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noting that statements made "to the best of my knowledge and belief" in an affidavit are legally insufficient
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No. 05-10-00802-CV
04-30-2012
STANLEY D. WINNARD, Appellant v. J. GROGAN ENTERPRISES, LLC, Appellee
AFFIRM; Opinion Filed April 30, 2012.
On Appeal from the 14th District Court
Dallas County, Texas
Trial Court Cause No. 089-5300-A
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Justice Moseley
This appeal arises out of Stanley D. Winnard's lawsuit against J. Grogan Enterprises, LLC (Grogan) and James Losoya. Winnard alleged that Losoya acted negligently (and, in the alternative, fraudulently) in notarizing his forged signatures and that Grogan, as Losoya's employer, was vicariously liable for Losoya's actions. Losoya did not file an answer and the trial court rendered a default judgment against him. Winnard's claims against Grogan proceeded to a bench trial, after which the court entered findings of fact and conclusions of law and a take nothing judgment in favor of Grogan. On appeal, Winnard challenges the trial court's findings, arguing the trial court erred by concluding Winnard's claims against Grogan were precluded by the doctrine of judicial estoppel and asserting the trial court's conclusion there was no negligence or fraud by Losoya that could be imputed to Grogan was against the weight and preponderance of the evidence presented at trial. Because Winnard's challenges to the trial court's findings of fact fail and we conclude the trial court properly determined Grogan was not vicariously liable for any alleged negligence or fraud by Losoya, we need not address Winnard's first issue-whether Winnard was judicially estopped from recovering against Grogan. Tex. R. App. P. 47.1.
The parties agree Grogan employed Losoya at all relevant times; Grogan did not claim Losoya acted outside the scope of his employment when he notarized the documents.
On appeal, Grogan purports to present seven cross-issues. Because Grogan did not file a notice of appeal, we will not address Grogan's seven issues. See Tex. R. App. P. 25.1(c). After reviewing Grogan's brief, most of Grogan's seven cross-issues respond to the two issues Winnard presents in this appeal.
The background and facts of the case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm the trial court's judgment.
This lawsuit follows Winnard's divorce from Patricia Winnard (Patricia). In the divorce proceeding, Patricia presented two, notarized documents (each a purported assignment of a business interest) that appeared to include Winnard's and Patricia's signatures. During the divorce proceeding and in this lawsuit, Winnard maintained he did not sign the documents-Winnard claims his signatures were forged.
The parties agree Losoya notarized the two documents; they disagree whether Winnard's forged signatures appeared on the documents at the time Losoya notarized them. Winnard maintains the forged signatures were on the documents when Losoya notarized them. Grogan argues Winnard's forged signatures were added after Losoya notarized the documents.
Winnard's second issue states: "Was The Trial Court's Determination That There Was No Negligence And No Fraud By Losoya Which Can Be Imputed To Grogan Contrary To The Great Weight And Preponderance Of The Evidence Presented At Trial?" Winnard specifically challenges two of the trial court's findings of fact, both relating to a document titled "Affidavit" that Losoya executed as part of the divorce proceeding between Winnard and Patricia. In this document (which was quoted by the trial court in its disputed findings of fact), Losoya stated:
"
Exhibit 'C', the Assignment of Business Interests . . . and Exhibit 'D', the Assignment of Business Interests . . . were, to the best of my knowledge and belief, signed by Stanley Winnard and Patricia Winnard before me and then I notarized their signatures."
Although Winnard's entire argument to show Losoya's alleged negligence and fraud rests on Losoya's signed statement, the statement is legally insufficient to qualify as an affidavit and, therefore, cannot serve as evidence. See Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (per curium). Affidavits must be based on personal knowledge; statements made "to the best of my knowledge and belief" are legally insufficient. See id. ("An affidavit which does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant's personal knowledge is legally insufficient."). Additionally, the affidavit must provide a representation that the facts disclosed are true. See id. Although Losoya's written statement shows he swore to the information contained therein, see Mansions in the Forest, L.P. v. Montgomery Cnty., No. 10-0969, 2012 WL 1370867, at * 2-3 (Tex. Apr. 20, 2012) (per curium), it does not state it is based on personal knowledge. The statement is only made "to the best of my knowledge and belief," and it makes no representations the facts contained therein are true. Because the statement is not an affidavit and cannot serve as evidence, the trial court correctly did not consider Losoya's written statement when determining Grogan was not liable to Winnard. Winnard also argues Grogan is liable for Losoya's alleged negligent and fraudulent behavior because the trial court entered a default judgment against Losoya and all allegations made against him, including that Losoya was negligent and fraudulent, were deemed admitted. Therefore, Winnard claims, he was not required to present proof of Losoya's negligence or fraud in the trial against Grogan. Although Winnard's allegations against Losoya were deemed admitted by the default judgment, see Argyle Mech., Inc. v. Unigus Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.-Dallas 2005, no pet.), those deemed admissions do not bind Grogan. Grogan answered Winnard's petition and participated in the trial; Grogan maintained its right to defend itself against Winnard's allegations. See Brazos Valley Cmty. Action Agency v. Robison, 900 S.W.2d 843, 845 (Tex. App.-Corpus Christi 1995, writ denied); Mayfield v. Hicks, 575 S.W.2d 571, 574 (Tex. Civ. App.-Dallas 1978, writ ref'd n.r.e.). Like the Brazos Valley court, "[w]e are unwilling to recognize the fundamentally unfair use of a default judgment in this case to bind an employer with an employee's default." 900 S.W.2d at 845.
Winnard argues Losoya's statement that, to the best of his knowledge and belief, the assignments were signed by Winnard and Patricia is proof that "Losoya himself acknowledged and admitted his negligence in notarizing forged signatures of Winnard" and "the trial court admitted Losoya's statement admitting the notarization of Winnard's signatures."
Winnard concedes in his brief that this statement "may not qualify as an 'affidavit' in the traditional sense."
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Because Winnard's challenges to the trial court's findings of fact fail, we overrule Winnard's second issue.
We affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
100802F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
STANLEY D. WINNARD, Appellant
V.
J. GROGAN ENTERPRISES, LLC, Appellee
No. 05-10-00802-CV
Appeal from the 14th District Court of Dallas County, Texas. (Tr.Ct.No. Cause No. 089- 5300-A).
Opinion delivered by Justice Moseley, Justices FitzGerald and Richter participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee J. Grogan Enterprises, LLC recover its costs of this appeal from appellant Stanley D. Winnard.
Judgment entered April 30, 2012.
JIM MOSELEY
JUSTICE