Roland v. McCullough

• Decision Date: 18 January 1978
• Docket Number: No. 15820,15820
• Citation: 561 S.W.2d 207
• Parties: George R. ROLAND et al., Appellants, v. John W. McCULLOUGH, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 207

561 S.W.2d 207

George R. ROLAND et al., Appellants,

v. John W. McCULLOUGH, Jr., et al., Appellees.

No. 15820.

Court of Civil Appeals of Texas, San Antonio.

Jan. 18, 1978.

Rehearing Denied Feb. 15, 1978.

Robert Harms Bliss, Ronald L. Clower, Dallas, for appellants.

Hollon & Marion, Boerne, Joseph W. Burkett, Jr., Kerrville, for appellees.

KLINGEMAN, Justice.

This is an appeal from a summary judgment granting recovery on two promissory notes and for judicial foreclosure of a deed of trust on 200 acres of land. This cause is before us as a consolidated cause from the District Court of Kerr County, Texas. Appellees, John W. McCullough, Jr., Marjorie W. McCullough, Marjorie McCullough Brown, and Sally McCullough Futch, originally sued appellants, George R. Roland and Kirby Albright, on a promissory note in the amount of $5,315.10 in Cause No. 1735. Appellants filed an answer including a plea that they were induced to give the note because of fraudulent representation of appellees as to the access to Interstate 10 to and from such 200-acre tract. Appellants also filed an action in Cause No. 1754 for reformation or recission of the contract of sale. Appellants then filed in Cause No. 1811 a petition for a temporary restraining order and to enjoin foreclosure of the real estate involved. Appellees filed a general denial and a counterclaim for judicial foreclosure of a deed of trust lien and note in the amount of $88,585.08. All suits were consolidated into Cause No. 1735. Appellees filed a motion for summary judgment, and the trial court, on December 13, 1976, granted appellees' motion for summary judgment and decreed that appellees recover on the notes and for foreclosure of the deed of trust lien.

By one point of error appellants assert that the trial court erred in granting appellees' motion for summary judgment because (a) there is insufficient proof to support a summary judgment in that appellees failed to introduce into evidence either the originals or certified copies of the promissory notes sued upon; (b) material fact questions existed concerning fraud in the inducement and unilateral mistake of fact.

In summary judgment cases the question on appeal and in this Court is not whether the summary judgment proof raises fact issues with respect to essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more elements of the plaintiffs' cause of action. The burden of proof is on the movant and all doubts as to the existence of a genuine issue of material fact must be resolved against the party moving for summary judgment. Farley v. Prudential Ins. Co., 480 S.W.2d 176 (Tex.1972); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970).

The summary judgment evidence here consists of exhibits, affidavits, and testimony had in one of the consolidated causes. ¹ The summary judgment recites that the trial court, having considered the pleadings, admissions on file as contained in Cause No. 1811, and affidavits, finds that there is no genuine issue of material fact and that appellees are entitled to a summary judgment as a matter of law.

This controversy arises out of the sale of a tract of 200 acres of land by appellees to appellants. Appellees were the owners of a 200-acre tract situated on IH 10 which adjoined a tract of land owned by one of the appellants (Dr. Roland). The other appellant (Kirby Albright) is a real estate broker and on various occasions bought real estate in connection with Dr. Roland. The record is somewhat unclear as to whether in this case he collected a commission. It is undisputed that appellants executed the notes and deed of trust involved, but it is their contention that they were fraudulently induced to give such notes and mortgage because of fraudulent representations by the appellees as to the access to the property from IH 10.

We consider first appellants' contention that there is insufficient proof to support the summary judgment in that appellees failed to introduce into evidence either the originals or certified copies of the original notes sued upon. It appears from the record that photocopies of the two notes involved were attached to appellees' pleadings and were also attached to the affidavits supporting the motion for summary judgment. In such affidavits the affiant states that appellees are the owners and holders of such promissory notes, true copies of which are thereto attached; and also that true copies are also attached to plaintiffs' original pleadings, which pleadings and all exhibits attached thereto are incorporated by reference. Appellants do not deny the execution of such notes nor do they contend that the copies were not true copies of such notes. In fact, in their pleadings in the trial court, they acknowledged that they executed such notes and contend that they were fraudulently induced to give such notes because of fraudulent representations made by appellees. No exceptions or objections were made in the trial court relating to the failure to attach the original or certified copies of the notes in question.

In Womack v. I. & H. Development Co., Inc., 433 S.W.2d 937 (Tex.Civ.App. Amarillo 1968, no writ), the contention was made that no proof of the notes was made because neither the originals or certified copies were attached to the pleadings or the motions for summary judgment. The Court held that the notes were properly in evidence, stating There was no exception in the trial court relating to the failure to attach the original or certified copies of the notes in question. Where unverified or uncertified copies are attached to pleadings or a motion for summary judgment and no exception is taken, the party thereby waives the requirement under Rule 166-A(e) and the copies are a sufficient basis to grant a motion for summary judgment when it fairly appears there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Youngstown Sheet & Tube Company v. Penn, 363 S.W.2d 230 (Sup.Ct.). Farmers & Merchants Compress & Warehouse Company v. City of Dallas (Tex.Civ.App.) 335 S.W.2d 854, 856 (Ref.N.R.E.) Schoolcraft v. Channel Construction Company (Tex.Civ.App.) 397 S.W.2d 256 (Ref.N.R.E.). It is further noted appellants admitted the execution of the notes in their sworn answer. Such allegation constitutes a judicial admission and is construed against appellants. Yelverton v. Brown (Tex.Civ.App.) 412 S.W.2d 325. McCormick v. Stowe Lumber Company (Tex.Civ.App.) 356 S.W.2d 450 (Ref.N.R.E.). We therefore conclude the notes were properly in evidence before the court.

In Broaddus v. Town North Nat'l Bank, 558 S.W.2d 909 (Tex.Civ.App.1977), the Court held that when a photocopy of a promissory note is attached to an affidavit, which affidavit swears that the attached note is a true and correct copy of original note, the note becomes a sworn exhibit, and is in full compliance with Rule 166-A(e), Tex.R.Civ.P. See also International Shelters, Inc. v. Corpus Christi State National Bank, 475 S.W.2d 334 (Tex.Civ.App. Corpus Christi 1971, no writ); Wexler v. Gibraltar Savings Ass'n, 439 S.W.2d 379 (Tex.Civ.App. Houston (14th Dist.) 1969, no writ).

We have concluded that the notes were properly in evidence before the Court and are in compliance with the provisions of Rule 166-A(e).

We consider next appellants' contention that the trial court erred in granting appellees' motion for summary judgment because material fact questions existed concerning fraud in the inducement and unilateral mistake of fact. Rule 166-A(c) provides that a summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavit, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

To establish actionable fraud it must appear that: (1) a material representation was made; (2) it was false; (3) when the representation was made the speaker knew it was false or that he made it recklessly without any knowledge of its truth and as a positive assertion; (4) the speaker made the representation with the intent that it should be acted upon by the party; (5) the party acted in reliance upon the representation; and (6) the party thereby suffered injury. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183 (Tex.1977); Oilwell Division, United States Steel Corp. v. Fryer, 493 S.W.2d 487 (Tex.1973); McCall v. Trucks of Texas, Inc., 535 S.W.2d 791 (Tex.Civ.App. Houston (1st Dist.) 1976, writ ref'd n. r. e.); Brady v. Johnson, 512 S.W.2d 359 (Tex.Civ.App. Austin 1974, no writ); Panhandle & Santa Fe Ry. Co. v. O'Neal, 119 S.W.2d 1077 (Tex.Civ.App. Eastland 1938, writ ref'd); Wilson v. Jones, 45 S.W.2d 572 (Tex.Com.App.1932, holding approved ). Each of these elements must be established and the absence of any one of them will prevent a recovery.

We have concluded that the record shows that as a matter of law there is no material fact issue as to elements 1, 2, and 3, heretofore set forth.

Appellants' basic contentions are as follows: (a) although appellees never told them that there was access to IH 10 from such property, they did not tell them that access had been denied; (b) a map of the 200 acres was furnished to them by appellees, and it could be reasonably inferred therefrom that there was access to such property; (c) at the time they originally inspected the property, while IH 10 was still under construction, they entered such property from IH 10.

Appellants concede that appellees never specifically said that the property had access to Interstate Highway 10, and one of the appellants (Albright) testified that when he inspected the property he was told by appellee McCullough, that the only way to enter the property was through Dr. Roland's property. He also testified that at the time that he and...