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NANCY LYNN BIRRAN

AND DALE BIRRAN, Appellants,

GEORGE R. NEELY AND

LAW OFFICES OF GEORGE

R. NEELY, P.C., Appellees.

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On appeal from the 215th District Court of Harris County, Texas.

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Opinion

Appellants, Nancy and Dale Birran, challenge a summary judgment granted in favor of appellees, George R. Neely and the Law Offices of George R. Neely, P.C. (Neely). We reverse and remand.

Background

The Birrans hired Neely to represent them in a lawsuit filed by Don Wetzel & Associates, P.C., and Don A. Wetzel, individually ("Wetzel"). This lawsuit (the "Wetzel suit") was ultimately settled in January of 1993. As part of the settlement, a piece of property located at 11818 South Marianne, Houston, Texas, ("the property") was to be sold, with the proceeds to be used to pay the settlement award to Wetzel and also part of Neely's fees. Following the settlement of the Wetzel suit, a dispute arose between Neely and the Birrans over Neely's fees for his representation in that suit. On March 18, 1994, Neely filed suit against the Birrans and Don A. Wetzel, alleging a variety of causes of action, including trespass to try title, quantum meruit, breach of contract, and negligence. The claims against Wetzel were subsequently dismissed by summary judgment.

On March 4, 1999, Neely filed a motion seeking a summary judgment on his claims for attorneys fees against the Birrans. The Birrans filed a response to the motion for summary judgment. The trial court granted summary judgment for Neely on March 29, 1999. On April 7, 1999 the trial court issued an order dismissing all of Neely's remaining claims against the Birrans and stating that the March 29, 1999 judgment "shall proceed to become the Final Judgment of this Court." The Birrans now appeal from the summary judgment with four issues, arguing that: 1) genuine issues of material fact exist, thus precluding summary judgment; 2) the exhibits attached to Neely's affidavit in support of his motion for summary judgment constitute inadmissible hearsay; 3) there are conflicts contained in the evidence supporting the summary judgment motion; and 4) the Birrans raised an affirmative defense that prevented summary judgment.

Summary Judgment Standard of Review

In a traditional summary judgment proceeding, the standard of review on appeal is whether the movant at the trial level carried the burden of showing that no genuine issue of material fact existed and that judgment should be granted as a matter of law. American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). The question on appeal is not whether the summary judgment proof raises fact issues as to the required elements of the movant's cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant's cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Noriega v. Mireles, 925 S.W.2d 261, 266 (Tex. App.--Corpus Christi 1996, writ denied). In resolving the issue of whether the movant has carried this burden, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant's favor. Nixon, 690 S.W.2d at 548-49; Noriega, 925 S.W.2d at 266. A party relying on an affirmative defense to oppose a summary judgment 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); Southern County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 464 (Tex. App.--Corpus Christi 2000, no pet.).

In their response to Neely's motion for summary judgment, the Birrans raised the defense of payment. Neely argues that the Birrans' response was untimely filed, and should not be considered.

Timeliness of the Birrans' Response

to Neely's Motion for Summary Judgment

The Birrans' response was filed on March 22,1999. The hearing on Neely's summary judgment motion was held on March 29, 1999. A response to a motion for summary judgment must be filed "not later than seven days prior" to the day of the hearing. Tex. R. Civ. P. 166a(c). When computing a time period prescribed or allowed by the rules of civil procedure, "the day of the act . . . after which the designated time period begins to run is not to be included;" however, the "last day of the period so computed is to be included." Tex. R. Civ. P. 4. The Birrans' response was timely filed. See Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (petition filed on November 10 was timely under seven day time period when trial was held on November 17).

The Birrans' Affirmative Defense

In their fourth issue on appeal, the Birrans argue that their affirmative defense of payment prevented summary judgment. In their response, the Birrans argued that they had transferred a house to Neely that was valued at more than the amount of the fees that Neely claimed were owed by the Birrans.

When the trial court ruled on Neely's motion for summary judgment it had before it the evidence attached to the motion as well as the evidence attached to the Birrans' response. We will first summarize the relevant evidence attached to the Birrans' response, then the evidence attached to Neely's motion.

The Birrans' Evidence

Attached to the response was a warranty deed, executed by Lynn Birran granting the property to "Sharon A. Farmer, Trustee." This deed was filed with the Harris County clerk on January 11, 1993. A quitclaim deed shows the property being quitclaimed by Sharon Farmer, Trustee, with the "Law Offices of George R. Neely, P.C." listed as grantee. The quitclaim deed was filed with the Harris County clerk on April 22, 1993. A letter from George Neely to a mortgage company, dated April 22, 1993, describes Sharon Farmer as "trustee for the Law Offices of George R. Neely, P.C." and states that the quitclaim deed conveys title to the "Law Offices of George R. Neely, P.C." In a notice of lis pendens dated October 7, 1993, Neely asserts that the property was "conveyed to George R. Neely as security for fees incurred in the trial below and to which George Neely and/or the Law Offices of George R. Neely, P.C. claim title."

Also attached to the response is a letter, dated October 21, 1993, from Wetzel's law firm to the person renting the property, in which it is clear that Wetzel also claims ownership in the property. The letter offers to sell the property for $60,000. An appraisal from the Fort Bend Appraisal District shows the property valued at $50,670.

Neely's Evidence

The evidence attached to Neely's motion for summary judgment included an affidavit, in which Neely states that the Birrans owe him $33,679.78 for his representation of them in the Wetzel lawsuit. An invoice shows the Birrans were billed $33,679.78 for Neely's representation. In the reporter's record for the hearing on the settlement agreement in the Wetzel lawsuit, which was attached in its entirety, Neely states "we are going to take [the property] and we are going to sell that house and use the proceeds from that to pay Mr. Wetzel." Neely further states that the Birrans "have transferred [the property] to secure my payment of attorneys fees, so the title is no longer in their name[.]" The money that was to be paid to Wetzel⁽²⁾ would be paid from the proceeds of the sale, before deducting any of the fees owed to Neely. An attached bankruptcy document shows that Neely listed the property as an asset in a bankruptcy proceeding in 1997.

Analysis

The evidence in the record demonstrates that there is a fact question as to the ownership of the property. The deeds show that an interest in the property was conveyed to the Law Office of Robert R. Neely in 1993. The notice of lis pendens as well as statements made by Neely show that Neely asserted that the property had been conveyed to him to pay, at least in part, the fees owed by the Birrans. Neely's own evidence, in the form of his bankruptcy documents in which he lists the property as an asset, raises the inference that he owns the property. The evidence in the record raises a question of fact as to whether the property conveyed is owned by Neely. The evidence in the record shows that the lowest value placed on the property is $50,670, an amount in excess of the $33,679.78 that Neely alleges is owed to him by the Birrans. The Birrans produced summary judgment evidence sufficient to raise an issue of fact on their affirmative defense of payment. The Birrans have brought forward sufficient evidence to raise a fact question about whether they conveyed to Neely property greater in value than the fees they owed, thus paying their alleged debt to Neely.

We sustain Issue number four. Because this issue is dispositive, we do not address the remaining issues on appeal. Tex. R. App. P. 47.1. The judgment of the

trial court is REVERSED and REMANDED for further proceedings consistent with this opinion.

LINDA REYNA YAÑEZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

26th day of April, 2001.

1. Retired Chief Justice Robert Seerden assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).

2. The judgment in the Wetzel suit ordered that Wetzel be paid the principal and interest accrued on a $35,000 loan made by Wetzel to Birran on July 30, 1984, at a 14% interest rate.