                                   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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