ACCEPTED
12-15-00220-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/18/2015 4:59:00 PM
Pam Estes
CLERK
NO. 12-15-00220-CV
FILED IN
IN THE 12th COURT OF APPEALS
TYLER, TEXAS
TWELTH COURT OF APPEALS 11/18/2015 4:59:00 PM
PAM ESTES
Clerk
TYLER, TEXAS
________________________________________________
ANNA MARIE INMAN, Appellant
VS.
EQUABLE ASCENT FINANCIAL, LLC, Appellee
_________________________________________________
APPELLANT’S BRIEF
___________________________________________________
Heather Keegan
State Bar No. 24065545
Richard Tomlinson
State Bar No. 20123500
LONE STAR LEGAL AID
1415 Fannin, 3rd Floor
Houston, Texas 77002
713/652-0077, ext. 1154
Facsimile: 713/652-3814
ATTORNEYS FOR APPELLANT
ORAL ARGUMENT REQUESTED
i
IDENTITY OF THE PARTIES
Trial Court Cause Number: 2011B-1051
Plaintiff: Equable Ascent Financial, LLC
Defendant: Anna Marie Inman
Attorney for Plaintiff: Dan G. Young
State Bar No. 22177250
Jenkins, Wagnon & Young, P.C.
P.O. Box 420
Lubbock, Texas 79408-0420
806-687-9172
Fax: 806-771-8755
dgyservice@jwylaw.com
Attorneys for Defendant: Heather Keegan
State Bar No. 24065545
hkeegan@lonestarlegal.org
Richard Tomlinson
State Bar No. 20123500
rtomlinson@lonestarlegal.org
Lone Star Legal Aid
1415 Fannin, 3rd Floor
Houston, Texas 77002
713-652-0077, ext. 1154
Facsimile: 713-652-3814
ii
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Index of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .v
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
1. Do the private documents attached to Hasenmiller’s
affidavit constitute competent summary judgment evidence
or any evidentiary support for the summary judgment?
2. Assuming the documents attached to Hasenmiller’s affidavit
were inadmissible or have no evidentiary value, did the trial
court err in granting summary judgment based on
conclusory statements in that affidavit?
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
I. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. The private documents attached to the Hasenmiller affidavit
are not competent summary judgment evidence. . . . . . . . . . . . . . . . .8
A. The private documents attached to Hasenmiller’s affidavit
are not properly authenticated. . . . . . . . . . . . . . . . . . . . . . . . . .9
B. The private documents are hearsay in the
absence of an authenticating affidavit. . . . . . . . . . . . . . . . . . . 14
iii
C. Even if properly admitted, the private documents
are either incompetent summary evidence or lack
evidentiary value. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
III. Assuming the documents attached to Hasenmiller’s
affidavit were inadmissible, incompetent or lacking
in evidentiary value, the trial court erred in granting
summary judgment based on conclusory statements
in that affidavit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A. The statement in Hasenmiller’s affidavit regarding
assignment of the account is a mere conclusion. . . . . . . . . . .17
B. The statements in Hasenmiller’s affidavit relating to
damages are mere conclusions. . . . . . . . . . . . . . . . . . . . . . . .18
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Appendix
Plaintiff’s Motion for Summary Judgment . . . . . . . . . . . . . . . . . . . . . . .Tab A
Defendant’s Response to Plaintiff’s Motion for Summary Judgment . .Tab B
Final Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tab C
Defendant’s Motion for Reconsideration/Motion for New Trial
and Request for Written Ruling on Defendant’s Objections to
Summary Judgment Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tab D
Order denying reconsideration and refusing to rule on
objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Tab E
iv
INDEX OF AUTHORITIES
Cases
Abrego v. Harvest Credit Management VII, LLC,
2010 WL 1718953 (Tex. App. – Corpus Christ 2010, no pet.) . . . . . . .14, 15
Arkoma Basin Exploration Co. v. FMF Associates,
249 S.W.3d 380 (Tex. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Ayers v. Target National Bank,
2012 WL 3043043 (Tex. App. – Houston [14th Dist.] 2012, no pet.) . . . . .14
Baywood Estates Property Owners Association, Inc. v. Caolo,
392 S.W.3d 776 (Tex. App. – Tyler 2012, no pet.) . . . . . . . . . . . . . . . . . . .7
Brown v. Mesa Distributors, Inc.,
414 S.W.3d 279 (Tex. App.—Houston [1st Dist.] 2013, no pet.) . . . . . . . .16
Brownlee v. Brownlee,
665 S.W.2d 111 (Tex. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671 (Tex. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Collins v. County of El Paso,
954 S.W.2d 137 (Tex.App.-El Paso, 1997, pet. denied) . . . . . . . . . . . . . . .7
Colvin v. TDECU,
2012 WL 5544950 (Tex. App.—Houston [1st Dist.] 2012) . . . . . . . . . . . . .19
The Travelers Insurance Company v. Joachim,
315 S.W.3d 860 (Tex. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Columbia Rio Grande Regional Hospital v. Stover,
17 S.W.3d 387 (Tex. App. – Corpus Christi 2000, no pet.) . . . . . . . . . . 8, 9
v
Fairfield Financial Group, Inc. v. Synnot,
300 S.W.3d 316 (Tex. App. – Austin 2009, no pet.) . . . . . . . . . . . . . . . . . .8
Gilbert v. General Motors Corporation,
2006 WL 1714040 (Tex. App. – Fort Worth 2006, no pet.) . . . . . . . . . .9, 10
Gonzalez v. McKinney Dodge Inc.,
2015 WL 3454399 (Tex. App. – Dallas 2015, pet. pending) . . . . . . . . . . . .8
In re Estate of Guerrero,
465 S.W.3d 693 (Tex. App. – Houston [14th Dist.] 2015, pet. pending) . . . 9
Hourani v. Katzen,
305 S.W.3d 239 (Tex. App. – Houston [1st Dist.] 2009, pet. denied) . . . . . 8
Kenny v. Portfolio Recovery Associates, LLC,
464 S.W.3d 29 (Tex. App. – Houston [1st Dist.] 2015, no pet.) . . . . . . . . .14
Kleven v. Texas Department of Criminal Justice,
69 S.W.3d 341 (Tex. App- Texarkana 2002, no pet) . . . . . . . . . . . . . 10, 11
Krishnan v. Law Offices of Preston Henrichson, P.C.,
83 S.W.3d 295 (Tex. App. – Corpus Christi 2002, pet. denied) . . . . . . . . 11
Llopa, Inc. v. Nagel,
956 S.W.2d 82 (Tex. App. – San Antonio 1997, pet. denied) . . . . . . . . . .11
Lyons v. Lyons,
2009 WL 89728 (Tex. App. – San Antonio 2009, pet. denied) . . . . . .12, 13
MMP, Ltd. v. Jones,
710 S.W.2d 59 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Owens-Corning Fiberglass Corporation v. Malone,
972 S.W.2d 35 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Republic National Leasing Corporation v. Schindler,
717 S.W.2d 606 (Tex. 1986)(per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . .9
vi
Rockwall Commons Associates, Ltd. v. MRC Mortgage Grantor Trust I,
331 S.W.3d 500 (Tex. App. – El Paso 2010, no pet.) . . . . . . . . . . . . . . . .12
Unifund CCR Partners v. Laco,
2009 WL 4879348 (Tex. App. – Dallas 2009, no pet.) . . . . . . . . . . . . . . . 15
United Blood Services v. Longoria,
938 S.W.2d 29, 30 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Uribe v. Pharia, L.L.C.,
2014 WL 3555529 (Tex. App. – Corpus Christi 2014, no pet.) . . . . . . . . .14
Valerus Compression Services v. Gregg County Appraisal District,
457 S.W.3d 520 (Tex. App.—Tyler 2015) . . . . . . . . . . . . . . . . . . . . . . . . .16
Venable v. State,
113 S.W.3d 797 (Tex. App. – Beaumont 2003) . . . . . . . . . . . . . . . . .12, 13
Wande v. Pharia,
2011 WL 3820774 (Tex. App. – Houston [1st Dist.] 2011, no pet.) . . . . . .14
Winchek v. Am. Exp. Travel Related Servs. Co.,
232 S.W.3d 197 (Tex. App.-Houston [1st Dist.] 2007, no pet.) . . . . . . . . . 19
Rules
TEX.R.CIV.P. 166a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 9, 13
TEX.R.CIV.P. 193.7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11
TEX.R.EVID. 803 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
TEX.R.EVID. 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
TEX.R.EVID. 902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 11, 12
vii
NO. 12-15-00220-CV
IN THE
TWELTH COURT OF APPEALS
TYLER, TEXAS
________________________________________________
ANNA MARIE INMAN, Appellant
VS.
EQUABLE ASCENT FINANCIAL, LLC, Appellee
_________________________________________________
APPELLANT’S BRIEF
_________________________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW Appellant Anna Marie Inman (“Inman”) and moves this
Court to reverse the final summary judgment awarded to Equable Ascent
Financial, LLC (“Equable”) by the trial court. The documents attached to
Hasenmiller’s affidavit are inadmissible, incompetent or lacking in
evidentiary value. The absence of any admissible or supportive
documents attached to this affidavit render a number of vital statements
1
conclusory. Without those conclusory statements and the attached private
documents, there is no basis for summary judgment.
STATEMENT OF THE CASE
The underlying case is a suit to collect on a credit card debt filed by a
debt buyer. Equable filed its suit in the 392nd District Court of Henderson
County, alleging breach of contract and account stated claims. (C.R. 1-6)
After being served, Inman filed a pro se answer. (C.R. 9-10) Equable filed
a motion for summary judgment and a notice of hearing. (C.R. 11-52, 56-
57) More than 7 days before the hearing, Inman retained counsel and filed
a first amended answer with a general denial and a response to the motion.
(C.R. 58-68) After a hearing, the trial court granted a final summary
judgment, awarding Equable $6,185 in damages, $1,500 in attorney’s fees
through trial and additional attorney’s fees on appeal. (C.R. 73-74)
Inman then filed a timely motion for reconsideration and new trial as well as
a request for a ruling on objections which were both denied by the trial
court. (C.R. 75-78, 83-85) Inman then filed a timely notice of appeal.(C.R.
86-87)
2
ISSUES PRESENTED
Issue 1
Are the private documents attached to Hasenmiller’s affidavit
competent summary judgment evidence?
Issue 2
Assuming the documents attached to Hasenmiller’s affidavit are
incompetent or lacking in any evidentiary value, did the trial court err in
granting summary judgment based on conclusory statements in that
affidavit?
STATEMENT OF FACTS
Equable asserted in its petition that Inman failed to pay what she
owed to an unnamed creditor on a credit card debt. (C.R. 1-6)
In the main body of its motion for summary judgment, Equable
alleged once again that Inman owed a certain amount of unpaid credit card
debt to an unnamed creditor and that Equable was the current owner of the
debt. (C.R. 11-13) As support for this motion, Equable attached an
affidavit signed by Jeff Hasenmiller; a number of documents, including a bill
of sale reflecting the sale of a number of accounts from Chase Bank to
Hilco Receivables, public documents relating to the merger of Hilco with
Equable, a number of monthly statements, and a Providian cardholder
3
account agreement; and the affidavit of Dan G. Young on attorney’s fees.
(C.R. 15-52) Neither affidavit authenticated the documents attached to the
motion. (C.R. 10, 50-52) Some of the print on a number of the attached
documents is so small as to be illegible. (C.R. 25-44) The attached
monthly statements include footers showing an internet address and an
apparent print date of “2/25/2015[.]” (C.R. 25-44), long after Hasenmiller’s
affidavit was executed on August 20, 2011. (C.R. 14)
In Inman’s response to the motion for summary judgment, she
asserted that Hasenmiller’s affidavit was not a proper business records
affidavit, the bill of sale and merger documents were unauthenticated
hearsay, the Providian account agreement was unauthenticated hearsay
and the Chase monthly statements were both illegible and unauthenticated.
(C.R. 62-66) Given the objections to this documentary evidence, Inman
asserted that Equable had failed to prove the elements of its two claims.
(C.R. 66) Inman explicitly requested the Court to consider “defendant’s
objections so they will be preserved for appeal.” (C.R. 67)
At the hearing on the motion for summary judgment, Equable’s
counsel argued that summary judgment was appropriate based on the
affidavit of Jeff Hasenmiller and the documents attached to that affidavit. (1
R.R. 4/23-5/1) He goes on to argue that the documents are not hearsay,
4
because they are “proven up by the affidavit itself to be non-hearsay . . . .”
(1 R.R. 6/9-10) Inman’s counsel repeatedly discussed the nature of her
objections to the attached documentary evidence as being unauthenticated
and hearsay and asked the trial court to rule on her objections. (1 R.R. 7/1-
3, 8/4-5, 9/2-4) Specifically, she noted that Hasenmiller’s affidavit was not
a business records affidavit sufficient to both authenticate documents and
render them non-hearsay business records. (1 R.R. 6/22-25)
Recognizing that Hasenmiller’s affidavit did not refer to the number of
pages of documents which were attached, counsel for Equable argued that
such language was not necessary to authenticate the documents. (1 R.R.
8/16-20) The judge then awarded summary judgment and refused to rule
on each of Inman’s objections, apparently treating the request as a request
for findings of fact and conclusions of law. (1 R.R. 8/21-25, 9/2-7)
At the hearing on the motion for reconsideration and new trial and
request for written ruling on objections, Inman’s counsel specifically noted
that she had previously requested the trial judge to rule on her objections
and that the trial judge had mistakenly assumed that she was requesting
findings of fact and conclusions of law. (2 R.R. 3/25-4/20) Counsel for
Equable argued that the trial court was not required to make a written ruling
on the objections. (2 R.R. 6/13-21) When the trial court asked whether
5
he needed to rule on Inman’s objections to the summary judgment
evidence, counsel for Equable stated that the trial court was not required to
do that. (2 R.R. 14/3-10) Counsel for Inman suggested that the trial court
was required to rule on her objections under the rules of appellate
procedure to protect her “client’s right[s,]” and the trial court indicated that
the appellate court could order him to do it. (2 R.R. 14/11-18) When
Inman’s counsel asked if the judge was refusing to make a ruling on the
objections, the trial court then explained that he was “overruling everything”
and that he was not granting any of Inman’s requests at the hearing,
including her request for written rulings on her objections. (2 R.R. 14/21-
15/7) The order on the motion for new trial and request for ruling on
objections signed by the trial court crossed out all of the language providing
for rulings on specific objections to summary judgment evidence. (C.R. 83-
84)
SUMMARY OF THE ARGUMENT
The trial court erred in considering the private documents as
competent summary judgment evidence when they are unauthenticated,
hearsay, illegible and lacking evidentiary value.
The trial court erred in awarding summary judgment for Equable.
Since the documentary evidence was inadmissible, partially illegible and
6
failed to demonstrate the assignment of the credit card account at issue,
the statements in Hasenmiller’s affidavit were no more than conclusions. If
the statements in Hasenmiller’s affidavit are conclusions and the attached
documents are inadmissible or have no evidentiary value, there is no
evidence to support the summary judgment.
ARGUMENT
I. Standard of Review
The purpose of summary judgment procedure “is not to deprive a
litigant of his right to . . . trial, but to eliminate patently unmeritorious claims
or untenable defenses.” City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 n.5 (Tex. 1979). In other words, summary judgment
procedure should not “deprive litigants of their right to a full hearing on the
merits of any real issue of fact.” Collins v. County of El Paso, 954 S.W.2d
137, 145 (Tex.App.-El Paso 1997, pet. denied).
A traditional summary judgment, like the one in this case, is subject to
de novo review on appeal. The Travelers Insurance Company v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). A traditional motion for summary
judgment is properly granted only when a movant establishes that there are
no genuine issues of material fact and that he is entitled to judgment as a
matter of law. Baywood Estates Property Owners Association, Inc. v.
7
Caolo, 392 S.W.3d 776, 780 (Tex. App. – Tyler 2012, no pet.);
TEX.R.CIV.P. 166a(c). A plaintiff moving for traditional summary judgment
must demonstrate that he is entitled to summary judgment as a matter of
law on each element of his cause of action. MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986); Hourani v. Katzen, 305 S.W.3d 239, 248 (Tex.
App. – Houston [1st Dist.] 2009, pet. denied). In resolving whether the
movant met its traditional motion for summary judgment burden, evidence
favorable to the non-movant will be taken as true, every reasonable
inference must be indulged in favor of the non-movant, and any doubts
resolved in favor of the non-movant. Id.
By contrast, a trial court’s rulings concerning the admission or
exclusion of summary judgment evidence is reviewed for an abuse of
discretion. Gonzalez v. McKinney Dodge Inc., 2015 WL 3454399, *3 (Tex.
App. – Dallas 2015, pet. pending); Fairfield Financial Group, Inc. v. Synnot,
300 S.W.3d 316, 319 (Tex. App. – Austin 2009, no pet.). A trial court
abuses its discretion if it acts without regard to guiding rules or principles.
Owens-Corning Fiberglass Corporation v. Malone, 972 S.W.2d 35, 43 (Tex.
1998).
8
II. The private documents attached to Hasenmiller’s affidavit are
not competent summary judgment evidence.
As a general rule, documents submitted as summary judgment
evidence must be admissible under the rules of evidence. United Blood
Services v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997); Columbia Rio
Grande Regional Hospital v. Stover, 17 S.W.3d 387, 396 (Tex. App. –
Corpus Christi 2000, no pet.). The documents attached to Hasenmiller’s
affidavit are not competent summary judgment evidence, because they are
unauthenticated, constitute hearsay, are partially illegible and fail to provide
any support on an element of the claim.
A. The private documents attached to Hasenmiller’s
affidavit are not authenticated.
Copies of documents must be authenticated in order to be treated as
competent summary judgment evidence. TEX.R.CIV.P. 166a(f); Republic
National Leasing Corporation v. Schindler, 717 S.W.2d 606, 607 (Tex.
1986)(per curiam); In re Estate of Guerrero, 465 S.W.3d 693, 703-704
(Tex. App. – Houston [14th Dist.] 2015, pet. pending).
The rules allow two obvious means of authentication for documents
submitted as summary judgment evidence. First, a sworn affidavit stating
that the attached documents are true and correct copies of the originals
authenticates copies sufficiently. Republic National Leasing, 717 S.W.2d
9
at 607; Guerrero, 465 S.W.3d at 704; Gilbert v. General Motors
Corporation, 2006 WL 1714040, *4 (Tex. App. – Fort Worth 2006, no pet.).
Second, some documents submitted as summary judgment evidence may
be treated as self-authenticating. Gilbert, 2006 WL 1714040 at *4. For
example, the evidence rules recognize a number of documents as self-
authenticating while the rules of procedure recognize that documents
produced by the opposing party in discovery are self-authenticating.
TEX.R.EVID. 902; TEX.R.CIV.P. 193.7.
In this case, 49 pages of documents are attached to the motion for
summary judgment between Exhibits A and B, including a bill of sale, some
public merger documents, a number of monthly statements and a purported
cardholder agreement, and Inman objected to all of these documents as
unauthenticated. (C.R. 15-49, 62-64) Inman continues to assert that all of
the private documents are unauthenticated and, thereby, do not serve as
competent summary judgment evidence. (C.R. 15, 25-49) None of these
private documents are authenticated by either of the two affidavits attached
to the motion for summary judgment. (C.R. 14, 50-52)
While Exhibit A, Hasenmiller’s affidavit, does make reference to
business records purportedly relating to Inman’s credit card account,
nowhere does this affidavit verify the accuracy of the copies of the
10
documents attached to the motion. Given the absence of any language
which verifies the accuracy of the documents, the attached private
documents are not authenticated by that affidavit. Gilbert, 2006 WL
1714040 at *4 (“Although Gilbert’s affidavit mentions some of the other
attached documents, the affidavit makes no attempt whatsoever to
authenticate the documents”); Kleven v. Texas Department of Criminal
Justice, 69 S.W.3d 341, 344-346 (Tex. App- Texarkana 2002, no
pet.)(affidavit failed to authenticate documents when it failed to state that
the attached copies are true copies of the originals); Llopa, Inc. v. Nagel,
956 S.W.2d 82, 87 (Tex. App. – San Antonio 1997, pet. denied)(affidavit
that only references attached documents does not authenticate). Had
Exhibit A, Hasenmiller’s affidavit, merely stated that the attached copies
were true copies of original business records, they would have been
treated as authenticated. Krishnan v. Law Offices of Preston Henrichson,
P.C., 83 S.W.3d 295, 300 (Tex. App. – Corpus Christi 2002, pet.
denied)(medical report authenticated by affidavit which stated that the
report was a true copy of the original).
In addition, there is no allegation that the attached documents are
self-authenticating. First, there is nothing in the record that reflects that
11
the attached private records were produced in discovery by Inman, which
would make them self-authenticating under Rule 193.7.
Second, none of the private records can be treated as self-
authenticating under Rule 902, because these private documents do not fit
any of the documents covered by the rule. While the private documents
may appear to fit the provision for business records accompanied by an
affidavit, TEX.R.EVID. 902(10), that part of the rule does not apply for the
simple reason that the affidavits attached to the motion for summary
judgment fail to authenticate these attached records. TEX.R.EVID.
902(10)(B)(second paragraph).
While only substantial compliance with the sample affidavit provided
by Rule 902(10) is required, Rockwall Commons Associates, Ltd. v. MRC
Mortgage Grantor Trust I, 331 S.W.3d 500, 509 (Tex. App. – El Paso 2010,
no pet.), the failure to provide any authentication of attached records
should be treated as less than substantial compliance. When deviation
from Rule 902 hinders the underlying legislative purpose and fails to assure
performance of the rule’s essential requirements, there is no substantial
compliance with the rule. Venable v. State, 113 S.W.3d 797, 800 (Tex.
App. – Beaumont 2003).
12
Where the authenticating affidavit has no notary seal or any
statement of personal knowledge, the appellate courts have refused to find
substantial compliance with Rule 902(10). Lyons v. Lyons, 2009 WL
89728, *2 (Tex. App. – San Antonio 2009, pet. denied)(no substantial
compliance when a notary seal was missing); Venable, 113 S.W.3d at 800-
801 (no substantial compliance with no notary seal or statement of
personal knowledge). Likewise, the failure to provide any authenticating
language in either of the affidavits attached to the motion for summary
judgment here demonstrates a lack of substantial compliance. A contrary
rule would allow the admission of business records into evidence, or
consideration as summary judgment evidence, without any assurance of
accuracy, rendering the requirements for authentication in Rules 166a(f)
and 901(a) entirely superfluous.
Moreover, some of the documents attached to the Plaintiff’s Motion
for Summary Judgment show on their face that they were printed years
after Hasenmiller’s affidavit was executed. (C.R. 14, 25-44) The affidavit
cannot be in substantial compliance with Rule 902(10) if it is being offered
to authenticate copies which were not in existence when Hasenmiller
signed his affidavit. Inman’s objection to the lack of authenticating
language in the affidavit raises more than a mere technicality. Failure to
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identify the attached exhibits in the affidavit, and failure to include language
confirming that the exhibits are true and correct copies of the records of the
business, are substantive deficiencies that go to the core of the legislative
purpose behind Rule 902.
B. The private documents are hearsay in the absence of an
adequate authenticating affidavit.
Since the private documents are hearsay unless they fit the exception
for business records set forth in Rule 803(6), they are admissible in this
case only if they were properly authenticated under Rule 902(10).
TEX.R.EVID. 803(6). As explained in the previous section, though, neither
of the affidavits attached to the motion for summary judgment actually
authenticated the private documents. This failure to authenticate
demonstrates the absence of substantial compliance with Rule 902(10).
As a result, the private documents must be treated as inadmissible
evidence. Lyons, 2009 WL 89728 at *1-2; Venable, 113 S.W.3d at 799-
801.
C. Even if properly admitted, the private documents are
incompetent or irrelevant summary judgment evidence.
Even assuming all of the private documents were admissible, most of
these documents do not serve as competent summary judgment evidence
for two reasons. First, the monthly statements (C.R. 25-44) are largely
14
illegible and, therefore, cannot be treated as competent summary judgment
evidence. Uribe v. Pharia, L.L.C., 2014 WL 3555529, *5 (Tex. App. –
Corpus Christi 2014, no pet.); Ayers v. Target National Bank, 2012 WL
3043043, *2-5 (Tex. App. – Houston [14th Dist.] 2012, no pet.); Wande v.
Pharia, 2011 WL 3820774, *5 (Tex. App. – Houston [1st Dist.] 2011, no
pet.). As such, these documents provide no factual detail on the terms of
the contract or the basis for calculating the amount of the claimed
outstanding balance. Most importantly, the numbers in the monthly
statements are illegible, thereby providing no factual support as to the
amount of the claimed balance.
Second, the one remaining private document, the bill of sale, is only
relevant to show that the account at issue was assigned from Chase Bank
USA, N.A. to Hilco Receivables, LLC, the apparent predecessor of Equable
Ascent Financial, LLC (C.R. 16-24). By itself, though, the bill of sale only
demonstrates that a portfolio of receivables was assigned from Chase to
Hilco. Without attaching Exhibits 1, C and D referenced in the bill of sale,
the bill of sale provides no evidence that Inman’s account was among the
receivables being assigned. Kenny v. Portfolio Recovery Associates, LLC,
464 S.W.3d 29, 33 (Tex. App. – Houston [1st Dist.] 2015, no pet.); Abrego
v. Harvest Credit Management VII, LLC, 2010 WL 1718953, *3 (Tex. App. –
15
Corpus Christ 2010, no pet.); Unifund CCR Partners v. Laco, 2009 WL
4879348, *4 (Tex. App. – Dallas 2009, no pet.).
III. Assuming the documents attached to Hasenmiller’s affidavit
were inadmissible or have no evidentiary value, the trial court
erred in granting summary judgment based on conclusory
statements in that affidavit.
To grant summary judgment to Plaintiff, the trial court needed to have
admissible, competent evidence showing (1) that Defendant owed money
to Plaintiff, and (2) the amount of Plaintiff’s damages. Hasenmiller’s
affidavit fails to support the judgment, because it offers only unsupported
conclusory statements on the elements Plaintiff was required to prove.
While a company officer’s affidavit may support summary judgment,
such an affidavit “is sufficient summary judgment evidence only when it
gives detailed accounts of the facts it attests to or when it provides
supporting documents which tend to support the statements made.” Brown
v. Mesa Distributors, Inc., 414 S.W.3d 279, 297 (Tex. App.—Houston [1st
Dist.] 2013, no pet.). Conclusory statements in affidavits are not competent
summary judgment evidence. Valerus Compression Services v. Gregg
County Appraisal District, 457 S.W.3d 520, 530 (Tex. App.—Tyler 2015). A
conclusory statement is one that does not provide the underlying facts to
support the conclusion. Id. For example, “a witness cannot prove that
equipment is self-powered by merely saying it is self-powered.” Id.
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A. The statement in Hasenmiller’s affidavit regarding
assignment of the account is a mere conclusion.
The only evidence that Plaintiff is the owner of the account is the
assertion at paragraph 5 of Hasenmiller’s affidavit: “For good and valuable
consideration, Plaintiff purchased the account from the Original Creditor or
its assignee and Plaintiff is the current creditor of the Account.” (C.R. 14)
This statement is vague and completely devoid of any detail. The factual
statements are entirely general --- Hasenmiller does not give any
information about when the account was purchased or for what
consideration. The affidavit does not specifically identify which party sold
the account to Plaintiff --- the original creditor or an unnamed assignee.
(C.R. 14) The documents attached to the affidavit do not show anywhere
that this account was sold by the original creditor to Plaintiff or its
predecessor in interest. (C.R. 16-24) Hasenmiller’s statement that Plaintiff
is the current creditor of the account is a legal conclusion for which he
offers no factual basis. The affiant’s assertion of a legal conclusion is not
sufficient summary judgment evidence to establish that Plaintiff is entitled
to collect on this account. Brownlee v. Brownlee, 665 S.W.2d 111, 112
(Tex. 1984).
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B. The statements in Hasenmiller’s affidavit relating to
damages are mere conclusions.
The trial court awarded damages to Plaintiff in the amount of
$6165.80, plus attorney fees. (C.R. 73-74) As discussed above, the
account statements attached to the Plaintiff’s motion were unauthenticated
and almost entirely illegible, so the only evidence before the court on the
element of damages were Hasenmiller’s following statements in his
affidavit:
4. The Defendant defaulted on payments to the Original
Creditor.
[. . . .]
6. All credits and payments have been properly applied,
Defendant is not entitled to any additional credits or offsets on
the account of any kind, and the balance as set forth herein is
currently due and owing.
7. There is now due and payable from the Defendant the
sum of $6165.80 plus costs and reasonable attorney fees as
permitted by law or contract.
(C.R. 14)
Hasenmiller’s affidavit does not set forth the terms of the parties’ credit
agreement. It contains no information about the rate of interest, the date of
default, or how the damages were calculated.
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The Hasenmiller affidavit’s recitation of damages is conclusory and
does not support summary judgment for Plaintiff. “Summary judgment
evidence of damages in credit card cases is sufficient where it ‘provide[s]
detailed explanations of the cost of credit’ and ‘the methodology employed’
to calculate the balance owed.” Colvin v. TDECU, 2012 WL 5544950, *6
(Tex. App.—Houston [1st Dist.] 2012), quoting Winchek v. Am. Exp. Travel
Related Servs. Co., 232 S.W.3d 197, 205 (Tex. App.-Houston [1st Dist.]
2007, no pet.). The Hasenmiller affidavit falls short of the standard of proof
required of summary judgment affidavits in credit card cases, because it
contains no information whatsoever about the cost of credit or how the
damages were calculated. (C.R. 14) Without those underlying facts, the
affiant is ultimately presenting a bare conclusion and asking the court to
“take his word for it” that the Plaintiff’s damages are $6165.80. Arkoma
Basin Exploration Co. v. FMF Associates, 249 S.W.3d 380, 389 (Tex.
2008). Taken as a whole, in the absence of authenticated supporting
documentation, the Hasenmiller affidavit presents no competent summary
judgment evidence on the issue of Plaintiff’s damages.
VII. Conclusion
Appellant Inman has established that there is no evidence to support
the underlying summary judgment. As a result, the underlying final
19
summary judgment should be reversed and the case remanded for further
proceedings.
PRAYER
For the foregoing reasons, Appellant Inman respectfully prays that
this Court reverse the final judgment in this cause and remand for further
proceedings. Appellant also prays for all other and further relief to which
she may show herself entitled.
Respectfully submitted,
/s/ Heather Keegan
Heather Keegan
SBN: 24065545
hkeegan@lonestarlegal.org
Richard Tomlinson
SBN: 20123500
rtomlinson@lonestarlegal.org
LONE STAR LEGAL AID
1415 Fannin, 3rd Floor
Houston, TX 77002
Ph: (713) 652-0077, ext. 1154
Fax: (713) 652-3814
ATTORNEYS FOR APPELLANT
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CERTIFICATE OF SERVICE
Pursuant to T.R.A.P. 9.5, I hereby certify that I served a copy of the
foregoing Appellant’s Brief electronically or by fax, certified mail with receipt
requested, or hand delivery, on this the 18th day of November, 2015, as
follows:
Dan G. Young
Jenkins, Wagnon & Young, P.C.
P.O. Box 420
Lubbock, Texas 79408-0420
Fax: 806-771-8755
E-mail: dgyservice@jwylaw.com
ATTORNEY FOR APPELLEE
/s/ Richard Tomlinson
Richard Tomlinson
CERTIFICATE OF COMPLIANCE
Pursuant to T.R.A.P. 9.4(i)(3), I hereby certify that this is a computer-
generated document and the number of words in this brief is 6,455 based
on a word count provided by my Microsoft Word word-processing program.
/s/ Richard Tomlinson
Richard Tomlinson
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