Hagar v. Texas Distributors, Inc., 1097

• Citation: 560 S.W.2d 773
• Decision Date: 29 December 1977
• Docket Number: No. 1097,1097
• Parties: Perry HAGAR, Jr., Appellant, v. TEXAS DISTRIBUTORS, INC., Appellee.
• Court: Texas Court of Appeals

Page 773

560 S.W.2d 773

Perry HAGAR, Jr., Appellant,

v. TEXAS DISTRIBUTORS, INC., Appellee.

No. 1097.

Court of Civil Appeals of Texas, Tyler.

Dec. 29, 1977.

Rehearing Denied Jan. 26, 1978.

Larry S. Parnass, Parnass & Fowler, Laird H. McNeil, Irving, for appellant.

David A. Miller, Matthews, Matthews, Sechrist & Madrid, Dallas, for appellee.

DUNAGAN, Chief Justice.

This is an appeal from a summary judgment granted appellee, Texas Distributors, Inc., against appellant, Perry Hagar, Jr., in an action on a promissory note.

Appellant was the maker of a promissory note dated February 13, 1975, in the original principal sum of $22,030.00, together with interest thereon at the rate of 10% Per annum, payable on or before sixty days from date thereof. Such note allegedly came into default, and appellee, as the purported owner and holder thereof, brought suit to recover the unpaid balance. Appellee filed a motion for summary judgment, to which appellant filed a reply. The trial court initially overruled the motion for summary judgment, whereon appellee took appellant's deposition and filed a supplemental motion for summary judgment, to which appellant likewise responded. Upon hearing had, and consideration of the affidavits in support of and in opposition to appellee's motion, together with appellant's deposition, the trial court determined that there was an absence of any genuine issue of material fact and entered summary judgment on appellee's behalf, from which appellant duly perfected his appeal.

Appellant by his sole point of error contends that the motion for summary judgment should not have been granted because appellee failed to establish as a matter of law that there were no material issues of fact.

Appellant was the owner and the general contractor on a project known as Burgundy Tower, and he contracted with the appellee to perform work on the project. The total contract between the parties, including extras, was in the amount of $220,300.00 of which appellee was paid $198,270.00, leaving a balance due to the appellee of $22,030.00 which is represented by the promissory note here involved. Appellant admits that appellee fully performed and that the sum of the note is the undisputed amount owing to appellee for material and labor on the project.

Appellant also admits that the note was entered into in consideration of appellee's foregoing the filing of a mechanic's and materialman's lien and that he benefitted by the same.

Appellant has attempted to avoid his obligation to appellee by raising the affirmative defense of fraudulent inducement.

Where such affirmative defense as in the instant case has more than one element, then a fact issue must be raised on each element necessary to such defense. Kain v. Neuhaus, 515 S.W.2d 45 (Tex.Civ.App. Corpus Christi 1974, no writ); Nichols v. Smith, 507 S.W.2d 518 (Tex.1974). This is so because "when the plaintiff moves for summary judgment in a case where the defendant has alleged an affirmative defense, the motion should be granted upon a showing by the plaintiff that there is no material issue of fact concerning the elements of his claim unless the defendant comes forward with summary judgment proof sufficient to raise at least an issue of fact with respect to the affirmative defense." Nichols v. Smith, supra, at 520.

The appellant has failed to raise, by competent summary judgment evidence, a fact issue with respect to a false statement of material fact. In his first attempt to do so (affidavit in opposition to motion for summary judgment of Texas Distributors, Inc.) he stated:

"As a part and parcel of said scheme, Tim Conway and Larry Colgin represented to me that, if I would execute the note in question, and allow same to be secured by a lien upon other property owned by me, then the property upon which Burgundy Tower was situated could remain free and clear of any and all liens, to facilitate the refinancing arrangement heretofore described. Such representations were not true, and were made by Tim Conway and Larry Colgin, to induce me to execute the note in question."

The appellant claims that Tim Conway (an employee of appellee) represented that (1) if appellee's claim could be secured by other property, then (2) the property would remain free of liens (except Texas Bank's first lien), and (3) this would facilitate refinancing the project. Later in the same paragraph appellant admits that (1) and (2) were true, but claimed that appellee's purpose was not (3) to facilitate refinancing the property and that therein lies the alleged false statement of material fact.

The expression of an opinion as to whether some future event will or will not happen cannot be the basis for a claim for fraud. Merchandise Mart, Inc. v. Marcus, 483 S.W.2d 893, 897 (Tex.Civ.App. Tyler 1972, writ ref'd n. r. e.); 25 Tex.Jur.2d, Fraud & Deceit, sec. 42, p. 679; Mangum Road Center v. DiSclafani, 450 S.W.2d 130 (Tex.Civ.App. Houston (14th Dist.) 1969, writ ref'd n. r. e.).

Appellant further states in his affidavit that the alleged representations of Tim Conway were not true and that such representations were made to induce him to execute the note in question; that in relying upon such representations he executed said note,...