Date: 12-23-1999

Case Style: Pierce Marshall, Executor of the estate of J. Howard Marshall, II v. Wells Fargo Bank (Texas) N.A. f/k/a First Interstate Bank of Texas, N.A. Houston, Texas successor administrator with will annexed of the estate of Jewell Diane Walker, and Charl

Case Number: 92-002284

Judge: Unknown

Court: 157th District Court, Harris County, Texas

Plaintiff's Attorney: Susan Louise Kopecky, of Porter & Hedges, Houston, Texas, Randall Lamb, of Dinkins, Kelly, Lenox & Lamb, Houston, Texas, and Daniel K. Hedges, Porter & Clements, Houston, Texas.

Defendant's Attorney: Dan McEvily, Daniel V.S. McEvily, and Tom Alexander, of Alexander & Associates, Houston, Texas.

Description: Common-Law Usury - J. Howard Marshall (Marshall) sued Jewell Diane ("Lady") Walker's estate in an attempt to recover the value of gifts he had given to Walker during their lengthy relationship.

Marshall met Walker in 1982. In 1985, Walker began ordering jewelry from Duggan. Walker paid for the jewelry with checks signed and otherwise left blank by Marshall. In 1988, Marshall, Walker, and Duggan met and discussed setting up a revolving account with Duggan into which Marshall would pay $20,000 to $25,000 a month. The credit limit on the account was to be $350,000. Marshall signed a letter personally guaranteeing Walker's purchases.

After Walker's death in 1991, Marshall's son and two attorneys went to Duggan's business to look into the account. The account ledger indicated the following: (1) Duggan was charging Marshall 20 percent interest, which totaled $274,000; (2) Marshall had paid Duggan $908,000 in purchases; and (3) Duggan had paid Walker $224,000 in pass-throughs.

After Marshall filed suit against Walker's estate to recover the value of everything he had given her, Duggan intervened to attempt collection of a $425,000 balance Duggan claimed Marshall and/or Marshall Petroleum allegedly owed on the open account with Creative Designs. Marshall pleaded usury as an affirmative defense and filed a counterclaim for common-law usury and for penalties pursuant to TEX. FIN. CODE ANN. §§ , (Vernon 1998).

Marshall died before the trial of the case, and the suit was continued by B. Pierce Marshall as executor of Marshall's estate.

Outcome: The jury found that Marshall had guaranteed payment of the Creative Designs account and that the balance of the account, considering the cost of the goods and services, interest to October 31, 1991, and sales tax, was $232,500. The jury also found that Marshall and Duggan had agreed to a 20 percent interest rate. The trial court, however, rendered judgment that Duggan take nothing and that Marshall's estate recover the $191,800 Marshall had paid in usurious interest to Duggan.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Duggan appealed. Court of Appeals of Texas, First District modified the judgment to reflect an award of $232,500 to Duggan, modified the judgment by providing that the $232,500 awarded to Duggan be offset by the $191,800 awarded to Marshall, and affirmed the judgment as so modified. See: 7 S.W.3d 888 (Tex.App.-Houston [1st Dist.] 1999). The date shown above is the date of the appellate court decision and not the trial date. Reported by JAB.