NO. 07-00-0175-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D JUNE 13, 2001

______________________________ HOXIE IMPLEMENT CO., INC, Appellant
v. JIM BAKER, i ndividuall y and d/b/a BAK ER HARVESTING , Appellee

_________________________________ FROM THE 8 4th DIST RICT COURT FOR HANSFOR D COUNTY; NO. 4281; HON. W ILLIAM D. SMITH, PRESIDING

_______________________________ Before BOYD, C.J., QUINN and REAVIS, JJ. Hoxie Implement Co., Inc . (Hoxi e) appeals from a final jud gment ente red in favor of Jim Baker, i ndividuall y and d/b/aBaker Harvesting (Baker). Through that j udgment, the courtawarded Baker, among other sums, $251,884.95 ag ainst Hox ie. The latter now presents three issues

for review . The first conce rns whether the trial cour

t erred in granti ng Baker a directed verdictupon his clai m of usury. Thr ough the second, Hoxie ar gues that itestablished, as a matter of law, it s right to recover

$3,137.70 from Baker on an open account and that the trial court erre d in denying such recovery. The thi rd point involves the2

propriety of the attorney’s fees awarded Ba ker. We affirm in part and reverse and remand in part. Background Hoxie sued Baker to re cover damages for breach ofcontract. The claims were founded upon Baker’s alleged failure to purch ase six combin es from, and pay an open account of $3 ,137.71 due, Hox ie. Accordi ng to Hox ie’s live pleading, t he failure to purchase the six combines resulted in it suffering damage in the form of “$90,000.00 anticipated profit . . . plus actual econom ic interestlosses and costs of $59,18 3.28 [which losses continue] to accrue at the rate of $252.92 per day

until the combi nes [are] sol d . . . plus $47,252.70 dealer’ s rebate . . . plus prejudgment interest at the highes t rate allow ed by current Texas law . . . .” Baker answered t he petition and g enerally denied the allegat ions. It also counterclaimed for usury. According to Baker, the “ Plai ntif f’ s deman d letter s, plead ings and disclosur

e statement contain [ed] demands for pay ment . . . of damages in the amount of $468,990.56. This s um include[d] al leged interest cha rges in t he amount of $91,135.” Baker continued by

averri ng that “Pl aintiff states this is for pre-j udgment interes t and actual damages suffered, at

the actual rate at which they are accruing and costing the Plaintiff on the purchase price of the com bines from Case IH.” Fur thermore, becausethe “parties

. . . never agreed upon an i nterest rate”the maximum allow able interest

was six percent. Yet, the rate levied by “Plaintiff greatly exceed[ed] the maximum lawful rate . . . .” Attrial, a demand letter w ritten by counsel for Hox ie and dated Janu ary 1 5, 1998
was admitted into evidence. Attach ed to it was a “petition” which Hoxie said it “may” file if Baker did “not make adequate arrangementsfor the payment i n full of all sums due and1 The $1,025, 636.00 referr ed to t he purchase pr ice of the combines. 3 owing to Hoxie.”The letter also admonished B aker to “re ad the allegations contained in the petition carefully.” So too did the com pany inform him (in the letter) that his “fail ure to pay the agreed upon sum when du e and owing res ults in damag es . . . in th e form of interest costs of 18% per annum from Septemb er 1, 1997 until paid.” Next, via the petition which Baker was

directed to “ read . . . car efully,” H oxie tw ice averr ed that Baker w

as indebted to it not only

in the amount of $1, 025,636.00 but also for “interes t thereon at the rate of 18% per annum fro m September 1, 1997, unt il paid in ful l.” 1 Also admitted into ev idence wastestimony t hat Hoxie claimed an amount of interest equal to $91, 13 5.49. This sum w as sought as damages and purpor tedly eq ualed the interest it wasbeing charged once it acquired the combines. Yet, while undergoing crossexamination, the representative for Hoxie admitted th at the company had incurred no such interest char

ges but, nonethel ess, sought the $91,000 amount from its opponent. Once Hoxie completed its presentation of evidence, B aker moved for an instructed verdicton the questions of breached contrac t and usury . As to the latter, i t was undi sputed that1) there ex isted no agr eementwherein Baker consented to pay any interest to Hoxie for a ny purpose an d 2) the inter est whic h Hoxie at

tempted to capture fr om Baker (irre spec tive of

its charac

terizati on) equaled or

exceeded 12% p er annum. Furthermore, Baker argued that he established us ury v ia “two different approaches.”The first concerned the averments i n the J anuary 15th de ma nd le tter as well as the cl aim for $91,000 as interest cost s wh en no such cost s were a ctua lly inc urre d. Th e sec ond involve d the levy of pre-judgment

int erest prior to the time author ized by statute. Fi nally, bot h the debt4

represented by the contr act to purchasecombines and the debt reflecte d in the $3137.71 open account were encompassed w ithin the motion for instructed verdict. Upon hearing argument from all involved, the trial court refuse d to direct a verdict
on the claim of breac hed contract. Regarding the allegat ions of usury, how ever, it stated:

. . . the court has viewed those letters - I think counsel is right, those letters
are a d emand. And I think that is what trigger

s the troubles ome problem here. The court has always had trouble personally with that . I don’t li ke that application of law. I think it’ s harsh. I t hink it’s very, very harsh. But I feel like at this point , based on the record as it i s at this poi nt, that the Cour t has atthis time no c hoice but to g rant, as a mat ter o f law, the motion for instructed verdic t on u sury under both positi ons which thedefendant has pointed out. And the co urt at this time will do so. (Emphasis added). Thereafter, the trial court submitted t he issue of breached contra ctto the jury . The latter found that no breach had occurred. Conseq uently, ju dgment was entered declar ing thatHoxie r

ecove r nothing ag ainst Baker bu t that Baker r ecover $251,8 84.95 and attorney’s

fees from Hoxie. Issue One Hoxie initially

contends that the trial cour t erred by

instructing a verdict on the claim of usury. This is all egedly s o because 1) no deb t was owed by Baker, “ and in absence of
an ab solute obligat

ion to pay a defi

nite princi

pal amount, there cannot be a c har ge o f usurious interest, ” 2) Hox ie did not char ge a usuriou s interes t, but if“it did, th at charge was [sub sequ entl y] corrected . . .” and 3) a ny interes t levied o n t he account receivable was2 N or did Ho xie ple ad tha t it m ad e a bo na fide m ista ke wh ich it subsequentl y cor recte d (assuming a

mist ake wa s m ad e) in re sp on se to B ak er ’s c ou nte rc laim . It is clear that defenses such as bo na f id e mist ake and correct ion m us t be aff irm ativ ely pled b efo re on e ca n claim their pr otec tion at trial. Tri- county Farmers Coop v. B en de le , 641 S. W .2d 208, 209 (Tex. 1982). Thus, i n fai li ng to af fi rmative ly

plead them, Hoxie waive d them. 5 never communicated to Ba ker. (Emphasis added). W e sustain and overrule the point in part.
a. Contingent Obli gation and Corr

ection The contentions r

egarding the conti ng ent nature of the debt an d the subsequent correction (if usurywas actual ly soug ht) werenot urged at the time the tria l court debated whether to grant an instructed verdict. 2 Hoxie di d not broach thes e arguments unti l it filed its motion to vacate the judgment o r, alternatively, for new tria l. And, therein lies the probl em, for

authority

requires that objections

to a trial co urt’s propos ed conduct be urg ed in a timely mann er. T EX
. R. A PP
. P

. 33.1(a); St. Paul’ s Surplus Li

nes , Co. v. Dal

-Worth Tank Co. , 974 S.W.2d 51, 53 (Tex. 1998). The r equirement t o act timely encompasses notonly the obj ection itsel f but also all t he grounds al legedly supporting it. In other

words, both the objection and all legal basi s for it must be t imely ass erted. Credille v. State , 925 S.W.2d 112, 115-16 (Tex. App.-- Houston [14th Dist.] 1996, pet. ref’d.). Fur thermore, an objection is consider

ed timely ur

ged when as serted at

the earliest

opportunity , Russell v. State , 904 S.W.2d 191, 196 (Tex. App.-- Amarillo 1995, pet. ref’d.), or when the potential
er ror becomes apparent. Perry v. St ate , 957 S.W.2d 894, 896 (Tex. App.--Texarkan a 1997, pet. ref’d.). Finally , including the objection a nd grounds i n a motion for new trial does not satisfy th e contemporaneous obj ection rule i f the complaint coul d have been urged earl ier. St. Paul’ s Surplus Li

nes, Co. v. D al-Worth Tank Co. , 974 S.W.2d at 53.6

Here, the parties de bated the propri ety of the m o tion for instructed verdict befo re the motion was granted . At no tim e during t hat debate di d anyone posit that the motion should be den ied because the debt which Hoxie attemp ted to collect from Baker was a contingent

debt or that the deman d for interest contained in the January 15th missive was a mistake which was subsequently corrected. So, the contenti ons were no t urged at th e earliestpossible oppor tunity or at a time w hich afforded the tri al court a c hance to avoid the supposed error

. Thus, Hoxie w aived them, and its motion for new trial did not cure the situation. b. Demanding Usurious Interest Next, in reference to the argument that Hoxie n e ver demanded usu rious inter est, the imple ment dea ler pr opoundsseve ral ar

guments. Th e y concern both the debt represented by

the supposedly

breached purcha se agreement and thatrepresented by the account recei vable. We address each in turn.

1. Breached Purchase Agreement As to whether

Hoxie sought usurious interest while attempting to collect damag es due to th e alle gedly b reac hed sale s agre eme nt, we ne ed address only one ground of Baker. It concernsthe January 15th letter and its substance. Ag ain, Baker contended a t trial that it was a vehicle through which usuri ous interest was demande d. According to Hoxie, however, the letter did not constitute a “charge” of interest for purposes of the usury statutes. Rather, itmerelyinformed its opponent 1) that the peti tion “may”be filed and 2) of interest cos ts Hoxieincurred in acquir i n g a n d h o l d i n g t h e c o m b i n e s fo r B a k e r
. We disagree w ith Hoxi e.7

S ection 305 .001 of the Te xas Finance Code penalizes one for contract ing for, charging, or receiving interest that is greater t han the amount authoriz ed by law . T EX
. F IN
. C ODE A NN
. §305.001(a) (Vernon 199 8). Furthermore , the solici tation, throug h a demand letter, of interest exceeding that a llowed by law may constitute a “ charge” for purposes of §305.001. Woodcrest Assoc., Ltd. v. Comm onwealth Mortgage Cor p. , 775 S.W.2d 434, 437 (Tex. App.- -Dallas 198 9, writ denied); Co pp edge v. C ol on ia l Sa v. & Lo an Ass ’n , 721 S.W.2d 933, 936 (Tex. App.--Dallas 1986, writ denied). All depends upon the intent of the party sending theletter. See Nat’l Bond & Inv. Co. v. Atkinson , 254 S.W .2d 8 85, 8 88 (T ex. Civ. App.--Amari llo 1952, w rit dism’d w.o.j.) (allow ing the admis sion of parol ev idence to determine whether th e parties intended to make a usurious l oan); Great Southern Life Ins. Co. v. W illia ms , 135 S.W .2d 241, 249 (Tex. Civ. App.--Amarillo 1939, writ dism’d judgmt. cor.) (stating that an agreement should not be con strued as usurious unless “ it was t he manifest intention of the l ender to charg e and collect more interest than that . . . permitted by law”). And, by i ntent we do not mean an intent

to engage i n usury. Rather, the i ntent to assess the r

ate charged i s determinative. William C. Dear & Assoc., Inc. v. Plastronics , 913 S.W.2d 251, 254 (Tex. Civ . App.--Amari llo 1996, w rit denied); see Cochran v. Ame ric an Sa v. & Lo an Ass ’n , 586 S.W .2d 8 49, 8 50 (T ex. 1979) (stati ng that the focusis upon the intent tomake the bargain as opposed to the inten t to charge a usurious interest rate). Next, while parol evidence may be utiliz ed, National Bond & Inv. Co. v. A tkinson , 254 S.W.2d at 888, the documen t containing the allegedly usurious demand is the primary
source from which to devine the drafter’s intent. It must be construed asa whole. Parh ms8

v. B & BVentures, Inc. , 938 S.W .2d 199, 203 (Tex. App.--Housto n [14th Dist.] 1997, writ denied). Furthermore , if s usceptible to two or more reasonable bu t differing interpretation s, the interpretati on adopted must be tha t which r enders the document non-usurious. Id. ; Great Sout hern Life Ins. Co. v. Will iams , 135 S.W.2d at 249. This is so becau se we presum e that the parti es intended tocomply w ith the law

. Id. Finally , only w hen it can be said that, upon affording the document a fair a nd reasonable con struction, t he demanding party intended to levy

the interest rate charged, may we find usur

y (assumi ng the rate levied exceeded that allowed by law). Id. With this said, we turn to the January 15th letter and its content. Imm edia tely, we note the t wo components of the January 15t h correspondence. Theycons ist

of a cover l etter and a draft of an original petition. F urthermore, i n directing Baker, via the l etter, to “[p] lease read the al legations contained in the petition carefully,” Hoxie undoubtedly i ntended both items to be consi dered as part of i ts communication. Next, in so c onsi deri ng the m, we discover 1) an allus ion to a breac h of cont ract a nd “su ms due and owing,” 2) the statement that “a lawsuit will be fil ed within the next ten ( 10) days,” 3) refere nce to Hoxi e sufferi ng dama ges i n the “form of i nteres t costs of 18% per ann um” from the date performance was allegedl y due “unti l paid,” 4) a statement that Baker i s indebted to Hoxie “ in the amount of $1,025,636.0 0, plus inter est thereon at the rate of 18% per annum from [the date perfor mance was due] until paid i n full,” and 5) a prayer demanding recover

y from Baker of the $1,025,636 .00 sum along w ith interest “on the purchase price from Septemb er 1, 1997, at the rate of18% per annum until paid in full.” (Emphasis added). Each of thes e allegati ons wasset forth in a direct and positive mann er.9

See Parhms v. B & B Ventures, Inc. , 938 S.W.2d at 203 (stating that a contrac t will not be read as violative of the usurylaws unless by its “expressand positive terms” it evinces an intent to exact more interest than allowed by statute). That is, Hoxie did state in the cover letter that the accompany ing petiti on “ may be filed of record. ” Yet, the specific clai ms and demands in the cover letter itself and the petition were not worded in a contingent manner. Rather, Hoxie ex pressly and unequivocally i nformed Baker of the sums i t considered due from him. In other words, whi le Hox ie may have left ope n the po ssibi lity that s ome other petition could be filed, nowhere did it suggest that the claims uttered in the petition were less than certain or that they would be differen t if another petition were filed. Again, Hoxie told Baker

on or about Januar

y 15th not onl y that a law suit “w ill be filed”but also that t he specific sums mentioned were purportedl y due and rec overable from h im. And, it is the wordsin the January 15t h communication, not what Hox ie may or may not say i n the future, whic h control. Furthermore, that the inter est sought w

as of the type w ithin thescope of §305.001 of the Finance Code is bey ond reasonable di spute, as we now ill ustrate. For purposes of §305.001, interest means “compensation for t he use, forbearance, or detention of money.” T EX
. F IN
. C ODE A NN
. §301.002(a)(4) ( Vernon Supp. 2001). Furthermore , money is de tained under §301.002(a)(4)

when a debt has

become due and pay ment h as be en wi thheld. Sunwest Bank v. Gutierr

ez , 819 S.W.2d 673, 675 (Tex. App.--El Paso 1991 , writ denied). Hoxie argues that the interest i t sought thr ough the Januar

y 15t h cover l etter wasnot to recompense it for Baker’s withholdin g of payment. Rathe r, it was to reimburs e it for interest it incurr

ed in o btainin g the combines and per forming the ag reement. Yet, the
manner in whic h the demand for same was worded b elies the con t ention. For i nstance,3 H ox ie als o c on ten ds tha t the pe tition itse lf co uld not be the basis for a usu ry clai m given the holdi ng

in Geo rge A. Fuller C o. v. Carpet Ser v., Inc. , 823 S.W .2d 603 (Te x. 1992). The re, the Suprem e Cou rt declared that

ini ti ati ng suit

vi a a pl eading which demands excessi ve i nter est does no t con stitute usu ry. Id. at 605. This i s so because the p lead ing is a ddre sse d to the cou rt and not a dem and to the o ppo sing party. Id. W hile thi s may be tr ue, we do n ot have a situation wherein Hox ie simply fil ed a petition wit h the court. Rather, it att ached a copyof same to a demand letter and expressl y di recte d Baker to “read t he all egati ons . . . i n the peti ti on careful ly .” In attachi ng it to t he demand lett er and di recti ng Baker to read i t, the pet it ion be came part ofHo xie’s d em and . Indee d, the facts before us are aki n to t hose in Moore v. Sabi ne Nat’ l Bank , 527 S. W .2d 209 (Tex. Ci v. App. --Aust in 197 5, wri t r ef’ d n.r .e. ) wherei n the c redito r attac hed a co py of the petition to its noti ce of

intent t o reposs ess. In so attaching the petiti on, the creditor did more than simp ly inform the c ourt ofits claim s; rath er, the doc um ent c ons tituted a part o f the d em and upo n the deb tor. M ore im po rta ntly, in discussi ng Sabine in George A. Ful ler , t he Supreme Court di sti nguished it from the Full

er fact s because the peti ti on had been at tached t o the not ice of int ent t o repossess. So, because the Supr eme C ourt did not overr ule Sabine , it rem ains auth oritative p rec ede nt. 10 each time it mentioned interest, i t appended to the reference the phras es “until pai d” or “until paid in full.” The use ofthose phrases is most telling for they indicate th at the interest due would cont inue to accrue unti l the p rincipal or debt was paid. And, if it were to continue to accrue unti l the debt from Baker to H oxie w as pa id, the inter est in quest ion could hardly be that incurre d by Hox ie vis-a-vis some creditor of its own. Additionally, if it
were of the latter ty pe ( i.e. interest acc ruing on a debt Hoxie owed to some third-party), it would stop accrui ng when H oxie paid i ts own cr editor. However, as worded in the January 15th correspondence, the interest was to accrue until B aker paid Hox ie. Given this, we can onlyconclude that the interest at issue represented compen sation for Baker’s u nau thor ize d withholdi ng of payment to Hox ie, i.e. compensation for the detention of money. And, bei ng of such ilk, we must als o conclude tha t it fell w ithin the ambit of §§301.002(a)(4) and 305.001(a) of

the Finance code. There is no other reasonable interpretation of the demand. 3 Fina lly, it is undis puted that neither H oxie nor Baker agr

eed to pay interest at any particular

rate. Thus, the maximum whi ch Hoxie coul d levy upon Baker for detai ning payment was six percent per ann um. T EX
. F IN
. C ODE A NN
. §302.002. Similarly clear is the4 In holdi ng that the charge m ust b e co m m unic ated to the debt or, the Supr eme C ourtwas not spea king ofa m atter ir relevant to the dispositi on of the case , as sugges ted by Baker. Befo re t he c ourtwas “t he questi on of whet her a pl eading contai ning a clai m for usuri ous int erestis a docum ent wh ich may charge inte r est for purposes of impo sing usury penalties.” George A. Ful ler Co. v. Carpet Ser

v., Inc. , 823 S. W .2d 603, 603 (Tex. 199 2). In answering that question, the court endeavore d to def ine what consti tut ed a charge ofinterest. And, in arrivi ng at that answer, it conclud ed that

one of t he components of a charge inv olv ed the comm unicat ion of the intere st r ate to t he debtor , and t hat merely fi li ng a peti ti on wit h the cour t di d not con stitute su ch a c om m un ica tio n. Id. at 605. So, t he discu ssion regardi ng the ne ed to comm unicat e the cha rge w as n ot dicta

. 11 fact that Hoxi e demanded 18% per annum through the J anuary 15th l etter and attachment

. Thus, because the 18% demanded w as three times more than allow ed by stat ute, the l evy was usuri ous. In sum, the January

15th letter and attachment are not s uscepti b le to reasonable butdifferent interpr

etations. Only one construction can be afforded it, and that construction reveals an intent to char ge Baker i nterest at

18% per annum for detai ning payment of the monies allegedly

due Hoxie under the contra ct to purchase the combines. H aving established that the demand was usurious as a m atter of law, Bake r w as entitled to the instructed verdict. Thus, we find no err or in the tr ial court g ranting i t. 2. Account Receivable Regarding the account receivable, H oxie posit s, in effect, that Bake r fai led t o pro ve thatthe dealer communi cated any in terest charg e to him. And, wit hout such a communication, according to H oxie, ther e can be no usury . We agree. As previous ly menti oned, to come within the ambit of §30 5.001(a) of the Finan ce Code, one must c harge an excessive rate of interest. Furthermore, be fore the rate is deemed charged it

must be communicated to the debtor. George A. Full er Co. v. C

arpet Se rv., Inc. , 823 S.W.2d at 605. 4 According to the record before us, Hoxie ’s practic e i nc luded automatically

levyi ng an interes t charge of 18% per annum on tardy accounts5 O ur conclusi on also negates Baker ’s proposit ion t hat Hoxi e vi olat ed the usu rylaws by chargi ng int erestat a t ime when int erestcould no t be ch arged. Simply put, if no i nter est char ge on the account re ce iva ble was ever communicated t o Baker, i t can ha rd ly be sa id th at H ox ie c ha rg ed Ba ke r int er es t at a tim e whe n it cou ld not. 12 receivabl e. However, when as ked if he paid any i nterest charg es on the account receivable allegedly

due Hoxie, B aker repli ed: “No I did n’t.” He then explained that he did notdo so because he 1) “was never billed for it” and 2) received no statement from Hoxie showing such charg es. Given Baker’s tes timony, the t rial court could not find, asa matter of law, that Hoxie communicated the charge to B aker. And, because it coul d not so find, itwas also barred from concluding that Baker esta blished the elements of usury vis-a-vis the account receivable. 5 Furthermore, we reject, for several reasons, Baker’s ar gument that w hen someone merelytestifies at trial about a cr editor’s accounting pr

actices the te sti mon y ipso f acto constitutesa charge of in terest. Fi rst, the testimony referred to by Baker entailed Hoxie’s president

simplydescribing for the fact-finder how the company’s computer autom atically calculated interest due o n outstanding accounts. Yet, at no time di d that indiv idual, or anyone else, inform the court at tri al that Hox ie wanted interest at 18% per annum as part of any judgment in its favor. Again, the intent to levy a particular rate upon a part icular debt must be “expre ss and positi ve” before i t can be said th at the credi to r violated the usury laws. Parhms v. B & B Ventures, Inc. , 938 S.W.2d at 203. So too must the demand for the interest be communicated to the debto r. GeorgeA. Fuller Co. v. Carpet Serv., Inc. , 823 S.W .2d at 605. Merely describing for the fact-f inder a creditor’s internal a ccou nting practices(without

more and in the face of the debtor’s ow n testimony that it never received13

an invoice containing an interest ch arge) is not the expr

ess and positi ve demand for usurious interest required under Parh ms and Fuller

. Seco ndly, like pleadi ngs, testi mony given at trial i s directed toone other than the opposing party. I t is presente d to th e fa ct-f inde r, whe ther it be a jud ge or ju ry, to be used to assess the validity of a claim or defense. So, ifthe Supreme Court is correct in holding thata request for

interest i n a pleading i s not a charg e for purposes of theusury laws since the pleading i s directed tosomeone other than the debtor, George A. Full er Co. v. C

arpet Serv., Inc. , 823 S.W .2d a t 605 , the n it lo gical ly fol lows that testimony given at trial cannot constitute a charge either. Again, this is so because that testim ony, like the pleading, is directed to someone ot her than the debtor. In sum, Baker

failed to establis h, as amatter of law , that Hoxi e char ged hi m a n usurious rate of interest on the outstanding account receivable. T herefore, granting him an instructed verdict on that aspect of his usury cl aim was i mproper. Issue Two Hoxie next contends

that it proved, as a matter of law , that Baker owe d it the sum reflected in the account receivable. Additionally, the trial court’s fa ilure to award itthat sum of money alleg edly const ituted error . We agree.6 Baker posit s that the debt

was not outstandi ng at t he ti me of tri al beca use he had pai d the obl igat ion. The all eged pay ment cam e in t he form of a cashi er’ s check in t he amount of $3137. 70 from Baker to Hoxi e. That Baker del ive red t he inst rument to Hoxi e is a lone i nconsequenti al f or t he mere tender of an i nstru ment does not c ons titute pa ym ent o f the u nde rlying deb t. In re Jones , 97 8 S .W .2d 64 8, 6 54 n.4 (T ex . Ap p.– Am ar illo 1998, orig. pr oce edin g); Fil li on v. David Silvers Co ., 709 S.W .2d 240, 246-47 ( Tex. App.–Houst on [14 th Dist.] 1986, wri t r ef’ d n. r.e. ); Home Ins. Indem. Co. v. Gutier rez , 409 S. W .2d 450, 456 (Tex. Ci v. App. –Corpus Chri sti 1966, wr it

ref’ d. n. r.e. ). Rather, the par ti es must agree t hat i t i s payment bef ore i t can b e d e e me d such. Fillion v. D avid Silvers Co ., 709 S.W .2d a t 246 ; Home Ins. Indem. Co. v. Gutier rez , 409 S. W .2d at

456. Further more, no thin g o f re co rd su gg es ts th at H ox ie a gr ee d to ac ce pt, e ithe r ex pr es sly orimpli edly , t he check as payment. Indeed, the company di d not dep osit or ot herwi se cash the inst rument or ot herwi se “ap pl[y] it on th e de bt.” So , it is unqu estion able that the deb t rem aine d ou tstan ding at tim e of tria l. 14 The evidence of r

ecord indispu tably il lustrates tha t Baker incurred a debt to Hoxie in the amount of

$3137.70. So too does it establis h, as a matter of law , that the debt w as unpaid at time ofsuit and trial. 6 Furthermore, we reje ct Baker’s suggesti on that Hoxi e’s failure to request that the issue be submitted to th e jury barred and bars r ecovery . This is sobecause one need not requesta jury i ssue on claims established as a matter of law

. Gray v. West , 608 S.W.2d 771, 778 (Tex. Civ. App.–Amarillo 1980, writ ref’d n.r.e.). And, as illustrate d above, Hoxie esta blish ed hi s right to rec overy u pon the o pen acco unt a s a ma tter of la w. Nor do we accep t Ba ker ’s proposition that the claim was barred becau se Hoxie demanded an usurious r ate of interest. This is so because, as previ ously dis cussed, the tran sact ion d id no t invo lve us ury. Having proven, asa matter of law , its entitlement to r ecovery upon the account receivabl e, judgment shoul d have been enter ed in favor of

Hoxie on that claim. Because it was not , the trial court erred. Issue Four –

Attorn ey’s Fees Fina lly, Hoxie contends that the trial court erred in awarding Baker attorney’s fees. Its argument istwo-fold. First, i t complains that no statute authorized the aw ard and7 H ox ie ini ti all y argues that Baker failed to pray for attorney’ s fees in his live pl eading. How ever, perusal of h is Sec ond Am end ed O riginal A nsw er an d C oun tercla im disc lose s oth erw ise. T he re in, h e n ot o nly mentioned his r ight

to r ecover such fees speci fi call y und er §37. 009 of the Texas Civi l Pr acti ce and Remedies Code bu t als o in cluded a ge ne ra l pra yer for sa m e. F ur the rm or e, n oth ing of r ec or d s ug ge sts tha t H ox ie sp ec ially exc epte d to the av er m en ts. G ive n th is, w e c on clu de the alle ga tion s w er e s uf fic ien t to p lac e H ox ie on n otice o f its pote ntial liability for attorn ey’s fee s an d to p res erve the c laim for fe es. 15 second, that Ba ker fai led to se gr egate, v ia a jury issue, those attorney’s fees subject to recovery from those whi ch were not . We overrule each aspect of the contention. 1. Statutory Basi

s for Attorne

y’s F ees Throu gh his counterclaim, Baker ple d causes of action sounding in usury and declaratoryjudgment. Regarding the former, statute declar es that a “person who is liable under Sec t ion 305.001 or 305.0 02 [of the Finance Cod e] is also liable for reasonable attorney’s fees set by the court.” T EX
. F IN
. C ODE A NN
. §305.003. Since Bak er pled for attorney’s fees v ia his counterclaim a nd Hoxie w as found liable under

§305.001 of the Finance Code, B aker was entitled to r ecover suc h fees from Hoxie. 7 Regarding the cause seeking declaratory relief, statute again permi ts the awar d of “reasonable and necessa ry attorney’s fees as are equitable and just.” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . §37.009 (Vernon 1997). More over, Baker was not thesole liti gant invoking the Uniform Dec laratory Judgments Act . Hoxie did so as well. U nd er these circumstances, the trial court was entitled to aw ard fees to whi ch ever l itigant pr evailed, such as Baker. See First C ity Nat’ l Bank v. Con cord Oil Co. , 808 S .W.2d 133, 138-39 (Tex. App.--El Pa so 1991, no wri t) (holding that when ei ther the plaint iff or plaintiff and defendantseek declara tory rel ief, attorney’ s fees may be aw arded to either

party); Ritchie
v. City of Fort Worth, 730 S.W.2d 448, 451 (Tex. App.--Fort W orth, writ ref’d n.r.e.) (h olding the same); First Nat’l Bank v. John E. Mitchell Co

. , 7 2 7 S

. W. 2d 360, 363 (Tex.8 Inc ide nta lly, Ho xie do es no t co nte nd tha t its r eq ue st f or de cla ra tor y relie f w as ba se les s. It wo uld

seem as tho ug h s uc h a n a rg um en t is a pre re qu isit e to co nte nd in g tha t C on co rd O il , R itch ie , and John E. Mit ch elldid no t ap ply. 16 App.–Amarillo 1987 , w rit ref’ d n.r .e.)

(statin g th at w hen t he pl aint iff seek s dec lar ator y r eli ef, the trial j udge may aw

ard attorney ’s fees to any party). 8 2. Segregation of F ees As to the contention that Baker failed to segregate, via a jury issue, those attorney’s f ee s subject to r

ecovery from those whi ch were not , we concl ude that the iss ue was waived

. Genera lly, the fai lure to segregate attorney’s fees in a case contain ing multiple
cause s of actio n, when only some of which entitle the r ecovery of fees, can result in the recovery of no fees. Green Int’l, Inc. v. Solis , 951 S.W.2d 384, 389 (Tex. 1996). Yet, if no one objects to t he situation, t hen the objection is waiv ed. Id. Belo w, Hoxie obj ected to the iss ue involv ing attorney’s fees “because [the court] didn’t segregate or put in there which amount of att orneys fees was for u sury or which amount

. . . was for declaratory judgment .” (Emphasis added). In effect, compl aint was made regarding the segreg ation of fees incurred in prosecuting the usury claim (w hich fees
were authorized by statute) from fees incurred in prosecuting the declaratory action (which f ees were authorized by statute). Nothing was said, however, about fees “applicable t o [the] defense against H oxie’s c laims and the fees appl icable to Baker ’s usury claim.” (Emphasis added). In other words, n o one complained about the segregati on of fees recoverable under statute from those generally incurred by

Baker in defending against the suitand which allegedlyare not recoverable. And, i t is the latter complaint t hat is urg ed
on appeal. So, g iven that th e contention before us does not comport with the obj ection17

raised below, that before us was and is waiv ed. Rodriquez

v. State, 955 S.W.2d 171, 177 (Tex. App. – Amarill o 1997, no pet.) (stating that the issue asserted on appeal mu st comport wi th the objection asserted below , otherwi se it is w aived). For the reasons stated above, w e revers e those portions of the judgment 1) awarding damages agai nst Hoxi e for allegedl y charg ing Baker usurious interest upon the account receivab le and 2) denying Hoxie r ecovery upon the account

receivab le due from Baker. We furtherorder that Hoxie recover from Baker the sum of $31 37.70 plus interest atthe r ate of 1) s ix

per cent a y ear from thir

ty d aysaft er the accoun t rece ivab le became due to the day

before judgment and 2) ten percent a year from the dat e of judgment until paid. However, we ar

e unable to render

judgment o n the entire cause for two reasons. First, the date on w hich the account receivab le became due cannot b e det ermined from the record before us. Second, the record also fail s to illus trate what portion of the $251,884.95 award ed to Bake r as da mage s fo r usu ry i s co mprised of the damage s a ttributa ble to Ho xie’s a llege d cha rge ofusur y on th e acc oun t rece ivabl e. Th us, we remand the cause to thetrial cour t for further proceedings commensur ate with t his opinion.

Brian Quinn Justice

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