Summary
holding affidavit containing qualifying language, i.e., "to the best of my knowledge," did not satisfy Rule 93
Summary of this case from Miller v. Maplewood Square Council of Co-OwnersOpinion
No. 05-08-01323-CV
Opinion Filed November 18, 2009.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. 07-13218-B.
Before Justices O'NEILL, FRANCIS, and LANG.
MEMORANDUM OPINION
Jay Wimmer appeals a summary judgment granted in favor of Hanna Prime, Inc. in a suit involving a sworn account and breach of contract. In his sole issue, Wimmer contends the trial court erred in granting summary judgment because the evidence raised a material issue of fact as to whether Wimmer had personally guaranteed the debt.
For the reason below, we decide against Wimmer on his sole issue. Because all dispositive issues are well settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.2(a), 47.4. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Universal Precision Plastics contracted with Hanna Prime for the purchase of Hanna Prime's product. In addition, Hanna Prime sent Universal Precision Plastic a credit application which was completed by Wimmer. Wimmer signed the application as "President of Tringen, General Partner."
On September 18, 2007, Hanna Prime filed suit against Universal Precision Plastics, Tringen, Inc., and Wimmer for breach of contract and sworn account. A general denial was filed for the defendants. Wimmer pled an "affirmative defense" that "he did not contract in his individual capacity and is not liable personally for any debts. . . ." The original answer was not verified. Thereafter, on March 26, 2008, Hanna Prime filed an amended original petition alleging that Wimmer "agreed to be personally responsible and liable for [Universal Precision Plastics] debt owed to Plaintiff." On April 1, 2007, Hanna Prime filed its motion for summary judgment.
The defendants filed an "Amended Original Answer," in which Wimmer asserted that he "did not contract with Plaintiff in individual capacity and is not liable personally for any debts. . . ." The amended answer contained a "verification," signed by Wimmer. In pertinent part, the verification states, "I have read the foregoing Defendant's Amended Original Answer, and the facts alleged therein constituting verified denials and affirmative defenses, are, to the best of my knowledge, true and correct." The defendants also filed a Response to the Motion for Summary Judgment. Wimmer's affidavit, attached to the response, asserted that he did not contract with Hanna Prime in his individual capacity.
The trial court heard Hanna Prime's Motion for Summary Judgment and on August 28, 2008 signed its "Amended Order Granting Final Summary Judgment" that stated defendants are jointly and severally liable to Hanna Prime for $18,763.20. Wimmer timely filed his notice of appeal.
II. SUMMARY JUDGMENT
In his sole issue, Wimmer contends that the trial court erred by granting summary judgment in favor of Hanna Prime because the evidence raised a material issue of fact as to whether Wimmer personally guaranteed the debt. Hanna Prime responds summary judgment was proper because "Wimmer never filed a Rule 185 or a Rule 93(2) verified denial of the Plaintiff's account."
A. Standard of Review and Applicable Law
The standard for reviewing a traditional summary judgment is well-established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); First Union Nat'l Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 923 (Tex. App.-Dallas 2005, no pet.). An appellate court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 860 (Tex. 2005). A party moving for traditional summary judgment carries the burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005); W. Inv., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982); First Union, 168 S.W.3d at 923.
B. Application of Law to Facts
Wimmer asserted in his pleadings that he is not liable in the capacity in which he was sued and was required to verify his plea by affidavit. Tex. R. Civ. P. 93 (2); Evans v. Kelly Springfield Tire Co., 620 S.W.2d 737, 738 (Tex. Civ. App.-Dallas 1981, no writ.); Davis v. Young Californian Shoes, Inc., 612 S.W.2d 703, 704 (Tex. Civ. App.-Dallas 1981, no writ). The verification must "positively" and "unqualifiedly" represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). The language "to the best of my knowledge" in Wimmer's affidavit attached to the amended original answer did not attest to the truthfulness of the facts alleged, and is not legally effective as a verification. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Lightfoot v. Weissgarber, 763 S.W.2d 624, 627 (Tex.App.-San Antonio 1989, writ denied) ("It is a long established rule in Texas that affidavits, in order to constitute summary judgment proof, must be sworn to on personal knowledge and that those sworn to on best knowledge and belief are insufficient.") (citing Brownlee v. Brownless, 655 S.W.2d 111, 112 (Tex. 1984)).
Because Wimmer failed to verify his plea in accordance with rule 93, he did not raise a material issue of fact as to whether he personally guaranteed the debt. Consequently, the trial court did not err in granting Hanna Prime's motion for summary judgment. We decide Wimmer's sole issue against him, and affirm the trial court's judgment.
III. CONCLUSION
We conclude the trial court did not err in granting summary judgment in Hanna Prime's favor. We decide Wimmer's sole issue against him, and affirm the trial court's judgment.