In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-18-00013-CV

ROBYN DALE MURPHY, JR., AKA ROBIN DALE MURPHY, JR., Appellant

V.

EXETER FINANCE CORP., Appellee

On Appeal from the County Court at Law No. 2

Gregg County, Texas

Trial Court No. 2016-2095-CCL2

Before Morriss, C.J., Moseley and Burgess, JJ.

Opinion by Justice Moseley
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O P I N I O N

After entering into a written contract to purchase a truck, Robyn Dale Murphy, Jr., aka 

Robin Dale Murphy, Jr.,sued Exeter Finance Corporation, raising claims for usury, deceptive trade 

practices, and breach of contract based on allegations that Exeter charged or received interest 

exceeding the legally allowable rate. Exeter denied the allegations and filed special exceptions, a 

traditional motion for summary judgment, and a no-evidence motion for summary judgment. 

Murphy responded with his own motion for summary judgment. The trial court denied Murphy’s 

motion for summary judgment and granted both Exeter’s traditional and no-evidence motions for 

summary judgment. 

On appeal, Murphy contends that the trial court erred in granting Exeter’s motions for 

summary judgment as to his claims that Exeter had committed usury, had engaged in deceptive 

trade practices, and had breached its contract with him. Murphy also argues that the trial court 

erred in denying his motion for summary judgment (including his claim to recover attorney fees) 

and in granting attorney fees to Exeter. 

We reverse the trial court’s award of attorney fees to Exeter because the fees were not 

incurred to enforce the contract, but we otherwise affirm the trial court’s judgment because 

Murphy failed to produce more than a scintilla of evidence in support of his claims for usury, 

deceptive trade practices, and breach of contract.

I. Factual and Procedural Background

On or about June 26, 2014, Murphy entered into a written Retail Sales Contract, Simple 

Finance Charge Agreement with Excel Pre-Owned Super Center to purchase a 2011 Dodge Ram 
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1500 truck. Excel assigned the contract to Exeter. Murphy paid $17,330.00 for the truck, making 

a $1,000.00 down payment with the remaining principal amount of $16,330.00 to be financed at 

an equivalent rate of 20.6%, resulting in a total finance charge of $12,406.64 if all payments were 

timely and fully made, for a total sales price of $29,736.64. Murphy agreed to make seventy-two 

payments of $399.12 beginning on August 5, 2014. All of this was set out in the contract, to which 

Murphy agreed by affixing his signature.

On December 29, 2016, Murphy filed suit against Exeter1alleging that Exeter demanded, 

charged, and/or received usurious interest. He alleged that this action rendered Exeter liable for 

penalties for having practiced usury and for deceptive trade practices under Sections 17.46, 

subsections (b)(5) and (12), of the Texas Business and Commerce Code (the Deceptive Trade 

Practices Act (DTPA)), in addition to having breached the contract with Murphy. Exeter filed a 

denial and special exceptions. Thereafter, Exeter filed a no-evidence motion for summary 

judgment and a traditional motion for summary judgment, both of which included a claim to 

recover attorney fees. Attached to the motions were a copy of the original contract signed by 

Murphy, a schedule setting out Murphy’s payment history (this also showing the allocation of each 

such payment), a copy of the Motor Vehicle Rate Chart issued by the Texas Office of Consumer 

Credit Commissioner, and an affidavit from Exeter’s attorney which buttressed the claim for 

attorney fees. The attorney’s affidavit claimed “that the attorney’s fees and expenses in the amount 

of $5,550.00 is a reasonable fee for the services rendered in pursuing this claim” and that

 

1The petition also named Excel as a defendant, but Murphy later nonsuited his claims against Excel, leaving Exeter as 

the sole defendant. 
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[i]n the event this matter is appealed to The Court of Appeals, it is [the attorney’s] 

opinion that $7,500.00 is a reasonable and necessary fee. In the event a writ of 

error is filed in the Texas Supreme Court, it is [the attorney’s] opinion that 

$5,500.00 is a reasonable and necessary fee. In the event a writ of error is granted, 

it is [the attorney’s] opinion that $5,500.00 is a reasonable and necessary fee.

Murphy filed a response to Exeter’s motions and a traditional motion for summary judgment, 

arguing that the copy of the original contract and the payment schedule, together with the evidence 

attached to his motion, supported and conclusively proved his claims. The trial court granted 

Exeter’s motions for summary judgment and denied Murphy’s motion. Murphy filed this appeal. 

II. Is There Evidence to Support Murphy’s Claims for Usury?

In his first three points of error, Murphy contends that the trial court erred in granting 

Exeter’s no-evidence motion for summary judgment as to his claims of usury, claimed violations 

of the DTPA, and allegations that Exeter had breached the contract.

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 

S.W.3d 860, 862 (Tex. 2010). “When a party moves for summary judgment on both no-evidence 

and traditional grounds, the appellate court should ordinarily address the no-evidence grounds 

first.” Burleson v. Lawson, 487 S.W.3d 312, 317 (Tex. App.—Eastland 2016, no pet.) (citing

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)).

A no-evidence summary judgment is essentially a pretrial directed verdict. Therefore, we 

apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we 

apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 

(Tex. 2002). We must determine whether Murphy produced any evidence of probative force to 

raise a fact issue on the material questions presented. See id.; Woodruff v. Wright, 51 S.W.3d 727, 
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734 (Tex. App.—Texarkana 2001, pet. denied). Murphy will defeat Exeter’s no-evidence 

summary judgment motion if Murphy presented more than a scintilla of probative evidence on 

each element of its claim. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); 

Rhine v. Priority One Ins. Co., 411 S.W.3d 651, 657 (Tex. App.—Texarkana 2013, no pet.). “More 

than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable 

and fair-minded people to differ in their conclusions.” Crocker v. Babcock, 448 S.W.3d 159, 163

(Tex. App.—Texarkana 2014, pet. denied) (citing Merrell Dow Pharms., Inc. v. Havner, 953 

S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla of evidence exists when the evidence is ‘so 

weak as to do no more than create a mere surmise or suspicion of a fact.’” Id. (quoting King 

Ranch, Inc., 118 S.W.3d at 751). During our analysis, “we review the evidence in the light most 

favorable to the non-movant, credit evidence favorable to that party if reasonable jurors could, and 

disregard contrary evidence unless reasonable jurors could not.” Sage v. Howard, 465 S.W.3d 

398, 402 (Tex. App.—El Paso 2015, no pet.) (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 

582 (Tex. 2006); King Ranch, Inc., 118 S.W.3d at 751).

Murphy’s petition contends that Exeter committed usury, violated the DTPA, and breached 

the contract by charging him interest over and above the 20.6% agreed to in the contract and by 

applying his payments primarily or entirely to accrued interest rather than his principal balance.2 

In order to determine whether the evidence Murphy produced has merit sufficient to overcome 

Exeter’s no-evidence motion for summary judgment, we must first examine the applicable law and 

Exeter’s application of that law to this transaction.

 

2Murphy does not argue that the contract itself or the contract-specified finance rate of 20.6% is usurious.
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If one looks only at the usury laws that prevail in Texas, Murphy’s claim might have some 

merit. However, the applicable laws do not fit so neatly into one box. The motor vehicle 

installment contract Murphy entered into is governed by Chapter 348 of the Texas Finance Code. 

See TEX. FIN. CODE ANN. §§ 348.0015(a), 348.007(d) (West 2016). Under the contract signed by 

Murphy, he was not charged interest, but rather, a time price differential3(a daily finance charge 

in addition to the principal) of $12.50 per $100.00 per year on the principal balance which, over 

seventy-two months, is the equivalent of the 20.6% annualized percentage rate specified in the 

contract.4See TEX. FIN. CODE ANN. § 348.104(d) (West 2016); 7 TEX. ADMIN. CODE

§ 84.201(d)(2)(B)(iii) (West, West current through July 27, 2018) (Office of Consumer Credit 

Comm’r, Time Price Differential). 

Under the terms of the contract, Murphy was assessed a daily finance charge (the amount 

of which is determined by using the true daily earnings method that is based on the annualized 

percentage rate and the outstanding principal balance divided by the 365 days in a year: $16,330 

x 20.6% = $3,368.98 ÷ 365 = $9.21638 per day). See 7 TEX. ADMIN. CODE § 84.201(b), (d)(3)(A)

(West, West current through July 27, 2018) (Office of Consumer Credit Comm’r, Time Price 

 

3A time price differential is not interest. Interest is “compensation for the use, forbearance, or detention of money. 

The term does not include time price differential, regardless of how it is denominated.” TEX. FIN. CODE ANN.

§ 301.002(a)(4) (West 2016). A time price differential is “an amount, however denominated or expressed,” that is 

added to the sales price, principal amount, or amount financed “paid or payable to the seller by the purchaser for the 

privilege of paying the offered sales price after the time of sale,” such as through a retail installment contract. TEX.

FIN. CODE ANN. § 301.002(a)(16) (West 2016), § 348.001(9) (West Supp. 2017).

4The Texas Office of Consumer Credit Commissioner conveniently calculates the equivalent annualized percentage 

rates based on the allowable add-on rate specified in Section 348.104, the model of the vehicle, the year of purchase, 

and the number of payments. TEXAS OFFICE OF CONSUMER CREDIT COMMISSIONER, CURRENT MOTOR VEHICLE RATE 

CHART (2018), https://occc.texas.gov/industry/motor-vehicle-sales-finance-mvsf/rate-charts; TEXAS OFFICE OF 

CONSUMER CREDIT COMMISSIONER, SUPPLEMENT TO MOTOR VEHICLE RATE CHART (2018), 

https://occc.texas.gov/industry/motor-vehicle-sales-finance/rate-charts/supplement.
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Differential). Under this formula, the $9.21638 daily finance charge accrued every day from the

day after the contract was signed until a payment sufficient to reduce the principal was made. If 

the seventy-two scheduled payments of $399.12 were made in full and on time, the principal would 

slowly decrease, which under the above formula, would result in a lower daily finance charge each 

successive month. See 7 TEX. ADMIN.CODE § 84.201(d)(3)(A), (E)(i) (West, West current through 

July 27, 2018) (Office of Consumer Credit Comm’r, Time Price Differential). However, the 

contract clearly stated that payments would be applied first to “earned but unpaid finance charge” 

then “to anything else [Murphy] owe[d] under [the] Agreement,” explaining, “If you do not timely 

make all your payments in at least the correct amount, you will have to pay more Finance Charge” 

and, “If you make scheduled payments early, your Finance Charge will be reduced (less). If you 

make your scheduled payments late, your Finance Charge will increase.” See 7 TEX. ADMIN.CODE

§ 84.201(d)(3)(E)(i) (Office of Consumer Credit Comm’r, Time Price Differential). 

As mentioned previously, Murphy attached the following to his response to Exeter’s noevidence motion for summary judgment: (a) a statement of account from Exeter showing his 

payments from August 2014 through March 2016, and the allocation of each payment toward 

finance charge5and toward principal; (b) a list of calculations listing how much of each payment 

was allocated to the finance charge versus the 20.6% of each payment Murphy alleges should have 

been allocated thereto; and (c) Murphy’s affidavit alleging, in part, that Exeter told him that he 

“had to pay all interest first before any principal payments would be credited to [his] account.” 

 

5Even though the statement of account labels the allocation for a finance charge as “interest,” this is not an interestbased transaction, and a time price differential, no matter how it is denominated or what it is called, is not interest. 

See TEX. FIN. CODE ANN. § 301.002(a)(4), (16) (West 2016), § 348.001(9); 7 TEX. ADMIN. CODE § 84.201(b), 

(d)(3)(A) (Office of Consumer Credit Comm’r, Time Price Differential).
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Murphy’s first payment of $399.12 as prescribed in the contract was due on August 5, 

2014. The finance charge accrued from June 27, 2014, through the scheduled date of Murphy’s 

first payment at a rate of $9.21638 per day. To determine if any payment or allocation shown in 

the statement of account amounts to evidence of usury in violation of Chapter 348 of the Texas 

Finance Code, we examine several of the payments and allocations listed in the statement. That 

examination reveals the following:

1. On August 12, 2014 (seven days after his scheduled payment as set out in the contract was 

to be made), Murphy paid $400.00. As of that date, Murphy owed $433.17 in accrued 

finance charge (47 days x $9.21638 = $433.17). As per the terms of the contract, because 

the payment was less than the total accrued finance charges, his payment was allocated 

entirely to the finance charges, leaving a balance of $33.17 in unpaid finance charges.

2. Murphy failed to pay the scheduled September 5, 2014 payment. On October 11, 2014 

(sixty days after the August payment under the contract was made), Murphy paid another 

$400.00. As of that date, Murphy owed $586.15 in accrued and carried-over, unpaid 

finance charge (60 x $9.21638 = $552.98 + $33.17 = $586.15). His payment of $400.00 

was allocated entirely to finance charges, leaving a balance of $186.15 in unpaid finance 

charges.

3. Murphy failed to make the payment prescribed under the contract to be paid on November 

5, 2014. On December 11, 2014 (sixty days after the payment prescribed in the contract to 

have been paid in October), Murphy paid $890.05. As of that date, Murphy owed $748.35 

in accrued and carried-over, unpaid finance charge (60 x $9.21638 = $562.20 + $186.15 = 

$748.35). Because his payment exceeded the total finance charges, $141.70 was allocated 

to the principal balance ($890.05 - $748.35 = $141.70), reducing the principal from 

$16,330 to $16,188.30. Because the principal balance was reduced, the daily finance rate 

was reduced to $9.13641 ($16,188.30 x 20.6% = $3,334.79 ÷ 365 = $9.13641).

4. On December 22, 2014, eleven days after his previous payment, Murphy paid $140.00. As 

of that date, Murphy owed $100.50 in finance charges (11 x $9.13641 = $100.50). Because 

his payment exceeded the accrued finance charges, $39.50 was allocated to the principal 

balance ($140.00 - $100.50 = $39.50), reducing the principal from $16,188.30 to 

$16,148.80, this reducing the daily finance rate to $9.114117 ($16,148.80 x 20.6% = 

$3,326.6528 ÷ 365 = $9.114117).
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The numerous remaining payments and allocations shown in the statement of account are 

consistent in formulation and allocation with those detailed hereinabove. 

Here, the finance charges and allocations shown in the statement of account follow the 

provisions of the contract as well as the rates and mathematical formulas and allocations authorized 

by Chapter 348 of the Texas Finance Code. See TEX. FIN. CODE ANN. § 348.104 (West 2016);

7 TEX. ADMIN. CODE § 84.201(d)(3)(A), (E)(i) (Office of Consumer Credit Comm’r, Time Price 

Differential). Murphy’s list of calculations is apparently based on a misunderstanding of the 

transaction and the law governing it. Therefore, Murphy’s list of calculations is inaccurate and is, 

therefore, not probative evidence. Similarly, Murphy’s affidavit is not evidence of sufficient 

probative force to raise a fact issue on any material question, because the terms of the contract 

specify that payments will first be allocated to accrued but unpaid finance charges with any 

remainder being allocated to the principal. This is in accord with Section 84.201(d)(3)(A) of the 

Texas Administrative Code. Therefore, even granting all inferences in Murphy’s favor, we find 

that the statement of account, Murphy’s listed calculations, and his affidavit fail to present any 

evidence of probative value to support his usury claim against Exeter. Accordingly, we overrule 

this point of error and affirm the trial court’s judgment granting Exeter’s no-evidence motion for 

summary judgment as to Murphy’s usury claim.

Murphy’s DTPA causes of action pursuant to Section 17.65, subsection (b)(5) and (12), of 

the Texas Business and Commerce Code are based on his claims that in violation of the contract, 

Exeter demanded, charged, and/or received usurious interest and committed the “usury frequent 

practice of applying monthly payments illegally to interest, with frequent, if not all, payments 
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never being credited properly to reduction of principal.” Similarly, Murphy argues that Exeter 

violated the terms of the contract because “Exeter charges, collects, and receives usurious interest” 

and “immediately applies [his] payments to alleged accrued and unpaid interest, and not finance 

charges.” However, as detailed hereinabove, Murphy has produced no evidence of probative force 

that Exeter charged Murphy interest, assessed him finance charges in excess of the rates agreed to 

in the contract or the statutory rates of Chapter 438 of the Finance Code, or allocated Murphy’s 

payments in a manner that violated either the contract or Texas law. Therefore, we overrule his 

second and third points of error and affirm the trial court’s grant of Exeter’s no-evidence motion 

for summary judgment as to Murphy’s DTPA and breach of contract claims.

III. Was Exeter Entitled to an Award of Attorney Fees?

In granting Exeter’s no-evidence motion for summary judgment, the trial court awarded 

Exeter $5,500.00 in attorney fees and expenses, as well as conditional awards in the event of 

successful appeals to the court of appeals and the Texas Supreme Court. In his final point of error, 

Murphy contends that the trial court erred in awarding Exeter attorney fees. 

Whether a party is entitled to recover attorney fees is a question of law that we review 

de novo. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). In Texas, 

attorney fees may not be recovered from an opposing party unless they are authorized by statute 

or by contract between the parties. Id. at 95; Travelers Indem. Co. of Conn. v. Mayfield, 923 

S.W.2d 590, 593 (Tex. 1996). No statute allows attorney fees to be awarded for successfully 

prosecuting a no-evidence motion for summary judgment, so they must be authorized by the 
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contract for the trial court’s award to be proper. Exeter contends that the language of the contract 

signed by Murphy entitles it to an award of attorney fees, and the relevant contract provision states:

If [Exeter] hire[s] an attorney who is not [its] employee to enforce this contract, 

[Murphy] will pay reasonable attorney’s fees and court costs as the applicable law 

allows. [Murphy] will also pay [Exeter’s] reasonable out-of-pocket expenses 

incurred in connection with retaking, holding and selling the vehicle as the 

applicable law allows.

In construing a written contract, our primary concern is to ascertain the intentions of the 

parties as expressed in the instrument. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 

(Tex. 2005); Craig Sessions, M.D., P.A. v. TH Healthcare, Ltd., 412 S.W.3d 738, 742 (Tex. App.—

Texarkana 2013, no pet.). A contract term is given its plain and ordinary meaning unless the 

instrument indicates a different meaning is intended by the parties. Dynegy Midstream Servs., Ltd. 

P’ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009); Craig Sessions, M.D., P.A., 412 S.W.3d 

at 742. 

Here, the contract entitles Exeter to recover attorney fees only if [it] “hire[s] an attorney 

. . . to enforce this contract.” Provisions in contracts which allow the recovery of attorney fees in 

suits to “enforce a contract” are narrowly construed.6 See, e.g., Fazio v. Cypress/GR Houston I,

L.P., 403 S.W.3d 390, 398 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (en banc); Oat Note,

Inc. v. Ampro Equities, Inc., 141 S.W.3d 274, 280–81 (Tex. App.—Austin 2004, no pet.). Though 

 

6Contract provisions allowing the award of attorney fees to the prevailing party in an action “related to,” “brought 

under,” or “with respect to” the contract are interpreted rather broadly. See Robbins v. Capozzi, 100 S.W.3d 18, 26–

27 (Tex. App.—Tyler 2002, no pet.) (holding party entitled to recover attorney fees for successfully defending fraud 

and DTPA claims under contract provision for such fees when agreement allowed their recovery by “[t]he prevailing 

party in any legal proceeding brought under or with respect to the transaction described in his contract”); Rich v. Olah, 

274 S.W.3d 878, 888 (Tex. App.—Dallas 2008, no pet.) (holding that fraud and DTPA tort claims related to contract 

for purpose of provision awarding attorney fees when contract provided for recovery by “prevailing party in any legal 

proceeding related to this contract”).
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Exeter’s pleadings allege that Murphy defaulted on the contract, the trial court made no such 

finding. Exeter did not seek in this suit to repossess the vehicle, failed to bring a counterclaim or 

other cause of action against Murphy for breach of contract, and sought no damages or other relief 

from Murphy that would provide a contractual basis for the award of attorney fees. Therefore, 

Exeter was not entitled to an award of attorney fees because, by its actions in this case, it did not 

seek “to enforce” the contract against Murphy. See Fazio, 403 S.W.3d at 398; Oat Note, Inc., 141 

S.W.3d at 280–81. We sustain this point of error.

We reverse the trial court’s award of attorney fees to Exeter, but affirm the remainder of 

the trial court’s order granting Exeter’s no-evidence motion for summary judgment. 

Bailey C. Moseley

Justice

Date Submitted: July 12, 2018

Date Decided: August 9, 2018