V. I. P. Commercial Contractors v. Alkas

• Decision Date: 29 June 1977
• Docket Number: No. 15805,15805
• Parties: V. I. P. COMMERCIAL CONTRACTORS et al., Appellants, v. Necati ALKAS, Individually and d/b/a Contract Design Company, Appellee.
• Court: Texas Court of Appeals

Page 656

553 S.W.2d 656

V. I. P. COMMERCIAL CONTRACTORS et al., Appellants, v. Necati ALKAS, Individually and d/b/a Contract Design

Company, Appellee.

No. 15805.

Court of Civil Appeals of Texas, San Antonio.

June 29, 1977.

Joel William Ellis, Carter & Ellis, Harlingen, for appellants.

Bruce Waitz, Van H. Johnson, San Antonio, for appellee.

CADENA, Justice.

Defendants, Bill D. Bass, and two corporations, V. I. P. Commercial Contractors and Valley International Properties, Inc., appeal from a judgment holding them liable on a promissory note and awarding plaintiff, Necati Alkas, d/b/a Contract Design Co., recovery for the face amount of the note plus interest and attorney's fees. The two corporations will be referred to in this opinion as "Commercial" and "International."

Although all three defendants perfected an appeal from the judgment below, only Bass has filed a brief in this Court. The brief filed by Bass raises only questions relating to his individual liability and asserts no error insofar as the judgment against the two corporations in concerned. The appeals of V. I. P. Commercial Contractors and Valley International Properties, Inc., are, therefore, dismissed for want of prosecution.

The note in question, in the amount of $35,578.76, provided for interest on the principal at the rate of 12 percent per year and contained the usual provisions concerning attorney's fees. It was signed on behalf of Commercial by its president, Robert S. Leising, and on behalf of International by its president, Bass. Bass also signed the note individually. None of the defendants denied execution of the notes or raised any affirmative defenses in their pleadings.

Plaintiff filed a motion, supported by his affidavit, for summary judgment on all issues other than the question of attorney's fees. None of the defendants filed responses to such motion, nor did any one of them appear at the hearing.

The trial court granted summary judgment in favor of plaintiff on the question of defendants' liability on the note and reserved the question of attorney's fees for subsequent determination.

The hearing on the question of attorney's fees was held on October 26, 1976, at which time Bass asked for leave to file an amended answer alleging that the note was usurious on its face and seeking recovery of the statutory penalties for usury. The trial court denied leave to file such amended pleading and also overruled a motion filed by Bass praying that the prior interlocutory judgment on the question of liability on the note be set aside. After trial without a jury on the question of attorney's fees the trial court rendered a final judgment in favor of plaintiff.

Bass, by his first point, asserts that the trial court erred in granting the interlocutory summary judgment because the note provides for usurious interest on its face. As already pointed out, Bass made no attempt to raise the question of usury until his unsuccessful effort to file an amended answer on the date of the hearing on the question of attorney's fees.

In his affidavit in support of his motion for "partial" summary judgment, plaintiff, in addition to swearing to the existence of facts sufficient to otherwise support a judgment in his favor on the note, swore to the following:

1. Prior to the execution of the note, Commercial had purchased from plaintiff goods, wares and merchandise of the value of $35,578.76, substantially all of which were for the use and benefit of International. The debt resulting from such purchase was never paid despite demand for payment made by plaintiff.

2....