     Case: 09-20862     Document: 00511250036          Page: 1    Date Filed: 09/30/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                        September 30, 2010
                                     No. 09-20862
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

NAOMI CUSHMAN

                                                   Plaintiff – Appellant
v.

GC SERVICES, L.P.

                                                   Defendant – Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (08-CV-2229)


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Naomi Cushman (“Cushman”) filed suit against GC Services, L.P. (“GC ”)
alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692
(“FDCPA”), the Texas Debt Collection Practices Act, Chapter 392 (“TDCPA”),
and the Texas Deceptive Trade Practices–Consumer Protection Act, Business
and Commerce Code, Subchapter E, Chapter 17 (“DTPA”) in connection with
GC’s debt collection practices.         The district court granted GC’s motion for
summary judgment with respect to Cushman’s DTPA claim, denied it with

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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respect to her TDCPA claim, and ultimately directed a verdict in favor of GC on
one of Cushman’s FDCPA claims. After the jury returned a verdict in favor of
GC on the remaining FDCPA and TDCPA claims, the district court denied
Cushman’s motion for a new trial. For the following reasons, we affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      GC first attempted to contact Cushman by phone and mail in March 2008,
in order to collect credit card debts that Cushman owed to American Express.
GC left several voice mail messages for Cushman and mailed several letters
demanding payment.      Cushman placed calls to GC on two occasions in
2008—once on March 31st, and once on May 6th. Cushman alleged that in one
call, a GC employee threatened to contact her employer and family to settle the
debt, or to garnish her wages, and on the second call, another GC employee also
raised the possibility of wage garnishment.
      Cushman also alleged that GC contacted two former employers and her
tenant. GC’s call logs note that employees spoke to two employers who said that
Cushman was no longer employed there. These call logs also show that a GC
employee spoke with Cushman’s tenant on one occasion , telling him that GC did
not know how to reach Cushman. This call occurred after a GC employee had
already spoken directly with Cushman.
      Cushman filed suit against GC, alleging that GC violated provisions of the
FDCPA, TDCPA, and DTPA. Most pertinent to her appeal, Cushman claimed
that GC contacted third parties for a purpose other than obtaining “location”
information as allowed by section 1692b; a violation of section 1692c of the
FDCPA. Before trial, GC moved for partial summary judgment on Cushman’s
TDCPA and DTPA claims. The district court denied summary judgment on the
TDCPA claim, but granted it in favor of GC on the DTPA claim, finding that
Cushman did not have standing to sue under the DTPA because she was not a
“consumer” as required by the Act.

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      At the close of Cushman’s case-in-chief, GC moved for judgment as a
matter of law on all of Cushman’s remaining claims. The court denied the
motions as to Cushman’s TDCPA claim and her claim under section 1692d of the
FDCPA, but granted a directed verdict in favor of GC as to Cushman’s section
1692c claims. The jury returned verdicts in favor of GC on the remaining claims
under the FDCPA and TDCPA. Cushman subsequently moved for a new trial.
She argued that the district court erred in directing a verdict under section
1692c, that GC’s counsel engaged in improper argument in her opening
statement and elicited evidence allegedly barred by a motion in limine, and that
the court failed to instruct the jury as to the relevant evidentiary standards.
The district court denied Cushman’s motion for a new trial. Cushman timely
appealed the grant of summary judgment under the DTPA, the directed verdict
under section 1692c of the FDCPA, and the district court’s denial of her motion
for a new trial.
                                 II. ANALYSIS
      We review the district court’s grant of summary judgment de novo,
applying the same standard as the district court.          Amerisure Ins. Co. v.
Navigators Ins. Co., 611 F.3d 299, 304 (5th Cir. 2010). Summary judgment is
appropriate when, viewed in the light most favorable to the nonmoving party,
“the pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
      This court reviews the district court's grant of judgment as a matter of law
de novo as well. U.S. Commodity Futures Trading Comm'n v. Dizona, 594 F.3d
408, 413 (5th Cir. 2010). Judgment as a matter of law is appropriate after “a
party has been fully heard on an issue during a jury trial and the court finds
that a reasonable jury would not have a legally sufficient evidentiary basis to
find for the party on that issue.” F ED. R. C IV. P. 50(a). “In evaluating such a

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motion, the court must consider all of the evidence in the light most favorable to
the nonmovant, drawing all factual inferences in favor of the non-moving party,
and leaving credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts to the jury.” Dizona, 594 F.3d at
413.
        We review the district court's denial of a motion for a new trial for abuse
of discretion. Alaniz v. Zamora-Quezada, 591 F.3d 761, 770 (5th Cir. 2009).
Further, “[o]ur review is particularly limited when the trial court has denied a
motion for a new trial.” Id. (citing Dotson v. Clark Equip. Co., 805 F.2d 1225,
1227 (5th Cir. 1986)).
A.      Summary Judgment Under the DTPA
        The DTPA provides that “a consumer” may bring an action for a variety
of deceptive business practices listed under the Act. T EX. B US. & C OM. C ODE
A NN. § 17.50(a). The Act defines “consumer” as an individual or entity “who
seeks or acquires by purchase or lease, any goods or services.” T EX. B US. & C OM.
C ODE A NN. § 17.45(4). The DTPA also acknowledges that other Acts may provide
a basis for action under the DTPA. See T EX. B US. & C OM. C ODE A NN. § 17.43;
T EX. B US. & C OM. C ODE A NN. § 17.50(h). The TDCPA contains one of these “tie-
in” provisions to the DTPA, providing that any violation of the TDCPA qualifies
as a “deceptive trade practice” that is actionable under the DTPA. T EX. F IN.
C ODE A NN. § 392.404.
        Cushman argues that the district court erred in granting summary
judgment to GC by finding that she lacked standing as a “consumer” to sue
under the Act. On appeal, Cushman does not contend that she qualifies as a
“consumer” under the DTPA. Rather, she argues that while the text of DTPA
explicitly limits standing to a “consumer,” she may nevertheless maintain a
DTPA claim because consumer status is not required under the TDCPA “tie-in”
provision. In support, Cushman notes that DTPA section 17.50(h) contemplates

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“claimants” under another law rather than “consumers” as used in the rest of
section 17.50. Cushman argues that by distinguishing “consumers,” who may
only recover economic damages, from “claimants” under “another law,” who are
“not limited to recovery of economic damages only,” section 17.50(h) exempts
claimants under “tie-in” provisions from proving consumer status under certain
sections of the DTPA. Additionally, she cites two Texas Supreme Court cases
that she claims stand for the proposition that “claimants” under other laws need
not always prove “consumer” status to maintain a DTPA claim. See Crown Life
Ins. Co. v. Casteel, 22 S.W.2d 378 (Tex. 2000); Aetna Cas. and Sur. Co. v.
Marshall, 724 S.W.2d 770 (Tex. 1987). We disagree.
      The Texas Supreme Court has consistently held that “[o]nly a ‘consumer’
can maintain a cause of action directly under the DTPA.” Casteel, 22 S.W.2d at
386; see also Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987)
(“DTPA plaintiffs must qualify as consumers . . . to maintain a private cause of
action under section 17.50 of the DTPA”). Although the text of section 17.50(h)
distinguishes the type of damages that DTPA plaintiffs bringing claims through
“tie-in” statutes may recover, it does not exempt those claimants from proving
consumer status. See Marketic v. U.S. Bank Nat’l Assoc., 436 F. Supp. 2d 842,
854-55 (N.D. Tex. 2006) (“§ 17.50(h) does not exempt claimants from showing
that they qualify as a ‘consumer’ . . .”); Eads v. Wolpoff & Abramson, LLP, 538
F. Supp. 2d 981, 989 (W.D. Tex. 2008) (holding that a DTPA claimant using the
TDCPA “tie-in” statute must prove consumer status in order to have standing).
      We also find the Texas Supreme Court cases cited by Cushman do not
exempt claimants under “tie-in” statutes from the DTPA’s “consumer”
requirement. Casteel dealt specifically with the relationship between Article
21.21 of the Texas Insurance Code and the DTPA. Article 21.21 provided a cause
of action under that section if the plaintiff was a “person” under Article 21.21’s
definition, and was “injured by another’s acts or practices declared to be unfair

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or deceptive under either (a) Article 21.21, section 4, or (b) DTPA section 17.46.”
Casteel, 22 S.W.2d at 383. The relevant issue in Casteel was whether a claimant
under Art. 21.21, who based their claim off of a DTPA § 17.46 violation, was
required to prove consumer status.         Id.   The court held that Article 21.21
incorporates the “laundry list of deceptive acts” under DTPA section 17.46, but
not the entire DTPA. Id. at 386. See also Aetna, 724 S.W.2d at 772 (“Article
21.21 does not incorporate the entire Deceptive Trade Practices Act . . .”). Thus,
the Casteel court held that an Article 21.21 plaintiff need only prove consumer
status if the particular subsection of DTPA section 17.46(b) she relies upon
requires it. Id.
        Casteel and Aetna concern only the extent to which the consumer status
requirement is incorporated into DTPA-based claims under Article 21.21 of the
Texas Insurance Code. The holding of both cases is limited to claims brought
under Insurance Code Article 21.21, and does not reach claims brought directly
under the DTPA pursuant to “tie-in” statutes such as section 392.404 of the
TDCPA. Therefore, a claimant under the DTPA must still have “consumer”
status in order to have standing. Cushman does not argue on appeal that she
qualifies as a “consumer” under the DTPA, and such an argument lacks merit.
        Therefore, the district court was correct when it granted GC summary
judgment due to Cushman’s lack of standing under the DTPA.
B.      Directed Verdict Under Section 1692c of the FDCPA
        Section    1692c(b)   of   the   FDCPA    prohibits   debt   collectors   from
communicating, “in connection with the collection of any debt,” with any person
except the consumer and a few other explicitly defined other parties including
the consumer’s attorney. 15 U.S.C. § 1692c(b). However, the section does allow
debt collectors to communicate with third parties for the purpose of obtaining
“location information” about the consumer, as contemplated by section 1692b.
The Act defines “location information” as encompassing only “a consumer's place

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of abode and his telephone number at such place, or his place of employment.”
15 U.S.C. § 1692a(7).
      Cushman argues that the district court improperly granted GC’s motion
for judgment as a matter of law, because a reasonable jury could find that GC’s
calls to third parties sought more than just “location information.” Specifically,
she argues that when GC employees reached her former employers and her
tenant by phone, they had already obtained her “location information.”
Cushman asserts that GC already had her home phone number and address
because GC left messages on her answering machine, had records with her
number listed as “home phone,” and mailed letters to her home address that
were not returned. She asserts that GC also knew her place of employment
because its records reflect that she had informed a GC employee that she had
just started a new job. Cushman also claims that a GC employee threatened to
contact her family and employer to try to settle the debt. Cushman reasons that
given GC’s knowledge of these facts and the alleged threat by its employee, the
jury had a legally sufficient evidentiary basis to infer that GC called her former
employers and tenant for reasons other than obtaining location information.
This court disagrees.
      In order to prevail on a motion for judgment as a matter of law, a party
must show that there is “no legally sufficient basis for a reasonable jury to find
for the party on that issue.” F ED. R. C IV. P. 50(a). Further, "the evidence must
be sufficient so that a jury will not ultimately rest its verdict on mere
speculation and conjecture." Anthony v. Chevron USA, Inc., 284 F.3d 578, 583
(5th Cir. 2002). This court has had little occasion to interpret section 1692c of
the FDCPA. Other courts, however, have required that plaintiffs produce some
evidence of the third party conversations other than their own assertions in
order to prove that the call was for purposes other than obtaining location
information. See, e.g., Padilla v. Payco Gen. Am. Credits, Inc., 161 F. Supp. 2d

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264, 274 (S.D.N.Y. 2001) (finding that in order to survive summary judgment on
a FDCPA third party disclosure claim, a party must introduce “competent
evidence, such as affidavits” and not rely on “bare hearsay assertions”).
        Viewing the evidence in a light most favorable to Cushman, she still has
not offered any evidence that GC’s calls to her former employer or tenant were
for purposes other than obtaining location information. She does not offer
affidavits or testimony from those third parties or provide evidence pertaining
to the substance of the conversations. GC’s knowledge of a working phone
number for Cushman, unreturned mail, and awareness of a new job does not
provide a sufficient evidentiary basis to find that GC sought anything other than
“location information” when calling third parties. Such arguments are mere
speculation, and thus the evidence is insufficient to survive a Rule 50(a) motion.
As such, we find that the district court was correct in granting judgment as a
matter of law in favor of GC.
C.      Motion for a New Trial
        Cushman argues that the district court erred in denying her motion for a
new trial. She claims she was prejudiced both by “misconduct” on the part of
GC’s counsel and by the district court’s refusal to use her requested jury
instruction regarding the relevant evidentiary standards.          We find that
Cushman waived some of these issues by failing to timely object at trial and that
the others lack merit.
        Cushman first argues a new trial is warranted because of misconduct by
GC’s counsel during trial.      First, Cushman claims she was prejudiced by
improperly argumentative remarks made by GC’s counsel during her opening
statement. Second, she asserts that the district court allowed witness testimony
that violated one of GC’s own motions in limine, while refusing to allow
Cushman’s counsel to extract such testimony. However, Cushman’s counsel
failed to object to all but one of the allegedly objectionable statements in the

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opening statement and did not object when GC’s counsel allegedly violated the
motion in limine while questioning a witness. “Where no objection is raised in
the trial court,” we are precluded from considering the alleged error, except
under a plain error standard. See Morreale v. Downing, 630 F.2d 286, 290 (5th
Cir. 1980) (citing United States v. Bockius, 564 F.2d 1193 (5th Cir. 1977)). Plain
error review allows reversal of waived issues only if “there has been a
miscarriage of justice.” Id. The statements cited by Cushman in the opening
statement, if argumentative at all, surely do not rise to the level of plain error.
The same is true for the information elicited allegedly in violation of the motion
in limine. Further, this court will only grant a new trial if, considering the
record as a whole, it “concludes that manifest injustice will result from letting
the verdict stand.” Foradori v. Harris, 523 F.3d 477, 506 (5th Cir. 2008) (citing
Johnson v. Ford Motor Co., 988 F.2d 573, 582 (5th Cir. 1993)). Had Plaintiff’s
counsel timely objected at trial, the conduct of defense counsel, if at all improper,
still fails to present any “manifest injustice.”
      Cushman next argues that a new trial is warranted because the court
failed to properly instruct the jury as to the relevant evidentiary standards.
Again, counsel failed to timely object to the proposed jury instructions at trial.
“If a party fails to object with specificity to a proposed instruction, the right to
challenge the instruction on appeal is waived.” Texas Beef Grp. v. Winfrey, 201
F.3d 680, 689 (5th Cir. 2000) (citing Nero v. Industrial Molding Corp., 167 F.3d
921, 932 (5th Cir. 1999)). Conducting plain error review, this court fails to see
any miscarriage of justice resulting from the jury instruction.
      Therefore, we find that the district court was correct in denying
Cushman’s motion for a new trial.




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                             III. CONCLUSION
      For the reasons set forth above, we AFFIRM the district court’s grant of
summary judgment and judgment as a matter of law to Defendant–Appellees,
and its denial of Plaintiff–Appellant’s motion for a new trial.
      AFFIRMED.




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