Sumrall v. Navistar Financial Corp. , 1991 Tex. App. LEXIS 2991 ( 1991 )

BROOKSHIRE, Justice,

concurring.

I readily concur. The record contains a “JOINT STIPULATIONS FOR ADEQUATE PROTECTION’. This joint stipulation was initially introduced in a bankruptcy proceeding. The bankruptcy proceeding was under Chapter 11 of the Bankruptcy Code. Later, of course, in the State court proceeding, the plaintiff Sumrall, through his attorney, reoffered this joint stipulation as Plaintiff’s Exhibit No. 10 which was admitted without any objection.

The trial judge specifically recited in his judgment of May 15, 1990, that prior to submitting the charge of the court to the jury, the court ruled as a matter of law that the said joint stipulation in bankruptcy (being Plaintiff’s Exhibit No. 10, a joint stipulation in this record) was usurious on its face thereby allowing the submission to the jury of Question 6 on bona fide error.

Furthermore, as I comprehend the record, Question 6 was requested by Navis-tar. Question 6 was favorable to and a defensive issue favoring Navistar. In view of these matters, inter alia, I concur that the present imperfection in the judgment appealed from affects only a part of the matter in controversy and such a part— being the usury question — is now clearly separable without any unfairness to the parties.

Hence, it is proper to remand to the trial bench a mathematical determination of the proper damages under Tex.Rev.Civ.Stat. Ann. arts. 5069-8.01 and 5069-8.02 (Vernon 1987). The limited remand as ordered by the majority is correct since it is not a separate trial on unliquidated damages. The damages under arts. 5069-8.01 and 5069-8.02 are, in my opinion, liquidated damages in nature and ascertainable mainly by mathematical calculations. Tex. R.App.P. 81(b)(1)(c).