Juan A. Gonzalez v. Paccar Financial Corp.--Appeal from Co Civil Ct at Law No 1 of Harris County

Affirmed and Memorandum Opinion filed June 14, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00841-CV

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JUAN A. GONZALEZ, Appellant

V.

PACCAR FINANCIAL CORP., Appellee

On Appeal from the County Civil Court at Law Number One

Harris County, Texas

Trial Court Cause No. 806,115

M E M O R A N D U M O P I N I O N

Appellant, Juan A. Gonzalez, appeals from a final summary judgment against him and in favor of appellee, PACCAR Financial Corp. (APACCAR@), in a suit for collection of a debt. We affirm the judgment of the trial court.

I. Factual and Procedural Background

In July 1998, Gonzalez purchased a vehicle, a 1999 Kenworth, from Cleveland Mack Sales, Inc. d/b/a Performance Truck. Gonzalez financed the purchase, signing a Security Agreement and Retail Installment Contract, dated July 31, 1998. As part of this transaction, Gonzalez granted a security interest in the vehicle and any proceeds of any insurance policy on the vehicle. Shortly thereafter, the seller assigned all of its rights, title, and interest under the contract to PACCAR. In August 1998, the Kenworth was reported stolen and Gonzalez stopped making payments to PACCAR. When the stolen vehicle was not recovered, the insurance company paid $90,250 in proceeds from the insurance policy to PACCAR, which PACCAR applied to Gonzalez=s outstanding indebtedness. After applying the insurance proceeds to the amounts owing under the contract, there remained a deficiency balance of $12,926.09, which Gonzalez failed to pay.

In September 1998, Gonzalez purchased a 1999 Utility, Model Reefer, together with a 1998 Thermo King, from Utility Trailer Sales S.E. Texas, Inc., again financing the purchase. Gonzalez signed a Security Agreement and Retail Installment Contract, dated September 28, 1998, granting a security interest in the vehicles. The seller then assigned all of its rights, title, and interest under the contract to PACCAR. Thereafter, Gonzalez ceased making payments on the contract and the vehicles were repossessed and sold at auction in July 1999. After applying the proceeds from the sale of this collateral to reduce the amounts owing under the contract, there remained a deficiency balance of $17,441.38. Gonzalez failed to pay this deficiency.

In November 2003, PACCAR brought suit against Gonzalez, asserting breach of the two contracts. PACCAR sought to collect the unpaid balances owing under the contracts as well as attorney=s fees and costs of suit. Gonzalez answered the suit with a general denial and a special denial, in which he denied that Aall offset[s] and credits have been provided.@ PACCAR filed a traditional motion for summary judgment. Seeking more time to respond, Gonzalez filed a motion for continuance, but the trial court did not grant the continuance. Gonzalez did not respond to PACCAR=s summary-judgment motion, nor did he object to PACCAR=s summary-judgment evidence. In August 2004, the trial court granted PACCAR=s motion and rendered summary judgment in favor of PACCAR for $30,367.47, plus prejudgment and postjudgment interest, attorney=s fees, and costs of suit. Gonzalez, appearing pro se, now challenges the trial court=s summary judgment.

II. Standard of Review

In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant=s favor. Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. Id.

  III. Issues and Analysis

In his first and second issues, Gonzalez asserts that his answer to PACCAR=s petition, containing a special denial, was uncontroverted and that the summary-judgment evidence failed to disprove his defense. When, as in this case, the nonmovant fails to file a response to the motion for summary judgment, the only ground for reversal he may raise is the legal insufficiency of the motion for summary judgment and supporting evidence. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).

To succeed on its traditional motion for summary judgment in this suit on an unpaid debt, PACCAR had the burden to establish (1) the existence of the debt owing under each of the contracts; (2) that Gonzalez had signed each contract; (3) that PACCAR was the holder of each contract; and (4) that balances in the amounts claimed were due and owing on each contract. See Doncaster v. Hernaiz, No. 04-04-00324-CV, __ S.W.3d __, __, 2005 WL 235752, at *3 (Tex. App.CSan Antonio Feb. 2, 2005, no pet. h.). Attached to PACCAR=s motion for summary judgment are the contracts upon which PACCAR brought suit, all of which are signed by Gonzalez. Also attached to the summary-judgment motion is the affidavit of PACCAR=s authorized representative, Jana Meyer, which establishes that PACCAR is the holder of the contracts and that Gonzales defaulted in his payment obligations thereunder. Meyer=s affidavit sets forth the amounts owing on each of the contracts after application of all offsets, payments, and credits. With this summary-judgment evidence, PACCAR conclusively proved all essential elements of its claims as a matter of law. Accordingly, we overrule Gonzalez=s first and second issues.

In his final issue, Gonzalez asserts that PACCAR=s motion for summary judgment itself established that the insurance proceeds from the policy on the stolen vehicle were paid and accepted by PACCAR Aas full and final settlement.@ Gonzalez has not cited to any part of the record that allegedly contains this evidence, and our review of the record reveals no such evidence. Although the record shows that PACCAR received and applied the insurance proceeds from the policy on the stolen vehicle, to reduce the amounts Gonzalez owed under the contract financing its purchase, there is nothing in PACCAR=s motion for summary judgment to suggest that PACCAR=s receipt and acceptance of the insurance proceeds was in full and final settlement of its claims against Gonzalez. Under the contracts, Gonzalez was obligated to pay all amounts remaining after application of all payments and credits. The fact that PACCAR received and applied the insurance proceeds to reduce Gonzalez=s outstanding indebtedness does not absolve Gonzalez from this liability. Finding no merit in Gonzalez=s argument, we overrule his third issue on appeal.

  IV. Conclusion

PACCAR met its burden of presenting competent summary-judgment evidence establishing that there are no genuine issues of material fact on any essential elements of its contract claims. Gonzalez failed to respond to the summary judgment and thus failed to raise an issue on any defense to preclude summary judgment. Accordingly, the trial court properly granted summary judgment on PACCAR=s contract claims.

We affirm the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed June 14, 2005.

Panel consists of Chief Justice Hedges and Justices Fowler and Frost.