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Estate of Montague v. Nationl Loan Investors, L.P.

If the obligor can challenge the reasonableness of the attorneys' fees despite the contractual provision, the holder also is able to prove that a reasonable attorneys' fee exceeds the contractual percentage in view of the Texas Supreme Court's holding that the provision is regarded as an agreement to indemnify the holder for expenses actually incurred.

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REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART

The Estate of Frank M. Montague, Jr. (“Estate”) and Virginia Montague, Individually and as Executrix of the Estate of Frank M. Montague, Jr. (“Virginia”) appeal a judgment rendered in favor of National Loan Investors (“NLI”) in a suit to collect on a note. The appellants raise three issues in their brief, asserting the trial court erred: (1) in disregarding the jury’s negative answer to an estoppel question; (2) in failing to disregard the jury’s answer to the amount due under the note because NLI is barred by limitations from recovering the entire note balance; and (3) in refusing to segregate or limit recoverable attorney’s fees. NLI asserts a cross-point contending that the trial court erred in failing to disregard the jury’s answer as to whether Frank (“Frank”) and Virginia had abandoned their homestead claim. We sustain the first two issues and reverse the trial court’s judgment. We render judgment that the Estate and Virginia are not estopped from claiming the Montague Ranch as homestead against the enforcement of the deed of trust referenced in NLI’s cause of action.

We further render judgment that NLI is barred from recovering each installment payment due under the note with the exception of the March 15, 1992 installment. Although we overrule the appellants’ issue regarding attorney’s fees, we remand the cause to the trial court to determine: (1) the amount of attorney’s fees to be awarded in view of our disposition of the damages award; and (2) the amount of damages recoverable by NLI for the March 15, 1992 installment payment.

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