Opinion
No. 05-03-00734-CV
Opinion Filed July 12, 2004.
On Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 01-7120-F.
Affirm.
Before FITZGERALD, RICHTER and LANG.
MEMORANDUM OPINION
This case involves an action to collect a credit card debt. The trial court granted a traditional summary judgment for appellee bank. Appellant, debtor Block, raises four issues on appeal. In his first issue, he claims the trial court abused its discretion when it implicitly overruled his motion for continuance or, in the alternative, his motion to strike. In his second issue, he claims the trial court erred by granting summary judgment for the bank. In his third issue, he claims the trial court erred by overruling his objection to the bank's summary judgment proof consisting of a business records affidavit from the bank's custodian of records. In his fourth and final issue, he claims the court erred by granting the bank's request for attorney fees. We affirm the judgment of the trial court. The facts of this case are well-known to the parties, and we do not recite them in any detail. Because all dispositive issues are firmly settled in the law, we issue this memorandum opinion. Tex.R.App.P. 47.1.
DISCUSSION
Motion for Continuance, alternative Motion to Strike
In Block's first issue, he claims the court below erred by implicitly overruling his motion for continuance or alternative motion to strike. This Court recently addressed the standard of review concerning motions for continuance in the summary judgment context. See Crooks v. Moses, No. 05-03-00726-CV, 2004 WL 1517551, at *2 (Tex. App.-Dallas July 8, 2004, no pet. h.). We review the trial judge's ruling on a motion for continuance in the summary judgment context for an abuse of discretion. Id.
Block claims he was entitled to a continuance because he was surprised by a summary judgment affidavit lodged by a person not previously disclosed during discovery. Block's argument is untenable because the name of the affiant was not only disclosed in interrogatory responses, but his name was also contained on an attachment to the initial petition filed on August 21, 2001. The initial petition was filed over a year prior to the filing of the motion for summary judgment. The affiant's name was also disclosed as a person with knowledge of relevant facts in the disclosures made on December 31, 2001. Finally, the affiant provided an affidavit dated November 2, 2001, in connection with an earlier motion for summary judgment. We conclude the court below did not abuse its discretion in denying a continuance. We will discuss the motion to strike aspect of this issue contemporaneously with appellant's third issue, wherein he complains the trial court overruled his objections to the affidavit. We overrule Block's first issue.
Summary Judgment
In his second issue, Block claims the trial court erred in granting summary judgment against him. The standard of review in summary judgment cases is well-established. See Tex. R. Civ. P. 166a(c); Black v. Victoria Lloyds Insurance Co., 797 S.W.2d 20, 23 (Tex. 1990). In reviewing a summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Every reasonable inference in favor of the nonmovant is allowed, and all doubts are resolved in his favor. Nixon, 690 S.W.2d at 548-49. To prevail on summary judgment, a defendant as movant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979) ; Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex. App.-Dallas 1992, writ denied). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston, 589 S.W.2d at 678. A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. See Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).
In this case, Block claims summary judgment was not proper because the bank untimely amended its petition to assert a new theory of recovery. To properly preserve a complaint regarding an untimely pleading, the complaining party must demonstrate surprise and request a continuance. Goswami v. Metropolitan Sav. Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988); Fletcher v. Edwards, 26 S.W.3d 66, 74 (Tex. App.-Waco 2000, pet. denied). Because Block did not claim surprise, or request a continuance on the basis of an untimely amendment, he has waived this claim. Block also claims summary judgment was improper because the bank failed to demonstrate contractual privity with Block. We disagree because the Bank proved all of the elements for breach of contract. See Hussong v. Schwan's Sales Enter., Inc., 896 S.W.2d 320, 326 (Tex. App.-Houston [1st Dist.] 1995, no pet.) (contract existence, performance, breach, causation, and damages). The bank provided Block's signatory reply to the bank's predecessor-in-interest's revolving credit offer. The bank subsequently issued new credit cards to Block, which he used. The bank sent statements to Block, to which he made monthly payments. Block admitted the debt in his discovery responses. Block also provided a copy of a cancelled check showing a payment to the bank based upon his unique identifying revolving credit account number. Block stopped making payments, and absence of payment was shown. We overrule Block's second issue.
Objection to Summary Judgment Affidavit
In his third issue, Block claims the trial court erred in failing to sustain his objections to the business records affidavit attached to the motion for summary judgement. A trial court's admission of summary judgment evidence is determined by an abuse of discretion standard. Wolfe v. C.S.P.H., Inc., 24 S.W.3d 641, 646 (Tex. App.-Dallas 2000, no pet.). Block claims the affidavit is defective because it was not based on personal knowledge, was conclusory, contained hearsay, did not authenticate documents attached to it, was based on speculation, and contained unsubstantiated opinions. The substance of these complaints goes to the fact that the bank had purchased the revolving account from another bank. Block, in essence, argues the custodian of appellee bank's records is incompetent to testify about the predecessor bank's records. However, once appellee bank purchased the predecessor bank's accounts, it took possession of the former's business records. It is not necessary that loan account records be verified by the custodian of the original holder's records. See Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106, 112-113 (Tex. App.-Dallas 1991, no writ). In all other respects, the business records affidavit substantially comports with the Rules of Evidence, Rule 902(10). Tex. R. Evid. 902(10). We conclude the court below did not abuse its discretion in overruling Block's objection to the business records affidavit. Because we conclude the trial court did not err in overruling Block's objections to the business records affidavit, we also conclude his request to strike the affidavit, raised as a sub-issue to his first issue, is likewise without merit. We overrule Block's third issue.
Attorney's Fees
In his fourth and final issue, Block claims the trial court erred in awarding attorney's fees to the bank. Ordinarily, the allowance of attorney's fees rests with the sound discretion of the trial court and will not be reversed without a showing of abuse of discretion. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990). Plaintiff's attorney took the stand to testify to the amount and reasonableness of his attorney's fees. He was cross-examined by Block as to his procedures used in his attempts to collect a debt; however, Block did not challenge the time expended. Block postulated that $325 per hour was high for a collection attorney, but he produced no countervailing evidence. Plaintiff's attorney testified the bank belatedly came to him to try the case due to real or perceived rambo-style litigation tactics. Thus, he claims, his hourly fee was reasonable and comported with the standards in the community of Dallas, Texas.
Block seeks remittitur. Appellate courts may suggest remittitur of damages only if the award is so factually insufficient or against the great weight and preponderance of evidence as to be manifestly unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). Based upon the record, we do not believe the award for attorney's fees is factually insufficient or against the great weight and preponderance of the evidence.
As a corollary matter, Block complains that plaintiff's attorney was not the attorney of record and, therefore, is not entitled to attorney fees. The original petition was filed and signed by attorney James N. Hull. Thereafter, attorney Ed Harrell took over the case when it became apparent that it was going to trial. A motion to substitute was filed, but it was never ruled upon, and no order was signed. Attorney Ed Harrell then filed a first amended petition and the motion for summary judgment at issue.
Rule 8 of the Rules of Civil Procedure governs the designation of an attorney-in-charge. An attorney-in-charge may be changed by filing a written notice with service to other parties. Tex. R. Civ. P. 8. The rule does not expressly require a written motion or that an order be signed. We conclude the motion to substitute counsel, which was never ruled upon by the court, satisfies the requirement of written notice. In any event, the rule does not state that only the attorney-in-charge is entitled to attorney's fees.
Furthermore, the rules contemplate the situation wherein a party has more than one attorney of record. See, e.g., Tex. R. Civ. P. 57 (every pleading shall be signed by "one attorney of record."). In addition, the Civil Practice and Remedies Code does not expressly limit recoverable attorney's fees to the attorney-in-charge. See Tex. Civ. Prac. Rem. Code Ann. § 38.001, 38.002(1) (Vernon 1997). Although what constitutes a reasonable attorney's fee is a question of fact, clear, direct and uncontroverted evidence of attorney's fees is taken as true, especially if there is no contradictory evidence. Ragsdale, 801 S.W.2d at 881-882.
Based upon the foregoing, we conclude that attorney Ed Harrell is properly entitled to attorney's fees and the trial court did not abuse its discretion in awarding attorney's fees to Harrell. We overrule Block's fourth issue. Having overruled all four of Block's issues, we affirm the judgment of the trial court.