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

> Texas Court of Appeals, 1st District (Houston) · March 25, 1993 · 857 S.W.2d 580

URL: https://www.frixlaw.com/law-library/cases/9668880

## Case

- **Full name:** TONY’S TORTILLA FACTORY, INC., Ray Villasana, Betty Villasana, Emma Romero Villasana, Gudelia Villasana Villegas, and Henry Villasana, Appellants, and Mary Esther Villasana Wigley, Aurora Villasana Stanley, and Linda Villasana Zepeda, Appellants/Intervenors, v. FIRST BANK and Sam J. Brown, Trustee, Appellees
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** March 25, 1993
- **Citations:** 857 S.W.2d 580; 1993 Tex. App. LEXIS 880; 1993 WL 81228
- **Precedential status:** Published
- **Opinion:** Concurrence by Bass
- **Judges:** Bass, Mirabal, O'Connor
- **Cited by:** 7 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by First Bank v. Tony's Tortilla Factory, Inc., 37 Tex. Sup. Ct. J. 793 (1994).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9668880

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9668880. Public record. Not legal advice.