Mallory v. Dorothy Prinzhorn Real Estate, Inc.
| Decision Date | 11 March 1976 |
| Docket Number | No. 4874,4874 |
| Citation | 535 S.W.2d 371 |
| Parties | Robert MALLORY et al., Appellants, v. DOROTHY PRINZHORN REAL ESTATE, INC., Appellee. |
| Court | Texas Court of Appeals |
Larry S. Parnass, Irving, for appellants.
William M. Jones, Dallas, for appellee.
Dorothy Prinzhorn Real Estate, Inc. recovered a summary judgment against Robert Mallory, individually, and Robert Mallory & Associates, Inc. plus attorney's fees. The defendants have appealed .
Plaintiff negotiated a contract for the sale of real estate from William M. Jones to Libra Properties, Inc. In support of its motion for summary judgment, the plaintiff filed the affidavit of its President, Richard L. Clements.
In its motion for summary judgment, the plaintiff says:
'Defendant's original answer is insufficient to raise a controverted fact issue.'
The amendment to Rule 166--A, effective January 1, 1971, provides:
Plaintiff's motion for summary judgment does not comply with this amendment.
In Mr. Clements' affidavit, he says, '. . . a copy of said contract having been heretofore filed in the above cause, and incorporated herein by reference.' Attached to plaintiff's original petition we find a copy of the contract. Rule 166--A, T.R.C.P. provides:
'Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.'
No sworn or certified copy of the contract was attached to Mr. Clements' affidavit.
In Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274 (1961), the court said:
Mr. Clements' affidavit constitutes the only summary judgment proof offered in support of plaintiff's motion for summary judgment. He is president of the plaintiff corporation and is an interested witness. The general rule is that the testimony of an interested witness does no more than raise an issue of fact. There are exceptions to this rule which are not applicable. In Re, James T. Taylor and Son, Inc. v. Arlington Independent School District, 160 Tex. 617, 335 S.W.2d 371 (1960).
The judgment recites, 'The court having also considered the evidence concerning attorney's fees, . . .' The only...
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McConnell v. Southside Independent School Dist.
...as amended. Moody v. Temple National Bank, 545 S.W.2d 289, 290 (Tex.Civ.App.--Austin 1977, no writ). See also Mallory v. Dorothy Prinzhorn Real Estate, Inc., 535 S.W.2d 371, 372 (Tex.Civ.App.--Eastland 1976, no writ) (motion stating that "original answer is insufficient to raise a controver......
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Boney v. Harris
...with Rule 166-A(c) as amended. Moody v. Temple National Bank, 545 S.W.2d 289 (Tex.Civ.App. 1977, no writ). See also Mallory v. Dorothy Prinzhorn Real Estate, 535 S.W.2d 371 (Tex.Civ.App. 1976, no writ) and Avinger v. Campbell, 499 S.W.2d 698 (Tex.Civ.App. 1973, writ ref. n. r. e., 505 S.W.2......
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Thiess v. Dallas County State Bank
...1976, no writ); Jackson v. Randall, 544 S.W.2d 439, 442 (Tex.Civ.App.-Texarkana 1976, no writ); Mallory v. Dorothy Prinzhorn Real Estate, 535 S.W.2d 371, 372 (Tex.Civ.App.-Eastland 1976, no Appellee's failure to attach the documents referred to in its affidavit is a failure to discharge its......
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Moody v. Temple Nat. Bank
...or otherwise, upon which it is based, and, as a result, it is not in compliance with Rule 166--A(c) as amended. See Mallory v. Dorothy Prinzhorn Real Estate, 535 S.W.2d 371 (Tex.Civ.App.1976, no The judgment is reversed and the cause is remanded to the district court. ...