Stucki v. Noble

• Decision Date: 28 January 1998
• Docket Number: No. 04-97-00161-CV,04-97-00161-CV
• Citation: 963 S.W.2d 776
• Parties: J. Wes STUCKI, Appellant, v. Charles H. NOBLE, Jr., Appellee.
• Court: Texas Court of Appeals

Page 776

963 S.W.2d 776

J. Wes STUCKI, Appellant, v. Charles H. NOBLE, Jr., Appellee.

No. 04-97-00161-CV.

Court of Appeals of Texas San Antonio.

Jan. 28, 1998.

Rehearing Overruled Feb. 24, 1998.

Michael P. Kelly, The Law Office of Michael P. Kelly, Dallas, for Appellant.

Bennett L. Stahl, Jonathan David Pauerstein, Arter & Hadden, San Antonio, for Appellee.

Before HARDBERGER, C.J., and LPEZ and ANGELINI, JJ.

OPINION

ANGELINI, Justice.

Appellant, J. Wes Stucki, appeals the granting of summary judgment in favor of appellee, Charles H. Noble, Jr. Noble sued Stucki to recover amounts due under a commercial lease and a promissory note. In eleven points of error, Stucki contends that the trial court erred in granting Noble's motion for summary judgment because Noble failed to prove his entitlement to summary judgment as a matter of law and because Noble's summary judgment proof was inadequate. We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In May of 1988, Charles H. Noble, Jr. entered into a lease agreement with United Chiropractic Clinic Broadway, Inc., whereby he, as landlord, leased commercial shopping center space to the clinic, as tenant, in exchange for monthly rental payments. J. Wes Stucki, an owner of United Chiropractic, contemporaneously executed a lease guaranty agreement guaranteeing the clinic's obligations under the lease. In October of 1989, the clinic defaulted on its rental payment and failed to make any subsequent payments. Noble demanded payment from Stucki based upon his guarantee of the lease.

Noble and Stucki entered into a settlement agreement whereby Noble agreed to accept $27,024.00 from Stucki in settlement of the clinic's liability under the lease. Noble and Stucki executed a promissory note in the principle amount of $27,024.00. The note was payable in monthly installments of $2,252.00, effective October 1, 1989. The settlement agreement provided that, in the event of a default in payment of the promissory note, Noble could resort to all rights and remedies provided by the lease in addition to pursuing his rights and remedies under the note.

After making several payments, Stucki defaulted on the note. Noble sued Stucki for recovery of all sums due under both the lease and the promissory note. Stucki answered, alleging affirmative defenses of accord and satisfaction, estoppel, release, statute of limitations, failure to mitigate damages, waiver, and offset. Noble moved for summary judgment and attached the lease, the settlement agreement, the promissory note, the new lease he entered into with a third party following the clinic's default, his own affidavit, and the affidavit of his attorney as summary judgment proof. In his affidavit, Noble established all of the facts leading up to the default. He also testified as to the amounts due under the promissory note and the lease after crediting payments made and rent received from the new tenant.

Stucki responded by alleging that Noble had failed to establish that he was entitled to judgment as a matter of law because he did not conclusively establish the sums due under the lease and the note. Stucki further argued that he was entitled to the affirmative defenses he had pled. He supported his entitlement to a $15,764.00 offset with copies of checks payable to Noble which Stucki's attorney, via affidavit, verified as true and correct copies. The trial court granted summary judgment in favor of Noble in the amount of $109,752.72.

ARGUMENT AND AUTHORITY

A. Standard of Review

In order to prevail on a motion for summary judgment, the movant must either prove that no genuine issue of material fact exists, affirmatively disprove at least one element of the plaintiff's cause of action, or prove an affirmative defense as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex.App.--Houston [14th Dist.] 1994, no writ). In any case, the movant bears the burden of proving that he is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c). On review, the appellate court must take as true all evidence favoring the non-movant and indulge every reasonable inference in his favor. Park Place Hosp. v. Milo, 909 S.W.2d 508, 510 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984).

B. Special Exceptions

In his first point of error, Stucki contends that the trial court erred in denying his special exceptions to Noble's motion for summary judgment. Stucki contends that Noble failed to adequately identify his summary judgment proof by simply stating, in his motion for summary judgment, that the motion was supported by "affidavits and other exhibits attached hereto, as well as all pleadings and other papers timely filed of record as of the date of the hearing." We disagree.

The general language Stucki complains of is contained in the conclusion of Noble's motion. The text of Noble's motion clearly sets out, identifies, and describes each of the seven exhibits attached to the motion. Further, the self-authenticating affidavits of Noble and his attorney, properly authenticate the remaining five exhibits. Noble's motion for summary judgment is clearly supported by adequately identified and authenticated proof. Accordingly, the trial court did not err in denying Stucki's special exceptions to Noble's motion. Stucki's first point of error is overruled.

C. Relief Sought

In his third point of error, Stucki contends that Noble's pleadings do not support his motion for summary judgment. Specifically, Stucki complains of the fact that, in his petition, Noble sought relief both for default on the promissory note and for breach of the lease; however, in his motion for summary judgment, Noble requests relief under the lease, or, in the alternative, relief under the note.

A plaintiff is permitted to request relief for as many causes of action as he asserts in his petition. In this case, however, Noble is only entitled to damages for one of his causes of action because the amount due on the note includes the amount due under the lease. If he recovered under both causes of action, he would receive a double recovery. Accordingly, Noble properly elected his remedy in his motion for summary judgment. Stucki's contention that Noble's motion is not supported by the pleadings is wholly without merit. Stucki's third point of error is overruled.

D. Proof of Amount Due

In his second point of error, Stucki contends, generally, that the trial court erred in granting Noble's motion for summary judgment. In his fourth and fifth points of error, he specifically states that Noble was not entitled to summary judgment because a fact issue remains regarding the sum due under the note. In his sixth and seventh points of error, he contends that the trial court erred in granting Noble's motion for summary judgment because Noble failed to mitigate his damages and because fact issues remain regarding mitigation of damages and offset. And finally, in his eighth through eleventh points of error, he contends that Noble's affidavit is insufficient proof of the amount due.

1. Sufficiency of Noble's Affidavit

Stucki argues that Noble's affidavit is insufficient to support his motion for summary judgment (1) because it does not establish his personal knowledge of the matters identified in the affidavit, (2) because Noble purports to be an expert in real estate appraisal, but was not identified as an expert in answers to interrogatories, and (3) because Noble is an interested witness and, therefore, the affidavit cannot be easily controverted.

As to Stucki's allegations involving Noble's failure to identify himself as an expert in answers to interrogatories, there is no requirement that an expert be designated in a summary judgment proceeding. See State v. Roberts, 882 S.W.2d 512, 512-14 (Tex.App.--Austin 1994, no writ); Gandara v. Novasad, 752 S.W.2d 740, 742 (Tex.App.--Corpus Christi 1988, no writ). Further, the only issue regarding which Noble testified as an expert was whether the rental fee paid by Noble's subsequent tenant is within the fair market value of a similar lease. Such testimony does not change the computation of damages in this case. Accordingly, the effect of the affidavit would have been similar whether Noble testified as an expert or not. Stucki's tenth point of error is overruled.

We next address Stucki's contention that Noble did not demonstrate personal knowledge of the matters discussed in his affidavit. Texas Rule of Civil Procedure 166a(f) provides that affidavits in support of motions for summary judgment must be made on personal knowledge. TEX.R. CIV. P. 166a(f). In other words, the affidavit must demonstrate affirmatively the manner in which the affiant became personally familiar with the facts at issue. The personal knowledge requirement is satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may be reasonably assumed that the affiant has personal knowledge of the facts stated in the affidavit. Waite v. BancTexas--Houston, N.A., 792 S.W.2d 538, 540 (Tex.App.--Houston [1st Dist.] 1990, no writ); Marek v. Tomoco Equip. Co., 738 S.W.2d 710, 714 (Tex.App.--Houston [14th Dist.] 1987, no writ). In the present case, in addition to generally stating that the facts set forth in his affidavit were within his personal knowledge, Noble identified himself as a party to the suit, the owner and landlord of the property subject to the lease at issue, a party to the settlement agreement at issue, and the holder of the promissory note at issue. Noble's recital clearly resolves any questions regarding how he obtained knowledge of the matters contained in his affidavit. Accordingly, the rule 166a(f) personal knowledge requirement was satisfied. Stucki's eighth and ninth points of error are overruled.

Finally, we address whether Noble's affidavit was easily controvertible. The...