Ned Stevenson, Jr. and Peggy Stevenson v. Texas State Bank, Successor by Merger of Community Bank and Trust, SSB

Opinion filed April 24, 2008 Opinion filed April 24, 2008 In The Eleventh Court of Appeals __________ No. 11-07-00121-CV _________ NED STEVENSON, JR. AND PEGGY STEVENSON, Appellants V. TEXAS STATE BANK, SUCCESSOR BY MERGER OF COMMUNITY BANK AND TRUST, SSB, Appellee On Appeal from the County Court at Law Jefferson County, Texas Trial Court Cause No. 106576 M E M O R A N D U M   O P I N I O N This appeal arises from a summary judgment granted in favor of appellee, Texas State Bank, successor by merger of Community Bank and Trust, SSB. We affirm. Background Facts The Bank sued appellants, Ned Stevenson, Jr. and Peggy Stevenson, on November 13, 2006, to collect an alleged unpaid deficiency balance on a retail installment contract. The Bank asserted that appellants financed the purchase of a trailer and that the Bank is the holder of the contract. The Bank further alleged that appellants had defaulted under the contract and that the Bank had properly accelerated the contract and repossessed the collateral securing the contract. The Bank sought to collect a deficiency balance of $5,618.43 plus interest that it alleged remained unpaid after the sale of the foreclosed collateral. Appellants filed a pro se answer to the Bank=s petition wherein they alleged that the Bank=s allegations were not true and that A[w]e made all monthly payments.@ The Bank subsequently filed a motion for summary judgment wherein it re-alleged the contentions asserted in its petition. The Bank supported its summary judgment motion with an affidavit from a Bank officer that supported the Bank=s allegations. Appellants did not file a response to the Bank=s motion for summary judgment. Appellants appeared at the hearing on the motion for summary judgment and attempted to argue that they had paid the debt in full. The trial court advised appellants at the hearing that their failure to file a response to the motion for summary judgment prevented the trial court from considering their payment contention. The trial court subsequently granted the Bank=s motion for summary judgment in a written order entered on March 12, 2007. Appellants filed a pro se notice of appeal on April 2, 2007. They re-alleged their payment contention in the notice of appeal and attached copies of checks and other banking records that they asserted supported their contention. Appellants subsequently wrote a letter to this court complaining of the trial court=s judgment.[1] This letter recites appellants= version of the facts in support of their payment contention. Appellants also attached copies of checks and banking records to this letter. In the interest of justice, we have accepted appellants= letter as their pro se appellants= brief although it does not cite any legal authorities in support of their contentions. If 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). Accordingly, we conclude that appellants have asserted a single issue in this appeal B that the trial court erred in granting summary judgment in favor of the Bank because its motion and supporting evidence were legally insufficient. Analysis The Bank supported its summary judgment allegations with an affidavit of a Bank officer. The officer stated in the affidavit that she had personal knowledge of the matters stated therein and they were true and correct. On its face, the Bank=s motion for summary judgment and its supporting summary judgment evidence establish that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). Appellants sought to defeat the summary judgment by asserting the affirmative defense of payment. When a party opposing a summary judgment relies on an affirmative defense, he 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). He must present his summary judgment evidence in a written response to the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). It is not the trial court=s duty to sift through the summary judgment record and find issues that could have been raised by the nonmovant but were not. McCord v. Mem=l Med. Ctr. Hosp., 750 S.W.2d 362, 364 (Tex. App.CCorpus Christi 1988, no writ). Accordingly, appellants= allegation of payment in their original answer was insufficient to defeat summary judgment because it was not filed in response to the motion for summary judgment and it was not supported with evidence. Furthermore, appellants= allegations and possible evidence of payment filed with their notice of appeal, and later on appeal, were insufficient to defeat summary judgment because, without leave of court, a response to a motion for summary judgment must be filed at least seven days prior to the hearing on the motion for summary judgment. See Rule 166a(c). Appellants= sole issue is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE April 24, 2008 Panel consists of: Wright, C.J., McCall, J., and Strange, J. [1]The Texas Supreme Court transferred this appeal from the Ninth Court of Appeals to this court in a docket equalization order.