      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00361-CV



                Hinojosa Auto Body & Paint, Inc., d/b/a Capital Collision, GP;
                      Eric A. Hinojosa & Erik Pampalone, Appellants

                                                  v.

                                   FinishMaster, Inc., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
       NO. D-1-GN-07-004238, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellants Eric A. Hinojosa, Erik Pampalone, and Hinojosa Body & Paint, Inc., d/b/a

Capital Collision, GP,1 seek review of the summary judgment granted by the trial court in favor of

appellee FinishMaster, Inc. Finding no error in the trial court’s judgment, we affirm.


                                         BACKGROUND

                FinishMaster supplies paint and other materials for auto body and paint businesses.

Capital Collision is in the auto body and paint business. Capital Collision entered into two customer

agreements with FinishMaster for the purchase of paint and materials for Capital Collision’s

auto body and paint business.2 These agreements covered separate locations of Capital Collision.

       1
           We refer to the appellants collectively as “Capital Collision” unless stated otherwise.
       2
         Hinojosa and Pampalone also signed credit application requests in which they personally
guaranteed the full and prompt payment of all amounts due FinishMaster from Capital Collision.
The 2005 Agreement covered the Capital Collision located at 4304 Burch Drive in Del Valle, Texas,

and was effective March 7, 2005. The 2006 Agreement covered the Capital Collision Express

located at 10710 N. Lamar Boulevard in Austin, Texas, and was effective August 1, 2006. Under

the terms of the agreements, FinishMaster sold paint and materials to Capital Collision on

account and provided monthly account statements identifying the outstanding balance owed to

FinishMaster. The monthly statements requested payment of the entire outstanding balance by the

end of each month.

                 When Capital Collision failed to pay the outstanding balance owed to FinishMaster,

FinishMaster terminated the agreements and sought liquidated damages as provided for in

paragraph 8 of the agreements.3 FinishMaster sought $30,000.00 in liquidated damages under the


       3
            Paragraph 8 of the 2005 Agreement provides in relevant part:

       8.        TERMINATION AND LIQUIDATED DAMAGES This agreement may be
                 terminated by a non-breaching party upon breach of this Agreement by the
                 other party if such breach is not cured within ninety (90) days written notice
                 by the non-breaching party. If this Agreement should be terminated, neither
                 party shall be held liable for further purchases or discounts, as applicable. In
                 the event of a termination of this Agreement, Customer shall be responsible
                 within ten business days of the date of termination for the following:
                 •       Payment of all outstanding invoices.
                 •       Return of the Equipment Investment to Jobber in good working order.
                 •       Payment of Two Thousand, Three Hundred Ninety-Six and 00/100
                         Dollars ($2,396.00) to Jobber for the Material Investment or return an
                         equivalent value of saleable and merchandisable material . . . .
                 •       Payment of liquidated damages (“Liquidated Damages”) to Jobber.
                         Liquidated Damage[s] shall be calculated at 100% of the Jobber
                         Credit. Customer agrees that the damages resulting from a breach are
                         uncertain and difficult to ascertain and that the payment of Liquidated
                         Damages is a reasonable measure of Jobber’s damage upon
                         termination of this Agreement and that such remedy shall be in
                         addition to any others available Jobber at law or in equity.

                                                    2
2005 Agreement and payment of the outstanding balance of $3,749.59, plus $60,757.53 in liquidated

damages under the 2006 Agreement.

              FinishMaster filed suit on a sworn account against Hinojosa, Pampalone, and Capital

Collision. FinishMaster also asserted breach of contract claims and sought judgment in the amount




This paragraph appears with slight variations in both of the agreements between Capital Collision
and FinishMaster. In the 2006 Agreement, paragraph 8 reads:

       8.     TERMINATION AND LIQUIDATED DAMAGES This agreement shall
              terminate upon the earlier of: (a) the expiration of the Term, (b) the failure
              to make any payments required under this Agreement . . . . Upon the
              termination of this Agreement, neither party shall be held liable for further
              purchases, rebates, credits or discounts, as applicable. In the event of a
              termination of this Agreement, Customer shall be responsible within ten
              business days of the date of termination for the following:
              •      Payment of all outstanding invoices.
              •      Return of the Equipment Investment to Jobber in good working order.
              •      Payment of Three Thousand Four Hundred and 00/100 Dollars
                     ($3,400.00) to Jobber for the Material Investment or return an
                     equivalent value of saleable and merchandisable material . . . .
              •      Payment of liquidated damages (“Liquidated Damages”). Liquidated
                     Damages are payable to Jobber only if this Agreement terminates for
                     reasons other than the expiration of the Term. Liquidated Damage[s]
                     shall be calculated at 100% of the Jobber Credit. Liquidated
                     Damages shall be reduced over the Purchase Requirement by Sixty-
                     Two an 24/100 Dollars ($62.24) for every One Thousand and 00/100
                     Dollars ($1,000.00) of paint and material purchased and paid for by
                     the Customer. These product purchases shall be calculated at invoice
                     prices (refinish prices minus any point-of-sales discounts). Customer
                     agrees that the damages resulting from a breach are uncertain and
                     difficult to ascertain and that the payment of Liquidated Damages is
                     a reasonable measure of Jobber’s damage upon termination of this
                     Agreement and that such remedy shall be in addition to any others
                     available Jobber at law or in equity.

                                                3
of $94,507.12, plus attorney’s fees and costs. In response to FinishMaster’s suit, Capital Collision

filed an unsworn general denial.4

                 FinishMaster filed a motion for summary judgment on January 25, 2008, which was

heard by the trial court on February 28, 2008. Although the record reflects that Capital Collision

received notice of the summary judgment hearing, no one appeared at the hearing on behalf of

Capital Collision. During the hearing, the trial court took judicial notice of the court’s file and noted

for the record that “the last item filed of record [wa]s the plaintiff’s motion for summary judgment

on January [2]5, 2008. No response appears after that filing.”

                 With respect to FinishMaster’s motion to supplement its summary judgment

evidence, FinishMaster requested the trial court to supplement the summary judgment evidence

attached to FinishMaster’s motion for summary judgment5 with Exhibits A through H that had

been attached to FinishMaster’s original petition. The trial court took judicial notice of the court’s

file and the fact that Exhibits A through H were attached to FinishMaster’s original petition, which

was served on Capital Collision on December 20, 2007. The trial court granted FinishMaster’s

motion for leave to supplement its summary judgment evidence.

                 At the conclusion of the hearing, the trial court granted summary judgment in favor of

FinishMaster on all claims. The trial court’s judgment awarded FinishMaster the sum of $94,507.12,




        4
            Capital Collision filed its unsworn general denial on January 7, 2008.
        5
         The only exhibit attached to FinishMaster’s motion for summary judgment was Exhibit J,
the Affidavit of Joe Lea, regarding attorney’s fees.

                                                   4
plus pre- and post-judgment interest,6 plus attorney’s fees of $9,535.00, plus expenses and court

costs of $439.00. The trial court’s judgment stated, “This judgment is final and disposes of all

claims and all parties and is appealable.”

               Unbeknownst to either FinishMaster or the trial court, Capital Collision tendered

several pleadings for electronic filing with the trial court in the early morning hours of February 28,

2008—the day of the summary judgment hearing. Included among the pleadings offered by

Capital Collision on the day of the hearing were: (i) Defendant’s First Amended Answer to

Plaintiff’s Original Petition; (ii) Defendant’s Counterclaim; (iii) Defendant’s Motion to Reset

Summary Judgment Hearing and Alternatively Motion for Continuance of Plaintiff’s Motion for

Summary Judgment; and (iv) Defendant’s Objections to Plaintiff’s Summary Judgment Evidence,

and Motion for Leave to File Preliminary Response to Plaintiff’s Motion for Summary Judgment.

The record reflects that these pleadings were accepted for filing, but the record demonstrates that the

trial court was not aware of and did not consider any of the pleadings filed by Capital Collision when

it granted summary judgment in favor of FinishMaster at the hearing on February 28, 2008.

               Capital Collision filed a motion to reconsider and/or motion for new trial on

March 28, 2008, which was overruled by operation of law. This appeal followed.


                                             DISCUSSION

               In six issues, Capital Collision argues that the trial court erred in granting

summary judgment in favor of FinishMaster. Capital Collision contends that the trial court erred


       6
          The trial court’s judgment awarded pre-judgment interest of $1,164.75, plus post-judgment
interest “at the highest rate allowed by law per annum from the dated this judgment is signed until
this judgment is paid.”

                                                  5
because FinishMaster failed to meet its burden of showing there was no genuine issue of material

fact on its breach of contract claims or its suit on a sworn account. Capital Collision also contends

that the trial court’s judgment was in error because it does not dispose of all claims—namely, a

counterclaim filed by Capital Collision on the morning of the summary judgment hearing—and,

therefore, was not a final judgment. In addition, Capital Collision contends that the trial court

abused its discretion in denying Capital Collision leave to supplement the summary judgment

evidence on the day of the summary judgment hearing, in overruling Capital Collision’s objections

to FinishMaster’s summary judgment evidence, and in failing to grant a continuance requested

by Capital Collision. For the reasons explained below, we conclude these claims are without merit.


Standard of Review

               We review de novo the trial court’s grant of summary judgment. Joe v. Two Thirty

Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). 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). A plaintiff, as movant, can satisfy this burden by

conclusively proving all elements of its cause of action. See Tex. R. Civ. P. 166a(c); Rhone-Poulenc,

Inc. v. Steel, 997 S.W.2d 217, 222-223 (Tex. 1999); Walker v. Harris, 924 S.W.2d 375, 377

(Tex. 1996).    In deciding whether there is a disputed issue of material fact precluding

summary judgment, we take evidence favorable to the nonmovant as true, indulge every reasonable

inference in favor of the nonmovant, and resolve any doubts in the nonmovant’s favor. Shah

v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).


                                                 6
               We review the trial court’s evidentiary rulings for abuse of discretion. See

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); Owens-Corning Fiberglas

Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it acts

“without regard for any guiding rules or principles.” City of Brownsville v. Alvarado, 897 S.W.2d

750, 754 (Tex. 1995). An appellate court must uphold the trial court’s evidentiary ruling if there

is any legitimate basis for the ruling. See State Bar of Texas v. Evans, 774 S.W.2d 656, 658 n.5

(Tex. 1989). Moreover, we will not reverse a trial court for an erroneous evidentiary ruling unless

the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1; see also

Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

               Similarly, we review the trial court’s denial of a motion for continuance under a clear-

abuse-of-discretion standard. Two Thirty Nine Joint Venture, 145 S.W.3d at 161; Hernandez

v. Heldenfels, 374 S.W.2d 196, 202 (Tex. 1963). We will not disturb the trial court’s denial of a

requested continuance unless the record discloses a clear abuse of discretion. Two Thirty Nine Joint

Venture, 145 S.W.3d at 161.


Was the trial court’s judgment final?

               As a preliminary matter, we first consider Capital Collision’s third issue claiming that

the trial court’s judgment was not final because it did not dispose of all claims. Capital Collision

asserts that the trial court’s judgment is not a final judgment because it fails to dispose of the

counterclaim raised by Capital Collision in its amended pleadings filed on February 28, 2008—the

day of the summary judgment hearing.




                                                  7
                The rules of civil procedure allow parties to amend their pleadings “provided, that

any pleadings, responses, or pleas offered for filing within seven days of the date of trial or

thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after

leave of the judge is obtained.” Tex. R. Civ. P. 63. The rules thus require a party to seek leave of

court before filing an amended pleading within seven days of trial.7 Id.; see also Tex. R. Civ. P.

166a(c). The rules further provide that leave shall be granted “unless there is a showing that such

filing will operate as a surprise to the opposite party.” Tex. R. Civ. P. 63; see also Chapin & Chapin

v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex. 1992). In Chapin & Chapin v. Texas Sand

& Gravel Co., the supreme court explained that the trial court lacks discretion to deny amendments

to the pleadings where the change is merely procedural and does not change the substantive issues

for trial. 844 S.W.2d at 664-65 (allowing amendment to add verified denial to answer).8 Where

the amendment is substantive in nature and alters the issues for trial, the trial court retains discretion

to deny leave to amend. Id.; Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980) (affirming

denial of leave to amend on day of trial to add affirmative defenses). Moreover, when a trial court

refuses amendments introducing new substantive matters, the burden of showing an abuse of

discretion is on the complaining party, rather than on the opposite party to show surprise. Hardin,

597 S.W.2d at 349.



        7
          A summary judgment proceeding is a trial within the meaning of rule 63. See IKB Indus.,
Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997).
        8
          To the extent it can be argued that a trial court abuses its discretion in failing to grant leave
to file an amended answer to include a verification, we do not construe Capital Collision to make
that argument on appeal. In any event, we address that issue more fully below in our discussion
whether the trial court properly granted summary judgment in favor of FinishMaster.

                                                    8
                 Capital Collision does not dispute that its amended pleadings were substantive in

nature. Capital Collision argues instead that the trial court impliedly considered the amended

pleadings because the judgment states that the trial court considered the pleadings and evidence on

file. Therefore, according to Capital Collision the trial court’s judgment could not be final because

it did not dispose of all claims—i.e., the judgment did not dispose of Capital Collision’s

counterclaim.

                 In support of this argument, Capital Collision relies on Goswami v. Metropolitan

Savings & Loan Association, 751 S.W.2d 487 (Tex. 1988). In Goswami, the supreme court held

the failure to obtain leave of court when filing a late pleading could be cured if the trial court

considered the amended pleading. Id. at 490. The record in Goswami did not reflect whether leave

of court was requested or granted. Id. Likewise, there was no indication in Goswami that the

trial court refused leave to file, and the record did not include a motion to strike the amended

petition. Id. The amended petition was part of the record that was before the trial court, and the

trial court’s judgment stated all pleadings on file were considered. Id. Because there was no basis

in the record for the reviewing court to conclude that the trial court did not consider the amended

petition and there was no showing of surprise or prejudice, the supreme court presumed that leave

to amend was granted and concluded that the amended petition was properly before the trial court.

Id. at 490-91.

                 Unlike Goswami, however, the record in this case demonstrates that the trial court

did not consider Capital Collision’s amended pleadings when it granted summary judgment in favor

of FinishMaster. At the summary judgment hearing, the trial court took judicial notice of the



                                                 9
court’s file and found that nothing had been filed in the case since January 25, 2008—the date

FinishMaster filed its motion for summary judgment. Despite the language in the trial court’s

judgment that it considered the pleadings and evidence on file, the record is clear that the trial court

did not consider Capital Collision’s amended pleadings filed on the day of the summary judgment

hearing. Based on the record before us, we cannot presume that the trial court granted leave of court

to file Capital Collision’s amended pleadings. Cf. Goswami, 751 S.W.2d at 490-91 (presuming leave

of court was granted in the absence of contrary evidence). We conclude that Capital Collision’s

amended pleadings were not properly before the trial court and, therefore, the trial court’s judgment

was final because it disposed of all claims properly before it. We overrule Capital Collision’s

third issue.


Was summary judgment proper?

               In its first and second issues, Capital Collision argues that the trial court erred in

granting summary judgment to FinishMaster because FinishMaster failed to carry its burden of

demonstrating there was no genuine issue of material fact on its suit on a sworn account and its

claims for breach of contract. FinshMaster counters that the trial court’s grant of summary judgment

was proper because FinishMaster provided prima facie evidence of its suit on a sworn account, and

Capital Collision failed to file a timely sworn denial of FinishMaster’s claim; therefore, the

trial court properly granted summary judgment on FinishMaster’s claims.


        Suit on a sworn account

               Our review of the trial court’s grant of summary judgment in favor of FinishMaster



                                                  10
on its suit on a sworn account, although de novo, is limited by the record before us. See Panditi

v. Apostle, 180 S.W.3d 924, 927 (Tex. App.—Dallas 2006, no pet.); Price v. Pratt, 647 S.W.2d 756,

757 (Tex. App.—Corpus Christi 1983, no writ). As a general rule, pleadings alone do not constitute

summary judgment evidence. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

(Tex. 1979). Sworn account cases are one exception to this general rule because the pleadings in

such cases can form the basis for summary judgment. Andrews v. East Tex. Med. Ctr., 885 S.W.2d

264, 267 (Tex. App.—Tyler 1994, no writ); Enernational Corp. v. Exploitation Eng’rs, Inc.,

705 S.W.2d 749, 750 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.). It is within the

province of a reviewing court to determine, as a matter of law, whether the pleadings are sufficient

on their face to constitute a sworn account. See Price, 647 S.W.2d at 757. If there is a deficiency

in the plaintiff’s sworn account, the account will not constitute prima facie evidence of the debt.

Powers v. Adams, 2 S.W.3d 496, 498 (Tex. App.—Houston [14th Dist.] 1999, no pet.).

                To establish a prima facie case with sufficient evidence supporting a suit on a sworn

account, the movant must strictly follow the procedures outlined in the Texas Rules of Civil

Procedure. See Tex. R. Civ. P. 93(10), 166a, 185; Achimon v. J.I. Case Credit Corp., 715 S.W.2d

73, 76 (Tex. App.—Dallas 1986, writ ref’d n.r.e.). Rule 185 requires the plaintiff’s petition in a

suit on a sworn account to include a systematic, itemized statement of the goods or services sold.

Tex. R. Civ. P. 185. The petition must also reveal any offsets applied to the account, and it must be

supported by an affidavit stating that the claim is “just and true” and within the affiant’s knowledge.

Id. If properly filed, the plaintiff’s petition and affidavit supporting that petition become prima facie

evidence of the debt.



                                                   11
               The record demonstrates that FinishMaster’s petition included a systematic, itemized

statement of the goods sold to Capital Collision and the amount due and payable under the open

account, including the offsets applied to the account.9 FinishMaster’s petition was supported by

the affidavit of John C. Jenkens, FinishMaster’s National Credit Manager. In his affidavit, Jenkens

averred that the amount owed by Capital Collision was just and true, that all offsets had been

applied, and that the facts regarding the account were within his personal knowledge. On this record,

we conclude FinishMaster’s petition complied with the rules of civil procedure and, therefore,

established prima facie evidence of the $3,749.59 debt owed by Capital Collision.

               In the same context, the rules of civil procedure require a defendant to file a written

sworn denial of the account supported by an affidavit. Tex. R. Civ. P. 93(10); see Andrews,

885 S.W.2d at 267. Where the plaintiff’s petition is verified in accordance with rule 185 of the

Texas Rules of Civil Procedure, see Tex. R. Civ. P. 185, and copies of the contract and account are

attached and incorporated, summary judgment is proper if the defendant does not file a timely sworn

denial. Powers, 2 S.W.3d at 499; Larcon Petroleum, Inc. v. Autotronic Sys., Inc., 576 S.W.2d 873,

877 (Tex. App.—Houston [14th Dist.] 1979, no writ). The defendant’s sworn written denial must

comply with rules 93(10) and 185. Tex. R. Civ. P. 93(10), 185; Andrews, 885 S.W.2d 267. In the

absence of a properly filed written denial under oath, a defendant will not be permitted to deny




       9
          The balance owed by Capital Collision on the open account was $3,749.59. Thus, we
construe FinishMaster’s suit on a sworn account as seeking to recover this amount. To the extent
FinishMaster sought liquidated damages of $30,000 under the 2005 Agreement and $60,757.53
under the 2006 Agreement, we construe FinishMaster’s suit to seek those damages as part of its
breach of contract claims.

                                                 12
the receipt of services or the correctness of the charges. Vance v. Holloway, 689 S.W.2d 403, 404

(Tex. 1985); Rizk v. Financial Guardian Ins. Agency, Inc., 584 S.W.2d 860, 862 (Tex. 1979).

               Capital Collision argues that the trial court improperly granted summary judgment

because Capital Collision filed a sworn written denial on the morning of the summary judgment

hearing.   FinishMaster counters that Capital Collision’s amended answer, including Capital

Collision’s sworn written denial, was untimely filed and not properly before the trial court.

FinishMaster also asserts that even if Capital Collision’s amended answer was timely filed and

properly before the trial court, the trial court did not err in granting summary judgment because

Capital Collision’s amended answer does not comply with the rules of civil procedure. We agree

with FinishMaster.

               As previously discussed, the rules of civil procedure require a party to seek leave of

court to file an amended pleading within seven days of trial. Tex. R. Civ. P. 63, 166a(c). The record

reflects that Capital Collision did not seek leave of court to file an amended pleading within

seven days of the summary judgment hearing. Because Capital Collision did not seek leave of court

to file an amended pleading, we conclude Capital Collision’s amended answer was untimely filed

and, therefore, was not properly before the trial court. Tex. R. Civ. P. 63, 166a(c).

               Moreover, the amended answer is verified by Capital Collision’s counsel, not by

Capital Collision. Although the rules of civil procedure allow an attorney to verify a pleading

in some cases, see Tex. R. Civ. P. 14, a party responding to a suit on a sworn account must comply

with rules 93(10) and 185. A party’s attorney may verify a pleading by affidavit only where he

has personal knowledge of the facts, not based merely on his status as counsel. See Humphreys



                                                 13
v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (affidavit insufficient where not based on personal

knowledge); Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 116 (Tex. App.—Corpus Christi 1995,

writ denied) (showing of personal knowledge required); see also Gorrell v. Tide Prods., Inc.,

532 S.W.2d 390, 395 (Tex. App.—Amarillo 1975, no writ) (company officer who does not have

personal knowledge of certain matters cannot deny them under oath, since matters would be hearsay

to him). Aside from counsel’s statement that “I have personal knowledge of the facts states herein,”

nothing in the verification demonstrates the basis of counsel’s personal knowledge. The plain

language of the verification confirms that counsel merely has personal knowledge that the allegations

in FinishMaster’s original petition are denied. Based on the plain language of the affidavit, we

conclude counsel’s purported verification does not comply with rules 93(10) and 185. See Tex. R.

Civ. P. 93(10), 185; Cantu, 910 S.W.2d at 116; Gorrell, 532 S.W.2d at 395.

               In the absence of a timely filed sworn denial in compliance with rules 93(10) and 185,

Capital Collision could not deny FinishMaster’s suit on a sworn account, and FinishMaster was

entitled to summary judgment as a matter of law. See Hidalgo, 462 S.W.2d at 543 n.1; Andrews,

885 S.W.2d at 268; Cooper, 838 S.W.2d at 745. We overrule Capital Collision’s first issue.


       Breach of contract

               In its second issue, Capital Collision challenges the trial court’s judgment on

FinishMaster’s breach of contract claims. Capital Collision did not file a response to FinishMaster’s

motion for summary judgment. Instead, the record demonstrates that Capital Collision filed a

document entitled “Defendant’s Objections to Plaintiff’s Summary Judgment Evidence, and

Motion for Leave to File Preliminary Response to Plaintiff’s Motion for Summary Judgment.”

                                                 14
Capital Collision did not file this document until the early morning hours of February 28, 2008—the

day of the summary judgment hearing. Capital Collision did not bring this motion to the trial court’s

attention, and the record is clear that the trial court did not consider Capital Collision’s motion

for leave to file preliminary response to FinishMaster’s motion for summary judgment. Because

the motion was not brought to the trial court’s attention, the trial court was not required to consider

it. See Eddleman v. McGlathery, 11 S.W. 1100, 1101 (Tex. 1889) (court was not bound to consider

motion “merely filed with the clerk”); Risner v. McDonald’s Corp., 18 S.W.3d 903, 909

(Tex. App.—Beaumont 2000, pet. denied) (court not required to consider motion not called to its

attention); Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 179 (Tex. App.—Waco

1987, writ denied) (same).

               Nevertheless, a trial court may not grant summary judgment by default on the grounds

that a defendant has failed to file a response to the motion when the movant’s summary judgment

proof is insufficient. Clear Creek Basin Auth., 589 S.W.2d at 678. Summary judgments must stand

on their own merits and, as a reviewing court, we need only decide whether the movant’s summary

judgment proof was legally sufficient to establish all essential elements of the cause of action as a

matter of law. Id. With the exception of legal sufficiency, a nonmovant who fails to respond to a

summary judgment motion may not urge new grounds for reversal on appeal. Id.

               In addition to its suit on a sworn account, FinishMaster alleged breach of contract

claims and sought liquidated damages of $30,000 under the 2005 Agreement and $60,757.53 under

the 2006 Agreement. The elements of breach of contract include the existence of a valid contract,

performance or tender of performance by the plaintiff, failure or refusal to perform by the defendant,



                                                  15
and damage to the plaintiff as a result of the defendant’s breach. Taub v. Houston Pipeline Co.,

75 S.W.3d 606, 615 (Tex. App.—Texarkana 2002, pet. denied). The record demonstrates that

FinishMaster established the existence of two valid, enforceable contracts between Capital Collision

and FinishMaster. The record further demonstrates that FinishMaster performed under the contracts

by delivering paint and other related materials and equipment to Capital Collision and that

Capital Collision breached the contracts by failing to make timely payments. The record also

includes evidence of the damages suffered by FinishMaster as a result of Capital Collision’s breach,

including liquidated damages, costs of court, attorney’s fees, and expenses. In the absence of a

response by Capital Collision, FinishMaster’s summary judgment evidence was uncontroverted.

Based on the record before us, we conclude FinishMaster demonstrated there was no genuine issue

of material fact and that it was entitled to summary judgment on its breach of contract claims as a

matter of law. See Clear Creek Basin Auth., 589 S.W.2d at 678-79. We overrule Capital Collision’s

second issue.


Evidentiary rulings and failure to grant motion for continuance

                In three remaining issues, Capital Collision contends that the trial court abused its

discretion in allowing FinishMaster to supplement its summary judgment evidence on the day of the

hearing, in overruling Capital Collision’s objections to FinishMaster’s summary judgment evidence,

and in failing to grant a continuance. We review the trial court’s rulings on these matters for abuse

of discretion. Horizon/CMS Healthcare Corp., 34 S.W.3d at 906 (evidentiary rulings); Two Thirty

Nine Joint Venture, 145 S.W.3d at 161 (denial of continuance). Although Capital Collision raised

its objections to FinishMaster’s summary judgment evidence by motion filed on the day of

the summary judgment hearing, Capital Collision did not bring its motion to the attention of the

                                                 16
trial court. The same is true for Capital Collision’s motion for continuance—although the motion

was filed with the clerk of the trial court on the day of the summary judgment hearing,

Capital Collision did not bring the motion for continuance to the trial court’s attention. The filing

of a motion with the court clerk does not establish the motion was brought to the attention of the trial

court. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding). The clerk’s

knowledge of the motion is not imputed to the trial court. Id. The record in this case is clear that

the trial court was unaware of and did not consider Capital Collision’s objections to FinishMaster’s

summary judgment evidence or the motion for continuance. Because these matters were not brought

to the trial court’s attention, the trial court was not required to consider them. See Eddleman,

11 S.W. at 1101; Risner, 18 S.W.3d at 909; Greenstein, Logan & Co., 744 S.W.2d at 179. On this

record, we cannot say that the trial court abused its discretion in failing to consider matters that were

never brought to its attention. We overrule Capital Collision’s fourth, fifth, and sixth issues.


                                           CONCLUSION

                Having overruled Capital Collision’s issues on appeal, we affirm the trial court’s

grant of summary judgment in favor of appellee FinishMaster, Inc.



                                                __________________________________________

                                                Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: December 12, 2008



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