                                IN THE
                        TENTH COURT OF APPEALS

                              No. 10-12-00301-CV

GHASSAN E. NADDOUR AND
SUZANNE NADDOUR,
                                                        Appellants
v.

ONEWEST BANK, FSB,
                                                        Appellee


                         From the 40th District Court
                             Ellis County, Texas
                            Trial Court No. 81842


                         MEMORANDUM OPINION


      In 2007, Ghassan E. Naddour and Suzanne Naddour, now residents of

California, signed a promissory note secured by a deed of trust as to residential

property in Midlothian, Texas.    In 2010, the Naddours stopped paying on the

promissory note. At about the same time, the note and deed of trust were assigned to

Onewest Bank, FSB.    A few months later, a release of lien was executed, not by

Onewest, and filed in the public records of Ellis County, Texas. Onewest then sought
declaratory relief as to the status of the lien. The trial court granted Onewest’s motion

for summary judgment, and the Naddours appealed.             Because the trial court had

jurisdiction to rule on the motion for summary judgment, the Naddours failed to

preserve an issue for appellate review, and the trial court did not allow testimony at the

summary judgment hearing, the trial court’s judgment is affirmed.

JURISDICTION

       In their first issue, the Naddours ask several questions:

              Did the court violate the Texas Constitution, Article 5 Section 15?
       Are all courts of the state of Texas, to proceed as courts of record when
       decreed so by one the people of the state of Texas? Whether Bob Carroll
       exceeded his jurisdiction in this court of record by acting as if it was
       equity proceeding and not a proceeding in common law.

In the body of their brief, the Naddours dedicated two subsections labeled “A. Court of

Record” and “B. The Courts Inherent Powers” to this issue. It is difficult to determine

what this multifarious issue is complaining about and what relief the Naddours are

requesting. It appears the Naddours are questioning the jurisdiction of the trial court to

rule in the case. To the extent there is any other argument imbedded in this issue, it is

waived. See TEX. R. APP. P. 38.1(i).

       The existence of subject matter jurisdiction is a question of law. State Dept. of

Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). When the nature

of the case falls within the general category of cases that the court is empowered to

adjudicate pursuant to applicable statutory and constitutional provisions, subject matter


Naddour v. OneWest Bank, FSB                                                        Page 2
jurisdiction exists. City of El Paso v. Arditti, 378 S.W.3d 661, 665 (Tex. App.—El Paso

2012, no pet.).

       The Naddours appear to be confused about the type of court in which Onewest’s

summary judgment was heard because they question whether the trial court violated

article V, section 15 of the Texas Constitution. That section, however, concerns county

courts and county judges. The court in which Onewest filed its petition and its motion

for summary judgment was the 40th District Court located in Ellis County. TEX. GOV'T

CODE ANN. § 24.142 (West 2004). A constitutional delegation of general power to the

district courts is found in article V, section 8, of the Texas Constitution; and a statutory

grant of power to such courts is found in section 24.008 of the Texas Government Code,

assigning to the district courts a general power to "hear and determine any cause that is

cognizable by courts of law or equity and [to] grant any relief that could be granted by

either courts of law or equity." TEX. GOV'T CODE ANN. § 24.008 (West 2004). See Sierra

Club v. Texas Natural Resource Conservation Com'n, 26 S.W.3d 684, 687 (Tex. App.—

Austin 2000), aff'd on other grounds, 70 S.W.3d 809 (Tex. 2002). Further, a district court

has original jurisdiction of civil matters in which the amount in controversy is more

than $500, exclusive of interest. TEX. GOV'T CODE ANN. § 24.007(b) (West 2004).

       Onewest filed a petition seeking a declaratory judgment that the promissory

note, executed by the Naddours and secured by a deed of trust, creates a valid lien

against the property and that the lien has not been released or extinguished. The


Naddour v. OneWest Bank, FSB                                                          Page 3
amount of the promissory note is over $200,000, thus exceeding the minimum amount

in controversy over which a district court would have jurisdiction.

       The Uniform Declaratory Judgment Act provides that a court of record within its

jurisdiction has the power to declare rights, status, and other legal relations whether or

not further relief is or could be claimed. TEX. CIV. PRAC. & REM. CODE § 37.003 (West

2008). Although the UDJA does not create or enlarge a trial court’s subject matter

jurisdiction, a declaratory judgment action will lie within the subject-matter jurisdiction

of the district courts when there is (1) a justiciable controversy as to the rights and status

of parties actually before the court for adjudication; and (2) that will be actually

resolved by the declaration sought. Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163-64

(Tex. 2004); Tex. Logos, L.P. v. Tex. DOT, 241 S.W.3d 105, 114 (Tex. App.—Austin 2007,

no pet.).

       Here, there is a real controversy between the Naddours and Onewest as to

whether or not Onewest could collect on the promissory note by foreclosing on the

Naddours’ property.      Generally, to collect on a promissory note, a plaintiff must

establish: (1) the existence of the note in question, (2) the defendant signed the note, (3)

the plaintiff is the owner and holder of the note, and (4) a certain balance is due and

owing on the note. Cadle Co. v. Regency Homes, Inc., 21 S.W.3d 670, 674 (Tex. App.—

Austin 2000, pet. denied). Because the question of whether a balance on the note was

due and owing was an essential element of Onewest’s right to collect, whether by


Naddour v. OneWest Bank, FSB                                                            Page 4
private or judicial foreclosure or otherwise, this controversy would be resolved by a

determination that the lien has not been released or extinguished. See, e.g., Wells Fargo

Bank, N.A. v. Ballestas, 355 S.W.3d 187, 191-192 (Tex. App.—Houston [1st Dist.] 2011, no

pet.).

         Thus, the trial court had jurisdiction to act in the proceeding below, and the

Naddours’ first issue is overruled.

AFFIDAVIT

         The Naddours next complain that the trial court erred in granting summary

judgment in favor of Onewest because the evidence submitted by Onewest was in the

form of an affidavit which, the Naddours argue, was not based on the personal

knowledge of the affiant. At first blush, it appears that the Naddours argue that the

trial court erred in granting summary judgment when Onewest did not address the

Naddours’ cross-petition in its motion for summary judgment.               However, when

analyzing the Naddours’ argument, we find that they more narrowly argued the trial

court erred because the only evidence supporting Onewest’s motion for summary

judgment was an affidavit that was not based on personal knowledge and was

insufficient. That is the argument we will address.

         Rule 166a(f) provides that affidavits in support of or in opposition to a motion for

summary judgment shall be made on personal knowledge. TEX R. CIV. P. 166a(f); see In

re DuPont de Nemours & Co., 136 S.W.3d 218, 224 (Tex. 2004) (“For an affidavit to have


Naddour v. OneWest Bank, FSB                                                           Page 5
probative value, an affiant must swear that the facts presented in the affidavit reflect his

personal knowledge.”). The Naddours complained about this alleged deficiency in

their response to Onewest’s motion for summary judgment. However, in the summary

judgment context, a nonmovant must obtain a ruling on an objection to the form of a

motion or supporting evidence to preserve the issue for appellate review. 1 See TEX. R.

APP. P. 33.1(a)(2); McFarland v. Citibank, N.A., 293 S.W.3d 759, 762 (Tex. App.—Waco

2009, no pet.); Allen v. Albin, 97 S.W.3d 655, 662-63 (Tex. App.—Waco 2002, no pet.).

The Naddours did not secure a ruling on their objection.                      Thus, this issue is not

preserved for our review and is overruled.

SUMMARY JUDGMENT HEARING

        Last, the Naddours argue that the trial court abused its discretion in allowing

Onewest’s counsel to testify and present argument at the summary judgment hearing,

relying on O’CONNOR’S TEXAS RULES * CIVIL TRIALS 563 (2011) and In re Am. Media

Consol., 121 S.W.3d 70, 74 (Tex. App.—San Antonio 2003, orig. proceeding) for this




1
  We acknowledge that the Naddours argue there is a split in authority as to whether an objection is
needed at trial to later complain on appeal that an affidavit was not based on personal knowledge. See
Dailey v. Albertson's, Inc., 83 S.W.3d 222, 226 (Tex. App.—El Paso 2002, no pet.). However, this court and
the majority of the courts of appeals in Texas have held that the lack of personal knowledge is a defect as
to form to which a party must object in the trial court. See, e.g., Wolfe v. Devon Energy Prod. Co., 382
S.W.3d 434, 452 (Tex. App.—Waco 2012, pet. filed); McFarland v. Citibank (S.D.), N.A., 293 S.W.3d 759, 762
(Tex. App.—Waco 2009, no pet.); Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 241 (Tex.
App.—Waco 2003, no pet.). See also Washington DC Party Shuttle, LLC v. IGuide Tours, LLC, 406 S.W.3d
723, 735 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We see no need to change our position at this
juncture.


Naddour v. OneWest Bank, FSB                                                                         Page 6
argument. Those authorities, however, stand for the proposition that a hearing is not

mandatory.

         The rule on summary judgments provides in part:

         Except on leave of court, with notice to opposing counsel, the motion and
         any supporting affidavits shall be filed and served at least twenty-one
         days before the time specified for hearing. Except on leave of court, the
         adverse party, not later than seven days prior to the day of hearing may
         file and serve opposing affidavits or other written response. No oral
         testimony shall be received at the hearing.

TEX. R. CIV. P. 166a(c). The rule specifically contemplates the ability to participate in a

hearing, if one is held in open court, on a motion for summary judgment, although

participation may be limited to the motion and other documents filed in conjunction

with a hearing. The only prohibition is that no oral testimony may be received at that

hearing.    Id. See Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 269 n. 4 (Tex. 1992).

Testimony is defined as “*e+vidence that a competent witness under oath or affirmation

gives at trial or in an affidavit or deposition.” BLACK’S LAW DICTIONARY 1514 (8th ed.

2004).    No oral testimony was received at the summary judgment hearing.            Only

arguments of counsel for Onewest and Ghassan Naddour were presented which are not

prohibited by the rule. Accordingly, the trial court did not abuse its discretion in

allowing oral argument at the hearing on the motion for summary judgment. The

Naddours’ third issue is overruled.




Naddour v. OneWest Bank, FSB                                                         Page 7
CONCLUSION

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

judgment.




                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed December 5, 2013
[CV06]




Naddour v. OneWest Bank, FSB                                                 Page 8
