Malooly Brothers, Inc. v. Napier, 6093
| Decision Date | 25 February 1970 |
| Docket Number | No. 6093,6093 |
| Citation | 452 S.W.2d 504 |
| Parties | MALOOLY BROTHERS, INC., Appellant, v. Frank NAPIER and Herman Siegel, Appellees. |
| Court | Texas Court of Appeals |
Ben A. Endlich and D. Clark Hughes, El Paso, for appellant.
Hardie, Grambling, Sims & Galatzan, John A. Grambling, El Paso, for appellees.
Appellant, Malooly Brothers, Inc., filed this suit against the appellees, Frank Napier and Herman Siegel, alleging that appellant retained the appellees in their capacity as Certified Public Accountants to perform certain duties for them; that an employee embezzled from them, and defendant-appellees were negligent in not discovering such embezzlement. The trial court sustained the defendants' motion for summary judgment and overruled motion for new trial. We are of the opinion that the trial court correctly disposed of the case.
Appellant assigns two points of error--that the trial court erred in granting the motion for summary judgment based on (1), the defendants' plea of limitations, and (2) their defense of a written release. We are of the opinion that the case must be determined on the finding by the trial court in its judgment that there is no genuine issue as to a material fact, and the failure of the appellant to assign error as to such finding.
Chief Justice Calvert, in a very recent case (February 14, 1970), Gibbs et al. v. General Motors Corporation, 450 S.W.2d 827, has set forth the approach 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."
In the case before us, the defendant-appellees secured a finding...
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...that it was based. LeJeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Beaumont, Tex.Civ.App., 1966, ref., n.r.e.); Malooly Brothers, Inc. v. Napier, 452 S.W.2d 504 (El Paso, Tex.Civ.App., 1970, affirmed in Tex., 461 S.W.2d We recognize that this could have been accomplished by the sin......
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...the reviewing court is not at liberty to review the finding and the summary judgment must be sustained. Malooly Brothers, Inc. v. Napier, 452 S.W.2d 504, 505 (Tex.Civ.App. El Paso 1970), affirmed, 461 S.W.2d 119 (Tex.1970). In the instant case, the judgment may have been based on a ground n......
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Malooly Brothers, Inc. v. Napier
...embezzling funds from it. The trial court sustained the defendants' motion for summary judgment. The Court of Civil Appeals affirmed. 452 S.W.2d 504. We affirm the judgments of the courts Malooly Brothers, Inc., filed suit against Frank Napier and Herman Siegel, certified public accountants......