Melanie Dorsett, as of Melanie Foster's Estate v. Hispanic Housing and Education Corporation
389 S.W.3d 609
| Tex. App. | 2012Background
- In 2002, Melanie Foster loaned $79,000 to Hispanic Housing and Education Corporation (HHEC) under a five-year promissory note signed by HHEC's president and secretary.
- Foster died; Dorsett, as executor, sued HHEC to recover on the note after default in payment.
- HHEC moved for no-evidence summary judgment on August 28, 2009; hearing set for September 18, 2009, but rescheduled to August 23, 2010 with no new motion filed.
- Dorsett filed a response; a clerical error claimed service by facsimile occurred before the motion was filed, but the hearing was ultimately held on the rescheduled date.
- The trial court granted summary judgment on September 28, 2010; Dorsett sought reconsideration; HHEC argued Dorsett failed to serve the response, which was not raised as an issue until after judgment.
- The court ultimately reversed and remanded, holding Dorsett's summary-judgment evidence raised a genuine issue as to essential elements of the promissory-note claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred in granting no-evidence summary judgment | Dorsett contends there was evidence on essential elements raising a fact issue | HHEC argues no evidence on challenged elements and points to lack of timely service/consideration of the response | Reversed and remanded; no-evidence judgment improper |
Key Cases Cited
- Dalehite v. Nauta, 79 S.W.3d 243 (Tex.App.-Houston [14th Dist.] 2002) (timing and timeliness of summary-judgment responses when hearings are rescheduled)
- Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922 (Tex. 2009) (continuance and response timing related to summary judgments)
- Allen v. Rodáis Lumber & Veneer Co., 796 S.W.2d 758 (Tex.App.-Corpus Christi 1990) (timeliness of responses where hearing postponed)
- Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357 (Tex.1998) (summary-judgment reliance on record indicating court considered response)
- Strother v. City of Rockwall, 358 S.W.3d 462 (Tex.App.-Dallas 2012) (waiver principles regarding objections to summary-judgment evidence)
- Plotkin v. Joekel, 304 S.W.3d 455 (Tex.App.-Houston [1st Dist.] 2009) (objections to summary-judgment evidence generally waived absent ruling)
- McLernon v. Dynegy, Inc., 347 S.W.3d 315 (Tex.App.-Houston [14th Dist.] 2011) (promissory-note elements differ from general contract elements; must prove balance due)
- Blankenship v. Robins, 899 S.W.2d 236 (Tex.App.-Houston [14th Dist.] 1994) (outstanding balance evidence supports existence of debt)
- Lampasas v. Spring Center, Inc., 988 S.W.2d 428 (Tex.App.-Houston [14th Dist.] 1999) (essential elements framework for promissory-note claims)