Pentico v. Mad-Wayler, Inc.

• Decision Date: 12 February 1998
• Docket Number: No. 13-96-277-CV,MAD-WAYLE,INC,13-96-277-CV
• Citation: 964 S.W.2d 708
• Parties: Maurice PENTICO and Pauline Pentico, Appellants, v.and David C. Madsen, Individually, Appellees.
• Court: Texas Court of Appeals

Page 708

964 S.W.2d 708

Maurice PENTICO and Pauline Pentico, Appellants, v. MAD-WAYLER, INC. and David C. Madsen, Individually, Appellees.

No. 13-96-277-CV.

Court of Appeals of Texas Corpus Christi.

Feb. 12, 1998.

Rehearing Overruled April 30, 1998.

Kelly K. McKinnis, McAllen, for Appellants.

William E. Corcoran, Cardenas & Whitis, McAllen, for Appellee.

Before DORSEY, FEDERICO G. HINOJOSA, Jr. and CHAVEZ, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

This is a usury case. The trial court granted the motion for summary judgment of appellees, Mad-Wayler, Inc. and David C. Madsen, Individually, and ordered that appellants, Maurice Pentico and Pauline Pentico, forfeit the principal sum of $96,590 and pay a penalty of $35,931.26. By two points of error, appellants contend the trial court erred by denying their motion for summary judgment and by granting appellees' motion for summary judgment. We affirm the trial court's order denying appellants' motion for summary judgment. We reverse the trial court's order granting appellees' motion for summary judgment and remand the case to the trial court for further proceedings.

Background

On June 10, 1987, appellants loaned Mad-Wayler $100,000. A promissory note and deed of trust to secure the loan were prepared by Royce Brough, a principal in Mad-Wayler, and executed the same day. The note was guaranteed by Brough and David C. Madsen, also a principal in Mad-Wayler, Inc. According to the terms of the note, interest accrued on the unpaid balance at the rate of ten percent per annum, and interest on matured, unpaid amounts accrued at the rate of twelve percent per annum. For the first nine months, monthly payments of $1,000 were to be made on the principal, with the first payment being due on July 10, 1987. Interest for those nine months was to be paid on April 1, 1988. Effective April 10, 1988, principal and interest were to be paid in monthly installments of $2,000. The note was to be fully paid by February 1, 1991.

Between July 1987 and September 1989, only one payment was made on time. Typically, payments were made one week or more late. After March 1989, payments were not made in full; Mad-Wayler sent two or three separate checks totaling $2,000 for each month. On September 20, 1989, ten days after the September payment was due and not received, appellants hand-delivered a letter and an amortization schedule to Madsen and demanded that Mad-Wayler remit payment of the overdue September loan installment plus late charges by September 25. After examining the amortization schedule appellants sent, Madsen realized that the late charges had been grossly miscalculated. On September 22, appellees filed a lawsuit charging appellants with usury. On or about September 29, appellants prepared a new amortization schedule reflecting the correct late charges. Appellants were not served with the lawsuit until November 1, 1989.

The trial court's docket sheet reflects that between November 1989 and April 1994, the parties filed motions and counter-motions, engaged in extensive discovery, and attempted mediation. Appellants moved for summary judgment in April 1994, but it was denied in July 1994. ¹ Appellees then filed a motion for summary judgment, and it was granted. This appeal followed.

Standard of Review

In their brief, appellees point out that appellants have failed to include appellees' request for admissions from appellants in the record. Appellees contend that failure to include appellants' admissions requires us to summarily affirm the trial court's summary judgment. The burden is on the appellant to present a complete record of what the trial court had before it in ruling on a motion for summary judgment. TEX.R.APP. P. 50(d) (amended August 15, 1997) (current version at TEX.R.APP. P. 35.3); ² Beck & Masten Pontiac-GMC, Inc. v. Harris County Appraisal Dist., 830 S.W.2d 291, 295 (Tex.App.--Houston [14th Dist.] 1992, writ denied) . Missing items are presumptively held to support the trial court's judgment. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 689 (Tex.1990). Nonetheless, we will not automatically affirm the ruling as it is far from obvious that the trial court relied on the missing evidence or that the omitted portion of the record is essential to ascertaining the basis of the court's decision. See Gupta v. Ritter Homes, Inc., 633 S.W.2d 626, 628 (Tex.App.--Houston [14th Dist.] 1982) (contents of missing portion of record were not asserted in motion for summary judgment and immaterial to trial court's ruling), aff'd in part, rev'd in part on other grounds, 646 S.W.2d 168 (Tex.1983); cf. Alcantar v. Edelstein's Better Furniture, 818 S.W.2d 547, 548 (Tex.App.--Corpus Christi 1991, no writ) (summarily overruling point of error due to omission of obviously pertinent evidence); DeBell v. Texas Gen. Realty, Inc., 609 S.W.2d 892, 893 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ) (documents omitted from record were relied on by trial court and cited in summary judgment order). The appellees' motion for summary judgment must stand or fall on its own merits. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993); Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 618 (Tex.App.--Corpus Christi 1995, no writ).

When both parties move for summary judgment and one motion is granted and the other is overruled, the appellate court should consider all questions presented to the trial court, including whether the losing party's motion should have been overruled. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). Each party must carry its own burden as the movant and, in response to the other party's motion, as the non-movant. James v. Hitchcock Indep. Sch. Dist., 742 S.W.2d 701, 703 (Tex.App.--Houston [1st Dist.] 1987, writ denied). To prevail, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex.1993). When both parties move for summary judgment, this court has the authority to (1) affirm the judgment, (2) reverse the judgment and render the judgment that the trial court should have rendered, or (3) reverse the judgment and remand the case to the trial court for further proceedings. Members Mut. Ins. Co. v. Hermann Hosp., 664 S.W.2d 325, 328 (Tex.1984).

Appellants moved for summary judgment in April 1994. On July 13, 1994, the trial court heard and denied appellants' motion. On July 21, 1994, appellees filed their motion for summary judgment, and it was granted in April 1996. Even though the motions for summary judgment in this case were filed and ruled upon at different times, we will review both motions because appellants complain the trial court erred in granting appellees' motion for summary judgment and in denying their motion for summary judgment.

A movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex.1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 549; Rios v. Texas Commerce Bancshares, Inc., 930 S.W.2d 809, 814 (Tex.App.--Corpus Christi 1996, writ denied). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 549; Rios, 930 S.W.2d at 814. If the movant establishes that he is entitled to summary judgment, the burden shifts to the nonmovant to show why summary judgment should be avoided. Casso, 776 S.W.2d at 556.

Where the summary judgment order specifies the grounds on which it bases summary judgment, we limit our review to those grounds. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Delaney v. University of Houston, 835 S.W.2d 56, 58 (Tex.1992); Cox v. Upjohn Co., 913 S.W.2d 225, 228 (Tex.App.--Dallas 1995, no writ). The summary judgment will be affirmed on appeal if the specified grounds are meritorious. S.S., 858 S.W.2d at 380; River Consulting, Inc. v. Sullivan, 848 S.W.2d 165, 168-69 (Tex.App.--Houston [1st Dist.] 1992, writ denied). Even if the motion contained other independent grounds on which summary judgment was sought, the grounds specified in the order are the only ones on which summary judgment may be affirmed. Carlisle v. Philip Morris, Inc., 805 S.W.2d 498, 518 (Tex.App.--Austin 1991, writ denied).

Appellants' Motion for Summary Judgment

By their second point of error, appellants contend the trial court erred in denying their motion for summary judgment.

After reviewing appellants' motion for summary judgment, we find that it is stylistically an answer to appellees' petition and cites no legal authority in its arguments. In the motion, appellants argue that they are entitled to summary judgment because, contrary to appellees' assertions, they have not charged more than twice the amount of interest allowed by law. They argue that total interest on the note up to the date of maturity ($34,466.83) plus properly re-calculated late charges of $88.83 is well within the $35,000 maximum interest that could have been charged. Appellants do not explain how they arrive at any of these figures. Elsewhere in the motion, appellants argue that the applicable interest cap is $42,067.30, but they do not clarify why this number should be used instead of, or in addition to, the $35,000. They acknowledge that the late charges of $11,977.26 were miscalculated, but downplay the significance of the charges and do not utilize them in calculations. Other than labeling the $11,977.26 in late charges "erroneous," appellants ignore this central issue.

Appellees' lawsuit relies largely on the alleged impropriety of the outrageous late charges to establish usury. Article 5069-1.06(a) allows creditors to establish...