Clark v. Dedina

• Decision Date: 15 September 1983
• Docket Number: No. 01-83-0301-CV,01-83-0301-CV
• Parties: Maynard CLARK, Appellant, v. Sandra K. DEDINA, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 293

658 S.W.2d 293

Maynard CLARK, Appellant, v. Sandra K. DEDINA, Appellee.

No. 01-83-0301-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Sept. 15, 1983.

Rehearing Denied Oct. 13, 1983.

Daniel Goldberg, Goldberg & Keiter, Houston, for appellant.

Thomas Sims, Houston, for appellee.

Before EVANS, C.J., and BULLOCK and LEVY, JJ.

OPINION

LEVY, Justice.

Appellant, the maker of a promissory note, seeks reversal of a summary judgment granted in favor of the payee thereof.

In his first point of error, appellant urges that the trial court erred in assessing post-judgment interest at the rate of 18% per annum, arguing that the maximum allowable by statute is 10%. ¹ Pursuant to Rule 434 of the Texas Rules of Civil Procedure, we modify the judgment so as to provide that interest will accrue on the amount of the award at the rate of 10% per annum from and after February 8, 1983, the date of judgment. Earl Hayes Rents Cars & Trucks v. City of Houston, 557 S.W.2d 316 (Tex.Civ.App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.).

In points of error two through four, appellant argues that the trial court erred in granting summary judgment for appellee as a matter of law, because she failed to establish all elements of her cause of action, and also because genuine issues of material fact were raised by way of his affirmative defenses.

Appellant first urges that appellee failed to establish all essential elements of her cause of action. An examination of appellant's pleadings and affidavits reveals no mention of this contention and pursuant to Rule 166-A(c) appellant cannot first complain of this on appeal. See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Contrary to appellant's contention, appellee need not prove all essential elements of a breach of contract, but only must establish the note in question, that appellant signed the note, that appellee was the legal owner and holder thereof, and that a certain balance was due and owing on the note. Bailey v. Gulfway Nat'l Bank of Corpus Christi, 626 S.W.2d 70 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.).

Appellee's summary judgment evidence shows that she did swear in her affidavit that true and correct copies of the note in question were attached. The Texas Supreme Court has held that a photocopy of a note, attached to an affidavit, in which the affiant swore that the photocopy was a true and correct copy of the original note, constitutes a "sworn copy" within the meaning of Rule 166-A(c) and is proper summary judgment evidence. Life Insurance Co. of Virginia v. Gar-dal, 570 S.W.2d 378 (Tex.1978). Appellee also swore in her affidavit that she was the owner and holder of the note, and that there was a balance due in the amount stated sufficient to sustain a finding of damages. Ecurie Cerveza Racing Team, Inc. v. Texas Commerce Southeast, 633 S.W.2d 574 (Tex.Civ.App.--Houston [14th Dist.] 1982, no writ). In an action by the holder of a note against the maker, the introduction of the note in evidence makes a prima facie case for the holder, where the execution of the note has not been denied under oath. Hagar v. Texas Distributors Inc., 560 S.W.2d 773 (Tex.Civ.App.--Tyler 1977, writ ref'd n.r.e.). In the absence of appellant's denial of execution, the validity of his signature is admitted. Tex.Bus. & Com.Code Ann. § 3.307(b) (Vernon 1968). Appellant's second point of error is overruled.

In his third point of error, appellant complains that the trial court erred in granting summary judgment because the appellant pleaded and raised genuine issues of material fact in his affidavit and response to the motion for summary judgment. Mere pleading, however, of an affirmative defense does not prevent the rendition of summary judgment for a plaintiff who has established conclusively the non-existence of disputed fact issues in his claim for relief. Taylor v. Fred Clark Felt Co., 567 S.W.2d 863 (Tex.Civ.App.--Houston [14th Dist.] 1978, writ ref'd n.r.e.); Hudnall v. Tyler Bank & Trust Co., 458 S.W.2d 183 (Tex.1970). In order to show a disputed fact issue which will preclude the rendition of summary judgment for the plaintiff, the defendant must offer summary judgment proof on each element of at least one of the affirmative defenses it has pleaded. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974). Appellant herein has raised several affirmative defenses: fraud in the inducement, material alteration, and failure of consideration. If sufficient summary judgment evidence was presented on all elements of at least one of these defenses, then under Seale, supra, the appellant would have raised a genuine issue of material fact and the summary judgment against him was improper. Each affirmative defense will be discussed separately in the same order as presented in appellant's brief.

FRAUD IN THE INDUCEMENT

Asserting generally that the appellee made misrepresentations to him, upon which he relied to his detriment, appellant states that appellee knew the note was secured by the accounts receivable of Vickers & Vickers, that she knew the note was to run to the benefit of the corporation and not to him, and that he intended to sign a receipt, not a promissory note. Appellant further states that appellee wrongly obtained his signature in an individual capacity. These general assertions as to knowledge and intent are merely conclusions or opinions which are not admissible and do not raise fact questions. See Sharpe v. Lomas & Nettleton Financial Corp., 601 S.W.2d 55 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.). To prove fraud in the inducement sufficiently to allow any exception to the parol evidence rule to come into play, there must be a showing of some type of trickery, artifice or device employed by the payee in addition to the showing that the payee represented to the maker that he would not be liable. See Town North Nat'l Bank v. Broaddus, 569 S.W.2d 489 (Tex.1978). Appellant relies heavily on Viracola v. Dallas Int'l Bank, 508 S.W.2d 472 (Tex.Civ.App.--Waco 1974, writ ref'd n.r.e.) but the type of elaborate scheme presented by the defendant therein cannot be found in appellant's merely conclusory assertions in his summary judgment proof in the case at bar. Any evidence appellant has brought regarding fraud in the inducement is barred by the parol evidence rule. Summary judgment proof must present such facts as would be admissible in evidence. Tex.R.Civ.P. 166-A(e). No genuine issue of material fact has been raised on this point. Appellant asserts the trickery involved was appellee's representation that the note was merely a receipt, not a promissory note. In support of this claim, his only proof is his statement that his intent in signing the note was solely to evidence the receipt of the money. An examination of the copy of the promissory note shows that it clearly is designated a "promissory note". A party is charged with the obligation of reading what he signs. Lawler v. Federal Insurance Corp., 538 S.W.2d 245 (Tex.Civ.App.--Beaumont 1976, writ ref'd n.r.e.). The mere assertion by appellant of his subjective intention to sign the note as an agent of the corporation is insufficient to raise a fact issue as to his non-liability in the capacity in which he was sued, Sims v. Wiechers, 589 S.W.2d 471 (Tex.Civ.App.Texarkana 1979, no writ), and his point of error regarding fraud in the inducement is overruled.

MATERIAL ALTERATION

Appellant also contends that he raised a genuine issue of material fact relating to material alteration of the note. The only...