Allan R. Avery v. LLP Mortgage, Ltd.

Opinion issued October 29, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-01007-CV
———————————
ALLAN R. AVERY, Appellant
V.
LPP MORTGAGE, LTD., Appellee
On Appeal from the 127th District Court
Harris County, Texas
Trial Court Case No. 2011-65958
MEMORANDUM OPINION
Appellant, Allan R. Avery, appeals the trial court’s grant of summary
judgment in favor of appellee, LPP Mortgage, Ltd. [LPP], on two notes guaranteed
by Avery. We affirm in part and reverse and remand in part.
BACKGROUND
On June 26, 2006, Centamark Luxury Homes, Ltd. [Centamark] executed
two promissory notes to New South Federal Savings Bank [New South]. Note 1
was in the amount of $1,692,750.00 and Note 2 was in the amount of $775,600.
On the same day, Avery executed personal guarantees of the notes to New South.
In December 2009, New South was closed by the Office of Thrift
Supervision, and the Federal Deposit Insurance Corporation [FDIC] was appointed
as receiver. The FDIC sold a portion of New South’s assets, including the notes
and guarantees, to Beal Bank. Beal Bank, in turn, transferred the notes and
guarantees to LPP.
On October 31, 2011, LPP filed suit against Avery, alleging breach of the
notes and their accompanying guarantees. On January 15, 2011, LPP filed its
Second Amended Motion for Summary Judgment, which the trial court granted.
This appeal follows.
PROPRIETY OF SUMMARY JUDGMENT
On appeal, Avery contends the trial court erred in granting summary
judgment (1) after failing to sustain Avery’s objections to LPP’s summary
judgment evidence; (2) because LPP’s summary judgment evidence is insufficient
to establish its capacity to sue Avery; (3) because the summary judgment evidence
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is insufficient to support an award of attorney’s fees to LPP; and (4) because the
summary judgment evidence is insufficient to establish LPP’s damages.
Standard of Review
We review de novo the trial court’s ruling on a summary judgment motion.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). To prevail on a traditional motion for summary judgment, a movant
must establish that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort, 289 S.W.3d
at 848. We review all the evidence in the light most favorable to the nonmovant,
crediting favorable evidence if reasonable jurors could do so, and disregarding
contrary evidence unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d
at 848. We must indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.
2002). If the movant meets its burden, then the burden shifts to the nonmovant to
raise a genuine issue of material fact precluding summary judgment. See Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Evidentiary Objections
In his first issue, Avery contends the trial court erred by not sustaining his
objections to the affidavit of Tom Martin, which was attached to LPP’s motion for
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summary judgment. Specifically, Avery objects to the following assertions in
Martin’s affidavit:
1. “CLMG Corp. is the authorized loan servicer for LPP Mortgage
Ltd.”
2. “the Office of Thrift Supervision ordered the closing of New South
. . . and the Federal Deposit Insurance Corporation (“FDIC”) was
appointed Receiver for New South”
3. “LPP Mortgage Ltd is the legal owner and holder of Note 1”
4. “LPP Mortgage Ltd. is the legal owner and holder of Note 2”
Although not clear from his brief, to the extent that Avery is complaining about
defects in the form of the affidavit, his complaints are waived because he did not
obtain written ruling on his objections. Dolcefino v. Randolph, 19 S.W.3d 906,
925–27 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). However, to the
extent that Avery is complaining that these statements were conclusory, such
objection is a defect as to the substance of the affidavit, and can be made at any
time. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235,
241 (Tex. App.—Waco 2003, no pet.) (holding that conclusory affidavit is
substantively defective.).
“A conclusory statement is one that does not provide the underlying facts to
support the conclusion.” Choctaw Props., L.L.C., 127 S.W.3d at 242 (quoting
Rodriguez v. Wal–Mart Stores, Inc., 52 S.W.3d 814, 823 (Tex. App.—San Antonio
2001), rev’d on other grounds, 92 S.W.3d 502 (Tex. 2002)). As such, a conclusory
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statement is not proper summary judgment proof. Rizkallah v. Conner, 952
S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ). Thus, we
examine the summary judgment evidence provided in support of the alleged
conclusory statements.
1. “CLMG Corp. is the authorized loan servicer for LPP Mortgage Ltd.”
Avery argues that there is no personal knowledge or evidentiary support for
the above-referenced statement by Martin. However, this sentence of the affidavit
provides in its entirety:
I [Tom Martin] am, and at all time material hereto, have been
employed by CLMG Corp. as a Portfolio Manager. In that position, I
am aware that CLMG Corp. is the authorized loan servicer for LPP
Mortgage Ltd. (referred to as “LPP”), and custodian of records
relating to the loans at issue discussed below. I am authorized to
make this affidavit on behalf of CLMG Corp., and on behalf of LPP.
When, as here, an affiant’s summary-judgment affidavit contains testimony
that identifies his status as a record’s custodian and establishes his relationship
with the facts of the case in a manner sufficient to demonstrate the facts at issue,
the personal knowledge requirement for summary judgment affidavits may be
satisfied. See Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 360–61
(Tex. App.—Dallas 2007, pet. denied) (holding affiant’s testimony that she was
both a foreclosure specialist and custodian of records for mortgagee with respect to
mortgagor’s loan was sufficient to identify the custodian’s position and
responsibilities, meeting personal knowledge requirement); Stucki v. Noble, 963
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S.W.2d 776, 780 (Tex. App.—San Antonio 1998, pet. denied) (holding personal-
knowledge requirement was satisfied when affidavit sufficiently described
relationship between affiant and the case so that it may have been reasonably
assumed that she had personal knowledge of facts stated in her affidavit).
Here, Martin’s affidavit identified himself as a Portfolio Manager for
CLMG, and, because of that position, as well as his position as its custodian of
records, he was aware that CLMG Corp. was the authorized loan servicer for LPP.
This information was sufficient to demonstrate Martin’s personal knowledge of the
challenged assertion.
2.“the Office of Thrift Supervision ordered the closing of New South .
. . and the Federal Deposit Insurance Corporation (“FDIC”) was
appointed Receiver for New South”
In his affidavit, Martin states that his knowledge regarding the above-
referenced statements was based on several documents that were attached to his
affidavit. Specifically, Exhibit A to Martin’s affidavit is what Martin describes as
a “true and correct copy of the Notice . . . that on December 18, 2009, the FDIC as
Receiver for New South sold certain assets to Beal Bank and all rights arising from
those assets[,].” and is a printout of a press release from the FDIC website. It is
from the same website as Exhibit 2 of Victor C. Serafino’s1 affidavit, which was
1
Serafino was an attorney for LPP at trial, and his affidavit explains how many of
the documents filed in support of LPP’s motion for summary judgment were
accessed through government websites.
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also attached as LPP’s summary judgment evidence. In his affidavit, Serafino
explains how he accessed the FDIC website and provides a URL address for the
same.
Exhibit B to Martin’s affidavit is what he alleges is a “true and correct copy
of the redacted Purchase and Assumption Agreement[.]” Exhibit B to Martin’s
affidavit is the same as Exhibit 3 of Serafino’s affidavit, and Serafino explains that
he obtained the Purchase and Assumption Agreement by accessing the FDIC’s
website, and again he provides a URL address for the same.
On appeal, Avery argues that “[n]either Exhibit “A” nor Exhibit “B” [to
Martin’s affidavit] were properly identified or authenticated[,]” and, as such, have
no evidentiary value. He also objects to Serafino’s affidavit, particularly Exhibits
1, 2, 3, and 4—all printouts from the FDIC’s website—for the same reason.
We begin by noting that a properly authenticated affidavit, such as those by
Martin and Serafino, in combination with an unauthenticated attachment, is a
defect in form and can be waived. Kotzur v. Kelly, 791 S.W.2d 254, 256 (Tex.
App.—Corpus Christi 1990, no writ); Oglesby v. Land Title Co. of Dallas, No. 05-
91-00076-CV, 1992 WL 35820, *3 (Tex. App.—Dallas Feb. 27, 1992, no writ)
(not designated for publication). Because Avery did not obtain a ruling on this
objection as to form, his complaint about the lack of authentication of the exhibits
is waived. See Dolcefino, 19 S.W.3d at 925–27.
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Additionally, we note that the documents in both challenged exhibits were
obtained from the FDIC’s website. Texas Rule of Evidence 902(5) dictates that
“[b]ooks, pamphlets, or other publications purporting to be issued by public
authority” are self-authenticating. Id. Thus, under Rule 902(5), documents printed
from government websites are self-authenticating. Williams Farms Produce Sales,
Inc. v. R & G Produce Co., 443 S.W.3d 250, 259 (Tex. App.—Corpus Christi
2014, no pet.). “[B]ecause records and information located on government
websites are self-authenticating under Federal Rule of Evidence 902, [a] court may
take judicial notice of them.” Newton v. Holland, 2014 WL 318567, at *1 n.1
(E.D. Ky, Jan. 29, 2014) (mem. op.). For the same reason, the Fifth Circuit has
determined that courts may take judicial notice of governmental websites. See Kitty
Hawk Aircargo, Inc. v. Chao, 418 F.3d 453, 457 (5th Cir. 2005) (taking judicial
notice of approval by the National Mediation Board published on the agency’s
website); Coleman v. Dretke, 409 F.3d 665, 667 (5th Cir. 2005) (per curiam)
(taking judicial notice of Texas agency’s website); see also O’Toole v. Northrop
Grumman Corp., 499 F.3d 1218, 2007 WL 2421754, at *6 (10th Cir. Aug. 28,
2007) (“It is not uncommon for courts to take judicial notice of factual information
found on the world wide web.”) (citations omitted); Denius v. Dunlap, 330 F.3d
919, 926 (7th Cir. 2003) (taking judicial notice of information on official
government website pursuant to Rule 201). Federal courts have taken judicial
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notice of other courts’ websites. See, e.g., Graham v. Smith, 292 F. Supp. 153, 155
n.2 (D. Me. 2003) (taking judicial notice of pleadings located on the internet);
Anderson v. Cal. Bd. of Prison Terms, No. CIV-04-1172, 2007 WL 404900, at *1
(E.D. Cal. Feb. 2, 2007) (unpublished) (taking judicial notice of records from
official website for California Appellate Courts); Collier v. Dretke, No. Civ.A
4:05CV379Y, 2005 WL 1429738, at *1 n.5 (N.D. Tex. June 17, 2005)
(unpublished) (“The Court . . . takes judicial notice of the disposition of Collier’s
seven writ applications in the Texas Court of Criminal Appeals through a search on
its website.”); Booker v. Taft, No. 7:03-CV-263-R, 2004 WL 1253410, at *1 (N.D.
Tex. June 8, 2004) (unpublished) (taking judicial notice that petitioner’s state
habeas petition remained pending based on the Texas Second Court of Appeals’
website). Indeed, federal courts have judicially noticed purchase and assumption
agreements because they were publicly available through the FDIC’s website.
Pascal v. JPMorgan Chase Bank, NA, 2013 WL 878588, at *4 fn.4 (S.D. N.Y.,
Mar. 11, 2013); see also Lemperle v. Washington Mut. Bank, No. 10cv1550–
MMA(POR), 2010 WL 3958729, at *3 (S.D. Cal. Oct. 7, 2010) (taking judicial
notice of order from the Office of Thrift Supervision closing bank and appointing
the FDIC as Receiver, and the Purchase and Assumption Agreement entered
between the FDIC and purchasing bank because “government reports and
publications, including information on the Department of the Treasury and the
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FDIC’s official websites is judicially noticeable”); Yetiv v. Chase Home Fin., LLC,
2012 WL 112597, at *4 n.1 (S.D. Tex. Jan. 11, 2012) (holding that information on
FDIC’s official website was subject to judicial notice).
Because the record demonstrates that the exhibits that Avery contends were
not properly authenticated are, in fact, self-authenticating documents accessed
through a government website, the trial court could have properly considered them
as summary judgment evidence.
3. “LPP Mortgage Ltd is the legal owner and holder of Note 1”
4. “LPP Mortgage Ltd. is the legal owner and holder of Note 2”
Avery also complains that Martin’s statements about LPP being the “legal
owner and holder” of the notes are conclusory. Specifically, Avery contends that
the trial court should have struck the allonges, which were attached as Exhibits C
and E to Martin’s affidavit, and the limited powers of attorney, which were
attached as Exhibits G, I, and J, because the allonges and limited powers of
attorney were not timely produced during discovery.
The record shows that Avery requested the documents on August 3, 2012,
and the trial court granted his motion to compel on December 4, 2012. Avery filed
a second motion to compel, which the trial court denied without explanation on
February 26, 2013. On March 12, 2013, LPP produced the allonges and limited
powers of attorney in its response to Avery’s no-evidence motion for summary
judgment. Ten months later, LPP included the allonges and limited powers of
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attorney in its Second Amended Motion for Summary Judgment, i.e., the motion at
issue in this appeal. Avery contends the trial court should have struck the allonges
and limited powers of attorney from LPP’s summary judgment evidence.
Rule 193.6 of the Texas Rules of Civil Procedure provides:
(a) Exclusion of Evidence and Exceptions. A party who fails to make,
amend, or supplement a discovery response in a timely manner
may not introduce in evidence the material or information that was
not timely disclosed, or offer the testimony of a witness (other than
a named party), who was not timely identified, unless the court
finds that:
(1) there was good cause for the failure to timely make, amend
or supplement the discovery response; or
(2) the failure to timely make, amend or supplement the
discovery response will not unfairly surprise or unfairly
prejudice the other parties.
(b) Burden of Establishing Exception. The burden of establishing
good cause or the lack of unfair surprise or unfair prejudice is on
the party seeking to introduce the evidence or call the witness. A
finding of good cause or the lack of unfair prejudice must be
supported by the record.
(c) Continuance. Even if the party seeking to introduce the evidence
or call the witness fails to carry the burden under paragraph (b), the
court may grant a continuance or temporarily postpone the trial to
allow a response to be made amended, or supplemented, and to
allow opposing parties to conduct discovery regarding any new
information presented by that response.
TEX. R. CIV. P. 193.6. Rule 193.6’s exclusion provision is automatic unless one of
the exceptions applies. See Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285
S.W.3d 879, 881 (Tex. 2009) While the trial court has discretion to determine
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whether a party has met its burden under this rule, a finding of good cause or of the
lack of unfair surprise or unfair prejudice must be supported by the record. Id.; Tex.
Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 817 (Tex.
App.—Fort Worth 2006, no pet.).
By not granting Avery’s objection and motion to strike the challenged
evidence, the trial court necessarily found either (1) good cause, or (2) no unfair
surprise or prejudice, and we will review the record to determine whether the
record supports that implied finding. See Lopez v. La Madeleine of Tex., Inc., 200
S.W.3d 854, 857 (Tex. App.—Dallas 2006, no pet.) (reviewing evidentiary support
for implied finding of no unfair surprise or prejudice).
Here, the record shows, and Avery concedes in his brief, that he obtained the
challenged documents on March 12, 2013—over 10 months before LPP filed its
Second Amended Motion for Summary Judgment on January 15, 2014. As such,
there was sufficient evidence in the record for the trial court to conclude that Avery
suffered no unfair surprise or prejudice when the same documents were included in
LPP’s Second Amended Motion for Summary Judgment. Thus, the trial court did
not abuse its discretion by failing to strike the allonges and limited powers of
attorney.
Having found no abuse of discretion in the trial court’s failure to sustain
Avery’s evidentiary objections, we conclude that the objected-to documents
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provide the necessary factual support such that Martin’s statements are not
conclusory. We overrule Avery’s first issue on appeal.
Sufficiency of Evidence Relating to Capacity
In his second issue on appeal, Avery argues that LPP failed to carry its
summary judgment burden to prove that “(1) New South Federal Savings Bank
went into receivership; (2) the FDIC was appointed as receiver for the New South
Federal Savings Banks; and (3) the two (2) promissory note(s) on which [LPP’s]
claim for breach of contract is based were properly assigned, negotiated, and/or
transferred through [an] unbroken chain of title to [LPP].” Specifically, Avery
once again argues that, absent the documents challenged in its first issue on appeal,
there is no evidence to show LPP’s capacity to bring suit against Avery.
For the same reasons given in overruling issue one, we also overrule issue
two.
Sufficiency of Evidence Relating to Attorney’s Fees
In support of its claim for attorney’s fees under TEX. CIV. PRAC. & REM. CODE
ANN. § 38.001 (West 2015), LPP submitted the affidavit of Victor C. Serafino, who
averred:
1. “My name is Victor C. Serafino. I am over twenty-one (21)
years of age, have never been convicted of a felony or crime involving
moral turpitude, and am fully qualified to make this affidavit. I have
personal knowledge of all the facts recited herein, and those facts are
true and correct.
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2. “I am a partner with the firm of Vincent, Lopez, Serafino &
Jenevein, P.C., which represents [LPP] in the above-captioned
litigation.
3. “I am licensed to practice law by the Supreme Court of Texas
and have been since 1986. I have practiced in the area of commercial
litigation and other litigation since 1986. I am familiar with the
reasonable, usual and customary attorney’s fees charged in this county
in litigation similar to this lawsuit. The hourly rate charge for my
services and other shareholders’ services is $195.00.
4. “After considering the factors set forth in Rule 1.04(b) of
Article 10, Section 9 of the State Bar Rules, including (1) the time and
labor required, the novelty and difficulty of the questions involved,
and the skill requisite to perform the legal services properly; (2) the
likelihood that the acceptance of this representation will preclude
other employment by the firm; (3) the fee customarily charged in this
area for similar legal services; (4) the amount of time involved and
results obtained thus far; (5) the time limitations imposed by the
circumstances of this case; (6) the nature and length of the
professional relationship with the client; (7) the experience,
reputation, and ability of the lawyers performing the services; and (8)
the nature of the hourly fee agreement in this case, it is my opinion
that the services rendered on behalf of [LPP] were reasonable and
necessary.
5. “The legal services rendered in this matter include the
following: review loan documents, prepare foreclosure related
documents and meetings and communications with representatives of
[LPP], review of the file documents, preparation of the Original
Petition, respond to discovery, preparing the Motion for Summary
Judgment and related documents and the actions necessary to obtain
Summary Judgment, and preparing for and responding to discovery.
6. “It is my opinion that attorneys fees in the amount of
$20,000.00 is reasonable and necessary in this action through
obtaining Summary Judgment, and that an additional $5,000.00 of
attorneys fees is reasonable and necessary in the event of an appeal to
the Court of Appeals, and that the sum of an additional $5,000.00
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attorneys fees is reasonable and necessary in the event a petition for
review is sought in the Supreme Court of Texas.”
Notably, although Serafino’s affidavit provides his hourly rate, it does not specify
how many hours he spent on the various tasks alleged.
In issue three, appellant contends that Exhibit 3 to the Second Amended
Motion for Summary Judgment—Serafino’s attorney’s fees affidavit—“fall[s] well
short of the standards for legally sufficient evidence to calculate a reasonable
attorney’s fee award as articulated in El Apple I., Ltd. v. Olivas, [370 S.W.3d 757
(Tex. 2012)].”
This Court has addressed the requirements of an affidavit supporting a
request for summary judgment on attorney’s fees pursuant to article 38.001 as
follows:
The supreme court has recently addressed the specificity required of
an affidavit supporting attorneys’ fees under the lodestar method. See
Long v. Griffin, ––– S.W.3d ––––, No. 11–1021, 2014 WL 1643271
(Tex. April 25, 2014). Under the supreme court’s analysis in Long, the
O’Quinn group’s affidavits were insufficient to support the trial
court’s award.
In Long, the supreme court characterized the attorney affidavit at issue
as “only offer[ing] generalities”:
It indicates that one attorney spent 300 hours on the case,
another expended 344.50 hours, and the attorneys'
respective hourly rates. The affidavit posits that the case
involved extensive discovery, several pretrial hearings,
multiple summary judgment motions, and a four and one-
half day trial, and that litigating the matter required
understanding a related suit that settled after ten years of
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litigation. But no evidence accompanied the affidavit to
inform the trial court the time spent on specific tasks. See
El Apple [Ltd. v. Olivas], 370 S.W.3d [757,] 763 [
(Tex.2012).] The affidavit does claim that 30% of the
aggregate time was expended on the assignment claim
(part of which the Griffins prevailed on) and that the
assignment issue was inextricably intertwined with
matters that consumed 95% of the two attorneys’ time on
the matter. But without any evidence of the time spent on
specific tasks, the trial court had insufficient information
to meaningfully review the fee request. [City of Laredo
v.] Montano, 414 S.W.3d [731,] 736–37 [(Tex. 2013)];
El Apple, 370 S.W.3d at 764.
Boyaki v. O’Quinn & Assocs., PLLC, 2014 WL 4855021, *15 (Tex. App.—
Houston [1st Dist.] Sept. 30, 2014, pet. filed) (quoting Long v. Griffin, 442 S.W.3d
253, 255 (Tex. 2014)). This Court then concluded that the attorneys’ affidavits
were insufficient to support an award of summary judgment on attorneys’ fees
because the affidavits generally described the work done and the total hours spent
thereon, but did not indicate the time expended on specific tasks. Id. at *16.
Here, the Serafino affidavit is even more deficient. While it provides an
hourly rate for the shareholders in the firm and generally describes the work done,
the affidavit does not indicate which attorneys from the firm worked on the case or
how much time they spent on each task. “[A] lodestar calculation requires certain
basic proof, including itemizing specific tasks, the time required for those tasks,
and the rate charged by the person performing the work.” City of Laredo v.
Montano, 414 S.W.3d 731, 736 (Tex. 2013) (citing El Apple, 370 S.W.3d at 762).
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Because such evidence is lacking here, we sustain Avery’s third issue on appeal.
We reverse the judgment as to the request for reasonable and necessary attorney’s
fees and remand for further proceedings regarding this request. See Montano, 414
S.W.3d at 737; El Apple, 370 S.W.3d at 760–64.
Sufficiency of Evidence as to Damages
In his fourth issue on appeal, Avery contends that LPP did not carry its
summary judgment burden to establish its damages. Specifically, Avery complains
that there is no accompanying summary judgment evidence to support claims for
late charges, accrued but unpaid interest, non-legal collection costs, taxes and
insurance, and per diem interest. Avery also complains that Exhibit L to Tom
Martin’s affidavit—a Loan Transaction History Report—contains no information
after a certain date in 2011 and that the interest listed in that exhibit is different
from the amount of interest requested in the summary judgment. These alleged
deficiencies, Avery contends, renders LPP’s summary judgment proof deficient.
To collect on a promissory note, a plaintiff must establish (1) the existence
of the note in question, (2) the defendant signed the note [or as here, the
guarantee], (3) the plaintiff is the owner and holder of the note, and (4) a certain
balance is due and owing on the note. See Geiselman v. Cramer Fin. Group, Inc.,
965 S.W.2d 532, 536 (Tex. App.—Houston [14th Dist.] 1997, no writ); Cockrell v.
Republic Mort., Inc., 817 S.W.2d 106, 111 (Tex. App.—Dallas 1991, no writ). If
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no genuine issue of material fact exists as to any of these elements, plaintiff is
entitled to summary judgment as a matter of law. See TEX. R. CIV. P. 166a(c).
Here, Avery challenges the evidence presented to support the fourth element, i.e.,
the balance due and owing on the note.
The introduction of the note into evidence makes a prima facie case for the
holder. See Clark v. Dedina, 658 S.W.2d 293, 296 (Tex. App.—Houston [1st Dist.]
1983, writ dism’d). Courts have upheld summary judgments based on affidavits
that simply identified a promissory note and a lump sum figure as the principal
balance and interest due and owing by the nonmovant on that note. Thompson v.
Chrysler First Bus. Credit Corp., 840 S.W.2d 25, 28–29 (Tex. App.—Dallas 1992,
no writ); Gen. Specialties, Inc. v. Charter Nat’l Bank–Houston, 687 S.W.2d 772,
774 (Tex. App.—Houston [14th Dist.] 1985, no writ). See TIMOTHY PATTON,
SUMMARY JUDGMENTS IN TEXAS: PRACTICE, PROCEDURE AND REVIEW § 9.06[2][e]
(2d ed. 1996).
LPP’s summary judgment evidence included the original promissory notes,
Avery’s guarantee of those notes, and the transfer of those notes from the FDIC as
receiver for the New South Federal Savings Bank to Beal Bank and then to LPP. It
also attached the affidavit of Tom Martin, an employee of LPP’s loan servicer, in
which he described the notes and the unpaid balance of each, including other
“amounts owed under the terms of the Notes,” such as late charges, unpaid interest
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collections costs, and taxes and insurance. As supporting documentation for his
calculations, Martin attached the business records reflecting all of the transactions
on the loan account from December 1, 2006 through December 1, 2011. Those
entries reflect the loan balance, monthly accrued interest, and offsets for interest
and principal paid on the loan. Avery has not presented any controverting evidence
raising a fact issue as to Martin’s method of computation and the accuracy of his
figures. See 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex. App.—
Houston [14th Dist] 1986, writ ref’d n.r.e); Sharpe Lomas & Nettleton Finan.
Corp., 601 S.W.2d 55, 57 (Tex. App—Dallas 1980, writ ref’d n.r.e.) (stating it was
defendant’s burden to point out any inaccuracy in computation or reasons for
inability to do so). And, the difference in the interest reflected in the Loan
Transaction History Report and that claimed in the summary judgment is clearly
attributable to the 18% interest that continued to accrue as the case proceeded at a
per diem amount of $373.71 on Note 1 and $100.17 on Note 2.
We overrule issue four.
CONCLUSION
Having found reversible error in the portion of the judgment awarding
reasonable and necessary attorney’s fees, we reverse that portion of the judgment
and remand for further proceedings on that issue only. The remaining portions of
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the judgment, except as herein reversed and remanded as to attorney’s fees, are
affirmed.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
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