John Jones v. Aubrey J. Connally, Mattie R. Connally and Randy Coleman--Appeal from 277th District Court of Williamson County

JONES V. CONNALLY IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-437-CV
JOHN JONES,
APPELLANT
vs.
AUBREY J. CONNALLY, MATTIE R. CONNALLY AND RANDY COLEMAN,

APPELLEES

 
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 88-533-C, HONORABLE JAMES C. ONION, JUDGE PRESIDING

Aubrey J. Connally, Mattie R. Connally, and Randy Coleman, appellees, brought suit against John Jones, appellant, seeking a judgment against Jones for the debt of a partnership of which Jones was a partner; appellees alleged that they had already obtained a judgment against the partnership for the debt. The trial court rendered summary judgment against Jones. On appeal, Jones argues that the evidence was insufficient to support summary judgment. We agree and will reverse the trial court's judgment and remand the cause.

 
BACKGROUND

Jones does not dispute that he was a partner in the Oak Bluff Joint Venture ("Oak Bluff"). In their Second Amended Original Petition, appellees alleged the following:

 

On or about January 4, 1988, in the Honorable 26th Judicial Court of Williamson County, Texas, in Cause No. 86-164-C, Aubrey J. Connally and Mattie R. Connally recovered a Judgment against Oak Bluff Joint Venture for the sum of $106,782.09 plus attorneys' fees in the amount of $12,465.00 and court costs of $910.20 with post judgment interest at the lawful rate, and Randy Coleman recovered a judgment against Oak Bluff Joint Venture for the sum of $30,017.85 plus attorneys' fees in the amount of $8,190.00. On various occasions, the plaintiffs have attempted to collect on this Judgment. However, as of August 3, 1988, the plaintiffs have been unable to recover any of this amount from Oak Bluff Joint Venture.

 

As a result of the aforementioned Judgment, the Oak Bluff Joint Venture has become indebted to Aubrey and Mattie Connally and to Randy Coleman.

 

As [a partner] in the Oak Bluff Joint Venture, under Tex. Rev. Civ. Stat. art. 6132(b) section 15, [Jones] is jointly and severally liable for all of the obligations and debts of Oak Bluff Joint Venture. Such obligations and debts include the Judgment.

 

Based on such pleading, the appellees filed a motion for summary judgment to establish Jones's individual liability for the prior judgment against Oak Bluff, which the trial court granted.

 
STANDARD OF REVIEW

The standards for reviewing a summary judgment are well established:

 

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

 

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

 

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

 

Nixon v. Mr. Property Mgt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

 
DISCUSSION

Article 6132b of the Revised Civil Statutes provides that "[a]ll partners are liable jointly and severally for all debts and obligations of the partnership . . . ." Tex. Rev. Civ. Stat. Ann. art 6132b, 15 (1970). On the basis of this statute, appellees argue that, in order to obtain judgment against Jones individually, they need only establish: (1) the existence of a debt or obligation on the part of Oak Bluff; and (2) Jones's status as a partner in that partnership. However, even if we assume that the appellees have accurately stated their burden, we must reverse the summary judgment, for the following reasons.

In support of their motion for summary judgment, appellees did not file any supporting affidavits, did not file a certified or sworn copy of the prior judgment against Oak Bluff, and did not include any authenticated portions of the file from Cause No. 86-164-C, the cause in which the prior judgment was rendered against Oak Bluff. Further, even if it would have been proper for the trial court to take judicial notice of the file in Cause No. 86-164-C, there is no indication in the record that it did so. In sum, appellees provided essentially no evidence in support of their motion for summary judgment.

Although Jones concedes the existence of Oak Bluff and his own partnership status therein, the record contains no summary-judgment evidence of the existence of a debt or obligation on the part of Oak Bluff. An uncertified and unsworn copy of a judgment against Oak Bluff is attached as an exhibit to another pleading in the record, and Jones attached a copy of such a judgment to his appellate brief filed in this Court. Even if these documents could somehow be considered as summary-judgment evidence, however, the record contains no evidence that the judgment was still unsatisfied at the time the summary judgment was rendered. Accordingly, the record does not contain conclusive evidence that the prior judgment against Oak Bluff constituted an existing debt or obligation of that partnership. Therefore, the record necessarily fails to show conclusively how much, if any, Jones owes appellees as a result of the prior judgment against Oak Bluff.

Citing Rules 94 and 95 of the Texas Rules of Civil Procedure, appellees argue that Jones's failure to plead the affirmative defense of "payment" obviated the need for appellees to produce proof that the judgment was still due and owing. We disagree. In the analogous case of a suit on a promissory note, it is well settled that the plaintiff must, even in the face of a mere general denial, prove: (1) the note in question; (2) that the defendant signed the note; (3) that the plaintiff is the legal owner and holder of the note; and (4) that a certain balance is due on the note. See Perkins v. Crittenden, 462 S.W.2d 565, 567 (Tex. 1970) (adopting Chief Justice Calvert's dissent in Southwestern Fire & Casualty Co. v. Larue, 367 S.W.2d 162, 165-66 (Tex. 1963)); Stiles v. Resolution Trust Corp., No. 05-91-00894-CV (Tex. App.Dallas, April 22, 1992, n.w.h.) (not yet published); Rea v. Sunbelt Savings, 822 S.W.2d 370, 372 (Tex. App. 1992, no writ); Resolution Trust Corp. v. Thurlow, 820 S.W.2d 51, 52 (Tex. App. 1991, no writ); Cockrell v. Republic Mortgage Ins. Co., 817 S.W.2d 106, 111 (Tex. App. 1991, no writ); Clark v. Dedina, 658 S.W.2d 293, 295 (Tex. App. 1983, writ dism'd); Fikes & Assoc. v. Evans, 610 S.W.2d 245, 246 (Tex. Civ. App. 1980, no writ); Johnson v. Bond, 540 S.W.2d 516, 518 (Tex. Civ. App. 1976, writ ref'd n.r.e.); Alexander v. Houston Oil Field Material Co., 386 S.W.2d 540, 543 (Tex. Civ. App. 1965, writ ref'd n.r.e.). We see no reason to hold a plaintiff in the present circumstances, suing an individual partner on a prior judgment taken against the partnership, to a lesser standard.

Finally, we note that the appellees alleged that the judgment against Oak Bluff remained unsatisfied and therefore was an existing debt or obligation of the joint venture. However, it is equally well established that pleadings do not constitute summary-judgment proof. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Hidalgo v. Surety Savings & Loan Ass'n, 462 S.W.2d 540, 543 (Tex. 1971). We sustain Jones's first point of error.

 
CONCLUSION

Based on our foregoing discussion, we conclude that the appellees failed to present sufficient evidence to establish Jones's liability as a matter of law. Because we sustain Jones's first point of error, we need not address his remaining points. We reverse the trial court's judgment and remand the cause for further proceedings.

 

J. Woodfin Jones, Justice

[Before Justices Powers, Jones and Kidd; Justice Powers not participating]

Reversed and Remanded

Filed: June 24, 1992

[Do Not Publish]