Hackney v. First State Bank of Honey Grove
| Decision Date | 13 October 1993 |
| Docket Number | No. 06-93-00015-CV,06-93-00015-CV |
| Parties | Jim HACKNEY and Albert Spiller, Individually and as Beneficial Owners of Jim Hackney Chevrolet, Inc., Appellants, v. FIRST STATE BANK OF HONEY GROVE, Appellee. |
| Court | Texas Court of Appeals |
James M. Morris, Kennedy, Minshew, Campbell, Morris, Sherman, for Jim Hackney and Hackney Chevrolet, Inc. David C. Turner, Jr., Bonham, for Albert Spiller.
Jonathan P. Ayers, Dallas, John L. Tidwell, Gooding & Dodson, Texarkana, for First State Bank of Honey Grove.
Ed T. Smith, Bonham, for Goss.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
Jim Hackney and Albert Spiller, individually and as beneficial owners of Jim Hackney Chevrolet, Inc., collectively referred to as "the dealership," appeal from a take-nothing judgment in their case against First State Bank of Honey Grove for tortious interference with the dealership's business relationships. The principal issues in this appeal involve the loss of the trial exhibits and the sufficiency of the evidence supporting the jury's damages findings. We find no reversible error in connection with the lost trial exhibits, but we reverse because the finding of no damages is against the great weight and preponderance of the evidence.
Jim Hackney Chevrolet, Inc., was organized in November 1976 and obtained a new vehicle line of credit from General Motors Acceptance Corporation (GMAC). Jim Hackney, David Buster, and M.H. Goss, Jr. were the original owners of the dealership. 1 Albert Spiller bought an ownership interest in the dealership in the spring of 1977.
Goss was a member of the board of directors of the bank and helped establish a banking relationship between the bank and the dealership. The bank's president and controlling shareholder during this time was Robert Howard, an attorney.
The bank loaned the dealership operating capital and financed some of the used car inventory. This is called floor planning. The bank also purchased the dealership's installment notes with recourse. In connection with this recourse paper, the bank required the dealership to establish reserve accounts. Hackney testified that the reserve accounts also served as collateral to secure the dealership's overdrafts, although Howard and Dan Hiett, an officer of the bank, denied that the bank made any arrangements regarding the dealership's overdraft privileges.
On December 29, 1977, the bank refused to pay $25,000.00 in checks written to GMAC because there were insufficient funds in the dealership's checking account. In an effort to cover the checks, Spiller presented the bank with a $25,000.00 check drawn on Buster's checking account at another bank. The bank had previously accepted similar checks without question, and none of those checks had bounced. On this occasion, however, the bank called the other bank and found out that there were insufficient funds in Buster's account to cover the check at that time. The bank refused to give immediate credit on the check and also took back the deposit slip which showed that $25,000.00 had been deposited into the dealership's account.
The bank admitted that, if it had chosen to pay the checks, there were sufficient funds in the reserve accounts to cover the dealership's checks to GMAC. The return of the unpaid checks to GMAC resulted in the loss of the dealership's new vehicle credit line. The dealership failed and was liquidated in 1978.
Hackney and Spiller, individually and on behalf of the dealership, sued the bank for tortious interference with the dealership's business relationships that caused the dealership to lose its line of credit and floor planning arrangement with GMAC. The jury found that the bank had tortiously interfered with the dealership's business relationships and that this conduct was a proximate cause of damages to the dealership. The jury also found that the bank acted with actual malice and awarded the dealership $250,000.00 in punitive damages.
The only actual damages questions in the charge required the jury to find the difference in the market value of the dealership immediately before and immediately after December 29, 1977. The jury found no difference. Based on these findings, the trial court entered a take-nothing judgment against Hackney, Spiller, and the dealership.
The original trial exhibits were lost and could not be made a part of the appellate record. When an appellant raises legal and factual insufficiency points, a complete or agreed statement of facts is essential to his appeal. See Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex.1968); Rowlett v. Colortek, Inc., 741 S.W.2d 206, 208 (Tex.App.--Dallas 1987, writ denied). It is undisputed that the dealership made a timely request for the records and that the loss of the exhibits is not the fault of the dealership. The trial court held a hearing, found that the trial exhibits could be replaced, and ordered that the replacement exhibits be made a part of the appellate record.
The dealership contends that it is entitled to a new trial pursuant to Rule 50(e) of the Texas Rules of Appellate Procedure because it did not agree to the substituted documents. See TEX.R.APP.P. 50(e); Owens-Illinois, Inc. v. Chatham, No. B14-91-00539-CV (Tex.App.--Houston [14th Dist.] Sept. 2, 1993, n.w.h.); Hidalgo, Chambers & Co. v. FDIC, 790 S.W.2d 700, 702 (Tex.App.--Waco 1990, writ denied). In Hidalgo, the court ruled that the appellants were entitled to a new trial because they had not agreed to the substitution of other documents for the lost trial exhibits. The court held that the appellants did not need to have any reasonable basis or justification for not agreeing to the substitution. Hidalgo, 790 S.W.2d at 702; see also Owens-Illinois, No. B14-91-00539-CV, slip op. at 16 ().
Contrary to the dealership's position is First Heights Bank, FSB v. Gutierrez, 852 S.W.2d 596 (Tex.App.--Corpus Christi 1993, writ...
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