Contract not proved up; arbitration not required.

brasher_smithsonian_obvIn Heritage Numismatic Auctions v. Stiel, a dispute about the the sale of rare coins, the Fifth Court affirmed the denial of a motion to compel arbitration, finding that the relevant documents were not adequately proved up by the sponsoring affidavit. The witness “did not testify that the documents in Exhibit F were ‘true and correct’ copies of the contracts or otherwise state that they were the originals or exact duplicates of the originals.” While the affidavit began with the phrase, “The facts contained herein are true and correct,” the Court held that “[t]he trial court could interpret this statement as asserting the factual averments in the affidavit were true and correct but not asserting the documents in Exhibit F were the originals or exact duplicates of the originals as required by Rule 902(10)(B)(2).” Finally, from a general description of the documents as “the various Terms and Conditions . . . ,” the Court held that “[t]he trial court could have concluded that [the witness’s] statement did not constitute testimony that the documents in Exhibit F were the originals or exact copies of the contracts.” No. 05-16-00299-CV (Dec. 16, 2016) (mem. op.)

The law of demonstrative animations

mad max videoWhile affirming a $4 million judgment related to a truck accident – most of which involved a series of Daubert challenges — the Fifth Court provided some rare appellate guidance about the use of video animation in the courtroom. Specifically, Smith – the plaintiff’s accident reconstruction expert – prepared an animation to accompany and illustrate his testimony about how the accident occurred.

The Court found no error. As to foundation, it said: “As to the video animation, we note the video was not admitted into evidence but was shown during Smith’s testimony for demonstrative purposes. Defense counsel objected ‘on the grounds of 403.’ Smith testified he measured Gaston’s truck and two similar trailers ‘in order to get data to fill in the animation.’ It was not possible to ‘match tire to track,’ but Smith made a generalized analysis of marks on the roadway he described as an ‘approximation.’ Smith testified the animation was not a simulation and ‘not an exact replication of what happened,’ but it was ‘an accurate representation of what occurred.’”

As to admissibility and waiver, it held: “Earlier in the trial, Smith was allowed to express his underlying opinion without objection when the testimony was presented to the jury. Since the animation was a graphic depiction of the opinion admitted into evidence without
objection, Greenwood’s trial objection to the video depiction of that opinion was waived. Video animation and other demonstrative evidence that ‘summarize, or perhaps emphasize, testimony are admissible if the underlying testimony has been admitted into evidence, or is subsequently admitted into evidence.'” (citations omitted) Greenwood Motor Lines v. Bush, No. 05-14-01148-CV (Aug. 17, 2016).

Hearsay 101

  1. “A statement that makes up the parties’ contact is an ophearsay graphicerative fact, a necessary part of a cause of action, and is not hearsay.”
  2. “A document created by one business may become a record of a second business if the second business determines the accuracy of the information generated by the first business.”
  3. A document is not hearsay when “it represents the legally operative fact of demand, a necessary part of [a] breach of contract case.”

Humphrey v. Yancey, No. 05-15-00653-CV (June 30, 2016) (mem. op.)

The basis for personal knowledge . . .

kant touch thisCross moved for summary judgment on limitations, submitting this affidavit: “My name is John K. Cross. I am at least 18 years of age and of sound mind. I have personal knowledge of the facts alleged in Defendant’s Second Motion for Summary Judgement. I hereby swear that the following statements in support of Defendant’s Second Motion for Summary Judgment are true and correct.  The mortgage at issue in this case was a secondary mortgage on a home I owned in Massachusetts. The primary holder foreclosed on the property, and it was sold  at foreclosure sale on July 14, 2010 per the correspondence I received from the mortgage holder’s attorney on May 28, 2010.”

Unfortunately for Cross, “[a]n affidavit that, on its face, establishes the affiant’s lack of personal knowledge is a defect of substance that may be raised for the first time on appeal.”  Here, “Cross’s affidavit affirmatively demonstrates his lack of personal knowledge on its face with respect to the date of the foreclosure sale. Cross attested only to what the May 28th letter told him.”   Old Republic Ins Co. v. Cross, No. 05 14-01204-CV (Dec. 7, 2015) (mem. op.) (The opinion is not completely clear on the identity of the parties, but it appears that the “mortgage holder” in the letter was not Cross’s party-opponent in this litigation, so that doctrine was not discussed.)

Bank Error in Your Favor

After the real estate bubble burst in 2008, borrowers attempted all sorts of ways to get out of their obligations. Most notably, debtors repeatedly challenged the ways that their mortgages had been transferred and recorded (or not) by the banks that had held, swapped, sold, and securitized them. Long story short, it hardly ever worked, as courts across the country mostly (but not always) eschewed technical arguments in favor of the big picture of who owed what to whom. But a new opinion from the Dallas Court of Appeals shows that when the bank doesn’t follow the rules in litigation, the debtors may still escape liability on a loan.

In this instance, a pair of individual guarantors for a $748,000 loan were sued by Wells Fargo after the borrower defaulted. While the case was pending, Wells Fargo allegedly assigned the loan documents to another entity, Apex. Wells Fargo’s attorneys later filed a motion for withdrawal and substitution, which the trial court granted. The motion failed to mention the assignment of the loan documents to Apex. The guarantors then filed for no-evidence summary judgment, pointing out that Wells Fargo had conducted no discovery and that the discovery period was closed. The motion argued that there was no evidence to show who owned the guaranty. When Apex appeared and tried to cure that deficiency, the guarantors objected and moved to strike Apex’s summary judgment evidence. The trial court sustained the objections and granted summary judgment. The Court of Appeals affirmed, holding that it was not an abuse of discretion to exclude Apex’s evidence because it had waited 11 months after acquiring the loan to amend Wells Fargo’s discovery responses by disclosing its ownership. That was not “reasonably prompt,” and it acted as an unfair surprise to the guarantors to have that come out only in response to their summary judgment motion.

LSREF2 Apex (TX) II, LLC v. Blomquist, No. 05-14-00851-CV

Attached Hereto Is Kind of Important

A surveying company named TBE Group contracted with a competing surveying company, Lina T. Ramey & Associates, to locate utility lines for transportation and construction projects. After one lawsuit, the parties entered into a “Strategic Alliance Agreement” that would govern their ongoing relationship. But Ramey did not generate the amount of business required by the agreement, and the parties sued one another for breach of contract. The trial court granted TBE’s motion for summary judgment and the Court of Appeals affirmed, holding that Ramey had failed to come forward with more than a scintilla of evidence that it had fulfilled its part of the contract. Although Raney’s summary judgment affidavit referenced checks that were supposed to demonstrate Raney’s performance, the checks were not attached to the affidavit. That failure rendered the affidavit conclusory and of no evidentiary value.

Lina T. Ramey & Assocs., Inc. v. TBE Group, Inc., No. 05-13-01711-CV

Probable Cause v. Show Cause

The owner of “$8,074.68 in United States currency, forty ‘8 liner’ machines, three Walmart gift cards, and miscellaneous paperwork” appealed a judgment of civil forfeiture, challenging the admissibility of the search warrant affidavit that led to the property’s seizure. That police officer’s affidavit was “replete with hearsay,” but the Court of Appeals found that to be no impediment to the validity of the affidavit. Citing a string of Court of Criminal Appeals and Dallas Court of Appeals cases, the Court held that in presenting the facts to support a search warrant, police officers are permitted to rely on the observations of other persons. And because the affidavit had already been relied upon as probable cause by the magistrate who issued the search warrant, the burden was already shifted to the owner to show cause why the property should not be forfeited or destroyed. Thus, as the Court of Appeals memorably states it, “the State did not have a burden to show probable cause at the show cause hearing.”

$8,074.68 in United States Currency v. State, No. 05-13-01502-CV

Forcible Detainer Judgment Affirmed — Court Did Not Err by Admitting Notices as Business Records

The plaintiffs defaulted on their mortgage and were then removed from the house via a forcible detainer action filed in Collin County.  They appealed, arguing that the trial court erred by admitting as a business record several notices of eviction sent to them in the mail.  The plaintiffs’ primary argument was that the witness who laid the foundation through an affidavit was not qualified.  The Dallas Court of Appeals disagreed, noting that “Rule 803(6) does not . . . require a witness laying the predicate for introduction of a business record to be the creator of the document or even an employee of the company keeping the record.” All that is required is that he/she have personal knowledge of the facts contained within the business record.

Singha v. FNMA

Texas Supreme Court Update: Fair Market Value Is a Flat Circle

Two years ago, the Dallas Court of Appeals ruled that PlainsCapital Bank was not entitled to judgment against a borrower because it based its deficiency claim on the price it obtained when the property was sold a year after foreclosure, rather than the fair market value of the property at the time it was foreclosed. Last summer, the Texas Supreme Court granted the bank’s petition for review and set the case for oral argument. This morning, the Supreme Court held that the Court of Appeals was correct in ruling that § 51.003 of the Texas Property Code controlled PlainsCapital’s deficiency claim. However, the Court also ruled that “fair market value” under the deficiency statute does not mean the price that a willing buyer would pay to a willing seller at the time of foreclosure. Because § 51.003(b)(5) permits the trier of fact to consider the forward-looking factor of discounts that may be applied to a future sales price, it was proper for the trial court to base its fair market value finding on the price the bank actually received in its post-foreclosure sale. The Supreme Court remanded to the Court of Appeals for consideration of additional issues.

Justice Boyd (joined by Justice Guzman) dissented, arguing that the majority had improperly cast aside the historical definition of fair market value, and that evidence of any future discounts in the sale price of the property was only relevant to consideration of the fair market value at the time of the foreclosure.

TLDR: To determine FMV at the time of foreclosure, you can look to values received in the future.

PlainsCapital Bank v. Martin (majority)

PlainsCapital Bank v. Martin (dissent)

Evidence Is No Impediment the Second Time Around

Just under two years ago, the Court of Appeals reversed summary judgment for Compass Bank because its custodian of records affidavit did not explain how the witness would have personal knowledge to prove up the promissory note. On remand, the trial court granted the bank’s amended motion for summary judgment, and this time that judgment was affirmed. Among other things, the defendants sought to establish a fact issue by pointing to a discrepancy in the amount of damages owed to the bank in the original summary judgment affidavit versus the affidavit in the amended motion. The Court of Appeals disposed of that issue by pointing out that it had already held the original affidavit to be “no evidence,” so the purported conflict was not really a conflict at all. The Court also held that the bank was not required to file the original promissory note, despite a Collin County local rule to that effect, because the local rule conflicted with the Texas Rules of Evidence governing the admissibility of a duplicate. Finally, although the lending instrument contained an illegal homestead warranty provision, the Court held that provision was severable from the remainder of the contract.

Vince Poscente Int’l, Inc. v. Compass Bank, No. 05-14-00165-CV

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