*1 Thus, we heed the admonishment
mandamus is extraordinary relief and con-
clude the Johnsons have failed to carry
their burden of proving the lack of ade-
quate legal remedy through appeal.
Accordingly, for mandamus
is denied. CO.,
HOXIE IMPLEMENT
INC., Appellant, BAKER, individually
Jim and d/b/a Harvesting, Appellee.
No. 07-00-0175-CV. Texas, Appeals
Court of
Amarillo.
June 2001.
Opinion Granting Rehearing in Part
Sept. 2001.
Opinion Overruling Second Motion Rehearing Oct. *3 Amarillo, Sheets,
Jody Hicks Thomas G. Chisholm, LLP, Lilienstern, Karen L. Houston, Elmore, appellee. A. Natasha BOYD, C.J., QUINN and Before REAVIS, JJ.
QUINN, Justice. (Hoxie) Co., Inc. ap- Implement entered judgment from a final peals *4 Baker, individually and favor of Jim d/b/a (Baker). Through Harvesting Baker Baker, awarded judgment, court sums, $251,884.95 against among other presents The three is- Hoxie. latter now sues for The first concerns wheth- review. granting in Baker a er the trial court erred claim of upon usury. directed his verdict second, argues Through the established, law, right matter of its to as a $3,137.70 open from Baker on an recover trial court erred in account and that point The third denying recovery. such attorney’s propriety involves the in part, affirm fees Baker. We awarded and part, re- part, reverse render part. mand in
Background damages to recover sued Baker The claims for breach of contract. were alleged Baker’s failure to founded from, pay and an six purchase combines due, $3,137.71 Hoxie. Ac- open account of cording pleading, live failure Hoxie’s resulted in it six combines purchase the “$90,- form of suffering damage in the plus ... actual anticipated profit 000.00 and costs of economic interest losses $59,183.28 continue] ac- losses [which day per until crue at rate of $252.92 $47,252.70 plus sold ... [are] the combines prejudgment in- plus dealer’s ... rebate Gibson, rate allowed cur- Morris, highest terest at the & Ad- S. Tom Ochsner Amarillo, Texas kins, LLP, appellant. rent law....” gener- Baker answered the sought damages eq- and purportedly ally denied the allegations. It also coun- charged ualed the interest it was being Baker, usury. According terclaimed for once it acquired combines. while letters, pleadings the “Plaintiffs demand cross-examination, undergoing repre- and disclosure statement de- contain[ed] sentative for Hoxie admitted that the com- damages mands for ... pany incurred had no such interest $468,990.56. in- amount This sum but, nonetheless, charges sought alleged charges clude[d] interest $91,000 opponent. amount from its $91,135.” amount of continued completed presentation Once Hoxie its averring that “Plaintiff this is for states evidence, Baker moved for an instructed pre-judgment damages interest and actual questions verdict on the of breached con- suffered, at they the actual rate latter, tract and As to the accruing Plaintiff costing are on undisputed that there agree- existed no purchase price the combines any ment wherein consented to Furthermore, IH.” “par- Case because any interest to Hoxie for purpose and ... an agreed upon ties never interest cap- which Hoxie attempted the maximum rate” allowable interest was (irrespective ture from Baker of its charac- *5 percent. by “Plain- six the rate levied terization) equaled per or exceeded 12% greatly tiff exceeded] the maximum lawful Furthermore, annum. Baker argued ” that rate.... ap- via he established “two different trial, a by At demand written letter The proaches.” first concerned the aver- for January counsel Hoxie and dated in January ments the 15th demand letter was 1998 admitted into At- evidence. $91,000 claim for as well as the as interest to it a “petition” tached was actually no such costs when costs were it “may” file if “not make said Baker did of levy incurred. The second involved the adequate arrangements payment in for the pre-judgment prior to the time owing full of all sums due and Hoxie.” the Finally, authorized statute. both The letter also to “read admonished Baker represented by the contract to pur- allegations the contained in the and the in chase combines debt reflected carefully.” company So too did the inform open the account were encom- $3137.71 (in letter) him the that his “failure passed within the motion for instructed agreed upon sum and owing the when due verdict. ... form damages results the in- Upon hearing argument from all interest costs of 18% annum from per Sep- volved, trial court a Next, refused to direct paid.” tember 1997 until via the verdict on claim of breached contract. petition which Baker was to “read directed allegations usury, carefully,” Regarding ... that howev- twice averred er, only it indebted to it not stated: $1,025,636.00 the court has viewed those letters'— n amount of but for “inter- also ... per thereon est at the rate of annum 18% right, I think are counsel those letters 1, 1997, September paid in until And I think a demand. that is what full.”1 triggers troublesome problem here. always admitted The has had per- Also into evidence testimo- court trouble that that. I ny sonally Hoxie claimed an amount inter- with don’t like that appli- $91,135.49. equal est This sum was law. I think I cation of it’s harsh. $1,025,636.00 purchase The price referred combines.
145 or, judgment alternatively, it’s But I feel vacate the very, very think harsh. on as point, problem, like at this based the record therein lies the new trial. has at point, authority objections this the Court to a requires grant, this time no choice but to urged conduct proposed trial court’s be law, Tex.R.App. motion 33.1(a); matter of for instructed timely manner. P. positions verdict on under both Lines, Surplus Co. v. Ddlr-Worth St. Paul out. pointed (Tex.1998). which the defendant has 51, 53 Tank S.W.2d And the at this do so. court time will timely encompass- to act requirement The added). (Emphasis objection itself but also all only es not supporting it. grounds allegedly Thereafter, court the trial submitted words, objection and all other both jury. contract issue breached timely for must asserted. legal basis The latter that no breach had oc- found State, 112, 115-16 Credille Consequently, judgment curred. was en- 1996, pet. (Tex.App. [14th Dist.] nothing tered that Hoxie declaring recover —Houston refd.). Furthermore, objection an is con- against recover Baker but timely at the urged sidered when asserted $251,884.95 attorney’s from Hox- fees State, opportunity, Russell v. earliest ie. (Tex.App. S.W.2d —Amarillo Issue One refd.), potential pet. or when error State, Perry v. apparent. becomes initially contends that the trial (Tex.App. by instructing court erred on the verdict —Texarkana refd.). 1997, pet. Finally, including the claim of This is allegedly so be- grounds in objection and a motion for new Baker, no cause debt was owed “and *6 satisfy trial does not the contemporaneous absence obligation in an absolute to objection complaint rule if have amount, could principal there cannot definite 2) interest,” urged Surplus earlier. St. charge been Paul be usurious Hoxie Lines, interest, Co. v. Tank 974 did not usurious if Dai-Worth charge a but did, “it that at 53. charge was cor- S.W.2d [subsequently] 3) ...” any rected levied on Here, parties the propriety debated the account receivable was never commu- motion for instructed before of the verdict added). nicated to (Emphasis Baker. We the motion was At no time dur- granted. sustain in point part. and overrule anyone posit that debate that the did Obligation a. Contingent and Correc- motion should denied because the debt be tion attempted Hoxie collect from debt or contingent Baker was regarding The contentions in demand interest contained the Janu- contingent of the nature debt and the sub (if ary 15th missive was a mistake which was sequent actually correction sought) urged subsequently corrected. the conten- were not at the time urged possi- trial court tions were not at the grant debated whether to an earliest opportunity instructed Hoxie not broach at a time which afforded verdict.2 did ble arguments sup- these until it filed motion the trial court a chance to avoid the its plead affirmatively pled did 2. Nor Hoxie that it made a bona tion must be before one can protection Tri-County subsequently fide their at trial. mistake which corrected claim 208, Bendele, made) (assuming Co-op response 641 a mistake was Parmer's v. S.W.2d 1982). Thus, (Tex. failing It to Baker’s counterclaim. is clear that de- to affirma them, tively plead fenses fide correc- Hoxie waived them. such as bona mistake and posed Thus, them, error. Atkinson, waived Inv. 885, & Co. v. 254 S.W.2d and its motion for new trial 1952, did not cure 888 (Tex.Civ.App. writ — Amarillo the situation. w.o.j.) dism’d (allowing the admission of parol evidence to determine whether the b. Demanding Usurious Interest parties intended loan); to make a usurious Next, in reference to the argument that Great Williams, Southern Ins. Co. v. Life interest, never demanded usurious 241, 249 (Tex.Civ.App . —Amar the implement propounds dealer several cor.) illo writ judgmt. dism’d (stating arguments. They concern both the debt agreement that an should not be construed represented by the supposedly breached as usurious unless “it was the manifest purchase agreement and represented intention of the charge lender to and col- by the account receivable. We address lect more interest than permitted ... each turn. law”). And, by intent we do not mean 1. Breached Agreement Purchase Rather, an intent to engage intent to assess the rate charged is deter- As to whether sought usurious Assoc., minative. William Dear C. & Inc. interest while attempting to collect dam- Plastronics, (Tex. ages due to the allegedly breached sales Civ.App. denied); agreement, see only need address one — Amarillo Ass’n, Cochran v. American Sav. & Loan ground of Baker. It January concerns the (Tex.1979) (stating 15th letter and its substance. Again, Bak- that the focus is er intent to make contended at trial that it awas vehicle bargain opposed through the intent which usurious interest was de- rate). charge a usurious interest manded. Hoxie, According however, the letter did not constitute a “charge” of Next, while parol may evidence purposes interest for statutes. utilized, National Bond & Inv. Co. v. Rather, merely opponent informed its Atkinson, 254 S.W.2d at the document that the “may” be filed and containing usurious demand interest costs Hoxie acquiring incurred in primary is the source from which to devine holding the combines for Baker. We the drafter’s It intent. must be construed disagree with Hoxie. *7 Ventures, as a B whole. Parhms v. & B Inc.,
Section 305.001 of
199,
the Texas Fi
938 S.W.2d
203 (Tex.App.—
nance
penalizes
denied).
Code
one for contracting
1997,
Houston [14th Dist.]
writ
for, charging, or receiving
Furthermore,
interest
that is
if susceptible to two or more
greater
than the amount
by
authorized
differing
reasonable but
interpretations,
305.001(a)
law.
§
interpretation
the
adopted must be that
Tex.
Fin.Code
Ann.
(Vernon 1998). Furthermore,
the solicita which renders the document non-usurious.
tion,
letter,
through
Id.;
a demand
of interest
Great Southern
Ins. Co. v.
Life
exceeding
by
Williams,
that
may
allowed
law
consti
In
January
Serv., Inc.,
15th letter and Fuller Co. v. Carpet
attachment are not susceptible to reason-
According
at 605.4
to the record before
petition
3. Hoxie also contends
petition,
that the
itself
the creditor did more than
claims; rather,
given
simply
could not be the basis for a
claim
inform the court of its
holding George
Carpet
part
A. Fuller Co. v.
the document constituted a
of the de-
Serv., Inc.,
(Tex. 1992)..
importantly,
failure to it that money award sum of tered in favor of Hoxie on that claim. not, agree. constituted error. Because it the trial erred. We court indisput The evidence of record Four—Attorney’s Fees Issue ably illustrates that Baker incurred a debt Finally, Hoxie contends that the trial to Hoxie in the amount of So $3137.70. awarding attorney’s court erred in Baker establish, law, too does it as a matter of First, it argument fees. Its is two-fold. that the at time unpaid debt was of suit complains that no statute authorized the and trial.6 second, award and that Baker failed to Furthermore, reject we Baker’s issue, segregate, jury via a those attor- suggestion request that Hoxie’s failure to subject recovery to from those ney’s fees jury the issue be submitted to the aspect which were not. each We overrule recovery. bars This is so be barred and of the contention. request jury cause one need not issue on Statutory Attorney’s Basis Fees claims established as a matter of law. for (Tex. West, 771, Gray v. 608 778 S.W.2d counterclaim, Through his n.r.e.). 1980, Civ.App.—Amarillo ref d writ pled sounding causes of action above, as illustrated Hoxie estab declaratory judgment. Regarding the right recovery upon open lished his former, “person that a statute declares account as a matter of law. who is liable under Section 305.001 accept Nor do proposition Baker’s Finance also [of Code] 305.002 liable that the claim barred because attorney’s for fees set reasonable demanded an usurious rate of interest. § court.” 305.003. Tex. ANN. Fin.Code because, discussed, This is previously so pled attorney’s fees via his Since the transaction did not involve counterclaim and Hoxie was found liable law, Code, § Finance Bak Having proven, as a matter of its under 305.001 the er was to recover such fees from recovery upon entitlement account entitled receivable, judgment should have been en- Hoxie.7 Indeed, company posits payment. did not de-
6. Baker that the debt was not outstand- paid time of he had posit at the trial because or otherwise cash the instrument or obligation. alleged payment The came in "appl[y] otherwise it on the debt.” the form of a cashier’s in the amount of check unquestionable out- that the debt remained $3137.70 from Baker to Hoxie. That Baker standing time of trial. at delivered the instrument Hoxie is alone inconsequential for the mere tender of an initially argues that Baker failed to 7. Hoxie payment instrument does not constitute pleading. pray attorney's fees in his live Jones, underlying debt. In re S.W.2d However, perusal of his Second Amended 1998, orig. (Tex.App.—Amarillo 4n. Original Answer and Counterclaim discloses Co., proceeding); v. David Fillion Silvers Therein, only he not mentioned otherwise. (Tex.App.—Houston 246-47 right specifically recover such fees un- his n.r.e.); writ ref'd Home Ins. [14th Dist.] § der 37.009 of the Texas Civil Practice Gutierrez, Indem. Co. v. general but included a Remedies Code also (Tex.Civ.App.—Corpus Christi Furthermore, nothing prayer for same. Rather, n.r.e.). parties agree ref'd. must suggests specially excepted record that Hoxie it is before it can be deemed this, Given we conclude to the averments. such. Fillion v. David Silvers place allegations were sufficient to Gutierrez, 246; Ins. Indem. Co. v. Home potential liability its for attor- Furthermore, on notice of nothing of rec- S.W.2d at 456. ney's preserve the claim for fees. fees and to agreed accept, suggests ord that Hoxie impliedly, expressly or the check as either
151 attorneys fees was for or seeking the cause de amount Regarding declaratory ... was for relief, which amount again permits statute the claratory added). effect, judgment.” (Emphasis and necessary award of “reasonable attor the complaint regarding segre- made was just.” and ney’s equitable fees as are Tex. prosecuting incurred in the (Ver gation of fees § Ann. Civ. Prac. & Rem.Code .009 (which were usury claim fees authorized 1997). Moreover, non not the was statute) prosecut- incurred in by from fees litigant invoking sole the Uniform Declara (which fees declaratory the action were tory Act. Hoxie did as well. Judgments so statute). said, Nothing was authorized circumstances, the Under these trial court however, “applicable fees [the] about to award fees to ever entitled against and fees Hoxie’s claims the litigant such as prevailed, Baker. See defense (Em- usury claim.” applicable to Baker’s Co., v. City First Nat’l Bank Concord Oil words, added). one phasis In other no 133, 138-39 (Tex.App. 808 S.W.2d — El segregation the of fees complained about writ) 1991, (holding Paso no that when gen- recoverable statute from those under plaintiff either or defen plaintiff the erally defending incurred relief, declaratory attorney’s dant seek against and which are suit may party); fees awarded to either Rit not it is latter com- recoverable. Worth, 448, City chie v. Fort 730 S.W.2d that on plaint urged appeal. given Worth, 451 (Tex.App. writ refd — Fort before us contention does n.r.e.) same); (holding the First Nat’l below, objection raised comport with the Bank E. v. John Mitchell that before us was and is waived. Rodri (Tex.App. — Amarillo (Tex. State, guez n.r.e.) (stating refd that when plaintiff App. pet.) (stating no relief, declaratory seeks judge trial — Amarillo appeal comport the issue on must asserted may attorney’s to any party).8 award fees below, objection with the asserted other Segregation 2. Fees waived). wise it is to the As contention that Bak above, re- For reasons stated issue, segregate, er a jury failed to via 1) judgment those portions verse attorney’s subject recovery those fees awarding damages against alleg- not, from those which were we conclude edly charging Baker usurious interest was waived. Generally, the issue 2) denying receivable and account failure segregate attorney’s in a fees account recovery upon receiv- action, containing multiple case causes of able due Baker. further order from We when only some of which entitle the recov that Hoxie from Baker the sum of recover fees, ery of recovery can result of no $3,137.70plus at the rate of six Int’l, Solis, fees. Inc. v. Green 951 S.W.2d percent year thirty days after the from (Tex.1996). Yet, if no objects one day account became due receivable situation, objection to the then the judgment percent ten year before waived. Id. judgment until paid. date of However, Below, objected to in- unable to render the issue we are should ren- volving attorney’s judgment fees “because the trial court have [the court] on for two segregate put didn’t there which dered the entire cause reasons. Oil, prerequisite contending Incidentally, that Concord Hoxie does not contend that its Ritchie, request declaratory apply. relief baseless. It Mitchell did not and John E. though argument such an is a would seem as *12 First, And, the on which to trial court. date the account re- tation of the same original opinion, objection ceivable due cannot be determined stated in our an became Second, timely urged from the record before us. the is considered when asserted record also at v. portion opportunity, fails to illustrate what the earliest Russell State, $251,884.95 (Tex.App.— awarded to Baker as ref'd), damages usury comprised pet. for of the Amarillo or when the damages alleged potential apparent. Perry attributable to Hoxie’s error becomes State, usury charge (Tex.App. of on the account receivable. v. ref'd). Thus, 1997, pet. remand for new trial on the Hoxie cor we issue —Texarkana damages only rectly of the claim that Baker asserts that the circumstance which agreement gave portion argument breached his to the account rise to a of its did pay jury receivable and the claim that Hoxie com- not occur until the failed to find that Agreement. in usury attempting mitted to recover Baker breached the Purchase point, claim At that that Baker upon pur- its of breached contract to became clear Tex.R.App. 44.1(b) Hoxie; thereto, prior chase the combines. owed no debt to the P. So, (permitting dispute.2 remand for new trial the issue matter was in because the of contention damages damages alone when the are focus of Hoxie’s involved liquidated). judg- jury In all want of a and the did not find things, other wanting ment is affirmed. that such a debt was until after granted the trial court Baker’s motion for ON MOTION FOR REHEARING claim, usury a directed verdict on his say or ob cannot that Hoxie’s contention Pending before the court are the mo- jection the time the trial apparent rehearing Imple- tions for filed considering court was Baker’s motion. grant, ment Inc. and Jim Baker. We in part, that of Hoxie for the reasons Alternatively, though express not which follow and overrule that of Baker. ly legal identified as an attack on the Rehearing Motion for sufficiency underlying evidence concluding Hoxie believes we erred finding usu trial court’s verdict viz that it waived its claim that the transaction effectively ry, argument questions Hoxie’s usury claim of founded upon which the legal sufficiency of that evidence. something involved other than an absolute is, among company questions, That obligation agree pay to debt.1 We things, whether the trial court could other several reasons. of law that Hoxie have found as matter
First, purported when a ele Rule 33.1 of the Texas Rules of committed claim, i.e. the existence of Appellate obligates litigants Procedure to ment of Baker’s debt, ultimately went unes- objections through presen underlying an preserve their "debt,” referring referring allegedly to the we are 1. There existed no absolute obli- debt, Hoxie, monetary obligation or chose-in-action to the gation according supposedly allegedly arose when Baker First, debt due two reasons. there was no Agreement. In refus- breached the Purchase jury found in Hoxie from Baker once contract, Baker perform favor of on the breach of contract And, detained due Hoxie. because monies Second, the debt was claim. the existence of monies, Baker detained those Hoxie believed contingent upon foregoing his contrac- the interest it itself entitled interest. contract, option tual to terminate January letter was demanded via the option forego. Baker did not supposed recompense deten- it for Baker’s owing. due and tion of monies original our and relied alleging that Baker cussed tablished. claim, opinion. an element of his prove failed to sufficiency questioned effect beyond dispute It the court’s deci- underlying evidence and, in nature there are provisions penal being an attack on the suffi- Finally, sion. fore, strictly construed. Moore must be evidence, Hoxie need ciency of Laboon, Liddell, & Zivley, Hill Sapp, *13 to have have the issue below presented 1993, 291, (Tex.App. 293 S.W.2d — Austin v. it for review. See Strickland preserved denied); Oil Taylor Cotton Childs Coleman, 188, (Tex.App.— 824 S.W.2d 191 245, (Tex.App. Tyler, — writ) 1991, (holding no Dist.] Houston [1st n.r.e.). construing In the writ refd necessary for new trial is not that a motion here, initially we en provisions applicable suffi legal either the or factual attack § of the Texas Finance counter 305.001 underlying a non- ciency of the evidence it, legislature deigned Through the Code. finding).
jury for, “contracts one who penalize great interest that is charges, or receives Thus, argument Hoxie did not waive its by law. er the amount authorized” than obligation no debt absolute (Vernon 305.001(a) § this, Tex. Ann. Fin.Code Having determined we now existed. In other (emphasis supplied). the is accurate argument decide whether words, effort to assess there must be some and, so, on prior if its affect our decision. the trigger application of stat “interest” No Debt? County & Loan ute. Gonzales Sav. See indicated, court previously Freeman, As the trial Ass’n v. (Tex.1976)
granted Baker’s motion for a directed ver- (holding that the lender did not usury. his claim of This was dict fide commit commit since bona ques- court not by done before the submitted the lender was ment as demanded interest); Prop. of the same individual Sunday Canyon tion whether Owners (Tex. Annett, Agreement. How- breached Purchase Ass’n v. submitted, ever, (holding that App. pet.) when the latter issue was no — Amarillo so realty fee was not interest jury concluded that Baker had not. assessment usury). not constitute held, levying the fee did finding, jury practical so for all “in sought If the defendant that Baker owed Hoxie no debt. what purposes, terest,” cannot be violative then his actions Next, sup- it the existence of that §of 305.001. posed debt which caused Hoxie to demand Baker, So, to discern we now endeavor January from 1998 de- via letter, Luckily, “interest.” damages plus mand interest there- what constitutes write on a clean require if does not us to Simply put, on. Hoxie had not conclud- already addressed legislature Purchase slate for the ed that Baker breached the statute, “inter According to it have had no the matter. Agreement, then would use, for “compensation for seeking damages and interest. est” means basis for bearance, money.” or detention Additionally, recovery by while Hoxie de- Tex. 301.002(a)(4) (Vernon debt, § ques- of a pended upon the existence Ann. Fin.Code Moreover, utilizing Supp.2001). the same was and is tion remains whether “use, or detention forbearance claim for terms true Baker’s accompany did not not, money” legislature Hoxie asserted argued that it is while any modifying or condition with dispute, it To resolve this we words is. is, nothing about That it said language. dis- al principles reiterate various decision, rejected it “supposed,” “purported” “alleged” jury mitted to the use, is, money. proposition. forbearance or detention of That it held that Bak- which, And, not, agreement, are er had not breached the prohibited because did turn, reading qualifying such terms into meant that Baker owed no debt to Instead, if Baker no authority obligates Logically, the definition. Hoxie. owed Hoxie, us to construe the statute as defined then it cannot be said that Baker legislature, legis- actually any and as defined monies of detained Hoxie. lature, use, contemplates And, detained, the actual for- actually if no monies were money. bearance or detention of if sought then it cannot said that Hoxie use, there is no actual forbearance or de- January 15th compensation, through its money, tention of then there can be no letter, money. for the actual detention of And, if in- involved. there is no compensa- if Hoxie did not seek such *14 involved, terest then there can be no viola- tion, then it cannot be said that Hoxie said, § tion of 305.001. With this we now And, if sought interest from Baker. Hoxie dispute turn to the circumstances of the Baker, did not seek interest from then it before us. company cannot be said that the violated § any usury 305.001 or other law. original opin
As
in our
described
ion,
type
allegedly implicat
of interest
held,
sum,
Supreme
In
our
Court
request
compensa
ed here involved a
for
Serv.,
George
Carpet
A. Fuller
v.Co.
money. Again,
tion due to the detention of
Inc.,
(Tex.1992), that a
trial
erred
court
usury.5
Hoxie committed
MOTION FOR
ON SECOND
Baker’s motion
Accordingly, we overrule
REHEARING
rehearing, grant
part,
that of Hoxie
the second
Pending
the court is
before
modify
judgment
part.
do-
our
Baker,
rehearing
filed
Jim
motion for
so,
portions
we reverse those
Harvesting.
individually and d/b/a
judgment
awarding
trial court’s
only one
are asserted but
Several
issues
damages against
his claims of
comment.
It
involves
necessitates
2) denying
recovery upon
usury and
have or-
that we should not
proposition
Baker.
the account receivable due from
him to
interest on the amount
dered
further order that Hoxie recover from
We
Company under
Implement
due Hoxie
plus
Baker the sum of
$3137.70
This
so because
open account.
percent
year
the rate of
six
amount
he had tendered
thirty days after
the account receivable
*15
judgment
disagree.
day
became due to the
before
due. We
remaining portions
affirming
potentially subjects the lender to claims of
6.
permit
depending upon
judgment, we
the award
usury
the terms of the loan.
trial court's
hand,
attorney’s
for the reasons
agreement
buy
an
to
of
fees to stand
On the other
chat-
And,
original opinion.
even
coupled
promise
in our
tel from a vendor
with a
mentioned
week, month,
complaint regarding
year,
preserved his
for the chattel in a
or
had Hoxie
attorney’s
may
perceived
segregate
fees recov-
the like
not be
as a direct loan
the failure to
money merely
agreement
post-
were
of
but
as an
erable under statute from those which
not,
pone payment.
upon the
it cannot be denied that
its contention was founded
premise
recover fees
the latter transaction also creates a debtor
that Baker could not
/
defending against
relationship potentially subjecting
Hoxie’s
creditor
incurred while
contraci/declaratory
judgment
usury depending upon
creditor to claims of
breach
of
surrounding
developing
original opin-
subsequently
claim. The cases cited in our
ion,
person
City
Oil
say
circumstances.
i.e. First
Nat’l Bank v. Concord
1991,
Co.,
against
usury
(Tex.App.
Paso
whom a claim of
is levied must
Generally, tendering to one’s cred RAMIREZ, Appellant, Heriberto the amount owed bars the further itor accrual of interest. Hollis Co. J.M. Const. v. Co., v. Paul Durham S.W.2d Texas, Appellee. The STATE 1982, writ); (Tex.App. Corpus Christi no — Russey, see Churchill S.W.2d No. 07-00-0472-CR. writ) (Tex.App. Worth no — Fort Texas, Appeals Court (stating principal that the tender of both Amarillo. stopped the accrual of and accrued interest interest). However, tendering a further July 2001. not. J.M. Hollis part of the debt does v. Paul Durham Const. Co.
Here, Baker tendered 14 months open approximately account payable.
after the debt became due Fur
thermore, the amount of his cashier’s solely outstanding
check reflected It not include the interest
principal. did Hoxie was entitled to recover §
statute. 302.002 Tex. Fin.Code Ann.
(Vernon creditor Supp.2001) (permitting a obligor charge and receive from the percent per
legal interest at the rate of six *16 agreed
annum when a rate has not been Consequently, the
upon by parties). only partial payment
check encompassed debt, payment
of the was ineffective further accrual of interest.1 bar
Accordingly, we overrule Baker’s second rehearing.
motion for categorized, eo nomine of how the interest is 1. To the extent that Johnson-Walker Mov. & otherwise, Storage, Inc. v. Lane Container it remains a sum to which (Tex.Civ.App.Eastland S.W.2d 500 debtor must and which the creditor is entitled n.r.e.) suggests only ref d that the debtor need So, refusing pay the creditor. if demanded due, principal we do find it tender the legitimately cannot accrued interest First, controlling reasons. for several logically full be considered Johnson, accepted the creditor the tender debt, contemplated by Hollis and J.M. here, principal; did not because it Churchill. Second, irrespective failed to include interest.