Robinson v. Texas Timberjack, Inc.

Citations: 175 S.W.3d 528; 2005 Tex. App. LEXIS 8294; 2005 WL 2465620Docket: 06-05-00008-CV

Court: Court of Appeals of Texas; October 7, 2005; Texas; State Appellate Court

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Billy Robinson appealed a summary judgment granted to Texas Timberjack, Inc., which had sued him for breach of contract concerning two agreements for the purchase of logging equipment. After Robinson stopped making payments, Timberjack repossessed the equipment and sought recovery of the remaining amount owed. Timberjack's motion for summary judgment was based on the written agreements and an affidavit from Tony Damron, a Timberjack agent. Robinson's motion to strike Damron's affidavit was denied, and the trial court granted Timberjack's summary judgment after a hearing.

Robinson argued that the summary judgment was improperly granted. The appellate court reviewed the case de novo, emphasizing that the movant must establish no genuine issue of material fact exists and is entitled to judgment as a matter of law. The court noted that, although Timberjack claimed Robinson failed to properly deny allegations in their sworn petition, this argument could not be raised on appeal due to its untimeliness at the trial level.

Timberjack's arguments for summary judgment included deemed admissions from Robinson's failure to respond to requests for admissions, which were ultimately struck from consideration, and the sufficiency of the written agreements and affidavit. The court concluded that Timberjack's motion did not adequately address the verified denial issue, leading to the reversal of the trial court's decision and remand for further proceedings.

Timberjack's response to Robinson's motion for a new trial raised issues regarding Robinson's failure to file a verified denial, but this was deemed insufficient to preserve the matter for review. It is established that all arguments in support of a summary judgment must be included in the written motion, and new grounds cannot be introduced in responses to motions for new trials. Consequently, Timberjack's failure to present this issue timely meant it would not be considered.

On appeal, Timberjack attempted to rely on Robinson's responses to requests for admissions, which were not included in its motion for summary judgment. The court reiterated that all supporting theories must be presented in writing to the trial court, leading to the exclusion of these responses from consideration.

Robinson contested the competency of the Damron affidavit, which the trial court had considered. The affidavit lacked sufficient detail on how Damron acquired personal knowledge of the facts it contained and did not clarify his agent status at relevant times. Additionally, no documents referenced in the affidavit were attached, violating Rule 166a(f) of the Texas Rules of Civil Procedure. While there is some debate among courts regarding the significance of such omissions, the absence of attachments compounded the existing deficiencies. Therefore, the Damron affidavit was found not to be competent evidence for summary judgment and should not have been considered by the trial court.

The summary judgment in favor of Timberjack relies solely on written agreements. Timberjack must demonstrate five elements to establish its cause of action: (1) the execution and delivery of the payment agreement, (2) a promise to pay, (3) Robinson's default, (4) the amount due, and (5) Timberjack's status as the agreement's holder. Robinson contests the existence and nature of the agreement, any breach, and the calculation of damages. The court finds that Timberjack has not conclusively proven its case based on the written agreements alone, particularly regarding Robinson's default and the sum owed. The court resolves uncertainties in favor of Robinson. Additionally, Timberjack did not timely assert Robinson's failure to file a verified denial at the trial level and cannot raise this issue on appeal. Timberjack also failed to include Robinson’s written responses to requests for admissions in its summary judgment motion. The affidavit provided by Tony Damron is deemed insufficient as valid evidence. Consequently, the court reverses the summary judgment and remands the case for further proceedings.