Stephens v. First Bank and Trust of Richardson
| Citation | 540 S.W.2d 572 |
| Decision Date | 05 August 1976 |
| Docket Number | No. 5569,5569 |
| Parties | Walter H. STEPHENS, Appellant, v. FIRST BANK AND TRUST OF RICHARDSON, Appellee. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Michael R. Cooper, and Randolph P. Mundt, Flagg, Cooper, Hayner, Miller, Long & Owen, Dallas, for appellant.
Donald A. Muncy, Fiedler & Fortescue, Richardson, for appellee.
This is an appeal by appellant (defendant) Stephens from summary judgment against him for $150,000. on his guaranty on a note.
Plaintiff Bank sued National Education Systems Corporation for $150,000. on a note payable by defendant Systems to plaintiff, January 2, 1975; and additionally sued Dan A. Phillips on 'a guaranty agreement, guaranteeing payment of the original note and any extension or renewal thereof', and defendant Stephens on a like guaranty. Systems and Phillips filed no answer.
Defendant Stephens answered that on October 7, 1973 he accompanied defendant Phillips to the offices of plaintiff Bank for the purpose of discussing, and concluding a loan for Systems (Phillips was President of Systems); that plaintiff expressed interest in making the loan to Systems provided the loan would be guaranteed by Phillips and Stephens; that thereafter Systems and Phillips and ultimately Stephens were informed 'it would be necessary for a personal loan of Phillips to the First National Bank of Waco of $50,000. to be paid off (or otherwise taken care of to the satisfaction of First National)' as a condition to the approval of the loan; that 'thereafter Stephens who had agreed to guarantee the loan of plaintiff to Systems personally paid off the loan of Phillips to First National', and plaintiff made the $150,000. loan to Systems.
Stephens alleged plaintiff as a condition precedent to making Systems the $150,000. loan 'required Systems and/or its guarantor Stephens' to satisfy the indebtedness of Phillips to First National; that plaintiff Bank and First National had common controlling shareholders and were the alter-ego of one another; that the transaction was usurious as a result of paying Phillips $50,000. debt to First National; that such usury was more than twice the maximum lawful rate, as result of which plaintiff is not entitled to recover anything.
Plaintiff took default judgment against Systems and Phillips; and moved for Summary Judgment against defendant Stephens, attaching copies of Systems' note, Stephens' guaranty, and affidavit of its Vice President that Systems executed and delivered the $150,000. note to plaintiff; that Stephens executed and delivered his guaranty to plaintiff; that the note was in default and though requested Systems and Stephens have not paid same.
Stephens filed controverting affidavit to plaintiff's motion for summary judgment stating he accompanied Phillips to plaintiff Bank to conclude a loan for Systems; that plaintiff expressed interest in making the loan if the loan be guaranteed by Phillips and Stephens; and 'thereafter Systems, Phillips and I were informed * * * that as a condition to approval of the loan it would be necessary for a personal loan of Phillips to the First National Bank of Waco, Texas in the approximate amount of $50,000. to be paid off or otherwise taken care of to the satisfaction of First National.
'It was stated by the Bank that the payment of, or other disposition of Phillips' debt to First Antional was a condition precedent to the Bank submitting the loan to its loan committee and a condition precedent to the approval of such loan by the loan committee.
'Thereafter I personally paid off the loan of Phillips to First National;' and the Bank made the loan to Systems.
Stephens further filed cross action against Systems and Phillips and counterclaim against plaintiff Bank on the above facts, praying for twice the amount of asserted usurious interest paid, and that Bank take nothing in its suit against him.
The trial court severed the cross action, dismissed Stephens' counterclaim against plaintiff, granted plaintiff's motion for summary...
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