Texas Judiciary Online - HTML Opinion

^{^[1]} The second notice of default and = demand for=20 payment represented that Spears=3Ds debt Aoriginated from the Contract for Labor = and=20 Materials and Trust Deed [Spears] executed with Western Building = and=20 Supply Company,@ and that A[t]he amount owed on this debt is $14, = 633.91 . .=20 . .@ However, on cross- and redirect=20 examination, Johnson testified that Spears never executed a = Contract for=20 Labor and Materials and Trust Deed with Western Building and = Supply=20 Co. Johnson further testified that paragraph 2 of the second = notice=20 of default mistakenly recites that Spears contracted with Western = Building=20 and Supply Co., instead of Lyle Construction Co., that the amount = of debt=20 listed in that paragraph is not accurate, and that the accurate = amount of=20 Spears=3Ds debt is listed at the top of the=20 notice.

^{^[2]} Apparently, the justice of the = peace court=20 granted CA Partners=3Ds petition for forcible entry and = detainer. =20 Although the order granting that petition is absent from the = record on=20 appeal, Spears testified in the proceedings below that he was = present in=20 court when the forcible entry and detainer lawsuit was tried, that = the=20 judge made a decision and ruled against him, and that he appealed = that=20 decision to the county court. A copy of CA = Partners=3Ds AOriginal Petition For Forcible=20 Detainer@ was admitted at trial as = Defendant=3Ds Exhibit 2, and is included in the = record on=20 appeal.

^{^[3]} Citifinancial was included as a = defendant=20 in the present suit because it holds a lien on Spears=3Ds real property. According to=20 Citifinancial=3Ds trial exhibits, on October 17, 2002, = Spears=20 executed a deed of trust with Citifinancial to secure a loan in = the amount=20 of $55,253.16. That deed of trust correctly described=20 Spears=3Ds real property as ALot 85,@ located at 7314 Nightingale, in Texas = City. =20 Then, on October 14, 2004, Spears executed a second deed of trust = with=20 Citifinancial, to secure a loan in the amount of $58,632.17. = The=20 second deed of trust also correctly described Spears=3Ds real property, and was recorded in the = Galveston=20 County clerk=3Ds office. According to=20 Citifinancial=3Ds brief, the 2004 loan was a refinance = of=20 Spears=3Ds 2002 loan.

^{^[4]} Specifically, Spears asserted = that (1)=20 under section 16.035 of the Civil Practices and Remedies Code, a = four-year=20 statute of limitations applied to suits on a Anote secured by real estate@; (2) under CPRC section 16.051, the = residual=20 four-year statute of limitations applied to suits to reform a = deed; and=20 (3) under section 3.118 of the Business and Commerce Code, a = six-year=20 statute of limitations applied to suits on a Anote payable at a certain = time.@ Because the deadline for CA = Partners to=20 file suit was January 1, 2004 under the four-year statutes of = limitation=20 and January 1, 2006 under the six-year statute of limitations, = Spears=20 argued that he was Aentitled to summary judgment under all = of the=20 three methods of calculation of the statute of = limitations.@

^{^[5]} CA Partners also = timely filed=20 a formal bill of exceptions, to which it attached one cashier=3Ds check and seven money orders. = The=20 cashier=3Ds check and money orders purportedly = represent=20 eight payments made by Spears on the Note from April 2003 to May=20 2004. These are the same supporting documents with which CA = Partners=20 requested under Rule 166a(f) of the Texas Rules of Civil Procedure = to=20 supplement Johnson=3Ds summary judgment = affidavit.

^{^[6]} In its brief, CA Partners = indicates that=20 Johnson is also an appellant, although, in its words, A[he is] not a party to this = action.@ However, the record indicates = that CA=20 Partners is a sole proprietorship, and Johnson is its sole = owner. As=20 we explain in our discussion of CA Partners=3Ds fifth issue, Texas law regards = the sole proprietor = and the=20 sole proprietorship as one and the same person. See CU=20 Lloyd=3Ds of Tex. v.=20 Hatfield,=20 126 S.W.3d 679, 684 (Tex. App.CHouston [14th = Dist.] 2004,=20 pet. denied) (citing Ideal Lease Serv., Inc. v. Amoco Prod. = Co.,=20 662 S.W.2d 951, 952 (Tex. 1983)). Accordingly, we refer to CA Partners and = Johnson=20 collectively as ACA Partners,@ unless otherwise = specified.

^{^[7]} CA Partners also contends that = the trial=20 court erred in granting Spears=3Ds motion for partial summary judgment = because=20 Johnson=3Ds Aimproperly-struck@ affidavit created a fact issue on=20 limitations. However, in light of our holding that the trial = court=20 did not err in striking Johnson=3Ds affidavit, we need not address this=20 argument.

^{^[8]} Section 16.035(e) = provides:

If a series of notes or obligations or a = note or=20 obligation payable in installments is secured by a real property = lien, the=20 four-year limitations period does not begin to run until the = maturity date=20 of the last note, obligation, or installment.

Tex. Civ. = Prac. &=20 Rem. Code _ 16.035(e).

^{^[9]} The general rule is that separate = documents=20 executed at the same time, for the same purpose, and in the course = of the=20 same transaction are to be considered as one instrument, and are = to be=20 read and construed together. Jones v. Kelley, 614 S.W.2d = 95, 98=20 (Tex. 1981). Here, the Note and the Deed were both executed = on=20 December 4, 1989, for the purpose of securing a loan for = remodeling work=20 to be done to Spears=3Ds home. Thus, we construe the Note = and the=20 Deed together as a single instrument. See id.; see also = The=20 Cadle Co.v. Butler, 951 S.W.2d 901, 908B09 (Tex. App.CCorpus Christi 1997, no writ) = (construing=20 promissory note and deed of trust as a single instrument to = determine date=20 of maturity; both documents Awere executed on the same date by = identical=20 parties,@ Aidentif[ied] the same subject = matter,@ and were therefore Anot separable@).

^{^[10]} Section 16.035(b) provides, = AA sale of real property under a power of = sale in a=20 mortgage or deed of trust that creates a real property lien must = be made=20 not later than four years after the day the cause of action=20 accrues.@ Tex. Civ.=20 Prac. & Rem. Code _ 16.035(b).

^{^[11]} An Aassumed = name@ is a word or = phrase by which=20 a person may be made known = to the=20 public, and is not a legal entity. Indus. Accident Bd. v. Tex.=20 Workmen=3Ds Comp. Assigned Risk = Pool, 490 S.W.2d 956, 959 (Tex. Civ. = App.CAustin 1973, no writ).

^{^[12]} Spears argues that Johnson is not = a party=20 to this appeal because he did not file a notice of appeal, and = urges us to=20 affirm the judgment as to Johnson individually. However, = because the=20 law regards the sole proprietor and the sole proprietorship as one = and the=20 same person, Spears=3Ds argument is without = merit.

^{^[13]} Section 1692e(4) provides that it = is a=20 violation of the Act if the debt collector represents that = nonpayment of=20 any debt will result in the unlawful sale of any property of any = person.=20 See 15 U.S.C. _ 1692e(4). Sections 42.001 = and 42.002=20 of the Texas Property Code provide that certain personal property = of the=20 debtor is exempt from seizure. See Tex. Prop. Code = __ 42.001 & 42.002. In Finding = of Fact 20,=20 the trial court found that any lien on Spears=3Ds personal property would have been void = under=20 sections 42.001 and 42.002. In Finding of Fact 22, the trial = court=20 found that Johnson violated the state and federal acts by = representing in=20 the Trustee=3Ds Deed that Spears=3Ds nonpayment would result in the sale of = personal=20 property that could not be lawfully sold.

^{^[14]} Section 392.304(a)(8) provides that, in = debt=20 collection, a debt collector may not use a fraudulent, deceptive, = or=20 misleading representation that misrepresents the character, = extent, or=20 amount of a consumer debt. See Tex. Fin. Code = _ 392.304(a)(8).

^{^[15]} In a footnote, CA Partners = further contends=20 that the trial court erred in Atrebling@ the $25,000 mental anguish damages = because (1)=20 the trial court only found a Aknowing@ violation; (2) the DTPA states that = only=20 economic damages are trebled for Aknowing@ violations; and (3) mental anguish = damages are=20 not Aeconomic damages.@ However, the DTPA allows for the = trebling=20 of mental anguish damages for a Aknowing@ violation when Athe claimant is granted the right to = bring a cause=20 of action under [the DTPA] by another law . . . .@ See Tex. Bus. & Com. Code=20 _ 17.50(h) (explaining that, if another = law grants=20 the right to bring a cause of action under the DTPA, claimants may = recover=20 actual damages Awithout regard to whether the conduct of = the=20 defendant was committed intentionally,@ and authorizing the trier of fact to = award a=20 total of not more than three times actual damages A[i]n applying Subsection (b)(1) to an = award of=20 damages under this subsection@). The Texas Finance Code provides = that=20 A[a] violation of this chapter is = actionable under=20 [the DTPA].@ See Tex. Fin. Code = _ 392.404(a). Thus, because CA=20 Partners=3Ds actions constituted a violation of the = Texas=20 Finance Code, the trial court was warranted in doubling = Spears=3Ds mental anguish damages for a mere = Aknowing@ violation of the DTPA. See=20 id.

^{^[16]} Spears actually testified that he = was=20 Ademonstrated@ as a result of the adverse ruling in = the forcible=20 entry and detainer suit. However, on direct examination, = Spears=20 later clarified that by Ademonstrated,@ he meant Adevastated.@

^{^[17]} Johnson does not claim on appeal = that the=20 trial court has no general authority to issue the injunction; he = claims=20 that the court had no authority to enjoin him because he is not a=20 third-party debt collector.

^{^[18]} On appeal, CA = Partners=20 failed to challenge the attorney=3Ds fees awarded to=20 Citifinancial, and therefore waived any such = challenge. In its briefing on this issue, CA = Partners=20 only challenges the award of attorney=3Ds fees to Spears. While CA = Partners does=20 mention the award of attorney=3Ds fees to Citifinancial in its eighth = issue, CA=20 Partners focuses its argument there on the trial court=3Ds alleged error in granting = Citifinancial leave to=20 file a counterclaim during trial, and not whether fee segregation = was=20 required or whether Citifinancial=3Ds fee award was excessive. = Therefore, we=20 construe CA Partners=3Ds issue as a challenge only to the trial = court=3Ds award of attorney=3Ds fees to Spears.

^{^[19]} Because we remand the cause = to the=20 trial court for a new trial on attorney=3Ds fees, we do not reach the argument = that the fees=20 were excessive.

^{^[20]} The former version = of this=20 exception applied when two or more claims were Adependent upon the = same set=20 of facts or circumstances, and thus Aintertwined to the = point of=20 being inseparable.@ See Chapa, = 212 S.W.3d=20 at 311; see also Stewart Title Guar. Co. v. Sterling, 822 = S.W.2d 1,=20 11B12 (Tex. = 1991). In that=20 situation, the claims were said to be Ainextricably=20 intertwined,@ and fee = segregation was not=20 required. See Chapa, 212 S.W.3d at 311; see also Bencon = Mgmt.=20 & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, = 208 (Tex.=20 App.CHouston [14th = Dist.] 2005, no=20 pet.) (referencing Ainextricably=20 intertwined@ exception to the = attorney=20 fee segregation requirement). However, in Chapa, the = Texas=20 Supreme Court explained that common or Aintertwined@ facts do not make = all fees=20 incurred recoverable. See 212 S.W.3d at 313B14. Rather, fees are=20 recoverableCand segregation is = not=20 requiredCif the legal work = performed=20 Aadvances both a = recoverable=20 and unrecoverable claim.@ See id. = This is=20 the focus of the current version of the exception. See id.; = see=20 also 7979 Airport Garage, 245 S.W.3d at 506.

^{^[21]} As we have already explained, as = a result=20 of our disposition of this issue, we do not reach the question of = whether=20 Spears=3Ds appellate attorney=3Ds fee award is = excessive.

^{^[22]} In light of our resolution of = this issue,=20 we do not address Citifinancial=3Ds contention that the issue of its lien = priority=20 was tried by consent.

^{^[23]} Due to our resolution of CA=20 Partners=3Ds issues on appeal, we need not address=20 Spears=3Ds cross-point claiming error in the = trial=20 court=3Ds admission of testimony on CA=20 Partners=3Ds attorney=3Ds=20 fees.