Court of Appeals of Texas, Fourth District, San AntonioSep 12, 2007
No. 04-07-00161-CV (Tex. App. Sep. 12, 2007)

No. 04-07-00161-CV

Delivered and Filed: September 12, 2007.

Appeal from the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2005-CI-05417, Honorable Lori Massey, Judge Presiding.

Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.


Opinion by: PHYLIS J. SPEEDLIN, Justice.

Manuel Cantu appeals the entry of a summary judgment against him. Based on the record before us, we reverse the trial court's judgment and remand for further proceedings.


Jesse Salcedo sued Manuel Cantu for fraud and breach of a real estate sales contract. Salcedo alleged that Cantu misrepresented that all liens, taxes and insurance on the property were current, and that Cantu failed to forward several of Salcedo's mortgage payments on the 30-year note he assumed from Cantu to the lender, Aames Funding Corporation. Cantu filed a pro se answer with a general denial listing his address as: 23788 Mathis Rd., Elemendorf, Texas 78112. Thereafter, Salcedo sent requests for admissions along with other discovery to Cantu at his business address at: 23067 State Hwy 16 So., Von Ormy, Texas 78073. The copy of the certified mail, return receipt, green card contained in the clerk's record does not show that Cantu signed for or received the discovery. Cantu did not respond to the discovery requests. On June 19, 2006, Salcedo filed a motion for summary judgment on his claims against Cantu, attaching the deemed admissions and his own affidavit in support; the affidavit of his attorney was also attached in support of his claim for attorney's fees. See Tex. R. Civ. P. 166a(a), (c). Cantu did not file a response to the summary judgment motion, and did not appear at the summary judgment hearing. The trial court granted summary judgment in favor of Salcedo, and signed a "final" judgment on September 11, 2006, awarding $16,912.92 in damages for breach of contract and fraud, and $33,825.88 in exemplary damages, plus $5,250 in attorneys fees. Cantu appealed.

Both the appellant's and appellee's briefs state that Cantu appeared late, after the trial judge had already granted the summary judgment and signed the order.

Both parties brief this appeal as a restricted appeal from a default judgment because Cantu did not timely appear at the hearing at which the summary judgment order was signed. See Tex. R. App. P. 30. However, the record reflects that the trial court's summary judgment order was interlocutory because it did not dispose of defendant Aames Funding Corporation, and that Cantu's March 6, 2007 notice of appeal was therefore timely in that it was filed before the judgment became final and appealable on May 4, 2007. See Tex. R. App. P. 27.1, 27.2. Accordingly, we will analyze this appeal as a timely direct appeal of a summary judgment.

Standard of Review for Traditional Summary Judgment

We review the trial court's granting of a summary judgment de novo. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). Accordingly, we will uphold a traditional summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P. 166a(c); Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In determining whether a disputed issue of material fact exists which precludes summary judgment, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in the non-movant's favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the movant establishes his right to summary judgment as a matter of law, the burden then shifts to the non-movant to raise fact issues that would preclude summary judgment. Tex. Workers' Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 733 (Tex.App.-San Antonio 1998, no pet.) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)).

In granting summary judgment, the trial court is limited to the specific grounds set forth in the motion. City of Houston, 589 S.W.2d at 677. If the judgment does not specify the ground relied upon for granting summary judgment, the judgment must be affirmed if any of the grounds in the motion have merit. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). An appellant must attack every ground upon which summary judgment could have been granted to obtain a reversal. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). A summary judgment must stand where it may have been based on a ground not specifically challenged and where there is no general issue on appeal claiming the trial court erred in granting summary judgment. Id.; see also Fetty v. Miller, 905 S.W.2d 296, 299 (Tex.App. — San Antonio 1995, writ denied). Unless an appellant has specifically challenged every possible ground for summary judgment, the appellate court need not review the merits of the challenged ground and may affirm on an unchallenged ground. Gamboa v. Shaw, 956 S.W.2d 662, 665-66 (Tex.App.-San Antonio 1997, no writ).


Here, Cantu has challenged all grounds for granting the summary judgment. Specifically, Cantu raises two issues: (1) there is no proof he received the requests for admissions, and there is no presumption he received them because they were mailed to the wrong address; therefore, the requests were not "deemed" admitted under Tex. R. Civ. P. 198.2(c); and (2) the only other evidence submitted in support of Salcedo's summary judgment motion, his personal affidavit, is insufficient because it is conclusory. We will address each issue in turn.

Deemed Admissions

Salcedo affirmatively represented in his motion for summary judgment that Cantu "did receive and sign for the requests [for admissions] as proved by the return receipt card." He references Exhibits 1 and 2 to his summary judgment motion as evidence supporting that statement of fact. Exhibit 1 is a copy of the requests for admissions addressed to Cantu at the Von Ormy address. Exhibit 2 consists of a copy of the cover letter enclosing the requests for admissions addressed to Cantu at the Von Ormy address, an illegible copy of the envelope, and an incomplete copy of a certified mail return receipt green card addressed to Cantu at the Von Ormy address. Only half of the green card is copied, and it does not show Cantu's signature. Thus, the summary judgment record does not contain any proof that Cantu received the requests for admissions. See Retzlaff v. McDonald, Nos. 03-03-00319-CV and 03-03-00320-CV, 2004 WL 524467, at *2 (Tex.App.-Austin Mar. 18, 2004, no pet.) (request for admission must actually be served on party in order to trigger obligation to respond, and to permit admissions to be deemed if no response is made); see also Payton v. Ashton, 29 S.W.3d 896, 898 (Tex.App.-Amarillo 2000, no pet.) (same).

Both parties attached various documents to their briefs as exhibits, including legible copies of the entire green card; however, we may not consider any of those documents, including the affidavit of counsel, because they are not part of the appellate record. See Tex. R. App. P. 34.1 (appellate record consists of clerk's record and, if necessary to the appeal, the reporter's record); Castano v. San Felipe Agric., Mfg., Irr. Co., 147 S.W.3d 444, 453 (Tex.App.-San Antonio 2004, no pet.). Moreover, even if we could consider the legible copy of the green card, it does not in fact show Cantu's signature as receiving the requests for admissions. We note that appellee complains in his brief that appellant did not provide this court with a complete appellate record. However, appellee's remedy was to request a supplemental clerk's record pursuant to Rule 34.5. See Tex. R. App. P. 34.5(b), (c).

In addition, the requests for admissions were not mailed to the Elmendorf address listed in Cantu's pro se answer, which was Cantu's "last known address"as reflected in the record before us at the time the requests for admissions were mailed. In fact, the pleadings filed by Cantu both before and after the requests for admissions, consisting of his answer and two motions for continuance, all reflect the Elmendorf address. Therefore, Salcedo's mailing of the requests for admissions to the Von Ormy address, and his attorney's certificate of service, did not create a presumption that the requests were in fact received by Cantu. See Tex. R. Civ. P. 21a (service may be accomplished by mailing the document to the party's last known address and certificate of service is prima facie evidence of the fact of service); see also Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994) (orig. proceeding) (mailing a properly addressed, postage prepaid, letter creates a presumption that the notice was duly received by the addressee).

Attached to Salcedo's brief are copies of correspondence addressed to Cantu at the Von Ormy location, and copies of signed green cards showing Cantu's receipt; as previously noted, these documents are not part of the appellate record and we may not consider them in resolving this appeal.

Finally, Salcedo asserts that Cantu should be deemed as having received "constructive notice" of the requests for admissions because he engaged in a "pattern of selective acceptance and refusal of certified mail relating to the case." See Gonzales v. Surplus Ins. Serv., 863 S.W.2d 96, 101-02 (Tex.App.-Beaumont 1993, writ denied), overruled in part on other grounds, Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. 2002) (holding that constructive notice of a document can be imputed where there exists evidence that the person has engaged in "selective refusal/acceptance" of certified mail). There is nothing in the record before us, however, that shows Cantu engaged in such conduct.

Accordingly, as the record does not show the requests for admissions were properly addressed to Cantu, or were in fact received by him, there was no basis for deeming the requests admitted under Rule 198.2(c), and the summary judgment cannot be sustained on the basis of the deemed admissions. See Tex. R. Civ. P. 198.2(c); see, e.g., Retzlaff, 2004 WL 524467, at *2-3; Payton, 29 S.W.3d at 898.

Plaintiff's Affidavit

Apart from the deemed admissions, the only other basis for granting summary judgment in favor of Salcedo was his personal affidavit. Cantu contends that Salcedo's affidavit is conclusory, and provides no factual basis for his assertions that he made all the payments to Cantu, and Cantu failed to forward them to the lender. We agree. Conclusory statements in an affidavit are not proper summary judgment evidence. See Tex. R. Civ. P. 166a(f) (supporting affidavit must set forth such facts as would be admissible in evidence); see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). A conclusory statement is one that does not provide the underlying facts to support the conclusion. 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 27 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (conclusory statements in affidavit unsupported by facts are insufficient to support summary judgment). To serve as competent summary judgment proof under Tex. R. Civ. P. 166a(c), an affidavit of an interested party must be "clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted." Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex.App.-Texarkana 2000, no pet.); see Ryland, 924 S.W.2d at 122 (conclusory affidavits "are not credible, nor susceptible to being readily controverted"). An affidavit that makes self-serving, conclusory statements without any underlying factual detail cannot support a summary judgment. Haynes, 35 S.W.3d at 178. Finally, an objection that an affidavit is conclusory is an objection to substance that may be raised for the first time on appeal. Id.

Here, Salcedo's affidavit contains the conclusory statement, "We have made all payments required to be made and have been forwarding those payments to Defendant Cantu or have been made directly to Aames [sic]," but does not provide any underlying facts as to the amounts, dates and number of such alleged payments; further, no copies or other proof of such payments is attached to the affidavit. See Tex. R. Civ. P. 166a(f). Salcedo also fails to provide any underlying facts to support his opinion that he has been damaged "by having to pay an additional $16,912.92 due to Mr. Cantu's false representations . . . and because Mr. Cantu failed to forward payments that we made to him to the bank." We conclude Salcedo's affidavit is conclusory as to his claims for fraud and breach of contract, and as such cannot support the summary judgment. In addition, without the deemed admissions, there is nothing in the record to support the award of exemplary damages against Cantu. Salcedo's affidavit is wholly conclusory as to his claim for exemplary damages based on intentional conduct by Cantu, merely stating, "[h]is fraud committed was clearly a result of an [sic] malicious intent to induce us into this contract and obtain the $48,000 cash down payment. . . ."

We conclude that Salcedo failed to establish his right to summary judgment as a matter of law on his claims for fraud and breach of contract, as well as his entitlement to exemplary damages. Accordingly, we reverse the trial court's judgment and remand this cause to the trial court for further proceedings.