Manges v. Astra Bar, Inc.

• Decision Date: 21 February 1980
• Docket Number: No. 1457,1457
• Citation: 596 S.W.2d 605
• Parties: Clinton MANGES, Appellant, v. ASTRA BAR, INC., Appellee.
• Court: Texas Court of Appeals

Page 605

596 S.W.2d 605

Clinton MANGES, Appellant, v. ASTRA BAR, INC., Appellee.

No. 1457.

Court of Civil Appeals of Texas, Corpus Christi.

Feb. 21, 1980.

Rehearing Denied March 6, 1980.

Max J. Luther, III, Barnhart & Luther, Corpus Christi, for appellant.

Donald R. Sallean, Houston, for intervenor.

Roger M. Dreyer, Perkins, Dreyer & Rather, Gonzales, for appellee.

OPINION

NYE, Chief Justice.

This is an appeal from a summary judgment for the plaintiff, Astra Bar, Inc. (Astra Bar), in a suit on a promissory note. Clinton Manges (Manges), the maker of the note, appeals. ¹

Astra Bar filed suit on April 28, 1978, against Manges, seeking to recover the past due principal and interest on a promissory note executed by Manges on September 20, 1977, payable to Astra Bar on or before six months from the date of issuance, in the original principal sum of $631,175.60, and for attorney's fees. Astra Bar also sued Joe C. Schero, an accommodation endorser, and Ronald B. Truitt, the trustee of the security agreement which granted Astra Bar a security interest in certain described property to secure payment of the note. Astra Bar prayed for a joint and several judgment against the defendants. Copies of the note and the security agreement were attached to plaintiff's sworn petition.

Manges filed a general denial. Thereafter, on June 16, 1978, Astra Bar filed a motion for summary judgment which alleged there was no genuine issue of fact to be decided as to the issue of liability and the amount owed on the note. The motion was supported by the sworn statement of H. David Christian, President of Astra Bar. Certified copies of the note and security agreement were attached to plaintiff's motion. Manges filed a response in the nature of a sworn statement from one of Manges' employees which generally alleged that material issues of fact were present; that the sum prayed for was incorrect; and that all offsets and credits had not been allowed.

Eight days prior to the summary judgment hearing (July 13, 1978), Southwestern Mud, Inc. (Intervenor) filed a petition in intervention against Astra Bar, alleging that Astra Bar, as consignor, and Intervenor, as consignee, had executed a consignment contract on March 1, 1976. Intervenor alleged that the terms of the contract required Astra Bar to remit certain commissions to Intervenor for sales of Astra Bar's drilling mud, and that

"(d)uring the year 1976, Intervenor performed its obligations under said contract and made various sales of drilling mud to purchasers on behalf of (Astra Bar) and became entitled to commissions from (Astra Bar) now aggregating the sum of $104,170.72."

Intervenor also alleged that its claim for commissions "arises out of and is related to the same series of transactions" upon which Astra Bar's claim against Manges is based, and that Astra Bar's claim against Manges is upon a note given by Manges in payment of an open account for sales of drilling mud to Manges which were "carried out" by Intervenor, as Astra Bar's distributor. In accordance with all of these allegations, Intervenor prayed for judgment over against Astra Bar for its share of the unpaid commissions. A copy of Intervenor's contract was attached to the petition.

On July 20, one day before the scheduled summary judgment hearing, Manges' attorney filed a "first motion for continuance," which requested that the summary judgment hearing be "reset for some time in the future" when he could be present. In support of this request, the motion alleged the following grounds: 1) that the attorney had a conflict in trial settings and that he had a three-day criminal felony case scheduled to commence on July 19, 1978; and 2) that, on July 17, 1978, he had received the petition in intervention, and due to the pretrial preparation required in the criminal case, the attorney,

" . . . has not had sufficient time to determine this recent pleading's effect, if any, to include additional defenses on the behalf of (Manges)."

The following day (July 21, 1978), Manges, (without leave of the court), filed his "second answer" to appellee's motion for summary judgment. This answer alleged:

"That the sums claimed by (Astra Bar) to be due and owing are not, in fact, due and owing, as for the reason that (Astra Bar) executed an agreement with Southwestern Mud Co., Inc., whereby the said Southwestern Mud Co., Inc., would receive a 50% commission of the gross profit of 50% computed from the (Astra Bar's) published price at its warehouse, and therefore (Astra Bar) (has) overcharged (Manges) by at least $104,170.72, which should be deducted from the sums sued upon by (Astra Bar), and therefore the sums sued upon by (Astra Bar) are not correct."

Manges also alleged in essence that all adjustments and counterclaims have not been deducted from the amount Astra Bar sued upon and that a material fact exists between the parties, thus precluding summary judgment. In support of this "second answer," an affidavit (made on personal knowledge by one of appellant's employees) repeated verbatim the allegations contained in the answer.

In spite of the motion for continuance filed the previous day, Manges' attorney appeared on July 21 for the summary judgment hearing as scheduled because his prior trial conflict had been resolved. At the time of this hearing, two issues were argued by counsel for the respective parties before the trial court. The first issue was whether or not Astra Bar was entitled to a summary judgment; and, the second, concerned the disposition of Manges' motion for continuance. The substance of Manges' position was that Manges thought he had dealt solely with Astra Bar and that he had no knowledge prior to the intervention petition of the existence of the consignment contract between Southwestern Mud and Astra Bar, and that a continuance should be granted to allow Manges the opportunity to depose "several parties" in order to "determine what has occurred," and whether Manges had any defenses on the note that could be asserted against Astra Bar.

Counsel for Astra Bar argued, on the other hand, that the pleadings of Southwestern Mud showed that its claim for unpaid commissions was a claim asserted against Astra Bar alone, and as such, was immaterial as to Astra Bar's suit against Manges on the note.

After the hearing, the trial judge took the case under advisement and requested the respective parties to submit additional authorities within ten days. Fourteen days later (August 4, 1978), the trial judge signed an order granting Manges' additional request to file an "amended answer" and a "supplemental response" in opposition to Astra Bar's motion for summary judgment on the ground that Southwestern Mud's petition in intervention introduced new issues into the case regarding the relationship of Intervenor and Astra Bar.

In his "supplemental response" to appellee's motion for summary judgment, Manges made certain allegations "upon information and belief," based upon the allegations contained in the petition of intervention. Manges "supplemental response" stated in part:

"(I)f the allegations of the Intervenor and (Astra Bar) are viewed in the light most favorable to (Manges), it would appear that (Manges) issued his Promissory Note to whom (Manges) owed no debt, but the amount of the Promissory Note is not correct, or that the principal amount of the Promissory Note is not correct in that a portion of the principal amount is owed to the Intervenor."

Manges also alleged that, if summary judgment were to be granted in favor of Astra Bar, Manges would be subject and remain vulnerable to be sued by the Intervenor for the same debt which is the subject of this suit.

In addition to his "supplemental response" to Astra Bar's motion for summary judgment, Manges filed an amended answer, a cross-action to Astra Bar's suit and a second motion for continuance. The amended answer alleged in substance that: 1) the "promissory note is incorrect" because part of the principal amount is owed to the Intervenor and therefore, there is a "complete and/or partial failure of consideration" for the issuance of the note; and 2) agent or employees made material misrepresentations concerning the prices for drilling mud which they quoted to Manges, which Manges relied upon, causing him to purchase mud from Astra Bar on an open account and to execute the note in question. In accordance with these allegations, Manges prayed that the note be cancelled and that he be awarded actual and punitive damages.

The second motion for continuance alleged that in light of the intervention petition, he had not had sufficient time to discover facts which would constitute defenses to Astra Bar's suit on the note or to its motion for summary judgment. The motion further stated that Manges desired to take the deposition of the Intervenor to determine whether Astra Bar "is holder in due course of the note in question, or whether (Astra Bar) has committed any act which constitutes real or personal defenses (which Manges could assert) to (Astra Bar's) cause of action." In accordance with these allegations, Manges prayed that his motion be granted prior to the trial court's ruling on Astra Bar's motion for summary judgment and that the hearing on the summary judgment be reset until he had a "reasonable time" to take Intervenor's deposition.

On August 10, 1978, the trial court entered a partial summary judgment in favor of Astra Bar as to Manges' liability on the note. A month later, the trial court granted Astra Bar's plea in abatement and dismissed Intervenor from the lawsuit. Then, after hearing evidence concerning Astra Bar's claim for attorney's fees, the trial court entered a final judgment awarding Astra Bar recovery of the unpaid principal and interest due on the note, foreclosing the deed of trust, and awarding attorney's fees. Manges appeals.

In passing upon the points raised in this appeal, we are guided by the familiar rules established by our ...