Victor Lissiak, Jr. v. S.W. Loan OO, L.P.
12-14-00344-CV
| Tex. App. | May 14, 2015Background
- This appeal arises from SW Loan OO, L.P.’s cross-claim against Victor Lissiak, Jr. to collect on a $2.5 million promissory note dated Sept. 30, 2008, which consolidated three earlier "Short Term Notes."
- The $2.5M Note and the Short Term Notes bear Lissiak’s signature; SW acquired the $2.5M Note and sued after default. Renewals executed later were signed only by co-obligor Light.
- Lissiak answered with multiple affirmative defenses (signature authenticity, failure of consideration, cancellation/novation, estoppel, material alteration, discharge under Tex. Bus. & Comm. Code §3.605) and submitted affidavits contesting SW’s proof.
- SW moved for traditional summary judgment supported by custodial and servicer affidavits (Bates, Mortimer, Lang) attaching the $2.5M Note and calculation of amounts due; SW also objected to portions of Lissiak’s affidavits and a confidential settlement agreement that Lissiak’s lawyer filed.
- The trial court granted SW’s summary judgment; the court’s order indicated it considered the motion, pleadings, summary‑judgment evidence and other papers—implying rulings on the evidentiary objections. Lissiak appealed.
Issues
| Issue | Plaintiff's Argument (SW) | Defendant's Argument (Lissiak) | Held |
|---|---|---|---|
| 1. Signature authenticity of the $2.5M Note | The note is attached and authenticated by custodial/business‑records affidavits; Lissiak admitted his signature appears and did not file a verified denial under Tex. R. Civ. P. 93(7). | Lissiak said he does not recall signing and disputes the signature’s validity. | Court treated SW’s authenticated affidavits and note as sufficient; Lissiak’s "no recollection" did not satisfy the required verified denial, so no genuine issue on execution. |
| 2. Failure of consideration | SW: Short Term Notes and $2.5M consolidation presume consideration; renewals and Lissiak’s prior participation waived defenses; SW met burden with affidavits and business records. | Lissiak: he personally did not receive funds / asserts failure of consideration for short‑term advances. | Held for SW: presumption of consideration stands; doctrine of waiver by renewal defeats the defense absent competent evidence. |
| 3. Cancellation/novation because renewals were signed only by Light | SW: Renewal notes merely extended maturity and did not release or novate Lissiak; the notes contain express waiver/consent clauses allowing extensions without discharging co‑obligors. | Lissiak: later renewals (signed only by Light) and settlement materials show cancellation/novation or discharge. | Held for SW: no competent evidence of novation or discharge; contract clauses preserved co‑obligor liability; renewal signatures by Light did not eliminate Lissiak’s liability. |
| 4. Evidentiary sufficiency and trial court’s handling of objections | SW: its custodial and servicer affidavits and attached note (self‑authenticating business records) satisfied summary‑judgment proof; trial court implicitly overruled defendant’s objections to SW proof and sustained SW’s objections to plaintiff’s evidence. | Lissiak: objected to SW affidavits and sought to rely on his and third‑party affidavits and a confidential settlement agreement; claimed trial court erred by not expressly ruling on objections. | Held for SW: trial court’s order shows it considered evidence; SW’s affidavits were competent under business‑records and summary‑judgment standards; many of Lissiak’s affidavit statements were legal/conclusory or lacked personal knowledge and were disregarded. |
Key Cases Cited
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (standard of review for traditional summary judgment is de novo)
- Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment standards and inferences favoring nonmovant)
- Schwab v. Schlumberger Well Surveying Corp., 198 S.W.2d 79 (Tex. 1946) (renewal note does not extinguish original indebtedness absent intent to novate)
- Zarges v. Bevan, 652 S.W.2d 368 (Tex. 1983) (photocopy of note attached to affidavit can prove ownership/validity absent controverting evidence)
- Brownlee v. Brownlee, 665 S.W.2d 111 (Tex. 1984) (legal conclusions in affidavits are insufficient to raise fact issues)
- Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d 507 (Tex. 1998) (elements of equitable estoppel)