Winston v. Lake Jackson Bank, 1897

• Decision Date: 22 November 1978
• Docket Number: No. 1897,1897
• Citation: 574 S.W.2d 628
• Parties: R. F. WINSTON et al., Appellants, v. LAKE JACKSON BANK, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 628

574 S.W.2d 628

R. F. WINSTON et al., Appellants, v. LAKE JACKSON BANK, Appellee.

No. 1897.

Court of Civil Appeals of Texas, Houston (14th Dist.).

Nov. 22, 1978.

Thomas Osa Harris, Harris & Rea, Houston, for appellants.

W. Edwin Denman, Wommack, Denman & Hardin, Lake Jackson, for appellee.

CIRE, Justice.

This is an appeal from a summary judgment rendered in favor of Lake Jackson Bank ("the Bank") on a promissory note endorsed by appellants Robert F. and Christine Winston.

Appellants urge that it was error to render a summary judgment because there was evidence raising a fact issue as to whether the bank officers breached a fiduciary duty in failing to inform them that by endorsing the note in their individual capacities they were incurring individual liability under sections 3.401 and 3.403 of the Texas Business and Commerce Code.

The note in question was the last in a series of notes executed by R. F. Winston and Associates, Inc., a corporation formed in 1962 by appellant, Robert Winston. The note was secured by a security interest in an "Engineer Program" and was signed by Mr. Winston as agent for the corporation. On the reverse side, the note was endorsed by both Robert and Christine Winston individually at the request of the bank officer.

Appellee moved for a summary judgment, producing the note and an affidavit from the bank president as evidence. In opposing the motion appellants submitted their own affidavits and pleadings wherein they attempted to raise a fact issue with regard to a fiduciary relationship with the bank. This consisted primarily of the following representations: that there had been "extensive prior dealings" between appellants, individually and as a corporation, and the Bank; that Mr. Waltrip, the bank president, had been the financial advisor to both Mr. Winston and the corporation; and that there had been a series of prior corporate notes resulting in an "understanding" that the liability was to be corporate only.

It is true that a fiduciary relationship may arise from informal moral, social, domestic, or personal dealings as well as from technical relationships such as attorney-client. Mills v. Gray, 147 Tex. 33, 210 S.W.2d 985 (1948). We do not feel, however, that there is any evidence here to show such justifiable trust and confidence as would create a fiduciary relationship. Other than the general claims of "extensive prior dealings", appellants allege no specific facts which may be said to demonstrate a fiduciary relationship. As the Texas Supreme Court stated in Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex.Sup.1962):

We may assume that respondents did trust Mr. Thigpen; they have testified so time and time again, but mere subjective trust alone is not enough to transform arms-length dealing into a fiduciary relationship so as to avoid the statute of frauds. Businessmen generally do trust one another, and their dealings are frequently characterized by cordiality of the kind testified to here. If ...