Latimer v. City Nat. Bank of Colorado City

Decision Date14 August 1986
Docket NumberNo. 11-85-347-CV,11-85-347-CV
Citation715 S.W.2d 825
PartiesDon LATIMER and wife, Rita Latimer, Appellants, v. The CITY NATIONAL BANK OF COLORADO CITY, Texas, Appellee.
CourtTexas Court of Appeals

Charles Dick Harris, Harris & McBeath, P.C., Abilene, for appellants.

R.L. Pete McKinney, Thompson, Rees & McKinney, Colorado City, for appellee.

DICKENSON, Justice.

This summary judgment case involves four promissory notes which were signed by Don Latimer, but which were not signed by his wife, Rita Latimer. The payee of the notes, The City National Bank of Colorado City, Texas, contends that the summary judgment proof conclusively establishes that the notes are community obligations and that both spouses are jointly liable. The trial court granted summary judgment to the payee against both spouses in the total sum of $105,831.76 for the unpaid principal, interest, and attorney's fees. 1 The maker and his wife appeal. We affirm in part, and we reverse and render in part.

Appellants present three points of error. First, they argue that the trial court erred in granting summary judgment because there were genuine fact issues concerning the commercial reasonableness of the sale of the collateral securing the promissory notes. This point is overruled. The maker's deposition admits enough facts to conclusively establish that the sale was made in a commercially reasonable manner. TEX.BUS. & COM.CODE ANN. sec. 9.507(b) (Vernon Supp.1986) specifically states:

The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner....

Appellants' only complaint as to the sale relates to the timing of the sale. That is not sufficient. Moreover, appellants' summary judgment proof asserting mere conclusions is not sufficient to raise a fact issue and does not preclude the summary judgment. See, e.g., Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557 at 562 (1962).

Next, appellants argue that the trial court erred in granting summary judgment against Rita Latimer (Point of Error No. 2) and in refusing to grant her motion for summary judgment (Point of Error No. 3). These points are sustained insofar as the judgment imposes personal liability on Rita Latimer. TEX.BUS. & COM.CODE ANN. sec. 3.401(a) (Vernon 1968) states:

No person is liable on an instrument unless his [or her] signature appears thereon.

Since Rita Latimer's signature does not appear on any of the notes involved in this lawsuit, the trial court erred in granting summary judgment against her for joint and several liability on the notes. See also TEX.FAM.CODE ANN. sec. 5.61 (Vernon 1974).

Point of Error Nos. 2 and 3 are overruled insofar as the judgment relates to the community property owned by the maker and his wife. Cockerham v. Cockerham, 527 S.W.2d 162 at 171 (Tex.1975). See McKnight, Annual Survey of Texas Family Law, 37 Sw.L.J. 65 at 77 (1983):

The phrase "community debt" has long been useful in characterizing borrowed money or property that a spouse buys on credit. If the lender or seller does not specifically look to the borrower's or buyer's separate property for payment, it is clear that a community debt has been incurred, and thus that the money...

To continue reading

Request your trial
5 cases
  • McGee v. Deere & Company, No. 03-04-00222-CV (TX 3/24/2005)
    • United States
    • Texas Supreme Court
    • March 24, 2005
    ...FDIC v. Lanier, 926 F.2d 462, 467 (5th Cir. 1991) (applying Texas law). Nor is an argument as to the timing of the sale. Latimer v. City Nat'l Bank, 715 S.W.2d 825, 826 (Tex. App.—Eastland 1986, no writ.). It is proper for a court to enter summary judgment in favor of the creditor regarding......
  • Marynick v. Bockelmann
    • United States
    • Texas Court of Appeals
    • May 31, 1989
    ...spouse." McKnight, Annual Survey of Family Law: Husband and Wife, 42 Sw.L.J. 1, 4 (1988) (footnotes omitted); see also Latimer v. City Nat'l Bank, 715 S.W.2d 825, 826-27 (Tex.App.--Eastland 1986, no writ). The fact that debts are community liabilities does not, without more, necessarily lea......
  • Brooks v. Sherry Lane Nat. Bank, 05-89-00701-CV
    • United States
    • Texas Court of Appeals
    • March 28, 1990
    ...property, then the debt constitutes a community debt; some community property is liable for its satisfaction. Latimer v. City Nat'l Bank of Colo. City, 715 S.W.2d 825, 827 (Tex.App.--Eastland 1986, no writ); Wall v. Wall, 630 S.W.2d 493, 496-97 (Tex.App.--Fort Worth 1982, writ ref'd n.r.e.)......
  • Jones v. First Nat. Bank of Anson
    • United States
    • Texas Court of Appeals
    • December 31, 1992
    ...liability" even though Naomi Jones was not personally liable for the note signed only by Oddie O. Jones. Latimer v. City National Bank of Colorado City, 715 S.W.2d 825 (Tex.App.--Eastland 1986, no writ). The community property owned by Oddie O. Jones and Naomi Jones was liable to satisfy th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT