Opinion
No. 14-03-01194-CV
Memorandum Opinion filed June 8, 2004.
On Appeal from the County Court at Law No. 1, Harris County, Texas, Trial Court Cause No. 766,142.
Reversed and Rendered.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
Appellant Conseco Finance Servicing Corp. appeals from a final judgment (1) granting the summary judgment motion of appellees Robert C. Lee and Ann E. Lee, (2) denying Conseco's summary judgment motion, and (3) ordering that full rights and title to a certain Roadtrek motor home be vested in the Lees. Concluding that the summary judgment proof establishes, as a matter of law, that Conseco has a valid and perfected security interest in the Roadtrek, which interest survived Lees' purported purchase, we reverse and render judgment in favor of Conseco.
FACTUAL AND PROCEDURAL BACKGROUND
On December 21, 1998, Lila Williams purchased a 1998 Roadtrek 200 Versatile motor home from New World R.V., Inc. The purchase price was $77,224.38, and Williams financed $63,680.65. Under the Retail Installment Contract and Security Agreement, Williams gave a security interest in the motor home to New World, and the same date New World, by Virginia Williams, assigned the contract and security agreement to "Green Tree Financial Servicing Corporation." The Original Texas Certificate of Title, issued July 3, 1999, lists "Greentree Financial" as the first and only lienholder, with the date of lien being December 21, 1998. In November 1999, Green Tree applied for, and was granted, an amended certificate of authority to transact business under the new name of Conseco Finance Servicing Corp.
The record does not indicate whether Lila Williams and Virginia Williams are related.
On December 29, 2000, the Lees allegedly purchased the Roadtrek 200 Versatile motor home from New World for $42,831.80, including a documentary fee, various other fees, and insurance. There is nothing to indicate whether or how New World reacquired the Roadtrek from Lila Williams.
On July 1, 2001, Lila Williams defaulted on her payments to Conseco; and, in October 2001, Conseco sued her in Hardin County, Texas, for breach of contract. Later the same month, the Lees filed suit against the Texas Department of Transportation, complaining of its refusal to issue the Lees a certificate of title, which refusal was primarily based on the fact it was "[u]nable to obtain properly assigned Negotiable Title."
In February, 2002, the Lees sued Conseco seeking a declaration that full, complete and unencumbered title to the motor home be vested in the Lees. The Lees alleged (1) they were the owners of the motor home, which was subject to a title encumbrance asserted in the July 3, 1999, title document; (2) an entity "believed to be the successor-in-interest [sic] to Defendant" caused a lien to be recorded, asserted for security purposes as an encumbrance on the motor home; (3) the asserted lien "is invalid because it is asserted by an entity which is incompetent to assert and maintain the security interest in such title," i.e., the lien is asserted by Green Tree Financial which the Secretary of State indicates is no longer a viable business entity in Texas; and (4) Conseco's claim is invalid because the Lees are buyers in the ordinary course of business as set forth in Texas Business and Commerce Code ("UCC") sections 2.403 and 9.320, and as buyers in the ordinary course of business, the Lees take free of the Conseco's asserted security interest.
The Lees also sought attorneys' fees and all other relief to which they might show themselves entitled.
Conseco answered and counterclaimed for (1) a declaration it had a valid and perfected security interest in the motor home and (2) and an order requiring the Lees to give possession of the motor home to Conseco. In support of its affirmative defenses as well as its counterclaim, Conseco relied on the Certificate of Title Act.
In its second amended original answer, filed after the motions for summary judgment discussed below, Conseco also sued for conversion and moved for sanctions against the Lees and their attorney. On appeal, the parties do not contend these issues were before the court on summary judgment. Despite the court's having rendered a final judgment "dispos[ing] of all parties, claims, and causes of action," neither party raises any appellate issues concerning the conversion counter claim or the motion for sanctions.
See TEX. TRANSP. CODE ANN. § 501.001-.159 (Vernon 1999 and Supp. 2004).
The parties filed competing motions for summary judgment. Conseco argued the Certificate of Title Act was the relevant statute, Conseco had fully complied with the perfection requirements of the Act, and therefore all subsequent buyers of the collateral (the Roadtrek), including the Lees, were subject to Conseco's security interest in the collateral. Conseco also argued UCC sections 2.403 and 9.320 did not apply. Finally, Conseco argued, because its perfected interest and lien had not been paid or satisfied, Conseco was entitled to possession of the collateral.
See TEX. BUS. COM. CODE ANN. § 2.403 (Vernon 1994) (regarding power to transfer, good faith purchase of goods, and "entrusting"); TEX. BUS. COM. CODE ANN. § 9.320(a) (Vernon 2002) (regarding buyers in ordinary course of business). In 1999, the legislature substantially revised Chapter 9 of the Texas Business and Commerce Code (UCC). See Act of May 17, 1999, 76th Leg., R.S., ch. 414, § 1.01, 1999 Tex. Gen. Laws 2639-2736. For most purposes, the effective date of the act was July 1, 2001. See id. § 3.01(a), 1999 Tex. Gen. Laws at 2747. "Except as otherwise provided [in article 3 of the Act], this Act applies to a transaction or lien within its scope, even if the transaction or lien was entered into or created before this Act takes effect." Id. § 3.02(a), 1999 Tex. Gen. Laws at 2747. But see Dota v. First Nat'l Bank of El Campo, 288 B.R. 448, 458 n. 21 (S.D. Tex. 2003) (stating prior version of Code applies to case because "facts" occurred prior to effective date of new version). The Act also provides that it "does not affect an action, case, or proceeding commenced before the effective date of this Act." Id. § 3.02(c), 1999 Tex. Gen. Laws at 2748. The lien at issue was created December 21, 1998; the lawsuit was commenced February 1, 2002. Both parties cite Revised Chapter 9, and neither contends the prior law applies. Moreover, the revisions do not involve substantive changes relevant to the present lawsuit. Accordingly, we cite to the revised provisions.
In support of its motion, Conseco attached (1) the Retail Installment Contract and Security Agreement executed between Lila Williams and New World on December 21, 1998, which contained a paragraph indicating assignment of the contract to Green Tree Financial Servicing Corporation and (2) the Texas Certificate of Title to the Roadtrek, showing Lila Williams as owner and "Greentree Financial" as the first and only lienholder, with the date of the lien as December 21, 1998. Conseco's summary judgment proof also included the following: (1) documents indicating the name change from Green Tree to Conseco, effective November 1, 1999, (2) a copy of Conseco's pleadings in its lawsuit against Lila Williams, along with the notice of default from Conseco to Lila Williams, dated August 17, 2001, and (3) affidavits of its litigation specialist and attorney, describing in part the preceding documents and the status of Conseco's litigation.
In their motion for summary judgment, the Lees argued they were innocent purchasers and buyers in the ordinary course of business, who take free of a security interest created by a seller. Citing UCC section 2.403, they also argued title to the motor home passed to them, and failure to provide title violated Texas law. In response to Conseco's motion for summary judgment, the Lees argued a fact issue existed as a result of Green Tree's, rather than Conseco's name being on the Certificate of Title.
The Lees' summary judgment proof consisted entirely of the Lees' affidavits and that of their attorney, Michael Lee. Both Robert and Ann stated, in part, as follows:
Michael's affidavit addressed only the issue of attorney's fees.
2. On December 29, 2000, Robert C. Lee and Ann E. Lee purchased from New World R.V., Inc. a 1998 Roadtrek, Model 200 Versatile, VIN#1GBHG31J2V1108343.
3. On December 29, 2000, New World R.V., Inc. was a dealer in the business of selling motor homes.
4. The motor home purchased by the Lees [the 1998 Roadtrek vehicle, VIN#1GBHG31J2V1108343] was a good.
5. Robert C. Lee and Ann E. Lee purchased the good [the 1998 Roadtrek vehicle, VIN#1GBHG31J2V1108343] for good and valuable consideration from New World R.V., Inc.
6. Robert C. Lee and Ann E. Lee paid $42,831.80 including a documentary fee and various fees and insurance purportedly regarding transfer of title on the good.
7. Robert. C. Lee and Ann E. Lee had no knowledge or awareness of any transaction by or between Conseco, Greentree Financial, [Conseco's successor [sic] in interest] or any other entity and/or person and New World R.V., Inc.
8. Robert C. Lee and Ann E. Lee purchased the good [the 1998 Roadtrek vehicle, VIN#1GBHG31J2V1108343] in good faith.
9. New World R.V., Inc. was a merchant who deals in goods at the time which Robert C. Lee and Ann E. Lee purchased, specifically including the good at issue here [the 1998 Roadtrek vehicle, VIN#1GBHG31J2V1108343].
Conseco objected to the Lees' summary judgment proof, and moved to strike the affidavits. The trial court did not rule on Conseco's objections or motion to strike.
The trial court denied Conseco's motion for summary judgment and rendered final judgment ordering that full rights, titles, and powers to the Roadtrek motor home be vested in the Lees and that they enjoy possession and quiet title to the vehicle. The trial court further awarded the Lees attorney's fees of $8,493.75.
DISCUSSION
Introduction and Standard of Review
Conseco presents the following issue for review: Whether the trial court erred by ordering that the Lees, as purported subsequent purchasers of a motor home, were vested with full rights, title, and possession to the motor home, instead of ordering that Conseco, the holder of the unpaid and perfected security interest in the motor home under the Texas Certificate of Title Act, was entitled to possession of its collateral. Thus, Conseco challenges both the grant of Lees' summary judgment motion and the denial of its own.
As issue two, Conseco presents the following: Whether a lien on a Texas Certificate of Title to a motor home continues to be valid if the name of the lienholder noted on the title changed as shown by the Texas Secretary of State Amended Certificate of Authority and the State of Texas Lending License. The Lees raised this issue as a defense to Conseco's motion for summary judgment, not as reason to grant their own. Furthermore, although on appeal the Lees argue there are factual issues that preclude granting Conseco's motion for summary judgment, the name change is not one of them. Accordingly, we conclude it is not necessary to address Conseco's issue two.
When the parties file competing motions for summary judgment, and the trial court grants one motion and denies the other, this court may consider the propriety of the denial as well as the grant. Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 729 (Tex. App.-Houston [14th Dist.] 2003, no pet.). If the issue raised is based on undisputed and unambiguous facts, we may determine the question presented as a matter of law. Id. We may then either affirm the judgment or reverse and render the judgment the trial court should have rendered, including one that denies both motions. Id. If, however, resolution of the issues rests on disputed facts, summary judgment is inappropriate, and we should reverse and remand for further proceedings. Id. at 729-30.
The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non-movant. Id. at 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Id. at 549.
A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); Geiselman v. Cramer Fin. Group, Inc., 965 S.W.2d 532, 535 (Tex. App.-Houston [14th Dist.] 1997, no writ). A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against him. Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex. App.-Houston [14th Dist.] 2001, no pet.). Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
We review declaratory judgments under the same standards as other judgments and decrees. Lidawi, 112 S.W.3d at 730; See Tex. Civ. Prac. Rem. Code Ann. § 37.010 (Vernon 1997). We look to the procedure used to resolve the issue at trial to determine the standard of review on appeal. Lidawi, 112 S.W.3d at 730. Here, because the trial court resolved the case on competing motions for summary judgment, we review the propriety of the trial court's denial of the declaratory judgment under the same standards we apply to the summary judgment. See id. Analysis 1. Creation of Conseco's Security Interest in the Roadtrek
The Certificate of Title Act is found in Chapter 501 of the Transportation Code. See TEX. TRANSP. CODE ANN. § 501.001 (Vernon 1999). Section 501.111(a) of the Act provides: "Except as provided by Subsection (b), a person may perfect a security interest in a motor vehicle that is the subject of a first or subsequent sale only by recording the security interest on the certificate of title as provided by this chapter." TEX. TRANSP. CODE ANN. § 501.111(a) (Vernon 1999).
The subsection (b) exception applies to a security interest in inventory: "A person may perfect a security interest in a motor vehicle held as inventory by a person in the business of selling motor vehicles only by complying with Chapter 9, Business Commerce Code." TEX. TRANSP. CODE ANN. § 501.111(b) (Vernon 1999).
UCC section 9.311 refers to the Certificate of Title Act, and provides in relevant part:
(a) Except as otherwise provided in Subsection (d), the filing of a financing statement is not necessary or effective to perfect a security interest in property subject to:
. . .
(2) the following statutes of this state: Chapter 501, Transportation Code; . . .
. . .
(b) Compliance with the requirements of a statute, regulation, or treaty described in Subsection (a) for obtaining priority over the rights of a lien creditor is equivalent to the filing of a financing statement under this Chapter. Except as otherwise provided in Subsection (d) and Sections 9.313 and 9.316(d) and (e) for goods covered by a certificate of title, a security interest in property subject to a statute, regulation, or treaty described in Subsection (a) may be perfected only by compliance with those requirements, and a security interest so perfected remains perfected notwithstanding a change in the use or transfer of possession of the collateral.
. . .
(d) During any period in which collateral subject to a statute specified in Subsection (a)(2) is inventory held for sale or lease by a person or leased by that person as lessor and that person is in the business of selling goods of that kind, this section does not apply to a security interest in that collateral created by that person.
TEX. BUS. COM. CODE ANN. § 9.311 (Vernon Supp. 2004) (emphasis added).
The uncontroverted summary judgment proof supports Conseco's representation that it fully complied with the Certificate of Title Act, Texas Transportation Code chapter 501, and perfected its security interest in the motor home by having that interest recorded on the Certificate of Title. On appeal, the Lees do not dispute this representation.
2. Status of Conseco's Security Interest on Transfer of the Roadtrek to the Lees.
Citing UCC section 9.311(b), Conseco further contends its security interest remains in the motor home despite transfer of the collateral to the Lees. The Lees dispute this latter contention.
BUYERS IN THE ORDINARY COURSE. The Lees contend they were buyers in the ordinary course of business as defined by UCC section 1.201(9):
"Buyer in ordinary course of business" means a person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged or with the seller's own usual or customary practices. . . .
TEX. BUS. COM. CODE ANN. § 1.201(9) (Vernon Supp. 2004).
The legislature amended Texas Business and Commerce Code section 1.201(9) in 1999 and 2003, during and subsequent to the events giving rise to this lawsuit. See Act of May 17, 1999, 76th Leg., R.S., ch. 414, § 2.12, 1999 Tex. Gen. Laws 2639, 2737-38; Act of May 22, 2003, 78th Leg., R.S., ch. 542, § 1, sec. 1.201, 2003 Tex. Gen. Laws 1840, 1842-43. The amendments, however, did not involve substantive revisions relevant to the present lawsuit. Accordingly, we cite the current version.
The Lees then contend they took free of Conseco's security interest under UCC section 9.320(a), which provides in relevant part: "[A] buyer in ordinary course of business . . . takes free of a security interest created by the buyer's seller, even if the security interest is perfected and the buyer knows of its existence." TEX. BUS. COM. CODE ANN. § 9.320(a) (Vernon 2002) (emphasis added). Conseco, however, contends UCC section 9.320 is inapplicable because New World did not create the security interest in the Roadtrek. We agree.
We assume, without deciding, that the Lees' summary judgment proof establishes they fall within the definition of a buyer in the ordinary course of business under UCC section 1.201(9). The Lees, however, cannot avail themselves of UCC section 9.320(a) because, although New World (the Lees' seller) may have been a party to the transaction giving rise to Conseco's security interest in the Roadtrek, New World did not, as a debtor, create the security interest in the Roadtrek.
On virtually identical facts to those at issue in the present case, the New Jersey appellate court observed UCC section 9-307(1), the precursor to section 9.320(a), was "'intended to protect buyers in the ordinary course from the lien claims of creditor who have financed "floor-plan" (inventory) arrangements for the dealer.'" Ocean County Nat'l Bank v. Palmer, 457 A.2d 1225, 1228 (N.J. Super. Ct. App. Div. 1983) (quoting Commercial Credit Equip. Corp. v. Bates, 267 S.E.2d 469, 472 (Ga. Ct. App. 1980)). The New Jersey court then concluded, "'security interest created by his seller' as used in § 9-307(1), refers only to a security interest given by the seller as debtor and does not include any other security interest even though it was created in an agreement to which the seller was a non-debtor party." Id. (emphasis added) (citing First. Am. Bank of N. Palm Beach v. Hunning, 238 S.E.2d 799, 800 (Va. 1977) (per curiam)); see also Vacura v. Haar's Equip., Inc., 364 N.W.2d 387, 393 (Minn. 1985) (stating same and citing Ocean County Nat'l Bank, 457 A.2d at 1228).
Under the Code Construction Act, we are required to construe uniform acts included in a code "to effect its general purpose to make uniform the law of those states that enact it." TEX. GOV'T CODE ANN. § 311.028 (Vernon 1998); see MBank El Paso, N.A. v. Sanchez, 836 S.W.2d 151, 153-54 (Tex. 1992) (citing out-of-state cases in construing UCC provision); Fetter v. Wells Fargo Bank Texas, N.A., 110 S.W.3d 683, 690-91 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (same).
Lila Williams was the debtor in the only security agreement of record to which New World was arguably a party. Conseco's security interest was not created by New World as debtor. UCC section 9.320(a) does not permit the Lees to take the Roadtrek free from Conseco's security interest.
ENTRUSTING. The Lees also rely on section 2.403, which provides in part:
(a) A purchaser of goods acquires all title which his transferor had or had power to transfer except that a purchaser of a limited interest acquires rights only to the extent of the interest purchased. A person with voidable title has power to transfer a good title to a good faith purchaser for value. . . .
(b) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in ordinary course of business.
. . .
(d) The rights of other purchasers of goods and of lien creditors are governed by the chapters on Secured Transactions (Chapter 9) and Documents of Title (Chapter 7).
TEX. BUS. COM. CODE ANN. § 2.403(a), (b), (d) (Vernon 1994). Conseco argues section 2.043 is inapplicable because, when New World sold the Roadtrek to the Lees, New World had no title to the Roadtrek, not even a voidable one.
The Lees, however, suggest New World "entrusted" the Roadtrek to Lila Williams. They represent: (1) prior to the date of the sale to Lila Williams, the Roadtrek "had been fully entrusted and full title and right to possession of the vehicle resided in a merchant who dealt in RV vehicles of the type and condition of the vehicle in question here"; (2) through the sale to Lila Williams, "New World entrusted the vehicle, with the acquiescence of the predecessor to Conseco to Ms. Lila F. Williams."
The first representation is irrelevant to the present controversy; the second is conclusory and without support in the summary judgment proof. Moreover, the documents of record show Lila as title owner of the Roadtrek as of December 21, 1998; and, in their affidavits, the Lees state they purchased the Roadtrek from New World. Based on this summary judgment proof, if any "entrusting" was involved in the present case, it was Lila who entrusted the Roadtrek to New World. The uncontroverted summary judgment proof that Conseco instituted suit against Lila, but was unable to locate and serve her, supports the inference Conseco did not acquiesce in any such entrusting.
If Lila did entrust the Roadtrek to New World, New World could have transferred to the Lees only the rights which Lila had. See Tex. Bus. Com. Code Ann. § 2.403(b) (Vernon 1994); Pfluger v. Colquitt, 620 S.W.2d 739, 741 (Tex.Civ.App. — Dallas 1981, writ ref'd n.r.e.) (stating section 2.403(b) phrase, empowering merchant "to transfer all rights of the entruster," is intended to give merchant same power to transfer which the owner of goods can exercise himself, although the owner may not actually have authorized merchant to make such a transfer). Thus, the Lees would have taken subject to Conseco's security interest. See ELDON H. REILEY, GUIDEBOOK TO SECURITY INTERESTS IN PERSONAL PROPERTY § 15:18 (online 2003 ed.) (explaining, under UCC 2-403(2), when (1) Owner's rights were subject to security interest perfected by Bank by notation on certificate of title, (2) Owner entrusted vehicle to Dealer, and (3) Buyer in ordinary course purchased from Dealer to whom Owner intrusted vehicle; then rights acquired by Buyer remain subject to Bank's security interest). UCC section 2.403 does not permit the Lees to take the Roadtrek free from Conseco's security interest.
ALLEGED CONFLICT BETWEEN THE CERTIFICATE OF TITLE ACT AND THE UCC. Finally, the Lees cite Transportation Code section 501.005, which provides: "Chapters 1-9, Business Commerce Code, control over a conflicting provision of this chapter." TEX. TRANSP. CODE ANN. § 501.005 (Vernon 1999). Having assumed the Lees qualified as buyers in the ordinary course, but also having concluded that neither section 9.320(a) nor section 2.403 applies to the facts of this case, we need not consider Transportation Code section 501.005.
Based on the preceding analysis, we conclude the trial court erred in granting the Lees' motion for summary judgment. We now turn to the question of whether the trial court should have granted Conseco's motion for summary judgment and ordered Conseco was entitled to possession of the Roadtrek.
3. Conseco's Right to Possession of the Roadtrek.
As discussed above, Conseco's security interest in the Roadtrek survived the Lees' purported purchase. Also, it is undisputed that the note, which Conseco's lien secures, is in default. Under the terms of the Retail Installment Contract and Security Agreement executed between New World and Lila Williams, in the event of Lila Williams's default, the holder of the security interest could "immediately take possession of the Property by legal process or self-help. . . . [and] may then sell the Property and apply what [it receives] as provided by law to [its] reasonable expenses and then toward [Lila Williams] obligations."
Nevertheless, the Lees argue the following fact issues preclude rendition of judgment in Conseco's favor: (1) issues regarding the creation of the lien and the entrustment of the collateral, including (a) whether New World held title to the collateral and (b) whether the collateral was inventory collateral; (2) issues regarding the relationship between New World and Conseco based on the lack of any summary judgment proof of the separate agreement by which New World assigned the Retail Installment Contract and Security Agreement to Greentree (Conseco); and (3) fact issues regarding disposition of the proceeds of New World's sale of the Roadtrek to the Lees. Additionally, the Lees argue Conseco has not established the basis for the remedy it seeks because (1) it has provided no proof of the total amount of the payments it received on the loan and (2) the Retail Installment Contract and Security Agreement "specifically calls for the adjudication of the very issues presented here and the enforcement of its security interest to begin by the initiation of arbitration proceedings."
The first and second set of "fact issues" rest on speculation, without any support in the summary judgment proof, that New World's sale of the Roadtrek to Lila Williams was something other than what it appears to be: a sale by a dealer, from the dealer's inventory, to a consumer. Based on the summary judgment proof of record, the nature of New World's sale to Lila is relevant to New World's subsequent sale to the Lees only because Lila created a security interest in the vehicle in favor of Conseco.
The third set of fact issues and the contention Conseco has not established the basis for its requested remedy rest mainly on the premise that a secured party is not entitled to possession if (1) it has collected part of the amount owed on the secured loan or (2) it has a cause of action against the dealer. The Lees' position in this regard runs counter to provisions regarding possession of collateral, as found in the Retail Installment Contract and Security Agreement and the UCC. As set forth above, the Contract specifically provides that, on default, Conseco may take possession of the collateral by legal process or self-help and may then sell the collateral and apply the proceeds to its expenses and the remaining obligation. UCC section 9.609 also provides "After default, a secured party . . . may take possession of the collateral. . . ." TEX. BUS. COM. CODE ANN. § 9.609(a)(1) (Vernon 2002). The secured party may do so "pursuant to judicial process." Id. § 9.609(b)(1).
Other than referring to a footnote in Conseco's brief, which cites Transportation section 503.033, the provision dealing with surety bonds for dealers, the Lees cite no authority to support their claim Conseco could recover against New World. Section 503.033(d) provides:
A person may recover against a surety bond or other security if the person obtains against a person issued a motor vehicle dealer general distinguishing number or a wholesale motor vehicle auction general distinguishing number a judgment assessing damages and reasonable attorney's fees based on an act or omission on which the bond is conditioned that occurred during the term for which the general distinguishing number was valid.
TEX. TRANSP. CODE ANN. § 503.033(d) (Vernon 1999). Under subsection (b) a bond must be conditioned, in part, on "the transfer by the applicant of good title to each motor vehicle the applicant offers for sale." Id. § 503.033(b)(2)(B).
The Lees' contention Conseco has not established the basis for its requested remedy also rests on the arbitration clause in the Retail Installment Contract and Security Agreement. That clause provides:
All disputes, claims, or controversies arising from or relating to this Contract or the relationships which result from this Contract, or the validity of this arbitration clause or the entire Contract, shall be resolved by binding arbitration by one arbitrator selected by us with your consent.
The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right or opportunity to litigate disputes through a court, but that they prefer to resolve their disputes through arbitration, except as provided herein. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, EITHER PURSUANT TO ARBITRATION UNDER THIS CLAUSE OR PURSUANT TO A COURT ACTION BY US (AS PROVIDED HEREIN). The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort, and property disputes, will be subject to binding arbitration in accord with this agreement. The parties agree and understand that the arbitrator shall have all powers provided by the law and the Contract. These powers shall include all legal and equitable remedies, including, but not limited to, money damages, declaratory relief, and injunctive relief. Notwithstanding anything hereunto the contrary, we retain an option to use judicial or non-judicial relief to enforce a security agreement relating to the property, goods or services secured in a transaction underlying this arbitration agreement, to enforce the monetary obligation secured by the property, goods or services or to foreclose on the property, goods or services. Such judicial relief would take the form of a lawsuit. The institution and maintenance of an action for judicial relief in a court to foreclose upon any collateral, to obtain a monetary judgment or to enforce the security agreement, shall not constitute a waiver of the right of any party to compel arbitration regarding any other dispute or remedy subject to arbitration in this Contract, including the filing of a counterclaim in a suit brought by us pursuant to this provision. (Second emphasis added.)
Thus, even were we to assume this clause extended rights to the Lees, who were not parties to the contract, the clause sets forth an exception when the secured party is seeking judicial relief to obtain possession of the collateral. In short, no genuine issues of material fact preclude rendition of judgment ordering that Conseco take possession of the Roadtrek.
CONCLUSION
We conclude the summary judgment proof establishes, as a matter of law, that Conseco has a valid and perfected security interest in the Roadtrek, which interest survived Lees' purported purchase. We also conclude Conseco has, as a matter of law, established its right to possess the Roadtrek. Accordingly, we sustain Conseco's first issue.
Having sustained Conseco's first issue, we reverse and render judgment that Conseco has a valid security interest in, and is entitled to possession of, the Roadtrek.
In its prayer for relief in this court, Conseco requests the case be remanded to the trial court for damages and an award of attorneys' fees for Conseco. Conseco presents no authority and develops no argument in support of this request. We decline to consider it. See TEX. R. APP. P. 38.1(h) (stating appellant's brief is to contain clear and concise argument with appropriate citations to authorities); Emery v. Rollins, 880 S.W.2d 237, 238 (Tex. App.-Houston [14th Dist.] 1994, writ denied) (stating points of error must be supported by argument and authorities, and if not so supported, are waived).