Ronald A. Schachtner, II v. Crosby State Bank

Affirmed and Memorandum Opinion filed January 20, 2004 Affirmed and Memorandum Opinion filed January 20, 2004. In The Fourteenth Court of Appeals _______________ NO. 14-03-00424-CV _______________ RONALD A. SCHACHTNER, II, Appellant V. CROSBY STATE BANK, Appellee ____________________________________________________ On Appeal from the 151st District Court Harris County, Texas Trial Court Cause No. 02-19160 ____________________________________________________ M E M O R A N D U M   O P I N I O N In this breach of contract case, appellant Ronald A. Schachtner contends summary judgment was improperly granted in favor of appellee. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. Background Appellant financed a truck through appellee. Appellee secured the loan with a security interest in the truck. The parties executed a written contract consisting of a note and a security agreement. Appellant defaulted on the loan by failing to make one of the payments by the due date. Appellee repossessed the truck as allowed under the contract by removing the truck from appellant’s driveway. Appellant was not aware of the repossession until after it had occurred. Appellant paid off the loan and filed this suit claiming appellee breached the contract when it repossessed the truck.[1] Appellee filed a traditional motion for summary judgment claiming that at least one element of each of appellant’s causes of action was disproved as a matter of law. The trial court granted the motion. Discussion To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). If a defendant conclusively negates at least one of the essential elements of each of the plaintiff’s causes of action, he is entitled to summary judgment. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor. Nixon, 690 S.W.2d at 548–49. The elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tender of performance by the plaintiff; (3) a breach by the defendant; and (4) damage resulting from the breach. Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Appellee claims it conclusively negated the breach element, entitling it to summary judgment.[2] The facts regarding the repossession are not in dispute. When the parties agree on the facts regarding performance of a contract, whether a party has breached a contract is a question of law for the court. Meek v. Bishop Peterson & Sharp, P.C., 919 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1996, writ denied). Because there is no dispute concerning appellee’s actions, whether it breached the contract was a question of law. The note portion of the contract provided that in the event of a default by appellant, appellee was entitled to use any remedies available under state or federal law. Texas law allows a secured party to take possession of the collateral after default without judicial process, if it proceeds without a breach of the peace. Tex. Bus. & Com. Code Ann. § 9.609 (Vernon 2002). In its motion for summary judgment, appellee claimed that because the repossession was accomplished without a breach of the peace, appellee fully complied with section 9.609, conclusively proving there was no breach of the contract. See Robertson v. Union Planters Nat’l Bank, 561 S.W.2d 901, 904 (Tex. App.—El Paso 1978, writ ref’d n.r.e.) (holding repossession of a vehicle from a driveway with no force and without the debtor’s awareness did not constitute a breach of peace). Appellant does not dispute that the repossession was in compliance with state law. Rather, he contends that when appellee entered onto his driveway without his permission, it breached another clause in the security agreement portion of the contract which stated “in addition to the remedies listed in the note portion” appellee “may take immediate possession of the property,” but in doing so it may not “unlawfully enter onto” appellant’s premises. Appellant contends the summary judgment evidence raised a fact issue concerning whether appellee’s entry onto his driveway was lawful. However, repossession of collateral from a driveway is not unlawful. See Pioneer Fin. & Thrift Corp. v. Adams, 426 S.W.2d 317, 319 (Tex. App.—Eastland 1968, writ ref’d n.r.e.); see also Ford Motor Credit v. Cole, 503 S.W.2d 853, 855 (Tex. App.—Fort Worth 1974, writ dism’d). Therefore, appellant’s summary judgment evidence raised no issue of material fact. We also note that the portion of the contract appellant claims was breached was not the only remedy available to appellee. The contract clearly states that the remedy was “in addition to” the other remedies already listed, which included “any remedy . . . under state or federal law.” (Emphasis added.) The evidence was undisputed that appellee complied with the portion of the contract that afforded it any remedy under state law. Because appellee did not breach the contract as a matter of law, summary judgment was properly granted. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed January 20, 2004. Panel consists of Chief Justice Hedges and Justices Anderson and Seymore. [1] Appellant does not contest that he was in default. [2] On appeal, appellee also claims it negated the element of performance by appellant. However, this ground was not presented to the trial court, so we will not consider it. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex. 1993).