IN THE TENTH COURT OF APPEALS
No. 10-11-00080-CV
SAEED A. ALLY, M.D., Appellant v.
THE BANK & TRUST OF BRYAN/COLLEGE STATION, Appellee
From the 85th District Court Brazos County, Texas Trial Court No. 10-001287-CV-85
MEMORANDUM OPINION
In this appeal, appellant, Saeed A. Ally, M.D., complains about a summary
judgment granted in favor of appellee, The Bank & Trust of Bryan/College Station
(“BTBCS”). In three issues, Dr. Ally argues that: (1) the trial court erred in granting
summary judgment because material fact issues exist; (2) the summary judgment
should be reversed because the Bank obtained a double recovery given that it had
already entered into an agreed judgment against a third party for the alleged full
amount owed under the note; and (3) there is no final judgment in this case. We affirm. I. BACKGROUND
This appeal stems from a loan and guaranty agreement that was to be used to
promote the operations of an environmental-service business—SETX Clearwater
Environmental, LLC (“SETX”)—in Jefferson County, Texas. On or about April 17, 2007,
SETX executed a promissory note, a second lien deed of trust, and other loan
documents in favor of Texas Enterprise Bank (“TEB”)—BTBCS’s predecessor-in-interest.
The note was in the original principal amount of $500,000 and stated that payments
were due on the first of each calendar month. As security for the note, SETX pledged as
collateral five acres of land that is part of Block 5, Final Plat Port Arthur Economic
Development Corporation Business Park, recorded as File No. 2005044721, Official
Public Records, Jefferson County, Texas.
Also on April 17, 2007, Dr. Ally and O. LaWayne Miller, M.D., executed separate,
yet identical, personal guaranties as additional security for the payment of the note.
The guaranty that Dr. Ally signed specifically stated that he:
irrevocably and unconditionally guarantees to [TEB] and its successors and assigns the payment and performance of the ‘Guaranteed Debt’ . . . as and when the same shall be due and payable. Guarantor hereby irrevocably and unconditionally covenants and agrees that Guarantor is liable for the Guaranteed Debt as a primary obligor.
The guaranty defined “Guaranteed Debt” as all indebtedness owed by SETX to TEB
pursuant to the note, including, among other things, all fees, principal, interest, and
attorney’s fees.
The note provided for payments of interest only from April 1, 2007 through the
loan conversion date, at which time the note converted to a fixed-rate note. It is
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 2 undisputed that the loan conversion occurred on November 1, 2007. As a result of the
loan conversion, the principal and interest payments made by Dr. Ally would be due
beginning December 1, 2007 with a maturity date of November 1, 2012. The note
further provided that the fixed rate would be equal to the prime rate published in the
Wall Street Journal on the date of the loan conversion, which was 7.5% on November 1,
2007.
According to Cal McNeill, a Senior Vice-President at BTBCS, SETX made
monthly payments to TEB “of $10,226.68 and continued to make payments in this
amount after the interest rate on the Note was increased on August 28, 2008.” The
increase on the interest rate on August 28, 2008 apparently stemmed from a
modification and extension agreement that Drs. Ally and Miller signed, which allowed
for the applicable interest rate for the remainder of the note’s term to be a fixed 9.0% per
year and the monthly payment to remain the same.1 However, for the monthly
payments to remain the same, the principal and interest allocation was adjusted
accordingly.
In 2009, TEB merged with The Bank & Trust of Del Rio, Texas, which resulted in
the merged banking entity being renamed as BTBCS. It is undisputed that BTBCS is
TEB’s successor-in-interest and the current owner and holder of the note and the
beneficiary under the deed of trust executed by SETX.
1 On appeal, Dr. Ally calls the August 28, 2008 loan modification into question by alleging that the document was neither notarized nor signed by the lender, though he recognizes that both he and Dr. Miller signed the modification documents.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 3 During the term of the note, SETX was late or missed multiple payments. As a
result, BTBCS charged SETX a late fee equal to 5% of the monthly payment amount in
accordance with the terms of the note.2 According to BTBCS, since the execution of the
note through September 2, 2010, SETX missed or was late on twenty monthly payments,
which resulted in $10,226.60 in late charges.3
Also during the term of the note, BTBCS alleged that it incurred fees associated
with the property owned by SETX, which totaled $6,399.92. These fees were described
as follows: (1) $1,167.42 in fees for legal services incurred on November 5, 2008; (2)
$1,729.00 in fees for the appraisal of equipment owned by SETX on November 5, 2008;
(3) $3,000.00 in fees for a real estate appraisal of the property on November 5, 2008; and
(4) $503.00 in legal fees incurred on January 20, 2009. BTBCS added the fees to the
principal of the note, though they admit that some of the fees may have received “an
errant coding on the loan payment history.”
On February 5, 2010, BTBCS sent Drs. Ally and Miller and SETX a notice of
default and intent to accelerate the note. BTBCS informed Drs. Ally and Miller that
SETX had defaulted in making monthly installment payments for December 2009,
2 The note specifically provided that:
In addition to the payments otherwise specified herein, subject to the provisions of Section 5.4 hereof, if Maker [SETX] fails, refuses or neglects to pay, in full, any installment or portion of the indebtedness evidenced hereby, as and when same shall be due and payable and for a period of ten (10) days thereafter, then after such ten (10) day grace period[,] Maker shall be obligated to pay to Payee [BTBCS] a late charge equal to five percent (5%) of the amount of such delinquent payment to compensate Payee for Maker’s default and the additional costs and administrative efforts required by reason of such default.
3BTBCS states in their appellate brief that the late fees were accrued in March through May 2008 and April through August 2010.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 4 January 2010, and February 2010 and requested payment of $38,861.32 on or before
March 4, 2010 to cure the deficiency.
No payment was made to BTBCS by March 4, 2010. BTBCS then sent notices of
acceleration and substitute trustee’s sale to SETX and Drs. Ally and Miller. In these
notices, BTBCS notified the parties that the note had been accelerated and demanded
payment for the remaining balance on the note—$360,811.15 in principal, $11,244.63 in
interest, and $8,692.61 in late fees. Once again, no payment was made to BTBCS.
Subsequently, on May 11, 2010, BTBCS filed its original petition in the trial court,
alleging a breach of contract cause of action against Drs. Ally and Miller, as personal
guarantors for the debts owed by SETX. Dr. Ally responded to BTBCS’s original
petition by filing an original answer and asserting various affirmative defenses. Dr.
Miller filed a separate original answer asserting only a general denial. Thereafter,
BTBCS filed separate, yet substantially similar, traditional motions for summary
judgment against Drs. Ally and Miller.
Dr. Ally responded to BTBCS’s summary-judgment motion by filing: (1) a first
amended answer, containing a general denial and asserting the affirmative defenses of
usury and accounting; and (2) an opposition to BTBCS’s summary-judgment motion.
Pursuant to a rule 11 agreement, BTBCS filed a supplemental summary-judgment
motion and Dr. Ally filed a supplemental and amended opposition to BTBCS’s
summary-judgment motion.4 BTBCS then filed written objections to the exhibits
4 Dr. Ally attached to his supplemental and amended opposition to BTBCS’s summary-judgment motion copies of the modification and loan agreements, an affidavit he executed, a printout of the loan- payment history, and a mortgage calculator and amortization table.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 5 attached to Dr. Ally’s supplemental and amended opposition to its summary-judgment
motion.5
The trial court scheduled the hearing on BTBCS’s summary-judgment motion for
September 23, 2010. However, prior to the hearing, BTBCS and Dr. Miller filed an
agreed judgment in the trial court, which the trial judge signed on September 20, 2010.
Despite the signed, agreed judgment between BTBCS and Dr. Miller, the trial court
conducted the scheduled hearing on BTBCS’s summary-judgment motion as to Dr. Ally.
At the hearing, the trial court granted BTBCS’s objections to Dr. Ally’s summary-
judgment evidence and granted BTBCS’s summary-judgment motion. The order
granting BTBCS’s summary-judgment motion indicated that BTBCS was to recover
damages from Dr. Ally in the amount of $398,699.28, including outstanding principal
and interest accrued, $26,374.71 in attorney’s fees and collection costs, and 5% post-
judgment interest. The trial court signed the final order on the same day as the hearing.
Nevertheless, after the final order was signed but also on September 23, 2010, Dr.
Ally filed counterclaims against BTBCS for breach of contract, usury, breach of fiduciary
duty, and negligence. The record does not reflect that Dr. Ally obtained leave of court
to file his counterclaims after the final order had been signed and entered on the trial
court’s docket. Shortly thereafter, Dr. Ally filed his notice of appeal.
5 In its objections, BTBCS argued that: (1) Dr. Ally’s affidavit is conclusory and contains statements “that are not clear, positive, direct, credible, or free from contradiction and cannot be readily controverted”; (2) Dr. Ally’s inclusion of the mortgage calculator and amortization table was improper because the item constituted “inadmissible hearsay, it is not authenticated, and is irrelevant and inherently unreliable.” The remaining items attached to Dr. Ally’s filing were also attached to BTBCS’s summary-judgment motion.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 6 II. WHETHER THE TRIAL COURT’S SUMMARY-JUDGMENT ORDER IS FINAL FOR PURPOSES OF APPEAL
In his third issue, Dr. Ally questions our jurisdiction over this matter by
contending that the trial court’s summary judgment is not final because the record does
not indicate that the trial court struck his counterclaims against BTBCS; therefore, the
trial court’s summary judgment did not dispose of all parties and issues in this case and
cannot be appealed at this point. BTBCS counters that the trial court’s summary-
judgment order is final because it resolved all claims and actions pending in the lawsuit
and, thus, is appealable. Specifically, BTBCS argues that Dr. Ally’s filing of his
counterclaims after the summary-judgment order had been signed and entered on the
trial court’s docket without leave of court does not render the summary-judgment order
unappealable.
A. Applicable Law
“[W]e are obligated to review sua sponte issues affecting jurisdiction.” M.O.
Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). When an appellate court concludes
that it does not have jurisdiction, it can only dismiss the appeal. See id. An appeal may
be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001). There is no presumption of finality for summary-judgment orders. See Ford v.
Exxon Mobil Chem Co., 235 S.W.3d 615, 617 (Tex. 2007) (citing Lehmann, 39 S.W.3d at 205-
06). However, “‘[a] judgment that actually disposes of all parties and all claims is final,
regardless of its language.’” Id. (quoting In re Burlington Coat Factory Warehouse of
McAllen, Inc., 167 S.W.3d 827, 830 (Tex. 2005)).
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 7 The rules of civil procedure allow parties to amend their pleadings “provided,
that any pleadings, responses, or pleas offered for filing within seven days of the date of
trial or thereafter, or after such time as may be ordered by the judge under Rule 166,
shall be filed only after leave of the judge is obtained.” TEX. R. CIV. P. 63; see Sosa v.
Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam). Thus, the rules
require a party to seek leave of court before filing an amended pleading within seven
days of trial.6 See TEX. R. CIV. P. 63. The rules further provide that leave shall be
granted “unless there is a showing that such filing will operate as a surprise to the
opposite party.” Id.; see Chapin & Chapin v. Tex. Sand & Gravel Co., 844 S.W.2d 664, 665
(Tex. 1992).
In Chapin v. Chapin, the Texas Supreme Court explained that the trial court lacks
discretion to deny amendments to the pleadings where the change is merely procedural
and does not change the substantive issues for trial. 844 S.W.2d at 664-65 (allowing a
party to amend its answer to include a verified denial). However, where the
amendment is substantive in nature and alters the issues for trial, the trial court retains
discretion to deny leave to amend. Id.; see TEX. R. CIV. P. 166a(c) (providing that the trial
court can only consider the pleadings and proof on file at the time of the summary-
judgment hearing “or filed thereafter and before judgment with permission of the
court”); Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980) (affirming the denial of
leave to amend on the day of trial to add affirmative defenses); see also Cherry v. McCall,
6 A summary-judgment proceeding is a trial within the meaning of rule 63. See IKB Indus., Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (citing Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988)); see also TEX. R. CIV. P. 63.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 8 138 S.W.3d 35, 43 (Tex. App.—San Antonio 2004, pet. denied)7; Leinen v. Buffington’s
Bayou City Serv. Co., 824 S.W.2d 682, 685 (Tex. App.—Houston [14th Dist.] 1992, no writ)
(“There is nothing in the record to show that appellant had obtained leave of court to
file the amended pleading, or even brought it to the attention of the court so as to be
considered on the motion for summary judgment. A trial court does not abuse its
discretion by refusing to consider summary judgment pleadings filed after the
summary judgment hearing. . . . Appellant’s second point of error is overruled.”).
Moreover, when a trial court refuses amendments introducing new substantive matters,
the burden of showing an abuse of discretion is on the complaining party, rather than
on the opposite party to show surprise. Hardin, 597 S.W.2d at 349.
B. Discussion
In this case, Dr. Ally did not file his counterclaims against BTBCS until after the
trial court signed the summary-judgment order and entered its ruling on the docket.
See TEX. R. CIV. P. 166a(c); Chapin & Chapin, 844 S.W.2d at 664-65; Hardin, 597 S.W.2d at
7 In McCall, the Cherrys filed an amended petition adding causes of action after the trial court
entered a take-nothing partial summary judgment on all claims asserted by the Cherrys. 138 S.W.3d at 42. The only remaining issue, which was severed from the main case, was the McCalls’ counterclaim for attorney’s fees. Id. The San Antonio Court of Appeals noted that:
When a party files an amendment on the eve of trial without first seeking leave of court, we will not consider the party’s complaint that the trial court abused its discretion in refusing to grant leave. Corpus Christi Area Teachers Credit Union v. Hernandez, 814 S.W.2d 195, 203 (Tex. App.—San Antonio 1991, no writ). Here, the Cherrys filed their amended petition not on the eve of trial but after trial. See Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988) (holding that a summary judgment hearing is a trial within the meaning of Rule 63). Furthermore, the Cherrys failed to obtain leave from the trial court before filing. For these reasons, we hold that the trial court did not abuse its discretion in striking the added causes of action in the Cherrys’ amended petition.
Id. at 43 (emphasis in original).
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 9 349-50; see also McCall, 138 S.W.3d at 43; Leinen, 824 S.W.2d at 685. In fact, the reporter’s
record from the summary-judgment hearing contains the following colloquy:
THE COURT: Are there counterclaims on file in this case that I’m not aware of?
[Dr. Ally’s Counsel]: I am actually filing a counterclaim today . . . . And—so my counterclaim will be being [sic] asserted. Intended on filing that prior—before—prior to going to the hearing.
THE COURT: So your answer is no?
[Dr. Ally’s Counsel]: Well, it’s not on file; but it will be shortly.
THE COURT: Plaintiff’s objections are sustained, defendant’s objections are overruled. Plaintiff’s motion for summary judgment is granted, and the order is signed.
Moreover, the record does not indicate that Dr. Ally obtained leave from the trial court
to file his counterclaims. See TEX. R. CIV. P. 63; see also Sosa, 909 S.W.2d at 895. We
conclude that the trial court’s summary-judgment order, though it does not specifically
state that it finally disposed of all pending claims, effectively disposed of all remaining
claims and parties known to the trial court at the time of the hearing. See Ford, 235
S.W.3d at 617; In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d at 830;
Lehmann, 39 S.W.3d at 205-06 (noting that an order or judgment entered before a
conventional trial on the merits is final for purposes of appeal if it (1) actually disposes
of all claims and all parties before the court or (2) clearly and unequivocally states that it
finally disposes of all claims and all parties). Dr. Ally cannot rely on his counterclaims
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 10 that were untimely filed without leave of the trial court to undermine the trial court’s
summary-judgment order or to show that the trial court abused its discretion. See
Hardin, 597 S.W.2d at 349. In addition, we further note that Dr. Ally does not include
any record citations or relevant authority in support of this contention. See TEX. R. APP.
P. 38.1(i).
Based on the foregoing, we hold that the trial court’s summary-judgment order is
final and appealable; thus, we have jurisdiction over this matter. See Ford, 235 S.W.3d at
617; In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d at 830; Lehmann,
39 S.W.3d at 205-06; see also Rape, 139 S.W.3d at 673. Accordingly, Dr. Ally’s third issue
is overruled.
III. THE TRIAL COURT’S SUMMARY JUDGMENT
In his first issue, Dr. Ally argues that the trial court erred in granting summary
judgment because numerous material fact issues exist. We disagree.
A. Standard of Review
We review the grant or denial of a traditional summary judgment de novo. See
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.7 (Tex. 2005); Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). A movant is entitled to summary
judgment if he demonstrates that no genuine issues of material fact exist and that he is
entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); see also Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The movant bears the burden of
proof in a traditional motion for summary judgment, and all doubts about the existence
of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 11 Co., 73 S.W.3d at 215. We take as true all evidence favorable to the non-movant, and we
indulge every reasonable inference and resolve any doubts in the non-movant’s favor.
See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
We will affirm a traditional summary judgment only if the record establishes that
the movant has conclusively proved its defense as a matter of law or if the movant has
negated at least one essential element of the plaintiff’s cause of action. IHS Cedars
Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); see Am.
Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). A matter is conclusively
established if reasonable people could not differ as to the conclusion to be drawn from
the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); see Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). Only when the movant has
produced sufficient evidence to establish its right to summary judgment does the
burden shift to the non-movant to come forward with competent controverting
evidence raising a genuine issue of material fact with regard to the element challenged.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).
B. Applicable Law
A plaintiff who sues for recovery on a promissory note “does not have to prove
all essential elements for a breach of contract but rather need only establish the note in
question, that the defendant signed it, that the plaintiff was the legal owner and holder
thereof, and that a certain balance is due and owing on the note.” Rockwall Commons
Assocs. v. MRC Mort. Grantor Trust I, 331 S.W.3d 500, 505 (Tex. App.—El Paso 2010, no
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 12 pet.) (citing TrueStar Petroleum Corp. v. Eagle Oil & Gas Co., 323 S.W.3d 316, 319 (Tex.
App.—Dallas 2010, no pet.); Clark v. Dedina, 658 S.W.2d 293, 295 (Tex. App.—Houston
[1st Dist.] 1983, writ dism’d)).
C. Discussion
In support of its summary judgment, BTBCS tendered, among other things, an
affidavit from McNeill, who detailed the pertinent transactions. McNeill explained the
factual history of the note, including the fact that both Drs. Ally and Miller signed as co-
guarantors for the $500,000 loan obtained for the benefit of SETX and that BTBCS is the
owner and holder of the note. McNeill further explained that the doctors’ initial
payments were allocated toward the interest only until the note converted to a 7.5%
fixed-rate loan on November 1, 2007. McNeill acknowledged that SETX made several
monthly payments of $10,226.68 and that the current outstanding balance on the note is
$360,811.15. McNeill then noted that, on August 28, 2008, Drs. Ally and Miller executed
a modification and extension agreement, which adjusted the interest rate on the note to
9% per year while the actual monthly payment remained the same (the portions of the
monthly payment allocated to principal and interest were adjusted). McNeill stated
that SETX missed or was late on twenty monthly payments, which resulted in late
charges of $10,226.60 for March 2008, April 2008, May 2008, and April 2009 through
August 2010. Drs. Ally and Miller were notified of the missed payments and were
informed that they were in default. TEB gave the doctors time to cure the default by
making a lump-sum payment of $38,861.32. As noted in McNeill’s affidavit, neither
doctor cured the deficiency; therefore, TEB accelerated the balance of the note and
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 13 demanded that the doctors pay the remaining $360,811.15 principal balance in addition
to $11,244.63 in interest and $8,692.61 in late charges. However, once again, neither
doctor attempted to cure the deficiency. McNeill averred that the total amount owed to
BTBCS by Dr. Ally as of September 2, 2010, was $398,699.28 (comprised of the
$360,811.15 remaining principal balance, $10,226.60 in late charges, and $27,661.53 in
accrued but unpaid interest) plus reasonable attorney’s fees. See Am. 10-Minute Oil
Change, Inc. v. Metro. Nat’l Bank—Farmers Branch, 783 S.W.2d 598, 601 (Tex. App.—
Dallas 1989, no writ) (citing 8920 Corp. v. Alief Alamo Bank, 722 S.W.2d 718, 720 (Tex.
App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.) (holding that an affidavit, made on
personal knowledge by a bank officer and which identified the notes and guaranty and
recited the principal and interest due, was not conclusory and was sufficient evidence to
support a summary judgment motion)).
In addition to McNeill’s affidavit, BTBCS attached copies of all relevant loan
documents that SETX executed in favor of BTBCS’s predecessor-in-interest, TEB.
Among the documents provided was the note itself, which was signed by Dr. Ally and
provided that he was obligated to pay BTBCS late charges equal to 5% of the amount of
the delinquent payment and any “additional costs and administrative efforts required
by reason of such default.” The note also provided that Dr. Ally, as one of the
guarantors, is responsible for paying “all costs of collection hereof when incurred,
including attorneys’ fees, whether or not any legal action shall be instituted to enforce
this Note.” The guaranty and modification agreements were also attached to BTBCS’s
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 14 summary-judgment motion, both of which were signed by Dr. Ally and set forth all fees
for which he is responsible.
Based on our review of the summary-judgment record, we find sufficient
evidence to establish the essential elements of BTBCS’s suit for recovery on a
promissory note. See Rockwall Commons Assocs., 331 S.W.3d at 505; TrueStar Petroleum
Corp., 323 S.W.3d at 319; Clark, 658 S.W.2d at 295. However, our analysis of this issue
does not end here. Because BTBCS’s summary-judgment evidence is sufficient to
establish its entitlement to summary judgment, the burden shifts to Dr. Ally to produce
evidence creating a material fact issue as to the disputed elements. See Steel, 997 S.W.2d
at 223.
With regard to Dr. Ally’s summary-judgment evidence, we note that the trial
court sustained all of BTBCS’s objections, which effectively eliminated from
consideration all of Dr. Ally’s evidence that was not cumulative of BTBCS’s evidence.
And furthermore, on appeal, Dr. Ally does not challenge the trial court’s ruling on the
objections. Nevertheless, Dr. Ally argues on appeal that: (1) BTBCS failed to properly
apply credits to amounts owed; (2) BTBCS’s accounting fails to address properly the
modification agreements; (3) BTBCS’s accounting erroneously charges excessive late
fees; (4) BTBCS’s loan history does not provide accurate monthly payment calculations;
(5) there exists material fact issues regarding whether BTBCS’s charges of interest, late
fees, and “other unverified charges are usurious”; and (6) material fact issues exist
regarding the amount of reasonable and necessary attorney’s fees owed to BTBCS.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 15 Dr. Ally’s first contention centers on alleged accounting errors that resulted in
payments made on January 31, 2008 and December 5, 2008 being entered as debits
rather than credits. McNeill’s affidavit addresses these alleged accounting errors.
McNeill explains that a payment was made on January 31, 2008 in the amount of
$7,121.87 and that another payment was made on December 5, 2008 in the amount of
$10,226.68. However, these payments were listed as debits because the checks
corresponding to these payments did not clear and were returned. As a result, the loan
payment history reflected that a payment was made. It also indicated an “R” marking,
which meant “Reversal.” Based on the foregoing, we cannot say that Dr. Ally’s first
contention raises a genuine issue of material fact that precludes summary judgment.
In his second contention, Dr. Ally complains that BTBCS fails to address the
modification agreements properly. In particular, Dr. Ally argues that the loan payment
history does not match the balance due and owing as of the August 28, 2008
modification agreement. However, in making this argument, Dr. Ally does not cite to
any portion of the record or authority to support his contention. Accordingly, we find
this argument to be inadequately briefed. See TEX. R. APP. P. 38.1(i).
In his third argument, Dr. Ally asserts that BTBCS erroneously charged excessive
late fees. Specifically, Dr. Ally contends “[a]lthough it is unclear how the late fees were
calculated, it is evidence that Appellee charged late fees in violation of the terms of the
Modification Agreements.” Dr. Ally states that the modification agreements provided
that late fees would not be assessed if the payment is made within ten days of the due
date. He then notes, in a conclusory fashion, that BTBCS failed to comply with the
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 16 terms of the modification agreements. Based on our review of the record and Dr. Ally’s
brief, we cannot say that this argument is adequately explained with requisite
specificity. See id. In addition, Dr. Ally does not direct us to evidence in the record
demonstrating that he made several payments within the alleged ten-day grace period
and that BTBCS charged late fees in excess of those allowed under the governing
documents. The note authorized the application of a 5% late fee for delinquent
payments, which resulted in $511.33 in late fees each month between April 2007 and
September 2010. Based on the record before us, we cannot say that Dr. Ally’s third
contention raises a genuine issue of material fact that precludes summary judgment.
Dr. Ally’s fourth contention centers on his monthly payments. Relying on a
mortgage calculator obtained from Bankrate.com, Dr. Ally alleges that BTBCS
erroneously calculated his monthly payment to be $10,226.68 rather than $10,018.97.
However, much of Dr. Ally’s summary-judgment evidence was stricken by the trial
court, including his usage of the mortgage calculator, which he relies on exclusively in
this argument. Moreover, the record does not contain any controverting affidavits that
could raise a fact issue as to BTBCS’s method of computation and accuracy of its
figures. See Alief Alamo Bank, 722 S.W.2d at 720 (citing Sharpe v. Lomas Nettleton Fin.
Corp., 601 S.W.2d 55, 57 (Tex. Civ. App.—Dallas 1980, writ ref’d n.r.e.)). Furthermore,
we find it curious that Dr. Ally complains about the monthly payment amounts now,
yet McNeill recounted that SETX “made monthly payments to [TEB] in the amount of
$10,226.68 and continued to make payments in this amount after the interest rate on the
Note was increased on August 28, 2008.” Based on our review of the record, we cannot
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 17 say that Dr. Ally satisfied his burden of showing material fact issues thereby precluding
summary judgment in favor of BTBCS.
Next, Dr. Ally argues that BTBCS’s charges of interest, late fees, and “other
unverified charges are usurious” in violated of chapters 302 and 305 of the finance code.
See TEX. FIN. CODE ANN. §§ 302.001-.104, 305.001-.105 (West 2006). First, we point out
that Dr. Ally does not specify exactly which provisions of chapters 302 and 305 of the
finance code that BTBCS violated. See TEX. R. APP. P. 38.1(i). In addition, “[w]hen a
usury claim is based upon the creditor’s charge of usurious interest, the actionable
conduct is that of the creditor acting unilaterally and independently.” Danzinger v. San
Jacinto Sav. Ass’n, 732 S.W.2d 300, 304 (Tex. 1987). Here, Dr. Ally and BTBCS agreed
upon the interest rates in this case. Initially, interest accrued at a rate of 7.5% until the
parties agreed to modify the note to change the interest rate to 9.0%. Given the fact that
the parties agreed upon the interest rates to be charged, we do not believe BTBCS’s
conduct to be unilateral or independent in nature so as to give rise to a claim of usury
with respect to the interest rate. See id. Regarding the late fees, the note, which Dr. Ally
signed, provided that a late charge of 5% would be charged in the event that a monthly
payment is delinquent. Dr. Ally does not adequately explain how a 5% late fee allowed
BTBCS to receive greater compensation than allowed by law. See C&K Invs. v. Fiesta
Group, Inc., 248 S.W.3d 234, 241 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“The
essential elements of a usurious transaction are ‘(1) a loan of money, (2) an absolute
obligation to repay the principal, and (3) the exaction of a greater compensation than allowed
by law for the use of the money by the borrower.’” (quoting Anglo-Dutch Petroleum Int’l, Inc.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 18 v. Haskell, 193 S.W.3d 87, 96 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)
(emphasis added)). And finally, Dr. Ally neither adequately explains the alleged
“unverified charges” nor provides a citation to the record showing the “unverified
charges.” As a result, Dr. Ally’s complaint pertaining to the alleged “unverified
charges” is inadequately briefed.” See TEX. R. APP. P. 38.1(i).
In his final contention in this issue, Dr. Ally argues that BTBCS failed to address
the “Lodestar” factors in its attorney’s fees affidavit. 8 Regarding attorney’s fees, BTBCS
included an affidavit executed by Terrence D. Dill Jr., wherein he averred that he is
familiar with rule 1.04 of article 10, section 9 of the Texas Disciplinary Rules of
Professional Conduct “dealing with the factors that may be considered in determining
the reasonableness of a fee.” Dill also detailed his experience and all efforts he made to
collect on this debt. In addition, he stated that: (1) from February 1, 2010 to March 31,
2010, BTBCS incurred $4,104.41 in reasonable and necessary attorney’s fees associated
in the collection of this debt; (2) from April 1, 2010 to April 30, 2010, BTBCS incurred
$8,773.30 in attorney’s fees associated with this matter; and (3) from May 1, 2010 to
August 31, 2010, BTBCS incurred $13,497 in attorney’s fees in this matter. The sum total
of these amounts is $26,374.71. Dill further mentioned that these fees were reasonable
and necessary in this matter; that he is aware of the reasonable and necessary attorney’s
fees customarily charged in Brazos County and surrounding counties; and that the fees
charged in this matter are similar to those charged in other counties “for the same or
similar services for an attorney with my experience, reputation, and ability.”
8 Curiously, Dr. Ally does not cite to the purported “Lodestar” case.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 19 The Texas Supreme Court has stated that a factfinder should consider the
following factors when determining the reasonableness of attorney’s fees:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Arthur Andersen & Co. v. Perry Equip Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing TEX.
DISCIPLINARY R. PROF. CONDUCT 1.04, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G
app. (STATE BAR RULES, art. X, § 9); Ragsdale v. Progressive Voters League, 801 S.W.2d 880
881 (Tex. 1990)). Moreover, an attorney’s affidavit is sufficient proof of attorney’s fees
when the affidavit is unchallenged. In re Friesenhahn, 185 S.W.3d 16, 21 (Tex. App.—San
Antonio 2005, pet. denied) (“Because the attorney’s fees were unchallenged, the
affidavit of the lawyer as an expert on his fees is sufficient summary judgment proof of
the reasonableness of the fees requested.”) (citing Querner Truck Lines, Inc. v. Alta Verde
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 20 Indus., Inc., 747 S.W.2d 464, 468 (Tex. App.—San Antonio 1988, no writ)). And, an
attorney’s testimony is taken as true as a matter of law if it is: (1) clear, positive, and
direct; and (2) uncontroverted. Ragsdale, 801 S.W.2d at 882.
Here, Dill’s attorney’s fees affidavit touches on many of the factors articulated in
Arthur Andersen. See 945 S.W.2d at 818. Furthermore, Dr. Ally did not tender any
affidavits or other evidence to controvert Dill’s attorney’s fees affidavit. See In re
Friesenhahn, 185 S.W.3d at 21; see also Alta Verde Indus., Inc., 747 S.W.2d at 468. We find
Dill’s affidavit to be clear, positive, and direct as to the issue of attorney’s fees. See
Ragsdale, 801 S.W.2d at 882. Therefore, based on the foregoing, we conclude that BTBCS
established its right to $26,374.71 in attorney’s fees as a matter of law. Accordingly, we
cannot say that Dr. Ally’s summary-judgment evidence raises a fact issue as to
attorney’s fees. We overrule Dr. Ally’s first issue.
IV. DOUBLE RECOVERY
In his second issue, Dr. Ally complains that the trial court’s summary-judgment
order should be reversed because BTBCS obtained a judgment against Dr. Miller for the
full amount allegedly owed under the note. Dr. Ally argues that, because of the agreed
judgment between BTBCS and Dr. Miller, the trial court’s summary-judgment order
authorizes a double recovery in favor of BTBCS. We disagree.
It is axiomatic that a party is not entitled to a double recovery. See Waite Hill
Servs. v. World Class Metal Works, 959 S.W.2d 182, 184 (Tex. 1998) (per curiam). A double
recovery exists when a plaintiff obtains more than one recovery for the same injury. See
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 21 id. (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991)); see also Dhanani
v. Giles, No. 10-07-00144-CV, 2008 Tex. App. LEXIS 3926, at *12 (Tex. App.—Waco May
28, 2008, pet. denied) (mem. op.). “Appellate courts have applied the one satisfaction
rule when the defendants commit the same act as well as when the defendants commit
technically differing acts which result in a single injury.” Sterling, 822 S.W.2d at 7.
However, Texas Rules of Civil Procedure 40 provides, in relevant part, that:
all persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative any right to relief in respect of or arising out of the same transactions, occurrence, or series of transactions or occurrence and if any questions of law or fact common to all of them will arise in the action.
TEX. R. CIV. P. 40. It is undisputed that both Dr. Ally and Dr. Miller signed the
underlying documents as guarantors for the $500,000 loan. Furthermore, the note itself
specifically provided that:
If this note is executed by more than one party, each such party shall be jointly and severally liable for the obligations of Maker under this Note. If Maker is a partnership, each general partner of Maker shall be jointly and severally liable hereunder, and each such general partner hereby waives any requirement of law that in the event of a default hereunder Payee exhausts any assets of Maker before proceedings against such general partner’s assets.
Based on the unambiguous language of the note, both Dr. Ally and Dr. Miller are jointly
and severally liable for the debt. See Buys v. Buys, 924 S.W.2d 369, 372 (Tex. 1996)
(stating that the construction of an unambiguous contract is a question of law for the
court to determine de novo); see also Mid-South Telecomm. Co. v. Best, 184 S.W.3d 386, 390
(Tex. App.—Austin 2006, no pet.) (noting that we construe a debt guaranty as any other
contract).
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 22 The supreme court has stated that, under the one satisfaction rule, the non-
settling defendant is entitled to offset any liability for joint and several damages by the
amount of common damages paid by the settling defendant, but not for any amount of
separate or punitive damages paid by the settling defendant. See Crown Life Ins. Co. v.
Casteel, 22 S.W.3d 378, 391-92 (Tex. 2000); see also Hill v. Budget Fin. & Thrift Co., 383
S.W.2d 79, 81 (Tex. Civ. App.—Dallas 1964, no writ) (“[A] plaintiff must only give credit
to a non-settling defendant for that part of the damages . . . received from settling
defendants that are applicable to all equally.”).
Here, the record does not reflect that, at this point, any amounts have been paid
by either party. In this issue, Dr. Ally primarily asserts various hypothetical situations
to demonstrate that BTBCS would be unjustly enriched. Based on our review of the
record, Dr. Ally’s complaints about double recovery appear to be premature. And,
according to the above-mentioned authority, Drs. Ally and Miller would be entitled to
credit for amounts paid by the other, which undermines Dr. Ally’s contention that
BTBCS would receive a double recovery.9 See Casteel, 22 S.W.3d at 391-92; see also Hill,
383 S.W.2d at 81. We, therefore, overrule Dr. Ally’s second issue.
9 We also note that an interlocutory judgment is merged into a final judgment when all the remaining claims are resolved, either on the merits or by dismissal. See Webb v. Jorns, 488 S.W.2d 407, 408- 09 (Tex. 1972); see also Radelow-Gittens Real Prop. Mgmt. v. Pamex Foods, 735 S.W.2d 558, 560 (Tex. App.— Dallas 1987, writ ref’d n.r.e.). In this case, BTBCS obtained an agreed judgment against Dr. Miller, which was interlocutory in nature because all of the remaining claims and parties had not been resolved. See Bobbitt v. Stran, 52 S.W.3d 734, 734 (Tex. 2001) (per curiam) (concluding that a judgment was interlocutory when it did not dispose of all claims and parties). Therefore, the trial court’s summary-judgment order against Dr. Ally, which, as we noted earlier, disposed of all remaining claims and parties, was merged with the agreed judgment against Dr. Miller. See Webb, 488 S.W.2d at 408-09; see also Pamex Foods, 735
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 23 V. CONCLUSION
Having overruled all of Dr. Ally’s issues on appeal, we affirm the judgment of
the trial court.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed February 29, 2012 [CV06]
S.W.2d at 560. Thus, we disagree with Dr. Ally’s assertion that BTBCS obtained two separate and distinct judgments, which authorized a double recovery.
Ally, M.D. v. The Bank & Trust of Bryan/College Station Page 24