University of Texas Health v. Big Train Caret of El Campo Inc.

739 S.W.2d 792 (1987)

UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Petitioner, v. BIG TRAIN CARPET OF EL CAMPO, INC., Respondent.

No. C-6437.

Supreme Court of Texas.

October 7, 1987.

Rehearing Denied December 16, 1987.

Jim Mattox, Atty. Gen., Carey E. Smith and Patrick J. Feeney, Ass't Atty. Gen., Austin, for petitioner.

Randall D. Wilkins and Elton Brownshadel, Nelson & Brownshadel, Houston, for respondent.

PER CURIAM.

This is a summary judgment case. Big Train Carpet of El Campo sued the University of Texas Health Science Center for payment under its carpeting contract. The University counterclaimed for usury based on two late charges of 1.5 percent per month. As a usury defense, Big Train claimed that the charges were added as the result of a bona fide error by its president. Both parties moved for summary judgment. The trial court granted summary judgment for Big Train, and, in an unpublished opinion, the court of appeals affirmed. We reverse and remand only as to the University's usury counterclaim.

The court of appeals, after indulging all inferences and resolving all doubts in favor of Big Train, concluded that Big Train had established its usury defense. Big Train, however, was the successful movant. The University, as the nonmovant, was entitled to have all reasonable inferences made and all doubts resolved in its favor. El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987). Under the correct standard of review, there is an issue of fact precluding summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

Because the court of appeals opinion conflicts with Clear Creek and El Chico, we grant the University's application, and without hearing oral argument, a majority of the court reverses the court of appeals judgment as to the University's usury counterclaim, and remands that claim for trial. TEX.R.APP.P. 133(b).