Langley v. Arnold D. Kamen & Co.

• Decision Date: 05 May 1970
• Docket Number: No. 7983,7983
• Court: Texas Court of Appeals
• Parties: W. J. LANGLEY, Appellant, v. ARNOLD D. KAMEN & COMPANY, Appellee.

Page 820

455 S.W.2d 820

W. J. LANGLEY, Appellant, v. ARNOLD D. KAMEN & COMPANY, Appellee.

No. 7983.

Court of Civil Appeals of Texas Texarkana.

May 5, 1970.

Rehearing Denied June 2, 1970.

Gerard B. Rickey, David M. Kendall, Jr., Woodruff, Hill, Kendall & Smith, Dallas, for appellant.

Joe B. Abbey, Law Office of Richard D. Haynes, Dallas, for appellee.

FANNING, Justice.

Arnold D. Kamen & Company, a partnership, sued W. J. Langley, to recover on an account at its commodity brokerage office at Dallas, Texas, resulting from trades made by Langley in the Dallas office on commodities, to-wit, contracts for pork bellies. Kamen & Company sold 45 contracts of pork bellies to Langley at a large loss at a time it contended it was authorized to sell and at a time Langley contended that Kamen was not authorized to sell and that the market in a very short time rebounded to where Langley would have little or no loss.

Kamen & Company moved for summary judgment based upon the pleadings, the sworn affidavit of Arnold D. Kamen with exhibits attached thereto and the deposition of W. J. Langley. The trial court entered summary judgment for plaintiff-appellee Arnold D. Kamen & Company in the sum of $21,926.00 against defendant-appellant W. J. Langley. Defendant-appellant has appealed.

Rule 166A, Texas Rules of Civil Procedure, governing summary judgment is applicable alike to defendants and plaintiffs. In summary judgment cases, the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff's cause of action and if a summary judgment is granted it should be affirmed Only if the summary judgment proof establishes a right thereto as a matter of law. In this connection, see Gibbs v. General Motors Corporation, Tex.Sup.Ct. 1970, 450 S.W.2d 827, and we quote from the court's opinion in said case in part as follows:

'The court of civil appeals put the question before it in this language (445 S.W.2d at 590):

"Appellants correctly assert that the primary and controlling issue involved in this case is whether the summary judgment Raises a fact issue concerning defectiveness of the upper left balljoint unit on the Gibbs pickup at the time of the accident and at the time the truck left the General Motors factory.'

'Pointing out that an essential element of the appellants' case was proof that 'the balljoint unit in question was defective at the time it left appellee's factory', the court of civil appeals concluded (445 S.W.2d at 593):

"The record considered in its most favorable light to appellant Does not raise a fact issue which would support a finding in their favor on this essential element of their case.'

'The two questions illustrate a basic fallacy frequently found in the approach of some of our courts to the matter of rendering or affirming a summary judgment in favor of a defendant. In such cases, the question on appeal, as well as in the trial court is Not whether the summary judgment proof Raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment proof Establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. The last sentence of paragraph (c) of Rule 166--A, Texas Rules of Civil Procedure, governs. It provides:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, There is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'

'The provisions of Rule 166--A are applicable alike to defendants and plaintiffs who move for summary judgment; the judgment sought should be granted, and if granted should be affirmed, Only if the summary judgment record establishes a right thereto as a matter of law.'

Guidelines for the review of summary judgments as set out in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Company, Tex.Sup.Ct.1965, 391 S.W.2d 41, are summarized as follows:

1. Summary judgment is authorized only when it is shown that there is no genuine issue of material fact and movant is entitled to judgment as a matter of law.

2. Burden of proof is on movant to establish the absence of any such issue.

3. Conflicts in evidence are disregarded, and the court must view the evidence in the light most favorable to the party opposing the motion, accepting as true all evidence which tends to support his position.

4. All doubts as to the existence of a genuine issue of material fact are to be resolved against the movant.

5. If the motion involves the credibility of affiants or defendants, or the weight of their statements, or a mere ground of inference, the motion should be denied.

In its first amended petition appellee sought to recover on appellant's commodity account. Appellee alleged to the effect that the purchase and sale on account of commodities, to-wit, contracts for pork bellies, were authorized by appellant; that the rules of the Chicago Mercantile Exchange applied to appellant's account; that the rules of said exchange authorized appellee's selling without appellant's consent 45 contracts in appellant's account to restore the account to full margin status after depletion of margin, demand for additional margin, and failure to comply with such demand within a reasonable time; that appellant's margins were depleted below the required amounts; that appellee made demand for additional margins and that appellant failed within a reasonable time to comply with the demand for margins; appellee sought recovery on the account in the sum of $21,926.00 (which amount also included certain brokerage fees and commissions as hereinafter more fully referred to in this opinion) and appellee also sought $100,000.00 exemplary damages. After setting out the various contracts and trades made, plaintiff's first amended petition states in part as found below. ¹

Defendant-appellant answered by a general denial. Plaintiff-appellee filed a motion for summary judgment and filed a supporting affidavit of Arnold D. Kamen (executed in Cook County, Illinois), which reads in part as follows:

'* * * I, Arnold D. Kamen, and a partner of Arnold D. Kamen & Co., am over 21 years of age, of sound mind, and have never been convicted of any crime or offense, have personal knowledge of every statement herein made and am fully competent to testify in the matters stated herein.

'That the facts set forth in Plaintiff's First Amended Petition are true and correct; more specifically, that defendant, Dr. W. J. Langley, opened Account No. 12120, with Arnold K. Kamen & Co., From its Dallas office, that the Defendant traded in August Pork Bellies from July 10, 1968 to July 20, 1968, as pleaded in Plaintiff's First Amended Petition, and that Defendant, Dr. W. J. Langley's trades are correctly reflected on the Statement of Accounts, Purchase and Sales, copies of which are attached to this Affidavit as Exhibit 1.

'That the required margin for one contract of August Pork Bellies is $700.00; that the margin required for Defendant's 45 contracts of August Pork Bellies Commodities was $31,500.00.

'That on July 17, 1968, I initiated an investigation to determine if the checks set forth in Plaintiff's First Amended Petition as Exhibits 'A' and 'B' were good. The East Dallas Bank & Trust Co. was called and I was informed that there was not sufficient funds in the account of Dr. W. J. Langley in the East Dallas Bank & Trust Co. of Dallas, Texas, to cover either the check for $15,000.00 set forth as Exhibit 'A' of Plaintiff's Petition or the check for $2,500.00 set forth as Exhibit 'B' ...