Opinion
No. 04-04-00135-CV
Delivered and Filed: June 22, 2005.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CI-04323, Honorable David Berchelmann, Judge Presiding.
Reversed and Remanded.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Louise Strong appeals the trial court's summary judgment in her suit for conversion of her late husband's Corvette. We reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion.
1. Strong first argues the trial court's summary judgment is interlocutory because Clay Jackson, Inc. did not move for, but was nonetheless granted, a summary judgment in its favor. In response, Lopez and Jackson rely upon Rule 33.1, Tex.R.App.P., to argue Strong waived this complaint by failing to raise it in the trial court. Lopez and Jackson are incorrect. "A party cannot obtain summary judgment by default." Timothy Patton, Summary Judgments in Texas: § 4.07[1], at 4-16 — 4-17 (Matthew Bender Co., Inc. 2004). Accordingly, "`the non-moving party has no duty or burden whatsoever in a summary judgment case until the moving party establishes its right to a summary judgment.'" Id. at 4-16 (quoting Bankers Commercial Life Ins. Co. v. Scott, 631 S.W.2d 228, 232 (Tex. App-Tyler 1982, writ ref'd n.r.e.)); see also Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999) (recognizing that "nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense"; and "trial court may not grant summary judgment by default because the nonmovant did not respond to the summary judgment motion when the movant's summary judgment proof is legally insufficient"). We therefore reject Lopez and Jackson's waiver argument and turn to the merits of Strong's complaint.
Alleging conversion of her late husband's Corvette, Strong sued Richard Lopez, Clay Jackson, and Clay Jackson, Inc., which was served with process by serving its registered agent. Although only Lopez and Jackson moved for summary judgment, the trial court granted a summary judgment that "ORDERED, ADJUDGED AND DECREED that [Strong] take nothing by way of her suit and go hence without day." In rendering a take-nothing judgment against Strong on her "suit," rather than just her claims against Lopez and Jackson, the trial court rendered a final judgment against Strong and in favor of Lopez, Jackson, and Clay Jackson, Inc. See Lehman v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001) (holding "[l]anguage that the plaintiff take nothing by his claims in the case, or that the case is dismissed, shows finality if there are no other claims by other parties").
We further note Lopez's and Jackson's brief in this court states that "[t]he judgment clearly does dispose of all issues and parties," and the district clerk closed the case with the notation "Case Closed Summary Judgment" on the same day the trial judge signed the summary judgment.
Strong next argues that "a party who does not file a [motion for] summary judgment is not entitled to one." We agree. It is beyond dispute that a trial court errs in granting a summary judgment in favor of a non-movant. See Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984) (because the "City was not a party to the summary judgment proceedings either as movant or non-movant, . . . the trial court erred in finally adjudicating the rights of that party"). We therefore hold the trial court erred in granting a summary judgment in favor of Clay Jackson, Inc.
2. Strong next argues the trial court erred in granting a summary judgment in favor of Lopez and Jackson because their "evidence was insufficient and [Strong's] response raised a question of fact." We agree with Lopez and Jackson, however, that Strong's response to the motion for summary judgment cannot raise a fact issue; the response was filed untimely and without leave of court and is therefore a "nullity." See Pinckley v. Gallegos, 740 S.W.2d 529, 532 (Tex.App.-San Antonio 1987, writ denied). Accordingly, we must decide only whether Lopez and Jackson's motion for summary judgment is legally sufficient to support the trial court's judgment.
To prevail on her conversion claim against Lopez and Jackson, Strong bore the burden of proving that they wrongfully exercised dominion and control over the Corvette in denial of or inconsistent with Strong's rights. See Bandy v. First State Bank, 835 S.W.2d 609, 622 (Tex. 1992). Seeking to negate an element of Strong's claim, Lopez and Jackson moved for summary judgment on the following ground:
"A movant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim." IHS Cedars Treatment Ctr. of Desoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
The automobile in question was not converted by these defendants. The undisputed facts and summary judgment evidence establish that the automobile in question was delivered to a corporation for repairs, the repairs were not paid for, the corporation exercised its possessory mechanics lien, foreclosed its lien and sold the car. Neither of the defendants converted the automobile in question as set forth in the affidavit of Wayne Clay Jackson attached hereto.
Lopez and Jackson supported their motion with Jackson's affidavit, in which Jackson testifies as follows:
My name is Wayne Clay Jackson. I am over the age of eighteen and fully competent to make this affidavit. I have personal knowledge of the facts stated in this affidavit, and they are true and correct.
I am one of the defendants in this case. I have read the pleadings in this case and the 1989 Chevrolet Corvette, VIN number 1G1YY2189K5102083, referred to by Plaintiff was delivered to Jackson Motors. Jackson Motors is the assumed name for Clay Jackson, Inc. Clay Jackson, Inc. is a Texas corporation. I do not and have never owned any stock in the Clay Jackson, Inc. corporation. I have been an employee of Clay Jackson, Inc. and was an employee of the corporation at the time of the events alleged by the Plaintiff. Richard Lopez was also an employee of the corporation at that time. In July of 1999, the 1989 Corvette was left with Jackson Motors for repairs which were completed by Jackson Motors on July 31, 1999. The repairs were never paid for and in February of 2000 Jackson Motors initiated efforts to foreclose its mechanic's lien. Jackson Motors foreclosed its lien in March of 2000 and took title to the vehicle on March 23, 2000. In April of 2000, an employee of Jackson Motors, Doug Caballero, took the 1989 Corvette to an auction and the 1989 Corvette was sold at auction sometime thereafter. In our individual capacities, neither Richard Lopez nor I ever possessed a lien on the vehicle, nor did we foreclose a lien or sell or otherwise convey title to the 1989 Corvette. Attached to this affidavit is a true and correct copy of the title application receipt whereby Jackson Motors became the owner of the 1989 Corvette.
Attached to Jackson's affidavit is a Title Application Receipt showing both the owner and the previous owner as Jackson Motors.
Strong argues that Jackson's testimony is incompetent because it is conclusory. We agree in part.
"Supporting . . . affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Tex. R. Civ. P. 166a(f). This rule is not satisfied by a "mere recital" "that the affiant is `competent to make this affidavit and has personal knowledge of every statement contained in the affidavit.'" Summary Judgments in Texas § 6.03[5][a], at 6-13 (citing, e.g., Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 661 (Tex. 1995)). Rather, the affiant's testimony must show how he is competent to testify to the matters set out in the affidavit; and the affiant must testify to facts rather than legal conclusions. See, e.g., Laidlaw, 904 S.W.2d at 661 (holding that averments in sworn petition, even if they had been contained in a separate affidavit, were not competent summary judgment evidence because the statements were conclusory and there was no showing that either affiant was competent to testify regarding the matters set out in the petition). In short, whether the underlying facts are the basis for the affiant's personal knowledge or otherwise, "[a] conclusory statement is one that does not provide the underlying facts to support the conclusion." Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.).
Viewed in light of the applicable law, it is clear that Jackson's testimony regarding Clay Jackson, Inc., Jackson Motors, and Lopez is not competent summary judgment evidence. The only relationship to which Jackson testified having had with Clay Jackson, Inc. and Jackson Motors was as an employee. We cannot reasonably infer from Jackson's status as an employee of Jackson Motors, Inc. that he would have personal knowledge of the corporate form of Jackson Motors, Inc. or that it performed repairs on the Corvette for which it was not paid and thereafter properly acquired and foreclosed upon a mechanic's lien. See Summary Judgments in Texas § 6.03[5][a], at 6-14 ("The personal knowledge requirement will be satisfied by an affidavit which identifies the position held by the affiant and describes his job responsibilities so that it can be reasonably assumed that the affiant would be peculiarly situated to have personal knowledge of the facts stated in his affidavit."). Similarly, the only relationship to which Jackson testified having had with Lopez was as a co-employee. We cannot reasonably infer from Jackson's status as Lopez's co-employee that he would have personal knowledge that Lopez did not possess or foreclose a lien on the Corvette or otherwise convey title to it. Indeed, we cannot reasonably infer from Jackson's status as Lopez's co-employee that Jackson had personal knowledge of any action Lopez took when away from Jackson Motors. We therefore hold Jackson's testimony regarding Clay Jackson, Inc., Jackson Motors, and Lopez to be incompetent summary judgment evidence and therefore no evidence to support the trial court's summary judgment in favor of Lopez.
The same cannot be said regarding Jackson's testimony that he did not possess or foreclose a lien on the Corvette or otherwise convey title to it. Certainly we can reasonably infer that Jackson had personal knowledge of his own actions. But conveying title to a vehicle is not the exclusive means by which one can exercise dominion and control over a vehicle in denial of or inconsistent with the vehicle owner's rights. Indeed, this element of a conversion claim may be established merely by proving that the defendant wrongfully retained possession of a vehicle after the owner requested its return. See Smith v. Maximum Racing, Inc., 136 S.W.3d 337, 341 (Tex.App.-Austin 2004, no pet.). Because Jackson's testimony establishes only that he did not possess or foreclose a lien or otherwise convey title to the Corvette, it fails to conclusively negate the dominion and control element of Strong's conversion claim.
Because Jackson Motors, Inc. did not move for summary judgment, the trial court erred in granting it one. And because Jackson's affidavit fails to conclusively negate that either he or Lopez converted the Corvette, the trial court erred in granting summary judgment in their favor. We therefore reverse the trial court's judgment and remand the cause for further proceedings without reaching Strong's final issue regarding the trial court's denial of her motion to continue or abate the summary judgment hearing and her motion for leave to file her response less than seven days before the hearing.
DISSENTING OPINION
"An order that disposes of claims . . . against one of multiple defendants does not adjudicate claims . . . against other parties." Lehman v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). "To determine whether an order disposes of all pending claims and parties, it may of course be necessary for the appellate court to look to the record in the case." Id. at 205-06. "The record may help illumine whether an order is made final by its own language, so that an order that all parties appear to have treated as final may be final despite some vagueness in the order itself, while an order that some party should not reasonably have regarded as final may not be final despite language that might indicate otherwise." Id. at 206.
The record in this case clearly reveals that only two of the three defendants moved for summary judgment; therefore, the trial court's order does not adjudicate the plaintiff's claims against the third defendant. Having looked to the record to determine whether the order disposes of all pending claims and parties, I disagree that the trial court's judgment is final for purposes of appeal. At the very least, I would conclude that the judgment is not sufficiently clear and unequivocal in view of the record and "abate the appeal to permit clarification by the trial court." Id.