Appeal from the County Court at Law No. 1 Fort Bend County,
Texas Trial Court Case No. 15-CCV-054517
consists of Chief Justice Radack and Justices Brown and
Radack Chief Justice.
dispute over damages, appellant, Comerica Bank, argues that
the trial court erred in awarding damages to appellee, John
Minchew. In four issues on appeal, Comerica argues that (1)
the damages are legally and factually insufficient; (2)
Minchew does not qualify as a consumer under the Deceptive
Trade Practices Act; (3) the trial court erred in awarding
attorney's fees; and (4) it was entitled to a setoff.
reverse and render.
2011, Minchew received a loan from Comerica for $30, 000
secured by a certificate of deposit (C.D.) in the same amount
to help pay his business expenses for two of his companies.
At the end of 2013, Minchew was making payments on the loan
and had an outstanding balance of approximately $12, 000.
After Minchew inquired about obtaining another $30, 000 loan
from Comerica, Kaytona Ford, a banker for Comerica, told him
that he would have to pay off the first loan and then he
could enter into a new loan. Minchew stated that to pay off
the new loan, he and his wife would transfer money from her
IRA into Comerica. Minchew testified that Ford informed him
that he did not need to complete any new paperwork for the
to Minchew, Comerica had cashed out his C.D. around the end
of January 2014 without his authorization, paid off the
balance on the loan, and deposited the remaining funds into
Minchew's account. Minchew's wife also withdrew the
funds from her IRA and transferred those funds into
Minchew's account. Minchew later learned that Comerica
had denied his request for a new loan. After his wife noticed
that no loan payments were being deducted from their account,
Minchew met with a manager at Comerica who informed him that
Minchew did not have a loan with Comerica.
testified that he sustained damages because he did not have a
loan anymore, he did not have a C.D., and he lost $18, 000
"by [his wife] taking her savings and our savings of
$30, 000 to purchase the C.D." Minchew's counsel
agreed with the trial court that that his companies had no
damages. Minchew stated that the $30, 000 from the cashing in
of the C.D. was used on their businesses.
agreed on cross-examination that approximately $13, 000 was
deposited into his account in January 2014. He also agreed
that his $30, 000 loan with Comerica had been fully paid off,
that an $18, 000 deposit had been made into his account from
another third-party account, that he had use of the funds in
his account, and that the funds were still in his account or
he had spent some of the funds. Minchew stated that he
"already knew I had a new loan because the manager Ford
said there w[ere] no applications."
wife testified that she did not authorize Comerica to cash in
the C.D. She also testified that she cashed in her IRA for
about $18, 000 to pay off the loan.
testified that at the time of Minchew's loan, she served
as the Banking Center Manager for Comerica Bank. She
testified that when Minchew asked her about getting a new
loan, she told him that the existing loan needed to be paid
off and then he could apply for a new loan. She further
testified that Minchew had to apply for a new loan and that
they completed an application for a new loan "via
phone." She disagreed with Minchew's earlier
testimony that he had been approved for the loan. Ford did
not recall Minchew's wife cashing out her IRA to pay off
the loan or her paying off the loan in any manner. She
testified that she later called and left a voicemail for
Minchew stating that they were not approved for the loan. She
stated that the balance on the loan in January 2014 was $16,
939.49 and that a payment for the same amount came from the
C.D. Ford testified that she had a discussion with Minchew
about using the C.D. to pay the balance of the note and she
disagreed with Minchew's testimony that he did not
authorize cashing in the C.D. She also testified that it was
common to start the process of cashing in a C.D. without the
customer signing documentation. When asked how they were
going to get collateral for the new loan, Ford said they had
$16, 000 left over from the C.D. and they were adding to the
checking account to bring it back to $30, 000 to obtain a new
C.D. Ford insisted that she did not know how they were going
to get their account back to $30, 000 for a new loan.
trial court rendered judgment for Minchew finding that
Comerica owed $16, 922 in damages and $7, 000 in
attorney's fees. Comerica filed a motion to vacate or
reform the judgment along with a brief in support, arguing
that Minchew presented no evidence of damages. Both parties
filed requests for findings of fact and conclusions of law.
After issuing findings of fact ...