Orix Credit Alliance, Inc. v. Omnibank, N.A.

858 S.W.2d 586, 1993 WL 243891
CourtCourt of Appeals of Texas
DecidedJuly 8, 1993
DocketB14-92-01271-CV
StatusPublished
Cited by19 cases

This text of 858 S.W.2d 586 (Orix Credit Alliance, Inc. v. Omnibank, N.A.) 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
Orix Credit Alliance, Inc. v. Omnibank, N.A., 858 S.W.2d 586, 1993 WL 243891 (Tex. Ct. App. 1993).

Opinions

OPINION

SEARS, Justice.

On October 6,1992, the trial court signed a judgment granting the motion for summary judgment filed by Omnibank, N.A. (Omnibank). Orix Credit Alliance, Inc. (Orix) brings this appeal contending that the trial court erred in granting Omni-bank’s motion and denying Orix’s motion for summary judgment. We affirm.

This case concerns a dispute between two creditors of W.T. Stephens. Both Om-nibank and Orix contend that they hold superior security interests in funds payable to Stephens under an agreement between Stephens and BFI Special Services, Inc. (BFI).

On March 4, 1988, Stephens executed a promissory note to Orix in which he promised to pay Orix approximately $202,140. On the same date, Stephens executed a written security agreement in which he [588]*588granted Orix a security interest in three specific pieces of equipment and:

all other goods, chattels, machinery, equipment, inventory, accounts, chattel paper, notes receivable, accounts receivable, furniture, fixtures and property of every kind and nature, wherever located, now or hereafter belonging to Mortgagor.

On March 14, 1988, Orix filed a copy of the security agreement with the Office of the Texas Secretary of State as a financing statement.

Stephens made some payments to Orix under the March 4th note, but never paid it off. On March 27,1991, Stephens executed a second note to Orix for approximately $344,452.73, plus interest. This second note was to evidence all remaining indebtedness owed by Stephens to Orix. The note was to be paid in installments until the entire amount became due on July 1, 1991. Stephens also failed to pay the second note when it became due and he remained indebted to Orix.

During the same time period that Stephens was executing the notes to Orix, he and his partner, Cody Birdwell, sold all of the stock of their company, W.T. Stephens Contracting, Inc., to BFI, a subsidiary of Browning Ferris Industries, Inc. Stephens was the principal officer and stockholder in W.T. Stephens Contracting, Inc., a company in the asbestos abatement business. After the stock was sold on August 18, 1988, Stephens and Birdwell entered into a separate written covenant with BFI, in which Stephens and Birdwell agreed not to compete with BFI in the asbestos abatement business for five years. In consideration for this covenant not to compete, BFI agreed to pay the former owners an amount equal to one-half of one percent of the gross revenues of all national and international asbestos abatement operations of BFI and its affiliates. Stephens and Bird-well would split this amount equally. BFI promised to pay this percentage to Stephens and Birdwell for five years with each payment made annually on or before October 31st.

On November 30, 1989, Stephens borrowed some money from Birdwell. As security for the loan, Stephens granted Bird-well a security interest in his half of the proceeds payable under the BFI agreement. A financing statement evidencing this agreement was filed with the Secretary of State on December 18, 1989. The statement specifically described the percentage payable to Stephens under the BFI agreement.

On February 28, 1990, Stephens borrowed $300,000 from Omnibank. As security, Stephens granted Omnibank a security interest in those same proceeds he was to receive from the BFI non-competition agreement. The BFI agreement was specifically identified and covered by the security agreement and financing statement filed by Omnibank. So that Omnibank would be able to perfect its security interest, Stephens asked Birdwell to assign Om-nibank his security interest in that same collateral. The next month, Birdwell assigned his security interest in the BFI agreement to Omnibank. A “UCC-3 Partial Assignment” evidencing this assignment, signed by Stephens and Cody, was recorded in the Office of the Secretary of State on March 9, 1990. The assignment was also evidence by a “UCC-1 Financing Statement” executed by Stephens and filed with the Secretary of State on March 19, 1990. Both of these documents described in detail the percentage payable to Stephens under the BFI agreement.

Ultimately, Stephens filed a petition for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Southern District of Texas. Stephens is insolvent at this time. Both Orix and Omnibank claimed a superi- or security interest in the percentage payable to Stephens under the BFI agreement. On March 5, 1992, Orix filed its original petition in Harris County asking the trial court to declare its security interest superi- or. Orix also claimed that Omnibank had converted the funds under the BFI agreement because some of the funds from the covenant not to compete had already been paid to Omnibank. Both parties ultimately filed motions for summary judgment. The trial court determined that Omnibank was [589]*589entitled to judgment as a matter of law. Orix appeals that decision.

A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits. When reviewing the grant or denial of a summary judgment, the appellate court does not view the evidence in the light most favorable to the judgment of the trial court. At either the trial or appellate level, the movant must prove it was entitled to judgment as a ''matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Tex. R.Civ.P. 166a. Generally, if the movant fails to prove entitlement to a judgment as a matter of law, the appellate court must remand the case for a trial on the merits. Id. However, when both parties move for summary judgment and one such motion is granted and the other is denied, the appellate court should determine all questions presented, and may reverse the trial court’s judgment and render such judgment as the trial court should have rendered. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988); Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (Tex.1958).

The standards for reviewing a summary judgment have been set by the Texas Supreme Court:

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, 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 doubt resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984).

In its first point of error, Orix claims the trial court erred in granting Omnibank’s motion for summary judgment and denying Orix’s motion for summary judgment because the copy of Orix’s security agreement satisfied the requirement of a financing statement under Tex.Bus. & Com.Code Ann. § 9.402(a) (Tex. UCC) (Vernon 1991).

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Orix Credit Alliance, Inc. v. Omnibank, N.A.
858 S.W.2d 586 (Court of Appeals of Texas, 1993)

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858 S.W.2d 586, 1993 WL 243891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orix-credit-alliance-inc-v-omnibank-na-texapp-1993.