Pan American Bank of Brownsville v. Nowland

• Decision Date: 23 March 1983
• Docket Number: No. 16937,16937
• Citation: 650 S.W.2d 879
• Parties: PAN AMERICAN BANK OF BROWNSVILLE, Appellant, v. William B. NOWLAND and George K. Wilcox, Jr., Trustee, Appellees.
• Court: Texas Court of Appeals

Page 879

650 S.W.2d 879

PAN AMERICAN BANK OF BROWNSVILLE, Appellant, v. William B. NOWLAND and George K. Wilcox, Jr., Trustee, Appellees.

No. 16937.

Court of Appeals of Texas,

San Antonio.

March 23, 1983.

Rehearing Denied April 25, 1983.

Reese L. Harrison, Jr., San Antonio, for appellant.

Daniel R. Rutherford, San Antonio, for appellees.

Before BUTTS, TIJERINA and DIAL, JJ.

OPINION

BUTTS, Justice.

This is an appeal from a judgment rescinding a collateral pledge agreement executed by William B. Nowland, appellee, payable to Pan American Bank of Brownsville, appellant, awarding Nowland prejudgment interest of $30,000 and exemplary damages of $25,000.00, and further denying Pan American recovery on a promissory note executed by appellee-third-party defendant, George W. Wilcox, trustee for Nowland. Nowland appeals the denial of attorney's fees which were awarded by the jury but set aside by the trial court. We affirm in part and reverse and render in part.

Pan American brings twenty (20) points of error: Point of error one predicates error on the overruling of motions for instructed verdict and for judgment on the counterclaim (against Nowland) and cross-action (against trustee) since the evidence conclusively established Nowland's liability on the promissory note; points two through eight are premised on the existence of the defenses of ratification, waiver and estoppel; points nine and ten assert that the parol evidence rule mandated exclusion of evidence varying the terms of the collateral pledge agreement; points eleven through thirteen claim that individual fraud of Pan American was not pled and there was no evidence or insufficient evidence to support such a finding; points fourteen through seventeen proclaim there was no evidence or insufficient evidence to establish that Pan American acted willfully or was guilty of gross negligence or to support the jury's award of exemplary damages; point eighteen asserts court error in the partial exclusion of Franklin T. Graham's deposition; point nineteen proclaims incurably improper jury argument; and point twenty alleges error in the rescission of the collateral pledge agreement because Nowland did not request that relief in his pleadings.

Nowland brings two points of error contending, respectively, the trial court erred in granting Pan American's motion to disregard special issues and for judgment non obstante veredicto as to special issues nine ¹ and eleven. ²

Condo Rio, Inc., is a Texas corporation duly formed to develop a condominium project in Brownsville, Texas. On March 6, 1976, shareholders of Condo Rio, Inc., including Nowland, executed a Voting Trust Agreement to exist under a definite policy "to secure a union of a majority of the interests in order to develop properly the business opportunities of the corporation." George K. Wilcox was named trustee.

The operative period of the Agreement extended five years from the date of execution. The trustee's authority included discretionary power to execute loans in the name of the Trust. The agreement provided that all obligations entered into by the shareholders collectively or by the trustee, including "all debt obligations, sureties or guarantee agreements, shall be joint and several as to the shareholders."

Soon after the execution of the Agreement, the trustee and Nowland initiated loan negotiations with Pan American. Pan American agreed to loan the trustee $337,000.00 to be collateralized dollar for dollar. The loan was bifurcated into $237,000.00 and $100,000.00 commitments. On May 10, 1976, Nowland executed a collateral pledge agreement which assigned to Pan American his $100,000.00 savings account on deposit in the Southwest Texas National Bank of San Antonio. On May 20, 1976, the trustee executed a $100,000.00 promissory note payable to the order of Pan American. After the trustee verified by affidavit that the Agreement was still operative, Pan American loaned the trustee, $100,000.00 on the strength of the collateral pledge agreement.

In April, 1977, Nowland, after accepting a commission for the use of his account as collateral and personally making one interest payment on the promissory note, brought suit against Pan American to obtain the return of the $100,000.00 savings account, claiming the collateral pledge agreement was subject to an oral condition precedent that the $237,000.00 commitment was to be disbursed first and then only upon the collateralization of the entire sum of money. Pan American sought to foreclose the collateral pledge and further cross-acted against Wilcox, the trustee, and counterclaimed against Nowland seeking recovery on the promissory note executed by the trustee for the Agreement.

We first address Nowland's two points of error which assert the impropriety of the trial court's denial of attorneys' fees. Consequently, the initial determination is the applicability in this suit of Tex.Rev.Civ.Stat.Ann. art. 2226 (Vernon Supp.1982) which provides for the recovery of attorneys' fees. Nowland filed suit to establish the breach of an oral condition precedent to a collateral pledge agreement [contract] on April 4, 1977. By his second amended original petition, filed May 21, 1980, Nowland sought to recover his attorneys' fees under article 2226, supra, which had been amended, effective June 6, 1979, to allow for the recovery of attorneys' fees in a suit founded on an oral or written contract.

This court must look to the intent of the Legislature in construing the statute so as to effectuate that intent. Knight v. International Harvester Credit Corp., 627 S.W.2d 382, 384 (Tex.1982). The intention is to be found in the language of the statute itself. Jones v. Del Anderson & Associates, 539 S.W.2d 348, 350 (Tex.1976). The 1979 amendatory act to article 2226, supra, provides, in pertinent part:

Sec. 2. This Act is remedial in character and is intended to apply to all pending and future actions, regardless of the time of institution thereof or the accrual of any cause of action asserted.

1979 Tex.Gen.Laws, ch. 314, § 2, at 718. The statutory language clearly indicates the legislative intent to sanction the recovery of attorneys' fees in litigation pending at the time of the amendatory enactment. An action or suit is "pending" from the time of its inception until the rendition of final judgment. Black's Law Dictionary 1021 (5th ed. 1979). We find that the instant litigation constitutes a pending action as contemplated by the Legislature. Accordingly, article 2226, supra, is applicable.

Article 2226, supra, does not require the presentment of claim to be made in any specific manner. King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213, 217 (Tex.Civ.App.--Waco 1976, writ ref'd n.r.e.). The claimant must claim and prove, however, a request for payment and a failure to pay for thirty (30) days. Huff v. Fidelity Union Life Insurance Co., 158 Tex. 433, 312 S.W.2d 493, 500 (1958).

Nowland claims that plaintiff's exhibit twenty, a demand letter addressed to an officer of Pan American, satisfied the presentment requirements of article 2226, supra. At trial Nowland's counsel testified:

I hold in my hand Plaintiff's Exhibit, a letter dated November 10, 1976, addressed to Mr. John Kazynski, Pan American Bank, P.O. Box 2179, Brownsville, Texas 78250. The original of which was signed by me, and the original of which was placed in a wrapper, correctly addressed with the correct amount of postage and placed into a United States depository for the United States mail to be delivered to Mr. John Kazynski.

He did not state to the jury that he personally mailed the letter. The addressee of the letter testified that he never received the subject letter. Nowland contends that counsel's testimony was sufficient to uphold an inference by the jury that such letter was received by the addressee.

Direct testimony that a letter was properly enclosed in an envelope which was correctly stamped, addressed and deposited in the mail gives rise to a rebuttable presumption that it was duly received. Southland Life Insurance Co. v. Greenwade, 138 Tex. 450, 159 S.W.2d 854, 856-57 (1942). It is necessary that the mailing of the letter be proved, and this may be by direct evidence. If no direct evidence shows a person mailed the letter in question, an inference of mailing may be raised by showing the customary mailing practice in connection with the sender's business. Cooper v. Hall, 489 S.W.2d 409, 415 (Tex.Civ.App.--Amarillo 1972, writ ref'd n.r.e.). For reliance on office custom to support the inference of mailing, the party offering the letter must present corroborating circumstances to support the inference that the custom has been carried out. Texas Employers Insurance Association v. Wermske, 162 Tex. 540, 349 S.W.2d 90, 92 (Tex.1961). The statements made by Nowland's counsel at an in-chambers hearing that pursuant to "regular practice" he "put it [letter] in the United States mail" were made outside the presence of the jury, and as such, do not constitute direct evidence of actual mailing. Further, the record is devoid of any evidence corroborating the mailing of the letter by proof of the mailing custom of the sender's office. We find that there was no direct evidence of mailing; that the presumption of receipt was not raised by the evidence, and; that the trial court correctly set aside special issues nine and eleven. We, accordingly, overrule Nowland's points of error.

Pan American's points of error nine and ten are premised on the contention that the admission of parol evidence to vary the terms of the collateral pledge agreement violated the parol evidence rule. The parol evidence rule is a rule of substantive law which denies efficacy to prior or contemporaneous expressions relating to the identical subject matter as that encompassed in the final written contract between the parties. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 32 (1958); 2 R. Ray,...