Opinion
No. 05-02-01438-CV
Opinion Filed May 28, 2004.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. cc-01-12885-c.
Affirm.
Before MOSELEY, O'NEILL and RICHTER.
MEMORANDUM OPINION
This is a summary judgment case. In one issue, appellant urges the trial court erred by granting summary judgment because the evidence showed material issues of fact. The motion for summary judgment was based alternatively on traditional grounds, as well as the no-evidence provision of the summary judgment rule. Tex. R. Civ. P. 166a(c), (i). The facts are well-known to the parties, and we do not recite them in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. Tex.R.App.P. 47.1. We affirm.
I. Factual Background
Appellant had a mortgage on his home, and appellee was the mortgagee. Appellant went into default. On June 4, 1999, Notice of Intent to Foreclose was sent to appellant via certified mail at his home, which was the subject of the mortgage. After two post office issued notices to appellant, the certified letter was returned unclaimed. Thereafter, by certified letter dated September 8, 2000, appellee sent a Notice of Trustee's Sale scheduled for November 7, 2000. After three post office issued notices to appellant at the same address, the second letter was also returned as unclaimed. The home was sold at the scheduled foreclosure sale, and appellee was the high bidder. Appellant filed suit claiming the foreclosure was wrongful because he never received notice of the trustee's sale as required by §§ 51.002(b) and (d) of the Texas Property Code. Tex. Prop. Code Ann. § 51.002(b), (d) (Vernon Supp. 2004).
Appellant filed an affidavit with the trial court asserting he lived in the home until January 2002.
II. Traditional and No-Evidence Summary Judgment
a) Applicable Law — Traditional Summary Judgment
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).
b) Applicable Law — No Evidence Summary Judgment
Appellees argue there was no evidence of one or more essential elements of appellant's claims under rule 166a(i) of the Texas Rules of Civil Procedure. See Espalin v. Children's Medical Center of Dallas, 27 S.W.3d 675, 682-83 (Tex. App.-Dallas 2000, no pet.) (no-evidence summary judgment motion may be urged on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial). A no-evidence motion for summary judgment places the burden on the nonmovant to present summary judgment evidence raising a genuine issue of material fact. See Tex. R. Civ. P. 166a(i); See also Espalin, 27 S.W.3d at 683.
We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. General Mills Restaurants, Inc. v. Texas Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.-Dallas 2000, no pet.). Thus, we must determine whether the nonmovant produced more than a scintilla of probative evidence to raise a fact issue on the material questions presented. General Mills, 12 S.W.3d at 833. A no-evidence summary judgment is improperly granted if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence ""rises to a level that would enable reasonable and fair-minded people to differ in their conclusions."" Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (citations omitted). When analyzing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. See Nixon, 690 S.W.2d at 549 (traditional summary judgment); General Mills, 12 S.W.3d at 833 (no-evidence summary judgment).
III. Application of Law to Facts
The no-evidence portion of the motion for summary judgment asserted that there was no evidence to support appellant's claim that appellee failed to provide proper notice of the foreclosure sale. Appellant attached a letter to his summary judgment response purported to be from the Officer-in-Charge of the local post office. In pertinent part, that letter states the following: "The other item you were concerned about was Certified Mail number P972639387. Our records show no record is available by that number. Approximate date on that mail was September-October 2002." Appellant claims that the above-quoted section creates a material fact issue as to whether or not the notice of trustee's sale was properly served.
Appellee filed an affidavit from the custodian of the business records of the law firm where the foreclosure notice letters originated, as well as copies of the letters themselves. The envelopes in evidence show post office markings and the dates the post office issued notices that were given to appellant concerning the fact he had certified mail waiting to be picked up.
Appellee objected to appellant's summary judgment evidence, including the purported post office letter. The trial court did not rule on the objection, but granted summary judgment to appellee. The trial court did not indicate whether it granted summary judgment pursuant to the no — evidence section of the rule, or based on traditional summary judgment grounds. An objection to the substance of the nonmovant's summary judgment affidavit may be considered for the first time on appeal. Digby v. Texas Bank, 943 S.W.2d 914, 927-928 (Tex App.-El Paso 1997, writ denied).
Appellee claims that the letter is not proper summary judgment evidence because it was attached to appellant's affidavit, and appellant did not have personal knowledge of the facts asserted in the letter attachment. Further, appellee claims the affidavit relies on the unsworn statement of a post office official and is, therefore, inadmissible hearsay. We agree. Summary judgment affidavits shall (1) be made on personal knowledge, (2) set forth facts as would be admissible in evidence, and (3) affirmatively show that the affiant is competent to testify to the matters stated therein. Gerstacker v. Blum Consulting Eng'r, 884 S.W.2d 845, 848 (Tex. App.-Dallas 1994, writ denied). As the purported facts asserted in the post office letter are not within the personal knowledge of appellant and the letter itself would not be otherwise admissible in evidence, the letter is not proper summary judgment evidence.
Furthermore, Appellee asserts that the quoted language from the post office letter does not establish that the notice of trustee's sale letter was never deposited for delivery with the U.S. Postal Service. Appellee claims the reference to "no record" of the letter's certified number does not establish that the letter was never mailed. In addition, appellee claims the last sentence of the letter indicates "the approximate date of that mail was September-October," and that the post office would not know that fact had the letter not been deposited in the mail. Again, we agree.
Because §§ 51.002(b) and (d) of the Texas Property Code only require that the certified mail be deposited for delivery, the fact that appellant may never have received the mail is not dispositive. Tex. Prop. Code Ann. § 51.002(b), (d) (Vernon Supp. 2004); See e.g., Onwuteaka v. Cohen, 846 S.W.2d 889, 892 (Tex. App.-Houston [1st Dist.] 1993, writ denied). Indeed, due to the postal notification entries on the letters' envelopes, one could divine that appellant chose not to receive the mailed notice of trustee's sale.
IV. Conclusion
For the foregoing reasons, we affirm the judgment of the trial court.