I. Pretrial and Trial Procedure Generally
§ 19.1Filing and Notice Requirement
Every pleading, plea, motion, or application to the court for an order, unless presented during a hearing or trial, must be filed with the clerk of the court in writing, must state the grounds therefor, and must set forth the relief or order sought. At the same time a true copy must be served on all other parties and must be noted on the docket. Tex. R. Civ. P. 21(a).
If the e-mail address of the party or attorney to be served is on file with the electronic file manager, a document filed under rule 21 must be served electronically. Otherwise, the document may be served in person, by mail, by commercial delivery service, by fax, by e-mail, or by such other manner as the court in its discretion may direct. Tex. R. Civ. P. 21(a).
An application to the court for an order and notice of any hearing thereon not presented during a hearing or trial must be served in accordance with rule 21a(a) on all other parties not less than three days before the time specified for the hearing, unless otherwise provided by the Texas Rules of Civil Procedure or unless the time is shortened by the court. Tex. R. Civ. P. 21(b). See form 19-2 for the notice of hearing.
If there is more than one other party represented by different attorneys, one copy of each pleading must be served on each attorney in charge. Tex. R. Civ. P. 21(c).
The party or attorney of record must certify to the court compliance with the rules in writing over signature on the filed pleading, plea, motion, or application. Tex. R. Civ. P. 21(d), 21a(e). See form 19-1 for certificate of service. The certificate of service raises a rebuttable presumption that service was done properly. Tex. R. Civ. P. 21a(c); Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). See section 18.13:3 for service of discovery requests and documents.
Practice Note: Because the rules do not address when e-mail service is complete, consider using an additional method of service.
After one copy is served on a party, that party may obtain another copy of the same pleading on tendering reasonable payment for copying and delivering. Tex. R. Civ. P. 21(e).
Requirement: Except in juvenile cases under Title 3 of the Family Code, attorneys must electronically file documents in courts where electronic filing has been mandated. Attorneys practicing in courts where electronic filing is available but not mandated and unrepresented parties may electronically file documents, but it is not required. Tex. R. Civ. P. 21(f)(1). Although they are rarely encountered in collections matters, there are exceptions to the electronic filing requirement. See Tex. R. Civ. P. 21(f)(4).
E-Mail Address: The email address of an attorney or unrepresented party who electronically files a document must be included on the document. Tex. R. Civ. P. 21(f)(2).
Mechanism: Electronic filing must be done through the electronic filing manager established by the Office of Court Administration and an electronic filing service provider certified by the Office of Court Administration. Tex. R. Civ. P. 21(f)(3).
Timely Filing: Unless a document must be filed by a certain time of day, a document is considered timely filed if it is electronically filed at any time before midnight (in the court’s time zone) on the filing deadline. An electronically filed document is deemed filed when transmitted to the filing party’s electronic filing service provider, except:
1.if a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a Saturday, Sunday, or legal holiday; and
2.if a document requires a motion and an order allowing its filing, the document is deemed filed on the date that the motion is granted.
Tex. R. Civ. P. 21(f)(5).
Technical Failure: If a document is untimely due to a technical failure or a system outage, the filing party may seek appropriate relief from the court. If the missed deadline is one imposed by these rules, the filing party must be given a reasonable extension of time to complete the filing. Tex. R. Civ. P. 21(f)(6).
Electronic Signature: A document that is electronically served, filed, or issued by a court or clerk is considered signed if the document includes (1) a “/s/” and a name typed in the space where the signature would otherwise appear, unless the document is notarized or sworn or (2) an electronic image or scanned image of the signature. Tex. R. Civ. P. 21(f)(7).
Format: An electronically filed document must (1) be in text-searchable portable document format (PDF); (2) be directly converted to PDF rather than scanned, if possible; (3) not be locked; and (4) otherwise comply with the technology standards set by the Judicial Committee on Information Technology and approved by the supreme court. Tex. R. Civ. P. 21(f)(8).
Paper Copies: Unless required by local rule, a party need not file a paper copy of an electronically filed document. Tex. R. Civ. P. 21(f)(9).
Electronic Notices from Court: The clerk may send notices, orders, or other communications about the case to the party electronically. A court seal may be electronic. Tex. R. Civ. P. 21(f)(10).
Nonconforming Documents: The clerk may not refuse to file a document that fails to conform with this rule. But the clerk may identify the error to be corrected and state a deadline for the party to resubmit the document in a conforming format. Tex. R. Civ. P. 21(f)(11).
Official Record: The clerk may designate an electronically filed document or a scanned paper document as the official court record. The clerk is not required to keep both paper and electronic versions of the same document unless otherwise required by local rule. Tex. R. Civ. P. 21(f)(13).
“Sensitive data” is defined in the rules and consists of: (1) a driver’s license number, passport number, Social Security number, tax identification number, or similar government-issued personal identification number; (2) a bank account number, credit card number, or other financial account number; and (3) a birth date, home address, and the name of any person who was a minor when the underlying suit was filed. Tex. R. Civ. P. 21c; Tex. R. App. P. 9.9(a), 9.10(a). Sensitive data in a document must be redacted before that document is filed. There is an exception for sensitive data that is required by statute, court rule, or administrative regulation to be included in the filing. Tex. R. Civ. P. 21c(b); Tex. R. App. P. 9.9(b). Documents that are filed under seal are not required to be redacted. Tex. R. Civ. P. 21c(b); Tex. R. App. P. 9.2(c)(3), 9.10(f).
If a document filed in a civil case is required to contain sensitive data, the filer must notify the clerk by (1) designating the document as containing sensitive data when it is electronically filed or (2), if the document is not electronically filed, including on the upper left-hand side of the first page the phrase “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.” Tex. R. Civ. P. 21c(d); Tex. R. App. P. 9.9(d). Documents that contain sensitive data in violation of the rule must not be posted on the Internet. The burden is on the filer to redact sensitive data before the document is filed in one of two alternative methods:
1.Use the letter X in place of each omitted digit or character.
2.Remove the sensitive data in a manner indicating that the data has been redacted.
Tex. R. Civ. P. 21c(c), Tex. R. App. P. 9.9(c), 9.10(d).
The filing party must retain an unredacted version of the filed document during the pendency of the case and any related appellate proceedings filed within six months of the date the judgment is signed. Tex. R. Civ. P. 21c(c). The length of retention depends on the stage and type of proceeding. Tex. R. Civ. P. 21c(c).
§ 19.8Filing and Serving Pleadings and Motions
Filing and Service Required: Every notice required by the rules, and every pleading, plea, motion, or other form of request required to be served under rule 21, other than the citation to be served on the filing of a cause of action and except as otherwise expressly provided in the rules, may be served by delivering a copy to the party to be served or the party’s duly authorized agent or attorney of record. Tex. R. Civ. P. 21(a).
Service of Notice of Hearing: An application to the court for an order and notice of any hearing thereon, not presented during a hearing or trial, must be served on all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court. Tex. R. Civ. P. 21(b).
Who May Serve: Service of notice may be made by a party to the suit or his attorney of record, by a sheriff or constable, or by any other person competent to testify. Tex. R. Civ. P. 21a(d).
Multiple Parties: If there is more than one other party represented by different attorneys, one copy of each pleading must be served on each attorney in charge. Tex. R. Civ. P. 21(c).
Certificate of Service: The party or attorney of record must certify to the court compliance with this rule in writing over signature on the application. Tex. R. Civ. P. 21(d), see also Tex. R. Civ. P. 21(e). Rule 21 does not require that the certificate of service detail the method of service used. See Tex. R. Civ. P. 21; Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 673 (Tex. App.—Fort Worth 1996, no writ). Likewise, rule 21 does not require a showing of actual receipt of notice by opposing counsel. Gonzales v. Surplus Insurance Services, 863 S.W.2d 96, 101–02 (Tex. App.—Beaumont 1993, writ denied) (intended recipient engaged in instances of selective acceptance and refusal of certified mail related to case); Costello v. Johnson, 680 S.W.2d 529, 531 (Tex. App.—Dallas 1984, writ. ref’d n.r.e.) (record not required to affirmatively show receipt of notice). Rule 21a creates a presumption that a document that is properly sent is received by the addressee. Although the presumption may be rebutted by an offer of proof of nonreceipt, the presumption has the force of a rule of law in the absence of proof to the contrary. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994) (orig. proceeding); Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 809 (Tex. App.—Houston [14th Dist.] 1996, writ denied). Although not required by rules 21 and 21a, the better practice is to recite in the certificate of service the particular mode used to effect service and have available for the court’s review evidence of service (for example, courier receipt, facsimile confirmation, certified mail receipt, domestic return receipt, certificate of mailing, or postal receipt). Rule 21a lists the methods of service.
Documents Filed Electronically: A document filed electronically under rule 21 must be served electronically through the electronic filing manager if the e-mail address of the party or attorney to be served is on file with the electronic filing manager. If the e-mail address of the party or attorney to be served is not on file with the electronic filing manager, the document may be served on that party or attorney as provided in rule 21a(a)(2). Tex. R. Civ. P. 21a(a)(1).
Documents Not Filed Electronically: A document not filed electronically may be served in person, by mail, by commercial delivery service, by fax, by e-mail, or by such other manner as the court in its discretion may direct. Tex. R. Civ. P. 21a(a)(2).
Service by Mail: Service by mail or commercial delivery service shall be complete on deposit of the document, postpaid and properly addressed, in the mail or with a commercial delivery service. Tex. R. Civ. P. 21a(b)(1).
Service by Facsimile: Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shall be deemed served on the following day. Tex. R. Civ. P. 21a(b)(2).
Electronic Service: Electronic service is complete on transmission of the document to the serving party’s electronic filing service provider. The electronic filing manager will send confirmation of service to the serving party. Tex. R. Civ. P. 21a(b)(3).
E-Mail Service: Because the rule does not address when e-mail service is complete, the attorney should consider using an additional method of service.
§ 19.10Time for Action after Service
Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper on him and the notice or paper is served on him by mail, three days shall be added to the prescribed period. The amended rule grants additional time only when service is made by mail. Tex. R. Civ. P. 21a(c).
The party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument. A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any other person showing service of a notice shall be prima facie evidence of the fact of service. Nothing in the rule precludes any party from offering proof that the document was not received or, if service was by mail, that the document was not received within three days from the date that it was deposited in the mail, and on so finding, the court may extend the time for taking the action required of such party or grant such other relief as it deems just. Tex. R. Civ. P. 21a(e); see also Tex. R. Civ. P. 21(d) (requiring signed certificate of compliance with rule 21).
§ 19.12Prima Facie Evidence of Service
The certificate of service is prima facie evidence of service. Tex. R. Civ. P. 21a(e). See form 19-1 in this manual for a certificate of service.
Unless a specific rule provides otherwise and unless the application is presented during a hearing or trial, any application for a court order and notice of hearing must be served on all other parties at least three days before the time specified for the hearing. Tex. R. Civ. P. 21(b). See Tex. R. Civ. P. 4.
§ 19.14Setting of Pretrial Hearings
The minimum time required for setting a matter for hearing varies both with the matter being heard and with local rules and practice. Once the court clerk sets a hearing date and time, all parties must be notified in writing of the setting as soon as possible.
An application to the court for an order and notice of any hearing thereon not presented during a hearing or trial must be served on all other parties not less than three days before the time specified for the hearing, unless otherwise provided by these rules or shortened by the court. Tex. R. Civ. P. 21(b).
Practice Note: When a motion is to be presented to the court for hearing, it is good practice to include a notice of hearing. The notice should be included at the end of the motion, before the certificate of service, or, depending on local practice, it may be filed as a separate document. A notice of hearing is at form 19-2 in this chapter.
An increasing number of courts are handling pretrial motions with a submission docket. Instead of oral argument, the court considers only the motion and response submitted. There is no right to present argument for or against a motion for summary judgment; all party participation necessary in a summary judgment proceeding occurs prior to the date set for hearing. See Guereque v. Thompson, 953 S.W.2d 458, 465 (Tex. App.—El Paso 1997, pet. denied) (no right to present oral argument at hearing); Adamo v. State Farm Lloyds Co., 853 S.W.2d 673, 677 (Tex. App.—Houston [14th Dist.] 1993, writ denied) cert. denied, 511 U.S. 1053 (1994) (because oral hearing on summary judgment is “little more than argument of counsel,” it is not reversible error for trial court to deny request for hearing; decision to grant oral hearing on summary judgment motion is purely within discretion of trial judge, and court of appeals cannot mandate that trial court hold oral hearing on summary judgment). The trial court is not required to conduct an oral hearing on a motion for summary judgment and may rule on the motion based solely on written submission. Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex. App.—Tyler 2005, no pet.). Therefore a supporting brief may often prove useful.
The procedure regarding submission dockets varies among courts, but generally the procedure is to obtain a submission date and time, which is the official date and time when the court will consider the motion and response. This submission date is the functional equivalent of a hearing date for purposes of filing motions and responses.
The Texas Government Code defines an “affidavit” as a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified by the officer under his seal of office. See Tex. Gov’t Code § 312.011. Normally an affidavit contains a jurat signed by an authorized officer (e.g., a notary), which certifies that the written statement was taken under oath before the officer. But a jurat is not essential for a written statement to meet the statutory definition of “affidavit”; proof that the writing was sworn to before an authorized officer may be supplied by other evidence. See Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 316–17 (Tex. 2012) (per curiam) review granted, judgment rev’d on other grounds, 365 S.W.3d 314 (Tex. 2012) (in summary judgment, affidavit is proper when it contains acknowledgment by notary and recites that affiant was duly sworn and on oath stated contents of affidavit); Asset Liquidation Group v. Wadsworth, No. 01-15-00614-CV, 2016 WL 4375419, at *3 (Tex. App.—Houston 2016, no pet.) (mem. op.). Likewise, an acknowledgment by a notary (that an instrument was executed for the purposes therein expressed) will not by itself support a finding that a writing is an affidavit, but it will suffice “when coupled with language that the affiant personally appeared before the authorized officer, was duly sworn, and was deposed as follows.” Mansions in the Forest, L.P., 365 S.W.3d at 358–59 (citing Perkins v. Crittenden, 462 S.W.2d 565, 567 (Tex. 1970); Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645–46) (Tex. 1995)). See also Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 197 (Tex. App.—Forth Worth 2006, no pet.) (in summary judgment, affidavit without jurat held to be proper when it contained notary’s acknowledgment; statement that affiant personally appeared, swore on oath, and deposed and stated information that followed; and affiant stated in affidavit that he had personal knowledge of facts stated therein).
§ 19.17:2Contents of Affidavit
An affidavit must be made on personal knowledge, must affirmatively show the competence of the affiant to testify to the matters stated, must state facts that would be admissible in evidence, and must have attached to it or served with it sworn or certified copies of all papers or parts referred to in the affidavit. See Tex. R. Civ. P. 166a(f) (addressing the requirements of affidavits in the summary judgment context).
An affidavit must disclose the basis of the personal knowledge. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761–62 (Tex. 1988) (per curiam) (summary judgment); M.G.M. Grand Hotel, Inc. v. Castro, 8 S.W.3d 403, 406–07 (Tex. App.—Corpus Christi 1999, no pet.) (special appearance). It need not expressly state that its contents are true or that the affiant is competent to testify about the contents if competence is established by the facts in the affidavit. Cook v. Frazier, 765 S.W.2d 546, 551–52 (Tex. App.—Fort Worth 1989, no writ) (summary judgment). See also Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 361 (Tex. App.—Dallas 2007, pet. denied) (summary judgment; affiant not required to state all facts contained in affidavit are true when, considering affidavit in its entirety, affiant is clearly representing that facts stated therein are true and correct).
Unless otherwise authorized by statute, an affidavit is insufficient unless the allegations contained in it are direct and unequivocal, and perjury can be assigned to them if they prove to be incorrect. In the context of summary judgment, in order to raise an issue of fact the affidavit must contain facts and not mere conclusions. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (summary judgment); Welch v. Doss Aviation, Inc., 978 S.W.2d 215, 222 (Tex. App.—Amarillo 1998, no pet.) (summary judgment); Requipco, Inc. v. Am-Tex Tank & Equipment, Inc., 738 S.W.2d 299, 302 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (summary judgment). It should positively and unqualifiedly represent the facts it discloses to be true and within the declarant’s personal knowledge. Brownlee, 665 S.W.2d at 112. It should not merely recite that the affiant has personal knowledge of the facts testified to in the affidavit; it should show how the affiant has personal knowledge of these facts. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex. 1962); Murfee v. Oquin, 423 S.W.2d 172, 173–74 (Tex. Civ. App.—Amarillo 1967, writ ref’d n.r.e.).
§ 19.17:3Caveat: “Knowledge and Belief”
Affidavits using phrases such as “based upon my best recollection and belief,” “to the best of my knowledge and belief,” and “to the best of knowledge and belief” do not positively and unqualifiedly represent the facts to be true and within the personal knowledge of the affiant. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam); Lee v. Lee, 43 S.W.3d 636, 641 (Tex. App.—Fort Worth 2001, no pet.); Lightfoot v. Weissgarber, 763 S.W.2d 624, 628 (Tex. App.—San Antonio 1989, writ denied).
Some affidavits, such as those supporting a sworn account petition, may be executed by the party, his agent, or his attorney. Tex. R. Civ. P. 185. The attorney should not execute any such affidavit unless the attorney has personal knowledge of the facts contained in it. See Tex. Disciplinary R. Prof’l Conduct 3.03. See also State Bar of Texas, Op. 405 (1983) (to knowingly verify false pleading may subject attorney to discipline and constitutes perjury).
§ 19.17:4Affidavits and Business Records
An affidavit made under Tex. R. Civ. P. 185 and Tex. R. Evid. 902(10) may be used to authenticate and identify business records, and such an affidavit will support a summary judgment based on the pleadings. Special Marine Products, Inc. v. Weeks Welding & Construction, Inc., 625 S.W.2d 822, 826–27 (Tex. App.—Houston [14th Dist.] 1981, no writ); see also Hudspeth v. Investor Collection Services Ltd. Partnership, 985 S.W.2d 477, 479 (Tex. App.—San Antonio 1998, no pet.) (lender need not file detailed proof reflecting calculations of balance due on note; affidavit of bank employee setting forth total balance due is sufficient). See section 19.50:1 below for the use of affidavits in summary judgment proceedings.
§ 19.17:5Affidavits in Sworn Account Cases
See section 14.21:4 in this manual regarding the contents of an affidavit in a sworn account case.
A verified pleading is one that includes an affidavit, attached to the pleading, verifying that the contents of the pleading are true. The list of items alleged in a pleading that must be verified is found at Tex. R. Civ. P. 93. Typical defensive matters raised by verified pleadings in collections cases include—
1.defect of the parties (Tex. R. Civ. P. 93(4));
2.denial of partnership as alleged in any pleading (Tex. R. Civ. P. 93(5));
3.that any party alleged in any pleading to be a corporation is not incorporated as alleged (Tex. R. Civ. P. 93(6));
4.denial of the execution of a written instrument (Tex. R. Civ. P. 93(7));
5.denial of genuineness of the indorsement or assignment of a written instrument upon which suit is brought by an idorsee or assignee (Tex. R. Civ. P. 93(8));
6.allegation that a written instrument on which a pleading is founded is without consideration or that the consideration has failed in whole or in part (Tex. R. Civ. P. 93(9));
7.denial of a sworn account (Tex. R. Civ. P. 93(10)); and
8.that a contract is usurious (Tex. R. Civ. P. 93(11)).
An unsworn declaration may be used in lieu of an “affidavit required by statute or required by rule, order, or requirement adopted as provided by law.” Tex. Civ. Prac. & Rem. Code § 132.001. The unsworn declaration must be (1) in writing; (2) subscribed by person making the declaration as true under penalty of perjury; and (3) must include a jurat in prescribed form. The substantial form of the required jurat is set forth in Tex. Civ. Prac. & Rem. Code § 132.001(d)–(f). See form 19-5. The second requirement (subscription under penalty of perjury) appears to supplant an affidavit’s requirements showing affirmatively that it is based on personal knowledge, that the facts sought to be proved would be “admissible in evidence” at a conventional trial, and that the facts recited therein are “true and correct.” See, e.g., Bahm v. State, 219 S.W.3d 391, 394 (Tex. Crim. App. 2007) (inmate’s unsworn declaration found to be proper when it included the “vital phrase” “under penalty of perjury” while also reciting facts “according to my belief”).
Parties may incorporate into their pleadings documentary exhibits such as promissory notes, accounts, mortgages, and other records and written instruments constituting, in whole or part, the claim sued on or the matter set up in defense by attaching copies or the originals to the pleadings, by filing copies or originals and referring to them, or by copying the documents into the body of the pleadings. Such documents will be deemed part of the pleadings. Tex. R. Civ. P. 59. A document is not put into evidence merely by attaching it to a pleading. If an exhibit is a necessary element of proof, it must be separately introduced into evidence at trial. Johnson v. Mohammed, No. 03-10-00763, 2013 WL 1955862, at *2 (Tex. App.—Austin 2013, pet. dism’d w.o.j.) (mem. op.); National Medical Financial Services, Inc. v. Irving Independent School District, 150 S.W.3d 901, 905 (Tex. App.—Dallas 2004, no pet.).
Statements in a pleading may be adopted by reference to a statement in another pleading or motion or elsewhere in the same pleading, as long as the pleading containing the statements has not been superseded by amendment. Tex. R. Civ. P. 58.
§ 19.22Amended and Supplemental Pleadings
The distinction between amended and supplemental pleadings is clearly stated in Tex. R. Civ. P. 62–70, but the difference frequently becomes blurred in actual practice. See, e.g., Hawkins v. Anderson, 672 S.W.2d 293, 294–96 (Tex. App.—Dallas 1984, no writ) (plaintiff initially filed negligence action in county court at law, then filed “first supplemental petition” adding a deceptive trade practice claim asking for treble damages and incorporating by reference the first pleading, thereby putting damages over jurisdictional maximum for the court; appeals court construed new petition as an amended pleading that superseded the original petition and alleged a new ground of recovery, and upheld dismissal of DTPA claim but overturned dismissal of negligence claim, holding that incorporating first pleading by reference was improper but did not make amended pleading void). An amended pleading adds to or takes from a previously filed pleading, whereas a supplemental pleading is addressed to a pleading of another party and is designed to answer allegations. Tex. R. Civ. P. 62, 69. For example, if the plaintiff must allege that the defendant waived the statute of limitations because the defendant raised the defense in his answer, he would do so in a supplemental petition. An amended pleading must identify the instrument being amended; it must be titled, for example, “Plaintiff’s First Amended Petition” and is a complete substitute for the earlier pleading. Tex. R. Civ. P. 64.
If a party has mistakenly designated any pleading, the court must treat the pleading as if it had been properly designated, if justice so requires. Tex. R. Civ. P. 71. The legal effect of a pleading is not determined by its style, but by its allegations and evident purpose. Hawkins v. Anderson, 672 S.W.2d 293, 295 (Tex. App.—Dallas 1984, no writ). Pleadings must be docketed as originally designated and will remain identified as designated, unless the court orders redesignation. On court order, the clerk must modify the docket and all other clerk records to reflect redesignation. Tex. R. Civ. P. 71.
Failing to respond to a pleading subjects a party to the risk of default judgment. See part II. in chapter 20 of this manual.
§ 19.25Dismissal for Baseless Causes of Action
Texas Rule of Civil Procedure 91a governs dismissal of baseless causes of action (sometimes referred to as “early dismissal”). Rule 91a applies to all cases except those governed by the Family Code and inmate litigation. Tex. R. Civ. P. 91a.1. The procedures outlined in rule 91a are cumulative of other procedures that authorize dismissal in Texas. Tex. R. Civ. P. 91a.9. Moreover, the procedures of rule 91a are not exceptions to the special appearance rules of Texas Rule of Civil Procedure 120a or the challenge of venue rules of Texas Rule of Civil Procedure 86. Tex. R. Civ. P. 91a.8. A special appearance and/or motion to transfer venue should be filed in the correct sequence to prevent waiver of objections to jurisdiction or venue. A litigant who files a motion to dismiss under rule 91a submits to the court’s jurisdiction for the purposes contained in the motion and is bound by the court’s ruling, including an award of attorney’s fees and costs. Tex. R. Civ. P. 91a.8.
§ 19.25:1Motion and Grounds for Dismissal
A party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded. Tex. R. Civ. P. 91a.1.
A motion to dismiss must—
1.state that it is made pursuant to Tex. R. Civ. P. 91a;
2.identify each cause of action to which it is addressed; and
3.state specifically the reasons the cause of action has no basis in law, no basis in fact, or both.
§ 19.25:3Time for Filing Motion to Dismiss, Response Thereto, Hearing, and Ruling
A motion to dismiss must be—
1.filed within sixty days after the first pleading containing the challenged cause of action is served on the movant;
2.filed at least twenty-one days before the motion is heard; and
3.ruled on within forty-five days after the motion is filed.
Although a motion to dismiss must be filed at least twenty-one days before the hearing, the parties need only receive notice of the hearing fourteen days before the hearing. Tex. R. Civ. P. 91a.6. A response to a motion to dismiss is not required, but the deadline to file a response is not later than seven days before the date of the hearing. Tex. R. Civ. P. 91a.4.
The court may allow oral argument, but is not required to do so. With the exception of pleading exhibits permitted by Tex. R. Civ. P. 59, the court cannot consider evidence in ruling on the substance of the motion. Tex. R. Civ. P. 91a.6. (Note the contrast with Fed. R. Civ. P. 12(b)(6), which allows evidence to be submitted with the motion, but if evidence is submitted, the motion becomes a motion for summary judgment; furthermore there is no requirement that the motion to dismiss be filed before or contemporaneously with a responsive pleading as required by Fed. R. Civ. P. 12(b)(6).) Tex. R. Civ. P. 59 allows documentary exhibits such as notes, contracts, and records to be attached to a pleading in support of a claim or defense, and moreover, if an exhibit is attached, the pleading will not be defective if it fails to allege facts which can be supplied from the exhibit.
If a motion to dismiss a baseless claim is filed immediately on receipt of same, the baseless claim could be dismissed not earlier than twenty-one days after such baseless claim is filed. Tex. R. Civ. P. 91a.3(b). But, in no event will the baseless claim be dismissed more than 105 days after it is filed (i.e., the motion to dismiss is filed on the last day allowed by the rules and the court rules on the last day allowed by the rules). Tex. R. Civ. P. 91a.3(a), (b). By any modern day standard this constitutes “early dismissal.”
§ 19.25:4Effect of Nonsuit, Pleading Amendment, or Withdrawal of Motion to Dismiss
A nonsuit of a claim that is the subject of a motion to dismiss may be filed not later than three days before a hearing scheduled on the motion to dismiss. Similarly, a motion to dismiss may be withdrawn not later than three days before a hearing scheduled on the motion to dismiss. See Tex. R. Civ. P. 91a.5(a). Unless the parties agree that the motion to dismiss should not be heard, the court must rule on the motion unless the challenged cause of action is nonsuited or the motion to dismiss is withdrawn. In ruling on the motion to dismiss, the court cannot consider an unfiled nonsuit or amendment. Conversely, if claims are timely nonsuited or a motion to dismiss is timely withdrawn, the court cannot rule on the motion to dismiss. Tex. R. Civ. P. 91a.5(c).
A challenged cause of action may also be amended not later than three days before the date of the hearing on the motion to dismiss. Tex. R. Civ. P. 91a.5(a). If the challenged cause of action is amended, the motion to dismiss may be withdrawn or it may be amended to be directed at the amended cause of action. Tex. R. Civ. P. 91a.5(b). If the motion to dismiss is amended, the applicable time periods of rule 91a are restarted. Tex. R. Civ. P. 91a.5(d).
§ 19.25:5Award of Costs and Attorney’s Fees to Prevailing Party
The court may award costs and reasonable and necessary attorney’s fees incurred with respect to the challenged cause of action to the prevailing party. Any award of costs or fees must be based on evidence. The court may not award attorney’s fees and costs to parties in a suit brought by or against a governmental entity or in a suit by or against a public official acting in his official capacity or under color of law. Tex. R. Civ. P. 91a.7. There is no requirement in Fed. R. Civ. P. 12(b)(6) that the prevailing party must be awarded attorney’s fees and costs. However, a litigant whose 12(b)(6) motion is granted may be able to petition the court for his attorney’s fees pursuant to Fed. R. Civ. P. 54.
§ 19.26Failure to Respond to, Amend, or Supplement Discovery Response
Failure to properly respond to, amend, or supplement a discovery response in a timely manner results in the automatic exclusion of the evidence or testimony that is the subject of the request, unless the trial court finds either good cause for the failure or that the failure will not unfairly surprise or prejudice the other parties. Tex. R. Civ. P. 193.6(a). The burden of proof is on the party seeking admission of the evidence, and the finding of good cause or lack of unfair surprise or unfair prejudice must be supported by the record. Tex. R. Civ. P. 193.6(b).
Even if the party seeking to introduce the evidence or call the witness fails to carry the burden imposed by Tex. R. Civ. P. 193.6(a), (b), the court may grant a continuance or postpone the trial to allow a response to be made, amended, or supplemented and to allow opposing parties to conduct discovery regarding any new information presented by that response. Tex. R. Civ. P. 193.6(c).
[Sections 19.27 through 19.30 are reserved for expansion.]
Tex. R. Civ. P. 169 was added to rules effective March 31, 2013, to promote the prompt, efficient, and cost-effective resolution of civil actions. See 76 Tex. B.J. 221 (2013). The expedited actions process applies in a suit in which all claimants, other than counter-claimants, affirmative plead that they seek only monetary relief aggregating $100,000 or less, including damages of any kind, penalties, costs, expenses, prejudgment interest, and attorney’s fees. Tex. R. Civ. P. 169(a)(1). The expedited process does not apply to actions filed pursuant to the Family Code, the Property Code, the Tax Code, or to medical liability claims governed by chapter 74 of the Texas Civil Practice and Remedies Code. Tex. R. Civ. P. 169(a)(2). Tex. R. Civ. P. 47 and 190.2 were revised to conform to the expedited actions procedures. Tex. R. Civ. P. 190.2(a)(1) was added to include in the Level 1 discovery control plan “any suit that is governed by the expedited actions process in Rule 169” and the rule was recaptioned as “Discovery Control Plan—Expedited Actions and Divorces Involving $50,000 or Less (Level 1).” See 76 Tex. B.J. 221 (2013). Rule 47(c), by requiring a statement of monetary relief sought, now expressly requires the plaintiff to plead into the requirements of the rule or describe relief that falls outside the rule. Tex. R. Civ. P. 47(c).
See section 14.4 in this manual for information about expedited action considerations when drafting pleadings.
§ 19.31:1Trial, Alternative Dispute Resolution, and Potential Recovery in Expedited Actions
On request by any party, the court must set the trial date within ninety days after the discovery period ends. The court may continue the case twice, but such continuances cannot be more than a total of sixty days cumulatively. Tex. R. Civ. P. 169(d)(2).
Unless the parties have agreed not to engage in alternative dispute resolution, the court may refer a case in the expedited action process to alternative dispute resolution once. The alternative dispute resolution must—
1.not exceed a half day in duration, excluding scheduling time;
2.not exceed a total cost of twice the amount of the applicable civil filing fees; and
3.be completed not more than sixty days before the first trial setting.
Tex. R. Civ. P. 169(d)(4)(A). The court must consider objections to the referral unless otherwise prohibited by statute. Tex. R. Civ. P. 169(d)(4)(B). The parties may agree to engage in alternative dispute resolution in a manner other than that provided for in the expedited process rules. Tex. R. Civ. P. 169(d)(4)(C).
If a plaintiff properly pleads into the expedited action process, and serves discovery with his petition, the case could be set for trial the day after discovery closes or 181 days after suit is filed. A maximum timeframe for taking the case to trial cannot be ascertained since the closure of the discovery period is calculated from the date that the first discovery requests are served. But, a diligent party will act quickly in serving discovery, and the case should be taken to trial on or about 330 days after the date the case is filed. See Tex. R. Civ. P. 169, 190.2(b)(1).
The rule requires economy in the use of time in trial. Each side in a case is allowed no more than eight hours to complete jury selection, opening statements, presentation of evidence, and examination and cross-examination of witnesses. Tex. R. Civ. P. 169(d)(3). “Side” has the same definition as set forth in Texas Rule of Civil Procedure 233 and means “one or more litigants who have common interests on matters with which the jury is concerned.” Tex. R. Civ. P. 169(d)(3)(A), 233. Time spent on objections, bench conferences, bills of exception, and challenges for cause to a juror under rule 8 of the Texas Rules of Civil Procedure are not included in the time limit. Tex. R. Civ. P. 169(d)(3)(B). The eight-hour time limit for trial may be extended to no more than twelve hours per side on motion and a showing of good cause by any party. Tex. R. Civ. P. 169(d)(3). In determining whether good cause exists to extend the time allowed for trial, the court should consider the same factors listed above pertaining to removing the suit from the expedited action process. Tex. R. Civ. P. 169, cmt. 3.
A party that prosecutes a suit under rule 169 may not recover a judgment in excess of $100,000, excluding postjudgment interest. Tex. R. Civ. P. 169(b).
§ 19.31:2Expert Testimony and Potential Recovery
Daubert and Havner challenges to expert testimony are not allowed pretrial except on request of the party offering the expert or as an objection to motion for summary judgment evidence. However, Daubert and Havner challenges may be made at the time of trial. A motion to strike an expert for late designation is also available. Tex. R. Civ. P. 169(d)(5). In terms of actual practice, the short timeframes for trial provided in rule 169 and limited discovery available under rule 190.2 may wholly prevent pretrial challenges to the admissibility of expert witnesses. See Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993); Havner v. E-Z Mart Stores, 825 S.W.2d 456 (Tex. 1992).
§ 19.32Discovery under Expedited Action Process
Application of Discovery Control Plan (Level 1): Discovery under the expedited action process is governed by Tex. R. Civ. P. 190.2 (also known as the “Level 1” discovery control plan). Tex. R. Civ. P. 190.2(a)(1). The rules generally do not allow the parties to agree to another discovery control plan. Tex. R. Civ. P. 190.1, 190.2(a)(2).
Discovery Control Plan (Level 1) Limitations: Discovery Period—Begins when the suit is filed, and ends 180 days after the date that the first discovery request of any kind is served on any party. Tex. R. Civ. P. 190.2(b)(1).
Total Time for Oral Deposition—Each party may have no more than six hours in total to examine and cross-examine all witness. Note that deposition time is per “party,” while trial time is per “side.” The parties may agree to extend this time to ten hours, but no more except by court order. The court may modify (increase or decrease) the deposition hours so that no party is given an unfair advantage. Tex. R. Civ. P. 190.2(b)(2).
Interrogatories—Limited to fifteen excluding interrogatories asking a party to identify or authenticate documents. Each discreet subpart of an interrogatory is a separate interrogatory. Tex. R. Civ. P. 190.2(b)(3).
Requests for Production—Limited to fifteen. Each discreet subpart of a request for production is a separate request for production. Tex. R. Civ. P. 190.2(b)(4).
Requests for Admission—Limited to fifteen. Each discreet subpart of a request for admission is a separate request for admission. Tex. R. Civ. P. 190.2(b)(5).
Requests for Disclosure—The standard requests for disclosure under rule 194.2 apply to expedited actions. Tex. R. Civ. P. 190.2(b)(6). Importantly, a party may request, as an additional request for disclosure, “all documents, electronic information, and tangible items that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Such a request for disclosure is not considered a request for production. See Tex. R. Civ. P. 190.2(b)(6).
The Level 1 discovery control plan rules do not specifically address requests for production or subpoenas duces tecum served with a deposition notice (whether oral or on written questions). See generally Tex. R. Civ. P. 190.2. Under rules 199 and 200, a party may serve requests for production with a notice of deposition. Tex. R. Civ. P. 199.2(b)(5), 200.1(b). Rules 193 and 196 govern requests for production served in conjunction with notices of deposition on parties or witnesses controlled by parties, and those rules do not contain a limitation on the number of requests for production that may be served on a party. Tex. R. Civ. P. 199.2(b)(5); see also Tex. R. Civ. P. 193, 196. If a party seeks to serve more than fifteen requests for production while under a Level 1 discovery control plan, it may do so by serving those requests for production with a notice of deposition. See also section 18.2 in this manual.
[Sections 19.33 through 19.40 are reserved for expansion.]
III. Motion for Summary Judgment
§ 19.41Purpose of Summary Judgment
The purpose of summary judgment is to eliminate patently unmeritorious claims or untenable defenses and to avoid delays of trial if there is no genuine issue of fact. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). Summary judgment is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. An answer or response to an unsuccessful motion for summary judgment may produce the defendant’s sworn testimony regarding his defenses, without need for further discovery on those defenses.
Summary judgment is a harsh remedy with complex and unclear procedural rules. All inferences are resolved in the nonmovant’s favor. The judge (who does not risk reversal for denying a motion for summary judgment) may be hesitant to award a summary judgment because of the great statistical likelihood of reversal. See David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1364 (1998). Summary judgments are well suited for commercial litigation in which the facts are more easily established by documentary evidence; see sections 19.45 (sworn accounts) and 19.46 (promissory notes) below. The attorney should carefully weigh these considerations in determining whether filing a motion for summary judgment is warranted.
§ 19.42Availability of Summary Judgment
§ 19.42:1Requirement of No Genuine Issue of Material Fact
The creditor can obtain a summary judgment against the debtor if—
(i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response.
Tex. R. Civ. P. 166a(c) (emphasis added).
The question “is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.” Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970).
§ 19.42:2Requirement of Defendant’s Appearance
The plaintiff may move for summary judgment at any time after the adverse party has appeared or answered. Tex. R. Civ. P. 166a(a). Summary judgment probably ceases to be available once the trial has begun. Many courts issue a docket control order that sets a specified deadline for filing dispositive motions, normally well before the date set for trial. See Comment, Summary Judgment in Texas: A Selective Survey, 14 Hous. L. Rev. 854, 861–62 (1977). Summary judgment should not be confused with judgment by default, which is available if the defendant has failed to appear and answer within certain time limits. See Tex. R. Civ. P. 239.
§ 19.43Motion for Summary Judgment Generally
The motion must state specific grounds. Tex. R. Civ. P. 166a(c). The language of rule 166a(c) requiring that “the motion for summary judgment shall state the specific grounds” requires literal compliance. The grounds must be expressly presented in the motion. The grounds for summary judgment may not be raised only in an accompanying brief or memorandum in support. Sysco Food Services, Inc. v. Trapnell, 890 S.W.2d 796, 805 (Tex. 1994). The motion for summary judgment must state the specific grounds on which the judgment is sought, so that the issues will be defined and the respondent will be provided adequate information to oppose it. Westchester Fire Insurance Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978), overruled on other grounds by City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 673 (Tex. 1979). The movant is confined to the specific grounds set forth in the motion. See Clear Creek Basin Authority, 589 S.W.2d at 677–78. It is unsettled what degree of specificity is required; the form motion in this chapter (form 19-9) summarizes the elements of the cause and directs the court’s attention to the specific admission, answer, or other response by which the defendant has admitted each fact establishing that element for the plaintiff.
A court may not grant summary judgment relief for more than was specifically requested in the motion. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993), overruled on other grounds by Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001).
Summary judgment may not be granted on an issue not presented in the motion for summary judgment. Byrd v. Woodruff, 891 S.W.2d 689, 700 (Tex. App.—Dallas 1994, writ dism’d by agr.). “Summary judgments may not be affirmed or reversed on grounds not expressly set forth in the motions presented to the trial court.” Benavides v. Moore, 848 S.W.2d 190, 197 (Tex. App.—Corpus Christi 1992, writ denied). Further, summary judgment may not be granted as a matter of law on a cause of action not addressed in the summary judgment proceeding. City of Beaumont v. Guillory, 751 S.W.2d 491, 492 (Tex. 1988) (per curiam).
An affirmative defense must be pleaded in a responsive pleading, or the defense will be waived. F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103, 108 (Tex. App.—El Paso 2008, no pet.). “If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (citing City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678–79 (Tex. 1979)). The movant is not required to negate affirmative defenses. Brownlee, 665 S.W.2d at 112 (Tex. 1984). However, an unpleaded affirmative defense can be a proper basis for a summary judgment “when it is raised in the summary judgment motion, and the opposing party does not object to the lack of a rule 94 pleading in either its written response or before the rendition of judgment.” Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991) (petitioner sued for specific performance of contracts; in summary judgment motion, nonmovant relied on affirmative defense not included in earlier pleadings).
The motion and any supporting affidavits must be filed with the court and served on the respondent at least twenty-one days before the time specified for hearing, except on leave of court, with notice to opposing counsel. Tex. R. Civ. P. 166a(c); Ready v. Alpha Building Corporation, 467 S.W.3d 580, 584 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Service should be made in accordance with rules 21 and 21a.
The notice of summary judgment must include a specific submission date. Ready, 467 S.W.3d at 585–86 (notices stating motion would be submitted “after” date certain contained indefinite language that did not inform respondent of specific submission date or establish deadline for response), citing Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam) (trial court must give notice of submission date for a motion for summary judgment, because this date determines the date nonmovant’s response is due); Aguirre v. Phillips Properties, Inc., 111 S.W.3d 328, 332 (Tex. App.—Corpus Christi 2003, pet. denied) (op. on reh’g) (“failure to give notice of the submission date for a motion for summary judgment constitutes error.”). The notice provisions associated with summary-judgment procedure under rule 166a are strictly construed. Ready, 467 S.W.3d at 585; see also Nexen Inc. v. Gulf Interstate Engineering Co., 224 S.W.3d 412, 423 n.14 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (appellate courts hold summary judgment movants to strict procedural and substantive standards). Notice of hearing for submission of a summary judgment motion is mandatory and essential to due process. See Tex. R. Civ. P. 166a(c); Martin, 989 S.W.2d at 359. “The failure to give notice of the submission date for a motion for summary judgment constitutes error . . . .” Aguirre, 111 S.W.3d at 332 (citing Martin, 989 S.W.2d at 359).
The clerk of court is not required to send notice of submission to the respondent. Edwards v. Phillips, No. 04-13-00725-CV, 2015 WL 1938873, at *3 (Tex. App.—San Antonio, Apr. 29, 2015, no pet.) (mem. op.); see also Cronen v. City of Pasadena, 835 S.W.2d 206, 209 (Tex. App.—Houston [1st Dist.] 1992, no writ) (applying Texas Rule of Civil Procedure 21a and finding that “a certificate of service creates a rebuttable presumption that the requisite notice [of the hearing] was [given]”), overruled on other grounds by Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (per curiam); Krchnak v. Fulton, 759 S.W.2d 524, 528 (Tex. App.—Amarillo 1988, writ denied) (rule regarding certificate of service “creates a presumption that the requisite notice was served and . . . has the force of a rule of law”).
“A certificate by a party . . . showing service of a notice shall be prima facie evidence of the fact of service.” Tex. R. Civ. P. 21a(e). See Cliff v. Huggins, 724 S.W.2d 778, 779–80 (Tex. 1987). A certificate of service is sufficient when it is sent to the address the respondent used on all pleadings. Morris v. Sand Canyon Corp., No. 14-13-00931-CV, 2015 WL 2342503, at *3 (Tex. App.—Houston [14th Dist.] May 14, 2015, no pet.) (mem. op.) (proof of receipt not required; respondents offered no evidence to rebut presumption of notice based on certificates of service).
The certificate of service may be modified to include a statement that the motion for summary judgment and all supporting affidavits were filed and served at least twenty-one days before the time specified for hearing. See Tex. R. Civ. P. 166a(c). If service is made by mail rather than by personal service, three days must be added to the prescribed period for notice. Tex. R. Civ. P. 21a(c). Effective Jan. 1, 2014, Tex. R. Civ. P. 21a was amended to provide that three additional days are added only when notice or paper is served by mail; three additional days are no longer added when service is made by facsimile. See Tex. R. Civ. P. 21a(b), (c); Texas Supreme Court, Order Adopting and Amending Texas Rule of Civil Procedure, Misc. Docket No. 13-9165 (Dec. 13, 2013); 76 Tex. B.J. 809 (2013). Also, rule 4 applies to the calculation of the time periods prescribed by rule 166a(c) so that the day of service is not to be counted and the day of hearing is. See Tex. R. Civ. P. 4.
Except with leave of court, responsive pleadings (such as a sworn denial superseding the defendant’s original unsworn answer) and evidence must be filed not later than seven days before the hearing. Tex. R. Civ. P. 63, 166a(c); see Goswami v. Metropolitan Savings & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988) (amended pleadings must be filed at least seven days before trial in accordance with rule 63; summary judgment hearing is “trial” for purposes of rule 63).
§ 19.43:4Judgment Nihil Dicit as Alternative
If seeking a judgment without supporting affidavits, the attorney should consider a motion for judgment nihil dicit as a speedier alternative. See section 20.27 in this manual. The better practice is to state an additional ground for summary judgment and support that ground with an appropriate affidavit. If the defendant then amends his answer to include a sworn denial, the movant can proceed on the additional summary judgment ground.
§ 19.44Responding to Motion for Summary Judgment
Responding to a traditional motion for summary judgment is not mandatory. See Tex. R. Civ. P. 166a(a). Once the movant with the burden of proof has established the right to a summary judgment on the issues presented, the nonmovant’s response should present to the trial court a genuine issue of material fact that would preclude summary judgment. Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515, 519, 522 (Tex. App.—Dallas, 2011, pet. denied) (respondent established genuine issue of material fact precluding summary judgment when its response included controverting affidavit in opposition to movant’s claim for attorney’s fees); Abdel-Fattah v. PepsiCo, Inc., 948 S.W.2d 381, 383 (Tex. App.—Houston [14th Dist.] 1997, no writ). If the movant does not establish the right to summary judgment on the issues presented, the burden of proof does not shift and the nonmovant is not required to respond. M.D. Anderson Hospital & Tumor Institute v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999); Cove Investments, Inc. v. Manges, 602 S.W.2d 512, 514 (Tex. 1980) (noting that, technically, no response is required when movant’s proof is legally insufficient); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979) (in absence of competent summary judgment proof by movant, no burden shifts to nonmovant). Failure to file a response does not authorize summary judgment by default in a traditional motion for summary judgment. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005) (per curiam); Rhône-Poulenc, 997 S.W.2d at 222–23; Cotton v. Ratholes, Inc., 699 S.W.2d 203, 205 (Tex. 1985) (per curiam) (stating Clear Creek did not shift burden of proof and thus, trial court cannot grant summary judgment by default). Even if the nonmovant does not file a response and the motion for summary judgment is uncontroverted, the movant must still carry the burden of proof. See generally Clear Creek, 589 S.W.2d at 675–77 (explaining history of traditional summary judgment rules in Texas).
In contrast to a traditional motion for summary judgment, responding to a no-evidence motion for summary judgment is mandatory; summary judgment may be granted by default in a no-evidence motion for summary judgment when the respondent fails to present evidence on the essential elements of its claim or defense for which it has the burden of proof at trial that are identified in the no-evidence motion. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i). Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 722–23 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (traditional prohibition against summary judgment by default is inapplicable to motions filed under Tex. R. Civ. P. 166a(i)). See also Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 602 (Tex. 2004) (upholding no-evidence summary judgment when plaintiffs offered less than a scintilla of evidence in support of product liability claim); Gabriel v. Associated Credit Union of Texas, 14-12-00349-CV, 2013 WL 865577, at *4–5 (Tex. App.—Houston [14th Dist.] Mar. 7, 2013, pet. denied) (mem. op.) (lender’s no-evidence motion for summary judgment was properly granted when the borrower failed to produce a scintilla of damage evidence in the form of economic loss, damage to his credit, wrongful repossession, mental anguish damages, and damages stemming from mistakenly assessed late fees); Flores v. Appler, No. 05-09-01523-CV, 2011 WL 1994113, at *1 (Tex. App.—Dallas May 24, 2011) (mem. op.) (no-evidence summary judgment that asserted both traditional and no-evidence grounds was granted when respondent did not attach any evidence to response to motion for summary judgment and did not direct trial court to any evidence attached to motion for summary judgment); Preston National Bank v. Stuttgart Auto Center Inc., No. 05-09-00020-CV, 2010 WL 3310727, at *3 (Tex. App.—Dallas Aug. 24, 2010, no pet.) (mem. op.) (no-evidence summary judgment was granted when bank did not offer any evidence of challenged elements of breach of duty and causation in its response).
Issues not expressly presented to the trial court during summary judgment proceedings by written motion, answer, or other response shall not be considered on appeal as grounds for reversal. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 676 (Tex. 1979) (quoting Tex. R. Civ. P. 166a(c)). A late-filed response is inadmissible without leave of court. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996) (summary judgment evidence was not properly before trial court when it was filed two days before hearing and record contained no order granting leave to file late evidence); Kuntner & Kuntner v. Wells Fargo Bank, N.A., No. 02-14-00238-CV, 2015 WL 3523156, at *1–2 (Tex. App.—Fort Worth, June 4, 2015) (mem. op.) (no-evidence motion for summary judgment properly granted when respondents filed response on date of summary judgment hearing, attached no evidence to their response, and asked for ten-day extension of time “to file a more complete response” or alternatively for their response to be deemed timely filed); Desrochers v. Thomas, No. 04-12-00120-CV, 2013 WL 1223854, at *3 (Tex. App.—San Antonio Mar. 27, 2013, pet. denied) (mem. op.) (concluding summary judgment evidence was not properly before trial court when filed three days before hearing and record contained no order granting leave to file late evidence); Trevino & Associates Mechanical, L.P. v. The Frost National Bank, 400 S.W.3d 139, 145 (Tex. App.—Dallas 2013, no pet.) (grant of no-evidence summary judgment on counterclaim was proper when nonmovant failed to file response).
The rule requiring express presentment of issues to the trial court by written motion, answer or other response applies to pro se litigants as well as to parties represented by counsel. See Guishard v. Money Management International, Inc., No. 14-14-000362-CV, 2015 WL 4984853, at *2–3 (Tex. App.—Houston [14th Dist.], Aug. 20, 2015) (mem. op.).
§ 19.45Use of Summary Judgment in Suit on Sworn Account
§ 19.45:1Based on Defendant’s Unsworn Denial
Normally a summary judgment may not be obtained on the ground of deficiencies in pleadings or on the nonmovant’s failure to file a response (see section 19.50:1 below). However, a summary judgment is proper if the plaintiff’s sworn account petition is supported by an affidavit based on the personal knowledge of the affiant that conforms with rule 185 and the defendant fails to file a sworn denial in his answer as required by rule 93(10). Tex. R. Civ. P. 93(10), 166a(f), 185; Notgrass v. Equilease Corp., 666 S.W.2d 635, 639 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.); see also Brightwell v. Barlow, Gardner, Tucker & Garsek, 619 S.W.2d 249, 252–53 (Tex. Civ. App.—Fort Worth 1981, no writ); Zemaco, Inc. v. Navarro, 580 S.W.2d 616, 620 (Tex. Civ. App.—Tyler 1979, writ dism’d).
Sworn account cases are an exception to the general rule that pleadings are not summary judgment proof. If the respondent has failed to file a proper verified denial of a suit on sworn account, the pleadings can be the basis for summary judgment. Enernational Corp. v. Exploitation Engineers, Inc., 705 S.W.2d 749, 750 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.); Waggoners’ Home Lumber Co. v. Bendix Forest Products Corp., 639 S.W.2d 327, 328 (Tex. App.—Texarkana 1982, no writ); see also Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540, 543 n.1 (Tex. 1971) (summary judgment could be granted on pleadings for suit on sworn account).
A sworn general denial is not sufficient to prevent a summary judgment in a suit on a sworn account. Espinoza v. Wells Fargo Bank, N.A., 02-13-00111-CV (Tex. App.—Fort Worth 2013, pet. denied) (mem. op.); Huddleston v. Case Power & Equipment Co., 748 S.W.2d 102, 103 (Tex. App.—Dallas 1988, no writ). The “written denial, under oath” required by rule 185 must also comply with Tex. R. Civ. P. 93(10), which requires a special sworn denial in the defendant’s answer to put the plaintiff’s claim at issue. Cooper v. Scott Irrigation Construction, Inc., 838 S.W.2d 743, 746 (Tex. App.—El Paso 1992, no writ); Huddleston, 748 S.W.2d at 103. “In the absence of a sworn denial meeting the requirements of the rule, the account is received as prima facie evidence as against a defendant sued thereon, and the defendant may not dispute the receipt of the items or services, or the correctness of the stated charges although he may defend on other grounds.” Rizk v. Financial Guardian Insurance Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979). When a party suing on a sworn account files a motion for summary judgment on the singular ground that the nonmovant’s pleading is insufficient under rules 185 and 93(10) because no proper sworn denial is filed, the nonmovant may amend and file a proper sworn denial. Requipco, Inc. v. Am-Tex Tank & Equipment, Inc., 738 S.W.2d 299, 303 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (where party suing on sworn account theory files its motion for summary judgment on sole ground that defendant has failed to file proper sworn denial, defendant may file amended answer to suit containing proper sworn denial as late as day of trial, but before he announces ready for trial), citing Magnolia Fruit & Produce Co. v. Unicopy Corp. of Texas, 649 S.W.2d 794, 797 (Tex. App.—Tyler 1983, writ dism’d w.o.j.). The nonmovant is not precluded from amending and filing a proper sworn denial to the suit by the time allowed under rule 63. See Magnolia Fruit & Produce Co., 649 S.W.2d at 797; but see John C. Flood of DC, Inc. v. Supermedia, LLC, 408 S.W.3d 645, 653–54 (Tex. App.—Dallas 2013, pet. denied) (amended answer filed less than an hour before scheduled start of summary judgment hearing and without leave of court not considered in summary judgment proceeding).
§ 19.45:2Plaintiff’s Pleadings
There is no requirement that an account be pleaded with particularity or description of the nature of its component parts unless special exceptions to the pleadings have been raised by the defendant and sustained by the trial court. Tex. R. Civ. P. 185. In the repleading of such cases, the account pleaded should show the nature of the item sold, the date, and the charge. David Hittner & Lynne Liberato, Summary Judgment in Texas, 34 Hous. L. Rev. 1303, 1379–80 (1998). The court in one case found the pleadings to be legally insufficient to support summary judgment because they did not include a key to abbreviations or other explanations of the meanings of the items listed. See Price v. Pratt, 647 S.W.2d 756, 757 (Tex. App.—Corpus Christi 1983, no writ). A key or explanation of invoicing and billing done with computer numbers or abbreviations should be attached to the pleadings or be readily available if repleading is necessary. Hittner & Liberato at 1380.
If the motion for summary judgment is filed after the defendant timely files a proper, verified denial, the plaintiff will be required to submit summary judgment proof that establishes as a matter of law that no genuine issue of material fact exists as to the essential elements of the plaintiff’s common-law cause of action. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). The essential elements of a common-law action on a sworn account are that (1) there was a sale and delivery of merchandise; (2) the amount of the account is just—that is, the prices charged are in accordance with an agreement and are the usual, customary, and reasonable prices for that merchandise; and (3) the amount is unpaid. Pat Womack, Inc. v. Weslaco Aviation, Inc., 688 S.W.2d 639, 641 (Tex. App.—Corpus Christi 1985, no writ); Hittner & Liberato at 1382; see also Airborne Freight Corp. v. CRB Marketing, Inc., 566 S.W.2d 573, 574 (Tex. 1978) (per curiam). See the discussion of summary judgment proof at section 19.50 below.
See form 19-10 for an example of grounds to use when filing a motion for summary judgment on a sworn account.
§ 19.46Use of Summary Judgment in Suit on Promissory Note
Summary judgment may be appropriate in a suit on a promissory note if no defense is offered or if the defendant does not present evidence in proper form to raise a fact issue on the elements necessary to his affirmative defense. See Seale v. Nichols, 505 S.W.2d 251, 254 (Tex. 1974). Summary judgment may also be available if the defendant’s answers to requests for admissions judicially admit the necessary elements of the action. See, e.g., Costello v. Johnson, 680 S.W.2d 529, 530–31 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (answers to requests admitted execution of promissory notes, their validity, demand, and acceleration).
In a promissory note case, the motion for summary judgment and supporting evidence must prove—
1.that the note was executed by the defendant and delivered to the plaintiff by the defendant,
2.the plaintiff gave value for the note to the defendant,
3.the plaintiff was the hold and owner of the note,
4.the defendant defaulted or the note was not paid in full at maturity, and
5.the amount due.
See Senegal v. Community Bank of Texas, N.A., No. 09-14-00142-CV, 2015 WL 2414295, at *2 (Tex. App.—Beaumont, May 21, 2015, no pet.) (mem. op.); Goad v. Hancock Bank, No. 14-13-00861-CV, 2015 WL 1640530, at *5 (Tex. App.—Houston [14th Dist.], Apr. 9, 2015, pet. denied) (mem. op.); Manzo v. Lone Star National Bank, No. 13-14-00155-CV, 2015 WL 214012, at *2 (Tex. App.—Corpus Christi Jan. 8, 2015, (mem. op.); Jim Maddox Properties, LLC v. Wem Equity Capital Investments, Ltd., 446 S.W.3d 126, 132 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Alphaville Ventures, Inc. v. First Bank, 429 S.W.3d 150, 152, 159 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (movant failed to establish conclusively it was owner and holder of note and guarantee under assignment from original lender); Energico Production, Inc. v. Frost National Bank, No. 02-11-00148-CV, 2012 WL 254093, at *5 (Tex. App.—Fort Worth Jan. 26, 2012, pet. denied) (mem. op.).
It is not necessary to attach the original of the note to the affidavit. A photocopy is proper summary judgment evidence if the party introducing the copy swears it is a true and correct copy of the original note. Life Insurance Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 380 (Tex. 1978); see Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) (real estate lien note). If a sworn or certified copy is attached, the motion or affidavit must clearly establish that the plaintiff is in possession of the note and is its present owner and holder. Texas National Corp. v. United Systems International, Inc., 493 S.W.2d 738, 741 (Tex. 1973); see Tex. R. Civ. P. 166a(f). If the note is valid and complete on its face, the parol evidence rule excludes the nonmovant’s oral statements that allege fraud or other extrinsic representations related to the contractual agreement. Town North National Bank v. Broaddus, 569 S.W.2d 489, 491–92 (Tex. 1978). See also Tex. Bus. & Com. Code § 26.02.
In a deficiency suit, the burden of pleading that the disposition of collateral was commercially reasonable is on the creditor. This burden may be satisfied by averring generally that all conditions precedent have been met. In that case, the creditor is required to prove commercial reasonableness only if the debtor specifically denies it in his answer. Greathouse v. Charter National Bank-Southwest, 851 S.W.2d 173, 176–77 (Tex. 1992).
In a suit on a promissory note, a movant for summary judgment could discharge the burden of proof without producing the note if its terms were established by affidavit or other proper summary judgment proof. The relevant terms of the note are the original principal amount, payment schedule, maturity date, interest rate (prematurity and postmaturity), default provisions, acceleration terms or notice, demand, and presentment requirements. Sorrells v. Giberson, 780 S.W.2d 936, 938 (Tex. App.—Austin 1989, writ denied).
For a discussion of the use of summary judgment in a suit on a negotiable instrument, see Comment, Summary Judgment in Texas: A Selective Survey, 14 Hous. L. Rev. 854, 893–97 (1977).
See form 19-11 in this chapter for an example of the grounds to use when filing a motion for summary judgment in a suit on a promissory note.
§ 19.47Use of Summary Judgment in Suit for Breach of Contract
In breach of contract cases, the motion for summary judgment and supporting evidence must prove—
1.the existence of a valid contract;
2.performance or tendered performance by the plaintiff creditor;
3.breach of the contract by the defendant debtor; and
4.damages sustained by the plaintiff creditor as a result of the breach.
County Real Estate Venture v. Farmers & Merchants Bank, No. 01-13-00530-CV, 2015 WL 5911646, at *2–3 (Tex. App.—Houston [1st Dist.] Feb. 12, 2015, no pet.) (mem. op.) (bank’s summary-judgment evidence failed to conclusively establish its claim for credit card balance owed when attachments to bank officer’s affidavit contained no statement of account showing past-due charges or any calculation for claimed balance due that included offsets and credits); SLT Dealer Group, Ltd. v. Americredit Financial Services, Inc., 336 S.W.3d 822, 828 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also Mott v. Kellar, No. 03-14-00291-CV, 2015 WL 4718996, at *2 (Tex. App.—Austin, Aug. 5, 2015, no pet.) (mem. op.) (breach of contract for deed; summary judgment reversed on appeal when maker raised genuine issue of material fact as to whether he made required payments under contract for deed).
The universal rule for measuring damages for the breach of a contract is just compensation for the loss or damage actually sustained. Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 888 (Tex. App.—Dallas 2004, pet. denied) (citing Stewart v. Basey, 245 S.W.2d 484, 486 (Tex. 1952)). The most common interest protected in breach of contract cases is the expectation, or benefit-of-the-bargain, interest. Qaddura, 141 S.W.3d at 888–89. The supporting evidence most often includes documents and affidavits, each of which must satisfy standards for admissibility.
See forms 19-14 and 19-15 in this chapter for examples of the grounds to use when filing a motion for summary judgment in a suit for breach of contract.
§ 19.48Use of Summary Judgment in Suit on Account Stated
In an account stated case, the motion for summary judgment and supporting evidence must prove—
1.transactions between the parties gave rise to the indebtedness of one party to the other;
2.there was an agreement, express or implied, between the parties that fixed the amount due; and
3.the party to be charged made an express or implied promise to pay the indebtedness.
Marc Core v. Citibank, N.A., No. 13-12-00648-CV, 2015 WL 1631680, at *6, 8 (Tex. App.—Corpus Christi Apr. 9, 2015, pet. denied) (mem. op.) (upholding summary-judgment where bank offered affidavit stating that monthly statements were sent to defendant and defendant paid minimum payments on many occasions, which showed that he actually received statements and agreed as to amount owed, “i.e., fixing the amount due”). McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 763 (Tex. App.—Waco 2009, no pet.); Dulong v. Citibank (S.D.), N.A., 261 S.W.3d 890, 893 (Tex. App.—Dallas 2008, no pet.).
Summary judgment on an account stated claim is proper if the evidence shows account statements were sent to the debtor, charges and payments were made on the account, fees and interest were charged on the account, and there is no evidence debtor ever disputed the fees or charges reflected on the statements. Hays v. Citibank (South Dakota), N.A., No. 05-11-00187-CV (Tex. App.—Dallas 2012, no pet.) (mem. op.). Judgment may be rendered on less than all the relief sought. Pegasus Transportation Group, Inc. v. CSX Transportation, Inc., 05-12-00465-CV (Tex. App.—Dallas, Aug. 14, 2013, no pet.) (mem. op.); see also Tex. R. Civ. P. 166a(e).
See form 19-13 in this chapter for an example of the grounds to use when filing a motion for summary judgment in a suit on an account stated.
§ 19.49Use of Summary Judgment in Suit on Guaranty
In a suit on a guaranty, the motion for summary judgment and supporting evidence must establish—
1.the existence and ownership of the guaranty contract;
2.the terms of the underlying contract by the builder;
3.the occurrence of the conditions on which liability is based; and
4.the failure or refusal to perform the promise by the guarantor.
Marshall v. Ford Motor Co., 878 S.W.2d 629, 631 (Tex. App.—Dallas 1994, no writ); see also Burchfield v. Prosperity Bank, 408 S.W.3d 542 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (bank may obtain summary judgment for entire indebtedness from a jointly-and-severally liable coguarantor for deficiency on note); 84 Lumber Co., L.P. v. David Powers, 393 S.W.3d 299 (Tex. App.—Houston [1st Dist.] 2012, pet. denied) (corporate guarantor held liable for full amount of judgment against corporation).
The terms of a guaranty agreement determine whether the lender is required to collect from the borrower or on the collateral before looking to the guarantor to satisfy the debt. See, e.g., Berry v. Encore Bank, No. 01-14-00246-CV, 2015 WL 3485970, at *2 (Tex. App—Houston [1st Dist.] June 2, 2015, pet. denied) (mem. op.).
A signature followed by corporate office will result in personal liability in which the individual is clearly designated within the instrument as personal surety for the principal. Material Partnerships, Inc. v. Ventura, 102 S.W.3d 252, 259 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); see also American Petrofina Co. of Texas v. Bryan, 519 S.W.2d 484, 487 (Tex. Civ. App.—El Paso 1975, no writ). The fact that a person is under an agency relation to another that is disclosed does not prevent him from becoming personally liable if the terms of the contract clearly establish the personal obligation. American Petrofina, 519 S.W.2d at 487. The addition of the corporate office by the signature may be construed as description personae of the signator rather than an indication of the capacity in which he signs. Material Partnerships, 102 S.W.3d at 259. “If the guaranty instrument is so worded that it can be given a certain or definite legal meaning or interpretation, it is not ambiguous and the court will construe the contract as a matter of law.” Western Bank-Downtown v. Carline, 757 S.W.2d 111, 114 (Tex. App.—Houston [1st Dist.] 1988, writ ref’d) (citing Coker v. Coker, 650 S.W.2d 391 (Tex. 1983)).
See form 19-12 in this chapter for an example of the grounds to use when filing a motion for summary judgment in a suit on a guaranty.
The mere filing of a pleading or a response to a summary judgment motion does not satisfy the burden of coming forward with sufficient evidence to prevent summary judgment from being granted. American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994). Summary judgment evidence is not required to be described or set out in the motion in order to be considered. Wilson v. Burford, 904 S.W.2d 628, 629 (Tex. 1995) (per curiam). The usual practice is to describe in the motion or in a supporting brief the summary judgment proof relied on. To be considered by the trial or reviewing court, summary judgment evidence must be presented in a form that would be admissible at trial, although affidavit testimony is proper summary judgment evidence. See Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971).
The requirement to object to summary judgment evidence depends on whether the defect is formal or substantive. A defect is formal if the summary judgment proof is competent, but inadmissible. Hearsay and lack of personal knowledge are frequently raised objections to form. See Washington DC Party Shuttle, LLC v. IGuide Tours, LLC, 406 S.W.3d 723, 733–36 (Tex. App.—[14th Dist.] 2013, pet. denied) (en banc) (lack of personal knowledge); Wakefield v. Wells Fargo Bank, N.A., No. 14-12-00686-CV, 2013 WL 6047031, at *2 (Tex. App.—Houston [14th Dist.] Nov. 14, 2013, no pet.) (mem. op.) (objection that affidavit was not based on personal knowledge was form defect that must be raised in trial court and objecting party should seek ruling on objection to preserve right on appeal). Texas Rule of Evidence 802 provides that “[i]nadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.” As applied to summary judgment evidence, rule 802 has been held to mean that a hearsay objection is a defect in form that must be raised in a response or reply to a response. See Stewart v. Sanmina Tex. L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.); Rizkallah v. Conner, 952 S.W.2d 580, 589 n.7 (Tex. App.—Houston [1st Dist.] 1997, no writ).
Failure to object to evidence at the trial court level waives any defects concerning form. See Page v. State Farm Lloyds, 259 S.W.3d 257, 265 (Tex. App.—Waco 2008), rev’d on other grounds, 315 S.W.3d 525 (Tex. 2010). Failure to object to the form of an affidavit results in a waiver of the complaint. See, e.g., Alphaville Ventures, Inc. v. First Bank, 429 S.W.3d 150, 159 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re Evolution Petroleum Co., 359 S.W.3d 710, 713 n.2 (Tex. App.—San Antonio 2001, orig. proceeding). A defect is substantive if the summary judgment proof is incompetent: “any objections relating to substantive defects (such as lack of relevancy, conclusory) 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 complete absence of authentication is a defect of substance that is not waived by a party failing to object and may be urged for the first time on appeal.” In re Estate of Guerrero, 465 S.W.3d 693, 706 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). A substantive defect supporting or opposing a motion for summary judgment cannot be waived by failing to bring it to the trial court’s attention. Sanmina Texas L.P., 156 S.W.3d at 207; Garcia v. John Hancock Variable Life Insurance Co., 859 S.W.2d 427, 434 (Tex. App.—San Antonio 1993, writ denied). There are inconsistencies among the courts concerning whether certain defects are formal or substantive. The safest practice is to present all objections in writing.
A party must object in writing to the form of summary judgment evidence and place the objections before the trial court, or the objection will be waived. Grand Prairie Independent School District v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam); see also Tex. R. Civ. P. 166a(f). The objection must be specific. Womco, Inc. v. Navistar International Corp., 84 S.W.3d 272, 281 n.6 (Tex. App.—Tyler 2002, no pet.). The objecting party must also obtain a ruling on the objections. Chance v. Elliott & Lilly, PC, 462 S.W.3d 276, 282 (Tex. App.—El Paso 2015, no pet.) (ruling required on objection for failure to produce under Tex. R. Civ. P. 193.6); Trusty v. Strayhorn, 87 S.W.3d 756, 763–64 (Tex. App.—Texarkana 2002, no pet.). There is a split of authority regarding whether, pursuant to Tex. R. App. P. 33.1(a)(2)(A), an objection to summary judgment evidence can be preserved by an implicit ruling in the absence of a written, signed order. See Sanmina Texas L.P., 156 S.W.3d at 206 (Tex. App.—Dallas 2005, no pet.). The better practice is to procure an order from the trial court on all evidence, especially the objections to hearsay evidence, before the time it enters the order granting or denying summary judgment. If such objections are made, the adverse party must seek an opportunity to amend its summary judgment proof. Strachan v. FIA Card Services, No. 14-09-01004-CV, 2011 WL 794958, at *2 (Tex. App.—Houston [14th Dist.] Mar. 8, 2011, pet. denied). To be effective and preserve error for appeal, most courts of appeals have held that an order of a trial court sustaining an objection to summary judgment evidence must be reduced to writing, signed by the trial court, and entered of record. Utilities Pipeline Co. v. American Petrofina Marketing, 760 S.W.2d 719, 723 (Tex. App.—Dallas 1988, no writ).
Rule 196.3 allows the producing party to offer a copy of the document unless the authenticity of the document is under scrutiny or because fairness under the circumstances of the case requires production of the original. Tex. R. Civ. P. 196.3(b). See Tex. R. Evid. 902(4) for certified copies of public records and Tex. R. Evid. 902(10) for business records accompanied by affidavit.
A nonmovant is not required to produce evidence to avoid summary judgment unless the movant has proved its case as a matter of law. Priesmeyer v. Pacific Southwest Bank, F.S.B., 917 S.W.2d 937, 940 (Tex. App.—Austin 1996, no writ).
Summary judgment evidence must be properly before the court to be considered. See Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex. App.—Corpus Christi 1991, no writ). Summary judgment evidence may be filed late, but only with leave of court. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). A trial court can consider only evidence on file at the time of the hearing or filed after the hearing and before judgment with permission of the court. Leinen v. Buffington’s Bayou City Service Co., 824 S.W.2d 682, 685 (Tex. App.—Houston [14th Dist.] 1992, no writ). Summary judgment evidence must be submitted, at the latest, by the date summary judgment is rendered. Pries-meyer, 917 S.W.2d at 939.
Deposition transcripts, answers to interrogatories, admissions, affidavits, stipulations of the parties, and authenticated or certified public records can support a summary judgment. Tex. R. Civ. P. 166a(c); see generally Hidalgo v. Surety Savings & Loan Ass’n, 462 S.W.2d 540 (Tex. 1971). Any document offered in a summary judgment proceeding or on which summary judgment is rendered must be on file at the time of the hearing or filed thereafter and before judgment with permission of the court. Tex. R. Civ. P. 166a(c). Such documents need not be formally introduced at the summary judgment hearing; it is sufficient if they are on file. Tex. R. Civ. P. 166a(c); Perry v. Aggregate Plant Products Co., 786 S.W.2d 21, 23 (Tex. App.—San Antonio 1990, writ denied); Able Finance Co. v. Whitaker, 388 S.W.2d 437, 439 (Tex. Civ. App.—Tyler 1965, writ dism’d by agr.).
Tex. R. Civ. P. 166a(d) provides a mechanism for using as summary judgment proof discovery evidence that previously had not been filed with the clerk. Deposition excerpts submitted as summary judgment evidence need not be authenticated. McConathy v. McConathy, 869 S.W.2d 341, 342 (Tex. 1994) (holding that rule 166a(d) supersedes prior case law authentication requirements, including former requirement to include copy of court reporter’s certificate as well as original affidavit certifying authenticity of copied excerpts); see also E.B. Smith Co. v. United States Fidelity & Guaranty Co., 850 S.W.2d 621, 624 (Tex. App.—Corpus Christi 1993, writ denied) (interpreting term “specific references” in rule 166a(d)); but see Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 452 (Tex. App.—Dallas 2002, no pet.) (holding that the rationale in McConathy is limited to depositions). See Tex. R. Evid. 901(b)(7), 902, regarding authentication of public documents and records.
Oral testimony cannot be received at the hearing. Affidavits of interested witnesses and expert witnesses may support a summary judgment, which “may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, 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). For an interested witness’s testimony to establish fact, as a matter of law, it must “[have] no circumstances in evidence tending to discredit or impeach such testimony.” Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972) (quoting Great American Reserve Insurance Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965)).
The supreme court has held:
“[C]ould have been readily controverted” does not simply mean that the movant’s summary judgment proof could have been easily and conveniently rebutted. Rather, it means that testimony at issue is of a nature which can be effectively countered by opposing evidence. If the credibility of the affiant or deponent is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate. On the other hand, if the non-movant must, in all likelihood, come forth with independent evidence to prevail, then summary judgment may well be proper in the absence of such controverting proof.
Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) (footnote omitted).
A motion for summary judgment need not be supported by affidavits. Teer v. Duddlesten, 641 S.W.2d 569, 576 (Tex. App.—Houston [14th Dist.] 1982), rev’d on other grounds, 664 S.W.2d 702 (Tex. 1984). The court may consider depositions, the answers to interrogatories, admissions, and certified copies of documents without the necessity of a supporting affidavit by a witness. Teer, 641 S.W.2d at 576; Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 383 (Tex. Civ. App.—Tyler 1978, writ ref’d n.r.e.). It is unusual, however, for a summary judgment to be granted without supporting affidavits. David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1335 (1998).
Affidavits may be used as summary judgment proof. Tex. R. Civ. P. 166a(c). If all material facts are established by other competent evidence (depositions, admissions, answers to interrogatories, stipulations of the parties, authenticated or certified public records, and in some cases pleadings), an affidavit is not strictly necessary; in practice, however, it is often required or expected by the court, and every summary judgment motion should have attached one or more affidavits (not executed by the attorney) establishing all elements of the cause and an affidavit by the attorney to support attorney’s fees. For sample affidavits, see forms 19-17 (sworn account), 19-18 (promissory note), and 19-19 (attorney’s fees) in this chapter; affidavits for other kinds of actions can be drafted by stating the elements pleaded in the petition or motion, using these affidavit forms as a model.
An affidavit must show affirmatively that it is based on personal knowledge and that the facts sought to be proved would be “admissible in evidence” at a conventional trial. Tex. R. Civ. P. 166a(f); see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam) (quoting rule 166a(f)); Brown v. Mesa Distributors, Inc., 414 S.W.3d 279, 287 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (affidavit from company officer claiming personal knowledge of issue and company’s records is sufficient evidence for summary judgment); Espinoza v. Wells Fargo Bank, N.A., No. 02-13-00111-CV, 2013 WL 6046611, at *2 (Tex. App.—Fort Worth Nov. 14, 2013, pet. denied) (mem. op.) (bank records custodian’s statement in affidavit that explained her relationship to bank and averred that her duties as records custodian included handling and management of this particular note was sufficient to show her personal knowledge of transaction). The mere statement in an affidavit that the affiant is a representative of the creditor (bank, lender, credit card issuer) is not sufficient to establish that the affiant has personal knowledge of the statement concerning the debt made therein. The affiant must affirmatively state in the affidavit how he gained personal knowledge in the scope of his employment of the statements concerning the debt. Marc Core v. Citibank, N.A., No. 13-12-00648-CV, 2015 WL 1631680, at *3 (Tex. App.—Corpus Christi Apr. 9, 2015, pet. denied) (mem. op.); Rose Core v. Citibank (S. Dakota), N.A., No. 11-13-00040-CV, 2015 WL 1004344, at *3 (Tex. App.—Eastland Feb. 27, 2015, no pet.) (mem. op.). The affidavit of an issuer of credit card debt is legally insufficient when it contains only unsupported conclusions as to the present balance due and owing. See Akins v. FIA Card Services, N.A., No. 07-13-00244-CV, 2015 WL 780531, at * (Tex. App.—Amarillo, 2015, no pet.) (mem. op.). While affidavits customarily state that the facts recited therein are “true and correct,” that recitation is not necessarily required. For example, when an affidavit is based on personal knowledge and is subscribed to and sworn before a notary public, it is not defective if, when considered in its entirety, its obvious effect is that the affiant is representing that the facts stated therein are true and correct. See Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 361 (Tex. App.—Dallas 2007, pet. denied) (citing Federal Financial Co. v. Delgado, 1 S.W.3d 181, 184 (Tex. App.—Corpus Christi 1999, no pet.)). This is a subjective determination that may be avoided by making the customary recitation that the recitations in the affidavit are “true and correct.”
Business records affidavits under Tex. R. Evid. 902(1) are frequently used in collections cases to prove up the debt. Rule 902(10)(b) sets out a form of affidavit for use when business records are introduced under rule 803(6). The form is not exclusive. Tex. R. Evid. 902(10)(b). The rule provides that a business records affidavit “shall be sufficient if it follows [the prescribed form] though [the prescribed form] shall not be exclusive, and an affidavit which substantially complies with [the rule] shall suffice.” Tex. R. Evid. 902(10)(b). An affidavit must only substantially comply with the sample provided within the rule. See Rockwall Commons Associates, Ltd. v. MRC Mortgage Grantor Trust I, 331 S.W.3d 500, 509 (Tex. App.—El Paso 2010, no pet.); Kyle, 232 S.W.3d at 360–61. Consequently, a business records affiant is not required to recite the exact words that appear in rule 902(10)(b).
The rules of evidence do not require that the qualified witness who lays the predicate for the admission of business records be their creator or have personal knowledge of the contents of the record; the witness is required only to have personal knowledge of the manner in which the records were kept. Damron v. Citibank (S.D.), N.A., No. 03-09-00438-CV, 2010 Tex. App. LEXIS 7054, at *10–11 (Tex. App.—Austin Aug. 25, 2010, pet. denied); Nice v. Dodeka, L.L.C., No. 09-10-00014-CV, 2010 Tex. App. LEXIS 8922, at *12–13 (Tex. App.—Beaumont Nov. 10, 2010, no pet.). Once a successor is assigned the rights to contracts in a case, it is not necessary that the predecessor verify those records through a separate custodian of records affidavit. See Rockwall Commons Associates, Ltd., 331 S.W.3d at 511.
The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. In order for defects in the form of affidavits or attachments to be grounds for reversal, they must be specifically identified by objection and the movant must be given the opportunity to amend. If the movant refuses to amend, the defects will constitute grounds for reversal. Tex. R. Civ. P. 166a(f).
A party can recover reasonable attorney’s fees and other reasonable expenses incurred by the filing of affidavits by his opponent under rule 166a if it appears to the court’s satisfaction that they were presented in bad faith or solely for the purpose of delay, and any offending party or attorney may be adjudged guilty of contempt. Tex. R. Civ. P. 166a(h).
A recent applicable amendment to the Civil Practices and Remedies Code authorizes the use of an unsworn declaration in lieu of an “affidavit required by statute or required by rule, order, or requirement adopted as provided by law.” Tex. Civ. Prac. & Rem. Code § 132.001; Act of May 25, 2011, 82nd Leg., R.S., ch. 847, § 1, Tex. Gen. Laws 2119–20. The unsworn declaration (1) must be in writing; (2) must be subscribed by person making the declaration as true under penalty of perjury; and (3) must include a jurat in prescribed form. The substantial form of the required jurat is set forth in Tex. Civ. Prac. & Rem. Code § 132.001(d). See form 19-5. The second requirement (subscription under penalty of perjury) appears to supplant an affidavit’s requirements showing affirmatively that it is based on personal knowledge, that the facts sought to be proved would be “admissible in evidence” at a conventional trial, and that the facts recited therein are “true and correct.”
§ 19.50:5Competence of Evidence
Expert opinion does not establish fact as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 829 (Tex. 1970); Broussard v. Moon, 431 S.W.2d 534, 537 (Tex. 1968). The mere assertion of a legal conclusion will not establish a fact in support of a motion for summary judgment or raise an issue of fact in opposition to a motion. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984); Hidalgo v. Surety Savings & Loan Ass’n, 487 S.W.2d 702, 703 (Tex. 1972) (per curiam). Nor will hearsay statements discharge the burden of establishing fact. Box v. Bates, 346 S.W.2d 317, 319 (Tex. 1961). However, Tex. R. Evid. 802 states, “Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.” Tex. R. Evid. 802. In INA of Texas v. Bryant, 686 S.W.2d 614 (Tex. 1985), the court of appeals considered hearsay evidence admitted without objection in reversing the trial court’s grant of summary judgment. In affirming the decision, the supreme court expressly did not address the issue of the appellate court’s consideration of hearsay statements. See INA of Texas, 686 S.W.2d at 615.
Traditional Motion: The 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. Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Fulenwider v. City of Teague, 680 S.W.2d 582, 584 (Tex. App.—Waco 1984, no writ); see also Tex. R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue, evidence favorable to the nonmovant will be taken as true; every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in the nonmovant’s favor; the nonmovant opposing summary judgment is not required to establish his right to prevail. Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984); Fulenwider, 680 S.W.2d at 584.
Summary judgment is proper if the movant conclusively proves all the essential elements of his cause of action or defense as a matter of law. Odeneal v. Van Horn, 678 S.W.2d 941 (Tex. 1984); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979).
The Supreme Court of Texas, in distinguishing Texas law from federal law, has stated that “we never shift the burden of proof to the non-movant unless and until the movant has ‘establish[ed] his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law.’” Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989) (quoting Clear Creek Basin Authority, 589 S.W.2d at 678 n.5).
Once the movant has presented proper and sufficient summary judgment proof, the burden shifts to the nonmovant to come forward by written motion and sworn proof to controvert the summary judgment proof. Clear Creek Basin Authority, 589 S.W.2d at 678. A summary judgment cannot be granted on the failure of the nonmovant’s proof if the movant has not conclusively established his cause of action. Clear Creek Basin Authority, 589 S.W.2d at 678. “If the party opposing a summary judgment relies on an affirmative defense, he must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment.” Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (citing Clear Creek Basin Authority, 589 S.W.2d at 678–79).
No Evidence Motion: Tex. R. Civ. P. 166a(e) provides that “[a]fter adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” The movant must specify the elements of the claim on which there is no evidence. A global no evidence claim that “there is no evidence of one or more essential elements of each of the claims made” is wholly deficient to put the respondent on notice about which element(s) the motion attacks. The rule is unequivocal; “(t)he motion must state the elements as to which there is no evidence.” Tex. R. Civ. P. 166a(i); Torres v. Saylor Marine, Inc., No. 13-10-00566-CV, 2011 WL 3855733, at *4 (Tex. App.—Corpus Christi Aug. 31, 2011, no pet.) (mem. op.); Cornwell v. Dick Woodward & Associates, No. 14-09-00940-CV, 2011 WL 166922, at *2 (Tex. App.—Houston [14th Dist.] Jan. 11, 2011, no pet.) (mem. op.) (no-evidence motion that merely challenges sufficiency of nonmovant’s case and fails to state specifically elements for which there is no evidence is fundamentally defective and insufficient to support summary judgment as matter of law).
The movant is not required to negate affirmatively an element of a claim for which evidence is lacking. Tex. R. Civ. P. 166a(i).
In determining a “no-evidence” issue, the courts consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001).
A party may not properly urge a no-evidence summary judgment on the claims or defenses on which it has the burden of proof. Wortham v. Dow Chemical Co., 179 S.W.3d 189, 195 (Tex. App.—Houston [14th Dist.] 2005, no pet.); Keszler v. Memorial Medical Center of East Texas, 105 S.W.3d 122, 125 (Tex. App.—Corpus Christi 2003, no pet.).
§ 19.51Partial Summary Judgment
A partial summary judgment may be granted if there is no genuine issue of material fact on some issues—for example, liability—reserving all controverted issues for trial. Tex. R. Civ. P. 166a(a), (e).
If practicable, the court at a summary judgment hearing may, by examining the pleadings and evidence before it and interrogating attorneys, ascertain those material facts that exist and make an order specifying the facts that are established as a matter of law, and direct such further proceedings in the action as are just. Tex. R. Civ. P. 166a(e). For a form for such a partial summary judgment, see form 20-9 in this manual.
Attorney’s fees must be specifically pleaded to be recovered. Reintsma v. Greater Austin Apartment Maintenance, 549 S.W.2d 434, 437 (Tex. Civ. App.—Austin 1977, writ dism’d). Attorney’s fees included in a motion for summary judgment must be proved by the same summary judgment standards as the underlying cause. Bakery Equipment & Service Co. v. Aztec Equipment Co., 582 S.W.2d 870, 873 (Tex. Civ. App.—San Antonio 1979, no writ). The notice and time requirements of chapter 38 of the Civil Practice and Remedies Code must be met. See Tex. Civ. Prac. & Rem. Code §§ 38.001–.002. See generally David Hittner & Lynne Liberato, Summary Judgments in Texas, 34 Hous. L. Rev. 1303, 1375–77 (1998).
Rule 166a(c) authorizes a summary judgment based on “uncontroverted testimonial evidence of an . . . expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, 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). An affidavit filed by the movant’s attorney setting forth his opinion regarding reasonable attorney’s fees is sufficient to support an award of attorney’s fees, if uncontroverted by the nonmovant. Sunbelt Construction Corp. v. S&D Mechanical Contractors, Inc., 668 S.W.2d 415, 418 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.); Bado Equipment Co. v. Ryder Truck Lines, 612 S.W.2d 81, 83 (Tex. Civ. App.—Houston [14th Dist.] 1981, writ ref’d n.r.e.), disapproved of on other grounds by McConnell v. Southside Independent School District, 858 S.W.2d 337, 340 n.3 (Tex. 1993). Use of an affidavit is recommended; see form 19-19 in this chapter.
[Sections 19.53 through 19.60 are reserved for expansion.]
IV. Law of Other Jurisdictions
In collections litigation, the need to apply the law of another jurisdiction may arise in either of two situations:
1.The plaintiff’s suit may be based on a contract enforceable under the laws of another jurisdiction. (Judicial notice of the law of another jurisdiction is discussed in sections 19.62 through 19.64 in this chapter.)
2.The plaintiff may be attempting to enforce a judgment obtained in another jurisdiction and, in response to the defendant’s plea that the foreign court did not have jurisdiction, may need to prove the validity of the service of process or the validity of the jurisdiction on which the judgment is based. (Enforcement of foreign judgments is discussed at sections 14.34 through 14.36 in this manual.)
§ 19.62Proving Up Law of Foreign State
§ 19.62:1Motion for Judicial Notice
A motion for judicial notice under rule 202 can be used to establish the law of a sister state. Under Tex. R. Evid. 202—
A court upon its own motion may, or upon the motion of a party shall, take judicial notice of the constitutions, public statutes, rules, regulations, ordinances, court decisions, and common law of every other state . . . . A party requesting that judicial notice be taken of such matter shall furnish the court sufficient information to enable it properly to comply with the request . . . . A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. Judicial notice of such matters may be taken at any stage of the proceeding. The court’s determination shall be subject to review as a ruling on a question of law.
The Texas Supreme Court has held that it is unnecessary to plead foreign law that differs from Texas law if a motion has been made for judicial notice. See Daugherty v. Southern Pacific Transportation Co., 772 S.W.2d 81, 83 (Tex. 1989). However, because notice is an important consideration in cases involving foreign law, the better practice is to plead the law of the sister state.
A motion for judicial notice under rule 202 cannot be used to establish the law of another nation (see section 19.64 below). See form 19-7 in this chapter for a motion for judicial notice and form 19-8 for an order taking judicial notice.
§ 19.62:2Sufficient Information
Rule 202 requires the moving party to furnish sufficient information to the trial court for it to determine the foreign law’s applicability to the case and to furnish all parties any notice that the court finds necessary. . . . The determination of compliance with these requirements is within the discretion of the trial court.
Daugherty v. Southern Pacific Transportation Co., 772 S.W.2d 81, 83 (Tex. 1989). The motion should contain a significant recitation of the foreign state’s law and a citation to where the law can be found. Pittsburgh Corning Corp. v. Walters, 1 S.W.3d 759, 769–70 (Tex. App.—Corpus Christi 1999, pet. denied). The better practice is to attach copies of the statutes or decisions to the motion. See Tex. R. Evid. 901(b)(7) regarding authentication and identification of public records, documents, and publications and Tex. R. Evid. 902 regarding self-authentication of domestic public documents and records.
It is recommended that notice of the motion for judicial notice be given to the adverse party, although Tex. R. Evid. 202 provides that necessity for such notice is left to the discretion of the judge. See also Daugherty v. Southern Pacific Transportation Co., 772 S.W.2d 81, 83 (Tex. 1989). Under rule 202, absent prior notification, the request for an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed may be made after notice has been taken.
§ 19.62:4Effect of Granted Motion
If the motion is granted, the court is presumed to have the same judicial knowledge of foreign laws as it has of its own state’s laws. Marsh v. Millward, 381 S.W.2d 110, 112 (Tex. Civ. App.—Austin 1964, writ ref’d n.r.e.).
Tex. R. Evid. 202 expressly states that the determination of sister-state law by motion for judicial notice shall be subject to review as a question of law. But see section 19.63 below for a discussion of review of sister-state law under the common-law rule.
§ 19.63Proving Up Law of Foreign State (Common-Law Method)
In addition to proof of sister-state law by a motion for judicial notice under Tex. R. Evid. 202, the existence of sister-state law may be brought before the court by the common-law method of formal pleading and proof. Under the common-law method, whether the law of another state exists is a fact question for the jury. Once the fact of the law is established, the questions of the applicability, competency, and construction of the sister-state law are for the court. Commercial Credit Equipment Corp. v. West, 677 S.W.2d 669, 673 (Tex. App.—Amarillo 1984, writ ref’d n.r.e.), abrogated on other grounds by Greathouse v. Charter National Bank-Southwest, 851 S.W.2d 173, 175 (Tex. 1992). In one case, the court ruled that if the sister-state law consists entirely of statutes and reports of judicial decisions, the construction and effect of the law are issues for the court; however, if judicial decisions of a sister state are conflicting, or inferences of fact must be drawn, or if the only proof offered is the parol testimony of expert witnesses as to the construction of a sister-state statute, the question of what the foreign law is becomes one of fact for the jury. St. Louis & Santa Fe Railway v. Conrad, 99 S.W. 209, 210–11 (Tex. Civ. App. 1906, no writ). The court in one case found that where the pleading gave sufficient notice to the opposing party of the intent to rely on sister-state law, the court could properly take judicial notice of such law. Gould v. Awapara, 365 S.W.2d 671, 673–74 (Tex. Civ. App.—Houston 1963, no writ). The trend in Texas is to treat determinations of foreign law as questions of law; however, it appears that the determination of sister-state law by pleading and proof is limited to appellate review as a question of fact. Common-law pleading and proof of sister-state law should be rejected whenever possible in favor of a motion for judicial notice. See Tex. R. Evid. 901(b)(7) regarding identification and authentication of public records, documents, and publications and Tex. R. Evid. 902 regarding self-authentication of domestic public documents and records.
§ 19.64Determination of Law of Another Nation
Rule 203 states in part:
(a)Raising a Foreign Law Issue. A party who intends to raise an issue about a foreign country’s law must:
(1)give reasonable notice by a pleading or other writing; and
(2)at least 30 days before trial, supply all parties a copy of any written materials or sources the party intends to use to prove the foreign law.
(b)Translations. If the materials or sources were originally written in a language other than English, the party intending to rely on them must, at least 30 days before trial, supply all parties both a copy of the foreign language text and an English translation.
(c)Materials the Court May Consider; Notice. In determining foreign law, the court may consider any material or source, whether or not admissible. If the court considers any material or source not submitted by a party, it must give all parties notice and a reasonable opportunity to comment and submit additional materials.
(d)Determination and Review. The court—not the jury—must determine foreign law. The court’s determination must be treated as a ruling on a question of law.
Tex. R. Evid. 203. The law of a foreign country cannot be determined by a motion for judicial notice under rule 203; it must be pleaded and proved. However, the rule greatly relaxes the evidentiary proof requirements and creates a procedure comparable to judicial notice. It states that a court’s determination of the law of a foreign country shall be reviewed as a question of law by appellate courts. When there is a failure of pleading or proof of the law of a foreign country, the majority of Texas decisions presume the foreign law to be identical to Texas law. Pauska v. Daus, 31 Tex. 67 (1868). See Tex. R. Evid. 901(b)(7) regarding identification and authentication of public records, documents, and publications and Tex. R. Evid. 902 regarding self-authentication of domestic public documents and records.