Household Credit Services, Inc. v. Driscol

• Decision Date: 30 December 1998
• Docket Number: No. 08-96-00209-CV,08-96-00209-CV
• Citation: 989 S.W.2d 72
• Parties: HOUSEHOLD CREDIT SERVICES, INC., Appellant, v. Albert DRISCOL and Marianne Driscol, Appellees.
• Court: Texas Court of Appeals

Page 72

989 S.W.2d 72

HOUSEHOLD CREDIT SERVICES, INC., Appellant, v. Albert DRISCOL and Marianne Driscol, Appellees.

No. 08-96-00209-CV.

Court of Appeals of Texas El Paso.

Dec. 30, 1998.

Robert A. Skipworth, Ainsa, Skipworth, Martinez & Driscoll, L.L.P., El Paso, Glen M. Boudreaux, David Scott Curcio, Kirklin, Boudreaux, & Leonard, Houston, for Appellant.

Ivy Gage, Gage, Gage & Kern, El Paso, Eugene A. Cook, Gael Catherine Mary Plauche, Bracewell & Patterson, L.L.P., Houston, for for Appellees.

Before BARAJAS, C.J., LARSEN, and CHEW, JJ.

OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict in favor of plaintiff/Appellees Albert and Marianne Driscol in the amount of approximately $11.7 million against Allied Adjustment Bureau and defendant/Appellant Household Credit Services, Inc. The Driscols' lawsuit was based on the defendants' attempts to collect an undisputed debt owed by Marianne Driscol. Although Allied did not appear at trial and is now defunct, the jury awarded both compensatory and exemplary damages against both defendants. We affirm in part, modify in part, and reverse and render in part.

SUMMARY OF THE EVIDENCE

Appellee Marianne Driscol had a VISA card account with Appellant, Household Credit. After losing her job in Massachusetts, Ms. Driscol and her husband, Appellee Albert Driscol, moved to El Paso. Though Ms. Driscol found a job at People Lease, Inc. in El Paso, Mr. Driscol did not find work and money remained tight. Ms. Driscol began to fall behind on the payments on her approximately $2,700 VISA card balance. In about May 1991, Household's internal collections personnel started placing telephone calls to Ms. Driscol in an effort to collect on the account. The parties disagree sharply on the nature, quantity, and timing of Household's collection calls that continued until January 28, 1992, when Household turned Ms. Driscol's account over to Allied Adjustment Bureau, a collection agency, for further collection efforts.

Ms. Driscol testified that Household began calling her at work and home. Despite several telephone conversations and one certified letter requesting that Household stop calling her workplace, the calls to Ms. Driscol at People Lease continued. Calls to the Driscol home came in at a rate of four or five times per day, sometimes at 6:30 on weekend mornings and after 11 on weekday evenings. These odd-hour calls also continued despite Ms. Driscol's requests that they stop. The language Household used during the calls was "horrible," "disrespectful," and "nasty." When Ms. Driscol attempted to explain that her husband was out of work but she intended to pay what she could, Household personnel told her that "they didn't want to hear any sob stories, they'd heard it all." They also told her to "just pay [her] goddamn bill." There was "a lot of swearing and a lot of that four-letter word--'F-' ... a lot of abusive language on the telephone." On at least one occasion, a Household collector called Ms. Driscol a "bitch." Again, despite her requests to stop the abusive language, it continued.

Ms. Driscol's husband, Albert, testified that he often took the calls from Household because the calls upset Ms. Driscol too much. Household's collectors were "real nasty and vulgar" on the phone. One Household collector told him that Ms. Driscol had better call Household back or "her ass was in big trouble." Mr. Driscol called Household several times to complain and attempted to speak to a supervisor about the abusive language and odd-hour calls, but the supervisor was not available at the time he had been given to contact her.

On the other hand, witnesses on behalf of Household testified that Household demands courtesy of its collectors, that profanity toward and harassment of debtors is forbidden, that actual telephone contact with debtors is allowed only twice in any seven-day period and only once on any one day, and that calls to debtors are allowed only between the hours of 8 a.m. and 9 p.m. To ensure that no debtor was called more often than allowed, each collector worked from a computerized "collection queue" designed to keep calls to debtors within Household's stated frequency policy. The computer system also made sure that collectors did not call debtors too early in the morning, or too late at night by placing debtors in the queue only when it was between the hours of 8 a.m. and 9 p.m. in the debtor's time zone.

John Matusiak, Household's director of recovery, testified that if a debtor asked not to be called at work, Household would place a note in the debtor's file and replace the debtor's work phone number with all 9s. Matusiak maintained that Household followed its procedures with Ms. Driscol's account, including blocking her work phone number after she made a written request that Household stop calling her at her place of employment. Moreover, Matusiak denied that Household received any complaints from Ms. Driscol, other than the single written request to cease calls to her workplace, until it was served with her lawsuit.

Marissa Castillon, a Household collector assigned to Ms. Driscol's account, denied that she ever used derogatory names, profanity, or vulgar language when talking to Ms. Driscol or any other debtor. Rather, she maintained that she always treated debtors just as she would want to be treated. Specifically, Castillon contended that she treated Ms. Driscol with sympathy when Ms. Driscol told Castillon that she could not pay her account because Mr. Driscol was out of work. Castillon's last contact, which was also Household's last contact with Ms. Driscol, was on November 18, 1991, when Castillon informed Ms. Driscol that Household would have to refer her account to a collection agency. Castillon admitted, however, that it was possible that other Household collectors contacted Ms. Driscol before Household turned the account over to Allied on January 28, 1992.

The Driscols testified that the abusive conduct not only continued, but got worse when Allied began attempts to collect on the VISA account. Mr. Driscol recounted that an Allied collector, who used the name Carol Lamb, ¹ made most of the contact with the Driscols on behalf of Allied. Lamb would scream and cuss at the Driscols, getting "totally out of control" on the phone. Mr. Driscol described Lamb as "unbelievable ... plumb crazy ... like a wild woman ... vulgar, very vulgar." Lamb once told Mr. Driscol that he had "better do what the fI tell you." She threatened to "make Marianne's life miserable in El Paso" and to "blackball" Ms. Driscol so that "she'd never work again."

Ms. Driscol testified that Ms. Lamb made good on the threats by calling her incessantly at work. Ms. Driscol asked Lamb to stop calling her at work, and told Lamb that she had written to Household regarding calls to her workplace, but Lamb continued to call. Ms. Driscol's supervisor, Patricia Kiddney, began to take Lamb's calls. She likewise asked Lamb to stop calling People Lease, but Lamb's calls did not cease. At times, the calls were so numerous that all of People Lease's phone lines were tied up with calls from Lamb. In a single two-hour time period on February 13, 1992, Lamb placed 26 calls to People Lease.

Ms. Driscol claimed that she called customer service at Household to complain about the calls from Allied. Although Household told Ms. Driscol that they would look into and stop the problem, Household did nothing. Eventually, the calls became so disruptive to People Lease's business that Gary Thompson, president of People Lease, called Household to complain. After Thompson's call, Henry Mauriss, president of Allied, called Thompson to apologize and assure Thompson that the harassing phone calls would not continue. Shortly thereafter, a woman called People Lease and stated, "You'd better evacuate, there's a bomb." The woman did not identify herself of course, but Cynthia Lozano, People Lease's receptionist, testified that she recognized the voice as that of Lamb. Lozano called the police, and Thompson reported the bomb threat as well as the previous harassing phone calls to the FBI.

Even more disturbing, Ms. Driscol testified that the day before the bomb threat, Rick Lewis, who identified himself as Lamb's supervisor, called and calmly told her, "I just wanted to let you know that I put a contract out on you ... you better be careful leaving your house and coming home, because we're going to get you." Richard Gabbert, who had used the pseudonyms "Rick Lewis" or "Rich Lewis" as a collector for Allied, also testified at trial. He denied threatening Ms. Driscol, and testified that Allied observed rules similar to those of Household regarding contact with debtors. According to Henry Mauriss, whose deposition testimony was read to the jury, Allied had never received complaints about either Lewis or Lamb before the Driscols made their allegations.

Ms. Driscol resigned from People Lease shortly after the bomb threat because she felt that her work environment had deteriorated after all of Household's and Allied's collection attempts. She did not look for another job because she was "scared to death" to leave her house after the threats she had received. Not long after she resigned from People Lease, Ms. Driscol was almost attacked by a man in a grocery store parking lot. She admitted at trial that the incident could have been a coincidence, but she maintained that at the time of the attack, she believed Rick Lewis might have sent the man to "get" her. The phone harassment, threats, and finally the perceived attack so frightened Ms. Driscol that she and her husband moved from El Paso to Truth or Consequences, New Mexico. Ms. Driscol believed that Household and Allied would not look for her there because most of the town were retired people. Soon after relocating to Truth or Consequences, Ms. Driscol found a job at a local bank, where she started as a teller, and later became a customer service...