Laura Ford v. Silverado Auto Sales, Ron Quinlan, Sr. and Ron Quinlan, Jr. ( 2020 )

AFFIRMED and Opinion Filed December 31, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00107-CV
LAURA FORD, Appellant
V.
SILVERADO AUTO SALES, RON QUINLAN, SR. AND RON QUINLAN,
JR., Appellees
On Appeal from the County Court at Law No. 2
Grayson County, Texas
Trial Court Cause No. 2019-2-075CV
MEMORANDUM OPINION
Before Justices Myers, Nowell, and Evans
Opinion by Justice Evans
Laura Ford appeals the trial court’s summary judgment in favor of Silverado
Auto Sales, Ron Quinlan, Sr., and Ron Quinlan, Jr., on Ford’s claims arising from
her purchase of an automobile. In seven issues, Ford argues the trial court erred in
allowing Silverado to claim Ford did not timely file her motion for summary
judgment, striking Ford’s motion for summary judgment as untimely, denying
Ford’s motion for rehearing, allowing Silverado to give one day of notice before the
hearing on the motions for summary judgment, and “asking for oral argument for
the Summary Judgments.” Ford also appears to argue that the underlying contract
was unconscionable and her motion for summary judgment established that
Silverado defrauded her. We affirm the trial court’s judgment.
In April 2019, Ford filed her original petition seeking “recovery of the
purchase money for her vehicle that was wrongfully repossessed” by Silverado. The
petition alleged that, on February 22, 2018, she entered into a motor vehicle retail
installment contract with Silverado in connection with the purchase of a 2013
Hyundai Sonata. Ford alleged Ron Quinlan, Jr., was “the authorized agent to sell
the vehicle” to Ford, and Ron Quinlan, Sr., was the owner of Silverado. The terms
of payment were $300.00 per month beginning March 22, 2018 and ending October
22, 2022. The total purchase price for the vehicle was $13,900.00, less a $3,000.00
down payment, leaving $10,900.00 due and owing.
Ford alleged that, while driving the 2013 vehicle off the car lot for the first
time, she noticed the Check Engine Light was on and, when she called Silverado to
inform them of this, she was told to bring it to the Hyundai dealership to find out the
problem. Ford “was told that the part that was defective was under warranty, but
she would have to pay $264.05 in labor costs, which she in fact paid.” Ford quoted
the statement in Silverado’s original answer that “We Gave Her Credit to Her First
Payment and a Discount of $1,000.00 Off of Purchase Price,” which Ford
characterized as “a discount amount of $1264.05” she calculated as “$264.05 repair
cost and $1,000.00 discount.” Ford claimed that, from the “first payment date on
March 22, 2018 until October 22, 2018, [she] made 7 payments of $300 for a total
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of $2,100.” Ford also claimed she made partial payments, including the $1264.05
credit, of $2399.05 between March and the end of September 2018. Thus, Ford
argued, “when one looks at the total payments made and the total credits given, the
amount of $2,399.05 is in excess of $299.05 the total amount owed of $2,100!” Ford
quoted an October 25, 2018 text from Ron Quinlan, Sr., which stated, “These are the
payments you made so far: 4/30 $150, 5/31 $120, 6/23 $290, 8/2 $165, 9/28 $220 =
$945. You should have made $2100 in payments so far.” Citing Silverado’s ledger
submitted in its original answer and the credit of $1264.05 Ford received from
Silverado, Ford reiterated her argument that “the actual amount paid was $2399.05.”
Nevertheless, Ford argued, Silverado repossessed the vehicle in breach of the
purchase agreement. Ford asserted a claim of fraudulent inducement and sought
punitive damages and a return of all monies she paid to Silverado.
On December 3, 2019, Silverado filed a traditional and no evidence motion
for summary judgment. Silverado alleged Ford purchased the vehicle “AS IS,”
financed a principal amount of $12,020.81, agreed to make 55 payments of $300 and
a final payment of $195.84, and agreed to continuously insure the vehicle. After the
purchase, the vehicle needed repairs, and Silverado agreed to deduct the cost of the
repairs from the sale price. Silverado alleged Ford failed to make the loan payments
and failed to keep the vehicle insured, so Silverado repossessed the vehicle.
Attached to the motion was a copy of the retail installment contract between Ford
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and Silverado. The contract contained a “voluntary return of collateral” document
signed by Ford that provided as follows:
I (we) agree to voluntarily return the aforementioned vehicle, which is
the secured collateral under the above referenced contract. I (we)
consent to your acceptance of the collateral in full satisfaction of the
remaining indebtedness, and I (we) relinquish all rights to the vehicle.
I (we) waive my (our) right to notification of disposition of collateral
and my (our) right to required disposition of the vehicle under Section
9-620(e) of the Uniform Commercial Code. I (we) release to [sic] you
from any claim or liability, in tort or breach of contract, or violation of
the Texas Consumer Protection Act or the Texas Finance Code. You
agree to release me (us) from any liability with regard to our obligations
under the Contract, and agree not to pursue any deficiency against me
(us).
The contract also contained a document signed by Ford granting Silverado the
right to repossess the vehicle if Ford failed “to make any payment in accordance
with the retail installment contract” and the right to conduct the repossession at “any
time of the day or night” without notice to Ford. Also attached to the motion was a
“Buyer’s Guide” document signed by Ford and stating in large bold type that the
“warranties for this vehicle” were “AS IS – NO DEALER WARRANTY.” Finally,
the motion contained an “agreement to provide insurance” signed by Ford and
requiring Ford to maintain continuous insurance on the vehicle. In the event Ford
failed to maintain insurance on the vehicle, the agreement authorized Silverado to
obtain insurance and add the premium to Ford’s next payment due under the
installment contract.
In an affidavit attached to the motion, Ron Quinlan, Sr. restated the facts as
alleged in the motion and again stated that Ford failed to make the loan payments as
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agreed and failed to keep the vehicle insured, so the vehicle was repossessed. Also
attached to the motion was a May 11, 2018 letter from GEICO insurance company
providing Silverado with notice that Ford’s insurance policy on the vehicle was
terminated.
Pursuant to a July 22, 2019 docket control order, any motion that requested
summary judgment under Rule 166a, dismissal, judgment as a matter of law, or other
dispositive relief as to any claim had to be filed no later than thirty (30) days prior
to the trial date. On July 23, 2019, the trial court signed an order setting the case for
trial on January 7, 2020. Thus, the deadline for Ford to file a motion for summary
judgment was December 8, 2019.
The July 22, 2019 order further provided, “A party opposing a motion has 14
days (21 days for dispositive motions) from the date the motion was served in
which to file a response and any supporting documents, after which the Court will
consider the submitted motion for decision.” The docket control order specifically
provided, “[A]ll motions shall be considered by submission and without oral
argument.” By order signed December 4, 2019, the trial court set Silverado’s motion
for summary judgment for submission on December 26, 2019. (In the clerk’s record,
there is no other notice or order setting Silverado’s motion for summary judgment
for hearing or submission on a different date). Therefore, Ford’s response to
Silverado’s motion for summary judgment was due December 26, 2019.
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On December 19, 2019, Ford filed a traditional and no-evidence motion for
summary judgment, which was not supported by any affidavits. Ford did not file a
response to Silverado’s motion for summary judgment. On December 31, 2019,
Silverado filed a response to Ford’s motion for summary judgment. On January 1,
2020, Ford filed an amended motion for summary judgment. Again, the motion was
not supported by any affidavits. On January 6, 2020, Silverado filed a motion to
strike Ford’s original and amended motions for summary judgment as untimely filed.
On January 7, 2020, instead of commencing trial the court heard Silverado’s
motion for summary judgment and Silverado’s motion to strike Ford’s motion for
summary judgment. The hearing began with this colloquy:
THE COURT: This case is currently set for trial today but in light of
the competing motions for traditional and no evidence summary
judgment, and defendant’s motion to strike plaintiff’s original and
amended traditional and no evidence motion for summary judgment,
the Court reset this case for trial and scheduled a hearing on the
summary judgment motions today. Is the plaintiff ready to proceed?
[FORD’S COUNSEL]: Plaintiff is ready, yes, Your Honor.
THE COURT: Is the defendant ready to proceed?
[SILVERADO’S COUNSEL]: Yes, Your Honor.
THE COURT: Very well.
At the hearing, although Ford’s counsel denied personally seeing the July 22, 2019
docket control order until a few days before the hearing, he admitted his secretary
may have had it and conceded Ford was bound by it. Nevertheless, Ford’s counsel
argued all applicable dates by counting backward from the date of trial on which the
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trial court heard the pending motions. But when questioned by the trial court, Ford’s
counsel admitted Ford’s original and amended motions for summary judgment were
not timely. The trial court stated, “[I]f you don’t timely file then the Court will not
entertain what is untimely filed. . . .” So, the trial court granted Silverado’s motion
to strike Ford’s original and amended motions for summary judgment.
The trial court then heard Silverado argue its motion for summary judgment.
Ford in turn argued from the allegations in Ford’s pleading. When questioned by
the trial court, Ford’s counsel could not recall whether he had filed a response to
Silverado’s motion for summary judgment and did not provide the trial court a copy
file-marked by the clerk when the trial court asked for a copy since there was no
response in the court’s file. The trial court then ruled,
THE COURT: There are no affidavits or other admissible evidence to
support the assertions set out in the paperwork. And the plaintiff did
not file a response to the defendant’s motion for summary judgment,
either traditional or no evidence setting forth through that response
admissible evidence contradicting the assertions of the defendant in its
motion.
The trial court then rendered summary judgment for Silverado.
On January 15, 2020, Ford filed a motion for rehearing, which the trial court
denied the next day. On January 17, 2020, the trial court signed a summary judgment
ordering that Ford take nothing and noting, in part, that Ford did not “file opposing
affidavits or other written response” to Silverado’s motion for summary judgment.
This appeal followed.
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In her first and second issues, Ford argues the trial court erred in allowing
Silverado to claim Ford did not timely file her motion for summary judgment and
requesting the trial court to strike Ford’s motion. In making these arguments, Ford
argues her motion for summary judgment filed on December 19, 2019 was timely
because rule 166a provides that a motion for summary judgment shall be filed at
least twenty-one days before the time specified for hearing. See TEX. R. CIV. P.
166a(c). As to her deadline to file a response to Silverado’s motion, Ford argues
rule 166a permitted her to file and serve her response not later than seven days prior
to the day of hearing. See id.
We review a trial court’s enforcement of a scheduling order for an abuse of
discretion. G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 542
(Tex. App.—Dallas 2005, no pet.). A trial court abuses its discretion when it acts
arbitrarily or unreasonably without reference to any guiding rules or principles. Id.Rule 166 of the Texas Rules of Civil Procedure allows a trial court to create various
deadlines to control the disposition of the various phases of a case, and provides that
“such order . . . shall control the subsequent course of action[.]” TEX. R. CIV. P.
166(p); see generally Clanton v. Clark, 639 S.W.2d 929 (Tex. 1982) (trial court has
discretion to manage its docket). Thus, the trial court’s docket control order
controlled the applicable deadlines in this case and, under that order, Ford’s motion
for summary judgment was untimely. See id. Ford has not shown the trial court
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abused its discretion when it enforced its docket control order and struck Ford’s
untimely motion for summary judgment.
As regards the deadline for Ford’s response to Silverado’s motion for
summary judgment, rule 166a(c) provides:
Except on leave of court, with notice to opposing counsel, the motion
[for summary judgment] and any supporting affidavits shall be filed and
served at least twenty-one days before the time specified for hearing.
Except on leave of court, the adverse party, not later than seven days
prior to the day of hearing may file and serve opposing affidavits or
other written response.
TEX. R. CIV. P. 166a(c). So, according to the rule, all deadlines are counted back
from the date of the hearing. When a movant files and sets a motion for summary
judgment twenty-one days after filing, the non-movant has only fourteen days to file
a response. Here, consistent with considering summary judgment motions by
submission, the docket control order provided every non-movant twenty-one days
within which to respond to motions for summary judgment. Further, the trial court
set Silverado’s motion for summary judgment for submission allowing twenty-one
days from the date of its setting order for Ford to respond. Our record does not
contain a notice of summary judgment hearing on the day of trial. Rather, the trial
court, having taken the summary judgment under submission but not having ruled
by the day of trial, heard counsel argue the pending motions at trial. Ford has not
argued or cited any authority that the trial court abused its discretion by balancing
the judicial efficiency of setting summary judgment motions for submission, and
allowing all non-movants twenty-one days to respond thereby exceeding rule
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166a(c)’s minimum of fourteen days to respond. We overrule Ford’s first and
second issues.
In her third issue, Ford argues the trial court erred by not granting her motion
for rehearing. In making this argument, Ford repeats her argument that the deadlines
set out in rule 166a operate in such a way that her motion for summary judgment
was timely. Because we have already rejected Ford’s arguments in her first two
issues, we overrule Ford’s third issue.
In her fourth issue, Ford argues the trial court erred by allowing Silverado to
“give ONE DAY NOTICE on January 6 before the hearing date on the summary
judgment motions wherein [Ford] had no time to respond or object.” Ford’s
argument under this issue consists of a single sentence that contains no citation to
authority, and she appears to complain that Silverado’s motion to strike was filed on
January 6, 2019, one day before the hearing on January 7. An appellant's brief “must
contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(h), (i). Failure to cite
applicable authority or provide substantive analysis waives an issue on appeal.
Gator Apple, LLC v. Apple Texas Restaurants, Inc., 442 S.W.3d 521, 538 (Tex.
App.—Dallas 2014, pet. denied). In addition, Ford made this argument to the trial
court at the summary judgment hearing on the day of trial. In response to the trial
court’s questions, Ford’s counsel conceded his staff may have been aware of the
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filings and orders in the case. We conclude nothing is presented for our review on
this issue, but if there was a sufficient argument we would reject it. Id.In her fifth issue, Ford argues the trial court “erred by asking for oral argument
for the Summary Judgments.” Ford complains the parties should not have appeared
in court at the hearing on the motions for summary judgment, and the case should
have been “resolved by submission.” In support of this assertion, Ford cites rule
166a’s provision requiring that “No oral testimony shall be received at the hearing.”
See TEX. R. CIV. P. 166a(c). Ford appears to conflate the appearance of counsel at
trial at which the trial court listened to counsel argue about the pending motions with
prohibited “oral testimony” at such a hearing. Ford cites no authority, and we have
found none, that would support such an argument. In fact, rule 166a(c) specifically
allows for a hearing on a motion for summary judgment. Martin v. Martin, Martin
& Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998).
Also in her fifth issue, in a single sentence without citation to authority or the
record, Ford asserts that her motion for summary judgment “showed overwhelming
documented proof” that Silverado “defrauded [Ford] out of her money and her car.”
We conclude this additional assertion presents nothing for our review. See Gator
Apple, 442 S.W.3d at 538. As we pointed out above, the trial court did not abuse its
discretion in striking Ford’s untimely filed original and amended motions for
summary judgment. Accordingly, we overrule Ford’s fifth issue.
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In her sixth issue, Ford argues the underlying retail installment contract was
“a Predatory Contract that is one-sided and favors” Silverado, and the contract was
unconscionable and unlawful. In making this argument, Ford attacks Silverado’s
“legal conclusion statement,” presumably made in the context of Silverado’s motion
for summary judgment, that “Silverado did not wrongfully repossess the vehicle as
a matter of law.”
Silverado filed a combined traditional and no-evidence summary-judgment
motion. See TEX. R. CIV. P. 166a(c), (i). We review no-evidence motions under the
same legal sufficiency standard as a directed verdict. Painter v. Amerimex Drilling
I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018). Under this standard, the nonmovant has
the burden to produce more than a scintilla of evidence to support each challenged
element of its claims. Id.; see Sandberg v. STMicroelectronics, Inc., No. 05-18-
01360-CV, 2020 WL 1809469, at *3 (Tex. App.—Dallas Apr. 9, 2020, no pet. h.)
(“we must determine whether the nonmovant produced more than a scintilla of
probative evidence to raise a fact issue on the material questions presented.”). In a
traditional motion, the movant has the burden to show there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV.
P. 166a(c). A defendant is entitled to summary judgment if it conclusively negates
at least one element of the plaintiff's claim. Painter, 561 S.W.3d at 130. When
reviewing either type of summary-judgment motion, we view the evidence “in the
light most favorable to the nonmovant, crediting evidence a reasonable jury could
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credit and disregarding contrary evidence and inferences unless a reasonable jury
could not.” Id.
When a party files a hybrid summary judgment motion on both no-evidence
and traditional grounds, we generally first review the trial court’s judgment under
the no-evidence standard of review. Rico v. L-3 Commc’ns Corp., 420 S.W.3d 431,
438-39 (Tex. App.—Dallas 2014, no pet.). Should we determine summary judgment
was appropriate under the no-evidence standard, we need not address issues related
to the traditional summary judgment motion. Id. at 439.
Ford appears to take issue with the underlying contract’s provision, set forth
in “exceedingly small letters,” that “You have thoroughly inspected, accepted, and
approved, the vehicle in all respects.” However, Ford does no more than point out
this provision. Ford also notes there is a place for the parties to sign the contract
twelve lines into the contract, and she calls this “scamming” and “nicely concealed”
but does not address the legal significance of this provision. Accordingly, we
conclude these arguments present nothing for our review. See Gator Apple, 442
S.W.3d at 538.
Ford notes the “as-is” provision in the underlying contract and cites Bishop v.
Creditplex Auto Sales L.L.C., No. 05-15-00395-CV, 2016 WL 3453633, at *6 (Tex.
App. June 23, 2016) as a “win for appellant.” See id. (as-is clause did not
conclusively negate causation because evidence raised fact issue regarding whether
Creditplex’s fraudulent representation or information concealment induced Bishop
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to buy car). Bishop was a case in which appellees moved for directed verdict at trial
arguing solely that the as-is clause negated causation as a matter of law. Id. at *2.
We note Silverado did not rely on the “as-is” provision as a basis for summary
judgment in its favor. Accordingly, we conclude Bishop is not controlling authority
in this case.
As argued in her brief outside the discussion related to her enumerated issues
and raised again in her sixth issue, Ford complains of “blank space” at the end of the
contract. Citing section 348.112 of the finance code, Ford argues her
acknowledgement of delivery of a copy of the retail installment contract must appear
“directly above the buyer’s signature.” See TEX. FIN. CODE ANN. § 348.112(a)(2).
Ford argues her contract with Silverado violates this provision because the
“customer’s signature is approximately four (4) inches below the acknowledgment.”
Ford is incorrect. The copy of the contract attached to her amended motion for
summary judgment contains the following acknowledgement in all capital letters in
bold type on the first page of the contract:
BUYER’S ACKNOWLEDGEMENT OF CONTRACT RECEIPT:
YOU AGREE TO THE TERMS OF THIS CONTRACT AND
ACKNOWLEDGE RECEIPT OF A COMPLETED COPY OF IT.
YOU CONFIRM THAT BEFORE YOU SIGNED THIS
CONTRACT WE GAVE IT TO YOU, AND YOU WERE FREE
TO TAKE IT AND REVIEW IT.
We note Ford’s signature appears directly below this acknowledgement, and several
of the letters in Ford’s signature actually overlap the acknowledgement. We
conclude the placement of the acknowledgement did not violate section 348.112 of
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the finance code. Having reviewed Ford’s arguments, we conclude the trial court
did not err in granting summary judgment in favor of Silverado. See Painter, 561
S.W.3d at 130. We overrule Ford’s sixth issue.
In her seventh issue, Ford argues the trial court “erred in not finding that
Appellant’s Motion for Summary Judgment contained sufficient facts, evidence and
proof that Appellant, Laura Ford, documented proof that the Appellees defrauded
Appellant out of her money and her car.” In making this argument, Ford renews her
attack on the underlying contract as predatory, one-sided, unconscionable, and
unlawful. Because we have rejected these identical arguments against the
underlying contract’s validity, we overrule Ford’s seventh issue.
In an argument raised outside the scope of her enumerated issues, Ford cites
the installment contract’s provision stating that “You will be in default if you do not
pay any amount” when it is due. Ford includes a copy of Silverado’s payment ledger
showing she made only partial payments and argues these payments were “any
amount” payments, and the contract payments “had been adhered to since ‘any
amount’ was in fact paid.” Without any authority to support her construction of this
language, Ford ignores the contract’s terms of payment requiring payments of
$300.00 per month beginning March 22, 2018 and ending October 22, 2022. We
reject Ford’s construction of the “any amount” language contained in the contract.
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We affirm the trial court’s judgment.
/David Evans/
DAVID EVANS
JUSTICE
200107F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAURA FORD, Appellant On Appeal from the County Court at
Law No. 2, Grayson County, Texas
No. 05-20-00107-CV V. Trial Court Cause No. 2019-2-
075CV.
SILVERADO AUTO SALES, RON Opinion delivered by Justice Evans.
QUINLAN, SR. AND RON Justices Myers and Nowell
QUINLAN, JR., Appellees participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees SILVERADO AUTO SALES, RON
QUINLAN, SR. AND RON QUINLAN, JR. recover their costs of this appeal from
appellant LAURA FORD.
Judgment entered December 31, 2020.
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