*1 641 injury оriginal knee DUNCAN, Justice, that Mauricio’s concurring. tablish a herni- natural for that it not was such view, “a my report Dr. is not Crowe’s otherwise, or, stated disc follow ated “internally incon- study in contradiction” or link in an not a injury was back Mauricio’s re- contrary, Dr. Crowe’s To sistent.” or “chain “sequence” “uninterrupted” is a clearly while port states that “there original his as its source that had events” the cur- probable relationship causal between view, report my Dr. Crowe’s injury. knee injury occupational complaints rent conclusively this essential not establish does not reported, problem ... back is [t]he ques- address this it does not fact directly injury-” the initial from caused tion; question it instead answers way, back another while Mauricio’s Stated injury a direct Mauricio’s back whether “it is a injury,” injury “is to the initial related injury. original knee of his or indirect result injury, not direct consequence of initial employed and those Dr. While Crowe injury.” question initial result of the “naturally result” may equate Commission therefore, injury is is presented, whether do so as wе should directly result —and of, consequence compensable it when opinion that not found have well—I by, injury? directly compensable caused concepts. And other su- equates the two Compen as “Injury,” used the Workers’ it is to hold that opinions appear preme court Act, damage or harm to the sation “means merely injury initial if the sufficient physical body and a disease structure See, e.g., of a cause fatal disease. producing naturally resulting infection Co., 522, Tex. Indem. Ins. Hood v. Texas damаge or harm.” Ann. Tex.Lab.Code (1948). 345, I con- therefore 209 S.W.2d 401.011(26) (Vernon 1996) § (emphasis add judgment. cur in the ed). “naturally A disease or infection re injury product sults” from an it is the when
of an “uninterrupted” “sequence” or “chain of
events.” See Western Sur. v. Cas. & Co.
Gonzales, 524, 518 S.W.2d 527-28
“By ‘naturally,’ the word as used stat
ute, it is not meant the disease which
shown attacked the victim of the usually accident is such disease as and ordi COMPANY, WATERFIELD MORTGAGE narily accident; follows but was INC., Appellant, injury meant that damage caused the accident is shown such that it is v. therefrom, natural disease to follow and Doris Daniel RODRIGUEZ considering anatomy human struc Rodriguez, Appellees. portions body tural in their relations to Maryland each Rogers, other.” Cas. Co. v. No. 04-95-00177-CV. 867, (Tex.Civ.App. — Amarillo Appeals Court refd) 1935, (quoting writ Travelers’ Ins. Co. San Antonio. Smith, 574, (Tex.Civ.App.— 266 S.W. writ)). injury Beaumont When an Sept. merely causes reduced resistance to disease infection, disease infection does “naturally injury. result” from Tex See Burnett, Emp. Ins. Ass’n Tex. (1937); 201-02 Traders & Keakey,
Gen. Ins. Co. v. (Tex.Civ.App.
620-21 writ — Amarillo dism’d). summary judgment,
To be entitled Tex- conclusively es- Builders was *2 Pesota,
William Waggner, S. A. Sharon Pesota, Rosenberg, Waggner David L. & Houston, for appellant. Antonio, Stenberg,
Joe appellee. San RICKHOFF, Before HARDBERGER DUNCAN, JJ.
OPINION HARDBERGER, Justice.
This is a Texas Debt Collections Statute lender, Mortgage case. The cheek for the Rodriguez sent a cashiers (Waterfiеld), by the was found Company, Inc. express $1,537.16 to Waterfield court, requested jury, to have sitting without Rodri- It is the mail on plaintiffs/appellees, the statute. The violated they had time at that position that guezes’ awarded Rodriguezes, (Rodriguez) were *3 of requested been everything that had $7,500.00 in at- done $7,402.61 damages, in actual alas, not share But, did Waterfield $15,000.00 fees, in them. torney’s and little, late was their too Too opinion. affirm. this appeals. We damages. Waterfield this cashiers they returned So reaction. personal check, they the earlier just as had AND DISCUSSION FACTS $2,823.15 now Waterfield check. parents to of a loan Waterfield made on expenses incurred of foreclosure buy in Rodriguez family a house Se- to they by October payable September $26,- note was for promissory The guin. re- Rodriguezes didn’t The foreclose. would and was secured dated 600.00 June demand, that included this new ceive In 1989 property. trust on the deed of check, 6. until October cashiers returned Rodriguez family the note and took over ain foreсlosure had been sold Their home property conveyed them. day before. sale the payment-mak- Rodriguez was not model entry and a forcible then filed Waterfield late, Payments but Water- were often er. They court. justice in detainer suit always eventually. Getting paid field to the conveyed property successful of payments, being in reminded behind against Rodriguez brought this suit FHA. delinquency, bringing pay- then Deceptive Prac- Trade under the Waterfield date, charges, was the ments late (DTPA) Texas Colleс- and the Debt tices Act parties accept this routine. Both seemed Statute, violated alleging that Waterfield tion July usual of business. On course claim was later dismissed. both. The DTPA 1993,though, trouble came. findings of fact found that: The trial court’s Rodriguez received a letter Water- 14. For the want of due $69.16 field that in the loan was default for non- Defendant, want- conduct of the Defendant payment monthly of three In- installments. to lose resi- ed the Plaintiffs Plaintiffs cluding charges, this late amounted to dence. $1,159.72. August payment also loomed of a course con- Defendant undertook large in the near future. and a wanton disre- duct which was callous 31, 1993, August On Waterfield received gard rights plight of of the Plain- $1,468.00: Rodriguez check from for tiffs. installments, enough pay past the four conduct was 16. The of effect Defendant’s short disputed late There is wrongfully misled that Plaintiffs were testimony about would whether September believing, from into Defendant processed. cleared had been We’ll 6th, that Plain- through 17th October never know because sent it back requests complied had in with the tiffs fact 1, 1993, September along with a letter of to cease foreclosure Defendant order $1,537.16, saying now owed which proceedings. included installment and an Law, the trial court its Conclusions charge. additional late This letter found: evidence and there some conflict about the the Texas conduct violated 5. Defendant’s language. exact testified i.e., 11.05(g), mis- Act art. Debt Collection limits there were time when character, extent, or represented $1,537.16 Rodriguez testifiеd was due. Mrs. against a consumer. amount of a debt told that that she called Waterfield and was wrong- $1,537.61 referenced 6. Defendant’s herein if husband sent in the she her loss and Plaintiffs caused ful conduct has would no foreclosure. Waterfield loss damages include legal Said don’t have record testified residence, loss referenced call. herein title/clouding weight We title con- nesses and of the evidence. title/slander residence, and, cerning apply challenge said harm to credit the same stаndards worthiness, reputation, sufficiency jury credit and credit as in a trial. history, anguish, Transp., mental emotional dis- Southern States Inc.
tress, humiliation, anxiety, depression, considering a with S.W.2d being said legal sufficiency point, the amount “no evidence” or $7,402.61. consider the evidence favorable disregard all decision the trier fact court, stated, The trial as earlier contrary. evidence and inferences $7,500.00 $15,- attorneys awarded fees Weirich, 942, 945 Weirich v. exemplary damages. 000.00 Alviar, (Tex.1992); Garza *4 (Tex. 1965). a If the оn evidence offered POINTS OF ERROR fact is than a scintilla will overrule more we brings of points Waterfield five error. Con/Chem, point the of error. Kindred of points Four the , five are or evidence Inc., (Tex.1983). con points insufficient evidence to related the sidering sufficiency point, a factual we assess court’s findings basic and awarding the of all the evidence and reverse for a new trial exemplary. both actual and Point only challenged finding against if is the so is five that Waterfield has a meritorious de- great weight preponderance the and fense bona fide error a matter of law. manifestly unjust. to be Pool v. attorney’s No attack is on made the award of (Tex. Co., Ford Motor discussion, fees. For ease this court will 1986); Bain, Cain opinion break the down to the trial court’s finding of a violation of the Texas Debt Col- lection damages Statute the actual that undisputed It Rodriguez is that made at result. Then we will exemplary discuss the bring payments least two efforts to his cur- damages points of error. case, rent. simply each Waterfield would
up the demand and return the check. When THE TEXAS DEBT Rodriguez COLLECTION August sent the on $1,468.00
STATUTE AND ACTUAL in31 the amount of for four month- installments, ly DAMAGES except he was current for the charges. entirely late It is why not clear specific amade conclu accept Waterfield did not this check and add sion of law that Waterfield’s conduct violated charges payment. the late onto the next We the Texas 11.05(g). Debt Collection Act art. testified, recognize that Waterfield without This statute states: contradiction, they telephoned that draw- the No debt may collector attempt collect or to bank ee told the were check would not collect debts or obtain information con- clear for want of funds. sufficient On the cerning fraudulent, a consumer de- hand, other Mrs. Rodriguez they testified ceptive, or misleading representations put enough to intended funds in the bank to employ which following the practices: cover the check. Whether would this (g) character, misrepresenting extent, the been done or not was never tested send- against consumer, amount a debt a ing given the check bank. The reason misrepresenting judicial its in any status accepting not the check at the time was governmental proceedings; bounce, not that it would but that it was 5069-11.05(g) art. Tex.Rev.Civ.StatAnn. insufficient for the late $69.16 (Vernon 1987). newly $1,537.16, demanded sum of made The trial court a September fully made number on was met findings support conclusions of question law 17 cashiers check. There is summarized above good discussion this check аnd met the last demand was later, It however, ease. noted that the trial court in completely. A Water- week fact, this case sat as the trier of rejected and was in a field this check raised their position judge credibility $2,823.15 posting of the wit- demand because of case, dealing fore, simply with Rodriguez in this are testified he fees. reinstatement finding this, necessary paid but he was the evidence would have never even law. damages the common punitive under given chance because the foreclosure sale he the notice. occurred before received requires a argues that Waterfield Thus, Rodriguez that a home had been malice, implied, on finding actual either family irrevocably years for ten was lost even say They wrongdoer. further part of desperately though part of on the is no evidence of malice escalating trying We to meet demands. exemplary therefore testimony that recognize of Waterfield cannot We damages must be reversed. get tried tо in touch of malice is agree money fore- more and that tell him he owed exemplary in Texas foundation imminent, but could closure It is this court’s Act case. Debt Collections Accepting phone was disconnected. be the foundation opinion that malice can though, pushing through the haste in foreclo- it is damages, but that detainer, sure, entry then forcible However, if malice only foundation. family selling home while the owner is in this case necessary, there essentially offering money that would finding. supрort such *5 current, sup- bring ample him evidence to findings port trial court’s and conclusions of law definition The common damages of law in the area of actual times, and the one damages in modern more of Stat- violation the Texas Debt Collection Charge by Jury comes the Pattern used ute. Borner, 450, 454 610 Co. v. S.W.2d Carnation (Tex.1980). EXEMPLARY DAMAGES damages” an amount “Exemplary means damages Punitive have been awarded your award as you may in discretion that involving in a number of cases the Texas penalty as a example to others E.g. Debt Collection Statute. Marlow v. way by punishment. of Medlin, 558 (Tex.Civ.App.— 938 S.W.2d Jury Texas, 4 Texas Pattern State Bar of 1977, writ); Waco Bank North America of Charges (1993). PJC 110.22 Bell, v. (Tex.Civ.App.— 493 S.W.2d 636 writ); [14th Houston Dist.] are instructions for factors consider cf. The Bank, v. Brown Oaklawn Morris, derived from v. Lunsford 680 The statute itself silent Lavender, (Tex.1988); 679 471 Hofer any specific language involving exemplary or (Tex.1984); S.W.2d and Alamo Nat’l punitive damages. See Tex.Rev.Civ.Stat. (Tex. Kraus, Bank (Vernon 1987). Ann. arts. 5069-11.01—11.11 1981). They include: pre However all common law remedies arе wrong, a. the nature by served the statute: involved, character of the conduct b. provisions None of this Act shall wrong- degree culpability of the c. any or alter at affect remedies law in doer, debtors, equity otherwise available cred- itors, entities, governmental other and sensibilities d. the situation legal entity. concerned, parties 11.11(b) Tex.Rev.Civ.Stat.Ann. art. 5069— of- conduct to which such e. the extent (Vernon 1987). justice proper- public sense fends legislature recently The codified much of iety, relating damages. to exemplary
the law
Tex.
wrongdoer, and
f.
net worth
(Vernon
Chap.
&
Ann.
Civ.Prac.
Rem.Code
for inconvenience
g. compensation
However,
Supp.1996).
Chapter specifi-
attorney’s fees.
cally
Texas
Collection
excludes the
Debt
Jury
Statute.
Pattern
Texas
Tex.Civ.Prac.
&
Ann.
Bar of
Rem.Code
State
(Vernon
(1993).
41.002(b)(6)
Charges
§
Supp.1996).
PJC 110.22
There-
cutting
exemplary damages,
In
Waterfield cites the case Ware v. Pax
ton,
(Tex.1962)
impor
court Bell stated:
trial court’s majority’s agree with either I cannot support the was sufficient evidence judg- its facts or characterization entitled finding that the dam- affirming exemplary the award ment cited damages. Waterfield’s concurring and I file this ages. Accordingly, been punitive where cases opinion. dissenting personal to the debtor abuse awarded show threats, actions phone calls and other Facts or intimidate. Water- to embarrass meant 16, 1993, Rodriguezes made April On present points that none of that field out March, April January, February, agree more these in this We case. by personal cheek mortgage payments pres- not types of harassment were common account in hall’s on their dance drawn taking someоne’s But also think that ent. no pay- They made amount of $1512.04. away they making are from them when home June, July May, July. On ments attempts ever-escalating pay good faith advising the Rodri- a letter Waterfield sent insulting or is worse than threaten- demands poor payment gúezes that of their ing harassed than homeless. them. Better history they in the future be would exemplary dam- trial court awarded with certified funds. payments to make their ages double actual that were Rodriguezes sent Wa- August two to one ratio. We find this reasonable At terfield a check $1468.00. justified by and law. We check, Doris time she sent exemplary damages. affirm the required to and was send- knew she funds; the check was ing certified she knew FIDE BONA ERROR amount due since did for less than the point Waterfield’s fifth last charges; and she include the accrued late error is that are entitled to the defense in the funds knew there were insufficient of bona fide error under the Debt Collection check, although she account to cover the provision Act. This states: deposit expeсted to make before No person guilty shall be of a violation of *7 processed. was When Waterfield received Act complained this if the action of result- check, it a per- it this also noticed that ed from a bona fide notwithstanding error sonal, check, certified, rather than and was the use of procedures adopted reasonable Nonetheless, for less than the amount due. to avoid such error. Patterson, according to Viola the Waterfield (Ver- art. 5069-11.08 Tex.Rev.Civ.StatAnn. president charge vice in of the foreclosure 1987). non pro- department, would have Waterfield (and the but cessed the check added accrued We are agree unable with this charges Rodriguezes’ next point unpaid late of error. It never raised before payment) if sufficient funds any the trial at time and therefore However, Tex.RApp. 52(a). when Waterfield called cover it. waived. P. We also do not bank, the it there were learned see supported evidence that would have Accordingly, in sufficient funds the account. this even if it defense had been raised. We course, the Rodri- Waterfield returned the cheek acknowledge, may that issues guezes September 1. Waterfield on Neither consent, implied plead tried if the copy a Rodriguezes nor the maintained ings Sage don’t raise it. v. North St. Assoc. Ac- (Tex. accompanying the check. Co., cover letter dale Constr. Rodriguez, 1993). cording the letter stated However, to Mrs. only pleading we have only it the check was omission, returnеd evidentiary omission as well. due. was for than amount less As the raised defense was neither pleadings or the evidence we overrule it. referred September Waterfield On de- judgment Rodriguezes’ to the foreclosure
The the trial court affirmed. account which, Doris, partment According September on her mail was sometimes referred attorney. delayed. September the account to its On 18, 1993, attorney Waterfield’s sent out a sale, filed After the foreclosure Waterfield notice, of acceleration. This which
notice entry and detainer action. In re- forcible Rodriguezes stated that should contact suit, sponse, this Rodriguezes filed seek- Sandy Richardson at to deter- exemplary damages 219/434-8285 ing actual and well necessary ... “[t]he mine exact amount prevent temporary restraining order existing prevent cure the defaults and eviction from their home. The trial court sale,” order, foreclosure was received Daniel granted restraining temporary Rodriguez September on 15. Mrs. Rodri- giving sixty days Rodriguezes to make guez copy received her of the notice required payment and avoid eviction. following day day, However, and it was on that she Rodriguez when Mrs. tendered the testified, Sandy that she called not registry Richard- into on amount due the court son got possible day, but Waterfield’s toll-free number the last district clerk re- approval overnight from “Sue” to payment. cashier’s did not fused Septem- on request $1537.16 Waterfield extension TRO because Although ber 17. comput- attorney Waterfield did makes not have $1000 documenting every call, perform er entries customer demanded to this service. its records do not reflect the call to which Discussion
Doris Nor testified. does its file reflect that customary sent its documenting letter Damages, Attorney’s Actual Fees, amount prevent foreclosure —an and Interest only amount that could be calculated after light Viewed in the most favorable to the Waterfield determined the amount of attor- finding, testimony regard- court’s Doris’ ney’s fees far thus inсurred in the foreclosure ing September her call to Waterfield on 16 is process. and, circumstances, some evidence marginally misrepre- sufficient evidence of a September 17, On Mrs. sent a sentation to the trial court’s cashier’s cheek to Waterfield for $1537.16. and conclusion of a violation of the Texas This check was received Waterfield on Accordingly, Debt Collection Act. I concur September September 20. On majority’s judgment affirming the returned check following with the cover fees, award of attorney’s actual letter: pre- postjudgment interest. please Enclosed find cashier’s check $1,537.16. # 117833 for We received this Exemplary Damages September our on office 1993. This majority holds that is not malice re- loan had proceedings foreclosure initiated quired to exemplary damages recover for a 9,1993. We can accept *8 or, violation of the Texas Debt Collection Act the total amount due reinstate loan. is, if it support there sufficient evidеnce I you have by phone, tried to reach but the requisite finding. disagree I malice with number your we have listed for residence holdings. both has been disconnected. I have enclosed view, my will or bad or malice—“ill evil figures reinstatement to bring the loan gross or motive such indifference of current. The foreclosure sale is set for rights will another as amount to willful 5, October 1993. We must have the rein- intentionally or wanton act and with done 4,1993. statement amount October just required out ”—is cause excuse you If need instructions on where send support exemplary award of money or how to use Western Union violation of Act. the Texas Debt Collection any questions, please other contact Paxton, See 359 898 Ware v. S.W.2d our office at 219-434-8309. (Tex.1962) added); (emphasis Ledisco Fin. Serv., Viracola, Doris received this letter October after Inc. v. 957-58 S.W.2d ( writ). already foreclosure sale had Tex.Civ.App. occurred. — Texarkana simply no required, there is if malice is And A.A., in the A Minor. Matter it in this record —whether evidence in- “campaign of harassment of a form No. 04-95-00970-CV. threats, timidation,” or an language, abusive Rodriguezes with attempt blacklist Appeals of Court of friends, See family, or other creditors. Antonio. San Ware, at 899-902. Sept. Moreover, gross law under common standard, Rodriguezes were negligence prove:
required to
(1) standpoint objectively from viewed actor, must act omission risk, degree consid-
involve extreme probability magnitude of the
ering the (2) others, the actor
potential harm actual, subjective awareness
must have involved, proceed but nevertheless
the risk rights, conscious indifference
safety, or of others. welfare Moriel,
Transportation Ins. Co. (Tex.1994); see id. at
(statute merely law codified common defini- gross negligence).
tion of And there is this record that Waterfield acted
with “conscious of the Rodri- indifference” rights,
guezes’ nor is the trial court’s that Water-
field “wanted” the to lose their contrary,
home. To replete record is instances which Waterfield bent over best,
backwards to avoid At foreclosure. Rodriguez’s testimony
Mrs. regarding her call an isolated demonstrates employee
mistake one as to the amount prevent the foreclosure.
Conclusion mistake, unlawful,
A even if does not es- gross negligence,
tablish malice or justify
does not an award of dam-
ages under either Nor Ware Moriel. does
pursuing legal rights, as Waterfield did one’s entry
in its Ac- forcible and detainer action. *9 I
cordingly, majority’s judg- dissent insofar as it
ment affirms trial court’s damage award.