Opinion
No. 10-05-00371-CV.
Opinion delivered and filed January 24, 2007.
Appeal from the 278th District Court, Walker County, Texas, Trial Court No. 23131.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Huntsville Wholesale Grocers, Inc. (the Wholesaler) filed a suit on sworn account against Kassi and Mansur Jinnah, individually, Zahur International, Inc. dba Groveton Gas and Food Mart (the Jinnahs). Two weeks after filing suit, the Wholesaler moved for summary judgment, which was granted. The Jinnahs appeal arguing: 1) there is no evidence supporting a judgment against Kassi and Mansur Jinnah individually; and 2) there is a genuine issue of material fact regarding whether the amount sued upon was due. We will affirm.
We review the decision to grant or deny a summary-judgment motion de novo. Provident Life Accident Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distrib. Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant, and all doubts resolved in her favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. To establish entitlement to summary judgment on a sworn account, the Wholesaler must conclusively prove: 1) the sale and delivery of goods; 2) that the amount of the account is just; 3) that the amount is unpaid. Site Work Group, Inc. v. Chem. Lime Ltd., 171 S.W.3d 512, 513-14 (Tex.App.-Waco 2005, no pet.).
Turning first to the second issue, the Jinnahs argue there is a genuine issue of material fact regarding whether the account sued upon was due at the time suit was filed. The parties agree that through a course of dealing, the invoice term requiring cash on delivery had been waived. The Jinnahs contend that as a result they had an open period of time for payment, or, in the alternative, that the same course of dealing established the time for payment as four weeks from delivery.
A contract consists of more than words. The UCC specifically allows for the actions of the parties and the circumstances of contracting to be considered in giving meaning to the terms of a contract. TEX. BUS. COM. CODE ANN. §§ 1.201(11), 1.201(3) (Vernon Supp. 2006); see also Printing Ctr. of Tex. Inc. v. Supermind Publ'g Co., 669 S.W.2d 779, 784 (Tex.App.-Houston [14th Dist.] 1984, no writ). Thus, a contract may be explained or supplemented by the course of dealing of the parties. TEX. BUS. COM. CODE ANN. § 1.303 (Vernon Supp. 2006); see also Preston Farm Ranch Supply, Inc. v. BioZyme Enters., 625 S.W.2d 295, 298 (Tex. 1981). A course of dealing arises where the acts of the parties indicate a common understanding as to the contract. TEX. BUS. COM. CODE ANN. § 1.303(b); Tubelite, Div. of Indal, Inc. v. Risical Son, Inc., 819 S.W.2d 801, 804-05 (Tex. 1991).
For more than two years, the Jinnahs bought merchandise from the Wholesaler for their convenience store. The Jinnahs never paid the amount at the time of delivery as the invoices required. Rather, the Wholesaler charged the amount to the Jinnahs' account. The invoice was subsequently paid in full. This relationship continued without incident until the summer of 2005 when the Jinnahs failed to pay on their account for two months, while continuing to charge new deliveries. Three weeks prior to filing suit, the Wholesaler gave notice to the Jinnahs demanding full payment on their account and made no further deliveries to the Jinnahs. The Jinnahs made no payment. At the time of filing suit, the Jinnahs owed more than twenty-two thousand dollars ($22,000) reflected in twelve invoices which were seven to three weeks past the date of delivery. The most recent payment came two months prior to the suit.
Where the parties to a contract waive the time for payment, this does not leave an open time for payment, as the Jinnahs urge. Rusk County Elec. Coop. v. Flanagan, 538 S.W.2d 498, 500 (Tex.Civ.App.-Tyler 1976, writ ref'd n.r.e.). Instead, the course of dealing of the parties may be used to establish the time for payment. Id. The Jinnahs' summary judgment evidence showed that they consistently paid invoices within two weeks of delivery. Only in a small number of cases were the invoices paid more than two weeks past delivery, and an even smaller number of payments came four weeks or more past delivery.
The UCC defines a course of dealing as "a sequence of conduct concerning previous transactions between the parties to a particular transaction that is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conditions." TEX. BUS. COM. CODE ANN. § 1.303(b). The official comments to the UCC state that the term course of dealing is "restricted, literally, to a sequence of conduct between the parties." TEX. BUS. COM. CODE ANN. § 1.303, cmt. n. 2. It is the consistent acts of the parties, not the occasional variances, which create a course of dealing. See Int'l Therapeutics, Inc. v. McGraw-Edison Co., 721 F.2d 488, 491 (5th Cir. 1983).
Therefore, the course of dealing between the parties established a term of payment within two weeks of the date of the invoice. Because the latest invoice was more than three weeks past delivery at the time suit was filed, the entire amount of the account was due. Further, the Jinnahs had three weeks notice that payment was required on the account. The Jinnahs failed to create a fact issue as to the sworn account, and, though they proved the contract had been changed as to the time for payment, this defense does not afford them relief. We overrule issue two.
In their first issue, the Jinnahs complain of the summary judgment being rendered against them as individuals. Generally, only those grounds for summary judgment expressly presented by the movant in the summary judgment motion or by the non-movant in its response can be considered upon appeal. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex.App.-Waco 2000, pet. denied). The Jinnahs admit the issue of capacity was never argued below. Nonetheless, they contend that because the motion for summary judgment is insufficient as a matter of law to support a judgment against them as individuals, the issue may be raised for the first time on appeal. See McConnell, 858 S.W.2d at 342.
While there is an exception to allow a party to argue on appeal that no grounds for the motion for summary judgment have been stated and the motion is legally insufficient as a matter of law, such authority does not apply in this situation. Id. Rule 166a draws a distinction between grounds, those reasons which entitle the movant to summary judgment, and issues, those reasons which the non-movant contend defeat summary judgment. TEX. R. CIV. P. 166(a); see also McConnell, 858 S.W.2d at 339 n. 2; Davis v. First Indem. of Am. Ins., 56 S.W.3d 106, 110 n. 2 (Tex.App.-Amarillo 2001, no pet.). The Wholesaler's motion expressly stated the suit on sworn account as the ground for judgment. It was incumbent on the Jinnahs to raise the issue of capacity to defeat the motion. Because the Jinnahs failed to raise the issue of capacity in response to the motion for summary judgment, it cannot be considered on appeal. See Fletcher, 26 S.W.3d at 74. We overrule the Jinnahs' first issue.
Having overruled each of the issues raised, we affirm the judgment.
(Chief Justice Gray concurs with the judgment without a separate opinion noting: "The first issue has nothing to do with capacity. The Jinnahs were sued for breach of the contract, as was Zahur International Inc. The summary judgment evidence, the affidavit of Huntsville Wholesale Grocers, Inc.'s Vice President, provides evidence that all the defendants were parties to the agreements — the account-and that the goods were sold to the defendants, accepted by the defendants, and that the defendants failed to pay the account. There was no evidence offered controverting this evidence. Therefore the plaintiff proved all the elements necessary for a breach of contract against all three defendants. See C C Partners v. Sun Exploration Prod. Co., 783 S.W.2d 707, 721-722 (Tex.App.-Dallas, 1989, pet. denied).")
Affirmed