Opinion issued February 27, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00003-CV
____________
ELMER AND LINDA LANG, Appellants
V.
RMD PRINTING, INC. AND INSITE GROUP, Appellees
On Appeal from the 85th District Court
Brazos County, Texas
Trial Court Cause No. 52,928-85
MEMORANDUM OPINION
In this suit for declaratory judgment, appellants, Elmer and Linda Lang (the Langs), alleged that appellees, RMD Printing Inc. (RMD) and Insite Group, fraudulently transferred equipment and assets to prevent the Langs from satisfying a judgment against appellees. See Tex. Bus. & Com. Code Ann. § 24.001 (Vernon 2002). The trial court granted summary judgment to appellees, finding, as a matter of law, that the equipment transfer was "for value," that the Langs were "estopped and/or have waived any claims that the transfer was a 'fraudulent transfer,'" and the transfer, which occurred in the Spring of 1997, could not be a fraudulent transfer in regard to the Lang's rights established by a June 1999 judgment. In three points of error, the Langs contend that the trial court erred in granting summary judgment for appellees because there were questions of fact as to whether (1) RMD was denuded, (2) the transfer was not in satisfaction of an antecedent debt, and (3) any antecedent transfer was to an "insider." We affirm.
Facts and Procedural Background
On February 1, 1995, the Langs sold their printing business to RMD, and RMD executed a five-year lease agreement, a promissory note for $150,000 payable in monthly installments, and an agreement securing the note with a first lien on all of the business' personal property. Two years later, RMD decided to form a new limited partnership to be called "Insite Printing." RMD notified the Langs of its proposed limited partnership, and the Langs responded that the security agreement prevented RMD from encumbering or moving the printing equipment from the business' premises without their consent. The Langs refused to consent to the removal of the equipment, but stated in a January 30, 1997 letter that, "[we] will be pleased to have you prepay the balance owing on the note so that you can move forward to deal with the equipment in any fashion you choose." At the time, RMD responded that it was not in a position to prepay the note and suggested a possible subrogation agreement. The Langs responded with a letter on February 5, 1997, rejecting the subrogation proposal and once again inviting RMD to "[P]ay off the unpaid balance owing on the note. This will afford you the flexibility you desire in dealing with the collateral." Thereafter, RMD paid off the balance owing on the installment note, $100,000, and received a letter from the Lang's with a "UCC-3 which releases the lien of Lang Printing on the equipment." Subsequently, RMD finalized its limited partnership and transferred the equipment to Insite Printing.
On June 22, 1999, two years after the formation of Insite, the Langs obtained a final judgment that awarded them damages and attorney's fees for RMD's breach of the five-year lease. The Langs then brought this action, alleging that the previous transfer of equipment by RMD to Insite was a fraudulent transfer with the intent to prevent the Langs from satisfying their judgment.
Appellees moved for, and the trial court granted, summary judgment based on three grounds:
1. That the Defendants have judgment because as a matter of law, the equipment transfer/merger with THE INSITE GROUP was "for value" because it was made in exchange for the satisfaction of an antecedent debt and additional cash consideration;
2. That the Defendants have judgment that the Plaintiffs are estopped and/or have waived any claim that the transfer of equipment/merger with INSITE was a "fraudulent transfer" because of their representation to the Defendants that the prepayment of the installment Note with a balance of approximately $100,000.00 would free the Defendants to deal with the equipment in any way that they choose, and would afford the Defendants the "flexibility you desire in dealing with the collateral"; and
3. That the equipment transfer/merger in the spring of 1997 cannot be a fraudulent transfer in fraud of the Plaintiff's rights which were first established by a judgment in June of 1999.
The Langs argued that: (1) RMD transferred equipment to Insite to prevent the Langs from being able to satisfy their judgment, (2) Insite engaged in a civil conspiracy with RMD, and (3) the shareholders of RMD denuded it of its assets.Waiver
On appeal, the Langs contend that there is a question of fact related to their assertions that (1) appellees denuded the corporation, (2) there was no antecedent transfer for value, and (3) any transfer in satisfaction of an antecedent debt was to an insider and constituted a return of investment to the shareholders.
When there are multiple grounds for summary judgment, an appellant must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S.S., 858 S.W.3d 374, 380-81 (Tex. 1993). The party appealing from a summary judgment must show that each independent ground alleged in the motion for summary judgment is insufficient to support the summary judgment. Id. Where an appellant uses specific points of error to attack a summary judgment and fails to attack one of the possible grounds on which the judgment was granted, the summary judgment must be affirmed. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Richardson v. Johnson & Higgins of Tex., Inc., 905 S.W.2d 9, 11 (Tex. App.--Houston [1st Dist.] 1995, writ denied).
Here, the Langs have failed to address one of the three grounds upon which the trial court based summary judgment for appellees. The Langs challenge only the trial court's first and third grounds for summary judgment, contending there was "no antecedent transfer for value" and any possible antecedent debt transfer was to an "insider." The Langs assign no point of error, nor present any argument against the trial court's granting summary judgment to appellees on the trial court's second ground of estoppel and waiver.
In the absence of a general point of error complaining of summary judgment, there must be a specific point on each possible basis for summary judgment to avoid a waiver of those grounds. Parrish v. Brooks, 856 S.W.2d 522, 527 (Tex. App.--Texarkana 1993, writ denied). If summary judgment may have been granted, properly or improperly, on a ground not challenged, the summary judgment must be affirmed. Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.--Dallas 1992, writ denied). Here, the Langs did not state a general, Malooly point of error, but stated three specific points of error for appeal. See Malooly, 461 S.W.2d at 121. Because the Langs failed to challenge one of the grounds upon which summary judgment was granted by the trial court, they thereby waived any error.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Hedges, Jennings, and Alcala.