La Sara Grain Co. v. First National Bank of Mercedes

COMPANY, LA et SARA GRAIN

al., Petitioners,

FIRST NATIONAL BANK OF MER-

CEDES, Texas, Respondent.

No. C-1784.

Supreme of Texas. Court

May 1984.

Rehearing July Denied

card; however, during its circulation officers, among the four the card was al- require only tered to one rather spring than two. From the of 1975 York, McAllen, Adams, E. Gra- William 1978, the fall of bank honored checks ham, Jenkins, Hamby, Graham Ferriel C. & bearing drawn on La Sara’s account Jr., Harlingen, Hamby, petitioners. for officer, ordinarily signature of one Looney, Sawyer, Kelly, Alexander & Jones, charge the officer in of La Sara’s Alexander, Ralph Edinburg, respon- L. period, day-to-day During affairs. dent. monthly Sara received statements its account with bank. SPEARS, Justice. In the fall of La Sara fired Jones. liability for This action concerns a bank’s subsequently An audit revealed Jones honoring checks with the re- fewer than $300,000. July In had embezzled over of quired signatures, failing number of to fol- against La Sara filed suit Jones to endorsement, other low a restrictive and recover the amounts embezzled. wrongful alleged deceptive acts trade and join petition thereafter to amended its as practices employee which allowed an to em- Fidelity Deposit Company defendants & of employer. bezzle funds from his After a Maryland the and First National Bank of trial, nonjury the rendered district court trial, Mercedes. Prior La Sara settled to

judgment against $911,829.66; the bank for against Fidelity. claims and its Jones figure damages, that included addi- actual restitution; agreed Fidelity Jones make damages under Deceptive tional the Trade $90,000 to La claim on a (DTPA), paid settle Sara’s interest, Act Practices and attor- and fidelity bond then intervened La ney’s fees. The court of reversed bank, claiming the suit judgment trial court and ren- Sara’s plaintiff judgment right subrogation.1 dered that La Sara take nothing. 646 S.W.2d 246. affirm that We § 4406(d) Application 7. TEX. UCC portion judgment of the court of complaint at trial primary La Sara’s was appeals that removed the award of DTPA depository had that the bank breached damages. judg- additional We reverse the by paying signed only by checks ment of the court of in all other signature Jones without second re- regards, and affirm judg- the trial court quired by corporate resolution. The damages. ment for actual We remand the liability. bank denied The basis cause for the consideration of a factual sent defense was that it had La bank’s insufficiency point and recalculation for the monthly accompanied by statements prejudgment interest. paid, but all checks failed Company, corporation, La Sara Grain report to examine the statements and manager as general hired Harold Jones and signature one-year within the unauthorized checking opened a account with First Na- 4.406(d). period prescribed by section Tex. tional Bank of Mercedes in 1975. La Sara § 4.406(d) (Tex. Bus. & Com.Code Ann. a corporate filed the bank resolution with (Vernon UCC) 1968). naming corporation the four officers of places upon duty 4.406 the de- signatories providing Section as authorized and promptly his positor to examine bank state- any sign two of them checks for could report discovery the offi- ment and corporation. Jones was one of any any signature or named in this The bank “unauthorized al- cers resolution. § 4.406(a). depositor provided signature Id. If the also Sara with teration.” pro- sepa- Although Fidelity 4.406 La Sara and have filed 2. Tex.Bus. & Com.Code Ann. section 1. argu- applications for error their rate writ of vides: the same and be attrib- ments are will hereafter only La Sara. uted that, to comply duty, signatures fails with the bank is tends because no were protected long from loss so as it has forged signature exer- and the au- Jones was ordinary paid cised care the item in thorized, 4.406(d) protect section does not § (c). good 4.406(b), faith. If a deposi- Id. do agree. bank. We not report signa- tor does an unauthorized not signature in An unauthorized year ture within from the one time the just forgery. cludes more than Pine are statement and items made available to Kesterson, 257 National Bank v. Bluff him, the care or lack thereof be- Ark. An § irrelevant, 4.406(d); at comes id. signature “one defined as point, claim is that the customer’s actual, implied made apparent without paid item not faith. Id. authority forgery”, and includes a Tex.Bus. § 4.406(d). § 1.201(43) (Tex.UCC) & Ann. Com.Code A. La Checks Sara’s (Vernon 1968), signature includes interpreted the term courts below agent made by an authori excess his signature” differently “unauthorized § ty. 3.404, Id. comment La Sara’s disagreed application on therefore argument apply that section 4.406 does not rejected The trial section 4.406. signature focuses on Jones’s rather than It bank’s defense section 4.406. Sara, that of La the bank’s customer. La that, found because Jones’s signature required joint signa corpo- one of four authorized in La Sara’s Although tures two officers. Jones was resolution, paid rate checks were sign, signa one of four authorized his signature. an The “unauthorized” court of ture alone was not La Sara’s. the When hand, appeals, on the other concluded that paid bearing only bank the one of checks rely bank on the was entitled to section signatures, paid it an required two on 4.406, saying a “when bank honors check signature meaning within the unauthorized required or on less that the withdrawal 4.406(d). of section signatures, signature number of the anis signature meaning unauthorized the within argues also that the checks La Sara 4.406(d).” 646 S.W.2d at so, paid in faith. If the good were not protection section bank cannot claim the The is the initial issue whether checks apply 4.406. time of that section paid on The limits drawn La Sara’s account were on Id., paid good in signatures. unauthorized La Sara con- to items faith. Duty by good after first item 4.406. Customer’s to Discover and Re- faith the bank the § Signature port Unauthorized or Alteration to the customer and statement was available (a) a bank sends its customer state- exceeding When period not four- for a reasonable accompanied by paid ment of items account days re- and before the bank teen calendar support of faith in the debit entries or any notification from the customer ceives pursuant and holds statement items to a signature or such unauthorized alteration. request or or instruction its customer other- (c) (b) preclusion does under Subsection The wise in reasonable manner makes state- lack of apply not if the customer establishes customer, ment and available to the items paying part ordinary of the bank in care on the customer must exercise reasonable care and promptness item(s). and to examine the statement items (d) regard or care of to care lack of Without signature any his unauthorized or discover who the bank customer either the customer or notify the alteration an item and must bank on year from the time the does within one discovery promptly after thereof. and items are made available statement (b) If the bank establishes that customer (Subsection (a)) report discover and customer respect comply to an failed with item with signature any on or alteration his unauthorized by imposed the duties on the customer Subsec- item or does not within the face or back (a) precluded customer is from assert- tion ing report years discover and from that time three the bank precluded any indorsement unauthorized (1) any signature or his unauthorized altera- asserting against bank such unauthor- from on if the also establishes tion the item bank signature or altera- ized or indorsement such by it a loss that ure; suffered reason such‘fail- tion. and (2) signature by an or alteration unauthorized wrongdoer any paid other item the same claims § other Moreover, obligation of B. La Sara’s 4.406(a). an performance imposed on the good faith is payment addition to the In duty the Code. every within complains that checks, La Sara of its § as “hon faith is defined 1.203. Good Id. endorse- follow a restrictive failed to bank esty in the conduct or transaction in fact orally mon- ment, transfer Jones to allowed § 1.201(19). The test for Id. concerned.” account, paid Jones ey and from its party is the actual belief of good faith name. made in La Sara’s proceeds of loans not the reasonableness question, separate concern four complaints These Bank, 469 First Riley v. State belief. transactions: 1971, (Tex.Civ.App. 15, 1977, Holland — Amarillo July 1. On n.r.e.). writ ref’d to La Sara payable made Farms check Only” Deposit “For endorsed that the bank contends $40,000 deposited to Jones’s split with alone was knew Jones’s actually $22,600 deposited personal account anyway, insufficient, paid the checks yet account. to La Sara’s good faith. not exercise and therefore did 1977, the bank trans- May 2. On finding agreed, The trial $14,000 account to from La Sara’s ferred knowledge the unau bank had actual oral personal account at Jones’s Jones’s change signature card from thorized request. requirement. single-signature a dual to a $19,506 loan 3. On June however, held that appeals, The court of request. at Jones’s made to find support there was no evidence used Jones of the loan were Proceeds trial, showed that ing. At the evidence payable to check purchase a cashier’s resolution, corporate which Brothers. McCrabb files; corpo required, was $35,000 22, 1977, loan July 4. On signa specified that two rate resolution request. to La Sara at Jones’s was made necessary. president tures were $12,000 de- split were with proceeds any would know of testified that personal account posited to Jones’s bank, in thing that was the files. La account. $23,000 deposited to Sara’s by knowledge of corporation, is bound expressly appeals did not of The court knowledge agents if that came one of its implicitly held claims but address these employ agent’s him in the course right 4.406(d) La Sara’s barred that section Pippen, City ment. Fort v. Worth of argues that section recovery. (Tex.1969); Wellington Oil Co. from lia- 4.406(d) not shield bank does 201, 150 136 Tex. Maffi, Delaware of S.W.2d 60 agree. bility. We does not con The bank Bank, was filed corporate resolution tend that the First National In Fultz v. normal course business. (Tex.1965), outside the held that we 388 S.W.2d Moreover, paid pursuant the checks were contract when depository its breached bank card, and signature obviously depositor’s altered restrictive to an to follow its it failed personal Al endorsement, Deposit Only.” deposited into Jones’s “For many were that, adoption found though predates The trial court account. Fultz Code, the rule re facts, that Jones’s the bank knew Commercial these Uniform Code, sig a de unchanged. the authorized Under signature was not mains alone an instru sup paying positary is evidence bank is liable of La Sara. There nature in accordance with than finding. La Sara is entitled ment other porting that Tex. sig restrictive endorsement. terms of a paid checks on Jones’s recover for the §§ 3.206(c), (d), Ann. alone, the funds Bus. & Com.Code less a credit for nature 1968). (Vernon (d) (Tex.UCC) 3.419(c), La Sara benefited.3 from which figures were the trial court’s its not contended calculation in trial court 3. The made damages. has inaccurate. The bank judgment for actual signed only warranty paid it checks when The bank also breached its $14,000 therefore liable for treble transferring by Jones and is by from La Sara’s ac 17.50(a)(2). In addi- damages under section request. oral When a count at Jones’s cheeks, bank, contends that tion to the deposits customer funds with a splitting pay- items practice those the bank’s impliedly agrees to disburse the accounts of deposi able to La Sara between only funds in accordance with Sara, making loans in La and La Mesquite instructions. Bank v. Jones tor’s State authorization, proper Co., name without Investment 488 S.W.2d Sara’s Professional orally (Tex.1973); allowing and of Jones to withdraw Tex.Bus. & Com.Code §§ (Ver 3.404(a), 4.401(a) (Tex.UCC) money from La Sara’s account violated Ann. “(f)alse, mis- prohibition against 1968). general La Sara did not authorize the non leading deceptive practices or or acts funds from La Sara’s bank to disburse con- any trade or commerce” request of Jones. Sec conduct at the oral account §§ 17.46(a), in the 1977 act. Id. 4.406(d) to the tained provides no defense tion 17.50(a)(1). agreed. The trial court no unauthorized bank because $14,000 withdrawal. was used to obtain judg appeals reversed the judg ment of the trial court and rendered not assert section Finally, the bank does nothing its in dis- La Sara take on 4.406(d) to the loans ment that as a defense Instead, Jones The court of found argues the bank DTPA claim. pute. false, misleading, decep in La authority money of a had the borrow no evidence estopped sections practice name and that La Sara act or violation of Sara’s tive 17.46(a) 17.50(a)(1). the use and The court did gained extent it has shows, im The record an agree benefit of these loans. breached however, paying not have the use La Sara’s checks plied warranty that La Sara did that La signature, funds borrowed its but held and benefit all one of war that the first action for breach name. La Sara established cause of checking purchase a cash- by ranty used Jones to accrued in 1975 when loan was party, and The court of payable opened. to a third first ier’s check account was de- was not portion of the second loan was that La Sara that a reasoned personal ac- the 1975 version posited directly into Jones’s then because consumer “work, labor, as defined services count. the DTPA use for or leased for purchased or services La Sara is entitled to We hold that or business use.” commercial other than $40,000 for the judgment Bank v. State & Merchants Farmers See failure to follow loss caused the bank’s 1981). (Tex. Ferguson, endorsement, for the La Sara’s restrictive § 17.50(a)(2)—Breach DTPA A. $14,000 account withdrawal from La Sara’s Warranty authorization and for proper made without de $31,506 representing the sum the bank 17.50(a)(2) provides that Section charged La as but Sara livered to Jones if he has an action may maintain consumer from two loans. proceeds of by the breach adversely affected been warranty. A con implied or express an DTPA Claim II. La Sara’s “individual, partner as an is defined sumer entity corporation, governmental or ship has or that the bank La also contends Sara by purchase or lease acquires or Practices— who seeks Deceptive Trade violated Tex.Bus. & Com. goods or services.” any Tex.Bus. & Protection Act. Consumer § (Vernon 17.45(4) Supp.1984). §§ (Vernon Ann. Code 17.41-63. Ann. Com.Code in connec by a bank provided The services part as of Supp.1984). La claims that Sara are checking account within impliedly tion with depository contract & Mer DTPA. Farmer’s scope of the requirement dual-signature warranted Ferguson, 605 Bank v. resolution. chants State adopted corporate in La Sara’s 320, (Tex.Civ.App.—FortWorth 324 this S.W.2d alleges that the bank breached

565 609, 164 Sons, 139 Tex. Capps, Inc. v. 1980), grounds, 617 on other S.W.2d aff'd (1942). (Tex. 1981). S.W.2d 828 918 The court of erred implied statutory source of One applying the 1975 act to all of Sara’s is the Uniform Commercial warranties applicable checks. The version of the See, e.g., & Tex.Bus. Com.Code Code. by decep the date the §§ DTPA determined (Vernon 2.314, (Tex.UCC) Ann. 2.315 practice or occurs. Lit tive act Woods v. 1968). imposes a num Although UCC 662, tleton, (Tex.1977). If 666 S.W.2d collec of on customers and ber warranties by honoring warranty the bank breached process, id. ting payment see banks an signa unauthorized § La Sara’s checks warranty 4.207, of is no mention there ture, cause of action accrued La Sara's customer. by a bank in favor its payor of the DTPA force at version in section All created of the warranties paid. were (for time the checks item itself 4.207 concern either to those checks apply therefore Act would materially instance, it that has not been 23, 1977, May the effective date paid after it relationship to altered) or holder’s phrase which deleted of the amendment (that title, Each example). he has commercial or “for other than business present goes to a fact. of these warranties from definition of Be use” services. hand, section 4.207 On other when qualifies un cause La as a consumer accept speaks promise the return act, der the 1977 we must determine wheth item, “engage speaks it of an dishonored implied warranty er the bank an breached Generally, courts are to construe ment.” paying contrary to La by checks rele as to with other statutes so harmonize instructions. laws, possible. if vant State v. Standard 313, Co., 130 Tex. Oil The DTPA does not define the implied hold the bank’s We Furthermore, “warranty.”4 term the act an promise pay it will not checks on warranties; any does not create therefore warranty, signature is not a unauthorized any warranty indepen must be established implied of the contract. only an term but dently Parks, Cheney of the act. v. is not a violation A mere breach 640, (Tex.Civ.App. S.W.2d — Houston Development, Inc. of the DTPA. Ashford n.r.e.); writ ref’d D. [1st Dist.] Corp., 661 v. Real Estate Services USLife Maxwell, Bragg, Longley, P. & J. Texas (Tex.1983). 933, 935 S.W.2d § (2d Litigation 1983). ed. Consumer 5.01 express imposed by While warranties are §§ 17.50(a)(1)— 1746(a) & B. DTPA contract, agreement parties Practice Deceptive Trade Dallas, Inc., Rinehart v. Sonitrol next contends (Tex.Civ.App 662-3 — Dallas n.r.e.); an paying its checks on practice & writ ref’d Tex.Bus. Com. bank’s § (Tex.UCC) (Vernon the 1977 violated Code Ann. 2.313 “(f)alse, 1968), prohibition implied general are act’s warranties created practices or misleading deceptive acts operation grounded law and are more in Morton, any trade or commerce.” than tort in contract. Humber conduct §§ 17.46(a), (Tex.1968). Ann. 17.- Implied & Com.Code 426 S.W.2d 554 war Tex.Bus. however, We, statute, (Vernon 50(a)(1) Supp.1984). primarily from ranties are derived find no evidence although origin at like some have their common the of La Sara’s Bennett, payment bank’s 568 that the law. See Kamarath v. decep- a (Tex.1978); only one was E. Decker checks on S.W.2d 658 Jacob & that, Code, say warranty complained is to "To the word's mean- 4. This is unfortunate because ambiguous. legal ing say nothing S. effect." K. at law is See 5 definite as to common WILLISTON, LLEWELLYN, THE LAW OF A TREATISE ON ON AND MATERIALS CASES (3d 1961). Karl 673 ed. Llewel- § CONTRACTS OF SALES 211 THE LAW lyn, the Commercial the father of Uniform 566 practice. fully

tive trade La Sara in- not a therefore had claim was consumer and no practice; person the the formed of each month under DTPA. We said money the La bank returned Sara’s cancelled who not a seeks to borrow lending money a statement of checks with its account. consumer the because open question it an Before was involves neither a nor a service. whether the failure to disclose material Riverside, holding in Since the have we 17.46(a). facts was a violation Rob- See facts, empha twice the case to its limited Chrysler-Plymouth, inson Preston 633 v. sizing sought only the that Lewis extension (Tex.1982) (failure S.W.2d 500 to disclose Riverside, credit and nothing from more. an material fact not deceptive unknown Knight In v. International Harvester case, however, trade practice). This does (Tex. Corp., Credit disclose; not a failure to the even involve 1982), subject we held a lender to a DTPA notice of sent La Sara all transac- claim because the lender and seller “were Although may tions. the bank’s conduct in the inextricably so intertwined transac UCC, have faith under it been bad equally responsible tion as to be for the false, misleading, deceptive. was not determining In conduct of the sale.” consumer, borrower was we con checks, In addition to the the trial purpose sidered the borrower’s for $14,000 oral court found the withdrawal distinguished loan. We Riverside because and to de the two loans be sought only the borrower there the exten ceptive practices. argues trade credit, “Knight’s objective sion of whereas failing has erred court of purchase was the of a transaction these The findings. address and affirm withdrawal, dump at 389. In truck.” 627 S.W.2d Flen first and the oral how loan Co., Trust Longview niken Bank & ever, provide no basis for a DTPA claim (Tex.1983), held pur S.W.2d we during period because both occurred chaser of a home could sue governed act when did by the 1975 La Sara the DTPA an unconscionable course of qualify as a consumer of services. foreclosing partially his conduct in on con Only originated the second loan after agreed structed home. 1977 amendment to the DTPA which ex financing provide to the builder the interim panded include the definition services to assignment the purchas in return for an commercial business and uses.5 lien er’s note mechanic’s contract. and deceptive maintains that this loan was a transaction Again we from 17.46(a) viewed practice trade under sections “the purchasers’ perspective and concluded 17.50(a)(1) it was made without because money; did not seek borrow proper proceeds Flennikens authorization and were they acquire a house.” 661 split sought accounts of between the at S.W.2d 708. Jones. might Knight law that and Flen-

We first considered whether a loan rule of restricted in niken announced is not to cases provide the basis for a DTPA claim In Lewis, involving institutions. Bank v. financial Camer- Riverside National Co., (Tex.1980). In on v. Terrell and S.W.2d 169 Riverside Garrett (Tex.1981) buyer held that of a plaintiff sought to the loan we Lewis refinance bring a DTPA action through Bank. house could automobile Riverside his purchased he had noth- loan had realtor from whom advised Lewis Riverside Cameron, realtor, ing. In who was subsequently refused approved, been but represented buyer money. agent, his re seller’s After car was lend the sold, question larger than that the house in possessed Lewis sued Riverside actually buyer held that the it was. We alleging Bank that the Bank’s conduct vio pur- because held was was DTPA consumer lated the DTPA. We that Lewis ment, deceptive be a trade Although split deposit of it not found to the Holland practice by trial court. after the amend- the Farms check occurred 1977 (1923), house; therefore, is sufficient the could chase of he S.W. [i]t provides bring against anyone DTPA contract the conditions action .... if the liability fixes upon depends transaction who violated the act. which can by payable the measure which sum be Flenniken, Knight Under certainty, in ascertained with reasonable may if subject a lender be to a DTPA claim light attending the the circumstances.” “objective” purchase the the borrower’s is case, at 195. In this the Id. 249 S.W. thereby quali or lease of or service provides the conditions depository contract fying the borrower as a consumer. Obvi liability upon depends payment of which — ously, we cannot determine La Sara’s ob according except funds to depositor’s loan, concerning because La jective this instructions, by measure his fixes a complaint it did not authorize Sara’s is that payable the sum can be ascer- which evidence, transaction. There is no how paid. Hence, amount this case tained—the ever, to the represented that Jones bank interest prejudgment falls stat- within purchase or lease that the loan was ute. services, thought goods or that bank purpose, was for that or that the the loan Article 5069-1.03 was amended one of which La loan was a series with cause of after Sara’s action goods fact, or services. In Sara obtained arose filed suit. The but before is no that La there evidence Sara ever change provide was to that interest would money goods from the bank for borrowed begin thirty running days after the sum or services. Because the loan involves however, case, In this became due. credit, the extension of La Sara has not trial each court awarded interest on check shown itself be a consumer and there It from date that it cashed. has was has no DTPA fore claim. long the rule that when the been Texas legislature creating repeals statute Interest/Attorney’s III. Fees repeal is remedy, that effective immediate trial, La judg- At obtained a also ly. v. Knight International Harvester attorney’s ment for interest and fees. In Corp., 627 at 384. It fol Credit S.W.2d appeals, points the court of bank legislature lows if the amends reme that complaining error The of both. court of one, change will dy as this be such appeals points did not light reach those Hence, retroactively. effective trial holding of its that La Sara could not recov- calculating court erred in interest from the any damages. points er Insofar as those date check cashed or that each was loan questions jurisdiction, raised our we within made, thirty days than thereafter. rather address them judg- now to determine what Therefore, we remand the cause to trial appeals ment the court of should have ren- accordingly. court to recalculate interest Foods, Inc., dered. Knutson v. Morton (Tex.1980). argued The also The bank asserted that La court of La Sara arising attorney’s claim basis was not one from a entitled to fees. The complaint evidentiary. ascertaining pay contract At “written sum trial, able,” meaning attorney testify had a prejudg within La Sara local statute, interest what be a fee for han ment Tex.Rev.Civ.Stat. would reasonable (Vernon dling We this Supp.1984). Ann. art. 5069-1.03 the case. hold that testimo bank, Therefore, according ny supporting evidence the trial was some attorney’s prejudgment not entitled interest. court’s award of fees. (Tex.1979). argued also to the court of 116-117 factually out a there was insufficient evidence to requirement set support point trial That payable always liberally has been con court’s award. sum jurisdiction. said in of error is not within our strued court. As was Feder Kriton, Therefore, Tex. must the cause to Insurance we remand al Co. Life court of appeals Biggs to consider it. The separately briefed. references to Co., v. United States Fire Insurance “undisputed the record state that the evi (Tex.1981). 5.W.2d 624 dence “it must shows” or be clear” or the briefing type legal, like. of This refers to appeals affirm We the court of in revers- factual, insufficiency. Watts, not Holley v. ing damages the award of additional under (Tex.1982). error S.W.2d 694 Points of judgment DTPA. reverse the We separately not are briefed waived. Bur court of affirm appeals and the trial 25, gess Sylvester, 143 Tex. 182 S.W.2d judgment damages. court’s for actual We that point We hold this of error remand the the court of appeals cause to to does not to sufficiency consider the entitle the bank remand. See factual of La attorney’s Lang Sara’s evidence on fees. The Great American Insurance Co. v. appeals, deau, considering (Tex.1964). court after that 379 S.W.2d point, is to to remand the cause the trial rehearing The motions for are overruled. to prejudgment court recalculate interest in accordance with art. 5069-1.03 as amend- J., BARROW, dissents. ed.6 Justice, BARROW, dissenting. ON MOTION FOR REHEARING respectfully part. I I dissent would

BARROW, Justice. remand cause to the this court argues that it is enti bank in- consideration of bank’s factual have tled to the cause remanded to point. By point, sufficiency for consideration of a fac complains finding that it had actual insufficiency point tual of error. The court change knowledge of appeals did not rule on contention that signature card. factually there was insufficient evidence This not have jurisdiction court does support finding the trial court’s that the sufficiency points that attack the factual knowledge actual the unau finding. jury the evidence to sustain change thorized card. Co., Sears, Hurst v. Roebuck & point ap of error in the court of (Tex.1983); Tex.Rev.Civ.Stat.Ann. however, peals, separate that 47 asserted points majority As the arts. 1821. fact, findings including the one at issue out, point urged one here, jury support there was no evidence contrary undisputed testimony are to the finding, in the alternative the evidence cause, there is no evidence support that factually insufficient to was alternative, them, or, in the support are is finding. presentation manner of This evidence, upon are based insufficient 418(d), Tex.R. Rule expressly authorized contrary great overwhelming Civ.P., January 1, Fur- 1981. amended as evidence in preponderance of the this argument fully thermore, the bank’s case. point because presented under “sufficiently not point of error does Such argu- legal references and same record to the nature of the court’s attention direct no and the evidence support ments both regarding complaint each such made insufficiency contentions. factual 418(d). finding.” Nor are Tex.R.Civ.P. ... agree is “some evidence” I there con- “separate references” made record finding, not but we do support jury Moreover, cerning finding. Id. each the factual jurisdiction to consider have legal point, a distinct sufficiency factual attack, insufficiency contention. theory from a no evidence court, According the bank. judgment of the trial judgment Fidelity La Sara’s to 20% of entitled

Case Details

Case Name: La Sara Grain Co. v. First National Bank of Mercedes

Court Name: Texas Supreme Court

Date Published: May 23, 1984

Citation: 673 S.W.2d 558

Docket Number: C-1784

Court Abbreviation: Tex.