Opinion
02-24-00068-CV
08-29-2024
Pilot Point Care, Inc., Appellant v. M Chest Institutional Pharmacy Group, LLC, Appellee
On Appeal from the 467th District Court Denton County, Texas Trial Court No. 19-5857-393.
Before Birdwell, Bassel, and Womack, JJ.
MEMORANDUM OPINION
Dabney Bassel, Justice.
I. Introduction
Appellant Pilot Point Care, Inc. d/b/a Pilot Point Care Center appeals the summary judgment granted in favor of Appellee M Chest Institutional Pharmacy Group, LLC. In a single issue, Pilot Point argues that the evidence is insufficient to support judgment as a matter of law because the invoices used in support of Appellee's summary-judgment motion were in the name of a company other than Appellee without any explanation from Appellee as to how the companies listed on the invoices were related to Appellee. Because the affidavit from Appellee's custodian of records showed Appellee's ownership of the invoices for the account with Pilot Point and because there was no evidence contradicting the affidavit, we affirm the trial court's summary judgment.
II. Factual and Procedural Background
Pilot Point operates a nursing home. Appellee supplies pharmaceutical drugs and services to long-term health care providers like Pilot Point.
On February 1, 2015, and on October 1, 2017, Appellee and Pilot Point executed written agreements for Appellee to supply pharmaceuticals to Pilot Point. According to Appellee, it supplied Pilot Point with pharmaceuticals from February 1, 2015, to May 31, 2018, pursuant to the parties' written contracts and on open account, and invoiced Pilot Point. Appellee claims that payment on the invoices is past due.
After a written demand was sent to Pilot Point and Pilot Point continued to refuse to pay, Appellee sued Pilot Point alleging causes of action for breach of contract, sworn account, and quantum meruit. Pilot Point answered with a general denial and a verified denial and asserted two affirmative defenses-failure to mitigate damages and unenforceable penalty as to the alleged liquidated damages. Pilot Point supplemented its original answer and asserted the affirmative defense of limitations.
Appellee also sued VGM Valley Grande Manor Weslaco Ops, Inc. d/b/a Valley Grande Manor. By the time that Appellee filed its first amended motion for traditional summary judgment, it did not list VGM as a defendant. It is unclear from the record when VGM was dismissed from the suit. VGM is not a party to this appeal.
Appellee filed a first amended motion for traditional summary judgment,seeking summary judgment on each of its claims. Appellee attached to its motion various documents, including the affidavit of its president and chief executive officer Chad Michel, the Account Summary, the Account Detail Report, and the Statements and Invoices - Redacted.
The record does not contain the original motion.
Pilot Point filed a response arguing that Appellee's motion should be denied because, among other reasons, Appellee's claims were barred by limitations, because Appellee's motion sought relief beyond that sought in its pleadings, because a fact issue existed as to whether the goods or services that were provided prior to August 2016 were covered by a contract, and because a fact issue existed as to the proper amount. Pilot Point, however, did not attach any controverting evidence to its response. Appellee filed a reply responding to the grounds raised in Pilot Point's response.
Pilot Point noted that in Appellee's original petition, it had mentioned only an October 1, 2017 contract. After Pilot Point filed its response, Appellee amended its petition and stated that it had executed contracts with Pilot Point on February 1, 2015, and on October 1, 2017.
The trial court held a hearing on Appellee's traditional summary-judgment motion and orally granted partial summary judgment in favor of Appellee for the principal and interest that had accrued in and after August 2016 and for attorney's fees. Afterward, Appellee filed a combined motion for entry of final judgment (on the partial summary judgment granted orally by the trial court) and for nonsuit on its remaining claims. The trial court granted the combined motion and signed a final judgment. Pilot Point filed a motion to reconsider and for new trial, which was overruled by operation of law. This appeal followed.
Pilot Point did not pay for preparation of the reporter's record, so the court reporter did not file one. The final judgment, however, states this information.
III. Summary Judgment Was Proper
In its sole issue, Pilot Point argues that the evidence is insufficient to support judgment as a matter of law. Specifically, Pilot Point contends that the suppliers listed in the invoices at issue are entities other than Appellee and that there is no summary-judgment evidence showing the relationship between the entities listed on the invoices and Appellee or proof that the entities named on the invoices had assigned their claims to Appellee. Pilot Point thus argues that a fact issue exists as to whether Appellee supplied the goods and services for which it seeks to recover from Pilot Point as well as whether Appellee has any right to seek recovery for the value of those goods. Because Appellee's president and CEO's affidavit connects the entities named in the invoices to Appellee, no fact issue exists precluding summary judgment.
Appellee appears to imply in its appellate brief that Pilot Point has not preserved this issue for appeal, stating that Pilot Point "did not complain about its appellate issue in the trial court." When summary-judgment evidence contains "purely substantive defects, those defects can be complained of for the first time on appeal and are not subject to the general rules of error preservation." Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018); see Kroger Specialty Infusion CA, LLC v. Sturns, No. 05-22-01276-CV, 2024 WL 2205660, at *3-4 (Tex. App.-Dallas May 16, 2024, no pet.) (mem. op.) (stating that "[s]ubstantive defects are those that leave the evidence legally insufficient and include affidavits [that] are nothing more than legal or factual conclusions").
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A plaintiff is entitled to summary judgment on a cause of action if it conclusively proves all essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986).
B. What the Record Shows
The invoices attached to Appellee's summary-judgment motion are from "Medicine Chest Pharmacy #109," "109 - Medicine Chest Institutional Pharmacy," and "M Chest Pharmacy - Sulphur Spr." Although none of the invoices use Appellee's full name-M Chest Institutional Pharmacy Group, LLC-Appellee's president and CEO's affidavit shows that the invoices relate to Pilot Point's account with Appellee:
I currently hold, and have held for eleven (11) years, the position of President and CEO for M Chest Institutional Pharmacy Group, LLC and am authorized in such capacity to execute this affidavit on behalf of M Chest Institutional Pharmacy Group, LLC ("M Chest"). I am familiar with the policies and procedures that M Chest uses in creating and keeping records. Further, I am personally responsible for the archived documents of M Chest accounts in active litigation, including the account for Defendant Pilot Point Care, Inc. d/b/a Pilot Point ("Pilot Point"). Also, my position requires me to have knowledge of the facts regarding accounts in active litigation, including Pilot Point's account.
. . . .
. . . Attached to this Affidavit as Exhibits A-1 to A-6 are 369 pages of records from M Chest. As President and CEO, I have care, custody[,] and control of the records of M Chest concerning the account of Pilot Point. These records are kept by M Chest in the regular course of business, and it was the regular . . . business of M Chest for an employee or representative of M Chest, with knowledge of the act, event, condition, opinion, or diagnosis that was recorded[] to make this record or to transmit the information to be included in this record. These records were made at or near the time or reasonably soon after the act, event, condition, opinion[,] or diagnosis that was recorded. The records attached as Exhibits A-1 to A-6 to this Affidavit are the originals or exact duplicates of the originals.
. . . .
. . . From February 1, 2015, to May 31, 2018, M Chest delivered pharmaceutical drugs and services to Pilot Point as evidenced by the Account Summary, Account Detail Report, and Statements and Invoices - Redacted. . . .
. . . M Chest invoiced Pilot Point for the drugs and services that were supplied. . . . [Footnotes omitted.]
The affidavit contains footnotes referencing the Account Summary as Exhibit A-3; the Account Detail Report as Exhibit A-4, and the Statements and Invoices - Redacted as Exhibit A-5. The Account Detail Report summarizes the invoices. For instance, the following invoice was sent to Pilot Point:
(Image Omitted)
And that invoice (ending in 39181) shows up on the second line of the Account Detail Report as follows:
(Image Omitted)
C. Analysis
Here, Pilot Point makes much of the fact that Michel's affidavit does not expressly refer to the names of the entities on the invoices. This, however, does not directly contradict the assertions in Michel's affidavit that Appellee owns the account as reflected by the evidence that Appellee invoiced Pilot Point and that the invoices and the Account Detail Report attached to the affidavit reflect the amounts Pilot Point owes Appellee for the pharmaceuticals that Appellee provided to Pilot Point. See Nguyen v. Citibank N.A., 403 S.W.3d 927, 931 (Tex. App.-Houston [14th Dist.] 2013, pet. denied) ("[Appellant's] reliance on the fact that the account statements came from and payments were to be sent to Citi Cards does not directly contradict [Citibank's records custodian's] assertion [in her affidavit] that Citibank owns the account."); Grant-Brooks v. Transam. Bank, N.A., No. 05-02-00754-CV, 2003 WL 203481, at *2 (Tex. App.-Dallas Jan. 31, 2003, no pet.) (mem. op.) (holding that the fact that another bank's name appeared on the debtor's credit application did not controvert plaintiff bank's employee's affidavit asserting ownership on behalf of plaintiff bank). And Michel's assertion of ownership of the account on behalf of Appellee was sufficient to conclusively establish such ownership in the absence of controverting evidence. See Nguyen, 403 S.W.3d at 931; Grant-Brooks, 2003 WL 203481, at *2.
Although Pilot Point cites five cases to support its argument that the names of the entities listed on the invoices create a fact issue, those cases are distinguishable from the instant case or are from the 1980s and 1990s from our sister courts and are not binding on this court. The only relatively recent case cited by Pilot Point dealt with internal discrepancies in the summary-judgment proof dealing with the total amounts owed under the notes and the commencement dates of the payments; this case is also not binding on this court and has no bearing on the outcome in light of our conclusion that Michel's affidavit proved Appellee's ownership of the account and the related invoices, thus clearing up the alleged conflict (between the invoices and the affidavit) that Pilot Point complains of on appeal.
See Sundance Oil Co. v. Aztec Pipe & Supply Co., 576 S.W.2d 780, 780-81 (Tex. 1978) (holding that multiple names on the invoice on which plaintiff relied resulted in a fact issue as to which company was actually indebted to the plaintiff).
See CSH Rest. Grp., Inc. v. Gen. Elec. Cap. Bus. Asset Funding Corp., 145 S.W.3d 822, 823-24 (Tex. App.-Dallas 2004, no pet.).
Because Michel's affidavit provided uncontroverted proof of the ownership of the account, which is the only challenge to the summary judgment that Pilot Point makes on appeal, we hold that Appellee was entitled to summary judgment as a matter of law. See Grant-Brooks, 2003 WL 203481, at *2. Accordingly, we overrule Pilot Point's sole issue.
IV. Conclusion
Having overruled Pilot Point's sole issue, we affirm the trial court's summary judgment.