Opinion issued August 28, 2025
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00923-CV ——————————— TAMMY TRAN, TAMMY TRAN ATTORNEYS AT LAW, L.P., AND ADAMS TRAN, Appellants V. TONY BUZBEE, Appellee
On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2021-82608
MEMORANDUM OPINION
This appeal arises from two separate series of transactions. First, Tony Buzbee
loaned funds to Tammy Tran and Tammy Tran Attorneys at Law, L.P. (collectively
“Tran”) for a separate lawsuit Tran was prosecuting. When Tran did not repay the
loan, Buzbee sued her to collect payment in 2014. The parties settled that lawsuit by signing a promissory note and confession of judgment. The parties later entered into
two forbearance agreements to delay the due date on two annual payments under the
promissory note. Buzbee filed this lawsuit alleging that Tran defaulted under the
note and one of the forbearance agreements.
Second, Tran and her husband Adams Tran allegedly made contributions to
and worked for Buzbee’s 2019 mayoral campaign. Tran counterclaimed and alleged
that Buzbee promised to pay her for her contributions. Adams Tran intervened and
asserted claims against Buzbee for unpaid campaign work.
Buzbee moved for summary judgment. The trial court granted the motion,
rendered judgment for Buzbee for $765,000, and dismissed Tran’s counterclaims.
The summary judgment did not mention Adams Tran’s claims.
In a single issue on appeal, the Trans contend that the trial court erred by
rendering final summary judgment because: (1) the judgment granted more relief
than requested in the summary judgment motion; (2) the judgment relied on
unpleaded causes of action, and Buzbee did not properly plead his sole cause of
action; (3) fact issues existed on Buzbee’s claims; and (4) fact issues existed on
Tran’s counterclaims. We affirm in part and reverse and remand in part.
Background
Buzbee and Tran are both attorneys. In 2010, Buzbee loaned Tran $1,250,000
for litigation expenses in an unrelated case. The record does not contain
2 documentation of this transaction, but Buzbee sued Tran in June 2014 to recover on
the loan. The parties settled the 2014 lawsuit by executing a series of documents
pertinent to this appeal. The parties entered a settlement agreement which required
Tran to execute a promissory note for the principal of the 2010 loan and a confession
of judgment waiving “any and all defenses.” Buzbee agreed to nonsuit the 2014
lawsuit and hold the confession of judgment in escrow unless Tran defaulted on the
note.
Tran signed the promissory note for the $1,250,000 principal of the loan. She
agreed to repay the loan in annual installments of $250,000 over five years from
2016 to 2020. Payments were due April 17 of each year. The note stated that it “shall
bear no interest,” and it was secured in part by the confession of judgment.
Tran also signed the confession of judgment, which consisted of an original
petition for confession of judgment and an agreed judgment. Tran signed an affidavit
verifying the petition and the agreed judgment. These are the documents which
Buzbee filed as his original petition in this case.
Tran was unable to timely pay the 2017 annual installment under the note, so
the parties executed a written forbearance agreement. This agreement referenced the
parties’ settlement agreement and promissory note. Buzbee agreed to extend the due
date of the annual installment from April 17 to December 1 in exchange for Tran
paying six monthly forbearance payments of $10,000 each. The parties agree that
3 Tran actually paid $70,000 in forbearance payments in 2017 and paid the annual
installment on December 5.
Tran also could not pay the 2018 annual installment. She entered into another
forbearance agreement to extend the April 2018 due date. The record does not
contain a written forbearance agreement for 2018. But the parties do not dispute that
this agreement required Tran to pay $60,000 in four equal payments to extend the
due date of the annual installment. In total, Tran agreed to pay $130,000 in
forbearance payments in 2017 and 2018. The parties dispute whether Tran made all
these payments or whether $15,000 remains unpaid. Tran was unable to make any
additional annual installments on the note, and the parties agree that $750,000
remains outstanding on the note.
Meanwhile, Buzbee ran for mayor of the City of Houston in 2019. Tran
allegedly contributed to Buzbee’s campaign, including by providing office space,
advertising, and food for volunteers. Tran’s husband, Adams Tran, allegedly worked
for Buzbee’s campaign most of the year. Buzbee allegedly agreed either to repay the
Trans more than $200,000 for their campaign contributions and work or to credit the
amount against the outstanding principal of the promissory note, but he never did.
In December 2021, Buzbee initiated the underlying lawsuit by filing the
confession of judgment which Tran had previously signed. The petition’s allegations
focused on the confession of judgment but also alleged that Tran had defaulted under
4 the promissory note. Tran filed an answer and counterpetition asserting numerous
affirmative defenses and counterclaims. She asserted the defenses of offset,
payment, release, accord and satisfaction, usury, fraud, and limitations. She asserted
counterclaims based on the campaign contributions for usury, breach of contract,
and fraud. She also asserted a counterclaim for quantum meruit on behalf of Adams
Tran.
On September 5, 2023, Adams Tran filed a petition in intervention. He alleged
that Buzbee rented offices from the Trans for the mayoral campaign, the Trans paid
for food for campaign volunteers, and Adams Tran worked on the campaign for
several months. Adams Tran alleged that Buzbee agreed to repay the Trans for their
contributions to and work on the campaign but failed to do so. Adams Tran asserted
claims for breach of contract, fraud, and quantum meruit.
Buzbee filed a motion for summary judgment on his claims, Tran’s
affirmative defenses, and some of Tran’s counterclaims. He argued that the
confession of judgment, promissory note, and forbearance agreements entitled him
to an award of $765,000 representing the outstanding principal on the note plus
$15,000 in unpaid forbearance payments. He also challenged Tran’s defenses.
Concerning usury, Buzbee argued that there was no dispute about the outstanding
principal of the promissory note, the note provided that it “shall bear no interest,”
and therefore the principal of the note could not be treated as usurious interest. He
5 also argued that Tran had no evidence of two elements of her usury counterclaim.
The summary judgment motion did not mention Adams Tran’s claims. Buzbee
attached the parties’ settlement agreement, the promissory note, the 2017
forbearance agreement, the confession of judgment, and an affidavit from Buzbee
stating that $750,000 remains outstanding on the principal of the note and $15,000
remains outstanding on the 2018 forbearance agreement.
Tran filed a response. She conceded that she had repaid only $500,000 on the
note, but she nevertheless argued that fact issues existed because she withdrew her
agreement to the confession of judgment. She also disputed that she had not paid all
the forbearance payments, and she attached copies of checks totaling $130,000 made
payable to Buzbee. Tran also disputed that Buzbee was entitled to judgment on her
defenses and counterclaims. Concerning usury, she argued that Buzbee charged her
$70,000 and $60,000 in 2017 and 2018, respectively, to delay payment of the note’s
$250,000 annual installment by 7.5 months in each year. She argued that the
maximum lawful interest rate was 10 percent per year, which equaled only $15,625
in interest per year based on the annual installment amount. She therefore contended
that she was entitled to penalties of three times the excessive interest charged or paid.
Tran attached an affidavit and numerous documents to her summary judgment
motion, including the checks to Buzbee for forbearance payments. She then filed a
6 supplemental affidavit about an hour after the midnight deadline to respond to the
summary judgment motion.
In his reply, Buzbee objected to the supplemental affidavit as untimely and
moved to strike it. He also contended that Tran did not raise a fact issue concerning
the amounts she owed under the promissory note and the forbearance agreement.
Tran responded to the motion to strike and moved for leave to file the affidavit
an hour late. She also filed a sur-reply to the summary judgment motion reiterating
that her usury defense and counterclaim were grounded on the forbearance
payments, not the principal of the note.
The trial court granted the summary judgment motion in an order signed on
September 12, 2023. The trial court did not expressly rule on either Buzbee’s motion
to strike the untimely affidavit or Tran’s motion for leave to file it late, but the
summary judgment stated that the court had considered “the timely filed summary
judgment evidence[.]” The summary judgment awarded Buzbee $765,000 “as the
unpaid principal” under the note “and forbearance payment,” as well as attorney’s
fees and interest. The order expressly dismissed Tran’s counterclaims, but it did not
mention Adams Tran’s claims. The order concluded that it “is a final judgment and
disposes of all parties and claims.”
The Trans filed separate motions for new trial arguing that the trial court erred
by granting the summary judgment motion and rendering judgment. Tran argued that
7 fact issues prevented summary judgment on Buzbee’s claims and her counterclaims.
Adams Tran argued that the summary judgment order was not final despite the
order’s contrary language because Buzbee did not move for summary judgment on
the claims. The trial court heard argument on the motions for new trial, but the court
denied the motions in a written order on December 13, 2023. Concerning Adams
Tran’s claims, the order stated that “[t]he Court granted Plaintiff’s MSJ PRIOR to
Adam[s] Tran’s Petition in Intervention.” This appeal followed.
Summary Judgment
In a single issue, the Trans contend that the trial court erred by granting the
summary judgment motion and by rendering a final judgment. The briefing raises
questions about two separate series of transactions: (1) the 2010 loan from Buzbee
to Tran; and (2) Buzbee’s alleged promise to pay the Trans for their contributions to
and work on Buzbee’s mayoral campaign. The Trans contend that fact issues exist
on the parties’ claims concerning the 2010 loan, and Buzbee did not move for
summary judgment on Tran’s counterclaims and Adams Tran’s claims concerning
the mayoral campaign.
A. Standard of Review
The Court applies a well-established de novo standard to review summary
judgment rulings. See, e.g., Wal-Mart Stores, Inc. v. Xerox State & Loc. Sols., Inc.,
663 S.W.3d 569, 576 (Tex. 2023); Oxy USA WTP LP v. Bringas, 702 S.W.3d 647,
8 654–55 (Tex. App.—Houston [1st Dist.] 2024, pet. denied); Wheinberg v. Baharav,
553 S.W.3d 131, 134 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
B. The 2010 Loan
The 2010 loan is the primary focus of this case and the sole focus of Buzbee’s
claims against Tran. Buzbee argued in his summary judgment motion that Tran owed
$750,000 on the principal of the promissory note and $15,000 in forbearance
payments. Tran asserted several defenses and counterclaims. Relevant here, she
alleged the defense and counterclaim of usury based on the total forbearance
payments she was charged or paid in 2017 and 2018. The trial court granted
Buzbee’s summary judgment motion, awarded him $765,000 for the outstanding
principal and forbearance payments, and dismissed Tran’s counterclaims.
On appeal, Tran raises numerous challenges to the judgment. But we are most
persuaded by her argument that Buzbee did not establish his entitlement to summary
judgment on the usury defense and counterclaim, which if successful would entitle
her to penalties that could be credited toward the unpaid principal of the note and
the unpaid forbearance payment awarded in the judgment. For the reasons discussed
below, we conclude that the entire summary judgment order is erroneous.
9 The parties agree on most of the details concerning the 2010 loan. Buzbee
loaned Tran $1,250,000 as part of their professional relationship as attorneys.1
Buzbee sued Tran in 2014 to collect on the loan, but the parties settled that lawsuit
and Buzbee nonsuited it. Tran and Buzbee executed several agreements in 2015 to
settle the 2014 lawsuit, including a promissory note and a confession of judgment.
The forbearance agreements came later.
Tran executed the promissory note in 2015. She agreed to repay a principal
balance of $1,250,000 without interest in equal annual installments of $250,000 for
five years from 2016 to 2020. The installments were due by April 17 of each year.
The promissory note was secured in part by a confession of judgment consisting of
a series of documents which Tran also signed.
Tran timely paid the 2016 installment, reducing the principal on the note to
$1,000,000. But she was unable to timely pay the 2017 installment. So the parties
entered into the first forbearance agreement in July 2017. This written agreement,
which appears in the record, extended the due date of the 2017 annual installment
from April 17 to December 1, 2017. Tran agreed to pay Buzbee $10,000 per month
for six months to delay the due date. She actually paid Buzbee $70,000 in
1 Tran mentions on appeal that the parties had some dispute about whether this money was a loan or an investment, but the distinction is immaterial to our analysis considering the parties’ subsequent actions in settling the 2014 lawsuit. 10 forbearance payments in 2017 and paid the annual installment on December 5,
reducing the principal on the promissory note to $750,000.2
Tran was unable to pay the 2018 annual installment. The parties entered into
a second forbearance agreement which does not appear in the record.3 Tran agreed
to pay $60,000 in forbearance payments to extend the due date of the 2018 annual
installment. She paid at least three forbearance payments of $15,000 each, but the
parties dispute whether she paid the final $15,000 forbearance payment. Tran did
not pay any further installments on the promissory note.
Buzbee filed the underlying lawsuit and motion for summary judgment to
recover the remaining principal of $750,000 and a forbearance payment of $15,000.
Tran asserted several affirmative defenses and counterclaims, including usury. Her
summary judgment response argued that Buzbee had charged her $130,000 in
forbearance payments—$70,000 in 2017 and $60,000 in 2018—to extend the due
date of her $250,000 annual installments for those years under the note, and the rate
2 The parties do not explain why Tran paid Buzbee $70,000 or dispute the apparent overpayment from the $60,000 required under the 2017 forbearance agreement. Thus, we presume that Tran’s payment of $70,000 fully complied with her obligations under that agreement. 3 To the extent Buzbee disputes the terms of this agreement on appeal, his summary judgment motion included a list showing that “Tran has paid” three forbearance payments of $15,000 each in 2018, and the motion asserted that “one unaccounted forbearance check” remains outstanding “for $15,000.” The motion specifically sought to recover the unpaid $15,000 forbearance payment. Therefore, we construe the facts stated above as undisputed unless otherwise noted. 11 of interest to forbear the annual installment was excessive and thus usurious. The
trial court disagreed with Tran, granted the motion, and rendered judgment awarding
Buzbee $765,000 for the unpaid balance on the note and the 2018 forbearance
agreement.
Tran challenges this award on numerous grounds, arguing that Buzbee did not
properly plead the confession of judgment, she withdrew her agreement to the
confession of judgment, and the summary judgment could not have been based on
any other claim (such as breach of the promissory note or forbearance agreements)
because Buzbee pleaded a single claim based solely on the confession of judgment.
Buzbee disputes these arguments at every turn.
For purposes of our analysis, however, we can assume without deciding that
Buzbee established his entitlement to an award of $765,000 for the outstanding
principal under the promissory note and the outstanding forbearance payment. See
TEX. R. CIV. P. 166a(c); TEX. R. APP. P. 47.1 (requiring courts of appeals to issue
written opinions that are as brief as practicable but address every issue raised and
necessary to final disposition of appeal). Even so, we agree with Tran that the trial
court erred by granting summary judgment on her usury affirmative defense and
counterclaim. As Tran correctly argues, Buzbee did not meet his summary judgment
burden with respect to the defense and counterclaim, and her ultimate success on the
counterclaim would entitle her to penalties that could be credited toward the
12 principal and the forbearance payment. Even if Buzbee established his entitlement
to the principal under the note and the forbearance payment, he did not meet his
burden to show that the award could not be reduced by Tran’s counterclaim.
First, we agree with Tran that Leteff v. Roberts supports her contention that
penalties for usurious interest on a loan can be credited against the principal of the
loan. See 555 S.W.3d 133 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Buzbee
did not directly respond to this argument.
The question presented in Leteff was whether an obligor’s usury damages
could be applied against loans that the obligor had failed to repay. Id. at 135. Roberts
made 17 separate loans to Leteff, but Leteff only repaid some of them, so Roberts
sued Leteff for breach of contract. Id. After a bench trial, the trial court concluded
that Roberts was liable for usury, but the court refused to award usury damages for
loans on which Leteff had fully defaulted. Id. at 136.
On appeal, a panel of this Court construed the plain language of Finance Code
section 305.001(a-1) as providing that a creditor is liable for usury when the creditor
contracts for usurious interest on a loan even if the obligor fails to repay the loan. Id.
at 138; see TEX. FIN. CODE § 305.001(a-1). In reversing the trial court’s refusal to
award the obligor usury damages on the defaulted loans, we stated, “The law awards
an obligor usury damages as ‘a boon or a windfall which he is allowed to receive as
a punishment to the usurious lender. . . . A successful claim of usury may allow the
13 borrower to avoid a debt he might otherwise owe.’” Id. (quoting Steves Sash & Door
Co. v. Ceco Corp., 751 S.W.2d 473, 476–77 (Tex. 1988)). Thus, we concluded that
usury law “punishes” a creditor for making usurious loans, “even if the result is a
windfall” for the obligor. Id.
Leteff supports Tran’s contention that any usury damages she might recover
could be credited or offset against the principal of the note and outstanding
forbearance payment even if Tran has defaulted on these payments. See id. at 138
(“A successful claim of usury may allow the borrower to avoid a debt he might
otherwise owe.”). Although Tran concedes that $750,000 remains outstanding on
the principal of the loan, we are bound by Leteff to conclude that a successful
prosecution of her usury defense and counterclaim could reduce the principal of the
note and any unpaid portion of the forbearance agreement.
Second, we consider whether fact issues exist concerning usury. “A loan is
‘usurious’ when the interest exceeds the maximum amount allowed by law.” Am.
Pearl Grp., L.L.C. v. Nat’l Payment Sys., L.L.C., 715 S.W.3d 383, 385 (Tex. 2025)
(quoting TEX. FIN. CODE § 301.002(a)(17)). “Interest” means “compensation for the
use, forbearance, or detention of money.” Id. (quoting TEX. FIN. CODE
§ 301.002(a)(4)). A forbearance occurs when a debt is due or to become due, and the
parties agree to extend the time for payment of the debt. Domizio v. Progressive
Cnty. Mut. Ins. Co., 54 S.W.3d 867, 873 (Tex. App.—Austin 2001, pet. denied). A
14 creditor who charges excessive interest is liable to the obligor for three times the
excessive amount. See TEX. FIN. CODE § 305.001(a)–(a-1). Because usury statutes
are penal in nature, they are strictly construed. Am. Pearl Grp., 715 S.W.3d at 385.
“When construing a contract under a usury claim, courts presume the parties
intended a nonusurious contract.” Anglo-Dutch Petroleum Int’l, Inc. v. Haskell, 193
S.W.3d 87, 96 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (quoting Fin. Sec.
Servs., Inc. v. Phase I Elecs. of W. Tex., Inc., 998 S.W.2d 674, 677 (Tex. App.—
Amarillo 1999, pet. denied)).
A usurious transaction has three elements: a loan of money; an absolute
obligation that the principal be repaid; and the exaction of a greater compensation
than allowed by law for the use of money by the borrower. Am. Pearl Grp., 715
S.W.3d at 385 (quoting Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982)). In
considering the third element, which is the primary focus in this case, the parties
dispute both: (1) how much interest could lawfully be charged—10, 18, or 28 percent
per year; and (2) how to calculate the amount of interest actually charged to
determine whether any charged interest was usurious.
Before discussing the parties’ arguments on appeal, it is useful to consider the
manner in which they presented their arguments in the trial court. Tran raised usury
as a defense and counterclaim in her live counterpetition. Buzbee moved for
summary judgment and raised two grounds concerning usury. First, he argued that
15 the promissory note expressly bore no interest, and without interest there can be no
usury. Second, he argued that no evidence existed of two elements of usury: an
absolute obligation that the principal be repaid, and the exaction of a greater
compensation than allowed by law for the use of the money by the borrower. See id.
Buzbee did not argue that the forbearance payments were not usurious. But Tran’s
summary judgment response focused her usury arguments exclusively on the
forbearance payments, and Tran provided calculations which she contended
established that the maximum lawful amount of forbearance payments was $15,625
per year to extend the due date of the $250,000 annual installments in 2017 and 2018.
Buzbee filed a reply but did not address these arguments.
The no-evidence ground lacks merit, and Buzbee does not urge it on appeal.
Buzbee’s motion attached the promissory note, the written 2017 forbearance
agreement, and an affidavit concerning the 2018 forbearance agreement. Although
the record lacks some terms of the 2018 agreement, such as the length of the
extension to pay the annual installment, the parties agree on most of the terms. The
parties agree that Tran was charged $130,000 in forbearance payments in 2017 and
2018 to extend each of those years’ annual installments under the note. There is no
dispute on appeal that the agreements included an absolute obligation by Tran to
repay the principal of the note and the forbearance payments. See id. Moreover, the
terms of these agreements are all the evidence necessary to calculate whether the
16 forbearance payments exacted greater compensation than allowed by law. See id.
Thus, Buzbee was not entitled to summary judgment on the no-evidence ground.
More importantly, Buzbee’s summary judgment briefing did not address
whether the forbearance payments were usurious. Buzbee argued only that the
promissory note expressly bore no interest. As Tran responds, however, we are not
bound by the parties’ labels, and “[a] charge which is in fact compensation for the
use, forbearance or detention of money is, by definition, interest regardless of the
label placed upon it by the lender.” Gonzales Cnty. Sav. & Loan Ass’n v. Freeman,
534 S.W.2d 903, 906 (Tex. 1976); see also Swank v. Sverdlin, 121 S.W.3d 785, 791
(Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“Whether an amount of money
is interest [under usury statutes] depends not on what the parties call it but on the
substance of the transaction.”).
The forbearance agreements were executed more than two years after the
promissory note, and Buzbee acknowledges that they are separate agreements
supported by “separate and additional consideration[.]” The forbearance agreements
squarely fit the definition of “interest” in the usury statutes and the caselaw
construing them. See TEX. FIN. CODE § 301.002(a)(4) (“Interest” means
“compensation for the use, forbearance, or detention of money.”); Domizio, 54
S.W.3d at 873 (stating that forbearance means debt is due or to become due, and
parties agree to extend time for payment of debt). Thus, we disagree with Buzbee
17 that he was entitled to summary judgment merely because the promissory note
expressly bore no interest. As the movant, Buzbee had the burden to establish his
entitlement to summary judgment, and he did not meet this burden in the trial court.
See Wal-Mart Stores, 663 S.W.3d at 576.
Buzbee raises additional arguments on appeal. He first argues that because the
forbearance agreements were supported by separate and additional consideration—
i.e., Buzbee’s agreement to not file the underlying lawsuit—the forbearance
payments were not interest under usury law. To support this argument, Buzbee relies
on First Bank v. Tony’s Tortilla Factory, Inc., in which the Texas Supreme Court
stated, “Fees which are an additional charge supported by a distinctly separate and
additional consideration, other than the simple lending of money, are not interest and
thus do not violate the usury laws.” See 877 S.W.2d 285, 287 (Tex. 1994).
The court distinguished several types of fees which are not interest for usury
purposes, such as attorney’s fees, commitment fees, prepayment penalties, and
brokerage fees. Id. Courts need not adhere to how the parties label a fee to determine
whether it is a service charge or interest. Id. When the evidence conflicts on whether
a fee is actually for an additional consideration, the question whether a fee is interest
or a service charge is a fact question for the jury. Id.; see also Swank, 121 S.W.3d at
792 (“A fact question is raised when there is any dispute in the evidence as to
whether a charge in addition to interest is actually for an additional consideration.”).
18 In First Bank, the parties did not dispute the facts and character of the fees:
the bank honored checks drawn on insufficient funds in exchange for a fee charged
to the customer and the customer’s obligation to repay the bank for the advanced
funds. 877 S.W.2d at 285, 287. The bank assessed the fee “as a processing fee for
the additional work” which the bank was required to complete when processing bad
checks; the bank’s decision to charge the fee was separate from its decision to honor
or dishonor a bad check; the fee was charged in the same amount to all customers
regardless of whether the bank honored the check; and the fee bore no relationship
to the amount of funds advanced by the bank. Id. at 287–88. The court concluded
that the “fee was not interest on the amount advanced to cover the bad checks” but
was instead “charged for the costs of processing a check drawn on an account with
insufficient funds.” Id. at 288. The court held that the fee was separate and additional
consideration other than the lending of money for processing each bad check, and
the customer’s separate consideration was the implied promise to repay the advance.
Id.
Here, the forbearance agreements’ close relationship to the money loaned
under the promissory note distinguishes this case from First Bank. Although Buzbee
agreed in the forbearance agreements to delay filing the underlying lawsuit, the
agreements effectively extended the time to pay the annual installments under the
promissory note in 2017 and 2018. As stated above, the promises contemplated by
19 the forbearance agreements precisely fit the definition of “interest” under usury law.
See TEX. FIN. CODE § 301.002(a)(4); Domizio, 54 S.W.3d at 873. To the extent
Buzbee disputes the character of the forbearance agreements, this dispute raises a
fact issue concerning the true nature of the forbearance agreements. See First Bank,
877 S.W.2d at 287; Swank, 121 S.W.3d at 792.
Finally, the parties disagree about the proper calculation of interest. Tran
argues that the maximum lawful interest rate was 10% per year, and the forbearance
charges of $70,000 for 2017 and $60,000 for 2018 were excessive when calculated
by the 7.5-month extension of the due date for the $250,000 annual installment for
each year. Buzbee responds that if the forbearance payments were considered
interest, the applicable interest rate would be either 18% or 28% per year, and
excessive interest is determined by aggregating or amortizing the entire $130,000 in
forbearance payments charged over the five-year term of the original principal
amount of the promissory note. We are not persuaded that either party has produced
the correct result.
Although Tran argues that the general maximum rate of 10% interest per year
applies to the transaction, she does not respond to Buzbee’s contention that the
promissory note was executed as part of a commercial loan between attorneys and
thus the optional interest rate ceiling is as high as 28% per year. See TEX. FIN. CODE
§§ 302.001(b), 303.009(a)–(c). Using what she contends is “the well-known formula
20 I=PRT,” Tran calculates the maximum lawful interest at $15,605.75 per year to
extend the $250,000 annual installment in 2017 and 2018.4 She provides minimal
legal authority supporting these contentions.
Nevertheless, Buzbee had the burden to establish his entitlement to summary
judgment on the usury defense and counterclaim. See Wal-Mart Stores, 663 S.W.3d
at 576. He responds on appeal that after aggregating or amortizing the $130,000 in
forbearance payments against the five-year term and principal due under the
promissory note, the forbearance payments were “approximately 10% of the
principal amount of the Promissory Note.” Buzbee relies on Finance Code section
302.001(c):
To determine the interest rate of a loan under this subtitle, all interest at any time contracted for shall be aggregated and amortized using the actuarial method during the stated term of the loan.
TEX. FIN. CODE § 302.001(c).
The problem with this argument is that Buzbee has made little showing that
“the stated term of the loan” refers to the original principal amount under the
promissory note rather than the $250,000 annual installment due under the note in
both 2017 and 2018. As discussed above, the forbearance agreements are separate
agreements that were executed more than two years after the parties executed the
4 Tran’s calculation on appeal differs from her calculation in the trial court by about $20. 21 promissory note. The 2017 forbearance agreement references the promissory note,
but it does not mention the principal amount of the note. Rather, it states that:
Buzbee shall forbear from and agree not to file the Verified Original Petition for Confession of Judgment held in escrow, nor assert his right pursuant to the Default provisions contained in the Note so long as Tran makes the following forbearance payments on the outstanding annual payment due, which was due April 17, 2017: a. $10,000 monthly forbearance payment to be paid each month for the months of June through November 2017; and b. The $250,000 annual payment on December 1, 2017.
Thus, the only amount listed in the 2017 forbearance agreement is the $250,000
annual installment. The 2018 forbearance agreement does not appear in the record,
and its terms concerning interest and incorporation of the promissory note are even
less developed in the record.
Even more problematic is that Buzbee did not raise any of these calculations
in the trial court, which is a more appropriate forum than an appellate court to resolve
disputed calculations about interest under the usury statutes. Based on the sparse
briefing of this sub-issue, we are unable to conclude that Buzbee established he was
entitled to summary judgment on the usury defense and counterclaim. We therefore
must agree with Tran that Buzbee did not meet his summary judgment burden to
establish that no fact issues exist and that he was entitled to judgment as a matter of
law on the defense and counterclaim of usury, both of which could reduce the
recovery he may be entitled to under the note and forbearance agreement.
22 C. Campaign Contributions and Work
The parties’ remaining arguments concern Tran and Adams Tran’s alleged
contributions to and work for Buzbee’s mayoral campaign. Tran asserted
counterclaims for usury, breach of contract, and fraud.5 Adams Tran intervened and
asserted claims against Buzbee for breach of contract, fraud, and quantum meruit.
We address Tran’s and Adams Tran’s claims in turn.
Tran contends that Buzbee did not move for summary judgment on her
counterclaims for breach of contract and fraud, and therefore the trial court erred by
granting summary judgment on these counterclaims.
A summary judgment cannot grant more relief than that requested in the
motion. G & H Towing Co. v. Magee, 347 S.W.3d 293, 298 (Tex. 2011) (per curiam);
Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). If a court renders
summary judgment on claims not raised in a summary judgment motion, the
judgment is subject to reversal. Lehmann, 39 S.W.3d at 200; see also McConnell v.
Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (“A motion [for
summary judgment] must stand or fall on the grounds expressly presented in the
motion.”). This is true even if the nonmovant amends her pleadings after the motion
5 Tran also asserted a counterclaim for quantum meruit on Adams Tran’s behalf before Adams Tran filed a petition in intervention asserting this claim. Tran does not argue on appeal that the trial court erred by granting summary judgment on her counterclaim for quantum meruit. 23 was filed if the movant does not amend or supplement the motion to address claims
asserted in the amended pleading. Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d
476, 487 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). If a trial court renders
judgment on all parties’ claims, but a defendant only moved for summary judgment
on some of the plaintiff’s claims but not others, “the judgment is final—erroneous,
but final.” Lehmann, 39 S.W.3d at 200.
We agree with Tran that Buzbee did not move for summary judgment on her
counterclaim for breach of contract. Buzbee does not dispute this on appeal.6 The
summary judgment nevertheless dismissed all Tran’s counterclaims. Accordingly,
we conclude that the trial court erred by granting summary judgment on the breach
of contract counterclaim. See G & H Towing, 347 S.W.3d at 298; Lehmann, 39
S.W.3d at 200.
The question is a closer call regarding Tran’s fraud counterclaim. Tran raised
fraud as an affirmative defense to the 2010 loan and as a counterclaim regarding the
campaign contributions. The summary judgment motion challenged Tran’s fraud
defense, but the motion did not specifically mention the counterclaim regarding the
campaign contributions. However, the motion argued that Tran had no evidence of
the elements of her fraud allegations. Buzbee therefore sufficiently challenged
6 Buzbee’s brief includes a subheading stating that the summary judgment motion addressed each of Tran’s counterclaims, including breach of contract, but he provides no argument concerning the breach of contract counterclaim. 24 Tran’s fraud counterclaim on no-evidence grounds. See TEX. R. CIV P. 166a(i). On
appeal, Tran’s sole argument for reversing her fraud counterclaim is that Buzbee did
not move for summary judgment on the claim. She does not alternatively assert that
a fact issue exists on the claim. We therefore conclude that the trial court did not err
by granting summary judgment on Tran’s fraud counterclaim.
Adams Tran, on the other hand, contends that Buzbee did not move for
summary judgment on any of the claims asserted in the petition in intervention. We
agree. The motion did not mention Adams Tran or move for summary judgment on
any of his claims, and Buzbee does not dispute this on appeal.
Rather, Buzbee argues that the trial court’s order denying the Trans’ motions
for new trial expressly stated that it granted the summary judgment motion “PRIOR
to Adam[s] Tran’s Petition in Intervention.” However, the record does not support
this statement. Adams Tran filed the petition in intervention on September 5, 2023,
and the trial court signed the summary judgment order a week later on September
12, 2023. Thus, we conclude that contrary to the trial court’s statement in the order
denying the motions for new trial, Adams Tran filed his petition in intervention
before the trial court granted the summary judgment motion.
Buzbee further argues that even if Adams Tran timely intervened, the trial
court would not have abused its discretion by striking the petition. Buzbee urges this
Court not to consider the petition in intervention “because the issues raised would
25 complicate the proceedings due to a multiplication of the issues in the case-at-hand”
that will require consideration of “the dealings over the years that Buzbee had with
Adams Tran in addition to Tammy Tran.” Buzbee also argues that “Adams Tran’s
interest is still protected outside of this proceeding because he can pursue his
separate claim[s] against Buzbee, given that his involvement is different tha[n]
[Tran’s involvement] because he alleges work done for Buzbee.”
Rule 60 provides that “[a]ny party may intervene by filing a pleading, subject
to being stricken out by the court for sufficient cause on the motion of any party.”
TEX. R. CIV. P. 60. “The rule authorizes a party with a justiciable interest in a pending
suit to intervene in the suit as a matter of right.” Nghiem v. Sajib, 567 S.W.3d 718,
721 (Tex. 2019) (quoting In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex.
2008) (per curiam) (orig. proceeding)). An intervening party has a justiciable interest
if he could have brought any part of the same action in his own name or if he would
be able to defeat all or part of recovery had the suit been brought against him. Mass.
Bay Ins. Co. v. Adkins, 615 S.W.3d 580, 602 (Tex. App.—Houston [1st Dist.] 2020,
no pet.) (quotation omitted). An intervenor need not request the trial court’s
permission to intervene; rather, the party opposing intervention has the burden to
challenge it by filing a motion to strike. Nghiem, 567 S.W.3d at 721 (quoting Guar.
Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990)).
26 “Intervenors are parties to the lawsuit until the trial court grants a motion to strike.”
Mass. Bay. Ins., 615 S.W.3d at 602.
Buzbee had the burden to move to strike Adams Tran’s petition in intervention
if he wanted to challenge it, but he did not do so. See Nghiem, 567 S.W.3d at 721
(quoting Guar. Fed. Sav. Bank, 793 S.W.2d at 657). Buzbee’s remaining arguments
concern the test which reviewing courts use to determine whether a trial court abused
its discretion in ruling on a motion to strike. See Guar. Fed. Sav. Bank, 793 S.W.2d
at 657. But because Buzbee did not move to strike the petition in intervention, we
need not consider the merits of these arguments. See id. (“Without a motion to strike,
the trial court abused its discretion in striking [the] plea in intervention.”); see also
Nghiem, 567 S.W.3d at 721; Mass. Bay. Ins., 615 S.W.3d at 602.
We hold that the trial court erred by granting summary judgment on Tran’s
counterclaim for breach of contract and on all Adams Tran’s claims. We sustain in
part the Trans’ sole issue on appeal.
27 Conclusion
We affirm the trial court’s summary judgment order to the extent it dismissed
Tammy Tran and Tammy Tran Attorneys at Law, L.P.’s counterclaims for fraud and
quantum meruit. We reverse the remainder of the summary judgment order and
remand to the trial court for further proceedings.
David Gunn Justice
Panel consists of Justices Guerra, Gunn, and Dokupil.