Summary
holding non-movant raised fact issue precluding summary judgment as to whether he had executed contract that was the basis for movant's claim against nonmovant
Summary of this case from Wasserberg v. 84 Lum. Co.Opinion
No. 10-06-00004-CV.
Opinion delivered and filed January 17, 2007.
Appealed from the 278th District Court, Leon County, Texas, Trial Court No. NOT-02-209A.
Reversed and remanded.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Antoni sued Olivieri on a sworn account for liquidated damages for breach of contract. See TEX. R. CIV. P. 185. The trial court rendered summary judgment in favor of Antoni. Olivieri appeals. We reverse.
In Olivieri's one issue, he contends that the trial court erred in granting Antoni's motion for summary judgment. In a traditional summary-judgment motion, "[t]he judgment sought shall be rendered forthwith if" the summary-judgment evidence "show[s] that . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. . . ." TEX. R. CIV. P. 166a(c); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Snellenberger v. Rodriguez, 760 S.W.2d 237, 239 (Tex. 1988); see also W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). "In reviewing a summary judgment, we consider the evidence in the light most favorable to the non-movant and resolve any doubt in the non-movant's favor." W. Invs. at 550; accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
Antoni attached to his motion a purported contract between Antoni and Olivieri. In Olivieri's response to Antoni's motion, Olivieri attached his affidavit, which stated, "I never executed the" contract "and any signature thereon purporting to be my signature is a forgery." (C.R. at 41.) Olivieri argues that his affidavit raised a fact issue that prevented summary judgment on the contract. Antoni argues that Olivieri's affidavit constituted a self-serving affidavit of an interested witness and thus could not establish facts (citing TEX. R. CIV. P. 166a(c); McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003)). Antoni points out that the purported contract was notarized by the same notary public who notarized an earlier contract between the parties. "[T]he testimony of an interested witness, such as a party to the suit," may, however, "raise a fact issue to be determined by the jury." Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990) (per curiam) (quoting Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 191, 166 S.W.2d 904, 908 (1942)); accord Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989); cf. TEX. R. CIV. P. 166a(c), (f); New Times, Inc. v. Isaacks, 146 S.W.3d 144, 164 (Tex. 2004), cert. denied, 545 U.S. 1105 (2005); Tricho Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997) (per curiam); Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). Considering the summary-judgment evidence in the light most favorable to Olivieri, we hold that the evidence raises a genuine issue of material fact as to the execution of a contract. We sustain Olivieri's issue.
Having sustained Olivieri's issue, we reverse and remand.