Lindley v. Smith

• Decision Date: 19 June 1975
• Docket Number: No. 941,941
• Citation: 524 S.W.2d 520
• Parties: Lester LINDLEY, Appellant, v. James T. SMITH, Appellee.
• Court: Texas Court of Appeals

Page 520

524 S.W.2d 520

Lester LINDLEY, Appellant, v. James T. SMITH, Appellee.

No. 941.

Court of Civil Appeals of Texas,

Corpus Christi.

June 19, 1975.

John J. Pichinson, H. E. Bower, Corpus Christi, for appellant.

George D. Shaffer, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is a summary judgment case. Plaintiff brought this suit against the defendant for reimbursement of costs incurred and for payment of attorney's fees for representing the defendant in five separate cases. Plaintiff moved for summary judgment against defendant. The trial court granted summary judgment in favor of the plaintiff for $1,246.40, together with interest thereon at the rate of 6% Per annum from date, and attorney's fees in the amount of $415 .46, for a total of $1,661.86. From that judgment the defendant has duly perfected his appeal to this Court.

It appears that the Honorable James T. Smith, hereafter referred to as plaintiff, was employed and retained as the attorney for Lester Lindley in connection with his representation of five separate cases. The plaintiff prepared a lengthy detailed accounting and presented it to the defendant. The accounting listed the cases in which defendant had employed the plaintiff. The accounting set out in itemized form all of the expenses incurred and moneys advanced to the defendant. The total amount was $1,483.45. On April 7, 1973, the plaintiff and defendant signed and approved the itemized statement and an agreement as to the distribution of funds to be received in the settlement of the case of Lindley v. Lee Roberts, Case No. 170, 783--C, 28th District Court of Nueces County. Said agreement entered into between plaintiff and defendant is set out in part as follows:

'It is understood between client, Lester Lindley, and attorney, James T. Smith, that the case of Lester Lindley vs. Lee Roberts will be settled for the sum of $2,000.00 and the above deductions and fees will be paid and the balance of $516.55 remitted to Lester Lindley.

APPROVED:

/s/ James T. Smith

James T. Smith

Attorney 4--7--73

/s/ Lester Lindley

Lester Lindley

Client 4--7--73'

On April 7, 1973, defendant Lindley also gave his authorization to his attorney Smith to receive a check in settlement of said case and distribute it according to the agreement set out above. Said authorization states that:

'CASE NO. 11,783--C, 28th DISTRICT COURT, LESTER LINDLEY VS. LEE ROBERTS

I HEREBY AUTHORIZE my attorney, James T. Smith, to receive a check in the above entitled matter made payable to him as my attorney, or if made payable to me and to James T. Smith, as my attorney, to endorse my name and signature to said check, to deposit same in his settlement account and to make the distribution as hereinbefore set forth PROVIDED a xerox copy of the check for $2,000.00 be forwarded to me.

/s/ Lester Lindley

Lester Lindley

Client

4--7--73'

The defendant contends that on the 7th day of April, 1973, at the time of signing the accounting agreement and authorization he informed the plaintiff that he did not desire to settle the case against Lee Roberts for the sum of $2,000.00, but signed the agreement only under duress when plaintiff told him he would not settle a $12,000 judgment, which Lanphier Construction Company obtained against him for $1,000.

The defendant evidently attempted to revoke the authorization to cash the check as evidenced by his statements contained in his affidavit, prior to actual settlement. Plaintiff then filed suit against the defendant for payment of the debts due as alleged, plus reasonable attorney's fees. Thereafter, plaintiff moved for summary judgment which was granted by the trial court.

From this judgment the defendant has duly perfected his appeal to this Court.

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 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. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970); Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.Sup.1972). The summary 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. Gibbs v. General Motors Corporation, supra, at 828. Harrington v. Young Men's Christian Association of Houston and Harris County, 452 S.W.2d 423 (Tex.Sup.1970); Rule 166--A(c), Rules of Civil Procedure.

The plaintiff's summary judgment evidence consists of: 1) plaintiff's motion for summary judgment; 2) an affidavit of plaintiff James T. Smith; 3) and the unsworn and uncertified copies of the 'accounting' and authorization' attached to the affidavit.

The defendant on the other hand includes within his controverting summary judgment evidence: 1) his answer to plaintiff's motion for summary judgment, contending that by virtue of the pleadings and the affidavit attached to the answer, a genuine issue as to a material fact exists which must be determined by the jury; 2) and defendant's controverting affidavit.

Before discussing whether plaintiff by his summary judgment evidence has established, as a matter of law, that there exists no fact issue, plaintiff's first counter point should be considered. Here, the plaintiff questions whether defendant's controverting affidavit was actually before the trial court in that the controverting affidavit was filed September 20, 1974, the same date of the judgment, thus not in strict compliance with Rule 166--A(c), T .R.C.P. The rule reads in part as follows:

'(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor. The motion shall be served at least ten days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. . . .' (Emphasis supplied.)

Although Rule 166--A(c) provides that the adverse party may serve opposing affidavits prior to the day of hearing, this provision is merely directory. The trial courts have considerable discretion to receive affidavits on the date of the hearing. 4 McDonald, Texas Civil Practice § 17.26.7 (1971); Brown v. Aetna Casualty and Surety Company, 366 S.W.2d 673 (Tex.Civ.App.--Dallas 1963, writ ref'd n.r.e.); Axcell v. Phillips, 473 S.W.2d 554 (Tex.Civ.App.--Houston (1st Dist.) 1971, writ ref'd n.r.e.); City National Bank in Wichita Falls v. Bradshaw, 433 S.W.2d 955 (Tex.Civ.App.--Fort Worth 1968, no writ). The plaintiff having shown no abuse of discretion by the trial judge, we hold that the controverting affidavit was properly considered.

With the defendant's answer and controverting affidavit before us, the question still remains 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. The specific question to be determined on appeal is whether plaintiff has established as a matter of law that according to the agreement (designated as an accounting) he is entitled to the $1,246.40, attorney's fees and costs. We believe plaintiff has failed to satisfy his summary judgment burden.

The defendant, in his affidavit, states in part as follows:

'That on the 7th day of April, 1973, at the time of the signing of Plaintiff's Exhibit 'B' set forth in Plaintiff's Motion for Summary Judgment, I informed the Plaintiff, Mr. James T. Smith, that I did not desire to settle the case against Lee Roberts for the sum of Two Thousand ($2,000) Dollars, but signed the agreement only under duress when Plaintiff told me that he would not settle a $12,000 Judgment which Lanphier Construction Company obtained against me for $1,000. At the time of the signing of said Exhibit 'B' Plaintiff well knew that I did not want to settle said case against Lee Roberts for $2,000 and that I would not sign any release or indorse any check in final settlement of said case.'

The general rule in summary judgment cases is that all conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true. Farley v. Prudential Insurance Company, 480 S.W.2d 176 (Tex.Sup.1972); Parrott v. Garcia, 436 S.W.2d 897 (Tex.Sup.1969); Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.Sup. 1965)....