Garza v. Allied Finance Co.

• Decision Date: 20 April 1978
• Docket Number: No. 1251,1251
• Parties: 24 UCC Rep.Serv. 469, 26 UCC Rep.Serv. 800 Roque GARZA and Alicia Garza, Appellants, v. ALLIED FINANCE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 57

566 S.W.2d 57

24 UCC Rep.Serv. 469, 26 UCC Rep.Serv. 800

Roque GARZA and Alicia Garza, Appellants, v. ALLIED FINANCE COMPANY, Appellee.

No. 1251.

Court of Civil Appeals of Texas,Corpus Christi.

April 20, 1978.

Rehearing Denied May 10, 1978.

Clyde Farrell, Texas Rural Legal Aid, Inc., Brownsville, for appellants.

Carlos I. Miro, Dallas, H. H. Rankin, Jr., William E. Corcoran, Rankin & Kern, Inc., McAllen, for appellee.

OPINION

NYE, Chief Justice.

This is an appeal from a summary judgment rendered in the County Court at Law of Cameron County which sustained plaintiff Allied Finance Company's motion for summary judgment and denied defendants Roque and Alicia Garza's cross motion for partial summary judgment. Defendants have perfected their appeal to this Court.

Plaintiff, Allied Finance Company, filed suit against Roque and Alicia Garza seeking to recover $936.60, the balance due on a promissory note executed by the defendants and payable to plaintiff in installments. The plaintiff alleged that the defendants had executed the note in the original amount of $1,937.60 on June 12, 1973, and that the defendants defaulted on the note on August 27, 1974, after making payments totaling $1,001.00. Plaintiff prayed for a joint and several judgment against defendants for the sum of $936.60 plus interest from the date of judgment and reasonable attorney's fees. A copy of the note and a copy of the security agreement which granted a security interest in certain described personal property were attached to plaintiff's sworn petition.

The defendants alleged two "affirmative defense(s) of set off", one under the Federal Truth-in-Lending Act, and the other under the Texas Consumer Credit Act. In accordance with the alleged enumerated violations, the defendants prayed for a judgment awarding them a set off under each Act in the amount of $682.34 for the alleged violations, plus costs and reasonable attorney's fees.

Plaintiff's motion for summary judgment stated that there was no genuine issue of fact to be decided. The motion was supported by an affidavit of its manager swearing to the truth of all the facts alleged in plaintiff's original petition as well as to the exhibits attached which were a copy of the promissory note, "Federal Disclosure Statement", and the security agreement, all of which were the basis of plaintiff's suit.

At the hearing on plaintiff's motion the trial court had before it the pleadings of both plaintiff and defendants; plaintiff's motion, affidavit and exhibits; and defendants' reply in opposition and supporting affidavit. Defendants' reply in opposition to plaintiff's motion asserted that plaintiff had failed to meet its burden to prove that defendants owed plaintiff $936.60. The attached affidavit stated as follows:

"Comes now Roque Garza and Alicia Garza, being duly sworn upon their oath, deposes (sic) and states (sic):

1. They are the defendants in the above entitled and numbered cause.

2. That of their personal knowledge they have never possessed a green vinyl couch, two large chairs covered with gold fabric or a three piece oak bedroom suite as itemized in plaintiff's exhibit A.

3. That they have made payments to plaintiff since August 27, 1974 on the promissory note subject to this cause.

4. They do not owe $930.70 (sic) to Plaintiff Allied Finance Company.

/s/ Roque Garza".

The record indicates that at the hearing on plaintiff's motion the trial court took the case under advisement and granted defendants' request to file a cross motion for partial summary judgment. This cross motion for partial summary judgment was based on the alleged violation of the Truth-in-Lending Act contained in defendants' amended original answer. The motion stated that the summary judgment should be granted as a matter of law based on disclosure violations evidenced in plaintiff's Federal Disclosure Statement. The defendants filed an affidavit in support of their motion.

On April 11, 1977, the trial court denied defendants' motion, granted plaintiff's motion, and entered a final judgment awarding plaintiff $936.60 plus interest and costs and foreclosing plaintiff's security lien. Defendants bring forward on appeal points of error complaining of the trial court's action in granting plaintiff's motion for summary judgment, in entering a judgment of judicial foreclosure, and in failing to grant defendants' cross motion for partial summary judgment.

In passing upon the points raised on this appeal, we are guided by the familiar rules concerning summary judgments established by our Supreme Court. Rule 166-A, Texas Rules of Civil Procedure provides that summary judgments shall be rendered where the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The burden of proof is on the movant, and all doubts as to the existence of a material fact issue are resolved against him. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.Sup.1965). It is our duty to determine if there are any genuine issues of a material fact to be tried, and not to weigh the evidence or determine its credibility and thus try the case on the affidavits. Parrott v. Garcia, 436 S.W.2d 897 (Tex.Sup.1969); Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 (1962); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). Affidavits supporting or opposing the motion must set forth such facts as would be admissible in evidence. They must be factual; conclusions of affiant are not considered to have any probative value. Hidalgo v. Surety Savings and Loan Association, 487 S.W.2d 702 (Tex.Sup.1972); Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967); Travis County Water Control & Improvement District No. 12 v. McMillen, 414 S.W.2d 450 (Tex.Sup.1966); Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961).

Defendants first complain that the trial court erred in granting plaintiff's motion for summary judgment because plaintiff had not carried the burden of proving that there was no genuine issue of any material fact because defendants, by affidavit, raised an issue of whether the amount of the debt claimed by plaintiff was correct. Plaintiff argue, on the other hand, that defendants' statements contained in the affidavit are mere conclusions which are insufficient to create a factual issue and that defendants' affidavit is fatally defective because it was not properly sworn to on personal knowledge.

The general rule is that when a motion for summary judgment is supported by affidavits, depositions, stipulations or other extrinsic evidence sufficient on its face to establish a fact, which if proven at trial would entitle the movant to an instructed verdict, the opponent must show opposing evidentiary data which will raise an issue as to a material fact, or must justify his inability to do so and seek appropriate relief under subdivision (f) of Rule 166-A. ¹ Gulf, Colorado & Santa Fe Ry. Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (1958); Fail v. Lee, 535 S.W.2d 203, 207 (Tex.Civ.App. Fort Worth 1976, no writ); Enterprises and Contracting Co. v. Plicoflex Inc., 529 S.W.2d 805 (Tex.Civ.App. Houston (1st Dist.) 1975, no writ).

The following statement contained in defendants' answer in opposition to plaintiff's motion for summary judgment in effect admits that defendants did not have any factual basis upon which to support the conclusion stated in their affidavit, but it raises the applicability of subdivision (f) of Rule 166-A.

"Defendants, not having accurate records in their possession to swear of their personal knowledge to specific facts that would controvert Plaintiff's factually unsubstantiated allegation that $936.70 Dollars is due and owing having filed a motion for continuance in this action in order to do further discovery by interrogatories and deposition to substantiate their good faith belief they do not owe the specific amount sought by plaintiff." (Emphasis added).

Defendants' statements suggest that a motion for continuance as authorized by Rule 166-A(f) had been filed in this case. The record on appeal, however, does not contain any such motion nor any court order issued pursuant thereto. Defendants did not avail themselves of the means and opportunity provided under subdivision 166-A(f) to develop sufficient facts to properly controvert plaintiff's motion if defendants in good faith believed they had made additional payments. Speculation, opinions or an expression of belief that at trial evidence can be offered to create an issue is insufficient to prevent the entry of a summary judgment. Whittenburg v. Cessna Finance Corp., 536 S.W.2d 444 (Tex.Civ.App. Houston (14th Dist.) 1976, writ ref'd n. r. e.); Duffard v. Corpus Christi, 332 S.W.2d 447 (Tex.Civ.App. San Antonio 1960, no writ). One of the purposes of Rule 166-A is to eliminate "patently unmeritorious claims or untenable defenses." Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.Sup.1972); Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952). The defendants failed to seek the relief available under Rule 166-A(f).

Payment is an affirmative defense in the nature of a plea and avoidance, and payments not admitted in plaintiff's petition must be specially pled by defendants. Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162 (Tex.Sup.1963); Commercial Inv. Trust v. Smart, 123 Tex. 180, 69 S.W.2d 35 (1934); Rules 94, 95 Texas Rules of Civil Procedure. Here defendants did not plead payment in any form. The absence of a sworn pleading is not necessarily fatal in summary judgment proceedings, however, if the proof filed in reply to the motion for summary judgment establishes facts, which if true, would constitute a defense. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233 (1956); Alonzo v. Northern County Mutual Insurance Co., 561 S.W.2d 53 (Tex.Civ.App. Houston (14th Dist.) 1978, no writ); Smith v. Crockett Production Credit...