Birdwell v. Texins Credit Union

• Decision Date: 08 December 1992
• Docket Number: No. 6-92-061-CV,6-92-061-CV
• Citation: 843 S.W.2d 246
• Parties: Judith A. BIRDWELL, Appellant, v. TEXINS CREDIT UNION, Appellee.
• Court: Texas Court of Appeals

Page 246

843 S.W.2d 246

Judith A. BIRDWELL, Appellant, v. TEXINS CREDIT UNION, Appellee.

No. 6-92-061-CV.

Court of Appeals of Texas,

Texarkana.

Dec. 8, 1992.

Byrd L. Bonner, San Antonio, for appellant.

Angelo Parrish, Parrish & Parrish, Houston, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

GRANT, Justice.

Judith A. Birdwell appeals from a summary judgment granted to Texins Credit Union in the amount of $13,768.66, plus interest and court costs.

Birdwell contends that the trial court erred in granting summary judgment (1) because the motion for summary judgment was not specific enough to support the relief granted, (2) because the record does not reflect that Birdwell received sufficient notice of the summary judgment hearing, and (3) because the affidavits supporting the motion for summary judgment were insufficient and defective. Birdwell also contends that the judgment should alternatively be reformed to delete the award of attorney's fees, because Texins failed to prove a demand and refusal to pay on a claim for which attorney's fees can be awarded.

Birdwell first contends that Texins' motion for summary judgment was not specific enough to support the relief granted. Texins' motion is very general; it asks for summary judgment for "all relief demanded in Plaintiff's Original Petition, on the ground ... that Plaintiff is entitled to a judgment as a matter of law." It further states that the pleadings and affidavits show that there is no genuine issue as to any material fact and that Birdwell's answer raises no issue of fact. The motion also states that the pleadings and affidavits show that the cause of action is based on an "Open-End Credit Plan Agreement executed and delivered by Defendant."

Birdwell correctly points out that the motion itself does not address any amount due, attorney's fees, interest, or costs of court, nor does it request any of these. Additionally, the motion only presents a ground for summary judgment by reference to the pleadings. In the judgment, however, the trial court awarded Texins $7,487.13 in principal, prejudgment interest of $2,495.71, and ordered Birdwell to pay postjudgment interest at ten percent annual percentage rate and all costs of court. Birdwell complains that the motion was not specific enough to support the relief granted.

Rule 166a(c) of the Texas Rules of Civil Procedure requires, in part, that: "The motion for summary judgment shall state the specific grounds therefor." In Life Ins. Co. of North America v. Klingler, 730 S.W.2d 32, 35 (Tex.App.--Corpus Christi 1987, writ ref'd n.r.e.), the court said that a general mention of the Insurance Code was not enough and that the motion should point to a specific section. In Moody v. Temple National Bank, 545 S.W.2d 289, 290 (Tex.Civ.App.--Austin 1977, no writ), the court stated that, when a motion for summary judgment merely states that there is no genuine issue of material fact and that the pleadings and interrogatories show this, the motion should be overruled because it does not state a specific ground for relief. Texins' motion is very similar to the one the court examined in Moody and, as such, it is not sufficient under Rule 166a(c), unless it falls under the one exception in which a motion so worded has been deemed acceptable, i.e. unless it is a suit on account.

When a suit meets the requirements of Rule 185 of the Texas Rules of Civil Procedure for a suit on account and the defendant's answer does not meet the requirements in that rule, the plaintiff's motion for summary judgment need only state that the defendant's answer does not raise any issue of material fact. Bado Equipment Co. v. Ryder Truck Lines, 612 S.W.2d 81, 83 (Tex.Civ.App.--Houston [14th Dist.] 1981, writ ref'd n.r.e.); Wilson v. Browning Arms Co., 501 S.W.2d 705 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd).

In the present case, the "Open-End Credit Plan Agreement" could be the basis of a suit on account if Texins had properly presented its pleadings. There is no evidence in the record, however, that Texins satisfied this burden. Rule 185 requires that in order to pursue a cause of action as a suit on account, the plaintiff must support his pleading with "the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed." If the petition is so supported, it acts as prima facie proof of the truth of its allegations, and the defendant may only avoid summary judgment if his or her denial is written, under oath, and more than just a general denial.

Here, although Birdwell's answer is best described as a general denial and was not given under oath, her failure to file a sworn denial is irrelevant because Texins itself failed to satisfy Rule 185. Texins' pleading alleges the creation of the credit agreement, the usage of the line of credit, a demand for payment, and a refusal on the part of Birdwell to make payment. The only attachments to the pleading were the documents containing the agreement and an "Open-End Loan Advance Request Voucher and Security Agreement," indicating a present balance as of April 30, 1987, requesting a new loan, and signed by Birdwell. Neither of these documents are sworn to or notarized, nor would they fulfill the conditions of Rule 185 even if they were.

Attached to Texins' motion for summary judgment are documents which would have fulfilled the requirements of Rule 185 if they had been attached to the petition rather than to the motion. The attachments to Texins' motion cannot be deemed to fulfill retroactively the requirements of Rule 185 without unfairness to Birdwell. The difference is clear: In order for a general motion, such as in this case, to be sufficient, the defendant must have failed to follow the dictates of Rule 185. However, where the plaintiff fails to satisfy Rule 185, the defendant has no obligation to do so. While we can conclude that Texins Credit Union was not entitled to a summary judgment based upon the status of the pleadings, we must also determine if Birdwell is entitled to a summary judgment based upon the motion itself.

Texins' motion for summary judgment was not in proper form and did not comply with Rule 166a. The motion relies primarily on the plaintiff's original petition to show the ground of the relief sought. A defect consisting of the fact that the motion for summary judgment failed to specify grounds for such judgment is a defect of form which is waived by the failure to except to such defect prior to the rendition of the judgment. Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771 (Tex.1978); see also Roberts v. Southwest Texas Methodist Hospital, 811 S.W.2d 141 (Tex.App.--San Antonio 1991, writ denied); Jones v. McSpedden, 560 S.W.2d 177 (Tex.Civ.App.--Dallas 1977, no writ). A defendant waives the right to complain of form defects of a plaintiff's summary judgment proof by failing to except to the plaintiff's motion for summary judgment. Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378 (Tex.1978). Birdwell's failure to complain about the form of the motion for summary judgment constitutes a waiver, and she cannot complain about those defects in form for the first time on appeal.

Birdwell next contends that the trial court erred in granting summary judgment because the record does not affirmatively reflect that Birdwell was given proper and timely notice of the hearing. The motion for summary judgment was filed on May 23, 1991. The motion included an order for the judge to sign setting June 21, 1991, as the date for the hearing. The motion also contains a certificate of service signed by Angelo Parrish, Texins' attorney, and indicating that Birdwell was sent a copy of the motion by certified mail on May 15. On May 28, the county clerk received a letter from Parrish confirming that the date of the hearing had been changed to June 20, and at the bottom of that letter, Parrish indicates that a copy had been sent to Birdwell by registered mail and first class delivery.

The hearing was apparently not held on June 20, and on August 5, 1991, the clerk received another letter from Parrish stating that the hearing had been reset for August 9, 1991. This letter also contains a notation stating that Birdwell was sent a copy by registered mail and by first class delivery. Birdwell contends that the above facts from the record do not establish proper notice. Proper notice of a summary judgment proceeding is itself a prerequisite to summary judgment. Rozsa v. Jenkinson, 754 S.W.2d 507, 509 (Tex.App.--San Antonio 1988, no writ); Gulf Refining Company v. A.F.G. Management 34 Ltd., 605 S.W.2d 346, 349 (Tex.Civ.App.--Houston [14th Dist.] 1980, writ ref'd n.r.e.).

Rule 21(a) of the Rules of Civil Procedure provides that a written statement by an attorney of record showing service of a notice shall be prima facie evidence of the fact of service. In the present case, the notice of the resetting did not have a certification signed separately at the bottom of the letter by the attorney, but rather a letter to the clerk signed by the attorney of record and indicating a copy of the letter had been sent to Judith A. Birdwell at her address by certified mail and stating the certified mail number assigned to that delivery. ¹

Birdwell complains first that the notice could not have been timely under Rule 166a of the Texas Rules of Civil Procedure. Rule 166a, which controls summary judgments, requires that the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing....