*1 CONCLUSION judgment trial court

We affirm II, aggravated kidnapping, and we

on Count judgment of the trial court

reverse the I, assault of a child. aggravated sexual

Count punishment I for a new

We remand Count judgment reformed to

hearing, and order conviction for sexual assault of

reflect a

child. BANK, SAVINGS

BLUEBONNET al., Appellants,

et INC., COUNTRY, Appellee.

JONES

No. 09-94-127 CV. Texas, Appeals

Court of

Beaumont.

Nov. 1995.

Rehearing Overruled Dec.

ciation, Assignee Savings of the Federal & (FSLIC), Corporation Loan Insurance Re- Savings ceiver for Home & Loan Association Lufkin, Texas, and Thomas Selman. Country through Jones financed a bus Savings required Home insurance on premium the bus. The insurance fi- was separate promissory nanced in a note. Selman, Thomas the banker who handled the Savings, transaction for Home wire trans- premium payment ferred the first 15, May insurance broker on 1986. Home Savings received a certificate of insurance. A new note was executed for the second 7, 1987, policy year, May and on Mr. Selman premium wire transferred that to the insur- Savings’ ance broker. Home records contain neither a certificate of insurance nor a re- ceipt from the insurance carrier. The bus was involved in an accident on August day 1987. The next Jones Coun- told, try supposed was their insurance carrier, National Fire and Marine Insurance Company, policy there was no insurance Country the bus. Jones contacted Home Savings coverage. and was assured there was The note for the insurance was Jones Country Savings to Home on March 1988. accident, August On based on the Country filed was Jones North Country employ Carolina. Jones had to its suit, own counsel to defend the which ulti- $15,000. mately settled on 1991 for $33,- Country expenses Jones incurred litigation. 776.63 in defense of the Prior to suit, Savings the North Carolina Home declared insolvent the Federal Home Fielder, Fielder, Lynn R. Fisk & Keith ap- Loan Bank The Bank Board Board. Dallas, Cummiskey, appellant. for pointed the FSLIC as Receiver for Home Adamson, Dark, Savings. Clayton The FSLIC transferred and as- Nelda E. Sanchez Jr., Lufkin, signed substantially Savings’ all of appellee. for Home as- sets to Bluebonnet. Bluebonnet received the WALKER, C.J., Before and BURGESS Savings of Home on December assets STOVER, JJ. July Country Jones sued On Bluebonnet, as successor interest of Home OPINION “neg- Savings, alleging alternative claims for

BURGESS, Justice. ligence, implied express breach and/or warranties, contract, indemnity Bank, breach of Savings Appellants are Bluebonnet owing” for monies due and Jones formerly known as Consolidated Federal Thomas, jury agent formerly found that Savings known as Consolidat- F.S.B., Savings negligent, formerly that Home ed Federal Bank known as “expressly Savings [warranted] [Jones Loan Consolidated Federal & Asso- Duhme, 1823(e) decided light insurance Country] that it would obtain” an statute) the Savings’ prior failure to to the enactment that Home policy, Country, purposes: created a debt Jones serves three doctrine indemnify” that Home “should purpose” is to allow federal 1. “One Country losses as a result of Home Jones rely on a bank’s examiners to state bank *3 if Savings’ agreement, fulfill its failure to evaluating the worth records in policy. The any, an insurance being that concerned bank’s assets without damages, jury found the same amount (note) is encumbered an asset of the bank (total $48,776.63 litigation of settlement and by Such some unrecorded ground recovery. expenses), on each necessary a bank is are evaluations $48,776.63 judgment trial court entered by or state for fiscal soundness examined and against Bluebonnet Selman. authorities. federal twenty-two points ma- raises is to “ensure purpose” Bluebonnet 2. “A second sustained, one, Point of error of error. transac- of unusual loan ture consideration It dispositive of the entire case. would be officials.” tions senior bank Country’s claims were urges that Jones “prevent fraudulent 3. The third is to D’Oench, Duhme & barred the doctrine terms, with the collusion insertion of new Deposit Ins. 315 U.S. v. Federal Co. ap- employees, when a bank of the bank (1942), and 62 S.Ct. 86 L.Ed. 956 pears for failure.”1 headed 1823(e) (1988). Simply put, such U.S.C. 91-92, 95, 108 Langley, 484 S.Ct. U.S. provides that no doctrine 347, 349; 401, 403, also L.Ed.2d at see a financial tends to diminish the interest of Center, Depos- Inc. v. Federal Shopping OPS receivership shall be institution under federal (11th Cir.1993). Corp., 992 F.2d 306 it Ins. (1) (2) writing; it is in contem valid unless: D’Oench, majority Duhme doctrine depository insti poraneously executed attempts to resist collection cases involve person claiming tution and the the adverse acquired from the failed notes the FDIC has (3) interest; approved by the board of situation, equities applied In that are bank. (4) committee; directors or loan and successors, and its howev- against the FDIC the time of its execution has been continuous doctrine, D’Oench, er, following Duhme Thus, ly a record of the financial institution. have, effect, the FDIC deemed the courts interpretation ap point involves the complete with a quasi-holder-in-due-course plication of federal law. common law against the claims of defense D’Oench, Duhme and the enactment Since secu- violations of state or federal fraud and 1823(e) Supreme had one Court has immunity from the affir- rities laws and with occasion to consider this area of the law. waiver, unjust estoppel, mative defenses Corp., 484 Langley v. Federal consideration, enrichment, and usu- failure of (1987), 86,108 S.Ct. 98 L.Ed.2d 340 U.S. ry- D’Oench, Supreme discussed Court 1823(e). precursor Duhme as a of section surrounding years, the case law Over the was, petitioner According to the Court the D’Oench, (particular- Duhme and the statute essence, seeking affirmative relief to enforce 1823(e)) inter- ly has been discussed section warranty property through an an oral on the very changeably that it is difficult such action for fraud. The Court declared D’Oench, statute ends and decide where the 1823(e)was a matter of strict statuto- section Royal begins. Bank Canada Duhme See claims, ry and barred such construction (N.D.Tex. FDIC, F.Supp. v. interpreta- expansive for an opening the door 1823(e) 1990) describing how section D’Oench, Duhme statute and the tion D’Oench, in tandem. interpreted are Duhme doctrine. Thus, protec- question is the total the crucial D’Oench, Duhme the statute and tion According Supreme Court (which provide. actually interpreting together section any allegations Jones nor evidence of 1. There are no defraud or commit malfeasance intent financed; (6)

The federal common May law of amount equitable estoppel applies when a memo titled “Info on Jones Insurance from paid prior note has been going to the bank Adams”, “Tom, part Don which stated he receivership specific into and no asset is ac- you copy will send of the cheek that he uses quired by corporation. the federal Brook- pay premium receipt and a from the Assoc, Rifkin, side 495-497 company.” (9th Cir.1995). 7,1987, Looking at this transaction on Paper Litigation, In re NEW Commercial required by Langley, which is the standard (D.D.C.1992) up sums contemporaneously being with the loan made thusly: Duhme doctrine assuming the scenario that the bank D’Oench tells bank customers that appeared examiner from FDIC that after- rely should not anything (agreement, noon, the institution’s *4 in- records do contain representation, assumption) or unstated agreement formation of an which would be that is not in recorded the bank’s records. revealed an examination. See Brookside They probably will be unable to recover Assoc, (9th Rifkin, Cir. they anything orally assert that was said 1995). agreement The in is memorialized relied, they yet or on which faded to have banking regulator documents such that a blame, places recorded. D’Oench the how- conducting would be aware of it when an ever, slight, on the customer and relieves examination of the institution’s records. responsibility. the FDIC of Center, Shopping Depos- OPS Inc. v. Federal overwhelming majority (11th Cir.1993). of the cases it Ins. 992 F.2d 306 apply that the Duhme doctrine do Savings obligated The note reflects Home not involve the situation where a claimant procure policy itself to the on of behalf Jones proffered has some in documents contained pre-printed On the face of the note the purporting institution’s files to be a me- following: are the morialization of the oral purpose is_ of this loan (typed)_ Insurance Premium contends, Country Jones and the trial ITEMIZATION OF AMOUNTS FINANCED judge apparently agreed, that either Home directly $_ (a) Amount to me given paid my Savings agreed or Tom procure Selman $_ (b) Amount on account paid my Amounts to others on behalf coverage Country, insurance for Jones Property Company (typed) (c) To $12,936.80 Insurance agreement that this is reflected in the note Company Credit (d) To $_ Life Insurance journal Disability Company a voucher contained in a $_ (e) To Insurance Officials (f) $_ To Public Savings’ documented actions taken Home Clearly, this memorializes employees. The institution’s files included: Savings procure that Home was to insur- (1) obligation a note which created an policy by transmitting proceeds ance (2) $12,936.80; Savings Home copy to loan company. the loan to the insurance of the resolution of the board of directors of itemization, paid under “Amounts to others Country corporation Jones for the to borrow ”, $12,936.80 my behalf, shows $12,936.80 purpose financing “for the Property Company” “To Insurance not to (3) Coach”; insurance for one 1986 Newell property insurance broker. The check from Country Savings check from Jones to Home Country Savings Jones Home for the dif- equal in an amount to the difference between proceeds ference between the loan promissory the amount of the note and the premium insurance is further documentation (4) premium; journal amount of the vouch Savings agreed that Home $16,171.00 er to document the wire of Furthermore, previous year’s insurance. (5) Insurance; Marketing Interstate docu Savings transaction verifies that Home Outgoing of an mentation Wire Transfer of party obtaining original the active $16,171.00 Savings from Home to First Na only policy. parties There were two that Kokomo, tional Bank to the account of Inter bus, Insurance, 1987, could obtain or renew insurance on the Marketing May state mortgagor mortgagee. or the If Home which established that the loan was funded Savings agreed procure the insur- pre and that Home wired the entire had not ance, just why they mium to the broker rather than then did not deliver the loan omitted)- (citations Ap- ... the FDIC proceeds and have her transmit to Ms. Jones standard, company? objective the court premium to the insurance plying obvious; gave law, Ms. Jones concludes, answer is as a matter they Home her check because had not ... would presence in a loan file mere agreed that function. perform examiner reasonably prudent bank lead a to conclude that the bank.... cognizant of Bank must be examiners contain, only files Paper an institution’s Liti- what also In re Commercial See NBW (D.D.C. also do not contain. The but what 1448, 1466 n. 23 gation, certain memo indicated items would 1992). Yet, Savings. do be sent to Home files requirement These cases illustrate copy contain those items —a the check Duhme, is, in the writing”, by “in premium pay and a was used circumstances, subject analysis to an proper receipt company. insurance do from the Nor “reasonably prudent on the issue what policy the files a certificate or contain consti- have concluded bank examiner” would insurance as it should have as would writing file. tuted a within a bank’s competent A reasonably expected. bank cases with the issue Other have dealt recognize that examiner would without an file, determining if Savings, can be policy what considered *5 off, $16,- D’Oench, paid agreement complies the note was would have a written with is, 171 on unaccounted for. That their books Duhme. proceeds of the loan and Ms. Jones’ Apts. Carp. v. In Resolution Trust Oaks check control of were under the Home Sav Cir.1992) (5th Venture, F.2d 995 Joint 966 ings, nothing verify a complet but there is promissory the trial court was faced with ed disbursement. note, face, obligated on its five makers Bank, Gutierrez, Heights In First FSB v. separate, 2 uncondi- for million dollars. A (Tex.App. Corpus 607 n. 17 S.W.2d — time, guaranty, same tional executed Christi, 1993, denied), writ the trial court liability to 20% limited each individual’s jury question on submitted a whether a “rea D’Oench, plead Duhme the debt. RTC sonably prudent loan examiner who ex asserting the precluded the makers amining ed_” ... the loan files have conclud- guaranty as a the note itself defense since appeals court of held: guaranty stand consti- should alone doctrine bars a to a D’Oench defense equivalent side tuted the of an unwritten suit on a note unless there some evi- court, agreement. Id. trial Res- at 999. The dence in the creditor’s file that substanti- Apts. Corp. olution Trust v. Oaks Joint Ven- ates claim that the has the debtor’s note (N.D.Tex.1990), ture, agreement pertaining been or that an held: to the has collection of note been made. do not fit within The facts this case file, If this evidence exists issue Al- parameters of the D’Oench rule- that evidence becomes whether is suffi- whether though the record does not reflect put cient to the successor institution on guaranty found in the the note and were by in- notice. That is resolved file at Meridian same the time reasonably quiring prudent whether over, that conclusion Association was taken bank examiner would have concluded from inescapable. an that the examination of file defense to the Brown, Circuit, note existed. Judge of the Fifth said: added). (emphasis Id. at D’Oench, full require Duhme does While complete agreements be- and disclosure of In Fair v. NCNB Texas Nat. borrowers, (N.D.Texas lenders it does 1990), tween F.Supp. 1099, 1105 require agreements be confined that such court stated: lend- any particular face one agreements Under ‘not ing/borrowing The doctrine document. clearly in the bank’s records’ evidenced enforceability those side precludes ‘apparent to bank examiners’ can- designed to agreements claims that are either not be raised as affirmative deceive creditors solely upon interpretation and bank examiners or fense based an actually language. have that effect. The fact that an of the contractual agreement between the failed lender and Id. at 1428. the borrower is manifested more than proposition This case stands for the that if automatically one document does not im- some evidence exists the written docu- ply deceptive secret requiring interpretation ments of those documents, opposed simply agree- oral (em- Resolution Trust 966 F.2d ments, then Duhme is not a bar. added). phasis particularly A similar and instructive case appeals court remanded the case back is Allied Elevator Inc. v. East Texas State stipulated to the trial court because the facts Cir.1992). Buna, (5th Bank 965 F.2d 34 comprehensive enough were not to determine owner, Pierce, Bobby Allied Elevator its guaranty part whether the of the inte- $50,000 borrowed from East Texas State gral loan transaction associated with the Bank of Buna in 1985. Allied and Pierce was, D’Oench, note. If it Duhme would be times, many renewed the note the last time guaranty satisfied and whether or not the being During the term of this require application could be used would extension, Pierce sold Tom his stock to Cobb hand, Texas law. On other the trial Gary matured, Stark. When this note guaranty court should determine the was not Pierce, Cobb and Allied renewed the note. files, within the loan transaction then request Pierce initialed a on the face of this D’Oench, Duhme would bar the use of the premi- renewal for credit life insurance. The guaranty as a defense. Id. at 1000. See capitalized, raising um was the amount fi- also, Corp. Federal Laguarta, $50,123.26. nanced to Pierce died within the (5th Cir.1991); 1238-39 Bank term of this last renewal. When the note *6 Morrison, One Texas Nat. v. Ass’n. 26 F.3d matured, Allied, pay. Allied to refused Cobb (5th Cir.1994). 544, 551 brought and Pierce’s executrix suit in state alleging court the Bank and the life insur- White, In Corp. Federal company agreement ance had breached an (N.D.Ga.1993), agree- a loan provide credit life insurance. The Bank provided promise pay ment a prin- for the counterclaimed, seeking judgment on the $700,000. cipal Immediately sum of below original note. provision, parties that provi- checked a principal sion that stated the amount shown the Bank failed and the FDIC was above was the maximum amount to be bor- appointed receiver. The FDIC removed the $500,000 rowed and was received the bor- case to federal district court and moved for contemplated. rower with future advances claims, summary judgment including all on defaulted, The borrower a foreclosure oc- granted the counterclaim. The court deficiency curred and the FDIC sued for the motion. It later severed the claims price $700,000. between the sales company. appealed the insurance Allied filed an First, White answer and a counter-claim. two issues. that it was error for the summary judgment The FDIC moved for rely original district court to on the note and invoking part, in Duhme. White appeals not the last court renewal. The con- $700,000 claimed the note was not for but cluded fact there was issue of material as $500,000 note(s) evidence(s) only for and an additional advance to which the indebtedness $30,000. court, denying in develop- the sum- remanded for further factual mary judgment, part, parties’ ment of the stated: intent. question The Fifth Circuit held second case, In this defendant’s defense is not request fact concerned the for life insurance agreement promis-

based on an outside the They on the face of the renewal note. stat- itself, sory argument note but is instead an ed: law, plaintiff, that as a matter of miscon- such, Appellants strues terms that note. As contend the bank was obli- gated procure the D’Oench doctrine does not bar a de- credit insurance as life within requested. Appellants capitalization further insurance and the fact contend to procure that if the Bank failed insur- agreement the note constituted written ance, this breach relieves them of their insurance, they life since did credit obligation pay appel- note. Thus this as of material characterize an issue assert, lants a defense as to the FDIC’s fact more factual nor did remand for counterclaim, Bank breached a development. provision in the material note. is con- basis for such determination added). (emphasis fur- Id. The court case. siderably than in the instant weaker ther court held the district did not consider capitalization premium Compare the of the provision whether the credit life a mate- pur- with the “The within the note notation: rial term of the renewal note and remanded pose is Premium”. of this loan Insurance case development. for further factual of a insurance purpose The sole loan to fund there, however, stop did not court merely certainly persuasive more than noted: premium of the within the note. inclusion suggests that a The FDIC is un- remand only request for credit Compare initialed necessary provision because the credit life insurance life with the notation: “Amounts unenforceable. FDIC makes two my Property to others behalf: To arguments support suggestion, $12,936.80”. Company The latter First, Insurance neither of has merit. appellant’s clearly going FDIC characterizes claim of more reflects bank was credit involving life insurance as an oral pay poli- property company insurance for a [D’Oench, agreement and thus barred cy. Compare apparently nothing more with (citation omitted). disagree Duhme ] We Home additional documents within the with the FDIC’s characterization. The Savings’ payable to file—Ms. Jones’ check oral; credit provision life is not (not company) Home it is on the face written of the Renewal balance, apparent of the transfer Note. Thus inapplica- Duhme is premium reflecting and the memo ble. receive would confirmation Id. at 38. policy being purchased. If the evidence the East Texas State Bank of Buna case

What is so instructive about this case is proved, law, acknowledges controversy agree- the court a matter of written “procure ment, about an credit life the evidence in the instant case then *7 They so, minimum, insurance”. then credit very conclude the overwhelming, did or at a provision life is written on the face of the conclusively raised a fact issue. Unfortunately, note. the face of the note is arguendo, only Assuming the evidence not Clearly, set out verbatim. a there was issue, fact then was obli- raised a Bluebonnet request for credit life face insurance on the gated question request presented a of the is not note. What is whether clear 273,278. jury. Blue- Since Tex.R.Civ.P. explicit agreement this was by an the Bank neither submitted a nor bonnet such procure If the insurance.2 such there was judge to find- asked the trial make written explicit agreement surely pan- an the learned ings question, any omit- of such omitted then Eugene Davis, Judges, el of Circuit W. Edith ted found element is deemed have been Garza, along H. Jones and Emilio with their support the court in such a manner as to staffs, very competent specifically would have judgment. Consequently, must deem we forcefully mentioned such an Therefore, concluded, judge trial that factual de- they have that the resolved must as law, request matter of that the life in favor of for credit termination Jones case, Appellants, discussing “plainly agreement face of the this state on written” on the page agreement apparent “It is evident from 11 of their brief: note. While such initialing request reading opinion life insur- court’s decision Pierce’s for credit agreement procure capitalization premium with- turned that the of the on the fact ance note, plainly "plainly certainly writ- life insurance was written on the face in the and, therefore, agreed complied agreement note with that indicated the bank renewal ten” procure opinion I do not believe the reflects the insurance. D’Oench."

878 summary, questions for Bluebonnet to con because the definition of debt is an judge clude the trial refusing erred in improper definition under Texas law. Here grant either the motion for instructed verdict again, upon the focus is the debtor/creditor judgment withstanding or the motion for relationship suggests when Bluebonnet verdict, they must show there was “no proper definition of debt is: “a loan or debt agreement, evidence” of a written see is a contract party agrees which one to let Croucher, Croucher v. 660 S.W.2d party specific another have the use of sum (Tex.1983), or the evidence established con money period stipu- for a definite with the clusively agreement, there was no written see repay lation that it borrower with or Homes, Assoc., Juliette Fowler Inc. v. Welch Trevino, without interest.” Trevino v. Inc., (Tex.1990). 793 S.W.2d n. (Tex.Civ.App. Corpus S.W.2d — previously Neither was done. As noted writ). They Christi no conclude their analysis of Allied Elevator Inc. v. East argument illogical with the assertion: “it is Buna, supra, Texas State Bank Jones to conclude that the failure to insur- Country proved, law, as a matter there ance, any, any way is tantamount to or in was a written comply sufficient to par- consistent with ‘a contract which one with Duhme or at the least a fact ty agrees party to let another have the use of raised, issue was in accordance with Gutier specific money period sum of for a definite rez, and that fact issue was resolved Jones stipulation repay with the that the borrower Country’s judge. favor trial Conse ” it with or without interest.’ quently, point of error one is overruled. points in- Since these four of error are analysis We next turn to an terrelated, together. will be discussed causes of jury. Any actions submitted to the debt, specific While there is no definition of action, properly one cause of submitted and sense, general in the we turn to Tex.Prac. & evidence, supported by the is sufficient to 16.004(a)(3) (Vernon 1986) Civ.Rem.Code support judgment of the trial court. We which states: first consider the issue of “debt” as submitt (a) person bring A must the follow- ed.3 ing years actions not later than four after urge Points error nine and ten trial day the cause of action accrues: court in overruling erred its in- motion for (3) debt. judgment structed verdict and motion for interpreted and the cases that have “debt” verdict, notwithstanding the and in submit- and “actions for debt”. ting jury questions on debt because there support was no evidence to their submission. Printing International Pressmen and As- Specifically, there was no evidence that a Smith, sistants’ Union North America v. relationship debtor or creditor existed be- (Tex.1946), 145 Tex. S.W.2d parties. tween the argument, Their sole recognized earlier cases and held “the words brief, objections from their to their that an debt’, statute, ‘action for in the in- used “action for must debt” involve a debtor/credi- brought money cluded suits to recover *8 relationship. tor regard the breach of contract without for the technical urge Points of error thirteen and fourteen distinction between debts and dam- submitting jury ages.” They the trial court erred in noted “such term should not be equivalent interchangeable 3. to and with the "obligation". QUESTION term JURY NO. 7 you Jury Question Did the actions of Home & Loan Asso- If have answered No. 7 failing ciation in to insurance on Plain- "yes” Jury Question then answer No. 8. Other- owing by tiff's motor vehicle create a debt Home wise, Jury Question do not answer No. 8. Savings & Loan Association to Plaintiffs? QUESTION JURY NO. 8 "yes” Answer or "no”. What is the amount of the indebtedness owed yes ANSWER: & Loan Association to Plain- charge, The term “debt” as used in this does by you tiffs as found in answer to the next import merely duty pay a sum certain in preceding jury question? money; signify any it is used kind of contrac- cents, any. Answer in dollars and duty. tual The term "debt” is not restricted to $48,776.63 ANSWER: debt, meaning the more narrow aof but is used

879 later, jewelry Brooks and interpretation, supplier on The sued given a strict literal but given be such a rea- sued the bank. the other hand should on Brooks give interpretation year sonable as would it effect or four statute of Whether two according spirit, to the and intention of the applied question ap- on limitations was the (quoting & statute.” Id. at 737 Texarkana for The “actions debt” peal. court discussed Co., Fuel 121 F.S.R. Co. v. Houston Gas & given the and the liberal construction term (Tex.1932). 594, 284, 286 Tex. 51 S.W.2d year courts the four statute and held applied. Id. at 941-942. Corporation Products v. Certain-Teed Bell, (Tex.Civ.App. 411 596 S.W.2d Gamboa, Estate, — Amarillo v. Xarin Real Inc. 715 (Tex.1968) 1966), affd, grew 719 422 S.W.2d 1986, (Tex.App. Corpus 80 Christi S.W.2d — damages for out of an homeowners action n.r.e.) pur- an ultimate writ refd involved resulting from defects construction. The purchasers suit intermediate chasers’ v. quote court noted from Miller Kountze upon an principally which was founded ear- (Tex. Disk, Corporate School 54 S.W.2d 344 money original nest contract between holding approved): “It App.1932, Comm’n purchasers. vendors and intermediate for debt’ settled the term ‘action as used year or four Whether two statute 5527] in the article includes all [Art. above applied questions limitations was one of the money brought suits to recover without re- appeal. phrase The court held found gard any technical distinction between for debt” former Article “actions Certain-Teed, damages.” 411 debt “liberally to embrace actions to be construed S.W.2d 601. money of a damages for for breach written City Anchor-Hocking In Houston v. Brooks, (citing contract.” Id. at 85 689 (Tex.Civ.App.— Glass 467 S.W.2d 937). S.W.2d at n.r.e.), Houston writ refd [1st Dist.] Houston, City v. Mokwa S.W.2d City agreed had it would not Houston (Tex.App. Dist.] writ [1st —Houston sanitary charge Anchor-Hocking for sewer denied) police sought officer recover provide. City it services was unable to pay pursuant back the suit various inadvertently Anchor-Hocking, as a billed civil held Mokwa’s statutes. The court bill, part of the for sewer water service and subject action was an for debt four inadvertently paid Anchor-Hocking the bill. They year statute of limitations. Id. at city billing agree- discontinued once the Printing the rule cited International for attention, ment was called to its but refused broadly construed. “debt” was Id. process request Anchor-Hocking’s City They also v. cited Kierstead San refund; Anchor-Hocking sued. trial (Tex.1982) Antonio, 120-121 S.W.2d court judgment entered for the amount (suit EMT’s, involving wages for back years filing within suit. fours Whether approved Appeals disposition the Court of year5 the two or statute of four limitations (Tex.App. Antonio 636 S.W.2d — San applied appeal. 1982) pay they where held a suit for overtime appellate year court held the four statute “debt”). City was a suit for also Kiel See relating to “actions for debt” where in- (Tex.Civ. Houston, 69, 71 558 S.W.2d upon or debtedness “is evidenced founded App. writ Dist.] refd [14th — Houston any writing” applied. Id. at 679. In reach- n.r.e.) (fireman’s compel recognition suit to upon ing this relied lan- conclusion promotion damages). his and for guage Printing, International S.W.2d at 729. Id. general All of these cases stand for *9 proposition may for debt” that “an action v. Northpark Brooks Inc. Fashion Stores upon “obligation” an and need not be based Bank, (Tex.App.— National 689 S.W.2d strictly writ) relation- based on Dallas involved a suit where “debtor/creditor no Therefore, action Brooks, 16, 1981, ship”. the cause of January jewelry left and, properly plead pleading it could not be under the with Bank and located. 1985) 1985) (repealed (repealed 5. art. 5527 4. art. 5526 Tex.Rev.Civ.Stat.Ann. Tex.Rev.Civ.Stat.Ann. (current & Rem.Code version Tex.Civ.Prac. Rem.Code Tex.Civ.Prac. Ann. Ann. (current version & (Vernon (Vernon 1986). 1986). § § 16.003 16.004 proof, proper. any judgment definition was against These him is void. Edens v. points of error are overruled. Co., Grogan Cochran Lumber 172 S.W.2d 730 (Tex.Civ.App. writ refd urge Points error eleven and twelve — Beaumont w.o.m.). points of error as to Thomas submitting trial court jury ques- erred Selman are sustained. general tions because constitute a charge specific question rather than a as previous points being disposi- of error required by law improperly asked the case, tive of the we need not consider the jury prevailing party to determine the in the remaining points of error. litigation findings rather than to make of fact judgment of the trial court as to Blue- required by only law. Bluebonnet attacks Bank, Savings bonnet formerly known as question argument. 7 in They argue its first Savings Consolidated Federal former- global because it does not ly known as Consolidated Federal Bank act, omission, breach, submit an identifiable F.S.B., formerly known as Consolidated Fed- representation or failure of Bluebonnet. Association, Savings eral However, Assignee & Loan jury question specific Savings asking “Did the Federal & Loan Savings the actions of Home Insurance Cor- & failing poration, Loan Association Savings insur- Receiver for Home & Loan ance on Texas, Plaintiffs motor vehicle create a Lufkin, Association of is affirmed. owing by debt & Loan Associ- judgment of the trial court as to Thomas ation to points Plaintiffs?” These of error Selman reversed and rendered. are overruled. PART; AFFIRMED IN REVERSED Point twenty-one urges of error the trial AND RENDERED IN PART. entering court erred in judgment against individually Tom Selman because the evi- STOVER, Judge, dissenting. dence establishes as a matter law and the persuaded I am Country the Jones only jury findings made established that Sel- claims were barred the doctrine of agent man was a acting prin- disclosed for a & Co. Federal cipal preclude having so as to Selman from 315 U.S. 62 S.Ct. any independent liability. tort (1942) 1823(e) L.Ed. 956 and 12 U.S.C. twenty-two urges Point of error (1988). I would sustain Bluebonnet’s first trial entering judgment court erred in point of error and reverse and render this individually Tom Selman because Sel- ease. Duhme and the federal stat- man was deceased was filed and progeny provide objective ute and its test plaintiffs failed to sue out scire facias and to evaluate the worth of banks’ assets with- proper cause party to defend the suit on being out concerned an asset of the bank

behalf of Selman. (note) is encumbered some unrecorded Thomas Selman died June before promote Such assurances confi- served, the suit was filed. He was never but dence, order, stability and substance in the answer was filed on his behalf examination of the fiscal soundness of bank attorney for Bluebonnet Bank. A and assure accurate assessment of the fiscal suggestion February of death was filed condition of the bank based on its books. To 1998. See Tex.R.Civ.P. 63. No scire facias depart objective from an proceed test and issued. See Neither the Tex.R.Civ.P. questionable uncertainty into the and un- administrator of his nor estate his heirs were predictability subjective factfinding or brought into the suit. The trial court en- inquiry, my judgment, would be elusive judgment against tered a Selman. Selman’s I, ultimately process. detrimental to the bond, appears appeal name on the and his therefore, respectfully dissent and would signature appears through appellate counsel urge that the case be reversed and rendered. signing “attorney-in-fact.” Although as his writing Because the vast amount of parties generally though have acted as subject alive, appropriate this I feel it limit Mr. ignore Selman were still we cannot dissenting legal opinion basically rulings the fact that Thomas Selman had no *10 suit, any during existence at Supreme time the United States Court and the

881 obligations of a perform Fifth or outside Appeals, Court of Cir- services United States cuit. loan must determined normal transaction v. Texas matter law. Fair NCNB as a of Langley Deposit Corp., In v. Ins. Federal 1099, 1104-1105 Nat. 733 86, 396, 484 108 S.Ct. 98 L.Ed.2d 340 U.S. (N.D.Tex.1990) the of law applies matter (1987), Supreme the Court discussed standard. 1823(e). D’Oench, § a precursor Duhme as of 1823(e) § a The Court declared that Deposit Ins. in Bowen v. Federal As stated statutory of strict construction. The matter (5th Cir.1990), 1013, 1016 Corp., 915 F.2d Supreme affirmed the Fifth Circuit’s Court D’Oench, the of unrecorded Duhme bars use opinion Langley1. in Fifth Circuit fol- put, agreements. “Simply transactions Langley Beighley with v. Federal De- lowed appear books reflected on the bank’s do (5th 776, posit Ins. 784 Cir. judicial Id. on the radar screen either.” 1989), objective applying the test. 7,1987 Looking this transaction on Again in the Fifth in Circuit Bell & contemporaneously making the with the of Assoc, Murphy v. Bank & Gate- Interfirst (which by required loan the is standard (5th N.A., Cir.), way, F.2d 752-754 Langley), agreement is no written exe- cert, there denied, 498 U.S. S.Ct. for the bank cuted the bank borrower (1990) objective L.Ed.2d 203 followed the test in agent procuring to act as an the insurance bank) (bridge a and held that successor bank approval There is for Jones no 1823(e) could assert Duhme any senior official or loan committee bank defenses: capacity. that the in such There is bank act Supreme Court the examined statu- only facially unqualified obligation executed tory scheme created the FDIC and banking a normal transaction wherein that it poli- concluded evidenced a “federal lending money for bank is a borrower ... cy protect [the FDIC] acquire casualty required by the administers, public funds which it financing loans on bank for motor vehicles. misrepresentations as to ... assets portfolios which ... the banks [the involving this The facts case are unusual. insures or to it makes FDIC] loans.” FDIC thing, For one this is not D’Oench, Duhme, U.S. S.Ct. Instead, a ease to collect a note. this is at 679. seeking is wherein the affirmative borrower Supreme Court of the United States years action and a half after a some five Fifth Circuit cases that have been (after place banking took such transaction reviewed are indicative of the fact that strict time, miraculously passage of there remained construction, statutory looking com- transaction). the bank files records mon law of constru- Moreover, obli- the borrower off the statute, ing applies determining gation to Home without assertion (1) agree- whether or not there a written is prior failure consideration the note (2) encumbering asset, ment executed con- (Bluebonnet). bridge acquisition by bank borrower, temporaneously the bank and addition, who principal loan officer (3) (4) approved by ap- senior bank officials handled the transaction deceased. pearing whereby in the records a bank exam- significant There is distinction between made agree- iner would be aware of “side money agreement purpose loan facially ment” that alters the terms of a procuring agreement insurance and an unqualified obligation 2. It is concluded from Only Supreme procure such insurance. the former our research cases from It is reflected in the written documentation. Langley through Court in the Fifth Circuit quality present quanti- papers not the Court that the of whether there no ty that the transaction. There is written wherein the bank is to controls Property, Langley, Corp. 2. One in Real 47 SMU L.Rev. See Federal writer (1994), opines (5th that the Fifth Circuit Cir.1986). F.2d 541 expressly adopted has not of the "reason- use ably prudent examiner" loan standard. *11 outright written executed loam of the bank un- the malodorous fraud— authority proper procure der to insurance. ecology banking are a threat to the of the system can that we ill-afford. To check accepted appellee’s Even if one as true growth hardy perennials. these of statement that “Home Sel- and/or to D’Oench forces borrowers bear the risk Ap- man undertook obtain plants no pellee parties’ that their unorthodox will bear part and as entire bar- gain,” unqualified may all that till would exist fruit. these soils not Those who is, fact, subject note which in to undisclosed peculiar agronomy shift the cost of their specifically conditions not memorialized. FDIC, depositors and the bank’s unse- This is in pro- direct violation statute and creditors, taxpayers cured and and de- D’Oench, hibited Langley, Duhme. su- positors who fund the FDIC. See Bell & pra. nothing writing There in that Home 753, 754; Murphy, 894 F.2d F.D.I.C. v. Savings obligated policy itself to (5th McClanahan, F.2d Cir. on behalf of its customer. transaction 1986); City Bank v. First State and Coun- Savings’ documented Home records is sim- (6th Cir.1989). ty ply banking regular a loan as a conducted require- As to the malfeasance Bowens’ transaction. ment, adopt it we would decline even Bowen v. Federal precedent. Adulterating absence 1016-1017, Goldberg 915 F.2d at Justice D’Oench, would Duhme amount to aban- joined by Gee and Justices Williams of the doning protection a bedrock for the uncer- Fifth Circuit addressed issues raised tainty seemingly quick-clay, stable D’Oench, eloquently expressed rapid liquefac- substance for its notorious opinion subject of this writer on the provide today tion. The firm we resolution matter: collapse would into an uncertain and fact- The lack requirement of a malfeasance inquiry, bound soon be followed D’Oench, sharp

makes Duhme a sword and faith” “good landslide of claims sturdy purpose shield indeed. What is the willing FDIC. We to remake the are imposing such armaments? Fundamen- topography banking system in tally, attempts such D’Oench ensure Nor, accurately apparently, Congress, can FDIC examiners assess the fashion. condition of a based on bank its books. which has directed courts to void unre- government The doctrine means that the agreements against corded the interests of compile duty has no oral histories regard FDIC-Receiver without to malfea- bank’s and loan customers officers. Nor (re- Act, supra sance. See FIRRE note 3 linguists cryp- must the retain FDIC statutory cent amendments D’Oench’s tologists meaning out the to tease of facial- 1823(e)). counterpart, Accord- U.S.C. ly-unencumbered Spreadsheet notes. ex- ingly, holdings: we reaffirm our earlier historians, perts joined by need not be applicable Duhme doctrine is soothsayers, spiritualists in a Lewis even in the of malfeasance. absence for a Carroll-like search bank’s unrecorded Perhaps Being mindful I would render. liabilities. of the fate reverse and Baker, minority, that befell the whose search for the respectfully I dissent. disappearance, his Snark ended with own Duhme seeks to ensure that “softly suddenly bank’s assets do Carroll, away.”

vanish L. Hunt- [See Snark,

ing Fit the Third and Fit the 8) (1876).] (i.e., Eighth verses contrary policy dangers should Today, stable

be obvious. financial institu-

tions seem as elusive as the sometimes agreements Snark. Unrecorded —those soil of casual

rooted the loose transac- spring those that

tions as much as