Opinion
NO. 03-14-00470-CV
02-18-2016
Jose Chavez, Appellant v. Juan Francisco Martinez, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY, NO. C-1-CV-13-008449, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDINGMEMORANDUM OPINION
Jose Chavez appeals from a summary judgment granted in favor of the plaintiff, Juan Francisco Martinez, in a suit to recover payment on a promissory note. Chavez contends that the trial court erred in granting summary judgment because he presented evidence sufficient to create fact issues on Martinez's claim for breach of contract. Chavez also argues that the trial court erred in awarding attorney's fees because Martinez failed to present evidence conclusively establishing his right to recover attorney's fees. We will affirm the trial court's judgment.
Chavez represents himself in this appeal.
BACKGROUND
Martinez entered into a "Real Estate Lien Note" with Design Workz, LLC, whereby Design Workz was required to pay Martinez $100,000, plus interest, by October 1, 2010. According to Martinez, Design Workz defaulted on the Note. As a result, Martinez sued Chavez as a personal guarantor on the Note.
Martinez later moved for summary judgment on his claim, seeking to recover what he contended was the unpaid sum due under the Note, plus interest and $33,333 in attorney's fees. Chavez, who represented himself, did not file a response to Martinez's motion for summary judgment, nor did he file objections to Martinez's summary-judgment evidence. Instead, Chavez moved for a continuance of the summary-judgment hearing, which the trial court granted. After Chavez still failed to file a response or objections before the rescheduled summary-judgment hearing, the trial court granted Martinez's motion for summary judgment.
Thirty days later, an attorney appeared on Chavez's behalf and filed a motion for new trial with attached evidence. Chavez did not request leave to file this new evidence, and there is no indication from the record that the trial court considered the evidence. The motion for new trial was overruled by operation of law. Chavez then filed this appeal.
DISCUSSION
In his first and second issues on appeal, Chavez contends that the trial court erred in granting summary judgment because he presented evidence sufficient to create a fact issue on Martinez's breach-of-contract claim. In making this argument, Chavez relies on the affidavits filed in support of his motion for new trial, filed after the trial court granted Martinez's motion for summary judgment.
The standards for reviewing a summary judgment are well-established and undisputed on appeal. See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Tex. R. Civ. P. 166a(c); Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Accordingly, we need not repeat them here.
In deciding whether the trial court properly granted Martinez's motion for summary judgment, we cannot consider Chavez's late-filed evidence. Affidavits and responses in opposition to a motion for summary judgment must be filed no later than seven days before the hearing date, "except on leave of court." Id. R. 166a(c). There is no indication in the record that Chavez sought leave of court to file evidence late and have it considered as part of the summary-judgment record before the trial court. Instead, he attached the evidence to his motion for new trial. However, unless a motion for new trial filed after the grant of summary judgment shows that the evidence "could not have been discovered through due diligence prior to the ruling on a summary judgment motion," the additional evidence may not be considered. McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Chavez has made no such showing. Nevertheless, the deficiency of Chavez's proof in opposition to Martinez's summary-judgment motion does not end our inquiry.
Even when a non-movant fails to submit evidence in opposition to a motion for summary judgment, the grant of the motion for summary judgment is still improper unless the movant establishes his claim as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (concluding that non-movant need not answer or respond to summary-judgment motion to contend on appeal that motion was insufficient to establish as matter of law movant's entitlement to summary judgment). Chavez has challenged on appeal whether Martinez established his entitlement to summary judgment as a matter of law; therefore, we will examine whether Martinez established the elements of his breach-of-contract claim.
In support of his motion for summary judgment, Martinez submitted his own affidavit and attached what he averred to be a true and correct copy of the Note. The Note bears what purports to be Chavez's signature, identifying Chavez as a personal guarantor, guaranteeing that he would individually pay the amount owed if Design Workz was in default on October 1, 2010. In his affidavit, Martinez also averred that Design Workz defaulted on the Note by wholly failing to pay the $100,000, the agreed upon interest rate was 18% per year, demand for payment was made and refused, and Martinez performed all conditions precedent to recovery. This evidence, including the copy of the Note, is sufficient to establish Martinez's entitlement to summary judgment on his breach-of-contract claim against Chavez. See Scott v. Sebree, 986 S.W.2d 364, 372 (Tex. App.—Austin 1999, pet. denied) (listing elements of breach-of-contract cause of action). We overrule Chavez's first and second issues on appeal.
The Note provided for a flat 40% interest rate, but also included a provision that interest would not exceed the maximum amount of non-usurious interest allowed by law. Martinez averred that this provision lowered the rate to 18%.
In his third issue on appeal, Chavez complains that the trial court erred in granting summary judgment on Martinez's claim for attorney's fees, contending that "Plaintiff's evidence in support of attorney's fees is utterly deficient under Texas law." Based on the record before us, we disagree.
The Note provided for the recovery of attorney's fees for the prevailing party in a suit under the Note: "Reasonable attorney's fees shall be 10% of all amounts due unless either party pleads otherwise." Martinez pleaded for $33,333 in attorney's fees rather than the base 10% provided in the Note, and the trial court awarded Martinez that amount in attorney's fees. In support of the amount he claimed for attorney's fees, Martinez relied on the declaration of his attorney, who declared his qualifications and his opinion that the fees incurred on behalf of Martinez were reasonable. An affidavit filed by the movant's attorney that sets forth the attorney's qualifications, opinion regarding the reasonableness of the fees, and the basis for his opinion has been held sufficient to support summary judgment if uncontroverted. In re Estate of Tyner, 292 S.W.3d 179, 184 (Tex. App.—Tyler 2009, no pet.). Likewise, this Court has concluded that uncontroverted testimony from an interested witness may establish attorney's fees as a matter of law if "(1) the testimony could be readily contradicted if untrue; (2) it is clear, direct, and positive; and (3) there are no circumstances tending to discredit or impeach it." McMillin v. State Farm Lloyds, 180 S.W.3d 183, 210 (Tex. App.—Austin 2005, pet. denied) (citing Lofton v. Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989)).
Chavez does not complain on appeal about the trial court's conditional award of appellate attorney's fees to Martinez.
In addition, Chapter 38 of the Texas Civil Practice & Remedies Code provides for recovery of attorney's fees in claims for breach of contract. Tex. Civ. Prac. & Rem. Code § 38.001. Section 38.004 provides that a "court may take judicial notice of the usual and customary attorney's fees and of the contents of the case file without receiving further evidence in a proceeding before the court." Id. § 38.004; see also Gill Sav. Ass'n v. Chair King, Inc., 797 S.W.2d 31, 32 (Tex. 1990) (noting that trial court may take judicial notice of usual and customary attorney's fees in proceeding before the court). It is presumed that usual and customary attorney's fees are reasonable. Tex. Civ. Prac. & Rem. Code § 38.003. In a previous case involving summary judgment in a suit to enforce a note, this Court affirmed a trial court's award of attorney's fees, holding that the trial court could base its decision on judicial notice of the contents of the record before it, coupled with a lack of evidence rebutting the reasonableness of the fees awarded. Suttles v. Kastleman, No. 03-01-00719-CV, 2002 WL 1729519, at *2 (Tex. App.—Austin July 26, 2002, no pet.) (not designated for publication).
The trial court was entitled to take judicial notice of the contents of the case file and the usual and customary attorney's fees for the services provided, the evidence submitted by Martinez, and Chavez's failure to rebut the reasonableness of the fee in deciding that the amount awarded to Martinez for attorney's fees was reasonable. Here, the trial court's judgment indicates that it reviewed the "competent summary judgment evidence" before it. We overrule Chavez's complaint concerning the trial court's award of attorney's fees to Martinez.
A court may presume that a trial court took judicial notice of its file and of usual and customary attorney's fees even if there is no record of a request for judicial notice or that the trial court actually took judicial notice of such facts. Ross v. 3D Tower Ltd., 824 S.W.2d 270, 273 (Tex. App.—Houston [14th Dist.] 1992, writ denied). --------
CONCLUSION
For these reasons, we affirm the trial court's judgment.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: February 18, 2016