                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-19-00033-CV


                                 SERGIO ZAPATA, APPELLANT

                                                   V.

                                  EMILIO C. SOLIS, APPELLEE

                         On Appeal from the County Court at Law No. 2
                                     Webb County, Texas
            Trial Court No. 2018CVH000127C3, Honorable Victor Villarreal, Presiding

                                             May 1, 2020

                                 MEMORANDUM OPINION
                         Before QUINN, C.J., and PIRTLE and DOSS, JJ.


        Appellee Emilio C. Solis sued Appellant Sergio Zapata for breach of contract.

Zapata’s answer included a sworn affirmative allegation that Solis was liable to him for

the usury penalty found in Texas Finance Code section 305.001.1 By amended petition,


        1 TEX. FIN. CODE ANN. § 305.001 (West 2016) (“Liability for Usurious Interest”). In 2005, the
Legislature modified section 305.001 by adding “in connection with a transaction for personal, family, or
household use” in subsection (a) and by adding subsection (a-1) for loans in connection with commercial
transactions. See Act of May 29, 2005, 79th Leg., R.S., ch. 1018 § 2.05, 2005 TEX. GEN. LAWS 3438, 3440
(current version at TEX. FIN. CODE ANN. § 305.001(a)).

       In his brief, Zapata argues the trial court erred by denying him the penalties under section
305.001(a). The record contains no finding or evidence that the transaction in question was “for personal,
Solis added promissory estoppel as a cause of action. Following a bench trial, the court

rendered judgment in favor of Solis on his promissory estoppel claim. Zapata appealed, 2

presenting one issue. We overrule that issue and affirm the judgment of the trial court.


                                            Background


        Although the trial court’s judgment and Appellant’s brief each recite the case was

tried on stipulated facts, no such stipulations appear of record. The reporter’s record

consists only of one exhibit volume containing two exhibits. There is no transcription of

any testimony or argument. The first exhibit is a notarized instrument signed by Zapata

and Solis on March 27, 2017. According to the terms of the document, Zapata promised

to pay Solis the total sum of $20,000. That amount consisted of $15,000 principal and

interest of “$5,000 as per three months.”              The second exhibit purports to be the

reproduction of a simple interest calculation that indicates an annual interest rate of

120.45%.


        The judgment contained findings referable to the promissory estoppel claim only:

(1) Zapata made a promise to Solis; (2) it was foreseeable that Solis would rely on

Zapata’s promise; (3) Solis detrimentally relied on Zapata’s promise and suffered

damages of $15,000; (4) Solis is entitled to “expenses and court costs”; (5) Solis is entitled

to recover prejudgment interest; and (6) Solis is entitled to recover post-judgment interest.




family, or household use.” Although we hold Appellant did not prove usury as a matter of law, we further
note that Zapata failed to prove a right to recover civil penalties under section 305.001(a).
        2
        This appeal was transferred to this Court from the Fourth Court of Appeals by order of the Texas
Supreme Court. TEX. GOV’T CODE ANN. § 73.001 (West 2013).

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The judgment awarded Solis $15,000 along with prejudgment interest of $180, court costs

of $287, and post-judgment interest at 5% per annum.


                                          Analysis


       In his only issue, Zapata argues that the trial court committed reversible error by

rendering judgment as it did “because the contract . . . is usurious, contrary to public policy

under the provisions of § 302.001(b), of the Texas Finance Code, and therefore

unenforceable.”    (emphasis added).      Because usury was pleaded as an affirmative

defense and a counterclaim, Zapata must demonstrate on appeal that the evidence

conclusively established all vital facts in his favor as a matter of law. See Dow Chem.

Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001) (noting party attacking legal sufficiency

of an adverse finding on an issue on which it had the burden of proof must show, as a

matter of law, all vital facts in support of the issue); Geis v. Colina Del Rio, LP, 362 S.W.3d

100, 111-12 (Tex. App.—San Antonio 2011, pet. denied). We indulge every reasonable

inference to support the judgment, crediting favorable evidence if a reasonable factfinder

could and disregarding contrary evidence unless a reasonable factfinder could not. City

of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005).


       Despite Zapata’s statement that the trial court tried the suit based upon the

stipulations of the parties, there is no document in the record evidencing that the parties

submitted their controversy upon an agreed statement of facts, or that any stipulated facts

were even introduced. This is important because if the parties had presented the court

with an agreed statement of facts in conformity with Texas Rule of Civil Procedure 263,

the analysis on appeal would be restricted to whether the trial court properly applied the



                                              3
law to the facts; our review would be “limited to those [agreed] facts unless other facts

are necessarily implied from the express facts in the statement.” State Farm Lloyds v.

Kessler, 932 S.W.2d 732, 735 (Tex. App.—Fort Worth 1996, writ denied) (alteration

added). Contrary to Zapata’s suggestion of a trial upon stipulated facts, the judgment

refers to the trial court resolving “questions of . . . fact,” which could not have occurred if

the facts were stipulated (judicial admission). Given the state of the record, this Court

holds that our review is of a judgment following an ordinary bench trial rather than an

agreed case or a trial on stipulated facts. See Hutcherson v. Sovereign Camp, W.O.W.,

112 Tex. 551, 555, 251 S.W. 491, 492 (1923) (explaining that in a case tried on agreed

facts “the agreed statement is to be considered in the light of well defined legal limitations,

and in the nature of a special verdict, it admits there is no dispute as to the facts, and

constitutes a request by each of the litigants for a judgment, which each contends arises

as a matter of law from the agreed facts.”).


       A usurious transaction consists of: “(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.” First Bank v. Tony’s Tortilla Factory, 877

S.W.2d 285, 287 (Tex. 1994). It was Zapata’s responsibility to show from the entire record

his usury defense and counterclaim as a matter of law. Dow Chem. Co., 46 S.W.3d at

241-42. While Zapata designated two exhibits for the reporter’s record, he fails to present

this Court with a complete record. Pursuant to Texas Rule of Appellate Procedure

34.6(c), an appellant may present an appeal on a partial reporter’s record if he includes

in the request for the reporter’s record a statement of the points or issues to be presented

on appeal; he will then be limited on appeal to only those points or issues raised. TEX. R.


                                               4
APP. P. 34.6(c)(1); Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002) (per curiam). A

copy of the request must be filed with the trial court clerk. TEX. R. APP. P. 34.6(b)(2).

When an appellant fails to file the statement of appellate points or issues, this Court must

presume that the material missing from the reporter’s record is relevant and supports the

trial court’s judgment. See Bennett, 96 S.W.3d at 229 (stating that “had [appellant]

completely failed to submit his statement of points or issues, Rule 34.6 would require the

appellate court to affirm the trial court’s judgment”); In re J.S.P., 278 S.W.3d 414, 418

(Tex. App.—San Antonio 2008, no pet.) (same).            Here, Zapata neither presents a

complete reporter’s record nor filed a statement of the points or issues which he intended

to present on appeal as required by Rule 34.6(c)(1). We therefore presume the omitted

portions of the record are relevant and support the trial court’s rejection of Zapata’s usury

affirmative defense and counterclaim and affirm the trial court’s judgment. Bennett, 96

S.W.3d at 229.


                                         Conclusion


         Having overruled Zapata’s sole issue on appeal, we affirm the judgment of the trial

court.




                                                         Lawrence M. Doss
                                                            Justice




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