Deer Creek Ltd. v. North American Mortg. Co.

• Decision Date: 06 June 1990
• Docket Number: No. 05-89-00951-CV,05-89-00951-CV
• Citation: 792 S.W.2d 198
• Court: Texas Court of Appeals
• Parties: DEER CREEK LIMITED and Richard L. Davis, Appellants, v. NORTH AMERICAN MORTGAGE COMPANY, Security Savings & Loan Association, and Southwest Savings Association, Appellees.

Page 198

792 S.W.2d 198

DEER CREEK LIMITED and Richard L. Davis, Appellants, v. NORTH AMERICAN MORTGAGE COMPANY, Security Savings & Loan

Association, and Southwest Savings Association, Appellees.

No. 05-89-00951-CV.

Court of Appeals of Texas,

Dallas.

June 6, 1990.

Rehearing Denied July 23, 1990.

B. Prater Monning, III, and Carol Wolfram, Dallas, for appellants.

Steven J. Lownds, Ronald A. Dubner and Richard D. Anigian, Dallas, for appellees.

Before McCLUNG, KINKEADE, and OVARD, JJ.

OPINION

OVARD, Justice.

Deer Creek Limited (Deer Creek) and Richard L. Davis (Davis) appeal from a summary judgment in favor of appellees, North American Mortgage Company (North American), Security Savings and Loan Association (Security Savings) and Southwest Savings Association (Southwest Savings), denying relief in their suit involving a note, claiming fraud. In their answer, appellees generally denied the allegations and relied on the affirmative defenses of release, waiver, estoppel, and accord and satisfaction. On appeal, appellants claim the release and waiver do not bar their claims and the trial court erred in entering summary judgment in appellees' favor. We disagree and affirm the judgment of the trial court.

In February 1984, Deer Creek executed a promissory note in the amount of $2,300,000, payable to North American. The note was participated out to Security Savings and Southwest Savings equally, while North American continued to service the loan. Davis, a general partner in Deer Creek, signed the note as guarantor. In the note, North American recited its intention to fund the loan by a fixed rate/fixed term advance from federal home loan banks. By the terms of the note, the loan was not prepayable for two years. Thereafter, Deer Creek could prepay the loan only after payment of a "prepayment premium equal to all sums, if any, which the Lender [North American], and its successors and assigns, is required to pay to the Federal Home Loan Banks as a fee, penalty or premium for payment of the advance." During early 1986, Davis sought to refinance the note to obtain a lower interest rate. In his affidavit, Davis stated that he had an opportunity to secure financing from GMAC, if he could do so by June 1986. There is nothing in the record to show Davis had obtained a commitment from GMAC or any other lender. During most of 1986, there was a dispute between the parties concerning the amount of the prepayment penalty due and payable upon the note by Deer Creek, in the event the note was prepaid. On November 11, 1986, Deer Creek refinanced the loan in question with appellees. On that same date, the parties signed a document entitled "Mutual Release" which purported to release all parties from any and all claims concerning the prepayment provisions of the note. On September 28, 1987, a modification agreement was signed by the parties, modifying the 1986 document. The modification agreement also included a waiver. In March 1988, Davis suspected appellees had not been completely honest in their dealings with Deer Creek. In April 1988, Davis and Deer Creek filed this lawsuit.

To obtain a summary judgment, the movant must establish as a matter of law that no genuine issue of material fact exists. TEX.R.CIV.P. 166a; Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex.1985). To prevail as a defendant, the movant must negate, as a matter of law, one or more elements of each of the plaintiff's causes of action, or prevail as a matter of law on a defense to each of the plaintiff's causes of action. Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). In determining whether appellees have carried this burden, we must resolve all doubts as to the existence of an issue of fact against them, as movants, viewing the evidence in the light most favorable to the appellants, as nonmovants, disregarding any conflicts in the evidence and accepting as true the evidence which tends to support the position of appellants. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). When a defendant moves for summary judgment based on an affirmative defense, the defendant bears the burden of proving each essential element of the affirmative defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). If the defendant/movant establishes the affirmative defense as a matter of law, then the plaintiff/nonmovant must raise a fact issue concerning the matter injected by plaintiff in confession and avoidance of the affirmative defense. Sanchez v. Memorial Medical Center Hosp., 769 S.W.2d 656, 658 (Tex.App.--Corpus Christi 1989, no writ).

In the instant case, appellees moved for summary judgment based on the 1986 mutual release and the waiver contained in the 1987 modification agreement. Appellants then asserted the affirmative defense of fraud in the inducement. In support of their motions for summary judgment, appellees offered portions of the oral depositions of F. Michael Seay, counsel for appellants, and of Davis. In response, appellants offered Davis' affidavit, and the complete transcripts of the oral depositions of Davis and of Brian Haenisch. The Haenisch deposition is not in our record and, therefore, cannot be considered by us. If an attorney wishes to rely upon a deposition in its entirety as summary judgment evidence, he or she should offer it with the motion along with the original court reporter's certificate to authenticate the deposition. Deerfield Land Joint Venture v. Southern Union Realty Co., 758 S.W.2d 608, 610 (Tex.App.--Dallas 1988, no writ). The Davis deposition is not accompanied by a court reporter's certificate. Since it has not been authenticated, the Davis deposition was not properly before the trial court and cannot be considered on appeal. The only summary judgment evidence offered by appellants that was properly before the trial court was the Davis affidavit.

In Deerfield, a panel of this Court required an attorney wishing to offer excerpts of a copy of a deposition to attach the excerpted portions to the motion for summary judgment, together with the court reporter's certificate and the attorney's affidavit certifying the truthfulness of the copied material. Id. In the instant case, appellees attached the court reporter's affidavit certifying the truth and accuracy of the proffered excerpts from the Seay and Davis depositions, but did not attach an attorney's affidavit. We do not find the failure to include an attorney's affidavit to be fatal. Deerfield states in pertinent part "[I]t [the copies of deposition excerpts] has been authenticated by the court reporter's original certificate or by the attorney's original affidavit." Id. (emphasis added). Further, we read Deerfield as explaining a suggested method for authenticating depositions offered as summary judgment evidence, rather than dictating an exclusive method. Appellees' summary judgment evidence was properly submitted under Rule 166a of the Texas Rules of Civil Procedure and Deerfield.

Appellees rely on the 1986 release and the 1987 waiver to provide an affirmative defense. The release stated that appellants:

do release, forgive and forever discharge [appellees] from any and all claims or causes of action of any kind whatsoever, in contract or tort, at common law, statutory or otherwise, known or unknown, now existing or that may arise hereafter, directly or indirectly, attributable to or concerning the prepayment provisions of the [1984] Note.

The 1987 waiver provides that if "any set-offs, counterclaims, defenses or other causes of action ... exist, whether known or unknown," they are hereby waived by appellants. These documents were attached to appellees' motions for summary judgment. Thus, their existence was sufficiently pleaded and proved. A release, valid on its face, until set aside, is a complete bar to any later action based on matters covered by the release. Schmaltz v. Walder, 566 S.W.2d 81, 83 (Tex.Civ.App.--Corpus Christi 1978, writ ref'd n.r.e.).

Once the release was properly pleaded, the burden then shifted to appellants to produce evidence that raised a fact issue as to a legal justification for setting aside the release. McCall v. Trucks of Texas, Inc., 535 S.W.2d 791, 794 (Tex.Civ.App.--Houston [1st Dist.] 1976, writ ref'd n.r.e.). Appellants...