In=20 The
Appellant,=20
Leroy Hayes, Jr., pro se, appeals a take-nothing judgment rendered =
in=20
favor of appellee, Wells Fargo Bank, N.A. (the bank) after a bench =
trial.=20
The judgment awarded the amount of principal and interest on a =
promissory=20
note acknowledging Hayes's indebtedness to the bank and also =
awarded the=20
bank attorney's fees. We construe Hayes's issues on appeal as =
follows: (1)=20
Hayes challenges (a) the trial court's interpretation of the note =
and (b)=20
the sufficiency of the evidence to support the trial court's =
implied=20
findings, (2) Hayes contends he was entitled to a mistrial because =
the=20
bank did not respond to discovery requested during the week before =
trial,=20
and (3) Hayes contends that the trial court abused its discretion =
by (a)=20
denying Hayes's request for a jury trial, (b) excusing a witness =
that=20
Hayes had subpoenaed, and (c) applying the rule of sequestration. =
We=20
affirm. Prime Bank=20
(later purchased by Wells Fargo) loaned $100,000 to Hayes for =
"working=20
capital" for his business. On February 11, 2000, Hayes signed a=20
"Commercial Fixed Rate Promissory Note" by which he promised to =
repay all=20
principal plus interest at the rate of 9%, with total interest =
charges of=20
$24,546.20. The note was payable "[o]n demand, but if no demand is =
made,=20
then" in 59 payments of $1,608.91 each, with a final payment, "due =
and=20
payable" on February 11, 2005 for "the unpaid balance plus accrued =
interest." The note recites Hayes's promise to pay "until all =
amounts=20
owing under this note are paid in full." Hayes was authorized to =
prepay=20
the note, in part or in full, on or before the maturity date =
without=20
penalty. Hayes's=20
lawsuit disputes the last, or 60th payment, due on February 11, =
2006.=20
Though his live pleadings acknowledge the terms stated above, =
Hayes=20
alleged (1) that his "understanding and intentions," when he =
executed the=20
note, were that his loan would be paid "in full" by February 11, =
2006, (2)=20
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 . .=20
. $14,235.52 in interest as prescribed by the written contract."=20
(1) Hayes sought attorney's fees, interest, and costs, =
but did=20
not assert a claim for damages. The bank=20
filed a general denial and a counterclaim asserting that Hayes =
still owed=20
$35,272.31 on the note, in addition to attorney's fees and costs. =
The bank=20
also filed a motion for judgment on the day before trial =
began. After a=20
two-day trial, the trial court rendered judgment that Hayes take =
nothing=20
on his claim, and that Wells Fargo was entitled to "recover on its =
modified counterclaim" and also entitled to interest, costs, and=20
attorney's fees for trial and contingent attorney's fees for =
appeal. The=20
trial court did not file findings of fact and conclusions of law, =
and=20
Hayes did not request them. Hayes timely filed a letter requesting =
a new=20
trial, which the trial court denied after an oral hearing. =
Because we=20
have no findings of fact and conclusions of law by the trial =
court, we=20
infer all findings necessary to support the judgment. See BMC =
Software=20
Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); =
Worford=20
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). It is axiomatic =
that any=20
implied finding be consistent with the judgment. Anderson Mill =
Mun.=20
Util. Dist. v. Robbins, No. 03-04-00369-CV, 2005 WL 2170355, =
at *6=20
(Tex. App.--Austin, Sept. 8, 2005, no pet.). We presume that the =
trial=20
court found all questions of fact in support of the judgment, and =
we=20
affirm if the judgment can be upheld on any legal basis supported =
by the=20
pleadings and the evidence. See Point Lookout W., Inc. v.=20
Whorton, 742 S.W.2d 277, 278 (Tex. 1987); Worford, =
801=20
S.W.2d at 109. When the record includes a reporter's record of the =
trial,=20
as here, the appealing party must show that the judgment of the =
court=20
below cannot be sustained by any theory raised by the evidence. =
See=20
Whorton, 742 S.W.2d at 278. A.=20
Contract-Interpretation Challenges Two of=20
Hayes's issues challenge the trial court's interpretation of the =
loan=20
documents and note. The well-settled rules of contract =
interpretation=20
apply to promissory notes. See EMC Mortgage Corp. v. =
Davis, 167=20
S.W.3d 406, 413 (Tex. App.--Austin 2005, pet. ref'd). The court's =
first=20
priority is to determine the intent of the parties as expressed in =
the=20
instrument. DeWitt County Elec. Coop., Inc. v. Parks, 1 =
S.W.3d=20
96, 100 (Tex. 1999); EMC Mortgage Corp., 167 S.W.3d at =
413=20
(citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, =
229 (Tex.=20
2003); Nat'l Union Fire Ins. Co. v. CBI Indus., 907 =
S.W.2d 517,=20
520 (Tex. 1995)). In determining the parties' intent, courts must =
consider=20
the entire writing and give effect to all provisions of the =
contract=20
within the context of the entire agreement so that no provision is =
either=20
rendered meaningless or given dispositive effect in isolation. =
See=20
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); EMC =
Mortgage=20
Corp., 167 S.W.3d at 413. If this analysis permits a certain =
or=20
definite legal meaning or interpretation, then there is no =
ambiguity, and=20
the court will construe the contract as a matter of law. Lopez =
v.=20
Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. =
2000);=20
Coker, 650 S.W.2d at 393; EMC Mortgage Corp., =
167 S.W.3d=20
at 413. A contract is ambiguous only when it is reasonably =
susceptible to=20
more than one meaning. Am. Mfrs. Mut. Ins. Co. v. =
Schaefer, 124=20
S.W.3d 154, 157 (Tex. 2003). Whether a contract is ambiguous is a =
question=20
of law for the court. Coker, 650 S.W.2d at 393; EMC =
Mortgage=20
Corp., 167 S.W.3d at 413. Extraneous evidence concerning the =
parties'=20
interpretations is admissible only if the court first determines =
that the=20
contract is ambiguous. National Union, 907 S.W.2d at 520; =
EMC=20
Mortgage Corp., 167 S.W.3d at 413. In this=20
case, the trial court's judgment recites that Hayes "have and =
recover=20
nothing" from the bank on his claims. This judgment implies that =
the trial=20
court rejected Hayes's claims (1) The record=20
here shows that Hayes realized, from his own calculations, that a =
balloon=20
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=20
to enable him to pay off his balance. As the trial court =
recognized, Hayes=20
was "absolutely" not adversely affected even if he did not =
initially=20
understand that he had signed a loan committing him to a balloon =
payment.=20
Hayes=20
counters that the bank violated the disclosure requirements of 12 =
C.F.R.=20
Part 226 (Regulation Z), adopted under the Federal Truth in =
Lending Act,=20
15 U.S.C. =A7 1601 et seq., because the bank did not disclose that =
the loan=20
transaction required a balloon payment. As reflected in the =
enactment of=20
chapter 348 of the Finance Code, which governs installment sales =
of motor=20
vehicles, Regulation Z applies to "retail installment=20
transactions." See Tex. Fin. Code Ann. =A7 348.009(a) =
(Vernon 2006)=20
(emphasis added); see also 12 C.F.R. Part 226.1(b) =
(stating that=20
Regulation Z serves to "promote informed use of consumer =
credit"=20
by requiring full disclosure of terms and costs) (emphasis added). =
Hayes's=20
note shows on its face that it is a commercial, fixed rate =
promissory=20
note. It is undisputed that Hayes borrowed the $100,000 as working =
capital=20
for his business and thus for a commercial, rather than a retail, =
purpose.=20
As the trial court recognized, Regulation Z does not apply to this =
commercial transaction. See Tex. Fin. Code Ann. =A7 =
348.009(a); 12=20
C.F.R. Part 226.1. Hayes also=20
argues that a bank officer made a "human error" in calculating=20
amortization of Hayes's $100,000 loan because his monthly payments =
should=20
have amounted to $2,076.00, instead of $1,608.91 monthly, in order =
to=20
amortize the $100,000 indebtedness over 60 months. But, Hayes's =
proposed=20
amortization would change the basic character of his note from a =
loan=20
transaction that requires a final balloon payment "of the unpaid =
principal=20
balance plus accrued interest," to a loan transaction with equal =
monthly=20
payments of both principal and interest and a final payment equal =
to all=20
preceding monthly payments. Hayes's recalculation would require =
that the=20
balloon payment terms of his note be disregarded as meaningless =
and thus=20
contravene the settled rule of interpretation, that all terms of =
the note=20
must be construed together, with none rendered meaningless. =
See=20
Coker, 650 S.W.2d at 393. Hayes's proposed amortization would =
also=20
render the terms of the note ambiguous--by requiring a final =
balloon=20
payment while negating any final balloon payment. See EMC =
Mortgage=20
Corp., 176 S.W.3d at 414 (holding that note requiring both a =
final=20
balloon payment and equal monthly payments of principal and =
interest was=20
internally inconsistent and therefore ambiguous). Hayes's=20
last challenge to the loan is premised on claims that the trial =
court=20
erred in applying the parol evidence rule. This is a rule of =
substantive=20
law. Hubacek v. Ennis State Bank, 317 S.W.2d 30, =
32=20
(Tex. 1958); Gonzalez v. United Bhd. of Carpenters & =
Joiners,=20
93 S.W.3d 208, 211 (Tex. App.--Houston [14th Dist.] 2002, no pet.) =
When=20
parties reduce an agreement to writing, the law of parol evidence=20
presumes, in the absence of fraud, accident, or mistake, that =
prior or=20
contemporaneous agreements, whether oral or written, are merged =
into the=20
final, written agreement and, therefore, that any provisions not =
set out=20
in the writing were either abandoned before execution of the =
agreement or,=20
alternatively, were never made and are thus excluded from =
consideration in=20
interpreting the written agreement. See Hubacek, 317 =
S.W.2d at=20
32; Smith v. Smith, 794 S.W.2d 823, 827 (Tex. =
App.--Dallas 1990,=20
no writ); Muhm v. Davies, 580 S.W.2d 98, 101 (Tex. Civ.=20
App.--Houston [1st Dist.] 1979, writ ref'd n.r.e.). Hayes=20
argues that application of the parol evidence rule favors him. He =
contends=20
that the balloon payment is not disclosed in the note and, =
therefore, no=20
balloon payment is required, because "proper application" of the =
parol=20
evidence rule precludes any testimony by the bank's witnesses =
concerning=20
oral statements regarding a balloon payment. As addressed above, =
the trial=20
court could properly have concluded as a matter of law and from =
the face=20
of the note alone, that the loan transaction required a balloon =
payment.=20
Hayes has not demonstrated with citations to the record that the =
trial=20
court improperly considered parol evidence, and nothing in the =
record=20
supports his contention. We overrule=20
Hayes's issues (a), (b), and (c). B.=20
Challenges to the Factual Sufficiency of the =
Evidence Hayes's=20
issue (f) challenges the sufficiency of the evidence to support =
the=20
take-nothing judgment. A request for findings of fact and =
conclusions of=20
law is not required to question the sufficiency of the evidence. =
Pruet=20
v. Coastal States Trading, Inc., 715 S.W.2d 702, 704 (Tex.=20
App.--Houston [1st Dist.] 1986, no writ). Accordingly, Hayes may =
challenge=20
the trial court's implied findings for legal and factual =
sufficiency,=20
under the same standards that govern challenges to a jury's =
findings.=20
See BMC Software, 83 S.W.3d at 795. Hayes does not argue =
that he=20
proved his claims as a matter of law or that no evidence supports =
the=20
judgment in favor of the bank, but contends that the trial court=20
improperly resolved in the bank's favor what Hayes contends are =
lies and=20
inconsistencies by the bank's witnesses. Accordingly, we construe =
his=20
arguments as contending that the great weight and preponderance of =
the=20
evidence to support the trial court's implied findings in favor of =
the=20
bank and thus, as asserting a challenge to the factual sufficiency =
of the=20
evidence. In=20
assessing a factual sufficiency challenge, we weigh all the =
evidence, both=20
supporting and conflicting, and may set the finding aside only if =
it is so=20
contrary to the overwhelming weight of the evidence as to be =
clearly wrong=20
and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 =
(Tex.=20
1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. =
1951);=20
Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 =
(Tex.=20
App.--Houston [1st Dist.] 1994, no writ). In an appeal from a =
bench trial,=20
we may not invade the fact-finding role of the trial court, who is =
the=20
sole judge of the credibility of the witnesses and the weight to =
give=20
their testimony, and alone determines whether to accept or reject =
all or=20
any part of that testimony. Nordstrom v. Nordstrom, 965 =
S.W.2d=20
575, 580-81 (Tex. App.--Houston [1st Dist.] 1997, pet. =
denied). Hayes's=20
basic premise appears to be that the bank mistakenly loaned him =
the=20
$100,000 through a balloon-note transaction instead of a =
traditional=20
transaction. He points to testimony by a "rookie" loan officer who =
(1)=20
denied that she made the loan, but whose initials are "all over =
the=20
contract agreements" and (2) claimed she discussed the balloon =
loan with=20
Hayes. Hayes also points to testimony by the bank president who =
(1) stated=20
he did Hayes's loan and discussed the balloon payment with Hayes; =
(2)=20
"lied" about whether the loan was a ten-year loan or a seven-year =
loan;=20
and (3) denied performing amortizations "personally," but later =
stated=20
that he used his calculator to perform the calculations. We decline=20
to invade the trial court's credibility determinations or the =
weight, if=20
any, that the trial court chose to give testimony by the bank's =
witnesses.=20
See id. Having nonetheless reviewed all the evidence from =
the=20
trial in accordance with Hayes's challenge, we cannot say that the =
evidence so greatly preponderates against the implied findings by =
the=20
trial court in favor of the bank that the judgment in favor of the =
bank is=20
clearly wrong and manifestly unjust. See Cain, 709 S.W.2d =
at 176;=20
In re King's Estate, 244 S.W.2d at 661. We overrule=20
Hayes's issue (f). In issue=20
(d), Hayes contends that he was entitled to a mistrial because the =
bank=20
did not disclose its witnesses or material evidence to him in =
response to=20
his request. It is undisputed that Hayes did not request discovery =
of the=20
bank until less than a week before the May 8, 2000 trial. Requests =
for=20
disclosure must be made "no later than 30 days before the end of =
any=20
applicable discovery period." Tex. R. Civ. P. 194.1; accord =
Tex.=20
R. Civ. P. 194.3 (stating that party responding to discovery =
request=20
generally has 30 days to serve a written response on the =
requesting=20
party). Aggrieved parties in a discovery dispute must obtain a =
ruling=20
before trial begins in order to preserve error. Remington Arms =
Co. v.=20
Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). Having failed to =
obtain a=20
ruling on his discovery request before trial, Hayes waived any =
error.=20
See Tex. R. App. P. 33.1. We overrule=20
Hayes's issue (d). In issues=20
(e) and (g), Hayes contends that the trial court erred by (1) =
denying his=20
request for a jury trial, (2) not allowing him to =
question all the witnesses he had subpoenaed, and (3) not =
instructing the=20
witnesses "not to discuss the case among themselves." Rulings =
related to=20
conducting the trial are within the trial court's broad discretion =
and=20
will not be set aside on appeal unless the trial court manifestly =
abused=20
its discretion. Dow Chem. Co. v. Francis, 46 S.W.3d 237, =
239=20
(Tex. 2001). A trial court Hayes=20
contends that the trial court erred by denying his request for a =
jury=20
trial. Though the Texas Constitution guarantees a right to trial =
by jury,=20
Tex. Const. art. I, =A7 15, the Constitution further provides that =
"[N]o=20
jury shall be empaneled in any civil case unless demanded by a =
party to=20
the case, and a jury fee be paid by the party demanding a jury, =
for such=20
sum, and with such exceptions as may be prescribed by the =
Legislature."=20
Tex. Const. art. V, =A7 10. We review denial of a demand for a =
jury trial=20
for abuse of discretion. Monroe v. Alternatives in =
Motion, No.=20
01-05-01187-CV, 01-05-01188-CV, 2007 WL 529295, at *10 (Tex. =
App.--Houston=20
[1st Dist.] Feb. 22, 2007, no pet. h.) (citing Mercedes-Benz =
Credit=20
Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996)). A =
party who=20
seeks a jury trial must request a jury and pay the jury fee at "a=20
reasonable time before the date set for trial of the cause on the =
non-jury=20
docket, but not less than thirty days in advance." Tex. R. Civ. P. =
216. A=20
trial court does not abuse its discretion by denying a trial by =
jury when=20
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,=20
909 S.W.2d 192, 197 (Tex. App.--Houston [14th Dist.] 1995, writ =
denied).=20
An untimely jury demand should be granted, however, if granting =
the=20
request will not (1) interfere with the court's docket, (2) delay =
the=20
trial, or (3) injure the opposing party. See Gen. Motors Corp. =
v.=20
Gayle, 951 S.W.2d 469, 476 (Tex. 1997); Barkhausen v. =
Craycom,=20
Inc., 178 S.W.3d 413, 418 (Tex. App.--Houston [1st Dist.] =
2005, pet.=20
denied). Hayes=20
stated on the record in this case that he believed he requested a =
jury=20
trial and paid the jury fee when he filed suit, but he could not =
produce a=20
receipt showing that he had paid the jury fee. Counsel for the =
bank stated=20
that he never received a written request for jury trial. After =
learning=20
from the court coordinator that no jury fee had been paid, Hayes =
paid the=20
fee on the Friday before the Monday that trial began. When the=20
trial court ruled that no jury would be empaneled because Hayes =
did not=20
timely pay the fee, Hayes did not attempt to demonstrate that =
granting the=20
request for jury trial would not interfere with the court's =
docket, delay=20
the trial, or injure the opposing party. The trial court, however, =
specified that, "it would certainly interrupt the Court's docket =
to try=20
and put this case now on a jury docket." Accordingly, we hold that =
the=20
trial court did not abuse its discretion by denying Hayes's =
request for a=20
jury trial. See Gen. Motors Corp., 951 S.W.2d at 476;=20
Barkhausen, 178 S.W.3d at 418. We overrule=20
the portion of Hayes's issue (e) that challenges denial of a jury=20
trial. THE COURT:=20
Now, sometime back you told me that you were getting your =
financial advice=20
from other people and I don't remember if these are the two people =
or not,=20
but I explained to you that the Court doesn't take lay witnesses =
to [tell]=20
me what the law is. It would appear to me that more than likely =
you have=20
these two witnesses on the hook here under subpoena because you =
want them=20
to tell me what they think the law is or maybe what they told you =
the law=20
is or something like that. If you want to ask them any questions =
like=20
that, they will not be allowed to answer. Are you sure you =
want these=20
two witnesses back in the morning? HAYES: I=20
would like to have Mr. Eugene Williams back on tomorrow morning. =
Mr.=20
Barrick, I can excuse him. (Emphasis=20
added)] Because it=20
is apparent that Hayes chose to abandon his request to have =
Barrick=20
testify, we hold that Hayes waived his complaint. We overrule=20
the remaining portion of Hayes's issue (e). C.=20
Invoking "The Rule" In issue=20
(g), Hayes argues that the trial court did not properly place the=20
witnesses under the exclusionary rule by instructing them "not to =
discuss=20
the case among themselves." See Tex. R. Evid. 614; Tex. =
R. Civ.=20
P. 267. Once "the rule" is invoked, the trial court must exclude =
witnesses=20
from the courtroom and admonish witnesses "not to converse with =
each other=20
or with any other person about the case other than the attorneys =
in the=20
case, except by permission of the court." Drilex Sys., Inc. v. =
Flores, 1 S.W.3d 112, 117 (Tex. 1999). Hayes must=20
demonstrate on appeal that the trial court erred, and that a =
violation of=20
the rule occurred. See id. Yet, Hayes offers no record =
citations=20
to support his contention, and the record does not disclose that =
he=20
brought any violation of the rule to the trial court's attention =
or asked=20
that a witness be excluded or held in contempt for violating the =
rule.=20
See id. To the contrary, the record establishes that the =
court=20
conformed to the rule. The witnesses were sworn and instructed to =
wait in=20
the attorney-ready rooms, and the trial court instructed them to =
not=20
discuss the case while waiting to be called. Hayes offered no =
evidence=20
that a violation occurred, and we find none. Accordingly, Hayes =
has not=20
established that the trial court abused its discretion. =
We overrule=20
Hayes's issue (g). We affirm=20
the judgment of the trial court.
Panel=20
consists of Chief Justice Radack and Justices Alcala and Bland.=20
2. Hayes contends that the witnesses were =
motivated to=20
lie to "cover up" having negotiated a balloon-payment loan to =
Hayes, when=20
he did not intend that type of transaction, but Hayes offers no =
citations=20
from the record that substantiate his claim.=20
A. =
Denial of=20
Jury Trial