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
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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
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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
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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
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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
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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
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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
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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
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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)
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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
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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,
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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
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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
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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.
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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).
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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
10
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
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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
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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).
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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
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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. –
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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
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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