Raghbir Sandhu v. Pinglia Investments of Texas, LLC and Sumer Pinglia

Affirmed and Memorandum Opinion filed June 25, 2009 Affirmed and Memorandum Opinion filed June 25, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00184-CV ____________ RAGHBIR SANDHU, Appellant V. PINGLIA INVESTMENTS OF TEXAS, L.L.C. AND SUMER PINGLIA, Appellees On Appeal from the 164th District Court Harris County, Texas Trial Court Cause No. 2006-64473 M E M O R A N D U M O P I N I O N Appellant, Raghbir Sandhu, appeals a summary judgment in favor of appellees, Pinglia Investments of Texas, L.L.C. and Sumer Pinglia, in their suit to recover on a promissory note. In four issues, Sandhu contends (1) the trial court erred by granting summary judgment after trial began, (2) there was a genuine issue of material fact on whether Sandhu received the loan proceeds at issue, (3) there was no competent summary-judgment evidence regarding the amount of damages, and (4) Sandhu raised a fact issue on each element of his affirmative defenses. We affirm. I. Background In 2005, appellant, Raghbir Sandhu, was planning a move from California to Texas. He wished to purchase a piece of property in Texas, and friends recommended he speak with Kuldip Singh. According to Sandhu, Singh told him he was a real-estate broker.[1] Singh showed Sandhu the Woodforest North Plaza Shopping Center and eventually arranged a meeting between Sandhu and appellee Sumer Pinglia. Appellee, Pinglia Investments of Texas, L.L.C. (APinglia Investments@), was selling the property; Sumer Pinglia is the principal of Pinglia Investments. The property contained rented retail space as well as a washateria, which was owned and operated by Pinglia Investments. When Sandhu could not secure a loan to cover the purchase price, he asked Pinglia to loan him the remaining amount of money. On August 29, 2005, Sandhu executed a Subordinate Real Estate Lien Note in which he was listed as the maker and Pinglia Investments as the payee. The original principal amount of the loan was $200,000; however, another version of the document shows that number crossed out and $131,000 written in with the initials of the parties next to the change. During his deposition, Sandhu admitted the parties made this change. According to the terms of the note, the scheduled maturity date was August 29, 2006, twelve months from the date of the note. In October 2006, Pinglia and Pinglia Investments sued Sandhu for breach of the promissory note, claiming that Sandhu did not make any payments. Sandhu filed a verified original answer, denying the allegations, contending conditions precedent to the filing of suit had not been satisfied, claiming the suit was barred by the doctrine of release, and asserting the affirmative defenses of estoppel, waiver, statute of frauds, fraud, and failure of consideration. In October 2007, Pinglia Investments moved for partial summary judgment. Sandhu filed a response followed by a supplemental response. The trial court considered the motion for partial summary judgment after the jury had been selected. At the end of the hearing, the trial court orally granted the motion. Subsequently, Pinglia Investments filed a proposed final judgment and motion for entry of final judgment. Sandhu filed a motion for reconsideration of the motion for partial summary judgment, stating that, when the trial court heard the motion, it was unclear whether the supplemental response was timely filed. Sandhu submitted a certified copy of his supplemental response and requested the court to reconsider the motion for partial summary judgment. Sandhu also filed an objection and exception to the proposed judgment. The trial court denied the motion for reconsideration and overruled the objection and exception to final judgment. On January 25, 2008, the trial court signed a final judgment, awarding Pinglia Investments $199,853.28 in damages, representing the principal, interest, and penalties owed by Sandhu under the promissory note. II. Standard of Review A party moving for traditional summary judgment must establish that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215B16 (Tex. 2003). In particular, a plaintiff moving for summary judgment must conclusively prove all essential elements of its claim. Cullins v. Foster, 171 S.W.3d 521, 530 (Tex. App.CHouston [14th Dist.] 2005, pet. denied) (citing MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)). If the movant facially establishes its right to summary judgment, the burden shifts to the non-movant to raise a genuine issue of material fact sufficient to defeat summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Lundstrom v. United Servs. Auto. Ass=n‑CIC, 192 S.W.3d 78, 84 (Tex. App.CHouston [14th Dist.] 2006, pet. denied). If, as here, the non-movant relies on an affirmative defense to oppose the summary- judgment motion, he must provide sufficient summary-judgment evidence to create a fact issue on each element of the defense. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Anglo‑Dutch Petroleum Int=l, Inc. v. Haskell, 193 S.W.3d 87, 95 (Tex. App.CHouston [1st Dist.] 2006, pet. denied). The non-movant is not required to prove the affirmative defense as a matter of law; raising a material fact issue is sufficient to defeat summary judgment. See Brownlee, 665 S.W.2d at 112; Anglo‑Dutch Petroleum, 193 S.W.3d at 95. We review a summary judgment de novo. Knott, 128 S.W.3d at 215. We take all evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Id. III. Analysis A. Summary Judgment After Trial Began In his first issue, Sandhu asserts the trial court erred in granting the motion for partial summary judgment after trial had commenced. Furthermore, Sandhu contends the grant of the motion for summary judgment deprived him of his fundamental right of trial by jury. The reporter=s record is an excerpt from the proceedings and does not indicate at what point the trial court conducted the hearing on the motion for partial summary judgment, other than it was held outside the presence of the jury. According to the docket sheet entry, it was after the jury had been seated and sworn. The Texas Rules of Civil Procedure require only that a certain amount of notice be provided to the non-movant before a motion for summary judgment is heard. See Tex. R. Civ. P. 166a(c) (AExcept on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.@). Sandhu cites, and we find, no authority prohibiting a trial court from considering a motion for summary judgment after trial has begun as long as the non-movant received the requisite notice. In this case, it is uncontested that proper notice was given under the rules.[2] Accordingly, the trial court did not err by hearing the motion for summary judgment after trial began. Nor did the trial court deprive Sandhu of his right to a trial by jury when it granted the motion for summary judgment.[3] The Texas Constitution provides, AThe right of trial by jury shall remain inviolate.@ Tex. Const. art. I, ' 15. The right to a jury trial in civil cases is not absolute; rather, it is regulated by rules specifying its availability. See Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968). When a party cannot show a material fact issue, there is nothing to submit to a jury, and the granting of summary judgment to the opposing party does not violate the constitutional right to a jury trial. Querner Truck Lines, Inc. v. Alta Verde Indus., Inc., 747 S.W.2d 464, 469 (Tex. App.CSan Antonio 1988, no writ); Carrabba v. Employers Cas. Co., 742 S.W.2d 709, 717 (Tex. App.CHouston [14th Dist.] 1987, no writ). In issues two through four, we hold that Sandhu did not raise a material fact issue to preclude summary judgment. Therefore, the trial court=s granting of the motion for partial summary judgment did not violate his constitutional right to a jury trial. Accordingly, we overrule Sandhu=s first issue. B. Whether Sandhu Received Loan Proceeds In his second issue, Sandhu contends the trial court erred in granting summary judgment because there were disputed material facts regarding the promissory note. Specifically, Sandhu argues (1) his deposition testimony reflected that he never received the $131,000, (2) the Notice of Final Agreement referred to $200,000 as Aextend credit or make financial accommodations,@ and (3) the Commercial ContractCImproved Property stated that Pinglia Investments was to pay $131,000 and $69,000 to the co-operating broker and consultant, respectively. In the motion for partial summary judgment, Pinglia Investments claimed it loaned Sandhu $131,000 under the note and Sandhu never made payments. Pinglia Investments stated it was entitled to recover the principal, $131,000, plus interest and delinquency charges as a result. Pinglia Investments also argued that Sandhu=s defenses of breach of the commercial contract and fraudulent inducement failed as a matter of law. Attached to the motion for partial summary judgment was (1) a copy of the promissory note, (2) an affidavit from Sumer Pinglia, (3) excerpts from Sandhu=s deposition, (4) a copy of Sandhu=s supplemental responses to interrogatories, (5) a copy of the notice of final agreement, and (6) a copy of the commercial contract B improved property. In Sandhu=s response to Pinglia Investments=s motion for partial summary judgment, Sandhu argued for a continuance and objected to the motion because it was allegedly filed in violation of the trial court=s docket control order. In his supplemental response, Sandhu objected to Sumer Pinglia=s affidavit, contending it was conclusory, and other exhibits for lack of proper authentication. He alleged the affirmative defense of fraud and contended summary judgment was not proper because exhibit C referred to an agreement for $131,000, exhibit E referred to an agreement for $200,000, and exhibit F referred to an attached list of items required of Pinglia Investments but no list was attached.[4] For the first time on appeal, Sandhu argues he never actually received the $131,000. The non-movant must expressly present to the trial court, by written answer or response, any issues defeating the movant=s entitlement to summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Tello v. Bank One, N.A., 218 S.W.3d 109, 118 (Tex. App.CHouston [14th Dist.] 2007, no pet.). AIssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.@ Tex. R. Civ. P. 166a(c). However, a motion for traditional summary judgment must stand or fall on its own merits, and the non-movant=s failure to answer or respond cannot supply by default the summary-judgment proof necessary to establish the movant=s right. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). Even if a non-movant fails to present any issues in its response or answer, the movant=s right is not established by default; the movant must still establish its entitlement to summary judgment. Id. AThe effect of such a failure is that the non-movant is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant.@ Id. To prove its promissory-note claim, Pinglia Investments had to establish (1) there was a note, (2) Pinglia Investments was the legal owner and holder of the note, (3) Sandhu was the maker of the note, and (4) a certain balance was due and owing on the note. Blankenship v. Robins, 899 S.W.2d 236, 238 (Tex. App.CHouston [14th Dist.] 1994, no writ). To prove its claim, Pinglia Investments presented a copy of the note and an affidavit from Sumer Pinglia, stating that the copy of the note was true and correct. A photocopy 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 to establish the existence of the note. Id. The payee establishes ownership of the note when he attests in an affidavit that he is the owner of the note, attaches a sworn Atrue and correct@ copy of the original note to his affidavit, the note shows on its face it was issued to him, and there is no summary-judgment proof showing the note has ever been pledged, assigned, transferred, or conveyed. Id. (citing Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983)). When the defendant does not deny the genuineness of his signature on the note, he is established as the maker. Id. (citing Groschke v. Gabriel, 824 S.W.2d 607, 610 (Tex. App.CHouston [1st Dist.] 1991, writ denied)). Here, Sumer Pinglia, on behalf of Pinglia Investments, stated in the affidavit that Pinglia Investments=s ownership of the note had not been assigned or transferred, Pinglia Investments remained the holder of the note, and as of October 5, 2007, Sandhu owed Pinglia Investments $199,853.28 under the note, which included past due principal, interest, and contractual delinquency charges. The face of the note listed Sandhu as the maker and contained Sandhu=s signature, and Sandhu did not deny the genuineness of his signature. Sandhu attempts to defeat summary judgment through his appellate contention that his deposition testimony raised a fact issue on whether he received the money. Likewise, to the extent Sandhu is arguing Pinglia Investments was to Aextend credit or make financial accommodations@ and did not do so or that Pinglia Investments was to pay $131,000 and $69,000 to the co-operating broker and consultant and it was not Sandhu=s obligation to do so, Sandhu was required to expressly present these issues to the trial court in response to the motion for summary judgment. See Tex. R. Civ. P. 166a(c); Tello, 218 S.W.3d at 119. Because he did not do so, we may not consider these issues as grounds for reversal. Tello, 218 S.W.3d at 119. Therefore, we overrule Sandhu=s second issue. C. Amount of Damages In his third issue, Sandhu contends the last sentence of Sumer Pinglia=s affidavit was conclusory. In the last sentence, Pinglia stated, AAs of October 5, 2007, Raghbir Sandhu owes Pinglia Investments $199,853.28 under the Subordinate Real Estate Lien Note, which includes past due principal, interest, and contractual delinquency charges.@ Other than claiming for the first time on appeal that no money was paid to him, Sandhu has not asserted the amount in the affidavit was incorrect. Rather, he contends the last sentence of the affidavit was conclusory because there were no supporting facts and no evidence as to how the amount was calculated. Pinglia Investments argues Sandhu did not obtain a ruling on his objection to this summary-judgment evidence and, therefore, his third issue was not preserved for appeal. While at least one court has held this same argument is not preserved when the appellant fails to object and obtain a ruling, other courts, including this one, have stated that an objection an affidavit is conclusory challenges the substance of the affidavit and may be raised for the first time on appeal. Compare Thompson v. Chrysler First Business Credit Corp., 840 S.W.2d 25, 28-29 (Tex. App.CDallas 1992, no writ) with Griffin v. Methodist Hosp., 948 S.W.2d 72, 76 n.2 (Tex. App.CHouston [14th Dist.] 1997, no writ). We need not decide whether Sandhu preserved error because we hold the affidavit was not conclusory. An affidavit stating the balance due on a promissory note can be specific and sufficient on its face to establish a fact that could be proven at trial so summary judgment based in part on the affidavit is proper. See Ecurie Cerveza Racing Team, Inc. v. Texas Commerce Bank-Southeast, 633 S.W.2d 574, 575 (Tex. App.CHouston [14th Dist.] 1982, no writ). Here, the affiant stated the specific amount due on the note as of a certain date and represented that the amount included principal, interest, and contractual delinquency charges. The statement in the affidavit was not conclusory. See Hudspeth v. Investor Collection Servs. Ltd. Partnership, 985 S.W.2d 477, 479 (Tex. App.CSan Antonio 1998, no pet.) (holding statement not conclusory when affidavit and law firm collection letter fixed liability on a note at certain amount without providing detailed proof of calculations); 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d n.r.e.) (holding statement not conclusory when affidavit recited principal balances and interest due). If there were any question as to the break down of interest and delinquency charges, the note itself, a copy of which was attached as summary-judgment evidence, set forth the principal amount, interest to be paid at 8 percent for the first six months and 12 percent for the second six months, and the penalty on matured, unpaid amounts, namely 20 percent of the delinquent installment amount and interest accruing on past due amounts at a rate of 18 percent per annum from the date on which payment is due until payment is received. Moreover, Sandhu has not presented any controverting evidence raising a fact issue as to Pinglia Investments=s method of computation and the accuracy of its figures. See 8920 Corp., 722 S.W.2d at 720; Sharpe Lomas & Nettleton Finan. Corp., 601 S.W.2d 55, 57 (Tex. App.CDallas 1980, writ ref=d n.r.e.) (stating it was defendant=s burden to point out any inaccuracy in computation or reasons for inability to do so). Accordingly, we overrule appellant=s third issue. D. Affirmative Defenses In his fourth issue, Sandhu contends he pleaded and raised a fact issue on each element of the affirmative defenses of failure of consideration, fraud, and estoppel. However, Sandhu did not raise failure of consideration or estoppel in either his response or supplemental response to the motion for partial summary judgment. A non-movant is required to expressly present to the trial court any issues defeating the movant=s entitlement to summary judgment. Tello, 218 S.W.3d at 118. Issues are Aexpressly@ presented in accordance with Rule 166a(c) when the written answer or response to the motion for summary judgment fairly apprises the movant and the trial court of the issues the non-movant contends should defeat the motion. Id. at 119. In determining which issues were expressly presented to the trial court, a reviewing court may not rely on the appellate briefs or the summary-judgment evidence.[5] Dubose v. Worker=s Med., P.A., 117 S.W.3d 916, 920 (Tex. App.CHouston [14th Dist.] 2003, no pet.). Any issues not expressly presented to the trial court in a written response shall not be considered as grounds for reversal. Id. Therefore, Sandhu has waived these issues on appeal. Id. With regard to fraud, Sandhu=s responses were minimal. Sandhu generally alleged the affirmative defense of fraud, but failed to make any argument that summary judgment should not be granted based on his fraud claim.[6] Instead, Sandhu referred to his affidavit attached as summary-judgment evidence. However, any issues a non-movant contends avoid summary judgment must be expressed in a written response to the motion and are not presented by mere reference to summary-judgment evidence. Mercier v. Southwestern Bell Yellow Pages, Inc., 214 S.W.3d 770, 774B75 (Tex. App.CCorpus Christi 2007, no pet.) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993)). Because Sandhu failed to present and specify the elements of his fraud claim on which he alleged fact issues, he has not presented grounds for reversal. Even if we considered Sandhu=s fraud claim, he did not raise a fact issue as to each element of the claim. To prove fraud, a party must establish (1) a material representation was made, (2) the representation was false, (3) when the speaker made the representation, he knew it was false or made it recklessly without knowledge of the truth and as a positive assertion, (4) the speaker made it with the intention that it should be acted upon by the party, (5) the party acted in reliance upon it, and (6) the party thereby suffered injury. Lundy v. Masson, 260 S.W.3d 482, 492 (Tex. App.CHouston [14th Dist.] 2008, pet. denied). On appeal, Sandhu=s fraud argument consists of a single sentence: AAppellant proved and/or raised a fact issue on each element of his fraud defense through his affidavit and deposition testimony regarding the various material false representations of Appellees regarding repairs, over statement [sic] of the income of the Washateria, and overstatement of the occupancy, and rent, that caused him injury.@ Sandhu points the court to his affidavit and excerpts from his deposition testimony. In the affidavit, Sandhu alleged that Sumer Pinglia said to trust him on the income from the washateria located in the shopping center, Sandhu relied on the representation in making the purchase, and the washateria has not produced the income represented by Pinglia. However, Sandhu did not present evidence that Pinglia knew the representation was false or made it recklessly without knowledge of the truth or with the intent that it be relied upon by Sandhu. Also in his affidavit as well as in the cited deposition testimony, Sandhu claimed that Pinglia agreed to make certain repairs and improvements to the property and has not done so. AA promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made.@ Formosa Plastics Corp. USA v. Presidio Eng=rs and Contractors, Inc., 960 S.W.2d 41, 47B48 (Tex. 1998). The party alleging fraud must present evidence the misrepresentation was made with intent to deceive and with no intent to perform. Id. at 48. Sandhu did not present evidence that Pinglia made a misrepresentation with the intent to deceive and with no intent to perform the repairs and improvements. Finally, in his affidavit, Sandhu stated that Pinglia gave him leases for the shopping center and Aone of the leases was fake, another lease was for an unoccupied space and another has an incorrect amount of rent.@ Again, Sandhu did not present evidence that Pinglia knew the leases were as Sandhu alleged or that Pinglia recklessly gave him the leases without knowledge of the truth. Sandhu also did not present evidence that Pinglia gave him the leases with intent Sandhu rely on the information when purchasing the shopping center. In sum, Sandhu failed to present evidence raising a fact issue on each element of his affirmative defense of fraud. We overrule his fourth issue. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. [1] Appellees also sued Kuldip Singh, but those claims are not at issue in this appeal. [2] In his original response to the motion for partial summary judgment, Sandhu asserted he did not receive 21 days= notice of the hearing initially set on the motion because he received the motion on October 9, 2007 and the hearing was set for October 29, 2007. The court addressed this issue in a hearing and granted Sandhu more time to respond. The hearing on the motion was then held on November 13, 2007. [3] Appellant did not object to the fact that the trial court was granting summary judgment after the jury had been seated and sworn. Appellant contends he was not required to object because this action was fundamental error that can be raised for the first time on appeal. We need not decide if appellant was required to object because we conclude the trial court did not err by granting summary judgment after trial began. [4] During the hearing on the motion for partial summary judgment and in Sandhu=s motion for reconsideration, there was a question about whether the supplemental response was timely filed because the file stamp was not clear. We need not decide whether the trial court considered Sandhu=s supplemental response because he did not defeat summary judgment even if his supplemental response were considered. [5] In addition, the requirement that issues be expressly presented by written answer or response refers to an answer or response to the motion for summary judgment, not to the pleadings. Tello, 218 S.W.3d at 119 n.13. [6] In his response to the motion for partial summary judgment, Sandhu stated, ADefendant has meritorious affirmative defenses of fraud, among other things.@ In his supplemental response to the motion for partial summary judgment, Sandhu stated, AThe court should deny Plaintiff=s Motion for summary judgment because Defendant has plead [sic] the affirmative defense of fraud and by summary judgment evidence attached to this response, Defendant has created a fact issue on each element of his affirmative defense.@