FIRST CITY BANK, EAST DALLAS, FROM A DISTRICT COURT APPELLANT, v. GRAND BANK, N.A., APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01215-CV
FIRST CITY BANK, EAST DALLAS, FROM A DISTRICT COURT
 
        APPELLANT,
 
v.
 
GRAND BANK, N.A.,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, THOMAS, AND BURNETT
OPINION BY JUSTICE BURNETT
JUNE 12, 1989
        First City Bank, East Dallas, appeals an adverse summary judgment granted in favor of Grand Bank, N.A., now Comerica Bank - Texas, in which the trial court determined priority to funds owed initially by Jenkens & Gilchrist to Wilson A. Hanna. In seven points of error, First City asserts that because First City already had an unconditional assignment of rights from Hanna, Hanna had no interest to which Comerica's security interest could attach and thus First City's exercise of dominion over the money insures them a superior right to the funds. First City also contends that neither Hanna nor Comerica intended that the funds at issue be covered by their security agreement because the monies owed are not an "account" or "chattel paper" as referred to in the security agreement. As their final point of error, First City asserts that the trial court improperly granted Comerica's motion for summary judgment because there is a fact question as to whether First City owned the chose in action. We agree with First City's assertions and for the reason's discussed herein, reverse the judgment of the trial court and render judgment in favor of First City.
        Upon retirement from the law firm of Jenkens & Gilchrist, Hanna became entitled to receive $255,663 as compensation for his share of the partnership. The money was to be paid in 48 monthly installments of $5,326. On June 30, 1986, Hanna assigned the payments to First City in exchange for a loan. Jenkens & Gilchrist consented to the assignment in writing and made all payments to First City until August 1987, when the firm began making payments into the registry of the court.
        Approximately five months after the loan from First City, Hanna obtained a loan from Comerica. As security for the loan, Hanna granted Comerica a security interest in "all accounts, chattel paper now and hereafter acquired by [Hanna]." Comerica filed a financing statement to perfect its security interest in that collateral. Hanna subsequently defaulted on the loan and Comerica obtained a judgment against him on September 25, 1987. During post judgment discovery, Comerica became aware of the retirement contract between Jenkens & Gilchrist and Hanna. Comerica contacted the firm and demanded that the payments be made to Comerica in satisfaction of the judgment against Hanna. Jenkens & Gilchrist intervened in the collection suit between Comerica and Hanna, joined First City, and began making payments into the district court registry. This action was severed and the trial court granted summary judgment in favor of Comerica.
        We will initially consider First City's fifth and sixth points of error. In its fifth and sixth points, First City contends that the trial court improperly granted Comerica's motion for summary judgment and denied their motion for summary judgment because the security agreement and financing statement executed by Hanna in favor of Comerica did not cover the Jenkens & Gilchrist payments. Specifically, First City asserts that the payments due Hanna do not constitute accounts or chattel paper as defined by the uniform commercial code. Thus, First City insists that Comerica has no lien on the payments.
        In Texas, chattel paper is defined as "a writing or writings which evidence both a monetary obligation and a security interest in a lease of specific goods . . . ." TEX. BUS. & COMM. CODE ANN. § 9.105(a)(2) (Tex. U.C.C.) (Vernon Supp. 1989). The facts establish that this definition does not apply to the payments at issue in this case. While there is a monetary obligation from Jenkens & Gilchrist to First City from Hanna, there is no security interest in or lease of any kind of specific goods.
        Likewise, an account is defined as "any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper, whether or not it has been earned by performance." TEX. BUS. & COMM. CODE ANN. § 9.106 (Tex. U.C.C.) (Vernon Supp. 1989). The official comment to section 9.106 explains that an account is also properly defined as an "ordinary commercial account receivable."
        In the instant case, the summary judgment evidence reflects that the payments were not related to any services rendered or a sale or lease of goods. Thus, the payments were not covered by the security agreement or financing statement which were executed in connection with Hanna's loan from Comerica. Accordingly, Comerica has no interest in the payments. We sustain First City's fifth and sixth points of error.
        Because First City's fifth and sixth points of error dispose of this appeal, we need not consider the first thru fourth and seventh points. We reverse the judgment of the trial court and render judgment in favor of First City Bank.
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01215.F
 
 
File Date[01-02-89]
File Name[881215]