Opinion
No. 05-08-01576-CV
Opinion Filed November 25, 2009.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. CC-08-03131-B.
Before Justices MORRIS, BRIDGES, and MURPHY.
MEMORANDUM OPINION
In this suit on an account, appellant Unifund CCR Partners complains in six issues about the notice and merits of a no evidence summary judgment granted in favor of appellee Gordon R. Perkins. We affirm the trial court's judgment and issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4.
I.
Unifund sued Perkins on an account claimed to have been acquired from Citibank South Dakota NA. Perkins filed a sworn denial and counterclaimed under the Fair Debt Collection Practices Act, the Texas Debt Collection Act, the Texas Deceptive Trade Practices Act, and in tort for unreasonable collection actions. Shortly after filing his answer and counterclaim, Perkins filed a no evidence motion for partial summary judgment on Unifund's claim, identifying the two specific elements in issue as Unifund's creditor status, either as the creditor to whom Perkins incurred a debt or as the assignee of such a creditor. Tex. R. Civ. P. 166a(i) (party may move for summary judgment on ground of no evidence of one or more essential elements of a claim). The motion did not address Perkins's counterclaim. Perkins gave Unifund proper notice of a June 6, 2008 hearing on his summary judgment motion. See Tex. R. Civ. P. 166a(c) (motion shall be filed and served at least twenty-one days before hearing). On June 4, 2008, Unifund filed a motion for leave to file a late response to the summary judgment motion, together with a response that attached an "affidavit of indebtedness." See Tex. R. Civ. P. 166a(c) (except on leave of court, respondent may file written response not later than seven days before hearing). The same day, Perkins filed objections to and a motion to strike Unifund's summary judgment evidence based on the adequacy of Unifund's attached affidavit. The record reflects no rulings on the motion for leave or the objections. From a docket entry, it appears the trial court called the no evidence summary judgment motion for hearing on June 5, 2008-not June 6, both parties appeared, and the trial court gave Unifund thirty more days pursuant to its request for additional time for discovery. Thereafter, on July 9, 2008, the trial court signed a partial summary judgment reciting that counsel for Perkins appeared for a hearing that date and Unifund failed to appear. The judgment recited further that "[a]fter considering the pleadings, motion, response, evidence on file, and arguments of counsel," the court granted the motion and rendered judgment for Perkins on Unifund's suit. On August 12, 2008, Perkins filed a non-suit of his counterclaim and motion to sign final summary judgment. On August 25, 2008, Unifund filed a motion to set aside partial summary judgment and a response to Perkins's "motion to sign final summary judgment." Unifund sought to have the partial summary judgment set aside due to Perkins's failure to notify Unifund of the July 9 hearing and objected to the final summary judgment, claiming as the sole ground that the "case should be heard on its merits and not on a procedural default caused by [Perkins's] failure to [provide notice]." On August 26, 2008, the trial court signed an "order of non-suit" confirming the counterclaim was dismissed without prejudice on the date the notice of non-suit was filed-August 12, 2008. The same day, the trial court signed a "final summary judgment," confirming that, with Perkins's non-suit of his counterclaims, no claims or causes of action remained and ordering Unifund take nothing by its actions against Perkins. This appeal followed. In its first and second issues, Unifund complains about lack of notice of the July 9, 2008 partial summary judgment hearing. Unifund's third, fourth, and sixth issues relate to lack of notice of the trial court's "ruling" on Perkins's motion for final summary judgment. In its fifth issue, Unifund complains of error on the merits of the partial summary judgment. Perkins did not file a brief on appeal.
II.
Due process requires that parties be notified of the pendency of an action so they may have the opportunity to be heard. Armstrong v. Manzo, 380 U.S. 545, 550 (1965) (citations omitted). Thus, a movant in a summary judgment proceeding must provide the respondent with proper notice of the hearing on the motion before being entitled to summary judgment. See Lester v. Capital Indus., Inc., 153 S.W.3d 93, 95 (Tex. App.-San Antonio 2004, no pet.). Under Texas Rule of Civil Procedure 166a, the summary judgment movant must file and serve the motion and any supporting affidavits at least twenty-one days before the time specified for the hearing. Tex. R. Civ. P. 166a(c). An oral hearing is not mandatory, but notice of hearing or submission is required because the hearing date determines the time for the response. Martin v. Martin, Martin Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam). A summary judgment hearing may be reset and noticed on less than twenty-one days provided the movant properly noticed the original hearing. LeNotre v. Cohen, 979 S.W.2d 723, 726 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). Although a trial court commits error in granting a motion for summary judgment without notice of hearing or submission, the error is harmless if the court fully considered the response. Martin, 989 S.W.2d at 359; see also Whiteside v. Ford Motor Credit Co., 220 S.W.3d 191, 195 (Tex. App.-Dallas 2007, no pet.) (due process rights not violated where appellant did not describe what further response he wished to make to summary judgment motion). In its first two issues, Unifund complains its due process rights were violated and the trial court erred when it granted Perkins's summary judgment motion when Unifund had not received notice of the hearing. Unifund admits it received proper notice of the first summary judgment hearing and that it was not entitled to another twenty-one days notice of the continued hearing date. Its complaint is that it received no notice of the July 9 hearing. Despite Unifund's assertion in its motion to set aside partial summary judgment and in its appellate brief that it had attached two affidavits providing proof of "no notice," the record contains no affidavits. Assuming, however, Unifund presented sufficient evidence showing lack of notice, the claimed error is that "had counsel been present at the hearing . . . the arguments raised in Unifund's Response show, at a minimum, a scintilla of probative evidence to raise a genuine issue of material fact." Unifund does not argue that it would have filed any supplemental response or offered additional evidence; rather, it "recognizes that it had the opportunity to file a Response." On this record, and assuming without deciding no notice was given of the July 9 hearing, Unifund's due process rights were not violated and any error in granting the summary judgment without notice was harmless. See Martin, 989 S.W.2d at 359; Whiteside, 220 S.W.2d at 195. We overrule issues one and two.
III.
We next turn to Unifund's arguments in issues three, four, and six regarding notice of the trial court's ruling on Perkins's "motion for final summary judgment." Unifund contends it was entitled to twenty-one days notice of the hearing on final summary judgment, the trial court gave no notice of its intent to rule on the request for final summary judgment, and the trial court erred in "granting" final summary judgment without addressing Unifund's "'Motion to Set Aside et al.' and the issues raised concerning proper notice to Unifund of the July 9, 2008, hearing." Our resolution of issues one and two are dispositive of these issues to the extent they are based on lack of notice, if any, of the July 9 hearing. We therefore address whether Unifund was entitled to any notice as to the August 26, 2008 final summary judgment. In making this determination, we first look to the language of the final summary judgment. The order confirms the partial summary judgment rendered July 9, 2008 was not final because of Perkins's pending counterclaim. The trial court then recites in the order that, with the August 12, 2008 non-suit of Perkins's counterclaim, the court had "disposed of all claims and causes of action pending herein," and therefore rendered final judgment. The law is well-established that a party has an absolute right to dismiss its case, or take a non-suit, which is effective upon filing of a notice. Tex. R. Civ. P. 162 (dismissal or non-suit shall be entered in the minutes); Univ. of Tex. Med. Branch at Galveston v. Blackmon, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam) (non-suit effective when filed). When Perkins dismissed his counterclaim, the trial court had already rendered and signed a partial summary judgment on Unifund's claims. Accordingly, the non-suit disposed of the remaining parties and claims; nothing was left to be noticed or heard. The signing of the final summary judgment was a ministerial duty that was not required under the rules. Blackmon, 195 S.W.3d at 100. We overrule issues three, four, and six.
IV.
In its fifth issue, Unifund claims error as to the merits of the partial no evidence summary judgment granted in favor of Perkins. When a defendant files a motion for summary judgment asserting there is no evidence of one or more essential elements of a plaintiff's claims, the burden shifts to the plaintiff to present summary judgment evidence raising a genuine issue of material fact on the challenged elements. Tex. R. Civ. P. 166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). When reviewing a no evidence summary judgment, we apply the same legal-sufficiency standard of review that is applied when reviewing a directed verdict. Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 882 (Tex. App.-Dallas 2006, no pet.). Under that standard, we must determine whether the non-movant produced more than a scintilla of probative evidence to raise a genuine issue of material fact concerning each of the elements for which the movant asserts there is no evidence. Id. A party submits less than a scintilla of evidence when the evidence is "'so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). If the party with the burden does not raise a genuine issue of material fact, the trial judge must grant the motion. Patino v. Complete Tire, Inc., 158 S.W.3d 655, 659 (Tex. App.-Dallas 2005, pet. denied). Unifund argues that although Perkins failed to identify "the elements on which there is no evidence," Unifund responded with more than a scintilla of evidence on its breach of contract claim. With respect to identification of the no evidence points, we conclude Perkins's motion sufficiently identifies "the elements on which there is no evidence." Specifically, paragraph six stated: "Specific Elements at Issue. In order to prove its cause of action, Plaintiff must prove that: a. Plaintiff is a creditor to whom Defendant incurred a debt, or b. Plaintiff is the assignee of a creditor to whom Plaintiff incurred a debt." We therefore review Unifund's response.
Unifund's response was on file well within seven days before the July 9 summary judgment hearing. Therefore, no permission was required to file the response and Unifund's motion for leave is rendered moot. Additionally, the trial court's order recited that the summary judgment response was part of the trial court's consideration.
The only evidence Unifund offered in its response was the "affidavit of indebtedness," to which Perkins objected on numerous grounds. The record reflects no ruling on the objections; accordingly, the objections are waived to the extent they constitute matters of form. See Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.-Dallas 2005, no pet.) (failure to obtain ruling on form objections in trial court does not preserve issue). To the extent the objections raise substantive defects, we do not reach the merits of the objections because the affidavit here fails to address the questioned status of Unifund as the original creditor or assignee. See id. (substantive defects are those that leave the evidence legally insufficient, and include affidavits which are nothing more than legal or factual conclusion) (citing Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.-Houston [14th Dist.] 2000, no pet.)). The affidavit tendered by Unifund states:
Kim Kenney, being sworn, deposes and says that she is an authorized representative of Unifund CCR Partners, servicer, which is doing business at 10625 Techwoods Circle, Cincinnati, Ohio 45242, and that she is authorized to make the following statements and representations which are within her personal knowledge, and that she is competent to testify to the matters stated herein.
. . .
There is due and payable from GORDON R. PERKINS, Account Number 5491130092801638, the amount of $47245.59.
This account was issued under the name of CITIBANK SOUTH DAKOTA NA and acquired from Citibank (South Dakota) NA. Said account has been forwarded to Hosto and Buchan PLLC, as attorney for Plaintiff Unifund CCR Partners, for the purpose of the commencement of a legal suit, with full power and authority to do and perform all acts necessary for the collection, adjustment, compromise or satisfaction of said claim as permitted by law.
I do solemnly declare and affirm under the penalties of perjury that the matters set forth above are true and correct to the best of my knowledge.
(paragraph regarding Perkins's military status omitted). Kenney's affidavit states only that "[t]his account was issued under the name [Citibank] and acquired from Citibank." (Emphasis added). Assuming without deciding that Unifund's affidavit is legally sufficient, the affidavit fails to offer any proof Unifund was the original creditor; rather, it could be interpreted as negating that possibility. Nor does the affidavit offer proof Unifund is an "assignee" of the original creditor; at best, the affidavit suggests someone "acquired" an account "issued" under the name of Citibank. We therefore conclude Unifund has failed to offer a scintilla of evidence that it is the assignee of a creditor "to whom [Perkins] incurred a debt," and the trial court did not err in granting summary judgment in favor of Perkins. See King Ranch, 118 S.W.3d at 751 (evidence "'so weak as to do no more than create mere surmise or suspicion' of a fact" is less than scintilla); see also Patino, 158 S.W.3d at 659 (trial judge must grant judgment if plaintiff does not raise genuine issue of material fact). Unifund's fifth issue is overruled.
V.
We affirm the trial court's final summary judgment.