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Duchene v. Hernandez

Court of Appeals of Texas, Eighth District, El Paso

December 6, 2017


         Appeal from the 41st District Court of El Paso County, Texas (TC# 2014DCV0493)

          Before McClure, C.J., Rodriguez, and Hughes, JJ. Hughes, J., not participating.



         This is an appeal from an order granting summary judgment in favor of Appellee Donald Hernandez on his claim that Appellant George Duchene breached the terms of a promissory note. Duchene alleges that the trial court erred by refusing to grant his motion to file a late response to Hernandez's summary judgment motion, and by granting summary judgment in Hernandez's favor. We affirm.


         On December 12, 2013, Duchene and Mohammed Ali Amini-Ghomi signed a promissory note agreeing to pay Hernandez $68, 300.26, plus interest, in equal monthly installments of $2, 500, beginning on January 1, 2014 until paid in full. The note reflected that it was secured by a security agreement previously signed by Duchene and Amini-Ghomi.[1] The note expressly stated that "THIS NOTE AND RELATED LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES."

         On February 18, 2014, Hernandez filed a lawsuit against Duchene and Amini-Ghomi, alleging that they were in breach of the note by failing to make the agreed-upon payments. Hernandez thereafter filed an affidavit in support of judgment, attaching a copy of the signed promissory note, and averring that Duchene and Amini-Ghomi had defaulted on the note by failing to make the monthly payments as they became due. Hernandez calculated that he was owed $69, 613.97 on the note, and further averred that he had unsuccessfully made demands on Duchene and Amini-Ghomi to pay the balance owed on the note.

         On February 28, 2014, Duchene's then-attorney, Robert Duran, filed a timely answer to the petition on Duchene's behalf, generally denying all of Hernandez's allegations. Amini-Ghomi, however, did not timely answer the petition, and the trial court subsequently entered a default judgment against him due to his failure to appear. In the judgment, the court noted that Hernandez's claim was a "liquidated claim based upon a promissory note[, ]" and found that Duchene and Amini-Ghomi were jointly and severally liable to Hernandez, and awarded him judgment in the amount of $54, 287.30. On Hernandez's motion, the trial court thereafter severed and transferred Amini-Ghomi's case into a new cause number, leaving only Duchene as a defendant in the current lawsuit.

         Hernandez's Motion for Summary Judgment

         On September 19, 2014, Hernandez filed a motion for summary judgment in his suit against Duchene, asserting that no genuine question of fact remained on his claim that Duchene had defaulted on the note, and that he was therefore entitled to judgment as a matter of law. Hernandez filed an affidavit in support of his summary judgment motion, averring that after Duchene defaulted on the note; he foreclosed on some of the collateral that had secured the note, which he sold for $20, 984. After taking into account that he had incurred $2, 000 in expenses in selling the collateral, Hernandez averred that he was owed $54, 287.30 on the note at that time.

         The trial court initially scheduled a summary judgment hearing for November 20, 2014, but on October 30, 2014, attorney Duran filed a motion to withdraw as Duchene's counsel based on a conflict of interest.[2] On November 17, 2014, Duran filed a motion for a continuance of the summary judgment hearing, and asked to continue the matter for at least 60 days in order to give Duchene time to retain new counsel. On November 20, 2014, the trial court granted the motion, and re-scheduled the summary judgment hearing for January 22, 2015.

         Duchene thereafter retained attorney, Patrick Lara, to represent him in the lawsuit, and on January 21, 2015, Lara filed a motion for a continuance of the scheduled January 22, 2015 summary judgment hearing, averring that he needed additional time to prepare for the hearing. On January 26, 2015, the trial court granted the motion, and reset the hearing for February 26, 2015, providing notice to both parties of the reset that same day.

         Duchene's Late Response

         On February 25, 2015, one day before the scheduled hearing, Duchene filed a written response to Hernandez's motion for summary judgment. In the response, Duchene alleged that several fact questions remained, including the question of whether Hernandez had "caused difficulty in meeting the note requirements, " whether the parties had reached an accord and satisfaction, whether Hernandez had failed to mitigate his damages, and the amount of damages, if any, Duchene owed to Hernandez. The response was supported by affidavits signed by both Duchene and Amini-Ghomi, in which they claimed, among other things, that Duchene had signed the promissory note as a favor to Amini-Ghomi with whom he had been in business, based on Amini-Ghomi's representation to Duchene that he would be solely responsible for making the payments on the note.

         At noon on the day of the scheduled hearing, February 26, 2015, Hernandez filed a motion to strike Duchene's response, citing to Rule 166a of the Texas Rules of Civil Procedure, which provides that a response to a summary judgment motion must be filed not later than seven days before a scheduled summary judgment hearing.[3] In addition, Hernandez argued that portions of both affidavits contained inadmissible hearsay.

         Approximately one hour later, Duchene filed a motion for leave of court to file his late response to the motion for summary judgment. In his motion, Duchene asserted that his attorney had been waiting for Amini-Ghomi's affidavit before filing the response, and that he did not receive the affidavit until February 25, the same day that Amini-Ghomi signed it, and the same day that the response was filed. In addition, Duchene argued that his counsel had "mistakenly" calendared the deadline for filing the response for the wrong date, and that his counsel "mistakenly forgot" to file a motion for leave of court to file the late response at ...

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