Olney Savings & Loan Ass'n v. Farmers Market of Odessa, Inc.

764 S.W.2d 869, 1989 Tex. App. LEXIS 108, 1989 WL 4543
CourtCourt of Appeals of Texas
DecidedJanuary 25, 1989
Docket08-88-00113-CV
StatusPublished
Cited by20 cases

This text of 764 S.W.2d 869 (Olney Savings & Loan Ass'n v. Farmers Market of Odessa, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olney Savings & Loan Ass'n v. Farmers Market of Odessa, Inc., 764 S.W.2d 869, 1989 Tex. App. LEXIS 108, 1989 WL 4543 (Tex. Ct. App. 1989).

Opinions

OPINION

PULLER, Justice.

Home Savings Association sued to recover on a deficiency judgment after a non-judicial foreclosure. The jury denied all relief and instead found in favor of the claimed individual guarantors on their cross-action, including a total award of $350,000.00 as exemplary damages. We reverse.

Appellant Olney Savings and Loan Association is the ultimate successor to Home Savings Association (Home). Farmers Market of Odessa, Inc. (Farmers Market), executed a promissory note to Home and secured it with a deed of trust on certain property. Appellee, Lawyers Title Agency of Odessa, Inc. (Lawyers Title), prepared the closing papers on the loan at the request of Home. Appellee Roy R. Taylor was president of Farmers Market at the time of the loan. A corporate guaranty agreement was executed by Appellees Roy R. Taylor (Taylor) and Nora L. Patterson (Patterson).

Farmers Market defaulted on its note, resulting in a non-judicial foreclosure sale in which Home bought the property at the sale. Home then filed this suit against Farmers Market and Taylor and Patterson seeking a deficiency judgment. We are concerned primarily with the suit against Appellees Taylor and Patterson. Taylor and Patterson filed a cross-action against Home, alleging that the corporate guaranty agreement executed by them had been forged or altered after the time of the loan closing to create an individual guaranty. They contended that Home willfully, fraudulently and in bad faith converted the corporate guaranty into an individual guaranty, then filed suit on the forged/altered instrument which damaged their credit and reputation and caused mental anguish. Appellees sought actual damages as well as punitive damages. Home, in its trial pleadings, asserted that the parties had agreed before the preparation of the written guaranty agreement that Taylor and Patterson would individually guarantee the debt of Farmers Market and asked for reformation relief. The jury found against Home by returning a verdict that found no deficiency existed. Home was also denied recovery for the amount of costs, expenses or attorney’s fees it requested for its attempt to enforce its rights under the note and deed of trust from Farmers Market to Home. The jury found that Home had altered the guaranty without the consent of Taylor and Patterson, and that Home knew or should have known the guaranty had been altered at the time the lawsuit was filed. The jury found Home acted in bad faith in filing the suit against Taylor and Patterson. Taylor and Patterson were awarded $25,000.00 each for damages suffered to their credit standing and reputation, as well as mental anguish. In addition, each was awarded $175,000.00 as exemplary damages. The trial court entered judgment in conformance with the jury verdict, and the trial court also overruled the Appellant’s motion for new trial.

Point of Error No. One asserts that the trial court erred in refusing to rule on Home’s special exceptions to the third amended original answer of Farmers Market, Taylor and Patterson and the second amended cross-claim of Taylor and Patterson.

Home, in its brief, states that this point of error is extremely narrow, “[wjhether Special Exceptions brought to the attention of the Judge in the Trial Court before the instruction or charge to the jury are timely.”

The special exceptions are not properly before us because there is no showing of filing with the district clerk. Appellant attempts to transfer its filing obligation to the trial judge. The trial judge does not [871]*871have to accept the filing of papers, although he may permit it under Tex.R. Civ.P. 74. There is no record before us other than at the close of evidence, while preparing to submit the charge to the jury, the Appellant attempted to obtain a ruling on its unfiled exceptions. The trial judge at that time advised Appellant that they had not requested a hearing, and that the exceptions were not timely. Furthermore, Appellant had made an unequivocal announcement of “ready” for trial. The record exhibiting the lack of evidence of filing of the exceptions and showing an affirmative announcement of “ready” without requesting a ruling constitutes a waiver of any possible error by the Appellant. 3 R. McDonald, Texas Civil Practice, sec. 10.14.1-C (rev. 1983). Point of Error No. One is overruled.

Appellant’s Points of Error Nos. Two through Eight concern the allowance by the trial court of evidence concerning the sale of the property after foreclosure.

THE DEFICIENCY

Appellees did not question the power or right to foreclose, and therefore did not seek to set aside the sale, but based their action on the actions of Home in asserting a deficiency. Evidence was allowed over objection concerning the fact that shortly before the foreclosure sale date, Home had an appraisal made on the property that placed the value at $200,-000.00. Home’s bid at foreclosure was $150,000.00, and Home found a buyer for the property within eight days thereafter for $200,000.00. Appellant used its bid price of $150,000.00 in order to determine the deficiency. Appellant Home, in its trial pleadings, alleged the $150,000.00 was a “fair and reasonable” value for the property and, therefore, assumes that burden of proof. Home’s bid of $150,000.00 represented 75 percent of the appraised value as well as 75 percent of the actual value obtained from a buyer after foreclosure. The Appellees denied that the $150,000.00 was fair and reasonable and were entitled to produce evidence surrounding the sale to attempt to show what was a fair and reasonable price. Since Home was under a trust arrangement with the borrower, it must, in the event of foreclosure, make an honest effort to reduce the loan as much as possible by securing a fair price for the collateral. Lee v. Sabine Bank, 708 S.W. 2d 582 (Tex.App. — Beaumont 1986, writ ref’d n.r.e.); Heller and Company v. O/S Sonny V., 595 F.2d 968 (5th Cir.1979). The evidence raised a fact issue for the jury to decide. The evidence was also admissible due to the claims by Appellees Taylor and Patterson of bad faith, fraud and intentional infliction of mental anguish by Home. The allegations of Appellees raised a question as to the motivation, beliefs and good faith of Home as shown by the entire facts surrounding the loan, guaranty and foreclosure, including the ultimate disposition of the property. While the evidence of the entire transaction was admissible, we find that the issues were improperly submitted.

We suggest on retrial of this case, depending on whether evidence is produced that supports an issue, that the jury be asked to determine if the bid price at foreclosure was fair and reasonable. In the event of an answer of “yes”, a follow-up issue would be asked to determine the amount of deficiency. If the jury answers that the bid price was not fair and reasonable, the follow-up issue would ask the jury to determine what would be a fair and reasonable price. The amount of the deficiency, if any, then should be asked.

Points of Error Nos. Two through Eight are overruled insofar as the claimed inadmissibility of the pre and post foreclosure values of the property.

REFORMATION

The Appellant Home pled for reformation, alleging that the parties orally agreed that Appellees Taylor and Patterson would execute a written guaranty making themselves individually liable for the debt of Farmers Market. Home produced evidence that such agreement was made before the written guaranty was prepared.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hartis v. Century Furniture Industries, Inc.
230 S.W.3d 723 (Court of Appeals of Texas, 2007)
Cathey v. Meyer
115 S.W.3d 644 (Court of Appeals of Texas, 2003)
Fayette County National Bank v. Lilly
484 S.E.2d 232 (West Virginia Supreme Court, 1997)
NAT. WESTMINSTER BANK NJ v. Lomker
649 A.2d 1328 (New Jersey Superior Court App Division, 1994)
Remington Arms Co., Inc. v. Caldwell
850 S.W.2d 167 (Texas Supreme Court, 1993)
Resolution Trust Corp. v. Westridge Court Joint Venture
815 S.W.2d 327 (Court of Appeals of Texas, 1991)
Pentad Joint Venture v. First National Bank of La Grange
797 S.W.2d 92 (Court of Appeals of Texas, 1990)
Georgetown Associates, Ltd. v. Home Federal Savings & Loan Ass'n
795 S.W.2d 252 (Court of Appeals of Texas, 1990)
Olney Savings & Loan Ass'n v. Farmers Market of Odessa, Inc.
764 S.W.2d 869 (Court of Appeals of Texas, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
764 S.W.2d 869, 1989 Tex. App. LEXIS 108, 1989 WL 4543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olney-savings-loan-assn-v-farmers-market-of-odessa-inc-texapp-1989.