                                                                                    ACCEPTED
                                                                               12-14-00148-CV
                                                                   TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                           2/5/2015 2:58:32 PM
                                                                                  CATHY LUSK
                                                                                        CLERK

                        NO. 12-14-00148-CV

           IN THE COURT OF APPEALS FOR THE       FILED IN
                                          12th COURT OF APPEALS
       TWELFTH DISTRICT OF TEXAS AT TYLER, TEXAS
                                               TYLER, TEXAS
                                                       2/5/2015 2:58:32 PM
                                                           CATHY S. LUSK
                                                               Clerk
               SANTANDER CONSUMER USA INC.,

                              Appellee
                                 V.

                        MARY LOU PETTY,

                              Appellant


     BRIEF OF APPELLEE SANTANDER CONSUMER USA INC.

        From the 2nd District Court, Cherokee County, Texas,
        Cause No. 2013-06-0442, Hon. Dwight Phifer, presiding.

Aaron Z. Tobin
Kendal B. Reed
ANDERSON TOBIN, PLLC
13355 Noel Road, Suite 1900
Dallas, TX 75240
(972)789-1160
(972)789-1606 fax
ATTORNEYS FOR APPELLEE


             ORAL ARGUMENT IS NOT REQUESTED




                                                                             1
                 IDENTITIES OF PARTIES AND COUNSEL

I.    Plaintiff/Appellee:

      Santander Consumer USA Inc..

      Counsel:

      Aaron Z. Tobin
      State Bar No. 24028045
      atobin@andersontobin.com
      Kendal B. Reed
      Texas Bar No. 24048755
      kreed@andersontobin.com
      ANDERSON TOBIN PLLC
      13355 Noel Road, Suite 1900
      Dallas, Texas 75240
      Phone: (972) 789-1160
      Fax: (972) 789-1606


II.   Defendant/Appellant:

      Mary Lou Petty, Pro Se
      744 Elizabeth Drive
      Bullard, Texas 75757
      (903) 825-8722
      onegentledove@peoplepc.com




                                     i
                                                     2
                                         TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................................i

TABLE OF CONTENTS ........................................................................................ ii

TABLE OF AUTHORITIES ................................................................................. iv

STATEMENT OF THE CASE ................................................................................1

STATEMENT REGARDING ORAL ARGUMENT .............................................1

ISSUES PRESENTED.............................................................................................2

STATEMENT OF FACTS ......................................................................................3

SUMMARY OF THE ARGUMENT ......................................................................5

ARGUMENT ...........................................................................................................6

    I.       Review of the trial court’s order granting summary judgment in favor
             of Santander is limited to a review of the legal sufficiency of the
             evidence: all other complaints have been waived ....................................6

    II.      Summary of judgment standard of review ...............................................8

    III.     Legally sufficient evidence supports the trial court’s summary
             judgment ...................................................................................................9

    IV.      Even if appellate review reached beyond the scope of reviewing the
             record for legally sufficient evidence, none of the other grounds
             raised in Petty’s appeal warrant reversal of the trial court’s order ........11

             A.       The trial court did not err by not ruling on Petty’s “dismissal”
                      motion because she never set the motion for hearing .................11

             B.       There is no basis to reverse the trial court’s summary judgment
                      simply because the court decided the Motion upon submission
                      without an oral hearing ................................................................13

                                                            ii
                                                                                                                             3
            C.      The allegations in Petty’s pleadings are not competent evidence or
                    proof of facts that created a genuine issue of material fact thereby
                    precluding summary judgment.....................................................15

            D.      Petty’s request for a jury trial does not prevent the trial court from
                    rendering a summary judgment and does not violate her rights
                    under the Texas Constitution .......................................................16

     V.     CONCLUSION ......................................................................................17

CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e), (i) ............................18

CERTIFICATE OF SERVICE ..............................................................................18




                                                      iii
                                                                                                                  4
                                        TABLE OF AUTHORITIES

Cases

Bliss v. NRG Indus., 162 S. W. 3d 434 (Tex. App.−Dallas 2005,
pet. denied) .............................................................................................................16

City of Hous. v. Clear Creek Basin Auth., 589 S. W. 2d 671 (Tex. 1979) ..............7

DeLaney v. Assured Self Storage, 272 S. W. 3d 837 (Tex. App.−Dallas 2008,
no pet.).....................................................................................................................9

Green v. W.E. Grace Mfg. Co., 422 S. W. 2d 723, 11 Tex. Sup. Ct. J. 153
(Tex. 1968) .............................................................................................................16

Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owner
Ass’n, 205 S. W. 3d 46 (Tex. App.−Dallas 2006, pet. denied)..............................10

Haynes v. City of Beaumont, 35 S. W. 3d 166 (Tex. App.−Texarkana 2000,
no pet.).....................................................................................................................6

Hidalgo v. Surety S&L Ass’n, 462 S. W. 2d 540 (Tex. 1971) ...............................15

Houston v. Clear Basin Auth., 589 S. W. 2d 671 (Tex. 1979) ................................6

Jack B. Anglin v. Tipps, 842 S. W. 2d 266 (Tex. 1992) ........................................14

Jin. v. PNC Bank, NO. 03-10-00392-CV, 2011 Tex. App. LEXIS 1751
 (Tex. App.−Austin Mar. 9, 2011, pet. denied) .......................................................8

Laidlaw Waste Sys. v. City of Wilmer, 904 S. W. 2d 656 (Tex. 1995) ..................15

Lattrell v. Chrysler Corp., 79 S. W. 3d 141 (Tex. App.−Texarkana 2002,
pet. denied) .............................................................................................................16

Mansfield State Bank v. Cohn, 573 S. W. 2d 181 (Tex. 1978) ................................8




                                                              iv
                                                                                                                                 5
Martin v. Commercial Metals Co., 138 S. W. 3d 619(Tex. App.−Dallas
2004, no pet.) ........................................................................................................16

Martin v. Martin, Martin & Richards, Inc., 989 S. W. 2d 357 (Tex. 1998) .........14

Martin v. Uvalde Sav. & Loan Assoc., 773 S. W. 2d 808 (Tex. App.−
San Antonio 1989, no writ) ....................................................................................12

McConnell v. Southside Indep. Sch. Dist., 858 S. W. 2d 337 (Tex. 1993)...........6,7

Oleksy v. Farmers Ins. Exch., 410 S. W. 3d 378 (Tex. App.−Houston
[1st Dist.] 2013, pet. filed) .......................................................................................7

Provident Life & Accident Ins. Co. v. Knott, 128 S. W. 3d 211 (Tex. 2003) ..........8

Quanaim v. Frasco Rest. & Catering, 17 S. W. 3d 30 (Tex. App.−
Houston [14th Dist.] 2000, pet. denied) ..................................................................15

Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S. W. 3d 354 (Tex. App.−
Dallas 2009, pet. dism’d) .........................................................................................8

Willms v. Americas Tire Co. 190 S. W. 3d 796 (Tex. App.−Dallas
2006, pet. denied) ...................................................................................................16

Wilson v. Deutsche Bank Trust Co. Americas, No. 01-12-00284-CV,
2014 Tex. App. LEXIS 4191 (Tex. App.−Houston [1st Dist.]
Apr. 17, 2014, no pet.) .............................................................................................7


Statutes

TEX. R. APP. 33.1(a)(1)(A) ................................................................................. 7,13

TEX. R. CIV. P. 21 .............................................................................................12,13

TEX. R. CIV. P. 166a(c) ....................................................................................7,8,14




                                                            v
                                                                                                                            6
                          STATEMENT OF THE CASE

       On December 14, 2012, Appellant/Defendant, Mary Lou Petty (“Petty”),

executed a Motor Vehicle Retail Installment Contract to finance her purchase of a

2005 Toyota Tundra. (Clerk’s Record (“CR”) 42-43.) Plaintiff/Appellee Santander

Consumer USA, Inc. (“Santander”) provided funding for the purchase of the vehicle

and is the assignee of the contract. (CR38-40.) Petty did not make any payments

on the note and was therefore in default. (Id.) Santander brought suit to foreclose

on the car and for breach of contract. (CR22-30.) Santander moved for Summary

Judgment (the “Motion”) after Petty filed her answer as there was no disputed issue

of material fact. (CR31-49.) Plaintiff admits that she did not file any response to

Santander’s Motion and did not present any evidence to create any disputed issue of

material fact. Ruling on submission, the trial court granted Santander’s Motion for

Summary Judgment, awarding it $12,053.29 in contract damages, $33.35 in

prejudgment interest, $2,500 in attorney fees, plus post-judgment interest at the rate

of five percent (5%) per annum. (CR74-75.) The judgment also forecloses on the

collateral. (Id.)

               STATEMENT REGARDING ORAL ARGUMENT

       Appellee does not request oral argument. This is a simple and straightforward

summary judgment, which was decided on the live pleadings and the Motion for




BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 1
                                                                                    7
Summary Judgment filed by Appellee. Appellee does not believe oral argument will

be of any material help to the Court in resolving the issues on appeal.


                               ISSUES PRESENTED

   1.    Because review of the trial court’s order granting summary judgment in
         favor of Santander is limited to a review of the legal sufficiency of the
         evidence, and there is sufficient evidence, the order must be affirmed.

   2.    Even if appellate review reached beyond the scope of reviewing the record
         for sufficiency of the evidence, none of the other grounds raised in Petty’s
         appeal warrant reversal of the trial court’s order.

             A.   The trial court did not err by not ruling on Petty’s “dismissal”
             motion because she never set the motion for hearing.

             B.    There is no basis to reverse the trial court’s summary judgment
             simply because the court decided the motion upon submission without
             an oral hearing.

             C.     The allegations in Petty’s pleadings are not evidence or proof of
             facts that created a genuine issue of material fact thereby precluding
             summary judgment.

             D.     The fact that Petty requested a jury trial does not prevent the trial
             court from rendering a summary judgment and does not violate her
             rights under the Texas Constitution.




BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 2
                                                                                       8
                            STATEMENT OF FACTS

      On or about December 14, 2012, Appellant/Defendant, Mary Lou Petty

(“Petty”), executed a Motor Vehicle Retail Installment Contract (the “Contract”)

with Fenton Motors of Tyler, Texas, which was contemporaneously assigned to

Plaintiff/Appellee Santander Consumer USA, Inc. (“Santander”). (CR38, ¶¶3, 4;

CR42-43.) Under the Contract, Petty purchased and financed a 2005 Toyota Tundra

(the “Collateral”). (CR39, ¶6.) To secure the payment of the indebtedness called

for under the Contract, Petty granted Santander a first lien purchase money security

interest in the Collateral. (CR39, ¶7.) Santander properly perfected its security

interest in the Collateral. (CR39, ¶8.)

      Petty defaulted under the terms of the Contract by failing to timely make all

monthly payments. (CR39, ¶9.) As a result of the failure of Petty to make all

payments when due, Santander declared Petty in default. (Id.) After all just and

lawful offsets, credits, and payments, the balance past due and owing under the

Contract was $12,053.29 (as of June 11, 2013). (CR39, ¶10.) Although Santander

attempted to repossess the Collateral, those efforts failed. (CR39, ¶11.) As a result,

Santander filed this suit against Petty to recover the Collateral and to collect all

amounts due and owing under the Contract. (CR22-30.)

      On June 24, 2013, Santander filed its Original Petition and Rule 194 Request

for Disclosure. (CR6-13.) Petty, appearing Pro Se, filed her Answer to the Original



BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 3
                                                                                    9
Petition. (CR17-20.) In her Answer, she admits that she did not make any of the

payments under the Contract. (CR17.) She also alleges that she returned the vehicle

to the dealership where she purchased it. (Id.) On December 16, 2013, Santander

filed its First Amended Petition, adding a claim for breach of contract and suit on

the note. (CR22-30.) On January 29, 2014, Santander filed a Motion for Summary

Judgment (“Motion”) because there was no genuine issue of material fact. (CR32-

49.) The initial hearing on the Motion was set for March 5, 2014. (CR51.) On

March 3, 2014, Petty filed a Motion for Continuance. (CR56.) In addition, on March

3, 2014, Petty filed a “Motion for Dismissal” claiming that one of Santander’s

counsel, Aaron Tobin, failed to inform her in a pre-suit telephone call that he was an

attorney representing Santander and that therefore, his firm should not be allowed to

represent Santander. (CR54.)

      On March 5, 2014, the trial court heard Petty’s Motion for Continuance and

in an effort to give her time to employ legal counsel, reset Santander’s Summary

Judgment Motion for hearing by submission on May 6, 2014. (CR58, 61.) Petty did

not file a response to Santander’s Motion for Summary Judgment as she admits in

her Appeal Brief. (Appellant’s Brief, at 11.) On May 6, 2014, 96 days after

Santander filed its Motion, the trial court granted Santander’s Motion for Summary

Judgment based on its review of the pleadings, the summary judgment evidence and

the Court’s file. (CR74-75.) The Judgment awards Santander $12,053.29 in contract



BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 4
                                                                                    10
damages, prejudgment interest of $363.25, post-judgment interest of five percent

(5%) per annum, and $2,500 in attorney fees. (Id.) It also awards additional post-

judgment attorney fees for post-judgment motions and appeals. (Id.) The Judgment

further orders that Santander is entitled to judicial foreclosure on its lien on the 2005

Toyota Tundra. (Id.) The Judgment provides that it is a “final judgment which

disposes of all claims between all parties. All relief not expressly granted herein is

hereby denied.” (CR75.) Petty filed her Notice of Appeal on June 4, 2014. (CR76.)

      Petty’s Appellate Statement of Facts is almost entirely composed of “factual

statements” which are not supported by any evidence in the appellate record and

were never presented to the trial court. Petty did not present any evidence in

response to Santander’s Motion for Summary Judgment and there is no competent

evidence in the appellate record other than the factual evidence presented in

Santander’s Motion for Summary Judgment.               Accordingly, the unsupported

statements of fact in the Statement of Facts in Petty’s Appeal Brief must be ignored.

                       SUMMARY OF THE ARGUMENT

      Although Petty raises a variety of issues in her Appeal Brief, this review is

limited to a review for legally sufficient evidence because Petty failed to respond to

Santander’s Motion. As detailed below, legally sufficient evidence supports the trial

court’s summary judgment. In addition, even if appellate review reached beyond

the scope of reviewing the sufficiency of the evidence to addressing Petty’s other



BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 5
                                                                                      11
points of alleged error, none of the grounds raised in Petty’s appeal warrant reversal

of the trial court’s order. The trial court did not err by not ruling on Petty’s

“dismissal” motion because she never set the motion for hearing. Nor did the trial

court err in deciding Santander’s Motion upon submission without an oral hearing.

Furthermore, the allegations in Petty’s pleadings are not competent evidence or

proof of facts that create a genuine issue of material fact which would preclude

summary judgment. Finally, the fact that Petty requested a jury trial did not prevent

the trial court from rendering a summary judgment nor did it violate her right to a

jury trial. Because legally sufficient evidence supports the trial court’s summary

judgment in favor of Santander, and there are no other grounds warranting a reversal

of that judgment, the judgment should be affirmed.

                                   ARGUMENT

   I.     Review of the trial court’s order granting summary judgment in favor
          of Santander is limited to a review of the legal sufficiency of the
          evidence: all other complaints have been waived.

        If a non-movant fails to respond to a summary judgment motion, the non-

movant is “limited on appeal to arguing the legal sufficiency of the grounds

presented by the movant.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d

337, 343 (Tex. 1993); Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678

(Tex. 1979). The non-movant “may not contend on appeal that there is a disputed

issue of material fact.” Haynes v. City of Beaumont, 35 S.W.3d 166, 174 (Tex.



BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 6
                                                                                    12
App.—Texarkana 2000, no pet.). Because Petty did not respond to Santander’s

Motion for Summary Judgment, her appeal is limited to a review of the legal

sufficiency of the grounds presented in Santander’s Motion.           McConnell, 858

S.W.2d at 343.

      Because Petty failed to present any of the issues she has raised in this appeal

to the trial court, and failed to obtain any ruling on such issues, these issues may not

be considered on appeal as grounds for reversal. See TEX. R. CIV. P. 166a(c) ("Issues

not expressly presented to the trial court by written motion, answer or other response

shall not be considered on appeal as grounds for reversal.").

          To preserve a complaint for appellate review, a party must make a
      timely request, objection, or motion with sufficient specificity to notify
      the trial court of the complaint and to afford the trial court an
      opportunity to rule on the objection. Tex. R. App. 33.1(a)(1)(A). With
      the exception of challenging the legal sufficiency of a summary
      judgment, a "non-movant must expressly present to the trial court, by
      written answer or response, any issues defeating the movant's
      entitlement" to summary judgment to preserve the right to appeal.
      McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.
      1993); see Oleksy v. Farmers Ins. Exch., 410 S.W.3d 378, 384-85 (Tex.
      App.—Houston [1st Dist.] 2013, pet. filed); City of Hous. v. Clear
      Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979) (holding that
      failure to "expressly present to the trial court those issues that would
      defeat the movant's right to a summary judgment" waives complaint);
      see also TEX. R. CIV. P. 166a(c) ("Issues not expressly presented to the
      trial court by written motion, answer or other response shall not be
      considered on appeal as grounds for reversal.").

Wilson v. Deutsche Bank Trust Co. Americas, NO. 01-12-00284-CV, 2014 Tex.

App. LEXIS 4191, *7-8 (Tex. App.—Houston [1st Dist.] Apr. 17, 2014, no pet.):



BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 7
                                                                                     13
         Thus, when a non-movant fails to “expressly present to the trial court those

issues that would defeat the movant's right to a summary judgment” as required by

Rule 166a, he may not later raise those issues as error on appeal. Id., *13. There is

no exception to this rule for litigants who represent themselves. Jin v. PNC Bank,

NO. 03-10-00392-CV, 2011 Tex. App. LEXIS 1751, *8 (Tex. App. Austin Mar. 9,

2011, pet. denied) (Mem. Op.) citing Mansfield State Bank v. Cohn, 573 S.W.2d

181, 184-85 (Tex. 1978) (“Litigants who represent themselves must comply with the

applicable procedural rules, or else they would be given an unfair advantage over

litigants represented by counsel.”). By failing to respond to Santander’s Motion,

Petty waived her right to obtain appellate review of the trial court’s summary

judgment on the grounds she raises for the first time on appeal.

   II.      Summary Judgment Standard of Review

   A trial court’s summary judgment is reviewed de novo. See Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-216 (Tex. 2003). For the trial court

to grant summary judgment, the movant must show that there is no genuine issue of

material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.

166a(c); Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 361 (Tex.

App.—Dallas 2009, pet. dism’d). After the movant has established a right to

summary judgment, the burden shifts to the non-movant to present evidence creating




BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 8
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a fact issue. DeLaney v. Assured Self Storage, 272 S.W.3d 837, 838 (Tex. App.—

Dallas 2008, no pet.).

   III.     Legally sufficient evidence supports the trial court’s summary
            judgment.

      Santander brought suit to foreclose on its lien, recover the Collateral, and

recover and collect all amounts due and owing under the Contract. (CR22-30.)

Santander brought a claim for breach of contract/suit on the note and a claim to

foreclose its security interest and obtain an order of possession. (CR24.)

      Santander presented evidence in its Motion establishing these undisputed

   facts:

     1.      On or about December 14, 2012, Defendant executed and
     delivered a Retail Installment Contract and Security Agreement (the
     “Contract”) with Fenton Motors of Tyler, Tyler, Texas which was
     contemporaneously assigned to Santander Consumer USA, Inc. (CR38,
     ¶¶3, 4; CR.42-43.)

     2.     Santander fully performed all conditions called for in the
     Contract. (CR39, ¶5.)

     3.     Under the Contract, Defendant purchased and financed the
     following collateral, a 2005 Toyota Tundra. (CR39, ¶6; CR42-43.)

     4.      To secure the payment of the indebtedness called for under the
     Contract, Defendant granted Plaintiff a first lien purchase money
     security interest in the Collateral. (CR39, ¶7.)

     5.     Plaintiff properly perfected its security interest in the Collateral.
     (CR39, ¶8.)

     6.       Defendant has defaulted under the terms of the Contract by
     failing to timely make all monthly payments. As a result of the failure

BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 9
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     of the Defendant to make all payments when due, Plaintiff declared
     Defendant in default. (CR39, ¶9.)

     7.     After all just and lawful offsets, credits and payments, the
     balance past due and owing under the Contract is $12,053.29. (CR39,
     ¶10.)

     8.      Plaintiff attempted to repossess the Collateral but those efforts
     failed. (CR39, ¶11.)

      To prevail on a claim for breach of contract, Santander must show that: (1)

there is a valid contract, (2) Santander performed or tendered performance, (3)

Defendant breached the contract and (4) the breach damaged Santander.             See

Hackberry Creek Country Club, Inc. v. Hackberry Creek Home Owner Ass’n, 205

S.W.3d 46, 55 (Tex. App.—Dallas 2006, pet. denied).

      Santander submitted evidence in its Motion that the Contract is a valid and

binding contract between Santander and Defendant and that Santander performed

under the contract by delivering the funds to purchase the Collateral, perfecting its

security interest and having all conditions precedent to the agreement satisfied.

(CR38, ¶¶3, 4, 5, 8; CR42-43.) To secure the payment of the indebtedness called

for under the Contract, Petty granted Santander a first lien purchase money security

interest in the Collateral. (CR39, ¶7.) Petty breached the Contract because she failed

to make the monthly payments on a timely basis under the terms of the Contract, and

was therefore in default. (CR39, ¶9.) Under the Contract, Santander was entitled to

repossess the Collateral pursuant to the terms of the Contract and was entitled to



BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 10
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judicial foreclosure on its lien.     (CR39, ¶7; CR42-43.)        Although Santander

attempted to repossess the Collateral, those efforts failed. (CR39, ¶11.) Santander

suffered $12,053.29 in damages as a result of Petty’s breach of contract plus

attorney’s fees and other costs and expenses. (CR39, ¶10.) Therefore, there was no

genuine issue of material fact as to all elements of Plaintiff’s claims.

      Petty admits that she did not file a response to the Motion and did not present

any evidence to create a fact issue as to any element of Plaintiff’s claims against her.

(Appellant’s Brief, at 11.) Because there is legally sufficient evidence supporting the

trial court’s summary judgment, and there are no genuine issue of material fact as to

Santander’s claims for breach of contract and to foreclose its security interest, the

trial court properly granted summary judgment in Santander’s favor and against

Petty for $12,053.29 plus attorneys’ fees and expenses and properly granted judicial

foreclosure of Plaintiff’s security interest in the Collateral.      Accordingly, the

judgment should be affirmed.

   IV.    Even if appellate review reached beyond the scope of reviewing the
          record for legally sufficient evidence, none of the other grounds raised
          in Petty’s appeal warrant reversal of the trial court’s order.

          A. The trial court did not err by not ruling on Petty’s “dismissal”
             motion because she never set the motion for hearing.

      Petty’s first issue on appeal is her contention that the trial court erred because

it did not rule on her “motion for dismissal.” (CR54-55.) In her motion for

dismissal, she claims that Mr. Aaron Z. Tobin, one of the attorneys appearing in this

BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 11
                                                                                      17
lawsuit for Santander, failed to disclose to her in an alleged pre-suit telephone

conversation with her, that he represented Santander. (CR55.) She claims for the

first time on appeal, that Mr. Tobin’s conduct violated the Texas Rules of

Professional Conduct.

      The record shows that Petty faxed correspondence to the trial court, entitled

motion for dismissal, on March 3, 2014, two months after Santander filed its Motion

for Summary Judgment. (CR54-55.) The court clerk then faxed this correspondence

to Santander’s counsel. (CR57.) In that letter, Petty argues, without presenting any

competent evidence, that Mr. Tobin told her that he was Santander’s president’s

“right hand man” and that she “felt deceived” by Mr. Tobin and did not want him to

represent Santander. (Id.) The motion does not request relief or an order. (CR55.)

As required by TEX. R. CIV. P. 21, Petty never set this motion on the docket, did not

request a hearing, did not serve a copy of the motion or any notice of hearing on

Santander, and did not seek any ruling on the motion by submission. (See Clerk’s

Record.) Thus, the trial court never heard the motion, did not make any ruling with

respect to this motion, nor did Santander respond to it.

      Motions made in a pending lawsuit are waived unless presented to and acted

upon by the trial court prior to rendition of judgment. Martin v. Uvalde Sav. & Loan

Assoc., 773 S.W.2d 808, 814 (Tex. App.—San Antonio 1989, no writ). A motion

which is not acted on by the trial court does not furnish a basis for a point of error



BRIEF OF APPELLEE SANTANDER CONSUMER USA INC. – Page 12
                                                                                   18
because an appeal may be perfected only from an alleged erroneous ruling by the

trial court. Id. (emphasis added) To preserve a point for appellate review, a party

must present a timely, specific objection or motion to the trial court, obtain a ruling

on the complaint, and comply with the rules of evidence or procedure. TEX. R. APP.

33.1(a) (1) (A).

      The record shows that there is no preserved appeal point based on either (1)

the fact the trial court never ruled on her motion for dismissal or (2) with respect to

the substance of the motion. First, the facts as established in the Clerk’s Record

show that Petty failed to comply with TEX. R. CIV. P. 21 in several respects, including

failing to set this motion for a hearing. She never gave the trial court the opportunity

to rule on her motion and thus, it did not. Thus, there is no error based on the trial

court’s alleged failure to rule on this motion. As for her contention that Mr. Tobin’s

conduct violates the Texas Rules of Professional Conduct, this argument was not

even contained in her motion, was never presented to the trial court or ruled on, and

thus is not alleged error preserved for appellate review. TEX. R. APP. 33.1(a) (1) (A).

          B. There is no basis to reverse the trial court’s summary judgment
             simply because the court decided the Motion upon submission
             without an oral hearing.

      Petty argues that the trial court erred by rendering its summary judgment order

on May 6, 2014 without an oral hearing. She believes she was entitled to an oral

hearing or a jury trial. The record shows that Petty was informed that the trial court



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would be ruling on Santander’s Motion by submission. (CR58-61.) The record also

reflects that although an oral hearing had initially been set on Santander’s Motion

for March 5, 2014, the trial court, in an effort to accommodate Ms. Petty, continued

the Motion for an additional 60 days and set it for a submission hearing so that Petty

could obtain legal counsel. (CR51, 58, 61.) Petty did not obtain legal representation

in this lawsuit and did not respond to Santander’s Motion within the 60 day

continuance. There is no reversible error based on the trial court’s consideration of

Santander’s Motion on submission.

      A party is not entitled to an oral hearing to present argument for a motion for

summary judgment. See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d

357, 359 (Tex. 1998) (“An oral hearing on a motion for summary judgment may be

helpful to the parties and the court, just as oral argument is often helpful on appeal,

but since oral testimony cannot be adduced in support of or opposition to a motion

for summary judgment, an oral hearing is not mandatory.”). Furthermore, a hearing

for summary judgment is for argument only: no oral testimony may be presented.

Tex. R. Civ. P. 166a(c); Jack B. Anglin v. Tipps, 842 S.W.2d 266, 269 n. 4 (Tex.

1992). Thus, the trial court can decide the motion for summary judgment on

submission, without an appearance by the attorneys or parties before the court.

Under Rule 166a, if Petty wished to submit evidence in response to Santander’s

Motion, she needed to do so in a written response to Santander’s Motion. She failed



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to do this. Therefore, the trial court did not err in ruling on Santander’s Motion on

submission.

          C. The allegations in Petty’s pleadings are not competent evidence or
             proof of facts that created a genuine issue of material fact thereby
             precluding summary judgment.

        In her Summary of Argument and Issue 3b, Petty argues that summary

judgment was improper because her pleadings “should have been considered as

proof that she had a genuine issue of material fact” and that she presented more than

a scintilla of probative evidence that should have defeated summary judgment.

(Appellant’s Brief, at 11, 19-21.) The statements contained in Petty’s pleadings,

however, are not competent evidence and thus, did not create any dispute of material

fact.

        As a general rule, pleadings are not summary-judgment evidence. Laidlaw

Waste Sys. v. City of Wilmer, 904 S.w.2d 656, 660 (Tex. 1995); Hidalgo v. Surety

S&L Ass’n, 462 S.W.2d 540, 545 (Tex. 1971). A party cannot rely on factual

statements contained in its own answer as summary judgment proof. Hidalgo, 462

S.W.2d at 545. Furthermore, a party cannot rely on factual statements contained in

its response to the summary judgment, as summary judgment proof, because such

statements are not competent evidence. Quanaim v. Frasco Rest. & Catering, 17

S.W.3d 30, 42 (Tex. App.–Houston [14th Dist.] 2000, pet. denied). Because the

allegations in Petty’s Answer and Counter Petition are not competent evidence or



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proof of any material fact, they do not raise any disputed issue of material fact that

would require reversal of the trial court’s judgment.

          D. Petty’s request for a jury trial does not prevent the trial court from
             rendering a summary judgment and does not violate her rights
             under the Texas Constitution.

   On appeal, Petty asserts she was denied her Constitutional right to have a trial by

jury due to the trial court’s issuance of the summary judgment order. Texas law is

clear that where summary judgment is properly rendered, there is no violation of a

right to a jury trial. As stated in Willms v. Americas Tire Co.:

       The right to a jury trial in civil cases is not absolute. See Green v. W.E.
       Grace Mfg. Co., 422 S.W.2d 723, 725, 11 Tex. Sup. Ct. J. 153 (Tex.
       1968); Bliss v. NRG Indus., 162 S.W.3d 434, 437 (Tex. App.–Dallas
       2005, pet. denied); Martin v. Commercial Metals Co., 138 S.W.3d 619,
       626 (Tex. App.-Dallas 2004, no pet.). The summary judgment process
       provides a method of terminating a case when only questions of law are
       involved and there are no genuine issues of fact. Bliss, 162 S.W.3d at
       437; see also Lattrell v. Chrysler Corp., 79 S.W.3d 141, 150 (Tex. App.
       –Texarkana 2002, pet. denied). However, where no material issues of
       fact exist to submit to a jury then the granting of summary judgment
       cannot violate a party's constitutional right to a jury trial. See Bliss, 162
       S.W.3d at 437; Martin, 138 S.W.3d at 627; Lattrell, 79 S.W.3d at 150.

190 S.W.3d 796, 810 (Tex. App.—Dallas, 2006, pet. denied) (emphasis added). As

detailed above, the trial court properly granted Plaintiff’s Motion. There are no

disputed material fact issues to submit to a jury. Accordingly, Petty was not denied

her right to a jury trial and there is no reversible error on this issue.




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   V.      CONCLUSION

        In this appeal of a summary judgment order, this Court’s review is limited to

a review for legally sufficient evidence because Defendant Petty, the non-movant,

failed to respond to Santander’s Motion. As detailed above, legally sufficient

evidence supports the trial court’s summary judgment. None of the other grounds

raised by Petty on appeal are preserved for review. Even if they were, the law is

clear that under the facts in this case, the trial court committed no error. Because

there is no legal basis to reverse the trial court’s granting of summary judgment, the

Judgment must be affirmed.




                                        Respectfully submitted,


                                        /s/ Kendal B. Reed
                                        Aaron Z. Tobin
                                        State Bar No. 24028045
                                        atobin@andersontobin.com
                                        Kendal B. Reed
                                        Texas Bar No. 24048755
                                        kreed@andersontobin.com
                                        ANDERSON TOBIN PLLC
                                        13355 Noel Road, Suite 1900
                                        Dallas, Texas 75240
                                        Phone: (972) 789-1160
                                        Fax: (972) 789-1606
                                        ATTORNEYS FOR APPELLEE




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         CERTIFICATE OF COMPLIANCE WITH RULE 9.4(e), (i)
1.    This Brief complies with the type-volume limitation of Texas Rule of
      Appellate Procedure 9.4(i)(2)(B) because, according to the Microsoft Word
      2010 word count function, it contains 4159 words on pages 3-17 excluding
      the parts of the brief exempted by Texas Rule of Appellate Procedure 9.4(e)
      (i) (1).

2.    This brief complies with the typeface requirements of Texas Rule of Appellate
      Procedure 9.4(e) because it has been prepared in a proportionally spaced
      typeface using Microsoft Word 2010 software in Times New Roman 14 point
      font in text and Times New Roman 12 point font in footnotes.




                        CERTIFICATE OF SERVICE

       Counsel for Appellee certifies that a true and correct copy of the foregoing
document has been delivered by electronic service, first class mail, and certified
mail, return receipt requested to Appellant on February 5, 2014:

            Mary Lou Petty
            744 Elizabeth Drive
            Bullard, Texas 75757


                                     /s/ Kendal B. Reed
                                     Kendal B. Reed




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