Affirmed and Memorandum Opinion filed April 17,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-05-01052-CV
____________
THE CADLE=20
COMPANY, =
Appellant
V.
LUIS=20
SALAZAR, =
Appellee
On Appeal from the =
212th District Court
Galveston County, =
Texas
Trial Court Cause =
No. 03CV1576
M E M O R=20
A N D U M O P I N I O N
Appellant,=20
the Cadle Company (ACadle@),=20
purchased a promissory note from Hibernia National Bank =
(AHibernia@) for=20
which Luis E. Salazar was liable. After Salazar defaulted on =
the=20
note, Cadle sued Salazar for recovery. Salazar responded =
that the=20
statute of limitations had run and therefore Cadle could not=20
recover. The trial court agreed with Salazar. Cadle =
appeals=20
arguing that the trial court erred when it admitted =
Salazar=3Ds=20
testimony about the contents of certain letters Hibernia allegedly =
sent=20
him. We affirm.
Luis=20
Salazar, appellee, signed a promissory note for $78,000 in =
December 1994,=20
held by Hibernia National Bank. The note called for =
semi-annual=20
payments. Salazar did not make any payments on the note and, =
according to his testimony, Hibernia accelerated his obligations =
under the=20
note in 1995. In 1996, Cadle purchased the promissory note =
from=20
Hibernia. Cadle sent demand letters to Salazar and initiated =
suit to=20
recover on the note in 2003.
At the=20
bench trial, the only dispute was whether Hibernia accelerated the =
obligations under the note in 1995. Both parties agreed =
that, had=20
the note been accelerated in 1995, the statute of limitations =
would have=20
run. Cadle introduced testimony to the effect that the file =
on the=20
note contained no record of acceleration. Salazar testified =
that he=20
received letters from Hibernia accelerating the obligations. =
According to Salazar, he could not produce the notes because his =
ex-wife=20
allegedly had them in her possession. The trial court =
overruled=20
appellant=3Ds hearsay=20
objection and allowed Salazar to testify to the contents of the=20
letters. Following testimony and brief argument, the trial =
court=20
ruled in favor of Salazar on the basis of limitations.
Cadle=20
timely filed notice of appeal. He contends in two issues =
that the=20
trial court abused its discretion in permitting Salazar to testify =
to the=20
contents of the letters and that, absent Salazar=3Ds=20
testimony, there is no evidence on the issue of acceleration.=20
The=20
admission or exclusion of evidence is committed to the trial=20
court=3Ds sound=20
discretion. Carone v. Retamco Operating, Inc., 138 =
S.W.3d 1,=20
11 (Tex. App.CSan=20
Antonio 2004, pet. denied). A trial court abuses its =
discretion when=20
it acts without reference to any guiding rules or =
principles. =20
Id. An assignee of a promissory note stands in the =
shoes of=20
the assignor and obtains the rights, title, and interest that the =
assignor=20
had at the time of the assignment. See Lavender v. =
Bunch, No.=20
06‑06‑00074‑CV, ___ S.W.3d ____, 2007 WL 654276, =
at *3 (Tex.=20
App.CTexarkana=20
Mar. 6, 2007, no pet. h.) (citing Thweatt v. Jackson, 838 =
S.W.2d=20
725, 727 (Tex. App.CAustin=20
1992), aff=3Dd, 883=20
S.W.2d 171 (Tex. 1994)). Cadle, as the assignee of the note, =
stood=20
in the shoes of the assignor, Hibernia, thereby taking=20
Hibernia=3Ds place=20
with regard to the acceleration letters Hibernia allegedly =
sent. =20
Those letters contained statements by Hibernia and, by extension, =
Cadle;=20
therefore, because Salazar offered testimony regarding such =
statements=20
against Cadle, a party opponent, they were not hearsay. =
See=20
Tex. R. Evid. =
801(e)(2)(A)=20
(AA=20
statement is not hearsay if . . . [t]he statement is offered =
against a=20
party and is . . . the party=3Ds own=20
statement in either an individual or representative=20
capacity[.]@). =20
Thus, we cannot say the trial court abused its discretion in =
admitting=20
Salazar=3Ds=20
testimony. See Carone, 138 S.W.3d at 12 (holding that =
trial=20
court did not abuse discretion in admitting letters=3D =
contents=20
because they constituted admissions by party opponent under Rule=20
801(e)(2)(A) and thus were not hearsay); see also Flowers v.=20
Collins, 357 S.W.2d 179, 181 (Tex. Civ. App.CAustin=20
1962, writ dism=3Dd)=20
(holding that trial court did not err in admitting letters written =
by=20
trustee bank officer concerning withdrawal of trust funds and =
conversation=20
with beneficiary because they constituted admissions against =
interest and=20
thus fell under exception to hearsay rule). Accordingly, we =
overrule=20
Cadle=3Ds first=20
issue.
Having=20
found the trial court did not abuse its discretion in admitting=20
Salazar=3Ds=20
testimony, we need not reach Cadle=3Ds second=20
issue. The judgment of the trial court is =
affirmed.
/s/ =20
Leslie B. Yates
Justice
Judgment=20
rendered and Memorandum Opinion filed April 17, 2007.
Panel=20
consists of Justices Yates, Anderson, and=20
Hudson. |