Jose Chavez v. Juan Francisco Martinez
03-14-00470-CV
| Tex. App. | Jan 12, 2015Background
- Martinez loaned Design Workz, LLC $100,000 under a written "Real Estate Lien Note" dated Oct. 1, 2009; the Note attached to Martinez’s summary-judgment proof includes a personal guarantee signed by Jose G. Chavez.
- The Note recites a 40% fixed interest rate but also provides that interest "shall not exceed the maximum amount of nonusurious interest" and contains a 10% attorney-fee provision.
- Martinez moved for traditional summary judgment; Chavez (pro se) requested and received a continuance but did not timely respond to the motion.
- The trial court entered final judgment awarding principal, pre- and post-judgment interest (pre-judgment amount calculated; post-judgment capped at 18%), and $33,333.33 in trial attorney’s fees.
- Chavez filed a post-judgment motion for new trial attaching two affidavits (his and Dan Honig’s) produced after the summary-judgment ruling disputing Chavez’s signature on the guarantee and asserting partial payment via stock; the motion/new evidence was not shown to have been filed with leave and the motion for new trial was denied.
Issues
| Issue | Plaintiff's Argument (Martinez) | Defendant's Argument (Chavez) | Held |
|---|---|---|---|
| 1. Whether a fact issue exists that Chavez did not sign the personal guarantee | Note attached to Martinez’s summary-judgment proof, plus Martinez affidavit, establish guarantee; no timely contrary evidence in summary-judgment record | Late affidavits (Chavez, Honig) create fact question that Chavez didn’t sign guarantee | Overruled for Chavez: late-filed affidavits were untimely and not shown to have been admitted, so they cannot defeat summary judgment |
| 2. Whether a fact issue exists as to amount owed (partial payment by stock) | No record evidence of any stock transfer or credit; summary-judgment proof shows unpaid principal | Asserts Martinez received 3,500,000 shares in CLX Medical as partial payment | Overruled for Chavez: appellant cites no record proof; unsupported factual assertions waived |
| 3. Proper interest rate under the Note | Martinez’s affidavit states 18% was agreed and Note limits interest to nonusurious maximum once in collection; court applied 18% post-judgment | Chavez points to Note’s stated 40% fixed rate and contends inconsistency creates fact issue | Overruled for Chavez: contract language limits interest to maximum lawful rate; 18% is proper given nonusurious cap when note was in collection |
| 4. Whether $33,333.33 trial attorney’s fee is supported | Fee provision in Note (10%) and attorney affidavit stating $33,333.33 as reasonable; Chapter 38 §38.004 allows court to take judicial notice of usual/customary fees; contingency method used | Chavez contends affidavit lacks lodestar detail and that contingent-fee proof alone is insufficient (citing El Apple) | Overruled for Chavez: contingency-fee method was used, El Apple specificity (lodestar) not required for contingency proof; Chapter 38 judicial-notice and record suffice to support the award |
Key Cases Cited
- Amesisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507 (Tex. 2013) (summary-judgment burden and proof requirements)
- Enterprise Leasing Co. v. Barrios, 156 S.W.3d 547 (Tex. 2004) (de novo review of summary judgment; movant’s burden)
- El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) (standards for proving reasonable attorney’s fees; lodestar and contingency methods)
- Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507 (Tex. 1998) (contract principles govern agreed interest rates)
- Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996) (rules on late-filed summary-judgment evidence and necessity of leave)
- Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) (contingent-fee agreements: admissible but not alone sufficient to prove reasonableness of fees)
- Long v. Griffin, 442 S.W.3d 253 (Tex. 2014) (use and limits of contingency method in proving attorney’s fees)