Summary
holding evidence insufficient because affidavit "merely recites an outstanding principal balance of $6,357.44 as of February 13, 2007 and indicates the last payment was made on December 24, 2003 does not set forth the applicable interest rate or the date the outstanding balance was due and payable"
Summary of this case from Milestone Operating v. Exxonmobil Corp.Opinion
No. 05-07-01732-CV
Opinion issued September 24, 2009.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-07-05560-A.
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
In this appeal, Collins Financial Services, Inc. challenges the trial court's order dismissing its case against Anna Guerrero a/k/a Anna M. Guerrero for want of prosecution. In a single issue, Collins contends its case should not have been dismissed because it timely moved for, and was entitled to, a default judgment. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.1 because the law applied to this case is well-settled. We affirm the trial court's dismissal order for the reasons that follow.
Collins filed this action against Guerrero to recover $6,357.44 plus contractual interest and attorney's fees arising from her alleged breach of a retail installment contract. According to the petition, Guerrero entered into the contract with Capital One Auto Finance, which then sold her account to Collins. The retail installment contract was not attached to the petition. The petition did include, however, an account statement from Collins to Guerrero dated August 1, 2003 indicating a past due balance of $6,357.44 and a sworn affidavit from Collins's "designated agent" Ken Mueller stating "[t]hat the foregoing and annexed account, claim, and cause of action . . . against [Guerrero] . . . in the sum of $6,357.44 Dollars [sic], together with interest at the rate of 6% per annum per the terms and conditions, which amount is within the knowledge of affiant just and true, and that it is due and that all just and lawful offsets, payments and credits have been allowed." The petition also included requests for disclosures and twenty-three requests for admissions.
The record shows Guerrero was served with process but did not file an answer or otherwise appear in the lawsuit. By letter dated April 17, 2007, the trial court set the case for dismissal on August 10, 2007. The notice specifically advised Collins "to have moved for, and to have heard a summary judgment or to have proved up a default judgment on or prior to that date." It further provided, "Your failure to have done so will result in dismissal of the case on the above date." Collins filed a motion for default judgment on June 18, 2007 supported by an affidavit for attorney's fees and a non-military affidavit. On July 16, 2007, the trial court returned this motion to Collins with a letter noting certain deficiencies. The trial court sent Collins a second dismissal notice on August 13, 2007 setting a new dismissal date of October 5, 2007. On November 7, 2007, Collins filed a second motion for default judgment containing additional evidence. The trial court returned the second motion to Collins with a letter dated November 16, 2007 setting forth the same deficiencies noted in the July 16 letter. On November 20, 2007, the trial court signed an order of dismissal based on (1) Collins's failure to take action after notice of intent to dismiss for want of prosecution in accordance with rule 165(a) letter and (2) want of prosecution.
This notice was virtually identical to the first dismissal notice.
This second letter was actually dated "11-16-07/7-16-07."
On appeal, Collins contends it was entitled to a default judgment based on its pleadings and documents submitted because its claim involves liquidated damages. A claim is liquidated if the amount of damages may be accurately calculated from the factual, as opposed to the conclusory, allegations in the petition and the written instruments. See Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.). Here, the underlying retail installment contract forming the basis of this lawsuit is not attached to the petition or contained in the appellate record. Collins's petition and attached documents contain only conclusory statements unsupported by facts. Although the petition also requests interest on the balance due at six percent per annum from the thirtieth day from the time the sum is due and payable, this date is not specified in the pleadings. Because the trial court could not accurately calculate the amount of damages due from the factual allegations of the pleadings and the written instruments, we conclude Collins's claim was for unliquidated damages. Accordingly, Collins needed to present evidence to prove its unliquidated damages. See Tex. R. Civ. P. 243.
The second motion for default judgment filed by Collins stated: "Plaintiff is requesting judgment on the debt owed Plaintiff in the amount of $6,357.44 together with interest and as supported by the documents attached to Plaintiff's Original Petition, the deemed admissions . . . and the documents attached hereto. . . ." The motion concluded by requesting the trial court to rule on the motion without the necessity of a hearing and to render judgment against Guerrero "as prayed for by Plaintiff." Attached to its motion was an affidavit of an unidentified Collins "agent" indicating that, as of February 13, 2007, there was a $6,357.44 balance owing on the account and the last payment made on the account was December 24, 2003. Additionally, there was a "Bill of Sale" dated August 9, 2006 from Capital One indicating the transfer to Collins of certain charged-off accounts "as defined in the Receivable Sale Agreement dated August 9, 2006." The receivable sale agreement identifying the sold accounts was not attached, however. Collins's motion also contained an affidavit on deemed admissions, an attorney's fees affidavit, and a non-military affidavit.
Although the affidavit is signed, the printed name of the agent or his position with Collins does not appear in the body of the affidavit. The affiant does not appear to be the same individual who signed the affidavit attached to the petition.
For an unliquidated claim where liability is established, evidence of the total amount due is sufficient to support an award of damages and the evidence may be supplied by affidavits. See Texas Commerce Bank, Nat. Ass'n v. New, 3 S.W.3d 515, 517 (Tex. 1999). The affidavit of Collins's unidentified agent, however, merely recites an outstanding principal balance of $6,357.44 as of February 13, 2007 and indicates the last payment was made on December 24, 2003. It does not set forth the applicable interest rate or the date the outstanding balance was due and payable. To the extent Collins relies on the affidavit of Ken Mueller attached to its original petition, we note that an affidavit is legally insufficient if it does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge. See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). Because the source of Mueller's knowledge was not stated, his affidavit was legally insufficient to prove Collins's damages. See Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 811 (Tex. App.-Waco 2007, no pet.). Collins also relies on deemed admissions to support its request for a default judgment. The relevant deemed admissions included the following:
9. The accounting reflected by the exhibits attached to the Plaintiff's Petition in this cause is just and true.
10. The amount reflected by the exhibits to Plaintiff's Petition in this cause is due.
11. The amount reflected by the exhibits attached to Plaintiff's petition in this cause is the balance due Plaintiff after all just and lawful offsets, payments and credits have been allowed.
14. Written demand for payment of said contract more than 30 days prior to filing this lawsuit.
18. Defendant presently owes Plaintiff the amount of $6,357.44 on said contract.
22. The contractual interest rate as agreed to by Defendant on the contract made a basis of Plaintiff's Original Petition is 6%.
Although the admissions provide evidence of the principal amount owing and the contractual interest rate, they do not establish the date of defendant's default. The trial court could not render a damage award based on these admissions because there was insufficient information from which to calculate the interest due on the outstanding balance.
Moreover, there are unexplained incongruities in Collins's evidence. Collins's August 1, 2003 account statement to Guerrero indicates an outstanding balance of $6,357.44. But according to the Bill of Sale that purported to transfer Guerrero's account, her account was not transferred to Collins until August 2006, almost three years after the date of the account statement. Mueller's affidavit notes that as of February 13, 2007, $6,357.44 remained due and owing on the account. The affidavit of Collins's unidentified agent indicates the last payment on the account was made on December 24, 2003, four months after Collins's August 1, 2003 account statement. Yet, the August account statement and unidentified agent's affidavit recite an identical balance. Having concluded Collins's evidence was insufficient to support the default judgment it requested, we conclude the trial court did not err in denying Collins's motion.
The trial court's dismissal notice required Collins to move for and have heard a summary judgment or prove up a default judgment by October 5, 2007. Although Collins filed a motion for default judgment, it failed to establish its entitlement to the judgment it requested. Under these facts and circumstances, we cannot conclude the trial court erred in dismissing this case for want of prosecution.
We affirm the trial court's dismissal order.