Price Auto hired David Chad Kuykendall, doing business as Chad’s Auto Recovery, to repossess a 1998 Cadillac DeVille owned by Carlous Sanders, who was in default on his motor vehicle retail installment sales contract. On May 11, 2009, Kuykendall went to the apartment complex where Sanders lived and located the Cadillac in a parking space facing Sanders’s apartment. Using a key provided by Price Auto, Kuykendall entered the car and started the engine. Sanders testified that he was descending the stairs from his apartment when he first heard his car’s ignition and then saw a person inside his car backing the vehicle out of its parking space. Believing his car to be in the process of being stolen, Sanders approached the vehicle. As Sanders approached the driver’s side door, the car moved onto his foot, causing him to fall to the ground and suffer a head injury. The car then rolled over Sanders’ leg as it exited the parking lot. Kuykendall did not stop to render aid and exited the apartment complex. Kuykendall proceeded to attach the vehicle to his tow truck and deliver it to Price Auto.
Sanders sued Price Auto and Kuykendall for his injuries, alleging that they were liable for the breach of the peace that occurred during the repossession.
Sanders was awarded $20,281.39 in damages at trial. Price Auto appealed. JUDGE MORRIS In a single issue, Price Auto asserts that the trial court erred in rendering judgment for Sanders because it conclusively established that the repossession was complete before any alleged breach of the peace occurred. For the reasons that follow, we affirm the trial court’s judgment.
A secured party may take possession of collateral after a default without judicial process “if it proceeds without breach of the peace.” Tex. Bus. & Com. Code Ann. § 9.609(a)(1) &(b)(2) (West 2011). The rule imposing liability for breaches of the peace is based on longstanding policy concerns about the exercise of force or violence and recognizes that society’s interest in preserving the peace is more important than a secured party’s right to possession. When a secured party chooses to pursue a nonjudicial repossession, it assumes the risk that a breach of the peace might occur.
There was evidence that Sanders heard his car’s ignition and saw the vehicle being backed out of its parking space. Before Kuykendall left the vicinity of the parking spot or the parking lot, Sanders approached the front of the car and demanded the unidentified driver get out of the vehicle. According to Sanders and two other witnesses, during this confrontation, the vehicle rolled over Sanders’s foot causing him to fall and sustain further injuries. This evidence demonstrates that Sanders confronted Kuykendall as he was in the process of removing the vehicle from its parking place and attempting to drive it from Sanders’s apartment complex. Because the evidence does not conclusively establish repossession was completed, Price Auto has not demonstrated any reversible error in connection with the trial court’s determination that a breach of the peace occurred in the process of the repossession.
In reaching this conclusion, we find our sister court’s analysis of what constitutes a breach of peace instructive. See Chapa v. Traciers & Associates, 267 S.W.3d 386 (Tex. App. 2008). In Chapa, the vehicle being repossessed was parked on a public street when the recovery agent hooked it up to his tow truck, while remaining in his truck, and drove away. The recovery agent had towed the vehicle out of sight of the premises when he noticed the towed vehicle’s engine running. After he discovered Chapa’s two children inside the vehicle being towed, the agent immediately drove back to Chapa’s home and returned the vehicle and the children. In affirming the trial court’s take-nothing summary judgment in favor of the defendants, the appeals court concluded that no breach of the peace occurred because, among other things, the recovery agent had removed the vehicle from a public street without confrontation or objection at, near, or incident to the seizure of property and without trespassing on Chapa’s premises. Instead, he actively avoided confrontation and immediately desisted repossession efforts and returned the children upon learning of their presence.
The Chapa court also distinguished a Florida case remarkably similar to the facts before us. In Nixon v. Halpin, 620 So.2d 796 (Fla. Dist. Ct. App. 1993), the vehicle’s owner mistook the repossession agent for a car thief and, along with an office mate, attempted to stop her from leaving with the vehicle. While she was driving away, the repossession agent struck the office mate causing him severe injuries. The court held that the owner had a right to object to the attempted repossession and, if the repossessor had not already removed the vehicle when the owner objected, the continuation of the repossession was no longer peaceable and without breach of the peace. The court therefore reversed the trial court’s summary judgment in favor of the secured party.
Having concluded the trial evidence is legally sufficient to support the trial court’s adverse finding challenged by appellant, we affirm the trial court’s judgment.
CRITICAL THINKING:
What is the argument that this judge is making? How good are his reasons? Is there any information that you feel he left out that would help you come to a conclusion on the issue presented in this case?
ETHICAL DECISION MAKING:
Return to the WPH process of ethical decision making. Suppose you were the manager of Price Auto Sales, Inc., in this situation. How might you have behaved differently if you were following the Golden Rule?