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Electronically Submitted
1/18/2024 12:07 PM
Hidalgo County Clerk
Accepted by: Nancy Flores
CAUSE NO. CL-22-4171-F
DAIMLER TRUCK FINANCIAL § IN THE COUNTY COURT
SERVICES USA LLC, §
PLAINTIFF, §
§
vs. § AT LAW NO. 6
§
JUAN MUNOZ, §
DEFENDANT. § HIDALGO COUNTY, TEXAS
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
54206.001
TO THE SAID HONORABLE COURT:
COMES NOW, DAIMLER TRUCK FINANCIAL SERVICES USA LLC, hereinafter
referred to as “Plaintiff”, and files this, its Motion for Summary Judgment against Defendant,
JUAN MUNOZ, hereinafter referred to as “Defendant”, and would show as follows:
I. PARTIES
1. Plaintiff is DAIMLER TRUCK FINANCIAL SERVICES USA LLC, who,
pursuant to the provisions of rule 166a(a) of the Texas Rules of Civil Procedure, moves for
summary judgment against JUAN MUNOZ, Defendant in this cause.
II. NATURE OF SUIT
2. At the special instance and request of Defendant, Plaintiff entered into an agreement
(the “Agreement”) with Defendant to provide Defendant with the items (the “Items”) more fully
described in the contract/invoices attached hereto as part of Exhibit “A” and incorporated herein
by reference as if set out word for word. Defendant accepted the Items and became bound and
liable to pay Plaintiff’s charges. Plaintiff fully complied with the Agreement; however, Defendant
has defaulted by failing to pay for all of the Items provided to it by Plaintiff. After all lawful
payments, offsets, credits and debits have been allowed, the principal balance due to Plaintiff is
$28,705.01. Plaintiff brought a sworn account and breach of contract suit against Defendant for
the principal amount due and owing plus interest, attorney’s fees, and costs of court.
III. ARGUMENT AND AUTHORITIES
3. When a plaintiff moves for summary judgment on its cause of action, the plaintiff
MC54206.001
Electronically Submitted
1/18/2024 12:07 PM
Hidalgo County Clerk
Accepted by: Nancy Flores
is entitled to summary judgment if it proves all essential elements of its claim as a matter of law.
MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Plaintiff must show there is no genuine issue
of material fact. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.
1991).
4. Plaintiff is entitled to summary judgment because there is no genuine issue of
material fact and Plaintiff can prove each element of its cause of action as a matter of law. To
carry its burden, Plaintiff must prove all elements of its cause of action. The elements of a cause
based on a written contract or debt are that: 1) there was a valid agreement; 2) the plaintiff
performed or tendered performance; 3) the defendant breached; and 4) the plaintiff suffered
damages. Hussong v. Schwan Sales Enterprises, Inc., 896 S.W.2d 320, 326 (Tex. App.—Houston
[1st Dist.] 1995, no writ).
IV. EVIDENCE
5. The following exhibits are attached to this Motion and incorporated herein as if set
out word for word:
Exhibit A: Plaintiff’s Affidavit in Support of Summary Judgment and Attached
Business Records
Exhibit B: Affidavit of Ian A. McCarthy
V. GROUNDS
6. The above exhibits establish the following facts:
Agreement/Debt:
a. Defendant entered into the Agreement with Plaintiff to purchase the Items
more fully described in the contract/invoices attached hereto as part of
Exhibit “A” and incorporated herein as if set out word for word.
b. Plaintiff fully complied with the Agreement and provided Defendant with
the Items requested by Defendant.
c. Defendant accepted the Items provided by Plaintiff.
d. Defendant has defaulted on the Agreement by failing to pay for all of the
Items provided by Plaintiff.
e. Deducting proper debits and credits, there remains a balance due and owing
of $28,705.01.
MC54206.001
Electronically Submitted
1/18/2024 12:07 PM
Hidalgo County Clerk
Accepted by: Nancy Flores
f. As a matter of law, Defendant has breached the agreement made the basis
of this suit and remains indebted to Plaintiff in the amount of $28,705.01.
Attorney’s Fees:
a. Because the claim for attorney’s fees is included in a suit for breach of
contract, which is a claim listed in Texas Civil Practice & Remedies Code
section 38.001, attorney’s fees are appropriate.
b. Additionally, the Agreement provides that Defendant will pay reasonable
attorney’s fees if suit is brought for collection or enforcement.
c. $1,770.00 is a reasonable, necessary, and customary amount for Plaintiff’s
attorney’s fees in this matter.
d. If Defendant unsuccessfully appeals this case to the court of appeals,
Plaintiff is entitled to an additional amount of $10,000.00.
e. If Defendant unsuccessfully appeals this case to the Texas Supreme Court,
Plaintiff is entitled to an additional amount of $10,000.00.
VI. ATTORNEY’S FEES AND INTEREST
7. As shown by Plaintiff’s original petition on file in this cause, Plaintiff has pleaded
for attorney’s fees in a reasonable amount as provided by applicable statute. There is no genuine
issue of fact about the basis for recovery of attorney’s fees in this cause or about the amount
thereof, and as a matter of law Plaintiff is entitled to recover attorney’s fees as alleged in Plaintiff’s
original petition on file herein and as evidenced by Attorney’s Affidavit in Support of Fees
attached hereto.
8. The Agreement does not specify an interest or time-price differential, therefore
Plaintiff is entitled to statutory post-judgment interest pursuant to Texas Finance Code § 304.003.
VII. PRAYER
9. Plaintiff prays that:
a. Plaintiff be granted summary judgment for $28,705.01 on the debt owed
Plaintiff;
b. Plaintiff be granted summary judgment for pre-judgment interest, post-
judgment interest, and costs of court, all as prayed for in Plaintiff’s original
petition on file herein;
MC54206.001
Electronically Submitted
1/18/2024 12:07 PM
Hidalgo County Clerk
Accepted by: Nancy Flores
c. Plaintiff be granted summary judgment for attorney’s fees as prayed for in
Plaintiff’s most recent petition on file herein; and
d. Plaintiff be granted all further relief to which Plaintiff may be entitled.
Respectfully submitted,
BARNETT & GARCIA
A Professional Limited Liability Company
3821 Juniper Trace, Suite 108
Austin, Texas 78738
TELEPHONE: (512) 266-8830
FACSIMILE: (512) 266-8803
/s/ Ian A. McCarthy____
Ian A. McCarthy
State Bar No. 24078960
ian@barnettgarcia.com
Lawrence J. Falli
State Bar No. 24068702
Matias Eduardo Garcia
State Bar No. 24012675
Kayleigh Kristine Smith
State Bar No. 24099971
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the above was forwarded to pro se Defendant by
facsimile or by regular mail and certified mail, return receipt requested, on the 18th day of
January, 2024.
/s/ Ian A. McCarthy_______
Ian A. McCarthy
Juan Munoz
10905 North Mile 4 W
Weslasco, Texas 78599
MC54206.001
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Shannon Shelton on behalf of Ian McCarthy
Bar No. 24078960
paralegal2@barnettgarcia.com
Envelope ID: 83534097
Filing Code Description: Motion (No Fee)
Filing Description: Plaintiff's Motion for Summary Judgment
Status as of 1/18/2024 1:16 PM CST
Associated Case Party: DAIMLER TRUCK FINANCIAL SERVICES USA LLC
Name BarNumber Email TimestampSubmitted Status
Ian McCarthy ian@barnettgarcia.com 1/18/2024 12:07:23 PM SENT
Preview
Electronically Submitted 1/18/2024 12:07 PM Hidalgo County Clerk Accepted by: Nancy Flores CAUSE NO. CL-22-4171-F DAIMLER TRUCK FINANCIAL § IN THE COUNTY COURT SERVICES USA LLC, § PLAINTIFF, § § vs. § AT LAW NO. 6 § JUAN MUNOZ, § DEFENDANT. § HIDALGO COUNTY, TEXAS PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 54206.001 TO THE SAID HONORABLE COURT: COMES NOW, DAIMLER TRUCK FINANCIAL SERVICES USA LLC, hereinafter referred to as “Plaintiff”, and files this, its Motion for Summary Judgment against Defendant, JUAN MUNOZ, hereinafter referred to as “Defendant”, and would show as follows: I. PARTIES 1. Plaintiff is DAIMLER TRUCK FINANCIAL SERVICES USA LLC, who, pursuant to the provisions of rule 166a(a) of the Texas Rules of Civil Procedure, moves for summary judgment against JUAN MUNOZ, Defendant in this cause. II. NATURE OF SUIT 2. At the special instance and request of Defendant, Plaintiff entered into an agreement (the “Agreement”) with Defendant to provide Defendant with the items (the “Items”) more fully described in the contract/invoices attached hereto as part of Exhibit “A” and incorporated herein by reference as if set out word for word. Defendant accepted the Items and became bound and liable to pay Plaintiff’s charges. Plaintiff fully complied with the Agreement; however, Defendant has defaulted by failing to pay for all of the Items provided to it by Plaintiff. After all lawful payments, offsets, credits and debits have been allowed, the principal balance due to Plaintiff is $28,705.01. Plaintiff brought a sworn account and breach of contract suit against Defendant for the principal amount due and owing plus interest, attorney’s fees, and costs of court. III. ARGUMENT AND AUTHORITIES 3. When a plaintiff moves for summary judgment on its cause of action, the plaintiff MC54206.001 Electronically Submitted 1/18/2024 12:07 PM Hidalgo County Clerk Accepted by: Nancy Flores is entitled to summary judgment if it proves all essential elements of its claim as a matter of law. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Plaintiff must show there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991). 4. Plaintiff is entitled to summary judgment because there is no genuine issue of material fact and Plaintiff can prove each element of its cause of action as a matter of law. To carry its burden, Plaintiff must prove all elements of its cause of action. The elements of a cause based on a written contract or debt are that: 1) there was a valid agreement; 2) the plaintiff performed or tendered performance; 3) the defendant breached; and 4) the plaintiff suffered damages. Hussong v. Schwan Sales Enterprises, Inc., 896 S.W.2d 320, 326 (Tex. App.—Houston [1st Dist.] 1995, no writ). IV. EVIDENCE 5. The following exhibits are attached to this Motion and incorporated herein as if set out word for word: Exhibit A: Plaintiff’s Affidavit in Support of Summary Judgment and Attached Business Records Exhibit B: Affidavit of Ian A. McCarthy V. GROUNDS 6. The above exhibits establish the following facts: Agreement/Debt: a. Defendant entered into the Agreement with Plaintiff to purchase the Items more fully described in the contract/invoices attached hereto as part of Exhibit “A” and incorporated herein as if set out word for word. b. Plaintiff fully complied with the Agreement and provided Defendant with the Items requested by Defendant. c. Defendant accepted the Items provided by Plaintiff. d. Defendant has defaulted on the Agreement by failing to pay for all of the Items provided by Plaintiff. e. Deducting proper debits and credits, there remains a balance due and owing of $28,705.01. MC54206.001 Electronically Submitted 1/18/2024 12:07 PM Hidalgo County Clerk Accepted by: Nancy Flores f. As a matter of law, Defendant has breached the agreement made the basis of this suit and remains indebted to Plaintiff in the amount of $28,705.01. Attorney’s Fees: a. Because the claim for attorney’s fees is included in a suit for breach of contract, which is a claim listed in Texas Civil Practice & Remedies Code section 38.001, attorney’s fees are appropriate. b. Additionally, the Agreement provides that Defendant will pay reasonable attorney’s fees if suit is brought for collection or enforcement. c. $1,770.00 is a reasonable, necessary, and customary amount for Plaintiff’s attorney’s fees in this matter. d. If Defendant unsuccessfully appeals this case to the court of appeals, Plaintiff is entitled to an additional amount of $10,000.00. e. If Defendant unsuccessfully appeals this case to the Texas Supreme Court, Plaintiff is entitled to an additional amount of $10,000.00. VI. ATTORNEY’S FEES AND INTEREST 7. As shown by Plaintiff’s original petition on file in this cause, Plaintiff has pleaded for attorney’s fees in a reasonable amount as provided by applicable statute. There is no genuine issue of fact about the basis for recovery of attorney’s fees in this cause or about the amount thereof, and as a matter of law Plaintiff is entitled to recover attorney’s fees as alleged in Plaintiff’s original petition on file herein and as evidenced by Attorney’s Affidavit in Support of Fees attached hereto. 8. The Agreement does not specify an interest or time-price differential, therefore Plaintiff is entitled to statutory post-judgment interest pursuant to Texas Finance Code § 304.003. VII. PRAYER 9. Plaintiff prays that: a. Plaintiff be granted summary judgment for $28,705.01 on the debt owed Plaintiff; b. Plaintiff be granted summary judgment for pre-judgment interest, post- judgment interest, and costs of court, all as prayed for in Plaintiff’s original petition on file herein; MC54206.001 Electronically Submitted 1/18/2024 12:07 PM Hidalgo County Clerk Accepted by: Nancy Flores c. Plaintiff be granted summary judgment for attorney’s fees as prayed for in Plaintiff’s most recent petition on file herein; and d. Plaintiff be granted all further relief to which Plaintiff may be entitled. Respectfully submitted, BARNETT & GARCIA A Professional Limited Liability Company 3821 Juniper Trace, Suite 108 Austin, Texas 78738 TELEPHONE: (512) 266-8830 FACSIMILE: (512) 266-8803 /s/ Ian A. McCarthy____ Ian A. McCarthy State Bar No. 24078960 ian@barnettgarcia.com Lawrence J. Falli State Bar No. 24068702 Matias Eduardo Garcia State Bar No. 24012675 Kayleigh Kristine Smith State Bar No. 24099971 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that a true and correct copy of the above was forwarded to pro se Defendant by facsimile or by regular mail and certified mail, return receipt requested, on the 18th day of January, 2024. /s/ Ian A. McCarthy_______ Ian A. McCarthy Juan Munoz 10905 North Mile 4 W Weslasco, Texas 78599 MC54206.001 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Shannon Shelton on behalf of Ian McCarthy Bar No. 24078960 paralegal2@barnettgarcia.com Envelope ID: 83534097 Filing Code Description: Motion (No Fee) Filing Description: Plaintiff's Motion for Summary Judgment Status as of 1/18/2024 1:16 PM CST Associated Case Party: DAIMLER TRUCK FINANCIAL SERVICES USA LLC Name BarNumber Email TimestampSubmitted Status Ian McCarthy ian@barnettgarcia.com 1/18/2024 12:07:23 PM SENT