Wilfred Hewitt v. Billy F. Roberts and Mary D. Roberts ( 2013 )

NUMBER 13-11-00449-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
WILFRED HEWITT, Appellant,
v.
BILLY F. ROBERTS
AND MARY D. ROBERTS, Appellees.
On appeal from the 413th District Court
of Johnson County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Wittig1
Memorandum Opinion by Justice Wittig
Wilfred Hewitt, appellant, challenges the summary judgment granted in favor of
appellees Billy F. Roberts and Mary D. Roberts. In his first issue, Hewitt argues the trial
court erred by entering summary judgment based entirely on improper legal conclusions
1
Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of
Texas pursuant to TEX. GOV’T CODE ANN. § 74.003 (West 2005).
found in admissions deemed against him. In his second issue, he argues that the trial
court abused its discretion by refusing to withdraw deemed admissions that were “never
served on Hewitt.” Hewitt does not challenge the declaratory judgment against him
nullifying his option to purchase the Roberts’ home and declaring they have clear title to
the property. We affirm.
I. BACKGROUND
The Roberts filed multiple claims against Hewitt for violations of the DTPA,
breach of contract and fiduciary duty, fraud, fraud in a real estate transaction,
negligence, negligent misrepresentation, money had and received, and declaratory
judgment. Hewitt filed a pro se answer on December 7, 2009, and listed his address as
1311 N. Robinson, Cleburne, Texas—the same address where Hewitt was served with
process. At the summary judgment hearing, the Roberts elected two remedies, DTPA
and declaratory judgment. The motion for summary judgment relied upon 143 deemed
admissions, the Roberts’ affidavit, an attorney’s fees affidavit, and other supporting
documents attached to the motion. On the day of the summary judgment hearing,
Hewitt belatedly filed answers to the deemed admissions mostly denying the requests;
the late responses were filed without leave of court. After the trial court granted the
summary judgment and entered judgment, Hewitt filed a motion to withdraw the deemed
admissions and a motion for new trial. The trial court denied the combined motions.
In Hewitt’s post judgment affidavit, he swore he was “never served” with a copy
of the Roberts’ requests for admission. Hewitt admits his office was located at 1311 N.
Robinson, in Cleburne, but asserted that he moved to a new location in Fort Worth in
May 2010. He states he “mistakenly failed to submit a forwarding address request” to
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the postal service. The record also reflects Hewitt failed to notify either the court or
counsel for the Roberts of his stated change of address. Hewitt avowed that he
happened to be at his old Robinson address in January 2011 to meet a client, when he
found a copy of the Roberts’ motion for summary judgment which included the requests
for admissions. This was the first time he saw the requests for admissions, according to
the affidavit.
II. STANDARD OF REVIEW
We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). Summary judgment under rule 166a(c) is proper when a
movant establishes that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Randall’s Food Mkts.,
Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When the trial court grants the
judgment without specifying the grounds, we affirm the summary judgment if any of the
grounds presented are meritorious. FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872–73 (Tex. 2000). Evidence favorable to the non-movant will be taken
as true in deciding whether there is a disputed material fact issue that precludes
summary judgment. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.
1985). Every reasonable inference must be indulged in favor of the non-movant and
any doubt resolved in his favor. Id. at 549.
We review the trial court’s grant or denial of a motion to withdraw deemed
admissions under an abuse of discretion standard. Wheeler v. Green, 157 S.W.3d 439,
443 (Tex. 2005). The trial court has broad discretion in such matters, but they cannot
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exercise that discretion arbitrarily, unreasonably, or without reference to guiding rules or
principles. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996).
III. DISCUSSION AND ANALYSIS
A. Withdrawal of Admissions
We first address Hewitt’s argument that the trial court abused its discretion by
refusing to withdraw the deemed admissions. The Roberts’ requests for admissions
were properly mailed to the last known and only address provided by Hewitt on
September 10, 2010, by both certified mail and regular mail. This Robinson Street
address was the same address used to serve Hewitt with the original petition. It is also
the same address that Hewitt admitted using in January 2011 to see a client and where
he received his copy of the Roberts’ motion for summary judgment filed on January 4,
2011. The Roberts argue that Hewitt created the very problem he now complains of,
and did not inform the post office, the court, or Roberts’ counsel of any new or other
address. The procedural fact question presented to the trial judge was whether Hewitt’s
failure to do so was an accident or mistake, or the result of conscious indifference or an
intentional act.
Hewitt’s burden on his motion to withdraw the deemed admissions was to show:
(1) good cause; and (2) no undue prejudice. Wheeler, 157 S.W.3d at 442. To establish
good cause, the party seeking to withdraw the deemed admissions must show that the
failure to respond was not intentional or the result of conscious indifference, but the
result of accident or mistake. Id.; see also Carpenter v. Cimarron Hydrocarbons Corp.,
98 S.W.3d 682, 687–88 (Tex. 2002). In Wheeler, the appellant calculated her dates
incorrectly, but this was not the result of intent or conscious indifference. Wheeler, 157
4
S.W.3d at 442. While she answered and mailed her responses within twenty-seven
days from receipt, the “mailbox rule” made her two days late. Id. at 441; see TEX. R.
CIV. P. 4.
In his affidavit, Hewitt swore he moved his office from Robinson Street in
Cleburne to Fort Worth in May 2010. Hewitt states he moved his office again in October
2010 to Joshua, Texas. Then in early January 2011, he nevertheless used the same
Robinson Street office to see a client and discovered the Roberts’ motion for summary
judgment, which included a copy of the requests for admissions. In mid-January 2011,
he finally submitted a forwarding address to the postal service.
Hewitt answered the admission requests on February 18, 2011, the day of the
summary judgment hearing, without first obtaining leave of court or filing a motion to set
aside the deemed admissions.2 Hewitt stated: “I was never served with a copy of Billy
F. Roberts and Mary D. Roberts’ requests for admission in this case. I did not refuse
delivery of any mail or deliveries from the Roberts or their attorneys.” He also stated
that on several occasions he found his mail opened prior to its receipt. Occasionally, he
did not receive items purportedly mailed to him or which were opened giving rise to his
opinion his mail was sometimes stolen or intercepted. Hewitt states that he “mistakenly
failed” to submit a forwarding address to the postal service and the first time he ever
saw the Roberts’ requests for admission was early January 2011. The evidence
submitted by the Roberts indicated that the requests for admissions in the envelope
sent certified mail was marked “unclaimed” but was properly addressed. Hewitt did not
directly or openly address whether he actually received the certified mail notice or
whether he received or opened the set of requests for admission sent to his Robinson
2
Hewitt’s late filed responses did not contain a certificate of service.
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Street address by regular mail.3 Hewitt did admit actual notice and receipt of the
requests when he visited his office early January 2011.
Hewitt cites Payton v. Ashton, 29 S.W.3d 896, 898 (Tex. App.—Amarillo 2000,
no pet.), for the proposition that the requests for admission may not be deemed if
service was not perfected. Indeed, in Payton, the certified mail was marked
“unclaimed,” however we note differences between that case and the one before us. In
Payton, “[w]hether they were unclaimed because Ashton opted not to receive them
(intentionally or otherwise) or whether he even knew of their existence went
undeveloped.” Id. 898–99. Payton also observes that constructive notice of a
document can be imputed to one where there exists evidence that the person has
engaged in "selective refusal/acceptance" of certified mail, citing Gonzales v. Surplus
Ins. Serv., 863 S.W.2d 96, 101–02 (Tex. App.—Beaumont 1993, writ denied). The case
goes on to hold that because the requests were returned unclaimed, that constituted
some evidence upon which the trial court could have concluded that Ashton did not
receive them. Payton, 29 S.W.3d at 898–99 (citing Gonzales, 863 S.W.2d at 101
(stating that the determination of a procedural fact, such as whether one received
notice, lies within the sound discretion of the trial court)).
Here, the trial court, charged with finding the procedural facts, implicitly
determined that Hewitt received notice or either intentionally or with conscious
indifference failed to respond. While there was some evidence Hewitt did not receive or
was not served with the certified mail package, review of the record reveals that Hewitt
3
While Hewitt avers he did not “see” the requests until January 2011, neither he nor his attorney
present the type of unequivocal testimony found in most of the cases cited by him in our discussion
below. Hewitt does not say he never received any notice or that he did not actually receive the
admissions until January 2011.
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failed in his burden to explain his presumed receipt of the requests for admission sent
by regular mail. Texas Rule of Civil Procedure 21a states that service by mail is
"complete upon deposit of the paper, enclosed in a postpaid, properly addressed
wrapper, in a post office or official depository under the care and custody of the United
States Postal Service." TEX. R. CIV. P. 21a. It also provides that "nothing herein shall
preclude any party from offering proof that the notice or document was not actually
received . . . ." Id. Hewitt’s affidavit is carefully crafted to indicate that he was not
“served” with the requests, but does not unequivocally state he did not receive either the
admissions by certified mail or regular mail. He swore that he “mistakenly failed” to
forward his mail, while at the same time he admitted using the identical address on
Robinson Street for business in January 2011.
Hewitt makes no proffer of what his claimed mistake was, i.e., he relies upon a
conclusory, self-serving statement and offers no proof of why or how he made a
mistake. Though he claims people might have been opening and stealing his mail, he
neglects to forward his mail from his clients, the Internal Review Service, or anyone
else, and abandons his mail for months to possible thieves and miscreants while
moving to Fort Worth in May 2010, and then to Joshua in October 2010. Nor does
Hewitt fully explain how he happens to still be using his Robinson Street office in
January 2011. Did he own the building? Did he still lease space? How often did he
pick up his mail at 1311 N. Robinson? The trial judge certainly had contradictory
evidence before him that could seriously challenge the credibility of the affiant. When
the trial court does not issue findings of fact, reviewing courts should presume that the
trial court resolved all factual disputes in favor of its judgment. Am. Type Culture
7
Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). When a trial court is presented
with conflicting evidence, it may believe one witness and disbelieve others as well as
resolve inconsistencies in testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697
(Tex. 1986); Viera v. Viera, 331 S.W.3d 195, 210 (Tex. App.—El Paso 2011, no pet.).
Hewitt’s credibility was clearly at issue. Some evidence of intentional conduct or
conscious indifference appears in the record sufficient to justify the trial court’s actions
in denying Hewitt’s motion. See Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011)
(good cause is established by showing the failure involved was an accident or mistake,
not intentional or the result of conscious indifference).
Hewitt also cites Etheredge v. Hidden Valley Airpark Ass'n, 169 S.W.3d 378, 382
(Tex. App.—Fort Worth 2005, pet denied). The Fort Worth court held that even though
the presumption of receipt was rebutted by evidence that the notice of hearing was
returned "unclaimed," Hidden Valley Airpark presented no evidence that Etheredge
dodged or refused delivery of certified mail, and constructive notice of the summary
judgment hearing could not be imputed to Etheredge. Id. (citing Pessel v. Jenkins, 125
S.W.3d 807, 810 (Tex. App.—Texarkana 2004, no pet.) (holding that trial court erred in
determining that defendants received notice of trial setting when notice was returned
unclaimed and plaintiffs offered no proof of "selective acceptance/refusal" of certified
mail)). Etheredge and Pessel are distinguishable on the facts. In those cases, there
was neither proof that the parties continued to use their office delivery addresses in
question nor that they actually received court notices at the same delivery addresses.
Further, Hewitt did not deny receipt of regular mail notice sent to him.
8
Hewitt next argues from a Houston court’s opinion: Approximately $ 14,980.00 v.
State, 261 S.W.3d 182, 189 (Tex. App.—Houston [14th Dist.] 2008, no pet.). State held
that not only was the certified mail package returned “unclaimed” but also the
appellant’s attorney, unlike Hewitt, directly testified to not receiving the notice. Id.
Thus, the appellant rebutted the presumption of receipt of actual notice. Id.; see also
Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197 (Tex. App—Houston [1st Dist.]
1998, no pet.) (holding defendant rebutted presumption of service by asserting under
oath that he never received notice of certified letter from post office and by presenting
evidence that post office's attempts to deliver certified mail failed). Such is not the case
here. While Hewitt claimed he was not “served” and did not “see” the requests for
admission, neither he nor his lawyer claimed they never received either the certified
notice or regular mail package, which was not returned to the sender. Furthermore,
Hewitt admitted he received the admissions the first week of January 2011, but did not
respond to the admissions until the morning of the summary judgment hearing on
February 18, 2011.
Hewitt then cites Chambers v. Pruitt, 241 S.W.3d 679, 685 (Tex. App.—Dallas
2007, no pet.), holding that there was no evidence the admissions were properly served
and received. In Pruitt, the request for admissions sought to be admitted into evidence,
unlike our case, was not signed, nor was there a signed certificate of service. Id.
Chambers told the court she sent the document to Pruitt by certified mail and received a
return receipt green card marked "refused." Id. Pruitt testified she did not receive the
admissions and thus, there were no deemed admissions, and the trial court did not
abuse its discretion when it refused to admit the document into evidence. Id. Here,
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Hewitt admits receiving the requests for admission at least by January 2011, and also
admitted using the same Robinson Street address as an office while claiming it was no
longer his office.
Finally, Hewitt argues that “the undisputed evidence” established Hewitt’s failure
to respond was not intentional or the result of conscious indifference, citing Salazar v.
Collins, 255 S.W.3d 191, 196 (Tex. App.—Waco 2008, no pet.) (stating that good cause
is established by a showing that the failure to respond to the request for admissions was
an accident or mistake, not intentional or the result of conscious indifference). In
Salazar, unlike our case, the attorney general’s office admitted receiving the admissions
but stated that they were inadvertently misplaced after they were received and were
never routed to the particular attorney assigned to that case. Id. In our case, there was
evidence that properly mailed requests were sent to Hewitt at the address he
designated. He did not deny receiving the admissions sent by regular mail. He
admitted receiving a set of admissions along with the motion for summary judgment and
still did not timely respond or seek leave to file late responses to the requests. While
Hewitt argued “mistake,” no proof of mistake was offered. And while claiming to have
moved his Cleburne office without forwarding his mail, he still received correspondence
in this case at that same address and admitted using the Cleburne office in his work.
We further note that Hewitt, by his own admission, knew of his “mistake” in early
January 2011, well before the February 18 hearing, and could have responded to the
Roberts’ motion, or sought leave to file late responses, but because he did not, he
waived his right to raise the issue thereafter. Unifund CCR Partners v. Weaver, 262
S.W.3d 796, 798 (Tex. 2008). The high court noted that under special circumstances, a
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party could bring a request to withdraw deemed admissions for the first time in a motion
for new trial. Id. (citing Wheeler, 157 S.W.3d at 442 (stating that Wheeler did not waive
her complaint regarding withdrawal of the deemed admissions by presenting it for the
first time in her motion for new trial because "nothing in this record suggests that before
summary judgment was granted, [Wheeler] realized that her responses were late, that
she needed to move to withdraw deemed admissions, or that she needed to file a
response to the summary judgment raising either argument.")) "[E]quitable principles
allowing these arguments to be raised in a motion for new trial do not apply if a party
realizes its mistake before judgment and has other avenues of relief available." Id.
We conclude the trial court did not abuse its discretion by refusing to permit the
withdrawal of the deemed admissions. See Wheeler, 157 S.W.3d at 443; see also
Weaver, 262 S.W.3d at 798. A decision is not considered an abuse of discretion if
supported by any theory appearing in the record. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990). We overrule this issue.
B. Admissions Void
Hewitt also argues that the requests for admission are void on their face and
cannot be used against him as a matter of law. We disagree. Hewitt’s central argument
is that most of 143 requests for admission do not address disputed facts but merely
mirror the elements of Roberts’ claims. Hewitt is correct that many of the requests
mirrored the DTPA elements and were improper legal conclusions, e.g., “Admit you
engaged in certain false, misleading and deceptive acts, practices and/or omissions
actionable under the DTPA.” Hewitt argues that because certain deemed admissions
were purely questions of law, they are improper summary judgment evidence, citing
11
Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 881 (Tex. App.—Beaumont 2008, pet
denied). We agree in principle. However, as the Roberts argue, a request for
admission may ask a party to admit or deny an issue of fact or a mixed issue of fact and
law, but not a purely legal issue, citing Ft. Bend Central Appraisal District v. Hines
Wholesale Nurseries, 844 S.W.2d 857, 858 (Tex. App.—Texarkana 1992, writ denied);
see also Marino 355 S.W.3d at 632 (admissions may be used to elicit "statements of
opinion or of fact or of the application of law to fact" (citing TEX. R. CIV. P. 198.1).
Indeed the rule itself states:
Request for Admissions. A party may serve on another party - no later
than 30 days before the end of the discovery period—written requests that
the other party admit the truth of any matter within the scope of discovery,
including statements of opinion or of fact or of the application of law to
fact, or the genuineness of any documents served with the request or
otherwise made available for inspection and copying. Each matter for
which an admission is requested must be stated separately.
TEX. R. CIV. P. 198 (emphasis added).
The Roberts argue many of the requests fall within the rule including: requests
numbers 3–7, 10, 11, 13, 15, 18, 27–29, 32–34, 36, 37, 46, 47, 62, 63, 66, 109, 140,
and 143. For example, requests 3–7 asked Hewitt to admit he was not a licensed
Texas CPA, that he represented he was qualified to provide tax advice and planning,
that he was qualified to prepare federal tax returns, that he used Mary D. Roberts’s
name to acquire electric service at his office, and that he used Billy Roberts’s name to
charge items at Lowes. We have reviewed each of the requests enumerated in this
paragraph and conclude they are not prohibited questions of law.4
4
A few of the requests would have been subject to a “multifarious” objection, but no such
objection was timely made nor is the matter raised by appellant.
12
However, even if some of the requests were prohibited questions of law, the
Roberts’ motion also relied upon the affidavit of Mrs. Roberts and supporting documents
as a basis for their summary judgment motion. The affidavit established that the
Roberts were consumers of services from Hewitt, that he misrepresented his status as a
Texas licensed CPA, that Hewitt used Billy Roberts’ name to acquire electric service
and used one of their names to charge items at Lowes, improperly rendered services
and induced the Roberts to enter a scheme giving Hewitt the option to purchase real
estate belonging to the Roberts in Cleburne. Hewitt then collected $4,515 in rents from
the Roberts for their property. Hewitt threatened to falsely report that the Roberts
received income from Hewitt if they did not convey the Cleburne property to him. Hewitt
also appropriated identity information, bank, credit and other financial information from
the Roberts.
The summary judgment proof supports violations of the DTPA. A consumer may
bring a DTPA cause of action for either a violation of section 17.46(b) of the DTPA (the
so-called "laundry list") relied on by the consumer to the consumer's detriment or for an
unconscionable action or course of action if the violation or action "constitute[s] a
producing cause of economic damages or damages for mental anguish." TEX. BUS. &
COM. CODE ANN. § 17.50(a)(1), (3) (West 2011). The "laundry list" prohibits various
types of misrepresentations. See id. § 17.46(b). The DTPA also defines an
unconscionable action or course of action as "an act or practice which, to a consumer's
detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of
the consumer to a grossly unfair degree." Id. § 17.45(5). Under section 17.46 (a), false,
misleading, or deceptive acts or practices in the conduct of any trade or commerce are
13
declared unlawful and are subject to action by the consumer protection division under
sections 17.47, 17.58, 17.60, and 17.61 of the civil practice and remedies code. Id.
Sub-section (b) includes, but is not limited to the following acts:
(1) passing off goods or services as those of another;
(2) causing confusion or misunderstanding as to the source,
sponsorship, approval, or certification of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection,
or association with, or certification by, another;
(4) using deceptive representations or designations of geographic
origin in connection with goods or services;
(5) representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they
do not have or that a person has a sponsorship, approval, status,
affiliation, or connection which he does not.
Id. § 17.46. Summary judgment proof also included an affidavit supporting the
attorney’s fees awarded in the amount of $6,500.00 and proof supporting the treble
damages found in the amount of $33,035.46.
The trial court, as well as this court, must accept as true the clear, direct, and
positive evidence of an undisputed affidavit, even of a party's agent. Jack B. Anglin Co.
v. Tipps, 842 S.W.2d 266, 270 (Tex. 1992) (citing Americana Motel, Inc. v. Johnson,
610 S.W.2d 143 (Tex. 1980) (uncontroverted testimony by an interested party may
support summary judgment when testimony is clear, direct, and positive); Whitehead v.
Julian, 476 S.W.2d 844, 845 (Tex. 1972) (uncontroverted affidavit must be accepted as
true); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41,
47 (Tex. 1965)).
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Hewitt, in his reply brief, states that Roberts’ attorney only argued the deemed
admissions. This is factually inaccurate because in both the Roberts’ written motion
and in oral argument they pointed to “evidence that is attached in the addendum,” the
Roberts’ affidavit supporting damages, and the affidavit supporting attorney’s fees.
Further, Roberts’ attorney asked the court to consider “the summary judgment evidence
including the discovery with deemed admissions. . . .” Because the trial court's order
does not specify the grounds for its summary judgment, we must affirm the summary
judgment if any of the theories presented to the trial court and preserved for appellate
review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
216 (Tex. 2003) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.
1996)); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
Hewitt also contends a party must specifically identify the supporting proof relied
upon, citing Gonzales v. Shing Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d
742, 746 (Tex. App.—San Antonio, 2005 no pet.). Notwithstanding the stated principle,
the Gonzales court reviewed the entire record and concluded the expert did not provide
the underlying facts to support his conclusion. Id. The only evidence of an alleged
defect was the expert’s statements that "an electrical failure occurred at the socket
base/switch assembly" and "the fire resulted from a resistive heating failure at the lamp
socket/switch assembly terminal screws to which the lamp cord is attached." Id.
“These statements are conclusory and, therefore, constitute no evidence.” Id. at 746–
47. In Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 81 (Tex. 1989), the Allred
deposition to which the motion for summary judgment specifically referred was not part
of the record on appeal, and the record did not reflect that it was or could have been
15
considered by the trial court. The movant did not present to the trial court sufficient
evidence to show its claim of "title" or "color of title." Id. The motion did no more than
refer to whatever may have been "on file" and such a general reference to a voluminous
record which does not direct the trial court and parties to the evidence on which the
movant relies is insufficient. Id. We have already noted that the Roberts specifically
referenced Mary Roberts’ affidavit as well as the attorney’s fees affidavit. Neither the
trial court nor this court was presented with voluminous records, reports, and
depositions described in the cited cases. We conclude this argument is without merit.
Hewitt complains it is difficult to see how the Roberts’ affidavit can prove his
subjective knowledge and intent. To the contrary, the affidavit lays out Hewitt’s willful
conduct when he misrepresented his status as a Texas CPA, he used their name to
charge items at Lowes, induced them to enter a scheme to acquire an option on the
Roberts’ property, collected rents, and threatened to falsely report them. Hewitt also
refused to return identity and financial information to the Roberts. Virtually all, if not all
of these purposeful actions are typically performed with knowledge and intent. Hewitt
points to no evidence to the contrary.
Hewitt also argues that the affidavit consists primarily of subjective conclusory
statements and opinions by an interested party and is not competent evidence as a
matter of law, citing Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 213 (Tex.
App.—Houston [14th Dist.] 1986, no writ) (holding that statements of opinions and
conclusions made in an affidavit are not competent summary judgment proof and
should be disregarded in determining the sufficiency of proof to support the summary
judgment). “A conclusory statement is one that does not provide the underlying facts to
16
support the conclusion.” Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—
Houston [1st Dist.] 1997, no writ). Hewitt does not cite to any statement he argues to be
conclusory. To the contrary, Mary Roberts swore that she had personal knowledge and
gave specific details of the couple’s dealings with Hewitt described above.
We overrule this issue.
IV. CONCLUSION
The judgment of the trial court is affirmed.
Don Wittig
Justice
Delivered and filed the
31st day of January, 2013.
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