Date: 11-18-2022

Case Style:

Marcus Eugene Anderson v. American Credit Acceptance

Case Number: 01-21-00110-CV

Judge: Honorable Judge, 281st District Court

Court:

First Court of Appeals Dallas, Texas

On appeal from the 212th District Court Galveston County, Texas

Plaintiff's Attorney: Patrick Lynch

Defendant's Attorney:

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Description:

Dallas, Texas – Contract lawyer represented Appellant with defaulting on a Contract.

On November 8, 2016, Appellant Marcus Eugene Anderson (“Appellant”)
executed a Retail Installment Contract (“Contract”) for the purchase of a 2014
Dodge Ram 3500 (“truck”) from CarMax Auto Superstores, Inc. (“CarMax”). To
secure his obligations under the Contract, Appellant gave CarMax a security interest
in the truck. CarMax subsequently assigned the Contract to Appellee American
Credit Acceptance (“Appellee”). On June 6, 2017, Appellant defaulted on the
Contract by failing to make the required monthly payments due under the Contract.
On August 14, 2019, Appellee sued Appellant for possession of the truck.
Appellee filed a traditional motion for summary judgment on its claims. It
argued it was entitled to take possession of the truck pursuant to the Texas Uniform
Commercial Code (“UCC”) because it had a valid and enforceable security interest
in the truck superior to any interest held by Appellant. It further asserted its security
interest entitled it to take possession of the truck and resell it to satisfy Appellant’s
obligations under the Contract. According to Appellee, Appellant owed $61,619.04
on the Contract as of August 1, 2019.
Appellee submitted a copy of the Contract and an affidavit from Loss
Mitigation Specialist Patricia Lawler (“Lawler”) in support of its motion for
summary judgment.1
In her affidavit, Lawler stated that in her role as a Loss
1 Appellant did not object to Appellee’s summary judgment evidence.
3
Mitigation Specialist for Appellee, she monitored and was familiar with Appellant’s
account, which reflected he defaulted on the Contract on June 6, 2017. Lawler, as
Appellee’s records custodian, authenticated the Contract attached to Appellee’s
motion for summary judgment.
In his response to Appellee’s motion for summary judgment, Appellant
argued he was “entitled to be discharged from personal liability due to the recognized
‘standard suretyship defenses’ afforded him.” Appellant also argued that Appellee
was not entitled to take possession of the truck because Appellee “has no possession
of the original note/draft made by [Appellant], thus not entitled to any security
Interest as a holder in due course absent evidence to validate [Appellee’s] creditor
claims.” Appellant further contended that “Plaintiff may be an Assignee, but is not
entitled to any right superior to any entitlements of the original Guarantor.”
Appellant attached to his response a “Letter of Rogatory,” a UCC financing
statement Appellant filed on March 20, 2018, an unsigned affidavit he prepared for
Appellee to execute, a “Revocation of Consumer’s Guarantee of Payment, nunc pro
tunc, in Favor of Guarantee of Collection,” and a November 5, 2020 “Notice of
Adequate Assurance of Performance.”
4
The trial court granted Appellee’s motion for summary judgment and awarded
Appellee possession of the truck. This appeal followed. 2
Briefing Waiver
Appellant filed his notice of appeal and appellate brief pro se. Although we
liberally construe pro se briefs, we still require pro se litigants to comply with
applicable laws and rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444
(Tex. 2005) (stating pro se litigants are not exempt from rules of procedure and that
“[h]aving two sets of rules—a strict set for attorneys and a lenient set for pro se
parties—might encourage litigants to discard their valuable right to the advice and
assistance of counsel”); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.
1989) (stating appellate courts should construe pro se briefs liberally). The Texas
Rules of Appellate Procedure require an appellant’s brief to contain, among other
things, a clear and concise argument for the contentions made with appropriate
citations to authorities and the record. See TEX. R. APP. P. 38.1(i). When an
appellate issue is unsupported by argument or lacks citation to the record or legal
2 Appellant’s brief is styled as “Appellant’s Bill for Final Judgment, Order, or Decree
on Petition for Appellate Brief Supported by Writ of Mandamus.” To the extent
Appellant is seeking mandamus relief, we deny the request. Appellant is not entitled
to such relief because he has an adequate remedy on appeal. See In re Orsak, ___
S.W.3d. ____, No. 01-21-00481-CV, 2022 WL 3649365, at *3 (Tex. App.—
Houston [1st Dist.] Aug. 25, 2022, no pet. h.) (stating relator is only entitled to
mandamus relief if he establishes trial court abused its discretion and relator has no
adequate remedy on appeal).
5
authority, nothing is presented for review. See Fredonia State Bank v. Gen. Am. Life
Ins. Co., 881 S.W.2d 279, 285 (Tex. 1994) (discussing “long-standing rule” that
inadequate briefing waives issue on appeal); Abdelnour v. Mid Nat’l Holdings, Inc.,
190 S.W.3d 237, 241 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding
appellant waived issue because appellant’s brief did not contain any citations to
relevant authorities or to appellate record for that issue).
We are not responsible for identifying possible trial court error, searching the
record for facts favorable to a party’s position, or conducting legal research to
support a party’s contentions. Walker v. Eubanks, ___ S.W.3d. ____, No. 01-21-
00643-CV, 2022 WL 3722404, at *4 (Tex. App.—Houston [1st Dist.] Aug. 30,
2022, no pet. h.) (citing Fredonia State Bank, 881 S.W.2d at 283–84; Canton-Carter
v. Baylor Coll. of Medicine, 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.]
2008, no pet.; Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895
(Tex. App.—Dallas 2010, no pet.)). Were we to do so, we would be abandoning our
role as judges and undertaking the role of advocate for that party. Walker, ___
S.W.3d. ____, 2022 WL 3722404, at *4 (citing Valadez v. Avitia, 238 S.W.3d 843,
845 (Tex. App.—El Paso 2007, no pet.)).
The final judgment from which Appellant appeals is an order granting
Appellee’s motion for summary judgment. The order awards Appellee possession
of the truck and grants Appellee all writs of process and orders necessary to execute
6
the judgment. In his brief, Appellant does not expressly argue that the trial court
erred by granting summary judgment in favor of Appellee on its claim for possession
of the truck nor does he provide a clear and concise argument as to why the trial
court’s judgment should be reversed.3
See Walker, 2022 WL 3722404, at *4
(holding appellant waived appellate issues relating to trial court’s granting of
summary judgment where his brief did not include any substantive argument, record
references, relevant citations to legal authority, “identify any issue of material fact
he contends the evidence raised or otherwise point out any error allegedly committed
by the trial court in granting summary judgment to Appellees on his breach of
contract claim”). Appellant also does not set forth the summary judgment standard,
apply the standard to this case, or cite to any other relevant legal authority. See
Abdelnour, 190 S.W.3d at 241 (holding appellant waived issue because appellant’s
brief did not contain any citations to relevant authorities or to appellate record for
that issue); see also Canton-Carter, 271 S.W.3d at 931 (“Failure to cite legal
authority or to provide substantive analysis of the legal issues presented results in
waiver of the complaint.”). Among other briefing deficiencies, Appellant does not
identify which elements of its cause of action Appellee failed to prove conclusively
or otherwise allege that he raised any genuine issues of material fact in response to
3 The only reference to a summary judgment proceeding in Appellant’s brief is a
statement included in the “Statements Regarding Oral Argument.”
7
Appellee’s motion precluding summary judgment. See Walker, 2022 WL 3722404,
at *4.
Having failed to comply with Texas Rule of Appellate Procedure 38.1, we
hold Appellant waived his issues on appeal and has presented nothing for our review.
See Walker, 2022 WL 3722404, at *4; Abdelnour, 190 S.W.3d at 241; see also See
TEX. R. APP. P. 38.1(i) (requiring appellant’s brief to contain clear and concise
argument for contentions made, with appropriate citations to authorities and record).
Motion for Summary Judgment
Even if Appellant had not waived his issues on appeal, he would still not
prevail.
A. Standard of Review
We review a trial court’s ruling on a motion for summary judgment de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing
a ruling on a motion for summary judgment, we take as true all evidence favorable
to the nonmovant and indulge every reasonable inference and resolve any doubts in
favor of the nonmovant. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003)). When a plaintiff moves for summary judgment on its cause of
action, it must conclusively prove all essential elements of its claim as a matter of
law. Leonard v. Knight, 551 S.W.3d 905, 909 (Tex. App.—Houston [14th Dist.]
8
2018, no pet.). If the movant establishes its entitlement to judgment, the burden then
shifts to the nonmovant to come forward with competent controverting evidence
sufficient to raise a genuine issue of material fact. Id.
Article 9 of the Uniform Commercial Code provides that when a debtor
defaults on an obligation, a secured party may take possession of the collateral,
dispose of it, and apply the proceeds to help satisfy the obligation. TEX. BUS. &
COM. CODE §§ 9.609(a)(1), 9.610(a), 9.615; see also Foley v. Capital One Bank,
N.A., 383 S.W.3d 644, 647 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The
secured party may do so “pursuant to judicial process.” Id. § 9.609(b)(1).
B. Analysis
While Appellant’s arguments on appeal are not clear, the gist of his arguments
appears to be that Appellee breached its “fiduciary duties” to Appellant in several
ways stemming from CarMax’s assignment of the Contract to Appellee and the
alleged concealment of material facts when Appellant initially executed the
Contract. But those claims, which can best be described as a counterclaim against
Appellee, and possibly a third-party claim against CarMax—were never pleaded by
Appellant.4
Appellant also appears to argue that he is entitled to an offset.
4 CarMax was not a party to the underlying suit. And the record reflects Appellant
never filed an answer or other pleading in the trial court.
9
In support of its motion for summary judgment, Appellee provided an
uncontested affidavit establishing conclusively that it had a security interest in the
Contract and that Appellant defaulted on the Contract. Appellant did not dispute
that CarMax assigned its rights in the Contract to Appellee, that Appellee was “in
possession” of the Contract, or that Appellant defaulted on the Contract. See Foley,
383 S.W.3d at 647 (stating when debtor defaults, secured party may take possession
of the collateral, dispose of it, and apply proceeds to help satisfy debtor’s obligation)
(citing TEX. BUS. & COM. CODE §§ 9.609, 9.610, 9.615). Appellant also does not
argue that he raised an issue of material fact or otherwise direct this Court to any
evidence he brought forth raising an issue of material fact precluding summary
judgment. See Leonard, 551 S.W.3d at 909 (requiring nonmovant to bring forth
competent controverting evidence sufficient to raise a genuine issue of material fact).
Because Appellee conclusively proved all essential elements of its claim as a
matter of law and Appellant failed to bring forth competent summary judgment
evidence raising a question of material fact, we conclude the trial court did not err
by granting Appellee’s motion for summary judgment. See id.
We overrule all of Appellant’s issues

Outcome: We affirm the trial court’s judgment.

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