Opinion

Tony's Tortilla Factory, Inc. v. First Bank

  • 857 S.W.2d 580
  • 1993 Tex. App. LEXIS 880
  • 1993 WL 81228
Court
Texas Court of Appeals, 1st District (Houston)
Filed
Mar 25, 1993
Status
Published
Author
Bass
On the bench
Bass, Mirabal, O'Connor
Cited by
7 cases
Authority
More cited than 7.9%

Reversed on other grounds by First Bank v. Tony's Tortilla Factory, Inc., 37 Tex. Sup. Ct. J. 793 (1994)

plea in intervention filed two weeks before trial setting

How later courts described this case

  • plea in intervention filed two weeks before trial setting
  • “If a party files a proper motion for new trial that is supported by sufficient affidavits alleging jury misconduct, the trial court must conduct a hearing.”

Written by the judges who cited it.

The opinion

SAM BASS, Justice,

concurring.

I agree with the majority, in their discussion of the appellants’ first point of error, that there was evidence of probative force to raise a fact issue for the jury on whether First Bank’s overdraft protection to the Factory constituted a loan. There is no holding from the Texas Supreme Court that payment of an overdraft is a loan as a matter of law and, therefore, I would not so conclude, as the majority does. See Bryan v. Citizens Nat’l Bank, 628 S.W.2d 761 , 763 n. 2 (Tex.1982); see also Williams v. Cullen Center Bank & Trust, 685 S.W.2d 311, 312 (Tex.1985).

I agree with the majority’s discussion concerning the obligation to pay principal and compensation greater than allowed by law. Accordingly, along with the majority, I sustain the appellants’ first point of error, reverse the judgment in favor of First Bank on the usury cause of action, and remand that cause of action for trial.

I agree with the discussion and holdings of the majority on the alleged jury misconduct and the plea in intervention.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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