Strickland v. Coleman

• Decision Date: 07 November 1991
• Docket Number: No. 01-90-00205-CV,01-90-00205-CV
• Citation: 824 S.W.2d 188
• Parties: Jeannine STRICKLAND, Appellant, v. Herbert J. COLEMAN, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 188

824 S.W.2d 188

Jeannine STRICKLAND, Appellant, v. Herbert J. COLEMAN, Appellee.

No. 01-90-00205-CV.

Court of Appeals of Texas Houston (1st Dist.).

Nov. 7, 1991.

Rehearing Denied Feb. 27, 1992.

Ronald G. Wiesenthal, Anthony B. Schram, Houston, for appellant.

Wilson Pahil, Houston, for appellee.

Before MIRABAL, DUGGAN and O'CONNOR, JJ.

OPINION

MIRABAL, Justice.

This is an appeal, after a bench trial, from a judgment for appellant-plaintiff for one-half the face value of a promissory note, $5000 in attorney's fees, and post-judgment interest.

Appellant, Jeannine Strickland, in 22 points of error, contends the trial court erred in rendering judgment for less than the face amount of a promissory note, the stated interest, and attorney's fees as set out in the note, and in denying appellant's requested additional findings of fact and conclusions of law. Appellee, Herbert J. Coleman, in a cross-point of error, contends that the trial court erred in awarding Strickland attorney's fees of $5000.

Strickland was the owner of Aid Bail Bonds, and often arranged bail for clients of Coleman, who was an attorney. On the occasion that is the basis of the lawsuit, Coleman requested a bond of $10,000 for a Mexican national charged with murder. Strickland testified that, because of the high risk involved, she arranged bail only after Coleman executed a promissory note for the bond amount of $10,000. The client failed to show up, the bond was forfeited, and demand was made on Coleman. Coleman refused to pay the full amount of the note, so Strickland filed suit.

Coleman testified that, when the note was made, he assumed there would be shared liability on the note, as there had been on previous bonds arranged with Strickland's son, Glen. Coleman identified the signature on the note as his, and testified he had no reason to believe Strickland had not paid the full amount of the bond upon forfeiture. He identified the demand letter sent to him by Strickland's attorney. Coleman said he had not read the promissory note before he signed it because he understood, based on his prior dealings with the company, there would be 50 percent liability on his part. Coleman's agreement with the bond company had been a "50/50 deal on every bond where we split the fee."

Exhibits admitted into evidence included the following notes signed by Coleman:

--the subject 9/23/81 promissory note in the amount of $10,000 plus cost, securing a $10,000 bond;

--a 3/25/80 promissory note in the amount of $30,000 plus cost, securing a $30,000 bond. Next to Coleman's signature is the notation " 1/2 of $30,000" (the other signatory on the note was Coleman's client who received the bond);

--a 5/12/80 promissory note in the amount of $10,000 plus cost, securing a $20,000 bond;

--a 7/5/80 promissory note in the amount of $2500 plus cost, apparently securing a $2500 bond;

--a 7/5/80 promissory note in the amount of $500 plus cost, apparently securing a $500 bond;

--a 7/10/80 promissory note in the amount of $500 plus cost, apparently securing a $500 bond.

Coleman testified he split the bond fee 50/50 with the bonding company on all these transactions, and his agreement was to pay half of the bond amount if the bond was forfeited. The only time he would sign a note was when he got half of the bond premium. The first bond forfeiture occurred in connection with the note sued on in this case.

Glenn Strickland testified he worked for Aid Bail Bonds in the past; his mother was the owner of the company; and she alone had ultimate authority in the company dealings, even though he and his brother made some decisions. He said the business relationship with Coleman was one of trust and respect, and that they had done business with him, no questions asked.

The trial court entered its judgment, finding Coleman liable for half of the note amount, plus attorney's fees. Strickland requested findings of fact and conclusions of law, which the trial court filed. Strickland filed a motion for a new trial and a request for additional findings of fact and conclusions of law. The trial court denied the motion and the request.

Strickland asserts, in her first 21 points of error, that the trial court erred in entering judgment for less than the full amount of the promissory note because the evidence was legally insufficient, insufficient as a matter of law, or factually insufficient. In point of error 22, she asserts the trial court erred in denying Strickland's request for additional findings of fact and conclusions of law. Coleman asserts, in a cross-point of error, that the trial court erred in awarding attorney's fees against him, and erred in its conclusion of law number four.

Because the first 21 points of error pertain to the findings of fact and conclusions of law by the trial court, they will be discussed together. In reviewing legal insufficiency points, we consider only the evidence tending to support the judgment, viewing it in the most favorable light, giving effect to all reasonable inferences that may properly be drawn therefrom, and disregarding all contrary or conflicting evidence. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985); Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1982). If there is any probative evidence, more than a scintilla, supporting the judgment, the point must be overruled and the judgment affirmed. Texaco, Inc. v. Pennzoil, Inc., 729 S.W.2d 768, 787 (Tex.App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.). In reviewing "matter of law" points, the court considers all of the evidence, and if the converse of the finding is conclusively established, the point of error is sustained. Holley v. Watts, 629 S.W.2d 694, 696-97 (Tex.1982); Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex.App.--Houston [1st Dist.] 1987, no writ).

Factual insufficiency exists when the only evidence supporting a vital fact finding is factually too weak to support it, or when considered with the evidence opposing the fact, the finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). A motion for new trial is not necessary to raise either legal or factual sufficiency complaints in a non-jury trial. TEX.R.APP.P. 52.

The disputed findings of fact are as follows:

5. When Plaintiff and Defendant shared the bond liability and the bond premium, Plaintiff's bonding company manager would ask the defendant to execute a promissory note as evidence of that shared bond liability.

6. On numerous occasions the promissory note used as evidence of shared bond liability did not accurately reflect the correct amount of Plaintiff's bond liability.

7. That Plaintiff was assured by the bonding company manager, Glenn Strickland, that regardless of the face amount of the promissory note, all parties knew the purpose of executing a promissory note and that all parties knew the actual amount of the Plaintiff's liability on the bonds was to be fifty percent of the face amount of the bonds.

....

9. That if it had not been for the representations of the bonding company manager, Glenn Strickland, that regardless of the face amount of the indemnity agreement, all parties knew the actual amount of Plaintiff's liability on the bonds was to be fifty percent of the face amount of the bonds, Defendant would not have executed the indemnity agreement which forms the basis of Plaintiff's claim in this law suit.

10. That at the time of making such representations to Defendant, Glenn Strickland was acting as the agent of Plaintiff.

11. That the indemnity agreement sued upon by Plaintiff was obtained through FRAUD to the extent that such agreement obligates the Defendant to pay more than $5,000.

12. That Defendant, HERBERT J. COLEMAN, is indebted to JEANNINE STRICKLAND, in the amount of $5,000.

13. That Defendant, HERBERT J. COLEMAN, made a timely tender of the sum of $5000 to the Plaintiff, JEANNINE STRICKLAND.

14. That the Plaintiff, JEANNINE STRICKLAND, refused to accept the sum of $5,000 so tendered to her by Defendant.

The evidence shows the parties had previously done business by splitting bond premiums and liability. Strickland testified that the fee she received on the $10,000 bond was $500. Coleman testified that the total bond fee charged the client was $1000, and he paid Strickland $500 of that fee, and he kept the other $500. Coleman signed a promissory note for $10,000 in connection with the case. There were promissory notes and bonds regarding other clients which reflected Coleman's one-half liability on the bonds in the event of forfeiture. Coleman said he only signed promissory notes when he split the bond premium 50/50 with the bonding company, and the agreement was always that he would be 50/50 liable for the bond amount in the event of forfeiture, regardless of what the note said. Glenn Strickland testified the face of the promissory notes often did not reflect an accurate statement of Coleman's liability, and the liability for a forfeited bond was often to be shared 50/50 by Coleman and the bonding company. Coleman testified he would not have signed the subject promissory note had it not been for the prior course of dealings with Strickland's bonding company. Coleman testified that he owed Strickland $5000 and had offered to pay that amount, but his offer had been refused.

A promissory note is a contract between the maker and the payee. Mauricio v. Mendez, 723 S.W.2d 296, 298 (Tex.App.--San Antonio 1987, no writ). In an action by a holder of a promissory note against the maker, where execution of the note has not been denied, the introduction of the note in evidence makes a prima facie case for the holder. Shumway v. Horizon Creditcorp, 768 S.W.2d 387, 389 (Tex.App.--Houston [1st Dist.] 1989, writ granted); Gonzalez v. Nielson, 770 S.W.2d 99 102 (Tex.App.--Corpus Christi 1989, writ denied); Clark v. Dedina, 658 S.W.2d 293, 296 (Tex.App.--Houston [1st Dist.] 1983, writ...