Sharpe v. Lomas & Nettleton Financial Corp., 20132

• Decision Date: 31 March 1980
• Docket Number: No. 20132,20132
• Citation: 601 S.W.2d 55
• Parties: Paul E. SHARPE, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 55

601 S.W.2d 55

Paul E. SHARPE, Appellant, v. LOMAS & NETTLETON FINANCIAL CORPORATION, Appellee.

No. 20132.

Court of Civil Appeals of Texas, Dallas.

March 31, 1980.

Rehearing Denied May 30, 1980.

Robert L. Dillard, III, Saner, Jack, Sallinger & Nichols, Dallas, for appellant.

Larry M. Lesh, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.

Before GUITTARD, C. J., and ROBERTSON and STOREY, JJ.

STOREY, Justice.

Summary judgment was granted plaintiff, Lomas & Nettleton Financial Corporation, against defendants, Paul E. Sharpe, and James C. Ashworth, as guarantors, for the deficiency remaining on a promissory note. Defendant Sharpe has appealed contending that his pleadings raised a material fact issue on his defense of fraud in the inducement. He also contends that plaintiff's summary judgment proof failed to establish the amounts of interest and attorney's fees because plaintiff's affidavits were not made on personal knowledge of the affiant. We hold that defendant's pleadings could not raise a fact issue because fraud was an affirmative defense on which he had the burden to offer summary judgment proof. We hold further that he failed to controvert plaintiff's summary judgment proof on the interest issue, that attorney's fees were properly allowed upon the entire indebtedness, and that plaintiff's affidavits were sufficient. We therefore affirm.

It is well settled in summary judgment practice that when the movant demonstrates by competent evidence that no material fact issue exists upon the elements of his claim, he is entitled to judgment unless the non-movant, having pleaded an affirmative defense, responds with summary judgment evidence showing there is a disputed fact issue upon his affirmative defense. Seale v. Nichols, 505 S.W.2d 251 (Tex.1974); Gulf, Colorado & Santa Fe Railway Co. v. McBride, 159 Tex. 442, 322 S.W.2d 492, 500 (Tex.1958); see also Torres v. Western Casualty and Surety Co., 457 S.W.2d 50, 53 (Tex.1970). Consequently, Sharpe's point of error insofar as it relies upon his pleadings to raise a fact issue on his affirmative defense is without merit. See Hidalgo v. Surety Savings and Loan Ass'n., 462 S.W.2d 540, 545 (Tex.1971).

Although not assigned as error, defendant argues that he offered summary judgment proof which raised a fact question with respect to his affirmative defense. This proof consists of defendant's affidavit which states in pertinent part:

At the time of making the loan for the acquisition of the property involved, it was represented to us by Mr. Hendry that additional funds would be forthcoming for the development and construction of the project. We relied on this representation at the time of making the original loan to El Tierra Development, Inc. We also relied on this in executing a personal guaranty. Hendry knew at the time of the original loan that neither James Ashworth nor I could finance the development and construction on our own without additional advances from Lomas and Nettleton.

I now believe that James Ashworth and I were the victims of a scheme or plan by Lomas and Nettleton to induce us to enter into the note, deed of trust and guaranty . . . and that they intended all along to not make the additional loans . . .

These assertions are not facts which, if proved, would constitute the elements required to establish fraud in the inducement. Fraud consists in the representation of present facts, not a promise to do something in the future. Talley v. Howsley, 142 Tex. 81, 176 S.W.2d 158, 160 (1943); Acoustical Screens in Color, Inc. v. T. C. Lordon Company, Inc., 524 S.W.2d 346, 349-50 (Tex.Civ.App. Dallas 1975, writ ref'd n. r. e.). The assertion as to what Hendry knew and what he intended are conclusions and opinion which are inadmissible. Duncan v. Horning, 587 S.W.2d 471 (Tex.Civ.App. Dallas 1979, no writ); Combs v. Fantastic Homes, Inc., 584 S.W.2d 340, 344 (Tex.Civ.App. Dallas 1979, writ ref'd n. r. e.). We hold that defendant's affidavit does not raise a fact question.

Defendant also failed to controvert plaintiff's summary judgment proof of the interest due. The note provided for interest at 41/2% in excess of the greater of (a) the prime interest rate of First National Bank or (b) the 90-day dealer commercial paper rate. The affidavit of Stephen L. McCord, vice-president of plaintiff's wholly owned subsidiary, asserts that after allowing all offsets, payments and credits, the principal balance of the note was $97,575.42 and interest accrued to July 1, 1978, was $81,212.60 with per diem interest of $48.79. Defendant does not question the accuracy of the interest computation. He complains only that because the evidence does not demonstrate the method used to make the computation, the court could not determine its accuracy. This was not the court's burden. The affidavit was clear, positive and direct and could have been readily controverted. It was therefore defendant's burden to point out any inaccuracy in...