Cromeens v. Arnold Cotton Co.

• Decision Date: 31 December 1970
• Docket Number: No. 531,531
• Citation: Cromeens v. Arnold Cotton Co., 461 S.W.2d 505 (Tex. Ct. App. 1970)
• Parties: T. J. CROMEENS et al., Appellants, v. ARNOLD COTTON COMPANY, Appellee.
• Court: Texas Civil Court of Appeals

Page 505

461 S.W.2d 505

T. J. CROMEENS et al., Appellants, v. ARNOLD COTTON COMPANY, Appellee.

No. 531.

Court of Civil Appeals of Texas Tyler.

Dec. 31, 1970.

Rehearing Denied Jan. 21, 1971.

W. D. Julian, Crockett, Maroney & Cely, John Cely, Lufkin, for appellants.

Sallas, Griffith & Meriwether, J. B. Sallas, Granberry, Hines & Gordon, F. P. Granberry, Crockett, for appellee.

DUNAGAN, Chief Justice.

This is a summary judgment case. Appellee D. H. Arnold, d/b/a Arnold Cotton Company, filed suit in the District Court of Houston County, Texas, on July 6, 1961, being Cause No. 8681 against the appellants, T. J. Cromeens and wife, Corlene Cromeens, on a promissory note executed by them on December 19, 1956, payable to the appellee in the principal sum of $18,000.00, bearing interest at the rate of 10% Per annum and providing for the usual attorneys' fees of 10% For collection thereof, being payable on November 1, 1957, and for foreclosure of a deed of trust lien given to secure the payment of said note. On September 1, 1961, the appellants, T. J. Cromeens and wife, J. N. Crimes and wife, joined by one Ed Grimes, instituted suit in the same court under cause No. 8697 seeking a restraining order to enjoin Arnold Cotton Company and J. B. Sallas, trustee, from conducting a trustee's sale. It is alleged in the petition that on or about December 19, 1956, J. N. Grimes and wife executed a deed of trust to J. B. Sallas, trustee for Arnold Cotton Company, to secure the payment of their promissory note of even date therewith in the sum of $7,000.00 payable to Arnold Cotton Company. It is further alleged in said petition that on July 25, 1961, J. B. Sallas posted notice of trustee's sale allegedly under the terms of the deed of trust executed by J. N. Grimes and wife. The plaintiffs in cause No. 8697 sought only to enjoin Arnold and Sallas from proceeding with the trustee's sale under the terms of the Grimes' deed of trust. Thereafter on October 4, 1961, appellee by way of a cross-action in cause No. 8697 sued J. N. Grimes and wife, Jimmie B. Grimes, on the promissory note dated December 19, 1956, executed by the Grimes and payable to appellee in the principal sum of $7,000.00, bearing interest at the rate of 10% Per annum and with the usual provision for attorneys' fees of 10% For collection, being due and payable on November 1, 1957, and for foreclosure of the deed of trust lien also dated December 19, 1956, given to secure the payment of said note. The Cromeens' and Grimes' deeds of trust do not involve the same property. On September 1, 1961, in cause No. 8697 the trial court granted a temporary restraining order enjoining appellee Arnold and J. B. Sallas, trustee, from proceeding with the sale under the deed of trust given by the Grimes. Thereafter on January 17, 1964, on motion of the Grimes and Cromeens, the trial court by written order consolidated the two causes of action.

After consolidation of cause Nos. 8681 and 8697, Ed. Grimes intervened as defendant in cause No. 8681 alleging that the promissory notes of both the Cromeens and Grimes were pure accommodation notes and only as accommodation for Arnold Cotton Company and the intervenor Ed Grimes and also that the notes had been paid. The appellee Arnold on October 28, 1969, filed his motion for summary judgment against the appellants with affidavits of D. H. Arnold and Loretta Halyard, office manager of Arnold Cotton Company, attached thereto. Ed Grimes, J. N. Grimes and wife, Jimmie B. Grimes, and the Cromeens duly and timely filed their respective sworn answers to appellee's motion for summary judgment accompanied by the affidavits of Ed Grimes, Dorlene Cromeens, J. N. Grimes and T. J. Cromeens. After a hearing thereon the court rendered judgment awarding appellee the sum of $46,244.00 with interest thereon from April 27, 1970, at 10% Per annum against T. J. Cromeens and wife, Dorlene Cromeens, and the sum of $17,983.72 with interest thereon from April 27, 1970, until paid at the rate of 10% Per annum against J. N. Grimes and wife, Jimmie B. Grimes; dissolved the temporary restraining order theretofore granted in cause No. 8697 and denied all injunctive relief therein sought; and also allowed foreclosure on the real property securing the debts. From this judgment J. N. Grimes and wife and the Cromeens have duly perfected their appeal to this court.

Appellants under their points of error 1 and 2 urge that the trial court erred (1) 'in holding that the affidavits on file did not create a genuine issue of material fact because said affidavits amounted to some evidence that the promissory notes made the basis of appellee's suit had been paid,' and (2) 'in rendering summary judgment in favor of appellee because the affidavits on file present some evidence, more than no evidence, that the promissory notes made the basis of appellee's claim had been paid.'

In determining the matter of rendering or affirming a summary judgment in favor of a party, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup., 1970); Harrington v. Young Men's Christian Association of Houston, 452 S.W.2d 423 (Tex.Sup., 1970); Rule 166--A(c), Texas Rules of Civil Procedure. The burden of proof rests upon the movant and appellant is not required to prove anything. Stover v. Concrete Sawing and Sealing Corporation, 440 S.W.2d 422 (Tex.Civ.App., Ft. Worth, 1969, n.w.h.); Tubb v. Carter-Gragg Oil Company, 455 S.W.2d 843, 847 (Tex.Civ.App., Tyler, 1970, writ ref., n.r.e.).

Applying the principles so well established governing summary judgment cases, Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.Sup., 1965); Parrott v. Garcia, 436 S.W.2d 897 (Tex.Sup., 1969), it becomes obvious that the summary judgment proof in the case at bar does not establish as a matter of law that the promissory notes upon which this lawsuit is founded had not been paid.

The affidavits of both Ed Grimes and D. H. Arnold show that T. J. Cromeens and wife, Dorlene Cromeens, appellants, executed a promissory note in the principal sum of Eighteen Thousand Dollars, dated 19 December, 1956, payable to the order of Arnold Cotton Company on demand, but if not demanded sooner, then due on November 1, 1957, bearing interest from date until paid at the rate of ten per cent per annum; and that J. N. Grimes and wife, Jimmie B. Grimes, appellants, executed a promissory note in the principal amount of Seven Thousand Dollars, dated December 19, 1956, payable to the order of Arnold Cotton Company on demand, but if not demanded sooner, then due on November 1, 1957, bearing interest from date until paid at the rate of ten per cent per annum, both of which notes were secured by deeds of trust on real estate in Houston County, Texas, owned by the appellants, T. J. Cromeens and wife, Dorlene Cromeens, and J. N. Grimes and wife, Jimmie B. Grimes. The affidavits of appellants, J. N. Grimes and T. J. Cromeens and Dorlene Cromeens state that these notes were made as accommodation to Ed Grimes, the father of J. N. Grimes and Dorlene Cromeens, and that they received no money therefor.

The affidavit of Ed Grimes shows that the total sum of the payments made by him to Arnold Cotton Company from December, 1956, through February, 1957, exceeded the principal sum of the notes in question together with accrued interest; that said payments were made by Ed Grimes for T. J. Cromeens and Dorlene Cromeens and J. N. Grimes and Jimmie B. Grimes to Arnold Cotton Company to be applied to the payment of said notes as long...