## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02-16-00388-CV

SUNTRUST BAN K A PPELLANT V. MARK A. MONROE A PPELLEE

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

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### MEMORANDUM OPINION 1

---------- I. Introduction Appellant SunTrust Banksued 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 da mage to his credit, and a jury trial resulted in a

1 See Tex. R. App. P. 47.4.2 take-nothing judgment. In three issues , SunTrust appeals the trial court’s judgment. We affirm. II. Background A. Procedural Background SunTrust asserted in its un verified original petition on its breach-of-contract claim that all conditions precedent ha d been performed or had occurred and requested judgment for $92, 541.52 “as the principal amo unt due on the contract,” for $7,500 in attorney’s fe es, for pre- and post-judgme nt interest, and for court
costs. 2 See Tex. R. Civ. P. 54 (stating that “i t 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 liqui dated 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, du e, and that all just and lawful offsets, payments, and credits have be en allowed “shall be taken as prima facie evidence thereof, unless the party resisting such cl aim shall file a written denial, under oath”). Monroe responded with a general denial and coun terclaimed, asserting that SunTrust had taken possession of t he vehicle but had failed to provide him with notice of the foreclosure, includi ng its date, time, and place or any other notice regarding the collateral’s disposit ion, despite his having twice requested

2 SunTrust amended it s petition a year later, ch anging its attorney’s fee request to $10,000 and attachin g a copy of the contract.3 such information. Monroe raised the affi rmative defenses of failure to mitigate, failure to comply with the business and commerce code, laches, estoppel, waiver, and offset. 3 Monroe complained that SunTru st’s actions had affected his ability to obtain credit and had caused not less than $2 0,000 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 disposit ion of the collatera l was commercially reasonable or generally av ers that all conditions ha ve been performed or have occurred, the debtor must then specific ally deny commercial reasonableness or other conditions precedent—such as notic e—in its answer for the creditor to be required to prove that th e disposition of the coll ateral was commercially reasonable or any of the other ch allenged 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 “requir ed 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 moti on for summary judgment, Monroe specifically argued that SunTrust had failed to comply with business and commerce code sections 9.611 (notificatio n before disposition of collateral) and 9.614 (contents and form of notification before disposit ion of collateral) because he was not provided with noti ce as to the time or plac e of the sale and that the sale of the collateral was for substantially less than its va lue. He also argued that because the sale was not commercially reasonable, any and all amounts due and owing should be negated under sectio n 9.626. Before trial began, Monroe pointed out these grounds, an d 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 questi ons of commercial reasonab leness and su fficiency of notice were included in the ju ry charge without objection. See Tex. R. Civ. P. 67 (“When issues not raised by the pleadin gs are tried by express or implied consent of the parties, they shall be treat ed 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 by4 judgment evidence to both its motion and its response. 5 The trial court denied Monroe’s motion and did not ru le on SunTrust’s motion. Monroe requested a jury trial. Th e one-day trial began on Thursday, May 26, 2016. 6 During his opening statement, Su nTrust’s counsel told the jury that the evidence would showthat the parties had a va lid contract that Monroe had breached and that SunTrust had repo ssessed the vehicle, had given Monroe “all the proper notices,” had disposed of the vehicle in a commercially reasonable manner, and was entitled to th e deficiency owed by Monroe. Monroe countered in his opening statem ent by stating that the case would not be before a jury if it were that simp le and that the eviden ce would show that the vehicle, worth $233,3 05.46 at purchase, was re possessed seven months later and then sold either in 2013 or 2015 for around “fifty cents on the dollar” for $115,000 by third parties w ho did the actual repossessing and sale. He told the jurors that it would be their job to de cide whether that sale was commercially reasonable when none of the evidence would show the vehicle’s condition at

consent and fails to raise la ck of a pleading before subm ission of the case cannot later raise the pleading deficiencyfor the first time on appeal).

5 Not all of the items attached to Su nTrust’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 sufficie ncy challenges to th e jury’s findings.

6 SunTrust’s counsel stated that he wa s filling in for the attorney who had previously worked on the case and had not been assi gned the case until three days before trial began. He did not request a continuance but instead announced ready.5 repossession, the fees or ex penses that SunTrust claimed to have incurred, or “anything relating to” the vehicle’s privat e sale. Monroe stated that the matter had gone to trial because, while he had no problem paying what was fair and reasonable, what SunTrust soug ht was unfair and unreasonable. B. Trial Evidence On October 18, 2012, Liberty Redeve lopment 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 As ton Martin of Dallas for $233,305.46 under a retail installment sales contract for 72 mont hly 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 t he 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 unde rstanding 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 reco ver part of the loan. It also allowed for the recovery of reasonable attorney’s fees and court co sts if SunTrust had to sue to enforce the contract and “reasonable out-of-pocket expenses in curred in connection with retaking, holding, and selling the vehi cle as the applicable law allows.”6 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 ma de on the debt. Monroe did not make any of the paym ents 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.” Th e 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 A ccumulated Fees and Costs [10] $176.19 TOTAL $172,325.51 The notice also informed Monroe that intere st would continue to accrue at a daily rate of $15.50 and that st orage 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 wh en he received notice that payments on the vehicle were not being made, he called Liberty and explai ned in “not really polite terms” that he wanted the debt paid and t hat 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 reposse ssed and sold. Monroe said that SunTrust had not sued Liberty on the debt.

10 This line item included a notation th at the accumulated fees and costs “may include NSF fees, co llection fees[,] and attorney fees to the extent permitted by law.”7 866-717-0734,” 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. SunT rust’s letter informed Monr oe that if he wanted a written explanation of ho w the amount he ow ed was calculated, he could call SunTrust at the phone number listed in th e 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 anythi ng that would show other attempts to sell the vehicle—either on the Internet, via the ne wspaper, or on a dealer lot—and that he had received no documents about the ve hicle’s actual sale. Monroe also testified about his understan ding of a “dealer’s auctio n” and a “private sale,” explaining that he thought t hat a dealer’s auction was pu blic only as to dealers or anyone who could buy hi s 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 ex cept for the letter saying that it would be sold sometime after May 19, 2013. The loan transaction details were admitt ed into evidence. With regard to the vehicle loan’s pay history, on Ma y 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, respec tively. On July 18, 2013, SunTrust listed a charge-off of $172,185.11, and a “DLR RESV REBATE” of $3,818.07.8 On October 17, 2013, SunTrust zeroed ou t the account. No one testified about the meaning of any of these terms. On November 2, 2013, SunTrust issu ed to Monroe an explanation of its calculation of the deficien cy he owed, informing him th at 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 October 24, 2013 $173,703.77

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 & Credits [13] ($0.00)
DEFICIENCY OR (SURPLUS) on October 24, 2013 $98,214.22

11 This line item included a notation that repossession expenses “may include known expe nses of retaking, holding, prep aring for sale, processing, and disposing of Collateral to the extent permitted by law.”

12 This line item included a notation th at the accumulated fees and costs “may include NSF fees, co llection fees[,] and attorney fees to the extent permitted by law.”

13 This line item included a notation that the miscellane ous rebates and credits may “include known rebates of interest and credit service charges.”9 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 an d 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 becaus e the car was only six months old at the time it was repossessed. Monr oe initially testifi ed that he based his valuation on Kelly Blue Book’s retail valu e 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 te stified that any deficiency a fter the foreclosure should have been minimal and described his reaction as one of disbelief when he realized that the vehicle had be en sold for $115,000. Monroe testified that as a bail bo ndsman, he occasi onally had to repossess collateral and that the $3 8,942.30 amount for “repossession expenses” listed by SunTrust was excessive. Accordin g to Monroe, that amount was higher than any repossession fee he had ever seen, and he added that he10 “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 a nd costs,” Monroe stated that he had not seen any c hecks or invoices to show that SunT rust had paid that sum of money or that anyone had charged SunTrust that amount. But he agreed that the $391.96 in late ch arges was probably fair an d accurate if there were missed payments. Monroe opined that while he had rece ived fair and adequate notice of SunTrust’s repossession of th e vehicle, SunTrust did no t 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 th e sale would occur, which Monroe said was a problem for him because he had be en 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 dest royed 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 fi nding that he suffered no loss.11 Susannah Kelly, a SunTrust officer and custodian of records, testified that she had personal knowledge of the loan’s complete pa yment history and that two payments had been made that were applied to the balance. Kelly testified that SunTrust hires people to repossess vehicl es, that it is common in the banking industry to use a dealer to sell reposses sed vehicles, and that SunTrust used the auction house ADESA for its repossessed vehicle sales. She further testified that SunTrust has a department that esta blishes 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 th at SunTrust authorized repa irs on the Aston Martin. Kelly stated that the amount sought by SunTrust was t he deficiency balance after the sale of the vehicle and after applying any credits and debits. Monroe’s sole exhibit, wh ich was admitted into evid ence, was the affidavit of SunTrust’s repossession coordinator m anager, Brandy Thore. In the affidavit, Thore stated that sh e was SunTrust’s custodian of books and records relating to the amounts owed to SunTru st and that she was pers onally familiar with the vehicle’s contract, the v ehicle, and “the process whereby Suntrust Bank recovered possession of the equipment, sold it, and ap plied the proceeds to the contract.” Thore averred that after attempts to re solve 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 Co ndition Report and presented it to12 Suntrust Bank. See P-067 through P-070.” 16 Thore then de scribed the notice sent to Monroe that contained the itemizat ion of amounts due. Thore stated that SunTrust assign ed the vehicle to ADESA on May 14, 2013, to ensure that it would be disposed of in a commercially reasonable manner and that ADESA dete rmined 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 in spection.” According to Thore, SunTrust authorized the repairs, and af ter 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 loca ted on the ADESA websit e,” advertised the auction for the collateral in the local newsp aper and on its webs ite, and sold the collateral “at a private auctio n located in Hutchins, Texa s, on October 24, 2015.” ADESA auctioned off t he vehicle to the highest bidder for $115,000.00, and “after all necessary expenses were deducted, Su ntrust received $7 6,807.70.” 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.13 Thore stated that she had compared the $115,000 “val ue with the comparable sales information available to Suntrust Bank and believe[d] the price obtained [wa]s reasonable. See P- 064 through P-066.” Sh e then summarized the November 2, 2013 explanation of calculation of deficiency that SunTrust sent to Monroe. According to Thore, ADESA was “ut ilized by Suntrust Bank to liquidate repossessed passenger vehicles for ma ny years,” and Thor e described ADESA as “recognized as an expert and industry leader in the vehicle remarketing service industry.” She st ated that she was persona lly aware of the process ADESA used to dispose of repossessed passenger vehi cles, that she closely monitored ADESA to ensure that it dispos ed 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 c onformity with reasonable commercial practices among de alers in the type of property so ld.” She also opined that the time between repossession and ultimate sale “was reas onable and allowed Suntrust Bank to obtain the best pric e possible.” C. Closing Arguments During closing argument s, SunTrust’s counsel ar gued 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 Monroe14 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 th at 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 commerciallyreasonable sale, and if not, what the vehicle’s value was. He poi nted out that none of SunT rust’s witnesses testified about the vehicle’s va lue, and he argued that the ve hicle’s value, per Monroe’s testimony, was $175,000. SunTrust’s counsel, in rebuttal, again argued that Monroe was a sophisticated businessman wh o had made a bad business deal and now wanted the jury to bail him out. He argued that regardless of what t he contract called a “consumer transaction,” the transaction at issue was commercial, that the new car depreciated the moment it was driv en off the lot, and that just because something is listed on the In ternet for a particular pr ice 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:15  Question 1: Was ther e a valid contract formed between Aston Martin of Dallas and Mark A. Monroe? Yes

.

 Question 2: Did Aston Ma rtin of Dallas assign its ri ghts under the contract to SunTrust Bank? Yes

.

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

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

.

 Question 5: Was the underlying tr ansaction a consumer transaction? No

. 17

 Question 6: Did SunTrust Bank di spose 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 an y, if paid now in cash, would fairly and reasonably compensate SunTrust Bank for its damages, if any, that resulted from Mark A. Monroe’s br each of the contract? Skipped (in compliance with the conditioning instru ction in Question 6).

 Question 8: What would be the valu e 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 Ma rk Monroe for the damage to his credit? $0.00

. E. Post Trial SunTrust moved for entry of judgme nt, seeking an awar d 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 se ction 9.405, “Modific ation of Assigned Contract,” is subject to law other than chapter 9 that establishe s a different rule for an account debtor who is an individual and who incurred the obligation primarily for personal, family, or household purposes).16 counsel explained that because the jury had found that the tr ansaction was not a consumer transaction, busine ss and commerce code sect ion 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 t he debt, expenses, and attorney’s fees. Monroe’s counsel countered bypointing out that the ju ry found that SunTrust neither provided notice nor made a commerci ally reasonable sale , resulting in no deficiency. The trial court entered a take-nothing judg ment as to both parties. SunTrust filed a motion to modify, corr ect, or reform the judgment, arguing that instead of a take-not hing judgment, the trial co urt should have awarded the amount due and ow ing under the contract—$92,5 41.52—because the damages were liquidated. Alternatively, SunTrust argued that it was entitl ed 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 furthe r argued that the trial court should have deducted SunTrust’s expenses incurred in disposi ng 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 fo und to be contested, the trial court should have made and f iled written findings on damages pursuant to rule of civil procedure 279. In its motion, Su nTrust also sought a new trial. In the portion of its motion requesti ng a new trial under rule of civil procedure 320, SunTrust re quested a new trial on dama ges, on the value of the collateral in a commercia lly reasonable transactio n, and on whether Monroe17 received the required notice if the court found that it could not reform the judgment. SunTrust argued that there wa s no evidence to support the jury’s finding that the value of the collateral in a commercially re asonable transaction would be $143,713.85 wh en there was no evidence subm itted 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 SunT rust was not entitled to a deficiency judgment because there had be en 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 stipulat ion about it. Monroe further argued that SunTrust had waived its right to any deficiency wh en it failed to submit a jury question under rules of civil procedure 278 and 279. And while the admissibility and authenticity of the de mand notices were stipulated to , the parties did not stipulate as to the accuracy of the am ounts allegedly due and owing. The trial court denied SunTru st’s motion a fter 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 is sue, SunTrust argues that th e trial court erred by failing to reform the judgment or grant its mo tion for new trial. SunTrust argues:18  That its evidence established that the sale of the collateral was in conformity with industry standards and that Monroe wa s provided with legally sufficient notice;

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

 That the evidence was bot h legally and factually in sufficient to support the jury’s finding of $143,713.85 when SunTrust proffered evidence of the ADESA check following the repa ir and sale of the co llateral at auction and evidence that $92,514 was due after th e sale of the collateral based on the sale, collection costs, and repairs; 18 and

 That the trial court should have orde red a new trial on da mages or should have entered the amount of SunTrust’s damage s as a matter of law because the amount due and owing under the contract was liquidated. Monroe responds that SunTrust faile d to preserve its first and second issues regarding its challeng es to the sufficiency of th e evidence to support the

18 SunTrust argues that it demonstra ted that it spent $38,942.30 on repossession and repairs, wh ile Monroe speculated that he could have sold the collateral for $165,000 or $180,000. Bu t the ADESA check wa s admitted only for record purposes. Although the court reporter listed Plai ntiff’s Exhibit 15, “Voided Check,” as admitted, the tr ial judge clearly stated, “ So just for the record purposes , I’m admitting the check it self as Exhibit 15.” [Emp hasis added.] During Monroe’s attorney’s voir dire of Kelly about the check, Kelly ac knowledged that it was a third party’s check is sued by ADESA, that SunT rust was not the payor on the payor line, and that she could not say who actually generated it. She acknowledged that sh e did not maintain ADESA’s re cords, was not familiar with how ADESA maintained its books and record s, and did not know if she had any affidavits in her file that would show th at it was a true and correct copy of a document out of ADESA’s file. SunTrust’s attorney subsequent ly 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 lackof personal knowledge. SunTrust does not complain on appeal about the e xclusion of its evidence.19 jury’s commercial reasonab leness and collateral value findings and its complaint regarding its damages. A. Preservation of Error The general rule to preserve a complain t for appellate review is that a party must have presented to the trial court a ti mely request, objection, or motion that states the specific grounds for the desire d 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. A pp. 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 proced ural steps in the trial court: (1) a motion for instruct ed 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 disr egard the jury’s answe r 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, 22 0–21 (Tex. 1992); see also Tex. R. Civ. P. 324(b) (listing appellate complaints that must be pr eserved by a motion for new trial). SunTrust did not move for an inst ructed verdict or for a JNOV, did not object to the submission of any of the qu estions to the jury, and did not file a20 motion to disregard any of the jury’s answ ers. However, SunTrust filed a “Motion to Modify, Correct, or Reform Judgme nt and Motion for New Trial in the Alternative,” which we review to determin e whether it has preserved its first and second issues. In part of its motion, SunTrust argu ed—albeit in a roun dabout way—that there was no evidence to support the jury’s finding that the sale of the collateral was not commercially reasonable, stati ng, “In the present case, there is no evidence to support the jury’s finding that the value of the collateral in a commercially reasonable tr ansaction would be $143,713 .85.” Accordingly, we conclude that it has pres erved its legal sufficiency challenges to the jury’s commercial reasonableness and collatera l 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 fi rst issue in which it argues that Monroe was provided legally sufficient notice. Finally, in its mo tion, SunTrust argued that its damages and the am ount 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 co urt erred by entering a take -nothing judgment as to its damages. Accordingly, we conclude that SunTrust’s argu ments in its second issue have been preserved for our review.21 B. Standard of Review We may sustain a legal sufficiency ch allenge 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 givi ng weight to the only evidence offered to prove a vital fact, (3) the ev idence offered to prove a vi tal fact is no more than a mere scintilla, or (4) the ev idence establishes conclusive ly 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 Ti re 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 unde r review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a r easonable 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 witnesse s and the weight to gi ve their testimony. City of Keller , 168 S.W.3d at 819. They may choose to believe on e witness and disbelieve another. Id. Reviewing courts cann ot impose their own opinions to the contrary. Id. Anything more than a scint illa 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 or22 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 ab out 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 sufficien cy of an adverse finding on an issue on which the party had the burden of proo f, and there is no ev idence to support the finding, we review all the evidence to determine whether the contrary proposition is establishe d 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 char ge, the sufficiency ofthe 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 find ing 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. Ap p.—Fort Worth 2008, no pet.) (op. on reh’g).23 SunTrust preserved its legal sufficiency challenges to the ju ry’s findings on notice, commercial reasonablene ss, and the collateral’s value. C. Applicable Law SunTrust sued Monroe for breach of contract, and no on e challenges the jury’s findings that Monroe entered the contract with Aston Martin, that Aston Martin assigned the contract to SunTrus t, or that Monroe brea ched the contract by failing to make payment s under the contract. See Rice v. Metro. Life Ins. Co. , 324 S.W.3d 660, 666 (Tex. App.—Fort Wort h 2010, no pet.) (setting out the elements of a breach-of-contract claim). A secured party has the right to take po ssession of collateral after a default and sell it “in its present condition or following any comme rcially reasonable preparation or processing,” see Tex. Bus. & Com. Code Ann. §§ 9.609–.610(a) (West 2011), and then sue for any deficiency that re mains after the proceeds from the sale of the collatera l are applied to the debt. Regal Fin. Co. v. Tex Star Motors, Inc. , 355 S.W.3d 595, 596–97 (Tex. 2 010). A secured creditor that seeks to recover a deficiency must pr ove that it acted in a “commercially reasonable” manner in di sposing 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 reason able, 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 ti me and place, and on any terms).24 1. Notice The jury found that SunT rust did not provide notif ication to Monroe under business and commerce code sections 9.611 or 9.614 “a s 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. NOTIFICATI ON BEFORE DISPOSITION OF COLLATERAL (a) In this section, “ notification date” means th e earlier of the date on which:(1) a secured party sends to the debtor and any secondary obligor an authenticated notifi cation of disposition; or (2) the debtor and an y 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 Su bsection (b), the secured party shall send an authenticated notificati on 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 subsecti on (e), a safe harbor for notification25 The jury was not instructed on sectio n 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,” whic h 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 transactio n, 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 t hat in a non-consumer tr ansaction, a notification is sent within a reasonable ti me before the disposition if it is sent after default and 10 days or more before the earliest time ofdisposition 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 contai n the language in secti on 9.613(1), which states that except in a consumer goods transac tion, the contents of a notification of disposition are sufficient if the notificat ion describes the debtor and the secured party; describes the collateral that is t he subject of the intended disposition; states the method of intended disposition; states that the debtor is entitled to an accounting of the unpaid i ndebtedness and the charge, if any, for an accounting; and states the time and place of a publicdisposition or the time after which any26 (B) a description of any liabilityfor a deficiency of the person to which the notification is sent; (C) a telephone number from whic h 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 concer ning the disposition and the obligation secured is available. (2) a particular phrasing of the notification is not required. (3) The following form of notifica tion, when comple ted, provides sufficient information: _________ [Name and address of se cured party]; _________ [Date] NOTICE OF OUR PLAN TO SELL PROPERTY; ____ ______ [Name and address of any obl igor who is also a debtor]; Subject: _____________ [Identification of Transaction]; We have your __________[describe collateral], bec ause you broke promises in our agreement. We will sell _________[describe collateral] at public sale . A sale could includ e 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 noti fication of a private disp osition 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 contai n 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).27 SunTrust contends that the trial c ourt’s charge “referenced the relevant sections of the Texas Business and Comm erce Code,” and that to show that Monroe received the requisite notice, it “entered evidence th rough the testimony of its witnesses and related exhibi ts that Monroe wa s notified of the repossession, pending disposal via privat e sale, date of the sa le, and notice of deficiency and associated costs post-sal e,” and that Monroe presented no evidence to support the finding that he di d not receive legally sufficient notice. SunTrust argues that because the jurydetermined that the transaction was commercial, the notice only had to comply with section 9.613. Because no one objec ted to the charge, as stat ed 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 Ma y 3, 2013 notice of SunTrust’s plan to sell the collateral at a privat e 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 Mo nroe wanted a writte n explanation of how SunTrust calculated the am ount he owed or wanted more information about the sale, he could call or write to SunTrus t, and it provided a phone number and

23 The jury charge defined the vehicle as “that 2012 Aston Martin V12 Vantage, VIN #SCFEBBCF9CGS01050.”28 address for him to do so. See Tex. Bus. & Com. Code Ann. § 9.613(1)(A)–(E) & cmt. 2. SunTrust’s explanation of the calc ulation of the deficie ncy stated that the sale had occurred on October 24, 2013. In contrast, the affidavi t by Thore, SunTrust’s repossession coordinator manager, stated that SunTrusthad sent a notice to Monr oe on May 3, 2015, that it consigned the collateral to ADESA on May 14, 2013, an d 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 conclu ded that the charge’s instructions on section 9.614 did not apply. 25 Section 9.611 requ ires a “reasonable” authenticated notificati on of disposition. See id. § 9.611(b). The jury could have determined that a notification followed by a delay of five mont hs before a private sale at an auction was unr easonable when presented with no evidence about the

24 No one asked Monroe whether he ca lled or wrote to SunTrust—as set out in SunTrust’s May 3 notice—to ask for more informatio n 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 har bor 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 ha ve mattered because of the jury’s nonconsumer-transaction finding. See GuideOne , 268 S.W.3d at 831.29 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 ofthe debtor was not so untimely as to mandate a finding that the creditor was re quired 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 repair s, 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 overru le 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 ou t section 9.610, “Disposi tion of Collateral After Default,” which states, in pertinent part , “After default, a secu red 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 di sposition of collateral, in cluding the method, manner, time, place, and other term s must be commercially reasonable.” Tex. Bus. & Com. Code Ann. § 9.610(a), (b). The jury charge also sets out section 9.627,30 “Determination of Whether Conduct was Commercia lly 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 commerciallyreasonable 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 re cognized market at the time of the disposition; or (3) otherwise in conformity with reasonable commercial practices among dealers in the ty pe of property that was the subject of the disposition. (c) A collection, enforcement, di sposition, or acceptance is commercially reasonable if it has been approved: (1) in a judicial proceeding; (2) by a bona fide cr editors’ committee; (3) by a representative of creditors; or (4) by an assignee for th e benefit of creditors. (d) Approval under Subsection (c) ne ed 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 “rec ognized market” is limited and “applies only to markets in which there are standard ized price quotations for property that is essentially fungible, such as stock ex changes,” and the expl anation that while a low price is not sufficient alone to est ablish a violation, “a low price suggests31 See id. § 9.627 (West 2011). “Commercial reasonableness” at its co re is a fact-based inquiry that requires a balance of Arti cle 9’s two competing policies—protecting debtors against creditor dishonesty and minimizing interference in hone st dispositions. Regal Fin. Co. , 355 S.W.3d at 602. Courts ha ve considered a number of nonexclusive factors when addres sing the term “commercial reasonableness,” such as (1) whether the secured party endeavo red to obtain the best price possible; (2) whether the collateral was sold in bulkor 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 t he expenses incurred during the sale were reas onable and necessary; (7 ) whether the sale was advertised; (8) whether multiple bids were received; (9) what state the collateral was in; and (10) where th e sale was conducted. Id. at 601–02. The inquiry’s ultimate purpose is to ensu re 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 pres ented 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 ch arge also does not explain that these statutory “safe harbors” are not the exclus ive means of proving commercial reasonableness. See Regal Fin. Co. , 355 S.W.3d at 599.32 in its own idea of “commerc ially 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 comm ercial reasonableness finding involving the sale of used vehicles as collateral

. Id. at 597. In that case, several witnesses had testified about the secure d creditor’s dispositions of the repossessed vehicles, incl uding 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 inspecte d each vehicle, completed a condition report, and used that informat ion to produce a separate report that included the vehicle’s features and an estimated value and t hen attempted to solicit— sometimes unsuccessfully—at least two bids from wholesalers; most of the sales were made privately to a sm all number of trusted auto mobile 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 90 6 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 affidavi t, a vehicle condition report, a NADA form estimating value, and any bids tendered for the ve hicle; copies of various negotiable instrument s containing the date, time, and price and identifying the collateral’s buyer were also entered into evidence. Id. at 602. The court33 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 co nsidered the testimony of various witnesses, including one w ho testified about the various ways to re sell 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 [14t h 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 ev ery aspect of the disposition—method, manner, time, place, and other terms—ha d to be commercially reasonable, see Tex. Bus. & Com. Code An n. § 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 whic h 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 commercial ly reasonable manner. Monroe testified that he had not received anything from SunTrust to tell him the time, date, place, or anything else abou t the sale or to show SunTrust’s other34 attempts to sell the vehicle; that he had not seen any documents about the actual sale; that he had looked at Kelly Blue Bo ok’s retail value and NADA Black Book’s wholesale value, as well as online rese arch, to reach his own valuation of $165,000 to $175,000; and th at he was astounded that the vehicle had been sold for $115,000. As to the $3 8,000 in repossessi on expenses, Monroe testified that in his experience as a bail bondsman, th is was higher than any repossession fee he had ever seen, although he acknowledged never hav ing 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 co urt admitted into evidence “a complete pay history for the subject lo an,” a one-sheet docu ment entitled “ALS Purge Account System – Transaction Detail” from October 13, 2012 to October 17, 2013. Kelly did not explai n what the “NO ACCT/CANNOT” entries meant or why the “REPO FE E” entries dated May 3, 2013 and May 10, 2013 were $176.19 and $750, re spectively, but the “repos session 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 th ey were needed, or how much they had cost. While Kelly’s testimony may have provided some evidence of a commercially reasonable mann er with regard to the “oth erwise in conformity with35 reasonable commercial practices among deal ers 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 testim ony. Compounded with the lack of any evidence for the jury’s fact-based inquiry to determi ne whether SunTrust endeavored to obtain the best price possible for the vehicle, th e dichotomy between the jury instruction about a public sale and the notification for private sa le, 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 jurycould 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 va lue of the collateral in a commercially reasonable transaction would be $143,713.85. SunTru st complains that the evidence is legally insufficient to support this finding. The record reflects that the vehicle’s original pr ice in October 2012 was $233,305.46, and seven months late r, in May 2013, the vehicle was repossessed. SunTrust sold the vehi cle for $115,000, in what the jury determined was a commercially unreasonab le sale. No evidence was admitted as to the vehicle’s condition at or before the time of sa le. Although Kelly testified36 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 expe cted the car to sell for $165,000 to $175,000. Generally, the factfinder has broad disc retion 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 opinio ns 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 re asonable 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 wi th no recognized market value). Here, the evidence prov ided 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 compla ins that it proved its damages as a matter of law because it soug ht the balance on a promisso ry note, refe rring us to Guerra v. M.H. Equities, Ltd. , No. 02-11-00261-CV, 2012 WL 2135596 (Tex.37 App.—Fort Worth June 14, 20 12, no pet.) (mem. op.). Guerra involved the appeal of a summary judgm ent on an unliquidated dama ges claim in which M.H. Equities sued Guerra unde r a retail installment contra ct 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—a nd attached records of the amounts owed and how the total was calculat ed but not what amounts were included to bring t he total to $20,644.60. Id. We noted that while typically the balance on a promissory note is a li quidated damage because the difference between the amount of indebtedness alleg ed to be due and the face amount of the note does not create ambiguity or ra ise a question of fact regarding payment credits, in Guerra , the summary judgment evidence raised a fact issue as to how much Guerra owed becaus e 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 peti tion, SunTrust claimed th at 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 do wn payment); $173,109.37 was the amount of the debt plus $1 8,217.67 as a finance char ge, for a total amount of $191,327.04. Two payments were applied to the ba lance—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, la te charges, repossession expenses, and38 “Accumulated Fees and Costs” was $172,325.51. Accord ing to Thore’s affidavit, the aggregate amount of th e obligation as of October 24, 2013 was $173,703.77. SunTrust’s November 2, 2013 explanatio n of the deficiency listed the same
amount. According to SunTrust’s November 2, 2013 explan ation of the deficiency, minus the sales proceeds of $115,000, Monroe had an outs tanding balance on the debt of $58,703.77, but then SunTrust added $3 9,510.45 in repossession expenses, accumulated fees and costs, and late charges to reach a total deficiency of $98,214.22. Th ore’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 vehi cle, 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 actuallydue and owing on the note, precluding the award of damages as a matter of law. Further, a secured creditor must prove th at it disposed of the collateral in a commercially reasonable manner befor e it may recover any deficiency. Regal Fin. Co. , 355 S.W.3d at 599. As noted above , the jury found that SunTrust had39 failed to dispose of the collateral in a co mmercially reasonable manner. The jury charge contained section 9. 626, “Action in which Defi ciency or Surplus is in Issue,” which provides, (a) In an action arising from a tr ansaction, 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 no t prove compliance with the provisions of this subchapter relating to collection, enforcement, disposition, or acce ptance unless th e debtor or a secondary obligor places the secured party’s compliance in issue. (2) If the secured party’s complia nce is placed in issue, the secured party has the burden of establishing that the collection, enforcement, dispos ition, 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 th at the collection, enforcement, disposition, or acceptance wa s conducted in accordance with the provisions of this subcha pter relating to collection, enforcement, disposition, or acceptance, the liability of a debtor or a secondary obligor fo r 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 co llection, enforcement, disposition, or acceptance; or (B) the amount of proceeds that would have been realized had the noncomplyi ng secured party proceeded in accordance with the prov isions of this subchapter relating to collection, enf orcement, disposition, or acceptance

.

27 Although the jury charge did not co ntain 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.40 (4) For purposes of Subdivision (3)(B), the amount of proceeds that would ha ve 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 dispos e of the collateral in a commercially reasonable manner, Monroe ’s liability for a deficiency was limited as set out above. The calculation of th ese damages correlate s to jury question 7—“What sum of money, if any, if paid no w in cash, would fairly and reasonably compensate SunTrust Bank for its damages, if any, that resulted from Mark A[.] Monroe’s breach of the cont ract?” 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 comm ercially 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 th e trial court entered a ta ke-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 it s motion for new trial. But, as discussed above, SunTrust did not objec t to the conditional jury question and waived any of its claims to have missing jury questi ons propounded when it failed to object41 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