Augusta Development Co. v. Fish Oil Well Servicing Co., Inc.

• Decision Date: 30 November 1988
• Docket Number: No. 13-87-485-CV,13-87-485-CV
• Citation: 761 S.W.2d 538
• Parties: AUGUSTA DEVELOPMENT COMPANY, Appellant, v. FISH OIL WELL SERVICING COMPANY, INC. and R.W. Dirks Petrol, Appellees.
• Court: Texas Court of Appeals

Page 538

761 S.W.2d 538

AUGUSTA DEVELOPMENT COMPANY, Appellant, v. FISH OIL WELL SERVICING COMPANY, INC. and R.W. Dirks Petrol Appellees.

No. 13-87-485-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 30, 1988.

Ronald Habitzreiter, Austin, for appellant.

Marion Williams, Jerry Sanchez, Beeville, for appellees.

Before KENNEDY, UTTER and DORSEY, JJ.

OPINION

KENNEDY, Justice.

Appellees, Fish Oil Well Servicing Company, Inc. (Fish Oil) and R.W. Dirks Petroleum Engineer, Inc. (Dirks), sued appellant, Augusta Development Company (Augusta), for amounts due under their respective contracts with Augusta for services rendered and equipment leased in the reentry of an oil well. Augusta counterclaimed against both appellees for violations of the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. § 17.46 (Vernon 1987), and against appellee Fish Oil for charging usurious interest under Tex Rev.Civ.Stat.Ann. art. 5069-1.06 (Vernon 1987). After a bench trial, the court awarded judgment for Fish Oil in the amount of $12,840.55, plus attorney's fees, and for Dirks in the amount of $6,398.09, plus attorney's fees. The trial court denied recovery on Augusta's counterclaims. Augusta brings seven points of error, complaining generally of the trial court's failure to find as a matter of law that the interest rate charged by Fish Oil was usurious, and of the award of full recovery to appellees without deducting certain expenses charged to Augusta which were supposedly caused by Dirks' imprudent procedures on the well site. We affirm the judgment of the trial court.

Augusta originally hired Dirks as the consultant to supervise the reentry of the Barnhart well in May of 1985. Dirks in turn hired Fish Oil to provide the rig and equipment necessary for the job. The Barnhart reentry was a success and the job was completed in August. At the end of August, Augusta hired Fish Oil for a reentry of the O'Neill well, which is the subject of the present suit. Augusta subsequently hired Dirks as consultant on the O'Neill reentry and work was begun in September. Jack Randolph, an employee of Dirks, supervised the O'Neill reentry, directed the day to day operations on the well, and signed daily work tickets for Fish Oil indicating the amounts charged against Augusta and the terms of payment for the lease of Fish Oil equipment and services. The O'Neill reentry was unsuccessful and work terminated in October. In addition, there were added expenses on the O'Neill reentry, due to an instrument called the "sinker bar" getting stuck in a device called the "packer" down in the well and causing the wire line to break, which in turn caused approximately three days delay in the project.

Appellees subsequently billed Augusta for the amounts claimed on the O'Neill well. Augusta payed that amount which it believed it rightfully owed and refused to pay the amount it attributed to the delays resulting from the sinker bar getting stuck in the packer and the line breaking. Appellees brought the present action for the remainder they claim Augusta owes them.

In points of error one through three Augusta complains of Fish Oil's charging of interest on the outstanding balance of the amount Fish Oil claimed was owed. Augusta contends that there was legally and factually insufficient evidence to show that Randolph acted as its agent in signing the work tickets or that Augusta ever contracted to pay 18% interest on the sums due Fish Oil. Augusta thus concludes that the trial court erred in failing to grant it a recovery against Fish Oil under the usury statute for charging interest at more than twice the amount allowed by law. In considering a "no evidence", "insufficient evidence" or "against the great weight and preponderance of the evidence" point of error, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985); Glover v. Texas General Indemnity Co., 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Co. v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); and Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

The usury statute, Tex.Rev.Civ.Stat.Ann. art. 5069-1.01 (Vernon 1987) et seq., provides in pertinent part as follows:

article 5069-1.03 When no specific rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all accounts and contracts ascertaining the sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable.

article 5069-1.04(a) The parties to any written contract may agree to and stipulate for any rate of interest ... that does not exceed [an indicated rate ceiling that is based on United States treasury bills, or] (b) ... 18 percent a year....

article 5069-1.06(1) Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor three times the amount of usurious interest.... (2) Any person who contracts for, charges or receives interest which is in excess of double the amount of interest allowed by this Subtitle shall forfeit as an additional penalty, all principal as well as interest....

Appellees assert that appellant has waived any error related to its usury claims, because it failed to request an additional finding and conclusion that the interest charged by Fish Oil was usurious.

The trial court made the following finding and conclusions relevant to the usury claims:

Finding.

13. [Augusta] contracted to pay [Fish Oil] interest in the amount of 18% on all sums due to [Fish Oil] beginning thirty (30) days after the date of the invoice.

Conclusions.

3. The indebtedness of [Augusta] to [Fish Oil] bears interest at the rate of 18% per annum from October 30, 1985 through August 20, 1987.

9. [Fish Oil] is not indebted to [Augusta], because [Fish Oil] did not violate the usury laws of the State of Texas.

A party asserting an independent ground of recovery or an affirmative defense in a trial before the court must request findings in support thereof in order to avoid waiver. If the findings filed by the trial court do not include any element of the ground of recovery or defense asserted, failure to request additional findings relevant thereto effects a waiver. 1st Coppell Bank v. Smith, 742 S.W.2d 454, 464-65 (Tex.App.--Dallas 1987, no writ); Traweek v. Larkin, 708 S.W.2d 942, 947 (Tex.App.--Tyler 1986, writ ref'd n.r.e.); Pinnacle Homes, Inc. v. R.C.L. Offshore Engineering Co., 640 S.W.2d 629, 630 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.); Elliott v. Bowden, 564 S.W.2d 825, 828 (Civ.Tex.App.--Corpus Christi 1978, writ ref'd n.r.e.); Tex.R.Civ.P. 299. A blanket conclusion of law that the ground or defense does not apply, moreover, does not relieve the party asserting it of the duty to request findings on the specific elements. See Elliott, 564 S.W.2d at 828.

In the present case, Augusta's claim of usury arises out of Fish Oil's attempt to collect 18% interest based on the work tickets authorizing the maximum allowed by law. Augusta claims that the work tickets never became part of the agreement between it and Fish Oil, and that, absent any agreement, the maximum rate of interest allowed was 6% under Article 5069-1.03. The trial court's finding that Augusta did contract to pay Fish Oil interest in the amount of 18% negates the application of Article 5069-1.03, since an element of usury under that article is the absence of an agreement to pay a specified rate of interest. Since the trial court's finding negated an element of appellant's ground of recovery, failure to request additional findings did not effect a waiver.

We turn now to the substance of appellant's claim of usury. A demand for usurious interest is a violation of the usury statute under Article 5069-1.06, as "charging" usurious interest, even though there is no agreement between the parties for a usurious amount of interest. Danziger v. San Jacinto Savings Association, 732 S.W.2d 300, 304 (Tex.1987); Missouri-Kansas-Texas Railroad Co. v. Fiberglass Insulators, 707 S.W.2d 943, 949 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). A usurious charge may be contained in an invoice, a letter, a ledger sheet or other book or document. The basis of the action is a claim or demand for usury made by the creditor and the vehicle for the claim or demand is immaterial except as an evidentiary fact. Danziger, 732 S.W.2d at 304.

If the work tickets did not constitute an agreement by Augusta to pay interest, the statutory rate of 6 percent is read into the agreement, and is the maximum amount of interest allowed on the transaction. A party charging more than 6 percent interest under such circumstances is subject to the statutory penalties provided in Article 5069-1.06. Triton Oil & Gas Corp. v. Marine Contractors and Supply, Inc., 644 S.W.2d 443, 445 (Tex.1982). A charge of 18% interest, moreover, is more than twice the 6 percent allowed by law and subjects the party to the harsher penalties of subdivision 2. See Amarillo Equity Investors, Inc. v. Craycroft Lacy Partners, 654 S.W.2d 28, 30 (Tex.App.--Fort Worth 1983, no writ); Flato Electric Supply Co. v. Grant, 620 S.W.2d 915, 917 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.).

In order for Fish Oil's demand for interest in the present case not to be usurious, the work tickets must constitute valid written agreements to pay interest at 18%. Signed invoices containing stipulations as to interest can evidence a written contract in a usury case. Bendele v. Tri-County Farmers Co-op, 635 S.W.2d 459, 466 (Tex.App.--San Antonio 1982) affirmed in part vacated in part on other grounds, 641 S.W.2d 208 (Tex.1982); Dean Vivian Homes v. Sebera's Plumbing and Appliances, Inc., 615 S.W.2d 921, 926 (Tex.Civ.App.--Waco 1...