Roberts v. Roper
2012 Tex. App. LEXIS 5502
| Tex. App. | 2012Background
- Roberts signed a $50,000 promissory note payable to Roper due January 3, 2008, secured by Roberts's 3% membership interest in Your Town Yellow Pages, L.L.C. (YTYP).
- Roper assigned two $25,000 CDs as collateral for an $800,000 City Bank Texas loan to Clear Fork Joint Venture, with City Bank holding a security interest in the CDs.
- City Bank's security agreement authorized application of the CDs to repay the indebtedness to City Bank, including obligations tied to the Clear Fork loan.
- Roberts did not pay the note at maturity and made no payments; Roper claimed she held the note and that the collateral yielded no value to her directly.
- Roper moved for summary judgment; Roberts opposed, arguing a third party (John Woodall) had 'taken care of' Roper and that discovery would reveal more evidence.
- The trial court granted summary judgment for Roper for the principal plus interest and $10,000 in attorney’s fees; Roberts unsuccessfully moved for new trial based on newly discovered evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Balance due on the note | Roper established balance due after offsets and credits. | Roberts asserts Woodall paid or offset the balance. | No genuine issue; balance due proven; Roper entitled to judgment. |
| Attorney’s fees award | Note allows recovery of attorney’s fees; Baskind’s affidavit supports reasonableness. | Affidavits insufficient to prove reasonableness/necessity under standards. | Affidavits sufficient; $10,000 award proper. |
| New trial based on newly discovered evidence | Defendant seeks relief due to a City Bank letter; evidence could change outcome. | Letter not material; discovery not omitted; no different result likely. | No abuse of discretion; denial affirmed. |
Key Cases Cited
- Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (finality and appellate preservation of errors in final judgments)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (summary-judgment standards and burdens of proof)
- Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary-judgment standards and evidentiary burdens)
- Slavin v. Citizens State Bank of Frost, 567 S.W.2d 928 (Tex.Civ.App.-Dallas 1978) (payment defense requires specific credits/offsets numerical amounts)
- Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997) (DTPA attorney’s fees evidentiary requirements; factors for reasonableness)
- Lesikar v. Rappeport, 33 S.W.3d 282 (Tex.App.-Texarkana 2000) (expert testimony required to prove reasonable attorney’s fees)
- City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979) (summary-judgment framework and burden shifting)