Victor K. Dullye v. Texas Trust Savings Bank, F.S.B.--Appeal from 33rd District Court of Llano County

Dullye v. Texas Trust TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-93-00666-CV
Victor K. Dullye, Appellant
v.
Texas Trust Savings Bank, F.S.B., Appellee
FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NO. 9424, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING

PER CURIAM

 

Appellant Victor Dullye appeals the trial court's judgment that he take nothing on his counterclaim against appellee Texas Trust Savings Bank, F.S.B. Texas Trust sued Dullye on two notes and Dullye counterclaimed, alleging that Texas Trust had committed a deceptive trade act by suing him in Llano County. (1) Deceptive Trade Practices--Consumer Protection Act, Tex. Bus. & Com. Code Ann. 17.46(b)(22) (West Supp. 1995) (the Act). After striking Texas Trust's pleadings as a discovery sanction, the court heard evidence on Dullye's counterclaim. Dullye appeals the judgment rendered against him by a single point of error. We will affirm the trial court's judgment.

Dullye asserts in his point of error that he proved as a matter of law that the notes Texas Trust sued on were consumer notes. The Act makes it a deceptive trade act to file a suit, based on a written contract signed by the defendant to pay money arising out of a consumer transaction, in any county other than the county in which the defendant resides when the suit is filed or in which the defendant signed the contract. (2) Id. To prevail on his counterclaim against Texas Trust, Dullye had to prove both that (1) the notes arose out of consumer transactions and (2) Texas Trust sued him in neither the county in which he then resided nor the county in which he signed the notes. Id.

Because the trial court did not file findings of fact and conclusions of law, we assume in support of the judgment that the trial court failed to find that Dullye proved any element of his counterclaim. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). To obtain a reversal on appeal, Dullye must show that in the trial court he established every element as a matter of law.

Dullye argues under his point of error that the evidence establishes that he executed the notes in Bexar County and that no evidence was produced that he ever resided in Llano County, where Texas Trust filed suit. Assuming that the evidence established the notes' execution in Bexar County, Dullye had the burden to prove in addition that he resided outside Llano County when Texas Trust sued on the notes. Dullye adduced no evidence at trial showing where he resided when Texas Trust filed suit. Because Dullye failed to prove this element of his counterclaim, we overrule the point of error.

We affirm the judgment of the trial court.

 

Before Justices Powers, Aboussie and B. A. Smith

Affirmed

Filed: March 8, 1995

Do Not Publish

1. Texas Trust initially sued Dullye separately on each note, but the two causes were consolidated into one, numbered 9424, before trial.

2. Section 17.46(b)(22) further elaborates a consumer transaction as one "for goods, services, loans, or extensions of credit intended primarily for personal, family, household, or agricultural use." Act, 17.46(b)(22) (West Supp. 1995).