Sonexay Kongxaysy v. The State of Texas--Appeal from 297th District Court of Tarrant County

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Laws-info.com » Cases » Texas » 2nd District Court of Appeals » 2003 » Sonexay Kongxaysy v. The State of Texas--Appeal from 297th District Court of Tarrant County

State: Texas

Court: Texas Northern District Court

Docket No: 02-03-00427-CR

Case Date: 11/20/2003

Plaintiff: JULIE ANNE FLOWERS A/K/A JULIE ANNE RICHARDSON

Defendant: THE STATE OF TEXAS--Appeal from 105th District Court of Kleberg County

Preview:Taylor Made Hose, Inc. v. Lynne Wilkerson--Appeal from County Court at Law No 5 of Bexar County
MAJORITY | MAJORITY No. 04-97-01025-CV TAYLOR-MADE HOSE, INC., Appellant v. Lynne WILKERSON, Appellee From the County Court at Law No. 5, Bexar County, Texas Trial Court No. 237,546 Honorable Timothy F. Johnson, Judge Presiding ON MOTION FOR RECONSIDERATION EN BANC Opinion by: Sarah B. Duncan, Justice Dissenting opinion by: Alma L. L pez, Justice, joined by Phil Hardberger, Chief Justice Dissenting without opinion by: Catherine Stone, Justice Sitting: Phil Hardberger, Chief Justice Tom Rickhoff, Justice Alma L. L pez, Justice Catherine Stone, Justice Paul W. Green, Justice Sarah B. Duncan, Justice Karen Angelini, Justice Delivered and Filed: April 12, 2000 REVERSED AND REMANDED Taylor-Made Hose, Inc. appeals the trial court's summary judgment against it in its collection suit against Lynne Wilkerson, as guarantor for North American Transit, Inc. On original submission, the panel affirmed the trial court's judgment. However, a majority of the members of this court granted Taylor-Made Hose's motion for reconsideration en banc, and we now withdraw the panel opinions, reverse the trial court's judgment, and remand the cause for further

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proceedings consistent with this opinion. Factual and Procedural Background North American Transit, Inc. applied to Taylor-Made Hose, Inc. for a credit account. The form upon which the application was made is reproduced below in full: After North American Transit failed to pay its account and filed a bankruptcy proceeding, Taylor-Made Hose filed a sworn account suit against "Lynn Wilkerson, as Guarantor for, North American Transit, Inc." Taylor-Made Hose alleged that "at the special instance and request of Defendant [it] sold and delivered to Defendant as buyer, in the regular course of business, the goods, wares, and merchandise, and performed the services shown upon [the invoices attached as Exhibit A]," and "Defendant is indebted to [Taylor-Made Hose] in the total sum of $22,790.56, according to such systematic accounts contained in such Exhibit." Wilkerson answered, denying liability in the capacity in which she was sued. Wilkerson further denied executing a guaranty in her individual capacity and alleged "each and every item in the account is not just and true, and all just and lawful offsets, payments and credits have not been allowed." Wilkerson pled other defenses as well, including that the debt had been discharged in bankruptcy, failure of consideration, payment, mistake, material alteration of the contract, the absence of a contract, and ambiguity. Wilkerson supported her amended answer with her affidavit. Several months after answering, Wilkerson filed a motion for summary judgment pursuant to Rule 166a, Tex. R. Civ. P. In her motion, Wilkerson alleged Taylor-Made Hose had "no evidence that: (1) this agreement is indeed a guaranty; (2) that Lynne Wilkerson signed in her individual capacity; (3) that Lynne Wilkerson is liable individually for any of this debt; and (4) Taylor Made Hose, Inc. knew clearly that it was dealing with a corporation, not an individual." See Tex. R. Civ. P. 166a(i). Wilkerson also alleged there was no evidence of a contract enforceable against her individually because there was no writing signed by her in her individual capacity and, in any event, the debt had been discharged in North American Transit's bankruptcy. Wilkerson supported her motion with her affidavit, to which were attached copies of certain correspondence and the credit agreement, which Wilkerson stated "appear[ed] to be a true and correct copy of the credit application signed in my capacity as Vice-President of North American Transit, Inc." Taylor-Made Hose responded that the credit agreement itself established Wilkerson's liability. In its supporting affidavit, Taylor-Made Hose alleged it extended credit to North American Transit "based upon the personal guarantee of Lynne Wilkerson. If Ms. Wilkerson had not been willing to sign the personal guarantee then the company would not have been willing to extend the credit." Taylor-Made Hose supported its response with the affidavit of Don Taylor, President and CEO of Taylor-Made Hose, a copy of the credit application, a copy of its petition, together with the attached invoices, and a copy of Wilkerson's answers. After Wilkerson objected to Taylor-Made Hose's supporting proof, it filed an amended affidavit. Wilkerson objected to this affidavit as well, but there is no indication in the record the trial court ruled on any of her objections. Ultimately, the trial court granted Wilkerson's motion, without stating a ground for its ruling, and rendered a take-nothing judgment against Taylor-Made Hose. Standard and Scope of Review "After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more [specified] essential elements of a claim or defense on which the adverse party would have the burden of proof at trial." Tex. R. Civ. P. 166a(i). "The [trial] court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact." Id. On appeal, we review a summary judgment de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., Inc., 945

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S.W.2d 160, 162 (Tex. App.--San Antonio 1997, writ denied). Accordingly, we will uphold a traditional summary judgment only if the summary judgment record establishes the absence of a genuine issue of material fact, and the movant is entitled to summary judgment on a ground set forth in the motion. Id. And we will uphold a no-evidence summary judgment only if the summary judgment record reveals no evidence of the challenged element, i.e., "(a) a complete absence of evidence [as to the challenged element]; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove [the challenged element]; (c) the evidence offered to prove [the challenged element] is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the [challenged element]." Robert W. Calvert, "No Evidence"and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960). In deciding whether the summary judgment record raises a genuine issue of material fact, we view as true all evidence favorable to the respondent. Valores, 945 S.W.2d at 162.Discussion Taylor-Made Hose argues the credit application "unambiguously establishes Wilkerson to be a personal guarantor of North American's debt to Taylor-Made." We agree. A party's signature renders her individually liable for the debt of another as a matter of law "[i]f the instrument, on its face, is clearly that of the person signing it." Marx v. Luling Co-Op. Ass'n, 43 S.W. 596, 600 (Tex. Civ. App. 1897, writ ref'd).(1) This inquiry presents "a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered." Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). "If the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe [it] as a matter of law." Id. at 393. A contract is ambiguous only "when its meaning is uncertain and doubtful or it is reasonably susceptible to more than one meaning." Id. As stated in the credit application attached to her affidavit, Lynne Wilkerson "personally agree[d] to pay all invoices and cost of collection ... on any amount remaining unpaid after 90 days" on North American Transit's open account with Taylor-Made Hose. This agreement is not in any respect ambiguous. By agreeing to "personally ... pay" North American Transit's delinquent account, Wilkerson made herself personally liable for the corporation's debt. See Tex. Bus. & Com. Code Ann. 3.402(b) (Vernon Supp. 1998); Austin Hardwoods, Inc. v. Vanden Berghe, 917 S.W.2d 320, 323 (Tex. App.--El Paso 1995, writ denied); Eubank v. First Nat'l Bank of Bellville, 814 S.W.2d 130, 133-34 (Tex. App.--Corpus Christi 1991, no writ); American Petrofina Co. v. Bryan, 519 S.W.2d 484, 486-87 (Tex. Civ. App.--El Paso 1975, no writ); Marx, 43 S.W. at 600; accord Owens v. William H. Banks Warehouses, Inc., 202 F.2d 689, 693 (5th Cir.) (applying Texas law), cert. denied, 346 U.S. 813 (1953). And Wilkerson would remain personally liable on the corporate debt even if the corporation's liability were discharged in bankruptcy. Austin Hardwoods, 917 S.W.2d at 324-25. The trial court thus erred in granting Wilkerson's motion for summary judgment. Conclusion Because the credit application attached to Wilkerson's affidavit establishes she is personally liable for North American Transit's debt to Taylor-Made Hose, and this liability is, as a matter of law, unaffected by North American Transit's discharge in bankruptcy, the trial court erred in granting Wilkerson's motion for summary judgment. However, because Taylor-Made Hose did not file a cross-motion, we are unable to render judgment in its favor. We therefore reverse the trial court's judgment and remand the cause for further proceedings consistent with this opinion. Sarah B. Duncan, Justice Publish 1. Although the application for a writ of error was refused in Marx, it is a pre-1927 decision and therefore not binding on this court. Texas Rules of Form 84 (9th ed. 1997).

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