Kain v. Neuhaus

• Decision Date: 19 September 1974
• Docket Number: No. 839,839
• Citation: 515 S.W.2d 45
• Parties: Douglas KAIN et al., Appellants, v. W. Oscar NEUHAUS, Trustee, Appellee.
• Court: Texas Court of Appeals

Page 45

515 S.W.2d 45

Douglas KAIN et al., Appellants, v. W. Oscar NEUHAUS, Trustee, Appellee.

No. 839.

Court of Civil Appeals of Texas,

Corpus Christi.

Sept. 19, 1974.

Rehearing Denied Oct. 10, 1974.

George D. Martin, Harris, Martin, Carmona & Cruse, Galveston, L. De Witt Hale, for appellants.

Barnet B. Skelton, Price & Skelton, Houston, for appellee.

OPINION

NYE, Chief Justice.

The appellee brought suit for specific performance of an earnest money contract. The appellants were the owners of undivided interests in approximately eight hundred fifty-two (852) acres of land on Matagorda Peninsula in Matagorda County, Texas. The appellants answered appellee's suit by a verified denial alleging fraud and deceit as their defense. The appellee filed a motion for summary judgment supported by various affidavits. In response, the appellants filed affidavits supporting their answer. The trial court granted summary judgment for the appellee. The appellants appeal to this Court.

Barnet B. Skelton, attorney at law, and Virgil Townley acted as agents for the appellee. Townley visited with Douglas Kain, one of the appellants, about the purchase of the land in question. Kain appeared to be the most influential of all of the family members who owned the property in question. Townley offered to purchase the entire tract for $350.00 per acre with the land owners retaining one-half (1/2) of the minerals except that covered by production. Kain stated in his affidavit that prior to the signing of the contract in question, he told Townley and Skelton that the appellants would not sell the land unless they had the right to negotiate on the minerals. The contract was prepared by Skelton for Kain's signature as well as for the other appellants. The contract did not provide for the appellants to have the executory rights on the minerals. According to Kain, he questioned Skelton about the right to negotiate on the minerals and told Skelton as well as Townley that they would not sell the land unless they had that right. Kain was told that this was agreeable and that this could be worked out but that the appellants should go ahead and sign the earnest money contract. Kain stated that he relied on the statement of Skelton and Townley. Kain stated that Skelton had represented him in other legal matters in the past and that he had every confidence in Skelton that he would perform in accordance with his representations. Kain stated that he relied upon Skelton's agreement and went about in procuring the signatures of the other members of the Kain family (appellants) owning interest in the subject land. The contract provided for the purchase of the land for consideration of $350.00 per acre, totalling $298,385.50. The appellants were to deliver and execute a general warranty deed on or before the closing date of March 1, 1971.

The affidavits of the escrow agent and others showed that the appellee had delivered checks in the respective amounts in relation to each owners' interest totalling $56,000.00 representing the cash down payment. The prepared deed did not give the land owners the right to negotiate the minerals under the land to be sold. On the closing date, all of the appellants except one refused to execute the deed. They did not accept the cashier's checks and have continued to refuse to perform under the earnest money contract.

The appellee then brought suit against the appellants for specific performance. Nineteen (19) of the appellants filed sworn denials alleging that signatures on the earnest money contract were procured by fraud and the deceit of appellee's agent, Barnet B. Skelton, who knowingly and falsely misrepresented the fact, among others, that the appellants were to have the executory rights to the minerals. The appellee then filed his motion for summary judgment along with various affidavits as ezhibits. The trial court granted appellee's motion for summary judgment.

The appellants advanced two points of error complaining that the trial court erred in granting appellee's motion for summary judgment: first, that appellee failed to show by competent summary judgment proof that he was entitled to judgment as a matter of law; and second, that appellee's motion was fatally defective as a matter of law because the appellee failed to attach to the motion or to the accompanying affidavits sworn or certified copies of appellee's exhibits; specifically, the earnest money contract made the basis of appellee's suit. We consider appellants' second point first.

The office of summary judgment has been described as a marvelous instrument in expediting the administration of justice. It is the means by which causes of action or defenses to causes of action with no real merit are weeded out without the expense of time and money caused by protracted trials with the inevitable loss of judicial time where the claim or defense is not good as a matter of law. See 4 McDonald Judgment, Section 17.26. We recognize the important effect and the proven efficiency of the summary practice in an appropriate situation. However, the rule (166--A) must be cautiously invoked to the end that all parties must be offered a trial where there is a bona fide dispute between them. Although the expedient disposition of cases is a cardinal virtue in the administration of justice, it does not outmatch the imporance of a party's fundamental right to his full day in court. Our courts have, therefore, required strict compliance of the summary judgment rule in the summary judgment practice so that the movant will not be deprived of his fundamental right to a trial on the material fact issues that exist. The movant must comply with the summary judgment rule to be entitled to its benefits. It was unknown at common law and, therefore, exists only by virtue of the rule. Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958).

Appellee's motion for summary judgment reads in part as follows:

'Plaintiff is entitled to judgment against the Defendants, as a matter of law, against the Defendants, for the specific performance of the Earnest Money Contract upon which Plaintiffs' suit is predicated, For all of the reasons and matters of fact set forth in Plaintiff Original Petition on file herein, which said pleading, together with the Earnest Money Contract attached thereto as an exhibit, are herenow attached to this Motion for Summary Judgment as Exhibit 'A', incorporated by reference herein as part and parcel hereof and made a part hereof, . . .'

Checking the motion for summary judgment which is in the transcript, the only exhibit 'A' which was 'incorporated by reference' fails to have the earnest money contract attached. On page 285 of the transcript, the district clerk makes this explanation:

'The Following pages constitute exhibits Not filed at the time PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT was filed. On October 2, 1973, after preparation of this Transcript had already begun, Plaintiff's Attorney, Barnet B. Skelton, removed said copy of Plaintiff's Original Petition and Exhibits from an unserved Citation in the Clerk's file and requested that it be shown as an attachment to this Motion.' (Emphasis supplied.)

'The following pages' not filed, referred to in the clerk's explanation, contains a copy of plaintiff's petition with exhibits attached and includes a copy of the earnest money contract. However, the copy of the earnest money contract attached to the copy of the petition was neither sworn to nor was it certified.

The Rules of Civil Procedure, 166--A(e) provides as follows:

'(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.' (Emphasis supplied.)

The appellee argues that even if the copy of the contract was not attached to the original petition, the exhibits were before the court and should be considered. In the alternative, appellee says that the pleadings and exhibits were incorporated by reference into the motion and, therefore, were before the court. The use of such pleadings as summary judgment evidence was rejected by the Supreme Court in two recent cases. Hidalgo v. Surety Savings and Loan Association, 462 S.W.2d 540 (Tex.Sup.1971) and Texas Nat. Corp. v. United Systems International, Inc., 493 S.W.2d 738 (Tex.Sup.1973). The Court in the Hidalgo case said:

'. . . we are convinced that orderly judicial administration will be better served in the long run if we refuse to regard pleadings, even if sworn, as summary judgment evidence.'

Next, the appellee contends that the affidavits filed with the motion for summary judgment with unsworn and uncertified copies of the earnest money contract attached constituted valid summary judgment evidence satisfying the requirement of Rule 166--A(e). Appellee argues by attaching an unsworn or uncertified copy of the contract in question to an affidavit in which the affiant refers to the contract (among other things) as being true and correct makes the contract a sworn copy and satisfies this rule. We disagree.

Considering the entire record, appellee filed five (5) affidavits, two were by the appellee and two by Barnet B. Skelton, the attorney-agent. Attached to two of the affidavits were copies of the contract which were unsworn and uncertified copies. Nowhere in the record does the original earnest money contract appear. Nowhere is there a sworn or certified copy of the contract. The appellants objected to this summary judgment evidence. The Supreme Court in Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.Sup.1962) requires an objection to the...