OPINION
Opinion By
Pro se appellant Tom F. Stone (Stone) appeals the trial court’s final summary judgment in favor of appellee Midland Multifamily Equity REIT (Midland). In three issues, Stone contends the trial court erred in granting Midland’s motion for summary judgment, the trial court abused its discretion by overruling Stone’s objections to the sufficiency of Midland’s sum
Background
Midland filed suit against Stone Rock-wall, Rockwall Commons, and Stone. Midland alleges it entered into an Amended and Restated Limited Partnership Agreement of Rockwall Commons Associates, Ltd. (Partnership Agreement) with Stone Rockwall Properties, LLC (Stone Rock-wall), whereby Midland was admitted as a limited partner and Stone Rockwall was admitted as the general partner of Rock-wall Commons Associates, Ltd. (Rockwall Commons). Midland alleges that in a related transaction, Stone Rockwall and Stone executed an Unconditional Guaranty and Indemnification Agreement (Guaranty). According to Midland, pursuant to the Guaranty, Stone Rockwall and Stone unconditionally guaranteed the payment, performance, and satisfaction of Stone Rockwall’s obligations to Midland provided for in the Partnership Agreement.
Midland sued Stone Rockwall and Rock-wall Commons for breach of the Partnership Agreement, including allegations that Stone Rockwall and Rockwall Commons failed to make “Preferred Return” payments to Midland under the Partnership Agreement. Midland sued Stone Rockwall and Stone for breach of the Guaranty, alleging they failed to pay Midland the “Preferred Return” provided for in the Partnership Agreement as they had guaranteed.
Midland moved for summary judgment under rule of civil procedure 166a(c). The trial court granted Midland summary judgment on its claims against Stone Rockwall, Rockwall Commons, and Stone. In its final judgment, the trial court ordered that Midland recover: $937,257 jointly and severally from Stone and Stone Rockwall; $329,027 jointly and severally from Stone, Stone Rockwall, and Rockwall Commons; $1,272,900 in liquidated damages from Stone Rockwall; $3,815,000 from Rockwall Commons; and, post-judgment interest on the amounts awarded in the judgment jointly and severally from Stone, Stone Rockwall, and Rockwall Commons. Stone appealed the judgment against him individually. 1
Standard of Review
The standard of review for a “traditional” summary judgment is well known.
See Nixon v. Mr. Prop. Mgmt. Co.,
Discussion
We first address Stone’s second issue, because it impacts our determination of Stone’s other issues. In his second issue, Stone asserts the trial court erred in overruling his objections to the sufficiency of Midland’s summary judgment evidence.
In support of its motion for summary judgment, Midland relied upon two affidavits: (1) the affidavit of Gary C. Beck, with attached copies of the Partnership Agreement, the Guaranty, and a chart purportedly detailing the calculation of “various damages incurred by Midland,” and (2) the affidavit of Jennifer Butler Wells, with an attached copy of the requests for admissions that Midland asserted it served on Stone Rockwall, Rockwall Commons, and Stone through their attorney at the time.
In response to Midland’s motion for summary judgment, Stone objected to Midland’s summary judgment evidence as legally insufficient. Stone objected to Beck’s affidavit because Beck failed to establish personal knowledge of the matters set forth in his affidavit. On appeal, Stone contends that in his response to Midland’s motion for summary judgment he also objected to Beck’s affidavit, at least in part, as constituting inadmissible hearsay. Midland contends Stone failed to preserve error as to his objections to Midland’s summary judgment proof because Stone did not obtain rulings from the trial court on his objections to Beck’s affidavit.
For purposes of preservation of error, an appellate court treats a party’s objections to defects in the “form” and the “substance” of an affidavit differently. A defect in the substance of an affidavit is not waived by failure to obtain a ruling from the trial court on the objection and may be raised for the first time on appeal.
McMahan v. Greenwood,
As to Midland’s contention that Stone failed to preserve error regarding any hearsay objection, we agree. An objection that an affidavit contains hearsay is an objection to the form of the affidavit.
Green v. Indus. Specialty Contractors,
In his affidavit, Beck attested that he is “competent to testify, based upon personal knowledge, to the facts” set forth in his affidavit. He testified:
I am a Senior Vice President and Managing Director of Seminole Advisory Services, LLC, which is the Exclusive Advisor to MMA Multifamily Equity REIT, formerly known as Midland Multifamily Equity REIT (“Midland”).
Beck then attested to facts regarding (1) execution of the Partnership Agreement and the Guaranty, (2) obligations under those documents, (3) performance of obligations under those documents by Midland, (4) alleged defaults under those documents by Stone Rockwall, Rockwall Commons, and Stone, and (5) amounts allegedly owed Midland by Stone and Stone Rockwall for unpaid “Preferred Returns” and interest on unpaid “Preferred Returns,” liquidated damages allegedly owed Stone Rockwall to Midland, and a capital contribution Rockwall Commons is allegedly obligated to repay Midland. ■
An affidavit must disclose the basis on which the affiant has personal knowledge of the facts asserted.
Radio Station KSCS v. Jennings,
We disagree with Midland’s argument that Beck “described his relationship with the case so that it may be reasonably assumed that he has personal knowledge of the facts” to which he attests. Beck’s affidavit does not describe what activities or responsibilities were encompassed with
A summary judgment “affidavit’s failure to demonstrate a basis for personal knowledge renders it incompetent summary judgment evidence.”
Campbell v. Campbell,
No. 03-07-00672-CV,
We overrule Stone’s second issue in part with regard to any hearsay objections to Midland’s summary judgment evidence. We sustain Stone’s second issue in part with regard to his objection that Beck’s affidavit is legally insufficient to support Midland’s summary judgment.
In his first and third issues, Stone contends the trial court erred in granting Midland summary judgment on Midland’s claim of breach of the Guaranty because there are genuine issues of material fact. Having concluded that Beck’s affidavit is legally insufficient to support the factual allegations against Stone in Midland’s summary judgment motion, the summary judgment was improper unless some other competent summary judgment evidence conclusively supported Midland’s allegations or at least supplied the missing basis for Beck’s claim of personal knowledge.
See Campbell,
In its motion for summary judgment, Midland relied upon the affidavit of its attorney, Wells, regarding purportedly deemed admissions. Wells attested that the requests for admissions- attached to her affidavit were served on the attorney then representing Stone Rockwall, Rock-wall Commons, and Stone. In response to Midland’s motion for summary judgment, Stone Rockwall, Rockwall Commons, and Stone submitted the affidavit of the attorney upon whom Midland’s requests for admissions allegedly were served, attesting that he had not received the requests for admissions.
See
Tex.R. Civ. P. 198.2(a) (party must answer request for admission within certain period of time after service of the request);
Payton v. Ashton,
At the hearing on Midland’s motion for summary judgment, Midland acknowledged that the affidavit testimony of the attorney who previously represented Stone Rockwall, Rockwall Commons, and Stone contested Midland’s service of the requests for admissions.
See Valence Operating Co. v. Dorsett,
Despite Midland’s representation to the trial court at the hearing of its motion for summary judgment that it was not asserting the deemed admissions supported its motion, Midland contends on appeal that the deemed admissions provide an independent basis for affirming summary judgment against Stone for breach of the Guaranty. We disagree.
Midland has not challenged the trial court’s failure to consider Stone’s purportedly deemed admissions, and the admissions excluded by the trial court are not part of the summary judgment evidence to be considered on appeal.
See Phillips v. Am. Elastomer Prods., L.L.C.,
As the movant in a “traditional” summary judgment motion against Stone for breach of the Guaranty, Midland must establish that no material fact issues exist on that breach-of-contract claim and must conclusively prove all elements of that claim as a matter of law.
See
Tex.R. Civ. P. 166a(c);
see also Sprayberry,
Having concluded Beck’s affidavit was legally insufficient and Wells’s affidavit with the attached requests for admissions is not part of summary judgment evidence to be considered by this Court on appeal, we conclude Midland failed to present competent summary judgment proof that conclusively established each of the elements of its claim against Stone for breach of the Guaranty. Therefore, we conclude the trial court erred in granting summary judgment against Stone. See Tex.R. Civ. P. 166a(c). We sustain Stone’s first and third issues.
Conclusion
We reverse the trial court’s judgment in part as to Stone, and we remand this cause
Notes
. In his brief, Stone identifies appellants as Stone Rockwall, Rockwall Commons, and Stone. Stone Rockwall did not appeal the judgment against it. Further, Stone’s amended notice of appeal deleted Rockwall Commons from tíre appeal, and Stone acknowledged at submission that he does not represent Rockwall Commons. Accordingly, we do not consider any arguments Stone makes on appeal as to the judgment against Stone Rockwall or Rockwall Commons.
. According to Beck, MMA Multifamily Equity REIT was formerly known as Midland Multifamily Equity REIT, the summary judgment movant.
. Had the purportedly deemed admissions been considered by the trial court, we further note our disagreement with Midland's contention that the admissions provide an independent basis for affirming the summary judgment against Stone. Midland asserted in its motion for summary judgment that there were deemed admissions that Rockwall Commons had not paid Midland the "Preferred Return” under the Partnership Agreement since September 6, 2006, that neither Stone Rockwall nor Rockwall Commons had paid Midland the required interest on delinquent “Preferred Returns” under the Partnership Agreement since September 6, 2006, and that neither Stone nor Stone Rockwall had paid Midland the required "Preferred Return” under the Guaranty. However, there are no admissions setting out the amount or amounts for breach of the Guaranty for which Stone allegedly is indebted to Midland. The admissions could provide no summary judgment evidence to support the damage recoveries against Stone in the final judgment. Without the affidavit of Beck as summary judgment evidence, the purportedly deemed admissions would not support the summary judgment against Stone.