Bartz, Christopher v. Randall, Rita , 396 S.W.3d 647 ( 2013 )

AFFIRM; Opinion Filed January 29, 2013.
In The
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No. 05-11-00836-CV
CHRISTOPHER DAVID BARTZ, Appellant
V.
RITA RANDALL, Appellee
On Appeal from the 14
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Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-07594
OPINION
Before Justices FitzGerald, Fillmore, and Evans
Opinion By Justice Evans
Christopher David Bartz appeals from a summary judgment reviving a default judgment
against him in favor of Rita Randall. Bartz brings three issues generally contending the trial court
erred in basing its summary judgment on allegedly improper affidavits and in concluding this suit
was brought timely. Finding no merit in appellant’s contentions, we affirm the trial court’s
judgment.
BACKGROUND
Randall brought this action June 18, 2010 pursuant to section 31.006 of the Texas Civil
Practice and Remedies Code. In her petition, Randall asserted that she was the owner and holder of
a default judgment rendered against Bartz on August 10, 1989 and that the judgment was dormant
but otherwise valid and unpaid. Randall requested a writ of scire facias to allow her to execute on
the judgment.
Bartz answered and filed a motion for summary judgment contending Randall’s revival
action was not timely filed. Specifically, Bartz argued there was no evidence that Randall had a writ
of execution properly issued and delivered to an officer for execution within ten years after the
judgment was rendered as required by section 34.001 of the civil practice and remedies code.
Because no writ was properly issued, Bartz argued the judgment became dormant on August 10,
1999 and any action to revive the judgment had to be filed by August 10, 2001.
Randall responded to Bartz’s motion and filed her own cross motion for summary judgment
contending the evidence showed that a writ of execution was properly issued and delivered within
the statutory time period, thereby extending the time during which she could seek to revive and
enforce the judgment to August 6, 2011. Bartz filed a response to Randall’s cross motion including
an amended motion for summary judgment essentially re-urging the same arguments made in his
earlier motion for summary judgment. It does not appear from the record that a hearing was held or
a ruling made on either Bartz’s motion for summary judgment or Randall’s cross motion.
On March 23, 2011, Randall filed a new motion for summary judgment asserting
substantially the same arguments that were asserted in her earlier cross motion. As her sole summary
judgment evidence, Randall submitted two affidavits by her attorney, Joyce Lindauer, with attached
documents. Lindauer testified in her affidavits that she procured a writ of execution for the default
judgment less than ten years after the judgment was rendered and delivered it to a constable for
service on Bartz at his last known address. Randall argued this evidence showed that her action to
revive the default judgment was filed timely as a matter of law. Bartz did not file a response to
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Randall’s March 23 motion. The trial court conducted a hearing on Randall’s motion for summary
judgment on April 19, 2011, considered Bartz’s response to Randall’s earlier cross motion for
summary judgment, and signed an order granting Randall’s March 23 motion thereby reviving the
default judgment the same day. Bartz brings this appeal.
ANALYSIS
I. Sufficiency of the Affidavits as Summary Judgment Evidence
In his first two issues, Bartz contends the trial court erred in granting summary judgment on
the basis of the affidavits made by Randall’s attorney. B artz argues the affidavits are improper
because they were made by an interested witness, do not identify the sources of the affiant’s
knowledge, contain conclusory statements, and are both internally inconsistent and controverted by
other evidence in the record. Randall responds that all of Bartz’ s objections to the affidavits are
either waived or without merit. While we consider Bartz’s response as the trial court did,’ we agree
with Randall.
Bartz contends that Lindauer’s affidavits cannot support the summary judgment in favor of
Randall because, as Randall’s attorney, Lindauer is an interested witness and her testimony can only
raise a fact issue. The fact that Lindauer is an interested witness does not by itself, however, make
her affidavits insufficient to support the summary judgment. Under Rule 166a(c) of the Texas Rules
of Civil Procedure, a summary judgment may be based on the uncontroverted testimony of an
interested witness so long as the testimony is “clear, positive, and direct, otherwise credible and free
We note that Randall relies, at least in part, on the fact that Bartz filed no response to her March 23, 2011 motion for summary judgment when
she makes her waiver arguments. While Randall’s March 23 motion was the only motion considered by the trial court at the summary judgment
hearing, the judgment states that the trial court considered “the Plaintiff’s Motion for Summary Judgment filed by Plaintiff Rita Randall and the
response thereto filed by Defendant Christopher Bartz....” In addition, the trial court judge stated at the beginning of the hearing that he had read
both the motion and “the response.” Accordingly, the record indicates the trial court considered the arguments and evidence contained in Bartz’s
earlier filed response to Randall’s cross motion for summary judgment when it ruled on Randall’s March23 motion. Randall does not challenge the
trial court’s consideration of Bartz’s response in rendering its decision. Because of this, we will likewise consider the arguments and evidence
presented in Bartz’s response to the cross motion in our analysis of the issues on appeal.
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from contradictions and inconsistencies, and could have been readily controverted.” TEx. R. Civ.
P. 166a(c). Uncontradicted testimony of an interested witness that meets the requirements of the rule
may be treated as conclusive evidence when the opposing party has the means and opportunity of
disproving the testimony and fails to do so. See Belger v. Sweeny, 836 S.W.2d 752, 754 (Tex.
App.—Houston [P
t Dist.] 1992, writ denied).
To the extent Bartz is contending that Lindauer’s affidavits do not meet the rule’s
requirements for interested witness testimony, this is a complaint about the form of the affidavit, not
its substance. SeeS & IMgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 855 (Tex. App.—Dallas 2011,
no pet.). Similary, Bartz’ s contention that Lindauer’ s affidavits do not identify the sources of her
knowledge is an objection to the affidavit’s form. See Dulong v. Citibank (South Dakota), N.A., 261
S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.). Objections to the form of an affidavit must
have been raised in the trial court and the party offering the affidavit must have had an opportunity
to amend it. See Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex.
App.—Dallas 2011, no pet.). If the party opposing the affidavit did not object to the form of the
affidavit in the trial court, the objection is waived. See id. The record shows that Bartz made no
objections to Lindauer’ s affidavits in the trial court. Therefore, these objections to the affidavit’s
form have been waived. See id. at 371; see also Dulong, 261 S.W.3d at 893.
B artz next contends Lindauer’ s affidavits are conclusory because they do not contain the
necessary facts to support her statements. See Brown v. Brown, 145 S.W.3d 745, 751 (Tex.
App.—Dallas 2004, pet. denied) (conclusory statement does not provide underlying facts to support
conclusion). Conclusory statements in an affidavit will not support a summary judgment. See Rylan
Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Unlike the alleged defects discussed above,
an objection that testimony is conclusory challenges the substance of the testimony rather than its
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form. An objection to a defect in substance may be raised for the first time on appeal. See id,
Bartz points to four statements made by Lindauer that he characterizes as conclusory. Two
of the challenged statements are that l3artz provided Randall with a bad address and that the
constable physically attempted service of the writ of execution. These statements are statements of
fact, not conclusions. Bartz’s argument that these statements are conclusory, therefore, is not well
taken.
The other two statements Bartz challenges as conclusory are that the writ of execution was
properly issued by the district court and that the address provided for the writ was Bartz’s last known
address in August 1999. To the extent these statements could be considered conclusory, Lindauer
provided additional facts to support the conclusions. In addition to stating that the writ of execution
was issued properly, Lindauer testified that the writ was issued at her request, that she delivered it
to the constable’s office, paid the constable’s fee for service, and personally requested that the
constable enforce the writ. With respect to Bartz’ s last known address, Lindauer testified about the
investigation she conducted to determine Bartz’s address including using information from an
investigator and process server, the internet, and phone directories. These facts were sufficient to
support the statements Bartz alleges were conclusory.
Finally, B artz contends that several of the statements made in Lindauer’ s affidavits are either
internally contradictory or controverted by the record. This argument is essentially repeated in
B artz’ s second issue in which he contends that the summaryjudgment based on Lindauer’ s affidavits
was improper because the existence of controverting evidence made Lindauer’ s credibility a fact
issue. A summary judgment may be based on the testimony of an interested witness only so long
as that testimony is uncontroverted. See TEX. R. Civ. P. 166a(c). If the record contains evidence that
contradicts or controverts the interested witness’s testimony, the affidavit is insufficient to sustain
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a summary judgment. See Ballis v. Urban Nat’l Bank, 770 S.W.2d 590, 592 (Tex. App.—Houston
14
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th
Dist.j 1989, no writ).
Bartz’s argument that Lindauer’s affidavits are internally contradictory is a complaint
directed at the form of the affidavit. See S & I Mgmt., 331 S.W.3d at 855. As stated above, to
challenge the form of an affidavit on appeal, a party must first object in the trial court. See id.
Because Bartz did not object to the form of Lindauer’ s affidavit in the trial court below, he cannot
raise this defect on appeal. See id.
Although Bartz also argues that some of Lindauer’s statements are controverted by other
evidence in the summary judgment record, it is largely unclear which specific statements Bartz is
challenging. Bartz contends that the writ of execution does not corroborate Lindauer’ s “factual
claims,” but does not specify which claims are allegedly controverted or unsupported by the writ.
Bartz points to the fact that the writ indicates both that Lindauer provided the constable with an
improper address and that she requested the writ be returned seven days after it was issued. Neither
of these facts controverts Lindauer’ s affidavits. Lindauer’ s affidavits state only that the address she
gave for the writ was Bartz’s last known address at the time, not that it was the correct address.
Lindauer also acknowledges in her affidavits that the writ was returned to her after execution was
unsuccessful.
Bartz contends the writ fails to show any attempt at execution before Lindauer requested that
the writ be returned. Contrary to Bartz’ s contention, however, the writ states that the constable was
“unable to locate” Bartz at the given address indicating he attempted service of the writ before
returning it. Bartz also notes that the writ return was signed by a deputy constable rather than the
official constable of the precinct. Bartz suggests this contradicts Lindauer’ s testimony that she
worked with the actual constable when attempting to have the writ executed. Lindauer states in her
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affidavits that she requested the constable to enforce the writ and that the constable physically
attempted service on Bartz but was unsuccessful. The writ return showing unsuccessful service is
signed by a deputy constable on behalf of the constable as is indicated by the signature “A.B.
Chambers, Constable PCT. #7, Harris County, Texas, By [signaturel Cpl. Nick Barnes, Deputy.”
The fact that a deputy constable signed the writ return and may have performed work on behalf of
the official constable does not contradict Lindauer’ s testimony that she worked with the constable
or that the constable, either personally or through a deputy, physically attempted to serve Bartz.
Bartz also relies on his own affidavit as evidence that allegedly controverts Lindauer’s
testimony. In particular, Bartz relies on his statement that he was never contacted about the default
judgment after it was rendered. Again, Bartz does not specify what statement by Lindauer this
evidence allegedly contradicts. The only statement Lindauer made about Bartz was that he provided
Randall with a bad address. Nothing in Lindauer’s testimony indicates that Bartz provided Randall
with the address after the default judgment was rendered or that he did so in the context of discussing
thejudgment. Accordingly, Bartz’ s testimony does not contradict Lindauer’ s affidavits. Absent any
contradictory or controverting evidence, we conclude Lindauer’ s credibility was not put in issue and
her affidavits were proper summary judgment evidence under rule 166a(c). We resolve Bartz’ s first
two issues against him.
II. Timeliness of the Revival Action
In his third issue, Bartz contends the trial court erred in granting summary judgment on
Randall’s revival request because she failed to show that her action was filed within the time
allowed. Under section 31.006 of the Texas Civil Practice and Remedies Code, a dormantjudgment
may be revived by an action brought no later than the second anniversary of the date that the
judgment becomes dormant. TEx. Civ. PRAC. & REM. CODE ANN. § 31.006 (West 2008). A
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judgment becomes dormant if a writ of execution is not issued within ten years, TEx. CIV, PRAC.
& REM. CODE ANN. § 34.001 (West Supp. 2012). If a writ of execution is issued within ten years,
but a second writ is not issued within ten years after the first writ was issued, the judgment becomes
dormant ten years after the first writ was issued. Id. Bartz argues the evidence fails to show that a
writ of execution was properly issued within ten years of the date the default judgment was rendered
and, therefore, there is no showing that Randall’s revival action, brought more than twenty years
after the judgment was rendered, was timely as a matter of law.
The standard of review for a traditional summary judgment is well settled. We review the
trial court’s ruling de novo to determine whether the moving party has established his right to
judgment as a matter of law. See Carbonara v. Tex. Stadium Corp., 244 S.W.3d 651, 654 (Tex.
App.—Dallas 2008, no pet.). We examine the entire record in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts against the summary
judgment movant, to determine whether the movant has shown that no material fact issues exists.
Id.
As the judgment creditor, Randall had the burden to show that she had a writ of execution
issued for the default judgment within the statutory time period. See Ross v. Am. Radiator &
Standard Sanitary Corp., 507 S.W.2d 806,809 (Tex. App.—Dallas 1974, writ ref’d n.r.e.). To meet
this burden, Randall was required to show that the writ of execution was prepared by the clerk and
delivered to the proper officer for execution. Id. Once the writ is delivered to the officer, a
presumption arises that the officer performed his duty in executing it. See Carpenter v. Probst, 247
S.W.2d 460, 461(Tex. Civ. App.—San Antonio 1952, writ ref’d). This presumption can be rebutted
by a showing that the officer was in any way thwarted or deterred from performing his duty. Id.
In this case, Randall provided evidence to show that the judgment she sought to revive was
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rendered on August 10, 1989. Randall also provided evidence that her attorney, Lindauer, had a writ
of execution for the judgment issued by the Dallas District Clerk on August 6, 1999 and delivered
the writ to the constable’s office for execution on August 10, 1999. Lindauer testified in her
affidavits that she paid the constable’s fee for service of the writ and told the constable to
“vigorously pursue” the writ for collection. This evidence is sufficient to show that Randall had a
writ of execution issued for the default judgment within the time period required by section 34.001
and the judgment did not become dormant until August 6, 2009, ten years after the writ issued.
Randall’s action to revive the judgment was filed on June 18, 2010. Because the revival action was
filed less than two years after the judgment became dormant, the action was filed timely. See TEx.
CIV. PRAC. & REM. CODE ANN. § 31.006.
Bartz argues the evidence is insufficient to show proper issuance of the writ, and consequent
extension of the life of the judgment, because the evidence does not show that Lindauer used
reasonable diligence to locate a correct current address for Bartz at which the writ could be served.
As an example of Lindauer’s alleged lack of diligence, Bartz points to the fact that the address
provided by Lindauer for the writ included an incorrectly spelled street name. The incorrect spelling
was corrected by the constable’s office and the writ return indicates that service was attempted on
Bartz at the correctly spelled address. There is nothing in the evidence to indicate, therefore, that
the incorrect spelling served to thwart or deter the constable from performing his duty.
B artz suggests that once Lindauer was informed that B artz could not be located at the given
address, she had an obligation to continue to search for a correct address rather than requesting that
the writ be returned to her. But, for purposes of extending the life of a judgment, section 34.001
requires only that a writ be issued and delivered to an officer for execution. See Ross, 507 S.W.2d
at 809. Nothing in the statute requires actual service of the writ. See TEX. CIV. PRAC. & REM. CODE
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ANN. § 34.001. The evidence shows that Lindauer made an investigation into Bartz’s last known
address, had a writ of execution issued using that address, and delivered the writ to the constable
with instructions to pursue the writ for collection. Bartz fails to provide any evidence to show that
the constable was in any way prevented from performing his duty. Accordingly we conclude Randall
provided sufficient evidence to show that she met the requirements of section 34.001 and her action
to revive the default judgment against Bartz was filed timely.
We resolve B artz’ s third issue against him. Having resolved all of Bartz’ s issues against him,
we affirm the trial court’s judgment.
JUSTICE
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JUDGMENT
CHRISTOPHER DAVID BARTZ, Appeal from the 14
th
Judicial District Court
Appellant of Dallas County, Texas. (Tr.Ct.No. Cause
No. DC-10-07594).
No. 05-1 1-00836-CV V. Opinion delivered by Justice Evans, Justices
FitzGerald and Fillmore participating.
RITA RANDALL, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellee Rita Randall recover her costs of this appeal from
appellant Christopher David Bartz.
Judgment entered January 29, 2013.
W. EVANS
JUSTICE