Victor Moreno v. State

NO. 07-04-0535-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MARCH 27, 2006

______________________________



VICTOR MORENO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 242ND DISTRICT COURT OF SWISHER COUNTY;

NO. B3823-0312; HONORABLE ED SELF, JUDGE

_______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Pursuant to a plea agreement, appellant Victor Moreno was convicted of aggravated assault and sentenced to eight years confinement, suspended in favor of eight years of community supervision, and a $2,400 fine. On July 15, 2004, the State filed a motion to revoke appellant's community supervision, and appellant pled true to the violations alleged. Following a hearing on the State's motion, the trial court revoked appellant's community supervision and assessed the original term of confinement. In presenting this appeal, counsel has filed an Anders ⁽¹⁾ brief in support of a motion to withdraw. We grant counsel's motion and affirm.

In support of his motion to withdraw, counsel certifies he has diligently reviewed the record, and in his opinion, the record reflects no reversible error upon which an appeal can be predicated. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Monroe v. State, 671 S.W.2d 583, 585 (Tex.App.-San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous. In compliance with High v. State, 573 S.W.2d 807, 813 (Tex.Cr.App. 1978), counsel has candidly discussed why, under the controlling authorities, there is no error in the trial court's judgment. Counsel has also shown that he sent a copy of the brief to appellant and informed appellant that, in counsel's view, the appeal is without merit. In addition, counsel has demonstrated that he notified appellant of his right to review the record and file a pro se response if he desired to do so. Appellant did not file a response. Neither did the State favor us with a brief.

By his Anders brief, counsel raises several grounds that could arguably support an appeal. We have reviewed these grounds and made an independent review of the entire record to determine whether there are any arguable grounds which might support an appeal. See Penson v. Ohio, 488 U.S. 75, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Bledsoe v. State, 178 S.W.3d 824 (Tex.Cr.App. 2005). We have found no such grounds and agree with counsel that the appeal is frivolous.

Accordingly, counsel's motion to withdraw is hereby granted and the trial court's judgment is affirmed.

Don H. Reavis

Justice

Do not publish.

1.

Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

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NO. 07-10-00012-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JUNE 24, 2011

HOME FURNISHINGS, INC., GEORGE C. BURNETT, JR., AND MARIE E. BURNETT, APPELLANTS

v.

JPMORGAN CHASE BANK, NA, APPELLEE

 FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY;

NO. 96-229807-08; HONORABLE JEFF WALKER, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

CONCURRING OPINION

            Although I cannot agree entirely with the reasoning of the majority, I agree the summary judgment in favor of JPMorgan Chase Bank, NA against appellants should be affirmed.

            Under Texas law, to recover under the loan guarantees signed by appellants, Chase was required to show the existence and ownership of the guarantee contracts; the terms of the underlying promissory note; the default of the note’s maker; and the failure or refusal to perform the promise by the guarantor. Albright v. Regions Bank, No. 13-08-262-CV, 2009 Tex.App. LEXIS 8308, at *6 (Tex.App.—Corpus Christi Oct. 29, 2009, no pet.), citing Marshall v. Ford Motor Co., 878 S.W.2d 629, 631 (Tex.App.--Dallas 1994, no writ).[1]  Chase’s pleadings sought a judgment against appellants, as guarantors, for all unpaid principal, interest and other amounts due under the note.  With their response to Chase’s motion for summary judgment, appellants produced the affidavit of George C. Burnett, Jr. and attachments supporting their assertion a fact issue existed with regard to the unpaid amount of the note.  By appellants’ theory, the existence of evidence that Chase had failed to “account for” all the collateral securing the note, consisting of store inventory, meant that Chase could not conclusively establish the amount due under the guarantee. The evidence raised a fact issue, they contended, that Chase foreclosed on certain collateral but either did not sell it at the foreclosure sale or sold it but failed to account for it in its summary judgment evidence.  

            The majority rejects appellants’ contention, in part because the majority reads Burnett’s affidavit to say there was a seventy-day lapse of time between the date of the inventory on which appellants’ assertion rests and the date the store was locked by the landlord.  I believe Burnett’s affidavit should be read to say that the inventory list dated March 15, 2007, appended to the affidavit, shows the inventory on hand as of the end of the last day the store was open for business. Although the date on which Chase took possession of the collateral is not clear to me on this record, I cannot agree with the majority that the dates stated in Burnett’s affidavit are fatal to appellants’ contention.

            Nonetheless, I agree with the majority that the trial court did not err by granting summary judgment to Chase.  As the majority points out, the guarantee agreements appellants signed relieved Chase of any duty to preserve or dispose of any collateral.  The agreements are Small Business Administration form documents.  By other clear terms of the guarantees, appellants waived defenses that the collateral was neglected or lost, and defenses that Chase impaired the collateral, did not dispose of any of the collateral or failed to obtain a fair market value for the collateral.[2]  Having agreed to those terms, appellants nevertheless point to evidence of discrepancies in Chase’s handling of the collateral, which they couch in terms of its failure to “account for” some items, as raising a fact issue precluding summary judgment.  To me, their contention thus is not that there is a fact issue over the unpaid balance of the note, but that the balance might be different if the collateral had been handled differently.  An immaterial issue of fact does not preclude summary judgment.  Harris County v. Ochoa, 881 S.W.2d 884, 889 (Tex.App.—Houston [14^th Dist.] 1994, writ denied); Borg-Warner Acceptance Corp. v. C.I.T. Corp., 679 S.W.2d 140, 144 (Tex.App.—Amarillo 1984, writ ref’d n.r.e.).  Because the trial court was presented with a guarantee agreement that, on its face, rendered immaterial the issue appellants raised, it did not err by granting summary judgment.

            For those reasons, I concur in the court’s judgment.

                                                                                                James T. Campbell

                                                                                                            Justice

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[1] See also  Wiman v. Tomaszewicz, 877 S.W.2d 1 (Tex.App.—Dallas 1994, no writ), citing Barclay v. Waxahachie Bank & Trust Co., 568 S.W.2d 721, 723 (Tex.Civ.App.--Waco 1978, no writ) (listing elements of recovery on guaranty as (1) the existence and ownership of the guaranty contract; (2) the terms of the underlying contract by the holder; (3) the occurrence of the conditions upon which liability is based; and (4) the failure or refusal to perform the promise by the guarantor.).

[2] Appellants do not contend this case is affected by Business and Commerce Code section 9.602. See Tex. Bus. & Com. Code Ann. § 9.602 (West 2011) (listing non-waivable duties of secured parties).  Appellants’ brief on appeal states there is no dispute over the commercial reasonableness of Chase’s disposition of the collateral.