Wyatt v. McGregor

OPINION ON MOTION FOR REHEARING

We write on rehearing to complete our analysis of Wyatt’s thirty-fifth point of error. In that point of error, Wyatt contended that the trial court erred in granting the McGregors’ motion for summary judgment against Wyatt’s DTPA claims and overruling Wyatt’s motion to reconsider without allowing Wyatt the opportunity to amend his summary judgment proof. We address here the italicized portion of the point.

Before reaching the main analysis, we dispose of the McGregors’ contention on rehearing that we should not have reviewed the summary judgment because there was no copy of the partial summary judgment in the record, citing Archer v. Storm Nursery, Inc., 512 S.W.2d 82, 83 (Tex.Civ.App.—San Antonio 1974, no writ). This case is distinct. In Archer, the court declined to review a summary judgment because the record contained neither the motion for summary judgment, nor three of the four depositions underlying the motion. Id. On such a record, the court held that it could not determine the basis for the judgment. Id. Here, we have the motion, the response, the hearing transcript, and the request for reconsideration. Further distinguishing this case from Archer and supporting our review is the fact that our analysis of the grant of summary judgment is properly not on whether the grant of summary judgment was correct; rather, our analysis focuses on whether summary judgment would have been appropriate had the court not improperly denied Wyatt the opportunity to amend the technical defects in its proof. On this record and facing the proper question, we proceed with our analysis.

At the summary judgment hearing, the McGregors objected that the affidavits supporting Wyatt’s response to the summary judgment motion were defective in two ways. Rogers and Wyatt in their affidavits stated their competency as a conclusion rather than by stating that both were over 18 and had never been convicted of a crime, and their affidavits did not contain a statement that they were made on personal knowledge. Wyatt did not have the opportunity to amend (or to refuse to amend) this proof before the court granted the motion for summary judgment. He offered amended affidavits in his Motion for Leave to Amend Plaintiff’s Response to Defendant’s Motion for Summary Judgment and to Set Aside Partial Summary Judgment, but leave was not granted and the judgment was not set aside.

The rule of civil procedure that governs the use of affidavits in summary judgment *18proceedings provides that “[d]efects 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.” Tex.R.Civ.P. 166a(f). A Houston court extended the requirement of objection at the trial level to defects to apply to prevailing parties as well. Walkoviak v. Hilton Hotels Corp. 580 S.W.2d 623, 626-627 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.). The court held that a party that prevailed on summary judgment must object to defects in the opposition’s affidavits at trial in order to raise the defects on appeal. Id. Though Walkoviak is distinguishable factually from this case, the principle applies to this case: parties must have the opportunity to amend defective affidavits before those defects are used to defeat a summary judgment opponent. Here, the McGregors objected to defects at the trial level, but because Wyatt was not given the opportunity to amend or to refuse to amend, the result was the same as if they had not objected at all. We hold that the trial court’s grant of partial summary judgment without allowing Wyatt the opportunity to amend the affidavits upon hearing the objections to the defects was erroneous.

The analysis in our original opinion shows that this error was harmful. Had the court allowed Wyatt to amend the affidavits (as he attempted to do by his motion), they would have revealed a fact issue as to the reasonableness of the date of the discovery of the alleged DTPA violations, an issue raised by Wyatt’s pleadings. The McGregors argue on rehearing that Wyatt’s discovery date is not relevant to defeat summary judgment, since the DTPA violations were alleged on behalf of Sunbelt. Wyatt, however, was a Sunbelt stockholder and had voting rights to a majority of the stock. His affidavit, as well as that of Rogers, who was a Sunbelt stockholder and more involved in the transaction than Wyatt, would have raised a fact issue as to whether Sunbelt reasonably discovered the alleged DTPA violations within two years before suing. Summary judgment would not have been proper had the court allowed Wyatt to amend the affidavits.

We reaffirm our decision sustaining point of error thirty-five and reversing and remanding those issues to the trial court.