Douglas v. First State Bank of Athens
| Decision Date | 20 May 1976 |
| Docket Number | No. 18855,18855 |
| Citation | 538 S.W.2d 179 |
| Parties | Colon L. DOUGLAS, Appellant, v. FIRST STATE BANK OF ATHENS, Texas, Appellee. . Dallas |
| Court | Texas Court of Appeals |
L. F. Sanders, F. Dennis White, Canton, for appellant.
B. J. Wynne, W. Bruce Monning, Wills Point, for appellee.
Plaintiff Colon L. Douglas appeals from a summary judgment rendered against him in favor of the defendant First State Bank of Athens, Texas. The principal question presented is whether, as against a motion for summary judgment based on a plea of limitation and on allegations in plaintiff's petition that the wrong occurred more than four years before the suit was filed, plaintiff has the burden to present summary-judgment evidence raising a fact issue on some ground to avoid the bar of limitations.
On March 4, 1967, plaintiff deeded land located in Van Zandt County to Oran E. Neill. On March 11, 1967, Neill used this land as collateral to secure a loan from the bank. On May 16, 1972, plaintiff filed suit against Neill, alleging that Neill had obtained the deed by fraud, sought cancellation of the deed, and alternatively pleaded for damages. On March 13, 1974, plaintiff, for the first time, sued the bank alleging that it had ratified Neill's alleged fraud and, therefore, sought identical remedies against the bank. The bank filed its motion for summary judgment asserting the affirmative defense of limitations based on the facts alleged in the petition. Plaintiff opposed the motion asserting that his pleading raised genuine issues of fact with regard to the fraud and that the bank had produced no evidence supporting its motion. The trial court overruled these contentions, granted the bank a summary judgment, and severed the claim against the bank from the claim against Neill. Plaintiff appeals. We affirm.
When a defendant moves for a summary judgment on the theory that plaintiff's suit is without merit, he has the burden of establishing as a matter of law that there are no genuine issues of fact as to any essential element in plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The rule is different, however, where a defendant asserts an affirmative defense to the plaintiff's action and presents summary-judgment evidence sufficient to establish the affirmative defense as a matter of law. In such a case, plaintiff must, if he wishes to avoid the summary judgment, adduced evidence raising a fact issue concerning the affirmative defense established. Nichols v. Smith, 507 S.W.2d 518, 520 (Tex.1974); 'Moore' Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936 (Tex.1972). Here, the basis of plaintiff's suit against Neill was an allegation...
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Whatley v. National Bank of Commerce
...Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Douglas v. First State Bank of Athens, 538 S.W.2d 179, 181 (Tex.Civ.App. Dallas 1976, no writ). The summary judgment procedure is not to be utilized as a substitute for special......
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Rizk v. Financial Guardian Ins. Agency, Inc.
...evidence against it even though, as pleadings, they are not summary judgment evidence in favor of the plaintiff. Douglas v. First State Bank of Athens, 538 S.W.2d 179, 181 (Tex.Civ.App.1976, no writ), citing Safety Casualty Co. v. Wright, 138 Tex. 492, 160 S.W.2d 238, 245 (1942), and Canale......