Marvin A. Dierschke and Janis L. Dierschke v. First National Bank of West Texas ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00300-CV



Marvin A. Dierschke and Janis L. Dierschke, Appellants

v.

First National Bank of West Texas, Appellee



FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT, CV92-1383-B, HONORABLE DICK ALCALA, JUDGE PRESIDING  

PER CURIAM

Appellants Marvin A. Dierschke and Janis L. Dierschke challenge a judgment rendered in favor of appellee First National Bank of West Texas ("First National"), formerly the Central National Branch of First National Bank at Lubbock. We will affirm the trial court's judgment.

The Dierschkes signed three promissory notes in favor of Central National Bank of San Angelo. On December 16, 1985, Marvin Dierschke signed a note for $886,536.21; on March 23, 1987, he signed a note for $80,000.00; and, on November 20, 1989, Marvin and Janis Dierschke signed a renewal note for $780,000.00, the proceeds of which were credited against the first note. ⁽¹⁾

Central National Bank of San Angelo was declared insolvent by the Comptroller of the Currency, taken over by the Federal Deposit Insurance Corporation ("FDIC") as receiver, and then sold to the First National Bank at Lubbock. First National Bank of Lubbock later changed its name to First National Bank of West Texas. First National, claiming to be the holder and owner of the Dierschkes' notes, brought suit after they defaulted.

Points of error one and two are argued together. Although the Dierschkes denominate them as "no-evidence" points, they complain of the admission of particular testimony. We will evaluate the complaints regarding admission of evidence under the abuse of discretion standard against which evidentiary decisions are measured. ⁽²⁾ City of Brownsville v. Alvarado, 38 Tex. Sup. Ct. J. 440, 442 (April 1, 1995); Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 760 (Tex. App.--Dallas 1991, writ denied). The admission and exclusion of evidence is committed to the trial court's sound discretion. City of Brownsville, 38 Tex. Sup. Ct. J. at 442. The trial court's determination will not be overturned absent an abuse of discretion. Steenbergen, 814 S.W.2d at 760. A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

Dan Dickerson, an employee of First National Bank of West Texas, testified regarding the transactions between the banks and the status of the Dierschkes' account. The Dierschkes complain that the trial court erred in overruling three objections to Dickerson's testimony.

The Dierschkes first objected on the basis of hearsay to Dickerson's testimony that the First National Bank of Lubbock purchased substantially all of the assets of the failed bank, including the Dierschkes' note. Dickerson testified that he had been employed by the banks, through their various metamorphoses, for eleven years, and was familiar with the Dierschkes' account. He had been involved in negotiating the renewal note and was the trustee in two foreclosures of land that the Dierschkes had pledged to secure the renewal note. A person may testify regarding facts that he gained during his employment without violating the hearsay rule. Waite v. BancTexas-Houston, N.A., 792 S.W.2d 538, 540 (Tex. App.--Houston [1st Dist.] 1990, no writ) (vice-president of bank able to testify regarding facts he learned from written records and conversations with employees).

The Dierschkes also objected to this testimony on the basis of the best evidence rule. Oral testimony as to the fact of the assumption, as distinguished from the content of the purchase and assumption agreement, is admissible if the witness has personal knowledge of the fact that the note was assumed. See Villiers v. Republic Fin. Servs., Inc., 602 S.W.2d 566, 569 (Tex. Civ. App.--Texarkana 1980, writ ref'd n.r.e.) (assistant vice-president of bank could testify that insurance companies had authorized bank to act as their billing and collecting agent). Since Dickerson established the basis for his familiarity with the transactions involving the banks, and with the Dierschkes' account, his testimony is admissible on those subjects.

The Dierschkes next protest the admission of the following testimony:

Bank: Dan, is the First National Bank of West Texas the owner and holder of the notes?

Dickerson: Yes, they are.

Bank: Sole party with the power to enforce payment of the same?

Dierschkes: Same objection, Your Honor, of course, they're non-assignable.

The Dierschkes did not object to the testimony that the Bank was the owner and holder of the notes and so waived any error to the admission of that statement. Tex. R. App. P 52(a); Beall v. Ditmore, 867 S.W.2d 791, 794 (Tex. App.--El Paso 1994, writ denied) (timely objection must be raised as soon as practicable). The Dierschkes did object to the testimony that First National was the sole party with the power to enforce payment of the notes but the basis of their objection was not clear. The Dierschkes claim on appeal that the words "same objection" refer to a previous objection on the basis of hearsay and the best evidence rule. However, that objection had been made before a break in the proceeding. The words "same objection" may refer back to the Dierschkes' running "objection" that "the note is non-negotiable and non-assignable and the interest has been improperly computed."

A valid objection must state clearly and specifically the ground on which it is based at the time the question is asked or the evidence offered, unless the specific ground is apparent from the context. Tex. R. Civ. Evid. 103(a)(1); Tex. R. App. P. 52(a); Smith Motor Sales, Inc. v. Texas Motor Vehicle Comm'n, 809 S.W.2d 268, 272 (Tex. App.--Austin 1991, writ denied); Insurance Co. of Am. v. Royer, 547 S.W.2d 350, 353 (Tex. Civ. App.--Austin 1977, writ ref'd n.r.e.). The Dierschkes did not state the specific ground for their objection, nor is it apparent from the context in which it was offered. Therefore, the Dierschkes' objection was not sufficiently clear to preserve error. See Smith Motor Sales, Inc., 809 S.W.2d at 268; Insurance Co. of Am., 547 S.W.2d at 353.

The Dierschkes complain on the basis of hearsay of Dickerson's testimony that the purchase and assumption agreement under which the First National Bank at Lubbock obtained the assets of the failed bank from the FDIC was duly recorded in the deed records of Tom Green County. Dickerson explained that he was testifying from personal knowledge because he had "come across" the recordation before. Since Dickerson's testimony was based on personal knowledge and he was subject to cross-examination, his statement is not hearsay. Bell v. Ott, 606 S.W.2d 942, 953 (Tex. Civ. App.--Waco 1980, writ ref'd n.r.e.).

The Dierschkes further argue that the following awkwardly-worded exchange between First National and its attorney regarding conditions precedent to recovery admits an impediment to the recovery of a money judgment:

Bank: Have all -- has all conditions precedent been performed or have occurred that would prohibit [First National] from recovering a money judgment against [the Dierschkes]?

Dickerson: Yes.

The Dierschkes do not suggest what the conditions precedent might be; they simply state that the exchange establishes that such conditions exist. We disagree. The phrase "that would prohibit the bank from recovering a money judgment" describes "conditions precedent," not acts that were performed. The contextual purpose of the question is to establish that any acts that must have been performed or conditions that must have occurred before First National could recover were performed or had occurred. Having found no abuse of discretion in the properly preserved complaints, we overrule points of error one and two.

Point of error three complains that the trial court erred by not granting a new trial in order to receive additional evidence to use in reforming the judgment. After trial, but before judgment was rendered, the trial court issued preliminary findings and conclusions favorable to First National and informed the parties that it would consider reopening the trial for the limited purpose of ascertaining the interest due. In reply, First National informed the trial court by letter that it had elected to waive all interest "from date thereof to date of trial" on notes one and two. The letter included calculations showing the principal and the offsets against principal for amounts already collected from prior foreclosure sales. Judgment was rendered in accordance with the calculations.

The Dierschkes did not object to the calculations before rendition of judgment. However, the Dierschkes complained in a motion for new trial that the principal should have been offset by the amount of prior interest payments. The Dierschkes attached three checks that purportedly had been remitted to First National as payments of interest on notes one and two. First National stated in its response to the motion for new trial that it had intended to waive only accrued unpaid interest; it also disputed that two of the proffered checks were payments of interest on the notes sued upon.

The trial court's decision whether to grant a new trial is discretionary and the court's ruling will not be disturbed on appeal absent a showing of an abuse of that discretion. Superior Packing Inc., v. Worldwide Leasing & Fin., Inc., 880 S.W.2d 67, 71 (Tex. App.--Houston [14th Dist.] 1994, writ denied). On appellate review, every reasonable presumption will be made in favor of a trial court's refusal to order a new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983).

In this case, First National's statement of its intent to waive only accrued unpaid interest is supported by its calculations. Also, at trial, the only issue litigated was the amount due on notes one and two since 1988. The single interest payment that First National concedes related to these notes was dated December 30, 1987, and was in payment of interest accrued on note one to that point. The trial court considered the motion for a new trial and the response and specifically concluded that the amounts it rendered judgment upon were proper in consideration of First National's waiver of the accrued interest. Because this is a reasonable interpretation, we conclude that the trial court did not abuse its discretion by not granting the motion for new trial.

The Dierschkes also challenge the finding of fact and conclusions of law that the amount awarded was proper in light of First National's waiver of accrued interest. Although this challenge is improperly combined with the point of error complaining of the failure to grant a new trial, we will liberally ⁽³⁾ interpret this as a challenge to the sufficiency of the evidence to support the findings of fact. The trial court's findings of fact are reviewable for factual sufficiency of the evidence by the same standards as applied in reviewing the factual sufficiency of the evidence supporting jury findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). When reviewing a jury verdict to determine the factual sufficiency of the evidence, we consider and weigh all the evidence and should set aside the judgment only if the evidence is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); Federal Deposit Ins. Corp. v. Golden Imports, Inc., 859 S.W.2d 635, 640 (Tex. App.--Houston [1st Dist. 1993, no writ). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence", 69 Tex. L. Rev. 515 (1991).

In this case, the notes themselves were admitted into evidence, as were calculations showing credits for amounts received in prior foreclosures. No other evidence regarding the amount due on the notes was admitted, nor was the amount of the note or credits challenged. We conclude that the evidence supporting the challenged findings of fact and conclusions of law is not so weak as to be clearly wrong and manifestly unjust. We overrule point of error three.

The judgment of the trial court is affirmed.

Before Justices Powers, Kidd and B. A. Smith

Affirmed

Filed: May 31, 1995

Do Not Publish

1.   At the time the renewal note was signed, the proceeds were credited first against accrued interest on note one, then against principal. After trial, First National waived interest, and so credited the amount of the renewal note directly against the principal of note one.

2.   Any error that was not briefed under the broad points of error is waived. See Martin v. Cohen, 804 S.W.2d 201, 202 (Tex. App.--Houston [14th Dist.] 1991, no writ) (mere statement that court erred does not preserve error since appellant presented no argument or authority).

3.   Briefs are liberally construed to adjudicate fairly and equitably the rights of the litigants. Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).