Corniello v. State Bank and Trust, Dallas
344 S.W.3d 601
Tex. App.2011Background
- Bank lent to the LLC, with Corniello guaranteeing the loans; real property secured the indebtedness.
- LLC defaulted; trustee's sale occurred on the foreclosed properties.
- LLC asserted offset and sought a §51.003(b) FMV determination at foreclosure.
- Bank moved for summary judgment on remaining deficiency; no ruling on a continuance motion for summary judgment response.
- Trial court granted summary judgment; Corniello and LLC moved under Rule 306a to extend post-judgment deadlines, alleging late notice.
- Trial court extended post-judgment deadlines to December 17, 2009; cross-appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review Rule 306a extension | Rule 306a extension valid; prima facie lack of timely notice shown | Rule 306a not properly invoked; no timely notice established | Trial court's 306a extension affirmed; jurisdiction proper |
| Sufficiency of Corniello affidavit under Property Owner Rule | As sole LLC member, Corniello familiar with property value; owner rule applies | Affidavit insufficient; not personally familiar; no expert needed | Corniello's affidavit constitutes some evidence creating a fact issue |
| Timeliness and consideration of late-filed summary judgment evidence | Court considered late-filed response; timeliness not properly challenged | Timeliness not preserved; evidence should be disregarded | Record shows court considered late filing; not reversible error |
| Admissibility of property value evidence post-Speedy Stop | Speedy Stop allows certain internal employees to testify under Property Owner Rule | Banked argued Sot-proof contradicts; no expert necessary | Speedy Stop supports Corniello's value testimony as some evidence; creates fact issue |
Key Cases Cited
- Speedy Stop Food Stores, Ltd. v. Reid Road Mun. Util. Dist. No. 2, 337 S.W.3d 846 (Tex. 2011) (Property Owner Rule applies to certain organizational witnesses)
- City of Coppell v. Gen. Homes Corp., 763 S.W.2d 448 (Tex.App.-Dallas 1988) (preserves timeliness objections to summary judgment responses)
- Nathan A. Watson Co. v. Employers Mut. Cas. Co., 218 S.W.3d 797 (Tex.App.-Fort Worth 2007) (outline for timing of Rule 306a notice and hearing)
- Texaco, Inc. v. Phan, 137 S.W.3d 763 (Tex.App.-Houston [1st Dist.] 2004) (standard for appellate review of 306a findings)
- Ginn v. Forrester, 282 S.W.3d 430 (Tex. 2009) (no affirmative duty to record mailing of judgment by clerk)