Alfredo Miguel Couturier, Jorge Miguel Couturier and Jorge Miguel Bojalil v. Texas State Bank ( 2005 )

                             NUMBER 13-03-00013-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

ALFREDO MIGUEL COUTURIER,

JORGE MIGUEL COUTURIER, AND

JORGE MIGUEL BOJALIL,                                                            Appellants,

                                                             v.

TEXAS STATE BANK,                                                                       Appellee.

     On appeal from the 93rd District Court of Hidalgo County, Texas.

                       MEMORANDUM OPINION

                Before Justices Hinojosa, Yañez, and Castillo

                         Memorandum Opinion by Justice Hinojosa

Appellee, Texas State Bank (ATSB@), brought suit against appellants, Alfredo Miguel Couturier, Jorge Miguel Couturier, and Jorge Miguel Bojalil, to collect on three promissory notes and corresponding guaranties.  The parties settled one note and corresponding guaranty, and TSB filed a motion for summary judgment for the two remaining notes and corresponding guaranties. The trial court granted the motion, and this appeal ensued.  In three issues, appellants contend the trial court erred in granting TSB=s motion for summary judgment and in denying their motion for continuance of the summary judgment hearing.  We affirm.

Because the issues of law presented by this case are well settled and the parties are familiar with the facts, we will not recite the law and facts in this opinion except as necessary to advise the parties of the Court=s decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

A.  Sufficiency of the Evidence

In their first issue, appellants contend there is insufficient evidence to support the trial court=s order granting TSB=s traditional motion for summary judgment.  Specifically, appellants assert that TSB failed to (1) establish that it is the holder and owner of the notes, and (2) provide the court with a copy of the notes in an appropriate form.

The standard of review for a traditional motion for summary judgment  is well settled.  See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.BCorpus Christi 2002, no pet.).

To collect on a promissory note, the holder or payee need only establish that (1) there is a note, (2) it is the legal owner and holder of the note, (3) the defendant is the maker of the note, and (4) a certain balance is due and owing on the note.  See Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.BHouston [14th Dist.] 1994, no writ); Resolution Trust Corp. v. Thurlow, 820 S.W.2d 51, 52 (Tex. App.BSan Antonio 1991, no writ).  Thus, TSB was required to prove by summary judgment evidence that it is the present legal owner and holder of the note sued upon.  See Blankenship, 899 S.W.2d at 238; Schindler v. AG Aero Distrib., Inc., 502 S.W.2d 581, 585 (Tex. Civ. App.BCorpus Christi 1973, no writ).

In support of its motion for summary judgment, TSB attached the following summary judgment evidence: (1) a business-records affidavit from TSB Executive Vice-President Robert Norman; (2) copies of the promissory notes at issue; and (3) copies of their corresponding guaranties.  In the affidavit, Norman states that the notes and guaranties evidenced by the copies attached are Anow held by [TSB].@ 

The promissory notes show that appellants signed one note with First State Bank & Trust (AFSB@) and the second note with Border Bank (ABB@).  In the affidavit, Norman states that through merger, TSB succeeded to all rights, title, and interest of both FSB and BB. Appellants argue that TSB was required to present proof that FSB and BB transferred the notes to TSB.  However, when a merger takes effect, all rights, title, and interest to all property vests in the surviving entity Awithout further act or deed, and without any transfer or assignment having occurred.@  Tex. Bus. Corp. Act Ann. art. 5.06 ' A(2) (Vernon Supp. 2004-05).  Appellants do not challenge the statements in Norman=s affidavit regarding the merger, nor do they present any controverting evidence. We conclude that the summary judgment evidence is sufficient to show that title vested in TSB and no additional evidence is necessary.

Furthermore, the summary judgment evidence is sufficient to establish that TSB is the legal owner and holder of the notes.  See Tex. Nat=l Corp. v. United Sys. Int=l, Inc., 493 S.W.2d 738, 741 (Tex. 1973); Tex. R. Civ. P. 166a(f); see also Williams v. Bank One, N.A., 15 S.W.3d 110, 112 (Tex. App.BWaco 1999, no pet.) (noting that Bank One sufficiently proved up note by attaching business‑records affidavit with copy of note appended); Batis v. Taylor Made Fats, Inc., 626 S.W.2d 605, 607 (Tex. App.BFort Worth 1981, writ ref=d n.r.e.) (finding affidavit of custodian of business records sufficient summary judgment evidence).

Accordingly, we conclude that the summary judgment evidence presented by TSB is sufficient as a matter of law to establish TSB=s right to collect on the promissory notes. Appellants= first issue is overruled. 

B.  Affirmative Defense

In their second issue, appellants complain that the trial court erred in granting TSB=s motion for summary judgment because their affirmative defense of limitations was properly before the court and sufficient to create a fact issue.  Appellants assert they raised their limitations defense in their First Amended Answer, which was offered for filing on October 10, 2002, the date of the summary judgment hearing.

A summary judgment proceeding is a trial within the meaning of rule 63 of the Texas Rules of Civil Procedure.  See Tex. R. Civ. P. 63; Goswami v. Metro. Sav. & Loan Ass=n, 751 S.W.2d 487, 490 (Tex. 1988). Limitations is an affirmative defense that must be specifically pleaded, or it is waived.  Tex. R. Civ. P. 94; Land Title Co. v. F. M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex. 1980); Wun‑Yi Tsai v. Wells, 725 S.W.2d 271, 275 (Tex. App.BCorpus Christi 1986, no writ).

TSB argues that appellants= limitations defense was not properly before the court because appellants did not seek leave to file their amended answer within seven days of the hearing, and the trial court did not consider it.  See Tex. R. Civ. P. 63; Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 876 (Tex. App.BAustin 2001, pet. denied) (determining that where trial court did not consider amended pleading and leave to file was not requested, amended pleading was not timely filed and appellate court would not conclude that leave should have been granted); Guereque v. Thompson, 953 S.W.2d 458, 463-64 (Tex. App.BEl Paso 1997, pet. denied) (same); cf. Goswami, 751 S.W.2d at 490 (holding that where record Ais silent of any basis to conclude that the amended petition was not considered by the trial court . . . leave of court is presumed.@).

Assuming, without deciding, that appellants= affirmative defense was properly before the trial court, we conclude that it is nevertheless insufficient to defeat TSB=s motion for summary judgment.  Where, as here, a movant has presented evidence sufficient to establish his right to summary judgment as a matter of law, a non-movant must present enough evidence to create an issue of fact in regard to his affirmative defense in order to defeat that summary judgment.  Nichols v. Smith, 507 S.W.2d 518, 520 (Tex. 1974); Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 728 (Tex. App.BCorpus Christi 1994, writ denied).

Appellants= amended answer stated, A[e]ven if the Plaintiff proves the allegations in its petition, the Defendants are not liable to the Plaintiff because . . . Plaintiff=s claims are barred by the Statute of Limitations.@ Appellants did not allege any facts in support of their defense, nor did they present any evidence or affidavits. A[T]he pleading of an affirmative defense will not, in itself, defeat a motion for summary judgment by a plaintiff whose proof conclusively establishes his right to an instructed verdict if no proof were offered by his adversary in a conventional trial on the merits.@  Nichols, 507 S.W.2d at 520.  A pleading does not constitute summary judgment proof.  Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (citing Hidalgo v. Sur. Sav. & Loan Ass'n., 462 S.W.2d 540 (Tex. 1971)).

            Because appellants did no more than allege the affirmative defense of limitations in their answer,^[1] we conclude that appellants did not raise a fact issue to defeat TSB=s motion for summary judgment.  Appellants= second issue is overruled. 

C.  Motion for Continuance

In their third issue, appellants contend the trial court erred in denying their motion for continuance.  A trial court may grant a continuance of a summary judgment hearing to allow the party opposing the motion more time to conduct discovery when it appears from the affidavits that Ahe cannot for reasons stated present by affidavit facts essential to justify his opposition.@  Tex. R. Civ. P. 166a(g); Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 685 (Tex. 2002).  The decision to grant or deny a motion for continuance rests within the sound discretion of the trial court, and we will not disturb that decision on appeal unless the record discloses a clear abuse of discretion.  State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988) (citing Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986)); Clemons v. Citizens Med. Ctr., 54 S.W.3d 463, 468-69 (Tex. App.BCorpus Christi 2001, no pet.).

To request a continuance, a party must file either a verified motion or an affidavit explaining the need for further discovery.  Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).  No motion for continuance shall be granted Aexcept for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@  Tex. R. Civ. P. 251; Rosedale Partners, Ltd. v. Resolution Trust Corp., 882 S.W.2d 622, 630 (Tex. App.BCorpus Christi 1994, writ denied).   AGenerally, a court is presumed to have correctly exercised its discretion when it denies a motion that does not comply with the rules governing continuances.@  Rosedale Partners, 882 S.W.2d at 630.

In this case, the parties did not consent to a continuance nor was there any basis under operation of law.  Appellants filed a motion for continuance on October 1, 2002, asserting that they had Anot had an opportunity to engage adequate discovery to determine the facts surrounding [TSB=s] claims and to evaluate the merit of those claims and assert proper defenses.@ Appellant=s counsel signed a verification which stated:  Athe facts set out in the foregoing Motion for Continuance are true and correct to the best of my information and belief.@

AAn affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge is legally insufficient.@  Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (citing Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)); see also N. P. Davis & Co. v. Campbell & Clough, 35 Tex. 779, 781 (1872) (affidavits must be made to actual knowledge of the facts, Anot to the best of the knowledge and belief@ of the affiant); Caperton v. Wanslow, 18 Tex. 125, 133 (1856) (finding affidavit based on Ainformation and belief of the party@ manifestly insufficient).

We conclude that the verification based upon appellants= counsel=s Ainformation and belief@ is insufficient to support the motion for continuance.  See Hawthorne v. Guenther, 917 S.W.2d 924, 929‑30 (Tex. App.BBeaumont 1996, writ denied) (finding verification based upon "knowledge and belief" rather than upon personal knowledge insufficient to support motion for continuance); Bray v. Miller, 397 S.W.2d 103, 106 (Tex. Civ. App.BDallas 1965, no writ) (finding statement made on information and belief does not constitute affidavit that will support motion for continuance).

Because appellants= motion for continuance does not comply with the requirements established for seeking a continuance, see Tex. R. Civ. P. 166a(g) and Tenneco, 925 S.W.2d at 647, we conclude the trial court did not abuse its discretion in denying the motion.  Appellants= third issue is overruled. 

The trial court=s order granting appellee=s motion for summary judgment is affirmed. 

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 18th day of August, 2005.

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^[1] On appeal, appellants assert the trial court had before it all the facts necessary to support their defense of limitations because the court took judicial notice of the court file, including the docket sheet.  However, A[a] docket entry forms no part of the record which may be considered; it is a memorandum made for the trial court and clerk's convenience.@  Aguirre v. Phillips Props., 111 S.W.3d 328, 333 (Tex. App.BCorpus Christi 2003, pet. denied).  While docket entries may be used to supply facts in certain situations to correct clerical errors in judgments or orders, they Aremain inherently unreliable because they lack the formality of orders and judgments.@  Energo Int=l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 n.2 (Tex. App.BDallas 1986, no writ) (discussing N‑S‑W Corp. v. Snell, 561 S.W.2d 798, 799 (Tex. 1977)); see generally Guyot v. Guyot, 3 S.W.3d 243, 246-48 (Tex. App.BFort Worth 1999, no pet.); cf. Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 129 (Tex. App.BDallas 1994, no writ) (holding that properly authenticated docket sheets served with affidavits were proper summary judgment proof where affidavits relied in part on the docket sheets to show that no extraordinary writs or other process had been issued, and the affidavits also contained statements based on affiant=s involvement in and personal knowledge of the suit).