Spray v. Stash
| Decision Date | 18 April 1975 |
| Docket Number | No. 4768,4768 |
| Citation | 523 S.W.2d 262 |
| Parties | Preston SPRAY et ux., Appellants, v. Johnnie STASH and Senter and Senter Real Estate, Appellees. |
| Court | Texas Court of Appeals |
Larry S. Parnass, Parnass & Hill, Irving, for appellants.
Stanley P. Wilson, McMahon, Smart, Wilson, Camp, Lee & Surovik, Abilene, for appellees.
This is a summary judgment case. Preston Spray et ux., Beatrice Spray, sued Senter and Senter Real Estate, a real estate brokerage firm and its agent, Johnny Stash, for damages for alleged misrepresentations in a real estate transaction. The Sprays contend Stash's misrepresentations to purchasers of their land resulted in a recission of the sale in a suit brought by the purchasers against them, Senter and Senter and its agent, Stash. By cross-action, Senter and Senter sought judgment for unpaid balance of an installment promissory note in the original sum of $3,600 plus attorneys' fees.
The record reflects Spray and wife, with the efforts of Stash, sold property to Lloyd and Helen Randolph. Shortly after the sale, the Randolphs became discontented with the land because of a water drainage problem. They sued Spray and wife, Senter and Senter and Stash seeking recission of the contract of sale. The basis of their suit was that misrepresentations had been made to them concerning the flooding problem. The defendants answered asserting that full disclosure as to the water problem had been made. Prior to submission to the jury in that case, a non-suit was taken as to Senter and Senter and Stash. Based on the jury's verdict, judgment was entered favoring the Randolphs. A settlement agreement was then entered into between the Sprays and the Randolphs, a new trial granted, and an order of dismissal with prejudice entered. Spray and wife then instituted the present proceedings.
The trial court granted summary judgment for Senter and Senter Real Estate and Johnnie Stash. Preston Spray and wife, Beatrice, appeal.
The first point of error urged by Spray is:
'The trial court erred in granting summary judgment for defendant because the defendants' motion for summary judgment did not meet the requisite qualifications of specificity under Texas Rules of Civil Procedure, rule 166--A(c).'
Rule 166--A, as amended affective January 1, 1971, reads in part as follows:
'. . . The motion for summary judgment shall state the specific grounds therefor.'
The motion urged by Senter and Senter and Stash contained as grounds therefor, the following:
'That based upon the affidavit attached hereto and upon the pleadings, the admissions and the interrogatories on file and the answers thereto, there is no genuine issue as to any material fact involved in this cause and said defendants and each of them are entitled to judgment as a matter of law, that the plaintiffs take nothing by their suit and that the defendants and each of them recover their costs; and that Super Speed Racing, Inc., doing business as Senter and Senter Real Estate, is also entitled to judgment upon its cross-action in the amount of $2,294.71 plus reasonable attorneys' fees and interest upon both such amounts, as well as all costs by its incurred.'
Although the motion for summary judgment of Senter and Senter Real Estate and Johnnie Stash fails to meet the standard of specificity as required by Rule 166--A, we hold such requirement may be waived. The record reflects on exception was taken by Spray as to the specificity of the defendant's motion, therefore, the specificity requirement is waived. Rule 90, T.R.C.P.; Maberry v. Julian, 479 S.W.2d 770 (Tex.Civ.App.--Dallas 1972, writ ref. n.r.e.); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1962).
The point of error is overruled.
The Sprays next argue there are genuine issues of fact. The record establishes that in response to request for admissions in the case at bar, the Sprays admitted the matters contained in their pleadings in the cause brought by the Randolphs against them, Senter and Senter, and Stash were true and correct . Such pleadings contain the following allegations:
'Spray and Senter would show ...
To continue reading
Request your trial
-
State ex rel. Grimes County Taxpayers Ass'n v. Texas Municipal Power Agency
...do not present reversible error. Youngstown Sheet and Tube Company v. Penn, 363 S.W.2d 230 (Tex.1962); Spray v. Stash, 523 S.W.2d 262 (Tex.Civ.App. Eastland 1975, writ ref'd n. r. e.); Wiseman v. Horn, 309 S.W.2d 253 (Tex.Civ.App. Houston 1958, no writ history); Navarro v. Secret Harbor Far......
-
Castillo v. American States Ins. Co. of Texas
...r. e. per curiam, 505 S.W.2d 788 (Tex.1974). As authority to the contrary, the insurance company cites Spray v. Stash, 523 S.W.2d 262 (Tex.Civ.App. Eastland 1975, writ ref'd n. r. e.), which held that the specificity requirement can be waived by a party's failure to except to a generalized ......
-
City of San Antonio's Firemen's and Policemen's Civil Service Commission v. Villanueva, 16663
...cured by amending the motion. Since no exception was filed we hold that this defect was waived." See also Spray v. Stash, 523 S.W.2d 262 (Tex.Civ.App.-Eastland 1975, writ ref'd n.r.e.). City has waived any omission or defect in the pleadings as grounds for a reversal on this appeal. City's ......
-
Jones v. McSpedden
...cured by amending the motion. Since no such exception was filed, we hold that this defect was waived. Spray v. Stash, 523 S.W.2d 262, 263 (Tex.Civ.App. Eastland 1975, writ ref'd n. r. e.). This holding is based on the same principle as that underlying rule 90, Texas Rules of Civil Procedure......