Jean Neozi Obasi v. University of Oklahoma Health Science Center--Appeal from County Court at Law No 3 of Bexar County

MEMORANDUM OPINION
No. 04-04-00016-CV
Jean Neosi OBASI,
Appellant
v.
UNIVERSITY OF OKLAHOMA HEALTH SCIENCE CENTER,
Appellee
From the County Court at Law No. 3, Bexar County, Texas
Trial Court No. 276561
Honorable H. Paul Canales, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 27, 2004

AFFIRMED

Jean Neozi Obasi appeals the trial court's order granting summary judgment in favor of the University of Oklahoma Health Science Center ("University"). We affirm the trial court's order.

Background

In August of 2002, the University filed suit against Obasi for nonpayment of a promissory note. The University claimed that Obasi executed a "Nursing Student Loan Program Promissory Note" in favor of the University on or about September 25, 1992. A promissory note dated September 25, 1992 and a sworn account summary of the obligation owed to the University by Obasi totaling $12,605.78 were attached to the University's petition. On October 23, 2003, the University moved for summary judgment on traditional evidence grounds. (1) The motion stated that Obasi defaulted on the payment of the student loan by failing to make required payments. Obasi responded by objecting to the University's summary judgment proof, namely the affidavit of Sherry Glover, Bursar of the University. The trial court overruled Obasi's objections and granted summary judgment in favor of the University.

Standard of Review

The standard of review on appeal of a traditional summary judgment is whether the movant carried the burden of showing that there is no genuine issue of material fact and that the judgment should be granted as a matter of law. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002); American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We resolve every doubt and indulge every reasonable inference in the nonmovant's favor. Tex. Commerce Bank, 96 S.W.3d at 252. All evidence favorable to the nonmovant will be taken as true. Id.

Discussion

In her first point of error, Obasi contends that the trial court erred in overruling Obasi's objection to the University's summary judgment proof. Obasi objected to the affidavit of Sherry Glover, Bursar of the University. Obasi states that Ms. Glover's affidavit consisted of a large number of conclusory statements, including:

[Obasi] defaulted upon payment of the student loan by failing to make payments as required by the student loan. All necessary steps have been taken to mature the student loan. [Obasi] has not made the demanded payment. After all credits and offsets have been allowed, the sum due under the loan is $12,605.78.

Courts do not usually require the movant to file detailed proof reflecting the calculations of the balance due on a note in order to support a motion for summary judgment. Timothy Patton, Summary Judgments in Texas 9.06[2][e] (3rd ed. 2002). Generally, an affidavit, based on personal knowledge, which identifies an attached copy of the actual note as being true and correct, the amount of the principal and interest owing on the date of default, and the interest rate accruing from the date of default is considered sufficient proof of the amount owing on a note. Id.; Stucki v. Noble, 963 S.W.2d 776, 782 (Tex. App.-San Antonio 1998, pet. denied). As Bursar of the University, Ms. Glover's affidavit was based on personal knowledge. The trial court did not err in overruling Obasi's objections. Obasi's first point is overruled.

In her second point of error, Obasi asserts that the trial court erred in granting the motion for summary judgment on the grounds that the University failed to prove its case as a matter of law.

Obasi argues that the University failed to establish all elements of its cause of action.

To collect on a promissory note, a plaintiff must establish (1) the existence of the note in question, (2) the defendant signed the note, (3) the plaintiff is the owner and holder of the note, and (4) a certain balance is due and owing on the note. See Geiselman v. Kramer Financial Group, Inc., 965 S.W.2d 532, 536 (Tex. App.-Houston [14th Dist.] 1997, no writ). If no genuine issue of material fact exists as to any of these elements, plaintiff is entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166(a)(c).

Here, the University established all four elements as a matter of law. First, it established the existence of the note by attaching a copy of the note and copies of signed Statements of Rights and Responsibilities as exhibits to Glover's affidavit that was attached to the motion. See Blakenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.-Houston [14th Dist.] 1994, no writ) (noting that a copy of a promissory note, attached to an affidavit in which the affiant swears that the photocopy is a true and correct copy of the original note, is proper summary judgment proof establishing the existence of the note). Second, the University established that Obasi signed the note because Obasi failed to deny the genuineness of her signatures on the note and on the Statements of Rights and Responsibilities in her answer; therefore, her signatures were deemed admitted. See also Tex. Bus. & Com. Code Ann. 3.308(a) (Vernon 2002) ("In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument [is] admitted unless specifically denied in the pleadings."). Third, the University established ownership and possession of the note by offering summary judgment proof that the note was payable to the University. Finally, the University established a balance due and owing on the note by: (A) the Account Summary dated April 11, 2002, which was attached to the University's Original Petition and sworn to by Sherry Glover, which lists the principal as $6,000, plus $1,850.97 in interest, minus total payments of $359.70, plus collection costs of $5,042.31, plus late charges of $72.20, for a total due of $12,605.78; and (B) Glover's affidavit stating: (1) the note has a principal sum of $6,000; (2) after all offsets and credits have been allowed, the sum due under the Student Loan is $12,605.78, plus interest thereon at the rate of five percent annually from June 20, 2002, until paid.

In response to the University's motion for summary judgment, Obasi asserted the affirmative defense of payment. When a party opposing a summary judgment relies on an affirmative defense, she must come forward with summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Rule 95 of the Texas Rules of Civil Procedure states, "When a defendant shall desire to prove payment, he shall file with his plea an account stating distinctly the nature of such payment, and the several items thereof; failing to do so, he shall not be allowed to prove the same, unless it be so plainly and particularly described in the plea as to give the plaintiff full notice of the character thereof." Tex. R. Civ. P. 95 (Vernon 2004). When payment is properly alleged, the defendant has the burden to prove payment. See Southwestern Fire & Cas. Co. v. Larue, 367 S.W.2d 162, 163 (Tex. 1963). "It is well settled that payment, credit, or offset is an affirmative defense, and, as such, the burden was upon [Obasi] to produce competent summary judgment proof sufficient to raise a fact question regarding whether offsets or payments had been credited to the note." Stucki v. Noble, 963 S.W.2d at 781 (citing Life Ins. Co. of Virginia v. Gar-Dal, Inc., 570 S.W.2d 378, 381 (Tex. 1978)). "Competent summary judgment proof must consist of more than conclusory allegations of failure to apply offsets, payments, or credits." Keenan v. Gibraltar Sav. Ass'n., 754 S.W.2d 392, 394 (Tex. App.-Houston [14th Dist.] 1988, no writ); Gar-Dal, Inc., 570 S.W.2d at 381-82.

Accordingly, the University raised rebuttable presumptions of the amount due under the note, yet Obasi presented no summary judgment evidence to counter these presumptions. Obasi failed to file an account stating the nature of her payments. Obasi did not submit her own affidavit testifying that she made more or greater payments toward the note than the University contends she made. We therefore conclude that the University established as a matter of law the sum due and owing on the "Nursing Student Loan Program Promissory Note." Obasi's second point of error is overruled.

Conclusion

The trial court's judgment is affirmed.

Alma L. L pez, Chief Justice

1. The University had previously sought summary judgment on March 10, 2003. The motion was granted on April 24, 2003, but Obasi then filed a motion for new trial which was granted on June 11, 2003.