Dallas Court of Appeals, No. 05-14-00165-CV (March 19, 2015)
Justices Wright, Stoddart, and Schenck (Opinion)
Third time’s a charm. At least that was true for the affidavits supporting summary judgment in favor of the plaintiff Compass Bank in this note case. Compass obtained summary judgment against the debtors, relying on the affidavit of Paula Shaw, but that summary judgment was reversed on the grounds that Shaw had failed to show the basis for her personal knowledge. On remand, Compass tried again, this time relying on the affidavit of Robert Graham, which inexplicably proved up a lower balance due than had the Shaw affidavit. Compass later filed a supplemental affidavit from John Lehman, stating that Graham had made a mistake in his affidavit and attempting to prove up a different balance due. The trial court entered summary judgment in favor of Compass again, and the debtors appealed again, this time arguing that the three conflicting affidavits created a fact issue and failed to prove the amount due on the note. The Dallas Court of Appeals disagreed, holding that the Shaw affidavit could not be considered because it had been ruled in the previous appeal (at the debtors’ urging) to be legally insufficient and that the Lehman affidavit adequately explained the mistake in the Graham affidavit. The Lehman affidavit was therefore competent evidence of the amount due.
