Court of Appeals of Texas, Fifth District, Dallas
ANALYTICAL TECHNOLOGY CONSULTANTS, INC. AND HECTOR BASS, Appellants
AXIS CAPITAL, INC., Appellee
Appeal from the 95th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-08507-D
Justices Bridges, Myers, and Brown.
Technology Consultants, Inc. and Hector Bass appeal the trial
court's judgment awarding Axis Capital, Inc. damages and
attorney's fees. Appellants bring three issues on appeal
contending (1) the trial court's judgment is indefinite
and void; (2) the trial court erred by granting Axis's
motion for summary judgment; and (3) the trial court abused
its discretion by denying appellants' motion for new
trial. We conclude the trial court erred by granting the
motion for summary judgment. Therefore, we reverse the trial
court's judgment and remand the cause for further
September 2014, Analytical agreed to lease a "Ditch
Witch" from Axis for forty-nine months. The lease
required Analytical to pay $23, 000 for the first month's
rent and $3, 956.36 per month for the next forty-eight
months. Bass executed a personal guaranty of the lease.
Analytical stopped paying the monthly rent in January 2015.
In March of that year, Axis notified Analytical that it was
in default under the lease, and Axis demanded payment of the
past and future rentals discounted to current value and
demanded the return of the leased equipment. Despite repeated
demands, appellants did not return the equipment or tell Axis
where the equipment was located. In July, Axis filed suit
against Analytical for breach of the lease and against Bass
for breach of his guaranty. Axis also sought recovery of the
equipment in its suit and applied for a writ of sequestration
for the equipment. Appellants answered the suit but did not
assert any affirmative defenses. On August 3, the trial court
issued an order for writ of sequestration. Sometime between
then and October 23, appellants returned the equipment to
November 3, 2015, Axis moved for summary judgment seeking
damages of $217, 654.75 plus any additional amounts accruing
before judgment, postjudgment attorney's fees, and
permanent possession of the property. The motion was set for
hearing on December 18, 2015. On November 13, appellants'
attorney received an electronic notification of the December
18 setting. Appellants did not file a response to the motion
for summary judgment, and they and their attorney did not
appear at the hearing on the motion for summary judgment. On
December 18, the trial court granted the motion for summary
judgment, awarded Axis damages of $196, 233.12 and
attorney's fees of $25, 201.12, and ordered that Axis
recover any additional attorney's fees and expenses for
enforcement of the judgment. The judgment also ordered that
Axis was entitled to permanent possession of the equipment
and to sell the equipment, retain the proceeds, and apply the
proceeds to the amounts owed by appellants.
timely filed a motion for new trial asserting that their
attorney did not see the e-mail notification setting the
motion for summary judgment for a hearing and therefore was
unaware of the deadline for appellants' response to the
motion for summary judgment. See Tex. R. Civ. P.
166a(c) (response to motion for summary judgment due
"not later than seven days prior to the day of
hearing"). Appellants also argued Axis miscalculated the
discount of future rental payments and that the judgment was
$13, 325.33 higher than it should have been. The trial court
denied the motion for new trial.
the trial court signed the judgment Axis filed documents
stating it had sold the property on January 26, 2016 for $72,
500 to a third party and credited the net sales proceeds,
$65, 250, toward the judgment. Axis also filed documents
showing it had credited the judgment by $13, 325.33
retroactive to the date of the judgment, which was the amount
appellants asserted the judgment was too high due to
Axis's alleged miscalculation of the discount for future
their second issue, appellants contend the trial court erred
by granting Axis's motion for summary judgment. The
standard for reviewing a traditional summary judgment is well
established. See Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548-49 (Tex. 1985); McAfee, Inc. v.
Agilysys, Inc., 316 S.W.3d 820, 825 (Tex.
App.-Dallas 2010, no pet.). The movant has the burden of
showing that no genuine issue of material fact exists and
that it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c). In deciding whether a disputed material
fact issue exists precluding summary judgment, evidence
favorable to the nonmovant will be taken as true.
Nixon, 690 S.W.2d at 549; In re Estate of
Berry, 280 S.W.3d 478, 480 (Tex. App.-Dallas 2009, no
pet.). Every reasonable inference must be indulged in favor
of the nonmovant and any doubts resolved in its favor.
City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.
2005). We review a summary judgment de novo to determine
whether a party's right to prevail is established as a
matter of law. Dickey v. Club Corp., 12 S.W.3d 172,
175 (Tex. App.-Dallas 2000, pet. denied).
nonmovant need not respond to a motion for summary judgment.
However, the failure to file a response limits the issues the
nonmovant may assert on appeal:
[T]he non-movant's failure to answer or respond cannot
supply by default the summary judgment proof necessary to
establish the movant's right. If a non-movant fails to
present any issues in its response or answer, the
movant's right is not established and the movant must
still establish its entitlement to summary judgment. The
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.
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d
337, 343 (Tex. 1993) (citation omitted); see also,
Tex.R.App.P. 166a(c) (issues not expressly presented in the
motion or response shall not be ...