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Jones v. WKB Value Part.

Court of Appeals of Texas, Fourth District, San Antonio
Jun 4, 2008
No. 04-07-00865-CV (Tex. App. Jun. 4, 2008)

Opinion

No. 04-07-00865-CV

Filed: June 4, 2008.

Appeal from the 150th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-18359, Honorable Karen Pozza, Judge Presiding.

AFFIRMED.

Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, STEVEN C. HILBIG, Justice.


MEMORANDUM OPINION


This case arises from appellant Cedric Jones's guaranty and assumption of a commercial lease agreement. The trial court granted appellee WKB Value Partners, L.P.'s ("WKB") motion for traditional summary judgment on its breach of contract claim against Jones, and Jones brought this appeal. We affirm.

Background

WKB is the owner of a commercial building, the Cypress Tower, located in San Antonio, Texas. On September 10, 2002, WKB entered into a written lease agreement with Blue Collar Group, Inc. ("Blue Collar") for office space in the Cypress Tower. Following the execution of the lease agreement, WKB obtained a rental guaranty from Jones obligating him to serve as Blue Collar's guarantor on November 25, 2003.

On December 30, 2003, WKB agreed to Blue Collar's assignment of its interest in the Cypress Tower lease to Colette Dilworth ("Dilworth"). The consent to assignment agreement reached by WKB, Blue Collar, Dilworth, and Jones provided that Dilworth would assume all of Blue Collar's obligations under the lease and specified that Blue Collar would remain fully liable to WKB in the event Dilworth defaulted on her obligations. The consent to assignment agreement further provided that Jones would continue to remain liable to WKB after the assignment in accordance with the terms of his prior rental guaranty. Jones specifically agreed in the consent to assignment agreement that he: (1) "is and shall continue to be liable under the terms of that certain Rental Guaranty dated November 25, 2003"; (2) "consents to the execution of th[e] Assignment"; and (3) "agrees that the Rental Guaranty (a) covers the obligations of [Dilworth] under the Assignment, and (b) is in full force and effect."

Dilworth eventually stopped making lease payments to WKB and vacated the lease space on October 31, 2004. WKB sought to collect payment from Blue Collar, Dilworth, and Jones following Dilworth's default in accordance with the terms of the consent to assignment and lease agreements. However, WKB was unable to secure payment from Blue Collar, Dilworth, or Jones.

WKB sued Blue Collar, Dilworth, and Jones for breach of contract. WKB moved for summary judgment against Blue Collar and secured a judgment in its favor. WKB asked the trial court to sever its claim against Blue Collar and then moved to nonsuit Dilworth from the litigation. WKB later moved for summary judgment against Jones, claiming Jones was liable for all unpaid amounts related to the lease property pursuant to the terms of the consent to assignment agreement he executed. In support of its summary judgment motion, WKB attached: (1) an affidavit from Walter Foster, a WKB representative, regarding the lease and consent to assignment agreements and the events that followed their execution; (2) the lease agreement; and (3) the consent to assignment agreement. Jones filed written objections to WKB's summary judgment evidence, claiming Foster's affidavit failed to comply with the business record exception to the hearsay rule and was conclusory. The trial court overruled Jones's objections and granted summary judgment in favor of WKB.

Jones filed a motion for new trial, claiming the trial court erred by relying on Foster's affidavit to grant summary judgment in WKB's favor. According to Jones, Foster's affidavit relied on facts contained in an exhibit not attached to the affidavit and thus could not support the granting of summary judgment in WKB's favor. The trial court denied Jones's motion for new trial, and this appeal followed.

Standard of Review

We review a trial court's summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Tex. R. Civ. P. 166a(c). "When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Grant, 73 S.W.3d at 215.

Discussion

Jones claims on appeal that the trial court erred by relying on Foster's affidavit to grant summary judgment in WKB's favor because Foster's affidavit relies on facts contained in an exhibit not attached to the affidavit. Jones notes that although Foster's affidavit refers to the rental guaranty dated November 25, 2003, WKB failed to attach the rental guaranty to the affidavit. Without the rental guaranty attached, Jones claims Foster's affidavit is substantively defective and thus cannot support the summary judgment granted in favor of WKB. WKB responds that Jones waived his right to raise this issue on appeal. We agree with WKB.

The crucial issue in this appeal is whether a party's failure to attach documents referenced in an affidavit is characterized as a defect in form or a defect in substance. There is a split of authority among the appellate courts on this issue, but this court, and others, deems the defect one of form, not substance. Sunsinger v. Perez, 16 S.W.3d 496, 501 (Tex.App.-Beaumont 2000, pet. denied); Mathis v. Bocell, 982 S.W.2d 52, 60 (Tex.App.-Houston [1st Dist.] 1998, no pet.); Martin v. Durden, 965 S.W.2d 562, 565 (Tex.App.-Houston [14th Dist.] 1997, pet. denied); see also Knetsch v. Gaitonde, 898 S.W.2d 386, 389-90 (Tex.App.-San Antonio 1995, no writ); but see Galindo v. Dean, 69 S.W.3d 623, 627 (Tex.App.-Eastland 2002, no pet.); Kleven v. Tex. Dep't of Criminal Justice-Inst. Div., 69 S.W.3d 341, 345 (Tex.App.-Texarkana 2002, no pet.); Lee v. Lee, 43 S.W.3d 636, 640 (Tex.App.-Fort Worth 2001, no pet.); Rodriquez v. Tex. Farmers Ins. Co., 903 S.W.2d 499, 506 (Tex.App.-Amarillo 1995, writ denied); Ceballos v. El Paso Health Care Sys., 881 S.W.2d 439, 445 (Tex.App.-El Paso 1994, writ denied). Defects in the form of summary judgment proof will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. Gomez v. Allstate Tex. Lloyds Ins. Co., 241 S.W.3d 196, 202 (Tex.App.-Fort Worth 2007, no pet.). Objections to formal defects raised for the first time in a motion for new trial are insufficient to preserve error. Wynne v. Citibank (S.D.) N.A., No. 07-06-0162-CV, 2008 WL 1848286, *3 n. 6 (Tex.App.-Amarillo Apr. 25, 2008, no pet. h.) (mem. op.); Gomez, 241 S.W.3d at 202.

We note that Jones failed to acknowledge on appeal that this court, as well as several of our sister courts, has characterized the failure to attach documents referenced in an affidavit as a defect in form. Counsel are reminded of their obligation to alert the court of contrary authority. See Standards for Appellate Conduct, available at http://www.supreme.courts.state.tx.us/rules/conduct.asp ("Counsel will advise the Court of controlling legal authorities, including those adverse to their position, and should not cite authority that has been reversed, overruled, or restricted without informing the court of those limitations"); see also Tex. Disciplinary R. Prof'l Conduct 3.03(a)(4), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) ("A lawyer shall not knowingly . . . fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel").

The record shows that Jones did not complain about WKB's failure to attach the rental guaranty referenced in Foster's affidavit until he filed his motion for new trial. By not objecting to the form of WKB's summary judgment proof until he filed his motion for new trial, Jones failed to preserve his complaint for our review. Jones's complaint concerning the form of the summary judgment proof is therefore overruled.

As for Jones's argument that an issue of fact exists concerning his liability to WKB, we are unpersuaded by his contention. The summary judgment record shows that pursuant to the terms of the consent to assignment agreement, Jones agreed to be liable to WKB for any obligations or liabilities arising from Dilworth's assumption of the Cypress Tower lease. The consent to assignment agreement expressly states that Jones agreed he would continue to remain liable to WKB under the terms of his rental guaranty after the assignment occurred and that his rental guarantee "cover[ed] the obligations of [Dilworth] under the Assignment." It is undisputed that Dilworth was obligated under the terms of the assignment agreement to make monthly rental payments to WKB for the remainder of the term specified in the original lease executed by Blue Collar, but this did not occur. Thus, when WKB could not secure payment from either Dilworth or Blue Collar, Jones was obligated to remit payment to WKB for the amount owed. Based on the evidence presented, it appears WKB met its burden of showing no genuine issue of material fact exists and that it was entitled to judgment as a matter of law. We therefore hold the trial court properly granted summary judgment in WKB's favor.

Conclusion

The judgment of the trial court is affirmed.


Summaries of

Jones v. WKB Value Part.

Court of Appeals of Texas, Fourth District, San Antonio
Jun 4, 2008
No. 04-07-00865-CV (Tex. App. Jun. 4, 2008)
Case details for

Jones v. WKB Value Part.

Case Details

Full title:CEDRIC JONES, Appellant v. WKB VALUE PARTNERS, L.P., Appellee

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: Jun 4, 2008

Citations

No. 04-07-00865-CV (Tex. App. Jun. 4, 2008)

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