Wilson v. General Motors Acceptance Corp.

OPINION ON MOTIONS FOR REHEARING AND REHEARING EN BANC

The Court has considered the Wilsons’ motion for rehearing and rehearing en banc, which we deny. However, we write this opinion to address several issues raised by the dissent from the denial of rehearing and rehearing en banc.

The dissent argues that GMAC’s motion for summary judgment contains no grounds for summary judgment and is legally insufficient as a matter of law under McConnell v. Southside Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993). However, this issue was not raised by the Wilsons’ brief or in their motion for rehearing as a ground for reversal. This Court may not reverse the judgment of a trial court for a reason not raised in a point of error. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993).

The dissent argues that GMAC failed to plead that the sale of the vehicle was conducted in a commercially reasonable manner. We agree that commercial reasonableness of the sale was an element of GMAC’s cause of action; however, we know of no authority that requires GMAC to use the words “commercially reasonable” in its pleadings to describe the sale of the vehicle.

The dissent believes that the Wil-sons challenged GMAC’s summary judgment affidavit as hearsay. In their counter-affidavit, the Wilsons alleged that the summary judgment evidence did not constitute proof that GMAC sent notice of the sale. They also alleged that Shannon’s affidavit did not constitute evidence that the sale was conducted in a commercially reasonable manner. This simply is not a hearsay objection. We read appellants’ objections to be a challenge to the sufficiency of the summary judgment evidence to prove the requisite elements, not a hearsay objection.

Finally, the dissent complains that Shannon did not state in her affidavit that the sale of the vehicle was conducted in a commercially reasonable manner, even though she gave detailed facts about the sale. Not only is such a statement not required, it would have been improper. Affidavits must state facts, not legal conclusions. Legal conclusions or conclusory statements will not support summary judgment as a matter of law. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991).

We OVERRULE the Wilsons’ motions for rehearing and rehearing en banc.

*824O’CONNOR, J., dissents from the denial of rehearing.

On motion for rehearing en banc, OLIVER-PARROTT, C.J., and COHEN, HUTSON-DUNN, MIRABAL, WILSON, HEDGES, ANDELL, and TAFT, JJ., vote to deny.

O’CONNOR, J., dissents from the denial of rehearing en banc.