First Nat'l Collection Bureau Inc. v. Walker

• Decision Date: 14 July 2011
• Docket Number: No. 05–10–00129–CV.,05–10–00129–CV.
• Citation: 348 S.W.3d 329
• Parties: FIRST NATIONAL COLLECTION BUREAU, INC., Appellant,v.Daniele WALKER, Appellee.
• Court: Texas Court of Appeals

348 S.W.3d 329

FIRST NATIONAL COLLECTION BUREAU, INC., Appellant,

v.Daniele WALKER, Appellee.

No. 05–10–00129–CV.

Court of Appeals of Texas, Dallas.

July 14, 2011.

Robbie Malone, Jacob C. Boswell, Robbie Malone, PLLC, Dallas, for Appellant.Thomas Dean Malone, Law Offices of Dean Malone, P.C., Bruce K. Thomas, Law Office of Bruce K. Thomas, Dallas, for Appellee.Before Justices MARTIN RICHTER, LANG, and FILLMORE.

OPINION

Opinion By Justice LANG.

Appellee Daniele Walker filed suit against appellant First National Collection Bureau, Inc. (“FNCB”) alleging automated debt collection calls were made to her cell phone number in violation of the federal Telephone Consumer Protection Act (“TCPA”) and section 35.47(f) of the Texas Business and Commerce Code, which was in effect at that time. See 47 U.S.C.A. § 227 (West, Westlaw through July 14, 2011); Tex. Bus. & Com.Code Ann. § 35.47(f) (repealed 2007).¹ Following a jury verdict in favor of Walker and some additional findings by the trial court, a judgment was rendered for Walker in the amount of $147,000 against FNCB. In five issues ² on appeal, FNCB (1) contends the trial court erred by not applying Texas law and, alternatively, applying the TCPA incorrectly and (2) challenges the sufficiency of the evidence to support the jury's verdict and the trial court's findings. We decide against FNCB on its five issues. The trial court's judgment is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

FNCB, a third party debt collector, assists other entities in collecting payment on delinquent accounts. In January 2008, FNCB began collection efforts on an account owed by an individual who is not a party to this litigation. However, the telephone number that “came with” that account had been reassigned to Walker's cell phone. During a period of approximately six months, FNCB and two of its vendors, Global Connect and TCN, made multiple calls to Walker's cell phone number in connection with attempts to collect that debt.

Walker filed this lawsuit on June 30, 2008. In her live pleading, Walker contended FNCB made calls to her cell phone using an “automatic telephone dialing system and/or an artificial or prerecorded voice” in violation of the TCPA. According to Walker, such violations entitled her to statutory damages of $500 per call pursuant to the TCPA and section 35.47(f), which provided for a cause of action by “[a] person who receives a communication that violates [the TCPA].” Further, Walker asserted that because FNCB had committed such violations “knowingly,” she was entitled to increased damages of up to $1,500 per violation pursuant to those statutes. FNCB filed a general denial answer.

Among the documents admitted into evidence at trial were business records of FNCB. Also, Walker and Scott Carroll, FNCB's vice president of operations and business development, testified.

At the charge conference held after the presentation of evidence, the trial court refused all jury questions and instructions submitted by FNCB and overruled FNCB's objections to the charge.³ The charge of the court submitted to the jury contained the following three questions:

QUESTION NO. 1:

Were calls made to [the phone number in question] using an automatic telephone dialing system or an artificial voice or a prerecorded voice without the prior express consent of the called party?

....

QUESTION NO. 2:

How many calls were made by [FNCB] or on its behalf to [the phone number in question] using an automatic telephone dialing system or an artificial voice or a prerecorded voice?

....

QUESTION NO. 3:

Did [FNCB] willfully and knowingly make or cause to be made calls to [the phone number in question] when an automatic telephone dialing system or an artificial voice or a prerecorded voice was used?

“Willfully and knowingly” means that [FNCB] knew or should have known that it was violating the federal [TCPA] when it called or caused to be called

[the

phone number in question]. A finding that [FNCB] acted “willfully or knowingly” does not require a finding of bad faith, but only that [FNCB] had reason to know, or should have known, that its conduct would violate federal law.

The jury answered “yes” to questions number one and number three. The jury's response to question number two was “98.”

Then, additional argument was presented by the parties and the following additional question was submitted to the jury:

What sum of money, if any, in addition to statutory damages should be awarded against [FNCB] because [FNCB]'s conduct was committed willfully and knowingly?

Please award an additional dollar amount per telephone call made. You may award between $0 and $1000 in additional damages per telephone call. Answer in dollars and cents.

The jury answered “$1000.00 per telephone call.”

FNCB filed motions for judgment notwithstanding the verdict and new trial. At a hearing on those motions, FNCB argued in part that the jury's finding as to whether additional damages should be awarded based on “willful and knowing” conduct of FNCB was immaterial because only the trial court had authority to make that decision. The trial court, over objection by Walker and without a jury present, “accepted” additional testimony offered by FNCB regarding the determination of additional damages. The trial court declined to rule at that time as to whether such additional damages were to be determined at the trial court's discretion or by the jury. After taking the matter under advisement, the trial judge proceeded to decide the issues as to additional damages and a final judgment was rendered that ordered that Walker recover $49,000 in statutory damages pursuant to the TCPA and “$98,000 in damages pursuant to the [TCPA] for willful and knowing violations,” plus court costs and interest. Additionally, the trial court denied FNCB's motions for judgment notwithstanding the verdict and new trial.

FNCB filed (1) a motion to modify, correct, or reform the judgment and (2) a request for findings of fact and conclusions of law respecting, inter alia, “[t]hose portions of the case decided by the court.” Then, Walker filed proposed findings of fact and conclusions of law pertaining to the additional damages awarded by the trial court for “willful and knowing” violations of the TCPA. FNCB filed a request for additional findings of fact and conclusions of law as to whether FNCB acted “knowingly or intentionally” pursuant to section 35.47(f). After the trial court signed findings of fact and conclusions of law pertaining to the additional damages,⁴ this appeal timely followed.

II. FNCB'S ISSUES

A. Standard of Review

Statutory construction presents a question of law that we review de novo. See, e.g., City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex.2009); City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008).

In a legal sufficiency challenge respecting an issue on which the opposing party had the burden of proof, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001). We must credit the favorable evidence if reasonable jurors could and disregard the contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. See, e.g., Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (more than scintilla of evidence exists when evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions”).

When reviewing the factual sufficiency of the evidence, we examine all the evidence and set aside a finding only if it is so contrary to the evidence as to be clearly wrong and unjust. Cameron v. Cameron, 158 S.W.3d 680, 683 (Tex.App.-Dallas 2005, pet. denied). In conducting our review of both the legal and factual sufficiency of the evidence, we are mindful that the jury, as fact-finder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773, 782 (Tex.App.-Dallas 2007, no pet.). We may not substitute our judgment for the fact-finder's, even if we would reach a different answer on the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); Hinkle, 223 S.W.3d at 782.

B. Applicable Law

1. Telephone Consumer Protection Act

The TCPA provides in relevant part that it shall be unlawful for any person within the United States “to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C.A. § 227(b)(1)(A)(iii). Further, in subparagraph (b)(3)(B) of that same section, the act states “[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State ... an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater.” Id. § 227(b)(3)(B). If a court finds that a defendant “willfully or knowingly” violated subsection (b) or the regulations prescribed under that subsection, “the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under [subparagraph (b)(3)(B) ].” Id.

Subsection (f) of the TCPA, titled “Effect on State Law,” provides in relevant part that, with certain exceptions not at issue here, the TCPA and regulations prescribed thereunder shall not “preempt any State law that imposes more restrictive...