Schultz v. General Motors Acceptance Corp.

704 S.W.2d 797, 1985 Tex. App. LEXIS 12865

• Court: Court of Appeals of Texas
• Decided: September 18, 1985
• Docket: 05-84-00726-CV
• Status: Published

Opinions

AKIN, Justice.

Richard Schultz appeals from a summary judgment rendered in a suit for the deficiency due on a secured debt. We hold that the trial court erred in granting summary judgment because appellee, General Motors Acceptance Corporation (“GMAC”), failed to establish its right to recover as a matter of law. Accordingly, we reverse the judgment of the trial court and remand the cause to that court.

In April 1978, Schultz purchased two highway truck tractors from a Chevrolet dealer under installment contracts. The contracts were then sold to GMAC. Schultz defaulted in April 1980, and in June surrendered the collateral pursuant to demand. GMAC re-sold the tractors for less than the balance due and sued Schultz for the deficiency. The trial court granted GMAC’s motion for summary judgment.

On appeal Schultz contends that the trial court erred in granting summary judgment because GMAC failed to establish as a matter of law that its sale of the tractors was conducted in a commercially reasonable matter. We agree with this contention because the affidavit of Joe Jewett, Special Collections Manager for GMAC, is not sufficient to support a summary judgment.

Jewett’s affidavit sets forth no facts concerning the sale, after foreclosure, of the tractors in question. Instead, the affidavit recites the legal conclusion that the tractors were disposed of “at public sale in conformity with reasonable commercial practices among dealers in this type industry in a commercially reasonable manner.” A legal conclusion in an affidavit is insufficient to establish the existence of a fact in support of a motion for summary judgment. Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex.1984). Thus, GMAC failed to establish by competent summary judgment evidence that the sale occurred in a commercially reasonable manner. Accordingly, the judgment of the trial court must be reversed and the cause remanded.

HOWELL, J., concurring.