                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS

 MARINA MARTINEZ,                                     §
                                                                 No. 08-07-00031-CV
                      Appellant,                      §
                                                                    Appeal from the
 v.                                                   §
                                                                  346th District Court
 MIDLAND CREDIT MANAGEMENT,                           §
 INC.,                                                          of El Paso County, Texas
                                                      §
                      Appellee.                                     (TC#2006-675)
                                                      §


                                                 OPINION

       Appellant, Marina Martinez, appeals the trial court’s grant of summary judgment in favor of

Appellee, Midland Credit Management, Inc. (“Midland”). Because Midland’s summary judgment

evidence does not establish that there are no genuine issues of material fact as a matter of law, we

reverse the judgment of the trial court and remand this case.

                                               BACKGROUND

       Midland brought suit against Martinez on February 9, 2006,1 to recover on a debt allegedly

owed by Martinez. Midland alleged that it “and/or its Predecessor” extended credit to Martinez for

the purchase of one or more items of goods, wares, merchandise, or services or for cash advances.

Midland alleged that Martinez accepted the credit extended by making charges on the credit card

account. Midland attached an affidavit to its petition that contained an exhibit which Midland stated

was “[a] brief summary of the account.” Midland alleged that “[t]his account represents a summary

total of a transaction or series of transactions of which a systematic record has been kept.” The


       1
           All subsequent dates herein are in 2006.
affidavit does not contain the printed name of the affiant, but appears to have been signed “E. Mart”

(the “Mart Affidavit”). The attached exhibit contains what appears to be a computer-generated,

single-page document that includes Martinez’s name, address, an account number, and a balance of

$2,076.74. Midland further alleged that Martinez defaulted in making payments on the debt

incurred, that it had demanded payment from Martinez, and that the balance, after all offsets, credits,

and payments, was $2,076.74. Midland sought judgment in the amount of the debt, plus attorney’s

fees, pre-judgment interest, post-judgment interest, and costs of court.

       On March 20, Martinez, representing herself, filed an answer, which was handwritten in

Spanish, but she did not serve a copy on Midland. At a default hearing on September 6, the trial

court and counsel for Midland realized for the first time that there was an answer on file. On

October 4, Midland filed its Motion for Summary Judgment. Midland listed an “Affidavit of a

representative of the Plaintiff” and an “Affidavit of an attorney for Plaintiff” as evidence supporting

summary judgment. Midland summarized the evidence as follows:

       a.     Plaintiff testifies through the Affiant on the affidavit on file here that a total
       balance of $2076.74 is due and payable to Plaintiff by Defendant.

       b.      Plaintiff testifies through said Affiant that the total amount of the account is
       due Plaintiff by Defendant and all just and lawful offsets, payments, and credits have
       been allowed.

       c.    Plaintiff testifies through said Affiant that though demand for payment has
       been made on Defendant, payment for the amount owing has not been tendered.
         d.      Plaintiff testifies through the attached affidavit by an attorney as to the issue
         of reasonable and necessary attorney’s fees.

The affidavit of Midland’s attorney concerning reasonable and necessary attorney’s fees was,

however, the only affidavit attached to the motion.

         On October 18, Martinez and Midland’s attorney attended a status hearing. The trial court

cautioned Martinez to retain or consult with counsel and advised her to seek pro bono legal services,

if she did not have the money to hire an attorney. The trial court also notified Martinez of the time

and date of the hearing on Midland’s motion for summary judgment. Martinez obtained counsel and

filed objections to Midland’s summary judgment evidence and a response. Martinez objected to the

Mart Affidavit on the grounds that it was not attached to Midland’s motion, was defective for lack

of personal knowledge, was based on hearsay, and was conclusory. Martinez also argued in her

response that Midland failed to present any evidence that it had an agreement with her or that it

owned the account in question. Martinez also filed an amended answer that contained a general and

verified denial of Midland’s claim.2

         The trial court granted Midland’s motion for summary judgment and awarded it $2,076.74

in damages, $486.81 in pre-judgment interest, post-judgment interest at 8.25 percent, $311.51 in

attorney’s fees, and costs of court. Martinez moved for a new trial, based on many of the same

arguments that she had asserted in her summary judgment response and objections. The trial court

denied the motion. On appeal to this Court, Martinez argues that the summary judgment evidence

was legally and factually insufficient to support judgment in favor of Midland. Martinez asks this


         2
          In her Objections to Plaintiff’s Summary Judgment Evidence and Response to Plaintiff’s Motion for Summary
Judgment, Martinez argued that, while Midland’s petition was vague, it appeared to assert a claim for suit on a sworn
account. Martinez, citing Bird v. First Deposit Nat’l Bank, 994 S.W .2d 280 (Tex. App.--El Paso 1999, pet. denied),
argued that Midland was not entitled to proceed on a sworn account theory to recover a credit card debt. At the hearing
on Martinez’s Motion for New Trial, Midland argued that its claim was one for breach of contract. In its Response Brief,
Midland reiterated that it had not filed a suit on a sworn account.
Court to reverse and render judgment in her favor, or alternatively, to reverse and remand this case

to the trial court.

                                           DISCUSSION

        A.       Standard of Review

        We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005); Bowen v. El Paso Elec. Co., 49 S.W.3d 902, 904 (Tex. App.--El Paso 2001,

pet. denied). To prevail on a summary judgment motion, the movant must establish that there are

no genuine issues of material fact issue and that it is entitled to judgment as a matter of law. See

TEX . R. CIV . P. 166a(c). Once the movant establishes a right to judgment as a matter of law, the

burden shifts to the non-movant to produce evidence raising a genuine issue of material fact. Id.;

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979). We take as true

all competent evidence favorable to the non-movant, and we indulge every reasonable inference and

resolve any doubts in the non-movant’s favor. Southwestern Elec. Power Co. v. Grant, 73 S.W.3d

211, 215 (Tex. 2002) (citing Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).

Where the trial court’s grant of summary judgment does not state the grounds upon which it relied

for its ruling, the summary judgment must be affirmed if any of the theories advanced is meritorious.

Aguilar v. Morales, 162 S.W.3d 825, 835 (Tex. App.--El Paso 2005, pet. denied) (citing Carr v.

Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).

        B.       The Mart Affidavit

        Martinez argues that the Mart Affidavit is defective because it is not based on personal

knowledge and because it fails to meet the requirements of the hearsay exception contained in Texas

Rule of Evidence 803(6). The Mart Affidavit recites that the affiant is “personally acquainted with

the facts herein stated.” The affidavit further recites:
                 2.      I am employed by Plaintiff, and I am custodian of the records of
         Plaintiff. Attached hereto are [sic] 1 page of records kept by Plaintiff in the regular
         course of business concerning account(s) # 4405600400097218. It was the regular
         business of Plaintiff and/or its Predecessor for an employee of Plaintiff and/or its
         Predecessor, with knowledge of the act, event, condition, opinion, or diagnosis
         recorded; and the record was made at or near the time of the event recorded or
         reasonable [sic] soon thereafter. The records attached hereto are exact duplicates of
         the originals.

                3.      These records show that a total balance of $ 2076.74 is due and
         payable to Plaintiff by Defendant(s).

         The Rules of Civil Procedure require that “[s]upporting 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.” See TEX . R.

CIV . P. 166a(f). The Rules of Evidence, however, provide the following hearsay exception:

                 A memorandum, report, record, or data compilation, in any form, of acts,
         events, conditions, opinions, or diagnoses, made at or near the time by, or from
         information transmitted by, a person with knowledge, if kept in the course of a
         regularly conducted business activity, and if it was the regular practice of that
         business activity to make the memorandum, report, record, or data compilation, all
         as shown by the testimony of the custodian or other qualified witness, or by affidavit
         that complies with Rule 902(10), unless the source of information or the method or
         circumstances of preparation indicate lack of trustworthiness. “Business” as used in
         this paragraph includes any and every kind of regular organized activity whether
         conducted for profit or not.

TEX . R. EVID . 803(6).

         We have held that:

         The predicate for admissibility under the business records exception is established
         if the party offering the evidence establishes that the records were generated pursuant
         to a course of regularly conducted business activity and that the records were created
         by or from information transmitted by a person with knowledge, at or near the time
         of the event.

Brooks v. Housing Auth. of City of El Paso, 926 S.W.2d 316, 321 (Tex. App.--El Paso 1996, no

writ).
       Business records that have been created by one entity, but which have become another

entity’s primary record of the underlying transaction may be admissible pursuant to rule 803(6).

Garcia v. Dutcher Phipps Crane & Rigging Co., No. 08-00-00387-CV, 2002 WL 467932, at *1

(Tex. App.--El Paso March 28, 2002, pet. denied) (mem. op., not designated for publication); see

also GT & MC, Inc. v. Texas City Refining, Inc., 822 S.W.2d 252, 257 (Tex. App.--Houston [1st

Dist.] 1991, writ denied) (invoices received from outside vendors were admissible upon testimony

by custodian of records as to the procedure by which the invoices became the company’s business

records). In addition, a document can comprise the records of another business if the second

business determines the accuracy of the information generated by the first business. Id.; see also

Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 812-13 (Tex. 1982) (subcontractors’ invoices became

integral part of builder’s records where builder’s employees’ regular responsibilities required

verification of the subcontractor’s performance and verification of the accuracy of the invoices);

Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106, 112-13 (Tex. App.--Dallas 1991, no writ)

(testimony by employees of mortgage insurer that documents received from a loan servicer were kept

in the ordinary course of business and formed the basis for an insurance payment satisfied the

requirements of rule 803(6)).

       Although rule 803(6) does not require the predicate witness to be the record’s creator or have

personal knowledge of the content of the record, the witness must have personal knowledge of the

manner in which the records were prepared. In re K.C.P., 142 S.W.3d 574, 578 (Tex. App.--

Texarkana 2004, no pet.). Documents received from another entity are not admissible under rule

803(6), if the witness is not qualified to testify about the entity’s record keeping. See Powell v.

Vavro, McDonald, & Assoc., L.L.C., 136 S.W.3d 762, 765 (Tex. App.--Dallas 2004, no pet.)

(custodian of records for travel agency was not qualified to testify as to records received from third-
party company, showing credits to customers’ credit card account). In this case, the affiant does not

provide any information that would indicate that he (or she) is qualified to testify as to the record-

keeping practices of the “predecessor.” The affiant does not identify the predecessor, nor does he

provide any information concerning the acquisition of the attached record. The affiant does not

indicate in any way that he has any knowledge of the predecessor’s record-keeping policies or that

the records are trustworthy. In fact, the affiant does not even provide his full name. As such, the

Mart Affidavit did not satisfy the requirements of rule 803(6), and the trial court erred by admitting

it.

       Midland does not address this issue, but argues that summary judgment was proper because

Martinez admitted to owing the debt in her original answer. However, seven days prior to the date

set for hearing on Midland’s motion for summary judgment, Martinez amended her original answer

to include a general denial and a verified denial of Midland’s allegations. Martinez’s original answer

was therefore a superceded pleading. Statements contained in a superceded pleading are not

conclusive and indisputable judicial admissions. Sosa v. Central Power & Light, 909 S.W.2d 893,

895 (Tex. 1995) (amended petition filed seven days prior to summary judgment hearing precluded

summary judgment based on admissions contained in superceded petition); see also Tyra v. Bob

Carroll Const. Co., 618 S.W.2d 853, 856 (Tex. Civ. App.--El Paso 1981), aff’d, 639 S.W.2d 690

(Tex. 1982) (admissions contained in a superceded pleading are not binding on the pleader). In order

to rely on a superceded pleading as summary judgment evidence, the movant must introduce it into

evidence as any other admission before it may be considered as evidence. MBank Brenham, N.A.

v. Barrera, 721 S.W.2d 840, 842 (Tex. 1986) (motion for summary judgment based on admission

in superceded pleading was defective, unless a copy of the pleading was attached with supporting

affidavits or other authentication). Because Midland did not include the superceded pleading in its
summary judgment evidence, it could not be considered.

         Additionally, “[a] motion for summary judgment must itself expressly state the grounds upon

which it is made, and must stand or fall on these grounds alone.” Guereque v. Thompson, 953

S.W.2d 458, 466 (Tex. App.--El Paso 1997, pet. denied) (citing McConnell v. Southside Indep. Sch.

Dist., 858 S.W.2d 337, 341 (Tex. 1993)). Midland made no mention of the superceded pleading or

the purported admission in its motion for summary judgment. It was therefore no ground for a

summary judgment. Because we sustain Martinez’s issue in this regard, we do not address her

remaining issue.3

                                                 CONCLUSION

         The only summary judgment evidence offered by Midland, other than the Mart Affidavit, was

the affidavit of its attorney concerning attorney’s fees. Midland offered no admissible evidence

concerning its claim, and the trial court erred when it granted summary judgment in favor of

Midland. The judgment of the trial court is reversed and this case is remanded to the trial court.


                                                       KENNETH R. CARR, Justice

March 13, 2008

Before Chew, C.J., McClure, and Carr, JJ.




         3
            Martinez also argues that the Mart Affidavit may not be considered as summary judgment evidence, because
it was attached to Midland’s petition and not to the motion for summary judgment. Because we have sustained Martinez’s
issue regarding admissibility of the affidavit, we do not address this issue. Nevertheless, we note this Court’s opinion
in Menchaca v. Menchaca, 679 S.W.2d 176, 178 (Tex. App.--El Paso 1984, no writ).
