RANDALL HENDERSON & PATTY HENDERSON v. CLARENCE A. HELTON, ET AL.--Appeal from 214th District Court of Nueces County

NUMBER 13-06-068-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

RANDALL HENDERSON AND

PATTY HENDERSON, Appellants,

 
v.

CLARENCE A. HELTON, ET AL., Appellees.

On appeal from the 214th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Ya ez, Rodriguez, and Garza
Memorandum Opinion by Justice Ya ez

Appellants, Randall and Patty Henderson, appeal from the trial court's take-nothing summary judgment against them on claims of fraudulent transfer of real property. (1) We reverse and remand the cause of action to the trial court.

Background

On September 19, 2002, appellants signed an earnest money contract with appellees, Clarence and Mary Helton, for the purchase of appellees' unit at the Sea Sands Condominiums in Port Aransas, Texas. The closing of the sale took place on October 7, 2002, and title was transferred to appellants.

During a meeting of the Board of Directors of the Sea Sands Council of Owners, a special assessment of $160,000.00 was adopted. The date on which the assessment passed is in dispute. Appellants brought suit alleging that on September 28, 2002, the Board, including appellee, Clarence Helton, approved and bound the property owners of certain units of the condominium to $160,000.00 worth of improvements. Appellants further contend that this fact was not made known to them at the time of the execution of the earnest money contract or the closing of the sale transaction.

Appellees moved for summary judgment on October 19, 2005. In support of their motion, appellees attached a statement from Charles W. Borders, Jr., the Managing Agent of the Sea Sands Condominium, stating that he was present at the September 28, 2002 meeting and no assessment of any type passed at that meeting. Borders also states that he was present at the Board meeting that took place on November 16, 2002, and at that meeting, a special assessment of $160,000.00 was adopted. Furthermore, attached to Borders' statement was a copy of the minutes of the Sea Sands Council of Co-Owners Board of Directors Meeting from November 16, 2002.

A hearing on the motion for summary judgment was held and the trial court granted the motion and entered a take-nothing judgment. Appellants' motion for new trial was timely filed, and, upon hearing, was overruled. Appellants do not challenge the trial court's denial of their motion for new trial, but ask that we reverse the summary judgment. In three issues, appellants assert the trial court erred in granting summary judgment against them because (1) they received insufficient notice of the summary judgment hearing, (2) the summary judgment motion was supported by incompetent evidence, and (3) a material fact issue existed as to whether the assessment was made on September 28, 2002 or some other date.

Discussion

1. Standard of Review

We review the trial court's granting of a traditional motion for summary judgment de novo. (2) The movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. (3) In order to determine whether the trial court erred in granting the motion for summary judgment, we must consider the evidence in the light most favorable to the nonmovant, and resolve all reasonable inferences and all doubts in his favor. (4) Summary judgment for the responding party is proper if the movant disproves at least one element of each of the claimant's causes of action, or establishes each element of an affirmative defense as a matter of law. (5)

2. Incompetent Evidence

We begin by addressing appellants' second issue, wherein they challenge the competency of the document containing Borders' statement, which was used in support of the motion for summary judgment. Specifically, they contend the document is not an affidavit because it does not contain a proper jurat. In response, appellees argue that if any defect exists in the affidavit, the objection is waived because appellants did not specifically point it out to the court in writing before the judgment was signed.

The rules of civil procedure provide that, "Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal, to amend." (6) An acknowledgment that is unsworn or lacks proper authentication, however, may be challenged for the first time on appeal. (7) Such a defect is substantive, (8) and rule of civil procedure 166a(f) provides that where a substantive defect exists, rule of appellate procedure 33.1 is abrogated sub silentio, and an objection need not be made at trial to preserve error for review. (9)

In Perkins v. Crittenden, (10) the Texas Supreme Court expressly recognized the difference between a jurat and an acknowledgment. The court stated that the two are not the same and explained that an acknowledgment "does not purport to be a certification that the person acknowledging it swears to the truth of the matter set out." (11) The court further pointed out that an acknowledgment does not, at least within the spirit of rule 166a, constitute an "affidavit" so as to constitute a "sworn or certified" copy. (12)

The document containing Borders' statement contains the following affirmation:

THE STATE OF TEXAS

COUNTY OF NUECES

This instrument was acknowledged before me on July 13, 2005, by Charles W. Borders, Jr.

Notary Public, State of Texas

 

In State Bar of Texas v. Tinning, this Court held that documents containing the above recitation were not competent summary judgment evidence because they did not state that they were made under oath and did not recite that the facts stated were true. (13) This holding demonstrates the difference between a jurat and an acknowledgment. In the instant case, Borders' statement did not state that it was sworn to or made under oath; therefore, his statement was only an acknowledgment and did not constitute competent summary judgment proof. (14) Furthermore, attached to Borders' statement was a copy of the minutes of the November 16, 2002 Board of Directors' meeting. In his letter, Borders stated that the copy was true and official. Because the copy of the minutes relies on a document that we have concluded is fundamentally defective and cannot be afforded evidentiary value, the copy of the minutes cannot be considered competent summary judgment evidence. Accordingly, we sustain appellants' second issue.

3. Material Issue of Fact

In their third issue, appellants assert that there was a material issue of fact as to whether the assessment was made on September 28, 2002 or some other date. Setting aside the evidence already deemed incompetent herein, the only remaining evidence supporting appellees' motion for summary judgment includes copies of interrogatories and a copy of a portion of the written real estate contract appellants entered into with appellees. This information in no way disproves appellants' contention that the $160,000.00 assessment was adopted on September 28, 2002 without their knowledge. The remaining documents show only that appellants were present at the November 16, 2002 meeting, but do not indicate the discussions or agenda of either the September 28 or November 16 meetings. Therefore, we cannot say that there is no genuine issue of material fact in this case regarding whether the assessment passed before the sale was finalized. Thus, the trial court erred in granting the motion for summary judgment. Appellants' third issue is sustained.

Conclusion

We reverse the trial court's judgment and remand the case for further proceedings. (15)

 

LINDA REYNA YA EZ,

Justice

 

Memorandum opinion delivered and filed

this the 26th day of July, 2007.

1. See Tex. Bus. & Com. Code Ann. 27.01 (Vernon 2002).

2. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.).

3. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1985).

4. Id.

5. Id.

6. Tex. R. Civ. P. 166a(f).

7. See Laman v. Big Spring State Hosp., 970 S.W.2d 670, 672 (Tex. App.-Eastland 1998, pet. denied);State Bar of Tex. v. Tinning, 875 S.W.2d 403, 407 (Tex. App.-Corpus Christi 1994, writ denied); Kotzur v. Kelly, 791 S.W.2d 254, 256-57 (Tex. App.-Corpus Christi 1990, no writ).

8. Bauer v. Jasso, 946 S.W.2d 552, 557 (Tex. App.-Corpus Christi 1997, no pet.); Kotzur, 791 S.W.2d at 256-57.

9. Cain v. Rust Indus. Cleaning Servs., 969 S.W.2d 464, 467 (Tex. App.-Texarkana 1998, pet. denied).

10. Perkins v. Crittenden, 462 S.W.2d 565, 567 (Tex. 1970).

11. Id.

12. Id.

13. Tinning, 875 S.W.2d at 407.

14. See id.

15. Because of our rulings on issues two and three, we need not address appellants' first issue. Tex. R. App. P. 47.1.