Grupo Madero, S.A., Inc. v. Don W. Cavness--Appeal from 345th District Court of Travis County

Grupo Madero, S.A., Inc. v. Cavness IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-128-CV
GRUPO MADERO, S.A., INC.,

APPELLANT

 
vs.
DON W. CAVNESS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT,
NO. 370,861-A, HONORABLE JERRY DELLANA, JUDGE

PER CURIAM

The issue in this summary-judgment appeal is whether a genuine issue of material fact exists such that the rendition of summary judgment was error. We hold that a genuine issue of material fact does exist and, therefore, will reverse the judgment of the district court and remand the cause for trial.

Appellee Don W. Cavness sued Jesus Ferral and appellant Grupo Madero, S.A., Inc. in cause number 370,861 on a $35,000.00 note secured by an airplane that allegedly belonged to Grupo Madero. Cavness also filed an application for a writ of sequestration to sequester the airplane, which was granted. Cavness obtained an interlocutory default judgment against Ferral, filed a motion for summary judgment against Grupo Madero, and successfully moved for a severance of his cause against Ferral and Grupo Madero. The trial court granted summary judgment against Grupo Madero in cause number 370,861-A, and Grupo Madero appeals.

In its first point of error, Grupo Madero contends that the trial erred in granting summary judgment because a fact issue exists regarding whether the $35,000.00 note and security agreement were executed by Grupo Madero or with its authority. We agree.

The standards for reviewing a motion for summary judgment are well established: (1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that he 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 nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Applying the test to the instant appeal, the summary-judgment evidence does not show that Grupo Madero signed the note and security agreement. The only summary-judgment evidence connecting Grupo Madero with the note and security agreement is the affidavit of Jesus Ferral, which indicates that Ferral was an officer and director of Grupo Madero with authority to pledge the aircraft. Without judging the competency of Cavness's summary-judgment evidence, we note that Grupo Madero introduced summary-judgment evidence in the form of an affidavit that: (1) Ferral was removed as an officer and director of Grupo Madero before Ferral signed the note and security agreement; and (2) Ferral had no authority to act on behalf of Grupo Madero. We conclude, therefore, that a disputed material fact issue existed regarding Ferral's authority to act as an agent for Grupo Madero and that rendition of summary judgment was improper. Point of error one is sustained.

Because of our disposition of point of error one, we do not reach point of error two.

The judgment of the district court is reversed and the cause is remanded for trial.

 

[Before Justices Powers, Jones and B. A. Smith; Justice B. A. Smith not participating]

Reversed and Remanded

Filed: November 20, 1991

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