Southwest Bank & Trust Co. v. Executive Sportsman Ass'n, 17756

• Decision Date: 03 March 1972
• Docket Number: No. 17756,17756
• Citation: 477 S.W.2d 920,55 A.L.R.3d 896
• Parties: SOUTHWEST BANK AND TRUST COMPANY, Appellant, v. EXECUTIVE SPORTSMAN ASSOCIATION, Inc., Appellee.
• Court: Texas Court of Appeals

Page 920

477 S.W.2d 920

55 A.L.R.3d 896

SOUTHWEST BANK AND TRUST COMPANY, Appellant, v. EXECUTIVE SPORTSMAN ASSOCIATION, Inc., Appellee.

No. 17756.

Court of Civil Appeals of Texas Dallas.

March 3, 1972.

Rehearing Denied March 23, 1972.

Larry S. Parnass, James G. Clement, Parnass, Weaver, McKaughan & Clement, Irving, for appellant.

Thomas W. Luce, III, Phillip N. Smith, Jr., Jenkens, Spradley & Gilchrist, Dallas, for appellee.

GUITTARD, Justice.

This is a suit for damages for wrongful sale under execution of eighteen portable buildings which plaintiff Executive Sportsman Association, Inc. ('ESA') claims to have owned. The execution was issued on a judgment recovered by defendant Southwest Bank and Trust Company against Ed Morgan, an officer and stockholder of ESA, and the sale was made by the sheriff of Kimble County at the request of the bank. The trial court sustained ESA's motion for partial summary judgment with respect to ownership of the buildings and tried the case on damage issues only. The jury found the value of the buildings and damages from loss of good will, and these findings are the basis of a judgment from which the bank appeals.

1. Partial Summary Judgment

The bank's first point is that the trial court erred in granting plaintiff's motion for partial summary judgment because there was a genuine issue of material fact as to the ownership of the buildings. This point is sustained.

The motion was based on the affidavits of Ed Morgan, the judgment debtor, and his brother Guy Morgan. Ed Morgan's first affidavit refers to an attached copy of the notice of execution sale, which describes twenty-one buildings including the eighteen in question, and the affidavit states that on April 26, 1968, when the sale took place, all but a certain designated three of the buildings described in the notice were owned by ESA and not by him. The affidavit further states that ESA is a corporation owned by twelve shareholders, and that he is vice-president. Also attached to this affidavit is a copy of the original articles of incorporation of ESA, dated April 20, 1965, under the name of 'Morgan Portable Buildings Corp., Lubbock,' and an amendment to these articles dated March 1, 1967, changing the name to 'Executive Sportsman Association, Inc.' A supplemental affidavit by Ed Morgan states that certain of the buildings listed in the notice were 'bought' by ESA from MP--Morgan Portable Buildings, Inc. in the year 1967.

The affidavit of Guy Morgan also refers to an attached copy of the notice of execution sale listing the twenty-one portable buildings and states that Guy Morgan as president of MP--Morgan Portable Buildings, Inc., a Texas corporation, sold and delivered to ESA in the year 1967 certain portable buildings identified on the list, and that he as president of the selling corporation intended for title to the buildings to pass to ESA and intended that thereafter ESA would be the owner of such buildings.

In reply to the motion for summary judgment the bank filed an affidavit of its vice-president Thomas High, stating that he had made loans to both Ed Morgan and his brother Guy Morgan in 1966, that in 1967, after Ed's loan became delinquent, Ed spoke to him at his desk at the bank and suggested that the bank advance additional sums of money on a note which the Morgan brothers held, and that on such occasion Ed Morgan 'definitely stated to me that he owned a considerable number of portable metal buildings located on a ranch in Kimble County, Texas, outside the city of Junction that, these were his own personal property and that he and his wife and her parents operated some sort of hunting club there, whereby they leased the right to hunt on the premises and used the portable buildings as sleeping quarters for hunters,' and that Morgan further 'definitely represented to me that this was his personal property and that it was evidence that he was financially solvent enough to be worth the risk of my authorizing a further advancement of money to him.'

The question is whether the affidavits of Ed and Guy Morgan establish ESA's ownership of the buildings as a matter of law. We hold that they raise no more than a fact issue under the rules governing motions for summary judgment summarized in Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex.Sup.1965). There the Supreme Court says that the burden of proof is on the party moving for summary judgment and all doubts as to the existence of a genuine issue as to material fact are resolved against him, that the evidence must be viewed in the light most favorable to the party opposing the motion, that the motion cannot be granted if it involves the credibility of affiants or deponents, that evidence which favors the movant's position is not considered unless uncontradicted, and even uncontradicted evidence from an interested witness only raises an issue of fact unless it is clear, direct and positive and there are no circumstances in evidence tending to discredit and impeach it, and that this exception is especially true when the opposite party has the means and opportunity of disproving the testimony if it is not true and fails to do so.

ESA concedes that Ed Morgan is an interested witness, since he is an officer of the plaintiff corporation, but contends that his testimony is within the recognized exception because it is clear, direct and positive and there are no circumstances tending to discredit or impeach it. We cannot agree for several reasons. The first is that his statements that the buildings were 'owned' by ESA rather than by himself and that they were 'bought' by ESA from another Morgan corporation in 1967 are not direct and positive statements of fact, but opinions and conclusions based on transactions not factually described. A statement concerning ownership without supporting facts is an inadmissible conclusion if ownership is the main issue. Ballew v. Casey, 9 S.W. 189 (Tex.Com.App.1888); Alamo Cas. Co. v. William Reeves & Co., 258 S.W.2d 211 (Tex.Civ.App., Fort Worth 1953, no writ); McCormick & Ray, Texas Law of Evidence, 2d Ed., § 1426 (1956) . Ed Morgan's affidavit gives no information concerning the circumstances of the sales of the buildings to ESA, the amount of the consideration or who paid it, or the names of the persons who acted for the two corporations, and no supporting documents are shown. ¹ His unsupported conclusion cannot support a summary judgment. Crain v. Davis, 417 S.W.2d 53 (Tex.Sup.1967).

Another reason for not accepting Ed Morgan's affidavit as conclusive is that the transactions by which ESA acquired the buildings were matters within the special knowledge of Morgan and his business associates, and his testimony concerning such transactions, if untrue, could not be readily contradicted by the bank. Under these circumstances an issue of credibility is presented. James T. Taylor & Son, Inc. v. Arlington Ind. Sch. Dist., 160 Tex. 617, 335 S.W.2d 371 (1960). Cf. Praetorian Mutual Life Ins. Co. v. Sherman, 455 S.W.2d 201 (Tex.Sup.1970).

A third reason is that Ed Morgan was the debtor from whom the bank was attempting to collect its judgment. This is an impeaching circumstance, because if the buildings were his property, he had an obvious motive to conceal that fact and represent that they belonged to ESA, of which he was an officer and stockholder.

The fourth reason is Morgan's statement to the bank officer several months before the execution sale that he then owned 'a considerable number of portable metal buildings located on a ranch in Kimble County, Texas outside the city of Junction, and that these were his own personal property.' This statement may not be directly inconsistent with the statement in his affidavit that he had no interest in the eighteen buildings in question on the date of the sale, since the time of the statement to the banker was several months earlier and the particular buildings he then claimed to own are not identified, but it is an inferentially impeaching statement that he could be required to explain on cross-examination, and a jury would be entitled to consider it in passing on his credibility. Beaty v. Yell, 62 Tex.Civ.App. 628, 133 S.W. 911 (Fort Worth 1910, no writ); 3A Wigmore, Evidence § 1040 (1970).

We conclude that all these circumstances tend to discredit and impeach the statements in Ed Morgan's affidavit, and therefore his credibility is a matter for a jury.

ESA argues also that even if the partial summary judgment cannot be sustained on Ed Morgan's two affidavits, Guy Morgan is not an interested witness and his affidavit is conclusive. We cannot agree . Guy Morgan's affidavit fails to show that he is disinterested. The original articles of incorporation of ESA (formerly Morgan Portable Buildings, Inc. of Lubbock) attached to Ed Morgan's affidavit, list Guy Morgan as well as Ed Morgan as a member of the initial board of directors. Since plaintiff had the burden of proof on the motion for summary judgment, we cannot assume that Guy Morgan was not an officer and stockholder of ESA at the time his affidavit was made. The affidavits of Thomas High and Lesla Box, which are not contradicted in this respect, state that they knew Guy and Ed Morgan as brothers and business associates. Consequently we treat Guy Morgan as well as Ed Morgan as an interested witness. The statements in Guy Morgan's affidavit concerning sale of the buildings to ESA and his intention to pass title to ESA are not direct, clear and positive statements of fact free of impeaching circumstances, but are also legal conclusions, since intent to pass title is a matter to be determined from the acts and words of the parties at the time of the transaction, and particularly by documentary evidence if the transaction took that form. Waggoner v. Magnolia Petroleum Co., 252 S.W. 865 (Tex.Civ.App ., Amarillo 1923, no writ). None of this information is supplied in support of the motion, or shown...