Texas Nat. Corp. v. United Systems Internat'l, Inc.
| Decision Date | 18 April 1973 |
| Docket Number | No. B--3773,B--3773 |
| Citation | 493 S.W.2d 738 |
| Parties | TEXAS NATIONAL CORPORATION, Petitioner, v. UNITED SYSTEMS INTERNATIONAL, INC., Respondent. |
| Court | Texas Supreme Court |
Parnass, Clement & Cline, James G. Clement, Irving, for petitioner.
Passman, Jones, Andrews, Coplin & Holley, Shannon Jones, Jr., and George Nachman, Dallas, for respondent.
The courts below have upheld a summary judgment for the plaintiff on a promissory note. The facts are fully set out in the opinion of the court of civil appeals. 487 S.W.2d 863. We reverse because the plaintiff failed to make the necessary summary judgment proof under Rule 166--A(e) of the Texas Rules of Civil Procedure. 1
Reducing the facts, the pleadings, and summary judgment proofs to their simplest form for purposes of this opinion, we find the following: the plaintiff's petition alleges that the note sued upon was executed to it by defendant, was due and unpaid, and that the plaintiff had been, since the execution of the note to the present, the owner and holder of the note. The petition is not sworn to.
The petition also states that 'a copy of said note' is attached to the petition, marked Exhibit A, and referred to for all purposes. The copy of the note is not attested to as a 'sworn or certified copy.' 2
The defendant filed a general denial.
The plaintiff then filed an unsworn motion for summary judgment which had attached to it an affidavit. The affidavit was executed by a vice president of the plaintiff corporation. He stated, among other things, that he had charge of the books and records of the plaintiff; that he had read the plaintiff's petition and had studied the exhibits attached thereto, and that 'I know of my own knowledge that the factual allegations contained in said petition are true and correct.' The affiant does not swear that the plaintiff is the owner and holder of the note. He does swear that the facts of the petition are true, and the petition states that plaintiff was (to the time of the filing of the petition) the owner and holder of the note.
Neither the original nor a sworn copy of the note was attached to the affidavit or to the motion for summary judgment.
The defendant filed an answer to the motion for summary judgment. The answer pointed out that the plaintiff's motion for summary judgment and the affidavit were insufficient because 'neither the original of said note nor a true (sworn) copy thereof have been made a part of this case, and plaintiff has failed in its proof that it is the owner and holder and in possession of the promissory note.' This answer placed the problems squarely before the trial court, and it should have been heeded.
Rule 166--A(e) provides for supporting proof for the motion for summary judgment; and as relevant here, it says: 'Sworn or certified copies of all papers . . . referred to in an affidavit shall be attached Thereto. . . .'
There have been four opinions of this Court in recent years which show the development of the law before us:
In Southwestern Fire & Casualty Co. v. LaRue, 367 S.W.2d 162 (Tex.1963), a Copy of the note was attached to the Pleadings. The original of the note was not attached to the motion for summary judgment or an affidavit attached to the motion. No exception was made of this in the trial court, and no point was assigned thereon in the court of civil appeals. That court's opinion erroneously stated that 'the note itself was attached to (the) plaintiff's petition.' Our opinion stated, in effect, that this method of procedure by the plaintiff was not good practice, but it did not present fundamental error. The court, therefore, did not reach the problems discussed in the dissents.
There were two dissenting opinions. The dissent of three justices (Calvert, joined by Walker and Hamilton) pointed out that in the face of a general denial, merely attaching a copy of the note to the pleadings did not prove that the plaintiff was the owner and holder of the note. The original of the note carries with it evidence of possession and ownership. A copy does not. The dissent stated that the plaintiff 'could have discharged its burden without producing and introducing the original note, under Rule 166--A(e), by attaching a sworn or certified copy of the note to a proper affidavit or by serving such a copy with the affidavit.' 367 S.W.2d at 166.
Justice Griffin filed a separate one-line dissent on the ground that 'the note, or a copy admissible as evidence in accordance with legal rules, Was not attached to an affidavit supporting the motion for summary judgment.' (emphasis added here).
The next opinion was Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230 (Tex.1963). There the supporting document was attached to a Pleading (not the motion for summary judgment or affidavit). An affidavit referred to the pleadings and the document. No objection or exception was made in the trial court to the fact that the supporting proof was not attached to the motion or to an affidavit attached to the motion. This point was made for the first time on appeal.
The opinion of the court was that the affidavits 'were subject to exception . . . because . . . verified or certified copies . . . were not attached to or served with the Johnson affidavit.' The court observed, however, that there was no possibility that anyone was misled or deceived. The holding was that exceptions to the deficiencies should have been made, if there was any doubt in the matter, in the trial court; and '(w)e hold that objections of this kind may not be raised for the first time on appeal. . . .'
Then came Perkins v. Crittenden, 462 S.W.2d 565 (Tex.1970). There again a Copy of the promissory note sued upon was attached to the Petition. The plaintiff moved for summary judgment with a supporting statement that the person making the statement had read the petition, and that it was true and correct. The statement, however, was not sworn to as an affidavit; it was simply acknowledged as a deed is acknowledged. It was held that it was error to enter the summary judgment.
The court in the Perkins case...
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