Frank Kamasz and Wife, Irene Kamasz v. Lone Star Bank--Appeal from 333rd District Court of Harris County

Opinion filed December 1, 2005

In The

Eleventh Court of Appeals

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   No. 11-03-00334-CV

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   FRANK KAMASZ AND WIFE, IRENE KAMASZ, Appellants

V.

LONE STAR BANK, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2001-45007

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

Frank Kamasz and his wife, Irene, appeal from the trial court=s order granting Lone Star Bank=s motion for summary judgment. We affirm.

Kamasz met Jack Sheffield in 1970 when Sheffield was a loan officer at Greens Bayou Bank. Kamasz began doing his banking business with Sheffield. Sheffield changed employment and moved to several different banks; and each time, Kamasz transferred his accounts to Sheffield=s current place of employment. Kamasz eventually moved his accounts to Lone Star Bank (the Bank) when Sheffield became employed there.

This case involves a dispute over a $51,000.00 note between Kamasz and the Bank entered into in February 1998. The note was signed: ABy Kenneth R. Judice Pursuant to a Power of Attorney.@ The note was secured by a deed of trust upon commercial property owned by Kamasz. The Bank sent Kamasz a notice in March 2001 that the note was in default and that, if he did not cure the default, the Bank intended to foreclose on the deed of trust securing the note. Subsequently, a foreclosure sale was set for October 2, 2001.

On August 31, 2001, Kamasz filed his original petition alleging breach of fiduciary duty, fraud, and money had and received. Kamasz also sought a temporary injunction preventing the foreclosure sale of the commercial property. A hearing was held on the temporary injunction on October 1, 2001. The trial court denied the temporary injunction. The foreclosure sale was held on October 2, 2001, and the Bank purchased the property at the foreclosure sale for $10,000.00.

The Bank filed its motion for summary judgment on January 31, 2002, claiming that Kamasz=s cause of action was moot because any dispute concerning the balance due on the note became moot when the property securing the note was sold. On March 8, 2002, Kamasz filed a supplemental petition seeking a rescission of the $51,000.00 note and the deed of trust and asking that the foreclosure be declared void. Kamasz further sought a declaratory judgment to determine the validity of the $51,000.00 note and deed of trust. The trial court granted the Bank=s motion for summary judgment on December 6, 2002. However, on February 14, 2003, the trial court granted Kamasz=s motion for new trial and set aside its order granting the Bank=s motion for summary judgment. The trial court noted on its order that the Bank would submit a Arevised partial summary judgment order.@ The Bank then filed a motion for final summary judgment and a motion for Ano evidence summary judgment.@ The trial court granted the Bank=s motion for summary judgment, and Kamasz appeals.

In his first issue on appeal, Kamasz argues that the trial court erred in granting the Bank=s motion for summary judgment. The rules for reviewing a traditional summary judgment are well established. 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. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Every reasonable inference is indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420 (Tex. 1997); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 49 (Tex.1985). Summary judgment is proper if the defendant disproves at least one element of each of the plaintiff=s claims or establishes all elements of an affirmative defense to each claim. American Tobacco Company, Inc. v. Grinnell, supra; Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476 77 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 310 11 (Tex.1984).

Kamasz specifically argues on appeal that the trial court relied on evidence that was not properly before the court pursuant to TEX.R.CIV.P. 166a(c), that there were material facts in dispute, that the Bank did not negate at least one essential element of each of his causes of action, and that the Bank did not address each cause of action.

In his original petition, Kamasz brought three causes of action. In each cause, he sought a detailed accounting of the amount of money, if any, he owed the bank; and if he had overpaid the bank on his loans, he sought the excess money paid. As we have stated, Kamasz also sought a temporary injunction preventing the sale of his commercial property securing the loan with the Bank. The Bank presented summary judgment evidence that Kamasz had a $51,000.00 note with the Bank secured by commercial property. The Bank also submitted as summary judgment evidence an exhibit offered by Kamasz at the hearing on the temporary injunction calculating the amount owed on the $51,000.00 note. The summary judgment evidence established that Kamasz owed at least $16,784.22 on the note. The property securing the note was foreclosed upon and sold for $10,000.00.

The $51,000.00 note made the subject of Kamasz=s claims for rescission of declaratory judgment was signed by Kenneth R. Judice pursuant to a power of attorney. Judice was an attorney who had previously represented Kamasz on another matter. Kamasz contends that Judice breached a fiduciary duty owed to Kamasz by acting under a power of attorney not intended for his use. Kamasz further contends that Judice owed a fiduciary duty to both Kamasz and the Bank. The Bank included in its summary judgment evidence transcripts from the hearing on Kamasz=s motion for temporary injunction. The transcripts show that Kamasz acknowledged having a $51,000.00 note with the Bank secured by the commercial property. Kamasz further acknowledged that he trusted Sheffield in executing the $51,000.00 note. Sheffield=s signature does not appear on the note or the deed of trust securing the property. In his testimony at the temporary injunction hearing, Kamasz did not dispute the validity of the $51,000.00 note. The trial court determined that the note was valid and that the commercial property securing the note was foreclosed upon and sold. In its order granting the Bank=s motion for summary judgment, the trial court found that Kamasz=s cause of action was moot. After reviewing the summary judgment evidence, we find that the summary judgment evidence properly before the court supported the entry of the summary judgment.

Kamasz also asserts that the Bank failed to point out the elements to which there is no evidence. See TEX.R.CIV.P. 166a(i). The trial court granted the Bank=s motion for summary judgment without reference to whether it was granted pursuant to the provisions of TEX.R.CIV.P. 166a(b) or 166a(i). We have not based our decision upon the Ano-evidence@ provision of Rule 166a(i) and do not need to address this issue on appeal. Kamasz=s first issue on appeal is overruled.

In his second issue on appeal, Kamasz argues that the trial court erred in denying his motion for continuance. We review the trial court=s denial of a motion for continuance of a summary judgment hearing under an abuse of discretion standard. Tenneco Inc. v. Enterprise Products Company, 925 S.W.2d 640, 647 (Tex.1996); Villegas v. Carter, 711 S.W.2d 624 (Tex.1986). A trial court abuses its discretion in this context only if the record clearly demonstrates that the denial was arbitrary and unreasonable. Finlan v. Dallas Independent School District, 90 S.W.3d 395, 412 (Tex.App. Eastland 2002, pet=n den=d).

The Bank filed its motion for final summary judgment on April 17, 2003. The cause was set for hearing on May 30, 2003. On April 4, 2003, Kamasz sent a letter to his attorney terminating the attorney=s representation in the matter. The attorney filed a motion to withdraw with the trial court on April 29, 2003. In his motion, the attorney set forth the date of the hearing on the Bank=s motion for final summary judgment and the date the response to the motion was due. The trial court granted the motion to withdraw on May 19, 2003.

The trial court had heard evidence in the matter, had granted the Bank=s first motion for summary judgment, and had granted Kamasz=s motion for new trial. Kamasz=s attorney withdrew at Kamasz=s request. Kamasz has not shown that the trial court abused its discretion in denying his motion for continuance. Kamasz=s second issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

December 1, 2005

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Wright, C.J., and McCall, J.

W. G. Arnot, III, retired effective July 31, 2005 and is, therefore, not participating.