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Click here for the full text of this decision FACTS:Texas Timberjack Inc. (Timberjack) sued Billy Robinson for breach of contract. Robinson entered into two separate agreements to purchase logging equipment from Timberjack. When Robinson stopped making payments, Timberjack repossessed the equipment and filed suit against Robinson, seeking recovery of the remaining sum owed. Timberjack filed a verified petition to initiate the suit and served requests for admissions on Robinson. Timberjack then moved for summary judgment based in part on two written agreements and an affidavit by Tony Damron, an agent of Timberjack. The trial court granted summary judgment in favor of Timberjack. Robinson appealed, contending the trial court erred in granting that judgment. HOLDING:Reversed and remanded for further proceedings. Timberjack asserts that the granting of summary judgment was proper because Robinson failed to deny the allegations in the sworn petition by a proper verified denial as required by Texas Rules of Civil Procedure 93 and 185. The court holds that Timberjack is precluded from advancing this argument on appeal because Timberjack failed to timely do so at the trial court level. The court points out that Timberjack presented two distinct arguments in its motion for summary judgment, neither of which touched on Robinson’s failure to file a verified denial. The court finds that Timberjack did, in its response to Robinson’s motion for new trial, address Robinson’s failure to file a verified denial. But the court holds that was insufficient to preserve the issue for appellate review. Timberjack also seeks, on appeal, to rely on Robinson’s written responses to its requests for admissions. But the court holds that because these written responses were not relied on in Timberjack’s motion for summary judgment, it will not consider them on appeal. Robinson contends the Damron affidavit is not competent summary judgment evidence and should not have been considered by the trial court. The court agrees and holds that the affidavit does not show how Damron acquired his personal knowledge of the facts presented in the affidavit. Although the affidavit states that Damron is an agent of Timberjack, the court finds that it does not state whether he was an agent during the relevant periods or how his status as an agent put him in a position to gain such knowledge. Nor is it readily apparent that Damron’s status as an agent of Timberjack would put him in such a position. Further, the court finds that there is other summary judgment evidence in the form of an affidavit by Robinson which challenges whether Damron was in a position to acquire personal knowledge of the relevant facts. Therefore, the court holds that the Damron affidavit is not competent summary judgment evidence and should not have been considered by the trial court. Because the remaining evidence is insufficient to support a granting of summary judgment in Timberjack’s favor, the court reverses the summary judgment and remands this cause to the trial court for further proceedings. OPINION:Ross, J.; Morriss, C.J., Ross and Carter, JJ.

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