DAVID v. Va. DAVID

• Decision Date: 07 April 2011
• Docket Number: NO. 01-09-00787-CV,01-09-00787-CV
• Citation: David v. David, NO. 01-09-00787-CV (Tex. App. Apr 07, 2011)
• Parties: NORMA DAVID, Appellant V. VIRGINIA DAVID, Appellee
• Court: Texas Court of Appeals

NORMA DAVID, Appellant

V.

VIRGINIA DAVID, Appellee

NO. 01-09-00787-CV

Court of Appeals

For The

First District of Texas

Opinion issued: April 7, 2011

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Case No. 2007-70840

MEMORANDUM OPINION

Virginia David sued Norma and Robert David for an unpaid debt. The trial court granted Virginia's summary judgment and awarded actual damages, prejudgment and post-judgment interest, and attorney's fees. Norma appeals, contending that the trial court erred by granting summary judgment because: (1) no competent evidence supported Virginia's claim; (2) the statute of limitations barred Virginia's suit on the debt; (3) a fact issue remained regarding whether a letter written by Norma was sufficient to constitute an acknowledgment of an otherwise time-barred debt; (4) the trial court granted summary judgment based on a theory of recovery that Virginia never pleaded; (5) no evidence existed for the award of attorney's fees; (6) no evidence existed for the award of actual damages; and (7) the trial court miscalculated prejudgment and post-judgment interest.

We hold that the statute of limitations does not bar Virginia's suit on the debt because Norma acknowledged the debt and thus revived it, the trial court did not grant summary judgment on a theory that Virginia never pleaded, and Norma waived her complaints about the competency of the summary judgment evidence. Virginia failed, however, to meet her summary judgment burden to conclusively prove the amount of actual damages and her reasonable and necessary attorney's fees. We therefore reverse the summary judgment and remand for further proceedings.

Background

In 1991, Virginia loaned Norma money in exchange for a promissory note signed by Norma. The promissory note states:

TO WHOM IT MAY CONCERN:

This will serve as promissory note to Virginia Wong David for the following:

. . .

[$]13,000.00 loan + interest of $1,049.87 (12/91)

[$]9,641.36 current Credit Union share interest included

[$]8,000.00 [loan] + interest of $1,690[.00] due 3/92

This supersedes any promissory notes written prior to this date. All other notes . . . are void.

In 2006, Norma sent a certified, signed letter to Virginia regarding the the loans. In the letter, she stated:

Dear Ms. Virginia David[,]

I apologize[] for not responding sooner[.] I had to review your amortization schedules[,] and I am enclosing the schedules that I prepared based on the interest rate agreed when the loans were originated and eventually changed by you. I always [had] the intentions to pay out debts but unfortunately, our job situation did not allow us to do that on a timely basis.

. . . .

We are very grateful for your help[,] and I would like to ask if you can PLEASE stop the interest since I will not be able to pay it off when it keeps on increasing. . . I am overwhelmed by the amount of increase. However, I will make every effort to pay and I am enclosing a money order for $200[.00] as my monthly payment. We will believe God [will] help us so we can pay you sooner.

. . . . My repeated request to deduct the interest we earned for you has been ignored repeatedly[,] and I pray that you will be fair and deduct the net amount from the interest that you are charging me. The total interest we earned for you from 1987-1992 was $11,574.29 and after subtracting the income tax paid, you netted $9,442.95 the amount I have been requesting to be subtracted from the balance due.

I did not send any more money after I [sent] you all the copies of the cancelled checks because I was waiting for your statement since I have already given you $27,300[.00] plus the net of the interest I earned for you of $9,442.95, which totaled $36,742.95. The original loan amount is $30,707.43.

. . . .

I am enclosing the corrected amortization schedules per my records.

Schedule 1 $5,000[.00] + $8,000[.00]

Paid in full and overpayments credited to Loan #2.

Schedule 2 $9,707.43

The [s]chedule you sent me showed this loan amount to be $9,641[.00] starting on 8/1/91. The Promissory Note dated 12/16/91 references an amount of $9,641.36, which you had on deposit in a credit union account in our name. This deposit was originally opened in 1/90 with $9,386.72. Interest earned on that money, net taxes, grew the money to $9,707.43 on 1/93. You converted this credit union deposit into a loan and began charging 10% compounding monthly on 1/93.

Schedule 3 $8,000.00

In my schedule I included a payment of $1,000[.00] on 4/92 that you incorrectly attributed to Loan #1.

. . . .

In 2007, Norma stopped making payments on the two outstanding loans to Virginia. Later that year, Virginia sued Norma and her husband, Robert, for the unpaid debt. Norma and Robert answered and moved for summary judgment. In their answer, they asserted that Norma had paid Virginia all amounts due on the loans. To support this contention, they attached copies of payments they made to Virginia between 1987 and 2002. According to their summary judgment motion, the statute of limitations barred Virginia's claim against them. Virginia filed her own motion for summary judgment, contending that she was entitled to judgment on the unpaid debt as a matter of law. See Leavings v. Mills, 175 S.W.3d 301, 309 (Tex. App.—Houston [1st Dist.] 2004, no pet.) ("To prevail on a summary judgment motion, a party seeking to enforce a note must prove (1) that a certain note is in question, (2) that the party sued signed the note, (3) that the plaintiff is the owner or holder of the note, and (4) that a certain balance is due and owing on the note.").

The trial court granted Virginia's motion for summary judgment and denied Norma and Robert's motion. The court awarded Virginia: (1) $17,707.43; (2) prejudgment interest at the rate of 10% per year commencing from the 30th day from the date the balances were due; (3) post-judgment interest of 10% per year until the total amount is paid; (4) $5,000.00 in attorney fees, and (4) all costs of court and reasonable expenses incurred by Virginia in prosecuting the claim.

Discussion

Standard of Review

We review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). To determine if the nonmovant raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). When both sides move for summary judgment, and the trial court grants one motion and denies the other, the reviewing court considers both sides' summary judgment evidence and determines all issues presented. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Competency of Summary Judgment Evidence

Norma contends that the trial court erred in granting Virginia's summary judgment motion because Virginia did not present competent evidence to support her claim for the unpaid debt. Virginia submitted the following evidence: (1) a copy of the 1991 promissory note signed by Norma; (2) a copy of the 2006 letter, (3) copies of payments by Norma from 2006 and 2007 and (4) amortization schedules prepared by Virginia for the three loans showing an unpaid balance for each of them. Norma maintains that Virginia's evidence, specifically the copy of the 2006 letter, was not competent evidence because it was unauthenticated, unsworn, and unaccompanied by affidavits. See Hall v. Rutherford, 911 S.W.2d 422, 426 (Tex. App.—San Antonio 1995, writ denied) (holding that unauthenticated, unsworn, and unsupported letter is not entitled to consideration as summary judgment evidence).

Copies of original documents are acceptable in summary judgment proceedings if accompanied by a properly sworn affidavit that states the attached documents are "true and correct" copies of the original. Republic Nat'l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986). A nonmovant waives defects in the form of summary judgment evidence by not timely objecting and obtaining a ruling. TEX. R. CIV. P. 166a(f); see also Mathis v. Bocell, 982 S.W.2d 52, 59 (Tex. App.—Houston [1st Dist.] 1998, no pet.). But a nonmovant need not object to substantive defects in summary judgment evidence. See id. Defects in the authentication of attachments in support of a motion for summary judgment or response are defects of form, and they are waived without proper objection in the trial court. See Watts v. Hermann Hosp., 962 S.W.2d 102, 105 (Tex. App.— Houston [1st. Dist.] 1997, no pet.) (holding that objection to authentication of hospital discharge records attached to motion for summary judgment waived because not raised in trial court); Jones v. Jones, 888 S.W.2d 849, 852 (Tex. App.—Houston [1st Dist.] 1994, no writ.) (holding that objection to uncertified copies of documents attached to summary judgment motion was waived because lack of certification was formal defect, and nonmovant did not raise it at trial); Marchal v. Webb, 859 S.W.2d 408, 417 n.6 (Tex. App.—Houston [1st Dist.] 1993, writ denied)(same); see also Nichols v. Lightle, 153 S.W.3d 563, 569 (Tex. App.— Amarillo 2004, pet. denied) (holding that lack of authentication or other verification for attachments to summary judgment motion was formal defect).

Because Norma did not object to the authentication of Virginia's attachments in support of her motion for summary judgment in the trial court, Norma waived her complaints about them on appeal. Norma cites Tucker v. Atl. Richfield Co., 787 S.W.2d 555, 557 (Tex. App.—Corpus Christi 1990, writ. denied), and Trimble...