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

Decision Date03 December 1992
Docket NumberNo. B14-92-00203-CV,B14-92-00203-CV
Citation843 S.W.2d 229
PartiesPhilip S. MALEY, et al., Appellants, v. 7111 SOUTHWEST FREEWAY, INC. d/b/a Louis Delhomme Marine, Appellee. (14th Dist.)
CourtTexas Court of Appeals
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 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). 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 7.01(h-1), was enacted in 1979; the Chapter Six provision, Article 6.10, in 1985. The Chapter Six provision is nearly a verbatim copy of the Chapter Seven provision, with one significant exception. The Chapter Seven provision, by its terms, applies to all installment sales covered by that chapter, i.e., all motor vehicle credit sales. On the other hand, the Chapter Six provision, by its terms, does not apply to all retail installment sales covered by Chapter Six, but only to those involving motorcycles, motor-driven cycles, mopeds, and all-terrain vehicles. We presume that the legislature was aware of the all-inclusive nature of the Chapter Seven language when it enacted the narrowly-tailored Chapter Six version. Compare Id. arts. 5069-7.01(h-1) and 5069-6.10.

Delhomme's counter-arguments are unpersuasive. Delhomme points to the Manufactured Homes chapter of the Consumer Credit Code containing a provision expressly prohibiting documentary fees and to other chapters which prohibit charges in excess of those authorized. Id. arts. 5069-3.15(8), 4.01(7), 5.02(7), and 6A.03(8). Delhomme argues that these provisions show that, when the legislature intended to prohibit a documentary fee, it did so expressly. However, unlike any of these other chapters, Chapter Six has its separate, dedicated provision specifically addressing documentary fees and limiting them to enumerated cases.

Delhomme maintains that we cannot consider legislative intent since the Boaters offered no summary judgment proof thereon. But statutory construction is a question of law, and we are obliged by the Government Code to attempt to discern and give effect to the legislature's intent. TEX.GOV'T CODE ANN. § 312.005 (Vernon 1988).

Delhomme's cites Ford Motor Credit Co. v. Brown, 617 S.W.2d 271, 273 (Tex.App.--Eastland 1980, writ ref'd n.r.e.), for the proposition that documentary fees may be included in the sales price of a cash or credit sale of a boat. However, that case involved a motor vehicle installment sale governed by Chapter Seven. Chapter Six was not implicated.

Delhomme also points out that Article 6.05, the Prohibitions section, does not bar documentary fees. But this section deals with general business practices, not specific fees. Besides, none of the other Consumer Credit Code chapters that do bar documentary fees do so in their corresponding Prohibitions sections.

We come now to Delhomme's best argument. Delhomme correctly asserts that boats have similar registration, licensing, and titling requirements as do motorized road vehicles and that the documentation handling tasks are comparable. It would not have been unreasonable for the legislature to have included boats in the list of goods for which documentary fees could be charged. But the fact remains that the legislature did not do so. On the other hand, in Article 6.04(2), the legislature did address marine-unique insurance requirements indicating that the legislature was aware of boating industry interests. See TEX.REV.CIV.STAT.ANN. art. 5069-6.04(2) (Vernon 1987).

We believe that the legislature's restrictive approach to documentary fees relates to the broad sweep of Chapter Six. This Retail Installment Sales chapter includes most goods and services in the State. Arguably, this is the chapter of the Credit Code most impacting those whom the legislature intended to protect.

These unregulated (abusive and deceptive) practices bring great social and economic...

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