Hruska v. First State Bank of Deanville
| Decision Date | 30 March 1988 |
| Docket Number | No. C-6451,C-6451 |
| Citation | 747 S.W.2d 783 |
| Parties | Johnnie W. HRUSKA et ux., Petitioners, v. FIRST STATE BANK OF DEANVILLE et al., Respondents. |
| Court | Texas Supreme Court |
Eugene J. Pitman, De Lange, Hudspeth, Pitman & Katz, Houston, for petitioners.
James R. Chapman, Jr., Batista and Chapman, P.C., Caldwell, J. Bradley Smith, Vance, Bruchez & Goss, Bryan, for respondents.
This case presents the question of whether a lien on a homestead may be created by estoppel. The trial court rendered judgment on a jury verdict against Mr. and Mrs. Johnnie Hruska. The judgment awarded First State Bank of Deanville the sum of $112,900.77 (representing the principal and interest on a promissory note) plus attorney's fees in the amount of $17,500. The court also awarded BrazosBanc Savings Association the sum of $2,919.93 (representing the principal and interest on another note) plus $12,570 in attorney's fees. In addition to the monetary awards, the trial court's judgment purported to: (1) establish an equitable lien on the Hruskas' homestead; (2) declare that the Hruskas were estopped to deny the validity of the lien; and (3) grant First State Bank of Deanville the power to foreclose the lien. The court of appeals affirmed the trial court judgment. 727 S.W.2d 732. We reverse that portion of the judgment granting the lien and affirm the remainder of the judgment.
Mr. and Mrs. Hruska, seeking financing for construction of a house on a five acre tract, contacted BrazosBanc Savings Association. At the time they contacted BrazosBanc to secure financing for the house, the Hruskas were living on the property. BrazosBanc agreed to provide permanent financing, and issued a permanent loan commitment. However, BrazosBanc referred the Hruskas to the First State Bank of Deanville for construction financing. Mr. Treybig, a vice-president of First State Bank, agreed to provide a construction loan.
When construction was almost completed, BrazosBanc reviewed the Hruskas' file in anticipation of making the permanent loan. At that time, it was discovered that a mechanic's and materialman's lien had not been filed. In discussions between Mr. Treybig and the Hruskas, it was determined that such a lien had never been prepared.
Mr. Treybig urged the Hruskas to contact a lawyer in order to resolve the problem. A mechanic's and materialman's lien was prepared. However, to be valid, a mechanic's and materialman's contract must be written and executed before the materials are furnished and the improvements constructed. TEX. CONST. art. XVI, § 50. In an effort to cure the problem regarding the timing of the lien contract, the attorney who prepared the contract backdated it to a date prior to any construction. The contract was then executed.
When the Hruskas defaulted on the note given to secure the backdated and invalid lien, First State Bank filed suit on the promissory note securing the construction loan. First State Bank also sought to establish and foreclose an equitable lien against the Hruskas' homestead. It asserted that this lien should be imposed through principles of equity, because the Hruskas allegedly misrepresented that they would prepare the paperwork necessary to secure the loan. The Hruskas responded with a counterclaim against First State Bank and joined BrazosBanc as a third party defendant. They also claimed that no lien existed against their homestead. BrazosBanc counterclaimed for the amount due on a promissory note given in consideration of monies loaned to construct a water well on the Hruskas' property. BrazosBanc did not, however, claim any lien on the homestead. The jury's findings on all claims were favorable to First State Bank and BrazosBanc, and the trial court rendered judgment accordingly.
The portion of the judgment that grants an equitable lien on the homestead was apparently based upon the jury's finding that the Hruskas misrepresented to Mr. Treybig that they would get the "necessary paperwork" done to secure the loan. The Hruskas insist that there was no evidence to support the jury's finding that they misrepresented to First State Bank that they would have a mechanic's and materialman's lien prepared. All of the evidence to support the jury's verdict was elicited by questions that were objectionable on one or more grounds. However, no objections were made by the Hruskas' trial counsel. Careful scrutiny of the record leads us to conclude that the unobjected to...
To continue reading
Request your trial
-
Pitts & Collard, L.L.P. v. Schechter
...the fact that the attorney's fees are not segregated as to specific claims, then the objection is waived.”); Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex.1988). Such an objection must be made before the trial court renders judgment. SeeTex.R.App. P. 33.1(a)(1) (providin......
-
Petroleum Solutions, Inc. v. Head
...115 S.W.3d 310, 313 (Tex.App.-Texarkana 2003, no pet.) ; see Tex.R. Civ. P. 274 ; Solis, 951 S.W.2d at 389 ; Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex.1988) ; Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 705–06 (Tex.App.-Dallas 2008, no pet.) ; Lesikar v. ......
-
Lesikar v. Rappeport
...to the charge, the error is waived. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997); Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d at 11 (stating that remand is appropriate "[i]f a party refuses, over ob......
-
Argee Corp. v. Solis
...to segregate attorneys' fees between authorized and unauthorized claims waives any appellate error. See Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex.1988). Argee and Seaboard failed to object to the jury question thereby waiving appellate error. See Home Savings Ass'n. ......
-
Table of Cases
...TABLE OF CASES A-9 Howsley & Jacobs v. Kendall , 376 S.W.2d 562, 566 (Tex. 1964), §10. 19 Hruska v. First State Bank of Deanville , 747 S.W.2d 783 (Tex. 1988), §9.20 Hudspeth v. Hudspeth, 756 S.W.2d 29, 34 (Tex. App.—San Antonio 1988, writ den’d.), §6.05 Humber v. Morton , 426 S.W.2d 554 (T......
-
Trial: Part One Voir Dire to Close of Evidence
...cases, recoverable attorney’s fees may far exceed the plaintiff’s actual damages. See, e.g., Hruska v. First State Bank of Deanville , 747 S.W.2d 783,786 (Tex. 1988)(finding $12,500 fee reasonable to recover $2,900 in damages). The average consumer plaintiff is not going to be able to fund ......