ta, 985 S.W.2d 132, 138 (Tex. App.CSan Antonio 1998, dism=d by agr.).  If the record does not contain an affirmative indication that the trial court permitted the late filing, the response is a nullity.  Id. at 138; Benchmark Bank, 919 S.W.2d at 663; Brown v. Shores, 77 S.W.3d 884, 886 (Tex. App.CHouston [14th Dist.] 2000, no pet.).  See also Johnston v. Vilardo, 817 S.W.2d 794, 796 (Tex. App.CHouston [1st Dist.] 1991, writ denied) (an untimely response is “void” unless the record affirmatively reflects trial court=s acceptance of late filing).

Here, the last day for filing a timely response was January 10, 2001.  See Tex. R. Civ. P. 4 and 166a(c).  See also Geiselman v. Cramer Financial Group, Inc., 965 S.W.2d 532, 535 (Tex. App.CHouston [14th Dist.] 1997, no writ) (by mailing response to motion for summary judgment on October 31, set for hearing on November 7, appellants timely filed their response within seven days of the hearing). 

Appellant placed his response in the mail January 10; therefore, it was timely filed.  See Tex. R. Civ. P. 5 (a document is timely filed if sent to the proper clerk by first-class mail in a properly-addressed and stamped envelope on or before the last day of filing and received no more than 10 days tardily); Arnold v. Shuck, 24 S.W.3d 470, 472 (Tex. App.CTexarkana 2000, pet. denied).  See also Geiselman, 965 S.W.2d at 535 (the Amailbox rule@ applies to a response to summary judgment motion).

Appellant=s second affidavit, however, was not timely filed.   See Tex. R. Civ. P. 166a(c).  Indeed, appellant=s second affidavit was notarized on January 11 and could not have been timely mailed.  

Because appellant did not timely file his second affidavit, he had to obtain leave from the trial court to file it.  Tex. R. Civ. P. 63 and 166a(c).  See also Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988) (finding summary judgment proceeding is trial within meaning of Rule 63).  This he did not do.

Indeed, we find nothing in the record to indicate appellant soughtCor receivedCleave from the trial court to file his untimely affidavit: there is no separate order, no recital in the summary judgment, and no oral ruling indicating the trial court permitted the late filing.^[5] 

Thus, we must presume the trial court did not consider appellant=s second affidavit.  See Benchmark Bank, 919 S.W.2d at 663 (a court of appeals must presume trial court did not consider late-filed response unless something in record indicates to the contrary); Merchandise Center, Inc. v. WNS, Inc., 85 S.W.3d 389, 394B95 (Tex. App.CTexarkana 2002, no pet.) (where record showed response was timely filed but supporting affidavit was notCand nothing in record indicates trial court granted leave to file summary judgment proof lateCaffidavit was not properly before trial court and so could not be considered by appellate court); Johnston, 817 S.W.2d at 796 (where nothing in record affirmatively showed court accepted appellant=s late-filed corrected affidavit, presumption is that court did not accept it, despite appellant=s filing a motion for leave to file corrected affidavit).^[6]

Because appellant=s second affidavit was not timely filed and because nothing in the record indicates appellant received leave of court to file it, it is incompetent summary judgment proof.  See Benchmark Bank, 919 S.W.2d at 663. Accordingly, this court may not consider it.  See K-Six TV v. Santiago, 75 S.W.3d 91, 96 (Tex. App.CSan Antonio 2002, no pet.) (holding that while trial court=s orders recited it considered response, the orders did not recite trial court considered amended response; thus, appellate court could not consider amended response).

EXCUSE OF PERFORMANCE

In his first point of error, appellant asserts the trial court erred in granting appellee=s motion for summary judgment because appellant has two affirmative defenses:  (1) appellant is excused from performing under his settlement agreement with Doris because appellee materially breached Doris= obligations under the agreement,^[7] and (2) appellant signed the settlement agreement under duress.  Appellant=s assertions are without merit.

To avoid summary judgment on the basis of an affirmative defense, a defendant/non-movant must present evidence raising a fact issue on the elements of the affirmative defense.  See Seale v. Nichols, 505 S.W.2d 251, 254 (Tex. 1974) (in summary judgment proceeding, the necessity of supporting a nonmovant=s affirmative defense by proof raising a fact issue is well established); Richardson v. Ofc. Bldgs. Of Houston, 704 S.W.2d 373, 376 (Tex. App.CHouston [14th Dist.] 1985, no writ) (to show there is a disputed fact issue which will preclude rendition of summary judgment for payee of promissory note, obligor was required to offer summary judgment proof on each element of the affirmative defense he was pleading).  This he has not done.

Indeed, appellant=s response to appellee=s motion for summary judgment included only three exhibits: (1) his affidavits; (2) a copy of appellant=s and appellee=s 1996 settlement agreement; and (3) a copy of the 1996 and 1997 general ledger from the family trust that was the subject of the settlement agreement.  Because, as determined above, we cannot consider appellant=s affidavits, and because appellant=s other two exhibits do not, standing alone, support the elements of material breach or duress,^[8] we conclude appellant has not provided sufficient summary judgment proof to excuse performance.^[9] 

Accordingly, we overrule his first point of error.

PENDING LAWSUIT

In his second point of error, appellant asserts the trial court erred in granting appellee=s motion for summary judgment because the matter was pending in another lawsuit filed by appellant against appellee. 

This point fails, however, because appellant offers no summary judgment proof other than one line in his own improper affidavit that there is in fact another lawsuit: “This lawsuit needs to be consolidated with my Plaintiff=s Lawsuit.”^[10]  Appellant also fails to offer “a clear and concise argument of the contentions made, with appropriate citations to authorities and to the record,” in his brief. Tex. R. App. P. 38.1(h); Harkins v. Dever Nursing Home, 999 S.W.2d 571, 572 (Tex. App.CHouston [14th Dist.] 1999, no pet.).^[11]

Because appellant=s affidavits may not be considered by this court on appeal, and because appellant offers no other summary judgment proof to support his assertion there is a pending lawsuit, we overrule appellant=s second point of error.^[12]

LAW AND FACT ISSUES

In his third point of error, appellant asserts the trial court erred in granting appellee=s motion for summary judgment because there are fact and law issues that preclude summary judgment.   We disagree.

When a plaintiff shows entitlement to summary judgment, the nonmovant defendant seeking to avoid the judgment must present to the trial court proof adequate to raise a fact issue.  Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 876 (Tex. App.CDallas 1990, no writ).  Mere assertion is not sufficient for a party opposing a summary judgment motion to raise a fact issue.  Liggett v. Blocker, 849 S.W.2d 846 (Tex. App.CHouston [1st Dist.] 1993, writ denied).  Indeed, a response is not summary judgment proof.  Id.

Here, appellant argues “there are fact and law issues which preclude summary judgment.”  However, because he failed to file any proper summary judgment proof, the trial court had no basis for finding a fact issue.  Further, appellant cites no legal authority supporting his challenge to the summary judgment.  Thus, his arguments are baseless.

Accordingly, we overrule point of error three.

CONCLUSION

Based on the foregoing, each of appellant=s points of error is overruled. Accordingly, the trial court=s decision to grant summary judgment is affirmed.

/s/        John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed May 22, 2003.

Panel consists of Justices Anderson, Seymore, and Guzman.

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^[1]  A photocopy of the promissory note, attached to an affidavit in which the affiant swears that the photocopy is a true and correct copy of the original note, is proper summary judgment proof which establishes the existence of the note.  Blankenship, 899 S.W.2d at 238.

^[2]  In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument are admitted unless specifically denied in the pleadings.  Tex. Bus. & Com. Code Ann. ' 3.308(a) (Vernon 2002).  Thus, appellee was established as the maker of the notes. Groschke v. Gabriel, 824 S.W.2d 607, 610 (Tex. App.CHouston [1st Dist.] 1991, writ denied).

^[3]  A person entitled to enforce an instrument includes the holder of the instrument and a nonholder in possession of the instrument who has the rights of a holder.  Tex. Bus. & Com. Code Ann. ' 3.301 (Vernon 2002).  A holder with respect to a negotiable instrument means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession.  Id. at ' 1.201(20).  See also id. at ' 3.301 cmt.(a person entitled to enforce an instrument includes any person who under applicable law is a successor to the holder or otherwise acquires the holder=s rights).

^[4]  The Court notes that the hearing on appellee=s motion could have been held as early as November 21, 2000.  See Tex. R. Civ. P. 166a(c) (except on leave of court, motions and supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing).

^[5]  While the record reflects the trial court considered appellant=s response, it is silent as to whether the trial court considered his second affidavit.

^[6]  Moreover, if the trial court had granted appellant leave to file his second affidavit on the date of the hearing, appellee would have been entitled, pursuant to Rule 166a(c), to a period of time in which to file a response.  See Sams v. N.L. Indus., Inc., 735 S.W.2d 486, 488 (Tex. App.CHouston [1st Dist.] 1987, no writ).  Because there is no indication that appellee was granted time to respond and because the trial court entered its judgment on the day of the hearing, we must presume the trial court chose not to consider appellant=s newly-proffered summary judgment proof.

^[7]  Appellant asserts it makes no difference that the notes were generated as a result of the terms of a settlement agreement.  See Hampton v. Minton, 785 S.W.2d 854, 858 (Tex. App.CAustin 1990, writ denied) (performance under a note can be excused where the underlying agreement which gave rise to the note was breached).  We agree.  See Frost Nat=l Bank v. Burge, 29 S.W.3d 580, 588 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (separate documents executed at the same time for the same purpose and in the course of the same transaction are to be construed together).

^[8]  The elements of breach of contract are (1) existence of a valid contract; (2) performance or tendered performance by the party claiming breach; (3) breach of the contract by the opposing party; and (4) damages resulting from that breach.  Prudential Securities, Inc. v. Haugland, 973 S.W.2d 394, 396 (Tex. App.CEl Paso 1998, pet. denied). 

The elements of duress are (1) a threat or action taken without legal justification; (2) the threat or action was of such a character as to destroy the other party=s free agency; (3) the threat or action overcame the opposing party=s free will and caused the party to do that which he or she would not otherwise have done and that which he or she was not legally bound to do; (4) the restraint was imminent; and (5) the opposing party had no present means of protection.  Chapman Children=s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 443 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  Economic duress may be claimed only when the party against whom it is claimed was responsible for claimant=s financial distress.  Deer Creek Ltd v. North Amer. Mortg. Co., 792 S.W.2d 198, 203 (Tex. App.CDallas 1990, no writ).

^[9]  Even if we could consider appellant=s affidavits in our review, we would find insufficient summary judgment proof of a fact issue with regard to duress.  See supra note 8.  Appellant states only that he Awas coerced under duress caused by severe personal financial conditions@ to enter the settlement agreement and that he Awas coerced to execute@ the two promissory notes.  He provides no facts indicating a threat or action taken without legal justification and no facts to suggest appellee was responsible for appellant=s financial distress.  An affidavit that is conclusory or based on opinion does not constitute competent summary judgment proof.  See Duncan v. Lisenby, 912 S.W.2d 857, 859 (Tex. App.CHouston [14th Dist.] 1995, no writ). See also Richardson v. Ofc. Bldgs. of Houston, 704 S.W.2d 373, 376 (Tex. App.CHouston [14th Dist.] 1985, no writ) (obligor on promissory note failed to defeat summary judgment when he failed to offer summary judgment proof on elements of duress).

^[10]  Compare Jones v. Jones, 888 S.W.2d 849, 852 (Tex. App.CHouston [1st Dist.] 1994, no writ) (to show there was another lawsuit addressing the same issues as instant suit, appellee attached appellant=s amended original petition and judge=s final judgment from the first suit); Kimble v. Aetna Cas. & Sur. Co., 767 S.W.2d 846, 848 (Tex. App.CAmarillo, 1989, no writ) (to show appellant knew of pending lawsuit, appellee attached copy of transcripted testimony of declaratory judgment hearing).

^[11]  Appellant identifies no authority in support of his proposition that the trial court=s failure to consolidate two independent cases warrants reversal of the summary judgment. Indeed, he does not even address his second point of error issue in his AArguments and Authorities@ section.  Thus, he presents nothing for our review.  See Hunter v. NCNB Texas Nat=l Bank, 857 S.W.2d 722, 725 (Tex. App.CHouston [14th Dist.] 1993, writ denied).

^[12]  Moreover, a subsequent suit involving the same parties and the same controversy must be dismissed if a party to that suit calls the second court=s attention to the pendency of a prior suit by a plea in abatement.  Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974); see also First State Bank of Bishop, Texas v. Norris, 611 S.W.2d 680, 683B84 (Tex. App.CTyler, 1981, writ ref=d n.r.e.) (AIt has long been the rule in Texas that the pendency of one suit in a court of competent jurisdiction precludes the maintenance of another suit involving the same cause of action between the same parties in a court of equal jurisdiction.@).  Thus, if it was true there was another lawsuit pending between appellant and appellee involving the same controversy, the trial court=s proper course of action should have been to abate the second suit.