ALPHAVILLE VENTURES, INC. and Noam Bizman, Appellants v. FIRST BANK, Appellee
No. 14-12-00580-CV
Court of Appeals of Texas, Houston (14th Dist.)
April 1, 2014
429 S.W.3d 150
For these reasons, we cannot conclude this other evidence raises a fact issue on foreseeability. We resolve Park‘s first four issues against him. Because we have concluded Exxon Mobil owed no duty to Park as a matter of law, we need not address his remaining two issues regarding his entitlement to punitive damages for Exxon Mobil‘s gross negligence.
We affirm the trial court‘s judgment.
Panel consists of Chief Justice FROST and Justices DONOVAN and BROWN.
OPINION
JOHN DONOVAN, Justice.
Appellants, Alphaville Ventures, Inc. (“Alphaville“) and Noam Bizman (“Bizman“), appeal a summary judgment in favor of appellee, First Bank, in its suit to recover the balance due on a promissory note and guarantee. In their sole issue, appellants contend the trial court erred by granting summary judgment because First Bank failed to prove it is owner and holder of these instruments. We reverse and remand.
I. BACKGROUND
For purposes of this appeal, the following pertinent facts are undisputed. Under the promissory note at issue, Small Business Loan Source LLC (“SBLS“) was the original lender, and 5M Corp dba Arby‘s was the original borrower. Via an “Allonge to Promissory Note,” 5M Corp dba Arby‘s assigned all its liabilities and obligations under the note to Alphaville. In conjunction with that assignment, Bizman, the president of Alphaville, signed a guarantee of Alphaville‘s obligations under the note, and Alphaville granted SBLS a security interest in certain equipment. Alphaville subsequently defaulted on the Note. First Bank filed suit, alleging the note and guarantee had been assigned from SBLS to First Bank and seeking the amount due.
First Bank filed an original motion for summary judgment followed by an amended motion—the operative motion. On March 30, 2012, the trial court signed a Final Summary Judgment ordering that First Bank recover the following from appellants, jointly and severally: $613,038.46 principal and interest; attorney‘s fees of $20,757, plus $5,000 for each stage of an appeal; and costs of court.
II. ANALYSIS
A party moving for traditional summary judgment must establish there is no genuine issue of material fact and it is entitled to judgment as a matter of law. See
To collect on a promissory note, a plaintiff must establish (1) there is a note, (2) the plaintiff is legal owner and holder, (3) the defendant is the maker, and (4) a certain balance is “due and owing.” McLernon v. Dynegy, Inc., 347 S.W.3d 315, 324 (Tex.App.-Houston [14th Dist.] 2011, no pet.). On appeal, appellants do not challenge whether First Bank proved (1) validity of the note, (2) appellants are respectively the maker and guarantor, and
A. Preliminary Issues
We must address preliminary issues regarding (1) whether appellants’ pleading was sufficient to permit it to challenge the summary judgment, and (2) what evidence we may consider in reviewing the summary judgment.
1. Appellants’ Pleading
First Bank contends that appellants may not challenge whether First Bank proved it is assignee of the note and guarantee because appellants did not file a verified denial under
By its plain language,
First Bank cites Calbert v. Associates Asset Management, LLC, No. 01-09-01062-CV, 2010 WL 2305862, at *3 (Tex.App.-Houston [1st Dist.] June 10, 2010, no pet.) (mem. op.), in which the court suggested the borrower was precluded from challenging the lender‘s summary-judgment evidence in a suit on a note because the borrower failed to file a verified denial under
First Bank also complains that appellants did not file a verified denial under
2. What Evidence We May Consider
To prove it is owner and holder of the note and guarantee, First Bank presented the affidavit of its representative, Wayne Ballenger, and certain documents. Appellants filed a response contending First Bank failed to prove it is owner and holder of the instruments. Nine days before the summary-judgment hearing, First Bank filed a reply supported by Ballenger‘s supplemental affidavit and further documents purporting to prove the assignment. Appellants moved to strike the supplemental evidence as untimely filed but did not obtain an express ruling on the motion.
Appellants contend we may not consider the supplemental evidence because it was untimely filed. First Bank urges that appellants waived this complaint by failing to obtain a ruling on their motion to strike. We conclude appellants were not required to obtain a ruling and the untimely supplemental evidence may not be considered as part of the summary-judgment record.
We conclude appellants were not required to obtain a ruling on their objection that the evidence was late filed because they were not required to object. Requiring a party to object that summary-judgment evidence was late filed would be inconsistent with (1)
First Bank did not specifically request leave to late file the supplemental evidence. The record does not contain any express order granting leave or a record of the oral hearing. In its judgment, the trial court granted summary judgment “[a]fter considering the pleadings, the motion, affidavits, and other evidence on file.” This language does not reflect the trial court considered the supplemental evidence. The trial court‘s statement that it considered “affidavits,” in the plural, is not an affirmative indication it considered the supplemental affidavit; there were two affidavits (from Ballenger and First Bank‘s attorney) attached to the motion for summary judgment, which the trial court may have meant by referencing “affidavits,” in the plural. Additionally, the phrase “other evidence on file” is too general to necessarily encompass the supplemental evidence. The trial court did not state that it considered First Bank‘s reply or the supplemental evidence attached to the reply.
First Bank cites several cases to support its contention that appellants were required to obtain a ruling on their objection to the late-filed evidence. Those cases are inapplicable because they hold that a party must object to a defect of form in summary-judgment evidence and obtain a ruling to preserve such a complaint—which is different than a contention that summary-judgment evidence was not timely filed. See Commint Tech. Servs., Inc. v. Quickel, 314 S.W.3d 646, 650 (Tex.App.-Houston [14th Dist.] 2010, no pet.); Seidner v. Citibank (S.D.) N.A., 201 S.W.3d 332, 334-35 (Tex.App.-Houston [14th Dist.] 2006, pet. denied); Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex.App.-Houston [14th Dist.] 2000, no pet.).
Accordingly, we will not consider the supplemental evidence. We will address whether the evidence attached to the motion for summary judgment established First Bank is owner and holder of the note.
B. Summary-Judgment Evidence
We first outline the affidavit and documents presented by First Bank to prove it is owner and holder of the note and guarantee.
1. Ballenger Affidavit
Ballenger signed the affidavit as “Vice-President” of First Bank and averred in pertinent part:
BEFORE ME, the undersigned authority, on this day, personally appeared Wayne Ballenger, who, upon first being duly sworn, states that he is an authorized representative of Plaintiff, and is a
custodian of the records for Plaintiff First Bank as assignee of [SBLS]. “My name is Wayne Ballenger. I am over eighteen (18) years of age and I have never been convicted of a felony crime or other crime involving moral turpitude, and I am fully competent to make this Affidavit. I have knowledge of the facts stated herein and they are all true and correct.
I am a duly authorized representative and a custodian of records for First Bank, as assignee of [SBLS]. Attached to Plaintiff‘s Original Petition are records from First Bank, as assignee of [SBLS]. True and correct copies of the following documents are attached to Plaintiff‘s Original Petition: U.S. Small Business Administration Note, (Exhibit “A“); Allonge to Promissory Note (Exhibit “B“). U.S. Small Business Administration Unconditional Guarantee (Exhibit “C“); Security Agreement Exhibit “D“); UCC Financing Statement (Exhibit “E“); Loan Assignment, Assumption and Modification Agreement (Exhibit “F“), and Asset Purchase Agreement (Exhibit “G“).
First Bank, as assignee of [SBLS], is the current owner and holder of the Note and guaranty agreement. A true and correct copy of the Loan Purchase and Sale Agreement dated September 21, 2009 and redacted to delete unrelated loan information is attached to this affidavit.
These records are kept by First Bank, as assignee of [SBLS] in the regular course of business, and it was the regular course of business of [SBLS] for an employee or representative of [SBLS], with knowledge of the act, event, condition, opinion, or diagnosis recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the exact duplicates of the originals.
Defendant Alphaville Ventures, Inc. assumed all liabilities and obligations of 5MCorp. concerning the Note. Payment of the Note was guaranteed by Defendant/Guarantor, Noam Bizman as evidenced in the guaranty agreement. First Bank, as assignee of [SBLS], is the current owner and holder of the Note and Guaranty Agreements.1
...
The foregoing statements are true and correct. Further, Affiant sayeth not.”
In summary, Ballenger averred that First Bank is owner and holder of the note and guarantee, as assignee of SBLS, and referenced a Loan Purchase and Sale Agreement dated September 21, 2009 (“the PSA“).
2. Documentary Evidence
The PSA is the only document referenced by Ballenger that directly concerns the purported assignment from SBLS to First Bank.2 The PSA, signed by officers of both parties thereto, states in pertinent part:
[SBLS] wishes to sell, and [First Bank] wishes to purchase, the loans and certain other assets owned by [SBLS] and referred to herein (collectively, the “Assets“), subject to the terms and conditions of this Agreement.
Now, therefore, it is hereby agreed as follows:
1. In consideration of [consideration to be provided by First Bank to SBLS], the receipt and sufficiency of which is hereby acknowledged,3 [SBLS] will convey the Assets to [First Bank] by executing and delivering to [First Bank] (i) endorsements without recourse conveying to [First Bank] [SBLS‘s] right, title and interest in the loans listed on Schedule A hereto (the “Loans“), and (ii) a Bill of Sale in the form attached hereto as Exhibit A, transferring [SBLS‘s] interest in the personal property listed on Schedule B hereto....
...
5. [SBLS] agrees that, following the consummation of the Transactions, it will execute such other documents, including endorsements of notes and assignments of other documents relating to the Loans, and take such other actions as may be reasonably required by [First Bank] in order to provide evidence of the transfer of the Assets to [First Bank].
Before further explaining the documentary evidence, we will address appellants’ assertion that First Bank failed to establish appellants’ loan was subject to the PSA. We disagree.
The parties agreed SBLS would convey to First Bank the loans listed on Schedule A, which is entitled “Loans Conveyed to First Bank” and included in the summary-judgment evidence. Schedule A has four columns for the entries thereon: “Loan Number“; “Name“; “State“; and “District.” As asserted in Ballenger‘s affidavit, Schedule A was redacted to delete all entries except the following under the applicable columns:
6005 Arby‘s TX Houston, Tx
It also appears that the beginning portion of the loan number on this entry is redacted.
The note and guarantee both show the name of the loan as “Arby‘s.” The note shows the original borrower as “5M Corp dba Arby‘s.” It is undisputed 5M Corp assigned its obligations under the note to Alphaville. The loan number on the note is redacted entirely, but the guarantee and the assignment under which Alphaville purchased the note from 5M Corp show the last four figures of the loan number as “60-05.” The summary-judgment evidence includes a “Lender‘s Transcript of Account” (showing activity at various points throughout the life of the loan). The transcript lists the loan number as “6005,” with preceding numbers also redacted, and the borrower‘s name as “Arby‘s Alphaville Ventures Inc.” Ballenger swore this transcript was a true and correct copy of the transcript for appellants’ loan. We conclude the above-cited documents collectively show that appellants’ loan was included on Schedule A as a loan subject to the PSA.
As appellants argue, the PSA itself did not effectuate a transfer to First Bank of “the loans and certain other assets” specified in the agreement. Instead, the PSA provided SBLS would consummate the contemplated transaction in the future via two steps: (i) executing and delivering endorsements without recourse conveying to
Notably absent from First Bank‘s summary-judgment evidence are any separate documents constituting endorsements without recourse of the loans to be conveyed to First Bank, including appellants’ note and guarantee. Further, there is no endorsement on the note and guarantee that is attached to First Bank‘s petition. The form Bill of Sale referenced in the PSA is not attached to the PSA contained in First Bank‘s summary-judgment evidence. Rather, a fully executed Bill of Sale, dated September 30, 2009, is attached, although Ballenger did not refer in his affidavit to any executed agreements other than the PSA.4 Accordingly, First Bank presented documentary proof of only one of the two steps required of SBLS to consummate the entire transaction.5
Appellants assert, and First Bank acknowledges, that the Bill of Sale does not alone prove the transfer of appellants’ note and guarantee from SBLS to First Bank. The Bill of Sale provides in pertinent part:
[SBLS], for good and valuable consideration paid and delivered by [First Bank], the receipt of which is hereby acknowledged, does sell to [First Bank] the Assets set forth on Schedule B attached hereto (the “Assets“).
[SBLS] hereby warrants that [SBLS] is the owner of the Assets free and clear of all mortgages, pledges, liens, charges, or encumbrances, except liens for current taxes not yet due and payable.
Receipt of delivery of the Assets is hereby acknowledged by [First Bank].
The PSA contemplated that the Bill of Sale would transfer SBLS‘s “interest in the personal property” listed on Schedule B, which is entitled “Assets Conveyed to First Bank” and included in the summary-judgment evidence. Schedule B is also redacted to delete unrelated loans but includes the following entry under columns for “SBA Loan Number” and “Borrower Name“:
6005 Arby‘s
It is not clear what “interest in ... personal property” the PSA referenced. Nevertheless, the PSA did not contemplate that a Bill of Sale would be utilized to transfer all instruments governing the loans subject to the PSA, including appellants’ note and guarantee. The Bill of Sale used a broader term by referring to the sale and delivery of “Assets” listed on Schedule B, but “Assets” is not defined in the Bill of Sale. Further, on Schedule B, the list of “Assets” is contained on a separate paper entitled “Attachment I (Referenced in SBA Letter to First Bank dated
In addition to the above-described documents, First Bank presented (1) an affidavit of its attorney to support recovery of attorney‘s fees, (2) Alphaville‘s Response to Requests for Admission, and (3) excerpts from Bizman‘s deposition. None of this evidence concerns the transfer of the note and guarantee from SBLS to First Bank.
C. Owner and Holder Status
Appellants suggest, and First Bank seems to acknowledge, the documentary evidence does not alone establish First Bank is owner and holder of the note and guarantee. We agree. As discussed above, there is no documentary proof of the endorsements required to transfer the note and guarantee. Instead, First Bank suggests, and appellants dispute, that the affidavit itself, or in conjunction with the documents, established First Bank‘s owner-and-holder status. Appellants proffer several reasons that the evidence failed to establish First Bank is owner and holder: (1) Ballenger did not explain how he gained personal knowledge of the contents of his affidavit; (2) the affidavit is conclusory; and (3) the affidavit is controverted by the documentary evidence.
1. Objection Regarding Personal Knowledge
First, appellants contend Ballenger failed to establish how he gained personal knowledge of the contents of his affidavit. Appellants assert Ballenger averred merely that he is a “duly authorized representative and a custodian of records” for First Bank but such a statement did not demonstrate how he gained personal knowledge. However, our court has recently held that a contention that an affidavit fails to show the basis for the affiant‘s personal knowledge is a complaint regarding a defect in form for which the complaining party must object in the trial court and obtain a ruling. Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 736 (Tex.App.-Houston [14th Dist.] 2013, pet. filed) (en banc). In their summary-judgment response, appellants included a footnote asserting Ballenger failed to establish he had personal knowledge of the facts in the affidavit. To the extent the footnote adequately constituted an objection, appellants waived their complaint by failing to obtain a ruling.
2. Contention that Affidavit is Conclusory and Controverted
Appellants also contend Ballenger‘s averment that First Bank, as assignee of SBLS, is owner and holder of the
First Bank relies on Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983), in which the Supreme Court of Texas held that an affiant‘s testimony that an attached exhibit is a true and correct copy of a note and he is owner and holder is sufficient summary-judgment evidence to establish this status absent controverting evidence. However, Zarges was a suit by the original lender shown on the note who had misplaced the note and did not involve an alleged assignee attempting to recover on a note. See id.
First Bank also relies on McLernon, in which our court followed Zarges when a plaintiff claimed it was owner and holder of a note via an assignment. 347 S.W.3d at 326. In that case, the plaintiff‘s representative averred as follows, inter alia, in her affidavit supporting the plaintiff‘s motion for summary judgment: (1) an attached exhibit was a true and correct copy of the note, and the plaintiff was legal owner and holder; (2) the note was made payable to another entity because that entity was a subsidiary of the plaintiff used to collect certain monies owed to the plaintiff; (3) on a certain date, the other entity “granted, transferred and assigned” all of its interest in the note to the plaintiff, including any rights or obligations to collect the balance owed; and (4) another attached exhibit was a true and correct copy of the “Assignment of Notes.” Id. at 325. We held that the affidavit was sufficient to prove the plaintiff was owner and holder of the note absent controverting evidence, although we concluded the documentary evidence also proved that status. Id. at 325-27; see also Nguyen v. Citibank N.A., 403 S.W.3d 927, 930-31 (Tex.App.-Houston [14th Dist.] 2013, no. pet. h.) (holding affiant‘s assertion of ownership of credit card account on behalf of bank was sufficient to establish such ownership absent controverting evidence and was not conclusory); Ortega v. Cach, LLC, 396 S.W.3d 622, 627-28 (Tex.App.-Houston [14th Dist.] 2013, no pet.) (holding bank officer‘s statement in affidavit that defendant‘s credit-card account was “sold, transferred, and set over unto” plaintiff creditor was not conclusory and supporting documentation was not required).
We conclude the above-cited authority is not controlling in the present case. Unlike in those cases, Ballenger‘s statements, when considered together with the documentary evidence, cast doubt that there was underlying support for his averment that First Bank is owner and holder, as assignee of SBLS. Specifically, Ballenger did reference the facts on which he relied to support his averment, yet those facts do not provide such support. Construing the affidavit in the light most favorable to appellants, Ballenger indicated he was relying on only the PSA to support his averment. As discussed above, the PSA did not effect the transfer of the note and guarantee and contemplated a future transfer via endorsements without recourse. The endorsements were not produced by First Bank. Further, Ballenger did not aver the endorsements were made
As mentioned above, in its reply to appellants’ summary-judgment response, First Bank attached supplemental documents purporting to prove the assignment, which we may not consider.7 However, in the reply, First Bank alternatively contended the supplemental documents were unnecessary because the evidence attached to the motion was sufficient. First Bank referenced only the PSA as proving the assignment, thereby indicating it was continuing to rely on a document that, to the contrary, did not effect the transfer.
In summary, the trial court erred by granting First Bank‘s motion for summary judgment because it failed to conclusively establish it is owner and holder of the note and guarantee.
Accordingly, we sustain appellants’ sole issue, reverse the trial court‘s judgment, and remand for further proceedings consistent with this opinion.
FROST, C.J., concurring.
KEM THOMPSON FROST, Chief Justice, concurring.
“It‘s the little details that are vital. Little things make big things happen.”
COACH JOHN WOODEN
Vital details are missing from the summary-judgment record in today‘s case. As a result, the summary-judgment evidence does not conclusively prove that First Bank is the assignee of the promissory note and guaranty on which it seeks to recover. Because the trial court erred in granting summary judgment, it is proper to reverse the judgment and remand.
Small Business Loan Source, LLC (hereinafter, “Loan Source“) was the payee and original owner and holder of the promissory note (hereinafter, “Note“) and guaranty (hereinafter, “Guaranty“). For First Bank to be entitled to summary judgment on its claims under these instruments against Alphaville Ventures, Inc. and Noah Bizman (collectively, the “Alphaville Parties“), the summary-judgment evidence must conclusively prove that First Bank is the assignee of the Note and Guaranty.1 In our de novo review of the
The record does not contain the proof necessary for the Alphaville Parties to prevail. The statements of Wayne Ballenger in his affidavit, the statements of First Bank‘s counsel in his affidavit, Alphaville Ventures, Inc.‘s answers to First Bank‘s requests for admissions, the testimony of Bizman in the excerpts of his deposition, and the documents attached to First Bank‘s petition do not conclusively prove that First Bank is the assignee of the Note or of the Guaranty. The items attached to Ballenger‘s affidavit are the only other timely filed summary-judgment evidence. These fourteen pages are a confusing amalgamation of documents and schedules that, under the summary-judgment standard of review, do not conclusively prove that First Bank is the assignee of the Note or of the Guaranty.
In Ballenger‘s affidavit, the only document Ballenger says is attached to the affidavit is the Loan Purchase and Sale Agreement dated September 21, 2009 (hereinafter, “Purchase Agreement“). Ballenger does not address whether other documents are attached to his affidavit or delineate which of the attached pages are the Purchase Agreement, for example, by attaching that document as a specified exhibit to his affidavit. The first page attached to this affidavit has signatures at the bottom and appears to contain all of the terms and conditions of the Purchase Agreement. On that page, Loan Source and First Bank agree that
[Loan Source] will convey the Assets to [First Bank] by executing and delivering to [First Bank] (i) endorsements without recourse conveying to [First Bank] [Loan Source‘s] right, title and interest in the loans listed on Schedule A hereto (the “Loans“), and (ii) a Bill of Sale in the form attached hereto as Exhibit A, transferring [Loan Source‘s] interest in the personal property listed on Schedule B hereto....
First Bank also agrees to execute and deliver an Assignment and Assumption of Liabilities Agreement in the form attached to the Purchase Agreement as Exhibit B. Significantly, in the Purchase Agreement, Loan Source does not assign, transfer, or convey the Note or the Guaranty to First Bank; rather, at most, Loan Source agrees to convey the Note and the Guaranty by endorsement to First Bank without recourse and by executing and delivering a Bill of Sale in the form attached thereto as Exhibit A. There is no reasonable construction of the Purchase Agreement under which that instrument shows that First Bank is the assignee of either the Note or the Guaranty. In addition, as noted by the majority, the summary-judgment evidence does not contain any evidence that Loan Source endorsed the Note or the Guaranty to First Bank.
The second page attached to Ballenger‘s affidavit contains representations and warranties made by First Bank to the Small Business Administration in connection with the Purchase Agreement. These representations do not prove that First Bank is
The third page attached to Ballenger‘s affidavit is a document entitled “Bill of Sale,” dated September 30, 2009, and signed by Loan Source and First Bank. This page is not labeled Exhibit A, and the summary-judgment evidence does not contain either an Exhibit A or an Exhibit B to the Purchase Agreement. This Bill of Sale recites that Loan Source sold to First Bank “the Assets set forth on Schedule B attached hereto.” The Bill of Sale does not refer to any Schedule A or any other attachment to the Bill of Sale.
The fourth and fifth pages attached to Ballenger‘s affidavit are entitled “Schedule A” and may be Schedule A of the Purchase Agreement, but this detail is not specified. Even if these pages are Schedule A of the Purchase Agreement and even if the Note is listed on this schedule, neither this schedule nor the reference to this schedule in the Purchase Agreement shows that Loan Source endorsed the Note or the Guaranty to First Bank or that Loan Source transferred or otherwise assigned the Note or the Guaranty to First Bank.
The sixth page attached to Ballenger‘s affidavit contains only two lines of text: “SCHEDULE B,” and then below that line: “Assets Conveyed to First Bank.” This page contains no reference to the Note, the Guaranty, or the loan in question. If this page is Schedule B of the Purchase Agreement, neither this schedule nor the reference to this schedule in the Purchase Agreement shows that Loan Source endorsed the Note or the Guaranty to First Bank or that Loan Source transferred or otherwise assigned the Note or the Guaranty to First Bank.
The seventh page attached to Ballenger‘s affidavit is entitled “Attachment I (Referenced in SBA Letter to First Bank dated 9/30/2009).” Underneath this title, there appears to be a heavily redacted list, with a reference only to part of a Small Business Administration Loan Number for a loan to a borrower named “Arby‘s.” Even if this reference is to the loan pursuant to which the Note was executed, there is no reference in the Purchase Agreement or the Bill of Sale to any “Attachment I.” Under the applicable standard of review, reasonable and fair-minded jurors could find either that the seventh page is part of Schedule B of the Purchase Agreement or that this page is part of neither Schedule B to the Purchase Agreement nor Schedule B to the Bill of Sale. In either event, the documents attached to Ballenger‘s affidavit would not show that Loan Source endorsed the Note or the Guaranty to First Bank or that Loan Source transferred or otherwise assigned the Note or the Guaranty to First Bank. This court may presume for the sake of argument that, if the seventh page is part of Schedule B to the Bill of Sale, then the summary-judgment evidence would show that Loan Source transferred or otherwise assigned the Note and the Guaranty to First Bank. But, even under this presumption, the summary-judgment evidence would raise a genuine fact issue precluding summary judgment, given that reasonable and fair-minded jurors also could find that the seventh page is part of Schedule B of the Purchase Agreement or that this page is part of neither Schedule B to the Purchase Agreement nor Schedule B to the Bill of Sale.4
The remaining pages attached to Ballenger‘s affidavit do not show that Loan
Considering all timely filed summary-judgment evidence under the applicable standard of review, the summary-judgment evidence does not conclusively prove that First Bank is the assignee of the Note or of the Guaranty.5
Because this court may reverse the trial court‘s judgment and remand for further proceedings under the above analysis, this court need not address the proper construction and meaning of the term “Assets,” as used in the Purchase Agreement and the Bill of Sale or whether both endorsement of the “loan” and execution and delivery of the Bill of Sale are required for First Bank to be the assignee of the Note or of the Guaranty.6 Though I do not join the majority opinion, I respectfully concur in the court‘s judgment.