NO. 03-14-00782-CV

IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

 

SANTANDER CONSUMER USA, INC.

Appellant,

v.

MARIO A. MATA, CENTROPLEX AUTOMOBILE RECOVERY, INC., 

JOHN F. THOMPSON d/b/a CENTROPLEX AUTOMOBILE RECOVERY, INC. 

REDSHIFT INVESTIGATION, INC., and BLAKE THORNTON VANDUSEN,

Appellees.

 

Appealed from the

353rd Judicial District Court

Travis County, Texas

 

REPLY BRIEF OF APPELLANT

 

DONALD L. TURBYFILL

State Bar of Texas # 20296380

dturbyfill@dntlaw.com [E-MAIL]

DEBORAH C. S. RIHERD

driherd@dntlaw.com [E-MAIL]

State Bar of Texas # 24038904

VICKI W. HART

State Bar of Texas # 24046037

vhart@dntlaw.com [E-MAIL]

Devlin, Naylor & Turbyfill, P.L.L.C.

4801 Woodway, Suite 420-West

Houston, Texas 77056-1805

(713) 622-8338 [PHONE]

(713) 586-7053 [FACSIMILE]

ATTORNEYS FOR APPELLANT

SANTANDER CONSUMER USA, INC.

ORAL ARGUMENT REQUESTED

ACCEPTED

03-14-00782-CV

4070020

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/9/2015 11:21:23 AM

JEFFREY D. KYLE

CLERK
TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENTOF APPELLANT’S REPLY POINTS TO APPELLEES’RESPONSE

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Reply to Issue I: In a debtor’s suit against a secured party and repossession

agents, the secured party can invoke the arbitration clause contained within the

security agreement to compel the debtor to arbitrate all claims against the

secured party and its repossession agents without regard to the repossession

agents’ nonsignatory status.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Reply to Issue II: Santander did not waive the incorporation by reference

theory, and the agency theory applies to Cross-Defendants under the theory of

vicarious liability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Reply to Issue III: Centroplex and Thompson invoked the jurisdiction of the

trial court by filing an answer to Santander’s cross-claims. . . . . . . . . . . . . . 1

Reply to Issue IV: Damages should not be awarded to Cross-Defendants

because Santander’s appeal is not frivolous . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reply to Issue I: In a debtor’s suit against a secured party and repossession

agents, the secured party can invoke the arbitration clause contained within the

security agreement to compel the debtor to arbitrate all claims against the

secured party and its repossession agents without regard to the repossession

agents’ nonsignatory status.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Reply to Issue II: Santander did not waive the incorporation by reference

theory, and the agency theory applies to Cross-Defendants under the theory of

vicarious liability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Reply to Issue III: Centroplex and Thompson invoked the jurisdiction of the

trial court by filing an answer to Santander’s cross-claims. . . . . . . . . . . . . . 9

Reply to Issue IV: Damages should not be awarded to Cross-Defendants

because Santander’s appeal is not frivolous . . . . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

-ii-
CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

-iii-
INDEX OF AUTHORITIES

Cases Page

Ashraf v. Ashraf, No. 03-11-00467-CV, 2012 Tex. App. LEXIS 4345

(Tex. App.—Austin May 24, 2012, no pet.) (mem. op.). . . . . . . . . . . . . . . 11

Bridas S.A.P.IC. v. Gov’t of Turkmenistan, 

345 F.3d 347 (5th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8

Carr v. Main Carr Dev. LLC, 

377 S.W.3d 489 (Tex. App.—Dallas 2011, pet. denied). . . . . . . . . . . . . . . . 4

General Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 

826 S.W.2d 124 (Tex. 1991) (per curiam). . . . . . . . . . . . . . . . . . . . . . . . . . 11

Gililland v. Taylor Investments, No. 11-03-00175-CV, 2004,

Tex. App. LEXIS 8521, 

(Tex. App.–Eastland 2004, pet. denied) (mem. op.).. . . . . . . . . . . . . . . . . . . 6

Hunt v. CIT Group/Consumer Fin., Inc., No. 03-09-00046-CV, 

2010 Tex. App. LEXIS 2767, 

(Tex. App.—Austin Apr. 15, 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . 11

Jenkins & Gilchrist v. Riggs, 

87 S.W.3d 198 (Tex. App.–Dallas 2002, no pet.). . . . . . . . . . . . . . . . . . . . . 7

Mbank El Paso v. Sanchez, 

836 S.W.2d 151 (Tex. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

McMillan v. Computer Translation Systems & Support, Inc., 

66 S.W.3d 477 (Tex. App.–Dallas 2001, no pet.). . . . . . . . . . . . . . . . . . . . 7

Moore v. Elektro-Mobil Technik GMBH, 

874 S.W.2d 324 (Tex. App.--El Paso 1994, writ denied).. . . . . . . . . . . . . . . 9

N803RA, Inc. v. Hammer, 

11 S.W.3d 363 (Tex. App.--Houston [1st Dist.] 2000, no pet.). . . . . . . . . . . 9

One Beacon Ins. Co. v. Crowley Marine Servs., 

648 F.3d 258 (5th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

SEB, Inc. v. Campbell, No. 03-10-00375-CV, 

2011 Tex. App. LEXIS 1588,

(Tex. App.–Austin Mar. 2, 2011, no pet.) (mem. op.). . . . . . . . . . . . . . . . . . 6

-iv-
Smith v. Brown, 51 S.W.3d 376

(Tex. App.—Houston [1st Dist.] 2001, pet. denied). . . . . . . . . . . . . . . . . . 11

Statutes Page

Tex. Bus. & Comm. Code § 9.609. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

Tex. Bus. & Comm. Code Ann.§ 17.565. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Civ. Prac. & Rem. Code Ann.§ 16.003.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. Civ. Prac. & Rem. Code Ann.§ 16.004.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Tex. R. Civ. P. 120a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. R. Civ. P. 121. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Rules Page

Tex. R. App. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Tex. R. App. P. 45.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

-v-
STATEMENT OF APPELLANT’S REPLY POINTS

TO APPELLEES’ RESPONSE

Appellant, SANTANDER CONSUMER USA, INC. (“Santander”) makes the

following reply pointsto the response of Appellees, CENTROPLEX AUTOMOBILE

RECOVERY, INC. (“Centroplex”), BLAKE THORNTON VANDUSEN

(“Vandusen”), JOHN F. THOMPSON d/b/a CENTROPLEX AUTOMOBILE

RECOVERY, INC. (“Thompson”), and REDSHIFT INVESTIGATION, INC.

(“Redshift”) (collectively called, “Cross-Defendants”).

Reply to Issue I: In a debtor’s suit against a secured party and repossession

agents, the secured party can invoke the arbitration clause contained within the

security agreement to compel the debtor to arbitrate all claims against the

secured party and its repossession agents without regard to the repossession

agents’ nonsignatory status.

Reply to Issue II: Santander did not waive the incorporation by reference

theory, and the agency theory applies to Cross-Defendants under the theory of

vicarious liability.

Reply to Issue III: Centroplex and Thompson invoked the jurisdiction of the

trial court as to all claims by filing an answer to Santander’s cross-claims.

Reply to Issue IV: Damages should not be awarded to Cross-Defendants

because Santander’s appeal is not frivolous.

SUMMARY OF THE ARGUMENT

Santander can invoke the Arbitration Provision contained within the security

agreement to compel Plaintiff MARIO A. MATA (“Mata”) to arbitrate all claims

against Santander as secured party and Cross-Defendants as repossession agents

without regard to the Cross-Defendants’ nonsignatory status. Santander did not

waive the incorporation by reference theory, because Santander argued this issue to

the trial court at the hearing on Santander’s Motion to Compel. 

-1-
The Service Agreement and Recovery Agreement are dependent upon secured

transactions, such as the Contract, and provided Cross-Defendants notice of and

opportunity to review the terms of the underlying retail installment contracts for

which recovery services were to be provided such that Cross-Defendants may be

compelled to arbitration under the incorporation by reference theory. Also, because

Santander is vicariously liable for the actions of Cross-Defendants in repossessing

Mata’s vehicle, Cross-Defendants may be compelled to arbitration under the agency

theory. 

The trial court and this Court have jurisdiction over Mata’s claims against

Centroplex and Thompson because they filed an answer to Santander’s cross-claims,

consenting to the jurisdiction of the trial court. And, Cross-Defendants fail to show

that Santander’s appeal is frivolous, so they are not entitled to damages.

ARGUMENT

Reply to Issue I: In a debtor’s suit against a secured party and

repossession agents, the secured party can invoke the arbitration clause

contained within the security agreement to compel the debtor to arbitrate

all claims against the secured party and its repossession agents without

regard to the repossession agents’ nonsignatory status.

Cross-Defendantsseek to cast themselves asstrangersto the contract in which

Mata granted to Santander a security interest in the vehicle that Cross-Defendants

repossessed. Cross-Defendants boil this litigation down to two undisputed facts: (1)

the contracts between Santander and Cross-Defendants do not contain arbitration

provisions; and (2) the Cross-Defendants never saw the contract executed by Mata

for the sale and finance of the vehicle they admit to have repossessed. These facts are

are undisputed, but irrelevant.

-2-
Equally undisputed are the relevant and material facts which underpin

Santander’s argument and which are ignored by the Cross-Defendants. Santander is

a secured party in which Mata is a debtor. (CR 71-72.) Santander held a perfected

purchase money financing in the vehicle owned by Mata. (CR 73-74.) To enforce its

security interest in the Mata vehicle, Santander contracted with Redshift, who in turn

contracted with Centroplex, who employed Vandusen to repossess Mata’s vehicle. 

(CR 81-85, 34-46.) Mata alleges that during the course of Vandusen’s repossession

of the vehicle, he was injured. The relationship between the secured party and the

repossessors forms the basis of Mata’s claims against Santander as stated in his

Plaintiff’s Original Petition: “. . . when attempting repossession, the lender has the

specific legal duty of insuring neither the lender nor any of its agents or

representatives breach the peace. Tex. Bus. & Com. Code Ann. §9.609(b)(3); Mbank

El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 151-154 (Tex. 1992). This is a nondelegable duty. Id.” (CR 8.) 

Cross-Defendants are not strangers to this secured transaction, but are active

participants compensated for their repossession services. (CR 81, 84, 150.) It is

disingenuous for the Cross-Defendants to decry the threatened loss of their right to

trial by jury by an unseen security agreement, in the absence of which any

repossession they performed would be unlawful.

-3-
Reply to Issue II: Santander did not waive the incorporation by reference

theory, and the agency theory applies to Cross-Defendants under the

theory of vicarious liability.

Cross-Defendants argue that Santander failed to raise the exception of

incorporation by reference in the trial court, such that it waived this issue on appeal. 

Cross-Defendants cite Bridas S.A.P.IC. v. Gov’t of Turkmenistan, 345 F.3d 347, 356-

57 (5th Cir. 2003) and Carr v. Main Carr Dev. LLC, 377 S.W.3d 489, 494 (Tex.

App.—Dallas 2011, pet. denied) for this proposition. However, Bridasstandsfor the

proposition that arguments that are insufficiently addressed in the body of the brief

on appeal, are waived. Id. Santander’s brief thoroughly addresses the incorporation

by reference theory. Although this theory may not have been explicitly addressed in

Santander’s Motion to Compel, it was raised in the trial court at the hearing on the

Motion to Compel. Counsel for Santander argued to the trial court:

So for these parties to say, well, they had nothing to do with this retail

installment contract, that is absolutely with ignorance of the facts of this

case because of the actions they were taking. They knew they were

acting on behalf of a secured creditor. . . .When these defendants

engaged to take on this work, to repossess Mr. Mata's motor vehicle,

they knew full well why they were doing it. And these agreements

between the parties that, again, do not contain arbitration clauses, and

I will not say that they do, but the focus of every one of these contracts

is for one purpose and one purpose only and that is to enforce a secured

party's right in collection, recovery, repossession of its collateral. So far

asthese agreements provide, Your Honor, these people have no business

except for the purpose of acting asrepossessors. They were not engaged

by Santander to do anything else. So for them to say that, you know,

they weren't involved in the finance transaction, they were, pure and

simple. That was the very nature of their business. Now, yes, we have

claims between ourselves for indemnification and contribution. That's

not what we're seeking to have arbitrated, Your Honor. It's Mr. Mata's

claims. And Mr. Mata's claims not only directly against my client, but

against all parties for whom my client must answer.

(RR 1:10, lines 1-6, 11-25; RR 1:11, lines 1-7.)

-4-
. . .[T]hese claims that Mr. Mata has against all of these defendants must

be arbitrated, not withstanding the fact that these repossessors did not

know that there was an arbitration clause. What they did know is that

there was a secured transaction. What they did know was that they were

being tasked with repossessing the collateral. They knew that. 

(RR 1:18, lines 19-25.)

This argument by counsel for Santander at the hearing on Santander’s Motion

to Compel advanced the theory that the Service Agreement between Santander and

Redshift, and the Recovery Agreement between Redshift and Centroplex are

dependent upon and incorporate by reference the retail installment contracts, such as

the Contract executed by Mata, that grant a security interest in the collateral and for

which Redshift and Centroplex are to provide recovery services for such collateral. 

The Service Agreement and the Recovery Agreement incorporate by reference the

underlying retail installment contracts for which recovery services will be provided

and are dependent upon secured transactions, such as the Contract. Thus, Santander

did not waive this theory on appeal.

Cross-Defendants argue that even if Santander did not waive this theory, the

incorporation by reference theory does not apply because the Service Agreement and

Recovery Agreement do not explicitly, or implicitly, incorporate or even reference

the specific Contract executed by Mata. However, terms incorporated by reference

will be valid so long as it is clear that the parties to the agreement had knowledge of

and assented to the incorporated terms. One Beacon Ins. Co. v. Crowley Marine

Servs., 648 F.3d 258, 268 (5th Cir. 2011). Notice of incorporated terms isreasonable

where, under the particular facts ofthe case, a reasonably prudent person should have

seen them. Id. 

-5-
A party with notice of and opportunity to review contract terms is bound by

those terms even where party has not read them. Id. As shown above in Santander’s

counsel’s argument at the hearing on Santander’s Motion to Compel, and in

Santander’s principal brief, the Service Agreement and the Recovery Agreement

incorporate by reference the underlying retail installment contracts for which

recovery services will be provided and are dependent upon secured transactions, such

asthe Contract. Cross-Defendants had knowledge of and assented to the terms of the

retail installment contracts because their rights under Service Agreement Recovery

Agreement to engage in repossessions were derived from the very terms of the retail

installment contracts, even if they had not read the retail installment contracts. As

such, Cross-Defendants, as nonsignatories to the Contract, are bound to arbitration

under the theory of incorporation by reference.

Cross-Defendants also argue that the agency theory does not bind them, as

nonsignatories, to arbitration. Cross-Defendants assert that the cases that Santander

cites in support of the proposition that a nonsignatory can be compelled to arbitration

under the agency theory are inapposite because these cases involve a nonsignatory

agent or employee seeking to compel arbitration against the signatories. 

But, the holdingsin these cases are not limited to the specific facts and broadly

hold that when the principal is bound by the terms of a valid arbitration agreement,

its agents, employees, and representatives are also covered by the agreement. SEB,

Inc. v. Campbell, No. 03-10-00375-CV, 2011 Tex. App. LEXIS 1588, *9 (Tex.

App.–Austin Mar. 2, 2011, no pet.) (mem. op.); Gililland v. Taylor Investments, No.

11-03-00175-CV, 2004 Tex. App. LEXIS 8521, *8-9 (Tex. App.–Eastland 2004, pet.

-6-
denied) (mem. op.); McMillan v. Computer Translation Systems & Support, Inc., 66

S.W.3d 477, 481 (Tex. App.–Dallas 2001, no pet.) (nonsignatories of arbitration

agreements may be bound by the agreement under ordinary contract and agency

principles). 

Cross-Defendants also argue that they are independent contractors, not agents,

of Santander such that they cannot be compelled to arbitration. They claim that

Jenkins & Gilchrist v. Riggs, 87 S.W.3d 198, 202 (Tex. App.–Dallas 2002, no pet.)

supports this position. In Riggs, the court of appeals found that an attorney, who was

a nonsignatory to an arbitration agreement between his client, a television station, and

an employee ofthe television station thatrequired arbitration of any disputes between

employees and the television station “and/or” the agents of the television station,

could not compel arbitration as to the employee’s claims against him on an agency

theory because the attorney was an independent contractor to the television station

and not an employee. Id. at 201-202. The court of appeals found that the term

“agents” includesthose persons for whom the television station would be vicariously

liable but that an attorney can never vest in a third person adequate control to render

that third person vicariously liable for his conduct. Id. at 202. 

Here, however, although Cross-Defendants argue that they are independent

contractors, they fail to address that as matter of law, Santander is vicariously liable

for the actions of Cross-Defendants in repossessing Mata’s vehicle. Tex. Bus. &

Comm. Code § 9.609(b)(2); Mbank, 836 S.W.2d at 153-54. 

-7-
For the purposes of arbitration, this makes Cross-Defendants agents of

Santander. And, Cross-Defendants cite no authority to support their contention that

they may not be compelled to arbitration under the agency theory pursuant to

Santander’s vicarious liability for their actions.

Cross-Defendants cite to Bridas, 345 F.3d at 356-57 for the proposition that the

agency theory binds a nonsignatory only when a party to the arbitration agreement

signed as the agent of the nonsignatory. Thus, they argue, Santander would have to

show that it signed the Arbitration Provision as an agent of the Cross-Defendants. 

However, that is not the holding of Bridas. In Bridas, Bridas entered into a joint

venture agreement with Turkmenneft, a production association formed and owned by

the government of Turkmenistan. Id. at 351. The government of Turkmenistan was

not a signatory to the joint venture agreement, which contained an arbitration clause.

Id. at 351-52. The government of Turkmenistan later ordered Bridas to suspend its

work under the joint venture agreement and prohibited Bridas from making imports

and exports in or from Turkmenistan. Id. at 352. Bridas initiated arbitration

proceedings, including the government of Turkmenistan as a party, and the district

court found that the government was bound to arbitration under the principles of

agency and equitable estoppel. Id. at 352, 354. 

The Fifth Circuit found that there was insufficient evidence that the parties

intended Turkmenneft to sign the joint venture agreement as an agent of the

government ofTurkmenistan and thusfound that the district court erred in compelling

the government of Turkmenistan to arbitration. Id. at 358. 

-8-
As discussed above, Cross-Defendants’ status as agents for purposes of

arbitration is established as a matter of law. Thus, Cross-Defendants may be

compelled to arbitration under the incorporation by reference theory or the agency

theory, and the trial court erred in failing to order Mata’s claims against CrossDefendants to arbitration.

Reply to Issue III: Centroplex and Thompson invoked the jurisdiction

of the trial court by filing an answer to Santander’s cross-claims.

Centroplex and Thompson argue that there are no arbitrable claims asserted

against them because Mata never served them with the petition in which he asserted

claims against them. This argument is completely without merit. “An answer shall

constitute an appearance of the defendant so as to dispense with the necessity for the

issuance or service of citation upon him.” Tex. R. Civ. P. 121. A party enters a

general appearance whenever it invokes the judgment of the court on any question

other than the court's jurisdiction, or seeks affirmative action from the court on other

issues. Moore v. Elektro-Mobil Technik GMBH, 874 S.W.2d 324, 327 (Tex. App.—El

Paso 1994, writ denied). CentroPlex and Thompson filed an answer in this case

asserting affirmative defenses against Mata’s claims, asserting cross-claims against

Redshift, and praying that [Mata] and Santander take nothing by this suit. . . .” (CR 

24-27.) 

CentroPlex and Thompson failed to make any objections to the jurisdiction of

the trial and failed to file a special appearance; thus, they made a general appearance

and consented to the trial court’s jurisdiction. See Tex. R. Civ. P. 120a; Tex. R. Civ.

P. 121; N803RA, Inc. v. Hammer, 11 S.W.3d 363, 366 (Tex. App.—Houston [1st

Dist.] 2000, no pet.).

-9-
CentroPlex and Thompson also argue that the limitations period has expired

on Mata’s claims for personal injury on February 23, 2013, that they were never

served with Mata’s claims, and that Santander failed to file its cross-claims until after

the expiration of the statute of limitations. Mata has asserted several different causes

of action, some with a two-year statute of limitations, and some with a four-year

statute of limitations, as follows:

• breach of contract - 4 years. Tex. Civ. Prac. & Rem. Code Ann. §

16.004(a),(c);

• conversion - 2 years. Tex. Civ. Prac. & Rem. Code Ann. § 16.0034(a);

• common-law fraud - 4 years. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a);

• trespass to real property - 2 years. Tex. Civ. Prac. & Rem. Code Ann. §

16.003(a);

• gross negligence - 2 years. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a);

and;

• violations of the Texas Deceptive Trade Practices Act - 2 years. Tex. Bus. &

Comm. Code Ann.§ 17.565.

•

Mata filed his suit on February 22, 2013, and the event complained of occurred

on February 23, 2011. (CR 3-10.) Thus, Mata filed suit one day before the statute

of limitations expired on his causes of action with a two-year statute of limitations,

and the claims are not time-barred. 

Centroplex and Thompson’s arguments that they are not subject to the

jurisdiction of the trial court or this Court and that Mata’s claims against them are

time-barred are without merit. 

-10-
Reply to Issue IV: Damages should not be awarded to CrossDefendants because Santander’s appeal is not frivolous.

Rule 45 permits an appellate court to award a prevailing party "just damages"

for "frivolous appeals." Tex. R. App. P. 45.2. The appellate court applies an

objective test in determining whether an appeal is frivolous. Ashraf v. Ashraf, No.

03-11-00467-CV, 2012 Tex. App. LEXIS 4345, at *27-28 (Tex. App.—Austin May

24, 2012, no pet.) (mem. op.). The appellate court reviews the record from the

viewpoint of the advocate and ask whether the advocate had reasonable grounds to

believe the judgment could be reversed. Id. at *28. Whether to grant sanctions for a

frivolous appeal is a matter within the appellate court’s discretion, that an appellate

court exercises with prudence and caution and only after careful deliberation; but it

will do so only in circumstances that are truly egregious. Id. The fact that an

appellate court rejects a party’s arguments, or even finds deficiencies in the appeal,

does not constitute “truly egregious circumstances.” Id. This is because the right to

appeal is a most sacred one. Smith v. Brown, 51 S.W.3d 376, 381 (Tex. App.

—Houston [1st Dist.] 2001, pet. denied).

Santander’s appeal constitutes an informed, good-faith challenge to the trial

court’s order denying Santander’s motion to compel arbitration with regard to Mata’s

claims against Cross-Defendants. See Hunt v. CIT Group/Consumer Fin., Inc., No.

03-09-00046-CV, 2010 Tex. App. LEXIS 2767, at *29 (Tex. App.—Austin Apr. 15,

2010, pet. denied) (mem. op.) (citing General Elec. Credit Corp. v. Midland Cent.

Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1991) (per curiam)). Santander’s

arguments are supported with factual statementsfromthe record and legal authorities,

and its arguments have legal merit. 

-11-
A reasonable attorney could conclude, based on Santander’s arguments, that

the Arbitration Provision contained in the Contract is incorporated by reference into

the Service Agreement and the Recovery Agreement or that Cross-Defendants are

bound to arbitrate under an agency theory such that Cross-Defendant are bound to

arbitrate Mata’s claims against them. Cross-Defendants fail to show any “truly

egregious circumstances” that warrant an award of damages against Santander. Thus,

this Court should not award damages to Cross-Defendants.

CONCLUSION

Santander can invoke the Arbitration Provision contained within the security

agreement to compel Mata to arbitrate all claims against Santander as secured party

and Cross-Defendants asrepossession agents withoutregard to theCross-Defendants’

nonsignatory status. Santander did not waive the incorporation by reference theory,

because Santander argued this issue to the trial court at the hearing on Santander’s

Motion to Compel. The Service Agreement and Recovery Agreement are dependent

upon secured transactions, such as the Contract, and provided Cross-Defendants

notice of and opportunity to review the terms of the underlying retail installment

contracts for which recovery services were to be provided such thatCross-Defendants

may be compelled to arbitration under the incorporation by reference theory. Also,

because Santander is vicariously liable for the actions of Cross-Defendants in

repossessing Mata’s vehicle, Cross-Defendantsmay be compelled to arbitration under

the agency theory. 

-12-
The trial court, and this Court, have jurisdiction over Mata’s claims against

Centroplex and Thompson because they filed an answer to Santander’s cross-claims,

consenting to the jurisdiction of the trial court. And, Cross-Defendants fail to show

that Santander’s appeal is frivolous, so they are not entitled to damages.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant, SANTANDER

CONSUMER USA, INC., fully prays that this Court grant oral argument on this

appeal, and thereafter, reverse the trial court’s order denying Santander’s motion to

compel arbitration as to Mata’s claims against the other Defendants, enter an order

compelling arbitration of all of Mata’s claims in the underlying cause of action, and

for all other and further relief to which Santander Consumer USA, Inc. may show

itself to be justly entitled.

Respectfully submitted,

DEVLIN,NAYLOR&TURBYFILL,P.L.L.C.

DONALD L. TURBYFILL

State Bar of Texas # 20296380

dturbyfill@dntlaw.com [E-MAIL]

DEBORAH C. S. RIHERD

State Bar of Texas # 24038904

driherd@dntlaw.com [E-MAIL]

VICKI W. HART

State Bar of Texas # 24046037

vhart@dntlaw.com [E-MAIL]

4801 Woodway, Suite 420-West

Houston, Texas 77056-1805

(713) 622-8338 [PHONE]

(713) 586-7053 [FACSIMILE]

ATTORNEYS FOR APPELLANT

SANTANDER CONSUMER USA, INC.

-13-
CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Corel

WordPerfect X5 and contains 3,150 words, as determined by the computer software's

word-count function, excluding the sections of the document listed in Tex. R. App.

P. 9.4(i)(1).

DEBORAH C. S. RIHERD

CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correct copy of the above

and foregoing instrument wasserved upon the following parties either electronically

through an electronic filing manager or in the alternative served by fax prior to 5:00

p.m., in person, by mail, commercial delivery service, or email, on February 9, 2015:

Mario A. Mata

Mario A. Mata, PLLC

111 Congress Avenue, Suite

400Austin, Texas 78701

(512) 681-4461 [PHONE]

(512) 682-2147 [FACSIMILE]

APPELLEE, pro se

David L. Treat

dlt@lstlaw.com [E-MAIL]

Lindow Stephens Treat, LLP

The Vogue Building

600 Navarro Street, Sixth Floor

San Antonio, Texas 78205

(210) 227-2200 [PHONE]

(210) 227-4602 [FACSIMILE]

ATTORNEY FOR APPELLEES

REDSHIFT INVESTIGATION

INC.

John S. Kenefick

JKenefick@MacdonaldDevin.com [E-MAIL]

John R. Sigety

JSigety@MacdonaldDevin.com [E-MAIL]

MacDonald Devin, P.C.

3800 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270-2130

(214) 744-3300 [PHONE]

(214) 747-0942 [FACSIMILE]

ATTORNEYS FOR APPELLEE

BLAKE THORNTON VANDUSEN

Karen C. Burgess

kburgess@richardsonburgess.com [E-MAIL]

Richardson + Burgess LLP

221 West 6 Street, Suite 900

th

Austin, Texas 78701-3445

(512) 482-8808 [PHONE]

(512) 499-8886 [FACSIMILE]

ATTORNEY FOR APPELLEES

CENTROPLEX AUTOMOBILE

RECOVERY, INC. AND JOHN F.

THOMPSON

 

DEBORAH C. S. RIHERD

-14-
NO. 03-14-00782-CV

IN THE THIRD COURT OF APPEALS

AT AUSTIN, TEXAS

 

SANTANDER CONSUMER USA, INC.

Appellant,

v.

MARIO A. MATA, CENTROPLEX AUTOMOBILE RECOVERY, INC., 

JOHN F. THOMPSON d/b/a CENTROPLEX AUTOMOBILE RECOVERY, INC. 

REDSHIFT INVESTIGATION, INC., and BLAKE THORNTON VANDUSEN,

Appellees.

 

Appealed from the

353rd Judicial District Court

Travis County, Texas

 

APPELLANT SANTANDER CONSUMER USA, INC.’S AMENDED

CERTIFICATE OF SERVICE

The undersigned certifies that on February 9, 2015, SANTANDER

CONSUMER USA, INC., Appellant herein, served a true and correct copy of the

REPLY BRIEF OF APPELLANT in a manner prescribed by Tex. R. Civ. P. 21a, on

the following:

Mario A. Mata

Mario A. Mata, PLLC

111 Congress Avenue, Suite

400Austin, Texas 78701

(512) 681-4461 [PHONE]

(512) 682-2147 [FACSIMILE]

APPELLEE, pro se

John S. Kenefick

JKenefick@MacdonaldDevin.com [E-MAIL]

John R. Sigety

JSigety@MacdonaldDevin.com [E-MAIL]

MacDonald Devin, P.C.

3800 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270-2130

(214) 744-3300 [PHONE]

(214) 747-0942 [FACSIMILE]

ATTORNEYS FOR APPELLEE

BLAKE THORNTON VANDUSEN

ACCEPTED

03-14-00782-CV

4075522

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/9/2015 2:40:37 PM

JEFFREY D. KYLE

CLERK
David L. Treat

dlt@lstlaw.com [E-MAIL]

Christopher A. Lotz

clotz@lstlaw.com [E-MAIL]

Lindow Stephens Treat, LLP

The Vogue Building

600 Navarro Street, Sixth Floor

San Antonio, Texas 78205

(210) 227-2200 [PHONE]

(210) 227-4602 [FACSIMILE]

ATTORNEYS FOR APPELLEES

REDSHIFT INVESTIGATION

INC.

Karen C. Burgess

kburgess@richardsonburgess.com [E-MAIL]

Richardson + Burgess LLP

221 West 6 Street, Suite 900

th

Austin, Texas 78701-3445

(512) 482-8808 [PHONE]

(512) 499-8886 [FACSIMILE]

ATTORNEYS FOR APPELLEES

CENTROPLEX AUTOMOBILE

RECOVERY, INC. AND JOHN F.

THOMPSON

Respectfully submitted,

DEVLIN,NAYLOR&TURBYFILL,P.L.L.C.

DONALD L. TURBYFILL

State Bar of Texas # 20296380

dturbyfill@dntlaw.com [E-MAIL]

DEBORAH C. S. RIHERD

State Bar of Texas # 24038904

driherd@dntlaw.com [E-MAIL]

VICKI W. HART

State Bar of Texas # 24046037

vhart@dntlaw.com [E-MAIL]

4801 Woodway, Suite 420-West

Houston, Texas 77056-1805

(713) 622-8338 [PHONE]

(713) 586-7053 [FACSIMILE]

ATTORNEYS FOR APPELLANT

SANTANDER CONSUMER USA, INC.

Amended Certificate of Service 2
CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correct copy of the above

and foregoing instrument wasserved upon the following parties either electronically

through an electronic filing manager or in the alternative served by fax prior to 5:00

p.m., in person, by mail, commercial delivery service, or email, on February 9, 2015:

Mario A. Mata

Mario A. Mata, PLLC

111 Congress Avenue, Suite

400Austin, Texas 78701

(512) 681-4461 [PHONE]

(512) 682-2147 [FACSIMILE]

APPELLEE, pro se

David L. Treat

dlt@lstlaw.com [E-MAIL]

Christopher A. Lotz

clotz@lstlaw.com [E-MAIL]

Lindow Stephens Treat, LLP

The Vogue Building

600 Navarro Street, Sixth Floor

San Antonio, Texas 78205

(210) 227-2200 [PHONE]

(210) 227-4602 [FACSIMILE]

ATTORNEY FOR APPELLEES

REDSHIFT INVESTIGATION

INC.

John S. Kenefick

JKenefick@MacdonaldDevin.com [E-MAIL]

John R. Sigety

JSigety@MacdonaldDevin.com [E-MAIL]

MacDonald Devin, P.C.

3800 Renaissance Tower

1201 Elm Street

Dallas, Texas 75270-2130

(214) 744-3300 [PHONE]

(214) 747-0942 [FACSIMILE]

ATTORNEYS FOR APPELLEE

BLAKE THORNTON VANDUSEN

Karen C. Burgess

kburgess@richardsonburgess.com [E-MAIL]

Richardson + Burgess LLP

221 West 6 Street, Suite 900

th

Austin, Texas 78701-3445

(512) 482-8808 [PHONE]

(512) 499-8886 [FACSIMILE]

ATTORNEY FOR APPELLEES

CENTROPLEX AUTOMOBILE

RECOVERY, INC. AND JOHN F.

THOMPSON

 

DEBORAH C. S. RIHERD

Amended Certificate of Service 3