NUMBER 13-08-00650-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ROBINSON & HARRISON 

POULTRY CO., INC., Appellant,

v.

MARCELO GALVAN, ANALICIA R. GALVAN, 

AND PROVEEDORES INTERNATIONAL, INC., Appellees.

 

On appeal from 389th District Court 

of Hidalgo County, Texas.

 

O P I N I O N

Before Justices Rodriguez, Garza, and Benavides

 Opinion by Justice Rodriguez

Appellant/cross-appellee Robinson & Harrison Poultry Co., Inc. (Robinson &

Harrison) sued appellee/cross-appellant Marcelo Galvan and appellees Analicia R. Galvan

and Proveedores International, Inc. (International) asserting causes of action that arose
Juan Trevino was not a party in the underlying litigation. 1

2

from commercial transactions between the parties. The Galvans and International also

filed claims against Robinson & Harrison, including a counter-claim for usury. By five

issues, which we reorganize as three, Robinson & Harrison complains that the trial court

committed reversible error in awarding attorney's fees to the Galvans and International

because (1) the charge issue on usury liability was improper, (2) no actual damages were

awarded, and (3) there was a limitations bar. By a single issue on cross-appeal, Marcelo

claims that the trial court erred in failing to calculate damages on the usury claim. We

affirm.

I. BACKGROUND

The undisputed facts reveal that Marcelo, together with Juan Trevino, owned and

operated a business known as Proveedores de Tejas (Tejas). With Robinson & Harrison, 1

Tejas exported poultry products to customers in Mexico. Tejas provided the customers;

Robinson & Harrison the product and financing. Because of an unpaid debt of $40,000,

owed to Robinson & Harrison by Tejas, Robinson & Harrison stopped doing business with

Tejas. When Marcelo and Robinson & Harrison later discussed renewing the export

business through International, a new company wholly owned by the Galvans, Robinson

& Harrison agreed to extend credit but only on the condition that Marcelo and Analicia

would assume the past indebtedness of Tejas. They did so on March 20, 1995, and

Robinson extended new credit in the amount of $10,000. The money was to be re-paid

within twenty-one days with no agreed rate of interest on this transaction. Marcelo
This is the transaction that forms the basis of Marcelo's usury claim.

2

The foregoing facts form the basis of Robinson & Harrison's claims. 3

Marcelo and International do not challenge this finding of liability, the award of actual damages, or 4

the award of attorney's fees against them.

3

successfully paid Tejas's past debt owed to Robinson & Harrison. However, as Thomas 2

Robinson, president of Robinson & Harrison, testified at trial, by the end of 2003,

International owed Robinson & Harrison over $100,000 for missing products.3

Robinson & Harrison filed suit against Marcelo, Analicia, and International in County

Court at Law No. 4, Hidalgo County, Texas, asserting multiple causes of action including

fraud, conversion, and suit on an unpaid account. Robinson & Harrison alleged that

International defaulted by failing to make payments on its account and that the principal

balance due was over $100,000. Marcelo, Analicia, and International counterclaimed for

usury asserting that the entire debt that they assumed as a condition for Robinson &

Harrison's extension of credit constituted interest under Texas law, thus, the transaction

was usurious. They also filed a new and separate lawsuit against Robinson & Harrison in

the 389th District Court, Hidalgo County, Texas, asserting, among other claims, breach of

fiduciary duty and interference with contracts. By agreement, all claims were joined in the

389th District Court.

Following a trial on the merits, the jury returned a mixed verdict. The jury found for

Robinson & Harrison on its suit on an unpaid account against Marcelo and International

and awarded it $97,000 in actual damages and a total of $295,405 in attorney's fees. The 4

jury also found for Marcelo and International on their claim against Robinson & Harrison

for interfering with their contractual relations. The jury awarded Marcelo and International
Robinson & Harrison does not complain of this liability finding or the damages awarded against it 5

based on the finding.

The trial court also entered judgment that Robinson & Harrison take nothing from Analicia and that 6

it take nothing from Marcelo on its claims of conversion and fraud. Robinson & Harrison does not challenge

these take-nothing judgments.

4

$50,000 in actual damages. As to the usury claim, although the jury found that Robinson 5

& Harrison required the Galvans to assume the past indebtedness of Tejas as a condition

of Robinson & Harrison extending credit to Marcelo, it awarded no actual damages based

on this finding. The jury did, however, award the following "reasonable fee for the

necessary services of [the Galvans and International's] attorney": $272,502.50 for

preparation and trial, plus $125,000 if appealed to the court of appeals and $50,000 if

appealed to the supreme court. The trial court rendered judgment in conformity with the

verdict. It is from the usury findings that all parties appeal. 6

III. DISCUSSION

By three issues, Robinson & Harrison contends that the trial court committed

reversible error in ordering that the Galvans and International recover attorney's fees based

on their usury claim because there was no jury question that would support a liability

finding and because the award of attorney's fees was not supported by an award of actual

damages. It also asserts a limitations bar.

A. Waiver

Before reaching Robinson & Harrison's complaints, we address the Galvans and

International's assertion that Robinson & Harrison waived its right to complain because it

moved for judgment on the entire jury verdict. When a party moves for entry of judgment

and the trial court enters the judgment, the party cannot later complain of that judgment.
5

Casu v. Marathon Ref. Co., 896 S.W.2d S.W.3d 388, 389 (Tex. App.–Houston [1st Dist.]

1995, writ denied) (op. on reh'g); Transmission Exch., Inc. v. Long, 821 S.W.2d 265, 275

(Tex. App.–Houston [1st Dist.] 1991, writ denied); see First Nat'l Bank of Beeville v. Fojtik,

775 S.W.2d 632, 633 (Tex. 1989) (per curiam). However, the right to complain about a

judgment on appeal is preserved when a movant for judgment states "in its motion to enter

judgment that it agrees only with the form of the judgment," and notes "its disagreement

with the content and result of the judgment." Casu, 896 S.W.3d at 390 (citing Fojtik, 775

S.W.2d at 633). A motion for entry of judgment should contain an express reservation to

preserve the right to complain about a judgment on appeal. See Fojtik, 775 S.W.2d at 633.

The jury in this case reached a verdict on June 15, 2006, awarding, among other

things, attorney's fees to the Galvans and International to be paid by Robinson & Harrison.

On June 21, 2006, Robinson & Harrison filed its original motion for entry of judgment. In

this motion, and relevant to this appeal, Robinson & Harrison noted that although the

verdict shows that the trial court should render judgment for Marcelo and International

against Robinson & Harrison for $50,000 for tortious interference,

[t]he verdict further shows that [the Galvans and International] are not

entitled to attorney[']s fees on the issue of Usury because there was no issue

submitted by [the Galvans and International] to determine Usury liability and

the jury's response to Issue No. 7 was that there are no Usury damages.

Taken as a whole, [the Galvans and International] failed to meet their burden

to prevail on a cause of action that would entitle them to a recovery of

attorney[']s fees.

Although Robinson & Harrison requested "that the Court render judgment in accordance

with the jury verdict," it also requested that the trial court "render judgment in accordance

with the proposed form of Judgment attached to this motion as Exhibit 'A' . . . ." Its

proposed final judgment granted Robinson & Harrison's motion for entry of judgment on
W e note that a transcript of the July 5, 2006 hearing does not appear in the appellate record. 7

6

the verdict and decreed that Marcelo receive judgment for tortious interference against

Robinson & Harrison and be awarded $50,000 plus pre-judgment interest. It also decreed

that the Galvans and International "are not awarded any attorney[']s fees on Usury

because the jury found there were no damages due for Usury."

Based on this language, we conclude Robinson & Harrison preserved its right to

complain on appeal about the award of attorney's fees to Marcelo and International.

Robinson & Harrison noted in its motion for entry of judgment that it disagreed with the

jury's award of attorney's fees to the Galvans and International based on the usury cause

of action. See Casu, 896 S.W.3d at 390 (citing Fojtik, 775 S.W.2d at 633). It specifically

set out the basis for its disagreement, and its proposed judgment reflected the same basis.

Thus, the motion contained an express reservation to preserve the right to complain on

appeal about this portion of the judgment. See Fojtik, 775 S.W.2d at 633.

Furthermore, Robinson & Harrison's second motion for new trial filed on September

2, 2006, referenced its earlier filed motion, its proposed judgment, and a July 5, 2006

hearing held on these matters. In its second motion, Robinson & Harrison outlined that

7

it had been fourteen weeks since the jury returned its verdict, eleven weeks since the

hearing, and more than ten weeks since the court deadline to submit briefs. Finally,

Robinson & Harrison requested that the trial court enter judgment herein. In its third and

final motion for entry of judgment filed on November 13, 2006, Robinson & Harrison again

reviewed the timing of the verdict and the filing of its earlier motions for entry of judgment

and specifically noted that it had been five months since the jury returned its verdict.
"Herein" is defined as "a vague word in legal documents, for the reader can rarely be certain whether 8

it means in this subsection, in this section (or paragraph), in this document, or in this transaction. A more

precise phrase, such as any of the three just listed, is preferable." BRYAN GARNER, A DICTIONARY OF MODERN

LEGAL USAGE 401 (1995). While a more precise phrase would have been preferable in this case, we construe

the use of the word "herein" as referring to the verdict as proposed in Robinson & Harrison's first-filed motion

for entry of judgment and referred to in its second motion.

7

Robinson & Harrison then requested that the court "immediately enter a [j]udgment

consistent with the verdict herein."8

Courts must read a pleading for its content rather than its label. See generally TEX.

R. CIV. P. 71 (addressing a misnomer of a pleading); State Bar of Tex. v. Heard, 603

S.W.2d 829, 833 (Tex. 1980) (providing that a court looks to the substance of a plea for

relief, not merely the title, to determine the nature of a pleading). Looking at the substance

of Robinson & Harrison's motions, we construe the second and third motions for entry of

judgment as supplemental motions, not amended motions or new motions. See TEX. R.

CIV. P. 62, 63 (defining and explaining amendments of petitions, answers, pleadings,

responses, or pleas for relief), 69 (explaining supplementation of a petition or answer), 71;

In re Fifty-One Gambling Devices, 298 S.W.3d 768, 771-73 (Tex. App.–Amarillo 2009, pet.

denied) (concluding that the use of the terms "supplemental" and "amended" in the title of

the motions did not alter their effect but rather, after reviewing the purpose of the pleadings

and the substance of the motions, expanded the original recusal claim to include a

constitutional claim of denial of due process and a claim of improper ex parte

communication between the trial court and counsel for the State); Bennett v. Wood County,

200 S.W.3d 239, 241 (Tex. App.–Tyler 2006, no pet.) ("An amended pleading supplants

earlier pleadings, and the supplanted pleading is no longer part of the pleading in the

cause."); J.M. Huber Corp. v. Santa Fe Energy Res., 871 S.W.2d 842, 844 (Tex.
8

App.–Houston [14th Dist.] 1994, writ denied) ("An amended petition . . . supersedes all

prior petitions . . . ."). It is apparent that Robinson & Harrison's second and third motions

for entry of judgment were not intended to supersede the original motion. Rather, by filing

second and third motions, Robinson & Harrison was attempting to bring to the trial court's

attention that there had been one extended delay after another in the entry of judgment

and that a judgment as proposed in its first motion should be rendered in the case.

Robinson & Harrison was asserting its position that a significant time period had passed

since the filing of each previous motion and yet no judgment had been entered. Thus, we

construe Robinson & Harrison's second and third motions for entry of judgment as

supplemental motions to be read in conjunction with its first-filed motion. Accordingly,

Robinson & Harrison did not waive its right to complain about the award of attorney's fees

to the Galvans and International.

B. Usury Liability

By its first issue, Robinson & Harrison complains of charge error, arguing that it

properly objected to Question 6. In response, the Galvans and International assert that

Robinson & Harrison failed to preserve error.

The proposed charge included two usury questions. Question 6 asked "Did

Robinson & Harrison Poultry Co. require Marcelo Galvan and Analicia Galvan to assume

the past indebtedness of Tejas as a condition of extending credit to Marcelo Galvan?" If

the jury answered "yes" to Question 6, it was to answer Question 7, the damages question,

which provided the following:

What sum of money, if any, if paid now in cash, would fairly and reasonably

compensate Plaintiffs for their damages, if any, that resulted from such

usury?
Texas Rule of Civil Procedure 277 provides that, 9

[t]he court shall not in its charge comment directly on the weight of the evidence or advise

the jury of the effect of their answers, but the court's charge shall not be objectionable on the

ground that it incidentally constitutes a comment on the weight of the evidence or advises the

jury of the effect of their answers when it is properly a part of an instruction or definition.

TEX. R. CIV. P. 277. "To be a direct comment on the weight of the evidence, the issue submitted must suggest

to the jury the trial court's opinion on the matter." Indian Beach Prop. Owners' Ass'n v. Linden, 222 S.W .3d

682, 702-03 (Tex. App.–Houston [1st Dist.] 2007, no pet.) (citing H.E. Butt Grocery Co. v. Bilotto, 985 S.W .2d

22, 24 (Tex. 1998); Southmark Mgmt. Corp. v. Vick, 692 S.W .2d 157, 160 (Tex. App.–Houston [1st Dist.]

1985, writ ref'd n.r.e.)).

"Double usury" is "interest in excess of double the amount of legal interest." Danziger v. San Jacinto 10

Sav. Ass'n, 732 S.W .2d 300, 303 (Tex. 1987). As a remedy for doubly usury, the usury statutes provide for

the remedy of cancellation of the principal debt as well as other penalties. See Armstrong v. Steppes Apts.

Ltd., 57 S.W .3d 37, 48 (Tex. App.–Fort W orth 2001, pet. denied) (explaining that "the current finance code

contains both a forfeiture penalty and a penalty for double usury") (citing TEX. FIN. CODE ANN. §§ 305.001,

305.002).

9

Consider the following elements of damages, if any, and none other.

(1) Twenty percent of the amount of the principal, (2) plus the

principal amount on which the interest was charged and

received, (3) plus the interest charged and received.

At the charge conference on June 14, 2006, Robinson & Harrison objected as

follows:

[W]e have challenged the damage[s] question on usury. We feel that

asking the jury to consider—there is [sic] three parts of the damages. And

we feel that by submitting Parts 2 and 3, that's an impermissible comment

on the weight of the evidence[ ] because it presumes double usury.[ ]

9 10

The only objection voiced by Robinson & Harrison at the charge conference was to the

instruction given as part of the usury damages question; the basis for the objection was

that the instruction was "an impermissible comment on the weight of the evidence because

it presumes double usury." The trial court overruled this objection and stated that the

charge would be submitted "as is." Because of the late hour, the trial court informed the

parties that it would sign the charge at the hearing but would not file it until the next
10

morning before it was read to the jury. The trial court asked if counsel for Robinson &

Harrison had "[a]ny problem with that?". Counsel responded, "No, Your Honor. Given the

hour, that seems to be logical." The trial court signed the charge, stated that it would be

"filed officially tomorrow morning," and again overruled Robinson & Harrison's objections.

 "'[A] party objecting to a charge must point out distinctly the objectionable matter

and the grounds of the objection.'" Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43 (Tex.

2007) (quoting TEX. R. CIV.P. 274). Objections to the charge and requests for instructions

must, however, comport with the arguments made on appeal. See Isaacs v. Bishop, 249

S.W.3d 100, 113 n.13 (Tex. App.–Texarkana 2008, pet. denied); Coke v. Coke, 802

S.W.2d 270, 275 (Tex. App.–Dallas 1990, writ denied). "In the absence of an objection at

trial that matches the complaint on appeal, nothing has been preserved for our review."

Isaacs, 249 S.W.3d at 113 n.13 (citing TEX. R. APP. P. 33.1).

Robinson & Harrison objected to Question 7, pointing out distinctly the objectionable

matter—namely parts 2 and 3, which instructed the jury on the damage calculation. See

Ledesma, 242 S.W.3d at 43; see also TEX. R. CIV. P. 274; TEX. R. APP. P. 33.1(a).

Furthermore, Robinson & Harrison stated that the ground of its objection was that the

objectionable matter was a comment on the weight of the evidence. See Ledesma, 242

S.W.3d at 43; see also TEX. R. CIV. P. 274; TEX. R. APP. P. 33.1(a). The trial court

overruled Robinson & Harrison's objection to the usury damages question. See TEX. R.

APP. P. 33.1(a).

On appeal, Robinson & Harrison does not challenge Question 7. Complaining only

of Question 6, Robinson & Harrison generally asserts that Question 6 was not worded
Robinson & Harrison also asserts, as a basis for error, that the jury's zero award of damages in 11

response to Question 7 affirmatively negated any possible finding of usury. To the extent Robinson & Harrison

is attempting to argue conflicting jury findings when it contends that "[t]he zero damages is also a basis to

show that the Jury did not in fact make a finding on any Usury liability," it did not raise that contention in the

trial court before the jury was discharged and has, therefore, not preserved the argument for our review. See

Norwest Mortgage, Inc. v. Salinas, 999 S.W .2d 846, 865 (Tex. App.–Corpus Christi 1999, pet. denied) ("In

order to preserve error, the appellant must object to the conflict or inconsistency before the jury is

discharged."); see also TEX. R. CIV. P. 295 (providing that if the jury's verdict is "incomplete, or not responsive

to the questions contained in the court's charge, or the answers to the questions are in conflict, the court shall

in writing instruct the jury in open court of the nature of the incompleteness, unresponsiveness, or conflict,

provide the jury such additional instructions as may be proper, and retire the jury for further deliberations").

Furthermore, Robinson & Harrison's attempt, if any, to raise challenges to the sufficiency of the

evidence is inadequately briefed. See TEX. R. APP. P. 38.1(i) (providing that issues on appeal must be

supported by clear and concise arguments with appropriate citations to authorities and to the record).

11

properly to support a finding of usury. Specifically, Robinson & Harrison now asserts the

following bases for charge error: (1) there cannot be a finding of usury because there is

no proof of any loan to Marcelo; (2) Question 6 is not sufficient to support a finding of usury

liability because there is no evidence of any legal interest; (3) Tejas is an alter ego of

Marcelo and not a third party; and (4) the jury could have found that the debt assumed was

legal interest depending on the amount and duration of the loan. By these contentions,

Robinson & Harrison complains of the omission of elements from the charge and

evidentiary matters, not of the trial court's alleged comment on the weight of the

evidence. We conclude that Robinson & Harrison's arguments on appeal do not comport 11

with the objection raised in the trial court. See Isaacs, 249 S.W.3d at 113 n.13. Therefore,

because Robinson & Harrison's objection at trial does not match its complaint on appeal,

nothing has been preserved for our review. See id. (citing TEX. R. APP. P. 33.1).

We also note that on June 15, 2006, the morning following the charge conference

and immediately before the hearing on Robinson & Harrison's motion for instructed verdict,

Robinson & Harrison filed the following objection to the proposed jury charge issues on
12

usury:

Defendants will show that Plaintiffs have the burden of proof as to each

element of each cause of action. The elements of usury are: (1) a loan of

money; (2) an absolute obligation to repay the princip[al]; (3) the exaction of

a greater compensation than allowed by law for the use of the money by the

borrower. First Bank v. Tony's Tortilla Factory, Inc.[,] 877 S.W.2d 285, 287

(Tex. 1994).

Plaintiffs failed to submit any evidence regarding the princip[al] amount of the

loan or the duration of the loan. Therefore plaintiffs failed to meet their

burden to present evidence that would allow the jury to calculate the

"compensation allowed by law".

In this written objection, Robinson & Harrison asked the trial court to strike plaintiffs' issues

submitted to the jury for usury liability and damages. At the hearing later that morning, the

following exchange occurred between the trial court and Robinson & Harrison's counsel:

[Counsel]: Your Honor, I have also prepared—which I stated yesterday,

verbally, which I had prepared—a . . . proposed issue on

Question Number 6 with existence of usury, a question for—I

have a new 6 (a) for the user [sic] liability, [and] Number 7 for

usury damages . . . . I would like—I have filed these with the

Court. I would like to bring these to the Court's attention.

The Court: [Counsel], you didn't file these in writing yesterday. You made

your objections yesterday orally. These are what they are.

I had already signed with no objections from any party

yesterday and formally file-stamped it this morning, but it was

signed yesterday.

These were filed after we have [sic] already completed the

objections on the charge yesterday.

[Counsel]: I had filed other written questions, and I did make objections.

These—in particular, on the issue—on the issue of the usury,

Question Number 6 simply asks—

The Court: [Counsel], with all due respect, these were filed after we had

already finished the charge yesterday. You were supposed to

file those things in writing before the charge.
13

[Counsel]: Your Honor, we need to file these after the parties close and

before issues are submitted to the jury.

The Court: I disagree. You are supposed to file it before we are finished

with the charge. We finished the charge yesterday.

But they are what they are, and my rulings are what they are.

And if this is taken up, you can make that issue.

[Counsel]: I just want to make sure—I want to make sure I didn't pick up

the Court's copy. Does the court have?

The Court: . . . I don't actually have originals. These were actually copies,

but they are file-stamped.

[Counsel]: Okay. Thank you, Your Honor.

. . .

[Counsel]: I am object[ing]—I'm objecting to the submission of these

proposed jury issues since it's a greater weight of

preponderance of the evidence and since there is no evidence

of these jury issues.

The Court: With all due respect, that was done after we had already filed

the charge, your objection. You should have made your

objection before the filing of the charge.

[Counsel]: For the record, these objections have already been done

outside the presence of the jury and before the jury has been

advised of the Court.

The Court: Okay.

No ruling appears in the record.

After counsel for Robinson & Harrison stated that it had prepared new proposed

issues for the usury questions that he would like to bring to the Court's attention, the trial

court, referring to its rulings made during the June 14 charge conference, informed counsel

that "my rulings are what they are." The trial court made no explicit ruling on this objection,

and, from our review of the record, we cannot conclude that the trial court implicitly ruled
Marcelo and International prevailed against Robinson & Harrison on their claim of tortious 12

interference with a contract. It is undisputed, however, that this liability finding does not support an award of

attorney's fees. See Smith v. Hennington, 249 S.W .3d 600, 606 (Tex. App.–Eastland 2008, pet. denied)

(providing that attorney's fees may be recovered from an opposing party only when permitted by statute or

by contract, and no statutory or contractual basis exists for the recovery of attorney's fees under the plaintiffs'

tortious interference claims) (citing Holland v. Wal-Mart Stores, Inc., 1 S.W .3d 91, 95 (Tex. 1999) (per

curiam)).

14

on this objection or refused to rule and Robinson & Harrison objected to the refusal. See

TEX. R. APP. P. 33.1(a)(2)(A). Because Robinson failed to obtain a ruling, this objection

has not been preserved for our review. See id. at Rule 33.1.

Having concluded neither objection was preserved for our review, we overrule

Robinson & Harrison's first issue.

C. Attorney's Fees Award

By its second issue, Robinson & Harrison contends that, even if usury liability is

found, the award of attorney's fees is not supported by the usury claim because no actual

damages awarded. The availability of attorney's fees under a particular statute is a 12

question of law for the court. Holland v. Wal-Mart Stores, 1 S.W.3d 91, 94 (Tex. 1999) (per

curiam). We therefore review the issue de novo. El Paso Natural Gas Co. v. Minco Oil &

Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999); see The Cadle Co. v. Ortiz, 227 S.W.3d 831,

835 (Tex. App.–Corpus Christi 2007, pet. denied).

1. Section 38.001 of the Civil Practice and Remedies Code

Robinson & Harrison first asserts that no attorney's fees should have been awarded

to Marcelo and International under section 38.001 of the Texas Civil Practice and

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Vernon 2008). We

agree that, pursuant to section 38.001, when no damages are awarded in claims for

rendered services, performed labor, furnished material, freight or express overcharges, lost
Robinson & Harrison also asserts that the damages requested—i.e., "the principal amount on which 13

the interest is charged and received"—are available only when there is a contract or transaction for personal,

family, or household use. See TEX. FIN. CODE ANN. §§ 305.002(b), 349.002(a) (Vernon 2006). The jury was

asked to determine damages founded, in part, on this language. Robinson & Harrison, however, did not

present this objection to the trial court. See TEX. R. CIV. P. 274; TEX. R. APP. P. 33.1(a); see also TEX. R. CIV.

P. 278. We, therefore, conclude that this argument is waived.

15

or damaged freight or express, killed or injured stock, a sworn account, or an oral or written

contract, no attorney's fees may be awarded. Id.; see, e.g., Green Int'l, Inc. v. Solis, 951

S.W.2d 384, 390 (Tex. 1997) ("Because Green failed to recover damages on its breach

of contract claim, Green was not entitled to recover attorney's fees under Section 38.001.").

Marcelo and International's claim is not, however, a claim covered by section 38.001. See

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001. It is a claim for usury. Therefore, Robinson

& Harrison's reliance on section 38.001 of the civil practice and remedies code is

misplaced.13

2. Section 305.005 of the Finance Code

While acknowledging that section 305.005 of the finance code allows for attorney's

fees related to usury, Robinson & Harrison asserts, nonetheless, that the jury verdict in this

case does not support a claim for attorney's fees because there is no finding here that

Robinson & Harrison was liable for usury and no actual damages were awarded. See TEX.

FIN. CODE ANN. § 305.005 (Vernon 2006); C&K Invs. v. Fiesta Group, Inc., 248 S.W.3d

234, 251 (Tex. App.–Houston [1st Dist.] 2007, no pet.) (confirming that under finance code

section 305 a party can only recover attorney's fees when the defendant is first found liable

for usury); Hoxie Implement v. Baker, 65 S.W.3d 140, 150 (Tex. App.–Amarillo 2001, pet.

denied) (holding that before a plaintiff can hold a defendant liable for attorney's fees, the

jury must first find a defendant liable under the finance code). The jury, however, found
16

in response to Question 6 that Robinson & Harrison required the Galvans to assume the

past indebtedness of Tejas as a condition of extending credit to Marcelo. Having

concluded that Robinson & Harrison preserved no charge error as to Question 6 and that

it has presented no evidentiary issues for our review, Question 6 was the only usury liability

question before the jury. See Ramos v. Frito-Lay, Inc., 784 S.W.2d 667, 668 (Tex. 1990)

(citing TEX. R. CIV. P. 279) ("Where . . . issues are omitted which constitute only a part of

a complete and independent ground and other issues necessarily referable to that ground

are submitted and answered, the omitted elements are deemed found in support of the

judgment if no objection is made and they are supported by some evidence."). By

answering this question in the affirmative, the jury found Robinson & Harrison liable for

usury.

Furthermore, section 305.005 of the finance code states that "[a] creditor who is

liable under Section 305.001 or 305.003 is also liable to the obligor for reasonable

attorney's fees set by the court." TEX. FIN. CODE ANN. § 305.005; see id. § 305.001(a-1)

(Vernon 2006) (providing for creditor liability for contracting for, charging, or receiving

usurious interest in connection with a commercial transaction); see also §305.003 (Vernon

2006) (providing for creditor liability for charging or receiving legal interest that is greater

than the amount authorized by the subtitle, entitled "Interest"). The award of reasonable

attorney's fees under section 305.005 is dependent only on the establishment of creditor

liability, not on a finding of actual damages. See id. § 305.005; see also Dyer v. Atteberry,

No. 05-07-00284-CV, 2008 Tex. App. LEXIS 1508, at *10 (Tex. App.–Dallas Feb. 29,

2008) (mem. op.) (holding that because the counterclaim for attorney's fees was

dependent upon a usury claim which the claimant failed to establish, the court found no
17

error in the failure to award attorney's fees) (citing TEX. FIN. CODE. ANN. § 305.005); cf.

Johns v. Ram Forwarding, Inc., 29 S.W.3d 635, 637-38 (Tex. App.–Houston [1st Dist.]

2000, no pet.) (holding, pursuant to section 134.005(b) of the civil practice and remedies

code which provides "each person who prevails in a suit under this chapter shall be

awarded court costs and reasonable and necessary attorney's fees," that the plaintiff who

received zero damages on his Theft Liability Act claim was entitled to recover attorney's

fees because the jury found that the defendant committed civil theft); Nw. Bank v. Couie,

642 S.W.2d 847, 851 (Tex. App.–Fort Worth 1982, no writ) (finding, under predecessor

statute to section 349.003 of the finance code, that "actual damages were not necessary

items of proof to be made . . . in order to recover under . . . [article 5060, section 8.01(b)

of the Consumer Credit] Code" because these penalties are not compensatory in nature

and do not require a showing of actual damage); Stephens v. Friendly Chevrolet, Ltd., No.

05-04-00788-CV, 2005 Tex. App. LEXIS 3170, at *5, *11 (Tex. App.–Dallas Apr. 28, 2005,

pet. denied) (mem. op.) (explaining that section 349.001 of the finance code provides

statutory penalties for violations of the provisions of chapter 348 and because "these

penalties are not compensatory in nature" they "do not require a showing of actual

damage"). Even though no actual damages were found, we conclude that the trial court

properly concluded that attorney's fees were available in this case because the jury found

liability. We overrule Robinson & Harrison's second issue.

3. Statute of Limitations

By its third issue, Robinson & Harrison contends that the usury claim is barred by

the four-year statute of limitations. However, this contention is not supported by clear and
18

concise arguments with appropriate citations to authorities and to the record and is, thus,

inadequately briefed. See TEX.R.APP.P. 38.1(i). We overrule Robinson & Harrison's third

and final issue.

4. No Actual Damages Awarded

By his sole issue, cross-appellant Marcelo complains that the trial court erred in

refusing to calculate damages on his usury claim and that the zero damages awarded by

the jury is immaterial and must be disregarded because it is outside the jury's province.

Marcelo now seeks to have this Court correct the trial court's alleged error through a proper

calculation of actual damages and modification of the final judgment.

Parties, however, may not invite error by requesting that an issue be included in the

charge and then by objecting to its submission. See, e.g., Gen. Chem. Corp. v. De La

Lastra, 852 S.W.2d 916, 920 (Tex. 1993); Winkle v. Tullos, 917 S.W.2d 304, 316 (Tex.

App.–Houston [14th Dist.] 1996, writ denied); see also Maddox v. Denka Chem. Corp., 930

S.W.2d 668, 670-71 (Tex. App.–Houston [1st Dist.] 1996, no writ) ("A party cannot

complain when the judge submits an issue substantially similar to the one it requested.").

After finding that Robinson & Harrison required the Galvans to assume the past

indebtedness of Tejas as a condition of extending credit to Marcelo, the jury was asked to

answer a damages question based on what Marcelo submitted as the measure of

recoverable damages. The question instructed the jury to calculate damages as twenty

percent of the amount of the principal, plus the principal amount on which the interest was

charged and received, plus the interest charged and received. As instructed, the jury

considered the elements set out in the charge and awarded zero damages.
19

Marcelo did not object to the submission of this damages question. At the charge

conference, counsel for Marcelo stated that, in respect to the final form of the charge, he

did "not have any proposed instructions, objections or requests." He had "no objections

to the charge." Before the jury returned its verdict, Marcelo did not bring to the trial court's

attention that the damages issue either failed to apply the proper measure of damages or

applied an improper measure of damages. Instead, Marcelo requested the very issue that

he now seeks to avoid. Thus, Marcelo invited the error about which he now complains.

Maddox, 930 S.W.2d at 670-71.

Nonetheless, Marcelo argues that the invited error doctrine does not apply in this

case because he requested that the error be corrected while the court had plenary power

to do so and the trial court refused to do so. See Yaquinto v. Britt, 188 S.W.3d 819, 829

(Tex. App.–Fort Worth 2006, pet. denied) (explaining that the invited-error doctrine did not

apply under the facts of the case because a trial court may reconsider and change its order

any time as long as it has plenary power); see also McLendon v. McLendon, 847 S.W.2d

601, 604-05 (Tex. App.–Dallas 1992, writ denied) (concluding that the invited-error doctrine

did not apply because the appellant made the objections to the agreed divorce decree

known to the trial court following the agreement). After the verdict was received, Marcelo

filed a motion for judgment notwithstanding the verdict, motion to disregard jury findings

and, in the alternative, motion for new trial with a supplemental brief in support thereof,

asking the trial court to apply other measures of damages. After the judgment was

entered, Marcelo filed a motion to modify, correct, or reform the judgment. In his motions,

Marcelo alleged that the jury's finding to Question 7, concerning usury damages, was

immaterial and that the trial court had a duty to calculate actual damages. The motions
In his motion for judgment notwithstanding the verdict and motion to disregard the jury findings and, 14

in the alternative, motion for new trial, Marcelo asked the trial court to apply the proper measure of damages

set forth in sections 349.001 and 349.002 of the finance code, which, in combination, provided for (1) twice

the amount of interest contracted for, charged, or received, and (2) forfeiture of all interest and all principal

charged as an additional penalty. See TEX. FIN. CODE ANN. §§ 349.001, 349.002 (Vernon 2006). Using this

measure of damages, Marcelo calculated the following actual damage amount:

Twice the interest $107,200

Interest 53,600

Principal 10,000

Total $170,[8]00

In his supplemental brief in support of its motion, Marcelo calculated actual damages under an

alternative method using sections 305.003 and 305.004 of the finance code, see id. §§ 305.003, 305.004, as

follows:

Penalty under 305.003 $119,896.05

Penalty under 305.004

Principal 10,000.00

Interest 40,000.00

Total $16[9],896.05

Marcelo calculated the section 305.003 penalty of $119,896.05 by determining that the maximum interest

allowed by law on the $10,000 principal at six percent interest for twenty-one days was $34.65. See id. §

302.002 (Vernon 2006). Deducting $34.65 from the "interest charged" or $40,000 and multiplying that amount

by three, Marcelo calculated a section 305.003 penalty of $119,896.05. See id. § 305.003. Marcelo also used

this alternative measure of damages in his motion to modify, correct or reform the judgment filed two years

after judgment was entered.

20

and brief described, in detail, what Marcelo referred to as a proper measure for calculating

damages and an alternative measure. Now, on appeal, Marcelo reasons that because 14

he informed the trial court of the error with time to correct it and the trial court refused, he

neither waived his complaint on appeal nor is estopped from complaining. We disagree

because "the trial court was not authorized to disregard the jury's finding of damages on

that ground when [Marcelo made] no distinct objection to the measure of damages . . .

before submission." Mowery v. Fantastic Homes, Inc., 568 S.W.2d 171, 172-173 (Tex. Civ.

App.–Dallas 1978, no writ) (citing Allen v. Am. Nat'l Ins. Co., 380 S.W.2d 604, 609 (Tex.

1964); Panhandle & Santa Fe Ry. Co. v. Friend, 91 S.W.2d 922, 930 (Tex. Civ.

App.–Austin 1936, no writ)). "If a party is precluded from urging errors in the charge if no
21

distinct objection is made prior to submission, then surely the trial court may not . . .

disregard material issues which have been submitted without a proper objection." Mowery,

568 S.W.2d at 172-173; see Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex. 1987) ("Although

we agree that damages must be measured by a legal standard which serves to guide the

jury in determining compensation for the injured party, the Bonds waived any error in the

submission by failure to properly object."); Iron Mountain Bison Ranch, Inc. v. Easley

Trailer Mfg., Inc., 42 S.W.3d 149, 156-57 (Tex. App.–Amarillo 2000, no pet.); see also TEX.

R. CIV. P. 274.

Therefore, even if the measure of damages in the charge was improper, Marcelo

cannot complain because the trial court submitted the damages question he requested; he

invited the error. See Maddox, 930 S.W.2d at 670-71. Moreover, the trial court was not

authorized to disregard the jury's finding of zero usury damages when no distinct objection

to the measure of those damages was made before submission. See Mowery, 568

S.W.2d at 172-173.

Marcelo also asserts that the jury's zero damages award is immaterial and must be

disregarded because it was outside the jury's province. See Spencer v. Eagle Star Ins.

Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (op. on reh'g) (defining an immaterial jury

question as one that "should not have been submitted" and as "[a] question which calls for

a finding beyond the province of the jury, such as a question of law"). Again, this

contention is not persuasive because Marcelo requested that the jury determine damages.

See Moody v. Main Bank of Houston, 667 S.W.2d 667, 620 (Tex. App.–Houston [1st Dist.]

1984, writ ref'd n.r.e.) (holding, in a "debt assumption" usury case, that a debtor's request
22

that a question be submitted to the jury estops him from subsequently complaining that the

question and jury finding were irrelevant or immaterial).

Finally, relying on Duggan v. Marshall and Miller v. First State Bank, Marcelo sets

out the following proposition of law: When usury is properly pleaded and supported by the

record, the measure of damages is a matter of law, and the trial court has the duty to apply

the proper measure of damages. Duggan, 7 S.W.3d 888, 892 (Tex. App.–Houston [1st

Dist.] 1999, no pet.) (applying this proposition in a common-law usury case and concluding

that a common-law usury claim survived to Marshall's estate and that, therefore, "the trial

court was authorized to render judgment for Marshall's estate in the amount of $191,800

against Duggan upon the jury's finding that Duggan and Marshall had agreed to a 20

percent interest rate, which the parties agree is usurious"); Miller, 551 S.W.2d 89, 102

(Tex. Civ. App.–Fort Worth 1977) (op. on reh'g) (applying this proposition in a non-jury

trial), modified on other grounds, 563 S.W.2d 572 (Tex. 1978). By his appellate

arguments, Marcelo asserts that the trial court had a duty to apply the correct measure of

damages and to calculate the damages based on that measure. The cases cited,

however, do not stand for the proposition that the trial court must apply the correct

measure of damages and calculate the damages as a matter of law when the damages

issue is submitted to the jury, without objection. See Duggan, 7 S.W.3d at 892; Miller, 551

S.W.2d at 102; see also Iron Mountain Bison Ranch, Inc., 42 S.W.3d at 156-57 (explaining

that reversal is required when a damages question incorporates a legally-incorrect

measure of damages only if there was a rule 274 objection made) (citing TEX. R. CIV. P.

274). Marcelo has cited no authority supporting his argument under the facts of this case,
23

and we find none. Marcelo's cross-issue is overruled.

IV. CONCLUSION

Having overruled Robinson & Harrison's issues and Marcelo Galvan's cross-issue,

we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 17th

day of June, 2010.