Hingst, Rudy A. v. Providian National Bank--Appeal from County Court at Law No 2 of Galveston County

Affirmed and Opinion filed _____________, 2002

Affirmed and Memorandum Opinion filed June 26, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-01150-CV

____________

RUDY A. HINGST, Appellant

V.

PROVIDIAN NATIONAL BANK, Appellee

On Appeal from County Civil Court at Law No. 2

   Galveston County, Texas

Trial Court Cause No. 47,473

 

M E M O R A N D U M O P I N I O N

Rudy Hingst appeals from a summary judgment favoring Providian National Bank on its no-evidence motion. In a prior lawsuit, Providian sued Hingst to collect on a defaulted credit card account. After the parties settled that lawsuit, Hingst filed the present action, alleging (1) usury, (2) breach of the duty of good faith and fair dealing, and violations of (3) the Texas Deceptive Trade Practices Act (DTPA),[1] (4) the Texas Debt Collection Act (TDCA),[2] and (5) the federal Fair Debt Collection Practices Act (FDCPA).[3] We apply the usual standards of review for no-evidence summary judgments.[4] Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.[5]

DTPA, TDCA and FDCPA Claims

In its no-evidence motion, Providian argued (among other matters) there was no evidence to support the damages element of any of Hingst s claims under the DTPA, the TDCA, or the FDCPA.[6] In his response, Hingst contended his damages arose because he paid more to settle the prior lawsuit than the amount he actually owed on his credit card account.

In an affidavit attached to the response, Hingst s wife stated she contacted Providian on March 16, 1999, and was told by an unnamed person with Providian the balance was $7,561.38. In his own affidavit, Hingst says he was told on March 29, 1999, that the payoff amount was over $10,000 and legal fees had been added to the balance due because the obligation had now been turned over to Providian s attorneys so that suit could be filed. Providian then offered to accept and Hingst agreed to pay $9,500 in settlement of the debt and the lawsuit. Hingst blames Providian for making him pay too much.

In his brief, Hingst asserts the outstanding balance on his credit card was $7,561.38, based on his wife s testimony. There is no evidence this amount included interest; the only credit card statement Hingst attached to his response showed this amount as the outstanding balance more than one year earlier, and Hingst presents neither cancelled checks nor even a bare allegation that he had paid anything in the interim. At the 19.4% rate shown on the credit card statement, more than $1,500 in interest would have accrued by the time of the settlement. Added to the $1,000 in attorney s fees conceded by Hingst, the total due exceeds the $9,500 Hingst paid. Based on this evidence, there is no evidence Hingst overpaid anything.

Moreover, Hingst has presented no evidence the entire overpayment did not represent reasonable attorney s fees. Hingst admitted he was told that attorney s fees had been added to his balance, but presented no expert testimony or other evidence that $2,000 was an unreasonable fee. He submitted deposition excerpts and exhibits showing Providian contracted with its attorney in the first suit for a 33% contingent fee if a responsive pleading was filed, but only a 10% fee (plus costs) in Hingst s case because the case was settled before Hingst filed an answer. But Providian was entitled to a reasonable fee;[7] the contingency fee it agreed to pay its own attorney does not make that amount the ipso facto reasonable fee.[8] Again, Hingst has not presented any evidence that $2,000 was not a reasonable fee, and thus that he overpaid anything.

Hingst s evidence created no more than a surmise or a suspicion that the amount he owed was lower than the amount he paid, and is not sufficient to raise a fact issue. Accordingly, the trial court did not err in granting the no-evidence summary judgment.

Overpayment

Hingst also contends he pleaded a cause of action for over-payment that was not addressed in Providian s no-evidence motion, and thus the trial court erred in entering summary judgment. Because overpayment was specifically challenged by Providian s no-evidence motion, and no more than a scintilla of evidence was presented to show any overpayment, the trial court did not err in granting the summary judgment as to this claim as well.[9]

Abandoned Claims

Although Hingst also pleaded usury and good faith and fair dealing claims, he has not raised any objection on appeal to the summary judgment granted on them. Accordingly, any objection has been waived.[10]

The judgment of the trial court is affirmed.

/s/ Scott Brister

Chief Justice

Judgment rendered and Memorandum Opinion filed June 26, 2003.

Panel consists of Chief Justice Brister and Justices Fowler and Frost.

[1] Tex. Bus. & Com. Code 17.41 .63.

[2] Tex. Fin. Code 392.001 .404.

[3] 15 U.S.C. 1692 1692.

[4] See Tex. R. Civ. P. 166a; Wal-Mart Stores, Inc. v. Rodriquez, 92 S.W.3d 502, 506 (Tex. 2002).

[5] See Tex. R. App. P. 47.4.

[6] Actual damages are an element of each of Hingst s causes-of-action. See Tex. Bus. & Com. Code 17.50(a) (DTPA); Tex. Fin. Code 392.403(a)(2) (TDCA); 15 U.S.C. 1692k(a)(1) (FDCPA).

[7] See Tex. Civ. Prac. & Rem. Code 38.001.

[8] See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

[9] See Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436 37 (Tex.App. Houston [14th Dist.] 1999, no pet.).

[10] See Jacobs v. Satterwhite, 65 S.W.3d 653, 655 (Tex. 2001) (per curiam) (holding court of appeals erred in reversing summary judgment on claim when nonmovant did not complain about the summary judgment on that claim).