Opinion
No. 05-15-01571-CV
07-05-2017
JOANN B. SEMPLE AND CAROL MATTHEWS, Appellants v. FRED VINCENT, Appellee
On Appeal from the 68th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-14-11180
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Whitehill
Opinion by Justice Lang-Miers
Appellants Joann B. Semple and Carol Matthews, appearing pro se, appeal from a summary judgment in favor of appellee Fred Vincent. Semple and Matthews argue that the trial court's summary judgment order was defective or violated their due process rights, the court erred in granting summary judgment because there were genuine issues of material fact, and the court erred in "[i]gnoring" their motions to file an amended petition and to file late evidence. We affirm.
BACKGROUND
Semple and Matthews (Semple Parties) sued Vincent alleging that he breached an oral agreement to cash a check for $21,000 for them and he defrauded them. Vincent filed an amended answer asserting a general denial and the affirmative defense that the Semple Parties' claims were barred by limitations.
Vincent filed a motion for summary judgment based on the affirmative defense of limitations. He contended that either a two-year or four-year statute of limitations applied and that his summary judgment evidence—his affidavit—established that "limitations expired at the latest in March 2014 (which is four (4) years from the date of the parties' disagreement regarding [his] obligation to return the transferred funds to the" Semple Parties). And Vincent argued that, because the Semple Parties filed suit in September 2014, after expiration of the later of two possible limitations periods, his summary-judgment evidence established his affirmative defense of limitations as a matter of law.
The Semple Parties also filed a motion for summary judgment and amended the motion.
The Semple Parties filed a motion for continuance and extension of time to respond to Vincent's summary judgment motion. The trial court continued the summary judgment hearing twice: first from November 6, 2015 to November 9, 2015 and then to December 11, 2015. On December 4, 2015, the Semple Parties filed two affidavits in which Matthews attested to e-mails (which were attached to one affidavit) concerning proposals for settlement and attested to discussions between the Semple Parties and Vincent's attorney. Also on December 4, 2015, the Semple Parties filed their response to Vincent's summary judgment motion in which they argued that the statute of limitations did not expire prior to their filing suit. Vincent filed his objection to the summary-judgment evidence submitted by the Semple Parties in support of their response to his summary judgment motion. Vincent argued that the two affidavits by Matthews and attachments were inadmissible on various grounds, including because they did not state that they were based on Matthews's personal knowledge and because they concerned settlement discussions.
On December 10, 2015—the day before the rescheduled hearing on Vincent's summary judgment motion—the Semple Parties filed "Plaintiffs' Verified Motion for Leave to File Amended Pleading" and "Plaintiffs' Verified Motion for Leave to File Evidence Response [sic] for Summary Judgment[.]" At the summary judgment hearing, the court noted that the Semple Parties filed a "Verified Motion for Leave to File Amended Pleadings" and a "Verified Motion for Leave to file evidence" but they had "not indicated what evidence or pleadings they would like to file that I can see" and the court requested the Semple Parties to "explain."
When asked by the court what additional evidence she wanted to file, Semple responded that she "had an affidavit from John Reeves" that was not filed. When the court asked where the affidavit was, Semple replied that she "was just looking for the exhibit, but [she] left it in the car" although she had "proof it was notarized last Friday by John Reeves." Semple then referred to "two other affidavits" but, when asked by the court if she had a copy of the affidavits with her, she responded that she "forgot all [her] notes" and "it seems like [she] forgot them in the car" and she did not "have them here." Vincent's counsel stated that he had not seen the affidavits. Semple also mentioned another document and information that she was "in the process of retrieving[.]" Although Semple stated that the Semple Parties filed an affidavit with their response, the court responded that the affidavit was defective and that they "filed it in an incorrect form" and that, after they did not "do it correct[ly] the last time," he gave them "another chance." The court stated: "I really wanted to give you a chance, but you've got to follow the rules" and "[y]ou've not been following the rules." The court referred to "showing up and saying [you] don't have the affidavit with you[.]" The court stated, "Ms. Semple, I've given you so many chances on this[.]" The court then continued: "I have bent over backwards to try to be fair to you guys. At some point, I've got to enforce the rules. I've probably been too lenient up to this point. But unfortunately, based on the record before me, I'm going to have to grant the Summary Judgment."
Semple stated that, when she brought it to the court the day before, the clerk told her she could not file it because it was an exhibit.
The court also stated in response to Semple, "I've looked through everything, ma'am. Based on the record before me, I have to rule in favor of the Defendant."
The court granted summary judgment in favor of Vincent. The Semple Parties appealed.
PROCEDURAL DUE PROCESS
In their first issue, the Semple Parties argue that the order granting summary judgment was either defective or it violated their due process rights because it stated that the hearing on the motion for summary judgment took place on November 9, 2015 instead of the date when the hearing took place, December 11, 2015. They argue that if a trial court grants a motion before a scheduled hearing date, the trial court violates the due process rights of the nonmoving party.
Vincent argues that the typographical error in the order does not constitute a denial of due process. He contends that the record makes clear that the hearing took place on December 11, 2015 and the reference in the order to an earlier date "is of no substantive importance." In addition, Vincent filed a motion for judgment nunc pro tunc asking the trial court to sign a judgment nunc pro tunc to correctly reflect the hearing date of December 11, 2015. The court granted the motion. And the record contains an Order Granting Motion for Summary Judgment reflecting the correct date of the hearing, December 11, 2015. As a result, the Semple Parties' complaint in their first issue is moot because the trial court addressed their complaint by correcting the reference to the date of the summary judgment hearing to December 11, 2015 in the judgment nunc pro tunc. See In re J.R., No. 10-12-00003-CV, 2012 WL 3537995, at *4 (Tex. App.—Waco Aug. 16, 2012, no pet.) (mem. op.); Meeks v. Meeks, 783 S.W.2d 823, 823 (Tex. App.—Fort Worth 1990, no writ). We resolve the Semple Parties' first issue against them.
LIMITATIONS
In their second issue, the Semple Parties argue that the trial court erred in granting summary judgment on Vincent's limitations defense because they raised genuine issues of material fact.
Standard of Review and Applicable Law
We review a trial court's grant of summary judgment de novo. Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). The movant must show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Quintana v. CrossFit Dallas, LLC, 347 S.W.3d 445, 449 (Tex. App.—Dallas 2011, no pet.). We must review the record "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). If a defendant moves for summary judgment on an affirmative defense, he must conclusively establish each essential element of the affirmative defense. Quintana, 347 S.W.3d at 449. "Undisputed evidence may be conclusive of the absence of a material fact issue, but only if reasonable people could not differ in their conclusions as to that evidence." Buck, 381 S.W.3d at 527.
"A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense." KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). As a result, the defendant must conclusively prove when the cause of action accrued. Id. If the summary judgment movant establishes that the statute of limitations bars the action, the nonmovant must adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id.
If the discovery rule has been pleaded or otherwise raised, the defendant must also negate the discovery rule. Id. Although the Semple Parties state the general law concerning the discovery rule in their appellate brief, they did not plead or otherwise raise the discovery rule.
We review a trial court's decision to admit or exclude summary-judgment evidence for an abuse of discretion. Nelson v. Pagan, 377 S.W.3d 824, 830 (Tex. App.—Dallas 2012, no pet.). The party complaining of error in the exclusion of evidence has the burden to show error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); 17090 Parkway, Ltd. v. McDavid, 80 S.W.3d 252, 259 (Tex. App.—Dallas 2002, pet. denied).
Limitations Defense
Arguments of the Parties
Vincent argues that the trial court properly granted summary judgment to him because he "set up a limitations defense" and the Semple Parties "brought forth no admissible summary judgment evidence contradicting it." Vincent contends that there are two possible limitations periods that may apply: either a two-year statute of limitations for conversion of personal property, TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2016), or a four-year statute of limitations for a cause of action on a debt. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004 (West 2002). Vincent argues that he satisfied his burden to conclusively establish the defense by proving when the cause of action accrued through his uncontroverted evidence—his affidavit. In addition, Vincent argues that the Semple Parties had "ample opportunity to respond" to the motion for summary judgment and to "contest the one fact of consequence—when the dispute arose between the parties." Vincent argues that the Semple Parties "still can point to no summary judgment evidence in the record which raises a material issue of fact."
The Semple Parties argue that Vincent did not establish his right to summary judgment as a matter of law and that they raised genuine issues of material fact concerning the affirmative defense of limitations. They contend that a four-year statute of limitations applies.
The Semple Parties also argue that Vincent's response to their summary judgment motion supported by affidavits of Vincent and Vincent's attorney "raised a number of material disputed facts for trial" and that Vincent raised "more disputed facts when" he "filed his traditional motion for summary judgment with respect to [the] affirmative defense of limitations." They also note various "issues" Vincent "raised" at the summary judgment hearing (which they state "were irrelevant to the case"), including his request for the Semple Parties to bring documents to their deposition, the Semple Parties' failure to follow "rules[,]" and their failure to "file their original evidence on time." But the issues that the Semple Parties identify do not concern Vincent's affirmative defense of limitations. Our review of this "[s]ummary judgment granted on the basis of an affirmative defense" of limitations concerns whether Vincent "conclusively proved all elements of [his] affirmative defense as a matter of law." Johnson Kidz, Inc. v. Veritex Comm. Bank, N.A., No. 05-16-00110-CV, 2017 WL 1967660, at *2 (Tex. App.—Dallas May 12, 2017, no pet.) (mem. op.).
Analysis
In order for Vincent to satisfy his burden to prove when the Semple Parties' causes of action accrued, he needed to conclusively establish when facts came into existence that authorized the Semple Parties to seek a judicial remedy. See Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003) ("As a general rule, a cause of action accrues and the statute of limitations begins to run when facts come into existence that authorize a party to seek a judicial remedy."). For purposes of our analysis, we will assume without deciding that a four-year statute of limitations—the longer of the two limitations periods—applies under civil practice remedies code section 16.004. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004; see Ellege v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 870 (Tex. 2007); Fuqua v. Fuqua, 750 S.W.2d 238, 241 (Tex. App.—Dallas 1988, writ denied).
Vincent's affidavit states that the Semple Parties "tendered the funds" to him in April 2009 and a disagreement concerning the return of the funds arose in February or March 2010. Vincent testified by affidavit that he "consistently refused to deliver the remainder of the funds to the" Semple Parties "since March 2010[.]" Over four years later, in September 2014, the Semple Parties filed this suit against Vincent for return of the funds. Because Vincent's affidavit is uncontested summary-judgment evidence concerning Vincent's limitations affirmative defense and we conclude that "reasonable people could not differ in their conclusions as to that evidence[,]" we conclude that the evidence is "conclusive of the absence of a material fact issue." Buck, 381 S.W.3d at 527.
We also conclude that the Semple Parties' arguments that Vincent has not conclusively established his limitations defense and that they raised material issues of fact are not supported by the record. They argue that their "pleadings on file" including their "response to summary judgment and supporting evidence at the expedited hearing" show that Vincent's assertion that limitations expired in March 2014 is incorrect. But, as support, the Semple Parties cite some background facts they included in their summary judgment response in which they stated that Vincent's attorney did not object to their pleadings, that Vincent was waiting on the Semple Parties to disclose their social security numbers before he paid them, and that the Semple Parties explained why they would not disclose their social security numbers. In their appellate brief, the Semple Parties argue that "[h]ere was another promise to pay" the Semple Parties "once they showed their Social Security numbers." They also refer in their appellate brief to Vincent's statement at the summary judgment hearing that he "had made a number of settlement offers" and contend that, as a result, a material fact issue exists as to whether "[i]nstead of statute of limitations running out, they [sic] were extended." But pleadings and oral evidence are not summary-judgment evidence. Freeman Fin. Inv. Co. v. Toyota Motor Corp., 109 S.W.3d 29, 32-33 (Tex. App.—Dallas 2003, pet. denied). The Semple Parties also argue that "there [was] no argument of [the] statute of limitations expiring" at the summary judgment hearing. But, in compliance with rule of civil procedure 166a(c), Vincent's motion for summary judgment "state[d] the specific grounds" of his affirmative defense of limitations. See TEX. R. CIV. P. 166a(c).
In their reply brief, the Semple Parties likewise contend that Vincent's "limitations defense" "was false and misleading" and that they presented more than a scintilla of evidence in their brief and their summary judgment response "in contradiction to" Vincent's limitations defense.
In addition, the Semple Parties argue that "there was overwhelming evidence that the statute of limitations was still running" and that Vincent's "affidavit also supports that the statute of limitations did not runout [sic]." They refer to statements in Vincent's affidavit concerning the ongoing disagreement since 2010 regarding the return of the funds and statements in an affidavit of Vincent's attorney concerning his discussions with Semple about possible settlement. But settlement negotiations, absent bad faith or fraud, do not toll the statute of limitations. Lockard v. Deitch, 855 S.W.2d 104, 106 (Tex. App.—Corpus Christi 1993, no writ); see Fiengo v. Gen. Motors Corp., 225 S.W.3d 858, 862 (Tex. App.—Dallas 2007, no pet.); Cook v. Smith, 673 S.W.2d 232, 235 (Tex. App.—Dallas 1984, writ ref'd n.r.e.). The Semple Parties did not offer evidence of fraud or bad faith in settlement negotiations.
The Semple Parties state that "had Vincent put on record his findings at discovery, it would have prove[d] where Vincent had lied." But, as the Semple Parties recognize, the discovery "findings" are not part of the summary judgment record. See Young v. Gumfory, 322 S.W.3d 731, 738 (Tex. App.—Dallas 2010, no pet.) ("[T]he scope of our review is limited to the summary judgment record upon which the trial court's ruling was based.").
We conclude that the trial court did not err in concluding that Vincent conclusively established his affirmative defense of limitations.
Summary-Judgment Evidence
Arguments of the Parties
The Semple Parties argue that the trial court "ignored" their response to summary judgment and supporting evidence and "incorrectly stated that their affidavit was defective[.]" They contend that the affidavits they submitted were admissible even though they do not state that they were based on personal knowledge. They also contend that the trial court "incorrectly stated" that they were given the chance to correct their affidavits but that nothing in the record shows that they "were ever given another chance to file or correct affidavits[.]" Vincent argues that the Semple Parties did not submit any competent summary-judgment evidence and, as a result, the trial court properly granted summary judgment based on the uncontested evidence that Vincent submitted.
The Semple Parties contend that these "affidavits were forwarded to Appellant Carol Mat[t]hews on her personal email by her two former attorneys when they were engaged in settlement [] discussion offers with" Vincent's attorney. In addition, the Semple Parties cite Moya v. O'Brien, 618 S.W.2d 890, 893 (Tex. App.—Houston [1st Dist.] 1981, writ ref'd n.r.e.), for the proposition that stating that "I believe" in an affidavit is sufficient if the contents of the affidavit make clear that the affiant had personal knowledge. Given our disposition, it is not necessary for us to address these arguments.
The Semple Parties also state that the trial court "refus[ed] to list the rules" that they had not followed.
Analysis
We conclude that it is not necessary for us to address the Semple Parties' arguments that the trial court "ignored" their summary-judgment evidence and incorrectly concluded that their affidavits were defective. See TEX. R. APP. P. 44.1(a)(1); 17090 Parkway, 80 S.W.3d at 259. Based on our review of the entire summary judgment record, including the evidence submitted by the Semple Parties, we conclude that Vincent established that he was entitled to judgment as a matter of law. The statements in the evidence that the Semple Parties submitted do not concern when the causes of action asserted by the Semple Parties accrued, which is the only element at issue concerning Vincent's affirmative defense of limitations. The Semple Parties contend that the affidavits by Matthews "showed negotiations" in 2013 concerning "settling the debt." They state that the Matthews affidavits and attached exhibits "pointed out the fact that" their "claim[s] were not time barred and [the] statute of limitations did not run[.]" The affidavits and attached e-mails concern settlement negotiations. As we have noted, settlement negotiations, absent bad faith or fraud, do not toll the statute of limitations. Lockard, 855 S.W.2d at 106; see Fiengo, 225 S.W.3d at 862; Cook, 673 S.W.2d at 235. And the Semple Parties did not offer evidence of fraud or bad faith in settlement negotiations. We conclude that the Semple Parties did not raise a fact issue on Vincent's affirmative defense of limitations.
In their reply brief, when the Semple Parties argue that they submitted admissible, competent summary-judgment evidence, they state that they "did not wish to rely only [on] the Affidavits of Matthews" and then discuss only Matthews's affidavits.
We resolve the Semple Parties' second issue against them.
MOTIONS TO AMEND PLEADINGS AND FILE EVIDENCE
In their appellate brief, the Semple Parties list their third "Issue[] Presented for Review" as "Whether trial court erred in granting summary judgment based on Appellants not following the rules" but their arguments in their brief and reply brief focus on their contention that the trial court erred in "[i]gnoring" their motion to file an amended pleading and their motion to file evidence.
The Semple Parties argue that the trial court erred by granting summary judgment and "ignor[ing] both" their verified motion for leave to file an amended pleading and their verified motion for leave to file "additional evidence in response to Summary Judgment." The motion for leave to file an amended pleading requested leave to file "a First Amended Original Complaint" and stated that the amended pleading "addresses issues that have recently come to light in this Case" and "focuses on the legal and factual issues in the case, and will facilitate the [Semple Parties'] affidavits." No pleading or other evidence was attached as an exhibit to the motion.
The Semple Parties contend that "the trial court was incorrect" when it stated at the summary judgment hearing that Vincent had filed his objection to their summary-judgment evidence in the "last day or[] two" because Vincent filed his objection just over an hour before the summary judgment hearing began. But, regardless, the Semple Parties have not explained how this allegedly incorrect statement constituted error by the trial court.
The motion for leave to file evidence stated that the Semple Parties filed their response to Vincent's summary judgment on December 4, 2015 and that they "discovered that Affidavits that were prepared and notarized were missing in the Court[']s[] filing records along with other Affidavits." No evidence was attached to the motion.
The motion for leave to file evidence mentions that affidavits "were missing" from the court records, but then focuses on the Semple Parties' request that the court "grant leave to file the amended pleading."
Arguments of the Parties
The Semple Parties contend that the motions "establish the grounds for leave to file late evidence or late pleadings." They argue that courts should freely give leave to amend when justice requires and that summary judgment should not be based on a pleading deficiency curable by amendment. The Semple Parties contend that the "motions were intended to point out more evidence establishing that genuine issues of material fact[] exist." They also state that the motion for leave to file an amended pleading was intended to allow the Semple Parties to file "one of their Affidavits which [was] given to the Court clerk, but she did not file" it.
Vincent argues that the two motions that the Semple Parties filed immediately before the summary judgment hearing did not establish grounds for leave to file late pleadings or evidence. He contends that the Semple Parties "chose to rely on the promise of hypothetical pleadings and undisclosed evidence without explaining how these pleadings or [this] evidence would change the result."
Motion for Leave to File Amended Pleading
We review the trial court's ruling on amended pleadings for an abuse of discretion. Strange v. HRsmart, Inc., 400 S.W.3d 125, 131 (Tex. App.—Dallas 2013, no pet.). Rule 63 of the rules of civil procedure provides that amended pleadings may be filed within seven days of trial only with leave of court. TEX. R. CIV. P. 63. A summary judgment proceeding is a trial within the meaning of rule 63. Goswami v. Metro. Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988); John C. Flood of DC, Inc. v. SuperMedia, L.L.C., 408 S.W.3d 645, 653 (Tex. App.—Dallas 2013, pet. denied). Rule 63 also provides that leave should be granted unless filing the amended pleading will operate as a surprise to the opposite party. TEX. R. CIV. P. 63.
The Semple Parties filed their motion for leave to file an amended pleading one day before the summary judgment hearing. They did not attach their proposed amended pleading to their motion for leave. The motion states that it requests leave to file "a First Amended Original Complaint" that "addresses issues that have recently come to light in this Case" and "focuses on the legal and factual issues in the case[.]" At the hearing, the court stated that the Semple Parties had "not indicated what evidence or pleadings they would like to file that I can see" and asked the Semple Parties to explain. After Semple provided various explanations for why she did not have the evidence she sought to file (but not explanations concerning the absence and substance of the proposed amended pleading), the trial court stated that "based on the record before" the court, it was "going to have to grant the Summary Judgment." We conclude that the court did not abuse its discretion by not granting the motion for leave to file an amended pleading. See TEX. R. CIV. P. 63.
Motion for Leave to File Evidence
The nonmoving party in a summary judgment proceeding may file and serve opposing affidavits or other written responses no later than seven days prior to the scheduled date of the summary judgment hearing. TEX. R. CIV. P. 166a(c). The nonmoving party may file summary-judgment evidence after the seven-day deadline only with leave of the trial court. See id.; Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Moreno v. Silva, 316 S.W.3d 815, 819-20 (Tex. App.—Dallas 2010, pet. denied). It is entirely within the trial court's discretion whether to allow the late filing of evidence opposing a motion for summary judgment. Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 486 (Tex. App.—Dallas 1995, writ denied); Bell v. Moores, 832 S.W.2d 749, 755 (Tex. App.—Houston [14th Dist.] 1992, writ denied); see Sullivan, 943 S.W.2d at 486 ("It is not an abuse of discretion for the trial court to refuse to consider untimely affidavits opposing a motion for summary judgment.").
Where, as here, "nothing in the record indicates that late filing of summary judgment response or evidence was with leave of court, we presume the trial court did not consider the response or evidence." Moreno, 316 S.W.3d at 820; see Benchmark, 919 S.W.3d at 663.
The Semple Parties filed their motion for leave to file summary-judgment evidence one day before the summary judgment hearing. See TEX. R. CIV. P. 166a(c). The motion requests leave "to file additional evidence in response to Summary Judgment" and describes the Semple Parties' "discover[y]" that affidavits "were missing in the Court[']s[] filing records[.]" But the motion also states that the court "should allow the filing of Plaintiffs' First Amended Original Petition" and asks the court "to grant leave to file the amended pleading." And the evidence that the Semple Parties moved to file was not attached to the motion. At the summary judgment hearing, the court noted that the Semple Parties had not indicated what evidence they desired to file and asked them to explain. Semple stated that she had an affidavit of John Reeves but she did not have a copy of the affidavit with her. She also referred to court records that she "ha[d] to get" in "support of [her] summary judgment" and two other affidavits that she did not have with her. We conclude that the trial court did not abuse its discretion by not granting the Semple Parties' motion for leave to file evidence. We overrule appellants' issue concerning their motions to file an amended pleading and evidence.
CONCLUSION
We affirm the trial court's order granting summary judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE 151571F.P05
JUDGMENT
On Appeal from the 68th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-14-11180.
Opinion delivered by Justice Lang-Miers, Justices Francis and Whitehill participating.
In accordance with this Court's opinion of this date, we AFFIRM the trial court's order granting summary judgment. Judgment entered this 5th day of July, 2017.