Sylvia L. Hartney a/k/a Sylvia L. Hildreth d/b/a Hilltop Tool Rentals v. Mustang Tractor & Equipment Company--Appeal from County Civil Court at Law No 1 of Harris County

MEMORANDUM OPINION
No. 04-03-00108-CV
Sylvia L. HARTNEY a/k/a Sylvia L. Hildreth d/b/a Hilltop Tool Rentals,
Appellant
v.
MUSTANG TRACTOR & EQUIPMENT COMPANY,
Appellee
From the County Civil Court at Law Number 1, Harris County, Texas
Trial Court No. 764,907
Honorable R. Jack Cagle, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: January 21, 2004

AFFIRMED

Mustang Tractor & Equipment Company ("Mustang") sued Sylvia L. Hartney a/k/a Sylvia L. Hildreth d/b/a Hilltop Tool Rentals ("Hartney") on a sworn account and for unjust enrichment, promissory estoppel, and attorney fees. The basis for the suit was Hartney's alleged failure to pay for tractor repairs that Mustang provided to her on credit. Mustang moved for summary judgment on its sworn account claim and for its attorney fees. The trial court granted the motion in favor of Mustang.

Hartney appeals the judgment of the trial court, arguing that: 1) the trial court erred in granting Mustang's motion for summary judgment on its sworn account claim; and 2) the trial court erred in granting Mustang's motion for summary judgment on its claim for attorney fees. We affirm the judgment of the trial court.

Standard of Review

To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In reviewing a grant of summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the nonmovant is true. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. A plaintiff is entitled to summary judgment if he shows that he is entitled to prevail on each and every element of his cause of action. Ortega-Carter v. Am. Int'l Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.--Dallas 1992, writ denied). Once the movant has established a right to summary judgment, the burden shifts to the nonmovant to present evidence that would raise a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Sworn Account Claim

To prove its suit on a sworn account, Mustang had to show that: 1) it provided the sale and delivery of merchandise or performance of services to Hartney; 2) the amount of the account is "just," that is, the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable; and 3) the outstanding amounts remain unpaid. Powers v. Adams, 2 S.W.3d 496, 499 (Tex. App.--Houston [14th Dist.] 1999, no pet.).

Here, Mustang attached to its motion for summary judgment the affidavit of Audrey L. Cummings, Mustang's collection manager, who stated that: 1) Mustang provided materials and services to Hartney; 2) the prices charged were agreed upon or are usual, customary, and reasonable; 3) the account is just and true; 4) the account is due; 5) all lawful offsets, payments, and credits have been credited to the account; and 6) the outstanding, unpaid balance is $1,190.36.

Attached as exhibits to this affidavit are: 1) an application for credit with Mustang, signed "Sylvia Hartney-owner" for the company "Sylvia Hartney--Hilltop Tool Rentals"; 2) a record kept by Mustang of Hartney's account, showing an unpaid balance of $1,990.36; 3) an invoice detailing the materials and services charged to Hartney's account; and 4) a certified letter from Bradford Tucker, attorney at law, to Sylvia Hartney d/b/a Hilltop Tool Rentals, notifying her of her past due account and stating that suit will be instituted against her if she fails to make payment within ten days of the letter.

In her first issue, Hartney argues that the trial court erred in granting Mustang's motion for summary judgment on its sworn account claim because (a) Mustang failed to present competent summary judgment evidence in support of its motion; (b) Hartney did not do business as Hilltop Tool Rentals and was therefore not liable in the capacity in which she was sued; and (c) the statute of limitations precludes Hartney's claim.

A. Summary Judgment Evidence

Hartney first argues that the affidavit of Audrey Cummings, collection manager for Mustang, is incompetent because it fails to show that she had personal knowledge of the facts stated therein. Texas Rule of Civil Procedure 166a(f) provides that affidavits in support of motions for summary judgment must be made on personal knowledge. Tex. R. Civ. P. 166a(f). The personal knowledge requirement is satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may reasonably be assumed that the affiant has personal knowledge of the facts stated in the affidavit. Waite v. BancTexas--Houston, N. A., 792 S.W.2d 538, 540 (Tex. App.--Houston [1st Dist.] 1990, no writ). A person's position or job responsibilities can peculiarly qualify him to have personal knowledge concerning each of the facts in the supporting affidavit. Boswell v. Farm & Home Sav. Ass'n, 894 S.W.2d 761, 768 (Tex. App.--Fort Worth 1994, writ denied). Here, Cummings stated that she has personal knowledge of the facts set forth in the affidavit and that the statements are true and correct. Furthermore, she affirmatively states the basis of her knowledge by providing that she is the collection manager of Mustang Tractor & Equipment Company. We hold that this is sufficient to show that her affidavit is based on personal knowledge.

Hartney also argues that, as collections manager and custodian of records, Cummings "would not normally have" personal knowledge of the facts stated in her affidavit. This argument fails to refute the positive testimony contained in Cummings's affidavit.

Hartney next argues that Cummings's affidavit is incompetent because it is internally contradictory. Specifically, Hartney contends that Cummings's affidavit shows Hartney owing contradictory amounts. We disagree. Cummings's affidavit clearly states that the current unpaid balance on Hartney's account is $1,190.36. The fact that exhibits attached to Cummings's affidavit show other amounts due in times past does not make the affidavit contradictory. Accordingly, we find this argument to be without merit.

Hartney also argues that Cummings's affidavit is "defective" because the business records attached to the affidavit contain mathematical errors. Hartney fails, however, to produce any evidence to support this allegation. Hartney does not provide any evidence that Mustang overcharged her or provided the wrong materials or services. Rather, she points to the affidavit of Peter Hildreth, her husband, who asserts in a conclusory manner that Mustang's records contain mathematical errors. Conclusory statements devoid of the requisite facts are insufficient to raise fact issues on summary judgment. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Accordingly, we find this argument to be without merit.

Contrary to Hartney's assertion, Mustang's summary judgment evidence is competent. Accordingly, we overrule this issue on appeal.

B. Capacity

"When an individual or business entity is sued under a contract in a different capacity from that under which he signed the contract, he cannot be held liable because there is no evidence that the particular individual or entity was liable for the debt." Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d 336, 338 (Tex. App.--Texarkana 1991, writ denied). Hartney argues that the trial court erred in granting Mustang's motion for summary judgment because Hartney did not do business as Hilltop Tool Rentals and was therefore not liable in the capacity in which she was sued. She fails, however, to provide any evidence to support this assertion.

Hartney's own affidavit states that Charlie Meyers, a sales representative for Mustang, asked her to sign the credit application so that her husband could purchase a tractor from Mustang. She does not deny that she signed the application "Sylvia Hartney--Hilltop Tool Rentals." Nor does she deny that she contracted for services from Mustang. Thus, rather than providing evidence that she has never done business as Hilltop Tool Rentals, the affidavit confirms that she, "Sylvia Hartney--Hilltop Tool Rentals," contracted with Mustang. Her affidavit provides no evidence that she was sued in a different capacity from that under which she contracted. Id.

The affidavit of Peter Hildreth, her husband, states that he has done business as Hilltop Tool Rentals since 1985. He also states that Charlie Meyers, a sales representative for Mustang, suggested that Hartney's credit be used for repairs, and so it was. He further states that he had the tractor in question taken in for repairs. Hartney argues that these alleged facts raise a fact issue on capacity. We disagree. These facts fail to provide any evidence that Hartney was sued in a different capacity from that under which she contracted.

Both Hartney's and Hildreth's affidavits affirm that Hartney was sued in exactly the same capacity as that under which she contracted. Accordingly, we overrule this issue on appeal.

C. Statute of Limitations

Hartney next argues that the trial court erred in granting Mustang's motion for summary judgment because Mustang's claim is precluded by the statute of limitations, an affirmative defense.

If a party opposing a summary judgment is relying upon an affirmative defense, she must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of that defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Jones v. Legal Copy, Inc., 846 S.W.2d 922, 924 (Tex. App.--Houston [1st Dist.] 1993, no writ). A nonmovant cannot defeat the grant of a motion for summary judgment by merely pleading an affirmative defense. Jones, 846 S.W2d at 924.

Here, Hartney alleges that because the tractor repairs were completed by December 16, 1997, and because the statute of limitations for Mustang's claim is four years, the statute of limitations had expired when Mustang filed suit on January 9, 2002. Hartney fails, however, to come forward with summary judgment evidence establishing when the limitations period commenced. She points us to Hildreth's affidavit, which states that the tractor repairs were completed by December 16, 1997. She also points us to Mustang's invoice, which shows two dates, December 16, 1997, and November 25, 1997. These dates of alleged repair completion, however, fail to provide us with evidence showing when the limitations period commenced. Accordingly, Hartney failed to raise a genuine issue of material fact on her statute of limitations defense. We overrule this issue on appeal.

Mustang presented a prima facie case for its sworn account claim. Because Hartney failed to present evidence that would raise a genuine issue of material fact, we hold that the trial court did not err in granting summary judgment for Mustang on its sworn account claim.

Attorney Fees

Because Mustang established its right to judgment on the sworn account as a matter of law, Mustang is entitled to attorney fees based on that claim. Tex. Civ. Prac. & Rem. Code 38.001(7) (Vernon 1997). In support of its motion for summary judgment on its attorney fees, Mustang provided an affidavit by Henry Fasthoff, its attorney. Fasthoff stated that his law firm provided legal services to Mustang, including conferences, consultation, and correspondence; searching for and identifying Hartney as the defendant; corresponding with Hartney or her attorney; drafting and transmitting demand letters; preparing, filing, and serving Mustang's original petition; and drafting Mustang's motion for summary judgment and supporting affidavits. Fasthoff further stated that these services resulted in the reasonable fee of $1,500.

Hartney argues that Fasthoff's affidavit is incompetent because it fails to satisfy the requirement that affidavits be based on personal knowledge. We disagree. Again, the personal knowledge requirement is satisfied if the affidavit sufficiently describes the relationship between the affiant and the case so that it may reasonably be assumed that the affiant has personal knowledge of the facts stated in the affidavit. Waite v. BancTexas--Houston, N. A., 792 S.W.2d 538, 540 (Tex. App.--Houston [1st Dist.] 1990, no writ). Here, Fasthoff states that he is an attorney for Mustang, that he has been a licensed attorney in the state of Texas since 1997, and that he is familiar with the average and reasonable hourly rate charged by attorneys with his experience in the Houston area. We hold that this is sufficient to show that his affidavit is based on personal knowledge.

Hartney also argues that the affidavit of Henry Fasthoff is incompetent because Fasthoff fails to "state the factors that he considered in determining that $1,500.00 would be a reasonable fee." Hartney fails, however, to explain why such analysis is required. As such, she failed to brief this issue adequately. Tex. R. App. P. 38.1(h).

Finally, Hartney argues that the affidavit of Henry Fasthoff is incompetent because Fasthoff fails to "state the time involved with any of the legal activities, either individually or in the aggregate." Again, Hartney fails to explain why such a breakdown of time is required. Accordingly, she failed to brief this issue adequately. Id.

An attorney's affidavit can sufficiently establish reasonable attorney fees on a motion for summary judgment. Am. 10-Minute Oil Change, Inc. v. Metro. Nat'l Bank, 783 S.W.2d 598, 602 (Tex. App.--Dallas 1989, no writ); Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 468 (Tex. App.--San Antonio 1988, no writ). However, the nonmovant may create a fact issue by filing an affidavit contesting the reasonableness of the movant's attorney fees. Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 938 (Tex. App.--El Paso 1994, no writ); Gen. Specialties, Inc. v. Charter Nat'l Bank, 687 S.W.2d 772, 774 (Tex. App.--Houston [14th Dist.] 1985, no writ). Here, Hartney failed to create a fact issue by filing such an affidavit.

Contrary to Hartney's assertion, Fasthoff's affidavit is competent. It presents a prima facie case for Mustang's attorney fees. Because Hartney failed to present evidence that would raise a genuine issue of material fact, we hold that the trial court did not err in granting summary judgment for Mustang on its attorney fees.

We overrule this issue on appeal.

Conclusion

Having considered and overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice