Scurlock v. Lovvorn
| Decision Date | 30 December 1966 |
| Docket Number | No. 16842,16842 |
| Citation | 410 S.W.2d 525 |
| Parties | Olin SCURLOCK et al., Appellants, v. Martin C. LOVVORN, Appellee. . Dallas |
| Court | Texas Court of Appeals |
A. B. Conant, Jr., of Shank, Irwin & Conant, Dallas, for appellants.
Clarence Bentley, Dallas, for appellee.
Summary judgment proceeding. Rule 166-A, Vernon's Texas Rules of Civil Procedure. Martin C. Lovvorn brought this action against Olin Scurlock and wife, Mary Scurlock, and H. Gilson Scurlock, seeking judgment for an alleged breach of a written instrument. Plaintiff moved for summary judgment against all defendants and the defendant H. Gilson Scurlock moved for summary judgment against plaintiff. The trial court sustained plaintiff's motion for summary judgment against defendants Olin Scurlock and wife, Mary Scurlock, and proceeded to render judgment against said defendants. The court denied plaintiff's motion as to H. Gilson Scurlock and sustained this defendant's motion for summary judgment against plaintiff. This appeal has been perfected by Olin Scurlock and wife, Mary Scurlock, from that portion of the judgment granting plaintiff recovery against them for $30,000 plus interest. Plaintiff does not appeal from that part of the judgment denying him relief against defendant H. Gilson Scurlock.
Appellants, in four points of error, attack the trial court's action in granting appellee's motion for summary judgment against them because they contend that there were at least four genuine and material issues of fact presented by the record and therefore summary judgment was improper. Our judicial review of the problems here presented is governed by well established guidelines which were re-announced by our Supreme Court in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (1965), as follows: (1) summary judgment shall be rendered if it is shown that 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; (2) the burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against him; (3) the evidence must be viewed in the light most favorable to the party opposing the motion; (4) if the motion involves the credibility of affiants or deponents the motion should not be granted; (5) 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; (6) if there is uncontradicted evidence from an interested witness, it cannot be considered as doing more than raising an issue of fact, unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit or impeach such testimony, this being especially true where the opposite party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so.
By appellants' first point of error it is contended that there is a controverted question of fact on the issue of whether there was any consideration for the agreement upon which appellee sues. The written instrument, made the basis of appellee's cause of action against appellants, is as follows:
'June 29, 1959
'Mr. Martin Lovvorn, President
'Lovvorn-Davison, Inc.
'Meadows Building
'Dallas, Texas
'Dear Mr. Lovvorn:
'Upon your acceptance this letter shall constitute our agreement in connection with the loans which are due to you by Suburban Business Centers, Incorporated:
'The Corporation shall pay you the sum of $84,000 plus any interest which is accrued to date of payment. In consideration for services rendered and hereby acknowledged, We personally promise to pay to you the amount of $25,000.00 in accordance with the following provisions:
'a. You will be paid the above amount before either Gilson or myself receive from Suburban Business Centers, Incorporated any profits for our own use, whether these profits be in the form of dividends, bonuses or any salaries in the excess of those provided by my agreement of June 19, 1958 with W. H. Hudson. This provision should not prevent, however, the employment of Gilson Scurlock by the corporation at a reasonable salary for services rendered. For purposes of this paragraph, my agreement with W. H. Hudson provides that I shall receive $750.00 per month for three years and $300.00 per month thereafter.
'b. In the event of a pending sale of any of my interest in the corporation or any of Gilson's interest in the corporation, you shall be notified and the above amount shall be paid to you upon sale of all of our interests in the corporation. In the event of a sale of part of our interests, your claim shall be considered a prior claim to be paid before Gilson Scurlock or I receive any proceeds from such a sale.
'c. The $25,000.00 shall become due and payable, however, not later than January 2, 1964. If payment of $25,000.00 is not made by January 2, 1964, it is agreed that the amount due hereunder shall become $30,000.00 and shall be paid by July 2, 1964.
'This is a full settlement of all claims, contingent or otherwise, which may exist between any of the parties to this agreement on account of prior contracts or otherwise, and no action shall be brought on any obligation other than set out herein.
'It is agreed and understood that Howard Busby will remain an officer of the corporation and will determine the availability of profits for the benefit of Martin Lovvorn.
'/s/ Martin C. Lovvorn, Pres.
'/s/ H. Gilson Scurlock
'H. GILSON SCURLOCK
/s/ Mary Scurlock
MARY SCURLOCK.'
Appellants, by verified answer, expressly denied that the instrument sued upon was supported by consideration. Appellee sought to overcome this verified defense by introducing, through his affidavits in support of his motions for summary judgment, a note, a deed of trust and a contract, the release of such instruments, he contended, being the consideration for the agreement. Thus we are required to examine the terms of the various instruments to determine whether their release has the effect of creating a legal consideration for the execution of the basic instrument sued upon.
An examination of the documents and affidavits presented to the trial court in connection with the motion for summary judgment reveals a most complex course of dealings between the parties to this litigation, as well as between corporations which are not parties. It would serve no useful purpose to detail the elaborate and complicated transactions carried on between the parties and the corporations involved and we will therefore attempt to confine our recitation of the antecedent facts to those which are relevant to the issue here presented.
Prior to June 29, 1959 Martin C. Lovvorn was president and a substantial stockholder in a corporation known as Lovvorn-Davison, Inc. According to Lovvorn's affidavit Lovvorn-Davison, Inc. arranged financing and provided consultation services for a corporation known as Suburban Business Centers, Incorporated, which was engaged in the building of a shopping center and which said corporation was largely owned and controlled by Olin Scurlock and his wife Mary. Lovvorn-Davison, Inc. owned a note and a contract entered into and executed by Suburban Business Centers, Incorporated, and that 'on and before June 29, 1959 Lovvorn-Davison, Inc. had a substantial and considerable claim against said corporation partially owned and controlled by the said Olin Scurlock and that there was considerable discussion between this affiant and Olin Scurlock concerning the liquidation of such claim.' According to Lovvorn he, as assignee of Lovvorn-Davison, Inc., and Olin Scurlock, Mary Scurlock and H. Gilson Scurlock, entered into the agreement of June 29, 1959 for the purpose of settling various disputed claims and clarifying the indebtedness between Lovvorn-Davison, Inc. on one hand and Suburban Business Centers, Incorporated and Olin Scurlock on the other hand. He alleged that on such occasion Lovvorn-Davison, Inc. surrendered a secured note in the amount of $100,000, a deed of trust, and a contract, which it had with 'Olin Scurlock and the said corporation, Suburban Business Centers, Incorporated', to defendant Olin Scurlock in consideration for and upon the execution of the agreement. Lovvorn further said that 'Lovvorn-Davison, Inc., had fully performed all of its obligations under Exhibit C (the deed of trust).'
The note in question is dated May 28, 1957 and in the principal sum of $100,000 executed by Suburban Business Centers, Inc. by Olin Scurlock, President and 'Cosigner: Olin Scurlock'. Said note is payable to one Howard Busby and shows to have been assigned by Busby to Lovvorn-Davison, Inc., without recourse. The note provides that:
'This note is due and payable as follows, to-wit:
'The principal balance, together with interest at the rate of 6% Per annum From the completion date of the improvements on the property known as the 'NORTH TRACT' * * *'. (Emphasis ours.)
The deed of trust is executed by Suburban Business Centers, Incorporated, by Olin Scurlock, President and is given to secure the payment of the above described note.
The contract, dated May 17, 1957, shows to have been executed by Lovvorn-Davison, Inc. by Martin C. Lovvorn and Suburban Business Centers, Inc. by Olin Scurlock, President. In Paragraph 9 of the contract it is provided that:
The contract provides that for services rendered by Lovvorn-Davison, Inc....
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