Opinions released November 17, 2016

In this weekly blog, the Law Offices of Brandy Wingate Voss, PLLC will summarize recent decisions from the Thirteenth Court of Appeals and provide links to decisions on the court’s website.

Rogers v. RREF II CB Acquisitions, LLC, No. 13-15-00321-CV (Opinion by Justice Rodriguez Panel Members: Justices Valdez and Benavides)

In this appeal from an order granting summary judgment, the defendant challenged numerous aspects of the plaintiff’s summary judgment evidence, and provided the Thirteenth Court of Appeals with an opportunity to clarify the admissibility of business records created by a third party.

Michael Rogers borrowed $3 million from Texas State Bank in 2006, executing a ten-year promissory note. After a series of mergers and acquisitions, RREF acquired the note. However, in May 2012, Rogers stopped making payments. On September 6, 2013 RREF filed suit for breach of promissory note, seeking to recover the $1.5 million still owed by Roger. RREF then moved for partial summary judgment, attaching four affidavits and ten exhibits to the motion. However, the affidavits misstated the name of RREF as “RREF CB II” rather than “RREF II CB.” The trial court gave RREF leave to file corrected affidavits, and provided Rogers seven days to file objections and responses to the amended affidavits. The trial court then granted summary judgment, awarding almost $2 million for the balance of the loan plus interest.

Rogers appealed, challenging various aspects of RREF’s summary judgment evidence.

Held: The judgment of the trial court was affirmed.

Correction of Party Name in Affidavits

First, Rogers claimed that the trial court erred by giving RREF leave to amend its affidavits without first requiring RREF to prove that such leave was necessary. Rogers cited no authority in support of his argument. The Corpus Christi Court of Appeals held that, in fact, the trial court would have erred if it had not allowed RREF leave to amend its affidavits to cure the technical defects.

The Corpus Christi Court then remarked that the only valid objection Rogers could have raised in this regard was that the corrected affidavits were not filed within the timeline established in Rule of Civil Procedure 166a. However, late summary judgment evidence may be filed upon leave of the court. Here, the record reflects that the court granted such leave from the bench in an oral ruling. Thus, the trial court did not err by granting RREF leave to amend its affidavits and considering such documents as summary judgment evidence.

Rogers further argued that the use of the improper name in the initial affidavit was a testimonial assertion against a company other than RREF. Rogers compared the case to R & R Marine, Inc. v. Max Access, Inc. 377 S.W.3d 780 (Tex. App.—Beaumont 2012, no pet.), in which the plaintiff referred to two different defendants as “R&R,” thus creating confusion in its motion for summary judgment. The Thirteenth Court distinguished R&R Marine, noting that RREF is a single entity and that the incorrect name on the affidavits did not cause any confusion. Rather, the case is parallel to a misnomer situation. As such, the trial court did not err by permitting correction.

Personal Knowledge

Rogers next challenged the affidavits executed by two individuals in particular—Wimmer and Maytas—contending that such documents were not based on personal knowledge. The court of appeals reiterated that an affidavit in support of a motion for summary judgment must be based on personal knowledge and must state the source of such knowledge. For example, the affiant may acquire knowledge through his or her job responsibilities, or through his or her role as a custodian of records.

Wimmer executed a testimonial affidavit and two business records affidavits. Wimmer’s affidavits stated that she was a senior vice president at the parent company of RREF; that she was a custodian of the records related to Roger’s account; that she supervised the custody and control of Roger’s account records; and that she reviewed the relevant documents. Maytas similarly averred that she reviewed the relevant documents, explaining that she was a vice president for RREF’s loan service provider and that her role included overseeing the receipt and maintenance of loan servicing files and loan histories on RREF’s behalf. Maytas went on to offer testimony regarding the receipt and processing of Roger’s note. The Thirteenth Court held that both Wimmer and Maytas had multiple bases for personal knowledge, and the trial court did not abuse its discretion in relying on such affidavits. 

Physical Attachment of Affidavits

Rogers further claimed that RREF could not rely on the affidavits as summary judgment evidence because the documents were not “attached thereto or served therewith” under Texas Rule of Civil Procedure 166a(f). Rogers pointed to the fact that RREF’s affidavits were not physically attached to its summary judgment motion and were not filed at the same time. However, RREF’s motion explicitly incorporated the affidavits by reference and asked the court to take judicial notice of such documents. The court thus did not err by considering the physically detached affidavits as summary judgment evidence.

Third-Party Business Records

Rogers next attacked seven out of RREF’s ten exhibits as inadmissible hearsay. Rogers contended that the documents represented third-party records, and that the accompanying business records affidavits were not executed by a witness qualified to testify about the relevant entity’s record-keeping.

The Thirteenth Court of Appeals began by recognizing its prior holding in Abrego v. Harvest Credit Management VII, LLC, No. 13-09- 00026-CV, 2010 WL 1718953 (Tex. App.—Corpus Christi Apr. 29, 2010, no pet.) (mem. op.) that documents received from a third party cannot be admitted as business records unless the sponsoring witness is qualified to testify about the originating entity’s record-keeping. However, the Thirteenth Court recognized that there are other ways of admitting such records. The court then adopted the rule followed by its sister courts of appeals that a third-party record may be admissible as a business record if “(1) the document is incorporated and kept in the course of the testifying witness’s business, (2) that business typically relies upon the accuracy of the document’s content, and (3) the circumstances otherwise indicate the document’s trustworthiness.” The court of appeals also noted that the Texas Supreme Court has allowed admission of third-party business records if the sponsoring witness “verifies the facts underlying the document using a reliable means based on personal knowledge.”

The Thirteenth Court then applied these rules to the challenged exhibits.

Exhibit 4 represented an account summary created by Maytas, and included information from Texas State Bank’s old records. The court determined that such document and information had been incorporated into RREF’s business, was relied upon for accuracy, and that the sponsoring witness—Maytas—was the custodian of the record. Furthermore, Maytas verified the factual content of the document and the record-keeping practices, providing additional evidence of trustworthiness, if not singularly and independently supporting admission under the Texas Supreme Court’s precedent.

Exhibit 5 was a communication from Wimmer, and was sponsored by Wimmer. Such document was not a third-party record.

Exhibits 1, 3, and 10 were the Note, Assignment of Loan Documents, and Disclaimer of Oral Arguments respectively. Each of these records were contracts with legal effect independent of any hearsay contained therein, and were thus not subject to the hearsay rule. Furthermore, if Rogers wished to challenge the authenticity of the written instruments forming the basis of the dispute, he was required to file a sworn denial pursuant to Rule of Civil Procedure 93. Having failed to do so, the documents were received as “fully proved,” and the issue waived.

Finally, Exhibits 2 and 9 were cumulative of other evidence, and did not materially alter the judgment. Exhibit 2 was an FDIC page showing the merger leading to RREF’s acquisition of Roger’s note. However, as discussed above, the Assignment of Loan Documents were admitted as “fully proved” due to Rogers’ failure to file a sworn denial. Thus, the merger documents were duplicative. Similarly, Exhibit 9 was part of Rogers’ original loan application and provided additional evidence regarding Roger’s note. Again, the execution of Roger’s note was already “fully proved,” rendering Exhibit 9 unnecessary.

Thus, Roger’s challenges were overruled.

Conclusory Statements in Affidavits

Again attacking Wimmer’s and Maytas’ affidavits, Rogers argued that such documents were conclusory. The Thirteenth Court noted that an affidavit is not conclusory if it provides detailed facts or documents in support of the relevant statements. Here, both Wimmer and Maytas summarized and referred to the information in RREF’s ten summary judgment exhibits. Thus, the affidavits were not conclusory.

Contradicting Names

Rogers next argued that the amended affidavits’ reference to “RREF II CB” contradicted the original affidavits’ reference to “RREF CB II,” and violated the rule that summary judgment evidence must be uncontroverted. The Thirteenth Court rejected this argument, holding that typographical errors are not prohibited inconsistencies.

Proof of Signature, Assignment of the Note, and Amount Owing

Rogers claimed that RREF failed to prove that he signed the note, that RREF owned the note, or the amount of debt allegedly owing. However, as discussed above, Rogers’ execution of the note and RREF’s ownership of the same were “fully proved” when Rogers failed to file a sworn denial as to the validity of the note documentation underlying the lawsuit. Regarding the amount owing, the note stated the original principal; Exhibit 4 reflected an account history regarding Rogers’ payment on the note; and Exhibit 8—the Loan Sale Agreement—established the outstanding principal balance when RREF acquired the note. Wimmer and Maytas also referenced and attested to these documents in their affidavits. Thus, RREF carried its burden to prove that it was entitled to judgment on the three challenged elements. 

Affirmative Defenses

Finally, Rogers argued that RREF failed to conclusively negate his affirmative defenses. However, RREF was not required to negate such defenses, and Rogers produced no evidence to raise a fact issue.

Having overruled all of Rogers’ points of error, the judgment of the trial court was affirmed. 

Read the Full Opinion Here

Jimenez v. State, No. 13-13-00066-CR (Opinion by Chief Justice Valdez; Panel Members: Justices Rodriguez and Benavides)

In this appeal from a conviction for DWI, Jimenez challenged the legal sufficiency of the judgment, as well as the trial court’s allegedly improper remarks and jury instruction that commented on the weight of the evidence.

On May 16, 2011, Eric Roel Jimenez veered off the road and ran into a metal fence. When officers responded to the scene, they found Jimenez in the middle of the road trying to pick a fight with gardeners who were working in an adjacent yard. Jimenez smelt of alcohol, had slurred speech, bloodshot eyes, and unsteady balance, and admitted to drinking before the accident. Jimenez refused to perform field sobriety tests or to give a breath sample. 

Jimenez was arrested and charged with driving while intoxicated (“DWI”), which was enhanced to a felony due to Jimenez’s two prior DWI convictions. The jury convicted Jimenez and he was sentenced to five years’ probation. Jimenez appealed, challenged the legal sufficiency of the evidence, the trial court’s allegedly improper comments on the weight of the evidence, and the definition of “intoxication” in the jury charge.

Held: Although the trial court erred by including a jury instruction on the one-witness rule, such error was not fundamental. No other issues raised by Jimenez constituted error. The trial court’s judgment was affirmed.

Legal Sufficiency

Jimenez first claimed that the State did not present legally sufficient evidence to show that he operated a “motor vehicle” while intoxicated. Specifically, Jimenez noted that the statutory definition of a motor vehicle excludes “a device used exclusively on stationary rails or tracks,” and contended that the State did not negate the possibility that his vehicle was a stationary device. The Thirteenth Court of Appeals rejected this assertion, noting that the evidence at trial showed that Jimenez drove a maroon Saturn Vue, and that photos of the accident indicated that his motor vehicle had been driven on the roadway.

Comment on the Evidence

Jimenez next challenged the trial court’s remark in ruling on Jimenez’s objection to the State’s closing argument, calling such remark an improper comment on the weight of the evidence. During closing arguments, Jimenez objected to the State’s statement that Jimenez had the opportunity to take a breath test and refused. Jimenez claimed that such argument placed the burden on the defense. The trial court responded by stating “it just tracks the evidence.” Jimenez challenged this remark as an improper comment that the evidence showed Jimenez was intoxicated. The Thirteenth Court of Appeals however, interpreted the trial court’s statement as a remark regarding the permissibility of the State’s argument, rather than the weight of the evidence. Furthermore, the trial court instructed the jury to wholly disregard the rulings and comments of the judge, thus remedying any improper comment if such had been made.

Charge on Intoxication

Jimenez also argued that the trial court erred in instructing the jury using the statutory definition of intoxication. Jimenez claimed that the statutory definition incorrectly states that a person is intoxicated if he has an alcohol concentration of 0.08 or more, rather than 0.08 percent or more. However, Jimenez acknowledged that the trial court was required to include a statutorily defined term in the charge. Without analyzing Jimenez’s attack on the statute itself, the Thirteenth Court overruled the issue.

One-Witness Rule

Finally, Jimenez argued that the trial court commented on the weight of the evidence by instructing the jury that a person may be convicted on the testimony of one witness. The Thirteenth Court noted that the trial court’s charge was legally accurate in its statement of the one-witness rule, but that there was no authority allowing such rule to be included in the jury charge. The court then noted that similar instructions—e.g., instructions that the defendant could be convicted on the uncorroborated testimony of an accomplice or a child victim—have been held to be improper comments on the weight of the evidence. The Thirteenth Court thus presumed that such instruction was erroneous and proceeded to the harm analysis.

Jimenez did not object to the one-witness instruction during trial, and thus the error was only reversible if it was “fundamental,” depriving Jimenez of an impartial trial. The Thirteenth Court noted that, although it was erroneous to include the one-witness rule in the charge, such rule was nonetheless an accurate statement of the law. Furthermore, the statement was in the “abstract” rather than the “application” portion of the jury instructions, and was tempered by another instruction reminding the jury that it was the exclusive judge of credibility. Regarding the evidence, two witnesses—a gardener and a police officer—testified about Jimenez’s behavior and intoxicated state on the night of the accident. Jimenez himself admitted to drinking earlier in the evening, but insisted he was not intoxicated. The State thus emphasized the one-witness rule in its closing argument only to highlight that there were two witnesses—not just one—whose testimony supported Jimenez’s conviction. Thus, instructing the jury regarding the one-witness rule was not fundamental error and did not egregiously harm Jimenez.

Having overruled each of Jimenez’s points of error, the Thirteenth Court of Appeals affirmed the trial court’s judgment.

Read the Full Opinion Here