Raymond Montes v. Rudolfo Buentello Montes ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00474-CV
Raymond MONTES,
Appellant
v.
Rudolfo Buentello MONTES,
Appellee
From the 454th Judicial District Court, Medina County, Texas
Trial Court No. 19-03-25678-CV
Honorable Daniel J. Kindred, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Lori I. Valenzuela, Justice
Delivered and Filed: July 28, 2021
AFFIRMED
Raymond Montes appeals the take nothing summary judgment rendered against him in his
suit for debt against Rudolfo Buentello Montes. We affirm the judgment.
BACKGROUND
Raymond Montes sued his father, Rudolfo Buentello Montes, alleging his father signed a
series of loan agreements and failed to pay as promised. Rudolfo’s answer included a verified
defense of forgery, in which he denied executing or authorizing the execution of any documents
agreeing to pay Raymond money and affirmatively pled that any document purportedly signed by
04-20-00474-CV
him agreeing to pay Raymond money was a forgery. After discovery, Rudolfo filed a traditional
motion for summary judgment. Raymond responded and, after a hearing, the trial court rendered
a take-nothing summary judgment against Raymond. Raymond appeals the judgment, arguing 1)
the motion was legally insufficient because it failed to expressly present the ground on which
summary judgment was sought; 2) the trial court erred in granting the motion because the question
of whether Rudolfo’s signature on documents evidencing the debt was forged is a fact issue; and
3) the trial court erred in failing to consider Raymond’s supplemental affidavits.
DISCUSSION
Sufficiency of Motion
In his first issue, Raymond contends the motion for summary judgment was insufficient
because it did not “state a single ground upon which the motion was based [and] did not cite to a
single law or statue [sic] that would warrant the granting of a summary judgment.” Raymond
contends the motion did not give him sufficient notice to prepare a response.
Rudolfo’s motion, under the heading “Grounds for Summary Judgment,” first relied on
Raymond’s discovery responses to establish that the basis of the suit was a series of handwritten
documents purporting to contain Rudolfo’s signature and agreement to pay sums of money to
Raymond. The discovery responses and handwritten documents were attached to the motion for
summary judgment. The next paragraph of the motion stated that the documents relied on by
Raymond are forgeries. Rudolfo submitted summary judgment evidence to support that his
purported signatures on the documents were forgeries. In his response to the motion for summary
judgment, Raymond recognized that Rudolfo “argues the documents relied on by plaintiff are
obvious forgeries.” Nevertheless, Raymond asserted, as he does on appeal, that the motion for
summary judgment did not state the ground on which it was based.
-2-
04-20-00474-CV
Rule 166a(c) requires a motion for summary judgment to “state the specific grounds
therefor.” TEX. R. CIV. P. 166a(c). The purpose of the requirement is to give fair notice to the
opposing party, in order to define the issues and give the opposing party adequate information to
prepare a response opposing the motion. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311
(Tex. 2009). Citation to statutory or case law is not required, so long as fair notice of the ground
on which summary judgment is given.
The motion for summary judgment gave Raymond fair notice that summary judgment was
sought on Rudolfo’s verified defense of forgery and that Rudolfo sought to establish that he did
not execute the documents upon which Raymond’s suit was based. We overrule Raymond’s first
issue.
Genuine Issue of Material Fact
In his second issue, Raymond asserts the court erred in granting summary judgment
because “whether the signatures were different and forged as appellee argued was a factual dispute
for the trier of fact.” Raymond appears to contend that summary judgment was improper because,
as the trial court recognized, whether a signature is genuine or is forged is generally a question of
fact. However, summary judgment on a fact-based affirmative defense is proper if the movant
produces sufficient proof to establish the ultimate fact as a matter of law and the non-movant fails
to submit evidence creating a genuine issue of material fact. See Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995).
We review the summary judgment de novo. Provident Life & Acc. Ins. v. Knott, 128 S.W.3d
211, 215 (Tex. 2003). In deciding whether there is a disputed material fact issue precluding
summary judgment, we take evidence favorable to the non-movant as true and indulge every
reasonable inference and resolve any doubts in his favor. Id. Summary judgment may be based on
uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive and
-3-
04-20-00474-CV
direct, otherwise credible and free from contradictions and inconsistencies, and could have been
readily controverted. TEX. R. CIV. P. 166a(c).
Rudolfo’s summary judgment evidence included Raymond’s discovery responses and his
and his son Rudolpho Jr.’s unsworn declarations. 1 Rudolfo clearly and unequivocally stated his
purported signatures on the documents Raymond produced in discovery are forgeries. He also
attached five pages of exemplars of his signature and copies of three government-issued licenses
and identification cards bearing his signature. Rudolpho Jr.’s declaration clearly and unequivocally
stated his opinion that his father’s signatures on the documents are forgeries. Rudolpho Jr. stated
he is familiar with his father’s signature and handwriting, and his opinion is based on that
familiarity and his examination of the documents. He also pointed out specific ways in which the
characters in the signature on Raymond’s documents differ from the way his father writes those
characters when he signs his name or writes his initials.
Rudolfo met his summary judgment burden to establish the signatures were forgeries. His
declaration stating his signatures on the documents are forged is clear, direct, and positive. His
statements could have been readily controverted, for example, with evidence from someone who
saw Rudolfo sign one or more of the documents or who Rudolfo told he had signed one or more
of the documents, or with evidence of the circumstances in which the documents were created
from which it rationally could be inferred that Rudolfo signed them. Rudolpho Jr.’s lay opinion
that Rudolfo’s signature on the documents are forgeries is also clear, direct, and positive. And it is
probative because it is rationally based on his perceptions, as set forth in the declaration. See TEX.
R. EVID. 701(a). Rudolpho Jr.’s declaration could have been readily controverted by any other
person familiar with Rudolfo’s signature who believed the signatures were genuine.
1
See TEX. CIV. PRAC. & REM. CODE § 131.002(a) (authorizing use of unsworn declaration in lieu of affidavit).
-4-
04-20-00474-CV
Once Rudolfo established a right to summary judgment on his affirmative defense of
forgery, the burden shifted to Raymond to present contradictory evidence raising a genuine issue
of material fact in order to avoid summary judgment. See KENS-TV, Inc. v. Farias, No. 04-07-
00170-CV, 2007 WL 2253502, at *2 (Tex. App.—San Antonio, Aug. 8, 2007, pet. denied) (mem.
op.). Raymond’s response to the motion for summary judgment generally asserted that whether
the signatures on the documents are authentic or forged is a question of fact. The only summary
judgment evidence he submitted on the forgery issue was his affidavit, which states he and his
father had written loan agreements and “my dad signed the handwritten loans.” Although
Raymond attached the alleged loan agreements to his response, his affidavit does not specifically
refer to them or identify any specific documents his father signed. Further, the affidavit did not
contain a factual basis for the statement, “my dad signed the handwritten loans.” It did not state
Raymond saw Rudolfo sign them or that Rudolfo told Raymond he had signed them, and did not
state any of the circumstances surrounding the execution of the documents, from which it might
reasonably be inferred that Rudolfo signed them. The affidavit does not state Raymond is familiar
with Rudolfo’s signature or state his opinion the signatures on the purported loan agreements are
genuine.
A statement in an affidavit is conclusory if the affidavit does not provide the underlying
facts to support the conclusion. Watkins v. Isa, No. 04-11-00622-CV, 2012 WL 2021929, at *3
(Tex. App.—San Antonio June 6, 2012, no pet.) (mem. op.). The bare assertion in Raymond’s
affidavit stating his father signed the documents is unsupported by any facts and is conclusory.
“Affidavit testimony that is conclusory is substantively defective and amounts to no evidence.” Id.Conclusory statements in an affidavit are insufficient to raise a fact issue to prevent the granting
of summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). The trial court
-5-
04-20-00474-CV
therefore did not err in concluding there was no genuine issue of material fact as to Rudolfo’s
defense of forgery and Rudolfo was entitled to summary judgment on that ground.
Supplemental Affidavits
In his final issue, Raymond contends the trial court erred by refusing to consider two
timely-filed supplemental affidavits. The trial court did not consider the affidavits because the
witnesses had not been identified in supplemental disclosures before the discovery deadline. See
TEX. R. CIV. P. 193.6 (party may not offer testimony of witness who was not timely identified
unless court finds good cause and no unfair surprise or prejudice to other parties); Fort Brown
Villas III Condo. Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 882 (Tex. 2009) (holding Rule
193.6’s exclusion of evidence not produced or disclosed before discovery deadline applies in
summary judgment proceedings).
On appeal, Raymond does not address the ground for the trial court’s ruling or argue he
established good cause for failing to timely identify the witnesses. Rather, he contends the trial
court erred because consideration of the affidavits was expressly authorized by Rule 166a(d). That
section provides:
(d) Appendices, References and Other Use of Discovery Not Otherwise on File.
Discovery products not on file with the clerk may be used as summary judgment
evidence if copies of the material, appendices containing the evidence, or a notice
containing specific references to the discovery or specific references to other
instruments, are filed and served on all parties together with a statement of intent
to use the specified discovery as summary judgment proofs: (i) at least twenty-one
days before the hearing if such proofs are to be used to support the summary
judgment; or (ii) at least seven days before the hearing if such proofs are to be used
to oppose the summary judgment.
TEX. R. CIV. P. 166a(d). Raymond asserts Rule 166a(d) provides a means for a party to support or
oppose summary judgment with “documents or discovery responses [that] have not yet been served
on the other side.” Raymond does not cite any authority in support of his construction of the rule.
-6-
04-20-00474-CV
The purpose of Rule 166a(d) is to provide a method for parties to rely on materials that
have been produced in discovery, but not filed with the court, to support or defend motions for
summary judgment because most depositions and discovery responses are no longer routinely filed
with the court. See TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 6.04[1][a] (3d ed. 2020);
see also McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex. 1994) (stating Rule “sets forth the
current procedures for use of unfiled discovery products as summary judgment evidence”
(emphasis added)). The rule on its face does not authorize the use of unserved discovery responses
or affidavits of witnesses who have not been timely identified in discovery. Such a construction of
Rule 166a(d) would directly conflict with the Supreme Court’s holding in Gillenwater. See 285
S.W.3d at 882. Because Rule 166a(d) did not authorize the trial court to consider the affidavits and
Raymond has not shown the trial court abused its discretion, we overrule Raymond’s final issue. 2
We therefore overrule each of Raymond’s issues and affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
2
We note that neither of the affidavits directly address the authenticity of Rudolfo’s signature on the alleged loan
agreements.
-7-