L.C. Robbins v. Uvalco Supply, Inc.--Appeal from 38th Judicial District Court of Uvalde County

No. 04-00-00783-CV
L.C. ROBBINS,
Appellant
v.
UVALCO SUPPLY, INC.,
Appellee
From the 38th Judicial District Court, Uvalde County, Texas
Trial Court No. 99-05-21546-CV
Honorable Mickey R. Pennington, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 10, 2001

REVERSED AND REMANDED

L.C. Robbins appeals the trial court's summary judgment against him in Uvalco Supply, Inc.'s suit against him on a written guaranty. We reverse the trial court's judgment and remand the cause for further proceedings.

Factual and Procedural Background

Uvalco Supply, Inc. filed this suit against L.C. Robbins on the written guaranty agreement contained in paragraph 1 of an agreement by which Uvalco agreed to extend credit to Star Food Processing, Inc. Paragraph 1 of the agreement stated: "All credit accounts are due and payable in full at the office of SELLER in Uvalde, Uvalde County, Texas on the 10th of each month following the date of purchase and the undersigned hereby personally guarantees payment." The signature of L.C. Robbins is affixed to the agreement beside "BY:" and above "(Signature - Responsible Party)." The petition was supported by the affidavit of L. Carper Capt, the Uvalco employee with custody of the records pertaining to Star Food's account. According to Capt, the records attached to the petition are true and correct; all just and lawful offsets have been allowed; and these records established that the balance on Star Foods' account was $4982.41 as of May 12, 1988. Robbins filed a general denial and also pleaded that he was not liable in the capacity in which he was sued, he did not sign the agreement or authorize his signature to be affixed to the agreement, and he was not liable for Star Foods' account.

Uvalco moved for summary judgment, contending that, in answers to interrogatories, "[Robbins] has acknowledged that the agreement made the subject of this case ... was signature stamped by [Robbins'] Agent, and was delivered to [Uvalco] .... [Robbins] has also acknowledged that his Agent is authorized to apply his signature facsimile to documents." Uvalco also pleaded, in the alternative, that Robbins "can produce no competent summary judgment evidence negating his liability to [Uvalco] under the terms of said guarantee agreement."

Robbins responded, contending (1) Uvalco "has failed to submit to the Court proper and competent Summary Judgment proof in that [Uvalco] has failed to authenticate any discovery relied upon or submits [sic] any Affidavits separate and apart from its pleadings."; and (2) Uvalco "has for the purpose of Summary Judgment established genuine issues of material fact regarding the execution of the alleged guarantee agreement and the alleged indebtedness of [Robbins] to [Uvalco]." Robbins supported his response with his own affidavit, the affidavit of Gary F. Churak, and Uvalco's answers to Robbins' interrogatories and request for admissions. In Robbins' affidavit, he explained that a Star Foods employee, Dema Jurica, was instructed not to complete the Uvalco's form credit application and agreement for credit. Rather, Jurica was instructed to provide Uvalco with Star Foods' form credit application, which listed its trade account references and banking information. Star Food's form credit application also stated: "STAR FOOD PROCESSING, INC. DOES NOT GIVE PERSONAL GUARANTEES." Robbins signed the Star Food form in his capacity as president and CEO, and Jurica faxed it back to Uvalco. Mistakenly, however, Jurica also placed Robbins' signature stamp on Uvalco's form and faxed it back to Uvalco.

After Robbins filed his response, but before the summary judgment hearing, his answers to interrogatories and request for admissions were filed, presumably by Uvalco. Also filed was Uvalco's memorandum in support of its motion for summary judgment. Attached to this memorandum were a copy of Uvalco's petition, Capt's affidavit, the records covering the account, the demand to Robbins for payment, and Robbins' affidavit.

The trial court granted Uvalco's motion, rendering judgment against Robbins for $4339.89, pre- and post judgment interest, and attorney's fees. Robbins appeals, contending the trial court erred in granting Uvalco's motion for summary judgment under Rule 166a(c) because (1) Uvalco failed to present competent summary judgment evidence in support of its motion; and (2) Robbins presented sufficient controverting evidence to raise a material issue of fact. Robbins also contends the trial court erred in granting Uvalco's motion under Rule 166a(i) because (1) Uvalco failed to establish it was entitled to judgment as a matter of law; and (2) Robbins presented sufficient controverting evidence to raise a material issue of fact.

Standard of Review

We review the trial court's order de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.-San Antonio 1997, writ denied). Therefore, we will affirm a summary judgment under Rule 166a(c) only if the summary judgment record establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. Id.; Tex. R. Civ. P. 166a(c). In deciding whether a disputed fact issue precludes summary judgment, we take evidence favorable to the respondent as true and indulge every reasonable inference and resolve all doubts in his favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Similarly, we will affirm a no-evidence summary judgment under Rule 166a(i) only if the respondent fails to produce summary judgment evidence raising a genuine issue of material fact on each challenged element. See Tex. R. Civ. P. 166a(i). A genuine issue of material fact is raised when the respondent produces "more than a scintilla of probative evidence" on the challenged element. Benitz v. Gould Group, 27 S.W.3d 109, 113 (Tex. App.-San Antonio 2000, no pet.). More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119 (1998) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)).

Discussion

In his third point of error, Robbins contends the trial court erred in granting Uvalco's no-evidence motion for summary judgment because Robbins presented sufficient competent summary judgment evidence to raise a genuine issue of material fact as to whether his signature was binding. We agree.

To recover on the guaranty, Uvalco was required to show, among other things, that Robbins signed the guaranty. First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425, 427 (Tex. App.-San Antonio 1995, writ denied). "[A] signature made by a rubber stamp, typewriter, or printing, or one made during the absence of the grantor and without his authority, or which may have been forged, becomes valid and binding when adopted ...." Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215, 217 (Tex. 1923); see also In re Barber, 982 S.W.2d 364, 367 (Tex. 1998) (holding that trial judge "signed" order when he directed one under his immediate authority to affix his facsimile signature to order).

Here, Robbins' affidavit establishes he did not authorize his agent to affix his signature to Uvalco's credit application; nor did he later adopt it. Accordingly, the trial court erred in granting Uvalco's motion. We therefore reverse the trial court's judgment and remand the cause for further proceedings.

Sarah B. Duncan, Justice

Do not publish