Santander Consumer USA, Inc. v. Mario A. Mata Centroplex Automobile Recovery, Inc. Blake Thornton Vandusen, John F. Thompson D/B/A Centroplex Automobile Recovery, Inc. And Redshift Investigation, Inc.

ACCEPTED
03-14-00782-CV
6887112
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/11/2015 1:16:08 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00782-CV

SANTANDER CONSUMER USA, INC. § IN THE THIRD FILED IN
Appellant, § 3rd COURT OF APPEALS
§ AUSTIN, TEXAS
v. § 9/11/2015 1:16:08 PM
§ JEFFREY D. KYLE
MARIO A. MATA, CENTROPLEX § COURT OF APPEALSClerk
AUTOMOBILE RECOVERY, INC., §
JOHN F. THOMPSON d/b/a §
CENTROPLEX AUTOMOBILE §
RECOVERY, INC. REDSHIFT §
INVESTIGATION, INC., and BLAKE §
THORNTON VANDUSEN, §
Appellees. § AUSTIN, TEXAS
§

APPELLANT SANTANDER CONSUMER USA, INC.’S RESPONSE IN
OPPOSITION TO MOTION FOR LEAVE TO AMEND AND
SUPPLEMENT BRIEF OF PLAINTIFF-APPELLEE, MARIO A. MATA
Appellant, SANTANDER CONSUMER USA, INC., files this response to the
Motion for Leave to Amend and Supplement Brief of Plaintiff-Appellee, Mario A.
Mata and asks the Court to deny the motion.
Introduction
1. Appellant is SANTANDER CONSUMER USA, INC. ("SCUSA").
2. Appellee and movant herein is MARIO A. MATA (“Mata”).
3. Mata, who is an attorney, filed his brief pro se on February 17, 2015.
4. On April 10, 2015, Mata filed a Notice of Appearance and Designation
of Lead Counsel, designating E. Jason Billick and William B. Gammon of the
Gammon Law Office, P.L.L.C. as counsel for Mata in this appeal.
5. On August 26, 2015, this Court notified the parties that oral argument
is set for September 23, 2015.
 6. Mata’s counsel argues that Mata’s brief must be amended and
supplemented “so that it may accurately ‘acquaint to court with the issues in [this]
case and . . . present [an] argument that will enable the court to decide the case.’ Tex.
R. App. P. 38.9.” (Mata’s Motion at ¶ 6.)
Argument & Authorities
7. Although the Court has the authority under Texas Rule of Appellate
Procedure 38.7 to grant a party’s motion to amend or supplement a brief, this is not
a case in which the Court should do so. While the appellate court has some discretion
in allowing a party to amend or supplement a brief, a party cannot wait months after
briefing has closed and then argue that justice requires the party to be permitted to
present a point of error not previously raised in its brief. See Standard Fruit &
Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998).
8. Mata’s counsel has represented him in this appeal for five (5) months,
but Mata’s counsel took no action previously to move this Court to amend and
supplement Mata’s brief. Now, at this late hour, just twelve (12) days before oral
argument, Mata moves this Court to amend and supplement his brief. Mata’s counsel
fails to show any good cause for their failure to move this Court to amend and
supplement Mata’s brief prior to this time.
9. Mata’s counsel states that a supplemental and amended brief can be filed
no later than September 15, 2015—just eight days before oral argument.

Appellant Santander Consumer USA, Inc.’s Response in Opposition
to Motion for Leave to Amend and Supplement Brief 2
 10. The Court should deny Mata’s motion to amend and supplement his brief
because oral argument is scheduled for September 23, 2015; the filing of an amended
and supplemented brief will delay the submission of the appeal, and Mata’s motion
to amend and supplement his brief will result in prejudice to SCUSA if the Court
permits the amendment and supplementation. Specifically, if Mata is allowed to
amend and supplement his brief by September 15, 2015, SCUSA will only have a few
days to respond to the amended and supplemented brief and to prepare for oral
argument.
11. Further, Mata attempts to raise for the first time on appeal an argument
not presented in the trial court—that SCUSA’s alleged breach of the retail installment
contract invalidated the Arbitration Provision or excused Mata’s performance.
However, in his pleadings, Mata admitted that the Arbitration Provision had been
executed by the parties. (CR 202-210.) Mata did not challenge the validity of the
Arbitration Provision; rather, he argued that his claims fell within an exception to the
Arbitration Provision. (CR 202-210.) A party fails to preserve a complaint for appeal
when the complaint is not raised in the trial court. Henry v. Fin. Cas. & Sur. Inc., No.
01-13-00672-CV, 2014 Tex. App. LEXIS 6524, at *7 (Tex. App.—Houston [1st
Dist.] Jun 17, 2014, no pet.) (mem. op.). Whatever the merits of his contentions may
be, Mata has not shown that this argument was presented to the trial court. It
therefore did not factor into trial court's decision and cannot be part of the appellate
court’s review on appeal. See Tex. R. App. P. 33.1; Cenoplex, Inc. v. Fox,
03-12-00758-CV, 2014 Tex. App. LEXIS 1985, at *24-25 n. 4 (Tex. App.—Austin
Feb. 21, 2014, no pet.) (mem. op.).

Appellant Santander Consumer USA, Inc.’s Response in Opposition
to Motion for Leave to Amend and Supplement Brief 3
 12. A party must show that a complaint was preserved for appeal when
seeking leave of court to amend or supplement a brief. See Majeed v. Hussain, No.
03-08-00679-CV, 2010 Tex. App. LEXIS 8477, at *26-27 (Tex. App.—Austin Oct.
22, 2010, no pet.) (mem. op.). An appellate court is entitled to decline a party’s
attempt to add a new claim in an amended or supplemented brief because justice does
not require consideration of the new point of error. See Standard Fruit, 985 S.W.2d
at 65.
13. Mata fails to show that he preserved the complaint for appeal that
SCUSA’s alleged breach of the retail installment contract invalidated the Arbitration
Provision or excused Mata’s performance. Mata has waived this issue on appeal.
Mata fails to show that justice requires that Mata be allowed to amend and
supplement his brief.
14. This Court should decline to allow Mata to amend and supplement his
brief assert to a new complaint on appeal.
Conclusion
15. Mata fails to show good cause for the failure to move for leave to amend
or supplement his brief prior to this time and just shortly prior to oral argument
although he has been represented by counsel in this appeal for five months. The
filing of an amended and supplemented brief will delay the submission of the appeal,
and Mata’s motion to amend and supplement his brief will result in prejudice to
SCUSA. And, Mata’s Motion for Leave to Amend and Supplement Brief is an
impermissible attempt to present a new complaint that was not preserved for appeal.

Appellant Santander Consumer USA, Inc.’s Response in Opposition
to Motion for Leave to Amend and Supplement Brief 4
 Prayer
For these reasons, Appellant, Santander Consumer USA, Inc. asks the Court
to deny Mata’s Motion for Leave to Amend and Supplement Brief.
Respectfully submitted,
DEVLIN, NAYLOR & TURBYFILL, P.L.L.C.

/s/ Deborah C. S. Riherd
DONALD L. TURBYFILL
State Bar of Texas No. 20296380
dturbyfill@dntlaw.com [E-MAIL]
DEBORAH C. S. RIHERD
State Bar of Texas No. 24038904
driherd@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.

Appellant Santander Consumer USA, Inc.’s Response in Opposition
to Motion for Leave to Amend and Supplement Brief 5
 CERTIFICATE OF SERVICE
The undersigned does hereby certify that a true and correct copy of the above
and foregoing APPELLANT SANTANDER CONSUMER USA, INC.’S
RESPONSE IN OPPOSITION TO MOTION FOR LEAVE TO AMEND AND
SUPPLEMENT BRIEF OF PLAINTIFF-APPELLEE, MARIO A. MATA was
served on the parties listed below 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 September 11, 2015:

E. Jason Billick John S. Kenefick
William B. Gammon JKenefick@MacdonaldDevin.com
firm@gammonlawoffice.com John R. Sigety
1201 Spyglass Drive, Suite 100 JSigety@MacdonaldDevin.com
Austin, Texas 78746 MacDonald Devin, P.C.
(512) 472-8909 [PHONE] 3800 Renaissance Tower
(888) 545-4279 [FACSIMILE] 1201 Elm Street
ATTORNEYS FOR PLAINTIFF Dallas, Texas 75270-2130
MARIO A. MATA (214) 744-3300 [PHONE]
(214) 747-0942 [FACSIMILE]
David L. Treat ATTORNEYS FOR APPELLEE
dlt@lstlaw.com BLAKE THORNTON VANDUSEN
Christopher A. Lotz
clotz@lstlaw.com Karen C. Burgess
Lindow Stephens Treat, LLP kburgess@richardsonburgess.com
The Vogue Building Richardson + Burgess LLP
600 Navarro Street, Sixth Floor 221 West 6th Street, Suite 900
San Antonio, Texas 78205 Austin, Texas 78701-3445
(210) 227-2200 [PHONE] (512) 482-8808 [PHONE]
(210) 227-4602 [FACSIMILE] (512) 499-8886 [FACSIMILE]
ATTORNEYS FOR APPELLEES ATTORNEY FOR APPELLEES
REDSHIFT INVESTIGATION INC. CENTROPLEX AUTOMOBILE
RECOVERY, INC. AND JOHN F.
THOMPSON

/s/ Deborah C. S. Riherd
DEBORAH C. S. RIHERD

Appellant Santander Consumer USA, Inc.’s Response in Opposition
to Motion for Leave to Amend and Supplement Brief 6