Beck v. Sears Consumer Financial Corp.
Beck v. Sears Consumer Financial Corp.
Opinion of the Court
Sears Consumer Financial Corporation filed a suit to collect on certain promissory notes that were due and owing to it from Theresa R. Beck. Theresa R. Beck answered by filing a general denial. Thereafter, the Financial Corporation filed a motion for summary judgment which was the first motion for summary judgment filed. By its first motion for summary judgment the Financial Corporation pleaded and demonstrated its entire cause of action against Theresa R. Beck.
Two days before the first motion for summary judgment was heard and granted, the Appellant herein amended her pleadings. The summary judgment was granted on February 18,1988. Appellant’s first amended answer was filed on February 16, 1988. Under summary judgment practice the trial court was not obliged or obligated to consider the amended answer because it was filed too late. TEX.R. CIV.P. 166a(c). No leave of court was sought or obtained. Id. The amended answer was filed with the County Clerk of Montgomery County; namely, Roy Harris, on February 16, 1988. Pleadings, of course, are not proof in a motion for summary judgment proceedings. An affidavit was attached to the late filed answer. No response was filed by Ms. Beck to the first motion for summary judgment filed by Sears Consumer Financial Corporation; the brief of Ms. Beck so concedes. In fact, at no time was a response filed to either one of the two motions for summary judgment filed herein by Sears Consumer Financial Corporation. Rule 166a(c) indicates convincingly that the preferred, professional practice is for the defending party to bring forth affidavits or other written responses. TEX.R.CIV.P. 166a(c).
The amended answer, which also included a counterclaim as drafted, was not a response. Furthermore, it was not worded as to comply with the rules on motion for summary judgment practice. It could not be considered as a proper counter or opposing affidavit. TEX.R. CIV.P. 166a(e).
Hence, the trial judge correctly entered a judgment in favor of Sears Consumer Financial Corporation on its first motion for summary judgment. That first summary judgment has not been appealed from; it has become final. The Appellant has not attacked it, failing to urge any point of error concerning it. The dissent so concedes. Considerably later, the financial corporation filed a second, separate motion for summary judgment relevant and germane to Ms. Theresa Beck’s counterclaim. Before filing this second motion for summary judgment, discovery proceedings were undertaken and completed. A deposition of Ms. Beck was obtained.
Again, there was no response whatsoever filed in opposition to the Financial Corporation’s second motion for summary judgment. Then a second summary judgment was entered in favor of Sears Consumers Financial Corporation f/k/a Allstate Enterprises, Inc., against Theresa R. Beck. This summary judgment was signed and entered November 10,1988. It properly decreed that all the issues raised by all the parties were disposed of and in a formal, correct paragraph ordered that Theresa R. Beck take nothing against the plaintiff, Sears Consumer Financial Corporation f/k/a Allstate Enterprises, Inc. This judgment was also filed on November 10, 1988, with Roy Harris, the County Clerk of Montgomery County. Under the applicable rules we decide that there was no summary judgment response or proper summary judgment proof proffered by Ms. Theresa R. Beck to defeat either one of the two motions for summary judgment filed by the Financial Corporation. Under this record the trial court’s judgment should be affirmed and it is affirmed.
AFFIRMED.
Dissenting Opinion
dissenting.
I respectfully dissent. The majority holds there was no summary judgment response or proper summary judgment proof offered by Ms. Beck to defeat either one of the two motions for summary judgment. This is improperly placing the burden. The majority states that “Rule 166a(c) indicates convincingly that the preferred, professional practice is for the defending party to
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