COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00340-CV
ERIC DRAKE APPELLANT
V.
CHASE BANK APPELLEE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2013-20534-158
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MEMORANDUM OPINION1
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Pro se Appellant Eric Drake sued Appellee Chase Bank (1) for reporting
debts of which he was “unfamiliar” on his “credit bureau” and (2) for intentional
infliction of emotional distress.2 Chase moved to dismiss Drake’s claims
pursuant to rule of civil procedure 91a; the trial court granted the motion and
1
See Tex. R. App. P. 47.4.
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Drake sued over twenty other defendants.
awarded Chase attorneys’ fees in the amount of $2,480; Drake filed motions to
reconsider the ruling; and the trial court denied the motions and awarded Chase
additional fees in the amount of $1,545. Drake raises eight issues on appeal.
We will affirm.
A. Rule 91a
Drake argues in his fifth issue that the trial court erred by granting Chase’s
rule 91a motion to dismiss.
Rule 91a allows a party to move to dismiss a baseless cause of action on
the grounds that it has no basis in law or fact. Tex. R. Civ. P. 91a.1. “A cause of
action has no basis in law if the allegations, taken as true, together with
inferences reasonably drawn from them, do not entitle the claimant to the relief
sought.” Id. “A cause of action has no basis in fact if no reasonable person
could believe the facts pleaded.” Id. The motion must identify each cause of
action to which it is addressed and specifically state the reasons the action has
no basis in law, no basis in fact, or both. Tex. R. Civ. P. 91a.2. The trial court
must decide the motion based solely on the pleading of the cause of action,
together with any exhibits permitted by rule 59. Tex. R. Civ. P. 91a.6.
The Houston Fourteenth Court of Appeals recently considered the proper
standard of review to apply to a trial court’s ruling on a rule 91a motion to
dismiss. See Wooley v. Schaffer, No. 14-13-00385-CV, 2014 WL 3955111, at
*2‒4 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, no pet.). After analogizing
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a motion to dismiss under rule 91a to a plea to the jurisdiction and looking to
caselaw interpreting federal rule of civil procedure 12(b)(6), the court reasoned,
We conclude that both determinations of whether a cause of
action has any basis in law and in fact are legal questions that we
review de novo, based on the allegations of the live petition and any
attachments thereto. In conducting our review, . . . we must
construe the pleadings liberally in favor of the plaintiff, look to the
pleader’s intent, and accept as true the factual allegations in the
pleadings to determine if the cause of action has a basis in law or
fact.
Id. at *4; see also City of Dallas v. Sanchez, No. 05-13-01651-CV, 2014 WL
5426102, at *2 n.3 (Tex. App.—Dallas Oct. 27, 2014, no pet. h.) (applying
de novo standard of review to ruling on rule 91a motion to dismiss); Dailey v.
Thorpe, No. 01-13-00492-CV, 2014 WL 4257739, at *2 (Tex. App.—Houston [1st
Dist.] Aug. 28, 2014, no pet.) (same). We agree with the Houston and Dallas
courts and will review de novo the trial court’s ruling on Chase’s rule 91a motion
to dismiss.
Drake pleaded a claim against Chase for irreparable harm to his credit,
alleging that Chase had reported debts of which he was “unfamiliar” on his “credit
bureau.” Although a party may recover loss-of-credit damages, the party must
prevail on a cause of action for which those damages are recoverable, such as
for breach of contract or for a violation of the Deceptive Trade Practices Act. See
Mead v. Johnson Grp., Inc., 615 S.W.2d 685, 688 (Tex. 1981); Connell Chevrolet
Co. v. Leak, 967 S.W.2d 888, 892 (Tex. App.—Austin 1998, no pet.). Drake
pleaded no underlying claim or facts that would support an award of damages for
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harm to his credit, and Texas does not recognize an independent claim for
irreparable harm to credit. See Gabriel v. Associated Credit Union of Tex., No.
14-12-00349-CV, 2013 WL 865577, at *4 n.8 (Tex. App.—Houston [14th Dist.]
Mar. 7, 2013, pet. denied) (mem. op.); Bosch v. Provident Am. Life & Health Ins.
Co., No. 14-06-00694-CV, 2007 WL 3105265, at *3 (Tex. App.—Houston [14th
Dist.] Oct. 25, 2007, pet. denied) (mem. op. on reh’g) (“As to his damage to credit
cause of action, Bosch again fails to cite any law providing for a separate cause
of action.”). Thus, Drake’s harm-to-credit claim has no basis in law, and the trial
court did not err by granting Chase’s rule 91a motion to dismiss that claim.
Drake also pleaded a claim against Chase for intentional infliction of
emotional distress (IIED). He premised the claim upon allegations that Chase
had “wrongly plac[ed] incorrect information on [his] credit bureau.” To support
liability for IIED, the defendant’s conduct must have been extreme and
outrageous, and the distress suffered by the plaintiff must have been so severe
that no reasonable person should have been expected to endure it. GTE Sw.,
Inc. v. Bruce, 998 S.W.2d 605, 616, 618 (Tex. 1999). Drake’s IIED claim has no
basis in fact because no reasonable person could believe that Chase engaged in
extreme and outrageous conduct by merely reporting information on Drake’s
credit or that the credit report could cause Drake distress so severe that no
reasonable person should have been expected to endure it. Drake’s IIED claim
is patently baseless. The trial court therefore did not err by granting Chase’s rule
91a motion to dismiss Drake’s IIED claim. We overrule Drake’s fifth issue.
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B. Attorneys’ Fees
Directing us to the code of criminal procedure and numerous criminal
cases, Drake argues in his first and second issues that the trial court erred by
awarding Chase attorneys’ fees because he was allowed to proceed as an
indigent and that absent evidence of a substantial change in his financial
circumstances, he was presumed to remain indigent for the remainder of the
proceeding for purposes of assessing attorneys’ fees. See Tex. Code Crim.
Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2014). The code of criminal
procedure does not apply to this civil lawsuit; the rules of civil procedure do. See
id. art. 1.02 (West 2005) (stating that the code of criminal procedure “shall govern
all criminal proceedings”); Tex. R. Civ. P. 2 (“These rules shall govern the
procedure in the . . . district courts of the State of Texas in all actions of a civil
nature . . . .”).
Rule of civil procedure 91a.7 states,
Except in an action by or against a governmental entity or a
public official acting in his or her official capacity or under color of
law, the court must award the prevailing party on the motion all costs
and reasonable and necessary attorney fees incurred with respect to
the challenged cause of action in the trial court.
Tex. R. Civ. P. 91a.7 (emphasis added). Thus, excluding actions by or against a
governmental entity or a public official, the rule’s language suggests that an
award of attorneys’ fees to the prevailing party on a rule 91a motion to dismiss is
mandatory, not discretionary. See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.
1998) (“Statutes providing that a party ‘may recover,’ ‘shall be awarded,’ and ‘is
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entitled to’ attorney fees are not discretionary.”). Moreover, the rule says nothing
about exempting indigent parties from paying attorneys’ fees to a party who
prevails under rule 91a. See In re Christus Spohn Hosp. Kleberg, 222 S.W.3d
434, 437 (Tex. 2007) (orig. proceeding) (stating that courts apply the same rules
of construction that govern the interpretation of statutes when construing rules of
procedure); see also City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.
2008) (stating that courts construe statutes according to their plain and common
meaning). As neither Chase nor Drake is a governmental entity or a public
official, the trial court did not err by awarding Chase, the prevailing party,
attorneys’ fees. We overrule Drake’s first and second issues.
Drake argues in his seventh issue that the trial court erred by awarding
Chase attorneys’ fees that it incurred related to his motion to reconsider. Drake
filed the motion to reconsider because the trial court granted Chase’s rule 91a
motion to dismiss Drake’s claims. The trial court did not err by awarding Chase
the additional fees because Chase incurred them in connection with its rule 91a
challenge to Drake’s claims. See Tex. R. Civ. P. 91a.7 (mandating award of all
costs and reasonable and necessary attorney fees incurred with respect to
challenged cause of action). We overrule Drake’s seventh issue.
Drake argues in his sixth issue that the evidence is legally and factually
insufficient to support the award of attorneys’ fees to Chase. The determination
of reasonable attorneys’ fees is a matter within the sound discretion of the trial
court; legal and factual sufficiency points are not independent grounds or error,
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but are relevant factors in assessing whether the trial court abused its discretion.
Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990); see
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). When
considering the reasonableness of a fee, the factfinder should consider the
factors set out in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812,
818 (Tex. 1997).
Regarding Chase’s fees for the initial hearing on its motion to dismiss, its
attorney submitted an affidavit and presented live testimony establishing the
hours devoted to the matter, who performed the work, the rate charged, what
work was performed, and that the fees were reasonable and necessary. Chase
requested fees in the amount of $4,000, but the trial court awarded it only
$2,480. Chase’s attorney provided similar testimony at the hearing on Drake’s
motion to reconsider. The trial court did not abuse its discretion in its award of
attorneys’ fees to Chase. We overrule Drake’s sixth issue.
In his third issue, Drake argues that the trial court erred by not reviewing
caselaw related to assessing attorneys’ fees against indigents and by not
ordering Chase to provide him with copies of cases that it had in its possession.
Drake is apparently referring to an off-the-record exchange that occurred at the
hearing on his motion to reconsider. Drake failed to preserve this issue for
appeal because there is no record of the purported exchange. See Tex. R. App.
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P. 33.1(a) (requiring timely, specific objection and ruling on record to preserve
error). We overrule Drake’s third issue.3
C. Contempt Threat
In his fourth issue, Drake complains that the trial court obstructed justice
and improperly threatened him with incarceration when he was cross-examining
an attorney for a party who is not involved in this appeal. When the attorney told
Drake that he did not understand one of the questions, Drake said, “Well, do you
understand English? I said: What other tools did you use in the legal sense in
order to do your research?” The trial court warned Drake, “And I’m going to have
to interrupt at this point. You’re going to put me in a position where I have to hold
you in contempt and jail you if you’re going to be a smart aleck . . . .” The trial
court may exercise reasonable control over the interrogation of a witness and the
presentment of evidence, see Tex. R. Evid. 611, and it has broad discretion to
maintain control in the courtroom and to prevent what it considers to be a waste
of time. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). To the
extent that Drake preserved this issue for appellate review, the trial court properly
3
Drake served Chase’s counsel with a subpoena to appear at the hearing
on his motion to reconsider. The trial court, however, granted Chase’s motion for
protection from the subpoena. To the extent that Drake assigns any error to the
trial court’s ruling, the trial court did not abuse its discretion by granting Chase’s
motion because Drake had already had an opportunity to cross-examine the
attorney about attorneys’ fees at the original hearing on the motion to dismiss.
See Tex. R. Civ. P. 192.6(b) (permitting court to grant motion for protection to
prevent harassment).
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exercised those powers under these circumstances. We overrule Drake’s fourth
issue.
D. Subject-Matter Jurisdiction
Drake argues in his eighth issue that the trial court lacked subject-matter
jurisdiction over this cause. “A district court has original jurisdiction of a civil
matter in which the amount in controversy is more than $500, exclusive of
interest.” Tex. Gov’t Code Ann. § 24.007(b) (West Supp. 2014). Besides
confirming in his pleadings that the trial court had subject-matter jurisdiction,
Drake averred in his second amended motion to reconsider that his civil claims
had a value of “$101,000.00 to $250,000.00.” We overrule Drake’s eighth issue
and affirm the trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: November 20, 2014
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