384 S.W.3d 411
Tex. App.2012Background
- Hamon sued the Lagows for payment on promissory notes, breach of contract, unjust enrichment, and related relief; Hamon sought damages, declaratory relief, accounting, punitive damages, and fees.
- Brenda Lagow asserted usury as an affirmative defense and counterclaimed for usury and fees; she sought treble damages and forfeiture.
- Hamon moved for a plea in abatement under Texas Finance Code 305.006 to correct a usury violation alleged in Brenda’s counterclaim, and also moved for traditional and no-evidence summary judgment.
- The trial court granted the plea in abatement, and Hamon corrected the usury issue, offering to pay the obligor’s fees.
- After abatement, the court granted partial traditional and no-evidence summary judgments for Hamon on the usury issue, nonsuited remaining claims, and awarded Hamon damages; it also ordered Brenda to receive attorney’s fees offset by the correction of the usury counterclaim.
- The final judgment affirmed and included an offset of Brenda’s attorney’s fees against the damages she owed to Hamon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the plea in abatement under Texas Finance Code 305.006(d) was proper | Hamon argues timely abatement; correction of usury is permitted. | Lagow argues no timely abatement and contends continuance implied de facto abatement. | Yes; court approved abatement and correct remedy. |
| Whether summary judgments were proper on the usury counterclaim | Hamon argues correction bars usury claim under 305.006(d). | Lagow argues grounds for summary judgment were not fully challenged. | Yes; Hamon granted summary judgment; Lagow’s counterclaim dismissed on remaining grounds. |
| Whether Brenda Lagow was entitled to traditional summary judgment on her usury counterclaim | Hamon contends correction precludes usury claim. | Lagow asserts she should obtain traditional judgment on usury. | No; court denied traditional summary judgment on the usury counterclaim. |
| Whether attorney’s fees awarded for correction could be offset against damages | Hamon offered to pay obligor’s fees as part of correction. | Lagow argues offset improperly diminishes damages. | Yes; the fees awarded under 305.006(d) may be offset against damages. |
Key Cases Cited
- Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245 (Tex.1988) (abatement standards and timeliness considerations)
- Bair Chase Prop. Co., L.L.C. v. S & K Dev. Co., Inc., 260 S.W.3d 133 (Tex.App.-Austin 2008) (usury penalties; penal nature; strict construction; correction encouraged)
- Sotelo v. Interstate Fin. Corp., 224 S.W.3d 517 (Tex.App.-El Paso 2007) (penalty framework for usury; correction guidance)
- In re BACALA, 982 S.W.2d 371 (Tex.1998) (statutory interpretation and construction of civil statutes)
- Pennington v. Singleton, 606 S.W.2d 682 (Tex.1980) (DTPA vs. penal nature; statutory interpretation guidance)
- Home Sav. Ass’n of Dallas County v. Crow, 514 S.W.2d 160 (Tex.Civ.App.-Dallas 1974) (penalty framework and interpretive approach in usury context)