LaGuarta, Gavrel & Kirk, Inc. v. R & P Enterprises
| Decision Date | 18 July 1979 |
| Docket Number | No. A2096,A2096 |
| Citation | 584 S.W.2d 587 |
| Parties | LaGUARTA, GAVREL & KIRK, INC., Appellant, v. R & P ENTERPRISES, Appellee. (14th Dist.) |
| Court | Texas Court of Appeals |
William A. Jackson, Thomas A. Collins, Sheinfeld, Maley & Kay, Houston, for appellant.
Eugene J. Pitman, DeLange, Hudspeth, Pitman & Katz, Houston, for appellee.
Before MILLER, PRESSLER and SALAZAR, JJ.
This is an appeal from the granting of plaintiff's motion for summary judgment and the denial of defendant's motion for summary judgment. We affirm the denial of defendant's motion and reverse and remand the granting of plaintiff's motion.
LaGuarta, Gavrel & Kirk, Inc., defendant below, was the maker of a promissory note dated December 21, 1975 in the amount of $699,726.00. R & P Enterprises, plaintiff below, was the payee and holder. The note was secured by a vendor's lien on certain real property. A deed of trust was also executed from defendant to Eugene J. Pitman, Trustee, covering the property. The deed of trust provided for a trustee's sale of the described property to be conducted upon default on the promissory note according to the terms of Tex.Rev.Civ.Stat.Ann. art. 3810. There was a default on the first anniversary of the note; the trustee sold the property at public auction on April 5, 1977 to the plaintiff for $500,000.00. The plaintiff then brought suit to recover the deficiency due, attorney's fees, 10% Interest from the note's maturity, and ad valorem taxes owing on the property.
Both parties moved for summary judgment. Attached to the plaintiff's motion were the affidavits of Titus Podea, one of plaintiff's general partners, and Eugene J. Pitman, Trustee; the promissory note; the deed of trust; the Trustee's notice of sale; correspondence between the parties subsequent to default; and the Trustee's deed. The defendant filed a response to the plaintiff's motion as well as filing a cross-motion for summary judgment. Both instruments were grounded upon the argument that the terms of the promissory note prohibited the cause of action for deficiency. In response to plaintiff's motion, defendant also alleged that there were material facts at issue which were apparent on the face of the plaintiff's pleading and proof. The defendant attached no proof to its response or cross-motion. The only other proof before the court was the deposition of Titus Podea. The trial court granted the plaintiff's motion and denied the defendant's motion. The defendant appeals.
In the first point of error, the defendant complains of the granting of the plaintiff's motion for summary judgment on the ground that a material issue of fact existed as to whether or not the plaintiff had a cause of action for a deficiency judgment. The second point of error complains of the denial of the defendant's motion for summary judgment on the ground that certain provisions of the promissory note expressly and unambiguously prohibited a cause of action for deficiency. The clause in question reads:
Notwithstanding any contrary items expressed or implied by the provisions of this note, it is expressly stipulated and agreed that the maker shall have personal liability for payment of this promissory note for and during the period ending with the second anniversary of the date of said note, after which time all obligatory payments having been made prior to said date, the maker shall have no personal liability for the payment of any balance owing upon this note, and the payee, or other owner or holder or holders of said note shall thereafter look solely to the enforcement of the liens securing the payment hereof for satisfaction of the balance owing hereon, it being expressly agreed that Upon any enforcement of the liens securing payment hereof, the maker shall have no liability for any deficiency remaining unpaid or unsatisfied thereafter, should same fail to fully satisfy and pay the unpaid balance then owing. (Emphasis added).
It is the defendant's contention that the emphasized portion of the above provisions operated to provide the holder of the note with the alternative, during the first two years, of foreclosing on the secured property Or holding the defendant liable. (Emphasis ours). Consequently, he argues, as it was uncontroverted that the defendant defaulted within the two year period, the plaintiff is precluded from bringing a suit on personal liability after foreclosing on the property.
The question of whether a contract is ambiguous is one of law for the court. City of Pinehurst v. Spooner Addition Water Co., 432...
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R & P Enterprises v. LaGuarta, Gavrel & Kirk, Inc.
...motion for summary judgment and denied the defendant's motion for summary judgment. The court of civil appeals reversed and remanded. 584 S.W.2d 587. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court. R & P Enterprises was the payee and holder ......