Joseph Armstrong and Dwight Harrison v. Five Point Federal Credit Union

In The Court of Appeals Ninth District of Texas at Beaumont ______________________ NO. 09-07-263 CV ______________________ JOSEPH ARMSTRONG AND DWIGHT HARRISON, Appellants V. FIVE POINT FEDERAL CREDIT UNION, Appellee On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial No. 104167 MEMORANDUM OPINION Dwight Harrison and Joseph Armstrong appeal a summary judgment granted in favor of Five Point Federal Credit Union. Finding no reversible error, we affirm the trial court's judgment. Five Point and Armstrong entered into a loan agreement, secured by a 1998 Chevrolet truck. Armstrong defaulted on the loan agreement and Five Point sued Armstrong for breach of contract. Five Point sought to foreclose its security interest in the truck. The credit union also alleged Armstrong transferred the truck to Harrison, and sued Harrison for conversion and trespass to chattels for the wrongful exercise of dominion and control over the truck. The trial court granted Five Point's motion for summary judgment for breach of contract against Armstrong and awarded Five Point possession of the truck. Appellants' pro se brief does not contain clear and concise arguments or any citations to authorities and to the record. See Tex. R. App. P. 38.1(h). The "brief" is a one page letter titled "Defendants Motion for Appeal of Judgement[.]" In issue one, appellants state that the trial court erred in issuing a writ of sequestration on the truck because the writ violated Harrison's right of first possession. When a trial court enters a judgment awarding title and possession of the sequestered property to the plaintiff in the underlying suit, generally the defendant is barred from asserting wrongful sequestration. See Darr Equip. Co. v. Holland Page, Inc., 355 S.W.2d 595, 597 (Tex. Civ. App.--Austin 1962, writ dism'd). Issue one is overruled. In issue two, appellants assert that the trial court erred in granting summary judgment based on appellants' failure to respond in a timely manner to the motion. Appellants claim that they responded to the motion, but they do not direct this Court to any references in the record; we find no pleading in the record that responds to, or offers evidence regarding, the grounds pled in Five Point's motion for summary judgment. When the movant establishes there is no genuine issue of material fact and it is entitled to judgment as a matter of law, the burden shifts to the nonmovant to raise a material fact issue sufficient to defeat summary judgment. Tex. R. Civ. P. 166a(c); Phan Son Van, Pena, 990 S.W.2d 751, 753 (Tex. 1999). Five Point presented an affidavit stating that Armstrong executed and delivered to Five Point a loan contract and Armstrong granted Five Point a security interest in the truck. Five Point attached an "Itemization of Disbursement" showing that it advanced the funds to a third party on Armstrong's behalf. The affidavit states that Armstrong defaulted on the contract by failing to pay the debt. Five Point perfected its security interest in the truck by having its lien noted on the certificate of title. See Tex. Transp. Code Ann. § 501.111(a) (Vernon 2007). Five Point established that it was entitled to judgment as a matter of law on the breach of contract claim and was entitled to possession of the truck. Armstrong filed a "Notice of Intent" in which he stated he owed Harrison money. Appellants did not file a response to the motion for summary judgment raising a material fact issue sufficient to defeat summary judgment. Issue two is overruled. In issue three, appellants assert the trial court erred in denying their request for reconsideration. In the motion, appellants argued that they responded to the motion for summary judgment. They requested that the trial court submit the case for a jury trial and order depositions. The trial court properly found that Five Point was entitled to judgment on its claims as a matter of law. The court did not abuse its discretion in denying the motion for reconsideration. Issue three is overruled. In the fourth issue, appellants complain that Harrison was not a party to any documents or contracts with Five Point. Five Point obtained judgment against Harrison for the possession of the truck. Issue four is overruled. The trial court's judgment is affirmed. AFFIRMED. ____________________________ DAVID GAULTNEY Justice Submitted on October 17, 2007 Opinion Delivered March 20, 2008 Before McKeithen, C.J., Gaultney and Horton, JJ.