First Sec. Bank & Trust Co. v. Roach, 18045

• Decision Date: 08 March 1973
• Docket Number: No. 18045,18045
• Citation: 493 S.W.2d 612
• Parties: FIRST SECURITY BANK & TRUST CO., Appellant, v. O. N. ROACH and G. Wayne Roach et ux., Appellees.
• Court: Texas Court of Appeals

Page 612

493 S.W.2d 612

FIRST SECURITY BANK & TRUST CO., Appellant, v. O. N. ROACH and G. Wayne Roach et ux., Appellees.

No. 18045.

Court of Civil Appeals of Texas Dallas.

March 8, 1973.

Rehearing Denied March 29, 1973.

Edward J. Drake, Brady, Drake & Wilson, Dallas, for appellant.

Shirley R. Levin, Levin, Weinberg & Levin, Dallas, for appellees.

CLAUDE WILLIAMS, Chief Justice.

G. Wayne Roach, and wife Georgette Roach, and O. N. Roach, brought this action against Lou Levine, individually and doing business as Wholesale Auto Center, Inc., and First Security Bank and Trust Company, of Carrollton, Texas, seeking cancellation and rescission of a motor vehicle retail installment contract and note which had been executed by the Roaches to Levine as part of the purchase price of a 1968 Buick Riviera automobile. The note and contract had been assigned by Levine to First Security Bank and Trust Company (hereinafter called Bank). The Roaches also sought damages for wrongful conversion of the automobile by the bank, for recovery of all payments made on the vehicle both to Levine and the bank, for fair market value of the vehicle at the time of its conversion, and for exemplary damages. Levine failed to appear and answer. The case proceeded to trial before the court and jury and based upon favorable answers by the jury the court proceeded to render judgment in favor of the Roaches and against Levine and the bank. Since Levine has not complained of the judgment against him we refer only to that part of the judgment against the bank. The court expressly found that the original sales contract and note were void and should therefore be cancelled, rescinded and held for naught. The court rendered judgment against the bank in the sum of $646.40, as refund for payments made by the Roaches under said contract to the bank; the sum of $300 for damages for loss of clothing and personal property; and the sum of $5,750 as exemplary damages. From this judgment the bank appeals.

The primary question advanced concerns the judgment for exemplary damages. The jury, in answer to special issue No. 4, found that the bank acted with malice in repossessing and retaining the Roaches' automobile. Malice was defined as 'ill will, bad or evil motive, or such gross indifference to the rights of a party as will amount to a wilful or wanton act done intentionally and without just cause or excuse on the part of the party accused of such acts.' In answer to special issue No. 5 the jury found that the Roaches should be awarded the sum of $5,750 against the bank as exemplary damages. In this issue the jury was instructed that they may take into account such elements as compensation for inconvenience, attorney's fees, expenses of litigation and other expenses not recoverable as actual damages.

In its points 1 and 2 the bank contends that there is no evidence to support the findings of the jury that the bank acted with malice and for exemplary damages as the consequence of such conduct. Alternatively, the bank argues that the trial court should have ordered a 'remittance' of the exemplary damages found by the jury. A resolution of the questions thus presented to us requires a summary of the material testimony which came primarily from Georgette Roach, one of the appellees, and William McClain, who was formerly a vice-president of appellant bank.

Mrs. Roach testified that she and her husband purchased a second-hand 1968 tan Riviera Super Sport Buick automobile from Levine on October 7, 1969. The Roaches expressed their desire to finance the car through their own bank but Levine suggested that First Security Bank and Trust Company would offer a quicker means of financing. The Roaches filled out a credit application, with Levine's help, and he called the bank to request the financing. The bank refused the request at first but when Mr. Roach's father, O. N. Roach, added his name as a co-signer to the note, the financing was approved by the bank. The Roaches paid $670 in cash to Evine to cover the down payment, transfer of title and taxes. They signed the motor vehicle retail installment contract at the Levine place of business. Levine told them that the bank would 'take care of the title.' Shortly thereafter the bank sent the Roaches a payment book calling for monthly payments of $129.28 due on the 16th day of each month. The Roaches made the payments from November, 1969 through March, 1970. On occasions the Roaches' payments would reach the bank late but on each of such occasions the bank accepted the payments.

Mrs. Roach said that she waited a couple of weeks after the car had been purchased and then telephoned the bank asking about the duplicate original title certificate which she had never received. She was advised by someone at the bank that the title papers would be forthcoming in a short time. From November until the following April Mrs. Roach at sporadic intervals telephoned the bank at least six or seven times and on each occasion she would inquire when she might expect the title papers and on each occasion she was assured that the title papers would be coming soon. They were never received by her or by her husband.

Some time in the month of January, 1970 Mrs. Roach testified that William McClain, vice-president of the bank in charge of automobile loans, called her and asked her to go out and check the serial number of the Riviera automobile telling her that there had been a 'slight mix-up' concerning the title. She went out and copied down the number and came back and read it to Mr. McClain over the phone. At that time McClain told her not to worry and to be patient; that the title certificate would be forthcoming in due time.

On April 1, 1970, when she had still not received the title papers to the automobile, and realizing that the deadline for securing 1970 license plates had arrived, she went to the bank and had a meeting with Mr. McClain. At this meeting he told her about all the problems the bank was having with her car; that the title was in the name of a man by the name of Durham and that the bank would get this problem straightened out eventually. Mrs. Roach told McClain at that time that she needed the car in her work. Mr. McClain informed her that he couldn't get her the title immediately but suggested that she use 1970 license plates from another car the Roaches owned which was not in working order until the title problem had been worked out. At that time Mr. McClain also suggested that she stop making her payments although at that time she was not in default and the next payment was not due until April 16. McClain said nothing to her concerning possible repossession of the automobile.

Some time during the night of April 11, 1970 the car was removed from Mrs. Roach's possession. The circumstances were as follows: Mrs. Roach and her three children went shopping in the late afternoon of the 11th during which time she made several purchases of clothing. The clothing was placed in the trunk of the Roaches' car. They attended a drive-in movie that evening and upon returning to their apartment about midnight Mrs. Roach parked the Riviera in the parking lot on private property, leaving the personal property in the trunk. The next morning it was discovered that the car and its contents were gone. She subsequently learned that the bank had caused the automobile to be repossessed and on April 13 the Roaches went to the bank for a conference with Mr. McClain. During this conversation Mr. McClain told Mrs. Roach that the bank would let her use a Mustang automobile to drive while the matter was being straightened out. Mrs. Roach said that McClain asked her to sign two instruments in blank. She called her attorney who advised her not to execute the instruments. Mrs. Roach's refusal to sign the papers caused McClain to become very angry. Mrs. Roach then requested that the bank give her back the Riviera but McClain refused. She then told McClain about her personal property which was in the trunk of the automobile and asked to be allowed to get her property from the car. McClain told her that the car was not on the premises whereupon the Roaches then asked if they could drive to where the car was. McClain responded that he 'couldn't allow us in or around the vehicle.' Mrs. Roach became quite upset and she began to shed tears and the meeting ended on that note. The Roaches later received a notice from the bank that stated if they paid the entire balance within five days they could get the Buick Riviera returned to them. Failing to do this, the Roaches neither received their car nor recovered their personal property from the car.

Mrs. Roach rented a car for $480 a month for two and one half months after the repossession so that she could continue to work. She was employed as general manager of Shangri-La in Park Forest and her work consisted of putting on fashion shows in the Dallas area. She needed a car to transport the clothing and customers connected with these shows. She also testified that she had made at least ten visits to her doctor because the experience at the bank had left her very upset and distressed. She also claimed that her credit was ruined by the fact that the automobile had been repossessed.

Mr. McClain testified that there was a meeting of representatives of several banks and lending institutions in January or February of 1970 at which time the title problems connected with a number of cars financed for Levine were brought to light. Levine had apparently conceived a scheme whereby through fraudulent means and devices he would finance one car with several lending institutions. Appellant bank had received a total of eighty-five automobile notes from Levine and it appeared that about fifteen of these automobiles involved discrepancies. McClain testified that except for the Roach vehicle and at least one other all of the problems were eventually worked out satisfactorily. McClain said that shortly after the meeting...