Affirmed and Memorandum Opinion filed December 22, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00819-CV
SAN SEBASTIAN REALTY CO., INC., Appellant
V.
ROEL HUERTA AND ROSA M. HUERTA, Appellees
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 1043170
MEMORANDUM OPINION
Appellant San Sebastian Realty Co., Inc. appeals the trial court’s judgment
granting a no-evidence summary judgment in favor of appellees Roel and Rosa
Huerta in its suit alleging breach of a commercial real estate listing agreement. On
appeal, San Sebastian contends that the trial court erred in (1) granting the Huertas’
objections to its summary judgment evidence, (2) granting summary judgment for
the Huertas, and (3) denying San Sebastian due process. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
San Sebastian Realty Co., Inc. is a licensed real estate broker in Texas. In
November 2011, Rosa and Roel Huerta entered into a commercial real estate
listing agreement with San Sebastian to locate a buyer for the Huertas’ property at
8304 Park Place Boulevard in Houston.1 The listing agreement provided for a
broker’s fee of 6% of the sales price of the property.
Represented by San Sebastian, the Huertas executed a commercial lease of
their property to Richard Nichols in November 2012. The lease included an option
for Nichols to purchase the property for $125,000.00. The purchase option
specified the method for exercising the option and the terms and conditions of the
option. According to San Sebastian, Nichols exercised the option in July 2013, but
Rosa Huerta refused to convey the property to Nichols or pay San Sebastian’s fee.
In January 2014, San Sebastian sued the Huertas for breach of the listing
agreement. San Sebastian sought damages including a broker’s fee of $7,500.00
and attorney’s fees. The Huertas answered with a general denial and several
defenses. In May, a suggestion of death was filed informing the trial court that
Roel Huerta had died and requesting that Rosa Huerta, as representative of the
estate of Roel Huerta, be substituted as a defendant.2 Rosa Huerta, individually and
as representative of Roel Huerta’s estate (collectively, the Huertas), later filed an
amended answer that included affirmative defenses and a counterclaim for
1
The listing agreement named both Roel and Rosa M. Huerta as sellers and included
signature lines for both, but only Rosa signed the listing agreement. Although the Huertas’
argued below that Roel was not a party to the listing agreement, Rosa executed an affidavit in
which she averred that both she and her husband Roel “entered into” the listing agreement with
San Sebastian.
2
Although Rosa later appeared individually and as the representative of Roel’s estate, the
style of the case remained unchanged. Likewise, the trial court’s final judgment is in favor of
Rosa Huerta and Roel Huerta.
2
attorney’s fees and costs.
San Sebastian moved for summary judgment on its breach of contract claim.
In the motion, San Sebastian argued that under the listing agreement, the Huertas
agreed to pay the 6% commission when (1) the Huertas sold, exchanged, or agreed
to sell the property; (2) San Sebastian procured a ready, willing, and able buyer; or
(3) the Huertas granted an option to purchase the property. San Sebastian asserted
that it procured Nichols, who was ready, able, and willing to purchase the property
under the terms of the option contained in the lease agreement, and that Nichols
exercised the option in a letter from his attorney to the Huertas. San Sebastian also
asserted that the Huertas accepted Nichols’s offer by accepting and negotiating
Nichols’s earnest money check for $1,000.00. San Sebastian supported its motion
for summary judgment with the affidavit of its president, Gene Surrency, dated
May 7, 2014; the affidavit of its attorney on attorney’s fees; copies of the listing
agreement and the commercial lease between the Huertas and Nichols; and two
documents purporting to be a letter to the Huertas from Nichols’s attorney and a
copy of the front and back of Nichol’s check, with “Earnest Money” written in the
memo line.
The Huertas filed a combined response and cross-motion for summary
judgment. In the response, the Huertas contended that the listing agreement
provided for payment of San Sebastian’s broker’s fee when the fee was both
earned and payable, and the fee only became payable when (1) the sale of the
property closed and was funded, (2) the defendants refused to sell the property
after the broker’s fee had been earned, or (3) some other breach of the listing
agreement occurred. The Huertas did not dispute that San Sebastian had earned its
broker’s fee, but argued that San Sebastian had presented no competent evidence
that the fee had become payable.
3
The Huertas argued that San Sebastian’s fee had not become payable
because Nichols’s letter allegedly notifying the Huertas that he was exercising the
purchase option never reached them, Nichols never agreed to purchase the property
on the terms and conditions stated in the purchase option, and the Huertas never
refused to sell to Nichols on other terms. According to the Huertas, they never
received any alleged letter from Nichols because San Sebastian negligently drafted
the lease agreement to provide an incorrect address for receipt of the notice. Rosa
testified in a supporting affidavit that before the letter was allegedly sent, Nichols
proposed purchasing the property, but wanted to finance the sale over a period of
ten years rather than the five years contemplated in the purchase option. Rosa told
Nichols she would be willing to discuss a sale on those terms, but negotiations did
not continue. Rosa further contended that she first learned about Nichol’s letter
when she visited Nichols to collect the rent for August 2013. At that time, Nichols
asked if she had received the letter and she said she had not. Nichols again
proposed buying the property on a ten-year term, explaining that the five-year term
in the purchase option would put too much strain on his cash flow. Thus, the
Huertas asserted, before they had a chance to accept or reject Nichols’s exercise of
the option, Nichols withdrew that offer.
Rosa acknowledged that she received and cashed a $1,000 check from
Nichols with “Earnest Money” in the memo line, but she stated that Nichols’s
monthly rent was $1,000, and she and her husband treated it as the monthly rental
payment, in part because Nichols sent no additional money for that month. The
Huertas also provided Nichols a receipt indicating his payment was for rent. After
that, the relationship between the Huertas and Nichols continued as one of lessor
and lessee.
The Huertas further asserted that they never refused to sell the property and
4
they remained willing to sell to Nichols on his proposed terms. In fact, Rosa
averred that she had “recently reached an agreement in principle to sell the
property” to Nichols financed over a ten-year period. She also stated that she
anticipated a sale would close by July 31, 2014. Therefore, the Huertas maintained,
San Sebastian’s broker’s fee has never become payable.
In addition to Rosa’s affidavit, the Huertas’ response included other
supporting affidavits as well as copies of the listing agreement and the commercial
lease agreement between the Huertas and Nichols. The Huertas also objected to
portions of Surrency’s affidavit and other evidence attached to San Sebastian’s
motion for summary judgment.
In the Huertas’ motion for summary judgment, they contended that there
was no evidence that they breached the listing agreement. The Huertas also
claimed that there was no evidence that a contract existed between San Sebastian
and Roel Huerta. The Huertas also moved for summary judgment on their
counterclaim for attorney’s fees.
San Sebastian filed a reply to the Huertas’ response to its motion for
summary judgment and a separate response to the Huertas’ motion for summary
judgment. In the reply, San Sebastian argued that the lease agreement only
required that notice of Nichols’s exercise of the option be sent to a particular
address, which was accomplished, and there was no requirement that the Huertas
actually receive the notice in order for it to be effective.3 In any event, San
Sebastian argued, Rosa had actual knowledge of Nichols’s intent to exercise the
option because she acknowledged in her affidavit that Nichols spoke with her
about it. San Sebastian also argued that any attempted renegotiation did not affect
3
The purchase option provided: “Tenant may exercise this option only by sending
written notice to landlord at 3215 Broadway St., Houston Texas 77017 by certified mail.”
5
San Sebastian’s right to its fee or alter the Huertas’ obligation to convey the
property because the lease agreement had a “time is of the essence” provision.
In response to the Huertas’ motion for summary judgment, San Sebastian
restated the arguments made in its reply. San Sebastian further argued that the
Huertas’ acceptance of Nichols’s earnest money check was an acceptance of the
terms and conditions for sale of the property, and therefore the Huertas had no
right to simply apply the earnest money to the rent as they claimed. Consequently,
San Sebastian argued, the misapplication of the check and the refusal to honor the
terms of the listing agreement constituted a breach of the listing agreement. In
support of the response, San Sebastian attached additional documentary evidence
as well as a second affidavit of Gene Surrency, dated June 6, 2014, and a copy
Rosa’s affidavit from her response to San Sebastian’s motion for summary
judgment.
The Huertas filed a reply to San Sebastian’s response, asserting that under
any version of the facts, San Sebastian had presented no evidence that a broker’s
fee ever became payable under the terms of the listing agreement. The Huertas also
lodged objections to two of San Sebastian’s exhibits and to Surrency’s second
affidavit.
On October 2, 2014, the trial court signed an order granting the Huertas’
motion for summary judgment. The order provided that “[a]ll relief requested and
not expressly granted is denied,” but did not include any express rulings on the
Huertas’ evidentiary objections. The same day, the trial court signed an order
denying San Sebastian’s motion for summary judgment.
San Sebastian filed a notice of appeal on October 10, 2014, and a motion for
new trial on October 29, 2014. The trial court did not rule on the motion for new
trial, so it was overruled by operation of law on December 16, 2014. See Tex. R.
6
Civ. P. 329(c). The trial court retained plenary power over the case until January
15, 2015. See Tex. R. Civ. P. 329(e).
On December 3, 2014, the Huertas filed two motions: (1) a motion to modify
the judgment to reflect that the trial court had sustained their objections to San
Sebastian’s summary judgment evidence; and (2) a motion for rulings on their
objections to San Sebastian’s summary judgment evidence. Both motions indicated
that a ruling sustaining the Huerta’s objections “would have been necessary for the
Court to grant [the Huertas’] motion for summary judgment.” The Huertas’
motions requested that the trial court sign a new order that would modify the
previous order granting the Huertas’ motion for summary judgment “only by
adding one sentence reflecting that the Court sustains [the Huertas’] objections to
[San Sebastian’s] summary judgment evidence.”
San Sebastian filed a response in opposition to the Huertas’ motions, and the
trial court held a hearing on the Huertas’ requested relief. Several days later, on
December 16, the trial court signed a written order reflecting its ruling that the
Huertas’ objections to San Sebastian’s summary judgment evidence were
sustained. Although not expressly incorporated, attached to the one-sentence order
were two proposed orders the Huertas had provided setting out the specific
objections to the evidence in San Sebastian’s motion for summary judgment and
San Sebastian’s response to the Huertas’ motion for summary judgment.
Unsatisfied with the trial court’s separate ruling, on December 29 and 31,
2014, counsel for the Huertas sent two letters to the trial court requesting that it
enter a new judgment to add a sentence noting that the court sustained the Huertas’
objections to San Sebastian’s evidence. In the letters, counsel expressed concern
that the earlier judgment did not accurately reflect the trial court’s ruling because it
did not state that the Huertas’ objections to San Sebastian’s summary judgment
7
evidence had been sustained, and so the judgment could be subject to attack on
appeal by San Sebastian “on a purely technical basis.” According to San Sebastian,
the Huertas sent the letters to its counsel by regular mail and they were not
received until January 6.
On January 6, 2015, the trial court signed an order vacating its October 2
judgment and substituting in its place the judgment from which this appeal is
taken. The judgment includes a sentence in which the trial court sustains “all of the
objections to [San Sebastian’s] evidence made by [the Huertas].”
Later that same day, counsel for San Sebastian filed a letter objecting to the
entry of a modified judgment, noting that the Huertas filed a letter rather a motion,
and did not request a hearing on the requested relief. San Sebastian also argued that
the Huertas’ letters and their earlier December motions were untimely, and urged
the trial court to grant San Sebastian’s motion for new trial “in light of counsel’s
admission that plaintiff controverted the defendants’ summary judgment
evidence.” The trial court made no further orders before its plenary power expired.
ANALYSIS OF SAN SEBASTIAN’S ISSUES
San Sebastian contends that the trial court erred in (1) granting the Huertas’
objections to its summary judgment evidence, (2) granting the summary judgment
for the Huertas, and (3) denying San Sebastian due process.
When, as here, both parties move for summary judgment on the same issues,
we consider the summary judgment evidence presented by both sides, determine
all questions presented, and if we determine that the trial court erred, render the
judgment the trial court should have rendered. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In the case of cross-motions for
summary judgment, each party must establish that it is entitled to judgment as a
8
matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.
2000).
I. The Trial Court’s Evidentiary Rulings
In its first issue, San Sebastian contends that the trial court erred by granting
the Huertas’ objections to San Sebastian’s summary judgment evidence. Within
this issue, San Sebastian raises several sub-issues: (1) all objections except as to
the first affidavit of Surrency were waived by the October 2 summary judgment;
(2) the Huertas’ December motions and letters requesting the trial court to modify
its judgment were untimely; (3) the trial court’s December 16 ruling on objections
and its January 6 judgment were an abuse of discretion; and (4) the Huertas’
objections are not valid. We address each in turn.
A. Waiver of Objections
San Sebastian first argues that all of the Huertas’ objections to San
Sebastian’s evidence, with the exception of objections to the substance of
Surrency’s first affidavit, were waived because the Huertas did not seek or obtain
rulings on them in connection with the trial court’s October 2, 2014 summary
judgment order. See Tex. R. App. P. 33.1(a); Dolcefino v. Randolph, 19 S.W.3d
906, 926 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (“[I]t is incumbent
upon the party asserting objections to obtain a written ruling at, before, or very
near the time the trial court rules on the motion for summary judgment or risk
waiver.”).
We disagree that the Huertas have waived their objections in this case
because the October 2 summary judgment order was vacated and replaced by the
January 6, 2015 judgment. The January 6 judgment expressly provides that all of
the Huertas’ objections were sustained, and it was preceded by the trial court’s
9
December 16, 2014 ruling specifically sustaining the Huertas’ objections.
Dolcefino is distinguishable because in that case the trial judge who granted the
summary judgment failed to rule on the appellant’s objections, and two months
later another judge, who did not hear the motion for summary judgment, refused to
rule on the objections. See 19 S.W.3d at 926–27. The court concluded that it could
not infer from the record whether the trial court sustained or overruled the
appellants’ objections absent an order disclosing the court’s rulings. Id. at 926. In
this case, the same judge considered the Huertas’ summary judgment motion and
expressly ruled on their objections to San Sebastian’s evidence. Moreover, San
Sebastian acknowledges that the Huertas’ objections were raised in their summary
judgment briefing filed well before the trial court ruled on the objections and
signed the final judgment. Because the record reflects that the Huertas raised their
objections in the trial court and obtained rulings on them, their objections are not
waived. See Tex. R. App. P. 33.1(a).
B. The Timeliness of the Huertas’ December Motions and Letters,
the Trial Court’s December 16 Ruling, and the Trial Court’s
Discretion to Grant the Requested Relief
San Sebastian next contends that the Huertas’ December motions and letters,
as well as the trial court’s December 16 ruling on its objections, were untimely.
San Sebastian also argues that the trial court’s December 16 ruling and the January
6 judgment were an abuse of discretion.
First, San Sebastian argues that the Huertas’ December motion to modify the
judgment and its December 29 and 31 letters requesting the trial court to vacate its
October 2 summary judgment order and render a new judgment were not timely
because they were filed more than thirty days after the October 2 order. See Tex.
R. Civ. P. 329b; L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442, 444 (Tex. 1996)
(per curiam) (“A party must file a motion to modify judgment and motion for new
10
trial within thirty days from the date the trial court signed the judgment.”). San
Sebastian contends that the Huertas’ December motion for a ruling on its
objections to San Sebastian’s summary judgment evidence constitutes a request for
conclusions of law, and because requests for findings of fact and conclusions of
law must be filed within twenty days after the trial court’s judgment under Texas
Rule of Civil Procedure 296, the Huertas’ motion for a ruling was untimely
because it was filed on December 3, more than twenty days after the October 2
summary judgment ruling.
As noted above, the trial court retained plenary power over the case until
January 15, 2015, thirty days after San Sebastian’s timely filed motion for new trial
was overruled by operation of law. See Tex. R. Civ. P. 329b(e) (“If a motion for
new trial is timely filed by any party, the trial court, regardless of whether an
appeal has been perfected, has plenary power to grant a new trial or to vacate,
modify, correct, or reform the judgment until thirty days after all such timely-filed
motions are overruled, either by a written and signed order or by operation of law,
whichever occurs first.”). A trial court’s power to modify its judgment during the
period of its plenary power is very broad:
A trial court retains full control over its judgment while it has plenary
power. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294 (Tex. App.—
Dallas 2009, no pet.); WMC Mortg. Corp. v. Starkey, 200 S.W.3d 749,
751 (Tex. App.—Dallas 2006, pet. denied). Plenary power is broadly
defined as the court’s power to dispose of any matter before it. WMC
Mortg. Corp., 200 S.W.3d at 751. “A trial court’s jurisdictional power
over its judgment is full, complete, absolute, and unqualified.” Shelby
Operating Co. v. City of Waskom, 964 S.W.2d 75, 80 (Tex. App.—
Texarkana 1997, pet. denied); Mesa Agro v. R.C. Dove & Sons, 584
S.W.2d 506, 508 (Tex. Civ. App.—El Paso 1979, writ ref'd n.r.e.); see
also In re Provine, 312 S.W.3d 824, 829 (Tex. App.—Houston [1st
Dist.] 2009, orig. proceeding) (“A trial court’s power to modify its
judgment is virtually absolute during the period of its plenary
power.”). A trial court has authority to sua sponte modify the
11
judgment within the duration of its plenary power. Horseshoe Bay
Resort Sales Co. v. Lake Lyndon B. Johnson Improvement Corp., 53
S.W.3d 799, 814 (Tex. App.—Austin 2001, pet. denied).
Pasadena Refining Sys., Inc. v. McCraven, Nos. 14-10-00837-CV, 14-10-00860-
CV, 2012 WL 1693697, at *11 (Tex. App.—Houston [14th Dist.] May 15, 2012,
pet. dism’d by agr.) (mem. op.). Thus, the trial court has the power to modify its
judgment while it retains plenary power with or without a timely filed motion.
Assuming all of the Huertas’ motions and letters were untimely, the trial
court nevertheless may, at its discretion, consider the grounds raised in an untimely
motion to modify or motion for new trial under its inherent authority before the
court loses plenary power. See Tex. R. Civ. P. 329b(d); Moritz v. Preiss, 121
S.W.3d 715, 720 (Tex. 2003); Mindis Metals, Inc. v. Oilfield Motor & Control,
Inc., 132 S.W.3d 477, 486 n.9 (Tex. App.—Houston [14th Dist.] 2004, pet.
denied). The trial court also has the authority to make rulings on the summary
judgment evidence after the entry of its order granting the summary judgment. See
Wolfe v. Devon Energy Prod. Co., LP, 382 S.W.3d 434, 448 (Tex. App.—Waco
2012, pet. denied); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294–95 (Tex.
App.—Dallas 2009, no pet.). Thus, even if the Huertas’ motions and letters were
untimely, the trial court could, in its discretion, consider the requested relief.
San Sebastian next contends that the trial court’s December 16 ruling on the
Huertas’ objections was untimely because it was issued more than two months
after the first summary judgment, rather than before, at, or near the time of the
October 2 summary judgment ruling. See Dolcefino, 19 S.W.3d at 926. San
Sebastian argues that there is no indication which of the Huertas’ two December
motions the trial court considered or granted when it ruled on December 16, and no
indication that the trial court determined the Huertas’ objections at that time. San
Sebastian points to statements the trial court made in the hearing on the Huertas’
12
December motions indicating that she did not remember the facts of the case and
believed it was too late to make substantive changes to the judgment. Further, San
Sebastian complains that the trial court “refused” to make specific rulings on each
objection, and instead made only “vague and global rulings” that amount to no
rulings at all. We disagree.
The trial court’s December 16 ruling clearly granted the Huertas’ motion for
ruling on objections to San Sebastian’s summary judgment evidence. The ruling
specifically states that the trial court sustained the Huertas’ objections to San
Sebastian’s summary judgment evidence, and attaches the Huertas’ proposed
orders setting out each of their objections to San Sebastian’s evidence. The first
proposed order lists the objections to the evidence San Sebastian offered in support
of its own motion for summary judgment and the second proposed order duplicates
those objections and also adds the objections to San Sebastian’s evidence offered
in opposition to the Huertas’ motion for summary judgment. No modification of
the October 2 order was made. Although the trial court did not indicate a specific
ruling on each proposed order, the ruling itself indicates that the objections were
sustained, and the January 6 judgment expressly reiterated that “all” of the
Huertas’ objections were sustained.
Further, although San Sebastian suggests, based on selective excerpts from
the record of the hearing, that the trial court may not have considered or
determined the individual objections when it granted the Huertas’ motion, a review
of the entire hearing transcript dispels that notion. During the hearing, the trial
judge initially indicated that she may not have the power to rule on the objections
or to modify the judgment, but once she was informed that San Sebastian had filed
a motion for new trial, she understood that her plenary power had been extended.
The trial court explained that because she did not immediately remember why she
13
granted the Huertas’ motion for summary judgment, she would not rule on the
individual objections until she had an opportunity to review the evidence and
determine the basis for her ruling. The trial judge also indicated that she was going
to read the motions and “go back and look at what the objections were” before she
ruled on them. Moreover, the trial court did not immediately rule on the objections,
but signed the December 16 order six days after the hearing. Thus, contrary to San
Sebastian’s suggestion, the record does not reflect that the trial court “refused”
either to rule on the specific objections or to disclose which motion she granted.
Here, the Huertas raised their objections to San Sebastian’s evidence in their
response to San Sebastian’s motion for summary judgment and their reply to San
Sebastian’s response to the Huertas’ motion for summary judgment. Both the
October 2 order and the January 6 judgment recite that the trial court considered
both motions for summary judgment as well as “the summary judgment evidence,
the pleadings, and the arguments of counsel, if any” before granting the Huertas’
motion for summary judgment. And although the Huertas arguably were less than
diligent in seeking rulings on their objections once the trial court granted their
summary judgment motion, the trial court exercised its discretion to consider the
relief the Huertas requested in their December motions and letters. Further, the trial
court signed both the ruling on the Huertas’ objections and the January 6 judgment
during its plenary jurisdiction. On these facts, we conclude that, even if the
Huertas’ December motions and letters were untimely, the trial court would not
have abused its discretion by considering them and ultimately granting the
requested relief during the period it retained plenary jurisdiction.
D. The Validity of the Huertas’ Objections
San Sebastian next challenges the trial court’s rulings sustaining the
Huertas’ objections to its summary judgment evidence and the evidence it attached
14
in reply to the Huertas’ cross-motion for summary judgment. We review the trial
court’s evidentiary rulings for an abuse of discretion. United Blood Servs. v.
Longoria, 938 S.W.2d 29, 30 (Tex. 1997). We must uphold the court's ruling if the
record shows any legitimate basis supporting that ruling. Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Because San Sebastian does not contend on appeal that the trial court’s
denial of its summary judgment motion was error, we begin with San Sebastian’s
complaints about the trial court’s rulings on the Huertas’ objections to the evidence
San Sebastian offered in reply to the Huertas’ cross-motion for summary judgment.
Specifically, San Sebastian complains of the trial court’s rulings sustaining the
Huertas’ objections to exhibits 2 and 6 and Surrency’s June 6 affidavit.
1. Exhibits 2 and 6
The Huertas objected to San Sebastian’s exhibits 2 and 6 on the grounds that
they were unauthenticated hearsay. Exhibit 2 is a copy of a document which
purports to be a letter from Nichols’s attorney to the Huertas notifying them that
Nichols was exercising his option to purchase the Huertas’ property. Exhibit 6 is a
copy of the front and back of a check with “Earnest Money” written in the memo
line, which Surrency testified he obtained from Nichols.
The Huertas argue that the trial court did not err in ruling that these exhibits
were unauthenticated hearsay because Surrency made no attempt in his June 6
affidavit to establish that the documents were business records or even true and
correct copies of the documents. However, Surrency did attempt to authenticate the
documents in his May 7 affidavit attached to his own motion for summary
judgment, which also included those exhibits.4 In the May 7 affidavit, Surrency
4
The Huertas argue that Surrency’s May 7 affidavit cannot supply the authentication of
the exhibits because San Sebastian did not direct the trial court to that affidavit, and a trial court
15
recites form language similar to that used for authenticating business records. See
Tex. R. Evid. 902(10)(B).5 But Surrency’s affidavit does not explain how a letter
prepared by a lessee’s attorney and a copy of a lessee’s check are business records
of San Sebastian, and Surrency does not explain how, as he averred, it was the
regular course of business for an employee or representative of San Sebastian
“with knowledge of the act, event, condition, opinion or diagnosis recorded to
make the record or to transmit information thereof to be included in such record”
or how San Sebastian would know that “the record was made at or near the time or
reasonably soon thereafter.” Surrency’s attempted authentication is ineffective, and
his affidavit does nothing more than confirm that the exhibits are “either the
original or exact duplicates” of documents he obtained from someone else. The
trial court did not abuse its discretion in excluding these documents.
is not required to consider summary judgment proof to which it was not directed. But it is well-
established that when cross-motions for summary judgment are filed, both parties’ evidence is
before the trial court. See, e.g., DeBord v. Muller, 446 S.W.2d 299, 301 (Tex. 1969) (“Since both
motions were properly before the court at the time judgment was rendered, all the evidence
accompanying defendant DeBord’s motion was likewise evidence to be considered in deciding
plaintiff’s motion and vice versa.”); Murphy v. McDermott Inc., 807 S.W.2d 606, 611 (Tex.
App.—Houston [14th Dist.] 1991, writ denied) (holding that appellant’s affidavit filed in support
of his motion for summary judgment was properly before the court as proof in response to
appellee’s cross-motion). The authorities the Huertas rely on are inapplicable because they
concern general objections to voluminous exhibits and do not involve cross-motions for
summary judgment.
5
Surrency averred the following:
“The letter to Roel Huerta and Rosa Huerta from Richard Nichols’ Attorney . . . and
Richard Nichols’ Check Sent as Earnest Money . . . were received, and kept by San Sebastian
Realty Co., Inc. in the regular course of business, and it was the regular course of business of San
Sebastian Realty Co., Inc. for an employee or representative of San Sebastian Realty Co., Inc.
with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record or
to transmit information thereof to be included in such record; and the record was made at or near
the time or reasonably soon thereafter. The records attached hereto are either the original or exact
duplicates of the original.”
16
2. Surrency’s June 6 affidavit
Below, the Huertas objected to several statements in Gene Surrency’s June 6
affidavit on the grounds of hearsay and lack of proper foundation. On appeal, they
also contend that the statements are conclusory.
In a motion for summary judgment, supporting and opposing affidavits must
be made on personal knowledge, must set forth such facts as would be admissible
in evidence, and must show affirmatively that the affiant is competent to testify to
the matters stated therein. Tex. R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924
S.W.2d 120, 122 (Tex. 1996) (per curiam). A person’s position or job
responsibilities can qualify him to have personal knowledge of facts and establish
how he learned of the facts. Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538,
543 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). But the mere recitation
that the affidavit is based on personal knowledge is inadequate if the affidavit does
not positively show a basis for the knowledge. Valenzuela v. State & Cty. Mut.
Fire Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no
pet.). Affidavits must show how the affiant became familiar with the facts in the
affidavit. Radio Station KSCS v. Jennings, 750 S.W.2d 760, 761–62 (Tex. 1988)
(per curiam).
Additionally, conclusory statements in an affidavit unsupported by facts are
insufficient to defeat summary judgment. CA Partners v. Spears, 274 S.W.3d 51,
63 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). A conclusory statement is
one that does not provide the underlying facts to support the conclusion. Id.;
Dolcefino, 19 S.W.3d at 930. To avoid being conclusory, an affidavit must contain
specific factual bases, admissible in evidence and upon which conclusions are
drawn. Southtex 66 Pipeline, 238 S.W.3d at 542. An affidavit stated in terms of the
affiant’s subjective beliefs or “understanding” is conclusory and does not equate to
17
personal knowledge. See Ryland, 924 S.W.2d at 122; VSR Fin. Servs., Inc. v.
McLendon, 409 S.W.3d 817, 826 (Tex. App.—Dallas 2013, no pet.). This is
because such language does not positively and unqualifiedly represent that the
“facts” disclosed are true. See Ryland, 924 S.W.2d at 122. An objection that
statements in an affidavit are conclusory is one that relates to a defect in the
substance of the affidavit rather than its form, and so it may be raised for the first
time on appeal. Cruse v. O’Quinn, 273 S.W.3d 766, 777 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied).
In their brief, the Huertas focus on the following statements in Surrency’s
June 6 affidavit:
“2. Next, I learned that the Huertas would sell the property to
Mr. Nichols, but on one condition. If Mr. Nichols went through me,
then Mr. Nichols would have problems with Ms. Huerta because she
was not going to pay my sale’s [sic] commission. I understand Ms.
Huerta told Mr. Nichols to withdraw his exercise of the option to
purchase, and she would sell the property to him. . . . I understand that
Ms. Huerta did not show up for closing and refused to provide an
alternative closing date.
“3. . . . I learned that the Huertas were refusing to sell.
None of these statements are supported by any explanation of how Surrency
allegedly knew, learned, or came to understand the information conveyed. No do
the surrounding statements concerning other events demonstrate a basis for
Surrency to have acquired personal knowledge of the above information. As such,
the statements are conclusory and the trial court did not abuse its discretion by
sustaining the Huertas’ objections to them.
Similarly, Surrency averred in his May 7 affidavit that “all statements of
fact” in the factual background section of San Sebastian’s motion for summary
judgment were true and correct, including a statement in a parenthetical that the
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Huertas “have refused to convey the property to Mr. Nichols.” The Huertas
objected to this statement as being inadmissible because it lacked foundation, was
speculative, constituted hearsay, and was conclusory. We agree that, as in his June
6 affidavit, Surrency’s statement is unsupported by any facts showing he has
personal knowledge that the Huertas refused to sell. Therefore, we conclude that
the trial court did not abuse its discretion by sustaining the Huertas’ objections to
these statements.
II. The Trial Court’s Grant of the Huertas’ Cross-Motion for Summary
Judgment
In its second issue, San Sebastian argues that the trial court erred in granting
the Huertas’ cross-motion for summary judgment. As noted above, the primary
basis for the Huertas’ motion was that there is no evidence that the Huertas
breached their listing agreement with San Sebastian.
A trial court must grant a no-evidence motion for summary judgment if: (1)
the moving party asserts that there is no evidence of one or more specified
elements of a claim or defense on which the adverse party would have the burden
of proof at trial; and (2) the respondent produces no summary judgment evidence
raising a genuine issue of material fact on each of the challenged elements. See
Tex. R. Civ. P. 166(a)(i). In reviewing a no-evidence summary judgment,
we review the evidence in the light most favorable to the non-movant against
whom the summary judgment was rendered. Smith v. O’Donnell, 288 S.W.3d 417,
424 (Tex. 2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005)). If the non-movant brings forth more than a scintilla of evidence to raise a
genuine issue of material fact, then the trial court cannot properly grant the no-
evidence motion for summary judgment. Id.
Under the listing agreement, San Sebastian’s commission only became
19
payable when the sale of the property closed, when the Huertas refused to sell the
property, or when the Huertas otherwise breached the listing agreement. Of these,
San Sebastian alleged only that the Huertas refused to sell the property to Nichols
after he exercised the purchase option in the lease agreement. Therefore, San
Sebastian must have presented more than a scintilla of evidence to support this
allegation to defeat the Huertas’ motion for summary judgment.
We have already determined that the trial court did not abuse its discretion
by excluding the documents purporting to be the letter in which Nichols allegedly
exercised the option and the earnest money check, as well as Surrency’s statements
in his affidavit concerning the Huertas’ alleged refusal to sell the property.
Nevertheless, San Sebastian argues that Rosa Huerta’s affidavit supplies sufficient
evidence to raise a fact issue precluding summary judgment for the Huertas.
Specifically, San Sebastian argues that Rosa proved up the listing agreement
and the lease agreement with Nichols, and confirmed that both she and Roel
entered into the listing agreement with San Sebastian. Rosa also acknowledged that
she accepted Nichols’s earnest money check but did not sell to Nichols, instead
applying the money as rent. She further admitted to knowing about Nichols’s
exercise of the option in July 2013, but not selling the property before July 31,
2014, despite a “time is of the essence” clause in the lease. San Sebastian also
argues that, in their December letters, the Huertas notified the court that the
property still had not sold a year and a half since Nichols gave notice. San
Sebastian discounts Rosa’s “story” about renegotiating the terms of the sale to
Nichols, claiming that it was not an excuse for not selling to Nichols under the
terms of the lease. Thus, San Sebastian argues, Rosa’s affidavit supplies virtually
everything the Huertas attempted to exclude by objection.
In response, the Huertas contend there is no dispute that San Sebastian’s
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broker’s fee only becomes payable when the sale of the property closes and is
funded (which all parties concede has not happened) or when the Huertas refuse to
sell the property after the fee has been earned. According to the Huertas, there is no
competent evidence the Huertas have refused to sell the property. We agree.
The evidence is uncontroverted that the Huertas did not receive a letter
giving notice of Nichols’s intention to exercise the purchase option. When Nichols
first informed Rosa about the existence of a notice letter, he immediately told her
that he did not want to purchase the property under the terms of the written
agreement between them.6 Further, both Rosa and Nichols treated the earnest
money check as a monthly rent payment and continued their relationship as lessor
and lessee. Thus, assuming Nichols sent a letter, the only contract that could have
obligated the Huertas to sell was one providing that the Huertas would finance the
sale of the property over a five-year term, which Nichols rejected. Nichols instead
offered to purchase the property by financing it over a ten-year term, and Rosa
testified that the Huertas expressed a willingness to sell to Nichols on those terms.
That no sale has yet taken place is not evidence that the Huertas refused to sell; it is
only evidence that a sale has not yet occurred. Rosa testified that the Huertas have
never refused to sell the property to Nichols, and the record contains no evidence
to the contrary.
Even viewing the evidence in the light most favorable to San Sebastian, as
we must, we nevertheless conclude that San Sebastian has failed to present more
than a scintilla of evidence that Nichols sent notice of his intention to exercise the
purchase option but the Huertas refused to sell the property to Nichols under the
terms and conditions of their lease agreement. On this record, the trial court did not
6
This conversation was confirmed in the affidavit of Anna Hernandez, a friend of Rosa’s,
who witnessed the exchange. Hernandez also stated that at no time did Rosa indicate that she
would refuse to sell the property to Nichols.
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err by granting summary judgment to the Huertas. We overrule San Sebastian’s
second issue.
III. Due Process
In its third issue, San Sebastian contends that the trial court violated its right
to due process in seven ways:
1. Entering the January 6, 2015 judgment pursuant to the Huertas’
counsel’s December 29 and 31, 2014 letters because those
letters were not e-filed;
2. Entering the January 6, 2015 judgment before San Sebastian
had a reasonable opportunity to be heard;
3. Considering relief that the Huertas had no right to request under
Texas Rules of Civil Procedure 296 and 329b;
4. Maintaining two separate and distinct electronic docket sheets;
5. Backdating one electronic docket sheet to show that San
Sebastian’s e-filed letter response of January 6, 2015 was
before the court as of 2:55 p.m., six hours before that letter was
e-filed;
6. Acting as an advocate to defeat San Sebastian’s proposed
appellate argument as the reason to enter the January 6, 2015
judgment; and
7. Creating a record clearly establishing that the trial court was not
an impartial judge in this case.
San Sebastian maintains that due process was violated because it was denied
meaningful notice, a fair trial, and a fair and impartial judge. San Sebastian
requests that this court remand the case to the trial court with a mandate requiring
the recusal of the trial judge.
San Sebastian complains that the Huertas’ December 29 and 31 letters
requested more relief than their earlier motions.7 According to San Sebastian,
7
In the December 29 letter, counsel for the Huertas stated in a footnote that an attached
22
because the time to move to modify the judgment had expired thirty days after the
October 2, 2014 judgment, counsel had no right to request that relief and the issue
of modification was not “properly before the court.” Additionally, San Sebastian
complains that the judge granted the Huertas’ requested relief even though the
Huertas failed to e-file their request or follow the rules of procedure, denying San
Sebastian fair notice and an opportunity to respond.
In connection with this argument, San Sebastian suggests that the trial court
intentionally back-dated a docket sheet to show that she received San Sebastian’s
January 6 letter in response to the Huertas’ December 29 and 31 letters before,
rather than after, she signed the final judgment. San Sebastian bases its claim on an
alleged discrepancy between the file-stamp of 8:57 p.m. on San Sebastian’s letter
and an electronic docket sheet entry reflecting a time 2:55 p.m. According to San
Sebastian, the only explanation for the back-dated docket sheet that it would enable
the judge to “defend herself against a claim of being ex-parte’d by the [Huertas’]
two December letters.” Further, San Sebastian accuses the trial judge of keeping
“two sets of books” because the electronic docket sheet differs from the trial
court’s docket sheet accompanying the appellate record, which does not include
the times when documents are filed.
As discussed above, while the trial court retained plenary power, it was
authorized to consider the Huertas’ post-judgment motion to modify the October 2
order granting summary judgment and the motion for a ruling on objections. San
Sebastian filed a response to both motions, and the trial court held a hearing in
which counsel for both parties participated. The trial court ultimately granted the
Huertas’ motion for a ruling on December 16. In their December 29 and 31 letters,
proposed order and judgment “does correct a typo in the original order by clarifying that
‘Defendants’ rather than ‘Plaintiff’ has the right to enforce the judgment. The draft also adds the
names of the parties at certain points.”
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the Huertas candidly expressed their concern that a new judgment should be
entered to reflect the trial court’s intention to sustain their objections because,
without such rulings, in their view summary judgment would not have been proper.
Thus, the Huertas did not seek substantively new relief from that previously
requested in their earlier motions, and San Sebastian was not denied either notice
or an opportunity to respond to the earlier requests for the same relief.
San Sebastian nevertheless complains that new relief was requested because
changing the party names in the final judgment was a judicial error that could not
be corrected, and the Huertas had not previously requested that the October 2 order
be vacated (as opposed to modified). As to the first complaint, the final judgment
was not a judgment nunc pro tunc, but was signed while the court retained plenary
power and unquestionably had the authority to correct the party names to
accurately reflect its earlier rulings. As to the second complaint, the form of the
final judgment was not a grant of “new relief.” Whether the earlier judgment was
vacated and replaced by a new judgment on January 6, rather than merely modified
to reflect the requested relief, the substantive relief was the same as that previously
granted in the October 2 and December 16 orders.
Finally, we note that San Sebastian filed no motion to recuse in the trial
court and on appeal offers only a discrepancy between a file-stamp and an entry on
an electronic docket sheet as a basis to insinuate that the trial court engaged in
dishonest, and possibly criminal, actions. In light of our resolution of San
Sebastian’s issues and our conclusion that the trial judge did not err by granting the
Huertas’ summary judgment motion or considering the Huertas’ post-judgment
requests for relief, we conclude that San Sebastian’s allegations are nothing more
than base speculation unsupported by any evidence of improper actions on the part
of the trial judge. We therefore overrule San Sebastian’s third issue.
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CONCLUSION
We overrule San Sebastian’s issues and affirm the trial court’s judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Christopher, Brown, and Wise.
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