
NO. 07-02-0380-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 15, 2002
______________________________

CINDY HILL,




		Appellant


v.

LUBBOCK NATIONAL BANK, 


		Appellee

_________________________________

FROM THE COUNTY COURT OF LAW NO. 2 OF LUBBOCK COUNTY;

NO. 2002-592,850; HON. DRUE FARMER, PRESIDING
_______________________________

Before QUINN and REAVIS JJ., and BOYD, SJ. (1)
	Appellee Lubbock National Bank (the Bank) obtained a final judgment against
appellant Cindy Hill (Hill) in Florida.  On March 20, 2002, the Bank filed the judgment in
Lubbock County pursuant to the Uniform Enforcement of Foreign Judgments Act (UEJA). 
See Tex. Civ. Prac. & Rem. Code Ann. §§35.001-35.008 (Vernon 1997).  Hill filed a motion
to void the judgment on April 19, 2002, and it was overruled by operation of law on June
3, 2002. (2)  Hill then filed a motion for new trial on July 11, 2002, which was denied by order
dated August 9, 2002.  Notice of appeal was filed on September 9, 2002.  The Bank has
now filed a motion to dismiss asserting that the notice of appeal was not timely filed.	When a foreign judgment is filed in Texas under the UEJA, it becomes a final,
appealable judgment on the date of filing.  Walnut Equipment Leasing Co., Inc. v. Wu, 920
S.W.2d 285, 286 (Tex. 1996).  A notice of appeal must then be filed within 90 days after
the judgment is filed if a party timely asserts a motion for new trial.  See Tex. R. App. P.
26.1(a).  Any motion to contest recognition of a foreign judgment filed within 30 days after
the filing of the foreign judgment operates as a motion for new trial.  See Moncrief v.
Harvey, 805 S.W.2d 20, 23 (Tex. App.--Dallas 1991, no writ).  Therefore, Hill's notice of
appeal was due to be filed on June 18, 2002, but was not filed until September 9, 2002. 
Furthermore, a timely motion to extend the deadline did not accompany or precede the
notice.    
	The notice of appeal being untimely,  we have no jurisdiction to consider this matter. 
Consequently, it is dismissed for want of jurisdiction.  
 
								Brian Quinn
								    Justice

Do not publish.
 

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2002). 
2. On June 11, 2002, the trial court also entered an order denying the motion to void the judgment.


hen due and owing results in damages . . . in the form of
interest costs of 18% per annum from September 1, 1997 until paid."  Next, via the petition
which Baker was directed to "read . . . carefully," Hoxie twice averred that Baker was
indebted to it not only in the amount of $1,025,636.00 but also for "interest thereon at the
rate of 18% per annum from September 1, 1997, until paid in full." (1) 
	Also admitted into evidence was testimony that Hoxie claimed an amount of interest
equal to $91,135.49.  This sum was sought as damages and purportedly equaled the
interest it was being charged once it acquired the combines.  Yet, while undergoing cross-examination, the representative for Hoxie admitted that the company had incurred no such
interest charges but, nonetheless, sought the $91,000 amount from its opponent.
	Once Hoxie completed its presentation of evidence, Baker moved for an instructed
verdict on the questions of breached contract and usury.  As to the latter, it was undisputed
that 1) there existed no agreement wherein Baker consented to pay any interest to Hoxie
for any purpose and 2) the interest which Hoxie attempted to capture from Baker
(irrespective of its characterization) equaled or exceeded 12% per annum.  Furthermore,
Baker argued that he established usury via "two different approaches."  The first concerned
the averments in the January 15th demand letter as well as the claim for $91,000 as
interest costs when no such costs were actually incurred.  The second involved the levy
of pre-judgment interest prior to the time authorized by statute.  Finally, both the debt
represented by the contract to purchase combines and the debt reflected in the $3137.71
open account were encompassed within the motion for instructed verdict.   
	Upon hearing argument from all involved, the trial court refused to direct a verdict
on the claim of breached contract.  Regarding the allegations of usury, however, it stated:
	. . . the court has viewed those letters - I think counsel is right, those letters
are a demand.  And I think that is what triggers the troublesome problem
here.  The court has always had trouble personally with that.  I don't like that
application of law.  I think it's harsh.  I think it's very, very harsh.  But I feel
like at this point, based on the record as it is at this point, that the Court has
at this time no choice but to grant, as a matter of law, the motion for
instructed verdict on usury under both positions which the defendant has
pointed out.  And the court at this time will do so.  (Emphasis added).
	Thereafter, the trial court submitted the issue of breached contract to the jury.  The
latter found that no breach had occurred.  Consequently, judgment was entered declaring
that Hoxie recover nothing against Baker but that Baker recover $251,884.95 and
attorney's fees from Hoxie.
Issue One

	Hoxie initially contends that the trial court erred by instructing a verdict on the claim
of usury.  This is allegedly so because 1) no debt was owed by Baker, "and in absence of
an absolute obligation to pay a definite principal amount, there cannot be a charge of
usurious interest," 2) Hoxie did not charge a usurious interest, but if "it did, that charge was
[subsequently] corrected . . ." and 3) any interest levied on the account receivable was
never communicated to Baker.  (Emphasis added).  We sustain and overrule the point in
part.
 a.	Contingent Obligation and Correction
	The contentions regarding the contingent nature of the debt and the subsequent
correction (if usury was actually sought) were not urged at the time the trial court debated
whether to grant an instructed verdict. (2)  Hoxie did not broach these arguments until it filed
its motion to vacate the judgment or, alternatively, for new trial.  And, therein lies the
problem, for authority requires that objections to a trial court's proposed conduct be urged
in a timely manner.  Tex. R. App. P. 33.1(a); St. Paul's Surplus Lines, Co. v. Dal-Worth
Tank Co., 974 S.W.2d 51, 53 (Tex. 1998).  The requirement to act timely encompasses
not only the objection itself but also all the grounds allegedly supporting it.  In other words,
both the objection and all legal basis for it must be timely asserted.  Credille v. State, 925
S.W.2d 112, 115-16 (Tex. App.--Houston [14th Dist.] 1996, pet. ref'd.).  Furthermore, an
objection is considered timely urged when asserted at the earliest opportunity, Russell v.
State, 904 S.W.2d 191, 196 (Tex. App.--Amarillo 1995, pet. ref'd.), or when the potential
error becomes apparent.  Perry v. State, 957 S.W.2d 894, 896 (Tex. App.--Texarkana
1997, pet. ref'd.).   Finally, including the objection and grounds in a motion for new trial
does not satisfy the contemporaneous objection rule if the complaint could have been
urged earlier.  St. Paul's Surplus Lines, Co. v. Dal-Worth Tank Co., 974 S.W.2d at 53.  
	Here, the parties debated the propriety of the motion for instructed verdict before
the motion was granted.  At no time during that debate did anyone posit that the motion
should be denied because the debt which Hoxie attempted to collect from Baker was a
contingent debt or that the demand for interest contained in the January 15th missive was
a mistake which was subsequently corrected.  So, the contentions were not urged at the
earliest possible opportunity or at a time which afforded the trial court a chance to avoid
the supposed error.  Thus, Hoxie waived them, and its motion for new trial did not cure the
situation.
	b.	Demanding Usurious Interest
	Next, in reference to the argument that Hoxie never demanded usurious interest,
the implement dealer propounds several arguments.  They concern both the debt
represented by the supposedly breached purchase agreement and that represented by the
account receivable.  We address each in turn.
		1.	Breached Purchase Agreement
	As to whether Hoxie sought usurious interest while attempting to collect damages
due to the allegedly breached sales agreement, we need address only one ground of
Baker.  It concerns the January 15th letter and its substance.  Again, Baker contended at
trial that it was a vehicle through which usurious interest was demanded. According to
Hoxie, however, the letter did not constitute a "charge" of interest for purposes of the usury
statutes.  Rather, it merely informed its opponent 1) that the petition "may" be filed and 2)
of interest costs Hoxie incurred in acquiring and holding the combines for Baker.  We
disagree with Hoxie.
	Section 305.001 of the Texas Finance Code penalizes one for contracting for,
charging, or receiving interest that is greater than the amount authorized by law.  Tex. Fin.
Code Ann. §305.001(a) (Vernon 1998).  Furthermore, the solicitation, through a demand
letter, of interest exceeding that allowed by law may constitute a "charge" for purposes of
§305.001.  Woodcrest Assoc., Ltd. v. Commonwealth Mortgage Corp., 775 S.W.2d 434,
437 (Tex. App.--Dallas 1989, writ denied); Coppedge v. Colonial Sav. & Loan Ass'n, 721
S.W.2d 933, 936 (Tex. App.--Dallas 1986, writ denied).  All depends upon the intent of the
party sending the letter.  See Nat'l Bond & Inv. Co. v. Atkinson, 254 S.W.2d 885, 888 (Tex.
Civ. App.--Amarillo 1952, writ dism'd w.o.j.) (allowing the admission of parol evidence to
determine whether the parties intended to make a usurious loan); Great Southern Life Ins.
Co. v. Williams, 135 S.W.2d 241, 249 (Tex. Civ. App.--Amarillo 1939, writ dism'd judgmt.
cor.) (stating that an agreement should not be construed as usurious unless "it was the
manifest intention of the lender to charge and collect more interest than that . . . permitted
by law").  And, by intent we do not mean an intent to engage in usury.  Rather, the intent
to assess  the rate charged is determinative.  William C. Dear & Assoc., Inc. v. Plastronics,
913 S.W.2d 251, 254 (Tex. Civ. App.--Amarillo 1996, writ denied); see Cochran v.
American Sav. & Loan Ass'n, 586 S.W.2d 849, 850 (Tex. 1979) (stating that the focus is
upon the intent to make the bargain as opposed to the intent to charge a usurious interest
rate).  
	Next, while parol evidence may be utilized, National Bond & Inv. Co. v. Atkinson,
254 S.W.2d at 888, the document containing the allegedly usurious demand is the primary
source from which to devine the drafter's intent.  It must be construed as a whole.  Parhms
v. B & B Ventures, Inc., 938 S.W.2d 199, 203 (Tex. App.--Houston [14th Dist.] 1997, writ
denied).  Furthermore, if susceptible to two or more reasonable but differing interpretations,
the interpretation adopted must be that which renders the document non-usurious.  Id.;
Great Southern Life Ins. Co. v. Williams, 135 S.W.2d at 249.  This is so because we
presume that the parties intended to comply with the law.  Id.  Finally, only when it can be
said that, upon affording the document a fair and reasonable construction, the demanding
party intended to levy the interest rate charged, may we find usury (assuming the rate
levied exceeded that allowed by law).  Id.  With this said, we turn to the January 15th letter
and its content.
	Immediately, we note the two components of the January 15th correspondence. 
They consist of a cover letter and a draft of an original petition.  Furthermore, in directing
Baker, via the letter, to "[p]lease read the allegations contained in the petition carefully,"
Hoxie undoubtedly intended both items to be considered as part of its communication. 
Next, in so considering them, we discover 1) an allusion to a breach of contract and "sums
due and owing," 2) the statement that "a lawsuit will be filed within the next ten (10) days,"
3) reference to Hoxie suffering damages in the "form of interest costs of 18% per annum"
from the date performance was allegedly due "until paid," 4) a statement that Baker is
indebted to Hoxie "in the amount of $1,025,636.00, plus interest thereon at the rate of 18%
per annum from [the date performance was due] until paid in full," and 5) a prayer
demanding recovery from Baker of the $1,025,636.00 sum along with interest "on the
purchase price from September 1, 1997, at the rate of 18% per annum until paid in full." 
(Emphasis added).  Each of these allegations was set forth in a direct and positive manner. 
 See Parhms v. B & B Ventures, Inc., 938 S.W.2d at 203 (stating that a contract will not be
read as violative of the usury laws unless by its "express and positive terms" it evinces an
intent to exact more interest than allowed by statute).  That is, Hoxie did state in the cover
letter that the accompanying petition "may be filed of record."  Yet, the specific claims and
demands in the cover letter itself and the petition were not worded in a contingent manner. 
Rather, Hoxie expressly and unequivocally informed Baker of the sums it considered due
from him.  In other words, while Hoxie may have left open the possibility that some other
petition could be filed, nowhere did it suggest that the claims uttered in the petition were
less than certain or that they would be different if another petition were filed.  Again, Hoxie
told Baker on or about January 15th not only that a lawsuit "will be filed" but also that the
specific sums mentioned were purportedly due and recoverable from him.  And, it is the
words in the January 15th communication, not what Hoxie may or may not say in the
future, which control.   
	Furthermore, that the interest sought was of the type within the scope of §305.001
of the Finance Code is beyond reasonable dispute, as we now illustrate.  For purposes of
§305.001, interest means "compensation for the use, forbearance, or detention of money." 
Tex. Fin. Code Ann. §301.002(a)(4) (Vernon Supp. 2001).  Furthermore, money is detained
under §301.002(a)(4) when a debt has become due and payment has been withheld. 
Sunwest Bank v. Gutierrez, 819 S.W.2d 673, 675 (Tex. App.--El Paso 1991, writ denied). 
Hoxie argues that the interest it sought through the January 15th cover letter was not to
recompense it for Baker's withholding of payment.  Rather, it was to reimburse it for
interest it incurred in obtaining the combines and performing the agreement.  Yet, the
manner in which the demand for same was worded belies the contention.  For instance,
each time it mentioned interest, it appended to the reference the phrases "until paid" or
"until paid in full."  The use of those phrases is most telling for they indicate that the interest
due would continue to accrue until the principal or debt was paid.  And, if it were to
continue to accrue until the debt from Baker to Hoxie was paid, the interest in question
could hardly be that incurred by Hoxie vis-a-vis some creditor of its own.  Additionally, if it
were of the latter type (i.e. interest accruing on a debt Hoxie owed to some third-party), it
would stop accruing when Hoxie paid its own creditor.  However, as worded in the January
15th correspondence, the interest was to accrue until Baker paid Hoxie.  Given this, we can
only conclude that the interest at issue represented compensation for Baker's unauthorized
withholding of payment to Hoxie, i.e. compensation for the detention of money.  And, being
of such ilk, we must also conclude that it fell within the ambit of §§301.002(a)(4) and
305.001(a) of the Finance code.  There is no other reasonable interpretation of the
demand. (3) 
	Finally, it is undisputed that neither Hoxie nor Baker agreed to pay interest at any
particular rate.  Thus, the maximum which Hoxie could levy upon Baker for detaining
payment was six percent per annum.  Tex. Fin. Code Ann. §302.002.  Similarly clear is the
fact that Hoxie demanded 18% per annum through the January 15th letter and attachment. 
Thus, because the 18% demanded was three times more than allowed by statute, the levy
was usurious.  
	In sum, the January 15th letter and attachment are not susceptible to reasonable
but different interpretations.  Only one construction can be afforded it, and that construction
reveals an intent to charge Baker interest at 18% per annum for detaining payment of the
monies allegedly due Hoxie under the contract to purchase the combines.  Having
established that the demand was usurious as a matter of law, Baker was entitled to the
instructed verdict.  Thus, we find no error in the trial court granting it.
 	2. 	Account Receivable
	Regarding the account receivable, Hoxie posits, in effect, that Baker failed to prove
that the dealer communicated any interest charge to him.  And, without such a
communication, according to Hoxie, there can be no usury.  We agree.  
	As previously mentioned, to come within the ambit of §305.001(a) of the Finance
Code, one must charge an excessive rate of interest.  Furthermore, before the rate is
deemed charged it must be communicated to the debtor.  George A. Fuller Co. v. Carpet
Serv., Inc., 823 S.W.2d at 605. (4)   According to the record before us, Hoxie's practice
included automatically levying an interest charge of 18% per annum on tardy accounts
receivable.  However, when asked if he paid any interest charges on the account
receivable allegedly due Hoxie, Baker replied: "No I didn't."  He then explained that he did
not do so because he 1) "was never billed for it" and 2) received no statement from Hoxie
showing such charges.  Given Baker's testimony, the trial court could not find, as a matter
of law, that Hoxie communicated the charge to Baker.  And, because it could not so find,
it was also barred from concluding that Baker established the elements of usury vis-a-vis
the account receivable. (5) 
	Furthermore, we reject, for several reasons, Baker's argument that when someone
merely testifies at trial about a creditor's accounting practices the testimony ipso facto
constitutes a charge of interest.  First, the testimony referred to by Baker entailed Hoxie's
president simply describing for the fact-finder how the company's computer automatically
calculated interest due on outstanding accounts.  Yet, at no time did that individual, or
anyone else, inform the court at trial that Hoxie wanted interest at 18% per annum as part
of any judgment in its favor.  Again, the intent to levy a particular rate upon a particular debt
must be "express and positive" before it can be said that the creditor violated the usury
laws.  Parhms v. B & B Ventures, Inc., 938 S.W.2d at 203.  So too must the demand for
the interest be communicated to the debtor.  George A. Fuller Co. v. Carpet Serv., Inc.,
823 S.W.2d at 605.  Merely describing for the fact-finder a creditor's internal accounting
practices (without more and in the face of the debtor's own testimony that it never received
an invoice containing an interest charge) is not the express and positive demand for
usurious interest required under Parhms and Fuller.
	Secondly, like pleadings, testimony given at trial is directed to one other than the
opposing party.  It is presented to the fact-finder, whether it be a judge or jury, to be used
to assess the validity of a claim or defense.  So, if the Supreme Court is correct in holding
that a request for interest in a pleading is not a charge for purposes of the usury laws since
the pleading is directed to someone other than the debtor, George A. Fuller Co. v. Carpet
Serv., Inc., 823 S.W.2d at 605, then it logically follows that testimony given at trial cannot
constitute a charge either.  Again, this is so because that testimony, like the pleading, is
directed to someone other than the debtor.
	In sum, Baker failed to establish, as a matter of law, that Hoxie charged him an
usurious rate of interest on the outstanding account receivable.  Therefore, granting him
an instructed verdict on that aspect of his usury claim was improper.    
 Issue Two

 Hoxie next contends that it proved, as a matter of law, that Baker owed it the sum
reflected in the account receivable.  Additionally, the trial court's failure to award it that sum
of money allegedly constituted error.  We agree.

	The evidence of record indisputably illustrates that Baker incurred a debt to Hoxie
in the amount of $3137.70.  So too does it establish, as a matter of law, that the debt was
unpaid at time of suit and trial. (6) 
	Furthermore, we reject Baker's suggestion that Hoxie's failure to request that the
issue be submitted to the jury barred and bars recovery.  This is so because one need not
request a jury issue on claims established as a matter of law.  Gray v. West, 608 S.W.2d
771, 778 (Tex. Civ. App.-Amarillo 1980, writ ref'd n.r.e.).  And, as illustrated above, Hoxie
established his right to recovery upon the open account as a matter of law.
	Nor do we accept Baker's proposition that the claim was barred because Hoxie
demanded an usurious rate of interest.  This is so because, as previously discussed, the
transaction did not involve usury.
	Having proven, as a matter of law, its entitlement to recovery upon the account
receivable, judgment should have been entered in favor of Hoxie on that claim.  Because
it was not, the trial court erred.   
Issue Four - Attorney's Fees

	Finally, Hoxie contends that the trial court erred in awarding Baker attorney's fees. 
Its argument is two-fold.  First, it complains that no statute authorized the award and
second, that Baker failed to segregate, via a jury issue, those attorney's fees subject to
recovery from those which were not.  We overrule each aspect of the contention.

	Statutory Basis for Attorney's Fees

	Through his counterclaim, Baker pled causes of action sounding in usury and
declaratory judgment.  Regarding the former, statute declares that a "person who is liable
under Section 305.001 or 305.002 [of the Finance Code] is also liable for reasonable
attorney's fees set by the court."  Tex. Fin. Code Ann. §305.003.  Since Baker pled for
attorney's fees via his counterclaim and Hoxie was found liable under §305.001 of the
Finance Code, Baker was entitled to recover such fees from Hoxie. (7)
	Regarding the cause seeking declaratory relief, statute again permits the award of
"reasonable and necessary attorney's fees as are equitable and just."  Tex. Civ. Prac. &
Rem. Code Ann. §37.009 (Vernon 1997).   Moreover, Baker was not the sole litigant
invoking the Uniform Declaratory Judgments Act.  Hoxie did so as well.  Under these
circumstances, the trial court was entitled to award fees to which ever litigant prevailed,
such as Baker.  See First City Nat'l Bank v. Concord Oil Co., 808 S.W.2d 133, 138-39
(Tex. App.--El Paso 1991, no writ) (holding that when either the plaintiff or plaintiff and
defendant seek declaratory relief, attorney's fees may be awarded to either party); Ritchie
v. City of Fort Worth, 730 S.W.2d 448, 451 (Tex. App.--Fort Worth, writ ref'd n.r.e.) (holding
the same); First Nat'l Bank v. John E. Mitchell Co., 727 S.W.2d 360, 363 (Tex.
App.-Amarillo 1987, writ ref'd n.r.e.) (stating that when the plaintiff seeks declaratory relief,
the trial judge may award attorney's fees to any party).  (8) 

	Segregation of Fees

	As to the contention that Baker failed to segregate, via a jury issue, those attorney's
fees subject to recovery from those which were not, we conclude that the issue was
waived.  Generally, the failure to segregate attorney's fees in a case containing multiple
causes of action, when only some of which entitle the recovery of fees, can result in the
recovery of no fees.  Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1996).  Yet, if no
one objects to the situation, then the objection is waived.  Id. 
	Below, Hoxie objected to the issue involving attorney's fees "because [the court]
didn't segregate or put in there which amount of attorneys fees was for usury or which
amount . . . was for declaratory judgment."  (Emphasis added).  In effect, complaint was
made regarding the segregation of fees incurred in prosecuting the usury claim (which fees
were authorized by statute) from fees incurred in prosecuting the declaratory action (which
fees were authorized by statute).  Nothing was said, however, about fees "applicable to
[the] defense against Hoxie's claims and the fees applicable to Baker's usury claim." 
(Emphasis added).  In other words, no one complained about the segregation of fees
recoverable under statute from those generally incurred by Baker in defending against the
suit and which allegedly are not recoverable.  And, it is the latter complaint that is urged
on appeal.  So, given that the contention before us does not comport with the objection
raised below, that before us was and is waived.  Rodriquez v. State, 955 S.W.2d 171, 177
(Tex. App. - Amarillo 1997, no pet.) (stating that the issue asserted on appeal must
comport with the objection asserted below, otherwise it is waived). 
	For the reasons stated above, we reverse those portions of the judgment 1)
awarding damages against Hoxie for allegedly charging Baker usurious interest upon the
account receivable and 2) denying Hoxie recovery upon the account receivable due from
Baker.  We further order that Hoxie recover from Baker the sum of $3137.70 plus interest
at the rate of 1) six percent a year from thirty days after the account receivable became
due to the day before judgment and 2) ten percent a year from the date of judgment until
paid.  However, we are unable to render judgment on the entire cause for two reasons. 
First, the date on which the account receivable became due cannot be determined from
the record before us.  Second, the record also fails to illustrate what portion of the
$251,884.95 awarded to Baker as damages for usury is comprised of the damages
attributable to Hoxie's alleged charge of usury on the account receivable.  Thus, we
remand the cause to the trial court for further proceedings commensurate with this opinion. 


								Brian Quinn
								   Justice



Publish.


1. The $1,025,636.00 referred to the purchase price of the combines.
2. Nor did Hoxie plead that it made a bona fide mistake which it subsequently corrected (assuming a
mistake was made) in response to Baker's counterclaim.  It is clear that defenses such as bona fide mistake
and correction must be affirmatively pled before one can claim their protection at trial.  Tri-county Farmers Co-op v. Bendele, 641 S.W.2d 208, 209 (Tex. 1982).  Thus, in failing to affirmatively plead them, Hoxie waived
them.
3. Hoxie also contends that the petition itself could not be the basis for a usury claim given the holding
in George A. Fuller Co. v. Carpet Serv., Inc., 823 S.W.2d 603 (Tex. 1992).  There, the Supreme Court
declared that initiating suit via a pleading which demands excessive interest does not constitute usury.  Id. at
605.  This is so because the pleading is addressed to the court and not a demand to the opposing party.  Id. 
While this may be true, we do not have a situation wherein Hoxie simply filed a petition with the court.  Rather,
it attached a copy of same to a demand letter and expressly directed Baker to "read the allegations . . . in the
petition carefully."  In attaching it to the demand letter and directing Baker to read it, the petition became part
of Hoxie's demand.  Indeed, the facts before us are akin to those in Moore v. Sabine Nat'l Bank, 527 S.W.2d
209 (Tex. Civ. App.--Austin 1975, writ ref'd n.r.e.) wherein the creditor attached a copy of the petition to its
notice of intent to repossess.  In so attaching the petition, the creditor did more than simply inform the court
of its claims; rather, the document constituted a part of the demand upon the debtor.  More importantly, in
discussing Sabine in George A. Fuller, the Supreme Court distinguished it from the Fuller facts because the
petition had been attached to the notice of intent to repossess.  So, because the Supreme Court did not
overrule Sabine, it remains authoritative precedent.
4. In holding that the charge must be communicated to the debtor, the Supreme Court was not speaking
of a matter irrelevant to the disposition of the case, as suggested by Baker.  Before the court was "the
question of whether a pleading containing a claim for usurious interest is a document which may charge
interest for purposes of imposing usury penalties."  George A. Fuller Co. v. Carpet Serv., Inc., 823 S.W.2d
603, 603 (Tex. 1992).  In answering that question, the court endeavored to define what constituted a charge
of interest.  And, in arriving at that answer, it concluded that one of the components of a charge involved the
communication of the interest rate to the debtor, and that merely filing a petition with the court did not
constitute such a communication.  Id. at 605.   So, the discussion regarding the need to communicate the
charge was not dicta.   
5. Our conclusion also negates Baker's proposition that Hoxie violated the usury laws by charging
interest at a time when interest could not be charged.  Simply put, if no interest charge on the account
receivable was ever communicated to Baker, it can hardly be said that Hoxie charged Baker interest at a time
when it could not. 
6. Baker posits that the debt was not outstanding at the time of trial because he had paid the obligation. 
The alleged payment came in the form of a cashier's check in the amount of $3137.70 from Baker to Hoxie. 
That Baker delivered the instrument to Hoxie is alone inconsequential for the mere tender of an instrument
does not constitute payment of the underlying debt.  In re Jones, 978 S.W.2d 648, 654 n.4 (Tex. App.-Amarillo
1998, orig. proceeding); Fillion v. David Silvers Co., 709 S.W.2d 240, 246-47 (Tex. App.-Houston [14th Dist.]
1986, writ ref'd n.r.e.); Home Ins. Indem. Co. v. Gutierrez, 409 S.W.2d 450, 456 (Tex. Civ. App.-Corpus
Christi 1966, writ ref'd. n.r.e.).    Rather, the parties must agree that it is payment before it can be deemed
such.  Fillion v. David Silvers Co., 709 S.W.2d at 246; Home Ins. Indem. Co. v. Gutierrez, 409 S.W.2d at 456.
Furthermore, nothing of record suggests that Hoxie agreed to accept, either expressly or impliedly, the check
as payment.  Indeed, the company did not deposit or otherwise cash the instrument or otherwise "appl[y] it
on the debt."  So, it is unquestionable that the debt remained outstanding at time of trial.     
7. Hoxie initially argues that Baker failed to pray for attorney's fees in his live pleading.  However,
perusal of his Second Amended Original Answer and Counterclaim discloses otherwise.  Therein, he not only
mentioned his right to recover such fees specifically  under §37.009 of the Texas Civil Practice and Remedies
Code but also included a general prayer for same.  Furthermore, nothing of record suggests that Hoxie
specially excepted to the averments.  Given this, we conclude the allegations were sufficient to place Hoxie
on notice of its potential liability for attorney's fees and to preserve the claim for fees. 
8. Incidentally, Hoxie does not contend that its request for declaratory relief was baseless.  It would
seem as though such an argument is a prerequisite to contending that Concord Oil, Ritchie, and John E.
Mitchell did not apply.
