Barrera v. MBank Brenham, N.A., A14-85-721-CV

• Decision Date: 28 August 1986
• Docket Number: No. A14-85-721-CV,A14-85-721-CV
• Citation: 718 S.W.2d 763
• Parties: Leo BARRERA, Jr., Appellant, v. MBANK BRENHAM, N.A., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 763

718 S.W.2d 763

Leo BARRERA, Jr., Appellant, v. MBANK BRENHAM, N.A., Appellee.

No. A14-85-721-CV.

Court of Appeals of Texas Houston (14th Dist.).

Aug. 28, 1986.

Rehearing Denied Oct. 2, 1986.

John V. Elick, Bellville, for appellant.

William Betts, Jr., Brenham, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and ROBERTSON, JJ.

OPINION

MURPHY, Justice.

This is an appeal from a partial summary judgment and judgment non obstante veredicto entered in favor of appellee, MBANK Brenham (MBANK). The underlying cause of action concerned a suit on a promissory note by plaintiff/appellee MBANK, and a counterclaim by appellant/defendant Barrera for wrongful dishonor of a check by MBANK. A partial motion for summary judgment was granted to MBANK on the issue of liability on appellant's counterclaim for wrongful dishonor. Furthermore, after a jury trial on the remaining issues in the underlying suit, a judgment non obstante veredicto was entered in favor of MBANK on its claim for attorney's fees. In two points of error, appellant complains that the trial court erred: (1) in granting partial summary judgment as to his counterclaim, as genuine issues of material fact exist on the issue of wrongful dishonor; and (2) in rendering judgment non obstante veredicto for attorney's fees because of MBANK's failure to obtain favorable jury findings to support such a judgment. We affirm in part and reverse and remand in part.

Although appellant fragments his first point of error into several "pivotal" issues, our review necessarily addresses the sole point of error properly before us: whether the trial court erred in granting summary judgment on the grounds that genuine issues of material fact exist as to whether or not his check was wrongfully dishonored by MBANK. In order to address this contention, we will review the facts surrounding the acceleration of the note, the offset of funds in his account, and the dishonor of one of his checks by MBANK when presented for payment.

On October 8, 1982, appellant executed and delivered a promissory note to appellee MBANK, in which appellant promised to pay the principal sum of $4,728.42. The note provided for twenty-four consecutive payments in monthly installments of $239.74 each. The first installment payment was due and payable on November 1, 1982, and on the first of each month thereafter until duly paid on October 1, 1984. The loan was secured by a Chevrolet truck which was purchased with the proceeds from the note. It was alleged by MBANK that no payments were made on the note as of April 1, 1983, or at any time thereafter.

Appellee's original petition alleged a default on the note as of April 1, 1983, and an acceleration of the note on August 9, 1983. This acceleration allegation in the original petition incorporates by reference a demand letter attached as Exhibit B. That letter is dated August 9, 1983, and it states that the note was accelerated on June 16, 1983. Moreover, appellee's first original amended petition alleges an acceleration date of June 6, 1983, and its second original amended petition alleges that acceleration occurred on June 7, 1983. Appellee's motion for summary judgment alleges a June 7, 1983, acceleration date. In granting appellee's motion for summary judgment, the court found that the note was properly accelerated by MBANK on June 7, 1983.

The above allegations as to the date on which acceleration occurred are important to this appeal because on June 7, 1983, a check drawn on appellant's account was received by MBANK for payment. Payment was refused, however, for reason of insufficient funds, such insufficiency occurring because of the acceleration and offset of appellant's account. MBANK responds that under banking procedures the check was not "properly payable" until June 8, because of its receipt past the 2:00 p.m. banking deadline. In keeping with its ultimate allegation that appellant's account was offset on June 7, MBANK responds that payment was properly refused on his check.

As can be discerned from that stated above, the crucial issue for purposes of this appeal is whether or not appellant's account was properly offset before his check was properly payable. In that regard appellant argues that the summary judgment on his counterclaim was improper because the date discrepencies in MBANK's pleadings raise a fact issue on that matter. For the reasons stated below we agree.

At the outset we note that a movant is not entitled to a summary judgment where there exists a material issue of fact. TEX.R.CIV.P. 166-A. The burden of establishing the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against him. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). Furthermore, the rule governing summary judgments is not intended to deprive a litigant of a full hearing on the merits when there exists an issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (Tex.1952). Recognizing that a summary judgment is a harsh remedy, trial courts must deny a motion for summary judgment unless the movant clearly establishes a right thereto as a matter of law. Wilcox v. St. Mary's University of San Antonio, Inc., 531 S.W.2d 589, 592-93 (Tex.1975); Hine v. Bankers Life & Casualty Co., 572 S.W.2d 804, 805 (Tex.Civ.App.--Houston [14th Dist.] 1978, no writ).

As a general rule, a substituted or amended instrument takes the place of the original. TEX.R.CIV.P. 65. Although not conclusively binding as are judicial admissions, abandoned pleadings may contain properly admissible ordinary admissions. See, e.g., McCormick v. Stowe Lumber Co., 356 S.W.2d 450, 459 (Tex.Civ.App.--Austin 1962, writ ref'd n.r.e.). Such admissions are admissible under the rule providing summary judgment procedure. TEX.R.CIV.P. 166-A. Furthermore,...