                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-050-CV


KAREN A. CLARK                                                     APPELLANT

                                              V.

COMPASS BANK, SUCCESSOR-
IN-INTEREST TO TEXASBANK                                             APPELLEE

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            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                           MEMORANDUM OPINION 1

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      Karen A. Clark, appellant, appeals from the trial court’s grant of summary

judgment in favor of appellee, Compass Bank, successor-in-interest to

TexasBank. Appellee sued appellant to collect on a promissory note executed

in appellant’s individual capacity as well as to collect on a business note that

appellant had guaranteed. In two issues, appellant complains that the trial


      1
          … See T EX. R. A PP. P. 47.4.
court erred by granting the summary judgment against her without first granting

her the continuance she requested and because the judgment violates the “one

satisfaction rule” by allowing appellee a double recovery. In its brief, appellee

asserts an additional basis upon which to affirm the trial court’s judgment: an

unchallenged ground upon which the trial court might have awarded it summary

judgment. We affirm.

                              Factual Background

      The record shows that appellant executed a promissory note on August

30, 2002, in the original principal amount of $382,500 (Mortgage Loan)

payable to TexasBank, appellee’s predecessor, secured by appellant’s residence

in Granbury.   Appellant also signed a guaranty in favor of TexasBank to

guaranty another loan advanced to her professional association, Karen A. Clark,

M.D., P.A., in the amount of $175,000 (PA Loan) on or about November 13,

2002.   The PA Loan was further secured by a security interest in certain

collateral such as furniture, fixtures, equipment, inventory, and accounts

receivable of her PA, as well as her personal guaranty.

      Ultimately, appellant defaulted on both notes.      The PA sold the PA

collateral and applied the proceeds from those sales to the balance on the PA

Loan. But after default and demands to cure, the PA also failed to pay the

accelerated balance due and owing on the PA Loan. Appellant also failed to

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honor her personal guaranty of the PA Loan, which had a balance due and

owing of $124,393.62 at the time appellee filed suit on the PA Loan and the

guaranty.

      Appellant also defaulted on the Mortgage Loan. Appellee’s third amended

petition claims the balance on the mortgage was $375,507.71. Neither the

petition nor the summary judgment motion indicates whether the residence was

foreclosed upon.    Appellant complained in her response to the motion for

summary judgment that appellee had failed to give her sufficient credit for

payments made and for collateral sold that should have been applied to the

outstanding balances due. Importantly, appellant specifically claims that her

Granbury residence was sold and that approximately $300,000 in proceeds

should have been applied to the Mortgage Loan balance.

      Appellee filed a motion for summary judgment, and appellant filed a

response primarily complaining about the balances appellee was claiming on

both notes and seeking a continuance on the hearing.        Appellee responded

below and here that appellant had the duty and obligation to come forward with

proper summary judgment proof that would substantiate her claims of offsets,

payments, or credits sufficient to defeat summary judgment. Furthermore,

appellee specifically denied holding a foreclosure and sale of the residence. The




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trial court denied appellant’s continuance and granted appellee’s motion for

summary judgment.

                                Issues on Appeal

      Appellant complains that the trial court erred by denying her motion for

continuance of the summary judgment hearing. She also complains of trial

court error in failing to give her credit on the Mortgage Loan after the sale of

the residence, thereby violating the “one satisfaction rule.”

                                  Continuance

      Generally, a trial court’s action in granting or denying a motion for

continuance will not be disturbed on appeal unless the record discloses an

abuse of discretion. See Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476

(Tex. 1997) (orig. proceeding); Sw. Country Enters. v. Lucky Lady Oil Co., 991

S.W.2d 490, 493 (Tex. App.—Fort Worth 1999, pet. denied). In the summary

judgment context, a court may order a continuance if the party opposing the

motion cannot “for reasons stated present by affidavit facts essential to justify

his opposition.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161

(Tex. 2004) (citing T EX. R. C IV. P. 166a(g)). And when reviewing a trial court’s

order denying a motion for continuance, we must look for a clear abuse of

discretion on a case-by-case basis. Id. “When a party contends that it has not

had an adequate opportunity for discovery before a summary judgment hearing,

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it must file either an affidavit explaining the need for further discovery or a

verified motion for continuance.”     Tenneco, Inc. v. Enter. Prods. Co., 925

S.W.2d 640, 647 (Tex. 1996) (citing T EX. R. C IV. P. 166a(g), 251, 252). Rule

251 requires the party moving for a continuance to include an affidavit showing

sufficient cause for the continuance with its affidavit. T EX. R. C IV. P. 251; see

also Tri-Steel Structures, Inc. v. Baptist Found. of Tex., 166 S.W.3d 443, 448

(Tex. App.—Fort Worth 2005, pet. denied). When a movant fails to include an

affidavit in support of its motion, the appellate court presumes the trial court

did not abuse its discretion in denying the continuance. See Villegas v. Carter,

711 S.W.2d 624, 626 (Tex. 1986); see also Rent Am., Inc. v. Amarillo Nat'l

Bank, 785 S.W.2d 190, 193 (Tex. App.—Amarillo 1990, writ denied) (holding

failure to comply with rule 251 results in presumption that trial court did not

abuse its discretion). A denial will be reversed only if the trial court acted

without regard to guiding principles or was arbitrary or unreasonable.       BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002); Tri-Steel

Structures, 166 S.W.3d at 447.

      Additionally, if the basis for the requested continuance is “want of

testimony,” the affidavit must show (1) that the testimony is material, (2) that

due diligence has been used to obtain the testimony, (3) that there is an

explanation given for the failure to obtain the testimony, and (4) that the

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testimony cannot be procured from another source.            T EX. R. C IV. P. 252;

Tri-Steel Structures,166 S.W.3d at 448. Furthermore, the failure of a litigant

to diligently use the rules of civil procedure for discovery purposes will not

authorize the granting of a continuance. See State v. Wood Oil Distrib., Inc.,

751 S.W.2d 863, 865 (Tex. 1988). A court will not be required to grant a

continuance when the allegations in the motion, examined in light of the record,

show a complete lack of diligence. See id. (citing Fritsch v. J.M. English Truck

Line, Inc., 151 Tex. 168, 246 S.W.2d 856, 858–59 (1952)).

      Here, the record shows that appellee filed its original petition and request

for disclosure on August 18, 2005, claiming appellant owed appellee

$134,225.12 on the PA Loan and $86,233.71 on the Mortgage Loan. Appellee

filed its motion for final summary judgment on September 27, 2006, and its

third amended petition that same day.       These pleadings, for the first time,

claimed   appellant   owed   appellee   $124,393.62     on    the   PA   loan   and

$375,507.71 on the Mortgage Loan. Appellee did not supplement its answers

to appellant’s requests for disclosure to reflect these amounts until October 25,

2006. Appellant’s motion for continuance of the summary judgment hearing

was filed that same day, along with her Response to Motion for Summary

Judgment, on October 25, 2006, five days before the summary judgment




                                        6
hearing was scheduled.2      The motion sought additional time to allow for

discovery, specifically complaining about the lack of information supporting the

new amounts owed or the amounts subject to any offsets. Appellant also

claimed that she had been unable to obtain some of her records from her prior

attorney and that the discovery period for the case had not yet expired.

However, her motion for continuance was not sworn or supported by affidavit,

did not comport with rule 166a(g) or comply with the rule 252 factors justifying

a continuance on the basis of want of testimony. T EX. R. C IV. P. 166a(g), 252.

The trial court denied her motion, held the hearing, and entered final judgment

in appellee’s behalf on October 30, 2006.

      At the time of the summary judgment hearing, the only other discovery

appellant had sought was a request for production that appellee had answered

(and objected to portions of) on March 14, 2006, seven months prior to her

motion for continuance. Appellant had never requested a hearing on appellee’s

objections and had not served any further discovery on appellee in the interim.

The case had been on file for over thirteen months, and while the amounts




      2
        … Texas rules require the respondent to file “opposing affidavits or other
written response(s)” not later than seven days before the hearing, unless leave
of court has been granted. We note that neither appellant’s response nor her
motion for continuance complies with this part of rule 166a, either. See T EX.
R. C IV. P. 166a(c).

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claimed by appellee drastically changed at the time appellee filed its motion for

summary judgment, appellant sought no further discovery during those thirty-

five days.   Furthermore, the only discovery appellant pursued during the

previous thirteen months was a request for disclosure, despite the fact she had

already complained that the balances due were inaccurate.

      Because appellant’s motion for continuance contains no supporting

affidavit, we presume the trial court did not abuse its discretion by denying the

continuance. See Villegas, 711 S.W.2d at 626. Moreover, appellant failed to

show that she exercised due diligence in seeking discovery, an additional

requirement for a continuance sought on these grounds.             See Tri-Steel

Structures, 166 S.W.3d at 448.       Therefore, we cannot say the trial court

abused its discretion by denying appellant’s motion for continuance.         We

overrule appellant’s first issue.

                              One Satisfaction Rule

      In appellant’s second issue, she contends that appellee sold the residence

that secured the Mortgage Loan for approximately $300,000 and that the

judgment on that loan should have been reduced by that amount. Appellant

contends that the balance on the Mortgage Loan could not have been the

$375,507.71 awarded by the trial court and by doing so the court violated the

“one satisfaction rule.”

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      A plaintiff is entitled to summary judgment on a cause of action if it

conclusively proves all essential elements of the claim. See T EX. R. C IV. P.

166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). When

reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v.

Mason, 143 S.W.3d 794, 798 (Tex. 2004). If the uncontroverted evidence is

from an interested witness, it does nothing more than raise a fact issue unless

it is clear, positive and direct, otherwise credible and free from contradictions

and inconsistencies, and could have been readily controverted. T EX. R. C IV. P.

166a(c); Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997).

      Appellant cites our opinion in Foley v. Parlier to support her position that

the appellee’s judgment constitutes a double recovery. 68 S.W.3d 870, 882-

83 (Tex. App.—Fort Worth 2002, no pet.). There, we held that a party is

entitled to but one satisfaction for the injuries or damages sustained. Id. at

882-83. The rule requires a successful litigant to choose between remedies so

that he does not receive more than one recovery for the same injury.           W.

Reserve Life Assur. Co. of Ohio v. Graben, 233 S.W.3d. 360, 377 (Tex.

App.—Fort Worth 2007, no pet.).         We agree with appellee that the one

satisfaction rule does not even apply under these circumstances. The rule really

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only prevents a party from recovering under two or more causes of action or

theories of liability for the same injury. See Tony Gullo Motors I, L.P. v. Chapa,

212 S.W.3d 299, 313 (Tex. 2006).

      The original mortgage for appellant’s residence was $382,500. Appellant

contends that she made payments for two years, that she voluntarily

surrendered the home to appellee, and that appellee then sold the residence for

$300,000. She contends that the amount awarded appellee, based upon its

summary judgment evidence, does not give her credit for these payments or for

the proceeds from the sale of the residence. She says the appellee received a

double recovery.

      Here, appellee is the injured party trying to recover the unpaid balances

on two promissory notes, one of which was secured by a deed of trust on

appellant’s residence.    Appellant contends that appellee got the money

judgment on the two notes and title to her residence.        In reality, appellant

actually is complaining of insufficient credits to the Mortgage Loan that would

have potentially resulted in a smaller remaining balance, which she asserted in

her pleadings as a failure to credit payments. Furthermore, as to her complaint

that appellee failed to giver her credit on the Mortgage Loan for the residence

she allegedly gave back to appellee, appellant brought forth no summary

judgment evidence to show the payments she made, information that would

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have been available to appellant through her own records. This is not a double

recovery under two theories of liability; all liability asserted against appellant

was based upon the notes and the breach of the payment terms thereof.

Likewise, appellant brought forth no evidence of a foreclosure or sale by

appellee, only a conclusory statement that she thought the residence had been

sold by appellee for about $300,000. If appellant had entered into a settlement

with appellee or deeded the residence to appellee, documentation of the

transaction would have been either in her possession or obtainable through

deed records, but again, there is no proof in this record. There simply is no

evidence in this summary judgment record that appellee had foreclosed on its

lien securing the Mortgage Loan at the time of the summary judgment hearing.

      In appellee’s reply to appellant’s response to the motion for summary

judgment, appellee states it “did not conduct a non-judicial foreclosure sale of

its security interest in the real property that secured the payment of the

promissory note.” 3 Regardless, appellant failed to sufficiently raise a fact issue

regarding any foreclosure, sale, or the accuracy of the balance claimed by

appellee on the Mortgage Loan. See T EX. R. C IV. P. 166a(c); Montiel, 949




      3
      … Later, in appellee’s brief it concedes it foreclosed on the residence, but
under a different note and lien, which would not have affected the balance on
the Mortgage Loan.

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S.W.2d at 310. We cannot say the one satisfaction rule applies on this record.

We overrule appellant’s second issue.

                                 Malooly Point

      In appellee’s brief, it also asserts a Malooly response claiming that

appellant failed to challenge all bases for the summary judgment, thus requiring

affirmance of the trial court’s grant of summary judgment in favor of appellee.

In Malooly Brothers, the Texas Supreme Court held that appellate courts must

affirm a summary judgment if there is an unchallenged point on appeal not

otherwise covered by a Malooly point.       Malooly Bros., Inc. v. Napier, 461

S.W.2d 119, 121 (Tex. 1970). However, when a party asserts a broad point

challenging the summary judgment in its entirety, that is sufficient to allow

argument as to all possible grounds of error. Id. Appellee correctly points out

that appellant has not asserted a general Malooly pont. At trial, appellant quite

forthrightly never contested the execution or existence of either of the two

notes involved in this suit or their breach. At trial, appellant only contested

who the legal owner and holder of these notes were and the correctness of the

balances due; on appeal, the challenge was virtually limited to the propriety of

the balances due through both of appellant’s issues.         However, because

appellant failed to also include a general Malooly point which would have

included at least an attack on the factual basis of the grant of summary

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judgment in general, we must affirm the judgment below. See id.; see also

Fluid Concepts, Inc. v. DA Apartments Ltd. P’ship, 159 S.W.3d 226, 231 (Tex.

App.—Dallas 2005, no pet.). Because appellant has not raised a fact issue in

regard to some element of appellee’s cause of action, we affirm the judgment

of the trial court.

                                 Conclusion

      Because we have overruled all of appellant’s issues, we affirm the trial

court’s judgment.




                                                TERRIE LIVINGSTON
                                                JUSTICE


PANEL A: CAYCE, C.J.; LIVINGSTON AND MCCOY, JJ.

DELIVERED: May 22, 2008




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