Terrazas v. Sullivan, 6159

• Decision Date: 21 July 1971
• Docket Number: No. 6159,6159
• Citation: 470 S.W.2d 904
• Parties: Jesus TERRAZAS, Jr., Appellant, v. Mike SULLIVAN, Jr., et al., Appellees.
• Court: Texas Court of Appeals

Page 904

470 S.W.2d 904

Jesus TERRAZAS, Jr., Appellant, v. Mike SULLIVAN, Jr., et al., Appellees.

No. 6159.

Court of Civil Appeals of Texas El Paso.

July 21, 1971.

Rehearing Denied Sept. 22, 1971.

Gerald B. Shifrin, El Paso, for appellant .

Mark F. Howell, El Paso, for appellees.

OPINION

PRESLAR, Justice.

This is a case in which the trial Court granted a motion for summary judgment dissolving its prior temporary injunction order. We are of the opinion that the learned trial judge erred and the cause must be reversed.

The background of the present case is that Appellee Jaynes took a default judgment on February 13, 1969, against Appellant Terrazas, on a note. Terrazas then employed Attorney Melby who, in April of 1969, worked out the oral agreement here in question with Jaynes' attorney, Brunson Moore, and under such agreement execution was forborne while Terrazas made $100.00 per month payments. In June of 1970, Attorney Moore refused the payment for that month and caused execution to issue on the judgment of February 13, 1969. Terrazas then brought this suit to enjoin Sheriff Sullivan from the sale of certain realty under the writ of execution and for declaratory relief of construing the agreement as valid and enforceable. The trial Court granted a temporary injunction. Appellee then filed the motion for summary judgment which resulted in the judgment here appealed from, and by which the temporary injunction was dissolved.

Appellees' motion for summary judgment was based on allegations that the purported agreement was breached by a late payment, and that such agreement was without consideration and in violation of the Statute of Frauds. The summary judgment evidence before the Court consisted of the depositions of Appellant Terrazas and Attorney Melby, and affidavits of Appellee Jaynes and Melby. Appellee, as Defendant in this action, had the burden by his motion for summary judgment of establishing as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the Plaintiff's cause of action. Gibbs, et al. v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Rule 166--A, Texas Rules of Civil Procedure. It is in this light that we review the action of the trial Court in granting the judgment here appealed from.

Appellant, as Plaintiff, alleged in his petition that he was the owner of certain described real estate on which the Defendant Jaynes had caused a writ of execution to be delivered to the Sheriff and levied thereon; that the Defendant had an unsatisfied money judgment against him, and that after such judgment had been obtained against him, Plaintiff and Defendant entered into a contract or agreement providing:

'That Defendant would not enforce said money judgment in any way, or levy execution on the same against Plaintiff and that Plaintiff, within 8 or 10 months from April, 1969, expected a business venture to produce funds to liquidate said judgment, and if not and in any event, Plaintiff would continue making monthly payments on said judgment at the rate of $100.00 per month until said judgment was fully and finally satisfied by said monthly payments.'

He further alleged in detail his compliance with the agreement by his monthly payments to Defendant's attorney, Brunson Moore, the acceptance of same up to and including the May, 1970, payment, and the honoring of the agreement to that time, but notwithstanding such agreement, the Defendant then had writ of execution issue and notice of sale posted for the 2nd day of June, 1970. He further alleged the making of the June, 1970, payment, its refusal, and that it was then paid into the registry of the Court as have all subsequent payments. As indicated, he also sought declaratory judgment that the agreement was enforceable and that he was not in default.

In the deposition of Attorney Melby, he states that the above quotation from the Plaintiff's petition is the 'substance' of the agreement, and under examination by counsel by both parties, he supplied details of the making of the agreement and of its terms. He tells how he informed Brunson Moore that he was prepared to file a Bill of Review to set aside the default judgment, but asked if they could not agree instead that Terrazas make payments as required in the note and Defendant hold his judgment lien; that he was representing Terrazas in a business venture and that he would guarantee that any money received by Terrazas from that venture would be applied to payment on the judgment. Attorney Moore agreed, and the next day Melby sent him a letter which begins:

'In accordance with our agreement regarding the above lawsuit, enclosed please find our check in the sum of $100.00 to meet Mr. Terrazas first monthly payment.'

Further details of the agreement are supplied from Melby's deposition and his affidavit, and as to all of this, the Defendant, Jaynes, in his affidavit, in this regard makes only the simple statement, 'I never made any agreement to accept any amount less than the full amount of the judgment taken by me against Terrazas.'

In his motion for summary judgment, Appellee-Defendant alleged the agreement was unenforceable because of the Statute of Frauds. If that is the ground on which the motion was granted, we are of the opinion that the record will not support such a finding. The Statute of Frauds, V.T.C.A. Bus. & C. Sec. 26.01, as to contracts not in writing, makes unenforceable, '(6) * * * an agreement which is not to be performed within one year from the date of making the agreement;'. In the first place, this was the Defendant's motion for summary...