Greenpoint Credit Corp. v. Perez

• Decision Date: 16 January 2002
• Docket Number: No. 04-01-00188-CV.,04-01-00188-CV.
• Citation: 75 S.W.3d 40
• Parties: GREENPOINT CREDIT CORPORATION, Appellant, v. Ninfa PEREZ, Appellee.
• Court: Texas Court of Appeals

75 S.W.3d 40

GREENPOINT CREDIT CORPORATION, Appellant, v. Ninfa PEREZ, Appellee.

No. 04-01-00188-CV.

Court of Appeals of Texas, San Antonio.

January 16, 2002.

Rehearing Overruled March 4, 2002.

B. Bruce Johnson, Bob Frisch, Law Offices of B. Bruce Johnson, Dallas, Mark R. Paisley, Adami, McNeill, Paisley & Appel, P.C., Alice, Sharon E. Callaway, Nissa M. Sanders, Thomas H. Crofts, Jr., Crofts & Callaway, P.C., San Antonio, for Appellant.

Douglas A. Allison, Law Office of Douglas A. Allison, Corpus Christi, Timothy Patton, Timothy Patton, P.C., San Antonio, for Appellee.

Sitting: PHIL HARDBERGER, Chief Justice, TOM RICKHOFF, Justice,¹ and PAUL W. GREEN, Justice.

Opinion by PHIL HARDBERGER, Chief Justice.

This unfair debt collections act case involves an illegal threat by a finance company to put an elderly woman in jail for a debt that she did not owe, on a mobile home she did not own. A jury awarded substantial actual and punitive damages. The case comes to this court principally on the excessiveness of actual damages, and the absence of the predicate requirements necessary to impose damages against the corporation, as opposed to the overzealous employee.

The case began when an employee of the finance company, GreenPoint Credit Corp. ("GreenPoint"), made a demanding phone call to Ninfa Perez ("Mrs.Perez"). The substance of the phone call was that Mrs. Perez was woefully behind on her mobile home payments, and that she must pay up or face the consequences. The call was not only disturbing to Mrs. Perez, it was also mystifying. She owned no mobile home and had no idea what the representative was talking about. Her attempts to explain this to the representative fell on deaf ears. He gave her the company's phone number and told her to pay the bill. Mrs. Perez was at a substantial disadvantage in this and subsequent dealings with GreenPoint. She was 72 years old, did not speak or understand English, and had a medical history of anxiety disorders. She had lived in the same house all her life, and her sole source of income was a modest monthly Social Security check. She had a daughter, Zulema Torres ("Torres"), who lived across the street and cared for her mother. Mrs. Perez did not own a mobile home, and there was no evidence she had ever owned one.

GreenPoint's records, however, indicated Mrs. Perez was the buyer and borrower on a mobile home in which GreenPoint provided financing. Much later it became clear what the problem was. It turned out that Mrs. Perez's granddaughter, Melissa Perez, negotiated the purchase of the mobile home by fraudulently providing the seller with her grandmother's financial information and forging her signature. This was unknown to either party at the time, and is not critical to the appeal. All parties now agree that Mrs. Perez did not purchase the mobile home.

The day after Mrs. Perez received the initial mystifying call, the GreenPoint representative again telephoned Mrs. Perez and demanded payment on the mobile home. Mrs. Perez again denied having purchased the mobile home and informed the representative that she had not sent in any payments. Mrs. Perez testified that the representative then became rude and began using obscene language. She said that the representative then told her that if she did not send in a payment that day, a sheriff's deputy was going to come and put her in jail that afternoon, at 2 p.m. This about did Mrs. Perez in. When Torres went to see her mother later that day, she found her distraught and crying. Mrs. Perez asked Torres to take her to see the Duval County Sheriff, Santiago Barrera, Jr. ("Barrera"), because she was going to be put in jail, and apparently was ready to turn herself in. Torres then drove her mother to the Sheriff's office. Mrs. Perez told Barrera about the call from Green-Point and their threat to put her in jail. Barrera testified that Mrs. Perez was crying and extremely upset. He tried to calm her down and assured her that he was not going to put her in jail. The Sheriff then called GreenPoint himself and told them that they had the wrong person. He informed GreenPoint that Mrs. Perez owned no mobile home and that Mrs. Perez's signature did not match the one on the document. The Sheriff's words also fell on deaf ears. GreenPoint's representative continued to insist that Mrs. Perez owed the money.

Approximately two weeks later, Green-Point sent a field representative to Mrs. Perez's home to investigate the case. The representative completed a Field Contact Form in which he stated that Mrs. Perez continued to deny having signed any contract and that Mrs. Perez provided him with an ID and a social security card. The representative also obtained a handwritten affidavit from Mrs. Perez, signed and notarized, in which she swore that she had never signed any documents for the purchase of a mobile home, and never consented for anyone else to provide her personal information for such. Despite the evidence that they had the wrong person, GreenPoint sued anyway.

GreenPoint filed suit against Mrs. Perez and her granddaughter, Melissa Perez, asserting causes of action for conversion, judicial foreclosure, payment of indebtedness, and attorney's fees. Melissa Perez never answered, and the trial court rendered a default judgment against her. Mrs. Perez generally denied GreenPoint's allegations and filed a counterclaim against GreenPoint. She asserted causes of action for violations of the Texas Debt Collection Act and the Deceptive Trade Practices Act, intentional infliction of emotional distress, and negligence. She also alleged that GreenPoint acted with malice entitling her to exemplary damages.

The case was bifurcated and tried to a jury. GreenPoint eventually abandoned its claims against Mrs. Perez, and the case was submitted to the jury on Mrs. Perez's counterclaims under the Debt Collection Act. After the first phase of the trial, the jury found the following: (1) GreenPoint's unreasonable collection efforts were a producing cause of injury to Mrs. Perez; (2) GreenPoint engaged in such unreasonable collection efforts knowingly and intentionally; (3) Mrs. Perez sustained $3,000,000 in damages in the past and would sustain $2,000,000 in damages in the future; (4) the injury to Mrs. Perez resulted from malice by GreenPoint; (5) a vice-principal of GreenPoint intentionally or knowingly caused serious mental deficiency, impairment, or injury to an elderly person; and (6) the actions of GreenPoint did not result from a bona fide error that occurred notwithstanding the use of reasonable procedures adopted to avoid such error. After the second phase of the trial, the jury assessed $10,000,000 in exemplary damages against GreenPoint for the injuries caused to Perez. The trial court rendered judgment on the verdict over GreenPoint's motion for judgment notwithstanding the verdict. GreenPoint filed a motion for new trial based on juror disqualification/misconduct and improper arguments of opposing counsel. The trial court held an evidentiary hearing on the motion. The trial court never ruled on the motion, and it was overruled by operation of law.

GreenPoint raises four issues on appeal, arguing: (1) the jury's award of actual damages is excessive; (2) the evidence is legally and factually insufficient to support the jury's award of exemplary damages; (3) the trial court erred in not granting a new trial based on juror disqualification and/or juror misconduct; and (4) the trial court erred in not granting a new trial based on improper and incurable comments made by Perez's counsel regarding GreenPoint's net worth. We affirm in part and reverse in part the trial court's judgment.

DISCUSSION

A. Actual Damages

"A claim that damages are excessive is reviewed under a factual sufficiency analysis." Southwest Tex. Coors, Inc. v. Morales, 948 S.W.2d 948, 951 (Tex.App.-San Antonio 1997, no writ). "We examine all the evidence to determine whether the award is supported by sufficient evidence and order remittitur only if the award is so against the great weight and preponderance of the evidence as to be manifestly unjust." Id. If sufficient probative evidence exists supporting the jury's verdict, the reviewing court is not entitled to substitute its judgment for that of the jury. J. Wigglesworth Co. v. Peeples, 985 S.W.2d 659, 666 (Tex.App.-Fort Worth 1999, pet. denied). It is particularly within the province of the jury to resolve matters which are necessarily speculative and not subject to precise mathematical calculations such as physical pain and mental anguish. Morales, 948 S.W.2d at 952. "Because personal injury damages are unliquidated and incapable of measurement by any certain standard, the jury has broad discretion in fixing the amount of the award." Peeples, 985 S.W.2d at 665.

"When a damage issue is submitted in broad form, ascertaining the amount the jury awarded for each element of damages is difficult, if not impossible." Wal-Mart Stores, Inc. v. Garcia 30 S.W.3d 19, 24 (Tex.App.-San Antonio 2000, no pet.). "An appellant who seeks to challenge a multi-element damage award on appeal must address each element and show the evidence is insufficient to support the entire award." Id. "If there is just one element that is supported by the evidence, the damages award will be affirmed if it is supported by the evidence." Greater Houston Trans. Co. v. Zrubeck, 850 S.W.2d 579, 589 (Tex.App.-Corpus Christi 1993, writ denied).

GreenPoint challenges the compensatory damages as being excessive, with no or insufficient evidence to support them. The compensatory damage issue was asked in the broad form, with the elements of physical pain, mental anguish, medical care and disfigurement listed. The only separation of the damages was as to past and future. The jury awarded $3,000,000 for past damages and $2,000,000 for future damages.

As any element submitted to the jury could support the verdict if there was sufficient evidence underpinning it, ...