Summary Judgment for Debt Collector Reversed - Failure to Prove Terms of Contract Barajas v. Harvest Credit Management VI-B, LLC (Tex.App.- Houston [14th Dist.] Aug. 28, 2008) (Guzman) (credit card debt suit, summary judgment for debt collector reversed, contract terms not proven) REVERSED AND REMANDED: Opinion by Justice Guzman Before Justices Frost, Seymore and Guzman 14-07-00048-CV Celia Barajas v. Harvest Credit Management, VI-B, LLC as assignee of Metris Direct Merchants Bank Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Linda Storey Attorney for Consumer / Defendant / Appellant: Charlie C. Williams Attorney for Debt Collector / Appellee: Christopher P. Carnohan CA Partners v. Marshall Spears (Tex.App.- Houston [14th Dist.] Aug. 21, 2008)(Fowler) (debt collection, deed of trust, DTPA, DJA, attorneys fees reversed and remanded) AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler Before Justices Fowler, Seymore and Guzman 14-07-00057-CV CA Partners v. Marshall Spears and CitiFinancial, Inc. Appeal from 212th District Court of Galveston County Trial Court Judge: Susan Elizabeth Criss Debt Collector for CitiBank prevails in judgment based on deemed admissions and its own business records affidavit; challenges to affidavit overruled Unifund CCR Partners v. Gellatly (Tex.App.- Houston [1st Dist.] July 3, 2008)(Nuchia) (credit card suit by assignee against consumer, deemed admissions, sufficiency of summary judgment proof, breach of contract and quantum meruit exclusive of each other) AFFIRM TC JUDGMENT: Opinion by Justice Nuchia Before Justices Nuchia, Alcala and Hanks 01-07-00552-CV Unifund CCR Partners v. Sara Morgan Gellatly Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Hon. Roberta A. Lloyd Rowlands v. Unifund CCR Assignee of Citibank (Tex.App.- Houston [14th Dist.] Mar. 27, 2007) (Justice Frost)(consumer debt case, deemed admissions) AFFIRMED: Opinion by Justice Frost Before Justices Fowler, Edelman and Frost 14-05-01122-CV Keith Rowlands v. Unifund CCR as Assignee of Citibank Appeal from Count Civil Court at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull) Attorney for Appellant: John Victor Mastriani Attorneys for Unifund: James N. Hull, Brian Edward Staley Fourteenth Court of Appeals lets debt collector who did not prove up the underlying contract prevail with quantum meruit claim as an alternative; also approves statutory attorney's fees for quantum meruit claim. McElroy v. Unifund CCR Partners (Tex.App.- Houston [1st Dist.] Aug. 26, 2008)(Boyce) (judgment in credit card debt suit affirmed, contract, quantum meruit, attorney's fees, business records affidavit held adequate, challenge overruled) AFFIRMED: Opinion by Justice Boyce Before Chief Justice Hedges, Justices Anderson and Boyce) 14-07-00661-CV Peggy S. McElroy v. Unifund CCR Partners Assignee of America Online - Platinum Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Roberta Anne Lloyd Judgment for Creditor in Credit Card Suit Upheld - Challenge to plaintiff's summary judgment evidence rejected; attorney's fees also affirmed in the absence of controverting evidence on what rate would have been reasonable Duran v. Citibank (Tex.App.- Houston [1st Dist.] Mar. 20, 2008)(Taft) (consumer credit, suit by creditor, summary judgment, attorney's fees, creditor prevails) AFFIRM TC JUDGMENT: Opinion by Justice Taft 01-06-00636-CV Zeke Duran, III v. Citibank (South Dakota), N.A. Appeal from County Civil Court at Law No 3 of Harris County Trial Court Judge: Hon. Lynn Bradshaw-Hull Attorney: John V. Mastriani for Appellant Attorneys Jennifer Spencer, Michael D. Conner, Eric Lipper for Appellee Citibank Appeals court rule in favor of consumer in credit card suit Williams v. Unifund CCR Partners Assignee of Citibank, No. 01-06-00927-CV — SW3d —, 2008 WL 339855, at *4 (Tex.App.—Houston [1st Dist.] Feb. 7, 2008, no pet. h.)(Plaintiff failed to produce the Card Agreement “or any document that established the agreed terms, including the applicable interest rate or the method for determining the applicability and amount of finance charges.) REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by Justice Keyes Before Justices Taft, Keyes and Alcala 01-06-00927-CV Edward Williams v. Unifund CCR Partners Assignee of CitiBank Appeal from County Civil Court at Law No 3 of Harris County (Judge Lynn Bradshaw-Hull) Credit Card Debt Collector's Suit Dismissed - Court of Appeals Affirms Hudson & Keyse, LLC v. Gipson (Tex.App. - Houston [1st Dist.] Jan. 31, 2008)(Jennings) (credit card debt suit, DWOP, substitute service, motion to reinstate) AFFIRM TC JUDGMENT: Opinion by Justice Jennings Before Chief Justice Radack, Justices Jennings and Bland 01-07-00380-CV Hudson & Keyse, L.L.C. v. Lavern W. Gipson and Emmett Gipson Appeal from County Civil Court at Law No 1 of Harris County (Hon. Jack Cagle) Debt Collector Prevails with Dubious Legal Theories Based on Deemed Admissions; Whether Suit on Sworn Account Is Proper for Collection of Credit Card Debt Is Not Decided In This Appeal from a Debt Collection Suit Rowlands v. Unifund CCR Assignee of Citibank (Tex.App.- Houston [14th Dist.] Mar. 27, 2007) (Justice Frost) AFFIRMED: Opinion by Justice Frost Before Justices Fowler, Edelman and Frost 14-05-01122-CV Keith Rowlands v. Unifund CCR as Assignee of Citibank Appeal from Co Civil Ct at Law No 3 of Harris County (Judge Lynn M. Bradshaw-Hull) Because the deemed admissions establish as a matter of law that no genuine issue of material fact exists as to the essential elements of Unifund's claim, summary judgment was proper. Accordingly, we overrule Rowland's issues and affirm the trial court's judgment. Attorney for Unifund CCR: James N. Hull and Brian Edward Staley Attorney for Keith Williams Rowlands: John Victor Mastriani Stelly v. Citibank (Tex.App.- Houston [14th Dist.] May 15, 2008)(Hedges) (credit card debt suit, appeal mooted by trial courts' grant of motion for new trial) DISMISSED: Opinion by Chief Justice Hedges 14-07-00601-CV Diane T. Stelly v. Citibank (South Dakota) N.A. Appeal from County Civil Court at Law No 4 of Harris County Trial Court Judge: Roberta Anne Lloyd Hayes v. Wells Fargo Bank (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Radack) (business law, debt, promissory note, balloon payment) AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack Before Chief Justice Radack, Justices Alcala and Bland 01-06-00720-CV Leroy Hayes, Jr. v. Wells Fargo Bank, N.A. Appeal from 280th District Court of Harris County (Hon. Tony Lindsay) Ghia v. AMEX (Tex.App.- Houston [14th Dist.] Oct. 11, 2007)(Seymore) (credit card debt) AFFIRMED: Opinion by Justice Seymore Before Justices Brock Yates, Edelman and Seymore 14-06-00653-CV Sikander Ghia aka Ghia Sikander, Individually v. American Express Travel Related Services Appeal from County Civil Court at Law No 3 of Harris County (Hon. Lynn M. Bradshaw-Hull) Stewart v. Unifund CCR Partners, LLC (Tex.App.- Houston [1st Dist.] May 17, 2007)(per curiam dismissal, nonpayment for record) DISMISSED: Per Curiam Before Chief Justice Hedges, Justices Hudson and Guzman 14-07-00157-CV Rebecca Stewart v. Unifund CCR Partners, LLC as Assignee of Palisades Collection LLC--Appeal from Co Civil Ct at Law No 4 of Harris County (Hon. Roberta Anne Lloyd) Knopp v. CitiBank (South Dakota) N.A. (Tex.App.- Houston [1st Dist.] May 17, 2007)(May 17, 2007) (per curiam) DISMISSED: Per Curiam Before Justices Brock Yates, Edelman and Seymore) 14-06-01145-CV Craig F. Knopp v. CitiBank (South Dakota) N.A Appeal from County Civil Court at Law # 1 of Harris County (Judge R. Jack Cagle) Winchek v. American Exp. Travel Related Servs. Co., 232 S.W.3d 197 (Tex. App.—Houston [1st Dist.] 2007, no pet.)(summary judgment based on breach of credit card agreement affirmed) Winchek v. AMEX (Tex.App. - Houston [1st Dist.] May 17, 2007)(Higley) (debt collection, credit card debt suit) AFFIRM TC JUDGMENT: Opinion by Justice Higley Before Justices Nuchia, Keyes and Higley 01-06-00392-CV Mary Winchek v. American Travel Related Services Appeal from County Civil Court at Law No 3 of Harris County (Judge Lynn Bradshaw-Hull) Landaverde v. Centurion Capital Corporation (Tex.App.- Houston [14th Dist.] Jun. 28, 2007)(Hedges) (sworn account suit not proper to collect credit card debt, deemed admissions don't support judgment, more relief granted than requested in motion for summary judgment) SJ REVERSED AND REMANDED: Opinion by Chief Justice Hedges Before Chief Justice Hedges, Justices Hudson and Guzman 14-06-00712-CV Jose A. Landaverde v. Centurion Capital Corporation OPINIONS Hayes v. Wells Fargo Bank (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Radack)(biz law, debt, promissory note, balloon payment) MEMORANDUM OPINION Appellant, Leroy Hayes, Jr., pro se, appeals a take-nothing judgment rendered in favor of appellee, Wells Fargo Bank, N.A. (the bank) after a bench trial. The judgment awarded the amount of principal and interest on a promissory note acknowledging Hayes's indebtedness to the bank and also awarded the bank attorney's fees. We construe Hayes's issues on appeal as follows: (1) Hayes challenges (a) the trial court's interpretation of the note and (b) the sufficiency of the evidence to support the trial court's implied findings, (2) Hayes contends he was entitled to a mistrial because the bank did not respond to discovery requested during the week before trial, and (3) Hayes contends that the trial court abused its discretion by (a) denying Hayes's request for a jury trial, (b) excusing a witness that Hayes had subpoenaed, and (c) applying the rule of sequestration. We affirm. Background Prime Bank (later purchased by Wells Fargo) loaned $100,000 to Hayes for "working capital" for his business. On February 11, 2000, Hayes signed a "Commercial Fixed Rate Promissory Note" by which he promised to repay all principal plus interest at the rate of 9%, with total interest charges of $24,546.20. The note was payable "[o]n demand, but if no demand is made, then" in 59 payments of $1,608.91 each, with a final payment, "due and payable" on February 11, 2005 for "the unpaid balance plus accrued interest." The note recites Hayes's promise to pay "until all amounts owing under this note are paid in full." Hayes was authorized to prepay the note, in part or in full, on or before the maturity date without penalty. Hayes's lawsuit disputes the last, or 60th payment, due on February 11, 2006. Though his live pleadings acknowledge the terms stated above, Hayes alleged (1) that his "understanding and intentions," when he executed the note, were that his loan would be paid "in full" by February 11, 2006, (2) that he did not know that the last payment due would be a "balloon payment," and (3) that he should not be required to "pay an additional . . . $14,235.52 in interest as prescribed by the written contract." (1) Hayes sought attorney's fees, interest, and costs, but did not assert a claim for damages. The bank filed a general denial and a counterclaim asserting that Hayes still owed $35,272.31 on the note, in addition to attorney's fees and costs. The bank also filed a motion for judgment on the day before trial began. After a two-day trial, the trial court rendered judgment that Hayes take nothing on his claim, and that Wells Fargo was entitled to "recover on its modified counterclaim" and also entitled to interest, costs, and attorney's fees for trial and contingent attorney's fees for appeal. The trial court did not file findings of fact and conclusions of law, and Hayes did not request them. Hayes timely filed a letter requesting a new trial, which the trial court denied after an oral hearing. Standard of Review Because we have no findings of fact and conclusions of law by the trial court, we infer all findings necessary to support the judgment. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). It is axiomatic that any implied finding be consistent with the judgment. Anderson Mill Mun. Util. Dist. v. Robbins, No. 03-04-00369- CV, 2005 WL 2170355, at *6 (Tex. App.--Austin, Sept. 8, 2005, no pet.). We presume that the trial court found all questions of fact in support of the judgment, and we affirm if the judgment can be upheld on any legal basis supported by the pleadings and the evidence. See Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987); Worford, 801 S.W.2d at 109. When the record includes a reporter's record of the trial, as here, the appealing party must show that the judgment of the court below cannot be sustained by any theory raised by the evidence. See Whorton, 742 S.W. 2d at 278. A. Contract-Interpretation Challenges Two of Hayes's issues challenge the trial court's interpretation of the loan documents and note. The well-settled rules of contract interpretation apply to promissory notes. See EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 413 (Tex. App.--Austin 2005, pet. ref'd). The court's first priority is to determine the intent of the parties as expressed in the instrument. DeWitt County Elec. Coop., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999); EMC Mortgage Corp., 167 S.W.3d at 413 (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003); Nat'l Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 520 (Tex. 1995)). In determining the parties' intent, courts must consider the entire writing and give effect to all provisions of the contract within the context of the entire agreement so that no provision is either rendered meaningless or given dispositive effect in isolation. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); EMC Mortgage Corp., 167 S.W.3d at 413. If this analysis permits a certain or definite legal meaning or interpretation, then there is no ambiguity, and the court will construe the contract as a matter of law. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W. 3d 857, 861 (Tex. 2000); Coker, 650 S.W.2d at 393; EMC Mortgage Corp., 167 S.W.3d at 413. A contract is ambiguous only when it is reasonably susceptible to more than one meaning. Am. Mfrs. Mut. Ins. Co. v. Schaefer, 124 S.W.3d 154, 157 (Tex. 2003). Whether a contract is ambiguous is a question of law for the court. Coker, 650 S.W.2d at 393; EMC Mortgage Corp., 167 S.W.3d at 413. Extraneous evidence concerning the parties' interpretations is admissible only if the court first determines that the contract is ambiguous. National Union, 907 S.W.2d at 520; EMC Mortgage Corp., 167 S.W.3d at 413. In this case, the trial court's judgment recites that Hayes "have and recover nothing" from the bank on his claims. This judgment implies that the trial court rejected Hayes's claims (1) that he expected and intended, in executing the note, that his loan would be paid "in full" by February 11, 2005 after paying $1,608.91 per month, (2) that he did not know that the last payment due would be "balloon payment," and (3) that he should not be required to "pay an additional . . . $14,235.52 in interest as prescribed by the written contract." The face of the note defeats Hayes's first contention because paying $1,608.91 for 60 months would repay only $96,534.60 against an undisputed $100,000 indebtedness. By rendering judgment against Hayes, the trial court impliedly rejected this claim and Hayes's remaining claims. An agreement with a balloon-payment provision generally calls for regular, equal payments that consist mostly of interest and smaller amounts of principal, with a large, final payment of all remaining principal plus any accrued interest, which fully satisfies the borrower's financial obligations to the lender. See EMC Mortgage Corp., 167 S.W.3d at 414 (citing Parker v. Dodge, 98 S.W.3d 297, 299 (Tex. App.--Houston [1st Dist.] 2003, no pet.); Katy Pers. Storage v. First State Bank, 968 S.W.2d 579, 580 (Tex. App.--Houston [14th Dist.] 1998, pet. withdrawn)). Because the note and accompanying documents in this case meet these criteria, the trial court properly concluded, as a matter of law, that the note unequivocally required a 60th, balloon payment of unpaid principal plus interest. The trial court's stating on the record that the bank did not "adequately impress" upon Hayes the nature of the balloon payment neither changes this result nor compels a different interpretation of the note. The record here shows that Hayes realized, from his own calculations, that a balloon payment was due and complained to the bank. In response to Hayes's complaints, the bank loaned him additional funds at a lower interest rate to enable him to pay off his balance. As the trial court recognized, Hayes was "absolutely" not adversely affected even if he did not initially understand that he had signed a loan committing him to a balloon payment. Hayes counters that the bank violated the disclosure requirements of 12 C.F.R. Part 226 (Regulation Z), adopted under the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., because the bank did not disclose that the loan transaction required a balloon payment. As reflected in the enactment of chapter 348 of the Finance Code, which governs installment sales of motor vehicles, Regulation Z applies to "retail installment transactions." See Tex. Fin. Code Ann. § 348.009(a) (Vernon 2006) (emphasis added); see also 12 C.F.R. Part 226.1(b) (stating that Regulation Z serves to "promote informed use of consumer credit" by requiring full disclosure of terms and costs) (emphasis added). Hayes's note shows on its face that it is a commercial, fixed rate promissory note. It is undisputed that Hayes borrowed the $100,000 as working capital for his business and thus for a commercial, rather than a retail, purpose. As the trial court recognized, Regulation Z does not apply to this commercial transaction. See Tex. Fin. Code Ann. § 348.009(a); 12 C.F.R. Part 226.1. Hayes also argues that a bank officer made a "human error" in calculating amortization of Hayes's $100,000 loan because his monthly payments should have amounted to $2,076.00, instead of $1,608.91 monthly, in order to amortize the $100,000 indebtedness over 60 months. But, Hayes's proposed amortization would change the basic character of his note from a loan transaction that requires a final balloon payment "of the unpaid principal balance plus accrued interest," to a loan transaction with equal monthly payments of both principal and interest and a final payment equal to all preceding monthly payments. Hayes's recalculation would require that the balloon payment terms of his note be disregarded as meaningless and thus contravene the settled rule of interpretation, that all terms of the note must be construed together, with none rendered meaningless. See Coker, 650 S.W.2d at 393. Hayes's proposed amortization would also render the terms of the note ambiguous--by requiring a final balloon payment while negating any final balloon payment. See EMC Mortgage Corp., 176 S.W.3d at 414 (holding that note requiring both a final balloon payment and equal monthly payments of principal and interest was internally inconsistent and therefore ambiguous). Hayes's last challenge to the loan is premised on claims that the trial court erred in applying the parol evidence rule. This is a rule of substantive law. Hubacek v. Ennis State Bank, 317 S.W.2d 30, 32 (Tex. 1958); Gonzalez v. United Bhd. of Carpenters & Joiners, 93 S.W.3d 208, 211 (Tex. App.-- Houston [14th Dist.] 2002, no pet.) When parties reduce an agreement to writing, the law of parol evidence presumes, in the absence of fraud, accident, or mistake, that prior or contemporaneous agreements, whether oral or written, are merged into the final, written agreement and, therefore, that any provisions not set out in the writing were either abandoned before execution of the agreement or, alternatively, were never made and are thus excluded from consideration in interpreting the written agreement. See Hubacek, 317 S.W.2d at 32; Smith v. Smith, 794 S.W.2d 823, 827 (Tex. App.--Dallas 1990, no writ); Muhm v. Davies, 580 S.W.2d 98, 101 (Tex. Civ. App.-- Houston [1st Dist.] 1979, writ ref'd n.r.e.). Hayes argues that application of the parol evidence rule favors him. He contends that the balloon payment is not disclosed in the note and, therefore, no balloon payment is required, because "proper application" of the parol evidence rule precludes any testimony by the bank's witnesses concerning oral statements regarding a balloon payment. As addressed above, the trial court could properly have concluded as a matter of law and from the face of the note alone, that the loan transaction required a balloon payment. Hayes has not demonstrated with citations to the record that the trial court improperly considered parol evidence, and nothing in the record supports his contention. We overrule Hayes's issues (a), (b), and (c). B. Challenges to the Factual Sufficiency of the Evidence Hayes's issue (f) challenges the sufficiency of the evidence to support the take-nothing judgment. A request for findings of fact and conclusions of law is not required to question the sufficiency of the evidence. Pruet v. Coastal States Trading, Inc., 715 S.W.2d 702, 704 (Tex. App.--Houston [1st Dist.] 1986, no writ). Accordingly, Hayes may challenge the trial court's implied findings for legal and factual sufficiency, under the same standards that govern challenges to a jury's findings. See BMC Software, 83 S.W.3d at 795. Hayes does not argue that he proved his claims as a matter of law or that no evidence supports the judgment in favor of the bank, but contends that the trial court improperly resolved in the bank's favor what Hayes contends are lies and inconsistencies by the bank's witnesses. Accordingly, we construe his arguments as contending that the great weight and preponderance of the evidence to support the trial court's implied findings in favor of the bank and thus, as asserting a challenge to the factual sufficiency of the evidence. In assessing a factual sufficiency challenge, we weigh all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence 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); Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex. App.--Houston [1st Dist.] 1994, no writ). In an appeal from a bench trial, we may not invade the fact-finding role of the trial court, who is the sole judge of the credibility of the witnesses and the weight to give their testimony, and alone determines whether to accept or reject all or any part of that testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580-81 (Tex. App.-- Houston [1st Dist.] 1997, pet. denied). Hayes's basic premise appears to be that the bank mistakenly loaned him the $100,000 through a balloon-note transaction instead of a traditional transaction. He points to testimony by a "rookie" loan officer who (1) denied that she made the loan, but whose initials are "all over the contract agreements" and (2) claimed she discussed the balloon loan with Hayes. Hayes also points to testimony by the bank president who (1) stated he did Hayes's loan and discussed the balloon payment with Hayes; (2) "lied" about whether the loan was a ten-year loan or a seven-year loan; and (3) denied performing amortizations "personally," but later stated that he used his calculator to perform the calculations. (2) We decline to invade the trial court's credibility determinations or the weight, if any, that the trial court chose to give testimony by the bank's witnesses. See id. Having nonetheless reviewed all the evidence from the trial in accordance with Hayes's challenge, we cannot say that the evidence so greatly preponderates against the implied findings by the trial court in favor of the bank that the judgment in favor of the bank is clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176; In re King's Estate, 244 S.W.2d at 661. We overrule Hayes's issue (f). Claimed Discovery Error In issue (d), Hayes contends that he was entitled to a mistrial because the bank did not disclose its witnesses or material evidence to him in response to his request. It is undisputed that Hayes did not request discovery of the bank until less than a week before the May 8, 2000 trial. Requests for disclosure must be made "no later than 30 days before the end of any applicable discovery period." Tex. R. Civ. P. 194.1; accord Tex. R. Civ. P. 194.3 (stating that party responding to discovery request generally has 30 days to serve a written response on the requesting party). Aggrieved parties in a discovery dispute must obtain a ruling before trial begins in order to preserve error. Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). Having failed to obtain a ruling on his discovery request before trial, Hayes waived any error. See Tex. R. App. P. 33.1. We overrule Hayes's issue (d). Claimed Errors in Conducting Trial In issues (e) and (g), Hayes contends that the trial court erred by (1) denying his request for a jury trial, (2) not allowing him to question all the witnesses he had subpoenaed, and (3) not instructing the witnesses "not to discuss the case among themselves." Rulings related to conducting the trial are within the trial court's broad discretion and will not be set aside on appeal unless the trial court manifestly abused its discretion. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 239 (Tex. 2001). A trial court abuses its discretion when it reaches a decision that is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law, or when it clearly fails to correctly analyze or apply the law. In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (citing Walker v. Packer, 827 S.W. 2d 833, 839-40 (Tex. 1992)). Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review these types of discretionary rulings de novo. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (citing Walker, 827 S.W.2d at 840). But when we review a ruling that results from the trial court's having resolved underlying facts, we must defer to the trial court's factual resolutions, and any credibility determinations that may have affected those resolutions, and we may not substitute our judgment for the trial court's judgment in those matters. See Walker, 827 S.W.2d at 839-40; Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.--Houston [1st Dist.] 1993, writ denied). A. Denial of Jury Trial Hayes contends that the trial court erred by denying his request for a jury trial. Though the Texas Constitution guarantees a right to trial by jury, Tex. Const. art. I, § 15, the Constitution further provides that "[N]o jury shall be empaneled in any civil case unless demanded by a party to the case, and a jury fee be paid by the party demanding a jury, for such sum, and with such exceptions as may be prescribed by the Legislature." Tex. Const. art. V, § 10. We review denial of a demand for a jury trial for abuse of discretion. Monroe v. Alternatives in Motion, No. 01-05-01187-CV, 01-05- 01188-CV, 2007 WL 529295, at *10 (Tex. App.--Houston [1st Dist.] Feb. 22, 2007, no pet. h.) (citing Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)). A party who seeks a jury trial must request a jury and pay the jury fee at "a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance." Tex. R. Civ. P. 216. A trial court does not abuse its discretion by denying a trial by jury when there is no timely request or payment of a jury fee. Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985); Martin v. Black, 909 S.W.2d 192, 197 (Tex. App.--Houston [14th Dist.] 1995, writ denied). An untimely jury demand should be granted, however, if granting the request will not (1) interfere with the court's docket, (2) delay the trial, or (3) injure the opposing party. See Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997); Barkhausen v. Craycom, Inc., 178 S.W.3d 413, 418 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). Hayes stated on the record in this case that he believed he requested a jury trial and paid the jury fee when he filed suit, but he could not produce a receipt showing that he had paid the jury fee. Counsel for the bank stated that he never received a written request for jury trial. After learning from the court coordinator that no jury fee had been paid, Hayes paid the fee on the Friday before the Monday that trial began. When the trial court ruled that no jury would be empaneled because Hayes did not timely pay the fee, Hayes did not attempt to demonstrate that granting the request for jury trial would not interfere with the court's docket, delay the trial, or injure the opposing party. The trial court, however, specified that, "it would certainly interrupt the Court's docket to try and put this case now on a jury docket." Accordingly, we hold that the trial court did not abuse its discretion by denying Hayes's request for a jury trial. See Gen. Motors Corp., 951 S.W.2d at 476; Barkhausen, 178 S.W.3d at 418. We overrule the portion of Hayes's issue (e) that challenges denial of a jury trial. Questioning Subpoenaed Witnesses In another portion of issue (e), Hayes contends that the trial court erred by not permitting Hayes to question all the witnesses he had subpoenaed. We construe this complaint as contending that the trial court erred by not permitting one of Hayes's two subpoenaed witnesses to testify. Admission or exclusion of evidence is generally a matter within the trial court's discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (citing State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001)). The record of this case establishes that Hayes personally excused the witness and thus has no complaint. The following transpired at the end of the first day of trial: THE COURT: Now, sometime back you told me that you were getting your financial advice from other people and I don't remember if these are the two people or not, but I explained to you that the Court doesn't take lay witnesses to [tell] me what the law is. It would appear to me that more than likely you have these two witnesses on the hook here under subpoena because you want them to tell me what they think the law is or maybe what they told you the law is or something like that. If you want to ask them any questions like that, they will not be allowed to answer. Are you sure you want these two witnesses back in the morning? HAYES: I would like to have Mr. Eugene Williams back on tomorrow morning. Mr. Barrick, I can excuse him. (Emphasis added)] Because it is apparent that Hayes chose to abandon his request to have Barrick testify, we hold that Hayes waived his complaint. We overrule the remaining portion of Hayes's issue (e). C. Invoking "The Rule" In issue (g), Hayes argues that the trial court did not properly place the witnesses under the exclusionary rule by instructing them "not to discuss the case among themselves." See Tex. R. Evid. 614; Tex. R. Civ. P. 267. Once "the rule" is invoked, the trial court must exclude witnesses from the courtroom and admonish witnesses "not to converse with each other or with any other person about the case other than the attorneys in the case, except by permission of the court." Drilex Sys., Inc. v. Flores, 1 S.W.3d 112, 117 (Tex. 1999). Hayes must demonstrate on appeal that the trial court erred, and that a violation of the rule occurred. See id. Yet, Hayes offers no record citations to support his contention, and the record does not disclose that he brought any violation of the rule to the trial court's attention or asked that a witness be excluded or held in contempt for violating the rule. See id. To the contrary, the record establishes that the court conformed to the rule. The witnesses were sworn and instructed to wait in the attorney-ready rooms, and the trial court instructed them to not discuss the case while waiting to be called. Hayes offered no evidence that a violation occurred, and we find none. Accordingly, Hayes has not established that the trial court abused its discretion. We overrule Hayes's issue (g). Conclusion We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland. 1. Hayes's pleadings also allege that he was "extorted, strong armed, and coerced" into a second loan agreement by which the bank advanced him funds to repay the balance due on the original loan, but Hayes does not challenge the trial court's having rejected those claims. 2. Hayes contends that the witnesses were motivated to lie to "cover up" having negotiated a balloon-payment loan to Hayes, when he did not intend that type of transaction, but Hayes offers no citations from the record that substantiate his claim. |
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