COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
FRANZ FELHABER and GUSTAVO )
DEANDER d/b/a DELTA WAREHOUSE, ) No. 08-02-00351-CV
)
Appellants, ) Appeal from the
)
v. ) 41st District Court
)
DAN PIEPER, ) of El Paso County, Texas
)
Appellee. ) (TC# 2001-872)
)
MEMORANDUM OPINION
Appellants, Franz Felhaber and Gustavo Deander d/b/a Delta Warehouse, appeal a summary judgment in favor of Appellee, Dan Pieper. Appellants bring four issues for our review: (1) whether the trial court erred in granting summary judgment because there are genuine issues of material fact related to the fair market value of the batteries; (2) whether the trial court erred in granting summary judgment because there are genuine issues of material fact related to lost profits; (3) whether the trial court erred in granting summary judgment because the affidavit supporting the motion for summary judgment is defective and should have been stricken from the record; and (4) whether the trial court erred in granting summary judgment because there are genuine issues of material fact as to whether Appellee attempted to mitigate damages and as to the correct measure of damages.
UNDERLYING FACTS
Appellants operate a public warehouse, Delta Warehouse. They rent space to store goods for others. In April 1999, Appellee had 607 cases of AA batteries delivered to Appellants for storage. Sometime later, Appellee removed ten cases, leaving 597 cases of batteries in the storage facility.
In November 2000, Appellee requested Appellants ship 490 cases of the batteries to Colorado. According to Appellee=s affidavit in support of summary judgment, he had sold these batteries to ITEX, a customer located in Denver. Appellants were only able to locate and ship 220 cases. The remaining portion of the batteries, 377 cases, were missing. Because the complete order of batteries was not delivered to ITEX, Appellee lost the sale.
In March 2001, Appellee filed suit against Felhaber, F.C. & Co., Inc. d/b/a Delta Warehouse to recover his damages. An amended petition was later filed to bring the individual defendants, Franz Felhaber and Gustavo Deander, into the case.
In December 2001, Appellee filed a motion for summary judgment. Appellants filed a timely response. In April 2002, the trial court ultimately entered a summary judgment in favor of Appellee, awarding him $151,192.70, plus attorney=s fees.
On May 13, 2002, Appellants filed copies of Appellee=s answers and responses to discovery, along with a motion for new trial. Appellants argued Appellee=s discovery responses created genuine issues of material fact, requiring resolution by trial.
The trial court later severed the corporation from the individual defendants in this case. Thus, only Franz Felhaber and Gustavo Deander are before us today as Appellants.
RULE 166(a)
We will begin by considering Appellants= third issue on appeal. With this issue, Appellants argue the affidavit supporting Appellee=s motion for summary judgment is defective and should have stricken from the record. They contend the affidavit fails to articulate facts which form the basis of Appellee=s personal knowledge supporting his conclusions therein.[1] They also maintain the affidavit contains a number of self-serving and conclusory statements.[2] Additionally, they argue Appellee was required to state his qualifications as an expert in the value of batteries and failed to do so. Finally, they argue Appellee failed to state how much he originally paid for the merchandise and what efforts he made to mitigate his damages once the batteries were found to be missing.
Texas Rule of Civil Procedure 166a governs summary judgment motions and proceedings. Tex.R.Civ.P. 166a. Subsection (c) provides:
(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith 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. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment 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. [Emphasis added].
Tex.R.Civ.P. 166a(c). Subsection (f) specifically relates to supporting and opposing affidavits. This subsection provides:
(f) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits. Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend. [Emphasis added].
Tex.R.Civ.P. 166a(f).
As explained by the Texas Supreme Court, the mere fact that a supporting affidavit is self-serving does not necessarily make the evidence an improper basis for summary judgment. Trico Tech. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997). A trial court=s order of summary judgment based on the uncontroverted affidavit of an interested witness is proper if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. Id.; Republic Nat=l Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex. 1986). The phrase, Acould have been readily controverted@ does not mean the summary judgment evidence could have been easily and conveniently rebutted, but rather indicates the testimony could have been effectively countered by opposing evidence. Trico Tech. Corp., 949 S.W.2d at 310; Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). We also note that if the credibility of the affiant is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate. Casso, 776 S.W.2d at 558. But, 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. Id.
In this case, Appellee=s affidavit met the three requisites of Rule 166a(f). All of the statements were based on his personal knowledge. Tex.R.Civ.P. 166a(f). The affidavit set forth facts that would be admissible as evidence at trial. Id. It also established him as competent to testify on these matters. Id. Moreover, the statements in Appellee=s affidavit are uncontroverted, clear, positive, direct, credible, free from contradiction, and readily controvertible. Tex.R.Civ.P. 166a(c); Trico Tech. Corp., 949 S.W.2d at 310. Appellee=s affidavit could have been readily controverted by an opposing affidavit setting forth, for example, contrary evidence of the fair market value of the batteries. No such attempt was made to present independent evidence. Casso, 776 S.W.2d at 558. Accordingly, the affidavit meets the requirements under Rule 166(a) and was competent summary judgment evidence.[3] Trico Tech. Corp., 949 S.W.2d at 310. Appellants= third issue on appeal is overruled.
Having concluded the affidavit was not defective and was properly considered as summary judgment evidence, we will now consider Appellants= remaining issues related to the trial court=s granting of summary judgment in favor of Appellee.
SUMMARY JUDGMENT
In order to prevail on a motion for summary judgment, a movant must demonstrate that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Hernandez v. Kasco Ventures, Inc., 832 S.W.2d 629, 631 (Tex.App.--El Paso 1992, no writ). On appeal, the summary judgment proof is viewed in the light most favorable to the non-movant and every reasonable inference is made in his favor. Nixon, 690 S.W.2d at 548-49; Stoker v. Furr=s, Inc., 813 S.W.2d 719, 721 (Tex.App.--El Paso 1991, writ denied). The question is not whether the appellant raises fact issues on review, but rather whether the summary judgment proof establishes that no genuine issue of material fact exists. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Victory v. Bills, 897 S.W.2d 506, 508 (Tex.App.--El Paso 1995, no writ). If a summary judgment motion asserts more than one basis of support, and the court order granting the motion is silent as to the reason for granting the motion, an appellant must show that each independent ground alleged in the motion is insufficient to support the judgment. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989); Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 891 (Tex.App.--El Paso 1983, no writ). If any of the theories are meritorious, the judgment of the lower court will be affirmed. Id.
In considering a motion for summary judgment, a trial court may consider only the evidence 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); Leinen v. Buffington=s Bayou City Service Co., 824 S.W.2d 682, 685 (Tex.App.--Houston [14th Dist.] 1992, no writ). The phrase Abefore judgment@ has been construed to mean before the judgment is signed. Valores Corporativos, S.A. de C.V. v. McLane Co., Inc., 945 S.W.2d 160, 162 (Tex.App.--San Antonio 1997, writ denied). Thus, on a motion for new trial after summary judgment has been granted, the court may only consider the record as it existed prior to the granting of summary judgment. Longoria v. United Blood Services, 907 S.W.2d 605, 609 (Tex.App.--Corpus Christi 1995), rev=d on other grounds, 938 S.W.2d 29 (Tex. 1997); Leinen, 824 S.W.2d at 685. Additionally, a trial court may not grant a motion for summary judgment by default for lack of an answer or response by the non-movant if the summary judgment evidence is legally insufficient. Medlock v. Commission for Lawyer Discipline, 24 S.W.3d 865, 870 (Tex.App.--Texarkana 2000, no pet.).
Issues One, Two, and Four all relate to whether there were unresolved fact issues at the time of summary judgment that should have precluded the trial court from granting Appellee=s motion. Issue One relates to the fair market value of the batteries in November 2000. Issue Two concerns evidence of Appellee=s lost profits. Issue Four involves both the measure of damages and whether Appellee attempted to mitigate same.
Included with Plaintiff=s motion for summary judgment was the supporting affidavit of Appellee, Dan Pieper. This document provided evidence of the fair market value of the missing batteries. The affidavit included the following statements: AThe fair market value of the missing batteries in November, 2000 was $131,950.00. I am a merchant in batteries and know their value.@ According to this statement, the batteries were valued at $350 per case at the time they were discovered lost in November 2000.[4]
Appellants= response to the motion for summary judgment contested the use of Appellee=s affidavit as evidence of the fair market value of the batteries, the computation of lost profits, and the measure of damages. As previously discussed, they argued the affidavit was defective. However, Appellants failed to offer any contrary evidence of the value of the lost batteries, Appellee=s lost profits, or damages. They simply objected to the evidence presented by Appellee. In all likelihood, Appellants would have had to produce independent contrary evidence at trial in order to prevail on this issue. Casso, 776 S.W.2d at 558. Because they failed to produce any controverting evidence, summary judgment was proper. Id.
Motion For New Trial
In May 2002, Appellants filed a motion for new trial and supported the motion with documentation that would have, if presented timely, possibly created fact issues related to these issues. However, as previously noted, Texas law does not allow a party to create fact issues in a motion for new trial that should have been raised in a response to a motion for summary judgment. Risner v. McDonald=s Corporation, 18 S.W.3d 903, 909 (Tex.App.--Beaumont 2000, pet. denied)(noting a party may not present additional evidence in a motion for new trial unless such evidence is newly discovered); Priesmeyer v. Pacific Southwest Bank, F.S.B., 917 S.W.2d 937, 939 (Tex.App.--Austin 1996, no pet.); Leinen, 824 S.W.2d at 685. Here, there is nothing in the record indicating the discovery responses constituted newly discovered evidence. Risner, 18 S.W.3d at 909. There is also no explanation as to why this information was not presented to the trial court for its consideration in connection with Appellants= response to the motion for summary judgment. Id. Accordingly, this information was not properly before the trial court during its consideration of the motions for summary judgment and for a new trial. Risner, 18 S.W.3d at 909; Longoria, 907 S.W.2d at 609; Leinen, 824 S.W.2d at 685. Moreover, we are also precluded from considering this information in our analysis of Appellants= issues. See Meute v. Dana Properties, Inc., 08-99-00131-CV (Tex.App.--El Paso August 17, 2000, no pet.)(not designated for publication), 2000 WL 1204835.
Analysis
The central question before us is whether any genuine issue of material fact exists preventing summary judgment. Nixon, 690 S.W.2d at 548-49. Appellants failed to controvert Appellee=s affidavit with credible evidence of their own in their response to the motion for summary judgment. Casso, 776 S.W.2d at 558. As such, they failed to raise genuine issues of material fact related to fair market value of the batteries, lost profits, and both the correct measure of damages and whether Appellee attempted to mitigate his damages. The only evidence before the court at the time summary judgement was ordered, was that provided by Appellee. Given the lack of controverting evidence, we find no abuse of discretion on the part of the trial court in concluding there were no genuine issues of material facts. Casso, 776 S.W.2d at 558; Gibbs, 450 S.W.2d at 828; Victory, 897 S.W.2d at 508. Accordingly, the trial court=s summary judgment order was proper. Nixon, 690 S.W.2d at 548-49; Hernandez, 832 S.W.2d at 631. Appellants= Issues One, Two, and Four are overruled.
Overruling all of Appellants= issues on appeal, we affirm the lower court=s judgment.
August 26, 2003
DAVID WELLINGTON CHEW, Justice
Before Panel No. 3
Barajas, C.J., Larsen, and Chew, JJ.
[1] In particular, Appellants contend Appellee failed to articulate the underlying facts related to the sale of the batteries, identify the parties to the transaction, and attach documents referring to the sale. They also maintain that Appellee failed to explain the basis for his knowledge of the value of the batteries.
[2] Specifically, Appellants take issue with the following statements: (1) that Appellee lost the sale because of the failure of Delta Warehouse to deliver the batteries to his customer; and (2) all statements as to the fair market value of the batteries.
[3] With regard to Appellants= complaint that Appellee failed to state his qualifications as an expert in the affidavit, we note that as an owner and purchaser of the batteries, Appellee may testify as to their value. Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984); Jeep Eagle Sales Corp. v. Mack Massey Motors, Inc., 814 S.W.2d 167, 176 (Tex.App.--El Paso 1991, writ denied); Fidelity & Casualty Co. of New York v. Underwood, 791 S.W.2d 635, 641 (Tex.App.--Dallas 1990, no writ). As to Appellants= contention that Appellee failed to show that he attempted to mitigate his damages, we note that the failure of a party to mitigate damages may be raised as an affirmative defense. However, to raise such a defense, Appellants are required to do more than merely make such an assertion in the absence of supporting evidence. Rather, the burden of proof with respect to whether Appellee failed to mitigate and the extent to which this failure caused or increased damages is upon Appellants as the parties who caused the loss. Pinson v. Red Arrow Freight Lines, Inc., 801 S.W.2d 14, 16 (Tex.App.--Austin 1990, no writ); Cocke v. White, 697 S.W.2d 739, 744 (Tex.App.--Corpus Christi 1985, writ ref=d n.r.e.). Appellants failed to present any evidence whatsoever in relation to Appellee=s failure to mitigate damages.
[4] $131,950.00 / 377 = $350.00