Alan Acceptance Corp. v. East Texas National Bank of Palestine

109 S.W.3d 511, 1998 Tex. App. LEXIS 5041, 1998 WL 596706
CourtCourt of Appeals of Texas
DecidedAugust 13, 1998
DocketNo. 12-97-00074-CV
StatusPublished

This text of 109 S.W.3d 511 (Alan Acceptance Corp. v. East Texas National Bank of Palestine) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alan Acceptance Corp. v. East Texas National Bank of Palestine, 109 S.W.3d 511, 1998 Tex. App. LEXIS 5041, 1998 WL 596706 (Tex. Ct. App. 1998).

Opinion

HOLCOMB, Justice.

On July 22, 1998, East Texas National Bank of Palestine, Texas, Appellee, filed a Motion for Judgment Nunc Pro Tunc requesting that the judgment of May 28, 1998 be conformed to properly reflect the intent of its opinion herein delivered that same day. Although East Texas National Bank of Palestine, Texas, Appellee, did not request a correction, it noted that the style of the case was also in error. Accordingly, on this court’s own motion, the original opinion heretofore delivered on May 28,-1998 and styled “East Texas National Bank of Palestine, Texas, Appellant v. Sherdeana Owens Estakhr & Alan Acceptance Corporation, Appellee” is withdrawn that the style may be corrected, and it is hereby reissued under the correct style: “Alan Acceptance Corporation, Appellant v. East Texas National Bank of Palestine, Texas, Appellee.” There are no substantive changes in this corrected opinion.

This is an appeal from a judgment in a proceeding in which East Texas National Bank of Palestine (“the Bank”) sued Alan Acceptance Corporation (“Alan”) and Dr. Sherdeana Owens Estakhr (“the Dentist”) under a conversion theory. After a trial to the court, Alan was found liable for conversion of property in which the Bank had a security interest. A default judgment was taken against the Dentist, who is not a party to this appeal. Alan flies three points of error, and the Bank files one counterpoint. We will affirm.

The Dentist purchased dental equipment from E-Tex Dental. With invoice in hand, she went to the Bank and applied for a $20,000 loan, presumably to pay for the equipment. A security agreement was entered into, with all of the dental equipment as collateral, and the Bank filed a UCC-1. The loan proceeds were paid directly to the Dentist rather than to E-Tex Dental. In an unrelated transaction, she and Alan entered into a contract whereby Alan agreed to purchase some of the equipment, which the Dentist would then lease. Although the equipment had been delivered to the Dentist several months earlier, E-[514]*514Tex Dental issued another invoice reflecting that it was selling to Alan some of the same equipment which it had purportedly already sold to the Dentist. Alan paid E-Tex in full, then filed a UCC-1. The dentist defaulted on her loan and her lease. Alan repossessed some of the equipment, including a few items which were not on its lease agreement. The Bank then filed suit against Alan for conversion.

In its first point of error, although not stated in such a manner, Alan is apparently challenging the sufficiency of the evidence supporting the trial court’s findings of fact. We will presume, in the interest of justice, that it is complaining that the trial court erred when it found one or more of the following:

1. On October 8,1993, E/TEX DENTAL, INC. sold dental equipment to Dr. Sherdeana Owens Estakhr (“Dr.Estakhr”). E/TEX DENTAL, INC. delivered the dental equipment and placed the equipment in possession of Dr. Estakhr in Palestine, Texas, on or before November 5,1993.
3. East Texas National Bank of Palestine, Texas filed a UCC-1 with the Secretary of State on December 13,1993.
5. E/TEX DENTAL, INC. delivered an invoice dated October 8, 1993, for dental equipment to Alan Acceptance Corporation. Alan Acceptance Corporation paid for the dental equipment by check dated Jan. 14, 1994. The dental equipment was never placed in the possession of Alan Acceptance Corporation, but instead was im- . mediately leased to Dr. Estakhr.

While findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon jury questions, the trial judge’s findings of fact are not conclusive when a complete statement of facts appears in the record. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App. — Houston [14th Dist.] 1977, writ ref d n.r.e.); Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App. — Houston [14th Dist.] 1985), writ refd n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985). The court’s findings of fact are renewable for factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury’s answer. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App. — Houston [14th Dist.] 1990, no writ). When reviewing a judgment to determine factual insufficiency of the evidence, this court must consider and weigh all of the evidence, and should set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175,176 (Tex.1986).

Alan contends that the trial court erred in finding that the Bank’s security interest was superior to Alan’s where the Bank’s original UCC filing failed to list any secured creditor. The Bank filed a UCC-1, but did not complete the portion of the form which asked for the name of the secured party and its address. The Bank did, however, sign as the secured party through its executive vice president. The Bank argues that this put Alan on notice that there was a lien on the equipment, and it had a duty to further investigate. Citing Continental Credit Corp. v. Wolfe City Nat’l. Bank, 823 S.W.2d 687 (Tex.App. — Dallas 1991, no writ). The Bank’s most persuasive argument, ■ however, is that Alan never had a security or an ownership interest in the equipment at all. Consequently, its UCC-1, whether defective or not, is immaterial to their action against Alan. As the Bank points out, when E-Tex Dental delivered the equipment to the Dentist, she gained title to the equip[515]*515ment. According to Section 2.401(b) of the Texas Business and Commerce Code, “... title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods ...” TEX. BUS. & COM. CODE ANN. § 2.401(b) (Vernon 1994). Furthermore, E-Tex Dental’s representative testified that it sold the equipment to the Dentist. There is no documentary or testimonial evidence that the Dentist ever sold the equipment to Alan. There is also no evidence that she and Alan entered into a loan transaction wherein she executed a security agreement with the equipment as collateral. There is a second invoice from E-Tex Dental which states that the equipment was being sold to Alan but delivered to the Dentist, as well as a lease agreement of that equipment. From a review of the record, however, the equipment was delivered long before that second invoice was issued (although the invoice was backdated to reflect the original invoice date). We hold that the findings of fact, as stated earlier, are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Alan did not have a security interest in the equipment and, consequently, had no right to “repossess” it. Point of error one is overruled.

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Related

Middleton v. Kawasaki Steel Corp.
687 S.W.2d 42 (Court of Appeals of Texas, 1985)
City of Clute v. City of Lake Jackson
559 S.W.2d 391 (Court of Appeals of Texas, 1977)
Continental Credit Corp. v. Wolfe City National Bank
823 S.W.2d 687 (Court of Appeals of Texas, 1991)
Best v. Ryan Auto Group, Inc.
786 S.W.2d 670 (Texas Supreme Court, 1990)
Zieben v. Platt
786 S.W.2d 797 (Court of Appeals of Texas, 1990)
Kawasaki Steel Corp. v. Middleton
699 S.W.2d 199 (Texas Supreme Court, 1985)
Responsive Terminal Systems, Inc. v. Boy Scouts of America
774 S.W.2d 666 (Texas Supreme Court, 1989)
Fraser v. Goldberg
552 S.W.2d 592 (Court of Appeals of Texas, 1977)
Cain v. Bain
709 S.W.2d 175 (Texas Supreme Court, 1986)
Wagner v. Riske
178 S.W.2d 117 (Texas Supreme Court, 1944)
Keeney v. Commonwealth, Department of Highways
345 S.W.2d 481 (Court of Appeals of Kentucky, 1961)

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109 S.W.3d 511, 1998 Tex. App. LEXIS 5041, 1998 WL 596706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alan-acceptance-corp-v-east-texas-national-bank-of-palestine-texapp-1998.