Monroe v. Frank

• Decision Date: 16 August 1996
• Docket Number: No. 05-95-00922-CV,05-95-00922-CV
• Citation: 936 S.W.2d 654
• Parties: Charles MONROE d/b/a Delta Bail Bonds, Appellant, v. William FRANK, Appellee.
• Court: Texas Court of Appeals

Page 654

936 S.W.2d 654

Charles MONROE d/b/a Delta Bail Bonds, Appellant, v. William FRANK, Appellee.

No. 05-95-00922-CV.

Court of Appeals of Texas Dallas.

Aug. 16, 1996.

Lloyd E. Ward, Lloyd E. Ward & Associates, P.C., Dallas, for appellant.

Jeffrey W. Mankoff, Jeffrey W. Mankoff, P.C., Dallas, for appellee.

Before LAGARDE, WRIGHT, and WHITHAM ¹, JJ.

OPINION

WRIGHT, Justice.

Charles Monroe d/b/a Delta Bail Bonds (DBB) brought suit against William Frank (Frank) seeking to recover on an indemnity contract related to a bail bond. Frank counterclaimed under the Texas Debt Collection Practices Act (the Act). See TEX. REV. Civ. Stat. Ann. art. 5069-11.01-11.12 (Vernon 1987 & Supp.1996). When the case was called to trial, DBB nonsuited its claims. A bench trial then proceeded on Frank's counterclaim. The trial court awarded Frank judgment for $500, after applying a $1000 offset. The trial court also made conditional awards of attorney's fees.

In five points of error, DBB asserts the trial court erred in awarding judgment against it because: (1) it is not a debt collector and Frank is not a consumer under the Act; (2) Frank failed to properly plead a cause of action for mental and emotional anguish; (3) the Act does not allow for the award of punitive damages; and (4) the trial court failed to render findings of fact and conclusions of law. In a cross-point of error, Frank asserts the trial court erred in offsetting his damages by $1000. We overrule DBB's points of error and sustain Frank's cross-point of error.

FACTUAL BACKGROUND

DBB is a licensed bail bond agency. Frank obtained a bail bond from DBB in order to secure the release from jail of a family friend, Nancy Keyes (Keyes). Frank was 81 years old at the time of trial. Frank executed two documents to obtain the bond: (1) an "Application for Indemnitor" and (2) a "Contract to Indemnify Delta Bail Bonds." The Contract to Indemnify Delta Bail Bonds (the Contract) provided as follows:

For and in consideration of Delta Bail Bonds, hereinafter referred to as DBB, securing the release, (from jail) of Nancy Keyes, hereinafter referred to as Bonded Person, I, William Frank, hereinafter referred to as Indemnitor, agree to pay DBB the sum of $5,000 within five (5) Days of a bond forfeiture, or writ of forfeiture of Bonded Person.

In addition to the above, indemnitor agrees to pay DBB all reasonable and necessary expenses incurred, if any, therein in attempting to locate, find, attach, arrest, and submit Bonded Person as a result of the bond forfeiture or writ forfeiture.

Indemnitor further agrees to pay reasonable attorney [sic] fees and court costs if a law suit is brought to recover any indemnity or expenses incurred pursuant to this contract.

A bond-forfeiture occurs when it appears to the judge of the court where Bonded Person's case is docketed that Bonded Person did not appear in court and the judge so designates, notes, writes, or expresses the same on [the] court's docket.

A writ forfeiture occurs when Bonded Person requires an attorney to secure a writ to obtain Bonded Person's release (from jail) and Bonded Person does not appear at the sheriff's office to post Bonded Person's Appearance Bond.

Indemnitor understands that if further explanation is necessary as to the meaning of a bond forfeiture or writ forfeiture, it will be explained by DBB before Indemnitor should sign this contract.

I have fully read this contract, acknowledge an understanding of bond forfeiture and writ forfeiture, and agree to its terms and conditions. ²

(italicized portions indicate where blanks in the form were filled in by hand). The Contract was executed by Frank and DBB on March 3, 1993.

Keyes failed to appear at a hearing. A Bond Forfeiture Warrant/Arrest Warrant was issued on April 20, 1993. Keyes was arrested and placed in jail on May 17, 1993. Evidence presented at trial showed that no judgment nisi was ever signed by the criminal court judge and that DBB never paid on the bond. ³ DBB was discharged on the bond on March 10, 1995.

In late 1993, DBB contacted Frank by telephone. The caller told Frank that someone was coming over to pick up a $1000 check that Frank owed DBB. Frank advised the caller that he had not received a bill for that amount. The caller then called Frank a "son-of-a-bitch" and an "old fart." The caller also threatened to sue Frank. Frank hung up on the caller. Frank was humiliated and upset by the call. DBB filed a lawsuit against Frank several days later. Initially, DBB sought $1000 from Frank. Later it sued Frank for $5000. Frank alleged that DBB's lawsuit caused him mental anguish and humiliation.

Frank's nephew represented him in the litigation with DBB. Evidence was presented showing that the reasonable value of Frank's attorney's fees was at least $2500.

FAILURE TO RENDER FINDINGS AND CONCLUSIONS

In its fifth point of error, DBB asserts the trial court erred in failing to render findings of fact and conclusions of law. As disposition of this point of error will affect the applicable standard of review, we will consider this point of error first.

The trial court signed the final judgment on June 5, 1995. DBB mailed its request for findings of fact on June 26, 1995. ⁴ As June 25, 1995 was a Sunday, the request was timely filed. TEX.R. CIV. P. 21a; TEX.R. CIV. P. 297. Rule 297 requires a party to file a notice of past-due findings when the trial court fails to timely file findings. TEX.R. CIV. P. 297. The transcript before us does not contain a notice of past due findings. Based on the record before us, we conclude that DBB did not satisfy the requirements of Rule 297. Therefore, we overrule DBB's fifth point of error.

APPLICABILITY OF THE ACT

In its first two points of error, DBB asserts the Act does not apply to it because it is not a debt collector and Frank was not a consumer. ⁵ On appeal, DBB does not dispute that it engaged in conduct prohibited by the Act. See TEX.REV.CIV. STAT. ANN. art. 5069-11.02 (Vernon 1987).

A. Standard of Review

When a party fails to secure findings of fact and conclusions of law from a bench trial, we will affirm the trial court's judgment on any theory that finds support in the evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Phillips v. ACS Municipal Brokers, Inc., 888 S.W.2d 872, 874 (Tex.App.--Dallas 1994, no writ); Hartford Accident & Indem. Co. v. Buckland, 882 S.W.2d 440, 446 (Tex.App.--Dallas 1994, writ denied). We will imply all necessary findings to support the trial court's judgment. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex.1980); Buckland, 882 S.W.2d at 446.

When reviewing no evidence (legal sufficiency) points, we consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989). We must consider the evidence in the light most favorable to the verdict. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). It is not within our power to second guess the factfinder unless only one inference can be drawn from the evidence. Havner, 825 S.W.2d at 461. If there is more than a scintilla ⁶ of evidence to support the finding, the no evidence challenge fails. Dupree v. Texas Dep't of Protective Servs., 907 S.W.2d 81, 83 (Tex.App.--Dallas 1995, no writ); see Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

In reviewing factual insufficiency points, we review all of the evidence in the record, including any evidence contrary to the verdict. Plas-Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Dupree, 907 S.W.2d at 83. We will set aside a jury's finding on the basis of a factual insufficiency or great weight and preponderance point only if we determine that the evidence is factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrating bias. Ames v. Ames, 776 S.W.2d 154, 159 (Tex.1989); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652-53 (Tex.1988); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Pilkington v. Kornell, 822 S.W.2d 223, 230-31 (Tex.App.--Dallas 1991, writ denied). If we are inclined to reverse on the basis of a factual insufficiency or great weight and preponderance point, we must "detail the relevant evidence and clearly state why the jury's finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias." Pool, 715 S.W.2d at 635. Additionally, we must set forth in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Id. If we sustain a factual insufficiency or great weight and preponderance point, we can only remand the case. "Our present Constitution empowers the courts of appeals to 'unfind' facts, even if they cannot 'find' them." Pool, 715 S.W.2d at 634. We cannot substitute our interpretation of the evidence for that of the factfinder even if a different answer could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

B. Statutory Interpretation

Construction of a statute is a question of law. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989); Trinity Universal Ins. Co. v. Fidelity & Casualty Co., 837 S.W.2d 202, 204 (Tex.App.--Dallas 1992, no writ). We construe statutes to give effect to the legislature's intent. Dallas Morning News Co. v. Board of Trustees of Dallas Indep. Sch. Dist., 861 S.W.2d 532, 535 (Tex.App.--Dallas 1993, writ denied).

The legislature has instructed us to liberally construe statutes to achieve their purposes and to promote justice. TEX. GOV'T CODE ANN. § 312.006(a) (Vernon 1988); see City of Dallas v. Cornerstone Bank, N.A., 879 S.W.2d 264, 269-70 (Tex.App.--Dallas 1994, no writ). Additionally, we must consider the evil which the statute addresse...