Boyds of Texas, Inc. v. Stanley Spigel

Boyds of Texas, Inc. v. Spigel

IN THE

TENTH COURT OF APPEALS

No. 10-93-166-CV

     BOYDS OF TEXAS, INC.,

                                                                                              Appellant

     v.

     STANLEY SPIGEL,

                                                                                              Appellee

From the 13th District Court

Navarro County, Texas

Trial Court # 204-90

O P I N I O N

      Boyds of Texas, Inc. sued Stanley Spigel on various theories arising from a landlord-tenant dispute. This is an appeal from a judgment in favor of Spigel. Boyds alleges that the trial court erred: (1) in sustaining Spigel's objection to Boyds' summary judgment affidavit of Norma Garrett and in granting Spigel's motion to strike; (2) in granting Spigel's summary-judgment assertion that Boyds' claims are barred by res judicata; and (3) in granting summary judgment for Spigel on a counterclaim.

      Boyds' first point states that the trial court erred in reading Rule 166a(c) to require service of a signed copy of a summary-judgment affidavit on opposing counsel. See Tex. R. Civ. P. 166a(c). We do not find Rule 166a(c) to be so restrictive. The original affidavit of Norma Garrett was signed and filed in a timely manner. Spigel does not complain that the unsigned copy of the affidavit served on him varied from the original in any manner except for the missing signature. The unsigned copy of the original affidavit served its purpose by notifying opposing counsel and should have been allowed. We sustain point one.

      Boyds' second and third points state that the trial court erred in granting summary judgment in favor of Spigel and against Boyds. In reviewing the summary judgment motions, we must determine whether Spigel, as movant, met his burden by establishing that no genuine issue of material fact exists and that he was entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). We must accept all evidence favorable to Boyds as true. See id. at 548-49. Every reasonable inference must be indulged in favor of Boyds and all doubts resolved in its favor. See id. at 549.

      Boyds sued Spigel for (1) conversion, (2) breach of lease, and (3) deceptive trade practices. Spigel contends that Boyds' claims for conversion and breach of lease have been previously decided in Spigel's favor and are barred by res judicata. Additionally, Spigel argues that any "unconscionable actions" under the DTPA have been previously determined to have been authorized by the lease agreement.

      To be entitled to summary judgment based on the defense of res judicata, Spigel must prove as a matter of law that there was an identity of parties, subject matter, and issues. See Continental Sav. Ass'n v. Collins, 814 S.W.2d 829, 832 (Tex. App.—Houston [14th Dist.] 1991, no writ). The term "subject matter" refers to the claims or controversy at issue in the earlier suit and not to the transaction out of which the suit arose. Id. (citing Griffin v. Holiday Inns of America, 496 S.W.2d 535, 537-38 (Tex. 1973)).

      Boyds claims that Spigel failed to enforce their lien or security interest in property which Spigel took possession of in October 1989. Boyds argues that this failure was "unconscionable conduct" and constituted both a conversion and a breach of the lease agreement. Spigel offers this court's decision of April 15, 1992, as evidence in support of its motion for summary judgment. However, in the prior decision, we held only that Spigel did not convert Boyds' property by changing the locks on Boyds' store. This remedy was authorized by the lease, which we held remained in effect. Spigel has failed to demonstrate as a matter of law that Boyds' subsequent claims for conversion and breach of lease are identical to the original claims.

      Additionally, Boyds claims that Spigel's unconscionable conduct violated the DTPA. Boyds claims that: (1) Spigel misrepresented that he would take no collection efforts and cooperate with Boyds regarding rent and (2) Spigel breached his duty to enforce his lien or security interest in a commercially reasonable manner. Spigel alleges that any unconscion-able actions were authorized by the lease and cannot be deemed unconscionable as a matter of law. Spigel's summary judgment evidence does not establish as a matter of law that no duty existed under the lease or that Spigel met his duty in disposing of Boyds' property. We sustain Boyds' second point.

      Boyds' final point asserts that Spigel was not entitled to summary judgment on his counterclaim for unpaid basic rental, percentage rental, maintenance charges, and attorney's fees. Boyds' response to Spigel's Motion for Summary Judgment contains the affidavit of Norma Garrett, which we have previously determined should have been allowed. Her affidavit states that maintenance charges and unpaid rentals were incorrectly calculated by Spigel. Additionally, Boyds offers its attorney's affidavit, which expresses his opinion that "$4,000 is not a reasonable fee." If different inferences can be drawn from the summary judgment evidence, a summary judgment should not be granted. Nixon, 690 S.W.2d at 549.

      Accepting all evidence in Boyds' favor as true and indulging every reasonable inference and resolving all doubts in its favor, we find that Spigel failed to prove that no genuine issue of material fact exists or that he is entitled to summary judgment on his counterclaim as a matter of law. See id. at 548. We sustain Boyds' third point.

      We reverse the summary judgment and remand the cause for trial.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Reversed and remanded

Opinion delivered and filed March 23, 1994

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