Summary
finding appellant did not raise a fact issue as to whether notice was sent to his last known address because appellant did not provide debt holder his change of address by certified mail, as required by the deed of trust
Summary of this case from Schlotte v. Option One Mortgage Corp.Opinion
No. 01-05-00338-CV
Opinion issued February 23, 2006.
On Appeal from the 270th District Court, Harris County, Texas, Trial Court Cause No. 2003-21853.
Panel consists of Justices TAFT, HIGLEY, and BLAND.
MEMORANDUM OPINION
Appellant, Gary Kainer, appeals from a summary judgment rendered in favor of appellees, ABMC Corporation ("ABMC") and Union Planters Bank, N.A. ("Union Planters"). We determine whether the trial court erred in its summary judgment ruling. We affirm the summary judgment on all but Kainer's claim for excess proceeds from a foreclosure sale against ABMC, to which extent we reverse the judgment and remand the cause.
Factual Background
Kainer executed a promissory note for $163,200 payable to Merchants Bank. The note was secured by real property located at 4110 Highway 6 North ("the foreclosed property"). In the deed of trust, Kainer designated "8707 Richmond Avenue, Houston, Texas 77063" ("the Richmond address") as his address for purposes of notice of a trustee's sale. Merchants Bank merged with Union Planters. Kainer's loan matured on February 28, 2002.
This property was also known as 4110 Addicks Satuma Road, Houston, Texas 77084.
On March 2, 2003, Union Planters sold and transferred the note and deed of trust to ABMC. Morad Mekhail was subsequently appointed substitute trustee and was responsible for conducting the foreclosure sale. Mekhail attested that the amount due on Kainer's note at the time of the posting of foreclosure was $86,689.86, including interest for amounts past due. Kainer attested that he calculated the amount due on the note, after offsets and payments, to have been $72,939.79. Mekhail sent notice of the foreclosure sale by certified mail to the foreclosed property address and to the Richmond address. On April 1, 2003, the foreclosure sale was conducted, and the foreclosed property was sold to ABMC for $84,542.00.
Kainer had not maintained a business at the Richmond address since February 2001. At the time of foreclosure, Kainer had a tenant at the foreclosed property, who notified him that there had been a foreclosure sale and that ABMC owned the foreclosed property. Kainer attested that he had notified Union Planters of his change of address to P.O. Box 631522 prior to March 3, 2003. In fact, Kainer had received an envelope from Union Planters addressed to Kainer at "P.O. Box 631522, Houston, Texas 77263" and postmarked October 18, 2002.
Kainer sued ABMC for (1) wrongful foreclosure, (2) tortious interference with business relations, (3) quieting title to the foreclosed property in Kainer's name, and, alternatively, (4) recovery of the excess proceeds from the sale of the foreclosed property. He also sued Union Planters for (1) negligence and (2) breach of fiduciary obligation.
On December 16, 2003, ABMC moved for rule 166a(c) summary judgment against Kainer's wrongful-foreclosure cause of action on the ground that ABMC had given him the notice of the foreclosure sale required by section 51.002(e) of the Texas Property Code. See Tex. Prop. Code Ann. § 51.002(e) (Vernon Supp. 2005); Tex. R. Civ. P. 166a(c). On June 14, 2004, the trial court granted ABMC's motion for summary judgment, reciting,"[It is] ADJUDGED that all claims asserted by [Kainer] in this cause of action are DENIED as to [ABMC]."
On December 6, 2004, Union Planters moved for rule 166a(c) summary judgment against Kainer on the ground that it did not owe Kainer a fiduciary duty because there was no special relationship between Kainer and Union Planters. See Tex. R. Civ. P. 166a(c). Union Planters also moved for rule 166a(i) summary judgment in the same motion, asserting that there was no evidence showing (1) that Union Planters owed Kainer a legal duty other than the duty that it owed him under the contract; (2) that Kainer had provided Union Planters with a new or different address in conformity with the method to which the parties had agreed in the deed of trust; (3) that Union Planters had a fiduciary duty to Kainer; or (4) that Union Planters breached a fiduciary duty. See Tex. R. Civ. P. 166a(i).
On December 20, 2004, after the trial court had granted summary judgment in favor of ABMC, Kainer moved for summary judgment against ABMC on the ground that ABMC was in possession of excess foreclosure-sale proceeds to which Kainer was legally entitled.
On January 5, 2005, the trial court granted Union Planters's motion for summary judgment, reciting, "It is ADJUDGED that the Plaintiff, [Kainer], take nothing from the Defendant, [Union Planters], by way of any claims asserted against Union Planters Bank, N.A. in this case, and that all claims asserted are denied." The final judgment expressly denied all relief requested by Kainer and disposed of all parties and claims.
On February 3, 2005, Kainer filed a motion for new trial alleging that there were genuine issues of material fact in dispute. On March 11, 2005, the trial court denied Kainer's motion for new trial. On April 4, 2005, Kainer filed his notice of appeal.
Jurisdiction
ABMC contends that this Court lacks jurisdiction to hear this appeal because Kainer's appeal against ABMC was untimely.
A notice of appeal must be filed within 30 days of the signing of the judgment, unless either party files a timely motion for new trial, motion to modify the judgment, motion to reinstate, or a request for findings of fact and conclusions of law, in which case the notice of appeal must be filed within 90 days after the judgment is signed. Tex.R.App.P. 26.1. A motion for new trial is timely if filed prior to or within 30 days after the judgment is signed. Tex. R. Civ. P. 329b(a).
A judgment is final for purposes of appeal if it actually disposes of all claims and parties, regardless of its language, or states with unmistakable clarity that it is a final judgment as to all claims and parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2000). Whether a judgment is final must be determined from its language and the record in the case. Id. at 195. Here, the judgment signed on June 14, 2004 was entitled "Judgment," and it included a "Mother Hubbard" clause stating that "[a]ll relief not granted herein is denied." However, the Texas Supreme Court has held that the inclusion of such language, standing alone, does not indicate finality in a judgment rendered, as here, without a conventional trial on the merits. Id. at 203-04. The June-14 judgment in favor of ABMC did not dispose of all parties and claims, as evidenced by the judgment signed on January 5, 2005 entitled "Final Judgment," which provided that "[i]nasmuch as this Court has previously granted interlocutory summary judgment in favor of the co-Defendant, [ABMC], that interlocutory summary judgment is hereby made final." The June-14 summary judgment order expressly disposed of only those claims asserted by Kainer against ABMC.
Accordingly, the trial court's final judgment disposing of all parties and claims was signed on January 5, 2005. Kainer filed a timely motion for new trial on February 3, 2005, 29 days after the judgment had been signed, and a timely notice of appeal on April 4, 2005, 89 days after the judgment had been signed. Thus, Kainer's appeal against ABMC is timely, and we have jurisdiction to address the merits of the appeal. See Tex.R.App.P. 26.1.
Summary Judgment
In his first point of error, Kainer argues that "[t]he trial court erred in granting summary judgment in favor of ABMC and [Union Planters] as a matter of law for [the] reason that genuine issues of material fact existed which precluded entry of judgment." Specifically, Kainer argues that genuine issues of fact exist regarding whether ABMC provided notice of foreclosure sale to his most current address and whether there was a surplus from the foreclosure sale. In point of error two, Kainer alleges that "the trial court erred in not finding ABMC and its Substitute Trustee's [sic] [failed] to comply with Texas Property Code Section 51.002 by improperly conducting a nonjudicial foreclosure of Kainer's real property." Specifically, Kainer argues that, although he did not provide notice of his change of address by certified mail, as required by the deed of trust, he had provided notice in a reasonable manner pursuant to section 51.0021 of the Property Code; thus, Kainer contends that ABMC did not send a notice of foreclosure to his last known address, as required by section 51.002(e) of the Property Code.
Even though Kainer phrases his first point of error in such a way as to challenge the summary judgment rendered in favor of both defendants, his argument under that point of error concerns only notice of foreclosure and surplus. Section 51.002 applies to mortgagees and trustees who conduct the sale of real property under contract lien. See Tex. Prop. Code Ann. § 51.002(a) (Vernon Supp. 2005). Union Planters was not the holder of the debt at the time of foreclosure, and thus did not conduct the sale because it had sold the note to ABMC. Notice of foreclosure is relevant only to Kainer's cause of action against ABMC for wrongful foreclosure, and whether a surplus remained after the sale is relevant only to his suit to recover excess sale proceeds from ABMC. Neither notice nor surplus is relevant to the causes of actions for negligence and breach of fiduciary duty that were alleged against Union Planters. Accordingly, we construe Kainer's first point of error to challenge only that portion of the summary judgment rendered on his wrongful-foreclosure cause of action against ABMC and on his request for excess sale proceeds from ABMC.
A. Standard of Review
The propriety of summary judgment is a question of law, and we thus review the trial court's ruling de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, evidence favorable to the non-movant is taken as true, and all reasonable inferences are indulged in the non-movant's favor. Johnson Co. Sheriff's Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). When a summary judgment order does not state the grounds upon which it was granted, the summary judgment may be affirmed on any of the movant's theories that has merit. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex. 1996). Appellate courts should consider all grounds for summary judgment that the movant presented to the trial court when they are properly preserved for appeal. Id. at 627. Thus, the party appealing from such order must show that each of the independent arguments alleged in the motion is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 163 (Tex.App.-Houston [1st Dist.] 1988, writ denied); McCrea v. Cubilla Condominium Corp., 685 S.W.2d 755, 757 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.).
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for traditional summary judgment must either disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
A no-evidence motion for summary judgment is essentially a directed verdict granted before trial, to which we apply a legal-sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). In general, a party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more of the essential elements of the non-movant's claims on which the non-movant would have the burden of proof at trial. Flameout Design Fabrication Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). Once the movant specifies the elements on which there is no evidence, the burden shifts to the non-movant to raise a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, 118 S.W.3d at 751.
B. The Summary Judgment Rendered for ABMC 1. Unchallenged Rulings
ABMC moved for rule 166a(c) summary judgment against Kainer's wrongful-foreclosure cause of action on the ground that ABMC had given him notice of the foreclosure sale pursuant to section 51.002(e) of the Texas Property Code. ABMC did not request summary judgment against Kainer's claims for tortious interference with business relations, quieting title to the foreclosed property in Kainer's name, or recovery of the excess proceeds from the sale of the foreclosed property. Nonetheless, the trial court's May 20, 2004 summary judgment order recited that " all claims asserted by [Kainer in this cause of action are DENIED as to [ABMC]." (emphasis added). The court's final summary judgment, signed January 5, 2005, recited that "[i]nasmuch as this Court has previously granted an interlocutory summary judgment in favor of the co-Defendant, [ABMC], that interlocutory summary judgment is hereby made final. All relief not granted is denied. This is a Final Judgment which finally disposes of all parties and claims and is appealable." As such, the summary judgment order granted more relief than ABMC had requested.
It is well-established that a summary judgment can be granted only on the grounds addressed in the motion for summary judgment. See Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex.App.-Houston [1st Dist.] 2005, no pet.). A summary judgment granting more relief than that to which a party is entitled is subject to reversal, but it is not, for that reason alone, interlocutory. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (citing Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983) (per curiam). In circumstances in which the trial court grants more relief than was requested, the order must be appealed and can be reversed on that basis. Id. at 206. In his brief on appeal, Kainer asserts no challenges relating to the trial court's granting of more relief than requested in ABMC's summary judgment motion, with the sole exception that he does complain on appeal about the recovery of the excess proceeds from the sale of the property. Therefore, we affirm that portion of the summary judgment order disposing of Kainer's claim against ABMC for tortious interference with business relations and his request to quiet title. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Garcia v. Nat'l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
2. Wrongful Foreclosure
In his first and second points of error, Kainer argues that because ABMC did not send the notice of foreclosure sale to his most current address, ABMC failed to comply with notice requirements of section 51.002(e) of the Property Code and, therefore, the foreclosure sale must be invalidated as a matter of law. A debtor may recover damages for common-law wrongful foreclosure only if the mortgagee either (1) fails to comply with statutory or contractual terms or (2) complies with such terms, yet takes affirmative action that detrimentally affects the fairness of the foreclosure process. First State Bank v. Keilman, 851 S.W.2d 914, 921-22 (Tex.App.-Austin 1993, writ denied). In order for the trustee lawfully to undertake a foreclosure on real property, he or she is required to comply with notice requirements set forth in the deed of trust and prescribed by law. Nat'l Commerce Bank v. Stiehl, 866 S.W.2d 706, 708 (Tex.App.-Houston [1st Dist.] 1993, no pet.). Section 51.002 of the Property Code and its predecessors govern the sale of real property under a contract lien. See Tex. Prop. Code Ann. § 51.002. The version of section 51.002 that applied at the time of the foreclosure sale provided in part:
ABMC conducted the foreclosure sale on April 1, 2003. Because the Texas Legislature has since amended provisions of section 51.002 of the Property Code, we cite to the version of section 51.002 that existed at the time of the sale. See Act of June 17, 1987, 70th Leg., R.S., ch. 540, § 1, 1987 Tex. Gen. Laws 2174, 2174 (amended 2003) (updating text in what is current subsection (e)) (current version at Tex. Prop. Code Ann. § 51.002(e) (Vernon Supp. 2005)); Act of April 28, 1993, 73d Leg., R.S., ch. 49, § 5, 1993 Tex. Gen. Laws 98, 98-99 (amended 2005) (updating text in what is current subsection (b)) (current version at Tex. Prop. Code Ann. § 51.002(b) (Vernon Supp. 2005)).
(b) Notice of the sale, which must include a statement of the earliest time at which the sale will begin, must be given at least 21 days before the date of the sale:
. . .
(3) by the holder of the debt to which the power of sale is related serving written notice of the sale by certified mail on each debtor who, according to the records of the holder of the debt, is obligated to pay the debt.
. . .
(e) Service of notice under this section by certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address as shown by the records of the holder of the debt. The affidavit of a person knowledgeable of the facts to the effect that service was completed is prima facie evidence of service.
Act of June 17, 1987, 70th Leg., R.S., ch. 540, § 1, 1987 Tex. Gen. Laws 2174, 2174 (amended 2003) (updating text in what is current subsection (e)) (current version at Tex. Prop. Code Ann. § 51.002(e) (Vernon Supp. 2005)); Act of April 28, 1993, 73d Leg., R.S., ch. 49, § 5, 1993 Tex. Gen. Laws 98, 98-99 (amended 2005) (updating text in what is current subsection (b)) (current version at Tex. Prop. Code Ann. § 51.002(b) (Vernon Supp. 2005)). The purpose of the statute is to provide a minimum level of protection for the debtor, and the statute provides this by calling for only constructive notice of the foreclosure. Onwuteaka v. Cohen, 846 S.W.2d 889, 892 (Tex.App.-Houston [1st Dist.] 1993, writ denied). There was no requirement that Kainer actually receive the notice. See Martinez v. Beasley, 616 S.W.2d 689, 690 (Tex.App.-Corpus Christi 1981, no writ).
To establish a violation of the statute as it was written at the time of the events underlying this suit, it had to be shown that the holder of the debt had in its records the most recent address of the debtor and failed to mail a notice by certified mail to that address. See Onwuteaka, 846 S.W.2d at 892. Section 3.3 of the deed of trust provided in part:
Service of such [foreclosure sale] notice shall be completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to such debtor at said debtor's most recent address as shown by the records of the Beneficiary, in a post office or official depository under the care and custody of the United States Postal Service. . . . Grantor agrees that no notice of any sale other than as set out in this paragraph need be given by Trustee, Beneficiary, or any other person. Grantor designates as Grantor's address for the purposes of such notice, the address set out below, and each other debtor, if any obligated to pay the indebtedness address that such address shall likewise constitute such other debtor's address for such notice, unless a different address is designated by such other debtor; no change of such address or designation of a different address shall be binding on Beneficiary until thirty (30) days after Beneficiary has received notice of such change sent to Beneficiary by certified mail postage prepaid, return receipt requested, addressed to Beneficiary at the address for Beneficiary at the address for Beneficiary set out herein)or such other address as Beneficiary may have designated by notice given as above provided to Grantor and such other debtors). . . .
As the movant, ABMC had to establish conclusively that it sent the notice by certified mail to the address that Kainer had given pursuant to the deed of trust. The summary judgment evidence showed that the notices of sale were sent by certified mail to the foreclosed property address and to the Richmond address, Kainer's last known address as reflected in the records of ABMC. A copy of the notice of substitute trustee sale for the foreclosed property was attached to ABMC's motion for summary judgment. Mekhail, the president of ABMC, averred in his affidavit that all notices were sent to these two addresses, which were the last known addresses in the records of the previous note holder, Union Planters. Lloyd Bolton, a vice president of Union Planters, also averred that the only addresses that Union Planters had for Kainer were the foreclosed property address and the Richmond address. Kainer conceded, in his affidavit filed in response to Union Planters's motion for summary judgment and in his brief on appeal, that he did not notify Union Planters of his change of address by certified mail, as required by the deed of trust. Cf. Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex. 1983) (holding that assertions of fact in live pleadings, not pleaded in alternative, are formal judicial admissions); see also Manahan v. Meyer, 862 S.W.2d 130, 133 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (holding that summary judgment may be rendered on pleadings when they contain judicial admissions). The uncontroverted summary judgment evidence showed that ABMC sent the notice to Kainer's last known address, as shown by its records, by certified mail and that ABMC acted in conformity with section 3.3 of the deed of trust in having done so.
Nevertheless, Kainer argues that his new business address should have been used. As the non-movant, he had to produce controverting evidence raising a fact issue as to notice once ABMC had carried its summary judgment burden. See Owen Elec. Supply Inc., 821 S.W.2d at 286. To prove that ABMC had his most recent business address, Kainer filed his own affidavit and a copy of an envelope from Union Planters addressed to his updated address. In his affidavit, Kainer averred that he had delivered the change of address to Union Planters in person and by telephone.
Kainer contends that he provided notice in a reasonable manner under section 51.0021 of the Property Code. Current section 51.0021 of the Property Code provides that "[a] debtor shall inform the mortgage servicer of the debt in a reasonable manner of any change of address of the debtor for the purposes of providing notice to the debtor under Section 51.002." Tex. Prop. Code Ann. § 51.0021) (Vernon Supp. 2005). However, that section of the Property Code is not applicable to this case because it did not become effective until January 1, 2004, after the foreclosure sale had occurred. Act of June 20, 2003, 78th Leg., R.S., ch. 554, § 1, 2003 Tex. Gen. Laws 1897, 1898 (amended 2003) (enacting section 51.0021) (current version at Tex. Prop. Code Ann. § 51.0021 (Vernon Supp. 2005)).
Kainer also cites to Lido International, Inc. v. Lambeth, 611 S.W.2d 622, 624 (Tex. 1981), in which summary judgment was reversed because a fact issue existed as to whether the lender had properly sent notice to the debtor's most recent mailing address. The Texas Supreme Court concluded that a debtor's claim that he had furnished the note-holder with a more recent address raised a fact question sufficient to preclude summary judgment. Id. Lido is not on point because, in that case, there was no evidence of any contractually agreed method for providing change of address to the lender. By contrast, here, the record shows that a deed of trust provided a contractually agreed method for Kainer to change his address, which method he concedes was not followed. This mortgage is governed by the same rules of interpretation that apply to contracts generally. See Sonny Arnold, Inc. v. Sentry Sav. Ass'n, 633 S.W.2d 811, 815 (Tex. 1982). Thus, the terms of the parties' deed of trust must be read as written. See Slaughter v. Qualls, 162 S.W.2d 671, 675 (Tex. 1942); Lawson v. Gibbs, 591 S.W.2d 292, 294 (Tex.Civ.App.-Houston [14th Dist.] 1979, writ ref'd n.r.e.). Kainer's evidence did not raise a fact issue as to whether notice was sent to his last known address because Kainer did not provide ABMC, the holder of the debt, or its contractual predecessor, Union Planters, his change of address by certified mail, as required by the deed of trust.
In any event, Kainer did not state in his affidavit that he had never received actual notice or written notice by certified mail from ABMC. The affidavit also did not state facts pertaining to the statutory requirements, i.e., whether the debt holder's records contain the last-known address of Kainer and whether ABMC had sent the notice to Kainer by certified mail. See Onwuteaka, 846 S.W.2d at 892. Non-compliance with these two requirements must be shown to establish lack of notice. Id. Thus, Kainer did not produce a scintilla of competent summary judgment evidence to raise a fact issue regarding whether ABMC complied with the notice requirements pertaining to a trustee's sale. See id. We hold that the trial court did not err in granting summary judgment in favor of ABMC on Kainer's wrongful foreclosure cause of action.
3. Recovery of Surplus Sale Proceeds
In his first point of error, Kainer also argues that there is a fact issue regarding whether excess proceeds from the foreclosure sale existed. ABMC argues that there is no excess from the foreclosure sale when attorneys' fees are reimbursed, as provided for in the deed of trust, because (1) the agreement for assignment of note and lien between Union Planters and ABMC stated that the unpaid balance was $83,539.53 and (2) ABMC's attorneys' fees totaled $9,400, exceeding the $84,582.00 sales price. However, that portion of the agreement of assignment of note and lien between Union Planters and ABMC was not part of the summary judgment evidence before the trial court and is not part of the record on appeal. See Tex. R. Civ. P. 166a(c). Further, ABMC's summary judgment evidence of attorneys' fees proved the cost of defending this suit against Kainer, not the cost of collecting on the note or of the foreclosure sale.
Although the trial court did not award ABMC attorneys fees, the deed of trust provided that the "[t]rustee making such sale shall receive the proceeds thereof and shall apply the same as follows: (1) Trustee shall pay, in addition to the attorneys' fees provided for in the Note, the reasonable expense of executing this trust; (ii) after paying such expenses, Trustee shall pay so far as may be possible the Indebtedness (other than interest thereon which has not yet accrued), discharging first that portion of the Indebtedness arising under the covenants or agreements herein contained and not evidenced by the Note; and (iii) Trustee shall pay the residue, if any, to Grantor, Grantor's respective heirs, personal representatives successors or assigns." The note provided that "[i]n the event of default, hereunder or under any of the instruments securing payment hereof and this note is placed in the hands of an attorney for collection (whether or not suit is filed), or bankruptcy proceeding, Maker agrees to pay all reasonable attorneys' fees and all expenses of collection and costs of court."
In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. See Johnson Co. Sheriff's Posse, 926 S.W.2d at 285. Every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in its favor. Nixon, 690 S.W.2d at 548-49. Kainer's summary judgment evidence consisted of his affidavit, which stated that he calculated the pay-off, after offsets and payments, to have been $72,939.79. ABMC's summary judgment evidence consisted of Mekhail's affidavit, which stated that the amount due at the time of the foreclosure posting was $86,689.86 and that the notice-of-foreclosure letter mailed to Kainer stated that the amount owed was $86,689.86. Neither Kainer's affidavit, Mekhail's affidavit, nor the notice of foreclosure sale are supported by documents that explain the calculation of such amounts. Here, the two conflicting affidavits reciting different amounts owed raises a fact issue on the amount owed and precludes summary judgment. See Kelly v. Galveston Co., 520 S.W.2d 507, 515 (Tex.Civ.App.-Houston [14th Dist.] 1975, no writ) (holding that mere swearing match between parties, as reflected by their conflicting affidavits, will not be sufficient to sustain motion for summary judgment because summary judgment proceeding is not designed to weigh credibility of witnesses). Given this conflict, ABMC has not established, as a matter of law, that no surplus was owed. We thus hold that the trial court erred to the extent that it rendered summary judgment on Kainer's claim to excess foreclosure-sale proceeds.
C. Union Planters
Kainer does not challenge on appeal the 166a(c) summary judgment rendered on the basis that Union Planters did not owe him a fiduciary duty because there was no special relationship. Neither does Kainer attack on appeal Union Planters's 166a(i) summary judgment motion's grounds that (1) Union Planters owed him no legal duty other than the duty that it owed him under the contract; (2) Union Planters had no fiduciary duty to Kainer; and (3) Union Planters had not breached a fiduciary duty. We therefore affirm summary judgment rendered against Kainer's negligence and breach-of-fiduciary-duty claims against Union Planters. See Walling, 863 S.W.2d at 58; Garcia, 4 S.W.3d at 889.
D. Disposition of Points of Error
We overrule point of error two in its entirety. We sustain that portion of point of error one in which Kainer challenges the rendition of summary judgment on his claim to excess foreclosure-sale proceeds. We overrule point of error one in all other respects.
Conclusion
We affirm the summary judgment in all respects except to the extent that it was rendered against Kainer's claim to excess proceeds of the foreclosure sale, to which extent we reverse the judgment. We remand the cause.