                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-16-00388-CV


SUNTRUST BANK                                                    APPELLANT

                                           V.

MARK A. MONROE                                                    APPELLEE

                                        ----------

         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
                  TRIAL COURT NO. CV-2014-02417

                                        ----------

                          MEMORANDUM OPINION1

                                        ----------

                                     I. Introduction

      Appellant SunTrust Bank sued Appellee Mark A. Monroe for breach of

contract based on his failure to make payments on an Aston Martin, which it

repossessed and sold before seeking a deficiency judgment against him.

Monroe counterclaimed for damage to his credit, and a jury trial resulted in a


     1
         See Tex. R. App. P. 47.4.
take-nothing judgment.      In three issues, SunTrust appeals the trial court’s

judgment. We affirm.

                                  II. Background

A. Procedural Background

      SunTrust asserted in its unverified original petition on its breach-of-contract

claim that all conditions precedent had been performed or had occurred and

requested judgment for $92,541.52 “as the principal amount due on the contract,”

for $7,500 in attorney’s fees, for pre- and post-judgment interest, and for court

costs.2 See Tex. R. Civ. P. 54 (stating that “it shall be sufficient to aver generally

that all conditions precedent have been performed or have occurred”); cf. Tex. R.

Civ. P. 185 (stating that claim for liquidated money demand based upon written

contract on which a systematic record has been kept and is supported by

affidavit that such claim is just, true, due, and that all just and lawful offsets,

payments, and credits have been allowed “shall be taken as prima facie evidence

thereof, unless the party resisting such claim shall file a written denial, under

oath”).

      Monroe responded with a general denial and counterclaimed, asserting

that SunTrust had taken possession of the vehicle but had failed to provide him

with notice of the foreclosure, including its date, time, and place or any other

notice regarding the collateral’s disposition, despite his having twice requested

      2
      SunTrust amended its petition a year later, changing its attorney’s fee
request to $10,000 and attaching a copy of the contract.


                                          2
such information. Monroe raised the affirmative defenses of failure to mitigate,

failure to comply with the business and commerce code, laches, estoppel,

waiver, and offset.3 Monroe complained that SunTrust’s actions had affected his

ability to obtain credit and had caused not less than $20,000 in damage to his

credit.

          Monroe also sought summary judgment.4 SunTrust both responded and

separately sought summary judgment on its own behalf, attaching summary


          3
       If a creditor pleads that the disposition of the collateral was commercially
reasonable or generally avers that all conditions have been performed or have
occurred, the debtor must then specifically deny commercial reasonableness or
other conditions precedent—such as notice—in its answer for the creditor to be
required to prove that the disposition of the collateral was commercially
reasonable or any of the other challenged conditions precedent.               See
Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 176–77 (Tex. 1992).
Monroe complained in his answer that he had twice requested the underlying
notice and disposition information “required under Section 9.601, et., seq.,” and
asserted, in what appears to be a typo, that SunTrust had failed “to comply with
Section 6.01 of the Texas Business and Commerce Code.”
          4
        In his motion and amended motion for summary judgment, Monroe
specifically argued that SunTrust had failed to comply with business and
commerce code sections 9.611 (notification before disposition of collateral) and
9.614 (contents and form of notification before disposition of collateral) because
he was not provided with notice as to the time or place of the sale and that the
sale of the collateral was for substantially less than its value. He also argued that
because the sale was not commercially reasonable, any and all amounts due
and owing should be negated under section 9.626. Before trial began, Monroe
pointed out these grounds, and the trial court stated to SunTrust’s counsel, “I
think that they certainly did give you notice of the fact that they were going to
bring this up.” The questions of commercial reasonableness and sufficiency of
notice were included in the jury charge without objection. See Tex. R. Civ. P. 67
(“When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings.”); Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492,
495 (Tex. 1991) (explaining that a party who allows an issue to be tried by

                                         3
judgment evidence to both its motion and its response.5 The trial court denied

Monroe’s motion and did not rule on SunTrust’s motion.

      Monroe requested a jury trial.      The one-day trial began on Thursday,

May 26, 2016.6 During his opening statement, SunTrust’s counsel told the jury

that the evidence would show that the parties had a valid contract that Monroe

had breached and that SunTrust had repossessed the vehicle, had given Monroe

“all the proper notices,” had disposed of the vehicle in a commercially reasonable

manner, and was entitled to the deficiency owed by Monroe.

      Monroe countered in his opening statement by stating that the case would

not be before a jury if it were that simple and that the evidence would show that

the vehicle, worth $233,305.46 at purchase, was repossessed seven months

later and then sold either in 2013 or 2015 for around “fifty cents on the dollar” for

$115,000 by third parties who did the actual repossessing and sale. He told the

jurors that it would be their job to decide whether that sale was commercially

reasonable when none of the evidence would show the vehicle’s condition at



consent and fails to raise lack of a pleading before submission of the case cannot
later raise the pleading deficiency for the first time on appeal).
      5
       Not all of the items attached to SunTrust’s motion or response were
offered or admitted into evidence at trial and are thus not considered part of the
record that we review in its sufficiency challenges to the jury’s findings.
      6
       SunTrust’s counsel stated that he was filling in for the attorney who had
previously worked on the case and had not been assigned the case until three
days before trial began. He did not request a continuance but instead
announced ready.


                                         4
repossession, the fees or expenses that SunTrust claimed to have incurred, or

“anything relating to” the vehicle’s private sale. Monroe stated that the matter

had gone to trial because, while he had no problem paying what was fair and

reasonable, what SunTrust sought was unfair and unreasonable.

B. Trial Evidence

      On October 18, 2012, Liberty Redevelopment Group LLC, via Monroe, the

owner and operator of Delta Bail Bonds, made a down payment of $41,978.42 on

a new 2012 Aston Martin V12 Vantage, VIN SCFEBBCF9CGS01050. Liberty

bought the vehicle from Aston Martin of Dallas for $233,305.46 under a retail

installment sales contract for 72 monthly payments of $2,657.32 starting

November 21, 2012, financing $173,109.37 of the vehicle’s purchase price. At

the time, Monroe was acting both as Liberty’s officer and as a co-buyer,7 but

Quinntin Augustine, Liberty’s primary owner, actually drove the vehicle, which

was intended to be a business vehicle. Monroe drove it once. Aston Martin

assigned its rights under the contract to SunTrust.8


      7
        By the time of the trial, Monroe was no longer one of Liberty’s officers.
Monroe said that when he signed the contract, his understanding was that Liberty
was going to make the payments and that he was a guarantor; he acknowledged
that he knew he was going to have to pay back the loan if Liberty did not. The
parties’ contract states, “A co-buyer is a person who is responsible for paying the
entire debt.”
      8
       The contract provided that in the event of default, the vehicle could be
repossessed and sold to recover part of the loan. It also allowed for the recovery
of reasonable attorney’s fees and court costs if SunTrust had to sue to enforce
the contract and “reasonable out-of-pocket expenses incurred in connection with
retaking, holding, and selling the vehicle as the applicable law allows.”


                                         5
      Less than two months after Liberty and Monroe purchased the vehicle,

SunTrust issued to Monroe its first notice of its intent to accelerate the debt.

Monroe received neither this notice nor the second one that SunTrust sent later

the same month. Ultimately, only two payments were made on the debt. Monroe

did not make any of the payments after Liberty defaulted.9

      Monroe received SunTrust’s third notice of its intent to accelerate the debt

and its May 3, 2013 notice of its plan to sell the vehicle at a private sale

“sometime on or after May 19, 2013.” The May 3, 2013 notice also included the

following itemized list of the amounts due:

      Unpaid Principal Balance                       $169,349.22
      Interest                                       $1,658.14
      Late Charges                                   $391.96
      Repossession Expenses                          $750.00
      Accumulated Fees and Costs[10]                 $176.19

      TOTAL                                          $172,325.51

The notice also informed Monroe that interest would continue to accrue at a daily

rate of $15.50 and that storage fees would accrue at a daily rate of $25.00,

included a statement that “[t]o learn the exact amount you must pay, call us at

      9
       Monroe testified that when he received notice that payments on the
vehicle were not being made, he called Liberty and explained in “not really polite
terms” that he wanted the debt paid and that it was Liberty’s responsibility. He
had expected Liberty to take care of the payments or to cover any deficiency to
the extent that the vehicle was repossessed and sold. Monroe said that
SunTrust had not sued Liberty on the debt.
      10
        This line item included a notation that the accumulated fees and costs
“may include NSF fees, collection fees[,] and attorney fees to the extent
permitted by law.”


                                         6
866-717-0734,” and informed Monroe that he could get the collateral back at any

time before it was sold by paying the full amount owed, including the

repossession expenses. SunTrust’s letter informed Monroe that if he wanted a

written explanation of how the amount he owed was calculated, he could call

SunTrust at the phone number listed in the letter or write to SunTrust at the

address set out in the letter.

      Monroe stated that although he received the May 3, 2013 notice, SunTrust

had never given him anything that would show other attempts to sell the

vehicle—either on the Internet, via the newspaper, or on a dealer lot—and that

he had received no documents about the vehicle’s actual sale. Monroe also

testified about his understanding of a “dealer’s auction” and a “private sale,”

explaining that he thought that a dealer’s auction was public only as to dealers or

anyone who could buy his or her way into access to the auction, while a “private

sale” was trying to sell the car in a retail manner to a private individual. Monroe

said that he had not seen any documents regarding the sale and had no idea

how SunTrust had actually sold the car except for the letter saying that it would

be sold sometime after May 19, 2013.

      The loan transaction details were admitted into evidence. With regard to

the vehicle loan’s pay history, on May 10, 2013, SunTrust listed a second

repossession fee of $750. On May 16, 2013, and July 10, 2013, SunTrust listed

a “waiver” of $926.19 and $391.96, respectively. On July 18, 2013, SunTrust

listed a charge-off of $172,185.11, and a “DLR RESV REBATE” of $3,818.07.


                                        7
On October 17, 2013, SunTrust zeroed out the account. No one testified about

the meaning of any of these terms.

      On November 2, 2013, SunTrust issued to Monroe an explanation of its

calculation of the deficiency he owed, informing him that the vehicle had been

sold and that the sale’s proceeds had been applied to the loan as of the date of

sale, October 24, 2013.    It set out the following itemized costs to show the

deficiency as of October 24, 2013:

      Aggregate Amount of Obligation as of                   $173,703.77
      October 24, 2013

      LESS PROCEEDS FROM SALE                                ($115,000.00)

      TOTAL OUTSTANDING BALANCE                              $58,703.77

      PLUS Repossession Expenses[11]                         $38,942.30

      PLUS Accumulated Fees and Costs[12]                    $176.19

      PLUS Late Charges                                      $391.96

      LESS        Miscellaneous      Rebates   &             ($0.00)
      Credits[13]

      DEFICIENCY OR (SURPLUS) on                             $98,214.22
      October 24, 2013

      11
        This line item included a notation that repossession expenses “may
include known expenses of retaking, holding, preparing for sale, processing, and
disposing of Collateral to the extent permitted by law.”
      12
        This line item included a notation that the accumulated fees and costs
“may include NSF fees, collection fees[,] and attorney fees to the extent
permitted by law.”
      13
        This line item included a notation that the miscellaneous rebates and
credits may “include known rebates of interest and credit service charges.”


                                         8
      SunTrust’s notice informed Monroe that for each day that the deficiency

remained unpaid, interest would continue to accrue at the contract rate of interest

at $8.47 per day and that if he failed to pay the deficiency, SunTrust could retain

an attorney to file suit and that he might be obligated to pay SunTrust’s attorney’s

fees and costs incurred in collecting the deficiency. The notice included contact

information in the event Monroe had any questions and was sent via certified

mail. Monroe signed for it on November 11, 2013.

      As the vehicle’s co-owner, Monroe testified that he would have expected

the car to sell for $165,000 to $175,000 because the car was only six months old

at the time it was repossessed.      Monroe initially testified that he based his

valuation on Kelly Blue Book’s retail value of the car and NADA Black Book’s

wholesale value, but he subsequently noted that he had also looked online

because he did not think Kelly Blue Book had enough data on sales of that

vehicle. Monroe testified that any deficiency after the foreclosure should have

been minimal and described his reaction as one of disbelief when he realized

that the vehicle had been sold for $115,000.

      Monroe testified that as a bail bondsman, he occasionally had to

repossess collateral and that the $38,942.30 amount for “repossession

expenses” listed by SunTrust was excessive. According to Monroe, that amount

was higher than any repossession fee he had ever seen, and he added that he




                                         9
“wouldn’t get away with that in court.”14 Monroe said that SunTrust had never

given him a single check or receipt that showed SunTrust had paid over $38,000

to anyone for the repossession.

      With regard to the $176.19 in “accumulated fees and costs,” Monroe stated

that he had not seen any checks or invoices to show that SunTrust had paid that

sum of money or that anyone had charged SunTrust that amount. But he agreed

that the $391.96 in late charges was probably fair and accurate if there were

missed payments.

      Monroe opined that while he had received fair and adequate notice of

SunTrust’s repossession of the vehicle, SunTrust did not adequately notify him of

what it intended to do with the vehicle once SunTrust repossessed it. SunTrust

did not provide him with any follow-up notice informing him of the time, date,

place, or anything else about where the sale would occur, which Monroe said

was a problem for him because he had been trying to obtain the money to buy

the vehicle at a reasonable price so that it would not hurt his credit.15 Monroe

asked the jury to find the debt null and void “because of [SunTrust’s] ridiculous

sort of process on taking and selling the car and -- and justifying their expenses

and -- it just seems absurd that a -- a bank as big as SunTrust would do this.”


      14
        Monroe acknowledged that he had never collateralized Aston Martin
vehicles when issuing a bond.
      15
       Monroe said that SunTrust had destroyed his credit score, preventing
him from getting a good interest rate when he tried to refinance his house. He
does not appeal the jury’s finding that he suffered no loss.


                                        10
      Susannah Kelly, a SunTrust officer and custodian of records, testified that

she had personal knowledge of the loan’s complete payment history and that two

payments had been made that were applied to the balance. Kelly testified that

SunTrust hires people to repossess vehicles, that it is common in the banking

industry to use a dealer to sell repossessed vehicles, and that SunTrust used the

auction house ADESA for its repossessed vehicle sales. She further testified

that SunTrust has a department that establishes a floor price for the collateral

based on a combination of the NADA Black Book value and the vehicle’s

condition, that it was not uncommon for SunTrust to authorize repairs on a

repossessed vehicle, and that SunTrust authorized repairs on the Aston Martin.

Kelly stated that the amount sought by SunTrust was the deficiency balance after

the sale of the vehicle and after applying any credits and debits.

      Monroe’s sole exhibit, which was admitted into evidence, was the affidavit

of SunTrust’s repossession coordinator manager, Brandy Thore. In the affidavit,

Thore stated that she was SunTrust’s custodian of books and records relating to

the amounts owed to SunTrust and that she was personally familiar with the

vehicle’s contract, the vehicle, and “the process whereby Suntrust Bank

recovered possession of the equipment, sold it, and applied the proceeds to the

contract.”   Thore averred that after attempts to resolve the default failed,

SunTrust contracted with PRA Location Services, LLC to repossess the vehicle,

that PRA repossessed the vehicle on May 1, 2013, and that after repossessing

the vehicle, PRA “filled out a Vehicle Condition Report and presented it to


                                        11
Suntrust Bank. See P-067 through P-070.”16 Thore then described the notice

sent to Monroe that contained the itemization of amounts due.

      Thore stated that SunTrust assigned the vehicle to ADESA on May 14,

2013, to ensure that it would be disposed of in a commercially reasonable

manner and that ADESA determined that repairs were necessary to get the best

possible price for it “[b]ased on the Vehicle Condition Report forwarded to

ADESA and ADESA’s own independent inspection.”               According to Thore,

SunTrust authorized the repairs, and after they were made, ADESA determined

that the collateral’s fair market value was $115,000. Thore stated that ADESA

listed the collateral in its “run list located on the ADESA website,” advertised the

auction for the collateral in the local newspaper and on its website, and sold the

collateral “at a private auction located in Hutchins, Texas, on October 24, 2015.”

ADESA auctioned off the vehicle to the highest bidder for $115,000.00, and “after

all necessary expenses were deducted, Suntrust received $76,807.70.” Thore

summarized the sale price and “all necessary expenses” as

      Vehicle Sale                                    $115,000.00
      Seller Fee                                      -$     95.00
      EPA Fee                                         -$      7.00
      Sublet: Transportation                          -$    110.00
      Sublet: Transportation                          -$     75.00
      Sublet: Mechanical                              -$ 23,347.21
      Sublet: Mechanical                              -$ 14,546.09
      Net Amount                                       $ 76,807.70


      16
       Although the affidavit references various documents, they were not
attached or included in the evidence at trial.


                                        12
Thore stated that she had compared the $115,000 “value with the comparable

sales information available to Suntrust Bank and believe[d] the price obtained

[wa]s reasonable.     See P-064 through P-066.”     She then summarized the

November 2, 2013 explanation of calculation of deficiency that SunTrust sent to

Monroe.

      According to Thore, ADESA was “utilized by Suntrust Bank to liquidate

repossessed passenger vehicles for many years,” and Thore described ADESA

as “recognized as an expert and industry leader in the vehicle remarketing

service industry.”   She stated that she was personally aware of the process

ADESA used to dispose of repossessed passenger vehicles, that she closely

monitored ADESA to ensure that it disposed of the collateral in accordance “with

its usual process,” and that ADESA did so. She opined that the ADESA process

was commercially reasonable and that the value received and the manner in

which the sale took place “was in conformity with reasonable commercial

practices among dealers in the type of property sold.” She also opined that the

time between repossession and ultimate sale “was reasonable and allowed

Suntrust Bank to obtain the best price possible.”

C. Closing Arguments

      During closing arguments, SunTrust’s counsel argued that Monroe was a

sophisticated businessman who knew he would have to pay back the debt if

Liberty defaulted on it, that Monroe failed to make payments, and that Monroe




                                        13
had received the notice that he was entitled to receive. SunTrust’s counsel read

specific portions of Thore’s affidavit to the jury.

       Monroe’s counsel argued that the jury had to decide whether this was a

consumer or commercial transaction and then whether the vehicle, which was

approximately seven months old with an original purchase price of $233,305,

was sold for $115,000 at a commercially reasonable sale, and if not, what the

vehicle’s value was. He pointed out that none of SunTrust’s witnesses testified

about the vehicle’s value, and he argued that the vehicle’s value, per Monroe’s

testimony, was $175,000.

       SunTrust’s counsel, in rebuttal, again argued that Monroe was a

sophisticated businessman who had made a bad business deal and now wanted

the jury to bail him out. He argued that regardless of what the contract called a

“consumer transaction,” the transaction at issue was commercial, that the new

car depreciated the moment it was driven off the lot, and that just because

something is listed on the Internet for a particular price does not mean it will

actually sell for that price.

D. Jury Charge

       There were no objections to the court’s charge as given to the jury. The

charge set out portions of business and commerce code sections 9.610, 9.611,

9.614, 9.625, 9.626, and 9.627 and presented the jury with nine questions, which

were answered as follows:




                                           14
 Question 1: Was there a valid contract formed between Aston Martin of
  Dallas and Mark A. Monroe? Yes.

 Question 2: Did Aston Martin of Dallas assign its rights under the contract to
  SunTrust Bank? Yes.

 Question 3: Did Mark A. Monroe breach the contract by failing to make the
  monthly installment payments under the contract? Yes.

 Question 4: Did SunTrust provide Notification under Sec. 9.611 or 9.614 as
  required by Statute as shown above? No.

 Question 5: Was the underlying transaction a consumer transaction? No.17

 Question 6: Did SunTrust Bank dispose of the collateral securing the
  underlying contract in a commercially reasonable manner? If no, skip to
  Question 8. No.

 Question 7: What sum of money, if any, if paid now in cash, would fairly and
  reasonably compensate SunTrust Bank for its damages, if any, that resulted
  from Mark A. Monroe’s breach of the contract? Skipped (in compliance with
  the conditioning instruction in Question 6).

 Question 8: What would be the value of the collateral in a commercially
  reasonable transaction? $143,713.85.

 Question 9: What sum of money, if now paid in cash, would fairly and
  reasonably compensate Mark Monroe for the damage to his credit? $0.00.

E. Post Trial

      SunTrust moved for entry of judgment, seeking an award of $69,500.37,

and on July 18, 2016, the trial court held a hearing on the motion. SunTrust’s

      17
        No one challenges the jury’s finding that the underlying transaction was
not a consumer transaction. Cf. Tex. Bus. & Com. Code Ann. § 9.405(c) (West
2011) (noting that section 9.405, “Modification of Assigned Contract,” is subject
to law other than chapter 9 that establishes a different rule for an account debtor
who is an individual and who incurred the obligation primarily for personal, family,
or household purposes).


                                        15
counsel explained that because the jury had found that the transaction was not a

consumer transaction, business and commerce code section 9.626(a)(3) applied,

and he asked the trial court to deduct the $143,713.85 found by the jury as the

collateral’s value from the amount of the debt, expenses, and attorney’s fees.

Monroe’s counsel countered by pointing out that the jury found that SunTrust

neither provided notice nor made a commercially reasonable sale, resulting in no

deficiency. The trial court entered a take-nothing judgment as to both parties.

       SunTrust filed a motion to modify, correct, or reform the judgment, arguing

that instead of a take-nothing judgment, the trial court should have awarded the

amount due and owing under the contract—$92,541.52—because the damages

were liquidated. Alternatively, SunTrust argued that it was entitled to $25,635.37,

the unpaid principal amount less the jury’s finding of the collateral’s value in a

commercially reasonable transaction—$169,349.22 minus $143,713.85—plus

interest.   SunTrust further argued that the trial court should have deducted

SunTrust’s expenses incurred in disposing of the collateral because they were

undisputed and conclusively established by the evidence and, to the extent that

the damages were not liquidated or were found to be contested, the trial court

should have made and filed written findings on damages pursuant to rule of civil

procedure 279. In its motion, SunTrust also sought a new trial.

       In the portion of its motion requesting a new trial under rule of civil

procedure 320, SunTrust requested a new trial on damages, on the value of the

collateral in a commercially reasonable transaction, and on whether Monroe


                                        16
received the required notice if the court found that it could not reform the

judgment. SunTrust argued that there was no evidence to support the jury’s

finding that the value of the collateral in a commercially reasonable transaction

would be $143,713.85 when there was no evidence submitted by either party that

would support this amount. SunTrust also argued that there was no evidence to

support the jury’s finding that Monroe did not receive the required notice under

sections 9.611 or 9.614.

      Monroe responded that SunTrust was not entitled to a deficiency judgment

because there had been no testimony at trial regarding the amount due and

owing at the time of foreclosure, that it was not determined by any jury question,

and that there was no stipulation about it. Monroe further argued that SunTrust

had waived its right to any deficiency when it failed to submit a jury question

under rules of civil procedure 278 and 279. And while the admissibility and

authenticity of the demand notices were stipulated to, the parties did not stipulate

as to the accuracy of the amounts allegedly due and owing.

      The trial court denied SunTrust’s motion after a hearing.

                                  III. Sufficiency

      In its first two issues, SunTrust seeks a ruling that the trial court erred by

entering a take-nothing judgment because its damages were proved as a matter

of law. And in its third issue, SunTrust argues that the trial court erred by failing

to reform the judgment or grant its motion for new trial. SunTrust argues:




                                         17
    That its evidence established that the sale of the collateral was in
     conformity with industry standards and that Monroe was provided with
     legally sufficient notice;

    That Monroe offered no competent evidence that the sale of the vehicle
     was in bad faith or that any other irregularity occurred, and that the jury’s
     findings that Monroe did not receive statutorily sufficient notice or that the
     sale was not commercially reasonable were therefore against the great
     weight of the evidence;

    That the evidence was both legally and factually insufficient to support the
     jury’s finding of $143,713.85 when SunTrust proffered evidence of the
     ADESA check following the repair and sale of the collateral at auction and
     evidence that $92,514 was due after the sale of the collateral based on the
     sale, collection costs, and repairs;18 and

    That the trial court should have ordered a new trial on damages or should
     have entered the amount of SunTrust’s damages as a matter of law
     because the amount due and owing under the contract was liquidated.

      Monroe responds that SunTrust failed to preserve its first and second

issues regarding its challenges to the sufficiency of the evidence to support the



      18
         SunTrust argues that it demonstrated that it spent $38,942.30 on
repossession and repairs, while Monroe speculated that he could have sold the
collateral for $165,000 or $180,000. But the ADESA check was admitted only for
record purposes. Although the court reporter listed Plaintiff’s Exhibit 15, “Voided
Check,” as admitted, the trial judge clearly stated, “So just for the record
purposes, I’m admitting the check itself as Exhibit 15.” [Emphasis added.] During
Monroe’s attorney’s voir dire of Kelly about the check, Kelly acknowledged that it
was a third party’s check issued by ADESA, that SunTrust was not the payor on
the payor line, and that she could not say who actually generated it. She
acknowledged that she did not maintain ADESA’s records, was not familiar with
how ADESA maintained its books and records, and did not know if she had any
affidavits in her file that would show that it was a true and correct copy of a
document out of ADESA’s file. SunTrust’s attorney subsequently made an offer
of proof as to Plaintiff’s Exhibit 15, which the trial court had excluded when
Monroe objected to lack of foundation based on lack of personal knowledge.
SunTrust does not complain on appeal about the exclusion of its evidence.


                                        18
jury’s commercial reasonableness and collateral value findings and its complaint

regarding its damages.

A. Preservation of Error

      The general rule to preserve a complaint for appellate review is that a party

must have presented to the trial court a timely request, objection, or motion that

states the specific grounds for the desired ruling, if they are not apparent from

the context of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also

Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved, and the

complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on

reh’g). The objecting party must also get an express or implied ruling (or a

refusal to rule) from the trial court. Tex. R. App. P. 33.1(a)(2), (b); Lenz v. Lenz,

79 S.W.3d 10, 13 (Tex. 2002).

      Further, in a jury trial—as here—a party’s no-evidence and matter-of-law

issues must be preserved through one of the following procedural steps in the

trial court: (1) a motion for instructed verdict; (2) a motion for judgment

notwithstanding the verdict (JNOV); (3) an objection to the submission of the

question to the jury; (4) a motion to disregard the jury’s answer to a vital fact

question; or (5) a motion for new trial. T.O. Stanley Boot Co. v. Bank of El Paso,

847 S.W.2d 218, 220–21 (Tex. 1992); see also Tex. R. Civ. P. 324(b) (listing

appellate complaints that must be preserved by a motion for new trial).

      SunTrust did not move for an instructed verdict or for a JNOV, did not

object to the submission of any of the questions to the jury, and did not file a


                                         19
motion to disregard any of the jury’s answers. However, SunTrust filed a “Motion

to Modify, Correct, or Reform Judgment and Motion for New Trial in the

Alternative,” which we review to determine whether it has preserved its first and

second issues.

      In part of its motion, SunTrust argued—albeit in a roundabout way—that

there was no evidence to support the jury’s finding that the sale of the collateral

was not commercially reasonable, stating, “In the present case, there is no

evidence to support the jury’s finding that the value of the collateral in a

commercially reasonable transaction would be $143,713.85.” Accordingly, we

conclude that it has preserved its legal sufficiency challenges to the jury’s

commercial reasonableness and collateral value findings in its first issue,

although not its factual sufficiency challenges to these findings.

      In another part of the same motion, SunTrust argued that there was no

evidence to support the jury’s finding that Monroe did not receive the required

notice, which supports the portion of its first issue in which it argues that Monroe

was provided legally sufficient notice. Finally, in its motion, SunTrust argued that

its damages and the amount due under the contract were proven as a matter of

law, and it sets out the same arguments in its issue 2—mostly verbatim—with

regard to whether the trial court erred by entering a take-nothing judgment as to

its damages. Accordingly, we conclude that SunTrust’s arguments in its second

issue have been preserved for our review.




                                         20
B. Standard of Review

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital

fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh’g);

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert.

denied, 526 U.S. 1040 (1999). In determining whether there is legally sufficient

evidence to support the finding under review, we must consider evidence

favorable to the finding if a reasonable factfinder could and disregard evidence

contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix

Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson,

168 S.W.3d 802, 807, 827 (Tex. 2005).          Jurors are the sole judges of the

credibility of the witnesses and the weight to give their testimony. City of Keller,

168 S.W.3d at 819. They may choose to believe one witness and disbelieve

another. Id. Reviewing courts cannot impose their own opinions to the contrary.

Id.

      Anything more than a scintilla of evidence is legally sufficient to support the

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);

Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or


                                        21
suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003) (citing Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)), cert.

denied, 541 U.S. 1030 (2004). More than a scintilla of evidence exists if the

evidence furnishes some reasonable basis for differing conclusions by

reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l

Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).

      If a party is attacking the legal sufficiency of an adverse finding on an issue

on which the party had the burden of proof, and there is no evidence to support

the finding, we review all the evidence to determine whether the contrary

proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46

S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690

(Tex. 1989).

      Absent an objection to the jury charge, the sufficiency of the evidence is

reviewed in light of the charge submitted. Romero v. KPH Consolidation, Inc.,

166 S.W.3d 212, 221 (Tex. 2005) (citing Wal-Mart Stores, Inc. v. Sturges, 52

S.W.3d 711, 715 (Tex. 2001)).

      A trial court may disregard a jury finding only if there is no evidence to

support the finding or if it is immaterial. GuideOne Lloyds Ins. Co. v. First Baptist

Church of Bedford, 268 S.W.3d 822, 831 (Tex. App.—Fort Worth 2008, no pet.)

(op. on reh’g).




                                         22
      SunTrust preserved its legal sufficiency challenges to the jury’s findings on

notice, commercial reasonableness, and the collateral’s value.

C. Applicable Law

      SunTrust sued Monroe for breach of contract, and no one challenges the

jury’s findings that Monroe entered the contract with Aston Martin, that Aston

Martin assigned the contract to SunTrust, or that Monroe breached the contract

by failing to make payments under the contract. See Rice v. Metro. Life Ins. Co.,

324 S.W.3d 660, 666 (Tex. App.—Fort Worth 2010, no pet.) (setting out the

elements of a breach-of-contract claim).

      A secured party has the right to take possession of collateral after a default

and sell it “in its present condition or following any commercially reasonable

preparation or processing,” see Tex. Bus. & Com. Code Ann. §§ 9.609–.610(a)

(West 2011), and then sue for any deficiency that remains after the proceeds

from the sale of the collateral are applied to the debt. Regal Fin. Co. v. Tex Star

Motors, Inc., 355 S.W.3d 595, 596–97 (Tex. 2010).         A secured creditor that

seeks to recover a deficiency must prove that it acted in a “commercially

reasonable” manner in disposing of collateral. Id. at 597. Every aspect of a

disposition of collateral—including the method, manner, time, place, and other

terms—must be commercially reasonable.           Tex. Bus. & Com. Code Ann.

§ 9.610(b) (providing that if commercially reasonable, a secured party may

dispose of collateral by public or private proceedings, by one or more contracts,

as a unit or in parcels, at any time and place, and on any terms).


                                        23
   1. Notice

      The jury found that SunTrust did not provide notification to Monroe under

business and commerce code sections 9.611 or 9.614 “as required by Statute as

shown above,” in reference to the portions of sections 9.611 and 9.614 set out in

the charge. The jury was instructed as follows:

      Sec. 9.611.        NOTIFICATION         BEFORE     DISPOSITION       OF
      COLLATERAL

      (a) In this section, “notification date” means the earlier of the date on
      which:

             (1) a secured party sends to the debtor and any secondary
                 obligor an authenticated notification of disposition; or

             (2) the debtor and any secondary obligor waive the right to
                 notification.

      (b) Except as otherwise provided in Subsection (d), a secured party
      that disposes of collateral under Section 9.610 shall send to the
      persons specified in Subsection (c) a reasonable authenticated
      notification of disposition.

      (c) To comply with Subsection (b), the secured party shall send an
      authenticated notification of disposition to:

             (1) the debtor;

             (2) any secondary obligor[.]

See id. § 9.611(a), (b), (c)(1)–(2) (West 2011).19



      19
        The jury instruction did not include the remainder of subsection (c), which
pertains to other parties with an interest in the collateral who had notified the
secured party of their interest; subsection (d), which applies to collateral that is
perishable or “threatens to decline speedily in value or is of a type customarily
sold on a recognized market”; or subsection (e), a safe harbor for notification

                                         24
      The jury was not instructed on section 9.612, “Timeliness of Notification

Before Disposition of Collateral.”20     The jury likewise was not instructed on

section 9.613, “Contents and Form of Notification Before Disposition of

Collateral: General,” which sets out the rules that apply to non-consumer

transactions. See id. § 9.613 (West 2011). With regard to notification, the jury

was instructed only on the portion of section 9.611 recited above, and on section

9.614, which was set out in the charge as follows:

      Sec. 9.614 CONTENTS AND FORM OF NOTIFICATION BEFORE
      DISPOSITION    OF    COLLATERAL:  CONSUMER-GOODS
      TRANSACTION.

      In a consumer-goods transaction, the following rules apply:

      (1) A notification of disposition must provide the following
      information:

             (A) the information specified in Section 9.613(1);[21]


under subsection (c)(3)(B). See Tex. Bus. & Com. Code Ann. § 9.611(c)(3), (d),
(e).
      20
        Section 9.612 provides that in a non-consumer transaction, a notification
is sent within a reasonable time before the disposition if it is sent after default and
10 days or more before the earliest time of disposition set forth in the notification;
otherwise (i.e., in consumer transactions), whether a notification is sent within a
reasonable time is a question of fact. See Tex. Bus. & Com. Code Ann. § 9.612
(West 2011).
      21
        The charge did not contain the language in section 9.613(1), which states
that except in a consumer goods transaction, the contents of a notification of
disposition are sufficient if the notification describes the debtor and the secured
party; describes the collateral that is the subject of the intended disposition;
states the method of intended disposition; states that the debtor is entitled to an
accounting of the unpaid indebtedness and the charge, if any, for an accounting;
and states the time and place of a public disposition or the time after which any

                                          25
              (B) a description of any liability for a deficiency of the person
              to which the notification is sent;

              (C) a telephone number from which the amount that must be
              paid to the secured party to redeem the collateral under
              Section 9.623[22] is available; and

              (D) a telephone number or mailing address from which
              additional information concerning the disposition and the
              obligation secured is available.

      (2) a particular phrasing of the notification is not required.

      (3) The following form of notification, when completed, provides
      sufficient information:

      _________ [Name and address of secured party]; _________ [Date]
      NOTICE OF OUR PLAN TO SELL PROPERTY; __________ [Name
      and address of any obligor who is also a debtor]; Subject:
      _____________ [Identification of Transaction]; We have your
      __________[describe collateral], because you broke promises in our
      agreement. We will sell _________[describe collateral] at public
      sale. A sale could include a lease or license. The sale will be held
      as follows: Date:_________________; Time:_________________;
      Place:________________; You may attend the sale and bring
      bidders if you want. [Emphasis added.]

See id. § 9.614(3) (West 2011). The charge did not contain the safe harbor

provision for sufficient notification of a private disposition of the property. Cf. id.

§ 9.613(3).




other disposition is to be made. Tex. Bus. & Com. Code Ann. § 9.613(1) (West
2011).
      22
       The charge did not contain section 9.623, “Right to Redeem Collateral,”
which sets out how a person can redeem collateral and when the redemption is
allowed to occur. See Tex. Bus. & Com. Code Ann. § 9.623 (West 2011).


                                          26
      SunTrust contends that the trial court’s charge “referenced the relevant

sections of the Texas Business and Commerce Code,” and that to show that

Monroe received the requisite notice, it “entered evidence through the testimony

of its witnesses and related exhibits that Monroe was notified of the

repossession, pending disposal via private sale, date of the sale, and notice of

deficiency and associated costs post-sale,” and that Monroe presented no

evidence to support the finding that he did not receive legally sufficient notice.

SunTrust argues that because the jury determined that the transaction was

commercial, the notice only had to comply with section 9.613.

      Because no one objected to the charge, as stated above, we measure the

sufficiency of the evidence not against a correct statement of the law but as the

law is stated in the charge actually given. See Romero, 166 S.W.3d at 221. The

record reflects that Monroe received a May 3, 2013 notice of SunTrust’s plan to

sell the collateral at a private sale. The May 3, 2013 notification was addressed

to Monroe from SunTrust, described the collateral as 2012 Aston Martin V12

Vantage SCFEBBCF9CGS01050,23 and stated that the method of intended

disposition would be “at a private sale sometime on or after May 19, 2013.”

The notification also stated that if Monroe wanted a written explanation of how

SunTrust calculated the amount he owed or wanted more information about the

sale, he could call or write to SunTrust, and it provided a phone number and

      23
       The jury charge defined the vehicle as “that 2012 Aston Martin V12
Vantage, VIN #SCFEBBCF9CGS01050.”


                                       27
address for him to do so. See Tex. Bus. & Com. Code Ann. § 9.613(1)(A)–(E) &

cmt. 2. SunTrust’s explanation of the calculation of the deficiency stated that the

sale had occurred on October 24, 2013.

      In contrast, the affidavit by Thore, SunTrust’s repossession coordinator

manager, stated that SunTrust had sent a notice to Monroe on May 3, 2015, that

it consigned the collateral to ADESA on May 14, 2013, and that the collateral was

not sold until October 24, 2015. Monroe testified that he thought he was given

fair and adequate notice of SunTrust’s repossession of the vehicle but not of

what SunTrust intended to do with the vehicle as to the sale because he was

never given a follow-up notice to let him know the time, date, place, or anything

else about where it would take place.24

      The jury found that the transaction was not a consumer transaction and

therefore could have reasonably concluded that the charge’s instructions on

section 9.614 did not apply.25         Section 9.611 requires a “reasonable”

authenticated notification of disposition. See id. § 9.611(b). The jury could have

determined that a notification followed by a delay of five months before a private

sale at an auction was unreasonable when presented with no evidence about the

      24
        No one asked Monroe whether he called or wrote to SunTrust—as set
out in SunTrust’s May 3 notice—to ask for more information about the sale.
      25
         The jury also could have found that SunTrust’s May 3, 2013 notification
letter did not meet the 9.614(3) safe harbor set out in the charge because the
notification letter stated that the collateral would be sold at a private sale, not a
public sale, but this finding would not have mattered because of the jury’s non-
consumer-transaction finding. See GuideOne, 268 S.W.3d at 831.


                                          28
vehicle’s condition other than an allusion to repairs, about the sale itself, or about

the auction process. But see Fed. Deposit Ins. Corp. v. Lanier, 926 F.2d 462,

466 (5th Cir. 1991) (“We believe that a Texas court would find that the sale of

collateral four months after notification of the debtor was not so untimely as to

mandate a finding that the creditor was required to renotify the debtor of the

planned disposition.”). Or the jury could have chosen to believe the facts stated

in Thore’s affidavit—that the vehicle was sold two years after SunTrust

consigned the collateral to ADESA, again with no evidence about the vehicle’s

condition other than an allusion to repairs, about the sale itself, or about the

auction process.    Because there is not a complete absence of evidence to

support the jury’s finding, see Ford Motor Co., 444 S.W.3d at 620, on the charge

to which SunTrust did not object, we overrule this portion of SunTrust’s first issue

as to whether Monroe received legally sufficient notice of disposition.

   2. “Commercially Reasonable”

             a. Charge and Applicable Law

      The jury charge sets out section 9.610, “Disposition of Collateral After

Default,” which states, in pertinent part, “After default, a secured party may sell,

lease, license, or otherwise dispose of any or all of the collateral in its present

condition or following any commercially reasonable preparation or processing,”

and “[e]very aspect of a disposition of collateral, including the method, manner,

time, place, and other terms must be commercially reasonable.” Tex. Bus. &

Com. Code Ann. § 9.610(a), (b). The jury charge also sets out section 9.627,


                                         29
“Determination of Whether Conduct was Commercially Reasonable,” which

states,

      (a) 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 acceptance was
      made in a commercially reasonable manner.

      (b) A disposition of collateral is made in a commercially reasonable
      manner if the disposition is made:

            (1) in the usual manner on any recognized market;

            (2) at the price current in any recognized market at the time of
            the disposition; or

            (3) otherwise in conformity with reasonable commercial
            practices among dealers in the type of property that was the
            subject of the disposition.

      (c) A collection, enforcement, disposition, or acceptance is
      commercially reasonable if it has been approved:

            (1) in a judicial proceeding;

            (2) by a bona fide creditors’ committee;

            (3) by a representative of creditors; or

            (4) by an assignee for the benefit of creditors.

      (d) Approval under Subsection (c) need not be obtained, and lack of
      approval does not mean that the collection, enforcement,
      disposition, or acceptance is not commercially reasonable.[26]

      26
        Although the charge does not include the comments to section 9.627, we
note that subsection (b)(1) and (2)’s “recognized market” is limited and “applies
only to markets in which there are standardized price quotations for property that
is essentially fungible, such as stock exchanges,” and the explanation that while
a low price is not sufficient alone to establish a violation, “a low price suggests

                                        30
See id. § 9.627 (West 2011).

      “Commercial reasonableness” at its core is a fact-based inquiry that

requires a balance of Article 9’s two competing policies—protecting debtors

against creditor dishonesty and minimizing interference in honest dispositions.

Regal Fin. Co., 355 S.W.3d at 602. Courts have considered a number of non-

exclusive factors when addressing the term “commercial reasonableness,” such

as (1) whether the secured party endeavored to obtain the best price possible;

(2) whether the collateral was sold in bulk or piecemeal; (3) whether it was sold

via private or public sale; (4) whether it was available for inspection before sale;

(5) whether it was sold at a propitious time; (6) whether the expenses incurred

during the sale were reasonable and necessary; (7) whether the sale was

advertised; (8) whether multiple bids were received; (9) what state the collateral

was in; and (10) where the sale was conducted. Id. at 601–02. The inquiry’s

ultimate purpose is to ensure the creditor realizes a satisfactory price, which “is

not necessarily the highest price, and it is recognized that secured creditors

frequently sell in the low end of the wholesale markets.” Id. at 602. None of

these items or ideas were presented in the charge to the jury, which was left to fill




that a court should scrutinize carefully all aspects of a disposition to ensure that
each aspect was commercially reasonable.” Tex. Bus. & Com. Code Ann.
§ 9.627 cmts. 2, 4. The charge also does not explain that these statutory “safe
harbors” are not the exclusive means of proving commercial reasonableness.
See Regal Fin. Co., 355 S.W.3d at 599.


                                         31
in its own idea of “commercially reasonable,” but we find instructive a comparison

to the supreme court’s opinion in Regal Finance.

      In Regal Finance, the supreme court reviewed the intermediate court’s

reversal of a judgment on a jury’s commercial reasonableness finding involving

the sale of used vehicles as collateral.      Id. at 597.    In that case, several

witnesses had testified about the secured creditor’s dispositions of the

repossessed vehicles, including the person hired by the secured creditor to

evaluate and dispose of them. Id. at 602. That individual testified that with

regard to the 906 dispositions, he inspected each vehicle, completed a condition

report, and used that information to produce a separate report that included the

vehicle’s features and an estimated value and then attempted to solicit—

sometimes unsuccessfully—at least two bids from wholesalers; most of the sales

were made privately to a small number of trusted automobile wholesalers due to

the generally poor condition and high mileage of the vehicles, which limited the

price that could be obtained by selling to non-wholesalers. Id. at 602–03. The

record also contained the 906 loan files showing evidence of the time, place, and

other terms of each disposition, and while not all of the files were complete, a

complete file would contain the loan note, a copy of the certificate of title, a loan

payment record, a repossession affidavit, a vehicle condition report, a NADA

form estimating value, and any bids tendered for the vehicle; copies of various

negotiable instruments containing the date, time, and price and identifying the

collateral’s buyer were also entered into evidence.         Id. at 602.   The court


                                         32
reversed the intermediate appellate court’s judgment that there was no evidence

of commercial reasonableness and remanded the case for a factual sufficiency

review. Id. at 603.

      On remand, the intermediate court considered the testimony of various

witnesses, including one who testified about the various ways to resell cars and

another who testified about having unsuccessfully bid on the secured creditor’s

repossessed vehicles. Tex Star Motors, Inc. v. Regal Fin. Co., 401 S.W.3d 190,

198 (Tex. App.—Houston [14th Dist.] 2012, no pet.).         In light of all of the

evidence in the record from testimony and loan files, the court concluded that the

evidence was not so weak as to render the jury’s finding of commercial

reasonableness unfair or unjust. Id. at 198–99.

            b. Analysis

      The jury here was instructed that every aspect of the disposition—method,

manner, time, place, and other terms—had to be commercially reasonable, see

Tex. Bus. & Com. Code Ann. § 9.610(b), and we have already concluded that the

jury had sufficient evidence upon which to determine—based upon the law as set

forth in the unobjected-to charge by which it was bound—that SunTrust’s notice

was not reasonable.

      Additionally, SunTrust presented little evidence to support its contention

that the collateral’s sale was made in a commercially reasonable manner.

Monroe testified that he had not received anything from SunTrust to tell him the

time, date, place, or anything else about the sale or to show SunTrust’s other


                                       33
attempts to sell the vehicle; that he had not seen any documents about the actual

sale; that he had looked at Kelly Blue Book’s retail value and NADA Black Book’s

wholesale value, as well as online research, to reach his own valuation of

$165,000 to $175,000; and that he was astounded that the vehicle had been sold

for $115,000. As to the $38,000 in repossession expenses, Monroe testified that

in his experience as a bail bondsman, this was higher than any repossession fee

he had ever seen, although he acknowledged never having collateralized an

Aston Martin when issuing a bond.

      Kelly, SunTrust’s officer, testified that it was common in the banking

industry to use dealers like ADESA, an auction house in Dallas, to sell

repossessed used vehicles. Through her, the trial court admitted into evidence

“a complete pay history for the subject loan,” a one-sheet document entitled “ALS

Purge Account System – Transaction Detail” from October 13, 2012 to

October 17, 2013. Kelly did not explain what the “NO ACCT/CANNOT” entries

meant or why the “REPO FEE” entries dated May 3, 2013 and May 10, 2013

were $176.19 and $750, respectively, but the “repossession expenses” in the

November 2, 2013 explanation of the calculation of the deficiency were

$38,942.30. Kelly stated that SunTrust had authorized repairs for the vehicle but

did not elaborate on what those repairs were, why they were needed, or how

much they had cost.

      While Kelly’s testimony may have provided some evidence of a

commercially reasonable manner with regard to the “otherwise in conformity with


                                       34
reasonable commercial practices among dealers in the type of property that was

the subject of the disposition” standard, see id. § 9.627(b), the jury was not

obliged to believe her testimony. Compounded with the lack of any evidence for

the jury’s fact-based inquiry to determine whether SunTrust endeavored to obtain

the best price possible for the vehicle, the dichotomy between the jury instruction

about a public sale and the notification for private sale, the time lapse between

the notification and the sale, and the lack of evidence with regard to the state of

the collateral and whether the expenses incurred in the sale were reasonable

and necessary, we conclude that the jury could have reasonably determined that

SunTrust did not dispose of the collateral in a commercially reasonable manner.

See Regal Fin. Co., 355 S.W.3d at 602 (explaining that “commercial

reasonableness” is a fact-based inquiry). We overrule this portion of SunTrust’s

first issue.

               c. Value of Collateral

       The jury found that the value of the collateral in a commercially reasonable

transaction would be $143,713.85.         SunTrust complains that the evidence is

legally insufficient to support this finding.

       The record reflects that the vehicle’s original price in October 2012 was

$233,305.46, and seven months later, in May 2013, the vehicle was

repossessed.       SunTrust sold the vehicle for $115,000, in what the jury

determined was a commercially unreasonable sale. No evidence was admitted

as to the vehicle’s condition at or before the time of sale. Although Kelly testified


                                           35
that SunTrust had authorized repairs on the vehicle, no testimony was elicited as

to what kind of repairs were made or why they were necessary. Monroe testified,

as the vehicle’s co-owner, that he would have expected the car to sell for

$165,000 to $175,000.

       Generally, the factfinder has broad discretion to identify a value within the

range of evidence presented at trial, so long as a rational basis exists for it,

considering matters such as the original cost, the opinions of qualified witnesses,

including the owner, the use to which the property was put, and any other

reasonably relevant facts. See Basic Energy Serv., Inc. v. D-S-B Props., Inc.,

367 S.W.3d 254, 266 (Tex. App.—Tyler 2011, no pet.) (op. on reh’g) (describing

damages calculations as being established with reasonable certainty but not

mathematical precision); see also Gulf States Utils. Co. v. Low, 79 S.W.3d 561,

566 (Tex. 2002) (describing measure of damages for goods with no recognized

market value). Here, the evidence provided the jury a range to consider—from

$115,000 to $175,000. The jury’s finding—$143,713.85—fits squarely within this

range, and on this record we cannot conclude that the finding is not supported by

legally sufficient evidence. Accordingly, we overrule the remainder of SunTrust’s

first issue.

               d. Deficiency

       In its second issue, SunTrust complains that it proved its damages as a

matter of law because it sought the balance on a promissory note, referring us to

Guerra v. M.H. Equities, Ltd., No. 02-11-00261-CV, 2012 WL 2135596 (Tex.


                                        36
App.—Fort Worth June 14, 2012, no pet.) (mem. op.).           Guerra involved the

appeal of a summary judgment on an unliquidated damages claim in which M.H.

Equities sued Guerra under a retail installment contract for foreclosure of its

security interest in Guerra’s manufactured home. Id. at *1. M.H. Equities’s agent

stated in an affidavit that Guerra owed $20,644.60—$14,499.55 in principal and

$1,145.05 in interest and in escrow on the sales contract—and attached records

of the amounts owed and how the total was calculated but not what amounts

were included to bring the total to $20,644.60. Id. We noted that while typically

the balance on a promissory note is a liquidated damage because the difference

between the amount of indebtedness alleged to be due and the face amount of

the note does not create ambiguity or raise a question of fact regarding payment

credits, in Guerra, the summary judgment evidence raised a fact issue as to how

much Guerra owed because it was unclear how the $20,644.60 was calculated

and why the additional $5,000 was included in that total. Id. at *2.

      In its first amended petition, SunTrust claimed that the principal balance

due was $92,541.52 and requested $10,000 in attorney’s fees.

      The evidence at trial showed that the car was originally sold new for

$233,305.46 (including a $41,978.42 down payment); $173,109.37 was the

amount of the debt plus $18,217.67 as a finance charge, for a total amount of

$191,327.04. Two payments were applied to the balance—one for $2,790.19,

and another for $2,657.32. According to SunTrust’s May 3, 2013 notice, the

unpaid principal balance plus interest, late charges, repossession expenses, and


                                        37
“Accumulated Fees and Costs” was $172,325.51. According to Thore’s affidavit,

the aggregate amount of the obligation as of October 24, 2013 was $173,703.77.

SunTrust’s November 2, 2013 explanation of the deficiency listed the same

amount.

      According to SunTrust’s November 2, 2013 explanation of the deficiency,

minus the sales proceeds of $115,000, Monroe had an outstanding balance on

the debt of $58,703.77, but then SunTrust added $39,510.45 in repossession

expenses, accumulated fees and costs, and late charges to reach a total

deficiency of $98,214.22. Thore’s affidavit stated that the amount due under the

loan was $172,325.51 and that after the vehicle’s sale and applicable fees, the

net amount from the sale was $76,807.70, resulting in a deficiency of

$98,214.22.    In Thore’s affidavit, she listed $38,180.30 in fees and other

expenses involved in the sale of the vehicle, alternatively referencing these as

“Plus Repossession Expenses” in the amount of $38,942.30. Kelly testified that

Monroe’s balance owing “[s]hould be 92,514, and then I can’t remember what in

change.”

      As in Guerra, we conclude that the evidence presented by SunTrust raised

a fact question as to the amount actually due and owing on the note, precluding

the award of damages as a matter of law.

      Further, a secured creditor must prove that it disposed of the collateral in a

commercially reasonable manner before it may recover any deficiency. Regal

Fin. Co., 355 S.W.3d at 599. As noted above, the jury found that SunTrust had


                                        38
failed to dispose of the collateral in a commercially reasonable manner. The jury

charge contained section 9.626, “Action in which Deficiency or Surplus is in

Issue,” which provides,

      (a) In an action arising from a transaction, other than a consumer
      transaction, in which the amount of a deficiency or surplus is in
      issue, the following rules apply:

            (1) A secured party need not prove compliance with the
            provisions of this subchapter relating to collection,
            enforcement, disposition, or acceptance unless the debtor or a
            secondary obligor places the secured party’s compliance in
            issue.

            (2) If the secured party’s compliance is placed in issue, the
            secured party has the burden of establishing that the
            collection, enforcement, disposition, or acceptance was
            conducted in accordance with this subchapter.

            (3) Except as otherwise provided in Section 9.628,[27] if a
            secured party fails to prove that the collection, enforcement,
            disposition, or acceptance was conducted in accordance with
            the provisions of this subchapter relating to collection,
            enforcement, disposition, or acceptance, the liability of a
            debtor or a secondary obligor for a deficiency is limited to an
            amount by which the sum of the secured obligation, expenses,
            and attorney’s fees exceeds the greater of:

                  (A) the proceeds of the collection, enforcement,
                  disposition, or acceptance; or

                  (B) the amount of proceeds that would have been
                  realized had the noncomplying secured party proceeded
                  in accordance with the provisions of this subchapter
                  relating to collection, enforcement, disposition, or
                  acceptance.

      27
         Although the jury charge did not contain section 9.628, “Nonliability and
Limitation on Liability of Secured Party; Liability of Secondary Obligor,” this
provision does not appear to be relevant to the proceedings.


                                       39
             (4) For purposes of Subdivision (3)(B), the amount of
             proceeds that would have been realized is equal to the sum of
             the secured obligation, expenses, and attorney’s fees unless
             the secured party proves that the amount is less than that
             sum.

See Tex. Bus. & Com. Code Ann. § 9.626(a) (West 2011) (emphasis added).

      Because the jury found that SunTrust did not dispose of the collateral in a

commercially reasonable manner, Monroe’s liability for a deficiency was limited

as set out above. The calculation of these damages correlates to jury question

7—“What sum of money, if any, if paid now in cash, would fairly and reasonably

compensate SunTrust Bank for its damages, if any, that resulted from Mark A[.]

Monroe’s breach of the contract?” The answer to question 7 was conditioned on

a “yes” answer to question 6, “Did Suntrust Bank dispose of the collateral

securing the underlying contract in a commercially reasonable manner?” No one

objected to the conditioning of this question; accordingly, SunTrust waived its

right to this jury finding.   Because the jury answered, “no” to question 6, it

skipped question 7, and the trial court entered a take-nothing judgment. We

overrule SunTrust’s second issue.

                                   IV. New Trial

      In its last issue, Suntrust argues that the trial court abused its discretion by

not reforming the judgment or granting its motion for new trial. But, as discussed

above, SunTrust did not object to the conditional jury question and waived any of

its claims to have missing jury questions propounded when it failed to object



                                         40
before the charge was read to the jury. See Tex. R. Civ. P. 272. We overrule

SunTrust’s third issue.

                              V. Conclusion

      Having overruled SunTrust’s three issues, we affirm the trial court’s

judgment.


                                              /s/ Bonnie Sudderth

                                              BONNIE SUDDERTH
                                              CHIEF JUSTICE

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

DELIVERED: February 1, 2018




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