In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00224-CR ______________________________
CEDRIC A. HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th Judicial District Court Gregg County, Texas Trial Court No. 26698-A
Before Morriss, C.J., Carter, and Cornelius,* JJ. Memorandum Opinion by Justice Cornelius *William J. Cornelius, C.J., Retired, Sitting by Assignment
MEMORANDUM OPINION
Cedric A. Harris appeals from a trial court order revoking his community supervision and sentencing him to five years' confinement. Harris raises only one issue on appeal: he contends that the trial court abused its discretion in revoking his community supervision. Harris raises under this general issue two contentions, (1) that the trial court should have used alternative sanctions rather than revocation, and (2) that the trial court should have conducted an inquiry into Harris' competency to stand trial. We overrule these contentions and affirm the judgment.
The State alleged that Harris violated seven of the conditions of his community supervision. The court, after hearing testimony, found that Harris committed four violations of the terms of his community supervision by (1) knowingly fleeing from a peace officer who was lawfully attempting to detain him; (2) knowingly damaging tangible personal property without the consent of the owner, causing pecuniary loss of between $50.00 and $1,500.00; (3) failing to notify his community supervision officer of his change of address; and (4) failing to complete community service in the amount and within the time required by the conditions of his community supervision.
The evidence that Harris committed these violations is overwhelming and virtually undisputed, but Harris contends that the trial court's discretion would have been better exercised if the court had modified or amended the conditions of community supervision. However, a trial court does not abuse its discretion in revoking community supervision if the State proves that the person on community supervision violated one or more of the conditions of his supervision. Sanchez v. State, 603 S.W.2d 869, 871 (Tex. Crim. App. 1980). Moreover, there is no evidence that reasonable, effective alternative measures were available.
Harris also contends that the trial court should have conducted an inquiry to determine if he was competent to stand trial on the revocation application. A trial court must initiate an inquiry to determine competency only if there is evidence sufficient to create a bona fide doubt in the judge's mind as to the defendant's competency to stand trial. Tex. Code Crim. Proc. Ann. art. 46.02, § 2(a), (b) (Vernon 1979); Alcott v. State, 51 S.W.3d 596, 601 (Tex. Crim. App. 2001); Reeves v. State, 46 S.W.3d 397, 399 (Tex. App.-Texarkana 2001, pet. dism'd).
Harris suggests that he is "mentally challenged," but there is no clear, direct evidence that he is mentally ill or retarded. Harris relies on facts that he took some special education courses in secondary school and that, while attending Kilgore College, he took regular "low level" courses, as circumstantial evidence that he is retarded. Harris' community supervision officer testified, however, that there was nothing in her files and she never had any information indicating that Harris was even mildly retarded.
On the other hand, evidence showed without dispute that Harris graduated from high school and attended Kilgore College. His mother testified that he maintained a "C" average in high school. He has held numerous jobs, he has played football, he drives a car, and he is able to perform the ordinary tasks that average persons perform. His mother did testify at one point that Harris "has a problem with understanding things," and on questioning from Harris' defense counsel as to whether he is mentally retarded, she answered, "Yes, sir. He has some complications."
To be incompetent to stand trial, a person must lack sufficient ability to consult with his lawyer with a reasonable degree of rational understanding, or to have a rational as well as factual understanding of the proceedings against him. Tex. Code Crim. Proc. Ann. art. 46.02, § 1A(a)(1), (2) (Vernon Supp. 2003). We find there is not sufficient evidence in this record to raise a bona fide doubt as to Harris' competency, so the trial court did not abuse its discretion in failing to conduct an inquiry into his competency.
For the reasons stated, we affirm the judgment.
William J. Cornelius*
Justice
*Chief Justice, Retired, Sitting by Assignment
Date Submitted: March 19, 2003
Date Decided: June 12, 2003
Do Not Publish
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-09-00112-CV
______________________________
WENDELL WATSON, Appellant
V.
TELECHECK SERVICES, INC., AND
TRS RECOVERY SERVICES, INC., Appellees
On Appeal from the 123rd Judicial District Court
Panola County, Texas
Trial Court No. 2007-433
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
This opinion on rehearing is issued as a substitute for our original opinion issued September 3, 2010.
In the events described by Wendell Watsons pleadings, Watson was gambling at Harrahs Casino with $1,000.00 in cash he obtained from Harrahs in exchange for his personal check in that amount, when a dispute arose resulting in Harrahs confiscating his cash and ejecting him from the premises. That started a chain of events resulting in this appeal.
Because Harrahs took his cash, Watson stopped payment on his check. Because Watson stopped payment on his check, Harrahs 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 Telechecks customers; and hired TRS Recovery Services, Inc. (TRS), to attempt to collect the check from Watson. Some merchants refused to take Watsons 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 Watsons claims.[1]
We affirm the summary judgment in part and reverse it in part. As to Watsons 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 Watsons alleged cause of action for illegality of contractwhich is not addressed in the summary judgmentwe overrule Watsons related point of error as moot, because (2) Watson did not plead a cause of action for illegality of contract. As to Watsons cause of action for extrinsic fraud, we affirm the summary judgment, because (3) Watsons allegation of extrinsic fraud is an evidentiary issue not preserved for appeal. As to all other causes of action[3] 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 Watsons causes of action accrued.
A trial courts summary judgment is reviewed de novo. Frost Natl Bank v. Fernandez, 315 S.W.3d 494 (Tex. 2010); Tex. Mun. Power Agency v. Pub. Util. Commn, 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.Houston [14th Dist.] 1999, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)). The movant has the burden 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. Dept 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 54849. 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 consumer reporting agency that willfully or negligently violates the provisions of Chapter 20 is civilly liable to the consumer. Tex. Bus. & Com. Code Ann. § 20.09. The term consumer reporting agency, though, does not include a business entity that provides only check verification or check guarantee services. 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 statutes plain language unless that interpretation would lead to absurd results. Tex. Dept of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 17677 (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 of material fact exist regarding contract illegality.
In its summary judgment motion, Telecheck directly addressed its affirmative defenses to each cause of action stated in Watsons fourth amended petition. A few days later, Watson timely filed his fifth amended petition and his response to Telechecks motion. Telechecks motion does not address any claim of illegality, and Watson argues that the fifth amended petition raised illegality as a new cause of action.
Watson claims his fifth amended petition alleges that Telechecks contracts are illegal and that Telecheck did not address such allegations in its motion for summary judgment. Watsons response to Telechecks motion states, however, that:
[Watson] has filed his FIFTH AMENDED ORIGINAL PETITION to alleviate [Telechecks] erroneous conclusions about the allegations of his action, and respectfully requests that the Court take judicial knowledge of [Watsons] 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, Watsons response unambiguously lists the causes of action he alleges in his fifth amended petition, and the list does not include a claim that Telechecks 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, 23233 n.7 (Tex. App.Texarkana 2005, no pet.) (citing Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 32123 (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. No issue of illegality of contract has been pled or ruled on. Because the trial court did not expressly grant summary judgment on any such claim, we overrule this point of error as moot.
(3) Watsons 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 Telechecks 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 Watsons First Amended and Supplemented Plaintiffs Answers and Objections to Telecheck Services, Inc. Request for Interrogatories, Admissions and Production and the various documents attached thereto. Exhibit C consists of Watsons First Amended and Supplemented Plaintiffs Answers and Objections to TRS Recovery 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 prepared or produced these items himself.
To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. See Tex. R. App. P. 33.1(a); State Dept of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992) (op. on rehg). If a party fails to do this, error is not preserved, and the complaint is waived. See Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on rehg).
Here, the final summary judgment was signed and filed September 10, 2009. Watson objected to Telechecks proffered evidence four days later in a letter dated and filed September 14, 2009. Even if Watsons allegations are taken as true, Watson knew or should have known that the exhibits were missing for more than a month before the trial courts summary judgment decision, and he failed to inquire or object regarding their contents during that time. Further, Watson has presented no argument or authority excusing his failure to make a timely objection. Because Watsons objection was not timely made, this issue was not preserved for our review. We overrule this point of error.
(4) There Is a Fact Issue Concerning Whether Watson Owed a Debt
Watson argues that the summary judgment was erroneous because there is a material issue of fact regarding the affirmative defense of truth asserted by the defense in contravention of the defamation cause of action. The fact question here is whether Watson owed a debt, as was allegedly uttered when Telecheck negatively listed Watson in its database or when its customers accessed that database to check on Watsons listed status.
For a private individual to sustain a defamation claim, the plaintiff must prove that the defendant: (1) published a false statement; (2) that was defamatory concerning the plaintiff; (3) while acting with negligence regarding the truth of the statement. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
When a check is presented to a merchant subscribing to Telechecks services, the merchant scans the check and information from the check is transmitted to Telecheck for processing. If Telecheck will warrant the check, the merchant receives only a single-digit numerical code response of 1, effectively approving the individuals check as payment. If the processing reveals evidence the check maker has unpaid check-related debt, Telecheck will not warrant the check and the merchant receives a single-digit numerical code response of 4.
Here, it is undisputed that Telecheck placed Watson on its negative database, refused to warrant his checks, and responded to its inquiring merchants with a code 4 regarding Watson, because he had stopped payment on the Harrahs check. By giving a code 4 response, Telecheck informed subscribing merchants that Watson had unpaid check-related debt. Therefore, to successfully assert truth in its summary judgment proceeding, Telecheck had the burden of conclusively proving, through its summary judgment evidence, that Watson owed unpaid check-related debt.
Watson has consistently denied owing a debt related to the Harrahs check, and he alleged that he stopped payment on the check because Harrahs confiscated the funds for which it was written. In its motion for summary judgment, Telecheck acknowledged that the debt is in dispute and failed to produce any evidence to the contrary. Because Telecheck has failed to conclusively prove that Watson owed a check-related debt, we sustain Watsons point of error on this issue.
(5) There Is a Fact Issue Concerning Whether Defendants Had Actual Malice
Watson also argues that the summary judgment on qualified privilege as a defense to his defamation claim was improper because Telecheck failed to conclusively prove an absence of malice.[4]
A qualified privilege extends to statements made in good faith on a subject in which the maker has an interest or duty, to another person having a corresponding interest or duty. Dixon v. Sw. Bell Tel. Co., 607 S.W.2d 240 (Tex. 1980); Leatherman v. Rangel, 986 S.W.2d 759 (Tex. App.Texarkana 1999, pet. denied); Martin v. Sw. Elec. Power Co., 860 S.W.2d 197 (Tex. App.Texarkana 1993, writ denied). To establish a qualified privilege in a summary judgment proceeding, the defendant has the burden to conclusively establish that the allegedly defamatory statement was made in the absence of actual malice. Randalls Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995); see also Dixon, 607 S.W.2d at 242. Malice means the defendant made the defamatory statement with knowledge of its falsity or in reckless disregard as to its truth. Thomas-Smith v. Mackin, 238 S.W.3d 503 (Tex. App.Houston [14th Dist.] 2007, no pet.).
In the absence of controverting evidence, an affidavit revealing the allegedly defamatory statements sources as reliable, identified sources and denying any doubts as to the truth of the published statement is sufficient to negate actual malice, as a matter of law. Mitre v. La Plaza Mall, 857 S.W.2d 752, 754 (Tex. App.Corpus Christi 1993, writ denied); Johnson v. Sw. Newspapers Corp., 855 S.W.2d 182, 187 (Tex. App.Amarillo 1993, writ denied) (no controverting evidence found, because plaintiffs affidavit argued failure to investigate, rather than actual malice).
As part of its summary judgment evidence, Telecheck submitted the affidavit of Stephen Moore stating that it purchased the check as warrantor pursuant to its contract with Harrahs, placed Watson in its database as someone having an unpaid debt because of the stop-payment order, and that, at the time, it believed this statement to be true and had no reason to doubt its veracity. Here, however, in contrast to Johnson and similar cases, there is evidence in the record that Watson repeatedly contacted Telecheck denying that he owed the debt and informing them that Harrahs confiscated the funds for which the check was written, thereby negating the debt itself. So, here, there is evidence contradicting the defense affidavits. It is for the trier of fact to resolve any dispute in the evidence as to the publication and the circumstances under which the publication was made. See First State Bank of Lyford v. Parker, 28 S.W.2d 269 (Tex. Civ. App.San Antonio 1930, writ dismd).
Taking the evidence favorable to Watson as true and indulging every reasonable inference in his favor, as we must, we find that Telecheck and TRS have failed to conclusively prove an absence of actual malice because a material fact is in dispute. See Nixon, 690 S.W.2d at 54849; McNamara, 71 S.W.3d at 311. Therefore, we sustain Watsons argument on this point.
(6) There Is a Fact Issue Concerning When Watsons Causes of Action Accrued
Watson also contends that the summary judgment was erroneous because Telecheck and TRS failed to prove that Watsons suit was filed after the statutes of limitations had expired on his claims of defamation, intentional infliction of emotional distress, and violations of the FDCPA.
A suit for libel or slander must be brought within one year of the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a) (Vernon 2002). A claim for a violation of the FDCPA must be brought within one year from the date on which the violation occurs. 15 U.S.C. § 1692k(d) (West, Westlaw 2010). A plaintiff must bring a claim for intentional infliction of emotional distress within two years of the accrual of the cause of action. Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon Supp. 2010); Patrick v. McGowan, 104 S.W.3d 219 (Tex. App.Texarkana 2003, no pet.).
The discovery rule is a very limited exception to statutes of limitations and applies only in those cases in which the nature of the injury is both inherently undiscoverable and objectively verifiable. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001). The discovery rule exception operates to defer the accrual of a cause of action until the plaintiff knows, or in the exercise of reasonable diligence should know of the facts giving rise to the claim.[5] Id. A defendant moving for summary judgment must prove that there is no genuine issue of material fact as to when a plaintiff discovers or should have discovered his or her cause of action. See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).
Here, it is undisputed that, on or about August 4, 2003, Telecheck put Watson in its database as a person with unpaid, check-related debt. Nothing in the summary judgment record, however, establishes how Watson knew or should have known of the event at that time. In responses to discovery, Watson admitted that he had at least one check declined in each of 2003, 2004, and 2005. The summary judgment record is silent as to whether the merchants declining those checks subscribed to Telechecks services or whether the merchants declined to accept the checks because of a communication from Telecheck, not to mention whether Watson knew of any linkage to Telecheck in those events.[6] It is true that Watson was asked during a previous hearing, I think youve testified earlier that youve known that youve been on the check data base for some time now, about four years, right? Watson replied, Thats correct. Unclear from that exchange is whether Watson is testifying that he has known of Telechecks negative listing for four years or whether he now knows that he has been on Telechecks list for four years.
We must indulge every reasonable inference in Watsons favor, and we find that a reasonable trier of fact could determine that Watson could not have reasonably known of Telechecks listing until a later date within the applicable statute of limitations. See Nixon, 690 S.W.2d at 54849; McNamara, 71 S.W.3d at 311. Therefore, a material issue of fact exists concerning when Watson knew or should have known facts that would cause limitations to begin running against his causes of action. Accordingly, we sustain Watsons assertions on this point.[7]
Accordingly, as to Watsons alleged causes of action under the Consumer Credit Reporting Act and for extrinsic fraud, we affirm the summary judgment in favor of defendants; as to Watsons point of error for illegality of contract, we overrule it as moot; and, as to all other causes of action asserted by Watson, we reverse the summary judgment and remand this cause to the trial court for further proceedings.
Josh R. Morriss, III
Chief Justice
Date Submitted: August 9, 2010
Date Decided: October 21, 2010
[1]Defendants argued that Watsons claims for defamation were barred by truth, qualified privilege, limitations, and laches. They defended his claims under Chapter 20 of the Texas Business and Commerce Code based on the statute. They asserted that his claims for intentional infliction of emotional distress and violations of the FDCPA were barred by limitations and that the claims for illegality and extrinsic fraud were not preserved for our review.
[2]Tex. Bus. & Com. Code Ann. §§ 20.01.13 (Vernon 2009).
[3]The other asserted causes of action are defamation (whether simple or per se), intentional infliction of emotional distress, and violation of the FDCPA.
[4]Due to our ruling on this issue, we need not address Watsons claim that the statements were made to persons not having an interest or duty in the matter.
[5]While he does not explicitly state as much, Watsons arguments on this issue invoke the discovery rule.
[6]In his brief, Watson argues that he had a check declined February 10, 2006, and that his cause of action could not have accrued before that date. As conceded in Telechecks brief, however, that date is not supported by the summary judgment record and was not before the trial court for consideration at the time of the summary judgment ruling.
[7]Laches does not apply here. Generally, in order to establish a laches defense, the defendants must show (1) the plaintiffs unreasonably delayed in asserting their claim, and (2) the defendants have detrimentally changed their position because of the delay. Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 415 (Tex. App.Corpus Christi 2001, pet. denied); Green v. Parrack, 974 S.W.2d 200, 203 (Tex. App.San Antonio 1998, no pet.). The contours of the defense of laches have been described as follows:
The application of laches, however, is usually limited to cases arising out of equity or actions at law that are essentially equitable in character. Furthermore, this Court has held laches . . . [is] peculiarly available against the assertion of equitable rights, and may not be invoked to resist the enforcement of a purely legal right.
Wayne, 52 S.W.3d at 415 (citations omitted).
The present case involves contractual claims and causes of action for defamation, emotional distress, and statutory violationsall legal rights. Watson has a complete, adequate, legal remedy in the form of a suit for damages. Here, Watson seeks only a legal remedy, money damages. This is a claim based in law, no specific performance or injunctive relief is requested. We conclude that the defense of laches does not apply in this case.