Manning v. American Express Travel Related Services Co.

904 S.W.2d 139, 1995 Tex. App. LEXIS 979, 1995 WL 271805
CourtCourt of Appeals of Texas
DecidedMay 10, 1995
DocketNo. 10-93-265-CV
StatusPublished

This text of 904 S.W.2d 139 (Manning v. American Express Travel Related Services Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Manning v. American Express Travel Related Services Co., 904 S.W.2d 139, 1995 Tex. App. LEXIS 979, 1995 WL 271805 (Tex. Ct. App. 1995).

Opinion

OPINION

JOHN G. HILL, Justice (Assigned).

Glynn M. Manning and Linda Manning appeal from a summary judgment that they take nothing as to American Express Travel Related Services, Inc., the appellee, and from the trial court’s denial of their cross-motion for partial summary judgment. They contend in two points of error that the trial court erred in granting American Express’s motion and in denying theirs.

We affirm because the trial court did not err in granting summary judgment in favor of American Express and in denying summary judgment in favor of the Mannings because there is no prohibition against American Express charging both an annual fee and interest in excess of 10% where the consumer’s balance is due in full each month.

American Express issues a credit card with which an American Express cardholder may make certain retail purchases. American Express charges an annual fee for the use of its card. Unlike many credit cards, American Express’s agreement with its cardholders is that all balances are to be paid in full each month. American Express charges interest in excess of 10% on unpaid balances. A cardholder is not permitted to continue the practice of not paying the balance in full when due each month.

The Mannings contend that American Express violates the provisions of Title 79 of the Texas Revised Civil Statutes dealing with interest and consumer protection by charging its customers both an annual fee and interest in excess of 10% on unpaid balances. There are no factual issues. The only matter that was before the trial court and before this court is as to whether American Express violates the act by charging both an annual fee and interest in excess of 10% on unpaid balances.

American Express charges interest on unpaid balances under the authority of art. 5069-1.04, V.A.C.S. There is no provision in Chapter 1 of Title 79 that would directly prohibit American Express from charging an annual fee in addition to interest exceeding 10% on unpaid balances.

The Mannings make two arguments as to why American Express is prohibited from charging both an annual fee and interest in excess of 10%. They first refer us to art. 5069-1.04(n)(5), V.A.C.S., which provides that a creditor such as American Express that charges an interest rate based upon the authority of art. 5069-1.04 shall be subject to either the applicable chapter in Subtitle 2 of Title 79 or Chapter 15 of Title 79, as applicable. The Mannings contend that Chapter 6 of Subtitle 2 is applicable to American Express.

The Mannings’ argument that Chapter 6 prohibits American Express from charging both an annual fee and interest in excess of 10% on unpaid balances is premised upon the Mannings’ contention that the American Express cardholder agreement is a retail credit card arrangement as defined by [141]*141art. 5069-6.01(p), V.A.C.S. The statute defines a retail credit card arrangement as “an arrangement, payable in one or more installments, pursuant to which a retail seller or credit card issuer gives to a retail buyer or lessee the privilege of using a credit card for the purpose of purchasing or leasing goods or services from that person, a person related to that person, others licensed or franchised to do business under his trade name or designation, or other persons authorized to honor the card. The term does not include arrangements operated pursuant to any other Chapter of this Title.”

We conclude that because under American Express’s cardholder agreement payments are due in one payment or installment, as opposed to one or more, the agreement does not fall within the definition of a retail credit card arrangement. The Man-nings’ assumption that it does fall within the definition is predicated upon the supposition that by using the term “payable in one or more installments” the legislature meant to include both arrangements that were payable in only one installment, such as that used by American Express, as well as agreements used by most other types of credit card issuers, where the purchaser is authorized to pay balances due in one or more installments. Interpretation of the definition as urged by the Mannings renders the phrase “payable in one or more installments” superfluous because the definition without the phrase would have included both types of agreements. In interpreting the statute, we are to give effect to all of it and not treat any of it as surplusage if possible. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.1987); State v. Touchy, 581 S.W.2d 773, 774 (Tex.Civ.App.1979, writ ref'd n.r.e.). We conclude that the legislature, by including the phrase, meant to limit its application to those cardholder agreements that allow the cardholder to pay unpaid balances in one or more installments, as opposed to those payable in full each month.

The Mannings question the purpose and meaning of 1979 amendments to art. 5069-6.01(p) if they were not made to make Chapter 6 applicable to third-party credit cards such as American Express. We conclude that the purpose of the amendments was to make Chapter 6 applicable to non-bank third-party credit cards that are payable in one or more installments. As we have indicated, American Express was not included because its cards are payable in only one installment.

The Mannings also refer to the use in art. 5069-1.04(n) of the phrase “payable in two or more installments” as indicating that the legislature was intending to include American Express in the definition of “retail credit card arrangement” by using the phrase “payable in one or more installments.”

Art. 5069-1.04(n) deals with loan contracts, not open-end credit card accounts. In that context the phrase “payable in two or more installments” distinguishes between those loan contracts payable in more than one installment from those that might be payable in only one installment.

Here, the purpose of the amendments was to extend coverage of Chapter 6 to certain non-bank third-party credit cards. In that context, the legislature, in order to distinguish between cards on the basis of the number of installments, was required to use the term “payable in one or more installments” because in credit cards the distinction was between cards that are payable in only one installment or payment, such as American Express, and those cards that are “payable in one or more installments.” We conclude that the legislature chose to distinguish between the two by making Chapter 6 applicable only to those payable in one or more installments. In this context the use of the phrase “payable in two or more installments” would have been less accurate with respect to such credit cards because the credit card holder under such arrangements typically has the right to pay in a single installment.

Art. 5069-6.08 provides that Chapter 6 applies exclusively to retail installment transactions as defined in art. 5069-6.01. A retail installment transaction is defined in art. 5069-6.01(e) as “any transaction in which a retail buyer purchases goods or services from a retail seller pursuant to a retail installment contract or retail charge agreement, as defined in this Article, which provides for a time price differential, as defined [142]*142in this Article, and under which the buyer agrees to pay the unpaid balance in one or more installments, together with a time price differential.

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Related

State v. Touchy
581 S.W.2d 773 (Court of Appeals of Texas, 1979)
Chevron Corp. v. Redmon
745 S.W.2d 314 (Texas Supreme Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
904 S.W.2d 139, 1995 Tex. App. LEXIS 979, 1995 WL 271805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/manning-v-american-express-travel-related-services-co-texapp-1995.