*1 to continue be bur- should defendant “penalties and disabilities” by dened the conviction, under limited
a criminal specifically authorized
circumstances not Those limitations do
the Legislature. when a trial
include a restriction as authority. If the may
court exercise to limit that au-
Legislature had wanted frame, it knows
thority specific to a time it, branch judicial
how to should do function cre- legislative usurp none Giv-
ating limitation where exists. Legislature grant-
en fact that authority grant with
ed trial courts imposing tem-
judicial clemency, without Set limitation, Appellee’s Motion to
poral Charges and Dismiss
Aside Conviction
was sufficient invoke Constitutional court,
jurisdiction irrespective the trial was filed. when it I find the trial court
Accordingly, would grant re- jurisdiction Appellee
had I
lief affirm the deci- requested
sion of trial court. ORTEGA, Appellant,
Richard G.
CACH, LLC, Appellee.
No. 14-11-00768-CV. Texas, Appeals
Court (14th Dist.).
Houston
Jan.
celled when Ortega defaulted in making payments on the alleges account. CACH purchased the account with an out- standing $13,741.73 balance of and conse- quently brought the alleged suit as assign- ee this debt. Cannon, Houston, Jr., Ap- Neal D. for suit, answered the asserting, pellant. defenses, among other that there had been Clark, Houston, Richard Edward *4 no valid assignment of the account to Appellee. counterclaim, CACH. In a Ortega assert- ed violations of the Texas Fair Debt Col- FROST, Panel consists of Justices lection Practices Act. BROWN, and CHRISTOPHER.
During a below, bench trial the court Ortega stated his name and acknowledged MAJORITY OPINION that he lived at 6423 Monahiti Place BROWN, JEFFREY V. Justice. Northeast, Albuquerque, New Mexico appeal This a arises from debt-collection (“Address”), between 1998 and 2009. CACH, LLC, appellee action which sued Ortega testified that he had a couple of appellant Ortega seeking Richard G. to credit cards 1998 but could not recall against alleged assign- recover him as the which ones they were whether one was of Ortega’s ee credit-card debt. Following from MBNA. When asked whether he re- trial, a bench court the trial rendered ceived a billing statement from MBNA at judgment against On Ortega. appeal, he Address, testified, Ortega “Just like I challenges legal factual sufficiency said, I if don’t remember I had Bank of evidence as well as certain eviden- America.” When asked whether he had tiary rulings of court. Concluding the trial been notified MBNA that the company erroneously that the trial court admitted America, had become Bank of Ortega tes- hearsay prob- evidence and that this error tified he did remember not that ei- ably judgment, resulted in an improper we ther.1 Nor Ortega did recall whether he reverse and remand. received a credit card from Bank of Amer- Nevertheless, presented
ica. when awith I Bank America account statement bear- Ortega ing Address, sued for breach of con- his name and the Ortega tract based failure Ortega’s repay to conceded that he have must had a credit debt agreement a under an for consumer card from Bank America probably According pleadings, credit. to the received type Ortega of statement. statement, agreed billing MBNA—which later became Bank of also that a dated July originally issued credit card in Bank America reflected America— name, Ortega’s Ortega address, name in mailing used or his correct and a card, $13,741.73. thereby authorized use of the incur- Ortega balance could not card, ring charges that using he later failed and re- recall but credit testified had, to pay. fused The credit card was ean- if he have been for answered, Ortega initially actually 1. "I remember ber but that he said he had did re- said, shortly judge Ortega that.” But he "I member. thereafter don’t The trial admonished judge speak loudly say remember.” The trial stated be that she and to careful to what Ortega say say. knew meant to he did not remem- he meant to signed not agreement items and it-card that is groceries. and household family Ortega. whether could recall he submit- Ortega Amer- disputes Bank of any written ted trial, objected At the admis- rates or fees associ- relating ica interest West, of the Pelliccia- portions sion the card. with the use of ated ro, related to and Plummer Affidavits that into to admit moved of his alleged sale signed by Magic affidavit business-record por- those arguing account to as Plaintiffs Exhibit West of CACH hearsay tions also not were were at- of records were Twenty-one pages ownership of the best of CACH’s affidavit, the fol- including to the tached trial Orte- account. The court overruled lowing: Ex- ga’s objections and admitted Plaintiffs entirety. Ortega challenges hibit 1 in its
(1) signed by Magic affidavit second evidentiary rulings appeal. these in this (“West Affidavit”); West *5 (2) entitled “Affidavit of a document Affidavit, In states that the West West signed and of Debt” Claim Certification agent is and a custo- she an authorized of Bank of by Debra L. Pellieciaro the dian of records of CACH and states (“Pellieciaro Affidavit”); America, N.A. part: following pertinent (3) of a document entitled “Affidavit (cid:127) agent custodian of As authorized and of signed and Debt” Claim Certification [CACH], I the business records for Plummer of Bank of by Elisabeth W. based personal knowledge have (“Plummer Affidavit”); America, N.A. the pro- the review of documentation (4) billing statement a November (attached original by vided creditor pay- a reflecting from Bank of America hereto) that, just after all and lawful 11/03, unpaid an ment of balance on $258 offsets, payments, credits have Address, $12,602.72, and an ac- of allowed, the on the been total balance of count number $13,741.73 just and true account of is [XXXXXXXXXXXX4161]; owing [Ortega] and is due and from [CACH], (5) billing September a statement pay- reflecting from Bank Amei’ica of (cid:127) payment just Demand for of the 8/30, unpaid an balance ment of on $268 owing by [Ortega] amount [CACH] Address, $12,865.85, and an ac- of upon [Ortega] was made more than number of count (30) days prior thirty filing of [XXXXXXXXXXXX4161]; original petition, pay- [CACH’s] (6) just owing has ment for the amount July billing statement from not been tendered. reflecting unpaid Bank of America an $13,741.73, Address, balance of Affidavit, In Pellieciaro the Pellieciaro number of an account a bank employed states that she as [XXXXXXXXXXXX4161]; NA, America, officer Bank of and states (7) a general provisions statement result of of said ac- as a the sale “[t]hat America, Bank N.A. of a of card-mem- counts, agent, its authorized and/or agreement signed by ber is not settle, authority adjust, complete Ortega; and compromise satisfy account and (8) America further inter- general Bank of has no provisions statement Bank, N.A., for any purpose.” an cred- est in this account of MBNA America Affidavit, In the Plummer the trial court rendering erred in judg- employed that she is as a bank ment states for CACH because there is no evi- America, NA, officer Bank of successor dence of how CACH calculated the finance Bank, and, NA, charges in interest to MBNA and arrived at the debt balance part, requested following: relevant states and received from the trial court.2 When appellant an asserts (cid:127) payable That there is due and multiple grounds for reversal of the trial RICHARD ORTEGA G. judgment, court’s this court should first $13,741.73 with- the sum 8/18/2009 address all issues that require would ren- post standing chargeable [sic] then, dition and if necessary, consider is- interest, charge-off pursuant sues result in remand. See terms agreement of the card member 43.3; Tex.R.App. P. Pipeline Natural Gas with Bank of America. Pool, Co. Am. v. (cid:127) was, That said agreement (Tex.2003). sustaining Because Ortega’s sold, set transferred and 8/18/2009 second or third issue would result rendi- CACH, LLC, over unto au- with full favor, tion of in his we will con- thority perform to do and all acts nec- sider first. those settlement, collection, essary for ad- justment, compromise satisfaction II of the said claim. issue, In his second argues (cid:127) That as a result of the sale said *6 Affidavit, that because the West the Pellie- CACH, account, LLC, au- its and/or Affidavit, ciaro and the Plummer Affidavit authority thorized agent, complete conclusory, are all is no there settle, adjust, compromise to satis- and that Bank of Ortega’s America sold ac fy same that Bank of America had no count to CACH. The dissent would re
further interest this account for issue, solve the case on this reversing and purpose. judgment rendering Ortega. for We re CACH’s counsel testified at- spectfully disagree, Ortega’s and overrule torney’s fees. The trial court ruled second issue. of signed judg- favor CACH and a final Ortega complain did not ordering
ment
that CACH recover actual
were
at
conclusory
affidavits
the trial
$13,741.73
damages of
as well
court,
a litigant may
but
a conclusory
raise
attorney’s
as
and court
fees
costs. This
objection for
appeal.
the first
time on
appeal followed.
Pollock,
City San Antonio v.
(Tex.2009).
809, 816
The dissent believes
(1)
appeal, Ortega argues:
On
three
conclusory.
all
affidavits are
trial court
overruling hearsay
erred in
and
fact,
But the Plummer Affidavit states a
West,
objections
best-evidence
to the
Pel-
opinion.
not a conclusion or an
licciaro,
(2)
Affidavits;
and Plummer
affidavit,
court
rendering
trial
erred in
for
In
her
Plummer testified in
legally part:
agreement
CACH because the record contains
“That said
and account
was,
factually
sold,
insufficient evidence that the
on
transferred and set
8/18/2009
(3)
CACH;
account was
to
...”
and
over unto
Plummer
LLC
issue,
Ortega’s
argues
In
damages.
fourth
he
that the
Because this issue is redundant of
granting judgment
trial court
issues,
erred in
Ortega’s first three
we do not address
prove
CACH because
failed
to
that it
separately.
Ortega’s
owned
account or how it calculated
33.1(a). Although
complaint regarding
Bank
herself
an officer
identified
insufficiency of the
legal
or factual
the statements
and stated “[t]hat
America
may be
the first time on
made for
are based
in this Affidavit
made
objection
an
insufficient founda
appeal,
to
copy books and
and hard
computerized
is one of form rather than substance
tion
According
Bank of America.”
records of
33.1(d);
preserved.
must be
See id.
dissent,
conclusory
the affidavit is
to the
Hou-Tex,
Graphics,
Inc.
Landmark
provides no factual basis
because
103, 112 (Tex.App.-Houston [14th
this statement.
support
pet.).
Dist.]
may testify to a sale
person
But a
brief,
In
fails to elaborate on
Ortega’s
he
any doc
providing
without
assignment
beyond restating the issue.
In
point
this
Prudential
Ins. Co.
umentary evidence.
however,
context,
argu-
his
we understand
Am.,
Black,
Inc. v.
be an
to insufficient
objection
ment
Dist.]
(Tex.Civ.App.-Houston [14th
object
foundation.
he failed to
Because
writ)
in a
(allowing
partner
partner
charges
finance
calculations of
CACH’s
testify
ship to
sale
court,
of the debt
to the trial
balance
as
underlying
sale and
lease without
preserved
he has not
the error.
Hou-
documents). Plummer could tes
signment
Tex, Inc.,
(holding objec-
IV
Ill
issue, Ortega argues
In his first
that the
*7
issue,
argues
Ortega
In his third
West,
admitting
court erred
the
trial
judg
granting
trial court erred in
that the
Pellicciaro, and
Affidavits in
Plummer
presented
ment for CACH because CACH
entirety
hearsay
their
over his
and best-
the
proving
how
finance
no
objections.
regard to
With
Orte-
how
charges were calculated and
CACH
argument,
ga’s hearsay
agree.
we
requested by
arrived at the debt balance
Evidentiary rulings are commit
trial court.
In
and awarded
the
ted to the trial court’s sound discretion.
Ortega
response,
argues
failed
Ltd.
Bay
Grp.,
Area Healthcare
v.
agree.
this
preserve
error. We
McShane,
(Tex.2007)
231,
239
234
S.W.3d
curiam). A
appel
for
trial court abuses its
preserve
complaint
(per
To
dis
review,
appellant
present
only
regard
the
must
cretion
when it rules without
late
objection,
any guiding
and
timely request,
principles,
the trial court a
rules or
we
evidentiary
a trial
specificity
uphold
or motion with sufficient
to must
court’s
rul
the com
if there is
basis to
ing
legitimate
sup
make the trial court aware of
ap
plaint,
specific grounds
Owens-Corning Fiberglas
unless the
it.
port
Corp.
(Tex.1998).
Malone,
35,
Tex.R.App.
from the
P.
972 S.W.2d
43
parent
context.
objec-
complains
Ortega
Ortega
required
that the
to make that
3. To the extent
thus
foundation,
Hou-Tex,
objec-
Affidavit
his
tion below. He did not. See
Inc. v.
lacks
103,
(Tex.
Graphics,
112
objection
tion is waived. An
to insufficient
Landmark
substance,
2000,
form,
pet.).
App.-Houston
one of
[14th Dist.]
foundation is
629
erroneously
im- practice
activity
Even if a court
admitted
of the business
to create
evidence,
(3)
party
records;
proper
complaining
the
such
the records were created
probably
show that the error
results
must
recorded;
at or
the
near
time of the event
in an improper judgment,
typical-
ed
which
(4)
the records
by,
were created
or
showing that
ly requires
the
by,
from information
person
transmitted
particular
ques-
on the
evidence in
turned
knowledge
with
who
acting
in the
tion, to
P.
Tex.R.App.
warrant reversal.
regular course of business. Tex.R. Evid.
44.1;
P’ship v.
Northborough
Interstate
803(6);
E.A.K.,
133,
re
see In
State,
(Tex.2001).
213,
In
S.W.3d
(Tex.App.-Houston
2006,
[14th Dist.]
determination,
making
this
we review
denied).
pet.
These prerequisites to ad
Northborough,
entire record.
Interstate
missibility may
provided
be
in the form of
S.W.2d
n.r.e.) (“Ex
1969,
or
writ refd
Therefore,
App.-Dallas
“the source of information
if
by statute
prepara-
specified
of
in instances
or
cept
or circumstances
method
the
trustworthiness,”
in
... affidavits are not evidence
con
of
even rule
lack
tion indicate
cases.”).
when an
may
Accordingly,
record
be
ex
authenticated
tested
properly
a
803(6).
beyond
presents
Lack
affidavit
parte
Tex.R. Evid.
inadmissible.
frequently
simple
requirements
authentication
of
is most
the
of trustworthiness
902,
prepared
portions
in rule
the extraneous
when the record
found
hearsay.
States v.
constitute inadmissible
litigation.
of
United
affidavit
anticipation
(7th
922,
Stone,
666,
v.
F.2d
Blackburn,
States
925
992 F.2d
Cir. United
Cir.1979).
(5th
1993)4 (“[W]hen
a
is created
document
the busi-
use that
outside
lies
particular
when
opex-ations—especially
usual
ness’s
A
litigation—neither
involves
that use
case,
In this
the business-record
803(6)’s] justifications for
Rule
[Federal
has 21
of documents at
pages
affidavit
to the
holds....
adhere
admission
[W]e
West,
it, including
tached to
Pelliecia-
rule
documents made
well-established
ro,
Although
and Plummer Affidavits.
litigation
are inadmissible
anticipation
are
and thus self-au
affidavits
notarized
exception.”);
business records
under the
they
thenticating,
may be inadmissible
still
Co.,
Am.
Ins.
v.
Motorists
Freeman
902(8);
Evid.
they
hearsay.
if
are
Tex.R.
710,
(Tex.App.-Houston
714-15
[1st
(Tex.
State,
704, 710
McLeod v.
(concluding that when
pet.)
no
Dist.]
pet.).
App.-Houston [14th Dist.]
from
indicate that a letter
the facts
attorney was writ-
to his
plaintiffs doctor
from
response
request
ten
The West Affidavit is offered as a
likely
in anticipa-
attoi’ney,
prepared
it
record of
but it is clear
business
not admissi-
litigation
was thus
tion
the face of
that was
the document
record).
as a business
ble
litigation.
prepared
purpose
for the
speci
heading
of a
Except
pleading
those instances
The affidavit
rule,
Ortega
refers to
as “Plain
by statute
affidavits
fied
“Defendant,”
Stephens
respectively.
tiff’ and
Addi
contested cases.
(Tex.
Reno,
tionally,
original petition
City
CACH filed its
(“[A]bsent
22, 2010,
the West Affida
pet.)
November
App.-Texarkana
vit,
10, 2010,
contrary,
affidavits
dated November
states that
authority to
ai'e
not,
rule,
payment upon
in a trial
made demand for
general
admissible
as
days
thirty
prior
establish
more than
independent
evidence to
facts
tried.”);
but
being
filing
original petition
Rob-
of CACH’s
material to
issues
*9
the Texas
Evidence
4. Because
Rules of
are
Rondon,
Jeff Brown &
Texas Rules of
Reece
Evidence,
(2013 ed.).
patterned after the
Rules of
Federal
n. 637
Evidence Handbook interpreting
be con
federal rules should
cases
preferred
legislature
the Texas
The
definition
guidance
scope
as to their
sulted for
recognized
because it has been
broad-
clearly de
applicability unless the Texas rule
est,
comprehensive possible description
most
counterpart. Cole
parts from its federal
category
enterprises
whose records
State,
(Tex.Crim.App.
exception.
admissible under the
See id.
1990).
definition
under
The
of "business”
appli-
not affect the
But
distinction does
taken
from the old Texas stat
Texas rule
ute,
guidance
cability
cited
federal
here.
803(6).
than
Rule
rather
from Federal
payment had not been tendered. The fact
“maintained
individuals who have a
only
West created the affidavit
after
duty
business
to make entries in the rec-
CACH’s initial collection efforts were un
accurately
ords
at or near the time of the
successful shows that it was neither creat
they
event that
record.” But the Plummer
ed nor
relied
upon
the course of
Affidavit is
September
dated
regular
CACH’s
debt-collection activities.
asserts that Bank of America sold Ortega’s
Therefore, we adhere to the well-estab
account to CACH on August
2009. A
lished rule and conclude that
this docu
record of a sale made more than
year
ment, which was made in anticipation of after a sale
place
takes
is clearly not “at or
litigation, was not admissible under the
near the time of the event” that it purports
exception.
business-records
See Blackb
Further,
to record.
there is a notation at
urn,
Pelliccario behind the Affidavit do not business- indicate trust First, worthiness and the records exception document does not is twofold: fall busi within the exception. business-records depend nesses such records to conduct affairs,
their
employees
own
so
who gener
ate them have a strong motive to be accu
deceitful; second,
rate and none to be
Finally, the Plummer Affidavit is
routine
patterns
and habitual
of creation
offered as
third-party
document created
reliability
lend
to business records. Black
by Bank of America that has become a
burn,
entire the ing purchased that account exception.5 CACH business-records fall the within Chase, notarized document ex- and a titled “Affida- employee ecuted a Chase affidavit, *1-2. In this that there vit of Sale.” Id. at therefore conclude We employee appel- trial the stated the upon basis which the Chase legitimate is no Ortega’s hearsay ob lant’s was sold overruling of court’s with an account balance supported. See Owens- CACH jection can be $4,567.07. appellant object- *2. The Corp., 972 at 43. Id. at Fiberglas Corning determination, trial based hear- we must ed to the affidavit at on made that Having say, objection but was overruled. Id. the trial court’s error re his whether decide judgment. at *4. improper sulted in an concluded the challenged appeal, On this court paragraphs, the
Without indicated the trustworthi- circumstances be insufficient evidence to there would ness of document based the fact the of the account prove keep failure to accurate rec- Chase’s upon insufficient and thus penal- in or civil ords could result criminal reasonably could have which the trial court of the in the ties that the amount debt in judgment a favor. rendered CACH’s the amount in affidavit matched recorded Therefore, that the we conclude the bill of sale. Id. at *5. court thus improperly evi- on the admitted turned fell within found that the affidavit the busi- reversed. and must be dence Id. But exception. ness-records the facts B present clearly distinguish- case are First, those which we similar to able. did not introduce a bill Issues have arisen in two of sale state- case other to substantiate affiants’ decide this Second, decided earlier ments the sale. cases we this credit-card cases, not indicate year. of those the creditor Ainsworth court did In both prevailed. readily But both are distin- date the contested affidavit relevant above, to its guishable analysis. from this case. As described how- ever, the affidavits this case dates of highly are relevant and indicate that the Therefore, trustworthy. came before this court ear- CACH itself affidavits are not distinctions, appellee lier in a case with because year this as of these factual our Ainsworth, facts. See 2012 holding similar set of in this case is not inconsistent with Ainsworth, alleg- WL 1205525. In our holding Ainsworth.
edly appellant-debtor’s ac- purchased Bank. Id. at *2. CACH count from Chase into evidence a business-record This court also considered similar issues introduced Ass’n, affidavit, Nat’l authenticated a number of Kaldis v. Bank No. which U.S. point likely it have been appears that the of the Plummer also admissible. It above, story acquisi- But, tell the is to CACH's Affidavit as have noted we "affidavits Ortega’s account from Bank of Amer- tion of not, rule, general as a admissible a trial as affidavit been to a Had this attached ica. independent evidence to establish facts mate- summary judgment, might have motion for being Stephens, rial to tried.” the issues Rule under 166a. Or had been admissible And, described, we have S.W.3d at 253. conveys the affidavit been offered information attempt general CACH’s to avert the rule via through deposi- at tion, live witness or trial exception falls the business-records short. cross-examination, subjected to and thus *11 (Tex. 14-11-00607-CV, 2012 pletely WL 3229135 absent from the remaining unchal- 9, 2012, App.-Houston Aug. [14th Dist.] lenged business records. Without that (mem. that pet. w.o.j.) op.). dism’d In nexus, the statements are inadmissible be- case, favor appellee- we ruled in of the they cause constitute independent evidence creditor, but the facts are again, distin being used to establish CACH’s ownership in the case. guishable present those account, of the which fact is a material to Kaldis, objected por appellant In the the being issues tried. Stephens, of tions the business-record affidavit based Therefore, S.W.3d at 253. our holding in because, con hearsay argued, he the this case is not inconsistent with our hold- scope tested statements exceeded the of a ing in Kaldis. business-record affidavit. Id. at *3. the erroneously Because trial court ad- Among the affi business records that the hearsay evidence, mitted and because that purported cop davit to authenticate were essential the judgment, of ies notice-to-vacate letters as well as indicating Ortega’s that the office first issue is post documents sustained. the the
returned certified-mail letters to
appellee “unclaimed.” Id. at *1. In the we Because conclude the that trial court affidavit, business-record the affiant stated by admitting erred improper evidence and notice letters were sent on specific judgment that the mail, improper- turned on by dates certified return re receipt evidence, mail, ly admitted we reverse the quested, as well as first-class trial judgment letters sent certified mail were court’s and remand the cause for returned while unclaimed the first-class a new trial. appel
letters were not returned. Id. The portions
lant contested the of the business- FROST, J., Dissenting. record affidavit the dates and FROST, Justice, KEM THOMPSON ways in which the notice letters were dissenting. Id. mailed. at *3. speci-
Based on the fact that the affiant an appeal This is from a in a personal knowledge fied that she of had debt-collection suit in favor a financial the facts set out in her affidavit and institution, CACH, LLC, appellee care, had actual she or constructive custo- assignee claims to be the of an unpaid records, dy, and control of the attached we consumer, account. appel- consumer The concluded that court the trial did not abuse Ortega, challenges lant Richard G. the tri- discretion by admitting its the affidavit judgment, asserting al insufficiency court’s case, entirety. But its Id. this the evidence and error the trial challenged are not affidavits business-rec- court’s admission of three affidavits. They ord affidavits. are offered busi- support proof The offered to CACH’s if ness records themselves. And we even wanting respects. claim in many is affidavits, analyze them as business-record majority concludes that the trial court’s challenged portions clearly exceed the judgment should be and the reversed case Kaldis, scope of such affidavits. Unlike for a new based on remanded trial which the affiant testified as to details hearsay admission of erroneous evidence. records, directly related to business But is no there need to reach this issue West, challenged portions Pellic- ciaro, proffered because the which proof, consists and Plummer Affidavits refer to the statements, largely conclusory is Ortega’s sale account from Bank of America to a fact which com- insufficient establish the *12 634 settle, adjust, and ty compromise, to satis- Consequently, to CACH. account support to Bank of America fy insufficient the account and that legally is
evidence in favor of judgment court’s no further in this account for trial has interest and rendition CACH, warranting reversal any purpose.” in favor of take-nothing judgment of a Affidavit, Plummer As reflected in the Ortega. by bank employed Plummer is as a officer to be purports Exhibit Plaintiffs America, NA, of interest Bank successor signed by affidavit and is records business Bank, The Affi- to MBNA NA. (hereinafter “Exhib- of CACH Magic West following davit includes the statements 1”). that, affidavits issue three At pertinent part: documents, are attached with other along (cid:127) payable That there is and from due Magic of to 1: a second affidavit Exhibit August Richard G. as of (the Affidavit”), Pellic- Debra “West West $13,741.73 “the of with- sum (the Affida- “Pellicciaro ciaro’s affidavit chargeable standing legally post [sic] vit”), affidavit Elisabeth Plummer’s and interest, charge-off pursuant to the (the Affidavit”). The trial court “Plummer agreement of the member terms card (in entirety) into Exhibit its admitted Bank with of America.” Ortega’s objections. over (cid:127) and agreement “That said account Affidavit, in the West West As reflected sold, was, transferred, on 8/18/2009 for agent is an authorized that she states CACH, LLC, and set over unto with of records CACH. The and a custodian perform full all authority to do following state- includes the Affidavit West collection, necessary acts for settle- part: pertinent ments ment, adjustment, compromise or sat- (cid:127) agent and custodian of authorized “As isfaction of the said claim.” [CACH], for I records the business (cid:127) “That as a of the sale of said result knowledge upon based have personal account, LLC, its au- and/or pro- review of documentation agent, complete authority thorized has (attached original by the creditor vided settle, adjust, compromise, to and sat- hereto) that, just after all and lawful isfy same that Bank of America had offsets, payments, and credits have any account further interest in this for allowed, the balance on total been purpose.” $13,741.73 just and is true [Ortega] owing and is due Insufficiency of the Evidence [CACH].” Assignment the Account (cid:127) just payment of the “Demand [Ortega] owing [CACH] amount Ortega asserts in his second issue [Ortega] more than made granting court the trial erred (30) days filing of thirty prior in favor of because CACH original pay- petition, [CACH’s] the account is owing just for the amount has ment reviewing insufficient. When not been tendered.” evidence, sufficiency we legal consid- light most Affidavit, er the evidence in the favorable In the Pellicciaro Pellicciaro challenged finding indulge ev- to the Bank of employed states that she America, ery sup- reasonable inference as a result “[t]hat NA states Wilson, accounts, City it. See Keller port said the sale of and/or (Tex.2005). We authori- must agent, complete its authorized *13 credit favorable evidence if a reasonable and true and is due and owing from [Orte could, disregard factfinder contrary ga] to To the [CACH].” extent West evidence unless a reasonable factfinder states that the account was assigned to could not. Id. at 827. We must determine CACH, purely this is a conclusory state whether the evidence at trial would enable ment that is not sufficient to support the reasonable and people fair-minded to find B.Z.B., trial court’s judgment. See Inc. v. the facts at issue. See id. The factfinder Clark, 14-11-00056-CV, No. 2012 WL only is the judge credibility of witness 353783, at *2-3 (Tex.App.-Houston [14th only judge give weight to the testi- 2, 2012, Feb. pet.) Dist.] no (holding that mony. See id. at 819. conclusory statement in affidavit did not issue) (mem. genuine raise a fact op.);
The granted trial court in fa Poon, 14-08-01134-CV, Chea v. No. 2010 vor upon of CACH based its breach-of- 4684711, WL at *6 (Tex.App.-Houston contract claim regarding the credit-card 18, denied) 2010, Nov. [14th Dist.] pet. allegedly was assigned to (holding that conclusory statements affi party seeking CACH. As the to recover on issue) davits did not genuine raise a fact it, allegedly assigned debt to CACH had (mem. addition, op.). In West states that prove the burden to in ques the debt gained she tion, personal her fact, knowledge based assigned to CACH. See upon the review of Davis, Delaney 445, v. documents from 448-49 Bank of America that 2002, (Tex.App.-Houston contained in the [14th Dist.] Thus, Plaintiffs 1. Inc., Exhibit if pet.); Pape I.C.S., these Equip. Co. v. docu 397, ments are insufficient to (Tex.App.-Houston show that [14th n.r.e.). account was writ any Dist.] ref'd There was by statement testimony no oral West that these at trial documents regarding the prove assignment such an assignment issue. would not only allow a reasonable factfinder to arguably find that such an would raise a fact issue regarding B.Z.B., Inc., occurred. See assignment is Exhibit l.1 This exhibit does *2-3; Chea, WL at any contain assignment or bill of sale WL 4684711,at *6. or other instrument purporting assign any debt or account to CACH. Other than Affidavit, In the Pellicciaro Pellicciaro West, the two affidavits executed this states “[t]hat as result of the sale of said exhibit does not contain any document accounts, CACH its authorized and/or generated by employee an of CACH. The agent, complete settle, authority to purported business-records affidavit exe adjust, compromise, and satisfy the ac- cuted speak West does not to the as count and that Bank of America has no signment issue. further interest in this account for any
The West Affidavit states that West has purpose.” Pellicciaro does not indicate to personal knowledge based her review which account or accounts she is referring of the attached documents that “after all when she uses the terms “said accounts” offsets, just and payments, lawful and “the account.” Pellicciaro does not allowed, credits have been the total bal- refer to or Ortega account in $13,741.73 ance on the account of just is any part of her affidavit. Pelliceiaro does Although Ortega raises improperly numerous evidentia- Approx. admitted. ry challenges regarding admissibility $14,980 State, 190 n. 6 exhibit, review, legal-sufficiency this in a we (Tex.App.-Houston pet.). [14th Dist.] including consider all evidence evidence that sold, these a statement Ortega’s account was whether records contain not state transferred, sold, But, transferred, that this account was or assigned to CACH. or testified, does assigned to CACH. Nor had so Pellicciaro if she even whether her conclusion show, indicate she bases suggest, even or does not state making reviewing inferences she knowledge have personal how she would Plummer does not the bank’s records. Therefore, any such state regard. this *14 what, if in Bank of Amer- anything, state be insufficient. legally ment (Tex. ica’s records indicates that this account Arias, 666, Kerlin v. sold, transferred, assigned was or to 2008) (holding showing that an affidavit Plummer does not state whether CACH. in knowledge personal basis for in particular there is a code or notation sufficient). indicating bank’s records that the account Affidavit, Plummer Plummer In the sold, transferred, assigned or was to that, agree- August states on conclusion, Plummer a provides CACH. “sold, were question ment and account might support no facts that this con- but transferred, CACH, unto and set over clusion. LLC, authority perform full to do and with have example, might For Plummer re- collection, necessary settle- all acts viewed a document in Bank of America’s ment, or satisfac- adjustment, compromise that records contained a list accounts Plum- Although said claim.” tion of the each, next to no mention and date with that general mer makes a assertion “the sale, transfer, any assignment or to made Affidavit statements in this are have might and Plummer conclud- computerized copy on the and hard based this all ed based on document that ac- America,” records books and of Bank counts listed were and transferred sold that not all is clear in Plummer’s Affidavit Or, on the dates listed. respective affidavit are taken of the statements might any the Bank’s records not contain records.2 Plum- from the bank’s business express documents or indica- personal not state she has mer does assigned, tion that this was account but knowledge regarding the statements her may Plummer be her conclusion basing affidavit, any that she reviewed Bank has regard- the fact that or entries documents records, of America or that statements part account in a ing this were maintained upon are her in the affidavit based review of the bank’s in which records documents Presum- any Bank of America records. placed are or entries accounts that it is reasonable to infer that her ing assigned to If Plummer’s CACH. conclu- review, upon are such statements based these, sion is based on such as deductions provide any facts as Plummer does not deductions, any does or other Plummer not why Ortega’s she concludes that account the basis she upon state which deduced Plum- and transferred to CACH. was sold her conclusion from what she observed in say Bank of mer does not America’s America’s Bank of records. as- contain a bill of sale or other records sum, Ortega’s testify ac- In signment document which Plummer does not sold, transferred, assigned any or was involved in transaction re count is she garding Ortega’s Plummer not or that she CACH. does address account affidavit, example, in her submitted to the for review.” 2. For court These her affidavit be treated as states that “is to statements could not be based Bank of original purposes” and that for all [contract] America’s business records. discovered, any originals they will "if be facts); Ortega’s Chea, knowledge provide supporting as whether personal WL sold, transferred, that, was *6 (holding at if statement not state that she to CACH. Plummer does performed contract, defendant had under a Bank of America’s records re reviewed sale, there would have been foreclosure account, Ortega’s nor does she garding Partners, conclusory); CA may she provide copies documents (holding at 63 pay statement the last have reviewed. Even if Plummer conduct ment on note at issue received from review, such a she what ed does state the maker was for in May received $111.50 records, observed in these nor she does 2004, conclusory because it stated a how she explain she what observed leads conclusion provide and did not supporting Ortega’s her to conclude that account was facts); Southtex 66 Pipeline Spoor, Co. v. August sold and transferred to CACH on (Tex.App.-Houston 544-45 *15 18, possible is 2009. It Plummer did denied) 2007, pet. [14th (holding Dist.] any not review documents Orte statement regarding pipeline company’s ga’s basing account and that she is her status with the Railroad Commission conclusion and statements on the fact that upon “printout” based from the Railroad by she was told someone else that these conclusory Commisssion was because it are true and she believes that statements a provide stated conclusion and did not event, it person. any important In is facts); supporting Gajewsky Estate v. of the factfinder provide with Co., Hancock John Ins. No. 14-04- Life conclusion; underpinning facts her other (Tex. 00748-CV, 1017628, 2005 WL *3 at wise, no of factfinder has 2005, App.-Houston 3,May [14th no Dist.] making finding facts to evaluate in as to (holding pet.) par statement that certain proved Ortega’s whether ac ties entered into a contract connection assigned If count was to CACH. a witness with the of poli issuance certain insurance provide provides a conclusion but does not conclusory). cies was conclusion, underlying support facts to accept conclusory Courts decline to such testimony conclusory then witness’s is because, proof statements as without fac to legally support judg insufficient such support, tual statements are not sus ment. Spears, See CA Partners v. 274 ceptible being readily to controverted. 51, (Tex.App.-Houston 63 [14th Ryland Group, at 122. See 924 S.W.2d denied). 2008, pet. Because Plum- Dist.] Plummer failed to for the explain basis facts, provide mer failed to such her state facts, to identify statements failed conclusory ment is insufficient much less link facts to the stated conclu support judgment. to the trial court’s See prove nothing. sions. Bare conclusions Hood, Ryland Group 120, v. 122; Ryland Group, See 924 S.W.2d at (Tex.1996) (holding affiant’s statement B.Z.B., Inc., 353783, *2-3; 2012 WL at that certain conduct constituted intentional Chea, 4684711, *6; 2010 WL at Part CA or willful misconduct defendant was ners, 63; Pipe 274 S.W.3d at Southtex 66 conclusory because it stated a conclusion Co., 544-45; line 238 S.W.3d at Estate of facts) provide did supporting (per 1017628, Gajewsky, 2005 WL at *3. B.Z.B., curiam); Inc., 353783, 2012 WL at The that, majority cites case from this (holding *2-3 statement as a direct court, contract, party’s Company result of a of Prudential Insurance breach of Black, 379, to right alleg claimants lost contest an America v. edly judgment, conclusory (Tex.App.-Houston erroneous was no [14th Dist.] writ), proposition because it stated a conclusion and did not for the that Plummer See question assigned were to CACH. assignment sale and testify to the could Abrego Management without Harvest provid- to Credit Ortega’s account CACH VII, LLC, 13-09-00026-CV, proposi- This 2010 WL documentary evidence.3 No. ing correct, tion, does not address while (Tex.App.-Corpus at *2-3 Christi testimony affidavit is 29, 2010, whether Plummer’s Apr. pet.) (concluding suing to collect on conclusory. Parties alleged by employee of affidavit executed may prove assign- accounts assigned assignee credit-card account failed assignment docu- by providing the ment assigned, establish that account was ever testimony. Though ments related despite conclusory contained statements assignment docu- copies of the providing (mem. affidavit) Part- op.); CCR Unifund testimony providing not required, ments is 05-08-01575-CV, Loco, ners v. No. conclusions, facts, prove than rather *4 Dec. (Tex.App.-Dallas WL at required. Ryland 17, 2009, pet.) (holding that evidence 122; Inc., at Group, 924 S.W.2d to raise fact issue as insufficient Chea, *2-3; 2010 WL at WL alleged whether account 4684711,at *6. assignee, though contained even requiring proof alleged of as- purpose employee affidavit executed *16 against a defendant signment assignee containing conclusory is to state- protect ments) actually (mem. Partners, subsequent party action op.); CA the account. entitled to recover on CACH (holding that the S.W.3d at 63 statement in claiming the shoes of the to stand last on the note received payment at issue agreement enforce an original creditor and from the maker was received $111.50 is a Ortega, but there fundamental against 2004, conclusory in was and did not May at a threshold proof failure of CACH’s raise because a conclu- fact issue it stated not show that it is the level. CACH did facts); provide supporting sion and did that it purchased owner of account Co., at Pipeline Southtex 66 the account. A bare assertion is insuffi- pipe- (holding 544-45 statement assignment under Texas prove cient to line status with the Railroad company’s neither assign- law. offered “printout” Commission based assign- ment nor that would show facts conclusory was Railroad Commission irregularity petty ment. This is not a but fact did not raise issue because proof goes that the heart of failure provide stated a conclusion did not claim. CACH’s facts); supporting Skipper v. Man- Chase N.A., USA, Bank No. 09-05-0196- light the evidence hattan Considering CV, 668581, (Tex.App.- WL at *1 challenged finding, to the most favorable 2006, 16, (holding pet.) that Beaumont Mar. no indulging every reasonable inference it, crediting legally evi- that was insufficient support favorable evidence could, plain- was assigned if a factfinder show that account dence reasonable tiff) (mem. op.); Gajewsky, Estate disregarding contrary evidence unless a not, that (holding could the trial WL at *3 statement reasonable factfinder evidence enable reasonable and certain entered into a contract parties would not in- certain fair-minded to find that the ac- connection with issuance of people conclusory was and did policies count and claim surance breach-of-contract Company Black Insurance America case involved best Prudential Black, (Tex.Civ.App.- 380-81 rule and involve as to did not issue 1978, writ). any testimony conclusory. [14th Dist.] whether Houston issue). fact not raise See also Geiselman Inc., Financial Group,
v. Cramer (Tex.App.-Houston 536-38 pet.) (holding Dist.]
[14th that al- prove insufficient to assignee
leged of notes was the owner of notes, despite conclusory statements affidavit). effect in this rea- For
son, claim CACH’s fails.
Conclusion
The evidence is insufficient
support the trial finding court’s claim in breach-of-contract
question were Ac- to CACH. this court Orte-
cordingly, should sustain issue,
ga’s second reverse the trial court’s
judgment, and render take nothing against on its claim not,
Ortega. Because the court does I
respectfully dissent.
HARRIS COUNTY FRESH WATER
SUPPLY NO. DISTRICT
Appellant DEVELOPMENT, LTD, Appellee.
FWO
No. 14-12-00496-CV. Texas, Appeals
Court of (14th Dist.).
Houston
Jan.