Ralph O. Douglas v. Washington Mutual Bank ( 2006 )

Affirmed and Memorandum Opinion filed October 10, 2006

Affirmed and Memorandum Opinion filed October 10, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00282-CV

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RALPH O. DOUGLAS, Appellant

V.

WASHINGTON MUTUAL BANK, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 04‑01233

M E M O R A N D U M   O P I N I O N

Appellant, Ralph O. Douglas, appeals from a summary judgment granted in favor of appellee, Washington Mutual Bank.   Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

In October 1972, Linda Porter and her husband, George Washington Porter, purchased a home for $12,000, which they financed through the Veterans= Administration.  Washington Mutual subsequently purchased the note.  In 1996, approximately twenty years after Mr. Porter=s death, Mrs. Porter encountered difficulty paying the mortgage in addition to two home improvement loans on the property.  After she received notice of foreclosure, Mrs. Porter was approached by several people attempting to lend her money.  Appellant, Ralph O. Douglas, approached Mrs. Porter and told her he could pay off the property in exchange for her payments of $375 per month.  Mrs. Porter went to the office of Douglas Mortgage Company and partially filled out a document in which she understood Douglas would propose a method for paying the loan.  After making payments of $375 per month for approximately eighteen months, Mrs. Porter discovered that Douglas had forged her signature on a warranty deed and had recorded his Apurchase@ of her home.  She further discovered that Douglas filled in portions of the document signed by Mrs. Porter so that the document appeared to authorize Douglas to purchase the home.  Douglas was subsequently convicted of forgery and theft.

Following his conviction, Douglas attempted to obtain loan documents from Washington Mutual, which Douglas claims support his contention that he owned the home. When Washington Mutual explained that its customer of record was Linda Porter, Douglas filed suit in an attempt to obtain the loan documents.  Washington Mutual filed a motion for summary judgment in which it contended that Douglas had failed to state a cause of action and had produced no evidence that he was entitled to the mortgage documents.  The trial court granted summary judgment from which Douglas appeals.

II.  Standard of Review

To prevail on a motion for summary judgment, the movant must establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Rhone‑Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999).  In reviewing a summary judgment, we take as true all evidence favorable to the non‑movant, and we make all reasonable inferences in the non‑movant=s favor.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  Under the Ano‑evidence summary judgment@ rule, the movant may move for summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the nonmovant would have the burden of proof at trial.  Tex.R.Civ.P. 166a(i).  The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact.  Id.

III.  Discussion

In twenty-nine issues, Douglas challenges the trial court=s summary judgment.  In issues one through nine, twelve through twenty-seven, and twenty-nine, Douglas challenges the legal sufficiency of Washington Mutual=s summary judgment proof on the issues of whether Mrs. Porter agreed to sell her property to him in exchange for payment of the loans.  Douglas also challenges the legal sufficiency of the summary judgment proof that Washington Mutual does not have loan documents showing Douglas as the customer of record.  In issues ten, eleven, and twenty-eight, Douglas contends Mrs. Porter=s affidavit and John Herberger=s affidavit are conclusory. 

A.        Conclusory Affidavits

In his tenth issue, Douglas contends Linda Porter=s affidavit in support of the motion for summary judgment is conclusory.  In his eleventh and twenty-eighth issues, Douglas contends John Herberger=s affidavit is conclusory.  With regard to Mrs. Porter=s affidavit, Douglas contends the statements that Mrs. Porter did not sign the warranty deed are conclusory.  In her affidavit, Mrs. Porter stated, AI have never signed any document for the purpose of conveying the Belmark Property to Ralph O. Douglas.  I have never given any authorization, written or oral, for Ralph O. Douglas to negotiate a loan on my behalf.@  John D. Herberger was Washington Mutual=s counsel in the trial court.  His affidavit merely attested to the authenticity of the trial transcript of Mrs. Porter=s testimony at Douglas=s criminal trial.

Rule 166a(f) requires that Asupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.@  Tex. R. Civ. P. 166a(f). Conclusory statements in an affidavit unsupported by facts are insufficient to support or defeat summary judgment.  Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997).  A conclusory statement is one that does not provide the underlying facts to support the conclusion.  Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.CHouston [1st Dist.] 1997, no writ).

Mrs. Porter=s and Herberger=s affidavits are sufficiently supported by underlying facts. Mrs. Porter=s statement that she did not sign the document is not conclusory, but a factual statement clearly within her knowledge.  Similarly, in his affidavit, Herberger stated that the transcript of Mrs. Porter=s testimony from Douglas=s criminal trial was a true and correct copy and an accurate transcription of the trial testimony.  Neither affidavit contained conclusory statements unsupported by facts.  Douglas=s tenth, eleventh, and twenty-eighth issues are overruled.

B.        Sufficiency of Summary Judgment Proof

Washington Mutual filed both a traditional motion for summary judgment and a no-evidence motion.  A defendant moving for summary judgment has the burden of proving there is no material issue of fact relative to the plaintiff=s cause of action.  Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476B77 (Tex. 1995).  Under the no-evidence summary judgment standard, the party with the burden of proof at trial will have the same burden of proof in a summary judgment proceeding.  Proctor v. White, 155 S.W.3d 438, 441 (Tex. App.CEl Paso 2004, pet. denied).  We apply the same legal sufficiency standard in reviewing a no‑evidence summary judgment as we apply in reviewing a directed verdict.  Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.CSan Antonio 1998, pet. denied).  We review the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Id.  A no‑evidence summary judgment is properly granted if the nonmovant fails to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the nonmovant=s claim on which the nonmovant would have the burden of proof at trial.  See Tex.R.Civ.P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998).

Here, Douglas sought to obtain mortgage records on Mrs. Porter=s property.  Douglas claimed that Mrs. Porter signed a warranty deed to her property with the intent that he would obtain a loan on that property.  Douglas contends Washington Mutual is in possession of the written authorization signed by Mrs. Porter permitting Washington Mutual to release Mrs. Porter=s loan information to Douglas.  In support of its motions for summary judgment, Washington Mutual produced Mrs. Porter=s trial testimony, supporting documents from the trial, and Mrs. Porter=s and Herberger=s affidavits.  Mrs. Porter=s testimony at Douglas=s criminal trial establishes that Douglas obtained Mrs. Porter=s signature on a partially completed document, then filled in crucial details after Mrs. Porter signed the document.  Her testimony also shows that she did not sign a warranty deed.  She further testified that she paid Douglas $375 per month for approximately eighteen months, but that Douglas failed to pay her mortgage note.  Finally, Douglas was convicted of forgery and theft for these actions. Douglas contends that a report from his handwriting expert refutes Mrs. Porter=s contention that she did not sign the warranty deed.  To the contrary, in her report, the handwriting expert reaches no conclusion and requests more information before she can render an unqualified opinion.

The parties engaged in pretrial discovery in which Washington Mutual searched for the documents Douglas seeks in the underlying lawsuit.  Washington Mutual stated it was unable to find any mortgage documents in Douglas=s name.  The only mortgage documents it found listed Mrs. Porter as the customer.  Despite adequate time for discovery, Douglas produced no evidence that Mrs. Porter permitted Douglas access to her mortgage records at Washington Mutual.  Accordingly, because Douglas has failed to present any competent  evidence to support his petition seeking mortgage records, the trial court did not err in granting summary judgment for Washington Mutual.  We overrule Douglas=s remaining issues.

The judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed October 10, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.