John L. Cooke, Reta J. Cooke, Donald E. Laine & Kathryn L. Laine v. The Cadle Company--Appeal from 345th District Court of Travis County

Cooke v. Cadle Co. IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-229-CV

JOHN L. COOKE, RETA J. COOKE,

DONALD E. LAINE, AND KATHRYN L. LAINE,

 

APPELLANTS

 
vs.

THE CADLE COMPANY,

 

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. 461,108, HONORABLE JOSEPH H. HART, JUDGE PRESIDING

PER CURIAM

This is a usury case. Appellants John L. Cooke, Reta J. Cooke, Donald E. Laine, and Kathryn L. Laine, makers on a $1,477,000.00 note, sued for a declaratory judgment against Windsor Savings Association in connection with Windsor's foreclosure on the deed of trust securing the note. (1) The makers alleged breach of contract, usury, breach of fiduciary duty, breach of the duty of good faith and fair dealing, and wrongful foreclosure. Windsor counterclaimed for the $437,270.11 deficiency and attorney's fees. The district court rendered summary judgment that Windsor recover $481,045.04 plus attorney's fees and postjudgment interest and that the makers take nothing.

The makers bring three points of error alleging that the district court erred (1) in rendering summary judgment because there are genuine issues of material fact; (2) in determining that the note's usury savings clauses are valid; and (3) in failing to count the net profits interest as interest. We will affirm.

Windsor, as payee on the $1,477,000.00 note, funded $1,164,776.09 to the makers, but placed $225,000.00 of the amount funded in a money-market account. The $225,000.00 was unavailable to the makers. (2) In addition, the makers executed an assignment of net profits interest to Windsor in the land that secured the note.

In point of error one, the makers allege that the district court erred in rendering summary judgment because there are genuine issues of material fact over two matters: (1) whether the net profits interest should be considered as interest for purposes of usury; and (2) whether the proper amount of principal on which interest should be calculated is $1,164,776.09 or $939,776.09 ($1,164,776.09 - $225,000.00). The makers allege that if the principal is $1,164,776.09, Windsor's interest charges are not usurious, but if the principal is $939,776.09, Windsor's interest charges are usurious.

The standards for reviewing a motion for summary judgment are well established: (1) The movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

The makers' argument in point or error one fails because their brief does not demonstrate they raised a fact issue in the trial court. The makers allege that if the net profits interest was considered interest or the proper amount of principal was used to calculate interest ($1,164,776.09), then Windsor's interest charges would be usurious. This is merely conclusory, however, because we cannot find any calculations in the record that would support such an allegation. The makers have failed to make specific statements, supported by evidence, demonstrating a fact issue that Windsor actually charged usurious interest. See Manges v. Astra Bar, Inc., 596 S.W.2d 605, 610 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.). Point of error one is overruled.

The makers' supplemental point of error alleges that the district court erred in failing to count the net profits interest as interest. Because the makers have not demonstrated that usurious interest would exist even if the district court had counted the net profits interest as interest, we overrule the point.

Because of our disposition of point or error one, we do not reach point of error two, which argues that if Windsor charged usurious interest, then the district court erred in holding the usury savings clauses valid.

The judgment of the district court is affirmed.

 

[Before Justices Powers, Kidd and B. A. Smith]

Affirmed

Filed: June 9, 1993

[Do Not Publish]

1. The Office of Thrift Supervision appointed the Resolution Trust Corporation (RTC) receiver of Windsor. RTC transferred certain of Windsor's assets, including the district court's judgment, to Windsor Federal Savings Association. RTC was later appointed receiver of Windsor Federal Savings Association. RTC sold the judgment to The Cadle Company, and this Court on February 16, 1993, granted RTC's motion to substitute Cadle as the appellee.

2. The $312,223.91 difference between the total principal amount of the note ($1,477,000.00) and the amount initially funded ($1,164,776.09), was a line of credit Windsor extended to the makers.