Talamas v. Bressi Intern., 04-86-00114-CV

• Decision Date: 25 February 1987
• Docket Number: No. 04-86-00114-CV,04-86-00114-CV
• Citation: 727 S.W.2d 72
• Parties: John Anthony (Tony) TALAMAS, Appellant, v. BRESSI INTERNATIONAL, Appellee.
• Court: Texas Court of Appeals

Page 72

727 S.W.2d 72

John Anthony (Tony) TALAMAS, Appellant, v. BRESSI INTERNATIONAL, Appellee.

No. 04-86-00114-CV.

Court of Appeals of Texas,

San Antonio.

Feb. 25, 1987.

Rehearing Denied March 30, 1987.

James H. Robichaux, Corpus Christi, Francisco J. Saldana, Jr., Laredo, for appellant.

C.M. Zaffirini, Laredo, for appellee.

Before BUTTS, REEVES and CHAPA, JJ.

OPINION

CHAPA, Justice.

This case involved a summary judgment granted to Bressi International against John Anthony (Tony) Talamas in the sum of $149,683.06.

Appellee, Bressi International (Bressi), is a Texas Limited Partnership. Appellant, John Anthony (Tony) Talamas, is a general partner of Casa Massari, a Texas General Partnership. Bressi is the owner and holder of three checks issued by Casa Massari and signed by John Talamas in the total sum of $149,683.06. The John Talamas who signed the checks was not the appellant but was a partner of Casa Massari. The checks were presented to the bank for payment and returned marked "Insufficient Funds." Negotiations between the parties herein regarding the checks resulted in Tony Talamas agreeing in a written memorandum dated March 24, 1985 to guarantee payment of any amount not paid by the bank. No amount was paid by the bank and suit and counter suit followed alleging several claims and counter claims. On January 28, 1986, summary judgment in the amount of $149,683.06 was granted Bressi, and all other claims and counter claims were severed and assigned another cause number. Motion for New Trial was denied by the court and Tony Talamas has perfected his appeal asserting the trial court erred in granting summary judgment against him.

TEX.R.CIV.P. 166-A places the burden on the movant, Bressi International, to prove there exists no material fact issue and that they are entitled to judgment as a matter of law. Mays v. Foremost Insurance Co., 627 S.W.2d 230, 233 (Tex.App.--San Antonio 1981, no writ). The standard of review in a summary judgment appeal requires the reviewing court to disregard all conflicts within the evidence and accept as true the proof which tends to support the position of the party opposing the motion. Farley v. Prudential Insurance Co., 480 S.W.2d 176, 178 (Tex.1972). A summary judgment should be affirmed only if the record establishes a right to the summary judgment as a matter of law. Clutts v. Southern Methodist University, 626 S.W.2d 334, 335 (Tex.App.--Tyler 1981, writ ref'd n.r.e.).

In points of error numbers one, two, three and four, appellant contends the summary judgment evidence failed to prove that the amount, if any, owing Bressi remained unpaid. A review of the summary judgment evidence discloses that Bressi is the owner and holder of the three checks totaling $149,683.06, which were presented to the bank for payment and returned with the notation "Insufficient Funds." We hold that the summary judgment evidence sufficiently establishes the $149,683.06 remains unpaid. Points of error one, two, three and four are overruled.

In points of error five and six, appellant asserts the affirmative defense of accord and satisfaction.

Once the movant establishes his right to summary judgment as a matter of law, to defeat a summary judgment, the non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement, such as those set out in TEX.R.CIV.P. 94 (Affirmative Defenses), and he must present summary judgment proof when necessary to establish a fact issue. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Where such affirmative defense has more than one element, then a fact issue must be raised on each element necessary to such...