Maley v. 7111 Southwest Freeway, Inc., B14-92-00203-CV

• Court: Court of Appeals of Texas
• Citation: 843 S.W.2d 229
• Docket Number: No. B14-92-00203-CV,B14-92-00203-CV
• Parties: Philip S. MALEY, et al., Appellants, v. 7111 SOUTHWEST FREEWAY, INC. d/b/a Louis Delhomme Marine, Appellee. (14th Dist.)
• Decision Date: 03 December 1992

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843 S.W.2d 229 Philip S. MALEY, et al., Appellants,
v.
7111 SOUTHWEST FREEWAY, INC. d/b/a Louis Delhomme Marine, Appellee. No. B14-92-00203-CV. Court of Appeals of Texas,
Houston (14th Dist.). Dec. 3, 1992.
Rehearing Denied Jan. 14, 1993.

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Michael C. O'Connor, Houston, for appellants.

C. Ed Harrell, Houston, for appellee.

Before MURPHY, CANNON and MORSE (Sitting by Designation), JJ.

OPINION

CANNON, Justice.

This is an appeal of a summary judgment. Maley and five others (collectively "the Boaters") each bought a boat on credit from Louis Delhomme Marine ("Delhomme"). The Boaters sued Delhomme alleging that Delhomme charged a documentary fee that was illegal under the Texas Consumer Credit Code. The Boaters and Delhomme each moved for summary judgment. The trial court granted Delhomme's motion. The Boaters appeal. We reverse.

The facts are undisputed. During 1989 and 1990, each of the Boaters bought a boat, motor, and trailer from Delhomme. The purchases were financed by retail installment contracts ("the Contracts") signed by each of the Boaters payable to Delhomme in monthly installments. The Boaters and Delhomme contracted for the payment to Delhomme of a twenty to twenty-five dollar documentary fee to cover the preparation, handling, and processing of documents related to closing the Contracts. This documentary fee is distinct from the licensing, registration, and certificate of title fees paid to the State by the seller on behalf of the buyer. The Boaters sued Delhomme under the Retail Installment Sales chapter of what is commonly referred to as the Texas Consumer Credit Code. TEX.REV.CIV.STAT.ANN. art. 5069-6.01 et seq. (Vernon 1987 & Supp.1992). The Boaters alleged that the documentary fee charged by Delhomme was illegal under the Documentary Fee provision. Id. art. 5069-6.10. Both sides moved for summary judgment. Holding that Article 6.10 permitted Delhomme's documentary fee, the trial court

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rendered a summary judgment that the Boaters take nothing.

In our review of the granting of a summary judgment, the movant has the burden to show that there are no genuine issues of material fact and he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Here, the parties agree on the facts. They also agree on the law to the extent that the transactions at issue are governed by Chapter Six of the Texas Consumer Credit Code. TEX.REV.CIV.STAT.ANN. art. 5069-6.01 et seq. (Vernon 1987 & Supp.1992). The parties disagree, however, on the statutory construction of Article 6.10, the Documentary Fee provision. This single question of law is at the heart of the dispute.

Several general principles guide our statutory construction effort. First, we diligently attempt to ascertain and advance the legislative intent. TEX.GOV'T CODE ANN. § 312.005 (Vernon 1988). Second, we liberally construe the Revised Statutes to achieve their purposes and promote justice. Id. § 312.006. Third, where the language of a statute is unambiguous, we give effect to the statute according to its terms. Mathews Constr. Co. v. Jasper Housing Constr. Co., 528 S.W.2d 323, 326 (Tex.Civ.App.--Beaumont 1975, writ ref'd n.r.e.). Fourth, we will not adopt a construction that would render a law or provision absurd or meaningless. City of Deer Park v. State ex rel. Shell Oil Co., 259 S.W.2d 284, 287 (Tex.Civ.App.--Waco 1953), aff'd, 154 Tex. 174, 275 S.W.2d 77 (1954). Fifth, an express listing of certain persons, things, consequences, or classes is equivalent to an express exclusion of all others. Lenhard v. Butler, 745 S.W.2d 101, 105 (Tex.App.--Fort Worth 1988, writ denied); see McCalla v. State Farm Mut. Auto Ins. Co., 704 S.W.2d 518, 519 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.).

The Boaters interpret Article 6.10 as prohibiting Delhomme from contracting for or charging a documentary fee. In pertinent part that article reads:

A seller may charge a documentary fee for services rendered to, for, or on behalf of a retail buyer in preparing, handling, and processing documents relating to, and closing a retail installment transaction involving, a motorcycle, a motor-driven cycle, moped, or all-terrain vehicle.

TEX.REV.CIV.STAT.ANN. art. 5069-6.10(a) (Vernon 1987) (emphasis added).

The Boaters maintain that this provision authorizes a documentary fee only in connection with "a retail installment transaction involving, a motorcycle, a motor-driven cycle, moped, or all-terrain vehicle." They argue that a construction that would permit documentary fees for credit sales of boats would necessarily permit fees across the entire spectrum of goods and services sold through retail installment contracts, rendering the provision meaningless. We agree. Article 6.10, captioned "Documentary Fee," lists four types of transactions where a documentary fee may be included in a retail installment contract. The language is plain, the list excludes all other goods and services, and there are no words such as "including" or "etc." to open the door for us to expand the list.

We find corroboration for this construction in other sections of the Consumer Credit Code. Article 6.01(k) defines "principal balance" as "the cash price of the goods ... plus the amounts, if any, included ... for itemized charges, including a documentary fee under Article 6.10...." Id. art. 5069-6.01(k) (emphasis added). This specific reference to Article 6.10 indicates that the only legitimate documentary fee is one authorized by Article 6.10, i.e., for the motorized vehicle transactions there listed. In addition, other provisions of Chapter Six use "may" authorizing language to limit the type of delinquency fees, attorney fees, and insurance-related charges that can be included in retail installment contracts. Id. arts. 5069-6.02(11) and 6.04(2). Also, Article 8.01(a) imposes penalties on sellers who contract for, charge, or receive, "charges greater than the amount authorized by this Subtitle." Id. arts. 5069-8.01(a) (emphasis added).

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These excerpts demonstrate that the use of "may" language to authorize certain activities and exclude others is not unique to the documentary fee provision.

A comparison of the Chapter Seven documentary fee provision with that of Chapter Six provides further corroboration. Chapter Seven of the Consumer Credit Code applies to Vehicle Installment Sales (motor vehicles). Id. art. 7.01 et seq. Its documentary fee provision, Article...