Goode v. Mazy

923 S.W.2d 746, 1996 Tex. App. LEXIS 2079, 1996 WL 218828
CourtCourt of Appeals of Texas
DecidedApril 30, 1996
DocketNo. 12-95-00012-CV
StatusPublished

This text of 923 S.W.2d 746 (Goode v. Mazy) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Goode v. Mazy, 923 S.W.2d 746, 1996 Tex. App. LEXIS 2079, 1996 WL 218828 (Tex. Ct. App. 1996).

Opinion

HOLCOMB, Justice.

This is an appeal from a summary judgment. Sally A. Goode (“Goode”) filed a declaratory judgment action against Wayne Mazy d/b/a ETEX Auctioneers (“Mazy”) and John Bozeman (“Bozeman”) seeking a declaration that she was the owner and entitled to possession of certain antiques and other personal property (the “inventory”). The trial court rendered summary judgment in favor of Mazy and severed Goode’s claim against Bozeman. In her sole point of error, Goode claims that the court erred in granting summary judgment. We will reverse and remand to the trial court for further proceedings.

[747]*747Goode operated an antique store in Athens, Texas. In May of 1998, Goode contacted Bozeman, who operated a similar store in Crockett, Texas, and agreed to purchase all of the inventory from his store. A dispute between Goode and Bozeman arose as to the nature of their agreement. According to Goode, she paid Bozeman $15,000 and agreed that she would pay the balance due and would pick up the property when he furnished invoices to her documenting his actual cost. According to Bozeman, Goode agreed to pay him a total of $38,000 without reference to his actual cost. The dispute as to the balance due, or the manner in which the balance was to be paid, continued between the parties for several months.

After consulting an attorney, Bozeman claimed that he placed a lien on the inventory for storage fees and repair work that he had done. In August of 1993, Bozeman sent a certified letter to Goode giving notice that he would foreclose his lien and would put the inventory up for sale if she did not complete the transaction. Receiving no response to his letter, Bozeman purported to foreclose his lien.

In November or December of 1993, Mazy, an auctioneer and antique dealer, purchased the inventory from Bozeman for $16,500. Subsequently, Mazy advertised that the inventory would be sold at an auction in Tyler. When Goode discovered that Bozeman had sold the inventory to Mazy, she sued both Bozeman and Mazy.

In her First Amended Original Petition, Goode alleged that she was entitled to a declaration that she owned and was entitled to possession of the inventory. Goode set forth two theories supporting her ownership of the inventory. First, Goode alleged that she bought the inventory from Bozeman in May of 1993, and Bozeman failed to deliver the inventory. Therefore, Bozeman had no interest in the inventory to transfer to Mazy. Second, Goode claimed in the alternative that the sale of the inventory by Bozeman to Mazy was a fraudulent transfer, and therefore, voidable as to Goode, Bozeman’s creditor within the meaning of the fraudulent transfer act. If Goode successfully proved either theory of ownership, she would have been entitled to a judgment declaring her ownership of the inventory.

Mazy moved for summary judgment, alleging he was entitled to judgment as a matter of law because the uncontradicted summary judgment evidence established the absence of elements of Goode’s cause of action. In his motion, Mazy addressed both of Goode’s bases for ownership of the inventory. With regard to Goode’s theory that Bozeman sold her the inventory and therefore had no interest to sell Mazy, Mazy alleged that Bozeman foreclosed a warehouseman’s lien on the inventory and properly sold the inventory to Mazy. Addressing Goode’s claim that the sale from Bozeman to Mazy was voidable as a fraudulent transfer, Mazy asserted that the transfer was not voidable against him as a person who bought the inventory in good faith and for a reasonably equivalent value.

In her response to Mazy’s motion for summary judgment, Goode objected to Mazy’s failure to set forth specific grounds in his motion and objected that the affidavits attached to his motion were not probative because they were from interested witnesses and were not based upon personal knowledge. She also alleged that she was the owner of the property and supported her allegations with an affidavit. Mazy did not challenge the sufficiency, the form, or the probative value of Goode’s affidavit.

On September 26, 1994, the trial court rendered Partial Summary Judgment, stating that “Plaintiff, Sally A. Goode, take nothing from Defendant Wayne Mazy, and the agreed temporary injunction is hereby dissolved.” Thereafter, the court rendered an Order for Severance of Actions severing Goode’s claims against Bozeman from her claims against Mazy. Goode appeals from the court’s summary judgment order.

The standard for reviewing a summary judgment is well established. The purpose of the summary judgment rule is to provide a method of summarily ending a case that involves only a question of law or no genuine issue of fact. Cook v. Brundidge, Fountain, Elliott and Churchill, 533 S.W.2d 751, 759 (Tex.1976); Gaines v. Hamman, 358 S.W.2d 557, 563 (Tex.1962); Port Distrib. [748]*748Corp. v. Fritz Chem. Co., 775 S.W.2d 669, 670 (Tex.App.—Dallas 1989, writ dism’d by agr.). “This Court will affirm a summary judgment only if the record establishes that the movant has conclusively proved, as a matter of law, all the essential elements of its cause of action or defense.” First USA Management, Inc. v. Esmond, 911 S.W.2d 100, 103 (Tex.App.—Dallas 1995, n.w.h.). “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.” Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301-02 (Tex.1990). In deciding whether a disputed material fact issue exists, we take the evidence favorable to the non-movant as true, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in favor of the non-movant. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App.-Dallas 1992, writ denied).

To be entitled to a summary judgment, a defendant is required to negate at least one essential element of each pleaded cause of action or otherwise show that the plaintiff could not succeed on any theory pleaded. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975); see also Ervin v. James, 874 S.W.2d 713, 715 (Tex.App.—Houston [14th Dist.] 1994, writ denied). The movant must establish that it is entitled to summary judgment on the issues expressly presented to the trial court; therefore, the court cannot grant a summary judg ment on a cause of action not specifically addressed in the motion. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex.1983).

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Related

City of Houston v. Clear Creek Basin Authority
589 S.W.2d 671 (Texas Supreme Court, 1979)
Acker v. Texas Water Commission
790 S.W.2d 299 (Texas Supreme Court, 1990)
McCrea v. Cubilla Condominium Corp. N.V.
685 S.W.2d 755 (Court of Appeals of Texas, 1985)
First USA Management, Inc. v. Esmond
911 S.W.2d 100 (Court of Appeals of Texas, 1995)
Hoover v. Gregory
835 S.W.2d 668 (Court of Appeals of Texas, 1992)
Rosas v. Buddies Food Store
518 S.W.2d 534 (Texas Supreme Court, 1975)
Nixon v. Mr. Property Management Co.
690 S.W.2d 546 (Texas Supreme Court, 1985)
Chessher v. Southwestern Bell Telephone Co.
658 S.W.2d 563 (Texas Supreme Court, 1983)
Gaines v. Hamman
358 S.W.2d 557 (Texas Supreme Court, 1962)
Ervin v. James
874 S.W.2d 713 (Court of Appeals of Texas, 1994)
Cook v. Brundidge, Fountain, Elliott & Churchill
533 S.W.2d 751 (Texas Supreme Court, 1976)
Cuellar v. City of San Antonio
821 S.W.2d 250 (Court of Appeals of Texas, 1991)
Port Distributing Corp. v. Fritz Chemical Co.
775 S.W.2d 669 (Court of Appeals of Texas, 1989)
Tilotta v. Goodall
752 S.W.2d 160 (Court of Appeals of Texas, 1988)

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Bluebook (online)
923 S.W.2d 746, 1996 Tex. App. LEXIS 2079, 1996 WL 218828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goode-v-mazy-texapp-1996.