Timothy Hosack v. Citibank (South Dakota), N.A. ( 2006 )

OPINION HEADING PER CUR

                NO. 12-05-00173-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TIMOTHY HOSACK,           §          APPEAL FROM THE

APPELLANT

V.        §          COUNTY COURT AT LAW OF

CITIBANK (SOUTH DAKOTA), N.A.,

APPELLEE   §          ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION

            Timothy Hosack appeals a summary judgment awarding money damages to Appellee, Citibank (South Dakota), N.A. (Citibank).  Hosack presents fifteen issues on appeal regarding service of citation, jurisdiction, venue, the granting of the summary judgment, due process, and a plea in intervention.  We affirm.

Background

            Hosack obtained a credit card from Citibank and used the card to make purchases.  He did  not make payments as required by the terms of his agreement with Citibank.  The total balance due on Hosack’s credit card account was $15,403.73, according to the verified statement of account filed with Citibank’s original petition and motion for summary judgment.  In response to the lawsuit, Hosack filed a document entitled “Defendant’s General Denial and Express Refutation of Plaintiff’s Original Petition.”  Citibank filed a traditional motion for summary judgment.  See Tex. R. Civ. P.  166a(c). Hosack did not file a response to this motion for summary judgment.  However, Hosack’s father, Charles R. Hosack (hereinafter referred to as “father”) filed a plea in intervention in this case.  The father also filed an “Intervenor’s Procedural and Factual Objections to Plaintiff’s Motion for Summary Judgment as a Matter of Law.”  The court sent a notice to Citibank, Hosack, and the father setting the motion for summary judgment and plea of intervention for a telephonic hearing on February 22, 2005. 

            The trial court began the February 22 hearing by considering the father’s pleading in intervention.  The father indicated his primary reason for filing the plea in intervention was so that he could represent Hosack, his son, in this lawsuit.  A further reason the father gave for intervening in this matter was that his credit had been adversely affected.  The trial court denied the father’s plea in intervention and proceeded to grant a judgment in favor of Citibank for $15,403.73 along with attorney’s fees, court costs, and postjudgment interest at the rate of five percent per annum.  Hosack filed a motion for new trial, which was denied by operation of law.  Hosack timely filed this appeal.  His father did not appeal the denial of his plea in intervention.

Service of Citation

            In his first and sixth issues, Hosack contends that he was not properly served with citation. Deputy Sheriff Keith Session of Anderson County, Texas showed on his officer’s return of citation that Hosack had been served in Palestine by serving his father.  However, the filing of an answer dispenses with the necessity of service of citation.  Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1999).  Any problem with the service of citation in this case was resolved by Hosack’s written general denial.  Hosack’s issues one and six are overruled. 

Jurisdiction

            In his second, third, and ninth issues, Hosack contends that the trial court did not have jurisdiction in this case because he was living and working outside the State of Texas during the pendency of this lawsuit.  To challenge the personal jurisdiction of a court, a party must file a special appearance with the trial court.  See Tex. R. Civ. P. 120a.  Special appearances must be made by “sworn motion.”  Tex. R. Civ. P. 120a(1); see also Casino Magic Group v. King, 43 S.W.3d 14, 18 (Tex. App.–Dallas 2001, pet. denied) (op. on reh’g).  In the first paragraph of Hosack’s “General Denial and Express Refutation of Plaintiff’s Original Petition,” he uses language that could be interpreted as a special appearance.  However, this document was unsworn.  If Hosack intended the first paragraph of this document to be considered a special appearance, the trial judge did not err in not considering it as such because it was not “sworn” or “verified” as required by rule 120a.  See King, 43 S.W.3d at 18.  We overrule Hosack’s second, third, and ninth issues. 

Venue

            In his fourth issue, Hosack contends that venue was improper in Anderson County, Texas.  The general venue rule in Texas is that a lawsuit shall be brought in the county of a defendant’s residence at the time the cause of action accrued if the defendant is a natural person.  See Tex. Civ. Prac. & Rem. Code Ann.§15.002 (Vernon 2002).  The plaintiff is given the first choice of venue in the filing of the lawsuit.  Wilson v. Texas Parks and Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994).  If the plaintiff’s venue choice is not properly challenged through a motion to transfer, the propriety of venue is fixed in the county chosen by the plaintiff.  Northern Natural Gas Co. v. Chisos Joint Venture I, 142 S.W.3d 447, 451 (Tex. App.–El Paso 2004, no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 15.063 (Vernon 2002); Tex. R. Civ. P. 86.1.  The issue of venue is not raised if it is not properly challenged.  See Tex. R. Civ. P. 86; Wilson, 886 S.W.2d at 260.

            Here, Hosack never filed a motion to challenge venue of Citibank’s lawsuit.  Therefore, Hosack did not properly challenge venue in Anderson County, Texas.  Hosack’s fourth issue is overruled.

Summary Judgment

            In his fifth issue, Hosack contends that the trial court improperly granted Citibank’s motion for summary judgment.  He argues that the court’s case file contained his defenses and exculpatory information sufficient to offset Citibank’s allegations and complains that the trial court ignored this information.

            To prevail on a traditional summary judgment motion, a movant must show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).  We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).  We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof.  See Gulbenkian v. Penn, 151 Tex. 412, 417, 252 S.W.2d 929, 932 (Tex. 1952). The only question is whether or not an issue of material fact is presented.  See Tex. R. Civ. P. 166a(c); see also American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994) (to defeat a summary judgment, a party must present sufficient summary judgment evidence to raise a fact issue). 

            Summary judgment based on the uncontroverted affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.  Tex. R. Civ. P. 166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997). The phrase “could have been readily controverted” does not mean that the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates that the testimony could have been effectively countered by opposing evidence.  Id.  A trial court’s only duty at the summary judgment stage is to determine if a material question of fact exists.  Huckabee v. Time Warner Entm’t Co., L.P., 19 S.W.3d 413, 422 (Tex. 2000).

            Citibank attached an affidavit to its motion for summary judgment establishing  that Hosack owed it $15,403.73.  Because he did not file a response, Hosack did not contradict Citibank’s evidence and therefore failed to raise a fact issue.  See Allen, 887 S.W.2d at 830.  The trial court did not err by granting Citibank’s motion for summary judgment.  Hosack’s fifth issue is overruled. 

Due Process

            In his twelfth, thirteenth, fourteenth, and fifteenth issues, Hosack argues that the trial court violated his constitutional right to due process during the course of  the proceedings.  Hosack contends that he did not have actual notice of the summary judgment hearing and that it was improper for the trial court to hold such hearing by telephone. 

            Actual notice is not and has never been the standard for determining whether due process has been afforded a litigant.  Withrow v. Schou, 13 S.W.3d 37, 40 (Tex. App.–Houston [14th Dist.] 1999, pet. denied).  Due process only requires giving notice that is reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections.  Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75 (1988).  In the instant case, Hosack had been mailed notice of the summary judgment hearing at the mailing address that was on his Citibank account and at which he had been served the original petition.  In his answer, Hosack failed to give an address.  Texas Rule of Civil Procedure 21a sets up a presumption that when notice of trial setting, properly addressed and postage prepaid, is mailed, the notice was duly received by the addressee.  Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex. 1987).  This presumption may be rebutted by an offer of proof of nonreceipt.  Id.  In the absence of evidence to the contrary, the presumption has the force of a rule of law. Id.  Hosack presented no evidence to the trial court that he did not receive Citibank’s motion for summary judgment with a notice of hearing on the motion sent to him by the Anderson County clerk’s office. Therefore, as a rule of law, we must presume that he received notice of the summary judgment and the setting of the hearing for the motion for summary judgment.  See Tex. R. Civ. P. 21a; see also Cliff, 724 S.W.2d at 780.

            Hosack further contends that it was improper for the trial court to hold the summary judgment hearing by telephone.  Texas Rule of Civil Procedure 166a(c) provides that “no oral testimony shall be received” on a motion for summary judgment.  Tex. R. Civ. P. 166a(c). A hearing on a motion for summary judgment is purely one of law.  Cronen v. Nix, 611 S.W.2d 651, 652 (Tex. App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.).  The trial court must decide the merits of the motion based on the pleadings, discovery responses, stipulations, and any sworn affidavits.  Tex. R. Civ. P. 166a(c); Cronen, 611 S.W.2d at 652.   Hosack had the opportunity to file a written response to Citibank’s summary judgment motion and to argue legal issues on that motion.  This is all that due process requires.  See Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950).  Hosack’s issues twelve, thirteen, fourteen, and fifteen are overruled. 

Plea in Intervention

            In his seventh, eighth, tenth, and eleventh issues, Hosack contends that the trial court erred in denying the plea in intervention filed by his father.  Hosack contends that if the trial court had granted his father’s plea in intervention, he would have had legal representation.  Hosack further contends that the trial court’s failure to allow his father’s intervention also negatively affected his father’s credit because his father was secondarily liable on his Citibank credit card.

            At the hearing on his plea of intervention, Hosack’s father represented to the trial court that he had once been a licensed Texas attorney but had not been licensed for seven years.  Courts have the inherent power to inquire into the qualifications of those persons practicing law therein.  Magaha v. Holmes, 886 S.W.2d 447, 448 (Tex. App.–Houston [1st Dist.] 1994, orig. proceeding).  This power is essential to the fair administration of justice and an orderly discharge of the judicial function.  Id.  Only those persons who are members of the Texas state bar may practice law in Texas. Tex. Gov’t Code Ann. § 81.102(a) (Vernon 2005); Jimison by Parker v. Mann, 957 S.W.2d 860, 861 (Tex. App.–Amarillo 1997, no writ).  It is not an abuse of a trial court’s discretion to refuse to allow a father who is not licensed to practice law to represent his son in court.  See Magaha, 886 S.W.2d at 448.  It was therefore proper for the trial court to deny the father’s plea in intervention in Hosack’s lawsuit, which was an attempt to provide his son improper legal representation. 

            Hosack also contends that his father’s plea in intervention should have been granted because this lawsuit by Citibank affected his father’s credit rating.  An appealing party may not complain of errors that do not injuriously affect him or that merely affect the rights of others.  Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000).  A party’s personal interest must be prejudiced before he has standing to appeal an issue.  See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex. 1984).  In the instant case, Hosack’s father’s credit rating is not an issue that is personal to Hosack. We hold Hosack does not have standing to appeal the denial of his father’s plea in intervention.  Hosack’s issues seven, eight, ten, and eleven are overruled. 

Disposition  

            Having overruled Hosack’s fifteen issues, the judgment of the trial court is affirmed.

                                                                                                     JAMES T. WORTHEN   

                                                                                                                 Chief Justice

Opinion delivered April 5, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)