Bell v. First Nat. Bank in Dallas, 20257

• Citation: 597 S.W.2d 521
• Decision Date: 27 March 1980
• Docket Number: No. 20257,20257
• Parties: James E. BELL, Appellant, v. FIRST NATIONAL BANK IN DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 521

597 S.W.2d 521

James E. BELL, Appellant, v. FIRST NATIONAL BANK IN DALLAS, Appellee.

No. 20257.

Court of Civil Appeals of Texas, Dallas.

March 27, 1980.

Marvin G. Shwiff, Shwiff, Caraway & Emerson, Dallas, for appellant.

Robert S. Addison, Storey, Armstrong, Steger & Martin, Dallas, for appellee.

Before GUITTARD, C. J., and AKIN and STOREY, JJ.

STOREY, Justice.

James E. Bell has appealed from a summary judgment granted First National Bank in Dallas. The sole ground of the appeal complains that the trial court "erroneously assumed that under Texas law a plaintiff's release to an innocent party releases all tort-feasors." Bell relies upon the supreme court's holding in McMillen v. Klingensmith, 467 S.W.2d 193 (Tex.1971), which abolished the common law rule, sometimes referred to as the unity of release rule, and adopted in its stead the rule that a release of a party or parties named or otherwise specifically identified fully releases only the parties so named or identified but no others. Id. at 196. We agree that the rule set forth in McMillen is controlling, but we reach the opposite conclusion from that urged by Bell, because the summary judgment evidence in this case demonstrates that the bank is "otherwise specifically identified" as one of the parties included in the release. We therefore affirm the summary judgment.

Bell sued the bank alleging that on October 18, 1977, it wrongfully repossessed a certain 1976 Mercury automobile because having previously accepted late payments, it had waived the right to require prompt payment. He alleged that the bank's repossession after refusing to accept delinquent payments amounted to conversion for which he was entitled to actual and exemplary damages.

The bank's summary judgment evidence included plaintiff's original petition in a prior suit numbered 78-7552-G, styled James E. Bell v. Jack Marshall Lincoln Mercury, Inc., which prayed for identical damages from defendant upon the identical allegations of wrongful repossession and conversion as are contained in the suit against First National Bank. The prior suit ended in judgment of dismissal with prejudice based upon a Compromise Settlement Agreement and Release of All Claims, which provides in part:

Whereas James E. Bell, hereinafter called Bell, has heretofore filed suit against Jack Marshall Lincoln Mercury, Inc., hereinafter called Jack Marshall, alleging wrongful conversion of an automobile and failure to notify of a public or private sale, all as more fully set out in the pleadings, said suit being cause no. 78-7552-G in the 134th District Court of Dallas County, Texas; and, . . .

That the undersigned, James E. Bell, for and in consideration of the sum of Five Hundred Dollars ($500.00) paid to him on behalf of Jack Marshall Lincoln Mercury, Inc., receipt of which he hereby acknowledges, does hereby release Jack Marshall Lincoln Mercury, Inc., and any and all other persons, firms or...