                                NUMBER 13-11-00449-CV

                                   COURT OF APPEALS

                          THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG


WILFRED HEWITT,                                                                        Appellant,

                                                  v.

BILLY F. ROBERTS
AND MARY D. ROBERTS,                                                                   Appellees.


                      On appeal from the 413th District Court
                           of Johnson County, Texas.


                             MEMORANDUM OPINION
     Before Chief Justice Valdez and Justices Rodriguez and Wittig1
                Memorandum Opinion by Justice Wittig
       Wilfred Hewitt, appellant, challenges the summary judgment granted in favor of

appellees Billy F. Roberts and Mary D. Roberts. In his first issue, Hewitt argues the trial

court erred by entering summary judgment based entirely on improper legal conclusions


       1
         Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of
Texas pursuant to TEX. GOV’T CODE ANN. § 74.003 (West 2005).
found in admissions deemed against him. In his second issue, he argues that the trial

court abused its discretion by refusing to withdraw deemed admissions that were “never

served on Hewitt.” Hewitt does not challenge the declaratory judgment against him

nullifying his option to purchase the Roberts’ home and declaring they have clear title to

the property. We affirm.

                                     I. BACKGROUND

      The Roberts filed multiple claims against Hewitt for violations of the DTPA,

breach of contract and fiduciary duty, fraud, fraud in a real estate transaction,

negligence, negligent misrepresentation, money had and received, and declaratory

judgment. Hewitt filed a pro se answer on December 7, 2009, and listed his address as

1311 N. Robinson, Cleburne, Texas—the same address where Hewitt was served with

process. At the summary judgment hearing, the Roberts elected two remedies, DTPA

and declaratory judgment. The motion for summary judgment relied upon 143 deemed

admissions, the Roberts’ affidavit, an attorney’s fees affidavit, and other supporting

documents attached to the motion. On the day of the summary judgment hearing,

Hewitt belatedly filed answers to the deemed admissions mostly denying the requests;

the late responses were filed without leave of court. After the trial court granted the

summary judgment and entered judgment, Hewitt filed a motion to withdraw the deemed

admissions and a motion for new trial. The trial court denied the combined motions.

      In Hewitt’s post judgment affidavit, he swore he was “never served” with a copy

of the Roberts’ requests for admission. Hewitt admits his office was located at 1311 N.

Robinson, in Cleburne, but asserted that he moved to a new location in Fort Worth in

May 2010. He states he “mistakenly failed to submit a forwarding address request” to



                                            2
the postal service. The record also reflects Hewitt failed to notify either the court or

counsel for the Roberts of his stated change of address.        Hewitt avowed that he

happened to be at his old Robinson address in January 2011 to meet a client, when he

found a copy of the Roberts’ motion for summary judgment which included the requests

for admissions. This was the first time he saw the requests for admissions, according to

the affidavit.

                                 II. STANDARD OF REVIEW

       We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). Summary judgment under rule 166a(c) is proper when a

movant establishes that there is no genuine issue of material fact and that the movant is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Randall’s Food Mkts.,

Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). When the trial court grants the

judgment without specifying the grounds, we affirm the summary judgment if any of the

grounds presented are meritorious.      FM Props. Operating Co. v. City of Austin, 22

S.W.3d 868, 872–73 (Tex. 2000). Evidence favorable to the non-movant will be taken

as true in deciding whether there is a disputed material fact issue that precludes

summary judgment. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.

1985). Every reasonable inference must be indulged in favor of the non-movant and

any doubt resolved in his favor. Id. at 549.

       We review the trial court’s grant or denial of a motion to withdraw deemed

admissions under an abuse of discretion standard. Wheeler v. Green, 157 S.W.3d 439,

443 (Tex. 2005). The trial court has broad discretion in such matters, but they cannot




                                               3
exercise that discretion arbitrarily, unreasonably, or without reference to guiding rules or

principles. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996).

                               III. DISCUSSION AND ANALYSIS

A. Withdrawal of Admissions

       We first address Hewitt’s argument that the trial court abused its discretion by

refusing to withdraw the deemed admissions. The Roberts’ requests for admissions

were properly mailed to the last known and only address provided by Hewitt on

September 10, 2010, by both certified mail and regular mail. This Robinson Street

address was the same address used to serve Hewitt with the original petition. It is also

the same address that Hewitt admitted using in January 2011 to see a client and where

he received his copy of the Roberts’ motion for summary judgment filed on January 4,

2011. The Roberts argue that Hewitt created the very problem he now complains of,

and did not inform the post office, the court, or Roberts’ counsel of any new or other

address. The procedural fact question presented to the trial judge was whether Hewitt’s

failure to do so was an accident or mistake, or the result of conscious indifference or an

intentional act.

       Hewitt’s burden on his motion to withdraw the deemed admissions was to show:

(1) good cause; and (2) no undue prejudice. Wheeler, 157 S.W.3d at 442. To establish

good cause, the party seeking to withdraw the deemed admissions must show that the

failure to respond was not intentional or the result of conscious indifference, but the

result of accident or mistake. Id.; see also Carpenter v. Cimarron Hydrocarbons Corp.,

98 S.W.3d 682, 687–88 (Tex. 2002). In Wheeler, the appellant calculated her dates

incorrectly, but this was not the result of intent or conscious indifference. Wheeler, 157



                                             4
S.W.3d at 442. While she answered and mailed her responses within twenty-seven

days from receipt, the “mailbox rule” made her two days late. Id. at 441; see TEX. R.

CIV. P. 4.

       In his affidavit, Hewitt swore he moved his office from Robinson Street in

Cleburne to Fort Worth in May 2010. Hewitt states he moved his office again in October

2010 to Joshua, Texas. Then in early January 2011, he nevertheless used the same

Robinson Street office to see a client and discovered the Roberts’ motion for summary

judgment, which included a copy of the requests for admissions. In mid-January 2011,

he finally submitted a forwarding address to the postal service.

       Hewitt answered the admission requests on February 18, 2011, the day of the

summary judgment hearing, without first obtaining leave of court or filing a motion to set

aside the deemed admissions.2 Hewitt stated: “I was never served with a copy of Billy

F. Roberts and Mary D. Roberts’ requests for admission in this case. I did not refuse

delivery of any mail or deliveries from the Roberts or their attorneys.” He also stated

that on several occasions he found his mail opened prior to its receipt. Occasionally, he

did not receive items purportedly mailed to him or which were opened giving rise to his

opinion his mail was sometimes stolen or intercepted. Hewitt states that he “mistakenly

failed” to submit a forwarding address to the postal service and the first time he ever

saw the Roberts’ requests for admission was early January 2011.                      The evidence

submitted by the Roberts indicated that the requests for admissions in the envelope

sent certified mail was marked “unclaimed” but was properly addressed. Hewitt did not

directly or openly address whether he actually received the certified mail notice or

whether he received or opened the set of requests for admission sent to his Robinson
       2
           Hewitt’s late filed responses did not contain a certificate of service.

                                                        5
Street address by regular mail.3           Hewitt did admit actual notice and receipt of the

requests when he visited his office early January 2011.

        Hewitt cites Payton v. Ashton, 29 S.W.3d 896, 898 (Tex. App.—Amarillo 2000,

no pet.), for the proposition that the requests for admission may not be deemed if

service was not perfected.            Indeed, in Payton, the certified mail was marked

“unclaimed,” however we note differences between that case and the one before us. In

Payton, “[w]hether they were unclaimed because Ashton opted not to receive them

(intentionally or otherwise) or whether he even knew of their existence went

undeveloped.”       Id. 898–99.       Payton also observes that constructive notice of a

document can be imputed to one where there exists evidence that the person has

engaged in "selective refusal/acceptance" of certified mail, citing Gonzales v. Surplus

Ins. Serv., 863 S.W.2d 96, 101–02 (Tex. App.—Beaumont 1993, writ denied). The case

goes on to hold that because the requests were returned unclaimed, that constituted

some evidence upon which the trial court could have concluded that Ashton did not

receive them.       Payton, 29 S.W.3d at 898–99 (citing Gonzales, 863 S.W.2d at 101

(stating that the determination of a procedural fact, such as whether one received

notice, lies within the sound discretion of the trial court)).

        Here, the trial court, charged with finding the procedural facts, implicitly

determined that Hewitt received notice or either intentionally or with conscious

indifference failed to respond. While there was some evidence Hewitt did not receive or

was not served with the certified mail package, review of the record reveals that Hewitt


        3
         While Hewitt avers he did not “see” the requests until January 2011, neither he nor his attorney
present the type of unequivocal testimony found in most of the cases cited by him in our discussion
below. Hewitt does not say he never received any notice or that he did not actually receive the
admissions until January 2011.

                                                   6
failed in his burden to explain his presumed receipt of the requests for admission sent

by regular mail.   Texas Rule of Civil Procedure 21a states that service by mail is

"complete upon deposit of the paper, enclosed in a postpaid, properly addressed

wrapper, in a post office or official depository under the care and custody of the United

States Postal Service." TEX. R. CIV. P. 21a. It also provides that "nothing herein shall

preclude any party from offering proof that the notice or document was not actually

received . . . ." Id. Hewitt’s affidavit is carefully crafted to indicate that he was not

“served” with the requests, but does not unequivocally state he did not receive either the

admissions by certified mail or regular mail. He swore that he “mistakenly failed” to

forward his mail, while at the same time he admitted using the identical address on

Robinson Street for business in January 2011.

      Hewitt makes no proffer of what his claimed mistake was, i.e., he relies upon a

conclusory, self-serving statement and offers no proof of why or how he made a

mistake. Though he claims people might have been opening and stealing his mail, he

neglects to forward his mail from his clients, the Internal Review Service, or anyone

else, and abandons his mail for months to possible thieves and miscreants while

moving to Fort Worth in May 2010, and then to Joshua in October 2010. Nor does

Hewitt fully explain how he happens to still be using his Robinson Street office in

January 2011. Did he own the building? Did he still lease space? How often did he

pick up his mail at 1311 N. Robinson?        The trial judge certainly had contradictory

evidence before him that could seriously challenge the credibility of the affiant. When

the trial court does not issue findings of fact, reviewing courts should presume that the

trial court resolved all factual disputes in favor of its judgment.   Am. Type Culture



                                            7
Collection v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002). When a trial court is presented

with conflicting evidence, it may believe one witness and disbelieve others as well as

resolve inconsistencies in testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697

(Tex. 1986); Viera v. Viera, 331 S.W.3d 195, 210 (Tex. App.—El Paso 2011, no pet.).

Hewitt’s credibility was clearly at issue.     Some evidence of intentional conduct or

conscious indifference appears in the record sufficient to justify the trial court’s actions

in denying Hewitt’s motion. See Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011)

(good cause is established by showing the failure involved was an accident or mistake,

not intentional or the result of conscious indifference).

       Hewitt also cites Etheredge v. Hidden Valley Airpark Ass'n, 169 S.W.3d 378, 382

(Tex. App.—Fort Worth 2005, pet denied). The Fort Worth court held that even though

the presumption of receipt was rebutted by evidence that the notice of hearing was

returned "unclaimed," Hidden Valley Airpark presented no evidence that Etheredge

dodged or refused delivery of certified mail, and constructive notice of the summary

judgment hearing could not be imputed to Etheredge. Id. (citing Pessel v. Jenkins, 125

S.W.3d 807, 810 (Tex. App.—Texarkana 2004, no pet.) (holding that trial court erred in

determining that defendants received notice of trial setting when notice was returned

unclaimed and plaintiffs offered no proof of "selective acceptance/refusal" of certified

mail)). Etheredge and Pessel are distinguishable on the facts.       In those cases, there

was neither proof that the parties continued to use their office delivery addresses in

question nor that they actually received court notices at the same delivery addresses.

Further, Hewitt did not deny receipt of regular mail notice sent to him.




                                              8
       Hewitt next argues from a Houston court’s opinion: Approximately $ 14,980.00 v.

State, 261 S.W.3d 182, 189 (Tex. App.—Houston [14th Dist.] 2008, no pet.). State held

that not only was the certified mail package returned “unclaimed” but also the

appellant’s attorney, unlike Hewitt, directly testified to not receiving the notice.     Id.

Thus, the appellant rebutted the presumption of receipt of actual notice. Id.; see also

Rabie v. Sonitrol of Houston, Inc., 982 S.W.2d 194, 197 (Tex. App—Houston [1st Dist.]

1998, no pet.) (holding defendant rebutted presumption of service by asserting under

oath that he never received notice of certified letter from post office and by presenting

evidence that post office's attempts to deliver certified mail failed). Such is not the case

here. While Hewitt claimed he was not “served” and did not “see” the requests for

admission, neither he nor his lawyer claimed they never received either the certified

notice or regular mail package, which was not returned to the sender. Furthermore,

Hewitt admitted he received the admissions the first week of January 2011, but did not

respond to the admissions until the morning of the summary judgment hearing on

February 18, 2011.

       Hewitt then cites Chambers v. Pruitt, 241 S.W.3d 679, 685 (Tex. App.—Dallas

2007, no pet.), holding that there was no evidence the admissions were properly served

and received. In Pruitt, the request for admissions sought to be admitted into evidence,

unlike our case, was not signed, nor was there a signed certificate of service.          Id.

Chambers told the court she sent the document to Pruitt by certified mail and received a

return receipt green card marked "refused." Id. Pruitt testified she did not receive the

admissions and thus, there were no deemed admissions, and the trial court did not

abuse its discretion when it refused to admit the document into evidence. Id. Here,



                                             9
Hewitt admits receiving the requests for admission at least by January 2011, and also

admitted using the same Robinson Street address as an office while claiming it was no

longer his office.

       Finally, Hewitt argues that “the undisputed evidence” established Hewitt’s failure

to respond was not intentional or the result of conscious indifference, citing Salazar v.

Collins, 255 S.W.3d 191, 196 (Tex. App.—Waco 2008, no pet.) (stating that good cause

is established by a showing that the failure to respond to the request for admissions was

an accident or mistake, not intentional or the result of conscious indifference).       In

Salazar, unlike our case, the attorney general’s office admitted receiving the admissions

but stated that they were inadvertently misplaced after they were received and were

never routed to the particular attorney assigned to that case. Id. In our case, there was

evidence that properly mailed requests were sent to Hewitt at the address he

designated.    He did not deny receiving the admissions sent by regular mail.           He

admitted receiving a set of admissions along with the motion for summary judgment and

still did not timely respond or seek leave to file late responses to the requests. While

Hewitt argued “mistake,” no proof of mistake was offered. And while claiming to have

moved his Cleburne office without forwarding his mail, he still received correspondence

in this case at that same address and admitted using the Cleburne office in his work.

       We further note that Hewitt, by his own admission, knew of his “mistake” in early

January 2011, well before the February 18 hearing, and could have responded to the

Roberts’ motion, or sought leave to file late responses, but because he did not, he

waived his right to raise the issue thereafter. Unifund CCR Partners v. Weaver, 262

S.W.3d 796, 798 (Tex. 2008). The high court noted that under special circumstances, a



                                           10
party could bring a request to withdraw deemed admissions for the first time in a motion

for new trial. Id. (citing Wheeler, 157 S.W.3d at 442 (stating that Wheeler did not waive

her complaint regarding withdrawal of the deemed admissions by presenting it for the

first time in her motion for new trial because "nothing in this record suggests that before

summary judgment was granted, [Wheeler] realized that her responses were late, that

she needed to move to withdraw deemed admissions, or that she needed to file a

response to the summary judgment raising either argument.")) "[E]quitable principles

allowing these arguments to be raised in a motion for new trial do not apply if a party

realizes its mistake before judgment and has other avenues of relief available." Id.

       We conclude the trial court did not abuse its discretion by refusing to permit the

withdrawal of the deemed admissions. See Wheeler, 157 S.W.3d at 443; see also

Weaver, 262 S.W.3d at 798. A decision is not considered an abuse of discretion if

supported by any theory appearing in the record.       Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990). We overrule this issue.

B. Admissions Void

       Hewitt also argues that the requests for admission are void on their face and

cannot be used against him as a matter of law. We disagree. Hewitt’s central argument

is that most of 143 requests for admission do not address disputed facts but merely

mirror the elements of Roberts’ claims. Hewitt is correct that many of the requests

mirrored the DTPA elements and were improper legal conclusions, e.g., “Admit you

engaged in certain false, misleading and deceptive acts, practices and/or omissions

actionable under the DTPA.” Hewitt argues that because certain deemed admissions

were purely questions of law, they are improper summary judgment evidence, citing



                                            11
Cedyco Corp. v. Whitehead, 253 S.W.3d 877, 881 (Tex. App.—Beaumont 2008, pet

denied).    We agree in principle.        However, as the Roberts argue, a request for

admission may ask a party to admit or deny an issue of fact or a mixed issue of fact and

law, but not a purely legal issue, citing Ft. Bend Central Appraisal District v. Hines

Wholesale Nurseries, 844 S.W.2d 857, 858 (Tex. App.—Texarkana 1992, writ denied);

see also Marino 355 S.W.3d at 632 (admissions may be used to elicit "statements of

opinion or of fact or of the application of law to fact" (citing TEX. R. CIV. P. 198.1).

       Indeed the rule itself states:

       Request for Admissions. A party may serve on another party - no later
       than 30 days before the end of the discovery period—written requests that
       the other party admit the truth of any matter within the scope of discovery,
       including statements of opinion or of fact or of the application of law to
       fact, or the genuineness of any documents served with the request or
       otherwise made available for inspection and copying. Each matter for
       which an admission is requested must be stated separately.

TEX. R. CIV. P. 198 (emphasis added).

       The Roberts argue many of the requests fall within the rule including: requests

numbers 3–7, 10, 11, 13, 15, 18, 27–29, 32–34, 36, 37, 46, 47, 62, 63, 66, 109, 140,

and 143. For example, requests 3–7 asked Hewitt to admit he was not a licensed

Texas CPA, that he represented he was qualified to provide tax advice and planning,

that he was qualified to prepare federal tax returns, that he used Mary D. Roberts’s

name to acquire electric service at his office, and that he used Billy Roberts’s name to

charge items at Lowes. We have reviewed each of the requests enumerated in this

paragraph and conclude they are not prohibited questions of law.4




       4
          A few of the requests would have been subject to a “multifarious” objection, but no such
objection was timely made nor is the matter raised by appellant.

                                               12
      However, even if some of the requests were prohibited questions of law, the

Roberts’ motion also relied upon the affidavit of Mrs. Roberts and supporting documents

as a basis for their summary judgment motion.        The affidavit established that the

Roberts were consumers of services from Hewitt, that he misrepresented his status as a

Texas licensed CPA, that Hewitt used Billy Roberts’ name to acquire electric service

and used one of their names to charge items at Lowes, improperly rendered services

and induced the Roberts to enter a scheme giving Hewitt the option to purchase real

estate belonging to the Roberts in Cleburne. Hewitt then collected $4,515 in rents from

the Roberts for their property.   Hewitt threatened to falsely report that the Roberts

received income from Hewitt if they did not convey the Cleburne property to him. Hewitt

also appropriated identity information, bank, credit and other financial information from

the Roberts.

      The summary judgment proof supports violations of the DTPA. A consumer may

bring a DTPA cause of action for either a violation of section 17.46(b) of the DTPA (the

so-called "laundry list") relied on by the consumer to the consumer's detriment or for an

unconscionable action or course of action if the violation or action "constitute[s] a

producing cause of economic damages or damages for mental anguish." TEX. BUS. &

COM. CODE ANN. § 17.50(a)(1), (3) (West 2011). The "laundry list" prohibits various

types of misrepresentations.      See id. § 17.46(b).     The DTPA also defines an

unconscionable action or course of action as "an act or practice which, to a consumer's

detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of

the consumer to a grossly unfair degree." Id. § 17.45(5). Under section 17.46 (a), false,

misleading, or deceptive acts or practices in the conduct of any trade or commerce are



                                           13
declared unlawful and are subject to action by the consumer protection division under

sections 17.47, 17.58, 17.60, and 17.61 of the civil practice and remedies code. Id.

Sub-section (b) includes, but is not limited to the following acts:

       (1)     passing off goods or services as those of another;

       (2)     causing confusion or misunderstanding as to the source,
               sponsorship, approval, or certification of goods or services;

       (3)     causing confusion or misunderstanding as to affiliation, connection,
               or association with, or certification by, another;

       (4)     using deceptive representations or designations of geographic
               origin in connection with goods or services;

       (5)     representing that goods or services have sponsorship, approval,
               characteristics, ingredients, uses, benefits, or quantities which they
               do not have or that a person has a sponsorship, approval, status,
               affiliation, or connection which he does not.

Id. § 17.46.       Summary judgment proof also included an affidavit supporting the

attorney’s fees awarded in the amount of $6,500.00 and proof supporting the treble

damages found in the amount of $33,035.46.

       The trial court, as well as this court, must accept as true the clear, direct, and

positive evidence of an undisputed affidavit, even of a party's agent. Jack B. Anglin Co.

v. Tipps, 842 S.W.2d 266, 270 (Tex. 1992) (citing Americana Motel, Inc. v. Johnson,

610 S.W.2d 143 (Tex. 1980) (uncontroverted testimony by an interested party may

support summary judgment when testimony is clear, direct, and positive); Whitehead v.

Julian, 476 S.W.2d 844, 845 (Tex. 1972) (uncontroverted affidavit must be accepted as

true); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41,

47 (Tex. 1965)).




                                             14
      Hewitt, in his reply brief, states that Roberts’ attorney only argued the deemed

admissions. This is factually inaccurate because in both the Roberts’ written motion

and in oral argument they pointed to “evidence that is attached in the addendum,” the

Roberts’ affidavit supporting damages, and the affidavit supporting attorney’s fees.

Further, Roberts’ attorney asked the court to consider “the summary judgment evidence

including the discovery with deemed admissions. . . .” Because the trial court's order

does not specify the grounds for its summary judgment, we must affirm the summary

judgment if any of the theories presented to the trial court and preserved for appellate

review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,

216 (Tex. 2003) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.

1996)); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

       Hewitt also contends a party must specifically identify the supporting proof relied

upon, citing Gonzales v. Shing Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d

742, 746 (Tex. App.—San Antonio, 2005 no pet.). Notwithstanding the stated principle,

the Gonzales court reviewed the entire record and concluded the expert did not provide

the underlying facts to support his conclusion. Id. The only evidence of an alleged

defect was the expert’s statements that "an electrical failure occurred at the socket

base/switch assembly" and "the fire resulted from a resistive heating failure at the lamp

socket/switch assembly terminal screws to which the lamp cord is attached."            Id.

“These statements are conclusory and, therefore, constitute no evidence.” Id. at 746–

47. In Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 81 (Tex. 1989), the Allred

deposition to which the motion for summary judgment specifically referred was not part

of the record on appeal, and the record did not reflect that it was or could have been



                                           15
considered by the trial court. The movant did not present to the trial court sufficient

evidence to show its claim of "title" or "color of title." Id. The motion did no more than

refer to whatever may have been "on file" and such a general reference to a voluminous

record which does not direct the trial court and parties to the evidence on which the

movant relies is insufficient. Id. We have already noted that the Roberts specifically

referenced Mary Roberts’ affidavit as well as the attorney’s fees affidavit. Neither the

trial court nor this court was presented with voluminous records, reports, and

depositions described in the cited cases. We conclude this argument is without merit.

       Hewitt complains it is difficult to see how the Roberts’ affidavit can prove his

subjective knowledge and intent. To the contrary, the affidavit lays out Hewitt’s willful

conduct when he misrepresented his status as a Texas CPA, he used their name to

charge items at Lowes, induced them to enter a scheme to acquire an option on the

Roberts’ property, collected rents, and threatened to falsely report them. Hewitt also

refused to return identity and financial information to the Roberts. Virtually all, if not all

of these purposeful actions are typically performed with knowledge and intent. Hewitt

points to no evidence to the contrary.

       Hewitt also argues that the affidavit consists primarily of subjective conclusory

statements and opinions by an interested party and is not competent evidence as a

matter of law, citing Harley-Davidson Motor Co. v. Young, 720 S.W.2d 211, 213 (Tex.

App.—Houston [14th Dist.] 1986, no writ) (holding that statements of opinions and

conclusions made in an affidavit are not competent summary judgment proof and

should be disregarded in determining the sufficiency of proof to support the summary

judgment). “A conclusory statement is one that does not provide the underlying facts to



                                             16
support the conclusion.”     Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—

Houston [1st Dist.] 1997, no writ). Hewitt does not cite to any statement he argues to be

conclusory. To the contrary, Mary Roberts swore that she had personal knowledge and

gave specific details of the couple’s dealings with Hewitt described above.

      We overrule this issue.

                                  IV. CONCLUSION

      The judgment of the trial court is affirmed.


                                                       Don Wittig
                                                       Justice


Delivered and filed the
31st day of January, 2013.




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