Opinion
NO. 14-16-00837-CV
01-11-2018
LANNSYS, INC. AND PRAKASH M. VERGHESE, Appellants v. WELLS FARGO BANK, N.A., Appellee
On Appeal from the 113th District Court Harris County, Texas
Trial Court Cause No. 2015-06293
MEMORANDUM OPINION
In this breach-of-contract case, defendants/appellants Lannsys, Inc. and Prakash M. Verghese ask us to reverse the summary judgment in favor of plaintiff/appellee Wells Fargo Bank, N.A., on the ground, inter alia, that the summary-judgment evidence on which Wells Fargo relied is conclusory. We agree. We accordingly reverse the trial court's judgment and remand the case for further proceedings consistent with this opinion.
I. BACKGROUND
Wells Fargo alleges that Lannsys and Verghese (collectively, "the Debtors") executed and delivered to Wells Fargo (1) "a Wells Fargo Business Direct Credit Application Agreement and Personal Guarantee," and (2) "a Wells Fargo BusinessLine Customer Agreement." Wells Fargo further alleges that these documents show that Wells Fargo extended a $100,000.00 line of credit to the debtors. According to Wells Fargo, the Debtors used the line of credit without repaying the debt, which as of August 9, 2013, amounted to $81,070.79.
Wells Fargo moved for traditional summary judgment that the Debtors breached the first of these documents, that is, the Business Direct Credit Application Agreement and Personal Guarantee ("the Application"). Wells Fargo asserts in its motion that the Application "evidenc[es] a Line of Credit in the original amount of $30,000.00" and that the Debtors have failed to repay the principal and interest, for which, as of September 15, 2015, they now owe $81,070.79.
In support of the motion, Wells Fargo attached the affidavit of Kyle Cullen, who repeated the same assertions made in the motion. Cullen attached three exhibits to his affidavit. The first exhibit is the Application, which is labeled at the top left as "Page 1 of 1." Below the document's title, are lines identifying Lannsys as the "Business Name" and Verghese as the "Owner/Guarantor." In large font above the body of the Application is the line, "Wells Fargo BusinessLine® Line of Credit Amount Requested: 100000." The body of the Application is printed in a font so small as to be at least partly illegible, and the Application was signed on July 31, 2007 by Verghese as "Chairman." The second exhibit is a BusinessLine® statement dated March 13, 2013 and directed to Verghese. According to this statement, the account has an $80,000 credit line, and the account's balance is $81,070.79. The remaining exhibit contains copies of Wells Fargo's demand letters to the Debtors.
The exhibit containing the Application also includes a "BusinessLine® Customer Agreement Effective November 1, 2005" and a "BusinessLine® Customer Agreement Effective June 1, 2011," but these documents are not mentioned in the summary-judgment motion or in Cullen's affidavit.
The Debtors responded and raised a number of objections to Wells Fargo's summary-judgment motion and evidence, including objections that the motion and its supporting affidavit were not specific and were conclusory. The Debtors also argued that Wells Fargo's summary-judgment evidence raised genuine issues of material fact by failing to explain how they were indebted for $81,070.79 on a $30,000 line of credit. The trial court granted the motion without ruling on the objections.
In their motion for new trial, the Debtors argued, among other things, that the trial court erred in failing to rule on and sustain their objections to Wells Fargo's summary-judgment motion and evidence. The motion for new trial was overruled by operation of law.
II. STANDARD OF REVIEW
We review a summary judgment de novo. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). To prevail on a traditional motion for summary judgment, the movant must establish that there is no genuine issue of material fact as to each element of its claim or defense so that it is entitled to judgment as a matter of law. See id. If the movant meets this burden, then the burden shifts to the non-movant to raise a genuine issue of material fact. See id.; TEX. R. CIV. P. 166a(c). We review the grant of a summary judgment by viewing the evidence in the light most favorable to the non-movant, indulging every reasonable inference in the non-movant's favor, and resolving any doubts against the motion. See City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).
III. THE CONCLUSORY EVIDENCE
Although the Debtors present three issues for review, we need address only their argument that Wells Fargo's summary-judgment evidence is conclusory.
A summary judgment may be granted on the uncontroverted affidavit of an interested witness "if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." TEX. R. CIV. P. 166a(c). Conclusory affidavits are neither credible nor susceptible to being readily controverted. Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Supporting facts are required, because a witness's bare conclusion is not probative evidence. See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 157 (Tex. 2012). Unsupported conclusions, even if made in an affidavit, are legally insufficient to support the existence of the fact asserted. See Lenoir v. Marino, 469 S.W.3d 669, 686 (Tex. App.—Houston [1st Dist.] 2015), aff'd on other grounds, 526 S.W.3d 403 (Tex. 2017).
In its summary-judgment motion, Wells Fargo asserted—without explanation—that a $30,000.00 line of credit turned into a $81,070.79 debt. In support of the motion, Wells Fargo relied on the affidavit of Kyle Cullen, who did no more than swear to the same unexplained assertions. Wells Fargo is silent about the combination of principal, interest, and penalties that make up this sum, and about the interest and penalties that were permitted under the agreement alleged. We know only that Wells Fargo contends the Debtors owe it nearly three times the amount that Wells Fargo purportedly agreed to lend.
We agree with the Debtors that the absence of supporting facts renders the Wells Fargo's summary-judgment affidavit conclusory, and thus, no evidence at all.
IV. CONCLUSION
Because Wells Fargo's summary-judgment motion is supported only by a conclusory, non-probative affidavit, we reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
/s/ Tracy Christopher
Justice Panel consists of Justices Christopher, Brown, and Wise.