Preview
Electronically Filed
2/27/2024 8:50 AM
Hidalgo County District Clerks
Reviewed By: Taylor Lujan
CAUSE NO. C-2687-23-E
VANTAGE BANK TEXAS § IN THE DISTRICT COURT
PLAINTIFF, §
§
V. § 275TH JUDICIAL DISTRICT OF
§
RODOLFO NAVARRO PLASENCIA §
DEFENDANT. § HIDALGO COUNTY, TEXAS
PLAINTIFF’S OBJECTION TO SUMMARY JUDGMENT AFFIDAVIT OF DEFENDANT
RODOLFO NAVARRO PLASENCIA AND CYNTHIA GUTIERREZ
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW VANTAGE BANK TEXAS (hereinafter “Vantage”), Plaintiff in the above-entitled
and numbered cause, and files this its Objection to Summary Judgment Affidavits of Defendant Rodolfo
Navarro Plasencia and Cynthia Gutierrez, and in support thereof would respectfully show the Court as
follows:
1. ARGUMENT AND AUTHORITY
1.1 Texas Rule of Civil Procedure 166a requires that affidavits from interested witnesses serve as
competent summary judgment evidence only when such affidavits are "clear, positive and direct, otherwise
credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex.
R. Civ. P. 166a; Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per curiam). Rule
166a(f) requires that "supporting and opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is
competent to testify to the matters stated therein." Tex. R. Civ. P. 166a(f). Moreover, the affiant must
affirmatively show how they became familiar with the facts so as to testify as a witness. Villacana v.
Campbell, 929 S.W.2d 69, 74 (Tex. App.-Corpus Christi 1996, writ denied).
1.2 To further expand upon this concept, a party cannot file an affidavit to contradict his own testimony
without any explanation for the change in the testimony. Farroux v. Denny's Restaurant, 962 S.W.2d 108,
Plaintiff’s Objection – Page 1
Electronically Filed
2/27/2024 8:50 AM
Hidalgo County District Clerks
Reviewed By: Taylor Lujan
111 (Tex. App.-Houston [1st Dist.] 1997, no pet.). Without an explanation for the change, the Court is to
assume the sole purpose of the affidavit is to avoid summary judgment and raise a "sham" fact issue. Id.
1.3 Conclusory statements in affidavits are not competent summary judgment evidence. In this regard,
a conclusory statement is one that does not provide the underlying facts to support the conclusion. See
Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (citing
Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1997, no pet.). An interested
witness's affidavit which recites that the affiant "estimates," or "believes" certain facts to be true will not
support summary judgment because such language does not positively and unqualifiedly represent that the
"facts" disclosed are true. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam).
2. SPECIFIC OBJECTIONS
2.1 In response to Vantage’s motion for summary judgment, Defendant Rodolfo Navarro Plasencia and
Cynthia Gutierrez filed affidavits. Neither are competent summary judgment evidence and should be
excluded in their entirety based upon the numerous defects contained therein. The defects in the affidavits
are addressed and specifically objected to as follows:
2.2 In Paragraph 4 of Plasencia’s affidavit, Plasencia states that “My Guaranty Agreements … had no
automatic renewal provision, nor did Octavio Casteneda Garcia’s … in 2017 I refused to guarantee the
renewal … Octavio Castaneda Garcia did renew his … Vantage Bank elected to nevertheless renew the
2014 notes without my guaranty.” Vanguard objects to this paragraph because it is a self-serving statement
of an interested party related to his intent, knowledge, or state of mind that is not susceptible to being readily
controverted and is not competent summary judgment evidence. Allied Chem. Corp. v. DeHaven, 752
S.W.2d 155, 158 (Tex. App.-Houston [14th Dist]. 1998, writ denied). The affidavit must be based on facts
and cannot merely recite factual conclusions. Conclusory statements that are not supported by facts are not
summary judgment proof. See Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013). A witness may not testify to
a matter unless evidence is introduced sufficient to support a finding that the witness has personal
knowledge of the matter. Tex. R. Evid. 602.
Plaintiff’s Objection – Page 2
Electronically Filed
2/27/2024 8:50 AM
Hidalgo County District Clerks
Reviewed By: Taylor Lujan
2.3 In Paragraph 5 of Plasencia’s affidavit, Plasencia states that “In previous years it was standard
operating procedure for the bank to require me to sign a renewal on my guaranty agreement. Vantage bank
knew, before the loans that are the subject of this lawsuit were renewed, that I would not guaranty the
renewal notes. In 2018, their attorney, Mike McGurk approached my lawyer, Cynthia Gutierrez and
requested that I sign a guaranty agreement for the 2018 Garcia Grain loan renewal. Ms. Gutierrez, acting
on my behalf refused.” A witness may not testify to a matter unless evidence is introduced sufficient to
support a finding that the witness has personal knowledge of the matter. Tex. R. Evid. 602. In this case,
Plasencia is testifying regarding information that is not based upon his personal knowledge. Additionally,
Vanguard objects that the statements constitute inadmissible hearsay statements allegedly made by Mike
McGurk. Tex. R. Evid. 802. Specifically, Plasencia is utilizing this out of court statement to a third party,
to prove that his refusal to sign a renewal would void his guaranties, which was contrary to the guaranties
he signed in 2014. The parol-evidence rule prohibits consideration of extrinsic evidence to contradict, vary,
or add to the terms of an unambiguous agreement unless there has been fraud, accident or mistake. In re.
H.E. Butt Grocery Co., 17 S.W.3d 360, 258 (Tex.App. -Houston- [14th Dist.] 2000, orig. proceeding). The
parol evidence rule applies equally at trial and in summary judgment proceedings. See Gonzales v. United
Carpenters and Joiners, 93 S.W.3d 208, 211 (Tex.App. -Houston [14th Dist.] 2002, no pet.).
2.4 Similarly, the Court should exclude Gutierrez’s affidavit because it contains rank, inadmissible
hearsay and because it violates the parol evidence rule.1
3. PRAYER
1
Despite the fact that the Gutierrez affidavit is inadmissible and irrelevant to this court’s analysis, Ms. Gutierrez
clearly believes her testimony is essential to establish a critical fact necessary to defeat Vantage’s summary judgment
motion. Ms. Gutierrez has elected to be counsel for Plasencia in this matter. She must choose between being counsel
or a witness; she cannot be both. When a lawyer is or may be a witness necessary to establish an essential fact, Texas
Disciplinary Rule of Professional Conduct 3.08 prohibits the lawyer from acting as both an advocate and a witness in
an adjudicatory proceeding. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a). A summary judgment
proceeding is an adjudicatory proceeding. Rule 3.08 was “promulgated as a disciplinary standard rather than one of
procedural disqualification, but [Texas courts] have recognized that the rule provides guidelines relevant to a
disqualification determination.” See In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (citing Anderson Producing Inc.
v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex.1996).
Plaintiff’s Objection – Page 3
Electronically Filed
2/27/2024 8:50 AM
Hidalgo County District Clerks
Reviewed By: Taylor Lujan
WHEREFORE, PREMISES CONSIDERED, Plaintiff Vantage Bank Texas prays that this Court
sustain the above objections to the affidavits of Rodolfo Navarro Plasencia and Cynthia Gutierrez and that
the Court not allow the introduction of the affidavits into evidence.
Respectfully submitted,
ATLAS, HALL & RODRIGUEZ, LLP
By: ___/s/ Daniel G. Gurwitz_________
Danny Gurwitz
State Bar No. 00787608
Email: dgurwitz@atlashall.com
818 W. Pecan Blvd.
McAllen, Texas 78501
(956) 682-5501 - Phone
(956) 686-6109 - Facsimile
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I, hereby certify that the foregoing document has been forwarded to all counsel of record through the
electronic filing system and/or in accordance with the Texas Rules of Civil Procedure on the _27th____ day
of February, 2024.
Mark A. Weitz
Weitz Morgan PLLC
1250S. Capital 0f Texas Highway
Building3, Suite 400
Austin, Texas 78746
mweitz@weitzmorgan.com
Direct Line 512-657-1849
Fax: 512-852-4446
Counsel for Defendant
CYNTHIA CONTRERAS GUTIERREZ
CONTRERAS GUTIERREZ
AND ASSOCIATES
1302S. 10th Avenue
Edinburg, Texas 78539
cynthia@ccglaw.net
Phone: (956) 683-0057
Fax: 956-683-0059
Counsel for Defendant
__/s/ Daniel G. Gurwitz______________
Daniel G. Gurwitz
Plaintiff’s Objection – Page 4
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Daniel Gurwitz
Bar No. 00787608
dgurwitz@atlashall.com
Envelope ID: 84931500
Filing Code Description: Response
Filing Description: TO PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT AND RESPONSE TO DEFENDANT’S CROSS MOTION
FOR SUMMARY JUDGMENT
Status as of 2/27/2024 9:02 AM CST
Associated Case Party: Vantage Bank Texas
Name BarNumber Email TimestampSubmitted Status
Daniel G. Gurwitz dgurwitz@atlashall.com 2/27/2024 8:50:42 AM SENT
Vicki M.Skaggs vmskaggs@atlashall.com 2/27/2024 8:50:42 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
JUDY VILLARREAL jvillarreal@atlashall.com 2/27/2024 8:50:42 AM SENT
MARK A.WEITZ MWEITZ@WEITZMORGAN.COM 2/27/2024 8:50:42 AM SENT
Cynthia ContrerasGutierrez cynthia@ccglaw.net 2/27/2024 8:50:42 AM SENT
Preview
Electronically Filed 2/27/2024 8:50 AM Hidalgo County District Clerks Reviewed By: Taylor Lujan CAUSE NO. C-2687-23-E VANTAGE BANK TEXAS § IN THE DISTRICT COURT PLAINTIFF, § § V. § 275TH JUDICIAL DISTRICT OF § RODOLFO NAVARRO PLASENCIA § DEFENDANT. § HIDALGO COUNTY, TEXAS PLAINTIFF’S OBJECTION TO SUMMARY JUDGMENT AFFIDAVIT OF DEFENDANT RODOLFO NAVARRO PLASENCIA AND CYNTHIA GUTIERREZ TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW VANTAGE BANK TEXAS (hereinafter “Vantage”), Plaintiff in the above-entitled and numbered cause, and files this its Objection to Summary Judgment Affidavits of Defendant Rodolfo Navarro Plasencia and Cynthia Gutierrez, and in support thereof would respectfully show the Court as follows: 1. ARGUMENT AND AUTHORITY 1.1 Texas Rule of Civil Procedure 166a requires that affidavits from interested witnesses serve as competent summary judgment evidence only when such affidavits are "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a; Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex. 1994) (per curiam). Rule 166a(f) requires that "supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Tex. R. Civ. P. 166a(f). Moreover, the affiant must affirmatively show how they became familiar with the facts so as to testify as a witness. Villacana v. Campbell, 929 S.W.2d 69, 74 (Tex. App.-Corpus Christi 1996, writ denied). 1.2 To further expand upon this concept, a party cannot file an affidavit to contradict his own testimony without any explanation for the change in the testimony. Farroux v. Denny's Restaurant, 962 S.W.2d 108, Plaintiff’s Objection – Page 1 Electronically Filed 2/27/2024 8:50 AM Hidalgo County District Clerks Reviewed By: Taylor Lujan 111 (Tex. App.-Houston [1st Dist.] 1997, no pet.). Without an explanation for the change, the Court is to assume the sole purpose of the affidavit is to avoid summary judgment and raise a "sham" fact issue. Id. 1.3 Conclusory statements in affidavits are not competent summary judgment evidence. In this regard, a conclusory statement is one that does not provide the underlying facts to support the conclusion. See Dolcefino v. Randolph, 19 S.W.3d 906, 930 (Tex. App.-Houston [14th Dist.] 2000, pet. denied) (citing Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.-Houston [1st Dist.] 1997, no pet.). An interested witness's affidavit which recites that the affiant "estimates," or "believes" certain facts to be true will not support summary judgment because such language does not positively and unqualifiedly represent that the "facts" disclosed are true. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). 2. SPECIFIC OBJECTIONS 2.1 In response to Vantage’s motion for summary judgment, Defendant Rodolfo Navarro Plasencia and Cynthia Gutierrez filed affidavits. Neither are competent summary judgment evidence and should be excluded in their entirety based upon the numerous defects contained therein. The defects in the affidavits are addressed and specifically objected to as follows: 2.2 In Paragraph 4 of Plasencia’s affidavit, Plasencia states that “My Guaranty Agreements … had no automatic renewal provision, nor did Octavio Casteneda Garcia’s … in 2017 I refused to guarantee the renewal … Octavio Castaneda Garcia did renew his … Vantage Bank elected to nevertheless renew the 2014 notes without my guaranty.” Vanguard objects to this paragraph because it is a self-serving statement of an interested party related to his intent, knowledge, or state of mind that is not susceptible to being readily controverted and is not competent summary judgment evidence. Allied Chem. Corp. v. DeHaven, 752 S.W.2d 155, 158 (Tex. App.-Houston [14th Dist]. 1998, writ denied). The affidavit must be based on facts and cannot merely recite factual conclusions. Conclusory statements that are not supported by facts are not summary judgment proof. See Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013). A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Tex. R. Evid. 602. Plaintiff’s Objection – Page 2 Electronically Filed 2/27/2024 8:50 AM Hidalgo County District Clerks Reviewed By: Taylor Lujan 2.3 In Paragraph 5 of Plasencia’s affidavit, Plasencia states that “In previous years it was standard operating procedure for the bank to require me to sign a renewal on my guaranty agreement. Vantage bank knew, before the loans that are the subject of this lawsuit were renewed, that I would not guaranty the renewal notes. In 2018, their attorney, Mike McGurk approached my lawyer, Cynthia Gutierrez and requested that I sign a guaranty agreement for the 2018 Garcia Grain loan renewal. Ms. Gutierrez, acting on my behalf refused.” A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Tex. R. Evid. 602. In this case, Plasencia is testifying regarding information that is not based upon his personal knowledge. Additionally, Vanguard objects that the statements constitute inadmissible hearsay statements allegedly made by Mike McGurk. Tex. R. Evid. 802. Specifically, Plasencia is utilizing this out of court statement to a third party, to prove that his refusal to sign a renewal would void his guaranties, which was contrary to the guaranties he signed in 2014. The parol-evidence rule prohibits consideration of extrinsic evidence to contradict, vary, or add to the terms of an unambiguous agreement unless there has been fraud, accident or mistake. In re. H.E. Butt Grocery Co., 17 S.W.3d 360, 258 (Tex.App. -Houston- [14th Dist.] 2000, orig. proceeding). The parol evidence rule applies equally at trial and in summary judgment proceedings. See Gonzales v. United Carpenters and Joiners, 93 S.W.3d 208, 211 (Tex.App. -Houston [14th Dist.] 2002, no pet.). 2.4 Similarly, the Court should exclude Gutierrez’s affidavit because it contains rank, inadmissible hearsay and because it violates the parol evidence rule.1 3. PRAYER 1 Despite the fact that the Gutierrez affidavit is inadmissible and irrelevant to this court’s analysis, Ms. Gutierrez clearly believes her testimony is essential to establish a critical fact necessary to defeat Vantage’s summary judgment motion. Ms. Gutierrez has elected to be counsel for Plasencia in this matter. She must choose between being counsel or a witness; she cannot be both. When a lawyer is or may be a witness necessary to establish an essential fact, Texas Disciplinary Rule of Professional Conduct 3.08 prohibits the lawyer from acting as both an advocate and a witness in an adjudicatory proceeding. See TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a). A summary judgment proceeding is an adjudicatory proceeding. Rule 3.08 was “promulgated as a disciplinary standard rather than one of procedural disqualification, but [Texas courts] have recognized that the rule provides guidelines relevant to a disqualification determination.” See In re Sanders, 153 S.W.3d 54, 56 (Tex. 2004) (citing Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex.1996). Plaintiff’s Objection – Page 3 Electronically Filed 2/27/2024 8:50 AM Hidalgo County District Clerks Reviewed By: Taylor Lujan WHEREFORE, PREMISES CONSIDERED, Plaintiff Vantage Bank Texas prays that this Court sustain the above objections to the affidavits of Rodolfo Navarro Plasencia and Cynthia Gutierrez and that the Court not allow the introduction of the affidavits into evidence. Respectfully submitted, ATLAS, HALL & RODRIGUEZ, LLP By: ___/s/ Daniel G. Gurwitz_________ Danny Gurwitz State Bar No. 00787608 Email: dgurwitz@atlashall.com 818 W. Pecan Blvd. McAllen, Texas 78501 (956) 682-5501 - Phone (956) 686-6109 - Facsimile ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I, hereby certify that the foregoing document has been forwarded to all counsel of record through the electronic filing system and/or in accordance with the Texas Rules of Civil Procedure on the _27th____ day of February, 2024. Mark A. Weitz Weitz Morgan PLLC 1250S. Capital 0f Texas Highway Building3, Suite 400 Austin, Texas 78746 mweitz@weitzmorgan.com Direct Line 512-657-1849 Fax: 512-852-4446 Counsel for Defendant CYNTHIA CONTRERAS GUTIERREZ CONTRERAS GUTIERREZ AND ASSOCIATES 1302S. 10th Avenue Edinburg, Texas 78539 cynthia@ccglaw.net Phone: (956) 683-0057 Fax: 956-683-0059 Counsel for Defendant __/s/ Daniel G. Gurwitz______________ Daniel G. Gurwitz Plaintiff’s Objection – Page 4 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Daniel Gurwitz Bar No. 00787608 dgurwitz@atlashall.com Envelope ID: 84931500 Filing Code Description: Response Filing Description: TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO DEFENDANT’S CROSS MOTION FOR SUMMARY JUDGMENT Status as of 2/27/2024 9:02 AM CST Associated Case Party: Vantage Bank Texas Name BarNumber Email TimestampSubmitted Status Daniel G. Gurwitz dgurwitz@atlashall.com 2/27/2024 8:50:42 AM SENT Vicki M.Skaggs vmskaggs@atlashall.com 2/27/2024 8:50:42 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status JUDY VILLARREAL jvillarreal@atlashall.com 2/27/2024 8:50:42 AM SENT MARK A.WEITZ MWEITZ@WEITZMORGAN.COM 2/27/2024 8:50:42 AM SENT Cynthia ContrerasGutierrez cynthia@ccglaw.net 2/27/2024 8:50:42 AM SENT