ACCEPTED 01-14-01007-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/6/2015 12:54:58 PM CHRISTOPHER PRINE CLERK
No. 01-14-01007-CV
FILED IN 1st COURT OF APPEALS IN THE COURT OF APPEALS HOUSTON, TEXAS 3/6/2015 12:54:58 PM FOR THE FIRST DISTRICT OF TEXAS CHRISTOPHER A. PRINE Clerk
AT HOUSTON
ALLAN R. AVERY, Appellant
v.
LPP MORTGAGE, LTD., Appellee
Appealed from the 127th Judicial District Court
of Harris County, Texas
Trial Court Cause Number: 201165958
APPELLANT’S BRIEF
Counsel for Appellant:
Jarett T. LaRochelle Texas Bar Number: 24041296 One Riverway, Suite 1700 Houston, Texas 77056 713-907-8668 telephone 713-840-6351 facsimile jarettlarochelle@yahoo.com Identity of Parties and Counsel
Appellant certifies that this is a list of all parties to the trial court’s judgment,
and the names, addresses, and telephone numbers of all trial and appellate counsel:
Appellant: ALLAN R. AVERY
Trial Counsel:
Jarett T. LaRochelle One Riverway, Suite 1700 Houston, Texas 77056 713-907-8668 telephone 713-840-6351 facsimile jarettlarochelle@yahoo.com
Appellee: LPP MORTGAGE, LTD.
Victor C. Serafino Vincent Lopez Serafino & Jenevein, P.C. 1601 Elm Street, Suite 4100 Dallas, Texas 77201 214-979-7400 telephone 214-979-7402 facsimile cserafino@viololaw.com
2 Table of Contents
Identity of Parties and Counsel ..................................................................................2 Index of Authorities ...................................................................................................4 Statement of the Case.................................................................................................6 Issues Presented .........................................................................................................6 Statement of Facts ......................................................................................................8 Summary of the Argument.........................................................................................9 Argument....................................................................................................................9 Conclusion ...............................................................................................................26 Prayer .......................................................................................................................27 Certificate of Compliance ........................................................................................28 Certificate of Service ...............................................................................................28
3 Index of Authorities
Cases:
801 Nolana, Inc. v. RTC Mtg. Trust, 944 S.W.2d 751, 754 11 (Tex. App.—Corpus Christi 1997, writ denied)
Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 113 11 (5th Cir.1986)
Al-Nayem Int’l Trading, Inc. v. Irving ISD, 159 S.W.3d 762, 764 17 (Tex.App.—Dallas 2005, no pet.)
Brownlee v. Brownlee, 665 S.W.2d 111, 112 11 (Tex. 1984)
City of Houston v. McDonald, 946 S.W.2d 419, 420 19 (Tex. App.—Houston [14th Dist.] 1997, writ denied)
El Apple I, Ltd. v. Olivas, 55 Tex. Sup. Ct. J. 954 24, 25 (Tex. 2012)
First Nat’l Bank in Dallas v. Kinabrew, 589 S.W.2d 137, 145 20 (Tex.Civ.App—Tyler 1979, writ ref’d n.r.e.)
Gonzales v. Shing Wai Brass and Metal Wares Factory, Ltd., 11 190 S.W.3d 742, 746, (Tex.App. - San Antonio 2005, no pet)
Grand Prairie ISD v. Vaughan, 792 S.W.2d 944, 945 12 (Tex. 1990)
Humphreys v. Caldwell, 888 S.W.2d 469, 470 12 (Tex. 1994)
James v. Hitchcock ISD, 742 S.W.2d 701, 703 19 (Tex. App.—Houston [1st Dist.] 1987, writ denied)
4 Jones v. Texas Pac Indem. Co., 853 S.W.2d 791, 795 19 (Tex.App.—Dallas 1993, no writ)
Latimer v. City Nat'l Bank of Colorado City, 715 S.W.2d 825, 826 11 (Tex. App. - Eastland 1986, no writ).
Leavings v. Mills, 175 S.W.3d 301, 310 20, 21 (Tex.App.—Houston [1st Dist.] 2004, no pet.)
Life Ins. Co. v. Gar-Dal Inc., 570 S.W.2d 378, 381-82 11 (Tex. 1978)
Mercer v. Daoran Corp., 676 S.W.2d 580, 583 20 (Tex. 1984)
Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 11 (5th Cir.2000)
Rizkallah v. Conner, 952 S.W.2d 580, 586 11 (Tex. App.—Houston [1st Dist.] 1997, no writ)
Ryland Group, Inc. v, Hood, 924 S.W.2d 120, 122 10, 11 (Tex.1996)
Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 19 (Tex.1995)
Rules:
Rule 803(8) of the Texas Rules of Evidence 17
Rule 902 of the Texas Rules of Evidence 17
5 Statement of the Case
Appellant ALLAN R. AVERY, appeals the Final Summary Judgment
entered against it in favor of the Appellee LPP MORTGAGE, LTD., on September
30, 2014, on the breach of contract claim(s) filed by Appellee LPP MORTGAGE,
LTD., on October 31, 2011, in Cause No. 201165958, by the Honorable Judge R.
K. Sandill of the 127th Judicial District Court of Harris County, Texas.
Issues Presented
1. Whether the trial court erred in failing to sustain Appellant ALLAN
R. AVERY’s objections to Appellee LPP MORTGAGE, LTD.’s proffered
summary judgment evidence;
2. Whether the trial court erred in granting final summary judgment in
favor of Appellee LPP MORTGAGE, LTD., because Appellee’s summary
judgment evidence is legally and factually insufficient to conclusively
establish Appellee’s capacity to make claims against Appellant ALLAN R.
AVERY;
3. Whether the evidence is legally and factually insufficient to support
the trial court’s final summary judgment award of attorney’s fees entered on
September 30, 2014, in favor of the Appellee LPP MORTGAGE, LTD., and
against the Appellant ALLAN R. AVERY.; and
6 4. Whether the trial court erred in awarding damages to the Appellee
LPP MORTGAGE, LTD., because Appellee’s summary judgment evidence
is legally and factually insufficient to conclusively establish Appellee’s
damages.
7 Statement of Facts
On October 31, 2011, the Appellee LPP MORTGAGE, LTD., filed its
Original Petition against the Appellee for breach of contract upon two (2)
promissory note(s) and their accompanying guaranty(ies), under Cause No.
201165958, before the 127th Judicial District Court of Harris County, Texas. On
August 7, 2012, Appellant ALLAN R. AVERY answered by providing a general
denial as well as specific denials and verified defenses as to Appellee’s entitlement
to recover in the capacity in which it sued Appellant.
On January 15, 2014, the Appellee LPP MORGAGE, LTD., filed its second
amended motion for summary judgment. Appellant ALLAN R. AVERY duly filed
a response on February 21, 2014, objecting to the Appellee’s purported summary
judgment evidence and demonstrating the existence of genuine issues of material
fact that precluded Appellee from being entitled to summary judgment.
An oral hearing was held on the motion for summary judgment filed by
Appellee LPP MORTGAGE, LTD., on February 27, 2014, before the Honorable
R. K. Sandill, of the 127th Judicial District Court of Harris County, Texas. On
September 30, 2014, the Trial Court entered a Final Summary Judgment in favor of
Appellee LPP MORTGAGE, LTD., and against Appellant ALLAN R. AVERY.
8 Summary of the Argument
Appellant challenges the Judgment entered against him in favor of Appellee
in Cause No. 201165958, before the 127th Judicial District Court of Harris County,
Texas. Appellant contends that the Final Summary Judgment entered against him
should be set aside and reversed because the trial court erred in failing to sustain
Appellant’s objections to Appellee’s summary judgment evidence. Appellant
further contends that the evidence is legally and factually insufficient to support
the Final Summary Judgment entered against him in favor of Appellee. And
finally, Appellant contends that the evidence is legally and factually insufficient to
support the damages and attorney’s fees awards contained in the Final Summary
Judgment entered against him.
Argument
I. The Trial Court erred in failing to sustain Appellant’s objections to
Appellee’s summary judgment evidence.
Appellant would show that the trial court erred in failing to sustain
Appellant’s objections to Appellee’s summary judgment evidence. The record
shows that Appellant ALLAN R. AVERY duly responded to Appellee’s second
amended motion for summary judgment and, therein, duly made objections to the
Paragraph(s) in Section II of Appellee’s second amended motion and Paragraph(s)
9 2, 4, 6, and 8, of the Affidavit of Tom Martin, attached to Appellee’s motion as
Exhibit “1”, on the basis that such paragraphs contain conclusory statements
unsubstantiated by any corroborating evidence. Appellant identified and objected
to conclusory statements contained in the Paragraph(s) in Section II in Appellee’s
second amended motion refer to the Appellee’s standing in this case, i.e. the
allegation that the “Appellee is the legal owner and holder of the Notes,” that
“Appellee is the legal owner and holder of the Notes,” “the FDIC became the
receiver for New South and that Beal Bank obtained the Notes” and “that the Note
is due and payable to Appellee.” Appellant identified and objected to allegations
made in the Affidavit of Tom Martin including: Paragraph 2, “CLMG Corp. is the
authorized loan servicer for LPP Mortgage Ltd.”; Paragraph 4, “the Office of
Thrift Supervision ordered the closing of New South . . . and the Federal Deposit
Insurance Corporation (“FDIC”) was appointed Receiver for New South”, “the
FDIC as Receiver for New South sold certain assets to Beal Bank”; Paragraph 6,
“LPP Mortgage Ltd. is the legal owner and holder of Note 1”; and Paragraph 8,
“LPP Mortgage Ltd. is the legal owner and holder of Note 2.” All of these
statements of subjective belief, are not supported by any competent summary
judgment proof, are insufficient summary judgment evidence, and the objections to
such statements should have been sustained by the trial court. Ryland Group, Inc.
v, Hood, 924 S.W.2d 120, 122 (Tex.1996). Appellee’s general conclusions,
10 allegations, and speculation were insufficient to merit summary judgment herein.
See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th Cir.2000); Alizadeh v.
Safeway Stores, Inc., 802 F.2d 111, 113 (5th Cir.1986); Ryland Group, Inc. v.
Hood, 924 S.W.2d 120, 122 (Tex. 1996); Rizkallah v. Conner, 952 S.W.2d 580,
586 (Tex. App.—Houston [1st Dist.] 1997, no writ).
Because affidavits supporting or opposing a motion for summary judgment
cannot contain conclusory statements, the objectionable allegations made in
Appellee’s purported summary judgment evidence should have been sustained by
the trial court. Gonzales v. Shing Wai Brass and Metal Wares Factory, Ltd., 190
S.W.3d 742, 746, (Tex.App. - San Antonio 2005, no pet); See, Ryland Group, Inc.
v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (emphasis added); see also, Latimer v.
City Nat'l Bank of Colorado City, 715 S.W.2d 825, 826 (Tex. App. - Eastland
1986, no writ). Nothing in the Affidavit of Tom Martin authorizes or qualifies him
to make the conclusory allegations contained therein. No competent summary
judgment evidence was proffered by Appellee to substantiate such conclusions.
Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); Life Ins. Co. v. Gar-Dal
Inc., 570 S.W.2d 378, 381-82 (Tex. 1978); 801 Nolana, Inc. v. RTC Mtg. Trust,
944 S.W.2d 751, 754 (Tex. App.—Corpus Christi 1997, writ denied). In his
response to Appellee’s motion for summary judgment, the Appellant ALLAN R.
AVERY identified a collection of defects in the affidavit of Tom Martin and its
11 accompanying exhibit(s), attached to Appellee’s motion for summary judgment,
and duly made objection thereto for the conclusory statements unsubstantiated by
any corroborating evidence. The Appellant further made objection that the affiants
did not have personal knowledge, were not authorized or qualified, and could not
properly identify or authenticate the exhibits they sought to introduce into
evidence. For such reasons alone, the trial court erred in failing to sustain
Appellant’s objections to Appellee’s purported summary judgment evidence. See
Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994); Grand Prairie ISD v.
Vaughan, 792 S.W.2d 944, 945 (Tex. 1990).
The Appellant further objected to the purported Restated Note Allonge(s)
included in the instruments attached to the Affidavit of Tom Martin as Exhibit(s)
“C” and “E”, attached to Appellee’s second amended summary judgment as the
Appellee altogether failed to timely produce such records in this lawsuit.
Specifically, on August 3, 2012, the Appellant ALLAN R. AVERY, served written
discovery on the Appellee LPP MORTGAGE, LTD., under the Texas Rules of
Civil Procedure, explicitly requesting the exact instruments attached to the
Affidavit of Tom Martin as Exhibit(s) “C” and “E”. On August 31, 2012, the
Appellee served its objections and responses to the written discovery which did not
contain the Restated Note Allonge(s) contained in Exhibit(s) “C” and “E”. On
December 4, 2012, the trial court entered an Order Granting Appellant ALLAN R.
12 AVERY’s Motion to Compel. On February 12, 2013, the Appellant filed a second
motion to compel Appellee’s production of documents as the Appellee still had not
produced instruments necessary for its case including, but not limited to, the
Restated Note Allonge(s) contained in Exhibit(s) “C” and “E”. On or about
February 26, 2013, potentially due to Appellee’s representation that it has in all
things complied with the production previously ordered by the trial court, the trial
court denied the Appellant’s second motion to compel. Only in response to the
Appellant’s no evidence motion for summary judgment filed March 12, 2013, and
in the Appellee’s amended and second amended motion(s) for summary judgment
did the Appellee finally possess and proffer the Restated Note Allonge(s) included
in Exhibit(s) “C” and “E”. The Appellee has, at all times, failed to properly
produce such Restated Note Allonge(s) in response to Appellant’s request for
production. The Appellant’s objections to the Restated Note Allonge(s) should
have been sustained and the trial court should have disregarded and striken same
for Appellee’s failure to comply with the trial court’s Order Granting Appellant
ALLAN R. AVERY’s Motion to Compel. Appellee’s delinquent attempt to
proffer the Restated Note Allonge(s) at its convenience, in conjunction with
motion(s) for summary judgment rather than in response to a duly served and
judicially compelled request for production should preclude the use of same as
evidence herein. Appellee blatantly abused the discovery process and attempted to
13 conceal documents responsive to duly served and judicially compelled discovery
responses. For such reasons, the trial court should have sustained Appellant’s
objections and striken and disregarded the Restated Note Allonge(s) attached to the
Affidavit of Tom Martin as Exhibit(s) “C” and “E”.
The Appellant also objected to the purported Limited Power(s) of Attorney
included in the instruments attached to the Affidavit of Tom Martin as Exhibit(s)
“G”, “I”, and “J”, Dallas County Clerk’s file number(s) 201100114217,
201100114213, and 201100114216, respectively, as the Appellee altogether failed
to timely produce such records in this lawsuit. Specifically, on August 3, 2012, the
Appellant ALLAN R. AVERY, served written discovery on the Appellee LPP
MORTGAGE, LTD., under the Texas Rules of Civil Procedure, explicitly
requesting the exact instruments attached to the Affidavit of Tom Martin as
Exhibit(s) “G”, “I”, and “J”. On August 31, 2012, the Appellee served its
objections and responses to the written discovery which did not contain the
Limited Power(s) of Attorney contained in Exhibit(s) “G”, “I”, and “J”. On
December 4, 2012, the trial court entered an Order Granting Appellant ALLAN R.
AVERY’s Motion to Compel. On February 12, 2013, the Appellant filed a second
motion to compel Appellee’s production of documents as the Appellee still had not
produced instruments necessary for its case including, but not limited to, the
Limited Power(s) of Attorney contained in Exhibit(s) “G”, “I”, and “J”. On or
14 about February 26, 2013, due to Appellee’s representation that it has in all things
complied with the production previously ordered by the trial court, the trial court
denied the Appellant’s second motion to compel. Only in response to the
Appellant’s no evidence motion for summary judgment, and in conjunction with
the Appellee’s amended and second amended motion(s) for summary judgment did
the Appellee finally possess and proffer the Limited Power(s) of Attorney included
in Exhibit(s) “G”, “I”, and “J”. The Appellee has, at all times, failed to properly
produce such Limited Power(s) of Attorney in response to Appellant’s request for
production. Said Limited Power(s) of Attorney should therefore have been
disregarded and striken for Appellee’s failure to comply with the trial court’s
Order Granting Appellant ALLAN R. AVERY’s Motion to Compel, only
producing the Limited Power(s) of Attorney at its convenience, in conjunction with
motion(s) for summary judgment rather than in response to a duly served and
judicially compelled request for production. Appellee blatantly abused the
discovery process and attempted to conceal documents responsive to duly served
and judicially compelled discovery responses. For such reasons, the trial court
should have sustained Appellant’s objections and striken and disregarded the
Limited Power(s) of Attorney attached to the Affidavit of Tom Martin as
Exhibit(s) “G”, “I”, and “J”.
And further, the Appellant objected to the Exhibit(s) “A”, and “B”, included
15 in Appellee’s second amended motion for summary judgment and identified as
“Notice of Closure of New South Federal Savings Bank and Appointment of FDIC
as Receiver” and “Purchase and Assumption Agreement” respectively. Neither
Exhibit “A” nor Exhibit “B” were properly identified or authenticated. Such
records do not constitute business records of the Appellee LPP MORTGAGE,
LTD., or CLMG Corp., the entity by which the affiant Tom Martin purportedly is
employed. Further, Affiant Tom Martin alleges to have reviewed “records relating
to Beal Bank’s acquisition of assets from the FDIC”, but such allegation does not
impart personal knowledge or competence to provide summary judgment evidence
as to the information contained in such records, as Affiant Tom Martin is neither
an authorized agent nor the custodian of records for Beal Bank or the FDIC and
cannot even identify the records purportedly reviewed. Thus, the Affiant Tom
Martin was not qualified to identify or authenticate the Exhibit(s) “A” and “B”,
and such items are outside the scope of Affiant’s purported authority and
knowledge. Such Exhibit(s) “A” and “B” are therefore inadmissible for failure to
properly identify and authenticate same. Moreover, nothing in such instrument(s)
indicates that they are applicable to the promissory note(s) at issue in the lawsuit
filed by the Appellee LPP MORTGAGE, LTD. against Appellant. For such
reasons, the trial court should have sustained Appellant’s objections and striken
and disregarded the Appellee’s Exhibit(s) “A” and “B” which are inadmissible and
16 the review of which would require the consideration or hearsay without any
exception.
Appellant also made objection to the Affidavit of Victor C. Serafino,
attached to Appellee’s motion, which was not competent summary judgment
evidence, did not resolve all genuine issues of material fact, and precluded the
Appellee from entitlement to an order granting its amended motion for summary
judgment. The affiant Victor C. Serafino is not competent, qualified, or authorized
to identify or authenticate the documents attached to his Affidavit as Exhibit(s)
“1”, “2”, “3”, and “4”, the FDIC website print-out, the “Press Release”, the
“Purchase and Assumption Agreement”, and the “Order Appointing the FDIC as
Receiver”, respectively. Victor C. Serafino is neither an agent of the FDIC nor the
Office of the Comptroller of the Currency. Victor C. Serafino is not a custodian of
said records. Nothing in the caselaw provided in support of the Appellee’s second
amended motion for summary judgment eliminates the necessity to properly
identify and authenticate the documents attached to the Affidavit of Victor C.
Serafino as Exhibit(s) “1”, “2”, “3”, and “4”. The FDIC is a corporation from
which its records may constitute business records if properly identified and
authenticated, but its records do not constitute public records. Further, the
documents attached to the Affidavit of Victor C. Serafino as Exhibit(s) “1”, “2”,
“3”, and “4”, are hearsay and fail to satisfy the “public records and reports”
17 exception to the hearsay rule because they do not set forth “(a) the activities of the
office or agency; (b) matters observed pursuant to duty imposed by law as to which
there is a duty to report . . . ; or (c) factual findings resulting from an investigation
made pursuant to authority granted by law”. See Rule 803(8) of the Texas Rules of
Evidence. Only certified copies of such Exhibit(s) “1”, “2”, “3”, and “4”, would
have satisfied the evidentiary rules necessary to render such documents admissible
for the purposes Appellee required. Moreover, Rule 902 of the Texas Rules of
Evidence does not provide any grounds for self-authentication applicable to the
documents attached to the Affidavit of Victor C. Serafino as Exhibit(s) “1”, “2”,
“3”, and “4”. There does not exist any seal or certification under seal from a
public officer in Exhibit(s) “1”, “2”, “3”, and “4”, as would be required under Rule
902 of the Texas Rules of Evidence. See Al-Nayem Int’l Trading, Inc. v. Irving
ISD, 159 S.W.3d 762, 764 (Tex.App.—Dallas 2005, no pet.)(“because . . . did not
bear a seal or contain a certification under seal from a public officer, [they] were
not self-authenticating as certified public records . . . .”). For such reasons, the trial
court should have sustained Appellant’s objections and striken and disregarded the
documents attached to the Affidavit of Victor C. Serafino as Exhibit(s) “1”, “2”,
“3”, and “4”.
18 II. The Evidence is Legally and Factually insufficient to establish Appellee’s
capacity
Appellant would show that the evidence is legally and factually insufficient
to support the judgment entered against it in favor of the Appellee. In his response
to Appellee’s second amended motion for summary judgment, the Appellant
ALLAN R. AVERY clearly raised a disputed fact issue and demonstrated that no
probative evidence exists to substantiate and support essential elements of the
Appellee’s alleged capacity and claims made herein. Park Place Hosp. v. Estate of
Milo, 909 S.W.2d 508, 511 (Tex.1995); Jones v. Texas Pac Indem. Co., 853
S.W.2d 791, 795 (Tex.App.—Dallas 1993, no writ); City of Houston v. McDonald,
946 S.W.2d 419, 420 (Tex. App.—Houston [14th Dist.] 1997, writ denied); James
v. Hitchcock ISD, 742 S.W.2d 701, 703 (Tex. App.—Houston [1st Dist.] 1987, writ
denied). Specifically, the Appellant duly made objection to Appellee’s affidavit(s)
and exhibit(s) attached to its motion as summary judgment evidence of the
unbroken chain of title and assignments transferring to the Appellee the right to
enforce both promissory note(s) at issue in this case. Appellee’s motion and
accompanying summary judgment evidence misidentified potentially public
records as business records because Appellee failed to proffer certified copies or a
competent business records affidavit for the receivership and appointment of the
FDIC as Receiver issues. For these issues, the Appellee did not produce the best
19 evidence and was not entitled to summary judgment. See Mercer v. Daoran Corp.,
676 S.W.2d 580, 583 (Tex. 1984). With respect to the chain of title to the
promissory note(s), Appellee’s summary judgment evidence attached to Appellee’s
second amended motion altogether failed to include any competent summary
judgment evidence to support its allegation(s): a) that New South Federal Savings
Bank went into receivership or b) that the FDIC was appointed as Receiver for the
New South Federal Savings Bank. Texas law establishes that “the nature and
extent of the authority granted must be ascertained from the instrument . . . to be
strictly construed” which must be considered herein when scrutinizing Appellee’s
capacity to recover. See First Nat’l Bank in Dallas v. Kinabrew, 589 S.W.2d 137,
145 (Tex.Civ.App—Tyler 1979, writ ref’d n.r.e.).
In its second amended motion for summary judgment, the Appellee
altogether failed to establish, as a matter of law, the essential elements that 1) New
South Federal Savings Bank went into receivership; 2) the FDIC was appointed as
Receiver for the New South Federal Savings Bank; and 3) the two (2) promissory
note(s) on which Appellee’s claim for breach of contract is based were properly
assigned, negotiated, and/or transferred through unbroken chain of title to the
Appellee. Texas law recognizes that assignees must be able to trace their rights
back through an “unbroken chain of title”, including both “possession and
indorsement” to the original lender to enforce the note. See Leavings v. Mills, 175
20 S.W.3d 301, 310 (Tex.App.—Houston [1st Dist.] 2004, no pet.). Failure to
properly identify and authenticate the instruments upon which Appellee’s chain of
title depends precluded Appellee from being entitled to summary judgment herein.
The record shows that Appellant ALLAN R. AVERY duly responded to
Appellee’s second amended motion for summary judgment and, therein, duly made
objections to the Paragraph(s) in Section II of Appellee’s second amended motion
and Paragraph(s) 2, 4, 6, and 8, of the Affidavit of Tom Martin, attached to
Appellee’s motion as Exhibit “1”, on the basis that such paragraphs contain
conclusory statements unsubstantiated by any corroborating evidence. Nothing in
the Affidavit of Tom Martin authorizes or qualifies him to make the conclusory
allegations contained therein. No competent summary judgment evidence was
proffered by Appellee to substantiate such conclusions. In his response to
Appellee’s motion for summary judgment, the Appellant ALLAN R. AVERY
identified a collection of defects in the affidavit of Tom Martin and its
accompanying exhibit(s), attached to Appellee’s motion for summary judgment,
and duly made objection thereto for the conclusory statements unsubstantiated by
any corroborating evidence. The Appellant further made objection that the affiants
did not have personal knowledge, were not authorized or qualified, and could not
properly identify or authenticate the exhibits they sought to introduce into
21 evidence. For such reasons alone, the Court erred in granting the motion for
summary judgment.
The Appellant further objected to the purported Restated Note Allonge(s)
and Limited Power(s) of Attorney included in the instruments attached to the
Affidavit of Tom Martin as Exhibit(s) “C”, “E”, “G”, “I”, and “J”, Dallas County
Clerk’s file number(s) 201100114217, 201100114213, and 201100114216,
respectively, as the Appellee altogether failed to timely produce such records in
this lawsuit. Appellee’s failure to comply with the trial court’s Order Granting
Appellant ALLAN R. AVERY’s Motion to Compel, by only proffering the
purported Restated Note Allonge(s) and Limited Power(s) of Attorney at its
convenience, in conjunction with motion(s) for summary judgment rather than in
response to a duly served and judicially compelled request for production should
have precluded the consideration of such items. Appellee blatantly abused the
discovery process and attempted to conceal documents responsive to duly served
and judicially compelled discovery responses. For such reasons, the evidence was
legally and factually insufficient to conclusively establish Appellee’s capacity and
entitlement to summary judgment.
And finally, the Appellant objected to the Exhibit(s) “A”, and “B”, identified
by Appellee as “Notice of Closure of New South Federal Savings Bank and
Appointment of FDIC as Receiver” and “Purchase and Assumption Agreement,”
22 respectively, as well as the Exhibit(s) “1”, “2”, “3”, and “4”, the FDIC website
print-out, the “Press Release”, the “Purchase and Assumption Agreement”, and the
“Order Appointing the FDIC as Receiver”, respectively, attached to the Affidavit
of Victor C. Serafino. None of such purported summary judgment evidence
instruments were properly identified or authenticated. Such records do not
constitute business records of the Appellee LPP MORTGAGE, LTD., any entity
by which the affiant(s) Tom Martin or Victor C. Serafino are employed. Thus, the
Affiant(s) Tom Martin and Victor C. Serafino were not qualified to identify or
authenticate the Exhibit(s) “A” and “B”, or Exhibit(s) “1”, “2”, “3”, and “4.” Such
items are clearly outside the scope of said affiant(s)’ purported authority and
knowledge. All such Exhibit(s) are therefore inadmissible for failure to properly
identify and authenticate same. Nothing proffered by Appellee eliminates the
necessity to properly identify and authenticate summary judgment evidence.
Moreover, nothing in such instrument(s) indicates that they are applicable to the
promissory note(s) at issue in this current lawsuit filed by the Appellee LPP
MORTGAGE, LTD. Further, nothing proffered by Appellee satisfies the “public
records and reports” exception to the hearsay rule because Appellee’ Exhibit(s) do
not set forth “(a) the activities of the office or agency; (b) matters observed
pursuant to duty imposed by law as to which there is a duty to report . . . ; or (c)
factual findings resulting from an investigation made pursuant to authority granted
23 by law”. See Rule 803(8) of the Texas Rules of Evidence. And finally, there does
not exist any seal or certification under seal from a public officer or other grounds
for self-authentication in Appellee’s Exhibit(s). See Rule 902 of the Texas Rules
of Civil Procedure. For such reasons, the evidence is legally and factually
insufficient to support the Final Summary Judgment entered in favor of Appellee
and against Appellant.
III. The evidence is legally and factually insufficient to support the Trial
Court’s award of attorney’s fees to Appellant
In his response, Appellant demonstrates that Paragraph III of Appellee’s
second amended motion for summary judgment and the Affidavit of Victor C.
Serafino attached as Exhibit “3” thereto fall well short of the standards for legally
sufficient evidence to calculate a reasonable attorney’s fee award as articulated in
El Apple I, Ltd. v. Olivas, 55 Tex. Sup. Ct. J. 954 (Tex. 2012). The Texas Supreme
Court explained that a multi-step process is required, i.e. determine the reasonable
number of hours spent and reasonable hourly rate for work performed; multiply the
number of hours reasonably expended by the reasonable hourly rate; and determine
whether factors merit adjustment of the result to reach a reasonable fee award. In
Appellee’s purported summary judgment evidence, Appellee altogether failed to
articulate any amount of hours spent or to discuss work performed. The $20,000 in
24 attorney’s fees claimed by Appellee is a conclusory total without any foundation to
establish the reasonableness of such amount. The Appellee fails to establish any
“billing judgment” to demonstrate that unproductive, excessive, or redundant hours
are not included in the claim. See El Apple, 55 Tex. Sup. Ct. J. at 958. For such
reasons, there existed genuine issues of material fact which precluded Appellee
from being entitled to summary judgment on its claims for attorney’s fees.
IV. The evidence is legally and factually insufficient to support the Trial
Court’s award of damages to Appellant
Appellant’s response to Appellee’s second amended motion for summary
judgment demonstrates that Appellee makes claims for late charges, accrued but
unpaid interest, non-legal collection costs, taxes and insurance, and per diem
interest, but no accompanying summary judgment evidence is provided to
conclusively substantiate such amount(s) claimed. The only purported summary
judgment evidence proffered by the Appellee with respect to its damages
calculations was Appellee’s Exhibit “L” attached to the affidavit of Tom Martin.
Such exhibit, identified as the “Loan Transaction History Report” contains no
accounting information after July 5, 2011, for Note 1, and contains no accounting
information after December 1, 2011, for Note 2. As per the Appellee’s Exhibit
“L”, the only evidence of accrued interest for Note 1 is $210,396.29, and not the
25 $343,809.20 claimed in Section III of Appellee’s second amended motion for
summary judgment and Paragraph 17 of the Affidavit of Tom Martin. Further, as
per the Appellee’s Exhibit “L”, the only evidence of accrued interest for Note 2 is
$41,470.94, and not the $98,468.43 claimed in Section III of Appellee’s second
amended motion for summary judgment and Paragraph 17 of the Affidavit of Tom
Martin. Additionally, Appellee altogether failed to proffer any competent
summary judgment evidence as to the purported non-legal collection costs, taxes
and insurance, or per diem interest contained in Section III of Appellee’s second
amended motion for summary judgment or Paragraph 17 of the Affidavit of Tom
Martin. The complete absence of any summary judgment evidence of these
claimed damages elements, combined with the blatant inconsistencies between the
amounts contained in Appellee’s Exhibit “L”, as compared to the Section III of
Appellee’s second amended motion for summary judgment or Paragraph 17 of the
Affidavit of Tom Martin raises genuine issues of material fact which precluded the
Appellee from being entitled to summary judgment on its alleged damages.
Conclusion
As set forth above, the Trial Court erred by failing to sustain duly made
objections to and considering incompetent, inadmissible summary judgment
proffered by Appellee. The record clearly shows that Appellee did not produce the
26 best evidence, or any evidence sufficient to conclusively establish its capacity to
recover against the Appellant and was not entitled to summary judgment.
Moreover, the evidence is legally and factually insufficient to support the damages
award contained in the Final Summary Judgment entered by the trial court in favor
of Appellee. And finally, the evidence is legally and factually insufficient to
support the attorney’s fees award contained in the Final Summary Judgment
entered by the trial court against Appellant. Thus, for the failure and inability to
proffer admissible evidence with respect to genuine, material issues identified by
Appellant it his response, the Appellee did not, as a matter of law, conclusively
establish that it was entitled to summary judgment against the Appellant ALLAN
R. AVERY.
Prayer
Wherefore, premises considered, Appellant ALLAN R. AVERY, prays that
this Honorable Court reverse and remand the Final Summary Judgment entered
against it and in favor of the Appellee LPP MORTGAGE, LTD., under Cause No.
201165958, in the 127th Judicial District Court of Harris County, Texas. The
reversible errors committed by the trial court and insufficient evidence to sustain
the Final Summary Judgment necessitate a reversal and remand in favor of the
Appellant in the interest of justice and fairness.
Respectfully Submitted,
27 /s/ Jarett T. LaRochelle Jarett T. LaRochelle Texas Bar No. 24041296 One Riverway, Suite 1700 Houston, Texas 77056 713-907-8668 telephone 713-840-6351 facsimile ATTORNEYS FOR APPELLANT ALLAN R. AVERY
Certificate of Compliance
This document complies with the typeface requirements of Tex. R. App. P. 9.4(e) because it has been prepared in a convention typeface no smaller than 14- point for text and 12-point for footnotes. This document also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains less than 6,000 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Jarett T. LaRochelle Jarett T. LaRochelle
Certificate of Service
I hereby certify that a true and correct copy of the foregoing notice has been forwarded to the following parties or their counsel of record in accordance with the Texas Rules of Civil Procedure on this the 6th day of March, 2015:
Victor C. Serafino Vincent Lopez Serafino & Jenevein, P.C. 1601 Elm Street, Suite 4100 Dallas, Texas 77201 214-979-7402 facsimile /s/ Jarett T. LaRochelle Jarett T. LaRochelle