The Dallas Court of Appeals offers another good reminder on the
requirements for summary judgment evidence in National Health Resources Corp. v. TBF
Financial,1 decided on March 27.
The background of the case shows how presenting personal knowledge
of a business account can sometimes be difficult: NHRC, the
defendant, originally leased its copier from Konica. Konica sold
the lease to CIT, which sold it to TBF. When NHRC defaulted, TBF
sued and was granted summary judgment based on an affidavit from a
manager at TBF. NHRC challenged TBF's summary judgment
evidence, primarily complaining about the affiant's personal
knowledge of the contractual relationship and account history. (One
can see how this same issue might arise in a lender-borrower or
landlord-tenant dispute when the plaintiff is an assignee of the
original obligation.)
The court found the TBF's affidavit sufficient for summary
judgment for the following reasons:
Hearsay. That an affidavit contains hearsay is an
objection to the form of the affidavit and must be raised in the
trial court to be preserved on appeal.
Assignment of the Lease. The affiant stated that
he was a manager of TBF and was involved in the transaction by
which TBF came to own the lease. He reviewed records in the course
of the transaction that reflected the chain of assignments of the
lease to TBF. TBF was not required to file supporting documentation
of the transfer.
Account History. The affiant stated that in the
course of his work he had become familiar with the record-keeping
systems of Konica, CIT, and TBF. His experience was sufficient to
show personal knowledge to qualify the account documents as
business records, on which he relied in calculating the amounts
due. (Reliance on business records does not violate the
personal-knowledge requirement.)
Business Records. Konica's and CIT's
business records qualify as TBF's business records because they
were (1) incorporated and kept in the course of TBF's business;
(2) TBF relies on their accuracy; and (3) the circumstances
otherwise indicate their trustworthiness.
Footnote
1 No. 05-13-00351-CV (Tex. App.—Dallas March 27, 2014, no pet. h.).
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