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CAUSE NO, 2010-63264
CADENCE BANK IN THE DISTRICT COURT
t/k/a ENCORE BANK
Plaintiff,
¥,
OF HARRIS COUNTY, TEXAS
ALLEN L. BERRY;
JOSEPH D. MCCORD;
and ROBERT G. TAYLOR, II,
Defendants. 152"! JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANTS’ OBJECTIONS TO PLAINTIFF'S
SUMMARY JUDGMENT AFFIDAVITS
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Cadence Bank f/k/a Encore Bank (“Encore”) responds to Defendants’
Objections to Plaintiff's Affidavit and First Supplemental Objections to Plaintiffs Affidavit.
Because Defendants’ objections are meritless, they should be denied.
A Plaintiff's Affidavits are Competent Summary Judgment Evidence,
1 Defendants’ objections to Plaintiff's summary judgment evidence are a patchwork
of misstatements, unsupported assertions, and legalese. Because Defendants once again employ
their throw-it-at-the-wall-and-see-if-it-sticks strategy, Encore cannot possibly respond to each
and every puerile objection. Nor does Encore need to; the Court is fully capable of applying the
tules of evidence to Encore’s summary judgment evidence. Instead, Encore will highlight the
unfounded nature of Defendants’ objections.
1 Exhibit A—the affidavit of John Lingor—is admissible,
2. Defendants’ objections to Lingor’s affidavit range from petty to outright
erroneous. For instance, Lingor, as a custodian of records for Encore, authenticates multiple
documents from Encore’s files, including the Promissory Note and Guaranty Agreement.
Defendants object to the admissibility of these documents and Lingor’s ability to authenticate
them because Lingor was not employed by Encore in 2007 when the documents were created.
Defendants’ argument underscores their misunderstanding of the business records exception to
the hearsay rules and the use of business record affidavits to authenticate documents.’ Lingor’s
affidavit properly authenticates the loan documents as business records from Encore’s files and
also removes them from the realm of hearsay.
3 Next, Defendants apparently misunderstand what constitutes contradictory
testimony. They latch onto Lingor’s statement in one affidavit that the Mortgage Agreement
securing a lien on the Betty Lyn HZ was a “secondary or tertiary” form or repayment and then
claim that statement contradicts other testimony that the Mortgage Agreement was “additional”
security for the loan.’ How or why these statements are contradictory, Defendants refuse to say.
That is because the statements are entirely consistent: a secondary or tertiary form of repayment
is certainly “additional” security for the loan. There is no inconsistency or contradiction.
4 Further, Defendants’ objections to Paragraph 8 of Lingor’s affidavit are premised
on selective citations to his deposition transcript. Despite Defendants’ insistence otherwise,
Lingor clearly testified that Defendants requested they not be served with the lawsuit? There is
no inconsistency between Lingor’s deposition testimony and his affidavit; Defendants’ selective
cuts from his deposition do not alter that fact. Moreover, Defendants’ confusion is later revealed
when they object to Paragraph 8 on the grounds that it is “irrelevant since verbal requests or
" See Tex. R. Evid. 803(6) & 902(10).
* Defendants’ Mot. at 5.
* Dep. of John G. Lingor, 89:25 — 90:9,
agreements to delay service are insufficient to toll the statute of limitations.” In other words,
Defendants claim any testimony that does not fit with their preconceived narrative is irrelevant
and should not be considered by the Court.
5 Finally, Defendants’ objections to the remainder of Lingor’s affidavit are
unavailing. Lingor has knowledge of the amount outstanding on the Promissory Note and when
it matured. Those basic facts are not subject to dispute. Indeed, Defendants have never disputed
the date the loan matured or the outstanding principal balance.
6 Because Lingor’s affidavit is proper summary judgment evidence, it should be
considered by the Court.
2. Encore’s attorneys’ affidavits—Exhibits B, C, D, and E—are admissible.
7 The primary objection Defendants lodge against Encore’s attorneys’ fees
affidavits is an alleged failure to segregate fees. But even if that were true, the issue of fee
segregation is irrelevant to the admissibility of the affidavits. Again, Defendants want the Court
to exclude evidence because they disagree with its substance, not because it is inadmissible
based on a rule of evidence.
8 Additionally, Defendants’ assertion that Encore has been uncooperative and failed
to produce attorney fee agreements is both irrelevant and untrue, Encore has produced any
attorney fee agreements it has within its possession, custody, or control. Moreover, the attorney
fee affidavits explicitly denote that Encore’s attorneys charged by the hour for their services. In
any event, none of Defendants’ objections are valid and Encore’s attorneys’ affidavits should be
considered by the Court.
‘Defendants’ Mot. at§ 14.
B. Plaintiff?s Exhibits are Proper Summary Judgment Evidence,
1. Exhibits A-1 through A-15 are admissible.
9 Defendants’ objections to Encore’s exhibits A-1 through A-15 are untenable.
These exhibits are authenticated as business records of Encore, which eliminates virtually all of
Defendants’ objections. What remains are a hodgepodge of “objections” that lack any legal or
evidentiary basis.
10, For instance, Defendants object to Exhibit A-1 as hearsay, despite Lingor’s
testimony that it is a business record of Encore and thus not inadmissible hearsay. Defendants
object to Exhibit A-2 on similar grounds and claim it was “generated from an unknown source,”
which Defendants claim makes the exhibit inadmissible. Of course, Defendants could have
learned the source of the exhibit when they deposed Lingor, but they chose not to. In any event,
Defendants fail to explain what makes the exhibit inadmissible, other than the fact that they do
not like it, Likewise, Defendants object to virtually all of the loan documents—including the
Guaranty Agreement (Ex. A-8)—that form the basis of this case. But those loan agreements are
operative documents, are thus not hearsay, and are admissible.°
lk, Further, Defendants’ objection to Exhibit A-l1l—an LLC certificate—teveals
their fundamental misunderstanding of Rule 408, which Defendants cite throughout their
motion. Defendants claim Rule 408 makes the LLC certificate inadmissible because it “was
used during a settlement negotiation between the parties .. . 8 But for Rule 408 to apply, the
5 Id. at § 19.
® See, e.g., Thomas C. Cook, Ine. v. Rowhanian, 774 S.W.2d 679, 685 (Tex, App—EI Paso 1989, writ denied)
(terms of a contract are not hearsay),
7 Defendants’ Mot. at ] 27 (citing Tex. R. Evid, 408).
* Id.
document must evince some element of concession? Simply using the LLC certificate in a
settlement negotiation at some point—assuming that is true—does not make the certificate
inadmissible. Moreover, Defendants’ contention underscores the fundamental evidentiary errors
that riddle their objections.
2 Exhibits F, G, and H are admissible.
12, The deposition transcripts of Allen Berry, Joseph McCord, and Robert Taylor,
Ti—Exhibits F, G, and H—are admissible and should be considered by the Court. To the extent
Defendants’ counsel made objections on the record in those depositions, the Court is capable of
ruling on those objections in connection with Encore’s summary judgment motion.
3. Exhibits I and J are admissible.
13. These exhibits are communications between Encore and Defendants related to
payment of the outstanding balance of the Promissory Note. Defendants claim the exhibits are
inadmissible because they are “offers of compromise.” But, again, for Rule 408 to apply, the
context and character of the offer must evince some element of concession.'? And Rule 408 does
not protect an offer to pay a claim that is admittedly owed.'! Here, neither Exhibit I nor Exhibit
J indicates any element of concession or dispute of the debt. Thus, both exhibits are admissible.
Cc. Prayer.
For these reasons, Plaintiff Cadence Bank f/k/a Encore Bank requests the Court deny
Defendants’ objections to Plaintiffs summary judgment evidence, grant summary judgment in
Encore’s favor, and for any other relief to which it may be entitled,
° See, 2.g., Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 304-05 (Tex. App.—Houston [1st Dist.} 2005, no pet.).
"id.
" See Kansas City Southern Ry. Co. v. Carter, 778 S.W,2d 911, 913-14 (Tex. App.—Texarkana 1989, writ denied).
5
Respectfully submitted,
DOBROWSKI, LARKIN & JOHNSON L.L.P
By: /s/ Cody W. Stafford
Paul J. Dobrowski
SBN 05927100
pid@doblaw.com
Cody W. Stafford
SBN 24068238
stafford@doblaw.com
4601 Washington Avenue, Suite 300
Houston, Texas 77007
Telephone: (713) 659-2900
Facsimile: (713) 659-2908
ATTORNEYS FOR PLAINTIFF CADENCE
BANK f/k/a ENCORE BANK.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served on all
counsel of record on this 24" day of January, 2014, by ECF filing and regular mail.
Jett Williams, IIT
Henke & Associates
3200 Southwest Freeway, 34" Floor
Houston, Texas 77027
Robert G. Taylor, II
Law Office of Robert G. Taylor, TIT
4119 Montrose, Suite 400
Houston, Texas 77006
James E, “Jeb” Brown, II
3100 Edloe Street, Suite 220
Houston, Texas 77027
Jerry S. Payne
616 Voss Road
Hunters Creek Village, Texas 77024
/s/ Cody W. Stafford
Cody W. Stafford
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CAUSE NO, 2010-63264 CADENCE BANK IN THE DISTRICT COURT t/k/a ENCORE BANK Plaintiff, ¥, OF HARRIS COUNTY, TEXAS ALLEN L. BERRY; JOSEPH D. MCCORD; and ROBERT G. TAYLOR, II, Defendants. 152"! JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANTS’ OBJECTIONS TO PLAINTIFF'S SUMMARY JUDGMENT AFFIDAVITS TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Cadence Bank f/k/a Encore Bank (“Encore”) responds to Defendants’ Objections to Plaintiff's Affidavit and First Supplemental Objections to Plaintiffs Affidavit. Because Defendants’ objections are meritless, they should be denied. A Plaintiff's Affidavits are Competent Summary Judgment Evidence, 1 Defendants’ objections to Plaintiff's summary judgment evidence are a patchwork of misstatements, unsupported assertions, and legalese. Because Defendants once again employ their throw-it-at-the-wall-and-see-if-it-sticks strategy, Encore cannot possibly respond to each and every puerile objection. Nor does Encore need to; the Court is fully capable of applying the tules of evidence to Encore’s summary judgment evidence. Instead, Encore will highlight the unfounded nature of Defendants’ objections. 1 Exhibit A—the affidavit of John Lingor—is admissible, 2. Defendants’ objections to Lingor’s affidavit range from petty to outright erroneous. For instance, Lingor, as a custodian of records for Encore, authenticates multiple documents from Encore’s files, including the Promissory Note and Guaranty Agreement. Defendants object to the admissibility of these documents and Lingor’s ability to authenticate them because Lingor was not employed by Encore in 2007 when the documents were created. Defendants’ argument underscores their misunderstanding of the business records exception to the hearsay rules and the use of business record affidavits to authenticate documents.’ Lingor’s affidavit properly authenticates the loan documents as business records from Encore’s files and also removes them from the realm of hearsay. 3 Next, Defendants apparently misunderstand what constitutes contradictory testimony. They latch onto Lingor’s statement in one affidavit that the Mortgage Agreement securing a lien on the Betty Lyn HZ was a “secondary or tertiary” form or repayment and then claim that statement contradicts other testimony that the Mortgage Agreement was “additional” security for the loan.’ How or why these statements are contradictory, Defendants refuse to say. That is because the statements are entirely consistent: a secondary or tertiary form of repayment is certainly “additional” security for the loan. There is no inconsistency or contradiction. 4 Further, Defendants’ objections to Paragraph 8 of Lingor’s affidavit are premised on selective citations to his deposition transcript. Despite Defendants’ insistence otherwise, Lingor clearly testified that Defendants requested they not be served with the lawsuit? There is no inconsistency between Lingor’s deposition testimony and his affidavit; Defendants’ selective cuts from his deposition do not alter that fact. Moreover, Defendants’ confusion is later revealed when they object to Paragraph 8 on the grounds that it is “irrelevant since verbal requests or " See Tex. R. Evid. 803(6) & 902(10). * Defendants’ Mot. at 5. * Dep. of John G. Lingor, 89:25 — 90:9, agreements to delay service are insufficient to toll the statute of limitations.” In other words, Defendants claim any testimony that does not fit with their preconceived narrative is irrelevant and should not be considered by the Court. 5 Finally, Defendants’ objections to the remainder of Lingor’s affidavit are unavailing. Lingor has knowledge of the amount outstanding on the Promissory Note and when it matured. Those basic facts are not subject to dispute. Indeed, Defendants have never disputed the date the loan matured or the outstanding principal balance. 6 Because Lingor’s affidavit is proper summary judgment evidence, it should be considered by the Court. 2. Encore’s attorneys’ affidavits—Exhibits B, C, D, and E—are admissible. 7 The primary objection Defendants lodge against Encore’s attorneys’ fees affidavits is an alleged failure to segregate fees. But even if that were true, the issue of fee segregation is irrelevant to the admissibility of the affidavits. Again, Defendants want the Court to exclude evidence because they disagree with its substance, not because it is inadmissible based on a rule of evidence. 8 Additionally, Defendants’ assertion that Encore has been uncooperative and failed to produce attorney fee agreements is both irrelevant and untrue, Encore has produced any attorney fee agreements it has within its possession, custody, or control. Moreover, the attorney fee affidavits explicitly denote that Encore’s attorneys charged by the hour for their services. In any event, none of Defendants’ objections are valid and Encore’s attorneys’ affidavits should be considered by the Court. ‘Defendants’ Mot. at§ 14. B. Plaintiff?s Exhibits are Proper Summary Judgment Evidence, 1. Exhibits A-1 through A-15 are admissible. 9 Defendants’ objections to Encore’s exhibits A-1 through A-15 are untenable. These exhibits are authenticated as business records of Encore, which eliminates virtually all of Defendants’ objections. What remains are a hodgepodge of “objections” that lack any legal or evidentiary basis. 10, For instance, Defendants object to Exhibit A-1 as hearsay, despite Lingor’s testimony that it is a business record of Encore and thus not inadmissible hearsay. Defendants object to Exhibit A-2 on similar grounds and claim it was “generated from an unknown source,” which Defendants claim makes the exhibit inadmissible. Of course, Defendants could have learned the source of the exhibit when they deposed Lingor, but they chose not to. In any event, Defendants fail to explain what makes the exhibit inadmissible, other than the fact that they do not like it, Likewise, Defendants object to virtually all of the loan documents—including the Guaranty Agreement (Ex. A-8)—that form the basis of this case. But those loan agreements are operative documents, are thus not hearsay, and are admissible.° lk, Further, Defendants’ objection to Exhibit A-l1l—an LLC certificate—teveals their fundamental misunderstanding of Rule 408, which Defendants cite throughout their motion. Defendants claim Rule 408 makes the LLC certificate inadmissible because it “was used during a settlement negotiation between the parties .. . 8 But for Rule 408 to apply, the 5 Id. at § 19. ® See, e.g., Thomas C. Cook, Ine. v. Rowhanian, 774 S.W.2d 679, 685 (Tex, App—EI Paso 1989, writ denied) (terms of a contract are not hearsay), 7 Defendants’ Mot. at ] 27 (citing Tex. R. Evid, 408). * Id. document must evince some element of concession? Simply using the LLC certificate in a settlement negotiation at some point—assuming that is true—does not make the certificate inadmissible. Moreover, Defendants’ contention underscores the fundamental evidentiary errors that riddle their objections. 2 Exhibits F, G, and H are admissible. 12, The deposition transcripts of Allen Berry, Joseph McCord, and Robert Taylor, Ti—Exhibits F, G, and H—are admissible and should be considered by the Court. To the extent Defendants’ counsel made objections on the record in those depositions, the Court is capable of ruling on those objections in connection with Encore’s summary judgment motion. 3. Exhibits I and J are admissible. 13. These exhibits are communications between Encore and Defendants related to payment of the outstanding balance of the Promissory Note. Defendants claim the exhibits are inadmissible because they are “offers of compromise.” But, again, for Rule 408 to apply, the context and character of the offer must evince some element of concession.'? And Rule 408 does not protect an offer to pay a claim that is admittedly owed.'! Here, neither Exhibit I nor Exhibit J indicates any element of concession or dispute of the debt. Thus, both exhibits are admissible. Cc. Prayer. For these reasons, Plaintiff Cadence Bank f/k/a Encore Bank requests the Court deny Defendants’ objections to Plaintiffs summary judgment evidence, grant summary judgment in Encore’s favor, and for any other relief to which it may be entitled, ° See, 2.g., Mieth v. Ranchquest, Inc., 177 S.W.3d 296, 304-05 (Tex. App.—Houston [1st Dist.} 2005, no pet.). "id. " See Kansas City Southern Ry. Co. v. Carter, 778 S.W,2d 911, 913-14 (Tex. App.—Texarkana 1989, writ denied). 5 Respectfully submitted, DOBROWSKI, LARKIN & JOHNSON L.L.P By: /s/ Cody W. Stafford Paul J. Dobrowski SBN 05927100 pid@doblaw.com Cody W. Stafford SBN 24068238 stafford@doblaw.com 4601 Washington Avenue, Suite 300 Houston, Texas 77007 Telephone: (713) 659-2900 Facsimile: (713) 659-2908 ATTORNEYS FOR PLAINTIFF CADENCE BANK f/k/a ENCORE BANK. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served on all counsel of record on this 24" day of January, 2014, by ECF filing and regular mail. Jett Williams, IIT Henke & Associates 3200 Southwest Freeway, 34" Floor Houston, Texas 77027 Robert G. Taylor, II Law Office of Robert G. Taylor, TIT 4119 Montrose, Suite 400 Houston, Texas 77006 James E, “Jeb” Brown, II 3100 Edloe Street, Suite 220 Houston, Texas 77027 Jerry S. Payne 616 Voss Road Hunters Creek Village, Texas 77024 /s/ Cody W. Stafford Cody W. Stafford