Opinion filed June 30, 2014

In The

Eleventh Court of Appeals __________

No. 11-12-00167-CV

__________

RUSSELL SCOTT JONES AND WESTEX NOTREES, LP, 

Appellants/Cross-Appellees

V.

R.O. POMROY EQUIPMENT RENTAL, INC. 

D/B/A ROPER, INC., Appellee/Cross-Appellant

On Appeal from the County Court at Law

Ector County, Texas

Trial Court Cause No. CC-22,135

O P I N I O N

Russell Scott Jones and Westex Notrees, LP appeal the judgment of the trial 

court that awarded $9,994.53 plus prejudgment interest and 5% postjudgment 

interest as well as attorney’s fees of $10,000 to R.O. Pomroy Equipment Rental, 

Inc. d/b/a Roper, Inc. (Roper) based upon their breach of rental agreements with 

Roper.
2

Jones and Westex present five issues on appeal, while Roper presents one 

issue in its cross-appeal. Jones and Westex challenge the trial court’s ruling that 

the two equipment rental agreements1 were ambiguous and that Daniel Florez was 

authorized to sign one of the equipment rental agreements on behalf of Westex. 

They also challenge the trial court’s ruling that there was one large rental 

agreement, that Roper never demanded 18% interest per annum on unpaid 

invoices, and that Jones and Westex failed to prove their usury claim. Roper crossappealed and complains that the trial court’s award of prejudgment interest of 

$364.73 and the award of 5% postjudgment interest should have been 18% interest

for both prejudgment and postjudgment interest. We modify and affirm, but 

remand for the calculation of prejudgment interest.

I. Evidence at Trial

Jennifer Pomroy was an employee of, and secretary for, Roper in April 

2010. Roper, an equipment rental business, rented an air compressor and one

loader to Westex. Pomroy testified that Westex’s representatives, Russell Scott 

Jones and Daniel Florez, signed two equipment rental agreements (the 

Agreements). Jones is the general partner and owner of Westex, while Florez is an 

equipment operator for Westex.

Jones testified that his employees could sign equipment receipts or delivery 

tickets at the jobsite. Jones testified that Florez was authorized to sign documents 

for equipment delivery at the jobsite, just as Jones himself had done, but that 

company employees could not sign equipment rental contracts on Westex’s behalf. 

Jones testified that Westex rented an air compressor from Roper. Jones also 

acknowledged that Westex had rented a loader and had Roper pick up an excavator

for repair.

 1

The parties refer to the agreements as equipment receipts or delivery tickets.
3

Pomroy testified that Roper’s Exhibits One and Four were copies of the 

Agreements; Jones signed Exhibit One, the air compressor rental, while Florez 

signed Exhibit Four, the loader rental. Pomroy identified Roper’s Exhibits Two

and Three as invoices for the rental of the air compressor. Roper’s Exhibits Five 

and Six were invoices for the loader delivery and pickup, while Exhibit Seven was 

a rental invoice for the loader for the second month. Plaintiff’s Exhibit Eight was a 

credit memo. Pomroy also said that Roper picked up an excavator, on behalf of 

Westex, and brought it back for repair.

Pomroy testified that a customer does not have to pay in advance to rent 

equipment but that invoices are sent requesting payment, as was done with Westex. 

Pomroy said the Agreements allowed for interest to be charged on unpaid 

accounts, and Roper’s Exhibits One and Four provided that all past-due balances 

were subject to the maximum amount of interest allowed by law.

Jones complained that, in Invoice 20554, Roper had tried to charge him for 

an excavator that had been picked up on behalf of another customer. Jones also 

argued that he had never agreed to pay 18% interest per annum on his unpaid 

accounts. Pomroy admitted that Invoice 20554 was for another customer, and 

prior to trial, she credited the entire amount of that invoice to Westex’s account.

She also indicated that Invoice 20554 provided that finance charges of “one and a 

half percent” would be applied to unpaid accounts, but Invoice 20554 was not 

Westex’s invoice.

Pomroy testified that Roper’s Exhibit Nine reflected that Westex owed 

Roper $9,994.53 in unpaid rental invoices and that Roper sought payment for 

$9,994.53. Jones said that he had paid $15,000 to Roper, but he admitted that he 

owed $9,994.53 to Roper for unpaid invoices. Westex also admitted, in a written 

admission response, that payment for $9,994.53 was more than thirty days overdue

prior to the date of the suit. Although Jones did not contest that he owed 
4

$9,994.53, he claimed that he never agreed to 18% interest being charged for 

unpaid balances.

Jones claimed that the interest demanded was $7,879.37, but he thought he 

only owed $2,415.43. Jones said he thought he was being overcharged $5,463.94 

for interest. Jones admitted the totals on his Exhibit 11 were incorrect because of 

the credits and other changes that were made to the invoices. Jones also admitted 

that the demand letter only made a demand for principal amounts due and owing to 

Roper by Westex.

In the final judgment, signed on March 26, 2012, the trial court entered 

judgment awarding Roper $9,994.53 as damages from Jones and Westex, jointly 

and severally. The trial court also awarded prejudgment interest of $364.73; 5% 

postjudgment interest from the date of the judgment; $10,000 in attorney’s fees;

and taxable costs of court, including costs incurred in satisfying the judgment.

II. Findings of Fact and Conclusions of Law

On April 18, 2012, Westex prepared proposed findings of fact and 

conclusions of law, which the trial court signed on May 1, 2012. Later, Roper filed 

a request for amended and additional findings of fact and conclusions of law, to 

which Westex objected. The trial court entered amended findings of fact and 

conclusions of law on June 22, 2012, in which the trial court kept some of the 

May 1, 2012 findings of fact but deleted others. The trial court’s amended findings 

of fact also added thirty-eight findings of fact. The trial court entered one 

conclusion of law on May 1, 2012, and entered additional conclusions of law on 

June 22, 2012.

III. Issues Presented

Jones and Westex present five issues on appeal. First, the trial court erred in 

finding that the Agreements were ambiguous. Second, the trial court erred in 

finding that Florez was authorized to sign an Agreement on behalf of Westex. 
5

Third, the trial court erred in finding that Roper never charged or demanded an 

18% per annum charge on Westex’s account. Fourth, the trial court erred when it 

held that the parties’ agreement for an air compressor and loader rentals was one 

large rental agreement. Fifth, the trial court erred when it denied Westex’s usury 

claim. In its cross-appeal, Roper presents one issue challenging the prejudgment 

and postjudgment interest rates and urging that both should have been 18%. 

IV. Standard of Review

On appeal, a trial court’s findings of fact have the same force and effect as a 

jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991). As the factfinder, the trial court is the sole judge of the credibility of the 

witnesses and the weight to be given their testimony. Nat’l Freight, Inc. v.. 

Snyder, 191 S.W.3d 416, 422 (Tex. App.—Eastland 2006, no pet.). A trial court’s 

findings of fact are reviewable for legal and factual sufficiency. Anderson, 806 

S.W.2d at 794. Sufficiency challenges to a trial court’s findings of fact are 

reviewed under the same standards used to review a jury’s findings. Catalina v. 

Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); Kennon v. McGraw, 281 S.W.3d 648, 

650 (Tex. App.—Eastland 2009, no pet.) (citing Girdner v. Rose, 213 S.W.3d 438, 

445 (Tex. App.—Eastland 2006, no pet.)). 

To analyze a legal sufficiency challenge, we must determine whether the 

evidence would enable reasonable and fair-minded people to reach the verdict 

under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We 

review the evidence in the light most favorable to the challenged finding. Id. at 

821–22. We give credit to favorable evidence if a reasonable factfinder could do 

so, and we disregard contrary evidence unless a reasonable factfinder could not do 

so. Id. at 827.

We may sustain a legal sufficiency challenge only when (1) the record 

discloses a complete absence of a vital fact, (2) the court is barred by rules of law 
6

or evidence from giving weight to the only evidence offered to prove a vital fact,

(3) evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the 

evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing 

Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 

TEX. L. REV. 361, 362–63 (1960)).

To analyze a factual sufficiency challenge, we must consider and weigh all 

the evidence and may set aside a verdict only if the evidence is so weak or the 

finding is so against the great weight and preponderance of the evidence that it is 

clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.

2001). We review a trial court’s conclusions of law, including those mislabeled as 

findings of fact, de novo. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 

794 (Tex. 2002).

V. Analysis

A. Authority

We first address Jones and Westex’s second issue that the trial court erred in 

finding that Florez was authorized to enter into an Agreement for Westex. An 

agent’s authority to act on behalf of a principal depends on some communication 

by the principal either to the agent (actual or express authority) or to the third party 

(apparent or implied authority). Protocol Techs., Inc. v. J.B. Grand Canyon Dairy, 

L.P., 406 S.W.3d 609, 616 (Tex. App.—Eastland 2013, no pet.) (citing Gaines v. 

Kelly, 235 S.W.3d 179, 183 (Tex. 2007)). There is no presumption of an agency 

relationship; rather, the party asserting agency has the burden of proving the 

relationship. IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007). “An 

agent cannot bind a principal absent either actual or apparent authority.” 

Sanders v. Total Heat & Air, Inc., 248 S.W.3d 907, 913 (Tex. App.—Dallas 2008, 

no pet.).
7

Actual authority includes both express and implied authority and generally 

represents the authority a principal intentionally confers upon an agent;

intentionally allows the agent to believe he possesses; or by want of due care,

allows the agent to believe he possesses. R & R Marine, Inc. v. Max Access, Inc., 

377 S.W.3d 780, 787 (Tex. App.—Beaumont 2012, no pet.) (citing 2616 S. Loop 

L.L.C. v. Health Source Home Care, Inc., 201 S.W.3d 349, 356 (Tex. App.—

Houston [14th Dist.] 2006, no pet.)). Actual authority is based on the principal’s

written or spoken words or conduct that is communicated to the purported agent. 

R & R Marine, 377 S.W.3d at 787 (citing Walker Ins. Servs. v. Bottle Rock Power 

Corp., 108 S.W.3d 538, 549–50 (Tex. App.—Houston [14th Dist.] 2003, no pet.)).

Jones had accounts with Roper. Jones testified that Westex was not buying 

the air compressor, but had rented it from Roper; he also agreed that he signed the 

Agreement for the compressor rental. Jones also said that he did not have a 

problem with his employees signing equipment receipts or delivery tickets for him 

at the jobsite. Jones admitted that he had signed Roper’s Exhibit One and would

not have a problem with Florez signing a document that Jones would sign, like 

Roper’s Exhibit One, which Jones signed, and Roper’s Exhibit Four, which Florez 

signed. Consequently, Jones had conferred on Florez actual authority to sign an 

equipment receipt for delivery of equipment to a jobsite, which commenced a 

rental of the delivered equipment under the terms outlined in the Agreement. The 

trial court did not err when it found that Florez was an agent authorized by Jones 

and Westex to sign the Agreement that acknowledged delivery of the loader to 

Westex’s jobsite. We overrule Jones and Westex’s second issue.

B. Ambiguity

We next turn to Jones and Westex’s first and fourth issues that the trial court 

erred in finding that the Agreements were ambiguous because the documents failed 

to specify the numerical interest rate Roper would charge and when that charge 
8

would commence on past-due accounts and in finding that the Agreements were 

one large agreement. Roper argues that the proper interest rate for collections on 

past-due accounts was 18% interest, but Jones and Westex argue they never agreed 

to that term.

The primary concern of a court in construing a contract is to ascertain and 

give effect to the parties’ intentions as expressed in the writing itself. El Paso 

Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 805 (Tex. 2012); Nat’l 

Union Fire Ins. Co. of Pittsburgh, Pa. v. CBI Indus., Inc., 907 S.W.2d 517, 520 

(Tex. 1995). We begin by analyzing the contract’s express language. El Paso 

Field Servs., 389 S.W.3d at 805–06. To discern the parties’ intent, we must 

examine and consider the entire writing in an effort to harmonize and give effect to 

all of the provisions of the contract so that none of the provisions will be rendered 

meaningless. Id. at 805. We are to look at the contract as a whole in light of the 

circumstances present when the contract was entered. Nat’l Union Fire Ins., 907 

S.W.2d at 520. No one phrase, sentence, or section of a contract should be isolated 

from its setting and considered apart from the other provisions. Forbau v. Aetna 

Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994).

A contract is ambiguous when its meaning is uncertain and doubtful or when 

it is reasonably susceptible to more than one meaning. Kelley-Coppedge, Inc. v. 

Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex. 1998); Heritage Res., Inc. v. 

NationsBank, 939 S.W.2d 118, 121 (Tex. 1996); Coker v. Coker, 650 S.W.2d 391,

393–94 (Tex. 1983). Whether a contract is ambiguous is a question of law for the 

court to decide by looking at the contract as a whole in the light of the 

circumstances present when the contract was entered. Nat’l Union Fire Ins., 907 

S.W.2d at 520. Only when a contract is determined to be ambiguous may a court 

consider the parties’ interpretation and admit extraneous evidence to determine the 

true meaning of the instrument. Id. When the meaning of the contract is plain and 
9

unambiguous, a party’s construction is immaterial. Sun Oil Co. (Del.) v. Madeley,

626 S.W.2d 726, 732 (Tex. 1981).

Jones and Westex argue that there are four sets of documents in dispute, but 

the record reflected only two sets: the Agreements and invoices. The invoices 

were generated from information contained in the Agreements. The Agreements

reflected shipments of rental equipment—an air compressor2 and a loader3

—to a

specific jobsite, the applicable rental rate, the start date, the terms of the 

Agreement on the front and back of the document, and a signature of acceptance 

by Westex’s representative. Once Westex’s representative received the equipment 

and signed for the delivery, the rental period began in accordance with the terms in 

the Agreement. The documents together, taken as a whole, were one single rental 

agreement as to the interest to be charged on the account because Exhibit One 

reflected that interest would be collected and that it would accrue at the maximum 

amount allowed by law.

As to Jones and Westex’s complaint about the interest rate to be charged, the 

parties did not contract for interest on a loan or credit sale or for a lease-purchase, 

all of which are regulated by our usury statutes. See TEX. FIN. CODE ANN. tit. 4 

(West 2006 & Supp. 2013); see also Potomac Leasing Co. v. Hous. Auth. of City of 

El Paso, 743 S.W.2d 712, 713 (Tex. App.—El Paso 1987, writ denied) (citing 

Transamerican Leasing Co. v. Three Bears, Inc., 586 S.W.2d 472 (Tex. 1979)); 

Apparel Mfg. Co. v. Vantage Props., Inc., 597 S.W.2d 447, 448 (Tex. Civ. App.—

Dallas 1980, writ ref’d n.r.e.). The parties, instead, contracted for the rental of a 

compressor and a loader. Under Texas law, prejudgment interest is an additional 

damage award for the loss of use of money between the time of the accrual of the 

 2

Roper’s Exhibit One covered the rental of the air compressor.

3

Roper’s Exhibit Four covered the rental of the loader.
10

claim and the date of the judgment. Johnson & Higgins of Texas, Inc. v. Kenneco 

Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998). Two separate bases exist in Texas 

for prejudgment interest: (1) an enabling statute and (2) general principles of 

equity. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 485 (Tex. 

1978). The former applies to judgments for credit transactions, wrongful death, 

personal injury, property damage, and condemnation cases, while the latter applies, 

under common law, to a breach-of-contract claim. FIN. §§ 302.002, 304.102, 

304.201; Kenneco, 962 S.W.2d at 530; Adams v. H & H Meat Prods., Inc., 41 

S.W.3d 762, 780 (Tex. App.—Corpus Christi 2001, no pet.).

Where a contract for the rental of equipment, which is not a credit 

transaction, specifies that interest will be collected on unpaid rental charges, the 

interest rate can be determined by the judgment rate statutes. FIN. §§ 304.002,

304.003. If the contract specifies that interest will be charged at the maximum rate 

allowed by law, then a numerical rate is not needed and the rate can be determined 

by the judgment interest statutes. FIN. §§ 304.002, 304.003. In addition, Texas 

common law and the judgment rate statutes allow prejudgment interest to accrue at 

the same rate as postjudgment interest on damages awarded for breach of contract. 

FIN. § 304.002; Kenneco, 962 S.W.2d at 532; Whitehead Utils., Inc. v. Emery Fin. 

Corp., 697 S.W.2d 460, 461 (Tex. App.—Beaumont 1985, no writ); see also

ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 319 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied).

Jones signed an Agreement that stated: “All past due balances subject to the 

maximum amount of interest allowed by law.” Jones signed an Agreement and, in 

so doing, agreed that interest would be collected on unpaid balances. The 

Agreement also provided that the rate of interest would be the maximum allowed 

by law, which is determined by the respective judgment rate statutes. FIN.

§§ 304.002, 304.003. Jones admitted that Westex had paid some of the rental 
11

charges but had not paid the entire amount owed. Jones admitted that he owed 

$9,994.53 and that the amount was more than thirty days past due. The applicable

postjudgment rate is 18% interest, as set out in the judgment rate statute for 

contracts that provide for interest. See FIN. § 304.002. The prejudgment interest 

rate is the same as the postjudgment rate of 18% simple interest. See FIN.

§ 304.002; Emery, 697 S.W.2d at 461. We overrule Jones and Westex’s first and 

fourth issues and sustain Roper’s cross-issue.

C. Jones and Westex’s Usury Claim

Jones and Westex assert, in their third and fifth issues, that the trial court 

erred when it rejected their usury claim because Roper charged or demanded an 

18% per annum charge on Westex’s account. The Texas Supreme Court has 

outlined what type of transaction is subject to the usury statutes. In Holley v. 

Watts, the court stated:

The essential elements of a usurious transaction are: (1) a loan of 

money; (2) an absolute obligation that the principal be repaid; and 

(3) the exaction of a greater compensation than allowed by law for the 

use of the money by the borrower.

629 S.W.2d 694, 696 (Tex. 1982). Before the usury statutes can be applied to 

leases, it is necessary to first establish that the leases were not mere leases but 

were, instead, lease-purchase agreements. Potomac Leasing, 743 S.W.2d at 713

(citing Three Bears, 586 S.W.2d 472).

In this case, there is no claim of a lease-purchase agreement. Pomroy 

testified that both of the Agreements were rental or lease transactions. Jones 

agreed that the transactions were strictly rentals and that Westex was not buying

any equipment. The trial court found that Roper’s Exhibits One and Four were 

rental or lease transactions for Westex to rent an air compressor and a loader from 

Roper. We have previously held that there can be no usury in a lease transaction. 
12

Maloney v. Andrews, 483 S.W.2d 703, 704 (Tex. Civ. App.—Eastland 1972, writ 

ref’d n.r.e.); see also Potomac Leasing, 743 S.W.2d at 713; Brokers Leasing Corp. 

v. Standard Pipeline Coating Co., 602 S.W.2d 278 (Tex. Civ. App.—Dallas 1980, 

writ ref’d n.r.e.); Apparel Mfg., 597 S.W.2d at 449; Sw. Park Outpatient Surgery, 

Ltd. v. Chandler Leasing Div., 572 S.W.2d 53, 55 (Tex. Civ. App.—Houston [1st 

Dist.] 1978, no writ).

The two sets of documents at issue were the Agreements and their 

accompanying invoices, which, as we have explained earlier, did not specify a 

numerical interest rate but did state that Roper would collect interest on unpaid 

balances and that the interest would accrue at the maximum rate allowed by law. 

Jones signed the first Agreement.

We hold that the trial court did not err when it ruled that the Agreements did 

not charge usurious interest because the usury laws do not apply to rental 

transactions. See Apparel Mfg., 597 S.W.2d at 449; Maloney, 483 S.W.2d at 704.

We also hold that Roper never charged usurious interest because a contract that 

specifies that interest will be collected on unpaid balances from a rental agreement 

and that the interest will accrue at the maximum rate allowed by law is not, as a 

matter of law, usurious. Apparel Mfg., 597 S.W.2d at 449 (citing Maloney, 483 

S.W.2d at 704). We further hold that Roper is entitled to postjudgment interest, as 

provided in the Agreements, and that the applicable rate is 18% simple interest. 

Likewise, because the prejudgment rate is the same as the postjudgment rate, the 

prejudgment rate is 18% simple interest. We overrule Jones and Westex’s third 

and fifth issues.

VI. This Court’s Ruling

We agree with Roper that there is no ambiguity in the Agreements and we 

overrule Jones and Westex’s first issue. We overrule their second issue on the 

agency of Florez and their third issue on interest. As to their fourth issue, we hold 
13

that the trial court’s ruling that there were two Agreements that encompassed one

larger rental Agreement was not erroneous. As to their final issue, we hold that the 

trial court correctly determined that the usury statutes do not apply and that Roper 

did not charge usurious interest. Jones and Westex’s final issue is overruled.

We sustain Roper’s issue on cross-appeal that the trial court (1) erred in its 

award of $364.73 in prejudgment interest and (2) erred in its award of 5% interest

for postjudgment interest.

We modify the judgment of the trial court to reflect that Roper is entitled to 

recover prejudgment interest at the rate of 18% simple interest on the unpaid 

balance of $9,994.53 and that Roper is entitled to collect postjudgment interest at 

the rate of 18% from the date of the trial court’s judgment until the judgment is 

paid in full. As modified, the judgment of the trial court is affirmed. We remand 

the cause to the trial court for the calculation of the amount of prejudgment interest 

and for rendition of judgment in accordance with this opinion.

MIKE WILLSON

JUSTICE

June 30, 2014

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.