text:
    Baltazar SALAZAR, d/b/a Eyeglass and Eyewear Optical, Appellant, v. Boca Chica TOWER, Appellee.
    No. 13-83-494-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 13, 1984.
    Matías Morin, Jr., Edinburg, for appellant.
    Robert Garza, Brownsville, for appellee.
    Before UTTER, YOUNG and GONZALEZ, JJ.
   OPINION

UTTER, Justice.

This is an appeal by writ of error from a default judgment. We affirm the judgment of the trial court.

On February 1, 1983, appellee originally sued “BALTAZAR SALAZAR, d/b/a EYEGLASS & EYEWEAR OPTICAL,” as defendant, to collect damages and attorney’s fees for breach of a lease. A copy of the subject lease was appended to Plaintiffs Original Petition as “Exhibit A.” The parties to the lease were appellee Boca Chica Tower, as lessor, and, as lessee, “Eyeglass & Eyewear Optical ... BY: Baltazar Salazar Lessee.” The lease agreement was signed by “Baltazar Salazar, Jr.”

Pursuant to a Motion for Service under Rule 106, the trial court, on February 1, 1983, ordered that all process of service be executed in Cameron County, Texas, by any one of three specified disinterested adult county residents. On February 1, 1983, citation was issued to “BALTAZAR SALAZAR, d/b/a Eyeglass and Eyewear Optical on Palm Blvd. and W. St. Charles, Brownsville, Texas 78520.” The citation indicated that a copy of Plaintiffs Original Petition accompanied the citation. After the citation was served, the authorized person who served the citation noted in his affidavit on the return of citation that, on February 3, 1983, he served the citation upon “Baltazar Salazar, d/b/a Eyeglass & Eyewear Optical. 2/14/83 3:12 P.M. 305 Palm Blvd. Brownsville, Texas.”

Following the failure of “BALTAZAR SALAZAR, d/b/a EYEGLASS AND EY-EWEAR OPTICAL” to timely appear or answer and after a hearing, the trial court on March 18, 1983, entered a default judgment in favor of appellee, awarding damages and attorney’s fees for breach of the subject lease. On March 21, 1983, three days after the default judgment was entered, Matías Morin, Jr., as attorney for defendant “BALTAZAR SALAZAR,” untimely filed Defendant’s Original Answer, which consisted of only a general denial as provided by TEX.R.CIV.P. 92. The record reflects that no motion for new trial or motion to set aside the default judgment was ever filed by appellant. On August 11, 1983, appellee filed Plaintiff’s Motion to Compel Answer to Interrogatories in Aid of Judgment.

On September 19,1983, Matías Morin Jr., as attorney for appellant “Baltazar Salazar Jr.,” filed in the trial court appellant’s Petition for Writ of Error, which, in pertinent part, alleged:

4. Service was not made upon Baltazar Salazar Jr., the person doing business as Eyeglass and Eyewear Optical, but upon Baltazar Salazar, a person with no interest in the outcome of this litigation;
5. There is nothing in the record indicating that the person served is agent for Baltazar Salazar, Jr.;

Appellant, in his brief on appeal, acknowledges that “Baltazar Salazar, Jr., doing business as Eyeglass & Eyewear Optical,” was the signatory to the subject lease. It is apparent that the signature of “Baltazar Salazar Jr.,” which was affixed to appellant’s affidavit to his Petition for Writ of Error and to appellant’s Bond for Cost, is virtually identical to the signature affixed to the lease, the subject of the original suit.

In his second point of error, appellant asserts that the default judgment is void because “service of process by appellee was insufficient as it was served on an individual not the appellant or agent for service for appellant.”

In order to uphold a default judgment which is directly attacked by a writ of error, it is essential that there be a strict compliance with the Texas Rules of Civil Procedure relating to the issuance of citation, the manner or mode of service and the return of process. Wayne Smith, Individually & d/b/a Wayne’s Restaurant v. Commercial Equipment Leasing Company, 678 S.W.2d 917 (Tex.1984); Mega v. Anglo Iron and Metal Company of Harlingen, 601 S.W.2d 501 (Tex.Civ.App. — Corpus Christi 1980, no writ); In a direct attack upon a default judgment, there are no presumptions of valid issuance, service and return citation. McKanna v. Edgar, 388 S.W.2d 927 (Tex.1965); Mega v. Anglo Iron and Metal Company of Harlingen, 601 S.W.2d at p. 503; Hanover Modular Homes of Taft v. Corpus Christi Bank & Trust, 476 S.W.2d 97 (Tex.Civ.App. — Corpus Christi 1972, no writ).

Appellant contends that the signatory on the subject lease agreement was himself, “Baltazar Salazar Jr.,” but that process of service was executed upon “Baltazar Salazar,” “a completely different person from appellant and not agent of appellant.” On the other hand, appellee argues (1) that the record affirmatively shows that appellant was personally served with process and (2) that, even though citation was issued to “BALTAZAR SALAZAR, d/b/a Eyeglass and Eyewear Optical,” the omission of the designation or suffix “Jr.” did not result in an invalid service of process.

A mistake in stating the defendant’s name in the citation has been consistently held to be fatally defective. Southern Pacific Company v. Block, 84 Tex. 21, 19 S.W. 300 (1892); Mega v. Anglo Iron and Metal Company of Harlingen, 601 S.W.2d at p. 504; Fleming v. Hemden, 564 S.W.2d 157 (Tex.Civ.App. — El Paso 1978, writ ref d n.r.e.).

However, unlike the cases cited in support of the preceding rule, the present case does not involve a misstatement of the defendant's name in the citation. In the instant case, the designation or suffix “Jr.” is a nonessential part of the appellant’s name for purposes of service of process, and the omission of said designation or suffix does not render the appellant’s name misstated, rather the omission merely renders the defendant’s name abbreviated in a common form. A commonly known diminutive or abbreviation of a name is sufficient to identify a person in absence of evidence indicating that a different person is intended. See O’Brien v. Cole, 532 S.W.2d 151 (Tex.Civ.App. — Dallas 1976, no writ); see also Ex Parte Elliott, 542 S.W.2d 863 (Tex.Crim.App.1976). Consequently, we hold that the omission of the designation or suffix “Jr.,” in and of itself, does not render service of process fatally defective. Furthermore, we hold that, in the instant case, the designation “d/b/a Eyeglass and Eyewear Optical” and the above-specified address are qualifications which insured that appellant, the signatory of the subject lease upon which appellee based its suit, would be the proper recipient of service of citation. See Hughes v. Board of Trustees, Tarrant County Junior College District, 480 S.W.2d 289 (Tex.Civ.App. — Fort Worth 1972, writ ref’d n.r. e.). We overrule appellant’s second point of error.

In his first point of error, appellant asserts that he was denied a statement of facts of the default judgment hearing. In support of his claim of entitlement to said statement of facts, appellant alleges in his brief on appeal that:

Appellant has exercised due diligence in requesting preparation of the statement of facts and designation ... and has consistently urged the court reporter for the preparation of the same when appellant’s counsel is in Brownsville.

Where an appealing party exercises due diligence and, through no fault of his own, is unable to obtain a proper record of the evidence introduced, he may be entitled to a new trial where his right to have the case reviewed on appeal can be preserved in no other way. Smith v. Smith, 544 S.W.2d 121 (Tex.Comm.App.1976, opinion adopted). However, the appealing party must exercise due diligence and be unable to obtain a proper record through no fault of his own. Ibid, at p. 123; see Victory v. Hamilton, 91 S.W.2d 697 (Tex.1936). Appellant has the burden to provide this Court with a record which reveals reversible error. Cook v. Kleberg County, 587 S.W.2d 776 (Tex.Civ.App — Corpus Christi 1979, no writ).

In the instant case, appellant does not allege that it was impossible to prepare a statement of facts, but rather that the court reporter would not respond to his request to do so. There is nothing in the record before us which supports appellant’s allegation. We hold that appellant’s allegation alone is insufficient to show due diligence or to show that, through no fault of his own, he was unable to procure a statement of facts. Appellant’s first point of error is overruled.

In his third point of error, appellant complains:

Appellant was not served with notice of the date and time of trial by the clerk of the trial court, in violation of Rule 21, Rule 21A and Rule 245, Texas Rules of Civil Procedure, and the same constituted a denial of appellant’s right to be-heard.

Appellant’s reliance on TEX.R.CIV.P. 21 and TEX.R.CIV.P. 21A (1981) is misplaced. These rules concern motions. The procedure to be followed in obtaining a default judgment is set out in TEX.R.CIV.P. 239 and 239A. TEX.R.CIV.P. 239, in pertinent part, provides:

Upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed an answer, and provided that the citation with the officer’s return thereon shall have been on file with the clerk the length of time required by Rule 107.

The record before us affirmatively shows compliance with the above procedure.

Regarding appellant’s complaint that there was a violation of TEX.R.CIV.P. 245, we note that, both before and after the 1984 amendments to the rule, TEX.R. CIV.P. 245 provided:

Noncontested cases may be tried or disposed of at anytime whether set or not, and may be set at anytime for any other time.

Appellant failed to timely file an answer; therefore, the noncontested suit pending against appellant at the time of the default judgment fell within the purview of and complied with the provision of TEX.R. CIV.P. 245 concerning noncontested cases. Appellant’s third point of error is overruled.

The judgment of the trial court is AFFIRMED.

GONZALEZ, J., not participating.

      . Although we have been unable to find any Texas civil cases directly on point, we note that it has been held by the Texas Court of Criminal Appeals that the designation or suffix “Jr.” forms no part of the defendant’s name, and its addition or omission is immaterial and may be rejected as surplusage. Cherry v. State, 447 S.W.2d 154 (Tex.Crim.App.1969); Smith v. State, 435 S.W.2d 526 (Tex.Crim.App.1969).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Alfred LUNA, Appellant, v. DANIEL INTERNATIONAL CORP., Appellee.
    No. 13-83-504-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 13, 1984.

      Charles Hood, Smith & Hood, Port Lava-ca, for appellant.
    R.D. Cullen, Cullen, Carsner, Seerden & Williams, Victoria, for appellee.
   OPINION

PER CURIAM.

This is an appeal from a summary judgment granted against appellant in the trial court below. We reverse and remand.

Appellant had brought suit against ap-pellee, his former employer, contending that he had been fired from his position with appellee for securing medical treatment for an on-the-job injury “while exercising his rights under the Texas Worker’s Compensation Act.”

Art. 8307c provides:
Sec. 1. No person may discharge or in any other manner discriminate against any employee because the employee has in good faith filed a claim, hired a lawyer to represent him in a claim, instituted, or caused to be instituted, in good faith, any proceeding under the Texas Workmen’s Compensation Act, or has testified or is about to testify in any such proceeding.
Sec. 2. A person who violates any provision of Section 1 of this Act shall be liable for reasonable damages suffered by an employee as a result of the violation, and an employee discharged in violation of the Act shall be entitled to be reinstated to his former position. The burden of proof shall be upon the employee.
Sec. 3. The district courts of the State of Texas shall have jurisdiction, for cause shown, to restrain violations of this Act.

In a suit pursuant to Art. 8307c, the plaintiff has the burden of establishing a causal link between the firing and the employee’s claim for worker’s compensation benefits. Hughes Tool Co. v. Richards, 624 S.W.2d 598 (Tex.Civ.App. — Houston [14th Dist.] 1981, writ ref'd n.r.e.) cert, denied (456 U.S. 991, 102 S.Ct. 2272, 73 L.Ed.2d 1286).

Appellee filed a motion for summary judgment, which alleged that appellee (defendant below) was “entitled to judgment as a matter of law because the uncontra-dicted summary judgment evidence establishes as a matter of law the lack of a causal connection between Plaintiff's discharge from employment with the Defendant and Plaintiff’s claim for worker’s compensation benefits as required under V.A. T.S. Art. 8307c.” The summary judgment evidence relied upon by appellee in support of its motion for summary judgment was the depositions of appellant and William Cox, appellee’s agent and former foreman who had discharged appellant. The record does not contain a written response filed by appellant. After a hearing, the trial court granted appellee’s motion for summary judgment, ordered that appellant take nothing and assessed costs of court against appellant.

In his sole point of error, appellant asserts that appellee’s motion for summary judgment was improperly granted because appellee failed to establish as a matter of law that there was no genuine issue of material fact regarding the existence of a causal connection between appellant’s discharge from his employment and his “exercising his rights under the Texas Worker’s Compensation Act.”

A defendant who moves for a summary judgment has the burden of showing, as a matter of law, that no material issue of fact exists as to the plaintiff’s cause of action. Griffin v. Rowden, 654 S.W.2d 434 (Tex.1983). This may be accomplished where the defendant is able to disprove, as a matter of law, at least one essential element of the plaintiff’s cause of action. Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975); Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970).

As stated above, the only summary judgment evidence presented before the trial court was the depositions of appellant and William Cox. In his deposition, appellant testified as follows: He received an alleged injury to his eye on the afternoon of Wednesday, August 25. He returned to work the next morning and was twice allowed to go to the company’s first aid station. His foreman, Bill Cox, “sort of” discouraged him. After having gone to the first aid station, he was then allowed to go see a doctor. Appellant had difficulty in obtaining transportation to and from the doctor’s office. Cox told appellant that he was too busy right then and that he didn’t have the time to drive appellant to the doctor’s office. Eventually, appellant was able to get a ride from his brother to the doctor’s office. Following his examination, the doctor told appellant that appellant could go back to work “but just don’t do nothing.” Appellant walked from the doctor’s office to his home where he waited'for a ride back to work for “a pretty good while — 45 minutes or something like that.” Upon his return to work later that afternoon, appellant was confronted with Cox, who complained about appellant not having “come back right fast.” After inquiring why appellant took so long returning from the doctor’s office, Cox told appellant that appellant was being discharged because he took too long in returning from the doctor’s office. Appellant did not discuss worker’s compensation benefits with Cox at the time he was terminated, although they did discuss payment of the doctor’s bill for which Cox stated “the company have to pay for it or something.” Cox had not threatened appellant in any way about going to the doctor’s office, but he was “kind of in a bad mood” and was mad about appellant’s visit to the doctor “because he didn’t want to do the paperwork or something” or “didn’t want the company to know about it or something.” Cox did not tell appellant that appellee would not pay for appellant’s doctor’s visit, although appellant offered to have his own insurance policy cover the cost of the doctor’s visit.

William Cox’s deposition testimony shows: Appellant complained of his injury on the afternoon of Wednesday, August 25, at which time he was sent to the nurse’s station at the worksite. The following morning (Thursday), appellant came back to the worksite and was allowed to leave at about 8:10 a.m. to go to see a doctor. Appellant said that he had a ride to the doctor’s office. Appellant did not return that same day, but returned the next day (Friday). When appellant did return to work that next morning (Friday), Cox asked appellant where he had been the day before; appellant replied that he went home to rest. Cox had called the doctor’s office the day before and had been informed that appellant was able to return to work that same day. Cox then dismissed appellant because appellant had failed to return to work after going to see the doctor on the previous day and because “I was going to have to terminate — layoff people anyway the following — the same afternoon and I just went ahead and gave Mr. Luna his papers that morning.” Deposition Exhibit No. 1 to Cox’s deposition indicates appellant was terminated on “08-26-82,” “Involuntary Termination Code *:62.”

As evidenced by the summary judgment evidence, both appellant and William Cox testified that the stated reason for appellant’s discharge was appellant’s failure to timely return from his doctor’s visit; however, as noted above, appellant testified that Cox was “kind of in a bad mood” and was mad about appellant’s visit to the doctor “because he didn’t want to do the paperwork or something “or” didn’t want the company to know about it or something.” We hold that appellant’s deposition testimony regarding Cox’s attitudes towards appellant’s doctor’s visit was sufficient to raise at least a fact issue as to the causal connection between appellant’s discharge and his possible claim for worker’s compensation benefits. We sustain appellant’s sole point of error.

The judgment of the trial court is REVERSED, and the cause is REMANDED to the trial court for a trial on the merits.


text:
    Gary GUM and Dorothy Gum, Appellants, v. Richard SCHAEFER, Appellee.
    No. 13-84-092-CV.
    Court of Appeals of Texas, Corpus Christi.
    Dec. 13, 1984.

      R. Owen Ricker, Jr., Larry Woody, Victoria, for appellants.
    Frank W. Henderson, R.D. Cullen, Victoria, for appellee.
   OPINION

PER CURIAM.

Gary and Dorothy Gum, appellants, sued Richard Schaefer, alleging breach of contract, breach of fiduciary duty and fraud. It is undisputed that Gary Gum and Richard Schaefer were equal partners in a partnership known as Spring Creek Land and Gravel and that, because of Gum’s financial and marital problems, Schaefer purchased Gum’s interest in the partnership. The terms of the purchase were set forth in a written agreement on August 6, 1982. Eight months later, Gum attempted to repurchase his partnership interest from Schaefer, alleging that the parties had, in conjunction with their written agreement, at the same time, entered into an oral agreement which permitted Gum to repurchase his interest at the same price for which he had sold it. Schaefer denied the existence of an oral buy-back agreement and refused Gum’s offer. Gum then sued. Trial was held before a jury, which found that Schaefer had not materially breached the written agreement and that Schaefer had not orally entered into a buy-back agreement with Gum.

Appellant’s first three points of error are interrelated and concern the trial court’s failure to submit the case to the jury on a theory of breach of fiduciary duty. Appellant’s first point of error asserts that the trial court erred in not finding that Gum and Schaefer were fiduciaries as a matter of law. The evidence was undisputed that Schaefer and Gum were partners, and it is established that partners who buy and sell their partner’s interest are fiduciaries since each is the confidential agent of the other. Johnson v. Peckham, 120 S.W.2d 786 (Tex.1938). Appellee concedes the error of the trial court but contends that such error was harmless. We agree that the trial court erred in not finding the existence of a fiduciary relationship, and we note that, because of this error, the trial court failed to instruct the jury on the burden of proof in fiduciary relationships and failed to submit an issue regarding the fairness of the transaction between Gum and Schaefer. These failures form the basis of the appellant’s second and third points of error, and they ultimately determine whether the trial court’s action was harmless to appellant.

Specifically, appellant’s second point of error asserts that the trial court erred in not submitting a factual issue on the fairness of the August 6, 1982, transaction. Point of error number three asserts the trial court erred in not submitting an instruction, which would have placed the burden of proving “fairness” on Schaefer. In order to determine the propriety of appellant’s requested issue and instruction, it is necessary to review the burdens placed upon fiduciaries.

The relationship between partners is highly fiduciary in nature, and their dealings with each other are subject to the same scrutiny, intendments and imputations as a transaction between an ordinary trustee and his cestui que trust. Johnson v. Buck, 540 S.W.2d 393 (Tex.Civ.App.— Corpus Christi 1976, writ ref’d n.r.e.). A sale by one partner to another of his interest in the partnership will be sustained only when it is made in good faith, for a fair consideration and on a full and complete disclosure of all important information regarding value. Johnson v. Peckham, 120 S.W.2d at p. 787.

Appellant contends that, because Gum and Schaefer were fiduciaries, the burden of showing the fairness of the August 6,1982, purchase agreement was upon Schaefer, the party now seeking to uphold the transaction. Appellant has cited us to various cases involving fiduciary relationships where the burden has been placed on the fiduciary to prove the fairness of the transaction. Representative of these is Archer v. Griffith, 390 S.W.2d 735 (Tex.1964), a case involving a fee arrangement between an attorney and client. It was held there that the burden of establishing the perfect fairness, adequacy and equity of the agreement was upon the attorney.

It was also noted that this rule applies equally to all persons standing in confidential relations with each other. Archer v. Griffith, 390 S.W.2d at p. 739. The presumption of unfairness has been similarly applied in cases involving infirm persons and those in a position of trust, Texas Bank and Trust Company v. Moore, 595 S.W.2d 502 (Tex.1980), Stephens County Museum, Inc. ¶. Swenson, 517 S.W.2d 257 (Tex.1975), boards of directors of corporations having common members, Crook v. Williams Drug Co., Inc., 558 S.W.2d 500 (Tex.Civ.App. — Tyler 1977, writ ref’d n.r. e.), and joint venturers, Naftalis v. Rankin, 542 S.W.2d 893 (Tex.Civ.App. — East-land 1976, rev’d on other grounds 557 S.W.2d 940 (Tex.1977). Since partners occupy the same fiduciary relationship (i.e., that of a trustee and his cestui que trust) as those individuals in the above cited cases, the presumption of unfairness applies to a partner purchasing another partner’s interest in the partnership. The effect of the presumption of unfairness is to place the burden of proving that the transaction was fair upon the party seeking its enforcement. For instance, in Cole v. Plummer, 559 S.W.2d 87 (Tex.Civ.App.— Eastland 1977, writ ref d n.r.e.), it was held that the benefiting fiduciary, an attorney, had the burden of presenting evidence and securing a finding that the confidential relationship was not breached. The Court of Appeals further stated that the material issues were whether the attorney made reasonable use of the confidence placed in him and whether the employment contract was ultimately fair and equitable to the client. The Court of Appeals reversed the judgment of the trial court because the trial court had refused to submit several special issues, one of which was: “Do you find from a preponderance of the evidence that the terms of said employment contract were fair and equitable to Matilda Cole (appellee’s client)?” Since it appears from Cole v. Plummer that the burden of persuasion (and hence the burden of requesting an issue) to prove that the transaction was fair and equitable was upon the attorney, by failing to submit the present case to the jury on a theory of a breach of fiduciary duty, the trial court allowed Schaefer to escape his burden of proving and obtaining a jury finding that the transaction ■ was fair to his fiduciary. Such error was not harmless.

Appellee contends that the issue tendered by appellant was not in substantially correct form and was properly denied for that reason. We disagree. Issues very similar to the one requested by appellant have been approved in Fillion v. Troy, 656 S.W.2d 912 (Tex.App. — Houston [1st Dist.] 1983, writ ref’d n.r.e.) and Cole v. Plummer, 559 S.W.2d 87 (Tex.Civ.App. — East-land 1977, writ ref’d n.r.e.). See also: Crook v. Williams Drug Co., Inc., 558 S.W.2d 500 (Tex.Civ.App. — Tyler 1977, writ ref’d n.r.e.). Based on the above authority, the trial court should have submitted to the jury appellant’s requested issue and instruction. Appellant’s first three points of error are sustained.

In his fourth point of error, appellant contends that, since the trial court refused to find that appellant and appellee were fiduciaries as a matter of law, the court should have at least submitted the issue to the jury pursuant to a proper request from appellant. This point of error is controlled by our disposition of point one. A fact issue should not have been submitted since Gum and Schaefer were fiduciaries as a matter of law. Johnson v. Peckham, 120 S.W.2d 786. Point of error four is overruled.

In his fifth point of error, appellant contends the trial court erred in placing on appellant the burden of proving the existence of the oral buy-back. We disagree. Even if the case had been submitted to the jury on a theory of breach of fiduciary duty, rather than actual fraud, the burden of showing the breach would have been on appellant. See Moore v. Texas Bank and Trust Company, 576 S.W.2d 691 at p. 695, (Tex.Civ.App. — Eastland 1979), rev’d on other grounds, 595 S.W.2d 502 at p. 509 (Tex.1980). Appellant’s fifth ground of error is overruled.

Appellant’s sixth point of error asserts that the trial court erred in overruling his challenge for cause of a potential juror and that he was forced to exercise a peremptory challenge on this juror, thereby requiring him to accept another objectionable jur- or. Appellant exhausted his peremptory challenges, and juror House, who appellant stated to be objectionable, was seated on the jury. Appellant contends juror Mendie-ta admitted bias and should have been excused for cause.

Bias and prejudice are statutory grounds for disqualification of a juror under TEX.REV.CIV.STAT.ANN. art. 2134(4) (Vernon 1964). A juror is disqualified when bias or prejudice is established; however, whether a juror is biased or prejudiced may be a factual determination for the court. Swap Shop v. Fortune, 365 S.W.2d 151 (Tex.1963).

To disqualify a juror for bias, it must appear that the state of mind of the juror leads to a natural inference that he will not act with impartiality. Compton v. Henrie, 364 S.W.2d 179 (Tex.1963).

If evidence conclusively establishes that a jury panelist had a state of mind in favor of or against a litigant or type of suit so that the panelist would not act with impartiality or prejudice in the cause, an appellate court must hold that the panelist was disqualified as a matter of law; however, whenever the evidence does not conclusively establish the panelist’s disqualification as a matter of law, the appellate court must consider the evidence in a light most favorable to upholding the trial court’s ruling. Bullard v. Universal Underwriters Insurance Co., 609 S.W.2d 621 (Tex.Civ.App. — Amarillo 1980, no writ).

In the case at bar, the record shows that the juror was acquainted with appellee’s counsel, Mr. Cullen. The record further shows the following questions and answers regarding the alleged bias:

JUROR MENDIETA: I know Mr. Cullen. He is our lawyer.
MR. WOODY: Don’t you think you would have a tendency to believe him a little bit more than you would believe me, so you would be a little bit biased in his favor?
JUROR MENDIETA: Right.
THE COURT: And, of course, the lawyer that you select to represent you, you obviously have expressed some confidence in. But, you understand that Mr. Cullen is not a party to this lawsuit, he is simply here representing Mr. Schaefer? Now, do you feel that because of the acquaintanceship that you have developed with Mr. Cullen you would lean towards his side of this litigation simply because of your acquaintanceship with him?
JUROR MENDIETA: To be honest, I think I would.
THE COURT: And you don’t think just because Mr. Cullen represents them that they are necessarily correct in their position in the lawsuit?
JUROR MENDIETA: Right.
THE COURT: What is it about your acquaintanceship with Mr. Cullen that you think would influence you?
JUROR MENDIETA: Well, I don’t think it really would, to a certain degree. MR. WOODY: May it please the Court, I think the witness has admitted bias twice now, and I don’t believe it is possible to rehabilitate her.
THE COURT: Well, I just want to be sure that I fully understand what Mrs. Mendieta’s position is with regard to this. If you were selected to serve on the jury and at the final arguments Mr. Cullen took one view of the evidence and Mr. Woody took another view of the evidence, would you be more inclined to be persuaded by Mr. Cullen simply because
you know him, than you would by Mr. Woody?
JUROR MENDIETA: No, I go by what is fair, what sounds fair.
THE COURT: Well, you said earlier that you thought it would affect you.
JUROR MENDIETA: Well, at first I thought it would, to a certain degree. THE COURT: Well, now that you have had explained to you the role of the lawye' ■ in the trial of the case, do you feel that you could put aside your acquaintanceship with Mr. Cullen and give Mr. Woody’s client just as fair a trial as you could Mr. Cullen’s client?
JUROR MENDIETA: Probably could. The only thing that I have heard — Well, I don’t know that Mr. Gum, but I have heard his name mentioned at work.
THE COURT: Well, even though you haven’t met him, have you heard anything about him that would influence you if you were selected to serve on this jury?
JUROR MENDIETA: No. All I heard was that time that they were, you know, in the process of claiming bankruptcy. THE COURT: Okay. The same thing that Mr. Woody mentioned to you? JUROR MENDIETA: Right.
MR. WOODY: Mrs. Mendieta, you have said to me twice that you have a bias in favor of Mr. Cullen’s client, and that is understandable. I am sure that you have established the position of truth and confidence with him, and there is nothing wrong with that.
But, you understand that we are looking for somebody who doesn’t have a bias. But, you do have a bias, don’t you?
JUROR MENDIETA: Right.
MR. CULLEN: Mrs. Mendieta, if you are selected on this jury would you decide the case in accordance with the evidence you heard from the witness stand, or would the fact that I had something to do with this case be considered by you to be evidence, or would it influence you to the extent that you couldn’t decide the case on the evidence.
JUROR MENDIETA: No.
MR. CULLEN: It would not?
JUROR MENDIETA: No.
MR. CULLEN: Could you be fair and impartial to both sides, regardless of what my position was?
JUROR MENDIETA: Right.
MR. CULLEN: Would you do that? JUROR MENDIETA: Right.
THE COURT: I think the critical question is whether or not the bias would affect her, and that if she denies its effect and says she could, that she has the bias but that she could put it aside, she is competent and qualified.

The trial court overruled appellant’s challenge for cause to this juror. We find that the trial court erred. Bias or prejudice disqualifies a juror as a matter of law and removes all discretion from the trial judge. Compton v. Henrie, 364 S.W.2d at p. 182. Even where such a juror is “rehabilitated” through the efforts of counsel or the court by stating that he could decide the case on the evidence and could be fair to both sides, the trial court must excuse the juror. Carpenter v. Wyatt Construction Company, 501 S.W.2d 748 (Tex.Civ.App. — Houston [14th Dist.] 1973, writ ref’d n.r.e.); Lumbermen’s Insurance Corporation v. Goodman, 304 S.W.2d 139 (Tex.Civ.App. — Beaumont 1957, writ ref’d n.r.e.). Even after the trial court attempted to rehabilitate the juror, Mendieta testified that she was biased. The juror should have been excused. Appellant’s sixth point of error is sustained.

Since we have sustained appellant’s points of error numbers one, two, three and six, we REVERSE the judgment of the trial court and REMAND the cause for a new trial.

      . B.J. Davis was the third and only other partner in this business. His existence and relationship with Gum and Schaefer are irrelevant to this particular case.

      . Dealings between an attorney and client are subject to the same scrutiny, intendments and imputations as a transaction between an ordinary trustee and his cestui que trust. Archer v. Griffith, 390 S.W.2d at p. 739.

      . This is consistent with the holding in Moore v. Texas Bank and Trust Co., 576 S.W.2d 691, (Tex. Civ.App. — Eastland 1979), rev’d on other grounds, 595 S.W.2d 502 (Tex.1980).


author: CANNON, Justice.

text:
    Martin VAN VOORHIES, Individually and d/b/a Martin Van Voorhies Associates, Appellant, v. Alex HUDSON, Appellee.
    No. A14-84-225-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 13, 1984.
    Edward Trey Bergman, Fouts & Moore, Houston, for appellant.
    Leonard Z. Finger, Finger, Burg, Cohen & Forlano, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

This is a suit on a sworn account. Appellant, Martin Van Voorhies, Individually and doing business as Martin Van Voorhies Associates brought suit in the trial court against appellee, Alex Hudson. Appellant sought recovery of money due and owing by reason of goods furnished and services rendered in the decorating of appellee’s home.

Trial was to a jury. The jury answered four special issues in favor of appellant.

The trial court overruled appellant’s motion for judgment on the verdict of the jury and granted appellee’s motion for judgment non obstante veredicto. Appellant brings this appeal asserting that the trial court’s granting of the Judgment NOV was error. We agree and reverse and render.

The record reflects the following facts. Martin Van Voorhies testified he is one of two stockholders and the president of Martin Van Voorhies Inc. He is an authorized agent of the corporation and works through the corporation. Also, the services performed for Alex Hudson were treated as a corporate matter and expenses incurred were corporate expenses. Furthermore, he seeks reimbursement for Martin Van Voorhies Associates for services rendered and goods furnished. The trial judge granted a Judgment NOV for appel-lee on tiie basis that Martin Van Voorhies Individually and doing business as Martin Van Voorhies Associates did not possess the claim or cause of action against Alex Hudson. But rather, the corporation, Martin Van Voorhies Associates Inc., of which Martin Van Voorhies was a stockholder and president, was the rightful owner of the claim. While this may or may not be true, it is nor for us to decide. The appropriate time to contest a defect of parties or capacity of the appellant is before trial by way of a verified plea. Tex.R.Civ.P. 93(b), (c), (e) (Vernon 1979).

The question of whether Alex Hudson contracted with Martin Van Voorhies Individually or Martin Van Voorhies Associates Inc. is not to be decided on appeal; rather the question before us is whether the trial court erred in granting the Judgment NOV absent a verified plea before trial. The record reflects appellee did not file a verified plea under Rule 93 before trial nor did appellee seek a trial amendment to challenge the alleged defect of parties or the capacity of the appellant. We find the failure to challenge the appellant’s capacity or a defect of parties in the manner prescribed by Rule 93 results in a waiver on appeal.

In light of conflicting and often confusing case law on this issue, we find solace in the decision of the El Paso Court of Appeal. Biggs v. Garrett, 651 S.W.2d 342 (Tex.App. — El Paso 1983, no writ). The reasoning and logic of this court in applying Rule 93 appeals to our court.

Biggs v. Garrett is a case not unlike the case at bar. Robert L. Garrett d/b/a Garrett Building Centers brought suit against Robert Biggs for breach of contract arising from Biggs’ failure to pay in full an amount owed for remodeling of Biggs’ home. Trial was to the court and judgment was entered in favor of Garrett.

On appeal Biggs complained that the contract was entered into by Garrett Building Centers Inc. and that any cause of action belonged solely to the corporation and that Garrett individually did not have the capacity to sue on the contract in question. There was, as in the present case, an absence of a sworn pleading which challenged Garrett’s right to sue in his individual capacity or that there was any defect of parties. Tex.R.Civ.P. 93. The evidence reflected, as here, that Garrett was the president and major stockholder of Garrett Building Centers Inc. The El Paso Court held regardless of how Garrett, Individually, acquired the cause of action, Biggs waived any legitimate complaint.

A party who desires to contest his opponent’s lack of capacity to sue or a defect of parties must do so by a sworn pleading before the case is called to trial or such defect is waived. See Bluebonnet Farms v. Gibraltar Savings Ass’n, 618 S.W.2d 81 (Tex.Civ.App. — Houston [1st Dist.] 1980, writ ref’d n.r.e.); Kriegel v. Scott, 439 S.W.2d 445 (Tex.Civ.App.— Houston [14th Dist.] 1969, writ ref’d n.r.e.); Sam Kane Beef Processors, Inc. v. Manning, 601 S.W.2d 93 (Corpus Christi 1980, no writ).

Here, the appellee failed to file a sworn pleading challenging appellant’s right to sue in his individual capacity or that there was any defect of parties. Just how appellant acquired the cause of action is not before this Court. Regardless, appellee has waived any legitimate complaint. Biggs v. Garrett, 651 S.W.2d at 343.

Accordingly, we find the trial court erred in granting appellee’s motion for judgment non obstante veredicto and reverse. The jury’s verdict is reinstated and judgment entered for appellant.

      . This rule was later amended and became effective April 1, 1984.


text:
    Leroy LISCHEFSKI, Appellant, v. NATIONAL SURETY CORPORATION, Appellee.
    No. A14-84-429CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 13, 1984.
    Cornelius Gibbs, Tulsa, Okl., for appellant.
    Gordon M. Carver, III, Wyckoff, Russell, Dunn & Frazier, Houston, for appellee.
    Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.
   OPINION

CANNON, Justice.

The Industrial Accident Board determined that the appellant was compensably injured and ordered payment of certain benefits. The insurance carrier paid the benefits ordered; no appeal was perfected. The appellant brought suit in the trial court to enforce the award as to medical charges incurred before the date of the Board’s award. The trial court granted a summary judgment in favor of appellee. We affirm.

Appellant argues two issues. First, that the trial court erred because the pleadings and documents placed in issue a dispute as to material issues of fact. Second, the trial court erred in granting a summary judgment because the pleadings and documents placed in issue established a dispute as defendant’s fraudulent conduct. This, the appellant argues, caused an omission of specified medical bills from the Industrial Accident Board.

We affirm the judgment of the trial court because appellee’s cause of action was a suit to enforce an award of the Industrial Accident Board. Since the award of the Board had been fully and finally satisfied the trial court lacked jurisdiction to entertain appellee’s cause of action. Appellee’s additional assertion of fraudulent conduct was a collateral attack upon the propriety of the Board’s award. The judgment of the trial court is affirmed.

The Industrial Accident Board determined that the appellant was compensably injured and ordered payment of $7,876.24 less payments previously paid by the carrier in the amount of $1,995.00. The carrier paid a total of $5,881.24. The award was not appealed, and therefore became final.

Certain medical bills had been distributed to the appellee but were not submitted to the Industrial Accident Board. The appellant had earlier received one of the bills in the amount of $24.00 and appellee represented that it had been paid but later admitted that it “was apparently overlooked for payment.”

Appellant’s cause of action was brought in the trial court under Tex.Rev.Civ.Stat. Ann. art. 8307 § 5a (Vernon 1974). This section provides in part as follows:

In all cases where the Board shall make a final order, ruling or decision as provided in the preceding Section and against the association, and the association shall fail and refuse to obey or comply with the same and shall fail or refuse to bring suit to set the same aside as in said Section is provided, then, in that event, the claimant in addition to the rights and remedies given him and the Board in said Section may bring suit where the injury occurred, upon said order, ruling or decision. If he secures a judgment sustaining such order, ruling or decision in whole or in part, he shall also be entitled to recover the further sum of twelve per cent as damages in said judgment, together with a reasonable attorney’s fee for the prosecution and collection of such claim, (emphasis added).

In appellant’s first point of error the argument is that the trial court erred in granting summary judgment to Defendant, for the reason that the pleadings and documents on file, as placed in issue by Plaintiff’s Response to Motion for Summary Judgment, established a dispute as to material issues of fact.

Appellant’s second point of error is that the trial court erred in granting summary judgment to Defendant because the pleadings and documents on file established a dispute as to Plaintiff’s material allegations and Defendant’s fraudulent conduct caused omission of the specified medical bills from the I.A.B. award.

Both the appellant and the appellee have combined their argument relating to the two points of error. Our opinion will follow the same pattern.

Texas cases hold that collateral matters as to propriety of the award are not allowed under section 5a causes of action. The only matter properly before the court in such actions is the question of compliance with the IAB’s award. Texas Employers Insurance Association v. Singleton, 616 S.W.2d 232 (Tex.Civ.App. — San Antonio 1980, writ ref’d n.r.e.). In a suit to enforce an award of the Board there is no trial de novo as is the case with a suit to set aside an award. Where the relief sought is enforcement, the issues decided by the board are not before a court. Here the evidence is undisputed that the award has been made by the Board; that the time for appeal has expired and appellee has complied with the award. The appellee was entitled to a summary judgment as a matter of law.

The appellant further argues that the carrier’s conduct in not submitting the medical bills to the Board and remaining silent estops the appellee from asserting a defense of non payment.

These arguments by appellant as to whether or not the carrier had a responsibility to forward the medical bills to the IAB, and waiver, and estoppel are all collateral attacks on the IAB ruling and are misplaced in a section 5a suit for enforcement. Texas Employers Insurance Association v. Singleton, 616 S.W.2d 232 (Tex. App. — San Antonio 1980, writ ref’d n.r.e.). In Vestal v. Texas Employers’ Insurance Association, 285 S.W. 1041 (Tex.Comm’n App.1926, opinion adopted) the court construes and interprets the statutory predecessor of 8307 sec. 5a but the principles followed in that case apply to the current amended statutes. Texas Employers Insurance Association v. Singleton, 616 S.W.2d 232 (Tex.Civ.App. — San Antonio 1980, writ ref d n.r.e.).

An award by the IAB which is not appealed as prescribed by the statute becomes final and unappealable. A section 5a proceeding is collateral to the award and cannot include an attack upon the final award, except to show that it was void for want of jurisdiction. Gentry v. Travelers Insurance Company, 459 S.W.2d 709 (Tex. Civ.App. — Houston [14th Dist.] 1970, writ ref’d n.r.e.). Points one and two are overruled.

The judgment of the trial court is affirmed. .


author: ELLIS, Justice.

text:
    SWEENY COMMUNITY HOSPITAL, et al., Appellant, v. Fatima SAYEED, M.D., Appellee.
    No. B14-84-445CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Dec. 13, 1984.
    Robert L. LeBoeuf, Gilbert & Gilbert, Angleton, for appellant.
    Wiley Thomas, Angleton, for appellee.
    Before PRESSLER, ROBERTSON and ELLIS, JJ.
   OPINION

ELLIS, Justice.

Sweeny Community Hospital, members of its board of directors, and several members of its medical staff appeal from an order granting a temporary injunction by the trial court in favor of appellee, Fatima Sayeed, M.D., enjoining them from interfering with appellee’s medical practice, clinical rights, or in any way limiting the surgical privileges of appellee. We vacate the trial court’s order and dissolve the injunction.

Appellants bring six points of error on appeal. All of the points allege an abuse of discretion by the trial court. Appellants’ first point of error asserts that the trial court abused its discretion, as a matter of law, because it failed to apply the law correctly to the undisputed facts. Points two and three allege error in an abuse of discretion because the court granted a temporary injunction which interfered with the lawful exercise of duties and functions granted to the hospital governing board by statute and failed to balance the equities between public and private injury. Appellants in their fourth point of error claim an abuse of the trial court’s discretion because the court lacked jurisdiction since appellee failed to exhaust her administrative remedies. In their fifth and sixth points of error, appellants assert an abuse of discretion by the trial court because there was no pleading or proof which established that appellee had a probable right of recovery and was entitled to injunctive relief and because the court entered an injunctive order which does not conform to the specific provisions of TEX.R.CIV.P. 683.

We agree with appellants’ fourth point of error. The hospital adopted bylaws, some of which provide for the appointment, termination, delineation, and curtailment of medical privileges. When a board is given the right of administrative review the administrative procedures must be exhausted before injunctive relief is sought. In State v. Sewell, 487 S.W.2d 716, 719 (Tex.1972), the court held that where decisions at prior hearings were not final determinations of merits of the complaints, an injunction preventing further administrative review was an interference with the grievance procedures and a clear abuse of discretion. In that case the injunction was vacated. In Texas Alcoholic Beverage Commission v. Lancaster, 563 S.W.2d 380, 381 (Tex.Civ.App. — San Antonio 1978, no writ), the court held that the trial court was without jurisdiction since the plaintiff failed to exhaust his administrative remedies. See also Daniel v. Dallas Independent School District, 351 S.W.2d 356 (Tex.Civ.App. — El Paso 1961, ref’d n.r.e.).

We find that appellee failed to exhaust her administrative remedies. The Executive Committee of the medical staff had recommended that: (1) appellee’s surgical privileges be reinstated but that a staff board certified or board eligible surgeon must assist at all surgical procedures under general anesthesia, (2) appellee should enroll in a review course in anesthesiology, and (3) appellee should have a one (1) year probation in which all surgical cases would be reviewed. The hospital’s Board of Governors had referred the matter back to the Executive Committee, a committee composed of staff members, for further consideration. The committee was unable to make a final determination because appellee had filed suit and the trial court granted a temporary restraining order to prevent any further action regarding appellee’s surgical and clinical privileges. During the temporary injunction hearing appellee admitted that she knew the matter had been referred back to the Executive Committee and therefore she knew that all administrative remedies had not been exhausted. Clearly, appellee sought the injunction before all of the available administrative remedies had been exhausted, before there was a final determination by the Board of Governors. Without an exhaustion of the administrative remedies, the trial court was without jurisdiction. Since the court lacked jurisdiction, we must dissolve the injunction.

Due to the discussion above, we find it unnecessary to consider appellants’ other points of error. Accordingly, the trial court’s order is set aside and the injunction is dissolved.


author: ALLEN, Justice.

text:
    FINANCIAL UNIVERSAL CORPORATION, Appellant, v. MERCANTILE NATIONAL BANK AT DALLAS, Appellee.
    No. 05-83-01509-CV.
    Court of Appeals of Texas, Dallas.
    Dec. 18, 1984.
    Rehearing Denied Jan. 22, 1985.

      Joseph L. Rosenfield, Freeman L. Mitten-thal, Dallas, for appellant.
    Jeff Joyce, Winstead, McGuire, Sechrest & Minick, Dallas, for appellee.
    Before AKIN, CARVER and ALLEN, JJ.
   ALLEN, Justice.

Financial Universal Corporation (Financial) appeals from a summary judgment denying its claim against Mercantile National Bank at Dallas (Mercantile) for Mercantile’s failure to pay a check presented to Mercantile. Financial argues, in three points of error, (1) that the trial court erred in rendering summary judgment because fact issues remained after the presentation of all the summary judgment evidence, (2) that the summary judgment was erroneous because, as a matter of law, the check was presented to Mercantile for payment on sight and was not presented for collection, and (3) that among the fact issues remaining were issues concerning Mercantile’s negligence and conversion. We sustain Financial’s first point of error and reverse and remand for a trial on the merits.

The controversy between the parties in this case arose after Charleston Corporation, one of Mercantile’s customers, gave a check for $8,500.00 to Financial. Financial deposited the check in the National Bank of Georgia, which presented it to Mercantile. Mercantile found insufficient funds in Charleston’s account to pay the check and timely returned it to the National Bank of Georgia. The National Bank of Georgia re-presented the check to Mercantile, along with a notice form. Mercantile received the check and notice form on October 22, 1981. One page of the notice form read in part:

PLEASE FIND ENCLOSED FOR COLLECTION
Deliver documents only on payment. Do not hold after dishonor, unless otherwise instructed. Remit in Atlanta or New York Exchange. If unpaid, give full reason.
Another page of the notice form appeared as follows:
PAYER — WHERE PAYABLE — TYPE THEIR DATE OF ITEM — SPECIAL INSTRUCTIONS OR NUMBER DUE
Charleston Corporation ‘ 10/1/81 Sight
Operating Account
Please remit by Cashiers Check.
Our customer has spoken to Mr. Collins in referance (sic) to these checks.
Call Herb Waldman when
checks are paid.

Again there were insufficient funds in Charleston’s account to pay the check. Craig Collins, an employee of Mercantile, spoke on the telephone about the check to Violet White, an employee of the National Bank of Georgia. All agree he told her that Mercantile was dishonoring the check and returning it. Collins and White disagree on the date of the conversation. Collins says he spoke to White on October 22; White, in her affidavit, insists that they spoke sometime after November 19. An assistant vice-president of Mercantile stated in his affidavit that on October 22 Mercantile put the check in the mail “to be returned to the National Bank of Georgia.” Mercantile admits on appeal that it mailed the check to a Fort Worth address instead of the Atlanta address of the National Bank of Georgia. Financial claims that the Fort Worth address is Charleston Corporation’s address, but does not refer this court to summary judgment evidence which would establish this claim. Financial did produce summary judgment evidence, namely, Violet White’s affidavit, indicating that the National Bank of Georgia had not received the check back from Mercantile during the month of October.

The basis for Financial’s suit was that Mercantile had an obligation, under TEX. BUS. & COM.CODE 4.302 (Vernon 1968) (UCC), to give notice of dishonor of the re-presented check by its midnight deadline and that Mercantile was liable for the amount of the check since it failed to meet that obligation. Mercantile argues (1) that it had no obligation to give notice of dishon- or by the midnight deadline since the check came to it on re-presentation, and (2) that the check was not payable on sight since the accompanying notice form read “Please Find Enclosed for Collection” and contained other notations conclusively showing that the check was re-presented for collection and not for payment.

If Mercantile’s first argument is correct, it is entitled to judgment as a matter of law. We hold, however, that Mercantile was obliged to give notice of dishon- or by the midnight deadline after the representation of the check. In a majority of the jurisdictions which have applicable case law on this question, including the major commercial jurisdictions of New York and California, the courts have agreed that banks must treat re-presented checks in the same fashion as checks presented for the first time (in the absence of specific contrary custom or agreement). Huntmix Inc. v. Bank of America National Trust & Savings Association, 134 Cal.App.3d 347, 184 Cal.Rptr. 551 (1982); Blake v. Woodford Bank & Trust Co., 555 S.W.2d 589, 597-601 (Ky.App.1977); Wiley v. Peoples Bank & Trust Co., 438 F.2d 513, 515-17 (5th Cir.1971) (applying Mississippi law); Sun River Cattle Co. v. Miners Bank of Montana N.A., 164 Mont. 237, 521 P.2d 679, 687 (1974); Prestige Motors v. Carteret Bank & Trust Co., 183 NJ.Super. 525, 444 A.2d 627 (1982), affd, 188 NJ.Super. 610, 458 A.2d 140 (1983); David Graubart, Inc. v. Bank Leumi Trust Corp., 48 N.Y.2d 554, 423 N.Y.S.2d 899, 399 N.E.2d 930, 933 (1979). The only contrary decisions we have found are from Oklahoma, Kansas, and Missouri. Goodman v. Norman Bank of Commerce, 551 P.2d 661 (Ct.App.Okla.1976); Leaderbrand v. Central State Bank of Wichita, 202 Kan. 450, 450 P.2d 1, 8-10 (1969); Whalen & Sons Grain Co. v. Missouri Delta Bank, 496 F.Supp. 211, 214 n. 2 (E.D.Mo.1980).

We perceive a number of reasons for adopting the majority rule that banks must observe the midnight deadline requirement when they receive re-presented checks in the absence of some contrary custom or agreement. First, Leaderb-rand, the original and seminal case in the minority line of decisions, at least in part based its holding erroneously on UCC § 3-511(4), which states that dishonor of a draft by nonacceptance excuses later presentment and later notice of dishonor. Leaderbrand, 450 P.2d at 9; see TEX.BUS. & COM.CODE § 3.511(d) (Vernon 1968). However, UCC § 3-511(4) (3.511(d) in the Texas code) applies only to the time items. It does not apply to demand items. Wiley, 438 F.2d at 516-17; accord: Huntmix, 184 Cal.Rptr. at 554-55, Blake, 555 S.W.2d at 598; Sun River Cattle Co., 521 P.2d at 687; Prestige Motors, 458 A.2d at 141-42; Graubart, 423 N.Y.S.2d at 902, 399 N.E.2d at 933.

Second, the Texas Uniform Commercial Code obliges us to strive to make the interpretation of the UCC as uniform as possible among the states. TEX.BUS. & COM.CODE § 1.102(b)(3) (Vernon 1968); see, First National Bank in Grand Prairie v. Lone Star Life Insurance Co., 524 S.W.2d 525, 528 (Tex.Civ.App.—Dallas 1975), writ refd n.r.e. per curiam, 529 S.W.2d 67 (Tex.1975); also, Morton v. Texas Welding & Manufacturing Co., 408 F.Supp. 7, 10-11 (S.D.Tex.1976). This obligation provides persuasive reason for adopting the majority rule.

Finally, and most important, there is a practical reason for adopting the majority rule. The Kentucky Court of Appeals stated this reason well in Blake, 555 S.W.2d at 601:

If a payor bank was not required to meet its midnight deadline with respect to previously dishonored items, then none of the other banks in the collection process could safely assume that the check had been paid.... If a payor bank is not bound by its midnight deadline as to previously dishonored items, then there is no way for a depository bank to know whether a previously dishonored item had been paid upon re-presentment except by direct communication with the payor bank. Such a procedure would impose an unnecessary burden on the check collection process.

For these reasons, we adopt the majority rule and hold that unless there was some contrary custom or agreement making the re-presented check in question a time item rather than a demand item, Mercantile was obliged to give notice of dishonor by its midnight deadline.

Mercantile contends, however, that it is entitled to summary judgment even if the midnight deadline rule applies to represented checks. First, Mercantile argues that it did give notice of dishonor when it put the dishonored check in the mail “to be returned to the National Bank of Georgia” within twenty-four hours of its receipt. The summary judgment evidence is uncon-troverted, showing that Mercantile mailed the check addressed to the National Bank of Georgia, but directed to a Fort Worth, Texas address. The evidence shows further that the National Bank of Georgia had no branch office in Fort Worth, Texas. Hence, the summary judgment evidence shows that Mercantile mailed the check to the wrong address. UCC 3-508(3), TEX. BUS. & COM.CODE § 3.508(c) (Vernon 1968), provides that “[njotice [of dishonor] may be given in any reasonable manner.” It is, of course, not reasonable to send the notice to the wrong address. The summary judgment evidence does not establish that Mercantile gave notice of dishonor by mailing the dishonored check back to the National Bank of Georgia.

Mercantile also argues that the check was not a demand item payable on sight, since the notice form attached to it read “Please Find Enclosed For Collection.” The words “for collection” on a document accompanying a check may indeed indicate that the check is not a demand item payable on sight. Western Air & Refrigeration, Inc. v. Metro Bank of Dallas, 599 F.2d 83, 84-90 (5th Cir.1979) (applying Texas law). However, the phrase “for collection” is not an incantation which magically fixes the nature of an item, no matter what else may be written on the instrument or an accompanying document. In New Ulm State Bank v. Brown, 558 S.W.2d 20, 24 (Tex.Civ.App.— Houston [1st Dist.] 1977, no writ), the drafts bore the words “WE ENCLOSE FOR COLLECTION AND RETURN OR CREDIT WHEN PAID.” The Court of Civil Appeals nonetheless found that each draft was a demand item, payable “at sight,” and “due and actionable upon presentation.” Id.

Mercantile, though, also points to the fact that one page of the notice form contained the instructions “remit by cashier’s check” and “[c]all Herb Waldman when checks are paid.” Mercantile notes that Graubart seems to hold that an instruction to remit by cashier’s check is a sign of an agreement that the check in question would not be payable on sight. See, Graubart, 423 N.Y.S.2d 901 & 905, 399 N.E.2d at 932 & 936. Although such an instruction might be one sign that the item is not payable on sight, other notations on the notice form here indicate that the check in this case was a demand item. In particular, one page of the notice form indicates explicitly that the check was due on sight, and a notation immediately underneath the words “for collection” on another page expressly instructs the bank not to hold after dishonor. These notations are so unequivocally clear that, in the absence of some custom or agreement extrinsic to the notice form, they would conclusively establish that the check was a demand item, despite the words “for collection” and the instructions to remit by cashier’s check and notify a designated person upon payment. Cf, New Ulm State Bank, 558 S.W.2d at 24.

Thus, if the summary judgment evidence had conclusively showed that the check and the notice form constituted the entire agreement between Mercantile, the National Bank of Georgia, and Financial concerning the re-presentation of the check and that there was no custom under which Mercantile could hold the check for collection, we could and would conclude from the face of the check and the notice form that the check was, as a matter of law, a demand item. The summary judgment evidence, though, does not conclusively negate the possibility that Financial and Mercantile operated under some custom or had some oral or written agreement, not reflected in the notice form, allowing Mercantile to hold the cheek after the midnight deadline.

We conclude that a fact issue remains on whether there was any custom or agreement apart from the notice form under which Mercantile was to hold the check for collection. There is also a fact issue on whether Craig Collins, an agent of Mercantile, gave oral notice of dishonor to Violet White of the National Bank of Georgia by the midnight deadline. Consequently, neither party is entitled to summary judgment. TEX.R.CIV.P. 166-A(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970) (summary judgment evidence must show absence of material fact issues as a matter of law for movant to be entitled to summary judgment). Consequently, we reverse and remand the cause to the trial court for further proceedings consistent with this opinion.

      . UCC 3-508(3), TEX.BUS. & COM.CODE § 3.508(c), provides that oral notice of dishonor may be sufficient to comply with the midnight deadline rule. Greer v. White Oak State Bank, 673 S.W.2d 326, 328 (Tex.App. — Texarkana 1984, no writ).


author: BLEIL, Justice.

text:
    Thomas Andrew SHANNON, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 6-83-007-CR.
    Court of Appeals of Texas, Texarkana.
    Dec. 18, 1984.
    Bill Pemberton, Joe Weis, Greenville, for appellant.
    F. Duncan Thomas, Dist. Atty., Green-ville, for appellee.
   BLEIL, Justice.

The State tried Thomas Shannon, Jr., for the offense of aggravated robbery but the jury convicted him of the lesser included offense of robbery. His appeal hinges on whether the court’s charge failed to apply the law to the facts of this case and, if so, whether that failure constitutes fundamental error. We would resolve these issues in favor of the State and affirm were it not for a recent decision of the Court of Criminal Appeals which, we believe, compels us to reverse the case.

As a preliminary instruction the court informed the jury that,

Our law provides that a person commits the offense of robbery if, in the course of committing theft, as that term is hereinafter defined, and with intent to obtain property of another he intentionally or knowingly threatens or places another in fear of imminent bodily injury.
The offense is aggravated robbery if the person committing robbery uses or exhibits a deadly weapon.

Then, in pertinent part, the court gave this instruction to the jury:

Now if you find from the evidence beyond a reasonable doubt that THOMAS ANDREW SHANNON, JR. in Hunt County, Texas, on or about the 21st day of May, 1982, while in the course of committing theft and with the intent to obtain property of Timmy Cross, to-wit: United States currency without the effective consent of the said Timmy Cross and with the intent to deprive the said Timmy Cross of said property, did then and there by using or exhibiting a deadly weapon, to-wit: a firearm, intentionally and knowingly place Timmy Cross in fear of imminent bodily injury or death then you will find the defendant, THOMAS ANDREW SHANNON, JR. guilty of Aggravated Robbery as charged in the indictment.
Unless, you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of Aggravated Robbery.
If you find from the evidence beyond a reasonable doubt that the defendant committed the offense of robbery, as defined herein, but you have a reasonable doubt as to whether he exhibited a deadly weapon, to-wit: a firearm, in the commission of said robbery, then you will find the defendant guilty of robbery only, and not aggravated robbery.
If you have a reasonable doubt as to whether the defendant is guilty of any offense, that is, aggravated robbery or robbery, then you will acquit the defendant and say by your verdict not guilty.

Shannon failed to object to the charge on the basis that it did not apply the law to the facts in the instruction covering robbery.

We initially must consider whether the court’s charge failed to apply the law to the facts of the case. Shannon, citing Williams v. State, 622 S.W.2d 578 (Tex.Cr. App.1981), urges that the court’s charge may not merely state abstract propositions of law but must clearly apply the law to the very facts of the case. We accept as valid the principle of law announced in Williams v. State, supra. But, it does not necessarily follow that the charge of the court in this case did not apply the law of robbery to the facts. No question exists about whether the charge applied the proper principles of law to the specific facts concerning aggravated robbery. Viewing the court’s charge as a whole, we conclude that the instruction of the court on robbery adequately applies the law to the facts.

Robbery is a lesser included offense of aggravated robbery. Tex.Code Crim. Proe.Ann. art. 37.09 (Vernon 1981). The charge plainly informed the jury as to the facts they must find in order to convict for aggravated robbery. Then it told the jury that if they had a reasonable doubt concerning whether a deadly weapon was used, they should find him guilty only of robbery and not guilty of the offense of aggravated robbery. The court’s charge concerning aggravated robbery and the lesser included offense of robbery is that suggested by Paul J. McClung in “Jury Charges for Texas Criminal Practice” (1981), pp. 147-148. McClung’s treatise has been widely accepted by the bar and generally used as a bench book for the trial courts of this state. We believe the charge of the court adequately applies the law to the facts, not because it was in accord with McClung’s suggested instruction, but because it is the most sensible manner in which to instruct the jury.

The application of the law to the facts of aggravated robbery followed by a provision that if the jury is not convinced that a deadly weapon was used in the robbery it should find the defendant guilty only of robbery, not aggravated robbery, seems to be a sound and logical way to instruct the jury. To require the court to apply the law to the facts on the primary offense charged and to repeat the same law and facts, minus an element, on each lesser included offense tends to confuse the jury. It should not be encouraged or required in this state.

However, as an intermediate court we are bound to follow the law announced by higher courts. The Court of Criminal Appeals in the case of Antunez v. State, 647 S.W.2d 649 (Tex.Cr.App.1983) addressed a charge almost identical to the instant one, wherein the defendant was charged with aggravated robbery and convicted of the lesser included offense of robbery. The five judge majority, citing Williams v. State, supra, and — without discussion— concluded that the charge only contained certain abstract principles of law but failed to apply those principles to the facts. It also concluded that the charge left the jury to speculate about which specific acts would constitute the offense of robbery. The conclusion of the majority neglects to discuss any reason for their decision. Because of the Antunez decision, we are constrained to hold that the trial court’s charge erroneously neglected to apply the law to the facts.

Having found error we must determine whether it is fundamental. Until recently, appellate courts of this state in criminal cases have consistently held that where no objection is made to the court’s charge, the judgment will not be reversed because of an error in the charge unless a defendant is deprived of a fair and impartial trial. Harris v. State, 522 S.W.2d 199 (Tex.Cr.App.1975); Peterson v. State, 508 S.W.2d 844 (Tex.Cr.App.1974); Tex.Code Crim.Proc. Ann. art. 36.19 (Vernon 1981). In deciding Antunez, the Court simply pronounced that it confronted unassigned fundamental error in the jury charge, which it considered in the interest of justice. Tex.Code Crim.Proc.Ann. art. 40.09, § 13 (Vernon 1979). Presiding Judge Onion, in his dissenting opinion, expressed alarm about the frequent practice of isolating a small portion of the charge, finding error, and labeling it fundamental, to be considered “in the interest of justice.” Courts have long known to determine error by looking to the charge as a whole rather than limited parts standing alone. Jackson v. State, 591 S.W.2d 820 (Tex.Cr.App.1979); Slagle v. State, 570 S.W.2d 916 (Tex.Cr.App.1978).

The error of the trial court, if any, is so slight and not of the type calculated to deprive the defendant of a fair trial. Thus, any error should not be labeled fundamental. When an error is considered fundamental although there was no objection to the charge and the charge can be understood upon a plain reading, it is not justice to the defendant to reverse the case. Rather, a windfall to the defendant results.

The Antunez v. State, supra, decision is the product of a seemingly logical progression. In Harris v. State, supra, the charge of the court in a rape case wholly failed to apply the law to the facts of the case. Footnote one in that opinion quotes the entire court’s charge. Nowhere did that trial court tell the jury what it had to find in order to convict the defendant and the Court of Criminal Appeals properly reversed on fundamental error because of the total failure to apply the law to the facts. Again, in Williams v. State, supra, the defendant was charged with attempted murder and convicted of aggravated assault. There the jury was informed that if they did not find from the evidence the defendant was guilty of murder or attempted voluntary manslaughter, but believed from the evidence beyond a reasonable doubt that the defendant committed aggravated assault, then it would find the defendant guilty of aggravated assault. There, the Court of Criminal Appeals properly held that the charge left the jury to speculate concerning what facts would be applicable to legal principles governing aggravated assault. However, in deciding Antunez v. State, supra, we believe the Court of Criminal Appeals failed to draw the line between a charge which would make little sense to a jury concerning a particular offense and a charge, like the one in this case, which gives the jury all of the applicable law and facts it could, within reason, need.

We would hold that the trial court did not err in its charge to the jury, but that if it did, the error was not fundamental. Additionally, Shannon claims that the trial court erred in denying him his constitutional right to confront and cross-examine witnesses. We find no merit to this contention and would hold against Shannon on that issue also. Because of the court’s decision in Antunez v. State, supra, however, we must reverse the judgment of conviction.

We reverse the trial court’s judgment and remand the cause.


author: CORNELIUS, Chief Justice.

text:
    William D. BOLDEN, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 6-84-030-CR.
    Court of Appeals of Texas, Texarkana.
    Dec. 18, 1984.
    Discretionary Review Refused March 13,1985.
    David Bires, Houston, for appellant.
    Mary Ann Turner, Asst. Dist. Atty., Con-roe, for appellee.
   CORNELIUS, Chief Justice.

William Bolden, Sr. appeals his conviction for aggravated rape of a child. He pleaded guilty and elected to have a jury assess punishment which was set at seven years confinement.

Bolden contends he should have a new trial because some of the panel members in his case were on a jury panel the same day in another case. The earlier case involved another defendant, James Bort, and a similar type but nonrelated offense, aggravated sexual abuse of a child. Both cases involved the same defense attorney and both defendants pleaded guilty and went to the jury for punishment. As a result of these similarities Bolden claims he was denied the right to a fair and impartial jury.

None of the persons who served as jurors in the Bort case, and none of the panel members in that case who were challenged for cause was a member of Bolden’s jury panel. Three members of the Bort panel who were peremptorily struck by both the State and Bort were not on the Bolden panel. Seven members of the panel who were peremptorily challenged by Bolden’s attorney in the Bort case were on Bolden’s panel, but none of them served on the jury. Despite these facts Bolden contends he was prejudiced because some of the members were on both panels. During voir dire, however, he was unable to show that the Bort voir dire with its similarities had biased or prejudiced any individual panel member in his case.

It is not a ground of disqualification that jurors have heard and tried a case against another party charged with an offense of the same character, Anderson v. State, 34 Tex.Cr.R. 96, 29 S.W. 384 (1895); United States v. Brown, 699 F.2d 704 (5th Cir.1983), or, even that they served on the panel in companion cases against codefendants or on a prior trial of the same defendant. See Christopher v. State, 489 S.W.2d 573 (Tex.Cr.App.1973); Byers v. State, 158 Tex.Cr.R. 642, 259 S.W.2d 196 (1953). In this case, no juror had been in either of those situations — only seven panel members. In the absence of a showing that those panel members were biased or prejudiced, or that Bolden was required to exhaust his peremptory challenges because the panel members had been in some way tainted by the prior service, no error is shown.

Bolden also contends that he was denied effective assistance of counsel. He does not attack the performance of trial counsel, but argues that his attorney’s efforts were rendered ineffective under the peculiar circumstances of this case. We cannot agree. In the absence of harm, as above noted, the presence of some members on both panels did not adversely affect defense counsel’s representation.

The judgment of the trial court is affirmed.

      . This offense occurred in April of 1983, prior to the amendments to the rape statutes which became effective September 1, 1983.

      . Tex.Rev.Civ.Stat.Ann. art. 2094a (Vernon Supp.1984) does not apply to this case because Montgomery County does not meet the population requirement set out in that statute.


author: CANTU, Justice.

text:
    Jack C. BUTLER, Appellant, v. WRIGHT WAY SPRAYING SERVICE, Appellee.
    No. 04-82-00558-CV.
    Court of Appeals of Texas, San Antonio.
    Dec. 19, 1984.
    Rehearing Denied Jan. 15, 1985.

      Clyde L. Wright, Jr., Alice, Robert L. Joseph, Sinton, for appellant.
    Roy D. Hunt, Alice, for appellee.
    Before BUTTS, CANTU and DIAL, JJ.
   OPINION

CANTU, Justice.

Appellee, Wright Way Spraying Service, as plaintiff brought suit on a sworn account against appellant, Jack C. Butler, to recover on an alleged debt. The account was based on the providing of crop spraying services and chemicals by the appellee to the appellant over a period of time from July, 1980, through August, 1981.

Appellant’s answers admitted the existence of the debt, admitted an oral contract for an open account but denied the existence of a written contract. Appellant filed a counterclaim alleging that appellee had charged usurious interest in violation of TEX.REV.CIV.STAT.ANN. art. 5069-1.03 (Vernon Supp.1984), TEX.REV.CIV.STAT.ANN. art. 5069-1.04 (Vernon 1971), and TEX.REV.CIV.STAT.ANN. art. 5069-1.04 (Vernon Supp.1984). Appellant, therefore, claimed the penalty provision provided for in TEX.REV.CIV.STAT.ANN. art. 5069-1.-06 (Vernon Supp.1984).

Following a trial to the court, a judgment was entered in favor of appellee for the sum of $207,000.00 representing the principal amount of the debt, prejudgment interest at the rate of 6% per annum for the period of September 1, 1981 through August 27,1982, post-judgment interest at the rate of 9% per annum until paid; and attorney’s fees in the amount of $20,000.00 together with costs of court. Appellant’s usury counterclaim was denied and such denial forms the sole basis of this appeal.

In two points of error appellant initially asserts that the trial court erred in denying his counterclaim because the evidence established, as a matter of law, that appellee charged appellant’s account an interest rate greater than allowed by law. Appellant further contends that the trial court erred in finding no usury and in denying his counterclaim because the great weight and preponderance of the evidence shows that appellee charged interest on appellant’s account at more than twice the interest rate allowed by law.

We will consider first appellant’s contention that the evidence conclusively establishes, as a matter of law, the charging of interest at a rate greater than that allowed by law. In reviewing “matter of law” points this court will examine all the evidence in support of the findings forming the basis of the judgment and if the converse of the finding is conclusively established, the point will be sustained. Precipi-tair Pollution Control v. Green, 626 S.W.2d 909, 911 (Tex.Civ.App. — Tyler 1981, writ ref’d n.r.e.).

Although appellant raised usury as a counterclaim, we perceive no reason to treat this any differently than we would an affirmative defense, since in either case the conclusive establishment of usury would invoke the penalties under TEX.REV.CIV. STAT.ANN. art. 5069-1.06 (Vernon Supp. 1984). See Wall v. East Texas Teachers Credit Union, 533 S.W.2d 918, 921-922 (Tex.1976).

In 1980 TEX.REV.CIV.STAT.ANN. art. 5069-1.03 (Vernon Supp.1984) provided:

When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all accounts and contracts ascertaining the sum payable, commencing on the thirtieth (30th) day from and after the time when the sum is due and payable.

Moreover in 1980 TEX.REV.CIV.STAT. ANN. art. 5069-1.04 (Vernon 1971) provided:

The parties to any written contract may agree to and stipulate for any rate of interest not exceeding ten percent per annum on the amount of the contract; and all other written contracts whatsoever, except those otherwise authorized by law, which may in any way, directly or indirectly, provide for a greater rate of interest shall be subject to the appropriate penalties prescribed in this Subtitle.

The 67th Legislature amended Article 5069-1.04 so that effective May 8, 1981 it read in pertinent part:

“The parties to any written contract may agree to and stipulate for any rate of interest, or in an agreement described in Chapter 6, 6A, or 7 of this Title, any rate or amount of time price differential producing a rate that does not exceed ...” (Emphasis supplied.)

For the purpose of this opinion, the amendment increased the annual ceiling on interest rates for agreed upon contracts to 24%.

Any person charging more than the maximum legal rate allowed by the aforementioned article incurs the penalties imposed by TEX.REV.CIV.STAT.ANN. art. 5069-1.06 (Vernon Supp.1984) which states:

Any person who contracts for, charges or receives interest which is greater than the amount authorized by this Subtitle, shall forfeit to the obligor three times the amount of usurious interest contracted for, charged or received, such usurious interest being the amount the total interest contracted for, charged, or received exceeds the amount of interest allowed by law, and reasonable attorneys fees fixed by the court except that in no event shall the amount forfeited be less than Two Thousand Dollars or twenty percent of the principal, whichever is the smaller sum; provided that there shall be no penalty for any usurious interest which results from an accidental and bona fide error. (Emphasis added.)

The statute imposes penalty upon any person who “charges” interest in excess of the amount of interest allowed by law. “Charges” means unilaterally placing on an account an amount due as interest. Hogar v. Williams, 593 S.W.2d 783, 788 (Tex.Civ.App. — Amarillo 1979, no writ).

The undisputed evidence at trial discloses that there was never a written contractual relationship between the parties. Appellee admitted that his initial contact with appel-. lant was by telephone in August of 1980 when appellant first requested the spraying services be performed by appellee. Ap-pellee admitted that he originally had no agreement, written or oral, to charge interest on said account, but insisted that an oral agreement to charge interest came into being sometime in June, 1981.

An undisputed fact is that appellee began charging interest at the rate of 1% per month or 12% per annum interest on the 1980 invoices. It is further undisputed and appellee’s own testimony indicates that in June 1981, appellee charged 1⅝% per month interest, (18% per annum), on the account balance even though there was no written agreement.

In 1980 the maximum legal rate that could be charged on an open account where no specific rate of interest had been agreed upon was 6% per annum, nevertheless ap-pellee was charging 12% per annum as of November 1980.

A review of the record has shown appellee’s own admission that no agreement existed between the parties to charge a specified interest rate, and following the rule in Hagar, the unrefuted evidence that appellee unilaterally placed an amount as interest on appellant’s account charging interest at the rate of 12% per annum and 18% per annum, rates greater than allowed by law, conclusively established appellant’s usury counterclaim. Therefore the penalties under TEX.REV.CIV.STAT.ANN. art. 5069-1.06 § 1 (Vernon Supp.1984) came into play.

Appellant’s point of error number two asserts error in the court’s finding of no usury and in the denial of his counterclaim because the great weight and preponderance of the evidence shows that appel-lee was charging interest rates at more than twice the interest rate allowed by law. This court considers all evidence to decide if the court’s finding of no usury leading to denial of appellant’s usury counterclaim is against the great weight and preponderance of evidence as to be manifestly unjust. In re King’s Estate, 244 S.W.2d 660, 661 (Tex.1951).

The record reflects that commencing in July, 1981, appellee regularly mailed billing statements charging an interest rate of 18% per annum. The month before, appel-lee prepared a written agreement indicating that a finance charge on appellant’s account would be computed at an annual percentage rate of 18%. The agreement was signed by appellee and mailed to appellant for his signature. Appellant did not sign the agreement nor did he sign a subsequent copy of the same agreement mailed to him in August, 1981.

Appellee argues that an agreement arose between him and appellant by reason of a course of dealing between the parties, thus, bringing this case within the provisions of Article 5069-1.04. Specifically, appellee cites us to Preston Farms & Ranch Supply, Inc. v. Bio-Zyme Enterprises, 625 S.W.2d 295 (Tex.1982), which presents a fact situation comparable to the case at bar. Appellee’s reliance on Preston Farms is, however, misplaced.

Preston Farms involved a suit on sworn account arising from a sale of goods and a counterclaim alleging usury. The question before the Court was whether Preston Farms and its owner agreed to pay interest on the account. See Id. at 296. In concluding that an agreement existed between the parties, the Court applied the concept of “course of conduct” as defined in Section 2.204 Texas Business and Commerce Code which states:

(a) A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.

Additionally, the Court relies upon case law addressing “contracts implied in fact;” and, as stated in Preston Farms:

A contract implied in fact is one in which under the circumstances, the acts of the parties are such as to indicate according to the ordinary course of dealing and the common understanding of men a mutual intention to contract as where one accepts the tendered service of another under circumstances justifying the inference that such other expected to be paid for such services.... A contract implied from the facts and circumstances in evidence is as binding as would be an expressed one. (citations omitted).

Id. at 298.

In finding evidence of a course of conduct giving rise to an agreement to pay interest the Court recognized that the parties had extensive dealings with each other, that the monthly statements contained a service charge provision, that no objection to the service charge was ever made, and that service charges were in fact paid. Id. at 298.

In sustaining the trial court’s finding that an agreement to pay specified interest existed, the Court stated, “[b]y his continued purchases and payments he at least impliedly agreed to pay the specified interest.” Id. at 298.

It is undisputed that the parties in the instant case had extensive dealings with each other. Monthly statements containing a service charge provision were sent to appellant, and no objections were made. In Preston Farms, the service charges were in fact paid by the obligor, whereas in the case at bar, the only payment made by appellant was in May, 1981, and the evidence is inconclusive as to whether or not this payment was made solely toward the principal or toward both, principal and interest. Moreover, appellant declined to sign the written agreement which inferentially indicates a rejection of an agreement to pay a specified amount of interest. The only plausible deduction to be made from appellant’s conduct is that appellant not only did not impliedly agree to pay a specified rate of interest, but expressly disagreed to do so. Appellant’s conduct and course of dealings with appellee did not give rise to an obligation to pay the V-/z% per month interest.

A review of the findings of fact filed with the record indicates that the counterclaim alleging usury was denied because the court found that no usurious interest was ever charged or claimed by appellee. Such findings are controlling upon this court if there is some evidence of substantial and probative character to support them. Flato Electric Supply Co. v. Grant, 620 S.W.2d 915, 917 (Tex.Civ.App. —Corpus Christi 1981, writ ref’d n.r.e.). We find such a position contrary to the great weight and preponderance of the evidence.

Appellant is entitled to collect as a penalty three times the amount of usurious interest charged. That amount is calculated as the total interest charged exceeding the amount of interest allowed by law, but not less than two thousand dollars or twenty percent of the principal at the time of the charge, whichever is the smaller amount.

The following computations indicate the penalty amount for the 1980 account balance, and the 1981 account for each farm:

1980 Account Balance
Total charges (July, August) = $13,088.05
Interest rate charged:
.833% per month (10% per annum) August, 1980 to March, 1981
1.5% per month (18% per annum) June, 1981 to December, 1981
Interest rate allowed — .5% per month (6% per annum)
Charged Allowed Difference
Month 10%/Annum 6%/Annum (Charged-Allowed)
August $13,088.05 $13,088.05
(interest) 109.02 65.44 $ 43.58
September 13,197.07 13,153.49
(i) 109.93 65.76 44.17
October 13,307.00 13,219.25
(i) 110.85 66.09 44.76
November 13,417.85 13,285.35
(i) 111.77 66.42 45.35
December 13,529.62 13,351.77
(i) 112,70 66.75 45.95
January (1981) 13,642.32 13,418.52
(i) 113.64 67.09 46.55
February 13,755.96 13,485.61
(i) 114.58 67.42 47.16
March 13,870.54 13,553.03
(i) 115.54 67.76 47.78
April 13,986.08 13,620.79
(payment) (7,000.00) (7,000.00)
May 6,986.08 6,620.79
(interest) -0--0-
June 6,986.08 6,620.79
(i) 104.79 33.10 71.69
July 7,090.87 6,653.89
(i) 106.36 33.27 73.09
August 7,197.23 6,687.16
(i) 107.95 33.43 74.52
September 7,305.18 6,720.59
(i) 109.58 33.60 75.98
October 7,414.76 6,754.19
(i) 111.22 33.77 77.45
(i) 112.90 - 33.94 78.96
December 7,638.88 6,821.90
(i) 114.58 - 34.10 80.48
$7,753.46 $6,856.00 $897.46
X 3
Penalty $2,692.38
Hoffman Farm
Total Charges $110,052.66
Interest rate charged:
1.5% per month (18% per annum) July, 1981 to December, 1981
Interest rate allowed:
.5% per month (6% per annum)
Charged Allowed Difference
Month 18%/annum 6%/annum Charged-Allowed
May Charges $20,621.61 $20,621.61
(interest) -0--0-
June 34,407.50 34,407.50
(i) -0-103.10 $ (103.10)
July 41,332.00 41,332.00
© 309.32 275.66 33.66
96,670.43 96,736.87
August 13,691.55 13,691.55
(i) 830.08 483.71 346.37
September 111,192.06 110.912.13
(i) 1,462.51 554.56 907.95
October 112,654.57 111,466.69
(i) 1,689.82 557.33 1,132.49
November 114,344.39 112,024.02
(i) 1,715.17 560.12 1,155.04
December 116,059.56 112.584.14
(i) 1,740,89 562.92 1,177.97
$117,800.45 $113,147.06 $4,650.38
X 3
Penalty $13,951.14
540 Acres South of Town — 281
Total Charges $63,409.05
Interest rate charged:
1.5% per month (18% per annum) July, 1981 to December, 1981
Interest rate allowed:
.5% per month (6% per annum)
Charged Allowed Difference
Month 18%/annum 6%/annum Charged-Allowed
May Charges $11,830.75 $11,830.75
(interest) -0--0-
June Charges 18,035.75 18,035.75
(i) -0-59.15 (59.15)
July Charges 21,341.50 21,341.50
(i) 177.46 149.63 27.83
51,385.46 51,416.78
August 12,201.05 12,201.05
450.66 257.08 193.58
September 64,037.17 63,874.91
(i) 777.54 319.36 458.18
October 64,814.71 64,194.27
(i) 972,22 320.97 651.25
November 65,786.93 64,515.24
© 986.80 322.58 664.22
December 66,773.73 64,837.82
(i) 1,001.61 324.19 677.42
$67,775.34 $65,162.01 $2,613.33
X 3
Penalty $7,839.99
160 Acres Creek PI.
Total Charges $17,640.30
Interest rate charged:
1.5% per month (18% per annum) July, 1981 to December, 1981
Interest rate allowed:
.5% per month (6% per annum)
Charged Allowed Difference
Month 18%/annum 6%/annum Charged-Allowed
May Charges $ 3,074.60 $ 3,074.60
(interest) -0--0-
June Charges 5,320.00 5,320.00
(i) -0-15.37 $ (15.37)
July Charges 6,471.25 6,471.25
© 46.12 42.05 4.07
14,911.97 14,923.27
August 2,774.45 2,774.45
(i) 126.61 74.62 51.99
September 17,813.03 17,772.34
(i) 225.58 88.86 136.72
October 18,038.61 17,861.20
(i) 270.58 89.30 181.28
November 18,309.19 17,950.50
(i) 274.64 89.75 184.89
December 18,583.83 18,040.25
(i) 278.76 90.20 188.56
$18,862,59 $18,130.45 $732.14
X 3
Penalty — $2,196.42
65 Acres at Y
Total Charges $7,142.09
Interest rate charged:
1.5% per month (18% per annum) July, 1981 to December, 1981
Interest rate allowed:
.5% per month (6% per annum)
Charged Allowed Difference
Month 18%/annum 6%/annum Charged-AIlowed
May Charges $1,242.94 $1,242.94
(interest) -0--0-
June Charges 2.222.25 2.222.25
(i) July Charges -0-2.549.25 6.21 2.549.25 (6.21)
(i) 18.64 17.36 1.28
6,033.08 6,038.01
August 1,127.65 1,127.65
(i) 52.26 30.20 22.06
September 7,212.99 7,195.86
(i) 91.28 35.97 55.31
October 7,304.27 7,231.83
(i) 109.56 36.16 73.40
November 7,413.83 7,267.99
© 111.21 36.33 74.88
December 7,525.04 7,304.32
(i) 112,88 36.51 76.37
$7,637.92 $7,340.83 $297.09
X 3
Penalty — $891.27
Orange Grove
Total Charges $2,775.00
Interest rate charged:
1.5% per month (18% per annum) July, 1981 to December, 1981
Interest rate allowed:
.5% per month (6% per annum)
Charged Allowed Difference
Month 18%/annum 6%/annum Charged-AIlowed
July $2,775.00 $2,775.00
(interest) -0--0-
August -0--0- .
(i) 41.63 13.87 27.76
September 2,816.63 2,788.87
(i) 42,25 13.94 28.31
October 2,858.88 2,802.81
(i) 42.88 14.01 28.87
November 2,901.76 2,816.82
(i) 43.53 14,08 29.45
December 2,945.29 2,830.90
(i) 44.18 14.15 30.03
$2,989.47 $2,845.05 $144.42
X 3
Penalty $433.26

We sustain appellant’s points of error finding, as a matter of law, that appellee was charging usurious interest and we,

also, find that the trial court erred in denying appellant’s counterclaim because the finding of no usury is against the great weight and preponderance of the evidence inasmuch as the evidence established that appellee charged interest rates on appellant’s account at more than twice the interest rate allowed by law.

We hold that appellant is entitled to collect the sum of $28,004.46 from appellee as penalties for charging usurious interest rates. Further, the additional penalty of forfeiture of principal is incurred where appellee charged more than twice the allowed interest on appellant’s account. TEX.REV.CIV.STAT.ANN. art. 5069-1.-06(2) (Vernon 1971). The amount of principal for the 1980 and 1981 charges, $207,-107.15, is forfeited because appellee’s charge of 18% per annum interest was greater than double the interest rate allowed.

The judgment of the trial court is reversed and judgment is herein rendered that appellant have and recover from appel-lee the sum of $28,004.46 as penalties under the provisions of TEX.REV.CIV.STAT. ANN. art. 5069-1.06 (Vernon Supp.1984) together with costs of court and interest as provided by law, and that appellee’s claim in the principal sum of $207,107.15 be forfeited under the provisions of TEX.REV. CIV.STAT.ANN. art. 5069-1.06(2) (Vernon 1971).

Appellant prayed for reasonable attorney’s fees under the statute, but no evidence was adduced on the matter due to the trial court’s refusal to find usury. We sever and remand the issue of awarding reasonable attorney’s fees to the trial court for its determination. TEX.R.CIV.P. 434; McPherson v. Keeling, 280 S.W.2d 948 (Tex.Civ.App. — Amarillo 1955, no writ).

The judgment of the trial court is reversed and rendered in part and remanded in part.

      . Amended by Acts 1981, 67th Leg., p. 279, ch. Ill, § 5, eff. May 8, 1981; Sec. b(4) to (6) added by Acts 1983, 68th Leg., p. 840, ch. 194, § 30, eff. July 1, 1983; Sec. (d) amended by Acts 1983, 68th Leg., p. 841, ch. 194, § 31, eff. July 1, 1983; Sec. (n)(6) amended by Acts 1983, 68th Leg., p. 811, ch. 194, § 1, eff. May 24, 1983.

      . By describing the conditions precedent to recovery of penalties in the disjunctive, the Legislature made it clear that only one such condition need occur to trigger penalties, either a contract for, a charge of, or a receipt of usurious interest. Windhorst v. Adcock Pipe & Supply, 547 S.W.2d 260, 261 (Tex.1977).

      . Appellee’s testimony and billing statements reflect a 12% per annum interest rate, however, calculations reveal an interest rate of .83% per month (10% per annum) was charged. The rate of 10% per annum was charged on appellant’s account, therefore, that rate is used in calculating the penalty amount. ⅝

      . Appellee plead for recovery of the $207,000.00 in the trial court, however a summation of outstanding charges totaled $207,107.15.