First State Bank of San Diego v. Duval County

• Decision Date: 31 May 1978
• Docket Number: No. 5831,5831
• Citation: 567 S.W.2d 271
• Parties: FIRST STATE BANK OF SAN DIEGO, Appellant, v. COUNTY OF DUVAL, Appellee.
• Court: Texas Court of Appeals

Page 271

567 S.W.2d 271

FIRST STATE BANK OF SAN DIEGO, Appellant, v. COUNTY OF DUVAL, Appellee.

No. 5831.

Court of Civil Appeals of Texas,Waco.

May 31, 1978.

Rehearing Denied July 6, 1978.

Mary Joe Carroll, Conrad P. Werkenthin and E. Barham Bratton, Clark, Thomas, Winters & Shapiro, Austin, for appellant.

Gary R. Gurwitz and Charles C. Murray, Atlas, Hall, Schwartz, Mills, Gurwitz & Bland, McAllen, for appellee.

OPINION

McDONALD, Chief Justice.

This is an appeal by appellant Bank from $184,995.48 judgment for appellee Duval County in a usury case.

Appellee County sued appellant Bank for penalties under Article 5069-1.06 for usury allegedly charged appellee by appellant on loans.

Appellant denied that any interest was charged that was usurious.

Thereafter appellee filed motion for summary judgment for usurious interest charged and received. Such motion stated it was based on the "pleadings, deposition, attached exhibits thereto, as well as any affidavits attached thereto".

The trial court by order on December 23, 1976 held that the "depositions and exhibits on file establish as a matter of law" that interest charged by appellant on loans was usurious; rendered partial summary judgment against appellant for $111,927.78; further decreed appellee entitled to reasonable attorneys' fees against appellant "to be fixed by the court"; and set hearing for such purpose for January 20, 1977.

On February 28, 1977 the trial court rendered final judgment reciting evidence was heard to correct mathematical calculations of interest charged by appellant, on attorneys' fees, and "it appearing to the court that the depositions and exhibits on file, and the stipulations of the parties, establish as a matter of law" the existence of usury; and decreed appellee recover from appellant the sum of $110,945.40 and $12,384.92 in usury penalties, plus $61,665.16 as reasonable attorneys' fees (for a total of $184,995.48).

Appellant Bank appeals on 5 points contending:

1) The trial court erred in granting partial summary judgment in that there is no evidence supporting the finding of usury upon which the order is based.

2) The trial court erred in granting summary judgment in that there were disputed issues of material fact as to appellant's position in the transactions involved.

3) The trial court erred in depriving appellant of its right to jury trial, and itself fixing attorneys' fees.

The partial summary judgment order states it is based on depositions and exhibits on file, and the final judgment states that it is based on "the depositions and exhibits on file, and the stipulations of the parties".

Appellee's motion for partial summary judgment attached no affidavits. The only affidavits in the record are those attached to appellant's response which refute the judgment rendered.

There is accompanying the record an instrument titled "Deposition of B. O. Goldthorn" to which is attached an envelope of papers.

The deposition reflects that it was neither sworn to nor signed by B. O. Goldthorn; and contains this statement.

"A Notary Public not being readily available, it was stipulated by counsel that the testimony of the witness could be taken without his first being duly sworn; further that the witness could later read his deposition when completed, and subscribe and swear to it before a Notary Public at that time; whereupon said witness was examined upon oral interrogatories propounded by counsel, and made answer thereto, as hereinafter contained".

The contemplated later action never occurred. Mr. Goldthorn never signed or swore to his deposition.

Hearing on the motion for summary judgment was held December 15, 1976 and order granting the partial summary judgment was signed on December 23, 1976. Hearing on the recomputation of interest charged and attorneys' fees was held on January 21, 1977 (and order entered February 28, 1977).

The "deposition" was not filed in the trial court until January 24, 1977, (3 days after the hearing).

Appellee has caused a second supplemental transcript to be brought to this court which reflects the following proceedings were had on January 21, 1977.

EXCERPT

"MR. GURWITZ: Does the court have the original file?

THE COURT: I do not.

MR. GURWITZ: Mr. Ellzey, I assumed all along that Mr. Goldthorn's deposition was on file. It was sent to you a year ago to file it.

MR. ELLZEY: My memory fails if it is or not.

MR. GURWITZ: Can we agree that, if it is not it will be?

MR. ELLZEY: That is correct.

MR. GURWITZ: The first thing I would like to do is to offer the deposition of Barney Goldthorn as an adverse witness into the record together with all exhibits attached thereto, particularly exhibits 8 through 16, which have to do with the contract between the County and the Bank for the County to be depository, and also exhibits 18 through 22, which are the Bank's exhibits having to do with the principal amounts charged by the Bank, rate of interest charged, and the amount of interest charged daily. I think those should be in the record and I will offer those.

MR. ELLZEY: It is our position that the only proper...