Energo Intern. Corp. v. Modern Indus. Heating, Inc.

• Decision Date: 30 October 1986
• Docket Number: No. 05-85-01289-CV,05-85-01289-CV
• Citation: 722 S.W.2d 149
• Parties: ENERGO INTERNATIONAL CORPORATION, Appellant, v. MODERN INDUSTRIAL HEATING, INC., Appellee.
• Court: Texas Court of Appeals

Page 149

722 S.W.2d 149

ENERGO INTERNATIONAL CORPORATION, Appellant, v. MODERN INDUSTRIAL HEATING, INC., Appellee.

No. 05-85-01289-CV.

Court of Appeals of Texas Dallas.

Oct. 30, 1986.

Richard Parker, Michael C. Prior, Houston, for appellant.

J. Michael Weston, Leonard J. McDonald, Jr., Dallas, for appellee.

Before AKIN, SCALES and CARVER ¹, JJ.

SCALES, Justice.

Energo International Corporation (Energo) appeals from a summary judgment rendered in favor of Modern Industrial Heating, Inc. (Modern). Energo contends that the trial court erred in granting Modern's motion for summary judgment because Energo's amended answer with supporting affidavits raised a material fact issue on Energo's claim of offset, and because a material fact issue was raised regarding Energo's liability to Modern on sales taxes due to the State of Texas on goods Energo purchased from Modern. We affirm.

Modern brought suit against Energo seeking to recover $3,801.99 due on an account and for $12,300 in sales taxes due on goods sold to Energo. After Energo answered generally denying Modern's claim, Modern filed a motion for summary judgment. Energo answered and filed supporting affidavits. In its answer to Modern's motion, Energo denied that it owed Modern $3,801.99, alleged that Modern owed Energo $63,750.00, and alleged that any account which showed that Energo owed Modern $3,801.99 had not taken into account the $63,750.00 that Modern owed Energo. On the day of the hearing on Modern's summary judgment motion, Energo filed an amended answer to Modern's petition generally denying Modern's claim and alleging offset of $63,750.00. The trial court subsequently granted Modern's motion and entered judgment in favor of Modern.

In its first point of error, Energo contends that the trial court erred in granting Modern's motion for summary judgment because Energo's amended original answer and supporting affidavit raised a material fact issue concerning offset. Modern argues that the affirmative defense of offset was not properly before the court because Energo's amended answer was not on file at the time of the hearing and Energo did not obtain the trial court's permission to file the amended answer, and because Energo's affidavit was insufficient to "raise a contest" to Modern's motion for summary judgment.

Rule 166-A of the Texas Rules of Civil Procedure provides:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.

TEX.R.CIV.P. 166-A (emphasis added). Thus, we first determine if Energo's amended answer was "on file at the time of the hearing." Rule 63 provides that no amended pleadings shall be filed within seven days of trial, except on leave of court. See TEX.R.CIV.P. 63. A summary judgment hearing is a "trial" under Rule 63. See Claude Regis Vargo Enterprises, Inc. v. Bacarisse, 578 S.W.2d 524, 529 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.). The record shows that Energo's amended answer was filed on the day of the summary judgment hearing. The parties disagree as to exactly when the answer was filed on that day. However, there is no question that Energo did not obtain leave of court before the summary judgment hearing. Consequently, under Rule 63, even if the answer was filed before the summary judgment hearing as Energo contends, it was not properly "on file at the time of the hearing" as required by Rule 166-A.

We next determine whether, under Rule 166-A, the amended answer was filed "with permission of the court" after the summary judgment hearing. Energo argues that the docket sheet entry, which reads, "Pltfs MSJ. Argued, under advisement to 6/30/85 for all pleadings to be amended (trial judge's initials)," indicates that the trial court accepted Energo's amended answer. We disagree.

A docket entry forms no part of the record which may be considered; it is a memorandum made for the trial court and clerk's convenience. Azopardi v. Hollebeke, 428 S.W.2d 167, 168 (Tex.Civ.App.--Waco 1968, no writ); Restelle v. Williford, 364 S.W.2d 444, 445 (Tex.Civ.App.--Beaumont 1963, writ ref'd n.r.e.). ² Consequently, there is no indication in the record that permission of the court was requested or obtained to file the amended answer and that the amended answer was properly before the court.

Further, even if the docket sheet were considered, we hold that the entry does not indicate that the trial court accepted and considered Energo's amended answer. The consideration of pleadings filed in the interim between hearing and judgment is within the trial court's discretion. Brown v. Prairie View A & M University, 630 S.W.2d 405, 411 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.). Energo has not attempted to show that the trial court abused its discretion in not considering the amended answer. The trial court is charged with the duty only of considering the record as it properly appears before it when the summary judgment motion is heard. Id. Accordingly, we hold that the amended answer was not properly before the court, that there is no showing of an abuse of discretion by the trial court in not considering the amended answer, and that the affirmative defense of offset was not properly pled, and therefore, was not before the trial court. The point of error is overruled.

Energo next contends the trial court erred in granting Modern's motion for summary judgment because Energo presented evidence which raised a material fact issue concerning Energo's liability on certain sales tax due the State of Texas. We disagree.

The record indicates that Energo agreed with Modern that Energo would assume liability for payment of any tax due on sales of goods from Modern to Energo, if such sales were not exempt from such taxes under Energo's exemption permit. The record further indicates that the Texas Comptroller of Public Accounts determined that such sales between Modern and Energo were not exempt, that taxes in the amount of $12,348.50 were due, and that Modern paid the taxes to the State Comptroller of Public Accounts.

Energo contends that its summary-judgment evidence showed that another corporation owed and paid the sales tax in question. The affidavit of Energo's president, attached to Energo's response to Modern's summary judgment motion, states that "[s]uch sales taxes are the liability of Texas Upsetting and Finishing, Inc. and Continental Bank of Illinois and Ferrotherm Corp., not Energo Interogational [sic] Corporation," and that "[t]o the best of my knowledge, Ferrotherm Corp. has paid the sales taxes claimed due." The affidavit of the president of Ferrotherm Corporation states "[t]hat the sales taxes due on material purchased from Energo International Corporation which had been purchased by [Energo] from [Modern] are being paid directly to the State of Texas by Ferrotherm Corporation pursuant to an agreement between the State of Texas and Ferrotherm Corporation."

Even assuming that these conclusory statements are competent summary-judgment proof, they clearly do not raise a fact issue as to Energo's liability for sales taxes under the contract between Energo and Modern. Whether a third party owes Energo reimbursement of the taxes paid is irrelevant to Energo's liability under the Energo-Modern contract. We hold that the trial court properly granted summary judgment to Modern. Energo's second point of error is overruled.

The judgment of the trial court is affirmed.

AKIN, J., files a dissenting opinion.

AKIN, Justice, dissenting.

I cannot agree that appellant's amended answer was not properly before the trial court where the docket sheet contains an initialed notation by the trial judge granting an extension for the filing of amended pleadings. Neither can I agree that the record on review is to be construed in a light favorable to the trial court's judgment in a summary-judgment proceeding. Consequently, I would hold that the plaintiff's right to recover on its amended petition was not precluded as a matter of law by Modern's summary-judgment evidence. Accordingly, I would reverse the judgment and remand this cause. Thus I must dissent.

Energo International Corporation (Energo) contends that the trial court erred in granting appellee's motion for summary judgment when appellant had on file an amended answer with supporting affidavits alleging offsets to appellee's claim, which amended-petition allegations were not precluded as a matter of law by movant's summary-judgment evidence. I agree. The docket sheet of the trial court contains the following written entry:

"6/17/85 Plaintiff's MSJ. Argued. Under advisement to 6/30/85 for all pleadings filed to be amended." (Judge's initials).

This notation establishes that the trial judge extended the time for the filing of amended pleadings until June 30, 1985. Energo filed the amended answer on June 17, 1985, and the file mark on the amended answer reflects this date. The majority disregards this evidence on the ground that "a docket entry forms no part of the record which may be considered; it is a memorandum made for the trial court and clerk's convenience." I disagree with this statement. The cases cited by the majority as supporting this proposition ignore the Texas Supreme Court's opinion in N-S-W Corporation v. Snell, 561 S.W.2d 798 (Tex.1977), which holds that a docket entry may be considered to supply facts in certain situations. See also Mathews v. Looney, 132 Tex. 313, 123 S.W.2d 871 (1939); Ford v. Ireland, 699 S.W.2d 587, 588 (Tex.App.--Texarka...