MacKie's Automotive, Inc. v. Mike Parks ( 2004 )

NO. 07-03-0204-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
FEBRUARY 4, 2004
______________________________
MACKIE’S AUTOMOTIVE, INC.,
Appellant
v.
MIKE PARKS,
Appellee
_______________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B31413-0102; HON. ED SELF, PRESIDING
_______________________________
Memorandum Opinion
_______________________________
Before QUINN, REAVIS and CAMPBELL, JJ.
Mackie’s Automotive, Inc. (Mackie’s) appeals from a summary judgment granted in
favor of appellee Mike Parks (Parks). Mackie’s sued Parks on a sworn account to recover
the costs of services rendered in repairing several motor vehicles. Parks filed a
counterclaim alleging that Mackie’s levied upon him a usurious interest rate. Both litigants
eventually filed opposing motions for summary judgment. Thereafter, the trial court
entered judgment decreeing that Mackie’s take nothing against Parks and awarding Parks
attorney’s fees and costs of court. Two issues pend before us. Therein, Mackie’s argues
that the trial court erred in 1) denying its motion for summary judgment, and 2) granting
summary judgment on Parks’ unverified counterclaim of usury. We affirm the judgment
of the trial court.
Standard of Review
The standard by which we review summary judgments is well established and need
not be reiterated. Instead, we refer the litigants to Nixon v. Mr. Property Management Co.,
690 S.W.2d 546, 548 (Tex. 1985) and Davis v. First Indemnity of Am. Ins. Co., 56 S.W.3d
106 (Tex. App.–Amarillo 2001, no pet.) for its explanation.
Application of Standard
Whether the trial court erred in denying Mackie’s request for summary judgment
depends upon whether it erred in granting that of Parks. This is so because it does not
dispute that it charged a usurious rate of interest, that the rate it charged was more than
twice that allowed by law, or that the consequence of charging the rate can be the loss of
recovery against Parks. Instead, the company posits that the trial court should not have
granted the summary judgment request of Parks because the interest rate levied was an
accidental or a bona fide error. SEE TEX . FIN . CODE ANN . §305.101 (Vernon Supp. 2004)
(stating that a creditor is not subject to penalty for any usurious interest that arose from an
accidental or bona fide error). At the very least, the evidence it presented created a fact
issue regarding the matter, it continued. Furthermore, that evidence consisted of its
president’s attestation that the “company utilized a computerized billing service out of
Atlanta, Georgia, which unknown to Mackie’s Automotive, Inc.[,] included a monthly finance
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charge in excess of that allowed by law” and “[t]he inclusion of a finance charge in excess
of that allowed by law by the computerized service hired by Mackie’s Automotive . . . was
accidental or due to a bona fide error as Mackie’s . . . prior to hiring an attorney to
represent [it] in the appeal of the above styled cause[,] did not know about such error.”
(Emphasis added).1 That no one at Mackie’s knew the rate being levied by the Atlanta
computer service was usurious is of no consequence, however. This is because the
defense of accident or bona fide mistake encompasses clerical errors, not purported
misinterpretations of the law. Mayfield v. San Jacinto Sav. Ass’n, 788 S.W.2d 119, 122
(Tex. App. - Houston [14th Dist.] 1990, writ denied) (holding the defense is limited to clerical
errors and erroneous interpretations of the law are not excused). Nor does it encompass
ignorance of the usury laws. Commercial Credit Equip. Corp. v. West, 677 S.W.2d 669,
677 (Tex. App.–Amarillo 1984, writ ref’d n.r.e.) (stating that the lack of knowledge about
the usury laws or their application to a particular transaction did not constitute a bona fide
error). Moreover, no one at Mackie’s said that they did not intend to charge the rate
actually levied. So, the evidence upon which Mackie’s relies to create a material issue of
fact did and does not do that.
Next, to the extent that Parks may not have verified its allegation of usury when
asserted in its counterclaim, we find the deficiency waived. It is true that one must verify
by affidavit a pleading wherein the defense of usury is raised, unless the truth of the matter
appears of record. TEX . R. APP. P. 93(11). However, Mackie’s did not specially except to
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The excessive rate (1.5 percent per month) was also requested (as prejudgment interest) by
Mackie ’s in the petitio n it originally filed against Parks. The petition was apparently written by an individual
in Ha le C ounty, T exas, not a com puterized billing service in Atlanta, Georgia. And, why the excessive rate
was sou ght in that docum ent goes unjustified.
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the missing verification or otherwise complain of the evidence tendered by Parks to
illustrate that the transaction was usurious. See Decuire v. Sinegal, 617 S.W.2d 725, 726
(Tex. App.–Beaumont 1981, no writ) (stating that the failure to comply with Rule 93 was
waived when the defendant did not specially except to the pleading or object to the
evidence). Thus, the defect was waived.
We overrule each issue asserted by Mackie’s and affirm the judgment of the trial
court.
Brian Quinn
Justice
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