No. 05-14-01392-CV

In the Court of Appeals for the Fifth Judicial District of Texas at Dallas 

K.W. MINISTRIES, INC., 

 Plaintiff-Appellant, 

v.

AUCTION CREDIT ENTERPRISES, LLC, 

 Defendant-Appellee 

__________________________________________________________________ 

On appeal from the 116th Judicial District Court for Dallas County, Texas 

Hon. Tonya Parker presiding 

__________________________________________________________________ 

BRIEF OF APPELLEE 

AUCTION CREDIT ENTERPRISES, LLC 

__________________________________________________________________ 

Robert K. Wise 

State Bar No. 21812700 

bwise@lwsattorneys.com 

LILLARD WISE SZYGENDA PLLC 

5949 Sherry Lane, Suite 1255

Dallas, Texas 75225 

214 • 739 • 2000 Telephone

214 • 739 • 2010 Fax

ACCEPTED

05-14-01392-CV

FIFTH COURT OF APPEALS

DALLAS, TEXAS

4/8/2015 6:56:26 PM

LISA MATZ

CLERK

 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 4/8/2015 6:56:26 PM LISA MATZ Clerk
TABLE OF CONTENTS

TABLE OF CONTENTS...........................................................................................1

INDEX OF AUTHORITIES......................................................................................3

STATEMENT OF THE CASE..................................................................................7

STATEMENT REGARDING ORAL ARGUMENT ...............................................8

STATEMENT OF FACTS ........................................................................................9

A. The Parties. ....................................................................................................10

B. KWM And ACE Enter Into A Floor-Plan Financing Agreement.................13

C. KWM Defaults Under The Agreement. ........................................................16

D. ACE Reports KWM’s Default To Auction Insurance Agency (AIA)...........17

E. KWM Sues ACE............................................................................................19

F. KWM Sues ACE Again.................................................................................19

SUMMARY OF ARGUMENT...............................................................................30

ARGUMENT...........................................................................................................32

A. The Trial Court Did Not Abuse Its Discretion In Failing To 

Consider The Amended Response.................................................................32

1. The standard of review........................................................................32

2. The trial court did not abuse its discretion by not considering 

the Amended Response. ......................................................................32

a. Texas Rule of Civil Procedure 166a(c) expressly 

requires leave of court to file a summary-judgment 

response or summary-judgment evidence late..........................33

b. The relation-back doctrine is inapplicable to a 

summary-judgment response. ...................................................38

B. The Summary Judgment Must Be Affirmed For Multiple Reasons. ............40
2

1. The summary-judgment standard........................................................40

2. Both the no-evidence and traditional summary judgment 

must be affirmed..................................................................................42

PRAYER..................................................................................................................47

CERTIFICATE OF COMPLIANCE WITH RULE 9.4..........................................49

CERTIFICATE OF SERVICE ................................................................................49
3

INDEX OF AUTHORITIES

CASES

Allison v. Post-Newsweek Stations Houston LP, Nos. 01-10-00775-CV, 

01-11-00767-CV, 2011 Tex. App. LEXIS 10158 (Tex. App.—

Houston [1st Dist.] Dec. 22, 2011, no pet.) (mem. op.)................................36

Arellano v. Magana, 315 S.W.3d 576 (Tex. App.—El Paso 2010) ........................47

Baylor Health Care System v. Maxtech Hldgs., Inc., 111 S.W.3d 654 

(Tex. App.—Dallas 2003, no pet.) ................................................................47

Benchmark Bank v. Crowder, 919 S.W.2d 657 (Tex. 1996)............................ 28, 34

Brown v. Melissa 121/5 Partners, Ltd., No. 05-13-01189-CV, 

2014 Tex. App. LEXIS 8467 (Tex. App.—Dallas Aug. 4, 

2014, no pet.) (mem. op.) ................................................................. 32, 34, 37

Brown v. Tex. Bd. of Nurse Exam’rs, 194 S.W.3d 721 (Tex. App.—

Dallas 2006, no pet.)......................................................................................47

Burbage v. Burbage, 447 S.W.3d 249 (Tex. 2014).................................................43

Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 

(Tex. 2002) ................................................................................. 32, 33, 34, 37

Centeq Realty, Inc. v. Siegler, 899 S.W.3d 195 (Tex. 1995)...................................41

Elliot-Williams Co. v. Diaz, 9 S.W.3d 801 (Tex. 1999)..........................................40

Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167 (Tex. 2003)...............40

Godfrey v. Sec. Serv. Fed. Credit Union, 356 S.W.3d 720 (Tex. App 

El Paso 2011, no pet.)....................................................................................37

Helitrans Co. v. Rotorcraft Leasing Co. 2015 Tex. App. LEXIS 1410 

(Tex. App.—Houston [1st Dist.] Feb. 12, 2015, no pet. h.)..........................46

Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925 (Tex. 1996) ..............41

Karcher v. Classic Foods, L.P., 2005 Tex. App. LEXIS 3062 

(Tex. App.—Fort Worth Apr. 21, 2005, no pet.) ................................... 40, 41
4

Ketter v. ESC Med. Sys., Inc., 169 S.W.3d 791 (Tex. App.—Dallas 2005, 

no pet.)...........................................................................................................41

In re K.W. Ministries, Inc. d/b/a CRUSH Auto Sales, No. 05-13-0085-CV, 

Memorandum Op. (Jan. 28, 2013).................................................................19

Laidlaw Waste System, Inc. v. City of Wilmer, 904 S.W.2d 656 (Tex. 1995)...........9

Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593 (Tex. App.—

Texarkana 1994, no writ)...............................................................................39

Mackey v. Great Lakes Investments, Inc., 255 S.W.3d 243 (Tex. 

App.—San Antonio 2008, pet. denied) ...........................................................9

Malcomson Road Utility Dist. v. Newsom, 171 S.W.3d 257 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied)...........................................................40

Miller v. Argumaniz, 2015 Tex. App. LEXIS 1274 (Tex. App.—El Paso 

Feb. 11, 2015, no pet. h.) (mem. op.) ............................................................39

PNS Stores, Inc. v. Rivera, 335 S.W.3d 265 (Tex. App.—San Antonio 

2010), rev’d on other grounds, 379 S.W.3d 267 (Tex. 2012)................ 35, 36

Rhone-Poulenc, Inc. v. Steel, 997 S.W. 2d 217 (Tex. 1999)...................................41

Santillan v. Nat’l Union Fire Ins. Co., 166 S.W.3d 823 (Tex. App.—

El Paso 2005, no pet.)....................................................................................47

In re S.A.P., 156 S.W.3d 574 (Tex. 2005)...............................................................39

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995).......................................41

Sterling v. Alexander, 99 S.W.3d 793 (Tex. App.—Houston [14th Dist.] 

2003, pet. denied) ..........................................................................................47

Swett v. At Sign, Inc., No. 2-08-315-CV, 2009 Tex. App. LEXIS 3579 

(Tex. App.—Fort Worth May 21, 2009, no pet.) (mem. op.) .......................37

Tarrant Restoration v. Tex Arlington Oaks Apts., Ltd., 225 S.W.3d 721 

(Tex. App.—Dallas 2007, no pet.) ......................................................... 40, 41

Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640 (Tex. 1996), 

rev’d on other grounds, 379 S.W.3d 267 (Tex. 2012)..................................35
5

Univ. of Tex. Health Science Ctr. v. Bailey, 332 S.W.3d 395 (Tex. 2011).............39

Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005)..................... 40, 41

Wawarosky v. Fast Grp. Houston Inc., No. 01-13-00466-CV, 2015 Tex. 

App. LEXIS 1522 (Tex. App.—Houston [1st Dist.] Feb. 17, 2015, 

no pet. h.) (mem. op.) ................................................................................9, 37

STATUTES AND RULES

Texas Business & Commerce Code § 17.45(5).........................................................7

Texas Business & Commerce Code § 17.46(b).........................................................7

Texas Business & Commerce Code § 17.46(b)(8), .................................................20

Texas Business & Commerce Code §17.46(b)(12).................................................20

Texas Business & Commerce Code §17.46(b)(24).................................................20

Texas Business & Commerce Code § 17.49(f)................................................. 21, 23

Texas Business & Commerce Code § 17.50(a).......................................................23

Texas Business & Commerce Code § 17.50(a)(1) ....................................................7

Texas Business & Commerce Code § 17.50(a)(1)(A).............................................23

Texas Business & Commerce Code § 17.50(a)(3) ....................................................7

Texas Business & Commerce Code § 17.565................................................... 21, 23

Texas Civil Practice & Remedies Code § 16.068................................. 31, 33, 37, 39

Texas Rule of Appellate Procedure 38.1(d)...............................................................9

Texas Rule of Appellate Procedure 38.1(i) .............................................................32

Texas Rule of Appellate Procedure 44.1(a) (1).......................................................37

Texas Rule of Civil Procedure 45(a) .......................................................................39

Texas Rule of Civil Procedure 166a(c)................................................. 25, 31, 33, 34

Texas Rule of Civil Procedure 166a(i) ....................................................................42
6

OTHER AUTHORITIES

Judge David Hitner & Lynne Liberato, Summary Judgments in Texas: 

State and Federal Practice, 46 Houston L. Rev. 1379 (2010)......................34
7

STATEMENT OF THE CASE1

This action arises out of a “Demand Promissory Note and Security 

Agreement” (the Agreement) pursuant to which Appellant K.W. Ministries, Inc. 

(KWM) obtained floor-plan financing from Appellee Auction Credit Enterprises, 

LLC (ACE) for the purchase of vehicles by KWM’s former used-car business.2 

KWM’s “Original Petition” (the Petition) alleged five causes of action: 

(1) defamation, (2) false, misleading or deceptive acts or practices in violation of 

Sections 17.46(b) and 17.50(a)(1) of the Texas Deceptive Trade Practices Act (the 

DTPA),3(3) unconscionable actions or courses of action in violation of Sections 

17.45(5) and 17.50(a)(3) of the DTPA,4(4) fraud, and (5) breach of contract (i.e., 

the Agreement).5 

ACE moved for a no-evidence and traditional summary judgment on each 

cause of action and a traditional summary judgment on certain of its affirmative 

 

1

The “Clerk’s Record” will be cited “CR” followed by the relevant page(s) and a 

parenthetical identifying the cited document (e.g., CR7-13 (Pet.)). The “Reporter’s Record” will 

be cited as “RR” followed by the relevant page(s) and line(s) (e.g., “RR __:_.”). 

The pages of KWM’s Brief are not numbered. So that ACE can refer to specific pages of 

it, Exhibit A hereto is a copy of the Brief on which handwritten page numbers have been written. 

Citations to the Brief’s pages are to the interlineated ones on Exhibit A.

2 CR5, 23 (Orig. Pet. ¶ 6 & Exh. A (the Agreement)).

3

Tex. Bus. & Com. Code §§ 17.46(b), 17.50(a)(1).

4

Id. §§ 17.45(5), 17.50(a)(3).

5 CR7-20 (Orig. Pet.).
8

defenses.6 The Court granted the motion, entering a final summary judgment that 

did not specify the grounds on which it was granted.

7

 KWM timely appealed.8 

STATEMENT REGARDING ORAL ARGUMENT

Oral argument should not be granted in this appeal because the appeal is 

frivolous. As discussed below, KWM’s brief (the Brief or Br.) does not comply 

with Texas Rule of Appellate Procedure 38 and does not raise any appellate issues 

because its arguments are not clear and concise and generally fail to cite relevant 

legal authorities or the record. For example, even though the trial court granted a 

no-evidence summary judgment, the Brief not only fails to identify the elements of 

each cause of action challenged by the summary-judgment motion, but, even 

worse, fails to identify any specific evidence raising a fact issue with respect to 

each challenged element. The Brief also fails to mention each affirmative defense 

on which the traditional summary judgment was granted.

KWM’s argument that the trial court “erred when it failed to consider 

[KWM’s] amended [summary-judgment] response”9ignores the proper standard of 

review and is frivolous because (1) it is contrary to Texas Rule of Civil Procedure 

166a(c)’s express language, and (2) is based on the relation-back doctrine—a 

 

6 CR69 (Am. MSJ).

7 CR600 (Final Summary Judg.).

8 CR602 (Notice of Appeal).

9 Br. “Argument” § II, at 17.
9

doctrine relating to limitations and pleadings and not to summary-judgment

responses.

ACE needlessly was forced to waste tens of thousands of dollars defeating 

KWM’s meritless claims in the trial court and in preparing this brief, it should not 

be forced to waste thousands of dollars more on oral argument in a frivolous 

appeal.

STATEMENT OF FACTS

Even though Texas Rule of Appellate Practice 38.1(d) required the Brief’s 

“Statement of Facts” to be “supported by record references,” the statement is a 

mere regurgitation of the Petition’s “Statement of Facts” with minor 

modifications.

10 In fact, every “record reference” in the statement is to the 

Petition. As this is an appeal from a summary judgment and as pleadings are not

proper summary-judgment evidence,11 the Statement of Facts is unsupported by 

any such evidence.12 Moreover, many of the factual assertions in the Statement of 

 

10 Compare Br. Statement of Facts (6-15) with Pet. ¶¶ 7-20 (CR6-11). 

11 E.g., Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)

(“Generally, pleadings are not competent evidence, even if sworn or verified”). Although the 

Petition contained a number of exhibits, they also are not proper summary-judgment evidence 

because “[d]ocuments submitted as summary judgment proof must be sworn to or certified. 

‘Unauthenticated or unsworn documents, or documents not supported by any affidavit, are not 

entitled to consideration as summary judgment evidence.’” Wawarosky v. Fast Grp. Houston, 

Inc., No. 01-13-0446-CV, 2015 Tex. App. LEXIS 1522 (Tex. App.—Houston [1st Dist.] Feb. 17, 

2015, no pet. h.) (mem. op.) (quoting Mackey v. Great Lakes Invests., Inc., 255 S.W.3d 243, 252 

(Tex. App.—San Antonio 2008, pet. denied)).

12 As discussed below, the trial court granted ACE’s amended summary-judgment 

motion. CR69-406. KWM’s original response to the motion was unaccompanied by any 
10

Facts are not supported by citations to the Petition, presumably because the 

Petition does not support them.13

Because there is no summary-judgment evidence supporting KWM’s 

version of the facts and because the material facts set forth in the Brief’s 

“Statement of Facts” are untrue, ACE takes issue with every such fact in it and 

below sets forth an accurate statement of facts based on the uncontroverted

summary-judgment evidence.

A. The Parties. 

KWM is a Texas not-for-profit corporation that purports to operate a 

ministry.14 It is owned and operated by Kenneth Williams (Williams), a self-

 

summary-judgment evidence. CR407-24. Although KWM filed an amended response on the 

day of the summary-judgment hearing containing summary-judgment evidence, the trial court 

denied KWM’s oral request at the hearing for leave to file it, CR600 (Final Summ. Judg.), and 

the Statement of Facts does not cite that evidence. In fact, that evidence is not even cited in the 

Brief’s arguments. See Br. “Argument” §§ III-IV, at 19-21. Rather, KWM simply refers the 

Court to portions of the amended response. Id.

13 See, e.g., Br. at 8 (“At the outset of their relationship, and at all times thereafter, 

Defendant instructed Plaintiff to make payment checks payable to “AAA” and not to [ACE]. 

Not knowing the reason or justification for this request, Plaintiff nonetheless complied with 

Defendant’s instructions.”), 10 (“On November 17, 2011, Defendant finally provided Plaintiff 

with a copy of the Contract. Over three (3) months had passed from the time the Contract was 

signed until Defendant finally gave Plaintiff a copy of the Contract.”), 14 (“Defendant confirmed 

this balance due by handing the written statement of its Chief Operating Officer, Tedd Martin to 

Plaintiff in a meeting on December 22, 2011.”), 15 (“Defendant finally paid Plaintiff its overcollection on proceeds of collateral in early May, 2012, almost six (6) months after it terminated 

its loan relationship with Plaintiff, four and one half (41⁄2) months from the date of its last 

meeting with Plaintiff and over three and one half (31⁄2) months after its last sale of any 

vehicles.”).

14 CR150 (Am. MSJ at 82 (Williams Depo. at 7)).
11

proclaimed minister.15 KWM, during its more than six years in existence,16 has 

never filed a federal-income tax return and maintains no contemporaneous 

accounting or financial records for any of its businesses and does not even 

maintain copies of all of its bank statements.17

In addition to its “ministry,” KWM currently is in the home-remodeling 

business and formerly was in the used-car business.18 The latter business, which is 

the subject of this action, operated under the name “C.R.U.S.H. Auto Sales.”19 

KWM began selling used vehicles in May 201020 at a used-car lot located on 

East Lancaster in Fort Worth, Texas.21 In or about December 2011, it moved its 

used-car lot to a location on South East Loop 820 in Fort Worth after learning that 

the person from whom it was leasing the East Lancaster location did not own it and 

 

15 The exact nature of KWM’s ministry is unclear. CR150-51 (Am. MSJ at 82-83 

(Williams Depo. at 7-8)). It is, however, clear that Williams, KWM’s guiding force, has a 

checkered past with jobs running the gambit from mechanic to day-care owner to homeremodeling franchisee to pastor and has had run-ins both with the law and his creditors. CR163-

67 (Am. MSJ at 95-99 (Williams Depo. at 23-25, 88-90, 95-99)). 

16 CR152 (Am. MSJ 84 (Williams Depo. at 9)).

17 CR172-74 (Am. MSJ at 104-106 (Williams Depo. at 108-10)).

18 CR184-55 (Am. MSJ at 86-87 (Williams Depo. at 14-15)).

19 CR153-54, 159 (Am. MSJ at 85-86, 91 (Williams Depo. at 13-14, 26)).

20 CR212, 159 (Am. MSJ at 144 (Sewell Depo. at 22), 91 (Williams Depo. at 26)).

21 CR213 (Am. MSJ at 145 (Sewell Depo. at 26)).
12

that it was not zoned for use as a used-car lot.22 KWM’s small inventory of used 

vehicles was purchased at used-car and salvage auctions.23

ACE provides, among other things, floor-plan financing for used car 

dealers.24 Floor-plan financing provides a car dealer with a revolving credit line to 

finance vehicle purchases.

25

 

ACE’s typical floor-plan financing plan provides for a 56-day “Advance”

(or loan) for the vehicle’s purchase price. An Advance generally must be paid the 

earlier of when it is due or immediately upon the vehicle’s sale, together with a 

floor-plan fee, interest, and a dealer-reserve fee.26 If the vehicle does not sell 

within the Advance’s 56-day term, ACE, in the exercise of its sole discretion and 

upon the dealer’s request, can make an “Extension” on the Advance for another 28 

 

22 CR213-15 (Am. MSJ. at 145-47 (Sewell Depo. at 26-28)).

23 CR216 (Am. MSJ at 148 (Sewell Depo. at 30)).

24 CR280 (Am. MSJ at 212 (Valdes Aff. ¶ 2)).

25 Id. 

26 CR133, 145, 280-91 (Am. MSJ at 65, 77 (Agr. § 2.3(e) and Term Sheet), 212-23 

(Valdes Aff. ¶ 3)). Section 2.3(e) of the Agreement provides that “Dealer shall pay all 

Obligations . . . with respect to Lender-Financed Inventory on the earlier of: (a) twenty-four (24) 

hours from the time Dealer receives payment by or on behalf of the purchasers of an item of 

Lender-Financed Inventory, (b) forty-eight (48) hours after the disposition by sale or otherwise 

of an item of Lender-Financed Inventory, (c) the Maturity Date [of an Advance] or (d) upon 

demand by Lender.” CR133 (Am. MSJ at 65).

The “dealer-reserve fee” is a fee charged on each Advance and is placed in a “Reserve 

Account.” The account’s purpose is to provide ACE with additional security for the dealer’s 

performance under the Agreement. CR140, 329 (Am. MSJ at 72 (Agr. § 12.12); 261 (Valdes 

Supp. Aff. ¶ 4)). Any excess funds from the sale of repossessed vehicles after a dealer’s default 

also are placed in the Reserve Account. CR329 (Am. MSJ at 261 (Valdes Supp. Aff. ¶ 4)).
13

days.27 When an Extension is granted, the dealer must repay at least 20 percent of 

the Advance’s outstanding principal amount as well as interest and a floor-plan 

fee.28 Like an Advance, an Extension generally must be repaid the earlier of when 

it is due or immediately upon the vehicle’s sale.29 

B. KWM And ACE Enter Into A Floor-Plan Financing Agreement.

In August 2011, Joe Madrid (Madrid), ACE’s Irving, Texas, Branch 

Manager, met with Williams and KWM’s “general counsel,” Yolonda Sewell 

(Sewell), about ACE’s floor-plan financing program.30 Williams told Madrid that 

KWM and he had poor credit and that he wanted to upgrade KWM’s used-car 

inventory by using floor-plan financing to purchase newer and better quality used 

vehicles.31 

As required by ACE, Williams filled out a credit application.32 

Unbeknownst to ACE, the application was rife with lies. For example, it 

misrepresented the amount of time in which KWM had been in the used-car 

 

27 CR281 (Am. MSJ at 213 (Valdes Aff. ¶ 4)).

28 Id. 

29 CR133, 281 (Am. MSJ 65 (Agr. § 2.3(e), 213 (Valdes Aff. ¶ 4)).

30 CR128-29 (Am. MSJ at 60-61 (Madrid Aff. ¶ 3)).

31 Id.

32 CR242-43 (Am. MSJ at 174-75 (Sewell Depo. Exh. 4 (Credit Application)). 
14

business and its average monthly vehicle sales.33 ACE would never have approved 

KWM’s application had it known that any of the information on the credit 

application was false.

34

Williams also told Madrid that KWM was willing to give ACE titles to 

certain vehicles that it owned outright as collateral for floor-plan loans.35 ACE 

would not have agreed to provide floor-plan financing to KWM had KWM not 

agreed to do this.

36

 In fact, ACE often requires dealers with poor credit histories, 

such as KWM, to provide such titles as collateral.37

On August 11, 2011, KWM signed a floor-plan financing agreement with 

ACE (i.e., the Agreement),

38 which provided a $75,000 floor-plan revolving credit 

line for vehicle purchases.

39

 The Agreement was signed at ACE’s Irving, Texas, 

office by Williams. Because Williams always has Sewell review KWM’s 

 

33 Williams represented in the application that that KWM had been a dealer for “2+” 

years and that it had been operating at the East Lancaster location for that period of time, when, 

in fact, KWM had began operating only for about fifteen months. CR242, 183-84 (Am. MSJ at 

174 (Sewell Depo. Exh. 4), 115-16 (Williams Depo. at 141-42)). Worse, he represented in the 

application that KWM averaged fifteen vehicle sales per month, when it had never sold more 

than thirteen vehicles in a month and only averaged six sales per month. CR312 (Am. MSJ at 

244 (Reynolds Aff. Exh. C)). 

34 CR326 (Am. MSJ at 258 (Supp. Madrid Aff. ¶ 5)).

35 CR128-29 (Am. MSJ at 60-61 (Madrid Aff. ¶ 3)).

36 CR129, 333-34 (Am. MSJ at 61 (Madrid Aff. ¶ 4); 265-66 (Supp. Valdes Aff. ¶ 21)).

37 CR129, 333-34 (Am. MSJ at 61 (Madrid Aff. ¶ 4); 265-66 (Supp. Valdes Aff. ¶ 21)).

38 CR128, 133-45 (Am. MSJ at 60, 65-77 (Madrid Aff. ¶ 2 & Exh. A)).

39 Id.; see also CR281-82 (Am. MSJ at 212-13 (Valdes Aff. ¶ 3)).
15

contracts before he signs them, he brought Sewell with him to ACE’s office.40 

Curiously, however, Sewell reviewed only part of the Agreement before Williams 

signed it.41 And, Williams, who claimed that he had questions about certain of its 

provisions, including its provisions regarding Extensions, never bothered to discuss 

them with Sewell, Madrid, or any other ACE employee before signing the 

Agreement.42 

Under the Agreement, the decision whether to make an Advance to KWM

for the purchase of a vehicle, as well as the decision to make an Extension, was 

within ACE’s sole discretion.43 Likewise, KWM had no obligation to finance its 

used-car purchases through ACE.44 Under the Agreement, ACE also had the right, 

for any or no reason, to call all of KWM’s “Obligations” (i.e., outstanding 

Advances and Extensions) at any time (i.e., on “demand”).45 To ensure the full and 

 

40 CR168-69, 220-21 (Am. MSJ at 100-01 (Williams Depo. at 72-73), 152-53 (Sewell 

Depo. at 40-41)).

41 CR168-69, 221-22 (Am. MSJ at 100-01 (Williams Depo. at 72-73), 153-54 (Sewell 

Depo. at 41-42)).

42 CR169-70 (Am. MSJ at 101-02 (Williams Depo. at 73-74)).

43 See CR133 (Am. MSJ at 65 (Agr. §§ 2.3(a) (“The decision to make an Advance to 

Dealer is the exclusive right of Lender, and Dealer understands and agrees that Lender may 

refuse to make an Advance at any time, with or without cause and without prior notice to 

Dealer . . . .” (emphasis added)), 2.3(f) (“If Dealer is in compliance with all other provisions of 

this Agreement, Lender may, in its sole discretion, permit an Extension of the Maturity Date 

relative to an item of Lender-Financed Inventory . . . .” (emphasis added))).

44 CR133 (Am. MSJ (Agr. §§ 2.3(a) and 2.3(f))).

45 CR133 (Am. MSJ (Agr. § 2.3(e))).
16

prompt payment of Advances and Extensions under the Agreement, KWM gave 

ACE a security interest in, among other things, all of its vehicles and other 

property, and not merely in those vehicles financed by ACE.46 

C. KWM Defaults Under The Agreement.

Shortly after entering into the Agreement, the parties’ relationship soured 

because (1) KWM’s checks began bouncing, (2) KWM sold vehicles “out-of-trust” 

(i.e., selling vehicles without immediately repaying the Advance or Extension 

relating to it), and (3) KWM failed to repay Advances at all.

47

 On November 16, 

2011, as permitted by the Agreement, ACE demanded full payment of all 

outstanding amounts due and owing under the Agreement (i.e., all Advances and 

Extensions) and further advised KWM that it would no longer make Advances or 

Extensions to KWM.

48

 ACE also repossessed a number of vehicles whose titles 

were in its possession. It, however, refrained from immediately selling those

 

46 CR133-34 (Am. MSJ at 66-67 (Agr. § 3.1)).

47 CR129-30, 246, 247, 255, 275-79 (Am. MSJ at 61-62 (Madrid Aff. ¶¶ 8-9), 178 

(Sewell Depo. Exh. 11 (November 8, 2011 Madrid email asking when KWM would pay past due 

on Advances), 179 (Sewell Depo. Exh. 12 (November 15, 2011 Madrid email noting that KWM 

was past due on six Advances)), 187 (Sewell Depo. Exh. 19 (November 18, 2011 Madrid letter 

noting that KWM had sold six vehicles out-of-trust)), 207-11 (Sewell Depo. Exhs. 28-29 (NSF 

checks in the amounts of $9,940 and $6,780))).

48 CR248-50 (Am. MSJ at 180-82 (Sewell Depo. Exh. 13 (11/21/11 Williams letter))). 

ACE properly demanded full payment of KWM’s indebtedness and properly declined to make 

future Advances or Extensions because the decision to make Advances or Extensions was solely

in ACE’s discretion, see CR133 (Am. MSJ at 65 (Agr. §§ 2.1, 2.3(f))), and because the 

Advances were demand loans, id. (Agr. § 2.3(e) (requiring KWM to pay all “Obligations” on 

“demand”)).
17

vehicles at auction because KWM repeatedly promised to repay its indebtedness 

under the Agreement promptly.49 After KWM failed to honor its promises, ACE 

sold five of the vehicles through independent and well-attended automobile 

auctions and applied the sales proceeds to KWM’s indebtedness under the 

Agreement, all as permitted by the Agreement.50 ACE then refunded $4,723 to 

KWM, which was the balance of KWM’s Reserve Account.51

D. ACE Reports KWM’s Default To Auction Insurance Agency (AIA).

AIA is an insurer that, among other things, insures automobile auctions 

against NSF checks and other payment defaults by dealers who purchase vehicles 

at their auctions.52 It is affiliated with AutoTec LLC and AuctionACCESS, a 

dealer registration system that provides memberships to car dealers, which, in turn, 

allows the member-dealers to purchase vehicles at certain automobile auctions.53 

KWM became an AuctionACCESS member in about May 2010.54

On November 18, 2011, ACE informed Sam Compton (Compton), an AIA 

Recovery and Loss Prevention Agent, that KWM had given ACE an NSF check 

 

49 CR244-45, 251-54, 256-74 (Am. MSJ at 176-77, 183-86, 188-206 (Sewell Depo. Exhs. 

10, 17, 18, 20, 21, 22, 24, 25, 26)).

50 CR130, 138-39 (Am. MSJ at 62, 70-71 (Madrid Aff. ¶¶ 10-11, Agr. §§ 11.3, 11.9).

51 CR282, 289-91, 330-31, 336-38 (Am. MSJ at 214, 221-23 (Valdes Aff. ¶ 8 & Exhs. CD); 262-63, 268-70 (Supp. Valdes Aff. ¶¶ 12-13 & Exhs. A-B)).

52 CR292 (Am. MSJ at 224 (Compton Aff. ¶ 2)).

53 CR294 (Am. MSJ at 226 (Dukes Aff. ¶ 2)).

54 CR295 (Am. MSJ at 227 (Dukes Aff. ¶ 3)).
18

and had defaulted on its floor-plan credit line.55 AIA subsequently informed its 

insured auctions that no further coverage would be provided under its insurance 

policies with respect to KWM’s checks for the purchase of vehicles at their 

auctions.56 

Compton contacted Williams on November 22, 2011, to inform him about 

ACE’s report. He also told Williams how KWM could have its checks once again 

covered by AIA’s insurance policies, which, in turn, would have allowed it to 

purchase vehicles at certain auctions.

57

 Williams was uninterested in having KWM

reinstated by AIA.58

Later in November 2011, KWM allegedly was told by an auction that it 

could not purchase vehicles at auction because of ACE’s report to AIA.59 

Thereafter, KWM never again attempted to buy vehicles at an auction60or made 

any effort to be reinstated by AIA, as Compton told Williams it could be.

61

 

55 CR293 (Am. MSJ at 225 (Compton Aff. ¶ 4)).

56 Id. 

57 Id. 

58 Id. (Am. MSJ at 225 (Compton Aff. ¶ 5)).

59 CR216-17, 226-28, 230-31, 189-96 (Am. MSJ at 148-49, 158-60, 162-63 (Sewell 

Depo. at 30-31, 146-48, 152-53), 121-28 (Williams Depo. at 199-206)).

60 CR218-19 (Am. MSJ at 150-51 (Sewell Depo. at 32-33)).

61 CR293 (Am. MSJ at 225 (Compton Aff. ¶ 5)).
19

E. KWM Sues ACE.

On May 7, 2012, KWM sued ACE (the 2012 Action), asserting claims for 

the Agreement’s breach, fraud, and defamation.62 Because KWM was represented 

by Sewell, who was a critical fact witness regarding the Agreement’s execution 

and KWM’s dealings with ACE, ACE moved to disqualify her from acting as 

KWM’s trial attorney in the action.63 On October 17, 2012, the trial court granted 

ACE’s motion and ordered KWM to obtain new trial counsel within thirty days.64 

After KWM failed to do so, the Court dismissed the 2012 Action without 

prejudice.65

F. KWM Sues ACE Again.

On December 12, 2013, more than a year after the 2012 Action was 

dismissed, KWM filed this action. It asserted the same contract, fraud, and 

defamation claims asserted in the 2012 Action.66 In addition, it asserted DTPA 

claims.67 Specifically, KWM alleged that ACE:

 

62 CR90 (Am. MSJ at 22).

63 Id.

64 Id. Notwithstanding her disqualification and this Court’s denial of KWM’s mandamus 

petition regarding it, see In re K.W. Ministries, Inc. d/b/a CRUSH Auto Sales, No. 05-13-0085-

CV, Memorandum Op. (Jan. 28, 2013), Sewell is KWM’s lead attorney in this appeal.

65 CR90 (Am. MSJ at 22).

66 CR11-18 (Pet. ¶¶ 21-51).

67 CR18-20 (Pet. ¶¶ 52-64).
20

 breached the Agreement by (1) charging greater than permitted NSFcheck fees, (2) requiring KWM to make payments with “certified 

funds” after it gave ACE two NSF checks, (3) failing to grant 

Extensions under the Agreement, (4) foreclosing on two vehicles after 

they allegedly had been sold by KWM, (5) charging for multiple lot 

checks, (6) repossessing vehicles that had more than “double the 

value” of KWM’s indebtedness to ACE, (7) repossessing vehicles 

after KWM defaulted on the Agreement instead of exercising its rights 

against KWM’s bond, (8) failing to return any excess proceeds from 

the sale of the repossessed/seized vehicles and/or KWM’s reserve 

account to KWM after the parties’ relationship ended, and (9) failing 

to provide an accounting;

68

 defrauded KWM into entering into the Agreement by misrepresenting 

that KWM had to provide the titles to certain vehicles as collateral to 

obtain floor-plan financing;

69

 

 defamed KWM when ACE “published a statement by oral 

communication and conduct to AIA asserting as fact that [KWM] did 

not pay its bills [sic] that [KWM] owed [ACE] money when it did 

not;”

70

 engaged in false, misleading, and deceptive acts or practices in 

violation of DTPA §§ 17.46(b)(8), (12), and (24)71 “when [ACE] 

informed [KWM] that relinquishment of titles to four high-end 

vehicles was necessary to obtain floor-plan financing” (i.e., the same 

alleged misrepresentation underlying the fraud claim);

72 and

 engaged in five unconscionable actions or courses of action in 

violation of the DTPA: (1) demanding and obtaining free and clear 

 

68 CR11-14, 314-15 (Pet. ¶¶ 21-31); Am. MSJ at 246-47 (KWM’s Sec. Am. Resp. to 

Interrog. 2).

69 CR14 (Pet. at ¶ 33); see also CR318 (Am. MSJ at 250 (KWM’s Sec. Am. Resp. to 

Interrog. 3), 117-19 (Williams Depo. at 156-58), 161 (Sewell Depo. at 150)).

70 CR16 (Pet. at ¶ 44).

71 Tex. Bus. & Comm. Code §§ 17.46(b)(8), (12), (24).

72 CR320 (Am. MSJ at 252 (KWM’s Sec. Am. Resp. to Interrog. 4)). 
21

certificates of title that were unnecessary for floor-plan financing, 

(2) failing to provide an accounting, (3) failing to return excess 

proceeds, (4) charging fees for vehicles that were never 

repossessed/seized by ACE, and (5) repossessing/seizing vehicles 

under retail-installment contracts.73

Even though KWM’s credit line was only $75,000 and its relationship with 

ACE lasted only about three months during which it floor-planned only ten

vehicles, KWM claimed that it suffered hundreds of thousands of dollars in 

economic damages from ACE’s alleged wrongdoing.

74

ACE’s “Answer,” in addition to generally denying KWM’s 

allegations, asserted the following affirmative defenses, among others: 

. . . .

5. Plaintiff’s defamation claim is barred (a) because any 

alleged defamatory statements were true, (b) because any alleged 

defamatory statements were privileged, and (c) by the one-year 

limitations period applicable to defamation claims, 

6. Plaintiff’s DTPA claims are barred (1) because the 

transaction is exempt under Section 17.49(f) of the DTPA, Tex. Bus. 

& Comm. Code § 17.49(f), and (b) by the two-year limitations period 

of Section 17.565 of the DTPA,

. . . . .

75

On July 8, 2014, ACE filed a traditional summary-judgment motion on all of 

KWM’s claims and certain of ACE’s affirmative defenses.

76

 The motion was set 

 

73 CR322 (Am. MSJ at 254 (KWM’s Sec. Am. Resp. to Interrog. 5)). 

74 E.g., CR316 (Am. MSJ at 248 (KWM’s Sec. Am. Resp. to Interrog. 2)). 

75 CR67 (Ans. at 2 (citations omitted)).
22

for hearing on Friday, August 8, 2014.77 A few days before the hearing, KWM 

filed a slew of motions in an effort to delay it, including motions to compel 

discovery and for a continuance.

78

 As a result, ACE agreed to continue the 

summary-judgment hearing until Monday, September 15, 2014.79 

ACE filed an amended summary-judgment motion on August 25, 2014 (the 

Amended MSJ). It was identical to the original motion except that it also sought a 

no-evidence summary judgment on each of KWM’s claims.80 Specifically, the 

Amended MSJ argued the following:

 The Defamation Claim. ACE was entitled to a traditional summary 

judgment on the claim because (1) it was barred by the one-year 

limitations period for defamation claims, (2) the alleged defamatory 

statements were true, (3) the alleged defamatory statements were 

subject to a qualified privilege, and/or (4) KWM failed to mitigate its 

damages. ACE also was entitled to a no-evidence summary judgment 

on the defamation claim because there was no evidence establishing 

that KWM was damaged by the alleged defamatory statements and/or 

the dollar amount of the damages.81

 The DTPA Claim for False, Misleading, or Deceptive Acts or 

Practices. ACE was entitled to a traditional summary judgment on 

the claim because (1) the alleged representation (i.e., the vehicle titles 

had to be provided as security to obtain floor-plan financing) does not 

 

76 CR612, 614 (Docket Sheet at 4,6).

77 See RR33-34; CR612, 614 (Docket Sheet at 4, 6).

78 CR612 (Docket Sheet at 4).

79 CR614 (Docket Sheet at 6).

80 CR66 (Am. MSJ).

81 CR77, 93-97, 125-26 (Am. MSJ at 9, 25-29, 57-58).
23

constitute a laundry-list violation as required by DTPA § 

17.50(a)(1)(A),82 (2) the representation was true—ACE would not 

have extended floor-plan financing to KWM without the titles, (3) the 

representation was not a producing cause of KWM’s economic 

damages as KWM was able to sell the vehicles at any time even 

though ACE held their titles as collateral and, in any event, the 

Agreement gave ACE a security interest in the vehicles (and all of 

KWM’s used-car business’s other assets), (4) the claim was barred by 

the DTPA’s two-year limitations period,83 (5) the claim was barred by 

the DTPA’s exemption for claims arising out of written contracts 

involving more than $100,000,84 and/or (6) KWM failed to mitigate 

its damages. ACE also was entitled to a no-evidence summary 

judgment on the DTPA claim because there was no evidence 

establishing that (a) there was a laundry-list violation as required by 

DTPA §17.50(a)(1)(A), (b) the violation was a producing cause of 

KWM’s economic damages as required by DTPA §17.50(a),85 (c) 

KWM was damaged by the alleged false, misleading, or deceptive act 

or practice, and/or (d) the dollar amount of the DTPA damages.86 

 The DTPA Claim for Unconscionable Actions or Courses of 

Action. ACE was entitled to a traditional summary judgment on the 

claim because (1) none of the actions underlying it constitute an 

unconscionable action or course of action within the DTPA’s 

meaning, (2) the claim was barred by the DTPA’s two-year limitation 

period, (3) the claim was barred by the DTPA’s exemption for claims 

arising out of written contracts involving more than $100,000, and/or 

(4) KWM failed to mitigate its damages. ACE also was entitled to a 

no-evidence summary judgment on the DTPA claim because there 

was no evidence establishing (a) that any of the alleged wrongful acts

constitute an unconscionable action or course of action within the 

DTPA’s meaning, (b) that any of the alleged unconscionable actions 

or courses of action were a producing cause of KWM’s economic 

 

82 Tex. Bus. & Comm. Code § 17.50(a)(1)(A).

83 Id. § 17.565.

84 Id. § 17.49(f).

85 Id. § 17.50(a).

86 CR77-78, 97-103, 125-26 (Am. MSJ at 9-10, 29-35, 57-58).
24

damages, (c) that KWM was damaged by the alleged unconscionable 

actions or courses of action, and/or (d) the dollar amount of KWM’s 

DTPA damages.87

 The Fraud Claim. ACE was entitled to a traditional summary 

judgment on the claim, which was based on the same alleged 

misrepresentation underlying KWM’s DTPA claim for false, 

misleading, or deceptive acts or practices (i.e., ACE’s alleged 

representation to KWM that, to obtain floor-plan financing, KWM 

had to give ACE, as collateral, titles to certain vehicles that it owned 

outright), because (1) the representation was true—ACE would not 

have extended floor-plan financing to KWM without the titles, (2) 

KWM was not damaged by the alleged fraud as KWM was able to sell 

the vehicles at any time even though ACE held their titles as security 

and, in any event, the Agreement gave ACE a security interest in the 

vehicles, and/or (3) KWM failed to mitigate its damages. ACE also 

was entitled to a no-evidence summary judgment on the fraud claim 

because there is no evidence establishing (a) that the representation 

was false, (b) that KWM was damaged by it, and/or (c) the dollar 

amount of KWM’s fraud damages.88

 The Contract Claim. ACE was entitled to a traditional summary 

judgment on the contract claim because (1) each of the alleged 

breaches either did not occur or did not violate the Agreement’s 

provisions, and/or (2) KWM failed to mitigate its damages. ACE also 

was entitled to a no-evidence summary judgment on the contract

claim because there was no evidence establishing (a) that ACE

breached the Agreement, (b) that KWM was damaged by the alleged 

breaches, and/or (c) the dollar amount of the contract damages.89

 

87 CR78-79, 104-10, 125-26 (Am. MSJ at 10-11, 36-42, 57-58).

88 CR79-80, 111-13, 125-26 (Am. MSJ at 11-12, 43-45, 57-58).

89 CR80-81, 113-26 (Am. MSJ at 11-13, 45-58).
25

On September 8, 2014, the last day to timely file a response to the amended 

summary-judgment motion,

90 KWM filed one (the Original Response).91 The 

Original Response, which was unaccompanied by any summary-judgment

evidence, addressed only one of KWM’s five claims—the defamation claim,

arguing that it was not barred by limitations and that the allegedly defamatory 

statements were not subject to a qualified privilege.

92

 It also argued that ACE’s 

summary affidavits (i.e., the Madrid, Valdes, and Reynolds affidavits) should not 

be considered for a number of bogus reasons.

93

 Curiously, the Original Response 

wholly ignored ACE’s request for a no-evidence summary judgment, failing to 

direct the trial court to any evidence creating a fact issue with respect to any of 

elements of KWM’s claims challenged by the Amended MSJ.

94

In addition to the Original Response, KWM, in a bad faith attempt to delay 

the summary-judgment hearing and its day of reckoning further, again filed 

 

90 Tex. R. Civ. P. 166a(c) (providing that a summary judgment response must be filed 

“not later than seven days prior to the hearing”); Br. “Argument” § II, at 17 (admitting that 

KWM’s “response was due on or before September 8, 2015 [sic]”).

91 CR407 (Orig. Resp.). 

92 CR415-18 (Orig. Resp. at 9-12).

93 CR419-23 (Orig. Resp. at 13-17). KWM also filed a motion to strike the affidavits 

primarily because they were undated. RR27-28. The motion, which is not in the appellate 

record, was denied by the trial court. CR600 (Final Summary Judg. (“the Court hereby . . . 

denies Plaintiff’s motions”)). More importantly, KWM has waived any error regarding the 

affidavits because the Brief does not mention them. 

94 CR407 (Orig. Resp.).
26

motions to compel and for continuance,95 neither of which are part of the appellate 

record and only one of which, the continuance motion, was set for hearing.96

As evidenced from the summary-judgment hearing transcript, the motion to 

compel falsely claimed that ACE had failed to provide complete information about 

other lawsuits by its customers alleging fraud, DTPA, or defamation claims,97

whereas the continuance motion sought a continuance of the summary-judgment 

hearing so that KWM could investigate the facts surrounding the other lawsuits 

and not because it needed additional time to respond to the Amended MSJ’s 

arguments or to obtain affidavits or other evidence to support its claims or contest 

ACE’s affirmative defenses.

98

Perhaps most importantly, not only had KWM thoroughly questioned 

Madrid about the “other lawsuits” during his deposition,99 but the trial court also 

recognized, and KWM’s attorney even admitted, that the lawsuits were irrelevant

to the issues raised by the Amended MSJ:

THE COURT: . . . I did want to give you the opportunity to try 

to help the Court understand what the discovery is that you claim 

you’ve been diligent in trying to pursue, notwithstanding that 

 

95 See RR4-27 (discussing the motions); CR613 (Docket Sheet at 3).

96 RR8:1-7; CR613 (Docket Sheet at 3).

97 RR4-27.

98 Id.

99 RR16-19.
27

diligence you haven’t gotten, and it limits your ability to respond to 

the motion for summary judgment. 

I have to be honest with you, Mr. Leslie, I don’t entirely 

understand the answers to all of those questions. You have told me 

about a lot of things that, to Mr. Wise’s point and in fairness, they are 

not in the record that’s in front of me on the motion for continuance 

. . . .

But even if I were to . . . consider what you have said . . ., there still is 

this hole in this respect, two things: One, I still haven’t heard on what 

issue related to this summary judgment these lawsuits . . . would 

provide any type of evidence that you think is relevant to your being 

able to respond to the motion for summary judgment; but the second 

issue . . . is that as it relates to the DTPA claims, the defamation 

claim, the DTPA laundry list and the unconscionable conduct claims, 

the motions [sic] posit legal grounds for the Court to dispose of those 

claims, arguably things that you could respond to without any 

additional evidence . . . . And I don’t know, frankly, what evidence 

you would need to be able to respond to some of the legal arguments 

that are made.

. . . . .

. . . I haven’t heard about anything related to these other lawsuits that 

these other lawsuits that has to do with your ability to respond to 

those legal arguments, yet you filed a response that doesn’t cite any 

authority or attach any evidence which you have the ability to get. 

Your client’s affidavit. Your client is here. He has been here. He was 

here at the last proceeding. You have the ability to get his affidavit on 

different points. So you have that. And so I don’t really understand 

why you haven’t been able to respond to both the legal arguments and 

even the argument of truth being a defense.

So tell me . . .—what these lawsuits have to do with that, those 

aspects of the defamation claim.

MR. LESLIE: On the issue of limitations, Your Honor, the 

lawsuits don’t have anything to do with it. . . .

. . . .
28

THE COURT: What do the lawsuits have to do with 

responding to the argument about the limitations argument and the 

exemption arguments [i.e., DTPA § Section 17.49(f), Tex. Bus. & 

Comm. Code § 17.49(f)]? 

MR. LESLIE: Nothing.

THE COURT: And as it relates to . . . the [DTPA] laundry list 

[violations], . . . the lawsuits obviously don’t bear on that.

MR. LESLIE: No, your honor.100

ACE promptly filed a reply to the Original Response debunking its minimal

arguments.

101

 On Friday, September 12, 2014, the last business day before the 

summary-judgment hearing, KWM filed a “Document Supplement” to the Original 

Response, which contained some unsworn and unauthenticated documents and 

excerpts from Williams’ and Madrid’s deposition transcripts.

102 The Document 

Supplement was unaccompanied by a motion seeking leave to file it late.103 

 

100 RR21:9-22:17, 23:2-18, 25:16-25 (emphasis added). The trial court denied the 

continuance motion, CR600 (Final Summary Judg. (“the Court hereby . . . denies Plaintiff’s 

motions”)), and, more importantly, KWM has waived any appellate issue regarding it because it 

is not mentioned in the Brief.

101 CR425 (Reply Br.).

102 CR459 (Doc. Supp.).

103 The trial court never entered an order allowing KWM to file the Document 

Supplement and KWM does not complain about this failure in the Brief. Of course, absent such 

an order, the evidence was not properly before the trial court. Benchmark Bank v. Crowder, 919 

S.W.2d 657, 663 (Tex. 1996) (“There is no order in this record granting the Crowders leave to 

file McCool’s affidavit late. McCool’s affidavit was not properly before the trial court on the 

motions for summary judgment.”).
29

Finally, on the morning of the hearing, KWM filed an amended summaryjudgment response,

104 which was accompanied by Sewell’s affidavit, which related 

solely to the defamation claim, some unsworn and unauthenticated documents, and 

excerpts from Williams’, Sewell’s, and Madrid’s deposition transcripts105

(collectively with the amended response, the “Amended Response”). As was the 

case with the Document Supplement, the Amended Response was unaccompanied 

by a motion seeking leave to file it. The Amended Response was received by 

ACE’s attorneys as they were leaving for the summary-judgment hearing and was 

not received by the trial court before the hearing began.

106

 

At the summary-judgment hearing, KWM’s attorney asked the trial court to 

“receive my oral motion for leave to amend and accept our response to the 

summary judgment motion that was filed this morning.”107 When asked point 

blank by the trial court why the Amended Response had not been filed timely, 

KWM’s attorney had no explanation:

 

104 CR483.

105 CR521-99.

106 RR23:18-21 (“MR. LESLIE: . . . We filed an amended response this morning. THE 

COURT: I’m not aware of any amended response.”), 34:21-25 (“[MR. WISE:] . . . This morning 

at 11:30 as Ms. Fayne and I were leaving to . . . come to court, I got an e-mail from the court 

system saying he filed something. My paralegal printed it out and we read it sitting out in the 

hallway.”).

107 RR33:8-11.
30

Mr. LESLIE: That is addressed in the amended response. 

There’s the affidavit of Ms. Sewell, who has been previously 

identified as a fact witness in this case, with which I agreed.

The COURT: So tell me why you—Ms. Sewell has been here. 

She’s been here before you were here. Why would I not have an 

affidavit to support the response when it was due versus the morning 

of the proceeding . . . ?

Mr. LESLIE: I don’t have a satisfactory answer for that, Your 

Honor.108

The trial court denied KWM’s oral request for leave to file the Amended 

Response late.109

SUMMARY OF ARGUMENT

KWM first claims that the trial court “erred” in not considering the 

Amended Response in ruling on the Amended MSJ because (1) a trial court must 

consider any response and evidence on file before the summary-judgment hearing

irrespective of when it was filed, and (2) under Section 16.068 of the Texas Civil 

Practice & Remedies Code, the Amended Response’s filing related back to the 

filing of the timely Original Response. Both arguments are frivolous. 

 

108 RR24:3-13 (emphasis added). Later during the hearing, KWM’s attorney complained 

that ACE filed the Amended MSJ at the last possible minute, id. at 30:6-16, 31:2-7, and “that’s 

not a lot of time for us to respond to a whole new set of summary judgment arguments[,]” id. at 

31:2-7. Nonetheless, when the trial court asked him if KWM’s key witnesses, Williams and 

Sewell, were unavailable between the filing of the Amended MSJ and the September 8, 2014 

deadline to respond to it, he candidly admitted they were available. Id. at 30:17-20 (“THE 

COURT: Is there some record in front of me that Ms. Sewell and Mr. Williams have not been 

available to you between the 26th of August and the 8th of September? MR. LESLIE: There is 

not.”).

109 CR600 (Final Summary Judg. (“the Court hereby . . . denies Plaintiff’s oral request at 

the September 15, 2015 hearing for leave to file its amended summary judgment response”)).
31

Texas Rule of Civil Procedure 166a(c) expressly provides that “leave of 

court” is required to file a summary-judgment response or summary-judgment 

evidence, such as the Amended Response, less than seven days before the hearing. 

Here, KWM never sought such leave and, even if it had, there was no good cause 

for its failure to timely file the Amended Response.

Section 16.068 of the Texas Civil Practice and Remedies Code, by its 

express terms, only applies to pleadings and pleas of limitation. A summary 

judgment response is neither a pleading nor relates to limitations. Accordingly, the 

trial court did not abuse its discretion in failing to consider the Amended Response.

KWM’s second and third arguments are that the trial court erred in granting 

either a no-evidence or traditional summary judgment. The arguments fail for two 

reasons. First, as even KWM implicitly concedes, the Original Response was 

wholly inadequate to defeat summary judgment. Because KWM’s arguments are 

based on the Amended Response and because the trial court did not abuse its

discretion in failing to consider it, the summary judgment must be affirmed.

Second, even if the trial court abused its discretion in not considering the 

Amended Response, the Brief’s arguments are wholly conclusory, fail to address 

each no-evidence and traditional summary judgment ground, fail to cite any 

authorities, and fail to direct the court to the summary-judgment evidence raising a 

fact issue on even the two claims and one defense mentioned in passing in the 
32

Brief. Thus, they fail to comply with Texas Rule of Appellate Procedure 38.1(i)

and are inadequate. Accordingly, the summary judgment must be affirmed.

ARGUMENT

A. The Trial Court Did Not Abuse Its Discretion In Failing To Consider 

The Amended Response.

1. The standard of review.

An appellate court “reviews a trial court’s ruling on a motion for leave to file 

a summary-judgment response or summary-judgment evidence late for an abuse of 

discretion.”110 A trial court “abuses its discretion when it acts without reference to 

any guiding rules or principles.”

111

 

2. The trial court did not abuse its discretion by not considering the 

Amended Response.

KWM claims that the trial court “erred” in failing to consider the Amended 

Response for two reasons.112 Initially, claiming that Texas Rule of Civil Procedure 

166a(c) requires a trial court to consider any response or evidence on file at the 

time of the summary-judgment hearing irrespective of when it was filed, KWM 

concludes that the trial court was required to consider the Amended Response

 

110 Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002); accord 

Brown v. Melissa 121/5 Partners, Ltd., No. 05-13-01189-CV, 2014 Tex. App. LEXIS 8467, at 

*3 (Tex. App.—Dallas Aug. 4, 2014, no pet.) (mem. op.).

111 Carpenter, 98 S.W.3d at 687; accord Brown, 2014 Tex. App. LEXIS 8467, at *3.

112 Br. “Argument” § II, at 17-19.
33

because it was filed on the morning of the hearing.

113

 Next, it argues that, since the 

Original Response was timely filed, the Amended Response also was timely filed 

because, under Section 16.068 of the Texas Civil Practice and Remedies Code, the 

Amended Response’s filing relates back to the Original Response’s filing.114 Both 

arguments are frivolous. 

a. Texas Rule of Civil Procedure 166a(c) expressly requires 

leave of court to file a summary-judgment response or 

summary-judgment evidence late.

KWM’s argument that Rule 166a(c) required the trial court to consider any 

response or evidence filed before the summary-judgment hearing ignores the 

Rule’s express language, which requires leave of court for the filing of a summaryjudgment response or summary-judgment evidence late: “Except on leave of court, 

the adverse party, not later than seven days prior to the day of hearing may file and 

serve opposing affidavits or other written response.”115 

Unsurprisingly, given Rule 166a(c)’s clear language, the Texas Supreme 

Court and this Court repeatedly have held that the Rule requires leave of court for 

such late filings.

116

 As recently explained by this Court:

 

113 Id.

114 Id. at 18-19.

115 Tex. R. Civ. P. 166a(c) (emphasis added).

116 Carpenter, 98 S.W.3d at 686 (“Our summary judgment rules afford a party in this 

situation an opportunity to obtain additional time to file a response, either by moving for leave to 

file a late response or by requesting a continuance of the summary-judgment hearing.” (citing 
34

In a summary judgment proceeding, the nonmoving party may file 

and serve opposing affidavits or other written responses no later than 

seven days prior to the scheduled date of the hearing. The nonmoving 

party must obtain leave to file evidence after the deadline. A motion 

for leave to file a late summary judgment response should be granted 

when the nonmovant establishes good cause by showing that the 

failure to timely respond (1) was not intentional or the result of 

conscious indifference but the result of accident or mistake and (2) 

allowing the late response will not cause any undue delay or otherwise 

injure the party seeking summary judgment.117

KWM wholly ignored the good-cause standard in the trial court. The 

Amended Response was unaccompanied by a motion for leave and an affidavit 

explaining why its late filing was not intentional or the result of conscious 

indifference or why it would not cause undue delay or otherwise injure ACE. And, 

at the summary-judgment hearing, KWM’s attorney did not mention either prong 

of the standard.

118

 Similarly, the Brief also ignores the good-cause standard. 

It, however, is clear that neither prong of the standard was met here. 

Initially, KWM’s failure to timely file the Amended Response was intentional or 

the result of conscious indifference as evidenced by the fact that it filed a frivolous 

continuance motion that falsely claimed that ACE had failed to provide discovery 

 

Tex. R. Civ. P. 166a); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996)

(“Summary judgment evidence may be filed late, but only with leave of court.” (citing Tex. R. 

Civ. P. 166a(c)); Brown, 2014 Tex. App. LEXIS 8467, at *3 (“The nonmoving party must obtain 

leave to file evidence after the deadline.”); Judge David Hitner & Lynne Liberato, Summary 

Judgments in Texas: State and Federal Practice, 46 Houston L. Rev. 1379, 1406, 1423 (2010)

(pointing out that leave of court is required to file a summary-judgment response or summaryjudgment evidence late).

117 Brown, 2014 Tex. App. LEXIS 8467, at *3; accord Carpenter, 98 S.W.3d 688.

118 See RR29-36.
35

about matters—other lawsuits—that (1) KWM had already had full and complete 

discovery about, and (2) were wholly irrelevant to any issue raised by the 

Amended MSJ and, therefore, did not preclude KWM from responding to the 

Amended Motion fully in a timely manner.

119

 Of course, a failure to file a proper 

continuance motion shows intent or conscious indifference.

120

Perhaps more importantly, KWM offered no evidence about what steps, if 

any, it took to obtain timely the allegedly needed discovery so as to establish that it 

was not acting intentionally or with conscious indifference.121 To the contrary, as 

its lawyer candidly admitted at the summary-judgment hearing, there was no 

excuse for its failure to file the Sewell Affidavit on time and it was uncontroverted 

that (1) KWM had unfettered access to its principal witnesses, Sewell and 

Williams, at all times, and (2) the documents and deposition-transcript excerpts 

attached to the Amended Response had been in its attorney’s possession long 

 

119 See discussion supra notes 97-100.

120 See Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (holding that

a nonmovant who needs additional evidence to prepare a summary-judgment response must 

properly request a continuance), rev’d on other grounds, 379 S.W.3d 267 (Tex. 2012); PNS 

Stores, Inc. v. Rivera, 335 S.W.3d 265, 284 (Tex. App.—San Antonio 2010), rev’d on other 

grounds, 379 S.W.3d 267 (Tex. 2012) (same).

121 It was evident that KWM made no effort to obtain any evidence about the other 

lawsuits (or anything else) after the Madrid deposition. E.g., RR16:21-18:8 (discussing the fact 

that ACE obtained an affidavit from one of the lawyers in one of the “other lawsuits” explaining 

the lawsuit’s nature).
36

before the September 8, 2014 deadline to file a timely summary-judgment

response.

122

Not only is the first good-cause element not established, but it also is clear 

that had the trial court granted KWM leave to file the Amended Response late,

ACE would have been greatly prejudiced. As pointed out above, the Amended 

Response was not filed until the morning of the summary-judgment hearing, was 

received by ACE’s attorneys as they left for the hearing, and was not received by 

the trial court before the hearing. Thus, the granting of leave to file the Amended 

Response necessarily would have required the Court to postpone the summaryjudgment hearing so that it could consider the response and so that ACE could 

reply to it. This, in turn, would have resulted in undue delay—a delay of both the 

summary-judgment hearing, which already had been rescheduled once because of 

KWM’s shenanigans, and the entry of summary judgment. The granting of leave 

also would have caused ACE to incur considerable additional attorneys’ fees 

 

122 See discussion supra notes 99-103, 106. See also PNS Stores, 335 S.W.3d at 284 

(“Moreover, there is no evidence about what steps, if any, PNS took to obtain the documents 

before its response was due so as to establish it was not acting intentionally or with conscious 

indifference.); Allison v. Post-Newsweek Stations Houston LP, Nos. 01-10-00775-CV, 01-11-

00767-CV, 2011 Tex. App. LEXIS 10158, at *12 (Tex. App.—Houston [1st Dist.] 

Dec. 22, 2011, no pet.) (mem. op.) (“Dorinda presented no evidence to show that her failure to 

respond was not intentional or the result of conscious indifference. There is only the bare 

assertion in her affidavit that she did not receive the notice, which is insufficient to show a lack

of intent or conscious indifference. There is no evidence that the notice was delivered to an 

incorrect address or that Loase was unauthorized to receive mail at Dorinda’s place of business. 

Nor is there evidence of any other accident or mistake. Accordingly, we cannot say that the trial 

court abused its discretion in denying Dorinda’s motion for new trial to allow her to file a late 

response to the motion for summary judgment.” (citation omitted)).
37

because all the time spent preparing for the summary-judgment hearing on 

September 15, 2014, would have been wasted and ACE would have been forced to

spend thousands of dollars more in attorneys’ fees preparing a second reply brief 

(it had already replied to the original response) and preparing for another

summary-judgment hearing. 

In Brown v. Melissa 121/5 Partners, Ltd., this Court recently held, on

similar facts, that there was sufficient prejudice to negate the second good-cause 

element:

[E]ven assuming his unverified arguments established the first 

Carpenter element, appellant failed to show the late response would 

not cause any undue delay or otherwise injure appellee. In fact, the 

motion does not even mention the possibility of delay if the court

granted the motion for leave. Appellee, however, specifically argued 

in its response that it would be prejudiced by a delay because it would 

delay entry of judgment and cause increased legal fees. Thus, we 

conclude appellant wholly failed to establish the second Carpenter

element-that allowing the late response would not unduly delay or 

otherwise injure appellee. As such, appellant failed to establish good 

cause for not timely filing her motion for summary judgment 

response.

123

Finally, it is worth noting that an appellant, such as KWM, who complains

on appeal about the exclusion of summary-judgment evidence, must not only 

establish that the trial court abused its discretion in excluding the evidence, but 

 

123 2014 Tex. App. LEXIS 8467, at *3-5 (citation omitted); accord Swett v. At Sign, Inc., 

No. 2-08-315-CV, 2009 Tex. App. LEXIS 3579, at *5-6 (Tex. App.—Fort Worth May 21, 2009, 

no pet.) (mem. op.) (holding that the trial court’s denial of leave to file a late summary-judgment 

response was not an abuse of discretion when neither the unsworn motion nor the attached 

affidavits discussed the possibility of delay if leave were granted). 
38

also that the evidence’s exclusion probably caused the rendition of an improper 

judgment.124 Here, KWM merely claims that the trial court “erred” in not 

considering the Amended Response. Nothing in the Brief, however, explains how 

the exclusion of its late-filed summary-judgment evidence probably resulted in an 

improper summary judgment (i.e., why it created a fact issue on any of KWM’s 

claims or on ACE’s affirmative defenses). Indeed, the Brief is wholly devoid of 

any citation or reference to that evidence. Simply put, KWM has failed to 

establish that the trial court’s failure to consider the Amended Response constitutes 

reversible error.

b. The relation-back doctrine is inapplicable to a summaryjudgment response.

KWM’s second argument—that the Amended Response, under Section 

16.068 of the Texas Civil Practice and Remedies Code, related back to the filing of 

the Original Response—is absurd. Initially, as pointed out above, Texas Rule of 

Civil Procedure 166a(c) expressly requires “leave of court” for the filing of a 

summary-judgment response or summary-judgment evidence late.

 

124 Wawarosky v. Fast Grp. Houston Inc., N0. 01-13-00466-CV, 2015 Tex. App. LEXIS 

1522, at *10 (Tex. App.—Houston [1st Dist.] Feb. 17, 2015, no pet. h.) (mem. op.) (“To reverse 

a judgment based on a claimed error in admitting or excluding evidence, a party must show that 

the error probably resulted in an improper judgment.”); Godfrey v. Sec. Serv. Fed. Credit Union, 

356 S.W.3d 720, 723 (Tex. App—El Paso 2011, no pet.) (“A party complaining on appeal of the 

admission or exclusion of evidence must show both that the trial court’s ruling was erroneous 

and probably caused rendition of an improper judgment.”); Tex. R. App. P. 44.1(a)(1) (“No 

judgment may be reversed on appeal on the ground that the trial court made an error of law 

unless the court of appeals concludes that the error complained of: (1) probably caused the 

rendition of an improper judgment . . . .”).
39

Moreover, Section 16.068, by its express terms, only applies to pleadings

and pleas of limitation: 

If a filed pleading relates to a cause of action, cross action, 

counterclaim, or defense that is not subject to a plea of limitation

when the pleading is filed, a subsequent amendment or supplement to 

the pleading that changes the facts or grounds of liability or defense is 

not subject to a plea of limitation unless the amendment or 

supplement is wholly based on a new, distinct, or different transaction 

or occurrence.

125

A summary-judgment response is not a “pleading”126 and does not concern a 

“plea of limitation.” In fact, the Texas Supreme Court has made clear that the 

relation-back doctrine relates only to limitations defenses: “But narrow or broad, 

the purpose of the relation-back doctrine is to determine not when, but on what

limitations runs.”127 

In sum, the trial court did not abuse its discretion in refusing to consider the 

Amended Response.

 

125 Tex. Civ. Prac. & Rem. Code § 16.068 (emphasis added).

126 See In re S.A.P., 156 S.W.3d 574, 576 n.3 (Tex. 2005) (“[A] motion for summary 

judgment is not a pleading.”); Miller v. Argumaniz, 2015 Tex. App. LEXIS 1274, at *5 (Tex. 

App.—El Paso Feb. 11, 2015, no pet. h.) (mem. op.) (same); Tex. R. Civ. P. 45(a) (“Pleadings in 

the district and county courts shall (a) be by petition and answer . . . .”). 

127 Univ. of Tex. Health Science Ctr. v. Bailey, 332 S.W.3d 395, 400 (Tex. 2011); see 

Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 601 (Tex. App.—Texarkana 1994, 

no writ) (“When an amended pleading sets up a new cause of action under Section 16.068, it will 

relate back to the date of the original pleading for the purposes of limitations, so long as the 

amended pleading does not allege a wholly new, distinct, or different transaction.” (emphasis 

added)).
40

B. The Summary Judgment Must Be Affirmed For Multiple Reasons. 

1. The summary-judgment standard.

An appellate court reviews a summary judgment de novo.128 The standards 

for reviewing no-evidence and traditional summary judgments are well established.

A no-evidence summary judgment is proper if there is no evidence regarding 

one or more elements of a cause of action.129 The trial court must grant the motion 

unless the nonmovant produces “more than a scintilla of evidence [that] raises a 

genuine issue of material fact” on the challenged elements.130 “Less than a scintilla 

of evidence exists when the evidence is so weak as to do no more than create a 

mere surmise or suspicion of a fact.”131

A defendant is entitled to a traditional summary judgment if the evidence 

establishes, as a matter of law, either that at least one element of the plaintiff’s 

cause of action cannot be established132 or that each element of an affirmative 

 

128 Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Tarrant 

Restoration v. Tex. Arlington Oaks Apts., Ltd., 225 S.W.3d 721, 727 (Tex. App.—Dallas 2007, 

no pet.).

129 Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 262 (Tex. App.—Houston 

[1st Dist.] 2005, pet. denied).

130 Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003); 

Malcomson, 171 S.W.3d at 262.

131 Forbes, 124 S.W.3d at 172; Malcomson, 171 S.W.3d at 262.

132 Karcher v. Classic Foods, L.P., 2005 Tex. App. LEXIS 3062, at *3 (Tex. App.—Fort 

Worth Apr. 21, 2005, no pet.); accord Elliot-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 

1999). 
41

defense has been established.133 Once the defendant produces sufficient evidence 

to establish its right to summary judgment, “the burden shifts to the plaintiff to 

come forward with competent controverting evidence raising a genuine issue of 

material fact with regard to the element challenged by the defendant.”134 And, 

“[w]hen reviewing a summary judgment, [the appellate court] accept[s] all 

evidence favorable to the nonmovant as true, indulge[s] the nonmovant with every 

favorable reasonable inference, and resolve[s] any doubt in the nonmovant’s favor. 

The appellate court must affirm the summary judgment if any one of the movant’s 

theories has merit.”

135

Finally, when, as here, “the trial court’s summary judgment does not specify 

the basis for the ruling, [the appellate court] must affirm the judgment if any of the 

summary judgment grounds are meritorious. When the appeal does not challenge 

one of the grounds for summary judgment, the judgment may be affirmed on that 

ground alone.”136

 

133 Rhone-Poulenc, Inc. v. Steel, 997 S.W. 2d 217, 224 (Tex. 1999); Johnson & Johnson 

Med., Inc. v. Sanchez, 924 S.W.2d 925, 927 (Tex. 1996).

134 Karcher, 2005 Tex. App. LEXIS 3062, at *3; accord Centeq Realty, Inc. v. Siegler, 

899 S.W.3d 195, 197 (Tex. 1995).

135 Valence Operating, 164 S.W.3d at 661; Tarrant Restoration, 225 S.W.3d at 727.

136 Ketter v. ESC Med. Sys., Inc., 169 S.W.3d 791, 797 (Tex. App.—Dallas 2005, no pet.)

(citation omitted); accord Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
42

2. Both the no-evidence and traditional summary judgment must be 

affirmed.

The summary judgment must be affirmed for multiple reasons. First, as 

KWM implicitly concedes, the Original Response was wholly inadequate to defeat 

summary judgment because it failed to address the no-evidence grounds for 

summary judgment, wholly failed to contain legal authorities, only partially 

addressed only the defamation claim and then only with respect to the traditional 

summary-judgment motion, and cited no summary-judgment evidence because it 

was unaccompanied by any such evidence.137 Because the trial court did not abuse 

its discretion in denying KWM leave to file the Amended Response and because 

the Original Response was wholly deficient, both the no-evidence and traditional 

summary judgment were properly granted.138

Second, even if the trial court abused its discretion in not considering the 

Amended Response, which it did not, the Brief is so inadequate that it does not 

raise an appellate issue regarding either the no-evidence or traditional summary 

judgment. 

 

137 The Brief does not argue that the Original Response raised a fact issue with respect to 

ACE’s traditional summary-judgment motion on the defamation claim. Rather, it baldly alleges 

that the Amended Response raised fact issues with respect to certain claims. Br. “Argument” §§ 

III, at 20 (“The facts and law outlined in the amended response amount to more than a scintilla 

of evidence . . . .” (emphasis added)), IV, at 21 ([T]he amended response brings to light both 

genuine issues of material fact as well as defeats the affirmative defense claimed by [ACE].” 

(emphasis added)). 

138 Tex. R. Civ. P. 166a(i) (“The court must grant the motion unless the respondent 

produces summary judgment evidence raising a genuine issue of material fact.”).
43

For example, the sum and substance of its argument regarding the noevidence summary judgment is that KWM 

offered evidence to show that [ACE] breached the agreement by 

charging excessive insufficient fund fees, by requiring certified funds,

by declining curtailments or extensions, by repossessing vehicles 

under retail installment contract [sic], by charging for multiple lot 

checks, by selling collateral for less than commercially reasonable 

values, by failing to proceed against the bond, by failing to timely 

return excess proceeds, and by failing to provide an accounting. 

Similarly, [KWM] provided evidence that [ACE] was not entitled to a 

qualified privilege on the defamation claim. Further, [KWM] 

introduced evidence of [ACE’s] unconscionable actions as it relates to 

the [DTPA].139 

Each assertion is supported only by citations to the Amended Response and 

not by any summary-judgment evidence (either ACE’s or that in the Amended 

Response).

140

 Moreover, the Brief wholly fails to mention the defamation claim,

the fraud claim, or the DTPA claim for false, deceptive, or misleading acts or 

practices, much less explain why a fact issue exists on any of the challenged 

elements of those claims. Further, even though the Amended Motion sought a noevidence summary judgment with respect to each of KWM’s claims on the 

grounds that there was no evidence that KWM had been damaged by the alleged 

 

139 Br. “Argument” § III, at 19-20 (footnotes omitted). Because “a qualified privilege” is 

an affirmative defense, Burbage v. Burbage, 447 S.W.3d 249, 254 (Tex. 2014) (noting that 

qualified privilege “operates as an affirmative defense in the nature of confession and 

avoidance”), ACE sought a traditional, and not a no-evidence summary judgment, on it. CR96-

97 (Am. MSJ at 28-29).

140 Br. “Argument” §§ III-IV, at 19-21.
44

wrongdoing or, if had been damaged, the dollar amount of its damages,

141 the Brief 

fails to mention this fact, much less (1) explain, for each cause of action, how 

KWM was damaged and the amount of its damages, or (2) cite any evidence 

establishing the damages or their amounts.

142

 Finally, even with respect to the two 

causes of action actually referenced in the Brief—the contract claim and the DTPA 

claim for unconscionable actions and courses of action—the Brief is woefully 

deficient. 

For example, with respect the contract claim, the Brief not only fails to cite a 

single provision of the Agreement that required or prohibited the alleged breaching 

conduct, but more importantly fails to cite any evidence establishing that the 

alleged breaching conduct occurred.

143

 The Brief’s treatment of the DTPA claim 

 

141 See discussion supra notes 80-88.

142 Br. “Argument” § III, at 19-20.

143 Id. The frivolity of KWM’s contract claims is easily demonstrated. For example, one 

of the alleged Agreement breaches is ACE’s failure to allow Extensions even though, under the 

Agreement, ACE had absolute discretion to decline to make them. CR133 (Madrid Aff. Exh. A

(Agr. § 2.3(f) (“If Dealer is in compliance with all other provisions of this Agreement, Lender 

may, in its sole discretion, permit an Extension of the Maturity Date relative to an item of 

Lender-Financed Inventory . . . .” (emphasis added))). Thus, ACE had no obligation to grant 

KWM any Extension. And, when it refused to grant them, it did so only after KWM had 

breached the Agreement by providing NSF checks, by selling vehicles out-of-trust, by not paying 

Advances at all, and by not immediately repaying its indebtedness under the Agreement in full 

after ACE demanded that it do so on November 16, 2011. CR280-81 (Valdes Aff. ¶ 3).

Another of the alleged breaches is ACE’s repossessing and selling at auction vehicles 

after KWM defaulted on the Agreement instead of “proceed[ing] against [KWM’s] bond.” 

Section 11 of Agreement not only provided ACE with many remedies in the event of a default 

(e.g., including repossession and sale of KWM’s vehicles), but also provided that ACE “may, at 

its option and without notice exercise any and all of its rights in a separate, successive or 

concurrent fashion and such exercise of any right shall not preclude pursuit of other rights and 
45

for unconscionable acts or courses of action is similarly deficient. Thus, none of 

the five allegedly unconscionable actions or courses of action are mentioned, no 

cases are cited in support of KWM’s contention that each, in fact, constitutes an 

unconscionable action or course of action, and the Brief wholly fails to explain 

how each was a producing cause of KWM’s damages.144

The sum and substance of the Brief’s argument regarding the traditional 

summary judgment is equally sparse and inadequate: “As stated in argument 

section three, the amended response brings to light genuine issues of material fact 

as well as the affirmative defense claimed by [ACE]. Namely, [ACE] charged

excessive insufficient fund fees, was not legally entitled to a claim of qualified 

privilege, and committed unconscionable actions . . . .”145 

 

remedies at a later time.” CR138 (Madrid Aff. Exh. 1A (Agr. § 11.1 (emphasis added)). 

Although proceeding against KWM’s bond was one potential remedy for KWM’s default, ACE 

had no obligation to proceed against it. Accordingly, it did not breach the Agreement by failing 

to do so.

A third alleged breach is ACE’s alleged failure to provide an accounting. Nothing in the 

Agreement, however, specifically (or the law generally) required an accounting, CR133-45 

(Madrid Aff. Exh. 1A (Agr.), and ACE effectively provided one when it met with Williams and 

another KWM employee, Fred Darden, on December 22, 2011, and explained the 

collection/repossession fees charged to KWM and the unpaid balance owed under the Agreement 

for Advances/Extensions. CR131 (Madrid Aff. ¶ 13); CR326 (Supp. Madrid Aff. ¶ 3).

144 Br. “Argument” § III, at 19-20.

145 Id. “Argument” § IV, at 21.
46

Not a single legal authority is cited regarding the two claims and one defense 

mentioned in passing.146 Even worse, the Brief (1) wholly ignores the defamation, 

fraud, and DTPA claims for false, misleading, and deceptive acts or practices,

(2) wholly ignores the affirmative defenses to the defamation claim on which ACE 

sought summary judgment other than the qualified-privileged defense, (3) wholly 

ignores all the affirmative defenses to the DTPA claims on which ACE sought 

summary judgment, (4) wholly ignores the fact that a traditional summary 

judgment was sought on each claim on the grounds that the evidence established 

that KWM had not been damaged by the alleged wrongdoing, and (5) wholly fails

to direct this Court to any evidence in the record on the two claims and one defense 

mentioned in the Brief in passing—the contract claim, the DTPA claim for 

unconscionable actions or courses of action, and qualified privilege.

147

 

As recently held by the Houston (First District) Court of Appeals:

An appellant’s brief “must contain a clear and concise argument for 

the contentions made, with appropriate citations to authorities and to 

the record.” A party asserting error on appeal bears the burden of 

showing that the record supports the contention raised and of 

specifying the place in the record where matters upon which it relies 

or of which it complains are shown. [An appellate court is] not 

required to sift through a voluminous record without guidance from 

the appellant to determine whether an assertion of error is valid.148

 

146 Id. “Argument” § IV, at 20-21.

147 Id.

148 Helitrans Co. v. Rotorcraft Leasing Co. 2015 Tex. App. LEXIS 1410, at *8 (Tex. 

App.—Houston [1st Dist.] Feb. 12, 2015, no pet. h.) (quoting Tex. R. App. P. 38.1(i)) (citations 
47

Because the Brief’s arguments regarding the summary judgment are 

conclusory, fail to address each no-evidence and traditional summary judgment 

ground, fail to cite any authorities, and fail to direct the court to any specific 

summary-judgment evidence raising a fact issue on even the two claims and one 

defense mentioned in passing, they are inadequate and the summary judgment 

must be affirmed.149

PRAYER

For the foregoing reasons the summary judgment should be affirmed.

 

omitted); accord Arellano v. Magana, 315 S.W.3d 576, 577-578 (Tex. App.—El Paso 2010, no 

pet.); Baylor Health Care Sys. v. Maxtech Hldgs., Inc., 111 S.W.3d 654, 657 (Tex. App.—Dallas 

2003, no pet.).

149 Arellano, 315 S.W.3d at 577-578 (“Here, Appellants’ first issue merely consists of a 

few conclusory statements . . . . Although they attack the credibility of Appellees’ attorney, they 

fail to discuss why the evidence supporting the verdict is insufficient. Moreover, Appellants’ 

second and third issues merely recite the issues stated without providing any discussion, 

argument, authority, or substantive analysis. Accordingly, we find Appellants inadequately 

briefed their complaints and overrule the same.”); Brown v. Tex. Bd. of Nurse Exam’rs, 194 

S.W.3d 721, 723 (Tex. App.—Dallas 2006, no pet.) (“Brown does not cite any authority or offer 

a clear and concise argument to support her contention that she has a constitutional due process 

right to bill of review, and that the vexatious litigant statute violates that right. . . . We conclude 

the issue is inadequately briefed and presents nothing for review.”); Santillan v. Nat’l Union Fire 

Ins. Co., 166 S.W.3d 823, 824 (Tex. App.—El Paso 2005, no pet.) (issue inadequately briefed 

where appellant merely uttered conclusory sentences); Sterling v. Alexander, 99 S.W.3d 793, 799 

(Tex. App.—Houston [14th Dist.] 2003, pet. denied) (issue inadequately briefed when appellant 

failed to make a cogent argument).
48

Respectfully submitted, 

LILLARD WISE SZYGENDA PLLC

By: /S/ Robert K. Wise

Robert K. Wise

State Bar No. 21812700

bwise@lwsattorneys.com

5949 Sherry Lane, Suite 1255

Dallas, Texas 75225

214 • 739 • 2000 Telephone

214 • 739 • 2010 Fax

ATTORNEYS FOR APPELLEE

AUCTION CREDIT ENTERPRISES, 

LLC
49

CERTIFICATE OF COMPLIANCE WITH RULE 9.4

This brief complies with the limitations of Tex. R. App. P. 9.4(i)(2)(B) 

because it contains 11,047 words, excluding the parts of the brief exempted by 

Tex. R. App. P. 9.4(i)(1), and it complies with the typeface requirements of Tex. R. 

App. P. 9.4(e) because it was prepared in a proportionally spaced typeface using 

Microsoft Word 2010 in Times New Roman 14 pt. font for text and 12 pt. font for 

the footnotes.

Dated: April 8, 2015

 /s/ Robert K. Wise

Robert K. Wise, 

Attorney for Appellee

CERTIFICATE OF SERVICE

On April 8, 2015, a true and correct copy of this brief was served by EFC 

and U.S. certified-mail, return-receipt requested on Appellant’s attorneys:

John Leslie

John Leslie│PLLC

1805 West Park Row Drive, Suite C

Arlington, Texas 76013

Yolonda Sewell

6731 Bridge Street, Suite 379

Fort Worth, Texas 76112

 /s/ Robert K. Wise
EXHIBIT A

Appeal No. 05-14-01392-CV 

In the Court of Appeals 

Fifth Judicial District 

Dallas, Texas 

K.W. Ministries, Inc. v. Auction Credit Enterprises, LLC 

APPELLANT'S BRIEF 

ORAL ARGUMENT REQUESTED 

Yolonda Sewell 

Attorney for Appellant 

State Bar No. 24044111 

6731 Bridge Street, Suite 3 79 

Fort Worth, Texas 76112 

Telephone: (806)239-2130 

Facsimile: (817)531-9977 

E-mail: yolonda sewell@yahoo.com 

John E. Leslie 

State Bar No. 12231400 

JOHN LESLIE I PLLC 

1805 West Park Row Drive, Suite C 

Arlington, Texas 76013 

Telephone: (817) 505-1291 

Facsimile: (817) 505-1292 

Email: arlingtonlaw@aol.com 

, ACCEPTED 

05-14-01392-CV 

FIFTH COURT OF APPEALE 

DALLAS, TEXAS 

3/24/2015 12:00:10 AM 

LISA MATZ 

CLERK 
Identity of Parties and Counsel 

The following is a list of all parties and all counsel in this matter: 

Appellant in this matter is K.W. Ministries, Inc. f/d/b/a C.R.U.S.H. Auto Sales, and 

is Plaintiff in the underlying case described below. The attorneys representing Appellant 

are: 

Yolonda Sewell 

6731 Bridge Street, Suite 379 

Fort Worth, Texas 76112 

Tel: (806) 239-2130 

Fax: (817) 531-9977 

John Leslie 

John Leslie PLLC 

1805 W. Park Row Drive, Suite C 

Arlington, Texas 76013 

Tel: (817) 505-1291 

Fax: (817) 505-1292 

Appellee in this matter is Auction Credit Enterprises, LLC, and is Defendant in the 

underlying case described below. The attorneys representing Appellee are: 

Robert Wise 

Lillard Wise & Szygenda, PLLC 

5949 Sherry Lane, Suite 1255 

Dallas, Texas 75225 

Tel: (214) 739-2005 

Fax: (214) 739-2010 

\ 
Table of Contents 

Identity of Parties and Counsel ............................................... 2 

Table of Contents ................................................................................. 3, 4 

Index of Authorities ................................................................................. 5 

Statement of the Case ................................................................................ 6 

Issues Presented ........................................................................................ 6 

I. The trial court erred when it failed to consider K.W. Ministries, Inc.'s 

amended response .......................................................... 17, 18, 19 

II. The trial court erred in granting Auction Credit Enterprises, LLC's noevidence motion for summary judgment when there is some evidence to 

support K.W. Ministries, Inc. 's claims ...................................... 19, 20 

III. The trial court erred in granting Auction Credit Enterprises, LLC's 

traditional motion for summary judgment when there is a genuine issue of 

material fact. ........................................................................ 20 

Statement of Facts ............................................. 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 

Summary of Argument ........................................................................ 16, 17 

Argument ............................................................................................. 1 7 

I. Standard of Review ............................................................ 17, 18 

II. Amended Summary Judgment Response Disallowed ................ 18, 19, 20 

III. Some Evidence to Defeat No-Evidence Motion ........................... 20, 21 

IV. Genuine Issue Material Fact to Defeat Traditional Motion ............... 21, 22 

Prayer ................................................................................................ 22 
Appendix .................................................................................. 23, 24, 25 

I. Copy of Pinal Summary Judgment ............................................. 23 

II. Text of Texas Rule of Civil Procedure 166a .......................... 23, 24, 25 

III. Text of Texas Civil Practice & Remedies Code §16.068 ..................... 25 

IV. Contract Between The Parties .................................................... 25 

3 
Index of Authorities 

Rules 

Texas Rule of Civil Procedure 166a ........................................................... 17, 18 

Statutes 

Texas Civil Practice & Remedies Code §16.068 .............................................. 19 

Cases 

Austin v. !net Technologies, Inc., 118 S.W.3d 491, 495 (Tex. App.-Dallas 2003) . 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17, 21 

Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000) ........................................ 16 

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 ((Tex.1985) ....... 16, 17 

Wayment v. Texas Kentworth Company, 248 S.W.3d 883, 885 (Tex. App.-Dallas 2008) 

(citing Tex.R.Civ.P. 166a(i) and Western Inv., v. Urena, 162 S.W.3d 547, 550 (Tex. 

2005)) ............................................................................................. 17, 19 
Statement of the Case 

1. The underlying suit arises out of Cause No. DC-13-14570, styled "K.W. 

Ministries, Inc. d/b/a C.R.U.S.H. Auto Sales v. Auction Credit Enterprises, LLC," in the 

I 16th Judicial District Court, Dallas County, Texas. 1 

2. The underlying suit is an action for breach of contract, fraud, defamation, 

deceptive trade practices, and damages arising from a motor vehicle floorplan financing 

agreement. 2 

3. Appellee, Auction Credit Enterprises, LLC, filed a traditional and noevidence motion for summary judgment. 3 Appellant filed an original and amended 

response. 4 The district court did not consider the amended response. 5 

4. The district court granted Appellee's motion for summary judgment. 6 This 

appeal ensued. 7 

Issues Presented 

I. The trial court erred when it failed to consider K.W. Ministries, Inc.'s 

amended summary judgment response. 

a. Texas Rule of Civil Procedure 166a applies 

b. The Relation-Back Doctrine applies 

II. The trial court erred in granting Auction Credit Enterprises, LLC's no1 C.R. at 5-65. 2 Id. 

3 Id. at 69-406 4 Id. at 407-424 and 483-522. 5 R.R. at 29-36. 6 C.R. at 600-01. 7 Id. at 602-04. 

5 
evidence motion for summary judgment when there is some evidence to 

support K.W. Ministries, Inc. 's claims. 

III. The trial court erred in granting Auction Credit Enterprises, LLC's traditional 

motion for summary judgment when there is a genuine issue of material fact. 

Statement of Facts 

In the summer of 2011, Plaintiff was engaged in the business of selling used 

vehicles to retail customers from a lot on Lancaster Street in Fort Worth, Texas under 

the assumed name "C.R.U.S.H. Auto Sales". 8 Defendant was in the business of 

providing inventory financing to used car dealers, commonly referred to as "floorplan 

financing". 9 In late July or early August 2011, Joe Madrid ("Madrid"), Defendant's 

Regional Manager, made a "cold call" on Plaintiff at its business premises to see if 

Plaintiff was interested in obtaining floor plan financing for its used car inventory. 10 

Defendant, after one or more follow-up calls and meetings with Plaintiff, offered to 

extend "floor plan" financing to Plaintiff through its representative, Madrid. Plaintiff 

accepted Defendant's offer. 11 

In furtherance of the "floor plan" lending arrangement, on August 11, 2011 

Plaintiff, by and through Kenneth Williams ("Williams"), its President, signed a 

"Demand Promissory Note and Security Agreement" (the "Contract") at Defendant's 

office under the direction of Defendant's representative "Agnes." 12 Although 

8 C.R. at 6. 9 Id. 

10 Id. 

11 Id. 

12 Id. 
Williams' signature was notarized within the Contract, Madrid, the Notary Public who 

purportedly acknowledged Williams' signature to the Contract, was not present when 

Williams signed the Contract and Williams never saw Madrid affix his notary signature 

or stamp to the Contract. 13 Neither Williams nor Plaintiff was given a copy of the 

Contract at the time it was signed, or at any time thereafter. 14 After making demand 

on Defendant for a copy of the Contract, Plaintiff finally received a copy of the 

Contract on November 17, 2011, following Defendant's termination of its floorplan 

relationship with Plaintiff. 15 

At the time the Contract was entered into by Plaintiff, Plaintiff had no previous 

experience with floorplan financing arrangements, a fact communicated by Williams 

to Madrid. 16 Defendant, being fully aware of Plaintiffs lack of knowledge of the 

details of floorplan financing and Plaintiffs inferior bargaining position, told Plaintiff 

that its physical possession of titles to vehicles Plaintiff owned outright, free and clear 

of liens, of an aggregate value of $75,000.00, together with a lien and security interest 

on all of Plaintiffs then-existing and after-acquired property, was necessary to initially 

secure the floorplan arrangement. 17 In accordance with its demand, at the time the 

Contract was signed, Defendant took physical possession of titles to the following 

vehicles: a 2010 Cadillac SRX Luxury (VIN #3GYFNAEYIAS516971); a 2010 

Toyota Camry LE (VIN#4Tl BF3EK5AUI00605); a 2008 Chrysler 300 (VIN 

13Id. 

14 Id. 

IS Id. 

16 Id. 

11 Id. 

7 
#2C3LA53G08H303839); and a 2007 Cadillac CTS (VIN# IG6DP577670122419), 

promising to return the titles to Plaintiff on November 1, 2011 (collectively, the 

"Pledged Vehicles"). 18 

During August, September and October, 2011, Plaintiff purchased a number of 

vehicles with the floorplan financing provided by Defendant and paid for these 

vehicles on a timely basis, without default, according to the terms of the Contract. 19 

At the outset of their relationship, and at all times thereafter, Defendant instructed 

Plaintiff to make payment checks payable to "AAA" and not to Auction Credit 

Enterprises, LLC. Not knowing the reason or justification for this request, Plaintiff 

nonetheless complied with Defendant's instructions. 

From time to time, Defendant requested post-dated checks from Plaintiff to pay 

for vehicles financed through Defendant which were contracted for sale, but not yet 

funded by the purchasers or their banks. 20 Defendant was instructed by Plaintiff to 

hold these checks until the sales were closed and the purchase price was received by 

Plaintiff.21 Nonetheless, on two occasions Defendant deposited Plaintiffs payment 

check earlier than agreed upon, resulting in the checks being returned "NSF" by 

Plaintiffs bank. 22 In at least one instance, Defendant charged Plaintiff a $200.00 fee 

per returned check, even though Plaintiffs recollection was that the Contract provided 

18 Id. at 6-7. 19 Id. at 7. 20 Id. 

z1 Id. 

22 Id. 
for only a $50.00 returned check fee. 23 Plaintiff believed Defendant's demand for the 

higher NSF fee was in violation of the Contract's terms. However, Plaintiff paid the 

higher fee without question or complaint in order to preserve its then-cordial business 

relationship with Defendant. 24 

As November 1, 2011 approached, Plaintiff began to make inquiries of 

Defendant about the promised return of the titles to the Pledged Vehicles. 25 Defendant 

refused to return these titles to Plaintiff, even though Plaintiff was not in payment 

default under the Contract. 26 In order to assure Defendant of its fully (and actually, 

over) secured position under the Contract, Plaintiff attempted to pay for several 

vehicles in its inventory in advance of the payment date required under the Contract. 27 

Defendant refused to accept Plaintiff's payment for these vehicles, accelerated all 

amounts due under the Contract, and demanded payment of the entire amount 

advanced to Plaintiff under the Contract, even though payments on specific vehicles 

were not yet due. 28 There was no outstanding uncured event of default under the 

Contract when this demand was made. On November 16, 2011, at approximately 3:45 

p.m., Defendant, by and through its employees Madrid and Jesse Hidalgo, came to 

Plaintiffs car lot under the auspices of an "inventory check". 29 At that time, Defendant 

demanded possession of, and removed the following vehicles from Plaintiff's business 

23 Id. (referencing Contract §2.3(1)). 24 Id. at 7. 

25 Id. 

26 Id. 

21 Id. 

2s Id. 

29 Id. 
premises: a 2008 Chrysler 300 (VIN#2C3LA53G08H303839, one of the 

aforementioned "Pledged Vehicles"); a 2007 Kia Spectra (VIN 

#KNAFE121675453928); 

#IN4BA4IEX6C853039). 30 

and a 2006 Nissan Maxima (VIN 

On November 17, 2011, Defendant finally provided Plaintiff with a copy of the 

Contract. Over three (3) months had passed from the time the Contract was signed 

until Defendant finally gave Plaintiff a copy of the Contract. 

On November 18, 2011, Defendant took possession of an additional vehicle 

owned by Plaintiff: a 2010 Cadillac SRX Luxury (VIN# 3GYFNAEYIAS516971, 

being the second of the "Pledged Vehicles"). 31 This vehicle was seized at the Manheim 

Dallas - Fort Worth auction facility where it had been placed by Plaintiff for sale. On 

that same day, Defendant came to Plaintiffs business premises and attempted to take 

possession of a 2010 Toyota Camry LE (VIN #4TIBF3EK5AUI00605, the last 

remaining "Pledged Vehicle"). 32 Defendant used a different vehicle to block the sole 

entry to Plaintiffs car lot, thereby preventing Plaintiffs customers and employees 

from entering or exiting Plaintiffs business premises while Defendant unsuccessfully 

attempted to seize the aforementioned Toyota Camry. 33 One of Plaintiffs salesmen 

suffered bodily injury as a result of Defendant's actions. 34 

On November 21, 2011, Defendant took possession of a 2006 Kia Sorento from 

30 Id. at 7-8. 31 Id. at 8. 

32 Id. 

33 Id. 

34 Id. 

JO 
a third-party repair facility and a 2004 Nissan Maxima from Plaintiff's business 

premises while the vehicle was being repaired. 35 At the time of repossession, 

Defendant's representatives were told that the 2004 Nissan Maxima was owned by, 

and titled to, a customer of Plaintiff who was paying for the vehicle under a retail 

installment contract. This fact was of no consequence to Defendant, who defiantly 

repossessed the vehicle. As a result of Defendant's actions, Plaintiff was forced to 

provide its customer with a replacement vehicle. Defendant did not return the Maxima 

for over three (3) months, finally surrendering the vehicle to Plaintiff in March 2012. 

By the time the Maxima had been returned to Plaintiff, Plaintiff had lost the 

opportunity to sell the loaned vehicle before the model year change, thereby being 

damaged by its loss of value. 

After the wrongful repossessions of vehicles on November 21, 2011, Plaintiff 

that same day sent Defendant a letter detailing its position with respect to the actions 

taken by Defendant and requested that Defendant refrain from further interruption of 

Plaintiff's business. 36 On the following day, Plaintiff spoke with Defendant regarding 

its intent to pay Defendant all amounts properly due under the Contract. In response, 

Defendant requested that Plaintiff submit a written payment plan to Defendant by 

Friday, November 25, 2011. 37 

Prior to expiration of the November 25, 2011 deadline, the following described 

3s Id. 

36 Id. 

37 Id. at 8-9. 

I{ 
exchanges of correspondence occurred38 : 

On November 23, 2011, Plaintiff received a letter from Defendant notifying 

Plaintiff of its private disposition of collateral in satisfaction of Plaintiffs 

obligations to Defendant. 

On November 23, 2011, Plaintiff responded to Defendant's notice of private 

disposition of collateral, seeking clarification of certain items prior to 

submitting its payment plan to Defendant. 

On November 25, 2011, Plaintiff submitted its payment plan to Defendant. 

On November 28, 2011, Defendant replied by demanding payment in full of all 

vehicles sold "out of trust" by December 2. 2011. 

Between December 6-8, 2011, Plaintiff paid Defendant $3 6, 6 7 0. 00 in certified 

funds, representing over sixty percent ( 60%) of the total balance alleged to be due 

Defendant. On December 22, 2011, Plaintiff remitted another certified funds payment 

to Defendant in the amount of $8,300.00, bringing total payments to $44,970.00, 

approximately 80% of the total amount claimed as due by Defendant. 39 

On December 6, 2011, Plaintiff remitted certified funds to Defendant in 

payment for a 2005 Ford F-150, a 2004 Nissan Maxima, and a 2007 Kia Spectra. 40 At 

that time, Plaintiff also intended to remit payment for a 2007 Pontiac G5; however, 

since Defendant had not received title to the vehicle, Plaintiffs payment for the vehicle 

38 Id. at 9. 39 Id. 

40Jd. 

1 ).._ 
was not accepted by Defendant. 41 Accordingly, Plaintiff tendered payment for a 2007 

Hyundai Elantra for which title had been received, using the check originally 

designated for the 2007 Pontiac G5. 42 The 2007 Hyundai Elantra had been recently 

sold to a customer of Plaintiff, and was in the customer's possession. 43 Defendant 

refused this tender of payment, stating that the cashier's check showed "2007 Pontiac 

GS." Plaintiff suggested striking through 2007 Pontiac G5, inserting 2007 Hyundai 

Elantra, and initialing the change in its capacity as remitter of the check. 44 Defendant 

continued to refuse tender of this check. 

Plaintiff indicated that it would return the next day with a new, replacement 

check for the 2007 Hyundai Elantra. 45 However, that same night, before Plaintiff could 

bring a replacement check to Defendant, Defendant repossessed the 2007 Hyundai 

Elantrafrom Plaintiff's customer's residence. 46 The following day, Plaintiff tendered 

payment for the 2007 Hyundai Elantra, as originally promised, and paid the 

repossession fee to Defendant, even though repossession was unwarranted and 

wrongful, resulting in damages to Plaintiff, both for the repossession fee and in its 

business reputation with its customer. 47 

The following additional wrongful acts by Defendant occurred on the same day 

as the acts complained of in the immediately preceding paragraph. All of the acts of 

41 Id. at 9-10. 42 Id. at 10. 

43 Id. 

44 Id 

4s Id. 

46 Id. 

41 Id. 
Defendant on December 6, 2011 eventually led to the closure of Plaintiffs used car 

business. On December 6, 2011, Plaintiff discovered that Defendant had placed 

unnecessary and unjustified liens on the following vehicles: a 2007 Suzuki XL 7; a 

2007 Kia Spectra; a 2005 Ford F-150, and a 2004 Nissan Maxima. At the time these 

liens were placed on the vehicle titles, Defendant had actual physical possession of the 

titles and/or possession of the vehicles on which the liens were placed; therefore, 

recording liens on the titles was unnecessary. Thereafter, after these titles and the titled 

vehicles were returned to Plaintiff, Defendant knowingly executed invalid releases of 

lien on the same vehicles, as Madrid, Defendant's Branch Manager negligently and 

carelessly failed to write and sign his legal name on the titles in the manner required 

by the Texas Department of Motor Vehicles, thereby invalidating the releases and 

further damaging Plaintiff and its business reputation. 48 

On December 22, 2011 while making payment on a 2006 Nissan Maxima, 

Plaintiff was informed that Defendant charged additional repossession fees on the 

following vehicles: a 2004 Nissan Maxima; a 2006 Kia Sorento; a 2004 GMC Savana; 

a 2001 Nissan Altima; a 1997 Mitsubishi Montero Sport; a 2005 Ford F-150; and a 

2007 Hyundai Elantra, increasing the remaining balance allegedly due Defendant 

under the Contract to $17,998.88. 49 Defendant confirmed this balance due by handing 

the written statement of its Chief Operating Officer, Tedd Martin to Plaintiff in a 

meeting on December 22, 2011. However, despite its reasonable and repeated 

48 Id. 

49 Id. 

I'-{ 
requests, Defendant never provided Plaintiff with a full accounting of the debt alleged 

to be due. 50 Defendant, in its pleadings, denies that it was obligated to provide Plaintiff 

with any accounting of the funds allegedly due Defendant. 51 

Defendant sold the 1997 Mitsubishi Montero Sport, 2001 Nissan Altima, 2004 

GMC Savana, 2006 Kia Sorento, 2008 Chrysler 300, and 2010 Cadillac SRX which it 

had previously repossessed to satisfy the debt. 52 

On April 10, 2012, Plaintiff made demand on Defendant for damages under the 

Texas Deceptive Trade Practices Act, set forth in Tex. Bus. And Comm. Code section 

17.41 et seq. ("DTPA"). 53 

Defendant finally paid Plaintiff its over-collection on proceeds of collateral in 

early May, 2012, almost six (6) months after it terminated its loan relationship with 

Plaintiff, four and one half ( 4Yz) months from the date of its last meeting with Plaintiff 

and over three and one half (3 Yz) months after its last sale of any vehicles. 

Summary of Argument 

The trial court erred when it failed to consider K. W. Ministries, Inc.' s amended 

summary judgment response. The amended summary judgment response was timely 

pursuant to Texas Rule of Civil Procedure 166a and the relation back doctrine as articulated 

in Texas Civil Practice and Remedies Code §16.068. The amended response contains 

50 Id. at 10-11. 51 C.R. at 69 et seq. 52 C.R. at 11. 

53 Id. 
evidence sufficient to defeat the no-evidence and traditional motions for summary 

judgment. 

Argument 

L Standard of Review 

A defendant moving for a traditional summary judgment must either ( 1) 

conclusively disprove at least one element of the plaintiffs theory ofrecovery; or (2) plead 

and conclusively establish each element of an affirmative defense. 54 When a defendant 

moves for summary judgment on an affirmative defense, it is the defendant's burden to 

conclusively establish the defense. 55 Once the movant establishes the right to summary 

judgment, the burden shifts to the non-movant to present the trial court with evidence of 

any issues that would preclude summary judgment. 56 A motion for summary judgment on 

traditional grounds is subject to de novo review. 57 In reviewing a motion for summary 

judgment, the appellate court must determine if any genuine issue of material fact exists to 

defeat the motion. 58 Evidence favoring the non-movant is taken as true and all reasonable 

inferences must be resolved in favor of the non-moving party. 59 

In a no-evidence summary judgment motion, the movant asserts there is no 

evidence of one or more elements upon which an adverse party has the burden of proof at 

5

4 Austin v. Inet Technologies, Inc., 118 S.W.3d 491, 495 (Tex. App.-Dallas 2003). 

55 Havlen v. McDougall, 22 S.W.3d 343, 345 (Tex. 2000). 56 Austin, 118 S.W.3d at 495. 57 Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). 

58 Id. 

59 Id. 
trial. 60 To defeat a no-evidence summary judgment motion, the non-moving party must 

point out evidence that raises a fact issue on the challenged elements. 61 Like a motion for 

traditional summary judgment, the standard of review for a no-evidence summary 

judgment is de novo. The reviewing court must construe the record in the light most 

favorable to the non-movant while disregarding all contrary evidence and inferences. 62 

IL Amended Summary Judgment Response Disallowed 

The trial court erred when it failed to consider K.W. Ministries, Inc.'s amended 

response. 

The trial court erred when it failed to consider K.W. Ministries, Inc. 's amended 

response in deciding Auction Credit LLC's amended traditional and no-evidence motion 

for summary judgment. Auction Credit LLC filed its amended traditional and noevidence motion for summary judgment on August 25, 2014. 63 Pursuant to Texas Rule of 

Civil Procedure 166a, K.W. Ministries, Inc. 's response was due on or before September 

8, 2015. 64 K.W. Ministries, Inc. filed a response to the motion on said date. 65 

Additionally, K.W. Ministries, Inc. filed an amended response the morning of, but prior 

to the summary judgment hearing. 66 The trial court declined to consider the amended 

response and the factual and legal evidence contained within the response. 67 

Texas Rule of Civil Procedure 166a(c) states 

60 Wayment v. Texas Kentworth Company, 248 S.W.3d 883, 885 (Tex. App.-Dallas 2008) (citing Tex.R.Civ.P. 

166a(i) and Western Inv., v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)). 61 Austin, 118 S.W.3d at 495. 

62 Jd. 

63 See generally C.R. at 69-127. 64 Tex. R. Civ. Pro. 166a(c) (2014). 65 C.R. at 407-24. 66 See generally C.R. at 483-522. 67 R.R. at 29-30, 36-37. 

JI 
The judgment sought shall be rendered forthwith if (i) the deposition transcripts, 

interrogatory answers, and other discovery responses referenced or set forth in the 

motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the 

parties, and authenticated or certified public records, if any, on file at the time of the 

hearing, or filed thereafter and before judgment with permission of the court, show 

that, except as to the amount of damages, there is no genuine issue as to any material 

fact and the moving party is entitled to judgment as a matter of law on the issues 

expressly set out in the motion or in an answer or any other response. 68 

In the instant case, the amended response was on file at the time of the hearing, but the 

trial court failed to consider the amended response. 69 The amended response was 

sufficient to raise a genuine issue of material fact to defeat the traditional motion for 

summary judgment. 70 Likewise, the amended response proffered more than a scintilla of 

probative evidence as necessary to defeat the no-evidence motion for summary 

judgment. 71 Consequently, the court erred in failing to consider the amended response 

prior to rendering a decision on Auction Credit LLC's motion and in granting the 

summary judgment. 

The trial court also erred in failing to consider the amended summary 

judgment response when the relation back doctrine applies. The trial court indicated that 

the deadline to file a response was September 8, 2015. As such, the trial court found that 

K. W. Ministries, Inc.' s amended response was untimely. 72 However, the relation back 

doctrine applies. The relation-back doctrine states that an amendment of a timely-filed 

pleading is timely unless the amendment is "wholly based on a new, distinct, or different 

68 Tex. R. Civ. Pro. 166a(c) (2014) (emphasis added). 69 R.R. at 29-30, 36-37. 70 See generally C.R. at 483-522. 

11 Jd. 72 R.R. at 36-37. 
transaction or occurrence." 73 In this case, the amended response was based on the same 

case, the same parties, the same contract, the same facts, and the same circumstances. 

Therefore, the amended response should be deemed the same transaction or occurrence and 

found to be timely in accordance with the relation-back doctrine. The trial court erred in 

deeming the amended response untimely and failing to consider the contents of the same. 

IIL Some Evidence to Defeat No-Evidence Motion 

The trial court erred in granting Auction Credit Enterprises, LLC's no-evidence 

motion for summary judgment when there is some evidence to support K.W. 

Ministries, Inc.' s claims. 

The trial court erred in granting Auction Credit Enterprises, LLC' s no-evidence 

motion for summary judgment because there exists some evidence to support K.W. 

Ministries, Inc.' s claims. In order to prevail on a no-evidence summary judgment motion, 

the movant must show that there is no evidence of one or more elements upon which an 

adverse party has the burden of proof at trial. 74 On the contrary, to defeat a no-evidence 

summary judgment motion, the non-moving party must point out evidence that raises a 

fact issue on the challenged elements. 

Auction Credit Enterprises, LLC did not meet its burden. For example, on the 

breach of contract claim, K. W. Ministries, Inc. offered evidence to show that Auction 

Credit Enterprises, LLC breached the agreement by charging excessive insufficient fund 

73 Tex. Civ. Prac & Rem. Code §16.068 (2014). 74 Wayment, 248 S.W.3d at 885. 

J( 
fees, 75 by requiring certified funds, 76 by declining curtailments or extensions, 77 by 

repossessing vehicles under retail installment contract, 78 by charging for multiple lot 

checks, 79 by selling collateral for less than commercially reasonable values, 80 by failing 

to proceed against the bond, 81 by failing to timely return excess proceeds, 82 and by failing 

to provide an accounting. 83 Similarly, K.W. Ministries, Inc. provided evidence that 

Auction Credit Enterprises, LLC was not entitled to a qualified privilege on the 

defamation claim. 84 Further, K.W. Ministries, Inc. introduced evidence of Auction Credit 

Enterprises, LLC's unconscionable actions as it relates to the Texas Deceptive Trade 

Practices Act claim. 85 The facts and law outlined in the amended response amount to 

more than a scintilla of probative evidence necessary to defeat the no-evidence motion 

for summary judgment. 86 Therefore, the trial court erred by granting the motion for 

summary judgment. 

IV. Genuine Issue of Material Fact to Defeat Traditional Motion 

The trial court erred in granting Auction Credit Enterprises, LLC's traditional 

motion for summary judgment when there is a genuine issue of material fact. 

The trial court erred in granting the amended traditional motion for summary 

15 R.R. at 509-10. 16 Id. at 510-11. 

11 Id. at 511-12. 78 Id. at 512-15. 19 Id. at 515. 80 Id. at 515-16. 81 Id. at 516-17. 82 1d.at517. 

83 Id. at 518-19. 84 Id. at 492-97. 85 Id. at 506-07. 86 See generally id. at 483-522. 
judgment because there exists a genuine issue of material fact to defeat the motion. To be 

successful on a traditional motion for summary judgment, the moving party must prove 

there exists no genuine issue of material fact. 87 As stated in argument section three, the 

amended response brings to light both genuine issues of material fact as well as defeats 

the affirmative defense claimed by Auction Credit Enterprises, LLC. 88 Namely, Auction 

Credit Enterprises, LLC charged excessive insufficient fund fees, was not legally entitled 

to a claim of qualified privilege, and committed unconscionable actions as articulated in 

mandatory precedent. 89 The trial court erred by granting the motion in light of the 

evidence in the amended response. 

Prayer 

K. W. Ministries, Inc. prays that this Court find that the trial court erred by 

disallowing the amended response and granting the motion for summary judgment when 

more than a scintilla of probative evidence exists. 

87 Austin, 118 S.W.3dat495. 88 See generally R.R. at 483-522. 89 See notes 22-32. 
Respectfully submitted, 

By: /sN olonda Sewell 

Yolonda Sewell 

Texas Bar No. 24044111 

6731 Bridge Street, Suite 379 

Fort Worth, Texas 76112 

Tel. (806) 239-2130 

Fax. (817) 531-9977 

E-mail yolonda _ sewell@yahoo.com 

Attorney for Appellant 

K.W. Ministries, Inc. dba CRUSH Auto Sales 

CERTIFICATE OF SERVICE 

I certify that, on February 21, 2015, I served a copy of Appellant's Brief by 

electronic service on Robert K. Wise at bwise@lwsattorneys.com. I further certify 

that a copy of this corrected brief was served on Robert K. Wise, appellee's counsel, 

by electronic service at bwise@lwsattorneys.com on March 23, 2015. 

/s/Y olonda Sewell 

Yolonda Sewell 

?-)_ 
Appendix 

I. Copy of Final Summary Judgment 

IL Text of Texas Rule of Civil Procedure 166a 

III. Text of Civil Practice and Remedies Code § 16.068 

IV. Contract Between The Parties