M. J. Schroeder A/K/A Mike J. Schroeder v. Verex Assurance, Inc. ( 1994 )

SCHROEDER IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-590-CV





M. J. SCHROEDER a/k/a MIKE J. SCHROEDER,

APPELLANT

vs.





VEREX ASSURANCE, INC.,

APPELLEE

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. 212,805, HONORABLE STEVE RUSSELL, JUDGE PRESIDING

Verex Assurance, Inc., appellee, sued M. J. Schroeder, appellant, on a promissory note made by Schroeder and held by Verex. The trial court granted summary judgment for Verex. Schroeder appeals, contending that a genuine issue of material fact remains regarding the amount of his debt. We will affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts were established by the summary-judgment evidence. In March 1983 Schroeder signed a promissory note payable to McLean Financial Corporation in the amount of $74,900 and granted McLean Financial a security interest in certain real property. McLean Financial assigned the note to McLean Savings and Loan Association, which in turn assigned it to the Federal National Mortgage Association ("FNMA"). Schroeder subsequently defaulted on the note, and in 1988 FNMA foreclosed on its security interest and sold the collateral. The proceeds from the foreclosure sale were insufficient to cover the outstanding balance on the note, thus leaving a deficiency balance. In February 1992 FNMA assigned the note to Verex.

In May 1992 Verex sued Schroeder on the note deficiency and thereafter filed a motion for summary judgment. The evidence supporting Verex's motion consisted primarily of an affidavit in which Linda T. Smithers, an officer of Verex, swore to the outstanding balance on the note. Schroeder objected to this affidavit and moved to strike it on the ground that the affiant's statements regarding the balance due were based on inadmissible hearsay and constituted mere conclusions. The trial court granted Verex's motion for summary judgment. The appellate record does not indicate that the trial court ever ruled on Schroeder's objection and motion to strike.

DISCUSSION

The standards for reviewing a summary judgment are well established: (1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; (3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). The issue here is whether Verex produced sufficient evidence to preclude any genuine issue of material fact regarding the amount of Schroeder's debt.

In point of error one, Schroeder complains that the summary judgment was improper because Smithers's affidavit is based on inadmissible hearsay. In point of error two, he complains that the affidavit is conclusory. In his third and last point of error, he complains that the affidavit does not show Smithers to be competent to testify to the facts set forth therein. Thus, Schroeder's appeal challenges only the competency of Smithers's affidavit.

The summary judgment evidence of the outstanding balance on the note consists entirely of Smithers's affidavit, which states in pertinent part:

My name is Linda T. Smithers. I am Assistant Vice President of VEREX ASSURANCE, INC., Plaintiff in the above-entitled and numbered lawsuit. I am of sound mind and capable of making this Affidavit. I am responsible for supervising, monitoring and overseeing Verex's deficiency collections in Texas, and, in connection therewith, I am familiar with the various foreclosure documents which comprise the files Verex maintains for each borrower. As such, I am personally acquainted with the facts herein stated. . . . As of the date of foreclosure, the unpaid principal balance was $76,145.69. Through the date of foreclosure, the accrued but unpaid interest, together with the costs and expenses of the sale, was in the aggregate amount of $4,074.82. Therefore, the total amount of principal and accrued but unpaid interest and sale expenses which were due and owing through the date of foreclosure was $80,220.51. The property sold for a bid price of $63,803.95 at the foreclosure sale, leaving a total deficiency amount of $16,416.56.

In response to Verex's motion, Schroeder submitted an unsworn "controverting motion for summary judgment and motion to strike," which stated in pertinent part:

The affidavit of Linda T. Smithers, an Assistant Vice President of Verex Assurance, Inc. has to be based on hearsay as to the amount of the expenses of foreclosure and as to the amount owed on the note at the time of foreclosure in that she could have no independent knowledge of such fact since the note was assigned to VEREX ASSURANCE, INC. on January 28, 1993 which, based upon the records, shows that there is a note in the original principal sum of $74,900.00 executed in 1983 which was foreclosed on June 28, 1988. There is no information as to how far behind the note was, no information as to the principal and interest that was charged or owed, and no information as to the status of the note at the time of the foreclosure. The information furnished shows that the property was foreclosed upon for a price of $63,803.95 but to come up with a deficiency judgment, there needs to be an affidavit by a person with knowledge that can swear as to the amount that was due and owing at the time of the foreclosure. . . .

As all of the facts contained in the Affidavit of Linda T. Smithers are hearsay, Defendant states that said Affidavit should be stricken.

We consider this "motion" to raise objections that the statements in Smithers's affidavit regarding the balance due were inadmissible, both as hearsay and as conclusions. An affidavit supporting a motion for summary judgment must set forth facts that would be admissible in evidence. Tex. R. Civ. P. 166a(f). Whether the pleading is considered as a motion or simply as an objection to Verex's summary-judgment evidence, however, there is no indication in the record that the trial court ever ruled on it.

It is now well settled that a party objecting to summary-judgment evidence must, in order to preserve his complaint for appellate review, obtain a ruling on his objection, and the ruling must be reduced to writing, signed, and entered of record. See Tex. R. App. P. 52(a); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n.7 (Tex. 1993); Roberts v. Friendswood Dev. Co., No. 01-93-492-CV, slip op. at 3 (Tex. App.Houston [1st Dist.] Aug. 31, 1994, writ requested); Banowsky v. State Farm Mut. Auto. Ins. Co., 876 S.W.2d 509, 513 (Tex. App.Amarillo 1994, no writ); Fox Elec. Co. v. Tone Guard Sec., Inc., 861 S.W.2d 79, 81 (Tex. App.Fort Worth 1993, no writ); Eads v. American Bank, N.A., 843 S.W.2d 208, 211 (Tex. App.Waco 1992, no writ); Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d 25, 29 (Tex. App.Dallas 1992, no writ); Hopkins v. Highlands Ins. Co., 838 S.W.2d 819, 822 (Tex. App.El Paso 1992, no writ); Sem v. State, 821 S.W.2d 411, 414 (Tex. App.Fort Worth 1991, no writ); Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 722-23 (Tex. App.Dallas 1988, no writ). Schroeder failed to secure a ruling on his objections to Smithers's affidavit. Accordingly, we conclude that Schroeder waived his complaints about the affidavit.

In any event, even if Schroeder had preserved his complaints, we would conclude that Smithers's affidavit is competent summary-judgment evidence and is adequate to support the summary judgment in the absence of controverting evidence from Schroeder. See Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d at 28-29; Waite v. BancTexas--Houston, N.A., 792 S.W.2d 538, 540 (Tex. App.Houston [1st Dist.] 1990, no writ); American 10-Minute Oil Change, Inc. v. Metropolitan Nat'l Bank--Farmers Branch, 783 S.W.2d 598, 601 (Tex. App.Dallas 1989, no writ); Shumway v. Horizon Creditcorp, 768 S.W.2d 387, 388 (Tex. App.Houston [1st Dist.] 1989), rev'd on other grounds, 801 S.W.2d 890 (Tex. 1991); 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 719-20 (Tex. App.Houston [14th Dist.] 1986, writ ref'd n.r.e.); Sparks v. Cameron Employees Credit Union, 678 S.W.2d 600, 602-03 (Tex. App.Houston [14th Dist.] 1984, no writ); Jackson T. Fulgham Co. v. Stewart Title Guar. Co., 649 S.W.2d 128, 130 (Tex. App.Dallas 1983, writ ref'd n.r.e.); Ecurie Cerveza Racing Team, Inc. v. Texas Commerce Bank--Southeast, 633 S.W.2d 574, 575 (Tex. App.Houston [14th Dist.] 1982, no writ); Sharpe v. Lomas & Nettleton Fin. Corp., 601 S.W.2d 55, 57 (Tex. Civ. App.Dallas 1980, writ ref'd n.r.e.).

CONCLUSION

We overrule Schroeder's points of error and affirm the judgment of the trial court.

J. Woodfin Jones, Justice

Before Chief Justice Carroll, Justices Jones and Kidd

Affirmed

Filed: December 7, 1994

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