Whatley v. National Bank of Commerce

• Citation: 555 S.W.2d 500
• Decision Date: 10 August 1977
• Docket Number: No. 19196,19196
• Parties: Jerry A. WHATLEY, Appellant, v. NATIONAL BANK OF COMMERCE, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 500

555 S.W.2d 500

Jerry A. WHATLEY, Appellant, v. NATIONAL BANK OF COMMERCE, Appellee.

No. 19196.

Court of Civil Appeals of Texas, Dallas.

Aug. 10, 1977.

Raymond A. Enstam, Dallas, for appellant.

Mark C. Clements, Geary, Stahl, Koons, Rohde & Spencer, Dallas, for appellee.

AKIN, Justice.

This is an appeal from a summary judgment rendered in favor of counterdefendant National Bank of Commerce. The bank originally sued Whatley on a note. On September 27, 1976, Whatley filed a counterclaim alleging several causes of action against the bank. A jury trial on the original action resulted in a judgment in favor of the bank which is not complained of here. Subsequently, the bank filed a motion for summary judgment alleging that the causes of action stated in the counterclaim were barred by the statute of limitations. Neither side presented any summary judgment evidence. We hold that Whatley's petition does not affirmatively show that the claims for money had and received, usury, failure of consideration, and fraud are barred by the statute of limitations. Accordingly, we reverse the judgment and remand for further proceedings with respect to these actions. However, with respect to Whatley's actions based on duress, we affirm because he had the burden to show by summary judgment evidence when the duress was removed.

The counterclaim indicates that the bank held notes executed by Whatley prior to the time that the incidents alleged as the basis of the counterclaim occurred. The first incident alleged occurred in May 1968 when Whatley contends the bank coerced him into guaranteeing a $64,000 loan to Sam Thomas. Whatley also alleges that the bank in October 1968, required Whatley to guarantee a $33,000 loan which it was unable to collect from its original maker, Sydney Kanaster. Whatley alleges that he was required to execute this guaranty in order to obtain a $200,000 loan commitment from the bank. The bank subsequently refused, however, to make the $200,000 loan. Whatley also contends that he had no connection with Kanaster or Thomas and that he had no reason to guarantee their notes other than the coercive actions of the bank. In May 1969 Whatley alleges that the bank forced him, by use of threats, to replace the Thomas and Kanaster notes with his personal notes. Whatley also alleges that he borrowed $95,000 from the bank in November 1969 to enable him to purchase thirty-three percent of the outstanding stock of Trans Services, Inc. He contends that the bank required that Whatley cause Trans Services to acquire Govan Express, Inc., which was indebted to the bank, and required that Trans Services pay off $90,000 of Govan's indebtedness. Finally, Whatley contends that the bank required him to sell his Trans Services stock for $140,000 at a time when the stock was actually worth $540,000. This occurred sometime in 1971.

Since no summary judgment evidence was introduced, the trial court properly rendered summary judgment only if the counterclaim affirmatively alleges facts which negate the existence of a cause of action or disclose an insurmountable barrier to recovery. Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex.1974); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Douglas v. First State Bank of Athens, 538 S.W.2d 179, 181 (Tex.Civ.App. Dallas 1976, no writ). The summary judgment procedure is not to be utilized as a substitute for special exceptions; summary judgment is not proper if the petition merely fails to allege a proper cause of action. Herring at 9. Since the only ground alleged in the motion for summary judgment is that the causes of action are barred by the statute of limitations, our sole inquiry is whether the petition affirmatively shows that the causes of action which Whatley has alleged or attempted to allege are barred. Resolving all doubts in favor of Whatley we construe the petition as attempting to set up the following causes of action: (1) Thomas and Kanaster notes: Whatley seeks recovery of the $97,000 paid on the basis that (a) it constitutes money had and received since it was paid pursuant to guaranties executed without consideration; (b) it constitutes payment of usurious interest on previously existing loans from the bank to Whatley; and (c) the guaranties should be rescinded due to fraud, duress, or failure of consideration, and any money paid pursuant to the guaranties should be returned; (2) Trans Services Loan: Whatley seeks recovery of the $90,000 which was required to be applied to the debts of Govan Express on the basis that it constituted usurious interest on the $95,000 loan to Trans Services; and (3) Sale of Trans Services stock: Whatley seeks recovery of the $400,000 which he lost due to the bank's coercing him to sell his stock at a loss. We do not express an opinion as to whether any of these causes of action were properly pleaded.

Thus, Whatley's counterclaim includes actions for money had and received, usury, duress, and rescission based on fraud, failure of consideration and duress, and the return of any moneys paid pursuant to the rescinded notes. The question, then, is when the statute of limitations begins to run on each of these causes of action and whether Whatley's petition affirmatively establishes these dates which would be admissions against Whatley insofar as each pertains to the bank's summary judgment. Since neither party introduced any summary judgment evidence, the result is dictated by which party had the burden of proof concerning the statute of limitations.

The Burden of Proof

The supreme court has distinguished between situations where the petition affirmatively shows that the limitations period has expired and the nonmovant seeks to avoid limitations in some manner and situations where the petition does not affirmatively show that the statute of limitations has run. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975) (per curiam); Oram v. General American Oil Co., 513 S.W.2d 533, 534 (Tex.1974) (per curiam). In the former situation, the nonmovant has the burden of producing evidence sufficient to raise a fact question as to the grounds for avoiding limitations; in the latter situation, the movant must establish that the suit is barred by limitations as a matter of law. In cases based upon fraud and duress, the courts have stated that the statute of limitations does not begin to run until the fraud is discovered or the duress removed. The question presented is whether these delays in the running of limitations are in the nature of an estoppel or avoidance of limitations. If so, the nonmovant had the burden of presenting evidence and, having failed to do so, the summary judgment was properly granted.

In Nichols v. Smith, 507 S.W.2d 518 (Tex.1974), the court held that plaintiff's medical malpractice claim was barred by the two-year statute of limitations since the record showed that the operation was performed in 1966 and the action was not filed until 1970. Plaintiff contended that the defendant fraudulently concealed the injury from her and that she did not discover the injury until 1969. The court concluded that plaintiff's claim of fraudulent concealment was, in effect, an affirmative defense in the nature of an estoppel to the affirmative defense of limitations. Thus, the burden was on the nonmovant plaintiff to present evidence raising a fact issue on this question in order to avoid the defense of limitations. However, the court reserved the question concerning the result under the discovery rule according to which certain causes of action do not accrue until the plaintiff discovers or should have discovered certain material facts, as contrasted with the fraudulent concealment claim.

In Oram v. General American Oil Co., 513 S.W.2d 533 (Tex.1974) (per curiam), the court of civil appeals affirmed a summary judgment because the plaintiff had become competent to bring the action in 1953, but had not filed the suit in the probate court until 1958, and the four-year statute of limitations had therefore expired. Plaintiff asserted that under Tex.Rev.Civ.Stat.Ann. art. 5539a (Vernon 1958), the statute of limitations ceased running in 1956 when the plaintiff filed the same action in the district court since the district court dismissed it for want of jurisdiction and she had refiled it in the probate court within sixty days. The court of civil appeals held that the nonmovant plaintiff had the burden of establishing the applicability of article 5539a and that she had failed to sustain her burden since the copy of the judgment attached to her affidavit did not expressly state that the dismissal was for want of jurisdiction. The supreme court held, however, that the burden was on the movant, stating that the nonmovant has no burden of responding to a motion for summary judgment unless the defendant has affirmatively established its defense. The court stated that the affirmative defense was not established since it was contended that the statute of limitations stopped running in 1956 under article 5539a. The court went on to say, however, that it would be a different matter if the movant had established the limitations defense and the nonmovant had attempted to interpose an estoppel to avoid the defense.

In Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex.1975) (per curiam), the plaintiff sued for negligent construction of a building. The cause of action, which was governed by the two-year statute of limitations, accrued on July 2, 1971, and suit was filed on June 28, 1973. However, plaintiff did not request issuance of citation until August 3, 1973. In response to the motion for summary judgment, plaintiff contended that it had used diligence in attempting to secure citation, thus tolling the statute of limitations, and that Tex.Rev.Civ.Stat.Ann. art. 5537 (Vernon 1958), which provides that the time a defendant is absent from the state shall not be counted as part of the limitations period, suspended the statute of...