Yigal Bosch v. Frost National Bank ( 2015 )

Opinion issued July 21, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00191-CV
———————————
YIGAL BOSCH, Appellant
V.
FROST NATIONAL BANK, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2009-63337
MEMORANDUM OPINION
This is the second appeal arising from a dispute between Frost Bank and
Yigal Bosch regarding several defaulted business loans. We dismissed Bosch’s
first appeal because there was no final judgment in the case at that time. Bosch v.
Frost Nat’l Bank, No. 01-13-00190-CV, 2013 WL 1932138 (Tex. App.—Houston
[1st Dist.] May 9, 2013, no pet.) (mem. op.). The trial court has since issued a final
judgment against Bosch. In nine issues, Bosch contends that he is entitled to a new
trial. We affirm in part and reverse in part.
Background
Bosch, along with five entities he owned or controlled, borrowed money
from Frost but later defaulted. Frost foreclosed on the loans. Bosch and the entities
brought this lawsuit asserting misconduct by Frost related to its marketing
practices and loan servicing.
Four of the entities filed for bankruptcy in the Southern District of Texas.
Frost removed this lawsuit to federal bankruptcy court. That court remanded some
of Bosch’s individual claims against Frost back to the state court while the entities’
claims against Frost remained in federal court. The bankruptcy closed shortly
thereafter.
Bosch then filed his fourth amended petition, which (1) dropped the entities
as plaintiffs, (2) alleged that the entities had assigned their claims to him, and
(3) asserted the assigned claims in addition to his claims for personal damages.
Frost moved to strike the allegedly assigned claims, and the trial court granted
Frost’s motion. Frost subsequently filed a counterclaim seeking a deficiency
judgment against Bosch. It also sought summary judgment on all of Bosch’s
claims. Bosch filed a motion to dismiss Frost’s counterclaim, contending that the
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debt was discharged through bankruptcy. The trial court granted Frost’s summary-
judgment motion and denied Bosch’s motion to dismiss Frost’s counterclaim.
Bosch requested a jury trial. The trial court denied this request, and Frost
tried its counterclaim to the bench. The trial court awarded Frost a deficiency
judgment, plus interest and attorney’s fees. Bosch timely appealed.
Standing to Assert the Entities’ Claims
In his first issue, Bosch contends that he has standing to assert the entities’
claims because the entities assigned them to him. Frost’s motion to strike, which
the trial court granted, challenged Bosch’s standing on two grounds: (1) the
bankruptcy court’s remand order deprived Bosch of standing and (2) Bosch was
engaged in the unlicensed practice of law. Bosch contends that the trial court erred
by granting Frost’s motion.
A. Construing the motion as plea to the jurisdiction
Frost titled its motion as a “motion to strike.” “We look to the substance of a
plea for relief to determine the nature of the pleading, not merely at the form of
title given to it.” State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980); see
TEX. R. CIV. P. 71. The motion challenges Bosch’s standing. Standing is a
component of subject-matter jurisdiction and is a constitutional prerequisite to
maintaining a lawsuit. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
443–45 (Tex. 1993). Subject-matter jurisdiction may be challenged by a plea to the
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jurisdiction in a motion to dismiss. See FKM P’ship, Ltd. v. Bd. of Regents of Univ.
of Hous. Sys., 255 S.W.3d 619, 628 (Tex. 2008); Brown v. Todd, 53 S.W.3d 297,
300 n.1, 305 n.3 (Tex. 2001); Lacy v. Bassett, 132 S.W.3d 119, 122 (Tex. App.—
Houston [14th Dist.] 2004, no pet.). Accordingly, we construe Frost’s motion as a
plea to the jurisdiction.
B. Standard of review
Frost’s motion asserted that Bosch has no standing to bring the entities’
claims. Standing “focuses on the question of who may bring an action.” Patterson
v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex. 1998). “Courts lack subject-
matter jurisdiction to adjudicate disputes initiated by parties lacking standing.”
Vernco Constr., Inc. v. Nelson, 460 S.W.3d 145, 149 (Tex. 2015). Whether a court
has subject-matter jurisdiction is a question of law that we review de novo. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); State
Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002);
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
A plea to the jurisdiction challenges the trial court’s subject-matter
jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000);
Pineda v. City of Houston, 175 S.W.3d 276, 279 (Tex. App.—Houston [1st Dist.]
2004, no pet.). “[A] court deciding a plea to the jurisdiction is not required to look
solely to the pleadings but may consider evidence and must do so when necessary
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to resolve the jurisdictional issues raised.” Blue, 34 S.W.3d at 555. “The plaintiff
has the burden to plead facts affirmatively showing the trial court has jurisdiction.”
City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied) (citing Tex. Ass’n of Bus., 852
S.W.2d at 446). Once the plaintiff meets this burden, the movant has “the burden
to assert that the trial court lacks subject matter jurisdiction and must support that
contention with evidence.” Santi v. Univ. of Tex. Health Sci. Ctr. at Hous., 312
S.W.3d 800, 804 (Tex. App.—Houston [1st Dist.] 2009, no pet.). “If it does so, the
plaintiff must raise a material fact issue regarding jurisdiction to survive the plea to
the jurisdiction.” Id. “We indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor.” Miranda, 133 S.W.3d at 228.
C. Assignment of the entities’ claims
This lawsuit was originally filed by Bosch and five entities controlled or
owned by Bosch. Four of the entities were in bankruptcy; Frost removed this case
to federal bankruptcy court. That court remanded some claims between Bosch and
Frost to state court. However, it concluded that “the majority of the claims are
owned by various entities that are bankruptcy debtors. As such those claims may
not be asserted by Mr. Bosch but may be asserted by the various bankruptcy
estates.” The bankruptcy has now closed but the entities are no longer parties to
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this lawsuit. Frost contended that the bankruptcy court’s remand order precludes
Bosch from bringing the claims. We disagree.
The remand order does not control this case because the bankruptcy closed
before Frost filed its motion. When the bankruptcy closes, the bankruptcy court
loses its “related to” jurisdiction. Graber v. Fuqua, 279 S.W.3d 608, 628 (Tex.
2009).
Moreover, Bosch contends that the entities validly assigned their claims to
him after the remand order, which was dated February 3, 2011, issued. He
produced evidence that three bankrupt entities assigned their claims to a fourth,
2646 South Loop West Limited Partnership (“2464”). He also adduced evidence
that 2464 subsequently transferred all of its “equity and debts, shares, agreements,
assignments, amendments, obligations, claims, litigations, promises . . . to Yigal
Bosch” on July 29, 2011—the same day the bankruptcy closed.
Frost contends that 2464 did not have the authority to assign the entities’
claims due to the bankruptcy reorganization plan for 2464. The plan states:
All causes of action held by the 2464 Bankruptcy Estate shall be
retained for prosecution by either the Debtor or the trustee. These
claims include all claims . . . on any theory of recovery against Frost
Bank, including lender liability, breach of contract, violation of the
DTPA, and/or any other legal grounds. . . .”
The plan does not expressly limit the assignability of the entities’ claims.
Instead, it allows 2464 to handle the claims as it will. Thus, we reject Frost’s
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contention that the reorganization plan bars 2464’s assignment of its claims to
Bosch.
Frost further contends that, by bringing the entities’ claims, Bosch has
engaged in the unauthorized practice of law. We disagree. Bosch has not claimed
to be acting as the entities’ attorney; rather he is bringing claims that have been
personally assigned to him. It is well-settled that the assignee steps into the shoes
of the assignor and may assert the same rights as the assignor. Gulf Ins. Co. v.
Burns Motors, Inc., 22 S.W.3d 417, 420 (Tex. 2000). Accordingly, Bosch has not
engaged in the unauthorized practice of law because he is not attempting to
represent the entities; he is representing himself pro se.
Construing Bosch’s pleadings liberally and indulging every reasonable
inference in Bosch’s favor, we conclude that Bosch has pleaded facts affirmatively
demonstrating jurisdiction and has responded to Frost’s motion to dismiss with
sufficient evidence to raise a fact issue regarding jurisdiction. See Miranda, 133
S.W.3d at 226–28; Santi, 312 S.W.3d at 804. Accordingly, we sustain Bosch’s first
issue.
No-Evidence Summary Judgment
In his second issue, Bosch challenges the trial court’s no-evidence summary
judgment on the claims originally belonging to him.
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A. Standard of review
We review a summary judgment de novo. Merriman v. XTO Energy, Inc.,
407 S.W.3d 244, 248 (Tex. 2013). If a trial court grants summary judgment
without specifying the grounds for doing so, as is the case here, we must uphold
the trial court’s judgment if any ground relied on by the movant is meritorious.
Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 65 (Tex. App.—
Houston [1st Dist.] 2011, pet. denied).
In reviewing a no-evidence summary judgment, we determine whether the
non-movant produced more than a scintilla of probative evidence to raise a genuine
issue of material fact for each challenged element. Smith v. O’Donnell, 288 S.W.3d
417, 424 (Tex. 2009). More than a scintilla of evidence exists if the evidence
offered “rises to a level that would enable reasonable and fair-minded people to
differ in their conclusions.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003), cert. denied, 541 U.S. 1030, 124 S. Ct. 2097 (2004). “We review the
evidence presented by the motion and response in the light most favorable to the
party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006).
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B. Objections to Bosch’s summary-judgment evidence
Before we can evaluate Bosch’s summary-judgment evidence, we must
address Frost’s contention that Bosch’s evidence is inadmissible. In response to
Frost’s no-evidence summary-judgment motion, Bosch submitted an affidavit and
numerous exhibits. Frost objected to several statements in the affidavit. It also
objected to the exhibits as inadmissible hearsay and unauthenticated documents.
Although Frost raised its objections before the trial court, it never obtained a
ruling. A trial court granting summary judgment without expressly ruling on
objections to summary-judgment evidence does not impliedly sustain the
objections. Delfino v. Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). Frost failed to re-urge the matter to obtain a proper ruling or
refusal to rule.
We must determine if this failure to obtain a ruling waived the objections.
Objections to summary-judgment evidence may be either to the form or to the
substance of the evidence. Objections to the substance challenge the competency
of the evidence and may be asserted for the first time on appeal. Objections to the
form challenge the admissibility of the evidence and must be preserved. Mathis v.
Bocell, 982 S.W.2d 52, 60 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Thus,
by failing to obtain a ruling or a refusal to rule, Frost has waived all objections to
the form, but not objections to the substance, of the affidavits and exhibits. See
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Seaprints, Inc. v. Cadleway Props., Inc., 446 S.W.3d 434, 441 (Tex. App.—
Houston [1st Dist.] 2014, no pet.).
Bosch’s first exhibit, which is his own affidavit, begins by affirming “all the
summary judgment exhibits attached to this response and the facts mentioned in
the Response to Frost’s Motion for Summary Judgment are true and correct to the
best of [Bosch’s] knowledge.” Frost objects that this statement is not based on
Bosch’s personal knowledge, but merely the best of his knowledge. A lack-of-
personal-knowledge objection is an objection to the form and must be preserved.
Rizkallah v. Conner, 952 S.W.2d 580, 585 (Tex. App.—Houston [1st Dist.] 1997,
no writ). By failing to obtain a ruling, Frost has waived this objection. See
Seaprints, 446 S.W.3d at 441.
Frost further objects to Bosch’s affidavit because it asks the court to
consider Bosch’s response as summary-judgment evidence. This is an unwaiveable
objection to the substance because statements of fact in a summary-judgment
motion or response, even if sworn, are not competent summary-judgment evidence.
See Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660–61
(Tex. 1995); Rizkallah, 952 S.W.2d at 585. Thus we will not consider Bosch’s
response as summary-judgment evidence.
Frost also contends that the affidavit’s statement “Frost committed
conversion” is impermissibly conclusory. An objection that an affidavit’s
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statement is impermissibly conclusory is an objection to the substance and cannot
be waived. Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Rizkallah, 952 S.W.2d at 587. A
statement in an affidavit should not be considered if it offers a conclusion without
any explanation or underlying facts. Green, 1 S.W.3d at 130. Bosch provided no
explanation or underlying factual basis for this conclusion. Thus we agree that the
statement is conclusory and will not consider it in our evaluation of the summary-
judgment evidence.
Frost further contends that the remainder of Bosch’s evidence consists of
inadmissible hearsay and unauthenticated documents. Such evidentiary objections
are objections to the form and are waived if not preserved. Id.; Vice v. Kasprzak,
318 S.W.3d 1, 11 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). Thus, Frost
waived such evidentiary objections on appeal. See Seaprints, 446 S.W.3d at 441.
C. Bosch’s summary-judgment evidence
We examine Bosch’s no-evidence summary-judgment evidence, subject to
the exclusions noted above, for each cause of action challenged by Frost.
1. Breach of contract
Frost’s summary-judgment motion challenged the following elements of
Bosch’s breach-of-contract claim: (1) existence of a contract, (2) performance,
(3) breach, and (4) damages. In response, Bosch directs us to several promissory
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notes, loan contracts, and line-of-credit term sheets. Setting aside the existence of a
contract with Frost, Bosch fails to identify any evidence supporting the other three
challenged elements.
2. Deceptive trade practices
Frost’s summary-judgment motion asserted that there is no evidence of an
unconscionable action, which is a requirement of Bosch’s DTPA claim. TEX. BUS.
& COM. CODE ANN. § 17.50(3) (West 2011). Frost challenges the following
elements of an unconscionable action: (1) an action taken to Bosch’s detriment
(2) taking advantage of Bosch’s lack of knowledge, ability, skill, or capacity
(3) with a glaringly noticeable, flagrant, complete, and unmitigated unfairness. See
id. § 17.45(5) (West 2011); Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex. 1985)
(defining grossly unfair degree).
In support of his claim, Bosch points to numerous generalized marketing
statements by Frost, such as: “Frost Bank goes above and beyond in reaching out
to customers and responding to their needs”; “It’s about genuine one-on-one
relationships”; and “We’ll . . . work with you to customize a strategy that fits your
life.” He also points to several promotional letters from Frost that use marketing
terminology like “valued customer” and, in one instance, offer Bosch a free
subscription to Texas Monthly. But Bosch does not identify any evidence that Frost
took advantage of any lack of knowledge, ability, skill, or capacity or that its
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actions resulted in a glaringly noticeable, flagrant, complete, and unmitigated
unfairness. See generally Chastain, 700 S.W.2d at 583–84 (although plaintiff does
not need to prove scienter, he must show that defendant objectively took advantage
of plaintiff to grossly unfair degree).
3. Fraud
Frost’s summary-judgment motion asserts that there is no evidence of any
representation by Frost to Bosch that was (1) actually false, (2) made either with
actual knowledge that it was false or recklessly as a positive assertion without
knowledge of its truth, (3) intended to be acted upon, and (4) the proximate cause
of Bosch’s alleged damages.
Bosch identifies several statements made by Frost to Bosch concerning
various accounts and loans that he believes are fraudulent. But Bosch adduces no
evidence that the statements were false or that Frost knowingly or recklessly made
any false representations.
4. Duty of good faith or fiduciary duty
Frost asserts that there is no evidence that it (1) owes Bosch a duty of good
faith or a fiduciary duty or (2) breached either duty. Bosch claims that Frost owed
him a fiduciary duty stemming from a special relationship between them. While an
implied covenant of good faith and fair dealing does not arise from every contract,
courts “have recognized that a duty of good faith and fair dealing may arise as a
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result of a special relationship between the parties governed or created by a
contract.” Arnold v. Nat’l Cnty. Mut. Fire Ins. Co., 725 S.W.2d 165, 167 (Tex.
1987), modified, Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990).
In addition to a duty of good faith, Texas courts may also recognize a fiduciary
duty in “certain formal relationships, such as an attorney-client or trustee
relationship.” Meyer v. Cathey, 167 S.W.3d 327, 330–31 (Tex. 2005) (internal
citations omitted). “We also recognize an informal fiduciary duty that arises from
‘a moral, social, domestic or purely personal relationship of trust and confidence.’”
Id. (quoting Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276,
287 (Tex. 1998)). In a business transaction, “the special relationship of trust and
confidence must exist prior to, and apart from, the agreement made the basis of the
suit.” Associated Indem. Corp., 964 S.W.2d at 288.
Bosch directs us to a business letter he wrote to a Frost official regarding
loan repayment and concludes: “Frost could have prevented [Bosch’s] losses and
damages with a meeting and planning with Bosch.” But he fails to produce any
contract that expressly creates either a fiduciary duty or a duty of good faith.
Bosch’s summary-judgment evidence fails to demonstrate anything more than a
bank–customer or lender–borrower relationship between Frost and Bosch. These
relationships do not normally give rise to a formal fiduciary duty or a duty of good
faith. Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 675 (Tex. App.—
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Houston [1st Dist.] 1996, no writ). Finally, Bosch’s summary-judgment evidence
cannot support an informal fiduciary duty because there is no evidence of a special
relationship of trust and confidence prior to and apart from the business
transactions underlying this dispute. See Associated Indem. Corp., 964 S.W.2d at
288; Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962). Therefore, Bosch fails to
adduce evidence of a duty of good faith or a fiduciary duty.
5. Usury
Frost challenges only one element of Bosch’s usury claim: charging a higher
interest rate than allowed by law. In his response to the summary-judgment
motion, Bosch relied on only one piece of evidence: a single typewritten page of
unknown provenance with an almost verbatim recitation of Bosch’s usury
allegations in his fourth amended pleadings. “Pleadings simply outline the issues;
they are not evidence, even for summary judgment purposes.” Hidalgo v. Sur. Sav.
& Loan Ass’n, 462 S.W.2d 540, 543 (Tex. 1971). In his brief, Bosch also directs us
to the court’s final judgment—which it issued almost a year after granting
summary judgment—and a page of a promissory note from 2464 to Frost for
$1,900,000 with “the highest [interest] rate established by law.” The note is not
usurious on its face, and Bosch does not explain why it reflects a usurious rate.
Therefore, Bosch adduced no summary-judgment evidence of usury.
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We conclude that the trial court properly granted summary judgment on all
causes of action asserted by Bosch. Accordingly, we overrule Bosch’s second
issue.
Denial of Jury Request
In his third issue, Bosch asserts that the trial court erred by denying his
request for a jury trial.
A. Standard of review
We review the denial of a jury-trial request for abuse of discretion.
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). The trial
court abuses its discretion when its “decision is arbitrary, unreasonable, and
without reference to guiding principles.” Id.
B. Bosch’s jury request
In Texas, civil lawsuits are tried without a jury unless a party requests a jury
trial. TEX. R. CIV. P. 216. To successfully request a jury, a litigant must submit a
written request for a jury and pay a jury fee within a reasonable time, but not less
than thirty days, before trial. Id.
If either the request or the fee is untimely, the trial court has discretion to
deny the request. Id.; Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985); Monroe
v. Alts. in Motion, 234 S.W.3d 56, 69 (Tex. App.—Houston [1st Dist.] 2007, no
pet.). The denial of an untimely jury request is not reversible error unless the
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movant affirmatively shows that the trial court could have granted the request
without (1) interference with the orderly handling of the court’s docket, (2) delay
of trial, or (3) injury to the opposite party. Gen. Motors Corp. v. Gayle, 951
S.W.2d 469, 476 (Tex. 1997); Dawson v. Jarvis, 627 S.W.2d 444, 446–47 (Tex.
App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.).
Bosch asserts that he did not waive his right to a jury trial in any contract
with Frost. This case went to trial on December 4, 2013. Bosch did not pay the jury
fee until November 14, 2013. Thus, assuming without deciding that Bosch did not
contractually waive his jury-trial right, his jury fee was nevertheless untimely.
Bosch presents no evidence to show that a belated grant of his jury-trial request
would not have interfered with the court’s docket, caused delay of trial, or
prejudiced Frost. Because Bosch fails to meet this burden, we conclude that the
trial court did not abuse its discretion.
We overrule Bosch’s third issue.
Discharge of Indebtedness to Frost
In his fourth and fifth issues, Bosch asserts that the trial court erred by
denying his motion to dismiss Frost’s counterclaim. Bosch asserts that the
bankruptcy court had exclusive jurisdiction over all matters arising from his
bankruptcy, his debt to Frost was discharged in bankruptcy, and Frost was
judicially estopped from presenting the claim.
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We begin by addressing Bosch’s challenge to subject-matter jurisdiction. If
the trial court did not have jurisdiction, neither do we. Unifund CCR Partners v.
Villa, 299 S.W.3d 92, 95 (Tex. 2009). Whether a trial court had subject-matter
jurisdiction is a question of law reviewed de novo. Miranda, 133 S.W.3d at 226.
The trial court had jurisdiction. Frost’s counterclaim was not filed until after
the bankruptcy reorganization plan had been confirmed. When the reorganization
plan is confirmed “the debtor’s estate, and thus bankruptcy jurisdiction, ceases to
exist, other than for matters pertaining to the implementation or execution of the
plan.” In re Craig’s Stores of Tex., Inc., 266 F.3d 388, 390 (5th Cir. 2001); accord
Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d 110, 121 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). Thus the mere historical fact of Bosch’s
bankruptcy did not preclude the trial court from exercising jurisdiction over a
counterclaim asserted against him by Frost.
Turning to discharge and estoppel, Bosch has waived these issues. Discharge
of indebtedness in bankruptcy and judicial estoppel are both affirmative defenses,
and Bosch was required to plead and to prove each affirmative defense. See Woods
v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). Bosch did not plead
any affirmative defenses, and thus waived these issues. TEX. R. CIV. P. 94.
We overrule Bosch’s fourth and fifth issues.
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Objection to the Business-Records Affidavit
In his sixth issue, Bosch contends that the trial court should have sustained
his pre-trial and trial objections to Frost’s business-records affidavit. To preserve
the issue for review, Bosch must show that he timely objected and received a
ruling or refusal to rule from the trial court. TEX. R. APP. P. 33.1 Bosch concedes
that he did not obtain a ruling on his pre-trial objection on the issue. At trial, he
objected under Rule 403 to one of the business records, but never objected to the
business-records affidavit. Accordingly, he has failed to preserve the issue.
We overrule Bosch’s sixth issue.
Award of Attorney’s Fees
In his seventh issue, Bosch contends that the trial court erred by awarding
Frost attorney’s fees. Bosch offers numerous reasons why the award was in error.
Bosch asserts that the trial court should not have admitted into evidence
Frost’s attorneys’ time records, which were redacted for confidentiality purposes.
Bosch objected but obtained neither a ruling nor a refusal to rule on his objection,
and thus he failed to preserve that complaint for appeal. TEX. R. APP. P. 33.1.
In addition, Bosch asserts that there are four “errors” from the testimony of
Frost’s lawyer. He quotes a series of record excerpts, many of which support or are
irrelevant to the fee award. He provides almost no argument and does not cite or
discuss any legal authority. He does not articulate any legal basis for an appellate
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challenge to the award of attorney’s fees. Therefore, we conclude that he waived
the issue on appeal. TEX. R. APP. P. 38.1(i); Jordan v. Landry’s Seafood Rest., Inc.,
89 S.W.3d 737, 744 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
We overrule Bosch’s seventh issue.
Award of Usurious Interest
In his eighth issue, Bosch contends that the trial court awarded “usurious
interest” on a note that he personally guaranteed.
The trial court awarded $244,988.36 in unpaid accrued interest, which is the
amount reflected in bank records admitted at trial and the testimony of a Frost
executive. He contends that Frost sought only $227,069.46. According to trial
evidence, the difference between the two figures reflects the proceeds from an
insurance claim on the collateral securing the loan.1 Bosch contends that both
amounts are usurious, but does not explain why. He does not attempt to calculate
the correct amount or identify an error in the trial court’s calculation. He does not
specify what the proper interest rate should be. The record does not contain the
financial documents necessary to calculate the unpaid and accrued interest.
Because he cites no legal authority or record evidence in support of his argument,
Bosch waived the claimed error. TEX. R. APP. P. 38.1(i).
We overrule Bosch’s eighth issue.
1
The judgment credited Bosch for the amount of the claim. Including this credit,
the actual amount awarded as interest was $226,786.60.
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Bosch’s Day in Court
In his ninth issue, Bosch asserts numerous reasons why he was “den[ied] his
day in court.” Bosch largely re-urges issues raised elsewhere in his brief and
addressed elsewhere in this opinion. In addition, Bosch provides little more than a
bare recitation of record excerpts. He provides almost no argument and does not
cite or discuss any legal authority. Therefore he has waived any other points of
error contained in this section of the brief. TEX. R. APP. P. 38.1(i).
We overrule Bosch’s ninth issue.
Conclusion
We reverse the trial court’s order striking the entities’ claims from the
petition and remand to the trial court for further proceedings on those claims. In all
other aspects, we affirm the judgment of the trial court.
Harvey Brown
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
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