In Charles Germany v. Wells Fargo Bank, N.A., (Tex.App.- 2019) the Fourteenth Court of Appeals in Houston was asked to review a summary judgment the Bank had obtained with very sparse documentation consisting of an affidavit, a copy of a boilerplate credit card agreement, and two nonconsecutive billing statements with non-matching account numbers on them. Like the majority of consumers sued on credit card debt, Mr. Germany did not have an attorney in the trial court, but he obtained one to handle the appeal, which is rare. By filing a pro se answer after he was served with citation, he prevented a default judgment, but he did not contest the Bank's summary judgment motion. Under Texas law, however, the absence of a response does not preclude an appeal to challenge the propriety of summary judgment under the matter-of-law standard. In his appellant’s brief, counsel for Germany demonstrated that the Wells Fargo’s summary judgment affidavit was not in accord with the attached documentation in multiple respects even though Wells Fargo’s affiant asserted that his “personal” knowledge was obtained from a review of those business records. As such, the summary judgment evidence was not free of contradictions, as required, and the summary judgment granted by the trial court should have been reversed. A three-judge panel of the appellate court nevertheless overruled the appellant’s issues concerning three discrete discrepancies: account type, account numbers, and amount actually due (accelerated balance vs. amount due). In doing so, the Panel resorted to a highly unconventional method that is incompatible with judicial notice as hitherto know: It engaged in sua sponte speculation of its own and supported the plausibility of its speculations with references to legal cases that it cited for facts contained within them, rather than for legal propositions. These facts included matters concerning Wells Fargo credit card products and changes in account numbers. Having satisfied itself that the incongruities it had examined could be reconciled, the Panel then concluded that inconsistencies precluding summary judgment did not exist in the summary judgment record before it, and affirmed the judgment. As a general rule, findings of facts have no place in the summary judgment context; not to mention findings of facts taken from a different case by a court of appeal on its own initiative, and disclosed to the parties first time upon issuance of the opinion. The Texas Rules of Appellate Procedure (TRAPs) and the case law governing judicial notice do not approve of the use of facts gleaned from legal opinions issued by other courts to address deficiencies in the record of the case before an appellate court. Finally, under the summary standard any doubts about what the evidence does or does not establish are to be resolved in the nonmovant's favor. The nonmovant in this case was Germany, rather than Wells Fargo Bank, N.A. Because the appellate panel should not have relied on extraneous factual matters it adduced on its own for the first time on appeal, with no opportunity to object to relevance or admissibility, and because the evidence presented by the Bank to the trial court was equivocal, the affirmance of the summary judgment for the Bank was in error. Other courts should reject this case as standing for the proposition that appellate courts may conduct their own sua sponte search for facts recited in legal opinions without any input by the parties, and that appellate courts may rely on such extrinsic facts in deciding the issues raised in an appeal, citing legal cases for the factual recitations in them, rather than for legal propositions. CASE CITE: Charles J. Germany, Jr. v. Wells Fargo Bank, N.A. (Tex.App. – Houston [14th Dist.] Feb. 7, 2019, pet. filed).
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Oct 15, 2024
Robert Roberts 
Open Access