Watson v. Telecheck Serv. Inc
| Decision Date | 03 September 2010 |
| Docket Number | No. 06-09-00112-CV,No. 2007-433,06-09-00112-CV,2007-433 |
| Parties | WENDELL WATSON, Appellant v. TELECHECK SERVICES, INC., AND TRS RECOVERY SERVICES, INC., Appellees |
| Court | Texas Court of Appeals |
On Appeal from the 123rd Judicial District Court Panola County, Texas
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
In the events described by Wendell Watson's pleadings, Watson was gambling at Harrah's Casino with $1,000.00 in cash he obtained from Harrah's in exchange for his personal check in that amount, when a dispute arose resulting in Harrah's confiscating his cash and ejecting him from the premises. That started a chain of events resulting in this appeal.
Because Harrah's took his cash, Watson stopped payment on his check. Because Watson stopped payment on his check, Harrah's called on Telecheck Services, Inc. (Telecheck), a check verification and warranty company, to purchase the check. Telecheck purchased the check; listed Watson negatively in a database accessed by Telecheck's customers; and hired TRS Recovery Services, Inc. (TRS), to attempt to collect the check from Watson. Some merchants refused to take Watson's checks. Watson contacted Telecheck to dispute the debt and demand that his negative listing be removed. Telecheck refused. Watson sued Telecheck and TRS for defamation, intentional infliction of emotional distress, violation of the Texas Consumer Credit Reporting Act, and violation of the Fair Debt Collection Practices Act (FDCPA), as well as, he claims, illegality and extrinsic fraud. Telecheck and TRS sought and were awarded a summary judgment denying all of Watson's claims.1
We affirm the summary judgment in part and reverse it in part. As to Watson's cause of action under the Consumer Credit Reporting Act, 2 we affirm the summary judgment, because (1) neither defendant is a consumer reporting agency as defined by the Act. As to Watson's alleged causes of action for illegality of contract and extrinsic fraud, we affirm the summary judgment, because (2) Watson did not plead a cause of action for illegality of contract, and (3) Watson's allegation of extrinsic fraud is an evidentiary issue not preserved for appeal. As to all other causes of action3 asserted by Watson, we reverse the summary judgment and remand this cause to the trial court for further proceedings, because (4) there is a fact issue concerning whether Watson owed a debt, (5) there is a fact issue concerning whether defendants had actual malice, and (6) there is a fact issue concerning when Watson's causes of action accrued.
A trial court's summary judgment is reviewed de novo. Frost Nat'l Bank v. Fernandez, No. 08-0534, 2010 WL 1526369 (Tex. 2010); Tex. Mun. Power Agency v. Pub. Util. Comm 'n, 253 S.W.3d 184, 192 (Tex. 2007). Summary judgment is proper when a movant establishes that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); French v. Gill, 252 S.W.3d 748, 751 (Tex. App—Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 496, 497 (Tex. App—fcuston [14th Dist.] 1999, no pet.) ). The movant has theburden to conclusively disprove one element of the challenged cause of action or to conclusively prove all of the elements of an affirmative defense. Little v. Tex. Dep' t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004); Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 64546 (Tex. 2000). In deciding whether there is a disputed material fact issue which precludes summary judgment, proof favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49. We indulge every reasonable inference in favor of the nonmovant. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002). Because the trial courts order does not specify the grounds for its summary judgment, we must affirm the summary judgment if any of the theories presented to the trial court are meritorious. Browning v. Prostok, 165 S.W.3d 336, 344 (Tex. 2005); Hill v. Bartlette, 181 S.W.3d 541, 544 (Tex. App—Texarkana 2005, no pet.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)).
(1) Neither Defendant Is a Consumer Reporting Agency
Watson contends that the trial court erred in granting summary judgment because there are genuine issues of material fact and "questions of whether the law was correctly applied' as to whether Telecheck is civilly liable pursuant to Chapter 20 of the Texas Business and Commerce Code.
Chapter 20 of the Texas Business and Commerce Code governs the regulation of consumer credit reporting agencies. Tex. Bus. & Com. Code Ann. §§ 20.01-.13. A Tex. Bus. & Com. Code Ann. § 20.01(5). Here, there is no dispute that Telecheck provides only check verification and guarantee services.
When interpreting a statutory provision, we seek to find and apply the intent of the Legislature; and if the text is unambiguous, we will be guided by"the statute's plain language unless that interpretation would lead to absurd results" Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 176-77 (Tex. 2004); see City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). The plain language of Section 20.09 of the Texas Business and Commerce Code excludes Telecheck from civil liability. Tex. Bus. & Com. Code Ann. § 20.09. Watson fails to cite to any authority in support of his argument that Telecheck is liable under Section 20.09 as a "consumer reporting agency," and we find none. Therefore, Telecheck is entitled to judgment as a matter of law on this cause of action.
Further, nothing in Chapter 20 indicates that a collection and recovery entity, such as TRS, falls under its purview and authority. See Tex. Bus. & Com. Code Ann. §§ 20.01-.13.
Accordingly, we affirm the summary judgment as to this cause of action.
(2) Watson Did Not Plead a Cause of Action for Illegality of Contract
Watson contends that the summary judgment was erroneous because Telecheck failed to address his claim of illegality in its summary judgment motion and because genuine issues ofmaterial fact exist regarding contract illegality.
In its summary judgment motion, Telecheck directly addressed its affirmative defenses to each cause of action stated in Watson's fourth amended petition. A few days later, Watson timely filed his fifth amended petition and his response to Telecheck's motion. Telecheck's motion does not address Watson's claim of illegality, and Watson argues that the fifth amended petition raised a new cause of action that was not properly before the trial court for its consideration at the time of the summary judgment.
Watson's fifth amended petition arguably alleges that Telecheck's contracts are illegal, and Telecheck did not address such allegations in its motion for summary judgment. Watson's response to Telecheck's motion states, however, that:
[Watson] has filed his FIFTH AMENDED ORIGINAL PETITION to alleviate [Telecheck's] erroneous conclusions about the allegations of his action, and respectfully requests that the Court take judicial knowledge of [Watson's] allegations therein, where causes of action are alleged for (1) per se defamation; (2) mental anguish and emotional distress; (3) violations of the Fair Credit Reporting Act; (4) violations of the Consumer Credit Reporting Agencies [sic] Act; and (5) exemplary damages for acting with malice and/or violating the aforesaid statutes.
By its plain language, Watson's response unambiguously lists the causes of action he alleges in his fifth amended petition, and the list does not include a claim that Telecheck's contracts are illegal. A party may not take a position on appeal that is inconsistent with its position in the trial court. See Bulington v. State, 179 S.W.3d 223, 232-33 n.7 (Tex. App—Texarkana 2005, no pet.) (citing Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 321-23 (Tex. 1984)); Nebgen v. Minn. Mining & Mfg. Co, 898 S.W.2d 363, 366 (Tex. App—San Antonio 1995, writ denied); Stewart & Stevenson Servs. v. Enserve, Inc., 719 S.W.2d 337, 341 (Tex. App—Houston [14th Dist.] 1986, writ refd n.r.e.). Watson cannot now complain that Telecheck failed to address a cause of action that he failed to plead at trial. Accordingly, we overrule this point of error and affirm the trial court, s summary judgment on this issue.
(3) Watson's Allegation of Extrinsic Fraud Is an Evidentiary Issue Not Preserved for Appeal
Watson alleges that Telecheck served him with its summary judgment motion and intentionally removed Exhibits B and C to prevent him from knowing that Telecheck attached evidence of his criminal history to their summary judgment evidence. Watson alleges that complete copies, containing the "missing' exhibits, were filed with the trial court. He argues that Telecheck's failure to include the missing pages in his copy of the motion amounts to extrinsic fraud.
Exhibit B to the motion for summary judgment consists of Watson's "First Amended and Supplemented Plaintiff's Answers and Objections to Telecheck Services, Inc. Request for Interrogatories, Admissions and Production' and the various documents attached thereto. Exhibit C consists of Watson's "First Amended and Supplemented Plaintiff's Answers and Objections to TRSRecovery Services, Inc. Request for Interrogatories, Admissions and Production' and the various documents attached thereto. These two exhibits were, presumably, items with which Watson was quite familiar, having...
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