Sherman v. First Nat. Bank in Center, Texas, C-7414
| Decision Date | 29 June 1988 |
| Docket Number | No. C-7414,C-7414 |
| Citation | 760 S.W.2d 240 |
| Parties | R.L. SHERMAN, Petitioner, v. FIRST NATIONAL BANK IN CENTER, TEXAS, Respondent. |
| Court | Texas Supreme Court |
Thomas R. McLeroy, Jr., Center, for petitioner.
Bill Warren, Center, for respondent.
R.L. Sherman sued First National Bank of Center, Texas for wrongful foreclosure on certain real estate. The Bank had advanced Sherman funds to purchase the real estate and secured the funds by a deed of trust upon the property. Eventually, the substitute trustee of the deed of trust gave notice of sale and sold the property. The jury returned a verdict which was favorable to Sherman on the wrongful foreclosure suit. Accordingly, the judge rendered judgment for Sherman. In an unpublished, per curiam opinion, the court of appeals reversed the judgment of the trial court and rendered judgment for the Bank, holding there was "absolutely no evidence" to support the jury's answers to the issues. We reverse the judgment of the court of appeals and affirm that of the trial court.
Sherman and his deceased wife, Annie Sherman, executed a deed of trust and note payable to the Bank to secure a $75,000 loan advanced for the purchase of real estate. The loan was renewed and due for payment on October 20, 1982. In December of 1981, Sherman received a letter from the Bank demanding the payment of several notes, including the $75,000 real estate note which was not due and owing at that time. In an unsuccessful attempt to settle the matter, Sherman offered to pay the notes with cash and certificates of deposit and brought to the Bank's attention the fact that the real estate note was not due at that time.
In July of 1982, the Bank filed suit in Cause No. 20,914 in Shelby County against Sherman, seeking to recover the balance on the notes, including the $75,000 real estate note, or to foreclose on the property securing the notes. The Bank alleged in its pleading in that cause that all notes, except the real estate note, were due. The Bank, through various employees, admitted throughout litigation that the Bank knew the $75,000 real estate note was not due; however, because the Bank was feeling insecure, the Bank included the real estate note in its petition to "run a bluff" against Sherman.
At the time Cause No. 20,914 was filed, Sherman had remarried Jimmie Boles Sherman. He was incarcerated in a federal penitentiary in Fort Worth. Sherman was never served with citation in Cause No. 20,914 and never appeared of record. He only learned of the cause through his wife, Jimmie Boles Sherman, who had learned of the suit through a newspaper article.
After notifying Sherman of the pending suit, Jimmie Boles Sherman visited with bank officials in an attempt to resolve the matter. She put up collateral for several of the notes, and certificates of deposit were liquidated to extinguish the remainder of the indebtedness. Thereafter, the Bank moved the court to dismiss Cause No. 20,914 with prejudice to refile the matter. The court granted the motion and dismissed the entire case with prejudice. However, the Bank urges now that the $75,000 real estate note was excluded from the settlement.
In October of 1982, only two months after Cause No. 20,914 was dismissed with prejudice, the Bank gave Sherman notice of its intent to foreclose on the property securing the $75,000 real estate note. Sherman filed this action seeking to enjoin the foreclosure. The substitute trustee sold the property under the deed of trust in December of 1982. Thereafter, Sherman amended his petition to include a cause of action for wrongful foreclosure.
At trial of the wrongful foreclosure cause of action the jury returned a verdict for Sherman, finding that Cause No. 20,914, including the $75,000 real estate note, was compromised and settled between the Bank and Sherman. Therefore, the Bank wrongfully foreclosed on the...
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