*1 Hendrick, and Roy Catlett W. Debra Jo Houston, appellant-relator. A. and Gene SHUMWAY Sandra Shumway, Appellants, Ann Leyh Baker Patricia Mary Lou and Parker, Brown, Hous Hancock, Sharman & ton’ aPPellee- CREDITCORP, Appellee. HORIZON No. 01-88-00028-CV. EVANS, C.J., and COHEN Before WARREN, JJ. and Texas, Appeals Court of (1st Dist.). Houston ON REHEARING OPINION
March 1989. COHEN, Justice. Rehearing April Denied prior opinion dated December
Our withdrawn, following opin- and the is rehear- motion for ion is substituted. ing granted. summary judg- appeal from a
This is an note, awarding ap- ment on a $37,777.77, plus and attor- pellee interest ney’s fees. alleged appellants had de-
Appellee on a by was secured faulted summary sailing As interest in a vessel. evidence, cop- appellant attached security agreement, of the note and ies agent, Roger of its Plosa. and an affidavit by provides upon default appellee may accelerate non-payment, balance, inter- unpaid plus accrued entire est, prior notice or demand. without appellants remain to, despite any damage or destruction liable in his of, Mr. Plosa testified the vessel. (1) appel- July that: affidavit note payable lants executed $84,454.68, grant- amount for a total sailing security in a appellee a interest ed vessel; (2) dam- that when the vessel was note; appellants paying ceased aged, $37,- (3) outstanding balance interest 777.77, including principal and 27,1987; (4) that through February earned default; appel- the note lee, rights under in accordance its had accelerated the note. agreement, stating that filed Appellants affidavits a total loss. the vessel was error, appellants point In their sole in- “appellee’s pleadings were contend that support the as a matter of law to sufficient motion granting court’s trial *2 for summary judgment for default under (Tex.App. 1984, no [1st Dist.] — Houston the terms of the promissory writ); Appel- note.” Bank, Slivka v. Swiss Ave. 653 S.W. argue lants the summary judgment 2d 939 (Tex.App. 1983, writ); no — Dallas evidence legally was insufficient Valley Patterson, because: 867, v. 614 S.W.2d 871-72 ( proof there was no of demand or notice Tex.Civ.App. Corpus 1981, Christi no — acceleration, legal other than writ); conclu- Phillips Whiteside, v. 426 S.W.2d sion by an witness;1 interested (2) 350, and 351-52 (Tex.Civ.App. [14th — Houston there proof was no support 1968, writ). the amount no Dist.] of damages due and owing. Appellants Appellants next contend that there also contend that there was a fact issue is no support $37,777.77 evidence to raised about they whether were liable on damages. award of They argue appel- the note. lee’s summary judgment proof damages A summary judgment proper is only ambiguous is because there is no break when a movant establishes that there is no damages. down of the provided genuine issue of material fact and that he that the total amount due under the note entitled to as a period matter of law. $84,454.68, for a of 180 months was Swilley Hughes, 64, (Tex. v. 488 S.W.2d paid 67 to be as follows: the 12 monthly first 1972); Tex.R.Civ.P. 166a. In a summary installments in each; the amount of $397.55 judgment proceeding, the proof burden of next 167 monthly installments in the movant, is on the $474.31; and all amount of doubts as to the and the final monthly existence genuine of a installment issue of for the remaining unpaid fact are bal ance, against resolved him. estimated to be Roskey v. Texas $474.31. note Comm’n, specified Health Facilities 639 estimated S.W.2d interest 302, (Tex.1982) $49,283.68, curiam). 303 would be (per Once calculated at an annu al percentage during movant has rate of established a to a the first summa 10.9% months, 12 ry judgment, during and at the burden the re shifts to the non- 14.25% movant, mainder of the term. Mr. Plosa present who must testified then to the trial his outstanding affidavit that the any court balance preclude issues that would sum $37,777.77, including principal mary and in judgment. City Houston v. Clear 27, through February terest earned 1987. Auth., 671, Creek Basin 589 S.W.2d 678 (Tex.1979). This evidence was sufficient as a matter prove damages, law to see Western Fed Appellants argue first that there is eral Sav. Corp. & Loan v. Atkinson Fin. demand, no evidence to show notice of in Corp., 456, (Tex.App. 747 S.W.2d 463 accelerate, tent — Fort and notice of acceler 1988, writ), Worth appellants no and did ation, other than Mr. Plosa’s statement prior not assert payments offsets or as an appellee “has rights executed its affirmative defense. See Southwestern accordance agreement written Larue, Fire Casualty v. 367 Co. accelerate the promissory note and declare 162, (Tex.1963); Tex.R.Civ.P. 93. remaining all payments due owing.” and However, promissory expressly Lastly, reject appellants’ we con upon “may tention that a fact issue was raised about require unpaid that the entire balance of company whether the insurance was liable plus the Amount of Loan accrued interest Appellants plead the note. did not charges paid late at once without verify by affidavit that there de prior (Emphasis notice or demand.” parties, add fect of they deny nor did execution ed.) Language express 93(4). to this effect is an of the note. Tex.R.Civ.P. In an waiver of demand and by notice of acceler action a holder of a requirements. ation against maker, Real See Estate Ex where execution Bacci, change, 440, denied, Inc. v. 676 S.W.2d 441 note properly has not been the in- Appellants object did not in the trial court that ble. conclusory Plosa's statements were inadmissi- 276, Corp. 157 Tex. Hughes, makes a Fin. v. of the note in Indus. troduction evidence (1957). 302 S.W.2d prima facie case the holder. Clark Dedina, (Tex.App.— opinion majority refers to four cases w.o.j.); Houston dism’d Dist.] [1st holding provisions, that waiver somewhat Inc., Distrib., Hagar v. Texas here, the one constituted ef- similar to (Tex.Civ.App. Tyler writ of the holder’s in- — fective waiver n.r.e.). summary Appellants’ only ref’d opinion, my tent *3 issue of judgment evidence went to the distinguishable from cases is each of those destroyed. totally vessel was whether the in this case. the circumstances however, appel provided, Bacci, Inc. v. Exchange In Real Estate liable if were dam lants remained the boat 440, (Tex.App. 441 676 S.W.2d — Houston aged destroyed. or 1984, writ), provided no the note [1st Dist.] point of is overruled. Appellants’ error payment, in in the event of a default right the “without optional holder had the is affirmed. judgment The maturity. notice” demand or to accelerate maker This Court held that the had Id. Justice, EVANS, dissenting. Chief right receive expressly waived the to notice holding the disagree majority be- holder’s intent to accelerate. The of the provision in my opinion, the cause in waiver in provision Exchange Real Estate waiver law, not, as the does a matter note provision is different from the note Inc. right to a waiver the maker’s constitute case, the waiver involved here. the holder’s intent to accelerate notice of clearly to the hold provision was referrable maturity. give of his intent to obligation er’s to notice op an promissory note When a are express terms not accelerate. Such event of right to accelerate in the tional in contained the instant note. default, types of must ordinari three Bank, 653 S.W. v. Swiss Avenue Slivka First, ly the must make given. holder 1983, writ), (Tex.App. no 2d 939 — Dallas presentment payment. demand after a appeal from a full was an Ass’n, Ogden 640 S.W.2d v. Gibralter Sav. simply merits. The court held on the trial (Tex.1982); 232 Allen Sales & Servicecen note, autho provisions of a which that the ter, 863, 866 Ryan, v. 525 Inc. S.W.2d maturity optional acceleration rized Second, (Tex.1975). give must the holder demand, and no presentment, “without maturity. Og to notice of intent accelerate tice,” that the constituted “some” evidence Third, den, the at 233-34. of intent to accelerate. maker waived notice give note has must notice that the holder Slivka, provision at 941. waiver Id. actually been accelerated. Id. at Exchange, provision Estate as the Real holder’s obli prerequisites clearly to the exercise to the All three referrable was per give must be intent to accelerate. optional gation an acceleration clause to notice of Ogden, expressly unless waived. formed 867, Patterson, 614 S.W.2d Valley v. 233-34; 640 at v. Villa S.W.2d Baldazo (Tex.Civ.App. Corpus Christi 871-72 — Oldsmobile, Inc., (Tex.App. 695 815 S.W.2d writ), from trial appeal was an the no 1985, writ). no —Amarillo tempo for a application denial of court’s sale. injunction to restrain a trustee’s power rary acceleration exercise of the applicants by the harsh claim asserted provided in a note is a One properly not holder of the note had scrutiny. that deserves close remedy in Valley The court Inv., v. Master Bilt accelerated Inc. Dhanani Second because the (Tex.App. waiver was effective Inc., held the Homes, 223 “presentment Thus, writ). expressly the had waived no maker —Fort Worth or payment, no demand for consistently payment, held for Supreme Court Texas has the maturi clear and tice intention clauses must be that acceleration (emphasis note....” Id. at Ramo, ty of the English, v. unequivocal. See Inc. in added). Again provision (Tex.1973); waiver Motor clearly case was referrable to the maker very holder’s waived right his valuable obligation give notice of intent to accel- receive notice of the holder’s intent to ac- erate. celerate maturity. The fourth cited by case the majority A containing note provision waiver
opinion Whiteside, is Phillips v. 426 S.W. quite similar to that involved here was be 2d (Tex.Civ.App. 351-52 — Houston fore the Parker, court in Bodiford 1968, writ). case, no In that [14th Dist.] S.W.2d 338 (Tex.App Worth — Fort plaintiff sought to recover title to real writ). There, no stated, here, as estate, which acquired the defendant had that in event of maker’s under a deed of trust foreclosure sale. the holder optional right had an to acceler Among assertions, other plaintiff ate maturity “without demand or notice of claimed that the foreclosure sale was void character_” Id. at 339. The Bodi- because there no evidence court provi held that while the ford given holder of the note had notice of in gave sion optional holder the *4 tent maturity. In rejecting notice,” accelerate or “without demand the contention, the court noted that the provision did not express constitute an right holder had the to maturity accelerate right waiver of the to maker’s have notice maker, “without demand or notice” to the of the holder’s to intent accelerate. Id. provision, and held coupled that such requirement give that the holder the provision the in the trust instrument creat maker notice of the holder’s intent to accel- ing a presumption regularity, of alleviated erate is extremely valuable because it as- the need for evidence that the holder had sures the opportunity maker of an to cure given the maker notice of his intent to the default before the holder exercises the maturity. accelerate Id. harsh remedy of Ogden, acceleration. See Here, provision clearly does not 234; Bodiford, S.W.2d at reflect prior whether the words “without at right especially 339. This important notice” “prior refer to notice” of a provision to the maker when the default in or “prior whether such words refer to no- optional the note allows acceleration of ma- tice” of the intent holder’s to accelerate. turity for differing kinds of defaults. Although might argued par- it that the case, provision this the default sets provision ties intended this waiver to be a forth 12 in ways different which a default obligation give waiver of the holder’s to occur, may accelerate, any may one which of consti- language notice of intent to ground accelerating tute a maturity.1 require of the not instrument does such an (for example, Some of these interpretation. equally “defaults” An in- reasonable insignificant terpretation in value of the is that maker intended decrease collat- to eral), might “prior” waive of the default never be known to the maker notice or make “prior” Thus, in the payment. giving demand for in absence of notice. The my some opinion, provision provides of notice of accelerate waiver does not intent to “clearly unequivocally” “meaningful show opportunity maker with a Vessel; (8) 1. The maker will be in default lien on the someone other than or you puts enough my if: a lien on income or my my ability property other to interfere with (1) due; any payment I don’t make when or Note; (9) my payments to make under the or (2) any promise made in this Note break or in the value decreases other than of the Vessel ship any preferred mortgage related or other tear; (10) through or I inter- normal wear and security agreement effective now or in the of, and fere with the federal documentation future; (3) or made false or mis- I have Vessel; preferred ship mortgage or leading your application; statement in credit (11) my corporation I shares are insolvent; am a (4) unemployed or I or become or guar- who was not a (5) transferred to someone keep the Vessel I do not insured as re- (12) signed; it was or ship antor of this Note when anything quired by any preferred mortgage or (6) die; you good happens that faith security agreement; or I else other or I may impair bankruptcy pay- and with my ability believe file for ing my or similar relief from reasonable cause perform pay bankruptcy under debts or creditors file for or otherwise against you puts other than this Note. me or someone a is de- cure defaults before acceleration Krahmer, Transac- clared.” Commercial 187,189
tions, (1986); n. see 40 S.W.L.J. 339; Bodiford, 651 S.W.2d Allen at Servicecenter, Inc., at
Sales Futch,
863; Faulk 147 Tex. (1948). question does not
Because the note language, unequivocal clear and
contain
showing expressly intend- that the makers their to notice
ed to waive valuable accelerate, I would
the holder’s intent establish, as appellee
hold that the failed to law, right. the waiver of that
a matter testimony hold that the would also Plosa, agent, Mr.
appellee’s note “in
had accelerated the accordance rights,” simply legal con-
with its stated a meet
clusion and did not burden conclusively proving proper intent to accelerate *5 overrule the motion would rehearing,
for reverse trial court’s
judgment, and remand cause for trial. WRIGHT, Appellant,
Ernest Galindo Texas, Appellee. The STATE of Odessa, Hirsch, appellant. Melissa No. 08-88-00163-CR. Monahans, Upchurch, Atty., Hal Dist. appellee. Texas, Appeals Court of El Paso. OSBORN, C.J., and Before FULLER
March KOEHLER, JJ.
OPINION FULLER, Justice. indicted,
Appellant tried and convict- habitation, jury burglary of a and the ed of thirty-eight years’ punishment at assessed Department Texas confinement in the Corrections. We affirm.