Goss v. Bobby D. Associates

• Decision Date: 26 August 2002
• Docket Number: No. 12-02-00020-CV.,No. 12-02-00021-CV.,No. 12-02-00022-CV.,No. 12-02-00023-CV.,12-02-00020-CV.,12-02-00021-CV.,12-02-00022-CV.,12-02-00023-CV.
• Citation: 94 S.W.3d 65
• Parties: Jackson 0. GOSS and Susan Goss, Appellants v. Bobby D. ASSOCIATES, an Ohio General Partnership, Appellee Johnny Green, Appellant v. Bobby D. Associates, an Ohio General Partnership, Appellee Edward N. Walsh and Laura S. Walsh, Appellants v. Bobby D. Associates, an Ohio General Partnership, Appellee Daniel D. Hammond, Jr., and Lisa Hammond, Appellants v. Bobby D. Associates, an Ohio General Partnership, Appellee
• Court: Texas Court of Appeals

94 S.W.3d 65

Jackson 0. GOSS and Susan Goss, Appellants v. Bobby D. ASSOCIATES, an Ohio General Partnership, Appellee Johnny Green, Appellant v. Bobby D. Associates, an Ohio General Partnership, Appellee Edward N. Walsh and Laura S. Walsh, Appellants v. Bobby D. Associates, an Ohio General Partnership, Appellee Daniel D. Hammond, Jr., and Lisa Hammond, Appellants v. Bobby D. Associates, an Ohio General Partnership, Appellee

No. 12-02-00020-CV.

No. 12-02-00021-CV.

No. 12-02-00022-CV.

No. 12-02-00023-CV.

Court of Appeals of Texas, Tyler.

August 26, 2002.

Rehearing Overruled September 18, 2002.

COPYRIGHT MATERIAL OMITTED

Richard L. Ray, Canton, for appellants.

Crystal L. Landes, McCue & Lee, Addison, Gregory P. Supan, Dallas, for appellee.

Panel consisted of GOHMERT, Jr., C.J., WORTHEN, J., and GRIFFITH, J.

Appellants Jackson 0. Goss and Susan Goss, Johnny Green, Edward N. Walsh and Laura Walsh, and Daniel D. Hammond and Lisa Hammond, in four separate appeals, complain of the trial court's grant of summary judgment in favor of Appellee Bobby D. Associates, an Ohio general partnership ("BDA"). We affirm. Because the outcome of these cases depends on our determination of common issues, we consider Appellants' issues together and deliver one opinion.

BACKGROUND

By four separate contracts entitled "Contract for Deed," Jackson 0. Goss and Susan Goss, Johnny Green, Edward N. Walsh and Laura Walsh, and Daniel D. Hammond and Lisa Hammond (collectively "Appellants") agreed to purchase certain commercial real estate lots (the "lots") from Wild Willie II Corporation ("Wild Willie"). Under the terms of the contracts, Appellants agreed to pay the purchase price and accrued interest in monthly installments and Wild Willie agreed to convey the lots to the respective purchasers when the purchase price was paid in full. After Appellants executed the subject contracts, Wild Willie conveyed the lots to The Cadle Company, who in turn conveyed the lots to BDA. Appellants ceased making payments to BDA and went into default under the terms of their respective contracts. In order to enforce the contracts, BDA sued Appellants in four separate lawsuits, alleging breach of contract.¹ Appellants, acting pro se, filed answers to BDA's allegations. BDA filed a motion for summary judgment in each case, arguing that it was entitled to judgment as a matter of law on its breach of contract claim. Appellants filed identical written responses to the motions. The trial court granted summary judgment to BDA and ordered Appellants to pay the balance owed on their respective contracts.²

MOTION FOR SUMMARY JUDGMENT

Standard of Review

The standard of review for a summary judgment requires that the party with the burden of proof show it is entitled to judgment by establishing each element of its claim or defense as a matter of law, or by negating an element of a claim or defense of the opposing party as a matter of law. Martin v. Harris County Appraisal Dist., 44 S.W.3d 190, 193 (Tex.App.Houston [14th Dist.] 2001, pet. denied); TEX. R. CIV. P. 166a(c). When a motion for summary judgment raises multiple grounds, we may affirm if any ground is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Hanson v. Republic Ins. Co., 5 S.W.3d 324, 327 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the non-movant. See Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). The only question is whether or not an issue of material fact is presented. See TEX. R. CIV. P. 166a(c).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. See, e.g., City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). Where summary judgment does not specify the grounds on which it was granted, the non-movant on appeal must show that each ground alleged in the motion is insufficient to support it. Duran v. Fury's Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.-El Paso 1996, writ denied).

BDA's Right to Judgment as a Matter of Law

In its motion for summary judgment, BDA argued that it was entitled to judgment as a matter of law because it had conclusively established all of the necessary elements of its breach of contract claim against Appellants. The elements of breach of contract are (1) the existence of a valid contract, (2) the performance or tendered performance by the claimant, (3) a breach of the contract by the defendant, and (4) damages resulting from that breach. Southwell v. University of Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.-San Antonio 1998, pet. denied).

To support its claim for breach of contract in each case, BDA attached the contract, various affidavits, and a copy of its First Requests for Admissions to Appellants which went unanswered and were deemed admitted. TEX. R. CIV. P. 198.2(c). This evidence established that valid contracts were executed by Appellants and that BDA tendered performance under the contracts after Appellants stopped making payments by offering to convey the lots to Appellants by special warranty deed in exchange for the execution of a real estate lien note and a deed of trust. However, these documents were not executed by Appellants. The evidence also established that Appellants failed to make the required payments and that BDA suffered damages in the total amount of the unpaid balances of the contracts. BDA met its burden of producing sufficient evidence on every element of its breach of contract claim against each Appellant; therefore, BDA established that it was entitled to judgment as a matter of law.

Appellants impliedly request that we disregard their deemed admissions and argue that due to their ignorance of the law, their failure to file responses to the requests for admissions should be excused. Ignorance of the law is no excuse. Cherokee Water Co. v. Forderhause, 727 S.W.2d 605, 615 (Tex.App.-Texarkana 1987), rev'd on other grounds, 741 S.W.2d 377 (Tex. 1987). The effect of Appellants' failure to file responses is that the matters admitted were conclusively established unless, on motion, the court permitted the withdrawal or amendment of the admissions. TEX.R. CIV. P. 198.3. Appellants took no action to withdraw their deemed admissions; therefore, Appellants waived any error in the trial court's consideration of the deemed admissions. TEX. R. APP. P. 33.1(a). Furthermore, a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure. Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.-Amarillo 1998, pet. denied); Greenstreet v. Heiskell, 940 S.W.2d 831 (Tex. App.-Amarillo 1997, no pet.). If a pro se litigant is not required to comply with the applicable rules of procedure, he would be given an unfair advantage over a litigant who is represented by counsel. Id. at 835. Therefore, Appellants' excuse for not answering BDA's requests for admissions is meritless, and the deemed admissions are part of the summary judgment record.

Once the movant establishes its entitlement to a summary judgment, the burden of proof shifts to the non-movant to present evidence raising a question of fact in support of its claim or defense. State v. Durham, 860 S.W.2d 63, 68 (Tex.1993). Mere conclusory statements do not constitute effective summary judgment proof. Id. Once BDA established that it was entitled to judgment, the burden shifted to Appellants to raise a question of fact. To support their contention that a fact issue remains, Appellants argue that BDA should not have been granted summary judgment because it lacked standing to assert its cause of action and because the signatures on the contract were procured by fraud.

Standing

Appellants assert that BDA does not have standing to bring any cause of action in Texas courts of law because it "does not exist in the state of Ohio" and has never obtained the necessary certificate of authority from the Texas Secretary of State as a prerequisite for proceeding with its cause of action in Texas state courts. In support of this argument, Appellants attached to their responses to BDA's motion for summary judgment a copy of a certification from the Ohio Secretary of State that its records were devoid of any such "Ohio corporation, Foreign Corporation, Ohio Limited Liability Company, Foreign Limited Liability Company, Ohio Limited Partnership, Foreign Limited Partnership, Ohio Limited Liability Partnership, Foreign Limited Liability Partnership, Trade Name Registration, or Report of Use of Fictitious Name, either active or inactive, known as BOBBY D. ASSOCIATES." Appellants also attached a certification from the Texas Secretary of State reporting that none of its records revealed any mention of a foreign corporation, limited partnership, or limited liability company on file with the name of "BOBBY D. ASSOCIATES."

In response, BDA argues that it is a general partnership and not a corporation. BDA asserts that as a general partnership, it is not required to register with either the Texas or Ohio Secretary of State because no law in either state mandates that a general partnership register with the secretary of state.

In support of their argument that BDA lacks standing, Appellants cite article 8.18(A) of the Texas Business Corporation Act. Article 8.18(A) states that no foreign corporation that has conducted or is conducting business in Texas without a certificate of authority shall be permitted to maintain any action in any court of this state on any cause of action arising out of the transaction of business in this state until the...