First National Collection Bureau, Inc. v. Walker
348 S.W.3d 329
| Tex. App. | 2011Background
- FNCB, a third-party debt collector, called Walker’s cell after number reassignment; calls lasted ~6 months via vendors Global Connect and TCN.
- Walker alleged TCPA violations and Texas statute 35.47(f) for autodialer/prerecorded calls to her cell.
- Jury found 98 calls violated TCPA; awarded statutory and enhanced damages for willful/knowingly violations.
- Trial court entered judgment: $49,000 statutory damages and $98,000 additional damages, plus costs.
- FNCB challenged applicability, scope of damages, vicarious liability, and standards for willful/knowingly conduct.
- Court addressed preservation, preemption, and sufficiency issues, ultimately affirming the judgment against FNCB.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of TCPA and 35.47(f) to debt collection calls | Walker argues TCPA applies to calls by FNCB | FNCB argues Texas law controls; issues not preserved | Error not preserved; issues waived on appeal |
| Limitation to calls actually received | Texas may harmonize with TCPA; calls made covered | Texas may limit to received calls; preemption issue | Court rejects narrow received-calls theory; TCPA governs whether calls were made |
| Vicarious liability for vendor calls | FNCB liable for calls by Global Connect/TCN | No preservation; independent contractor liability unclear | Issue not preserved; judgment affirmed on other grounds |
| Standard for determining additional damages | Willful/knowing standard governs; not clear and convincing | Texas law requires clear and convincing | No preservation; court applied federal standard; affirmed damages |
| Sufficiency of evidence for autodialer/prerecorded calls | Evidence supports both autodialer and prerecorded calls | Evidence legally/factually insufficient | Evidence sufficient; jury findings upheld |
Key Cases Cited
- Chair King, Inc. v. GTE Mobilnet of Houston, Inc., 184 S.W.3d 707 (Tex. 2006) (preemption and state opt-in context under TCPA)
- Intercontinental Hotels Corp. v. Girards, 217 S.W.3d 736 (Tex.App.-Dallas 2007) (class-action/ascertainability; not addressing receive-versus-make issue)
- Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998) (more-than-scintilla sufficiency standard; credibility of witnesses)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex.2003) (more-than-scintilla evidence; standard for reviewing factuals)