Vela v. Vela, 14-12-00822-CV

CourtCourt of Appeals of Texas
PartiesSAMMY VELA, Appellant v. THERESA VELA, Appellee
Docket NumberNO. 14-12-00822-CV,14-12-00822-CV
Decision Date18 July 2013

Affirmed and Memorandum Opinion filed July 18, 2013.

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2010-40184


In this restricted appeal, appellant Sammy Vela challenges the trial court's granting summary judgment against him and in favor of appellee Theresa Vela on her breach of contract claim. Because there is no error apparent from the face of the record, we affirm the trial court's judgment.


Between February and December 2005, Theresa Vela loaned Sammy Vela1 a total of $110,000 to be used toward "restaurant investment." This loan consisted of: (1) $90,000 paid on February 10, 2005; (2) $10,000 paid on August 2, 2005; and $10,000 paid in December 2005. Theresa "cashed out of [her] retirement account" to make the loan. Theresa demanded repayment of the loan many times, but Sammy never repaid her. As a result, Theresa was forced to hire an attorney. She sued Sammy on the loan, alleging in her live pleading claims of breach of contract and suit on sworn account, amongst others. Sammy answered Theresa's original petition with a general denial but did not file a verified denial to her amended petition.

Theresa filed a motion for summary judgment on the breach of contract claim, attaching her affidavit and an affidavit by her attorney, Javier Marcos.2 Sammy did not file a response to the motion for summary judgment, did not file any objections to the summary judgment evidence, did not file any controverting summary judgment evidence, and did not appear for the set hearing or participate by counsel.

On March 5, 2012, the trial court granted Theresa's summary judgment motion, awarding her: (1) $110,000 in actual damages; (2) $15,000 in attorney's fees; (3) court costs; and (4) pre- and post-judgment interest at five percent per annum. The trial court awarded conditional damages for attorney's fees in the amounts of: $15,000 if the award was appealed to the court of appeals and Theresa prevailed; and $10,000 if the award was appealed to the Texas Supreme Court andTheresa prevailed, plus $5,000 if oral argument was granted. Sammy did not file any post-judgment motions or requests for findings of fact or conclusions of law. On August 31, 2012, Sammy filed a notice of restricted appeal.

On appeal, Sammy presents three issues. First, he argues that the trial court's granting summary judgment on Theresa's contract claim was error from the face of the record. Second, Sammy contends that the trial court's granting attorney's fees constituted error from the face of the record. And third, Sammy argues that the trial court erred from the face of the record by granting Theresa more relief than requested in her summary judgment motion.


To prevail on a restricted appeal, the appellant must establish: (1) he filed a notice of restricted appeal within six months after the judgment was signed; (2) he was a party to the underlying suit; (3) he did not participate in the hearing that resulted in the final judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent from the face of the record. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (citing TEX. R. APP. P. 26.1(c), 30, and Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)). The face of the record, for purposes of a restricted appeal, consists of all the papers on file in the appeal. See Mansell v. Ins. Co. of the W., 203 S.W.3d 499, 500 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (citing Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)); Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Only the fourth element is disputed in this appeal.


We review de novo the trial court's grant of a summary judgment. Fergusonv. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009) (per curiam) (citing Tex. Mun. Power Agency v. Pub. Util. Comm'n. of Tex., 253 S.W.3d 184, 192 (Tex. 2007)). We affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)).

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). If the movant facially establishes its right to summary judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine issue of material fact sufficient to defeat summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). However, the nonmovant has no burden to respond unless the movant conclusively establishes its cause of action or defense. See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). We take as true all evidence favorable to the nonmovant, and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The summary judgment standard of review applies equally in ordinary and restricted appeals. See Maan v. First ATM, Inc., No. 03-06-00698-CV, 2008 WL 5210923, at *5 (Tex. App.—Austin Dec. 12, 2008, no pet.) (mem. op.); Stowell v. Stowell, No. 14-02-00293-CV, 2003 WL 151403, at *1 (Tex. App.—Houston [14th Dist.] Jan. 23, 2003, pet. denied) (mem. op.).

A. Theresa's breach of contract claim

Sammy argues the face of the record demonstrates that the trial court erredin granting Theresa's motion for summary judgment for three reasons: (1) Theresa's affidavit is not competent summary judgment evidence; (2) she failed to conclusively prove her breach of contract claim; and (3) the trial court erred by relying on Theresa's suit on sworn account as grounds for summary judgment on her breach of contract claim. We conclude that Sammy's arguments lack merit.

1. Alleged defects in Theresa's affidavit

Sammy first argues that Theresa's summary judgment evidence is incompetent because it is unclear, contradictory, and conclusory. But Sammy has waived any defects regarding the affidavit's form by failing to raise any objections in the trial court.

"A summary judgment may be based on uncontroverted testimonial evidence of an interested witness . . . if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." TEX. R. CIV. P. 166a(c); see Trico Techs. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997); Calzada v. Am. First Nat'l Bank, No. 14-07-00022-CV, 2008 WL 324912, at *2 (Tex. App.—Houston [14th Dist.] Feb. 7, 2008, no pet.) (mem. op.). "Defects in the form of affidavits are not grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." Ahumada v. Dow Chem. Co., 992 S.W.2d 555, 562 (Tex. App.—Houston [14th Dist.] 1999, pet. denied); see TEX. R. CIV. P. 166a(f). Defects of form include statements of an interested witness that are not clear or free from contradictions. See Rockwall Commons Assocs. v. MRC Mortg. Grantor Trust, 331 S.W.3d 500, 507 (Tex. App.—El Paso 2010, no pet.). Because Sammy did not object to Theresa's affidavit as unclear or contradictory at the trial court, he has waived these objections. See Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000, no pet.) ("A partymust object in writing to the form of summary judgment evidence and place the objections before the trial court, or its objections will be waived.").

However, objections relating to substantive defects, such as conclusory statements, can be raised for the first time on appeal and are not waived by the failure to obtain a ruling from the trial court. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). A conclusory statement is one that does not provide the underlying facts to support the conclusion, and is insufficient to support or defeat summary judgment. 1001 McKinney Ltd. v. Credit Suisse First Bos. Mortg. Capital, 192 S.W.3d 20, 27 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citations omitted). Thus, Sammy's claim regarding the conclusory nature of Theresa's affidavit has not been waived, and we address it infra.

2. Theresa's affidavit sufficiently proves her contract claim.

Sammy contends that Theresa's affidavit contains conclusory statements and fails to conclusively establish breach of contract, and that this error is apparent from the face of the record. Sammy further argues that conflicting loan amounts, and the lack of a maturity date, interest rate, and repayment terms mean that the alleged contract fails for lack of sufficient definiteness. However, we conclude that neither of these arguments establishes error from the face of the record.

a. Theresa's affidavit constitutes competent summary judgment evidence.

First, with regard to Sammy's claim that Theresa's affidavit contains substantively defective conclusory statements, we disagree. Sammy argues that Theresa's affidavit is conclusory because it assumes that the loan is valid, breached, and callable without containing factual details regarding the loan terms. Sammy also notes that Theresa did not file a copy of any written agreement.

In the context of written promissory notes, we have upheld the competence of affidavits as summary judgment evidence where the affiant identified herself as a loan officer or otherwise in charge of collection,...

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