Pravin Prasad v. Capital Farm Credit, FLCA ( 2013 )

Opinion issued July 25, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00585-CV
———————————
PRAVIN PRASAD, Appellant
V.
CAPITAL FARM CREDIT, FLCA, Appellee
On Appeal from the 61st District Court
Harris County, Texas
Trial Court Case No. 2011-39660
MEMORANDUM OPINION
Capital Farm Credit, FLCA sued Pravin Prasad to recover amounts owed
under a guaranty agreement and filed a motion for summary judgment, which the
trial court granted. In a single issue on appeal, Prasad contends that the trial court
abused its discretion in denying his second amended motion for new trial and leave
to file a late response to Capital Farm Credit’s summary judgment motion. We
affirm the trial court judgment.
Background
Capital Farm Credit sued Prasad alleging that he entered into an “Agreement
of Guaranty” by which he guaranteed a portion of a promissory note executed by
Dalhart Dairy Investors, LLC. Capital Farm Credit further alleged that the note had
been accelerated and was due and payable, and that Prasad had defaulted in paying
amounts owed under the guaranty agreement to Capital Farm Credit. It sought the
amount due under the guaranty agreement, plus interest at the rate set out in the
note, and attorney’s fees. Prasad, acting pro se, answered, denying the allegations
in Capital Farm Credit’s petition and asserting numerous defenses.
In February 2012, Capital Farm Credit moved for a traditional summary
judgment on its claims against Prasad. In support of its motion, Capital Farm
Credit attached the affidavit of its Vice-President of Special Assets in which she
stated that Prasad had defaulted under the terms of the guaranty agreement and, as
of March 16, 2011, owed $64,573.38, plus interest at the rate of $5.84 per day. She
attached to her affidavit a copy of the promissory note and a copy of the guaranty
executed by Prasad. Capital Farm Credit also supported its motion with its
counsel’s affidavit regarding attorney’s fees. Capital Farm Credit set its motion for
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submission without an oral hearing, and served Prasad with notice of that setting.
Prasad did not respond to the motion.
On April 11, 2012, the trial court signed a final judgment, granting Capital
Farm Credit summary judgment. The trial court awarded Capital Farm Credit
$64,573.38, plus interest from March 16, 2011, at the contract rate of $5.84 per
day, and $4,000 for attorney’s fees against Prasad.
On May 10, Prasad filed his “Amended Motion for New Trial,” asking the
trial court to set aside the judgment and grant a new trial in the interest of justice
because he was not liable to Capital Farm Credit under the guaranty agreement. He
asserted that he did not sign the agreement and attached his affidavit in support of
his motion. Capital Farm Credit responded to Prasad’s motion.
Prasad then filed his “Second Amended Motion for New Trial and/or Motion
for Leave to Late File a Response and Affidavit to a Motion for Summary
Judgment.” In this motion, Prasad asserted that his failure to respond to Capital
Farm Credit’s motion for summary judgment was not intentional or the result of
conscious indifference but resulted from accident or mistake. He further asserted
that he had a meritorious defense, and that granting the motion would not cause
undue delay or otherwise injure Capital Farm Credit. He asked the court to set
aside the summary judgment, to grant a new trial or allow him to file a late
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response to the summary judgment motion, and to consider his affidavit, attached
in support of his motion, as “late summary judgment evidence.”
The trial court signed its order denying Prasad’s Amended Motion for New
Trial on June 6. This appeal followed.
Denial of Prasad’s Second Amended Motion for New Trial
On appeal, Prasad challenges the denial of his “Second Amended Motion for
New Trial and/or Motion for Leave to Late File a Response.” We understand
Prasad to contend that the trial court erred in denying a new trial on the grounds
asserted in that second amended motion—that he was entitled to a new trial under
the standard set out in Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex.
1939). On appeal he asserts that the Craddock standard applies to a request to set
aside a summary judgment when no response has been filed and “the non-movant
does not realize his lack of a response will preclude arguing the summary judgment
should be denied in time to seek a continuance or leave to file his Response before
the summary judgment hearing.” 1 We do not understand Prasad to complain of the
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Craddock “does not apply to a motion for new trial filed after judgment has been
granted on a summary-judgment motion to which the nonmovant failed to timely
respond when the movant had an opportunity to seek a continuance or obtain
permission to file a late response.” Carpenter v. Cimarron Hydrocarbons Corp.,
98 S.W.3d 682, 686 (Tex. 2002); see Wheeler v. Green, 157 S.W.3d 439, 442
(“[T]he equitable 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.”). In his second amended motion for new trial, Prasad
asserted that he was pro se and “did not understand what to do or how to do it.” In
his supporting affidavit, he states that when served with the summary judgment
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trial court’s denial of his Amended Motion for New Trial or a failure to allow him
leave to file a late summary judgment response.
We conclude that Prasad’s complaint regarding the denial of his second
amended motion for new trial does not present an issue for our review. Prasad filed
a motion for new trial, titled “Amended Motion for New Trial” on May 10, within
thirty days of the trial court’s April 11 judgment. See TEX. R. CIV. P. 329b(a)
(providing that motion for new trial shall be filed within thirty days after
judgment). After Capital Farm Credit responded to his motion, Prasad filed his
“Second Amended Motion for New Trial and/or Motion for Leave to Late File a
Response and Affidavit to Motion for Summary Judgment.” This amended motion
for new trial, however, was filed on May 21, more than thirty days after the
judgment. 2
Under rule 329b(b), an amended motion for new trial may be filed without
leave of court before any preceding motion for new trial is overruled and “within
thirty days after the judgment or other order complained of is signed.” TEX. R. CIV.
motion he did not know what to do and “attempted to prepare and file a response”
but “never got it filed with the court or served on Plaintiff’s attorney.”
2
Prasad’s brief states that he filed his second amended motion on May 12, 2012.
The Clerk’s Record shows that the motion was filed on May 21, 2012. An
amended motion for new trial filed on May 12 would have been filed more than
thirty days after the trial court signed the summary judgment and would have been
untimely.
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P. 329b(b). An amended motion for new trial filed more than thirty days after the
trial court signed its judgment is untimely. Low v. Henry, 221 S.W.3d 609, 619
(Tex. 2007) (citing Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003)).
In its discretion, a trial court may consider the grounds raised in an untimely
motion and grant a new trial under its inherent authority. Moritz, 121 S.W.3d at
720. The only purpose of an untimely motion for new trial is to guide the trial court
in the exercise of its inherent authority; the motion “is a nullity for purposes of
preserving issues for appellate review.” Id. (citing Kalteyer v. Sneed, 837 S.W.2d
848, 851 (Tex. App.—Austin 1992, no writ)). An untimely amended motion for
new trial “does not preserve issues for appellate review, even if the trial court
considers and denies the untimely motion within its plenary power period.” Moritz,
121 S.W.3d at 721.
Even if the trial court considered the grounds that Prasad set out in the
second amended motion for a new trial, we may not consider Prasad’s contention
that the trial court abused its discretion in denying a new trial based on those
grounds. See Moritz, 121 S.W.3d at 721 (concluding that court of appeals erred in
considering appellant’s contention that trial court abused its discretion in denying
untimely amended motion for new trial); see also Henderson v. Henderson, No.
03-10-00531-CV, 2011 WL 2768549, at *4 (Tex. App.—Austin July 13, 2011, pet.
struck) (mem. op.) (citing Kalteyer, 837 S.W.2d at 851) (concluding that trial court
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did not have to consider contents of untimely amended and supplemental motions
for new trial); Noshari v. Sw. Serv. Ctr., Ltd., No. 14-02-00878-CV, 2004 WL
210370, at *2 (Tex. App.—Houston [14th Dist.] Feb. 5, 2004, no pet.) (mem. op.)
(citing Moritz, 121 S.W.3d at 720–21) (“If a motion for new trial is filed more than
thirty days after the trial court signs a final judgment, however, it is untimely and
cannot form the basis of an appellate complaint.”). Prasad’s complaint regarding
the denial of a new trial based on the grounds asserted in his second amended
motion for new trial presents nothing for appellate review because the motion was
untimely.
Grant of Summary Judgment
Within his single issue on appeal, Prasad sets out a standard of review for
grant of a traditional summary judgment and states that the standard applies even if
he filed no response to Capital Farm Credit’s summary judgment motion because
“there is no such thing as a ‘default summary judgment’” and Capital Farm Credit
“must prove itself entitled to the judgment it received as a matter of law.” Prasad is
correct. See Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (citing
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999)). Because the
movant for traditional summary judgment must establish that no material fact issue
exists and that it is entitled to judgment as a matter of law, the nonmovant has no
burden to respond to the motion unless the movant conclusively establishes its
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cause of action or defense. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28
S.W.3d 22, 23 (Tex. 2000); Grace v. Titanium Electrode Prods., Inc., 227 S.W.3d
293, 297 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Because a summary
judgment motion must stand on its own merits, the nonmovant may argue on
appeal that the movant’s summary judgment proof is insufficient as a matter of
law. Grace, 227 S.W.3d at 297 (citing Willrich, 28 S.W.3d at 23 and Rizkallah v.
Conner, 952 S.W.2d 580, 582 (Tex. App.—Houston [1st Dist.] 1997, no pet.)).
Prasad does not identify any deficiencies in Capital Farm Credit’s summary
judgment motion or proof. Prasad’s brief provides no substantive discussion of the
issue he raises or citation to any summary judgment proof to support a contention
that Capital Farm Credit did not establish its right to summary judgment as a
matter of law. Accordingly, we conclude that Prasad has waived any challenge to
the trial court’s grant of summary judgment for Capital Farm Credit. See TEX. R.
APP. P. 38.1(i); Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex.
App.—Houston [1st Dist.] 2005, no pet.).
We overrule Prasad’s issue on appeal.
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Conclusion
Having overruled Prasad’s issue on appeal, we affirm the trial court
judgment.
Harvey Brown
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
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