Robert B. Smith v. Deere & Company ( 2005 )

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Robert B. Smith

            Appellant

Vs.                  No. 11-03-00314-CV -- Appeal from Brown County

Deere & Company

            Appellee

            This is an appeal from a summary judgment granted in favor of Deere & Company in a suit to collect on a loan contract. Because we find that summary judgment was proper, we affirm.

            On February 6, 2000, Robert B. Smith entered into a loan contract with Deere for the purchase of a corn combine. Smith defaulted on the loan, and Deere repossessed the combine. The combine was placed on a “Bid List” that was distributed to over 3,000 dealers and other interested persons. The combine was sold for $80,000.00, and Deere filed suit against Smith to collect $29,608.97, the remaining balance due on the loan.

            In his sole issue on appeal, Smith argues that the trial court erred in granting Deere’s motion for summary judgment. Smith contends that a fact issue exists as to whether the combine was sold in a commercially reasonable manner. When reviewing a traditional motion for summary judgment, the following standards apply: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 676 (Tex.1979).

            Deere presented summary judgment evidence that Smith was given notice of the sale, that the equipment was placed on Deere’s bid list, that the bid list was sent to over 3,000 dealers and interested persons, and that a dealer of similar equipment disposed of its repossessed collateral in a similar manner. Smith filed an affidavit in his reply to Deere’s motion for summary judgment. In his affidavit, Smith states that the “market value of the equipment, at the time it was turned over to [Deere] was substantially equal to, or equal to, the amount owed against it.” Smith further stated that Deere did not make a timely effort to liquidate the equipment and that, had the sale occurred “in season,” the amount Smith owed Deere would have been reduced or eliminated. Smith contends that his sworn affidavit creates a fact issue as to whether the sale was conducted in a fair and reasonable manner.

              TEX. BUS. & COM. CODE ANN. § 9.627(a) (Vernon 2002) provides:

            The fact that a greater amount could have been obtained by a collection, enforcement, disposition, or acceptance at a different time or in a different method from that selected by the secured party is not of itself sufficient to preclude the secured party from establishing that the collection, enforcement, disposition, or ac-ceptance was made in a commercially reasonable manner.

Disposition of collateral is made in a commercially reasonable manner if the disposition is made “in conformity with reasonable commercial practices among dealers in the type of property that was the subject of the disposition.” TEX. BUS. & COM. CODE ANN. § 9.627(b)(3) (Vernon 2002). Deere presented sufficient summary judgment evidence to conclusively establish that the sale occurred in a commercially reasonable manner. See Latimer v. City National Bank of Colorado City, 715 S.W.2d 825 (Tex.App. - Eastland 1986, no writ).  

            Moreover, it is well settled that conclusory statements unsupported by facts in an affidavit are insufficient to raise a genuine issue of fact to prevent the rendition of summary judgment. Davis v. Medical Evaluation Specialists, Inc., 31 S.W.3d 788, 797 (Tex.App. - Houston [1st Dist.] 2000, pet’n den’d); Latimer v. City National Bank of Colorado City, supra. Smith’s conclusions in his affidavit concerning the market value of the combine and the timing of the sale are not supported by any facts. The trial court did not err in granting Deere’s motion for summary judgment. Smith’s sole issue on appeal is overruled.

            The judgment of the trial court is affirmed.

                                                                                    JIM R. WRIGHT

                                                                                    JUSTICE

February 10, 2005

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.