Johnny Peevy v. Roy Gene Butler

Opinion

ACCEPTED 12-15-00134-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 9/17/2015 2:24:57 PM Pam Estes CLERK

NO. 12-15-00134-CV

RECEIVED IN IN THE COURT OF APPEALS 12th COURT OF APPEALS TYLER, TEXAS 12TH DISTRICT 9/17/2015 2:24:57 PM PAM ESTES TYLER, TEXAS Clerk

JOHNNY PEEVY

Appellant

VS. 9/17/2015

ROY GENE BUTLER

Appellee

ON APPEAL FROM THE 241ST JUDICIAL DISTRICT COURT OF

SMITH COUNTY, TEXAS, TRIAL COURT NO. 14-1354-C

BRIEF OF APPELLANT

JOHN F. BERRY State Bar No. 02236650 BRIAN E. RICHARDSON State Bar No. 24068651

JOHN F. BERRY, P.C. 100 Independence Place, Suite 400 Tyler, Texas 75703-1384 (903) 561-4200 (903) 561-8922 (Fax) jfberry@suddenlinkmail.com

ORAL ARGUMENT WAIVED IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final

judgment, as well as the names and addresses of all trial and appellate counsel.

PARTIES: COUNSEL:

Plaintiff: Roy Gene Butler Ronnie Horsley 1909 N. 24th West Ave. 231 South College Tulsa, Oklahoma 74127 Tyler, Texas 75702 Stephen Hubbard 605 S. Broadway Tyler, Texas 75701

Defendant: Johnny Peevy John F. Berry 11669 E. Montana Place 100 Independence Place Aurora, Colorado 80012 Suite 400 Tyler, Texas 75703

i TABLE OF CONTENTS

INDEX OF AUTHORITIES iii

STATEMENT OF THE CASE 1

ISSUES PRESENTED 1

STATEMENT OF FACTS 2

SUMMARY OF THE ARGUMENT 3

ARGUMENT 4

CONCLUSION 9

PRAYER 9

APPENDIX 12

A. JUDGMENT 13

B. SECTION 37, TEX. CIV. PRAC. & REM.S CODE 16

C. SECTION 304.003, TEXAS FINANCE CODE 22

D. RULE 26.1, TEXAS RULES OF CIVIL PROCEDURE 24

E. RULE 30, TEXAS RULES OF APPELLATE PROCEDURE 26

F. RULE 243, TEXAS RULES OF CIVIL PROCEDURE 27

G. TEXAS CREDIT LETTER 28

ii INDEX OF AUTHORITIES

Statutes

Tex. Civ. Prac. & Rem. Code §37 _________________________________ 1, 6

Tex. Fin. Code §304.003 ____________________________________ 2, 3, 8, 9

Rules

Tex. R. App. P. 26.1 ___________________________________________ 4, 5

Tex. R. App. P. 30 ______________________________________________ 4

Tex. R. Civ. P. 243 ______________________________________________ 6

Cases

Vazquez v. Vazquez,

292 S.W.3d 80 (Tex. App.—Houston [14th Dist.] 2007, no pet.) _________ 4

Argyle Mech., Inc. v. Unigus Steel, Inc.,

156 S.W.3d 685 (Tex. App.—Dallas 2005, no pet.) __________________ 5, 6

Holt Atherton Indus., Inc. v. Heine,

835 S.W.2d 80 (Tex. 1992) _____________________________________ 5, 6

Arenivar v. Providian Nat'l Bank,

23 S.W.3d 496 (Tex. App.—Amarillo 2000, no pet.) _________________ 5, 6

First Nat'l Bank v. Shockley,

iii 663 S.W.2d 685 (Tex. App.—Corpus Christi 1983, no writ) _____________ 6

Dawson v. Briggs,

107 S.W.3d 739 (Tex. App.—Fort Worth 2003, no pet.) _______________ 6

Morgan v. Compugraphic Corp.,

675 S.W.2d 729 (Tex. 1984) ______________________________________ 6

iv STATEMENT OF THE CASE

Appellee, Roy Gene Butler (“Butler”) sued Appellant, Johnny Peevy

(“Peevy”) in an action to quiet title on real property and requested a declaratory

judgment pursuant to the Texas Civil Practices and Remedies Code §37.

Butler filed his Original Petition on May 21, 2014 (Clerk’s Record 1-4).

Appellant was served the Original Petition on July 11, 2014 (Clerk’s Record 5).

The Motion for Default Judgment was filed on November 13, 2014 (Clerk’s

Record 6-12). The Trial Court entered the Default Judgment on November 21,

2014 (Clerk’s Record 13-15) without holding a hearing (Clerk’s Record 34).

The Default Judgment contained an award of attorney’s fees in the amount of

$7,000.00, post-judgment interest of ten percent (10%) per annum, and costs of

court. Appellant filed his Notice of Restricted Appeal within six months of the

entry of the Default Judgment and accordingly, perfected this appeal.

ISSUES PRESENTED

Issue No. 1: Whether the Default Judgment entered in favor of Butler against

Peevy should be reversed and remanded for a new trial with regard to the

award of attorney’s fees due to the record reflecting no evidence as to the

amount of reasonable and necessary attorney’s fees.

Issue No. 2: Whether the Default Judgment entered in favor of Butler against

Peevy should be reversed and rendered with regard to the award of post-

1 judgment interest at a rate of ten percent (10%) per annum and revised to five

percent (5%) per annum.

STATEMENT OF FACTS

Peevy was the victim of a Default Judgment taken by Butler. Butler filed

his Original Petition against Peevy on May 21, 2014 (Clerk’s Record 1-4),

upon which Butler’s Default Judgment is based. The Default Judgment was

signed on November 21, 2014 (Clerk’s Record 13-15). The Default Judgment

contained an award of attorney’s fees in the amount of $7,000.00, post-

judgment interest of ten percent (10%) per annum, and costs of court. The

Default Judgment states “At the hearing on this cause…” (Clerk’s Record 13)

which would indicate that a hearing was held. However, the Court never

conducted an evidentiary hearing to receive evidence of reasonable and

necessary attorney’s fees. The Docket Sheet (Clerk’s Record 34) does not note

that a hearing was held and does not identify a court reporter. In fact, no

hearing was held and no evidence presented to the Trial Court to support the

judgment for attorney’s fees.

Secondly, the award of post-judgment interest at the rate of ten percent

(10%) interest per annum is double the correct interest rate of five percent (5%)

per annum pursuant to a correct application of Tex. Fin. Code §304.003 for the

time the Default Judgment was entered. Peevy filed his notice of restricted

2 appeal within the six-month deadline (Clerk’s Record 19-20), bringing the

Default Judgment into review by this Court. This being a default judgment,

Peevy did not participate at the hearing (which never took place), and the

failure of the Docket Sheet (Clerk’s Record 34) to note the identity of the Court

Reporter or the existence of a hearing establishes the absence of a hearing on

the face of the record.

SUMMARY OF THE ARGUMENT

The Trial Court erroneously granted a default judgment in favor of

Butler against Peevy for attorney’s fees without conducting an evidentiary

hearing to determine the amount of reasonable and necessary attorney fees.

Reasonable and necessary attorney’s fees are unliquidated damages, and a no-

answer default judgment still requires a judge to receive evidence on the

amount of unliquidated damages before they can be awarded. When a no

evidence point is sustained as to unliquidated damages which results from a no-

answer default, the appropriate disposition is to remand for a new trial on the

issue of the unliquidated damages.

Secondly, the trial court erroneously granted an award of post-judgment

interest at the rate of ten percent (10%) per annum. A correct application of

Tex. Fin. Code §304.003 for November 21, 2014, which is the entry date of the

Default Judgment, is five percent (5%). Tex. Fin. Code §304.003(c)(2) should

3 have been applied to the amount of the interest charged because on November

21, 2014, the prime rate as published by the Board of Governors of the Federal

Reserve System was less than five percent (5%). The Appendix contains the

Texas Credit Letter published by the Texas Office of Consumer Credit

Commissioner which shows the Judgment Rate for November 21, 2014 was

five percent (5%).

ARGUMENT

A party filing a restricted appeal must demonstrate the following: (1)

initiation of an appeal within six months after the judgment was rendered; (2)

the appellant was a party to the suit; (3) the appellant did not participate in the

hearing that resulted in the judgment complained of; (4) the appellant did not

timely file a post-judgment motion, request for findings of fact and conclusions

of law, or file a notice of appeal within the time permitted by Rule 26.1(c) of

the Texas Rules of Appellate Procedure; and (5) error appears on the face of

the record. Tex. R. App. P. 30; Vazquez v. Vazquez, 292 S.W.3d 80, 83

(Tex.App.—Houston [14th Dist.] 2007, no pet.). “[T]he face of the record

consists of all the papers on file in the appeal, including the reporter’s record.”

Vasquez, 292 S.W.3d at 83. In this case, there was no hearing, hence there was

no reporter, hence there is no reporter’s record.

4 The Default Judgment was signed and filed on November 21, 2014

(Clerk’s Record 13-15), and the Notice of Restricted Appeal was filed on May

20, 2015 (Clerk’s Record 19-20). As a result, the initiation of the appeal was

within six months of the judgment. Peevy was the Defendant in the lawsuit, so

he was a party to the suit. (Clerk’s Record 1-4). The Docket Sheet (Clerk’s

Record 34) is silent as to the identity of a Court Reporter and the actual

occurrence of a hearing at the time the Default Judgment was signed, so Peevy

did not participate in any hearing which resulted in the judgment complained.

In fact, there was no such hearing. Peevy did not timely file any post-judgment

motion, request for findings of fact and conclusions of law, or file a notice of

appeal within the time permitted by Rule 26.1(c), as shown by the absence of

these in the Clerk’s Record.

With regard to the fifth element, the face of the record shows no

evidence regarding the amount of reasonable and necessary attorney’s fees.

“When a default judgment is taken against non-answering defendants on an

unliquidated claim, all allegations of fact contained in the petition are deemed

admitted, except for the amount of damages.” Argyle Mech., Inc. v. Unigus

Steel, Inc., 156 S.W.3d 685, 687 (Tex. App.—Dallas 2005, no pet.) (citing Holt

Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); Arenivar v.

Providian Nat’l Bank, 23 S.W.3d 496, 497 (Tex. App.—Amarillo 2000, no

5 pet.)). “When damages are unliquidated, the judge entering the default

judgment must hear evidence on the damages.” Argyle Mech., 156 S.W.3d at

687 (citing Tex. R. Civ. P. 243; Holt Atherton Indus., 835 S.W.2d at 83.) “A

default judgment…does not establish allegations pertaining to unliquidated

damages.” First Nat’l Bank v. Shockley, 663 S.W.2d 685, 689 (Tex. App.—

Corpus Christi 1983, no writ). “The legal and factual sufficiency of evidentiary

support for unliquidated damages may be challenged on appeal from a no-

answer default judgment.” Argyle Mech., 156 S.W.3d at 687 (citing Arenivar,

23 S.W.3d at 498; Dawson v. Briggs, 107 S.W.3d 739, 748 (Tex. App.—Fort

Worth 2003, no pet.)). “If a no-evidence point is sustained as to unliquidated

damages resulting from a no-answer default judgment, the appropriate

disposition is to remand for a new trial on the issue of unliquidated damages.”

Argyle Mech., 156 S.W.3d at 687 (citing Holt Atherton Indus., 835 S.W.2d at

86; Morgan v. Compugraphic Corp., 675 S.W.2d 729, 734 (Tex. 1984)).

“Unliquidated claims include damages for personal injuries, lost profits,

consequential damages, exemplary damages, and reasonable attorney’s fees.”

First Nat’l Bank, 663 S.W.2d at 689 (emphasis added).

In a declaratory judgment proceeding, a court “may award costs and

reasonable and necessary attorney’s fees as are equitable and just.” Tex. Civ.

Prac. & Rem. Code §37.009. The face of the record contains no evidence to

6 support an award of any attorney’s fees. With no evidence to support the

amount of attorney’s fees, the award for attorney’s fees must be reversed and

remanded for a trial on that issue.

A close inspection of the record indicates no hearing was held to support

the amount of attorney’s fees. The Docket Sheet (Clerk’s Record 34) clearly

fails to indicate the identity of a Court Reporter or the existence of a hearing.

Ordinarily, the Docket Sheet would show the identity of the Court Reporter and

note the date of the hearing. By the absence of this information, it is reasonable

and appropriate to infer that there was, in fact, no hearing. The Default

Judgment states in its opening sentence “At the hearing on this cause,…"

(Clerk’s Record 13). The record also contains the proposed Default Judgment

submitted by Stephen Hubbard, attorney for Roy Gene Butler (Clerk’s Record

10 – 12). Neither the proposed Default Judgment, the Nonmilitary Affidavit

(Clerk’s Record 8), nor the Certificate of Last Known Mailing Address

(Clerk’s Record 9) reflect file marks. These documents were attached to and

submitted with the Motion for Default Judgment (Clerk’s Record 6-7), filed on

November 13, 2014. On its face, the Motion for Default Judgment alleges a

suit against a different Defendant, Girish Patel. The necessary allegations or

facts to support the Default Judgment pursuant to the Motion are incorrect.

They apply to persons not parties to this suit. From the record, it is apparent

7 that the Plaintiff filed a Motion for Default Judgment, misidentifying the

Defendant, accompanied by the Nonmilitary Affidavit, Plaintiff’s Certificate of

Last Known Mailing Address and proposed Default Judgment (Clerk’s Record

6-12). Later, on November 21, 2014, the Trial Court signed the Default

Judgment, but it did not hold a hearing, nor did Plaintiff request a hearing from

the face of the record (Clerk’s Record 7—citing the prayer contained in the

Motion for Default Judgment which contains no request that a hearing be held).

The face of the record clearly shows no hearing was actually held.

Secondly, the Default Judgment (Clerk’s Record 13-15) contains an

award of post-judgment interest of ten percent (10%) per annum. That amount

is double the correct interest rate of five percent (5%) pursuant to a correct

application of Tex. Fin. Code §304.003 for the time the Default Judgment was

awarded. Tex. Fin. Code §304.003(c)(2) states that a money judgment earns

post-judgment interest at a rate of “five percent a year if the prime rate as

published by the Board of Governors of the Federal Reserve System…is less

than five percent….” The judgment interest rate is published weekly by the

Texas Office of Consumer Credit Commissioner. For the month of November

2014, the prime rate as published by the Board of Governors of the Federal

Reserve System was less than five percent (5%). As a result, the Default

8 Judgment should be reversed and rendered to change the award of post-

judgment interest to accrue at the rate of five percent (5%) per annum.

CONCLUSION

It is clear that the face of the record contains no evidence of the amount

of reasonable and necessary attorney’s fees. Butler failed to meet his burden

and failed to provide any evidence of the amount of reasonable and necessary

attorney’s fees to the Trial Court. As a result, the Default Judgment should be

reversed and remanded for a new trial on this issue.

Secondly, the Default Judgment erroneously awarded post-judgment

interest at the rate of ten percent (10%) per annum. A correct application of

Tex. Fin. Code §304.003 for November 21, 2014 would yield post-judgment

interest at the rate of five percent (5%) per annum. Accordingly, the Default

Judgment should be reversed and rendered with regard to the award of post-

judgment interest changing the post-judgment interest rate from ten percent

(10%) to five percent (5%) per annum on the amount of damages awarded.

PRAYER

Wherefore premises considered, Appellant, Johnny Peevy, prays that the

judgment granted against him be reversed and rendered with respect to post-

judgment interest and reversed and remanded in part to the trial court on the

issue of attorney’s fees. Appellant prays for general relief.

9 Respectfully submitted,

JOHN F. BERRY, P.C. 100 Independence Place, Suite 400 Tyler, Texas 75703 (903) 561-4200 FAX: (903) 561-8922 jfberry@suddenlinkmail.com

/s/ John F. Berry By: _________________________ John F. Berry State Bar No. 02236650 Brian E. Richardson State Bar No. 24068651

10 CERTIFICATE OF SERVICE

17th day of September, 2015, a copy of the I hereby certify that on the ____

foregoing was mailed by certified mail, return receipt requested, to the

following:

Ronnie Horsely P O Box 7017 Tyler, Texas 75711

Stephen Hubbard 605 S. Broadway Tyler, Texas 75701

/s/ John F. Berry ___________________________________ John F. Berry

11 APPENDIX

12 ,' 12014 CAUSE NO. 14-1354-C

ROY GEt~E BUTLER § Plaintiff, § § v. § § JOHNNY PEEVY § Defendant. § OF SMITH COUNTY, TEXAS

DEFAULT JUDG1\1:El"';T

At the hearing on this cause, Plaintiff appeared through his attorney of record. Defendant, Joh21ny Peevy, although duly cited to appear and a.11s\ver herein, has failed to file a."!. answer within the lime allowed by law. The Court has considered the pleadings and records on file in this cau~e and the evidence

and is of the opinion that judgment should be rendered for Plaintiff. The Comt FLNT.lS the foiiowing: a. Thaddeus Mcclendon purchased the B Lafferty survey, tract 21 located in Smith County, Texas in 1914; b. Thaddeus McClendon died in 1934 leaving a \Vife and 3 children, !lamely L.E., Raz and Trula McClendon; c. L.E. Mcclendon had six (6) children, namely Gertha Mae McCiendon Butler,

Geraldine McClendon Peevy, Alexander Edalgo McCkndon, James Phillip McClendon, Jo Ann McClendon Cole and Marilyn Jean McClendon Evans. d. By intestate succession, Geraldine McC!endon Peevy inherited her undivided interest in the property trom her father L.E. ~.1cClendon after his death. Said interest is separate property of Geraldine McClendon Peevy.

Bi1tler v. Peevy Smith County Tt:xa;; Default Judgment Page -1-

13 e. Geraldine McC!endon Peevy married Melvin Peevy. Prior to her marriage, Geraldine Mcf:!cndon Peevy li~ad a daughter, namely rvraxine 1'-.1cClendon Wallace. f. The child of Geraldine Peevy, Maxine McClendon Wallace, died prior to Geraldine Peevy. Maxine McClendon Wallace left two children at her death, namely, Daisha Wallace and Armissie Wallace. c. Geraldine Wallace Peevy died, leaving no will but she had a spouse, Melvin Pee'°ry a.a~..d the property hi questions was separate property of Geraldine McClendon Peevy. f. The heirs of Geraldine McClendon Peevy are Melvin Peevy, Armissie Wallace and Daisha Wallace. g. Melvin Peevy died in 2009 in Denver, Colorado. h. Roy Gene Butler purchased the interest ofDaisha Wallace and Arrnissie Wallace, who are the heirs of Geraldine IvkC!endon Peevy.

II IS accordingly ORDERED, ADJUDGED and RENDERED that Roy Gene Butler,

Plaintiff, is judicially declared the owner of the following prope1ty- in Smith County, Texas as described as the B Lafferty survey, tract 21 located [n Smith County; Texas;

II IS ORDERED and DECLARED that Roy Gene Butler is the sole owner of the B Lafferty sur-vey, tract 2 i iocaicd in Smith County, Texas and Johnny Peevy is divested of any right, title or claim to said prope1ty.

IT IS FUR1'HE.R ORDERED that Roy Gene Butler he granted attorney fees [n this matter in the amount of Seven Thousand Dollars ($7,000.00) as of the date of judgement with interest of

3t1tli:r v. Peevy Smilh Counly Tc:-.:as [).:faul1 Judgme1ll Page -2-

14 10% per anum; and costs of court.

Plaintiff shall have all writs of execution and other process necessary to enforce this judgment.

This judgment finally disposes of all parties and all claims and is appealable. I

SIGNED on C\o "2\"'()VJ)( ci) Id\.C ~ 1 )

/ // /, / d I'/ - / //

~JU/L

Step n Hubbard Att mey for Plaintiff Roy Gene Butler 605 S. Broadway Tyier, Texas 7570! Tel: (903) 533.0018 Fax: (903) 597.7702

Butler v. Peevy Smiih County Texas lh:foolt Judgment Page-3-

15 VERNON'S TEXAS STATUTES AND CODES ANNOTATED

CIVIL PRACTICES AND REMEDIES CODE

TITLE 2. TRIAL, JUDGMENT, AND APPEAL

SUBTITLE C. JUDGMENTS

CHAPTER 37. DECLARATORY JUDGMENTS

Sec. 37.001. DEFINITION. In this chapter, “person” means an

individual, partnership, joint-stock company, unincorporated association or

society, or municipal or other corporation of any character.

Sec. 37.002. SHORT TITLE, CONSTRUCTION, INTERPRETATION.

(a) This chapter may be cited as the Uniform Declaratory Judgments Act.

(b) This chapter is remedial; its purpose is to settle and to afford relief from

uncertainty and insecurity with respect to rights, status, and other legal

relations; and it is to be liberally construed and administered.

(c) This chapter shall be so interpreted and construed as to effectuate its

general purpose to make uniform the law of those states that enact it and to

harmonize, as far as possible, with federal laws and regulations on the subject

of declaratory judgments and decrees.

Sec. 37.003. POWER OF COURTS TO RENDER JUDGMENT; FORM AND

EFFECT. (a) A court of record within its jurisdiction has power to declare

16 rights, status, and other legal relations whether or not further relief is or could

be claimed. An action or proceeding is not open to objection on the ground

that a declaratory judgment or decree is prayed for.

(b) The declaration may be either affirmative or negative in form and effect,

and the declaration has the force and effect of a final judgment or decree.

(c) The enumerations in Sections 37.004 and 37.005 do not limit or restrict the

exercise of the general powers conferred in this section in any proceeding in

which declaratory relief is sought and a judgment or decree will terminate the

controversy or remove an uncertainty.

Sec. 37.004. SUBJECT MATTER OF RELIEF. (a) A person interested

under a deed, will, written contract, or other writings constituting a contract or

whose rights, status, or other legal relations are affected by a statute, municipal

ordinance, contract, or franchise may have determined any question of

construction or validity arising under the instrument, statute, ordinance,

contract, or franchise and obtain a declaration of rights, status, or other legal

relations thereunder.

(b) A contract may be construed either before or after there has been a breach.

(c) Notwithstanding Section 22.001, Property Code, a person described by

Subsection (a) may obtain a determination under this chapter when the sole

17 issue concerning title to real property is the determination of the proper

boundary line between adjoining properties.

Sec. 37.005. DECLARATIONS RELATING TO TRUST OR ESTATE.

A person interested as or through an executor or administrator, including an

independent executor or administrator, a trustee, guardian, other fiduciary,

creditor, devisee, legatee, heir, next of kin, or cestui que trust in the

administration of a trust or of the estate of a decedent, an infant, mentally

incapacitated person, or insolvent may have a declaration of rights or legal

relations in respect to the trust or estate:

(1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or

others;

(2) to direct the executors, administrators, or trustees to do or abstain from

doing any particular act in their fiduciary capacity;

(3) to determine any question arising in the administration of the trust or

estate, including questions of construction of wills and other writings; or

(4) to determine rights or legal relations of an independent executor or

independent administrator regarding fiduciary fees and the settling of accounts.

Sec. 37.0055. DECLARATIONS RELATING TO LIABILITY FOR

SALES AND USE TAXES OF ANOTHER STATE. (a) a) In this section,

18 "state" includes any political subdivision of that state.

(b) A district court has original jurisdiction of a proceeding seeking a

declaratory judgment that involves:

(1) a party seeking declaratory relief that is a business that is:

(A) organized under the laws of this state or is otherwise owned

by a resident of this state; or

(B) a retailer registered with the comptroller under Section

151.106, Tax Code; and

(2) a responding party that:

(A) is an official of another state; and

(B) asserts a claim that the party seeking declaratory relief is

required to collect sales or use taxes for that state based on conduct of

the business that occurs in whole or in part within this state.

(c) A business described by Subsection (b)(1) is entitled to declaratory relief

on the issue of whether the requirement of another state that the business

collect and remit sales or use taxes to that state constitutes an undue burden on

interstate commerce under Section 8, Article I, United States Constitution

(d) In determining whether to grant declaratory relief to a business under this

section, a court shall consider:

19 (1) the factual circumstances of the business's operations that give rise

to the demand by the other state; and

(2) the decisions of other courts interpreting Section 8, Article I, United

States Constitution.

Sec. 37.006. PARTIES. (a) When declaratory relief is sought, all

persons who have or claim any interest that would be affected by the

declaration must be made parties. A declaration does not prejudice the rights

of a person not a party to the proceeding.

(b) In any proceeding that involves the validity of a municipal ordinance or

franchise, the municipality must be made a party and is entitled to be heard, and

if the statute, ordinance, or franchise is alleged to be unconstitutional, the

attorney general of the state must also be served with a copy of the proceeding

and is entitled to be heard.

Sec. 37.007. JURY TRIAL. If a proceeding under this chapter involves

the determination of an issue of fact, the issue may be tried and determined in

the same manner as issues of fact are tried and determined in other civil actions

in the court in which the proceeding is pending.

Sec. 37.008. COURT REFUSAL TO RENDER. The court may refuse to

render or enter a declaratory judgment or decree if the judgment or decree

20 would not terminate the uncertainty or controversy giving rise to the

proceeding.

Sec. 37.009. COSTS. In any proceeding under this chapter, the court

may award costs and reasonable and necessary attorney's fees as are equitable

and just.

Sec. 37.010. REVIEW. All orders, judgments, and decrees under this

chapter may be reviewed as other orders, judgments, and decrees.

Sec. 37.011. SUPPLEMENTAL RELIEF. Further relief based on a

declaratory judgment or decree may be granted whenever necessary or proper.

The application must be by petition to a court having jurisdiction to grant the

relief. If the application is deemed sufficient, the court shall, on reasonable

notice, require any adverse party whose rights have been adjudicated by the

declaratory judgment or decree to show cause why further relief should not be

granted forthwith.

21 VERNON'S TEXAS RULES ANNOTATED

FINANCE CODE

TITLE 4. REGULATION OF INTEREST, LOANS, AND FINANCED

TRANSACTIONS

SUBTITLE A. INTEREST

CHAPTER 304. JUDGMENT INTEREST

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 304.003. JUDGMENT INTEREST RATE: INTEREST RATE OR TIME

PRICE DIFFERENTIAL NOT IN A CONTRACT. (a) A money judgment of

a court of this state to which Section 304.002 does not apply, including court

costs awarded in the judgment and prejudgment interest, if any, earns post-

judgment interest at the rate determined under this section.

(b) On the 15th day of each month, the consumer credit commissioner shall

determine the post-judgment interest rate to be applied to a money judgment

rendered during the succeeding calendar month.

(c) The postjudgment interest rate is:

(1) the prime rate as published by the Board of Governors of the Federal

Reserve System on the date of computation;

(2) five percent a year if the prime rate as published by the Board of

22 Governors of the Federal Reserve System described by Subdivision (1) is less

than five percent;

(3) 15 percent a year if the prime rate as published by the Board of

Governors of the Federal Reserve System described by Subdivision (1) is more

than 15 percent.

23 VERNON'S TEXAS RULES ANNOTATED

TEXAS RULES OF APPELLATE PROCEDURE

SECTION TWO. APPEALS FROM TRIAL COURT JUDGMENTS AND

ORDERS

RULE 26. TIME TO PERFECT APPEAL

26.1. Civil Cases. The notice of appeal must be filed within 30 days after the

judgment is signed, except as follows:

(a) the notice of appeal must be filed within 90 days after the judgment is

signed if any party timely files:

(1) a motion for new trial;

(2) a motion to modify the judgment;

(3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or

(4) a request for findings of fact and conclusions of law if findings and

conclusions either are required by the Rules of Civil Procedure or, if not

required, could properly be considered by the appellate court;

(b) in an accelerated appeal, the notice of appeal must be filed within 20 days

after the judgment or order is signed;

(c) in a restricted appeal, the notice of appeal must be filed within six months

after the judgment or order is signed; and

24 (d) if any party timely files a notice of appeal, another party may file a notice of

appeal within the applicable period stated above or 14 days after the first filed

notice of appeal, whichever is later.

25 VERNON'S TEXAS RULES ANNOTATED

RULE 30. RESTRICTED APPEAL TO COURT OF APPEALS IN CIVIL

A party who did not participate--either in person or through counsel--in the

hearing that resulted in the judgment complained of and who did not timely file

a postjudgment motion or request for findings of fact and conclusions of law,

or a notice of appeal within the time permitted by Rule 26.1(a), may file a

notice of appeal within the time permitted by Rule 26.1(c). Restricted appeals

replace writ of error appeals to the court of appeals. Statutes pertaining to writ

of error appeals to the court of appeals apply equally to restricted appeals.

26 VERNON'S TEXAS RULES ANNOTATED

TEXAS RULES OF CIVIL PROCEDURE

SECTION ELEVEN. TRIAL OF CAUSES

A. APPEARANCE & PROCEDURE

RULE 243. UNLIQUIDATED DEMANDS

If the cause of action is unliquidated or be not proved by an instrument in

writing, the court shall hear evidence as to damages and shall render judgment

therefor, unless the defendant shall demand and be entitled to a trial by jury in

which case the judgment by default shall be noted, a writ of inquiry awarded,

and the cause entered on the jury docket.

27 TEXAS CREDIT LETTER Published Weekly by the Texas Office of Consumer Credit Commissioner· 2601 N Lamar Blvd· Austin, TX 78705-4207

Volume 34, Number 17, October21, 2014 ISSN 0738-6877

NOTICE OF RATE CEILINGS The Consumer Credit Commissioner of Texas has ascertained the following rate ceilings by use of the formulas and methods described in Sections 303.003, 303.009 and 304.003, TEX. FIN. CODE.

Effective Period Consumer (!)/Agricultural/ Commercial (l) Types of Rate Ceilings (Dates are Inclusive) Commercial(2 ) thrn $250,000 over $250,000 Weekly Rate - Sec. 303.003 and 303.009, TEX. FIN. CODE 10/27/14-11/02/14 18.00% 18.00% Judgment Rate - Sec. 304.003, Tex. Fin. Code 11/01/14-11/30/14 5.00% 5.00%

(!)Credit for personal, family, or household use. (2)Credit for business, commercial, investment, or other similar purpose.

Issued in Austin, Texas this, the 20th day of October, 2014.