No. 12-14-00344-CV
In the Court of Appeals 5/14/2015
Twelfth District of Texas
at Tyler
_________________________________________________________________
Victor Lissiak, Jr.
Appellant
V.
SW Loan OO, L.P.
Appellee
_________________________________________________________________
On Appeal from the 7th Judicial District Court
of Smith County, Texas
_________________________________________________________________
Appellee's Brief and Appendix
_________________________________________________________________
Stephen Sakonchick, II
State Bar No. 17525500
Stephen Sakonchick II, P.C.
6502 Canon Wren Drive
Austin, Texas 78746
(512) 329-0375
(512) 697-2859 (fax)
Attorney for Appellee
SW Loan OO, L.P.
Table of Contents
Index of Authorities ...................................... v
Statement of the Case ..................................... x
Statement Regarding Oral Argument ......................... xi
Issues Presented .......................................... xi
Standard of Review ........................................ xii
Statement of Facts ........................................ 1
Summary of the Argument ................................... 3
Argument .................................................. 7
The Trial Court Impliedly Overruled Lissiak’s Objections
To Sw’s Summary Judgment Evidence and Sustained Sw’s
Objections to Lissiak’s Summary Judgment Evidence ....... 8
Alternative, Objection to Defects in Lissiak’s Summary
Judgment Evidence- Brought Forward as Cross-Points ...... 10
Defects in Lissiak’s Affidavit ....................... 10
Defects in Don’s Affidavit ........................... 11
Defects in the Holmes Declaration .................... 12
Elements for a Suit on a Note ........................... 13
Summary Judgment Evidence to Prove Up a Note ............ 13
SW’s Summary Judgment Evidence and Prima Facie Case on
the Note ................................................ 16
Restated Issue No. 1- The trial court dd not err in
granting SW summary judgment since there were no genuine
issue of material fact .................................. 17
Issue 1a-Holder Status ............................... 18
Issue 1b-Lissiak’s Signature on the $2.5 Million
Note ................................................. 18
Issue 1c-Consideration ............................... 21
Issue 1d-Cancellation of Note ........................ 23
-ii-
Issue 1e-Estoppel .................................... 25
Restated Issue No. 2- The trial court did not err in
granting SW summary judgment since there was no genuine
issue of material fact on the elements of SW’s claims ... 26
Issue 2a-SW is a Holder .............................. 26
Issue 2b-Lissiak’s Signature on the $2.5 Million
Note ................................................. 26
Issue 2c-Consideration ............................... 27
Restated Issue No. 3- The trial court dd not err in
granting SW summary judgment since there was no competent
summary judgment proof submitted by Lissiak to create a
genuine issue of material fact on the elements of
Lissik’s affirmative defenses ........................... 28
Issue 3a-SW is a Holder .............................. 29
Issue 3b-Lissiak’s Signature on the $2.5 Million
Note ................................................. 29
Issue 3c-Consideration ............................... 30
Issue 3d-The Debt was Not Cancelled by the Renewal
Notes ................................................ 30
Issue 3e-Promissory Estoppel ......................... 32
Restated Issue 3f-There was No Material Alteration
or Cancellation by Payment Extension ................. 34
Restated Issue 3g-Section 3.605, Texas Business and
Commerce Code, There is no Discharge of Liability .... 35
Restated Issue No. 4- The trial court dd not err in
granting SW summary judgment since SW presented competent
summary judgment evidence on all of the elements of
its claims .............................................. 38
Objection to the Bates Affidavit ..................... 39
Objections to the Mortimer Affidavit ................. 40
Objections to the Lang Affidavit ..................... 42
Restated Issue No. 5-The trial court dd not abuse its
discretion in granting SW summary judgment .............. 43
-iii-
Restated Issue 5a-the trial court impliedly
overruled Lissiak’s objections to the Bates,
Mortimer and Lang affidavits and Lissiak has
appealed that ruling ................................. 45
Restated Issue 5b-SW met its burden of proof on
summary judgment and the court did not abuse its
discretion in granting the motion for summary
judgment ............................................. 46
Restated Issue 5c-SW meet its burden of proof and
was entitled to summary judgment ..................... 46
Relief In Lissiak’s Conclusion and Prayer ............... 46
Conclusion and Prayer ..................................... 47
Certificate of Compliance ................................. 47
Certificate of Service .................................... 47
Appendix
Confidentiality Agreement (CR, v. 3 at 619).......... A-1
Relevant Statutes and Rules .......................... A-2
-iv-
INDEX OF AUTHORITIES
Cases
Alejandro v. Bell, 84 S.W.3d 383, 387-88 (Tex. App.-
Corpus Christi 2002 no pet) citing to Columbia Rio
Grande Reg'l Hosp. v. Stover, 17 S.W.3d 387, 395
(Tex.App.-Corpus Christi 2000, no pet.) .................. 45
Atchley v. NCNB Texas National Bank, 795 S.W.2d 336,
337 (Tex. App. - Beaumont 1990, writ denied) ............. 14,17
42,43
Bank of Austin v. Barnett, 549 S.W.2d 428 (Tex. Civ.
App.-Austin 1977, no writ) ............................... 20,36
Barnam v. Sugar Creek National Bank, 612 S.W.2d 78,
80, (Tex. App.-Houston [14th Dist] 1981, no writ) ......... 15,16,
39,40,
42,43
Bean v. Bluebonnet Sav. Bank FSB, 884 S.W.2d 520, 522
(Tex. App.-Dallas 1994, no writ) ......................... 13
Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App.-
Fort Worth 1998, no pet.) ................................ 9
Boyd v. Diversified Fin. Sys., 1 S.W. 3d 888, 891 (Tex.
App-Dallas 1999, no pet) ................................. 14,16,
Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-
Dallas 2004, pet denied) ................................. 10
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) .... 11,12,
29,32,
37,39
C&G Coin Meter Supply Corp. v. First National Bank,
413 S.W.2d 151, 154 (Tex. Civ. App.-Eastland 1967,
writ ref’d n.r.e.) ....................................... 24,34
Christian v. University Federal Savings, 792 S.W.2d 533,
534 (Tex. App.--Houston [1st Dist.] 1990, no writ) ....... 13,16
City of Houston v. Lyons Realty Ltd, 710 S.W.2d 625,
629 (Tex. App.-Houston, 1986, no writ) ................... 22
Clark v. Dedina, 658 S.W.2d 293, 295 (Tex. App.-
Houston [1st Dist.] 1983, writ dism'd) ................... 13
-v-
Conte v. Greater Houston Bank, 641 S.W.2d 411, 414 (Tex.
App.-Houston [14th Dist] 1982, writ ref'd n.r.e.) ........ 11,12,
32,37
Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied) .................. 9
Eli Lilly & Co. v. Marshall, 829 S.W.2d 157, 158
(Tex. 1992) .............................................. 44
Fair Woman, Inc. v. Transland Management Corp., 766
S.W.2d 323 (Tex. App. - Dallas 1989, no writ) ............ 11,12
First Galesburg Nat. Bank, Etc. v. Martin, 58 Ill.
App. 3d 113, 15 Ill. Dec. 603, 373 N.E.2d 1075 (1978)..... 36
First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425,
428 (Tex. App.--San Antonio 1995, writ denied) ........... 13,14,
16,41,
42
First State Bank v. Kellman, 851 S.W.2d 914, 920
(Tex. App.-Austin 1993, writ denied) ..................... 24
Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.-
Fort Worth 1999, pet. denied) ............................ 9
Fulenweider v. City of Teague, 680 S.W.2d 582, 585
(Tex. App.-Waco 1984, no writ) ........................... 11,12,
13,32,
37
Gaylord Container Division of Crown Zellerbach
Corporation v. H. Rouw Company, 392 S.W.2d 118,
120 (Tex. 1965) .......................................... 22,28,
33
Gibralter Savings Association v. Watson, 624 S.W.2d
650 (Tex. App.-Houston [14th Dist.] 1981 no writ) ......... 36
Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997) ....... 43,46
Harley-Davidson Motor Co. v Young, 720 S.W.2d 211,
213 (Tex. App.-Houston [14th Dist.] 1986, no writ) ........ 10,11
13,32,
37
-vi-
Holland v. First Nat. Bank in Dallas, 597 S.W.2d. 408,
411 (Tex. Civ. App.-Dallas 1980, writ dism’d) ............ 14,16,
39,41,
42
Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103,
112 (Tex. App.-Houston [14th Dist.] 1986, no writ) ........ 10
Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201 (1892) ........ 22
In re Kleven, 100 S.W.3d 643, 644 (Tex. App–Texarkana
2003 orig. proceeding) ................................... 44
In re Shredder Co., 225 S.W.3d 676, 679 (Tex. App–
El Paso 2006 orig., proceeding) .......................... 44
Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d
507, 515-16 (Tex. 1998) .................................. 26,33
Landers v. Texas American Bank, 788 S.W.2d 162, 165
(Tex. App. - Ft. Worth 1990, no writ) .................... 15,16,
39,40,
42,43
Mid-Eastern Electronics, Inc. v. First National Bank of
Southern Maryland, 7 U.C.C. 1089 (4th Cir. 1970) ......... 36
Nixon v. Mr. Property Management Co., 690 S.W.2d 546,
548-49 (Tex.1985) ........................................ xii
Odom v. Insurance Company of the State of Penn., 455
S.W.2d 195, 198 (Tex. 1970) .............................. xii
Provident Life & Accident Ins. Co. v. Knott,
128 S.W. 3d 211,215 (Tex. 2003) .......................... xii
People’s Bank of South Carolina, Inc. v. Robinson,
272 S.C. 155, 249 S.E. 2d 784 (1978) ..................... 36
Priest v. First Mortgage Company of Texas, Inc.,
659 S.W.2d 869, 871 (Tex. Civ. App.-San Antonio 1983,
writ ref’d n.r.e.) ....................................... 23
Schwab v. Schlumberger Well Surveying Corp.,
198 S.W.2d 79 (Tex. 1946) ................................ 20,23,
27,34
Slaughter v. Philadelphia National Bank, 290 F.Supp.
234 (E.D.Pa.1968) ........................................ 36
-vii-
Smith v. First Pasadena State Bank, 401 S.W.2d 123,
127 (Tex.App.--Houston [1st Dist.] 1966, no writ) ........ 23,27,
31
SMS Fin., LLC v. ABCO Homes, Inc., 167 F.3d 235, 238
(5th Cir. 1999) .......................................... 13
State Bank of Grove v. North, 418 P.2d 928 (Okla. 1966) .. 19
Thompson v. Chrysler First Bus. Credit, 840 S.W.2d
25, 28 (Tex. App. - Dallas 1992, no writ history) ........ 14,16,
41,42,
43
Trans-Continental Finance v. Summit National Bank,
761 S.W.2d 575, 577 (Tex. App. - Ft. Worth 1988,
no writ history) ......................................... 14,16,
42,43
Trusty v. Strayhorn, 87 S.W.3d 756, 762-63 (Tex. App-
Texarkana 2002, no pet ................................... 10
Villareal v. Laredo Nat'l Bank, 677 S.W.2d 600, 607
(Tex.App.--San Antonio 1984, writ ref'd n.r.e.) .......... 23,27,
30
Waite v. Banc Texas - Houston, N.A., 792 S.W.2d 538,
540 (Tex. App. - Houston [1st Dist.] 1990, no writ) ...... 15,17
39,40,
42,43
Well Solutions, Inc. v. Stafford, 32 S.W.3d 313,
317 (Tex. App.—San Antonio 2000, no pet.) ................ 9
Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983) ......... 14,41,
42
Statutes
Tex. Bus & Comm Code Section 1.201(b)(39) ................ 36
Tex. Bus & Comm Code Section 3.308 ....................... 14,16,
39,41,
42
Tex. Bus & Comm Code Section 3.401 ....................... 3,5,
23
-viii-
Tex. Bus & Comm Code Section 3.605 ....................... 35
Tex. Bus & Comm Code Section 9.102(a)(72) ................ 36
Rules
Tex. R. Civ. P. 93(7) .................................... 14,16,
18,29,
39,41,
42
Tex. R. Civ. P. 166a(c) .................................. 15,40,
42
Tex. R. Civ P. 166a(f) ................................... 10
Tex. R. Civ. Evid. 902(10) ............................... 40,41
42
Tex. R. App. P. 33.1(a)(2)(A) ............................ 21
-ix-
STATEMENT OF THE CASE
This case is about liability on a debt, evidenced by a series
of notes, the most recent of which was signed effective September
30, 2008 in the original principal amount of $2.5 million (“$2.5
Million Note”). CR, v. 1 at 221-223 and Suppl. CR, v. 1 at 34-36,
38-40, 42-44. The initial suit was filed by a limited partnership,
as the borrower on construction debt for a high rise condominium
project in Tyler, Texas and a guarantor of that debt, against the
bank as the lender on the project, appellee as the assignee of
parts of that debt and appellant. CR, v. 1 at 1-49 and 54-102.
Appellee filed a counter-claim against the plaintiffs in the suit
on debt and guaranties, and a cross-claim against appellant on the
$2.5 Million Note. CR, v. 1 at 103-149.
As a result of a series of agreements, all of the parties were
nonsuited or dismissed except for the cross-claim of appellee
against appellant. CR, v. 1 at 156, 163, 164, 174, 175 and 183-
84. Appellee filed a motion for summary judgment on its cross-
claim. CR, v. 1 at 198-225. The appellant, having not previously
answered the cross-claim, answered asserting 14 affirmative
defenses, filed a response to the summary judgment and objections
to appellee’s summary judgment evidence. CR, v. 1 at 226-232,
237-244 and Suppl. CR, v. 1 at 2-23.
Appellee filed responses to the objections to its summary
judgment evidence, filed its own objections to appellants summary
judgment evidence, and a comprehensive reply. CR, v. 3 at 602-610,
-x-
611-619 and 620-633. The trial court granted appellee’s motion for
summary judgment and signed a judgment in the case in favor of
appellee dated February 21, 2014. CR., v. 3 at 634-635.
Appellee filed a motion for new trial and an amended motion
for new trial. CR, v. 3 at 639-649 and 665-679. However, before
the court ruled on these motions or they were overruled as a matter
of law, appellant filed for bankruptcy protection which stayed the
proceedings. CR, v. 3 at 699-703. After the bankruptcy stay was
lifted for the case to proceed, the trial court reinstated the case
and the appellant filed the instant appeal. CR, v. 3 at 712 and
713-14.
STATEMENT REGARDING ORAL ARGUMENT
This case can be decided on the record and the briefs and oral
argument is not necessary.
ISSUES PRESENTED-RESTATED
Restated Issue No. 1- The trial court dd not err in granting SW
summary judgment since there were no genuine issues of material
fact.
Restated Issue No. 2- The trial court did not err in granting SW
summary judgment since there was no genuine issues of material fact
on the elements of SW’s claims.
Restated Issue No. 3- The trial court dd not err in granting SW
summary judgment since there was no competent summary judgment
proof submitted by Lisiak to create a material issue of fact on the
elements of Lissiak’s affirmative defenses.
Restated Issue No. 4- The trial court did not err in granting SW
summary judgment since SW presented competent summary judgment
evidence on the elements of its claims.
Restated Issue No. 5-The trial court dd not abuse its discretion in
granting SW summary judgment.
-xi-
STANDARD OF REVIEW
The standard for review on traditional motions for summary
judgment is de novo. Provident Life & Accident Ins. Co. v. Knott,
128 S.W. 3d 211,215 (Tex. 2003). The standards for reviewing a
summary judgment are well established: (1) the movant for summary
judgment has the burden of showing that there is no genuine issue
of material fact and that it is entitled to judgment as a matter of
law; (2) in deciding whether there is a disputed material fact
issue precluding summary judgment, evidence favorable to the
non-movant will be taken as true; and (3) every reasonable
inference must be indulged in favor of the non-movant and any
doubts resolved in its favor. Nixon v. Mr. Property Management Co.,
690 S.W.2d 546, 548-49 (Tex.1985).
In determining whether summary judgment should be granted, the
question is not whether the summary judgment proof raises an issue
of fact, but whether the movant's summary judgment proof
establishes as a matter of law that no genuine issue of material
fact exists as to one or more elements of the alleged causes of
action. Odom v. Insurance Company of the State of Penn., 455
S.W.2d 195, 198 (Tex. 1970).
-xii-
Statement of Facts
Appellee, SW Loan OO, L.P. (“SW”) objects to Appellant’s
Statement of Facts in that it is not based on competent summary
judgment evidence and is based on affidavits fraught with legal and
factual conclusions not supported by evidence, violations of the
parole evidence rule and subjective beliefs not supported by
competent evidence. This is a suit on a debt evidenced by a series
of notes the last of which was signed by Lissiak, and others,
dated September 30, 2008 in the amount of $2.5 million ($2.5
Million Note”). CR, v. 1 at 221-223. The remainder of Lissiak’s
background in his statement of facts is irrelevant, the summary
judgment evidence supporting it impliedly overruled, and should not
be considered.
This case is a suit on a debt evidenced by a series of notes
signed by appellant Victor Lissiak, Jr. (“Lissiak”) and others, the
most recent of which is the $2.5 Million Note. CR, v. 1 at 221-
223, and Suppl. CR, v. 1 at 34-36, 38-40, 42-44. The $2.5 Million
Note, by its terms, was to “consolidate, extend the maturity dates
and otherwise amend and restate” a $1.2 million Note, a $500,000
Note and an $800,000 Note (collectively” Short Term Notes”). Id.
The $1.2 Million Note was originally dated February 20, 2008,
renewed by a note of the same amount on June 19, 2008, and then
renewed and consolidated into the $2.5 Million Note. Suppl. CR,
v. 1 at 34-36 and 46, and CR, v. 1 at 221-223. The $500,000 Note
was originally dated March 28, 2008, renewed by a note of the same
1
amount on June 19, 2008, and then renewed and consolidated into the
$2.5 Million Note. Suppl. CR, v. 1 at 38-40 and 46, and CR, v. 1
at 221-223. The $800,000 Note was originally dated July 7, 2008,
and then renewed and consolidated into the $2.5 Million Note.
Suppl. CR, v. 1 at 42-44, and CR, v. 1 at 221-223.
After the $2.5 Million Note matured, Lissiak refused to sign
any further renewals of the debt evidenced by the note and it came
due as to him. CR, v. 1 at 103-149 and 213-218. In addition to
Lissiak, the joint signatories on all of the notes described above,
were J. Randolph Light Jr. (“Light”), a plaintiff in the underlying
litigation, and Lawrence C. Don (“Don”) CR, v.1 at 221-223. Don
had filed for bankruptcy and was not included in the litigation in
the trial court.
Although subsequent renewals of the $2.5 Million Note were
prepared for Lissiak, Light and Don, they were only signed by
Light. Suppl. CR, v. 1 at 91-93, 142-144, 160-162 and 178-180.
These renewal notes (“Renewal Notes”) served to extend the maturity
date without affecting Lissiak’s liability on the debt evidenced by
the $2.5 Million Note, since Lissiak was not released from that
debt. Id.
SW settled its counterclaim against Light for his liability on
the $2.5 Million Note. Mr. Holmes, Lissiak’s attorney, was
provided a copy of the settlement agreement under a confidentiality
agreement, which he violated by attaching it attached to Holmes
declaration submitted as part of Lissiak’s summary judgment
2
evidence. CR, v. 3 at 619 and Suppl. CR, v. 1 at 65-180.
SW’s cross-claim against Lissiak, the sole remaining issue in
the trial court, was dealt with by a summary judgment motion in the
trial court that was granted, resulting in this appeal. CR, v.1 at
103-149, 199-225, and CR, v. 3 at 620-633, 634-35 and 713-14.
Summary of the Argument
SW was entitled to the summary judgment it was granted by the
trial court. In ruling on the SW’s motion for summary judgment,
the trial court found, by implication, SW’s summary judgment
evidence to be competent and Lissiak’s not to be competent. SW’s
summary judgment evidence was supported by fact and law. Lissiak’s
summary judgment evidence, on the other hand, was rife with
substantive errors since the statements are legal and factual
conclusions without evidentiary support, subjective beliefs
unsupported by evidence, violate the parole evidence rule and
statements attributable to SNB do not refer to any specific
individual making the statement or showing that individual had
authority to make the statement.
While alleging 14 affirmative defenses in a scattershot
approach in his live pleading, Lissiak does not bring them all into
this appeal. He limits his arguments to 7 of them, being holder
in due course, authenticity of his signature on the $2.5 Million
Note, failure of consideration, cancellation of the debt instrument
(Section 3.401 of the Texas Business and Commerce Code), promissory
estoppel, material alteration/cancellation by payment extension,
3
and discharge of liability (Section 3.605 of the Texas Business and
Commerce Code).
The affirmative defense related to holder in due course is a
red herring. SW never asserted it was a holder in due course. The
$2.5 Million Note had already matured and was past due at the time
it was negotiated to SW. SW is the current owner and holder of the
debt evidenced by the $2.5 Million Note and the Short Term Notes.
The $2.5 Million Note was the renewal and consolidation of the
Short Term Notes. As a result the doctrine of waiver as to renewal
notes applies. This doctrine of waiver defeats most of LissiaK’s
affirmative defenses such as failure of consideration and
promissory estoppel.
In addition, the $2.5 Million Note, as a renewal of the Short
Term Notes, did not extinguish the debt evidenced by those notes,
but rather was the same debt evidenced by a new promise. As a
result any allegation as to the authenticity of Lissiak’s signature
on the $2.5 Million Note and the other defenses brought forward in
this appeal fail as a matter of law.
The authenticity defense also fails because Lissiak never
denied signing the $2.5 Million Note. He simply claims that he did
not recall signing the $2.5 Million Note and disputed the validity
of his signature on it. However, what Lissiak never says is “I did
not sign the $2.5 Million Note, and that is not my signature on
it..” That is what he needed to say to bring his execution of the
$2.5 Million Note into issue. Tex. R. Civ. P. 93(7). That rule
4
provides that such an affirmative defense is for the denial of the
execution by himself or by his authority any instrument in writing
upon which the pleading is founded. Furthermore, Lissiak’s own
summary judgment affidavit admits that his signature appears on the
$2.5 Million Note.
The Renewal Notes, although only signed by Light, did not
alter the debt on Lissiak’s liability on the debt evidenced by the
$2.5 Million Note and, in turn, the Short Term Notes. More
importantly, under the express provisions of the $2.5 Million Note
and the Short Term Notes, Lissiak and all signatories consent to
any extension of time, and any of the parties can be released
without discharging Lissiak’s liability under these notes.
All the Renewal Notes did was to extend the maturity date of
the debt evidenced by the $2.5 Million Note. It in no way released
Lissiak as to his liability on the $2.5 Million Note or the Short
Term Notes. The cross-claim was also filed well within the
limitations period of the $2.5 Million Note and Short Term Notes.
Therefore, the defenses of cancellation of the debt instrument
(Section 3.401 of the Texas Business and Commerce Code), material
alteration/cancellation by payment extension, and discharge of
liability (Section 3.605 of the Texas Business and Commerce Code),
are simply not proven and without merit, do not create a genuine
issue of material fact, and fail as a matter of law.
Therefore, SW met his burden of proof and established a prima
facia case as to Lissiak’s liability on the debt evidenced by the
5
$2.5 Million Note and Short Term Notes, and the amount of that
liability since:
SW supported its motion for summary judgment with competent
summary judgment evidence,
Lissiak failed to raise any genuine issue of material fact on
the elements of SW’s claims for relief,
Lissiak had the burden to and failed to establish all of the
elements on any of his affirmative defenses with competent
summary judgment evidence,
Lissiak failed to meet make a prima facie case on all of the
elements on any of his affirmative defenses, and
The trial court did not abuse its discretion in granting SW
summary judgment since SW met its burden of proof, the trial
court ruled on Lissiak’s objections to SW’s summary judgment
evidence and SW’s objection to Lissiak’s summary judgment
evidence by implication.
6
Argument
This case is simple at its essence. It is simply about
Lissiak’s liability on a debt evidenced by promissory notes. The
note being sued on is the $2.5 Million Note, which extends and
consolidates the Short Term Notes, executed by Lissiak, among
others in favor of Stillwater National Bank and Trust (“SNB”), and
endorsed over to SW. CR, v. 1 at 221-223, and Suppl. CR, v. 1 at
34-36, 38-40, 42-44.
In spite of Lissiak’s attempts to muddy the waters, this is
still simply a suit on a debt evidenced by the $2.5 Million Note
and the Short Term Notes. Id. As shown below, the issues Lissiak
attempts to infuse into the discussion are nothing more than an
attempt to obfuscate the simple issue of his liability on the debt.
SW’s motion for summary judgment was supported by the
affidavits of L. Read Mortimer with the $2.5 Million Note as an
exhibit (“Mortimer Affidavit”), Anson Lang with the $2.5 Million
Note as an exhibit (“Lang Affidavit”), Brent A. Bates with the $2.5
Million Note as an exhibit (“Bates Affidavit”) and Kyle A. Owens,
and the declaration of Stephen Sakonchick, II. CR, v. 1 at 198-
225.
Lissiak filed separate objects to the Mortimer Affidavit, the
Lang Affidavit and the Bates Affidavit. CR, v.1 at 245-250 and v.
2 at 251-254. SW filed a single reply addressing those objections.
CR, v.3 at 602-610. SW incorporates that reply herein by reference
for all purposes.
7
Lissiak also filed a response to SW’s motion for summary
judgment (“Response”) supported by Lissiak’s affidavit (“Lissiak
Affidavit”), the affidavit of Lawrence Don (“Don Affidavit”) and
the declaration of Robert Holmes (“Holmes Declaration”). Suppl. CR,
v.1 at 2-217. SW filed comprehensive objections to the Lissiak
Affidavit, Don Affidavit and Holmes Declaration, which it
incorporates herein by reference for all purposes. CR, v. 3 at
611-619.
The trial court granted the summary judgment requested by SW.
CR, v. 3 at 634-645. In the Final Summary Judgment the trial court
states that
“having considered the Motion, the pleadings, summary judgment
evidence, and other papers on file herein, [the Court] is of
the opinion that the cross-plaintiff’s entitled to the summary
judgment prayed for in the Motion.”
Id. at 634. SW’s objections to Lissiak’s summary judgment
evidence, Lissiak’s objections to SW’s summary judgment evidence,
and SW’s reply to Lissiak’s objections, were part of the other
papers on file. CR, v. 1 at 245-250 and v. 2 at 251-254 and v. 3
at 602-610 and 611-619.
The Trial Court Impliedly Overruled Lissiak’s Objections to Sw’s
Summary Judgment Evidence and Sustained Sw’s Objections to
Lissiak’s Summary Judgment Evidence.
While the trial court did not explicitly rule on either SW or
Lissiak’s objections to summary judgment evidence, under Tex. R.
App. P. 33.1(a)(2)(A), a trial court's ruling may be express or
implied. Since the trial court did not expressly rule on either SW
or Lissiak’s objections, it impliedly sustained, or overruled the
8
respective objections so as to justify granting SW its summary
judgment.
Some courts have applied Rule 33.1 in finding that the trial
court implicitly ruled on objections to summary judgment proof. In
Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App.-Fort Worth 1998, no
pet.), the appellee moved for summary judgment, and the appellant
objected to the appellee's summary judgment proof. The court of
appeals held that, in granting summary judgment, the trial court
implicitly overruled the appellant's objections. Id. at 823-24.
In Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.-Fort Worth
1999, pet. denied), the appellee moved for a no-evidence summary
judgment and objected to the appellant's summary judgment proof.
The court of appeals held that, because the trial court was aware
of the appellee's objections and stated in its order that it had
reviewed the competent summary judgment proof when it granted the
summary judgment, the appellate court could infer that the trial
court had implicitly ruled on the objections.
SW could find no cases where this court has treated such
implied rulings. However, SW notes other courts have declined to
find any such implied rulings. See Well Solutions, Inc. v.
Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio 2000, no pet.);
Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.—Houston [14th
Dist.] 2000, pet. denied).
In this case the implication is that the trial court sustained
SW’s objections to Lissiak’s summary judgment evidence and
9
overruled Lissiak’s objections to SW’s summary judgment evidence.
At least to the extent necessary to warrant granting SW Summary
judgment.
However, with defects of substance, no objection is necessary
to preserve error and the defect can be raised for the first time
on appeal. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas
2004, pet denied). Legal conclusions unsupported by evidence,
factual conclusions, opinions and subjective beliefs unsupported by
evidence are examples of substantive defects. Hou-Tex, Inc. v.
Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.-Houston [14th
Dist.] 1986, no writ), Harley-Davidson Motor Co. v Young, 720
S.W.2d 211, 213 (Tex. App.-Houston [14th Dist.] 1986, no writ).
Alternative, Objection to Defects in Lissiak’s Summary Judgment
Evidence- Brought Forward as Cross-Points
In the event, this court does not rule that the trial court
impliedly sustained SW’s objections to Lissiak’s summary judgment
evidence, then SW raises the following substantive defects in
Lissiak’s summary judgment evidence as cross-points. In addition,
since Lissiak did not bring forward any response or defense to SW’s
objections to Lissiak’s summary judgment evidence, they should be
sustained. Tex. R. Civ P. 166a(f), See Trusty v. Strayhorn, 87
S.W.3d 756, 762-63 (Tex. App-Texarkana 2002, no pet.) (Rule 166a(f)
applies equally to defects in form asserted as grounds for
affirmance).
Defects in Lissiak’s Affidavit
SW loan objects to the second sentence in paragraph 15,
10
paragraphs 19 through 25, 29, the second sentence of paragraph 32,
and paragraphs 33 and 34, of the Lissiak Affidavit since Lissiak
fails to show how he obtained personal knowledge of the facts, the
statements are legal and factual conclusions without evidentiary
support, subjective beliefs unsupported by evidence, violate the
parole evidence rule and statements attributable to SNB do not
refer to any specific individual making the statement or showing
that individual had authority to make the statement. Fair Woman,
Inc. v. Transland Management Corp., 766 S.W.2d 323 (Tex. App. -
Dallas 1989, no writ) (mere recital that affiant has personal
knowledge is insufficient, the affidavit must affirmatively
demonstrate the manner in which the affiant became personally
familiar). Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)
(a legal conclusion in an affidavit is insufficient to raise an
issue of fact in response to a motion for summary judgment). See
Fulenweider v. City of Teague, 680 S.W.2d 582, 585 (Tex. App.-Waco
1984, no writ)(Unsubstantiated opinions or testimony-unilateral and
subjective determinations of fact do not support summary judgment).
Conte v. Greater Houston Bank, 641 S.W.2d 411, 414 (Tex. App.-
Houston [14th Dist] 1982, writ ref'd n.r.e.)(Parole evidence
prohibits admissibility of summary judgement evidence to vary the
written contract or show evidence of waiver or estoppel); Harley
Davidson-Motor Co., 720 S.W.2d at 211.
Defects in Don’s Affidavit
SW loan objects to the second sentence in paragraph 16,
11
paragraphs 20 through 26, and paragraphs 28 and 29, of the Don
Affidavit since Don fails to show how he obtained personal
knowledge of the facts, the statements are legal and factual
conclusions without evidentiary support, subjective beliefs
unsupported by evidence, violate the parole evidence rule and
statements attributable to SNB do not refer to any specific
individual making the statement or showing that individual had
authority to make the statement. Fair Woman, Inc., 766 S.W.2d 323;
Brownlee, 665 S.W.2d at 112; Fulenweider, 680 S.W.2d at 585; Conte,
641 S.W.2d at 414; Harley Davidson-Motor Co., 720 S.W.2d at 211.
Defects in the Holmes Declaration
The Holmes Declaration states the documents attached were
produced by various parties in the case in response to discovery
requests. The documents attached are a Compromise and Settlement
Agreement between SW and Light (“Settlement Agreement”) and an
Omnibus Agreement dated September 30, 2008.
SW Loan objected to and renews its objection to the use of the
Settlement Agreement as summary judgment evidence, since, by its
terms it is a confidential agreement, the Settlement Agreement was
provided to Mr. Holmes under a written agreement that he hold the
document as confidential (CR, v. 3 at 619) and Mr. Holmes has
breached that agreement by submitting the Settlement Agreement as
summary judgment evidence. SW Loan also objects to the use of
Exhibits E-J of the Don Affidavit and the Omnibus Agreement since
Holmes fails to identify the party that produced the agreement.
12
His statement that the documents were produced by various parties
in the lawsuit in response to discovery requests is an
unsubstantiated factual conclusion or subjective belief unsupported
by evidence. Harley-Davidson Motor Co., 720 S.W.2d at 213,
Fulenweider, 680 S.W.2d at 585.
Elements for a Suit on a Note
To prevail on a summary judgment motion on a note, a party
seeking to enforce a note must prove (1) the note in question, (2)
that the party sued signed the note, (3) that the plaintiff is the
owner or holder of the note, and (4) that a certain balance is due
and owing on the note. SMS Fin., LLC v. ABCO Homes, Inc., 167 F.3d
235, 238 (5th Cir. 1999); Bean v. Bluebonnet Sav. Bank FSB, 884
S.W.2d 520, 522 (Tex. App.-Dallas 1994, no writ); Clark v. Dedina,
658 S.W.2d 293, 295 (Tex. App.-Houston [1st Dist.] 1983, writ
dism'd).
Summary Judgment Evidence to Prove Up a Note
The law dealing with affidavits necessary to prove up a debt
evidenced by a note is well established. What follows in this
section of the brief, is the case law supporting SW’s summary
judgment evidence presented in the form of affidavits.
Testimony in an affidavit that a particular person or entity
owns a note is sufficient to conclusively establish ownership even
in the absence of supporting documentation if there is no
controverting summary judgment evidence. First Gibraltar Bank, FSB
v. Farley, 895 S.W.2d 425, 428 (Tex. App.--San Antonio 1995, writ
13
denied); Christian v. University Federal Savings, 792 S.W.2d 533,
534 (Tex. App.--Houston [1st Dist.] 1990, no writ).
A photocopy of a note attached to the affidavit of the holder,
who swears that it is a true and correct copy of the note, is
sufficient as a matter of law to prove the status of owner and
holder of a note absent controverting summary judgment evidence.
Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex. 1983); First Gibraltar
Bank, 895 S.W.2d at 428.
Production of the note attached to and authenticated by the
affidavits, is sufficient to prove the signature and authority of
the agent in the absence of a specific verified denial. Tex. Bus
& Comm Code Section 3.308; Tex. R. Civ. P. 93(7); Holland v. First
Nat. Bank in Dallas, 597 S.W.2d. 408, 411 (Tex. Civ. App.-Dallas
1980, writ dism’d).
Absent such a verified pleading, the document is received into
evidence as fully proved. Boyd v. Diversified Fin. Sys., 1 S.W.3d
888, 891 (Tex. App-Dallas 1999, no pet).
A statement by an officer as to the total amount of principal
and interest due, without more, is all that is required for SW Loan
to prevail on summary judgment. Thompson v. Chrysler First Bus.
Credit, 840 S.W.2d 25, 28 (Tex. App.-Dallas 1992, no writ history)
(A statement of the balance due will support a motion for summary
judgment); Atchley v. NCNB Texas National Bank, 795 S.W.2d 336, 337
(Tex. App.-Beaumont 1990, writ denied) (It was not necessary to
prove method of calculation of interest to recover on debt); and
14
Trans-Continental Finance v. Summit National Bank, 761 S.W.2d 575,
577 (Tex. App.-Ft. Worth 1988, no writ history) (affidavit of bank
officer as to default, total principal and interest due on note,
sufficient to support summary judgment).
A summary judgment may be based on uncontroverted testimonial
evidence of an interested witness if the evidence is clear,
positive and direct, otherwise credible and free from
contradictions and inconsistencies, and could have been readily
controverted. Tex. R. Civ. Pro. 166a(c).
An affidavit that makes unchallenged statements that he is an
officer and has personal knowledge of the facts sworn to, is fully
sufficient to support summary judgment. Landers v. Texas American
Bank, 788 S.W.2d 162, 165 (Tex. App.-Ft. Worth 1990, no writ).
A person’s position or job responsibilities can particularly
qualify him to have personal knowledge concerning each of the facts
in the supporting affidavit. Barnam v. Sugar Creek National Bank,
612 S.W.2d 78, 80, (Tex. App.-Houston [14th Dist] 1981, no writ).
A summary judgment affidavit is admissible, even though the
officer was not employed with the bank at the time of relevant
events, because the officer was able to gain knowledge of the facts
testified to during his employment and the officer’s statement of
his current position demonstrated how he gained personal knowledge
of facts. Waite v. Banc Texas - Houston, N.A., 792 S.W.2d 538, 540
(Tex. App.-Houston [1st Dist.] 1990, no writ).
15
SW’s Summary Judgment Evidence and Prima Facie Case on the Note
SW’s motion for summary judgment was supported by the
affidavits of L. Read Mortimer with the $2.5 Million Note as an
exhibit (“Mortimer Affidavit”), Anson Lang with the $2.5 Million
Note as an exhibit (“Lang Affidavit”), Brent A. Bates with the $2.5
Million Note as an exhibit (“Bates Affidavit”) and Kyle A. Owens,
the declaration of Stephen Sakonchick, II.
Lissiak filed separate objections to the Mortimer Affidavit,
the Lang Affidavit and the Bates Affidavit. SW filed a single
reply addressing those objections., CR, v. 3 at 602-610. SW
incorporates that reply for all purposes in by reference.
Each of the Bates Affidavit, Mortimer Affidavit and Lang
Affidavit have attached a copy of the $2.5 Million Note and
authenticate it as a business record. Lissiak does not object to
the $2.5 Million Note as a business record or the recitations that
SW is the owner and holder of the $2.5 Million Note. First
Gibraltar, 895 S.W.2d at 428, Christian, 792 S.W.2d at 534. Each of
the exhibits containing the $2.5 Million Note bears the signature
of Lissiak and he concedes his signature appears on that note.
Suppl. CR, v.1 at 26 (para. 27), Section 3.308 Tex. Bus & Comm
Code; Tex. R. Civ. P. 93(7); Holland, 597 S.W.2d. at 411; Boyd, 1
S.W. 3d at 891.
The Bates Affidavit, Mortimer Affidavit and Lang Affidavit all
meet the criteria for an affidavit on a note set out above, since
they state the capacity they hold at each respective institution
16
for the $2.5 Million Note, and how they obtained personal knowledge
of the facts each recites. Tex. R. Civ. Pro. 166a(c); Landers, 788
S.W.2d at 165; Barnam, 612 S.W.2d at 80. Since they gained
knowledge of these facts during their respective employment they
are admissible. Waite, 792 S.W.2d at 540. The Lang affidavit also
sets out the amount of the debt owed. Thompson, 840 S.W.2d at 28;
Atchley, 795 S.W.2d at 337; and Trans-Continental, 761 S.W.2d at
577.
The Bates, Mortimer and Lang affidavits clearly prove (a) the
$2.5 Million Note, (b) that Lissiak signed the $2.5 Million Note,
as evidenced by his signature on the $2.5 Million Note (c) that SW
is the current owner and holder of the $2.5 Million Note, and (d)
the balance due and owing on the $2.5 Million Note. CR, v.1 at
219-223, 208-212 and 213-218. The trial court had before it a
prima facie case on Lissiak’s liability on the debt evidenced by
the $2.5 Million Note and Short Term Notes and the amount owed on
that debt.
Restated Issue No. 1- The trial court did not err in granting SW
summary judgment since there were no genuine issue of material
fact.
SW’s competent summary judgment evidence made a prima facie
case on Lissiak’s liability on the debt evidenced by the $2.5
Million Note and Short Term Notes, and the amount of that
liability. What Lissiak starts addressing in his first issue are
some of his affirmative defenses.
17
Issue 1a-Holder Status
SW is the owner and holder of the $2.5 Million Note. SW has
never asserted it was a holder in due course since the note had
matured and past due when SW acquired the $2.5 Million Note. The
fact that SW is simply a holder is not a material fact since SW, as
the owner and holder of the $2.5 Million Note, established the debt
and Lissiak’s liability on the debt as a matter of law.
Issue 1b-Lissiak’s Signature on the $2.5 Million Note
In contesting the genuineness of his signature on the $2.5
Million Note, Lissiak simply states “I do not recollect signing
that note and dispute the validity of the signature on the note.”
CR. v.3, p. 426, para. 26. This a similar statement to the one
contained in Lissiak’s verified answer (Lissiak does not recall
executing that instrument and disputes that his signature on the
note is genuine). CR. v.1, p. 242. That statement is insufficient
to meet the requirements of Tex. R. Civ. P. 93(7). That rule
requires that Lissiak have denied the execution of the instrument
in writing.
What Lissiak needed to say, and what he did not say, to put
his execution of the $2.5 Million Note in issue was “I did not sign
that note and that is not my signature on it.” This he has not
done, nor has he supported such a claim with competent summary
judgment evidence. Lissiak never says he did not sign the $2.5
Million Note, just that he did not recall signing it and disputes
the validity of the signature. Lissiak’s statement is insufficient
18
to constitute an affirmative defense under Tex. R. Civ. P. 93(7).
Lissiak admits that his signature appears on the $2.5 Million
Note. Suppl. CR, v. 1 at 26 (para. 27). SW has produced the $2.5
Million Note as an authenticated business record, for which there
was no contravening evidence. That $2.5 Million Note clearly
reflects Lissiak’s unique signature. That same unique signature is
also contained many times in the trial court record on Lissiak’s
amended answers and on several other notes attached to Lissiak’s
summary judgment response. CR, v. 1 at 226-232, 237-244, and
Suppl. CR, v. 1 at 34-36, 38-40 and 42-44.
The $2.5 Million Note, by its terms, is to be construed in
accordance with Oklahoma law. CR, v. 1 at 216-218. In State Bank
of Grove v. North, 418 P.2d 928 (Okla. 1966), the defendant filed
a verified denial and affirmative defenses addressing execution of
the note. At trial, the plaintiff, proved up the note with the
signature of defendant. The defendant did not object to the
introduction of the note in evidence on the grounds it was not
properly executed. He did, however, reserve the right to question
its authenticity. The Oklahoma court in that case found sufficient
evidence to rule in favor of plaintiff on the note.
In this case, Lissiak did not object to SW’s introduction of
the $2.5 Million Note, bearing his signature, as summary judgment
evidence through the Bates, Mortimer and Lang Affidavits, as a
business record or on any other grounds. Therefore, the $2.5
Million Note was in summary judgment evidence as it currently
19
exists, bearing Lissiak’s signature, without objection, with his
admission that his signature appears on that note.
Also, it is important to note that Lissiak was sued on a debt
evidenced by a note. The $2.5 Million Note, by its terms, is in
renewal and consolidation of the Short Term Notes. Lissiak admits
that he signed all of the Short Term Notes. As a result he admits
to liability on the debt evidenced by those notes.
In Schwab v. Schlumberger Well Surveying Corp., 198 S.W.2d 79
(Tex. 1946), the Texas Supreme Court stated:
“The giving of a new note for a debt evidenced by a former
note does not extinguish the original indebtedness unless such
is the intention of the parties. Such intention is never
presumed. The burden of proving the discharge or novation is
therefore upon him who asserts it. In general the renewal
merely operates as an extension of time in which to pay the
original indebtedness. The debt is not thereby increased. It
remains the same; it is in substance and in fact the same
indebtedness evidenced by a new promise.”
Id., at 82. These rules also appear to apply even if the holder or
owner of the note marks the previous notes “paid”). See Bank of
Austin v. Barnett, 549 S.W.2d 428 (Tex. Civ. App.-Austin 1977, no
writ).
Lissiak did not produce any competent summary judgment
evidence in the trial court that the $2.5 Million Note was a
novation of the Short Term Notes. In fact, the terms of the $2.5
Million Note states it is to consolidate and extend the maturity
dates of the Short Term Notes. As a result, even in the unlikely
event the $2.5 Million Note is successfully challenged, SW still
prevails on Lissiak’s liability on the debt reflected by the Short
20
Term Notes.
Issue 1c-Consideration
Lissiak’s complaint on consideration applies to the Short Term
Notes. However, to get to that complaint, the trial court had to
first consider the objections to the Lissiak and Don Affidavits.
Under Tex. R. App. P. 33.1(a)(2)(A), the trial court impliedly
sustained SW’s objections to those affidavits, at least to the
extent necessary to grant SW its summary judgment. Since Lissiak
did not complain about those rulings of the trial court, they alone
should stand and eliminate Lissiak’s argument on the failure of
consideration.
In examining the Short Term Notes, there is nothing in the
terms of those notes which require that Lissiak, or the other note
signatories have use of the proceeds or direct the disbursement of
proceeds from the advance. Suppl. CR, v.1 at 34-36, 38-40 and 42-
44. All of the Short Term Notes contain the same provision:
“Advancements and payments hereunder may, at the option of the
Lender, be recorded on this note or on the books and records
of the Lender and will be prima facie evidence of said
advances, payment and the unpaid balance of this Note.”
Suppl. CR, v.1 at 34, 38 and 42. None of the competent summary
judgment evidence controverts the prima facie evidence created
under the express terms of the Short Term Notes. As a result,
Lissiak’s claim on the failure of consideration fails.
In addition, as Lissiak states in his brief “[b]ecause there
is a presumption the Short Term Notes were supported by
consideration, the burden was on Lissiak, to show none was actually
21
received, thus there was a failure of consideration.” Appellant
Brief, p. 20.
It is well settled Texas law that a person who signs renewals
of notes on which he was aware of defenses, waives those defenses,
such as fraud and consideration, and is estopped to assert them.
Hunter v. Lanius, 82 Tex. 677, 18 S.W. 201 (1892); Gaylord
Container Division of Crown Zellerbach Corporation v. H. Rouw
Company, 392 S.W.2d 118, 120 (Tex. 1965); City of Houston v. Lyons
Realty Ltd, 710 S.W.2d 625, 629 (Tex. App.-Houston, 1986, no writ).
Lissiak states in is affidavit supporting his response to the
motion for summary judgment, he executed the original $1.2 million
note on February 20, 2008, the $500,000.00 note on March 28, 2008
and the $800,000.00 note on July 7, 2008. Suppl, CR. v. 1 at 24-27,
paras. 16 and 17. The $1.2 million was renewed on June 19, 2008
and the $500,000.00 note was also renewed on June 19, 2008. Id.,
at para.18; Suppl. CR, v. 1 at 46.
All three of the Short Term Notes were again renewed by the
$2.5 Million Note. CR, v.1 at 221-223. Lissiak was aware of his
defense of failure of consideration when the funds were advanced on
the original Short Term Notes. Suppl. CR, v.1 at 26, para. 23.
Lissiak was aware of these defenses when he renewed the $1.2
million and $500,000.00 notes and later renewed all of the Short
Term Notes into the $2.5 Million Note, and waived the defense of
failure of consideration to the Short Term Notes and is estopped to
assert those defenses as a matter of law. See City of Houston, 710
22
S.W.2d at 629.
Issue 1d-Cancellation of Note
This issue deals with Light’s execution of renewals of the
$2.5 Million Note without the joinder of Lissiak. This argument
fails because Lissiak has failed to provide competent summary
judgment evidence that Light’s signing the Renewal Notes created a
novation, and under the express terms of the $2.5 Million Note and
the Short Term Notes, such renewals were permitted without
releasing Lissiak from liability on the underlying debt.
Subject to the objection on the use of the Settlement
Agreement and its attachments, Section 3.401 of the Texas Business
& Commerce Code simply provides that a person is not liable on an
instrument he does not sign. Here Lissiak is being sued on a debt
evidenced by the $2.5 Million Note and Short Term Notes. The $2.5
Million Note brought forward the existing debt evidenced by the
Short Term Notes, all of which Lissiak signed. See Priest v. First
Mortgage Company of Texas, Inc., 659 S.W.2d 869, 871 (Tex. Civ.
App.-San Antonio 1983, writ ref’d n.r.e.).
Lissiak is not being pursued on the Renewal Notes. He is being
pursued on the $2.5 Million Note and the Short Term Notes. Where
renewal notes or extensions are involved, the holder may sue either
on the renewal note, here the $2.5 Million Note, or on the original
note, here the Short Term Notes. Villareal v. Laredo Nat'l Bank,
677 S.W.2d 600, 607 (Tex. App.--San Antonio 1984, writ ref'd
n.r.e.); Smith v. First Pasadena State Bank, 401 S.W.2d 123, 127
23
(Tex. App.--Houston [1st Dist.] 1966, no writ).
The burden of proving discharge or novation is on the party
asserting it. Schlumberger, 198 S.W.2d at 82. As with most of
Lissiak’s claims, he cites a proposition of law and a legal
conclusion without supporting evidence. Lissiak has failed to
provide competent summary judgment proof on a discharge of novation
of the debt evidenced by the $2.5 Million Note and Short Term
Notes. The Renewal Notes, by their express terms, provides it is
not in payment, but in renewal and restating the $2.5 Million Note
and the subsequent Renewal Notes signed by Light
More importantly, each of the Short Term Notes and the $2.5
Million Note contain the following language at the last paragraph
on the second page of each note:
“The makers, endorsers, sureties, guarantors and all other
persons who may become liable for all or any part of this
obligation severally waive presentment for payment, protest
and notice of nonpayment. Said parties consent to any
extension of time (whether one or more) of payment hereof,
release of all or any part of the security for the payment
hereof or release of any party liable for the payment of this
obligation. Any such extension or release may be made without
notice to any such party and without discharging such party's
liability hereunder.”
Suppl. CR, v.1 at 34-36 , 38-40 , 42-44 and CR, v.1 at 221-223.
Such an agreement in a note is valid and enforceable and
subsequent renewals of the original note with such language is not
a material alteration of the original obligation. See C&G Coin
Meter Supply Corp. v. First National Bank, 413 S.W.2d 151, 154
(Tex. Civ. App.-Eastland 1967, writ ref’d n.r.e.). An alteration
is material only if it changes the legal effect of the contract.
24
First State Bank v. Kellman, 851 S.W.2d 914, 920 (Tex. App.-Austin
1993, writ denied).
The fact that Lissiak did not sign the Renewal Notes or even
be consulted about them, is immaterial to his liability on the debt
evidenced by the $2.5 Million Note and the Short Term Notes.
Lissiak has also failed to show how he is harmed by Light signing
the Renewal Notes. As a result, there is no genuine issues of
material fact on Lissiak’s affirmative defense of cancellation of
the debt to defeat the summary judgment granted SW.
Issue 1e-Estoppel
Lissiak’s statement on estoppel here is brief and relies on
the portions of the Lissiak summary judgment evidence on which the
trial court impliedly sustained SW’s objections to it, or which is
alternatively addressed above as cross-points. To the extent,
Lissiak affidavit testimony even survives SW’s objections, Lissiak
has failed to adequately brief equitable estoppel and show
competent summary judgment evidence to support all of its elements.
While Lissiak states what estoppel does, he does not brief the
elements of the claim here, how SW is estopped by the acts of SNB,
or how the facts establish the defense of estoppel. The elements
of equitable estoppel are:
1. the plaintiff made a false representation to, or
concealed a material fact from, the defendant;
2. the plaintiff intended that its representation or
concealment be acted upon;
3. the plaintiff knew or had the means of knowing the real
facts;
25
4. the defendant neither knew or had the means of knowing
the real facts; and
5. the defendant acted the representation or concealment to
its detriment.
Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d 507, 515-16
(Tex. 1998).
Appellant’s Brief here not only fails to identify the elements
of equitable estoppel and how the facts meet all of the elements,
but the facts stated in the Lissiak Affidavit cited (paragraphs 19-
21 of the Lissiak Affidavit, Suppl. CR, v.1 at 25-26) do not
support the statements in his brief. Specifically, the statement
as to SNB that:
“SNB promised Appellant and the other co-makers of the Short
Term Notes that if Appellant and the co-makers would sign the
Short Term Notes in their individual capacities, SNB would:
(1) disburse the funds advanced on the Short Term Notes to the
co-makers for their use on the Project as the co-makers deemed
fit in their sole discretion, as set forth in the Short Term
Notes”,
is simply not found in Lissiak’s summary judgment evidence. The
remaining statement, alone, does not meet all of the elements of
equitable estoppel and this defense fails.
Restated Issue No. 2- The trial court did not err in granting SW
summary judgment since there was no genuine issue of material fact
on the elements of SW’s claims.
Issue 2a-SW is a Holder
SW incorporates the same argument set out in its response to
Issue 1a above, here.
Issue 2b-Lissiak’s Signature on the $2.5 Million Note
SW incorporates the same argument set out in its response to
26
Issue 1b above, here. As set out in that briefing, Lissiak simply
did not deny the execution of the $2.5 Million Note. He simply
alleged, that he did not recall signing the $2.5 Million Note and
challenged the genuineness of his signature. The affirmative
defense under Tex. R. Civ. P. 93(7) applies to the denial of the
execution of a written instrument.
Furthermore, SW cross-claimed for the recovery of a debt.
Even in the event the $2.5 Million Note is not enforceable, the
debt is still evidenced by the Short Term Notes. Schlumberger, 198
S.W.2d at 82. SW can sue on the renewal note, the $2.5 Million
Note, or the original notes, the Short Term Notes. Villareal, 677
S.W.2d at 607; Smith, 401 S.W.2d at 127. In addition, the alleged
facts that Lissiak was no longer a partner, member or participant
of Stretford Project when the $2.5 Million Note was executed or the
fact that he did not sign the Omnibus Agreement are irrelevant to
his signing the $2.5 Million Note and his liability under it or the
Short Term Notes. The $2.5 Million Note is an integrated
agreement. CR, v.1 at 221-223.
As a result, there is no genuine issue of material fact as to
Lissiak’s liability on the debt evidenced by the $2.5 Million Note,
his signing of that note or his liability on the same debt as
evidenced by the Short Term Notes.
Issue 2c-Consideration
SW incorporates the same argument set out in its response to
Issue 1c above, here. As set out in that briefing, the fact that
27
Lissiak did not personally receive any funds on the Short Term
Notes is not a fact issue as to his liability on the debt. All
that is required is that SNB advanced the funds. The terms of the
Short term Notes cited above establishes SNB’s record of the
advances as prima facie evidence of them which Lissiak has not
overcome. Lissiak would not have received any funds on the $2.5
Million Note, since it was a renewal and consolidation of the Short
Term Notes.
In addition, Lissiak’s continued signing of renewals of the
original Short Term Notes, waived any defense of failure of
consideration. Rouw, 392 S.W.2d at 120. The fact that Lissiak did
not receive any advances on the Short Term Notes does not defeat
the prima facie evidence that the advances were made under the
terms of those notes, and no advances would have been made under
the $2.5 Million Note since it was a renewal of the Short Term
Notes.
As a result, there is competent summary judgment evidence to
create a genuine issues of material fact on Lissiak’s affirmative
defense of failure of consideration on the Short Term Notes to
defeat the summary judgment granted SW.
Restated Issue No. 3- The trial court dd not err in granting SW
summary judgment since there was no competent summary judgment
proof submitted by Lissiak to create a genuine issue of material
fact on the elements of Lissiak’s affirmative defenses.
As stated in Appellant’s Brief, the burden is on the party
opposing summary judgment, here Lissiak, to come forward with
competent summary judgment proof sufficient to raise an issue of
28
fact on each element of an affirmative defense in order to defeat
summary judgment. See Brownlee, 665 S.W.2d at 112. The problem
here is that Lissiak failed to provide competent summary judgment
evidence on all of the elements of any of his affirmative defenses.
Issue 3a-SW is a Holder
SW incorporates the same argument set out in its response to
Issue 1a above, here. SW only needs to be a holder to prevail on
summary judgment and Lissiak has not alleged a genuine affirmative
defense on it to preclude summary judgment in favor of SW.
Issue 3b-Lissiak’s Signature on the $2.5 Million Note
SW incorporates the same argument set out in its response to
Issue 1b and 2b above, here. As set out in that briefing, Lissiak
simply did not meet the requirements of an affirmative defense
under Tex. R. Civ. P. 93(7). SW also sued on a debt which were
also evidenced by the Short Term Notes.
Also as previously stated, the alleged facts that Lissiak was
no longer a partner, member or participant of Stretford Project
when the $2.5 Million Note was executed or the fact that he did not
sign the Omnibus Agreement are irrelevant to his signing of the
$2.5 Million Note, the Short Term Notes and his liability under
them.
As a result, there is no genuine issue of material fact as to
Lissiak’s liability on the debt evidenced by the $2.5 Million Note,
his signing of that note or his liability on the same debt as
evidenced by the Short Term Notes.
29
Issue 3c-Consideration
SW incorporates the same argument set out in its response to
Issue 1c and 2c above, here. As a result, there is competent
summary judgment evidence to create a genuine issues of material
fact on Lissiak’s affirmative defense of failure of consideration
on the Short Term Notes to defeat the summary judgment granted SW.
Issue 3d-The Debt was Not Cancelled by the Renewal Notes
SW incorporates the same argument set out in its response to
Issue 1d and 1b above, here. It is axiomatic that Lissiak is not
liable on agreements he did not sign. However, the renewal notes
that were only signed by Light, while extending the maturity date,
did not release Lissiak from his liability on the debt evidenced by
the $2.5 Million Note and the Short Term Notes. There is nothing
in the language of any of the Renewal Notes that releases Lissiak
from Liability on the $2.5 Million Note and the Short Term Notes.
Nor is there anything in the Renewal Notes that creates a novation.
Suppl. CR, v. 1 at 91-93.
The sole location of any evidence alleged by Lissiak to
support the argument in this issue are contained in or attached to
the Settlement Agreement. Mr. Holmes breached a written agreement
on confidentiality to even include the Settlement Agreement in the
Record. As a result, SW objected to the use of the Settlement
Agreement and attachments in the trial court, which may have been
impliedly granted. SW has also raised the use of the Settlement
Agreement as a cross-point above. SW requests this court honor
30
that written confidentiality agreement and not consider any of the
evidence referred to from it.
In any event, SW can sue on the renewal note, the $2.5 Million
Note, or the original notes, the Short Term Notes. Villareal, 677
S.W.2d at 607; Smith, 401 S.W.2d at 127. Even if the Short Term
Notes were marked paid. See Bank of Austin, 549 S.W.2d 428.
However, contrary to Lissiak’s claim at page 27 of Appellant’s
Brief that the Short Term Notes were to be marked paid, there was
no such action taken and there is no summary judgment evidence to
support this allegation. Lissiak cites generally to the Settlement
Agreement. Suppl. CR, v.1 at 65-167. Paragraph 7 of the
Settlement Agreement provides that after certain conditions are met
SW would deliver to Light, through his attorney “the promissory
notes, guaranties and lost note affidavits listed as items A
through F and J through P on Exhibit 1 marked paid.” Suppl. CR,
v.1 at 68. However the Short Term Notes are not a part of that
Exhibit 1. Suppl. CR, v.1 at 75-76.
In addition that section of the Settlement Agreement provides
that “in no event shall delivery of Item A on Exhibit 1 [$2.5
Million Note] be required before litigation os SW Loan’s claims
against Lissiak, including any appeals is concluded.” Suppl CR,
v.1 at 69-69. The parties to the Settlement Agreement clearly
considered the instant litigation against Lissiak.
The fact that Lissiak did not sign the Renewal Notes or even
be consulted about them, is immaterial to his liability on the debt
31
evidenced by the $2.5 Million Note and the Short Term Notes. The
There is also no summary judgment evidence that the Short Term
Notes were marked paid. Lissiak has also failed to show how he is
harmed by Light signing the Renewal Notes.
As a result, there is no genuine issues of material fact on
Lissiak’s affirmative defense of cancellation of a debt instrument
to defeat the summary judgment granted SW.
Issue 3e-Promissory Estoppel
SW incorporates the same argument set out in its response to
Issue 1e above, here. Similarly, Lissiak’s statement on promissory
estoppel is brief and relies on the portions of the Lissiak summary
judgment evidence from both the Lissiak and Don Affidavits, on
which the trial court impliedly sustained SW’s objections to it, or
which is alternatively addressed above as cross-points. The
sections referenced to in the Lissiak and Don Affidavits suffer
from the substantive defects of being legal and factual conclusions
without evidentiary support, subjective beliefs unsupported by
evidence, violate the parole evidence rule and statements
attributable to SNB do not refer to any specific individual making
the statement or showing that individual had authority to make the
statement. As such they are simply not competent summary judgment
evidence. Brownlee, 665 S.W.2d at 112; Fulenweider, 680 S.W.2d at
585; Conte, 641 S.W.2d at 414; Harley Davidson-Motor Co., 720
S.W.2d at 211.
Subject to SW’s objection to Lissiak’s summary judgment
32
evidence cited to support this issue, and to the extent, the
Lissiak affidavit testimony even survives SW’s objections, Lissiak
has failed to adequately brief promissory equitable estoppel and
show competent summary judgment evidence to support all of its
elements. Specifically, Lissiak fails to show competent summary
judgment evidence that SNB made a false representation or concealed
a material fact from Lissiak, SNB intended the representation or
concealment to be acted upon by Lissiak, when the alleged
representations or concealment occurred (i.e. before or after the
execution of the $2.5 Million Note); who specifically made the
alleged representations and some evidence he or she had the
authority to make them, or what specific damages were suffered by
Lissiak, since he had already signed the Short Term Notes and was
liable for the debt they evidenced. Suppl. CR, v.1 at 25, para. 15
(first sentence only), 16 and 17. See Johnson & Higgins, 962
S.W.2d at 515-16.
Most importantly, Lissiak fails to provide any evidence of a
time line for the alleged representations and the indication is
they were allegedly made after the execution of the Short Term
Notes. In any event, any such reliance would gave been waived by
the doctrine of renewal on promissory notes when the $2.5 Million
Note was executed by Lissiak Rouw, 392 S.W.2d at 120.
As a result, there is no genuine issue of material fact as to
SNB allegedly represented the Short Term Notes would be paid by new
notes to Stretford, Lissiak relied on the representation, or that
33
he relied on the alleged representations to his injury to support
the affirmative defense of promissory estoppel.
Restated Issue 3f-There was No Material Alteration or
Cancellation by Payment Extension
SW incorporates the same argument set out in its response to
Issue 1d, 1b and 3d above, here. Here again, Lissiak cites law but
provides no competent summary judgment evidence to support his
allegations or the factual and legal conclusions they contain.
Lissiak signed and is liable on the debt evidenced by the
Short Term Notes as renewed and consolidated into the $2.5 Million
Note. Schlumberger, 198 S.W.2d at 82. Lissiak fails to show the
alleged material alteration of the Short Term Notes in his first
element. Just what document(s) is he claiming materially altered
the notes. The Short Term Notes were renewed and consolidated into
the $2.5 Million Note which he signed. His element is simply
incomplete and not supported by his references to the Lissiak and
Don Affidavits.
Lissiak was not required to be consulted on any renewal and
extension of the Short Term Note and $2.5 Million Note under the
contractual terms in those notes. Suppl. CR, v.1 at 35 (last
paragraph), 39 (last paragraph), 43 (last paragraph) and CR, v.1
at 222 (last paragraph). Subsequent renewals of the original note
with such terms is not a material alteration of the original
obligation. See C&G Coin Meter Supply Corp., 413 S.W.2d at 154.
Lissiak also fails to show by competent summary judgment
evidence how he was harmed by the renewal of the same obligation
34
contained in the Short Term Notes and the $2.5 Million Note by the
Renewal Notes or how the renewals were to his detriment. Simply
stating a legal and factual conclusion does not satisfy the element
necessary for a claim of material alteration or cancellation of the
indebtedness. In addition, Lissiak cites to no case law or statute
which provides that such a renewal of a loan obligation, such as
exists here, is a material alteration of the underlying contract.
Therefore, no genuine issue of material fact exists as to the
alleged affirmative defense of material alteration of a contract or
cancellation of the indebtedness.
Restated Issue 3g-Section 3.605, Texas Business and Commerce
Code, There is no Discharge of Liability
SW incorporates the same argument set out in its response to
Issue 1d, 1b, 3d and 3f above, here. Lissiak’s allegations on this
issue also rely on the Lissiak and Don Affidavits, in addition to
the $2.5 Million Note and the Settlement Agreement. Those portions
off the Lissiak and Don Affidavits were impliedly overruled by the
trial court and Lissiak has not brought those issues forward. In
addition, SW brings forward its objections to those sections of the
Lissiak and Don Affidavits by Cross-point. SW realleges its claim
as to the implied sustaining of its objections to those provisions
of the Lissiak and Don Affidavits and the Settlement Agreement, as
well as the cross-points on those items.
Subject to these restated objections, while referring to
Section 3.605 of the Texas Business Code (“Section 3.605"), Lissiak
seems to argue that section somehow justifies an alleged material
35
breach of contract. However, Section 3.605 does not apply to the
facts of this case. That section deals with secondary obligors and
the effect on collateral when a creditor deals with a primary
obligor. Lissiak is a primary obligor on the Short Term Notes and
$2.5 Million Note, and there is no collateral involved with them.
Suppl. CR, v.1 at 34-36 , 38-40 , 42-44 and CR, v.1 at 221-223.
A “secondary obligor” is “an obligor to the extent that (A)
the obligor’s obligation is secondary, or (B) the obligor has a
right of recourse with respect to an obligation secured by
collateral against the debtor, another obligor, or property of
either.” Tex. Bus. & Com. Code Section 9.102(a)(72). The Uniform
Commercial Code definition of “surety” includes “a guarantor or
other secondary obligor.” Tex. Bus. & Com. Code Section
1.201(b)(39).
As set out in Gibralter Savings Association v. Watson, 624
S.W.2d 650 (Tex. App.-Houston [14th Dist.] 1981 no writ):
“The Texas courts have not as yet had occasion to discuss this
aspect of the statute [Section 3.605] requiring the
cancellation or renunciation of a negotiable instrument be
done intentionally, Courts in other jurisdictions have held
that under this section of the Uniform Commercial Code, the
actions of the payee must have been intentional in order to
constitute a discharge of the obligor. People’s Bank of South
Carolina, Inc. v. Robinson, 272 S.C. 155, 249 S.E. 2d 784
(1978); First Galesburg Nat. Bank, Etc. v. Martin, 58 Ill.
App. 3d 113, 15 Ill. Dec. 603, 373 N.E.2d 1075 (1978).”
Id., at 653. See also Bank of Austin, 549 S.W.2d at 430 citing
Slaughter v. Philadelphia National Bank, 290 F.Supp. 234 (E.D. Pa.
1968), and Mid-Eastern Electronics, Inc. v. First National Bank of
Southern Maryland, 7 UCC 1089 (4th Cir. 1970). There is no
36
competent summary judgment evidence that either SNB or SW took any
action intended to constitute a discharge of Lissiak on the debt
evidenced by the $2.5 Million Note or the Short Term Note.
There is also no material breach of contract. The contract
between SW and Lissiak is based on the Short Term Notes and the
$2.5 Million Note. Suppl. CR, v.1 at 34-36 , 38-40 , 42-44 and
CR, v.1 at 221-223. They are integrated written agreements.
Lissiak defaulted on those notes by failing to pay the debt
evidenced by them after it matured, as shown by SW’s competent
summary judgment evidence. Lissiak has failed to show that either
SW or SNB breached any of the terms of those notes.
Lissiak’s assertions that there was an agreement to roll the
Short Term Notes into the Stretford, SNB and Light conspired to
keep Lissiak liable by renewal of the Short Term Notes and $2.5
Million Note, instead of rolling the debt into the Stretford, and
that any agreement would have left Light solely liable on those
obligations, are not supported by competent summary judgment
evidence. Those statements do not create genuine issues of
material fact supporting the affirmative defense and the summary
judgment evidence referred to in the Lissiak and Don Affidavits
(Suppl. CR, v.1 at 26 (paras. 20 and 21) and 31 (paras. 19, 20 and
21) contain substantive defects that violate the parole evidence
rule, are legal and/or factual conclusions without evidentiary
support, subjective beliefs unsupported by evidence, statements
attributable to SNB do not refer to any specific individual making
37
the statement or showing that individual had authority to make the
statement, and not competent summary judgment evidence. Brownlee,
665 S.W.2d at 112; Fulenweider, 680 S.W.2d at 585; Conte, 641
S.W.2d at 414; Harley Davidson-Motor Co., 720 S.W.2d at 211.
Lissiak has failed to show a genuine issue of material fact on
all of the elements of a defense under Section 3.605 and, in fact,
that section is inapplicable to the facts of this case. There has
been no release of Lissiak on the debt evidenced by the $2.5
Million Note and the Short Term Notes and Lissiak has failed to
prove a novation as to any of them.
Restated Issue No. 4- The trial court did not err in granting SW
summary judgment since SW presented competent summary judgment
evidence on the elements of its claims.
Lissiak filed separate objections to the Bates, Mortimer, and
Lang Affidavits supporting SW’s Motion for Summary Judgment. CR,
V.1 at 245-248 and 249-250, and v.2 at 251-252 and 253-254. SW
filed a single response addressing those objections., which it has
incorporated by reference into this brief. CR, v.3 at 602-610.
Each of the Bates, Mortimer and Lang Affidavits have attached
a copy of the $2.5 Million Note and authenticate it as a business
record. CR, v. 1 at 219-223, 208-212 and 213-218. The exhibits to
those affidavits contain the $2.5 Million Note bears the signature
of Lissiak. CR, v.1 at 221-223, 210-212 and 216-218.
Lissiak’s objections to the Bates Mortimer and Lang
Affidavits seems to center on those portions of the affidavits
which assert Lissiak signed the $2.5 Million Note and contain no
38
evidence of the failure of consideration alleged by Lissiak. As to
the item on the alleged failure of consideration, Lissiak has that
burden reversed. Lissiak alleged failure of consideration,
addressed above as Issue 1c. It is Lissiak’s burden to prove by
competent summary judgment evidence all of the elements to make a
prima facie case on failure of consideration, Brownlee , 665 S.W.2d
at 112. SW does not have to negate the defense until such a prima
facie case was made, which was not.
Lissiak does not object to the admission of the $2.5 Million
Note as competent summary judgment evidence as a business record.
That note is proved up as a business record in all of the Bates,
Mortimer and Lang Affidavits. CR, v. 1 at 219-223, 208-212 and 213-
218. Lissiak also admits in his affidavit that his signature
appears on the $2.5 Million Note attached to the Lang Affidavit.
Suppl. CR, v.1 at 24-27 (first sentence in para. 27).
Lissiak’s objections to the Bates, Mortimer and Lang
affidavits are addressed seriatim below.
Objection to the Bates Affidavit
Mr. Bates states in his affidavit that he is a custodian of
the records for SNB, he has knowledge of the manner records are
kept at SNB and attached is a true and correct copy of the $2.5
Million Note signed by Lissiak, Don and Light. CR., v.1 at 219.
Tex. R. Civ. Evid. 902(10); Tex. R. Civ. Pro. 166a(c); Landers, 788
S.W.2d at 165; Barnam, 612 S.W.2d at 80; Waite, 792 S.W.2d at 540.
The copy of the $2.5 Million Note attached to and authenticated by
39
the Bates Affidavit, bears the signatures of Lissiak, Don and
Light, with their respective names printed under their signature.
CR, v. 1 at 221-223; Tex. Bus & Comm Code Section 3.308; Tex. R.
Civ. P. 93(7); Holland, 597 S.W.2d. at 411.
In his brief Lissiak objects to the portion of the Bates
affidavit that states “signed by Victor Lissiak, Jr., Lawrence C.
Don and J. Randolph Light” claiming the statement is conclusory.
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to business records
accompanied by affidavit. Tex. R. Civ. Evid. 902(10).
The Bates Affidavit contains all of the requisite information
for the attached copy of the $2.5 Million Note to be received into
evidence as a business record of SNB, who maintains a true and
correct copy of the $2.5 Million Note, as part of its business.
The statement that Lissiak signed the $2.5 Million Note is based on
the authenticated copy of the $2.5 Million Note attached bearing
the signatures of Lissiak, Don and Light, and is a statement of
fact.
The statements in the Bates Affidavit are not conclusory and
his testimony in his affidavit and the $2.5 Million Note attached
to it are competent summary judgment evidence.
Objections to the Mortimer Affidavit
Mr. Mortiner states he is a vice president of SW and charged
with the collection of a debt owed to SW by Lissiak. Mr.
Mortiner’s testimony is admissible since he gained knowledge of the
40
facts testified to during his employment, and the facts are also
admissible as a common law exception to the hearsay rule. Tex. R.
Civ. Pro. 166a(c); Landers, 788 S.W.2d at 165; Barnam, 612 S.W.2d
at 80; Waite, 792 S.W.2d at 540. His statement that he is a vice
president of the owner and holder of the $2.5 Million Note and
charged with its enforcement, adequately shows how he gained
personal knowledge of the facts. Id.
The statement in the Mortimer Affidavit that the $2.5 Million
Note was signed by Lissiak is a statement of fact determined from
the $2.5 Million Note, a copy of which is attached to and
authenticated by that Mortimer Affidavit as a business record.
Tex. R. Civ. Evid. 902(10); Tex. Bus & Comm Code Section 3.308;
Tex. R. Civ. P. 93(7); Holland, 597 S.W.2d. at 411. As a result,
the statement is one of fact supported by documentary evidence, a
business record and not conclusory.
Mr. Mortimer is familiar with the sale of the $2.5 Million
Note and therefore, qualified to determine the principal balance
and interest paid through date at the time of the sale of the $2.5
Million Note to Lissiak and the obligors of the $2.5 Million Note.
First Gibraltar Bank, 895 S.W.2d at 428; Zarges, 652 S.W.2d at 369;
Thompson, 840 S.W.2d at 28. Again he is reciting facts on which he
has personal knowledge.
The statements in the Mortimer Affidavit are based on his
personal knowledge, are not conclusory and his testimony in his
affidavit and the $2.5 Million Note attached are competent summary
41
judgment evidence.
Objections to the Lang Affidavit
Mr. Lang states his capacity as vice president and what his
relationship is to Lissiak’s debt. CR, v. 1 at 213-215; Tex. R.
Civ. Pro. 166a(c); Landers, 788 S.W.2d at 165; Barnam, 612 S.W.2d
at 80; Waite, 792 S.W.2d at 540. This is a clear statement of fact
and not conclusory. The statement is also supported by paragraph
4 of the Mortimer Affidavit where Mr. Mortimer states SW hired Mr.
Lang’s employer to do the servicing and Anson Lang was appointed to
handle that loan servicing function. CR, v. 1 at 209.
As with the Mortimer Affidavit, the statement that the $2.5
Million Note was signed by Lissiak is a statement of fact
determined from the $2.5 Million Note, a copy of which is also
attached to and authenticated by that Lang Affidavit as a business
record. Tex. R. Civ. Evid. 902(10); Tex. Bus & Comm Code Section
3.308; Tex. R. Civ. P. 93(7); Holland, 597 S.W.2d. at 411. As a
result, the statement is one of fact supported by documentary
evidence.
As the servicing agent Mr. Lang has personal knowledge of the
debt owed under the $2.5 Million Note, and what the balance was at
the time of transfer. First Gibraltar Bank, 895 S.W.2d at 428;
Zarges, 652 S.W.2d at 369; Thompson, 840 S.W.2d at 28. Mr. Lang
identifies the interest rate on the $2.5 Million Note, all credits
and the method used in calculating the balance due. Thompson, 840
S.W.2d at 28; Atchley, 795 S.W.2d at 337; and Trans-Continental,
42
761 S.W.2d at 577. Math is an issue of law. His statements on the
amount of the debt are a statement of fact on which he has personal
knowledge in his capacity as vice president of the loan servicer.
Id. Mr. Lang’s personal knowledge of these facts are exactly the
type handled by loan servicers in the capacity for which he has
identified himself. Landers, 788 S.W.2d at 165; Barnam, 612 S.W.2d
at 80; Waite, 792 S.W.2d at 540.
A statement by an officer as to the total amount of principal
and interest due, without more, is all that is required for SW to
prevail on summary judgment. Thompson, 840 S.W.2d at 28; Atchley,
795 S.W.2d at 337; and Trans-Continental Finance, 761 S.W.2d at577.
In the Lang Affidavit, the amounts are laid out to show in
detail how the calculations were made. The statements in the Lang
Affidavit are not conclusory and his testimony in his affidavit and
the $2.5 Million Note attached are competent summary judgment
evidence. Id.
Therefore, the trial court dd not err in granting SW summary
judgment since SW presented competent summary judgment evidence to
establish Lissiak’s liability on the unsatisfied portion of the
debt evidenced by the $2.5 Million Note and the Short Term Notes.
Restated Issue No. 5-The trial court dd not abuse its discretion in
granting SW summary judgment.
As shown above, the trial court did not abuse its discretion
in granting SW summary judgment. A trial court only abuses its
discretion when it renders an arbitrary and unreasonable decision
lacking support in the facts and circumstances of the case. Goode
43
v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997).
SW has shown in this brief that its motion for summary
judgment and reply to Lissiak’s response, provided the trial court
with competent summary judgment evidence to support its claim to
Lissiak’s liability under the debt evidenced by the $2.5 Million
Note and Short Term Notes and the amount of that debt. CR, v. 1 at
198-225 and v.3 at 620-633. With the trial court impliedly
sustaining SW objections to Lissiak’s summary judgment evidence
sufficient to grant the summary judgment, Lissiak failed to produce
competent summary judgment evidence to make a prima facie case as
to all of the elements on one of Lissiak’s affirmative defenses.
CR, v. 3 at 611-619.
None of the trial courts actions created an arbitrary and
unreasonable decision. In addition, the cases cited by Lissiak do
not support its position. For example, Lissiak cites to Eli Lilly
& Co. v. Marshall, 829 S.W.2d 157, 158 (Tex. 1992) that it is error
and abuse of discretion to rule on pending objections. Eli Lilly
applies to failure to rule on pending motions not objections. Id.,
at 158. Likewise, Lissiak cites to In re Shredder Co., 225 S.W.3d
676, 679 (Tex. App–El Paso 2006 orig., proceeding) and In re
Kleven, 100 S.W.3d 643, 644 (Tex. App–Texarkana 2003 orig.
proceeding), for similar propositions but these cases also apply to
motions and not summary judgment objections.
44
Restated Issue 5a-the trial court impliedly overruled
Lissiak’s objections to the Bates, Mortimer and Lang
affidavits and Lissiak has appealed that ruling
As a prerequisite to presenting a complaint for appellate
review, the record must show that: (1) the complaint was made to
the trial court by a timely request, objection, or motion, and (2)
the trial court either expressly or implicitly ruled on the
objection or refused to rule with the complaining party objecting
to the refusal. Alejandro v. Bell, 84 S.W.3d 383, 387-88 (Tex.
App.-Corpus Christi 2002, no pet) citing to Columbia Rio Grande
Reg’l Hosp. v. Stover, 17 S.W.3d 387, 395 (Tex. App.-Corpus Christi
2000, no pet.). No written order overruling the objection is
necessary if the record reflects that the trial court ruled on the
party's objections, either explicitly or implicitly. Id. at 388.
Since the trial court did not expressly rule on either
Lissiak’s objections, it impliedly overruled Lissiak’s objections
to the Bates, Mortimer and Lang Affidavits, sufficient to support
the summary judgment. With the objections overruled, Lissiak
brought the objections to this court. However, as shown in the
brief as to Issue 4 above, those objections are not well taken and
overruling those objections are proper. Lissiak fails to show that
the trial court declining to expressly rule on his objections to
the Bates, Mortimer and Lang Affidavits, was an abuse of
discretion.
45
Restated Issue 5b-SW met its burden of proof on summary
judgment and the court did not abuse its discretion in
granting the motion for summary judgment
SW incorporates its brief as to issues 1, 2 and 3 in response
to this item. SW’s motion for summary judgment and accompanying
summary judgment evidence presented a prima facie case on Lissiak’s
liability to SW on the debt evidenced by the $2.5 Million Note and
Short Term Notes and the amount of that liability. CR, v. 1 at
198-225.
Restated Issue 5c-Lissiak failed to support any of his
affirmative defenses with competent summary judgment proof
SW incorporates its brief as to restated issues 1, 2 and 3 and
its cross-points as to Lissiak’s summary judgment evidence in
response to this item. Lissiak failed to meet all of the elements
of at least one of his affirmative defenses with competent summary
judgment evidence. SW’s meet its burden of proof to warrant the
summary court granted by the trial court and the trial court did
not abuse its discretion in granting SW summary judgment.
The trial court did not abuse its discretion or render an
arbitrary or unreasonable decision lacking support in the facts and
circumstances of the case when it granted SW summary judgment.
Goode, 943 S.W.2d at 446. Issue 5 should be overruled.
Relief In Lissiak’s Conclusion and Prayer
Lissiak requests that this court reverse the summary judgment
and render judgment in favor of Lissiak that SW take nothing.
Lissiak had no cross-motion for summary judgment on file when the
trial court granted SW’s motion for summary judgment. As a result,
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Lissiak’s request is inappropriate, not supported by the record,
and should not be considered.
Conclusion and Prayer
The trial court did not err in granting SW summary judgment,
its decision should be affirmed, Lissiak’s issues overruled, and SW
granted such other and further relief to which it is justly
entitled.
Respectfully submitted,
/s/ Stephen Sakonchick, II
___________________________
Stephen Sakonchick, II
State Bar No. 17525500
Stephen Sakonchick II, P.C.
6502 Canon Wren Drive
Austin, Texas 78746
(512) 329-0375
(512) 697-2859 (fax)
Attorney for Appellee
SW Loan OO, L.P.
Appellee’s Rule 9.4 Certificate of Compliance
This brief complies with the type-volume limitations of Rule 9.4
because it contains words 11,938, excluding the parts of the
brief exempted by the rule.
/s/ Stephen Sakonchick, II
___________________________
Stephen Sakonchick, II
Certificate of Service
I hereby certify that on May 14, 2015, I served a copy of the
foregoing by efile, on Robert H. Holmes, the Holmes Law Firm, 3401
Beverly Drive, Dallas, Texas 75205, rhholmes@swbell.net.
/s/ Stephen Sakonchick, II
____________________________
Stephen Sakonchick, II
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No. 12-14-00344-CV
In the Court of Appeals
Twelfth District of Texas
at Tyler
_________________________________________________________________
Victor Lissiak, Jr.
Appellant
V.
SW Loan OO, L.P.
Appellee
_________________________________________________________________
On Appeal from the 7th Judicial District Court
of Smith County, Texas
_________________________________________________________________
Appellee's Appendix
_________________________________________________________________
Stephen Sakonchick, II
State Bar No. 17525500
Stephen Sakonchick II, P.C.
6502 Canon Wren Drive
Austin, Texas 78746
(512) 329-0375
(512) 697-2859 (fax)
Attorney for Appellee
SW Loan OO, L.P.
Index to Appendix
Confidentiality Agreement (CR, v. 3 at 619)........... A-1
Relevant Statutes and Rules ........................... A-2
Statutes
Tex. Bus & Comm Code Section 1.201(b)(39)..... A-2
Tex. Bus & Comm Code Section 3.308 ........... A-2
Tex. Bus & Comm Code Section 3.401 ........... A-2
Tex. Bus & Comm Code Section 3.605 ........... A-3
Tex. Bus & Comm Code Section 9.102(a)(72) .... A-6
Rules
Tex. R. Civ. P. 93(7) ........................ A-7
Tex. R. Civ. P. 166a(c) ...................... A-7
Tex. R. Civ P. 166a(f) ....................... A-8
Tex. R. Civ. Evid. 902(10) ................... A-9
Tex. R. App. P. 33.1(a)(2)(A) ................ A-11
State Bank of Grove v. North, 418 P.2d 928 (Okla. 1966). A-12
VIA EMAIL TOSAKON@Fl.ASH.NET
May 12,2015
Stephen Sakonchick, II, Esq.
STEPHEN SAKONCHICK II, P.C.
6502 Canon Wren Drive
Austin, Texas 78746
Re: Hammond Caulking, Inc. et. al. v. Jeffrey Dean Hanunond and Lisa Hammond; In the
126th District Court of Travis County, Texas; Cause No. D-I-GN-14-004612
RULE 11 AGREEMENT
Dear Mr. Sakonchick:
This letter confirms that Plaintiffs grant an extension of time for Defendants Jeffrey Dean
Hammond and Lisa Hammond to dose the sale of an existing contract for the sale of the
Condominium ("Contract") through and including May 15, 20] 5. Further, this letter confinns the
parties have agreed to reduce the settlement payment in their existing Settlement Agreement
dated January 27,2015, from $750,000.00 to $700,000.00, as to the closing of the Contract only,
with such payment being made to Plaintiffs on or before May 20, 2015. Based on the foregoing,
Plaintiffs agree they will not claim Defendants are in violation of the Agreed Order Granting
Injunctive Relief dated January 29, 2015. All remaining terms of the Settlement Agreement and
Agreed Order Granting Injunctive Relief, remain the same, including" without limitation, the
agreement to convey the Condominium to Plaintiffs if the Contract does not close on or before
May 15,2015.
If the above accurately describes the agreement between Plaintiffs and Defendants, please sign
below to acknowledge this agreement. Thank you for your courtesy in this matter.
Sincerely,
THE SNELL LA W FIRM, P .L.L. C.
lsi Andrea M. Bergia
Andrea M. Bergia
My signature below certifies that Plaintiffs agree to all of the provisions contained in this Rule 1J
Agreement.
~~?Z
Stephen Sakonchick, Esq.
5/1 J/--,g~_ _ __
Date
Attorney for Plaintiffs
THE UTTLEFIELD BUILDING
106 E 6 T11 STREET, SUITE 330
AUSTIN, TEXAS 78701
T: (512 ) 477-5291
F: (512) 477-5294
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Texas Statutes-Business and Commerce Code
§ 1.201. General Definitions
(a) Unless the context otherwise requires, words or phrases
defined in this section, or in the additional definitions
contained in other chapters of this title that apply to
particular chapters or parts thereof, have the meanings stated.
(b) Subject to definitions contained in other chapters of this
title that apply to particular chapters or parts thereof:
(39) "Surety" includes a guarantor or other secondary
obligor.
§ 3.308. Proof Of Signatures And Status As Holder In Due Course
(a) In an action with respect to an instrument, the
authenticity of, and authority to make, each signature on the
instrument are admitted unless specifically denied in the
pleadings. If the validity of a signature is denied in the
pleadings, the burden of establishing validity is on the person
claiming validity, but the signature is presumed to be authentic
and authorized unless the action is to enforce the liability of
the purported signer and the signer is dead or incompetent at the
time of trial of the issue of validity of the signature. If an
action to enforce the instrument is brought against a person as
the undisclosed principal of a person who signed the instrument
as a party to the instrument, the plaintiff has the burden of
establishing that the defendant is liable on the instrument as a
represented person under Section 3.402(a).
(b) If the validity of signatures is admitted or proved and
there is compliance with Subsection (a), a plaintiff producing
the instrument is entitled to payment if the plaintiff proves
entitlement to enforce the instrument under Section 3.301, unless
the defendant proves a defense or claim in recoupment. If a
defense or claim in recoupment is proved, the right to payment of
the plaintiff is subject to the defense or claim, except to the
extent the plaintiff proves that the plaintiff has rights of a
holder in due course that are not subject to the defense or
claim.
§ 3.401. Signature
(a) A person is not liable on an instrument unless the person:
(1) signed the instrument; or
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(2) is represented by an agent or representative who
signed the instrument and the signature is binding on the
represented person under Section 3.402.
(b) A signature may be made (i) manually or by means of a
device or machine, and (ii) by the use of any name, including a
trade or assumed name, or by a word, mark, or symbol executed or
adopted by a person with present intention to authenticate a
writing.
§ 3.605. Discharge Of Secondary Obligors
(a) If a person entitled to enforce an instrument releases the
obligation of a principal obligor in whole or in part, and
another party to the instrument is a secondary obligor with
respect to the obligation of that principal obligor, the
following rules apply:
(1) Any obligations of the principal obligor to the
secondary obligor with respect to any previous payment by
the secondary obligor are not affected. Unless the terms of
the release preserve the secondary obligor's recourse, the
principal obligor is discharged, to the extent of the
release, from any other duties to the secondary obligor
under this chapter.
(2) Unless the terms of the release provide that the
person entitled to enforce the instrument retains the right
to enforce the instrument against the secondary obligor, the
secondary obligor is discharged to the same extent as the
principal obligor from any unperformed portion of its
obligation on the instrument. If the instrument is a check
and the obligation of the secondary obligor is based on an
indorsement of the check, the secondary obligor is
discharged without regard to the language or circumstances
of the discharge or other release.
(3) If the secondary obligor is not discharged under
Subdivision (2), the secondary obligor is discharged to the
extent of the value of the consideration for the release,
and to the extent that the release would otherwise cause the
secondary obligor a loss.
(b) If a person entitled to enforce an instrument grants a
principal obligor an extension of the time at which one or more
payments are due on the instrument and another party to the
instrument is a secondary obligor with respect to the obligation
of that principal obligor, the following rules apply:
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(1) Any obligations of the principal obligor to the
secondary obligor with respect to any previous payment by
the secondary obligor are not affected. Unless the terms of
the extension preserve the secondary obligor's recourse, the
extension correspondingly extends the time for performance
of any other duties owed to the secondary obligor by the
principal obligor under this chapter.
(2) The secondary obligor is discharged to the extent that
the extension would otherwise cause the secondary obligor a
loss.
(3) To the extent that the secondary obligor is not
discharged under Subdivision (2), the secondary obligor may
perform its obligations to a person entitled to enforce the
instrument as if the time for payment had not been extended
or, unless the terms of the extension provide that the
person entitled to enforce the instrument retains the right
to enforce the instrument against the secondary obligor as
if the time for payment had not been extended, treat the
time for performance of its obligations as having been
extended correspondingly.
(c) If a person entitled to enforce an instrument agrees, with
or without consideration, to a modification of the obligation of
a principal obligor other than a complete or partial release or
an extension of the due date and another party to the instrument
is a secondary obligor with respect to the obligation of that
principal obligor, the following rules apply:
(1) Any obligations of the principal obligor to the
secondary obligor with respect to any previous payment by
the secondary obligor are not affected. The modification
correspondingly modifies any other duties owed to the
secondary obligor by the principal obligor under this
chapter.
(2) The secondary obligor is discharged from any
unperformed portion of its obligation to the extent that the
modification would otherwise cause the secondary obligor a
loss.
(3) To the extent that the secondary obligor is not
discharged under Subdivision (2), the secondary obligor may
satisfy its obligation on the instrument as if the
modification had not occurred, or treat its obligation on
the instrument as having been modified correspondingly.
(d) If the obligation of a principal obligor is secured by an
interest in collateral, another party to the instrument is a
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secondary obligor with respect to that obligation, and a person
entitled to enforce the instrument impairs the value of the
interest in collateral, the obligation of the secondary obligor
is discharged to the extent of the impairment. The value of an
interest in collateral is impaired to the extent the value of the
interest is reduced to an amount less than the amount of the
recourse of the secondary obligor, or the reduction in value of
the interest causes an increase in the amount by which the amount
of the recourse exceeds the value of the interest. For purposes
of this subsection, impairing the value of an interest in
collateral includes failure to obtain or maintain perfection or
recordation of the interest in collateral, release of collateral
without substitution of collateral of equal value or equivalent
reduction of the underlying obligation, failure to perform a duty
to preserve the value of collateral owed, under Chapter 9 or
other law, to a debtor or other person secondarily liable, and
failure to comply with applicable law in disposing of or
otherwise enforcing the interest in collateral.
(e) A secondary obligor is not discharged under Subsection
(a)(3), (b), (c), or (d) unless the person entitled to enforce
the instrument knows that the person is a secondary obligor or
has notice under Section 3.419(c) that the instrument was signed
for accommodation.
(f) A secondary obligor is not discharged under this section if
the secondary obligor consents to the event or conduct that is
the basis of the discharge, or the instrument or a separate
agreement of the party provides for waiver of discharge under
this section specifically or by general language indicating that
parties waive defenses based on suretyship or impairment of
collateral. Unless the circumstances indicate otherwise, consent
by the principal obligor to an act that would lead to a discharge
under this section constitutes consent to that act by the
secondary obligor if the secondary obligor controls the principal
obligor or deals with the person entitled to enforce the
instrument on behalf of the principal obligor.
(g) A release or extension preserves a secondary obligor's
recourse if the terms of the release or extension provide that:
(1) the person entitled to enforce the instrument retains
the right to enforce the instrument against the secondary
obligor; and
(2) the recourse of the secondary obligor continues as if
the release or extension had not been granted.
(h) Except as otherwise provided in Subsection (i), a secondary
obligor asserting discharge under this section has the burden of
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persuasion both with respect to the occurrence of the acts
alleged to harm the secondary obligor and loss or prejudice
caused by those acts.
(i) If the secondary obligor demonstrates prejudice caused by
an impairment of its recourse, and the circumstances of the case
indicate that the amount of loss is not reasonably susceptible of
calculation or requires proof of facts that are not
ascertainable, it is presumed that the act impairing recourse
caused a loss or impairment equal to the liability of the
secondary obligor on the instrument. In that event, the burden of
persuasion as to any lesser amount of the loss is on the person
entitled to enforce the instrument.
§ 9.102. Definitions And Index Of Definitions
(a) In this chapter:
(72) "Secondary obligor" means an obligor to the extent
that:
(A) the obligor's obligation is secondary; or
(B) the obligor has a right of recourse with respect
to an obligation secured by collateral against the
debtor, another obligor, or property of either.
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TEXAS RULES OF CIVIL PROCEDURE
Rule 93. CERTAIN PLEAS TO BE VERIFIED
A pleading setting up any of the following matters, unless the
truth of such matters appear of record, shall be verified by
affidavit.
7. Denial of the execution by himself or by his authority
of any instrument in writing, upon which any pleading is
founded, in whole or in part and charged to have been
executed by him or by his authority, and not alleged to be
lost or destroyed. Where such instrument in writing is
charged to have been executed by a person then deceased, the
affidavit shall be sufficient if it states that the affiant
has reason to believe and does believe that such instrument
was not executed by the decedent or by his authority. In the
absence of such a sworn plea, the instrument shall be
received in evidence as fully proved.
Rule 166a. SUMMARY JUDGMENT
(c) Motion and Proceedings Thereon. The motion for summary
judgment shall state the specific grounds therefor. 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. The judgment sought shall be rendered
forthwith if (i) the deposition transcripts, interrogatory
answers, and other discovery responses referenced or set forth in
the motion or response, and (ii) the pleadings, admissions,
affidavits, stipulations of the parties, and authenticated or
certified public records, if any, on file at the time of the
hearing, or filed thereafter and before judgment with permission
of the court, show that, except as to the amount of damages,
there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law on the issues
expressly set out in the motion or in an answer or any other
response. Issues not expressly presented to the trial court by
written motion, answer or other response shall not be considered
on appeal as grounds for reversal. A summary judgment may be
based on uncontroverted testimonial evidence of an interested
witness, or of an expert witness as to subject matter concerning
which the trier of fact must be guided solely by the opinion
testimony of experts, if the evidence is clear, positive and
direct, otherwise credible and free from contradictions and
inconsistencies, and could have been readily controverted.
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(f) Form of Affidavits; Further Testimony. Supporting and
opposing affidavits shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to testify
to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith. The court may permit
affidavits to be supplemented or opposed by depositions or by
further affidavits. Defects in the form of affidavits or
attachments will not be grounds for reversal unless specifically
pointed out by objection by an opposing party with opportunity,
but refusal, to amend.
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TEXAS RULES OF EVIDENCE
Rule 902. Self-Authentication [Effective September 1, 2014]
The following items of evidence are self-authenticating; they
require no extrinsic evidence of authenticity in order to be
admitted:
(10) Business Records Accompanied by Affidavit. The original or a
copy of a record that meets the requirements of Rule 803(6) or
(7), if the record is accompanied by an affidavit that complies
with subparagraph (B) of this rule and any other requirements of
law, and the record and affidavit are served in accordance with
subparagraph (A). For good cause shown, the court may order that
a business record be treated as presumptively authentic even if
the proponent fails to comply with subparagraph (A).
(A) Service Requirement. The proponent of a record must
serve the record and the accompanying affidavit on each
other party to the case at least 14 days before trial. The
record and affidavit may be served by any method permitted
by Rule of Civil Procedure 21a.
(B) Form of Affidavit. An affidavit is sufficient if it
includes the following language, but this form is not
exclusive. The proponent may use an unsworn declaration made
under penalty of perjury in place of an affidavit.
1. I am the custodian of records [or I am an employee
or owner] of __________ and am familiar with the manner
in which its records are created and maintained by
virtue of my duties and responsibilities.
2. Attached are ____ pages of records. These are the
original records or exact duplicates of the original
records.
3. The records were made at or near the time of each
act, event, condition, opinion, or diagnosis set forth.
[or It is the regular practice of __________ to make
this type of record at or near the time of each act,
event, condition, opinion, or diagnosis set forth in
the record.]
4. The records were made by, or from information
transmitted by, persons with knowledge of the matters
set forth. [or It is the regular practice of __________
for this type of record to be made by, or from
information transmitted by, persons with knowledge of
the matters set forth in them.]
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5. The records were kept in the course of regularly
conducted business activity. [or It is the regular
practice of __________ to keep this type of record in
the course of regularly conducted business activity.]
6. It is the regular practice of the business activity
to make the records.
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TEXAS RULES OF APPELLATE PROCEDURE
33.1. Preservation; How Shown
(a) In General. As a prerequisite to presenting a complaint for
appellate review, the record must show that:
(1) the complaint was made to the trial court by a timely
request, objection, or motion that:
(A) stated the grounds for the ruling that the
complaining party sought from the trial court with
sufficient specificity to make the trial court aware of
the complaint, unless the specific grounds were
apparent from the context; and
(B) complied with the requirements of the Texas Rules
of Civil or Criminal Evidence or the Texas Rules of
Civil or Appellate Procedure; and
(2) the trial court:
(A) ruled on the request, objection, or motion, either
expressly or implicitly; or
(B) refused to rule on the request, objection, or
motion, and the complaining party objected to the
refusal.
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