Rogers v. RREF II CB Acquisitions, LLC
533 S.W.3d 419
Tex. App.2016Background
- In 2006 Michael J. Rogers executed a $3,000,000 promissory note to Texas‑State Bank; the bank merged into Compass Bank (2008) and the note was later assigned to RREF II CB Acquisitions, LLC (RREF) (2013).
- RREF alleged Rogers defaulted after May 24, 2012, and sought recovery of principal, accrued interest, late charges, post‑judgment interest and costs; RREF moved for partial summary judgment on the breach‑of‑note claim.
- RREF submitted affidavits from Jennifer Wimmer (Rialto/RREF) and Jenna Maytas (Quantum Servicing) plus ten exhibits (note, assignment, loan sale agreement, account summary, letters/emails, loan application, etc.).
- Initial affidavits misnamed the plaintiff ("RREF CB II" vs. "RREF II CB"); the trial court granted leave to file corrected affidavits after the hearing and RREF filed corrected versions.
- Rogers objected on multiple grounds (misnomer, lack of personal knowledge, Rule 166a(f) attachment/formalities, hearsay/business‑records problems, conclusory statements, internal inconsistencies, failure to prove execution/ownership/amount, and inadequate negation of affirmative defenses).
- The trial court granted partial summary judgment for RREF for approximately $1.5 million principal plus interest and charges; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument (RREF) | Defendant's Argument (Rogers) | Held |
|---|---|---|---|
| Correction of party name / late affidavits | Court granted leave; corrected affidavits filed and incorporated | Misnaming required proof before cure; late filing violated Rule 166a | Affirmed: oral leave cured defect; misnomer typographical and not prejudicial |
| Personal knowledge of affiants | Affiants had supervisory roles, custodial control, reviewed/source records — sufficient basis for personal knowledge | Affidavits merely recited records and lacked true personal knowledge | Affirmed: job duties, custody of records and review of records satisfied personal‑knowledge rule |
| Rule 166a(f) attachment/incorporation | Exhibits attached to business‑record affidavits and motion incorporated them/prayed for judicial notice | Affidavits/exhibits not filed/attached with motion as required | Affirmed: incorporation by reference and request for judicial notice met Rule 166a(f) |
| Business records / hearsay (third‑party documents) | Exhibit 4 integrated into RREF/Quantum records, relied upon by RREF, and sworn to by custodian; other documents contractual or deemed admitted | Many exhibits originated with third parties and affiants not qualified to authenticate them under Rule 803(6) | Affirmed: Exhibit 4 admissible under integration/reliability tests; Exhibits 1,3,10 contractual (not hearsay) and authenticity deemed admitted under Rule 93; others nonessential |
| Conclusory statements | Affidavits summarized and referenced supporting exhibits | Affidavits contained conclusory recitations unsupported by facts | Affirmed: statements were explanatory of attached documents and thus not impermissibly conclusory |
| Inconsistency / contradictions | Corrected affidavits clarified typographical errors | Original and corrected affidavits conflicted, undermining credibility under Rule 166a(c) | Affirmed: differences were typographical, not substantive, and caused no confusion |
| Execution, chain of title, amount owing | Exhibits and custodial affidavits establish execution, assignment and balance due | Insufficient proof of signature, title chain, and computation of amounts | Affirmed: failure to file verified denials under Rule 93 deemed execution/assignment proved; affidavits/exhibits established amount owing |
| Affirmative defenses | Plaintiff not required to negate defenses; defendant must produce evidence to raise fact issues | RREF failed to conclusively negate affirmative defenses | Affirmed: Rogers produced no summary evidence to support affirmative defenses; burden to oppose summary judgment rested on him |
Key Cases Cited
- Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184 (Tex. 2007) (standard of de novo review for traditional summary judgment)
- Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002) (summary judgment burden and evidence viewed in nonmovant's favor)
- Trico Techs. Corp. v. Montiel, 949 S.W.2d 308 (Tex. 1997) (interested witness affidavit may support summary judgment if clear, direct, credible and readily controvertible)
- Humphreys v. Caldwell, 888 S.W.2d 469 (Tex. 1994) (affidavits must be on personal knowledge)
- Radio Station KSCS v. Jennings, 750 S.W.2d 760 (Tex. 1988) (affidavit must disclose basis for personal knowledge)
- Reddy P’ship/5900 N. Freeway LP v. Harris Cnty. Appraisal Dist., 370 S.W.3d 373 (Tex. 2012) (misnomer doctrine and allowance to correct names when not prejudicial)
- Nat'l Health Res. Corp. v. TBF Fin., LLC, 429 S.W.3d 125 (Tex. App.-Dallas 2014) (integration test for admitting third‑party records into sponsoring business’s records)
- Dorsett v. Hispanic Hous. & Educ. Corp., 389 S.W.3d 609 (Tex. App.-Houston [14th Dist.] 2012) (elements required to recover on a promissory note)