In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00393-CV ___________________________
BRENT MEYERHOFF AND RHONDA BARR, Appellants
V.
PACIFIC UNION FINANCIAL, LLC, Appellee
On Appeal from the 342nd District Court Tarrant County, Texas Trial Court No. 342-298779-18
Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. INTRODUCTION
This case concerns a residential mortgage-loan dispute that was resolved by
summary judgment when the trial court dismissed Appellant Brent Meyerhoff’s claims
with prejudice and granted Appellee Pacific Union Financial, LLC’s counterclaim for
foreclosure. Meyerhoff alleges three points on appeal: (1) the trial court prematurely
granted Appellee’s motion for summary judgment, (2) fact issues precluded summary
judgment on Meyerhoff’s claims, and (3) the summary judgment was improper on
Appellee’s counterclaim because it was not properly pleaded or supported by
evidence. We also identify one issue that neither party has brought to our attention:
summary judgment was rendered against a party who was never joined and who never
entered an appearance in the trial court proceedings, Rhonda Barr. Barr is the wife of
Meyerhoff. Though Barr was listed in the notice of appeal, we acquire jurisdiction
only over those parties who were parties to the trial court’s judgment. We therefore
vacate the trial court’s judgment as to Barr and affirm the trial court’s judgment as to
Meyerhoff.
II. BACKGROUND
Meyerhoff signed a note (Note) on May 29, 2015, payable to Loan Simple, Inc.
The Note provided a thirty-year term with monthly payments due on the first day of
every month. The Note contained an allonge, also dated May 29, 2015, which stated,
2 “PAY TO THE ORDER OF: WITHOUT RECOURSE LOAN SIMPLE, INC.
and its successors and assign[s].” The allonge was signed by Loan Simple’s CEO.
Also on May 29, 2015, Meyerhoff and Barr 1 signed a Deed of Trust to secure
the repayment of the Note and their performance under the Deed of Trust and the
Note. The Deed of Trust granted Loan Simple a lien and power of sale on certain
real property and improvements (Property). The Deed of Trust named Mortgage
Electronic Registration Systems, Inc. (MERS) as beneficiary “solely as nominee for
[Loan Simple].” The Deed of Trust was recorded on June 3, 2015, in Tarrant County.
The record reflects that on October 12, 2017, MERS transferred and assigned
the Deed of Trust to Appellee. The assignment was recorded in Tarrant County. The
record contains an affidavit in which Appellee’s “limited assistant vice president,”
Donald Edwards, averred that Appellee is the “current legal owner and holder of the
Note.” In his affidavit, Edwards also stated that Meyerhoff had failed to make his
June 1, 2017 payment and all subsequent payments. Meyerhoff did not dispute that
he had failed to make the June 1, 2017 payment and all subsequent monthly
payments.
In an August 2, 2017 certified letter, Appellee notified Meyerhoff that he was in
default for missing the prior three months of payments ($9,848.01); that he owed late
charges ($1,210.86); and that he owed an escrow advance ($9,311.82), minus an
unapplied balance ($2,404.44), for a total amount of $17,966.25 due to cure the
1 Meyerhoff signed the Deed of Trust for Barr as her “Attorney-in-Fact.”
3 default. The notice gave Meyerhoff until September 6, 2017, to cure the default or
the maturity of the Note would be accelerated and the Property would be sold under
the Deed of Trust. Meyerhoff presented no evidence that he had cured or had
attempted to cure the default.
In an October 5, 2017 certified letter, Appellee’s counsel sent Meyerhoff and
Barr notices of acceleration, stating that the entire balance ($290,251.16) on the Note
was then due. In a November 13, 2017 certified letter, Appellee’s counsel sent
Meyerhoff and Barr notices of a foreclosure sale, stating that the trustee or a
substitute trustee would be conducting a foreclosure sale at the Tarrant County
Courthouse on Tuesday, December 5, 2017, at 10:00 a.m.
The morning that the foreclosure sale was scheduled to take place, Meyerhoff
filed a Chapter 13 bankruptcy petition, which stayed the foreclosure sale. The
bankruptcy case was dismissed on December 27, 2017, because Meyerhoff had failed
to file required documents, including certain property schedules, a statement of
financial affairs, and a bankruptcy plan or summary. New notices of foreclosure sale,
dated January 25, 2018, were sent to Meyerhoff and Barr. The notices stated that the
foreclosure sale would take place on April 3, 2018, at 10:00 a.m., at the Tarrant
County Courthouse.
On April 2, 2018, Meyerhoff filed his original petition and application for
temporary restraining order, bringing various claims, including for violations of the
Texas Debt Collection Practices Act (TDCPA), for violations of the Texas Property
4 Code, and alternatively for breach of contract. On the same day, the trial court signed
a temporary restraining order, enjoining Appellee from conducting the foreclosure
sale.
On April 20, 2018, Appellee answered Meyerhoff’s claims and raised a
counterclaim for foreclosure against Meyerhoff and Barr. In its single cause of action
labeled “Suit for Foreclosure,” Appellee stated as follows:
18. Defendant seeks a judgment for judicial foreclosure allowing it to enforce its lien against the Property in accordance with the Security Instrument and Texas Property Code section 51.002.
19. Alternatively, Defendant seeks a judgment for foreclosure together with an order of sale issued to the Tarrant County sheriff or constable, directing the sheriff or constable to seize and sell the Property in satisfaction of the Loan Agreement debt, pursuant to Texas Rule of Civil Procedure 309.
On July 10, 2018, Appellee filed a motion for summary judgment, asserting
traditional summary-judgment grounds on each of Meyerhoff’s claims and on its
counterclaim. Appellee also included a no-evidence challenge to Meyerhoff’s breach-
of-contract claim, arguing that Meyerhoff had produced no evidence of the second,
third, and fourth elements of such a claim. Meyerhoff filed a response but attached
no summary-judgment evidence. Meyerhoff claimed that one of the parties in the
chain of title lacked “capacity” because it did not exist at the time of the loan
origination. Further, Meyerhoff claimed that Appellee was making an improper use
of deemed admissions. Meyerhoff also challenged Edwards’s affidavit as containing
inadmissible, conclusory statements.
5 On August 31, 2018, the trial court signed a final summary judgment, ordering
that Meyerhoff take nothing on his claims, reciting that Appellee was the current
holder of the Note and assignee of the Deed of Trust, that a default had occurred on
the Note, that the current outstanding balance due on the Note was $315,522.77, and
that Appellee could enforce the Note through nonjudicial foreclosure as provided in
the Deed of Trust and Section 51.002 of the Property Code. The final summary
judgment did not contain rulings on any of Meyerhoff’s evidentiary objections.
With respect to Barr’s presence in the trial-court proceedings, the record
reflects that the parties periodically treated her as a party but that there is no
indication that she was ever served with process on Appellee’s counterclaim or that
she had ever entered an appearance before the trial court rendered judgment. The
original petition in this matter was filed by Meyerhoff, and the caption and the body
of the petition listed only him as the plaintiff. The TRO issued by the trial court
granted only the relief requested by Meyerhoff, but the confusion begins in the TRO
because its caption includes Barr.
Next, Appellee filed a counterclaim that joined Barr and stated,
“Plaintiffs/Counter-Defendants Brent Meyerhoff and Rhonda Jane Barr (‘Plaintiffs’)
have previously appeared herein and may be served through their counsel of record
via ECF notification.” The caption of this pleading also listed Barr. But Barr never
appeared.
6 Appellee then filed its motion for summary judgment against both Meyerhoff
and Barr, and the caption of this pleading included Barr as a plaintiff. An answer to
the counterclaim and a response to the motion for summary judgment were filed, but
both of those documents were filed on behalf of only Meyerhoff, and their captions
listed only Meyerhoff as the plaintiff. Appellee then filed a reply in support of its
summary-judgment motion with a caption that again included Barr as a plaintiff.
The trial court’s summary judgment listed both Meyerhoff and Barr as parties
and rendered judgment against them. A motion to vacate was subsequently filed, but
that motion’s caption also listed only Meyerhoff as the plaintiff; the motion sought
relief only on behalf of “Plaintiff and Counter-Defendant” (both singular in form)
and never mentioned Barr. That motion was overruled by operation of law. See Tex.
R. Civ. P. 329b(c).
Meyerhoff filed a notice of appeal. Barr is listed as a party to the notice of
appeal and is also listed on the Appellants’ brief. Barr does not raise any issue in the
brief that she was not a party to the trial proceedings.
III. SUMMARY JUDGMENT AS TO MEYERHOFF WAS PROPER
We will initially deal with the propriety of the summary judgment granted
against Meyerhoff.
A. Standards of Review
We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d
860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable
7 to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding evidence contrary to the nonmovant unless reasonable jurors
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). We indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A
defendant that conclusively negates at least one essential element of a plaintiff’s cause
of action is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez,
315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). A counter-plaintiff is
entitled to summary judgment on a cause of action if it conclusively proves all
essential elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710
S.W.2d 59, 60 (Tex. 1986).
B. Analysis
1. Timing of summary-judgment ruling
In Meyerhoff’s first point, he argues that the trial court prematurely granted
summary judgment. However, other than providing a timeline showing that their
lawsuit was filed on April 2, that Appellee’s motion for summary judgment was filed
on July 10, and that summary judgment was granted on August 31, Meyerhoff
provides no explanation as to why summary judgment was premature.
A challenge to a summary-judgment proceeding as premature applies only to a
no-evidence motion for summary judgment. See Allen v. United of Omaha Life Ins. Co.,
236 S.W.3d 315, 326 (Tex. App.—Fort Worth 2007, pet. denied) (recognizing that the
8 adequate time for discovery provision of summary-judgment rule did not apply to
traditional summary-judgment motions). Compare Tex. R. Civ. P. 166a(i) (providing
for no-evidence motion “[a]fter an adequate time for discovery”), with Tex. R. Civ. P.
166a(a) (providing for traditional motion “at any time after the adverse party has
appeared or answered”). Appellee filed a hybrid motion, seeking traditional summary
judgment on its counterclaim and on all of Meyerhoff’s claims. Appellee made a no-
evidence challenge only with respect to Meyerhoff’s breach-of-contract claim (which
was in addition to Appellee’s traditional ground seeking summary judgment on
Meyerhoff’s breach-of-contract claim). Thus, breach of contract is the only claim to
which Meyerhoff’s first point could apply.
We will resolve Meyerhoff’s breach-of-contract claim on the basis of Appellee’s
traditional motion for summary judgment. We need not reach the propriety of the
trial court’s granting the no-evidence motion. See Poag v. Flories, 317 S.W.3d 820, 825
(Tex. App.—Fort Worth 2010, pet. denied) (“[H]ere we will review the propriety of
granting the traditional summary judgment first because it is dispositive.”).
But to even reach the merits of this point it needed to be preserved. When a
party contends that he has not had an adequate opportunity for discovery before the
consideration of a traditional summary-judgment motion, the party requesting
additional time must file an affidavit stating the reasons for needing additional
discovery or a verified motion for continuance. See Tex. R. Civ. P. 166a(g), 251, 252;
Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). Thus, when an
9 “appellant d[oes] not file an affidavit or a verified motion, he fail[s] to preserve his
complaint concerning discovery for our review.” Nemeth v. Republic Title of Tex., Inc.,
No. 05-17-00928-CV, 2018 WL 3062393, at *2 (Tex. App.—Dallas June 21, 2018, no
pet.) (mem. op.); cf. Gilford v. Tex. First Bank, No. 01-13-00384-CV, 2014 WL 3408698,
at *7–8 (Tex. App.—Houston [1st Dist.] July 10, 2014, pet. denied) (mem. op.)
(holding no abuse of discretion when trial court granted no-evidence motion for
summary judgment and implicitly ruled that an adequate time for discovery had
passed because the nonmovant “did not raise this argument before the trial court
ruled on [the movant’s] summary[-]judgment motions”; “did not file an affidavit
explaining the need for further discovery, nor did he file a verified motion for
continuance”; did “not contend that the time the case was pending in the trial court
was insufficient for discovery to be completed”; did not “address the nature of the
case or the nature of the evidence needed to controvert [the movant’s] no-evidence
summary[-]judgment motion”; and did not “set out the amount of discovery that had
already taken place, the additional discovery that needed to take place, or why he
could not obtain the needed discovery before the submission of the summary[-]
judgment motions”).
In his summary-judgment response, Meyerhoff did not object that summary
judgment would be premature based on needed discovery, nor did he file a verified
motion for continuance or an affidavit requesting additional time to respond. See
Robeson v. Mortg. Elec. Registration Sys., Inc., No. 02-10-00227-CV, 2012 WL 42965, at *4
10 (Tex. App.—Fort Worth Jan. 5, 2012, pet. denied) (mem. op.) (holding no abuse of
discretion in granting no-evidence summary judgment when homeowner “failed to
file an affidavit or verified motion for continuance explaining the need for further
discovery”). Indeed, even in Meyerhoff’s unverified motion to vacate, he did not
explain what discovery was needed or otherwise apprise the trial court of why he
needed additional time for discovery. Therefore, Meyerhoff’s complaint that the trial
court prematurely granted summary judgment was waived. See Nemeth, 2018 WL
3062393, at *2.
Accordingly, we overrule Meyerhoff’s first point.
2. The affidavit filed by Appellee in support of its motion for summary judgment is not conclusory.
Appellee moved for traditional summary judgment on Meyerhoff’s claims for
(1) violations of the TDCPA, (2) violations of the property code, (3) breach of
contract, (4) injunctive relief, (5) a declaratory judgment, and (6) attorney’s fees.
Meyerhoff argues that Appellee’s summary-judgment proof was defective because
Edwards’s affidavit was conclusory.
With respect to Meyerhoff’s objections to Edwards’s affidavit, Meyerhoff failed
to obtain rulings from the trial court on his objections. In order to preserve a
complaint for appeal, a party who makes objections to the form rather than the
substance of an opponent’s summary-judgment evidence must object and obtain a
ruling on its objection. Seim v. Allstate Texas Lloyds, 551 S.W.3d 161, 163–64 (Tex.
11 2018). There remains a split of authority regarding whether the failure to detail the
basis for personal knowledge constitutes a defect of form or substance. Wash. DC
Party Shuttle, LLC v. IGuide Tours, LLC, 406 S.W.3d 723, 731–36 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied) (en banc) (detailing split in authority); see also
Hobson v. Francis, No. 02-18-00180-CV, 2019 WL 2635562, at *5 (Tex. App.—Fort
Worth June 27, 2019, no pet.) (stating that “[w]hen a party objects to formal defects in
summary-judgment affidavits, such as lack of personal knowledge[,] . . . the opposing party must
be given an opportunity to amend the affidavits” to meet objections (emphasis
added)).
We need not resolve this split because the affidavit establishes that it is based
on personal knowledge. The affiant detailed the records that he had reviewed and
concluded that “[t]he facts stated within this declaration are based on personal
knowledge obtained from my review of the records and documents of [Appellee]
pertaining to the Loan of Brent Meyerhoff and Rhonda Jane Barr, Plaintiffs in the
current lawsuit, including the records attached as exhibits to this affidavit.” Such a
statement is adequate to establish the basis of personal knowledge. See Houle v. Capital
One Bank (USA), N.A., 570 S.W.3d 364, 373 (Tex. App.—El Paso Dec. 19, 2018, pet.
denied) (op. on reh’g) (cataloging cases); see also Long v. Sw. Funding, L.P., No. 03-15-
00020-CV, 2017 WL 672445, at *5 (Tex. App.—Austin Feb. 16, 2017, no pet.) (mem.
op.) (“[A]n affidavit can still establish an affiant’s personal knowledge of the
referenced documents even if a third-party created the documents.”).
12 3. Appellee met its summary-judgment burden.
Meyerhoff further argues that Appellee’s motion for summary judgment
improperly relied on deemed admissions, which he claims were simply requests for
him to admit or deny pure questions of law. We do not reach this question.
Assuming without deciding that the deemed admissions are not competent to support
summary judgment, Appellee’s other summary-judgment proof conclusively negated
Meyerhoff’s factual assertion that formed the basis of his claims for relief. That is, the
summary-judgment record establishes that Loan Simple had capacity at the time of
origination, so all of Meyerhoff’s claims were properly dismissed by summary
judgment.
Meyerhoff’s theory of liability can be summarized as challenging whether the
original lender, Loan Simple, was registered with the Texas Secretary of State at the
time of the Note’s origination and the assignment of the Deed of Trust. Our
understanding of Meyerhoff’s theory is that if Loan Simple were not an active
corporation, it could not assign its interest in the Note to Appellee and all of
Appellee’s subsequent communications and actions would be actionable under
Meyerhoff’s various statutory and common-law theories of liability.2
2 In our view, Meyerhoff’s argument could be construed as challenging Appellee’s standing to foreclose because of defects in Appellee’s chain of assignments. See Vazquez v. Deutsche Bank Nat’l Tr. Co., N.A., 441 S.W.3d 783, 786 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (“If foreclosure on a home is initiated by a person or entity whose right to foreclose is contingent upon the validity of an
13 Meyerhoff’s argument is premised on a search of the Colorado Secretary of
State’s business database in which he purported to discover that Loan Simple had
been dissolved prior to the Note’s origination. While the record does contain
“Articles of Dissolution” indicating that since 2011, “Loan Simple Inc.” has been
dissolved pursuant to Colorado law, Appellee attached to its motion for summary
judgment a “Periodic Report” from the Colorado Secretary of State indicating the
continued existence and active status of “Loan Simple, Inc.” [Emphasis added.]
Appellee also attached a printout from the Texas Comptroller’s entity search,
indicating that “Loan Simple, Inc.” has been registered to do business in Texas since
2006 and is an active corporation. According to Appellee, Meyerhoff has simply
missed the comma and thus ended up confusing “Loan Simple Inc.” with “Loan
Simple, Inc.”—two separate and distinct entities. 3
The summary-judgment record conclusively establishes that “Loan Simple,
Inc.” was in existence at the time that the Loan was originated. Thus, Loan Simple,
Inc.’s indorsement in blank on the Note was effective to make it payable to one in
lawful possession of it. See Henning v. OneWest Bank FSB, 405 S.W.3d 950, 958 (Tex.
assignment, the homeowner has standing to attack the assignment and thereby seek to stop or reverse the foreclosure.”). 3 We do note that there appears to be continuity between the entities as Jason Dozois was the individual who filed the Articles of Dissolution for Loan Simple Inc.; Nathan Dozois was the individual who signed the Allonge to the Note as CEO of Loan Simple, Inc.; and both are listed on the public-information report from the Texas Comptroller’s entity search as officers of Loan Simple, Inc.
14 App.—Dallas 2013, no pet.) (“[W]hen endorsed in blank, ‘an instrument becomes
payable to bearer and may be negotiated by transfer of possession alone.’” (quoting
Tex. Bus. & Com. Code Ann. § 3.205(b))); Robeson, 2012 WL 42965, at *4 (“An
instrument containing a blank endorsement is payable to the bearer and may be
negotiated by transfer of possession alone.”). Because Appellee established lawful
ownership of the Note, it had standing to accelerate the Note. See EverBank, N.A. v.
Seedergy Ventures, Inc., 499 S.W.3d 534, 543 (Tex. App.—Houston [14th Dist.] 2016, no
pet.) (holding that “affidavit testimony that it possessed the note, as well as a copy of
the note indorsed in blank . . . was sufficient to show that EverBank had standing to
foreclose as the holder of the note”).
Further, MERS, acting as nominee for Loan Simple, was able to transfer and
assign any interest in the Deed of Trust to Appellee. See Robeson, 2012 WL 42965, at
*5 (discussing MERS and recognizing its role in transferring mortgage instruments).
Thus, Appellee qualifies as the mortgagee and also has standing to pursue foreclosure
under the Deed of Trust. See Tex. Prop. Code Ann. §§ 51.001(4)(C), .002; Bierwirth v.
BAC Home Loans Servicing, L.P., No. 03-11-00644-CV, 2012 WL 3793190, at *5 (Tex.
App.—Austin Aug. 30, 2012, pet. denied) (mem. op.) (“[Section] 51.002 of the
property code authorizes a mortgagee to sell real property under a power of sale
conferred by a deed of trust.” (internal quotation marks omitted)). 4
4 Even if Meyerhoff succeeded on his claim that the record failed to establish assignment of the Note to Appellee, his claim that Appellee lacked the power to
15 Outside of Meyerhoff’s challenge to the capacity of Loan Simple’s purportedly
creating gaps in Appellee’s chain of title, there is no argument or evidence challenging
Appellee’s standing to send notices of default and acceleration or to pursue a
foreclosure sale. 5 Indeed, as Meyerhoff makes clear in his appellate brief, Meyerhoff’s
TDCPA claim, property-code claim, and his alternate breach-of-contract claim are all
foreclose still fails. He does not claim that there is inadequate proof of the assignment of the Deed of Trust. The assignment of the Deed-of-Trust rights gave Appellee the power to foreclose, even if it were not assigned the Note:
In fact, Texas law does not require the person or entity seeking foreclosure to be the owner or holder of the note. See Morlock L.L.C. v. Bank of N.Y., 448 S.W.3d 514, 518 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (noting that the Fifth Circuit had “correctly recognized that the ‘weight of Texas authority’ supports the proposition that the party owning the deed of trust need not also show that it is the owner or holder of the note in order to foreclose[]”); Morlock L.L.C. v. Nationstar Mor[t]g. L.L.C., 447 S.W.3d 42, 47 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“Morlock’s allegation that Nationstar is not the owner or holder of the Note is irrelevant with respect to Nationstar’s right to enforce the Deed of Trust through non-judicial foreclosure under Texas law.”); Farkas v. Aurora Loan [Servs.], LLC, No. 05-12- 01095-CV, 2013 WL 6198344, at *4 (Tex. App.—Dallas Nov. 26, 2013, pet. denied) (“A party asserting an interest under the deed of trust is not required to possess the corresponding note as a prerequisite to foreclose.”); Lowery v. Bank of Am., N.A., No. 04-12-[00]729-CV, 2013 WL 5762227, at *2 (Tex. App.—San Antonio Oct. 23, 2013, no pet.) (“A promissory note and the deed of trust that secures the note constitute two separate and severable obligations of the debtor-mortgagor, each with its own distinct remedy for the breach of those obligations.”).
Farris v. Nationstar Mortg. LLC, No. 05-17-01491-CV, 2019 WL 1512575, at *2 (Tex. App.—Dallas Apr. 8, 2019, no pet.) (mem. op.). 5 Nor is there any challenge that these notices contain some other defect.
16 premised on challenging Loan Simple’s capacity at the time of origination: “[I]f there
was no capacity for the originating party, or for the maker of the [t]ransfer, then each
notice . . . was in violation of the Property Code and TDC[P]A.” Thus, because
Appellee conclusively established that Loan Simple was in existence when the Loan
was originated, Appellee, Loan Simple’s assignee, did not violate the TDCPA or the
property code or breach the Deed of Trust by sending notices of default, acceleration,
and foreclosure. See Robeson, 2012 WL 42965, at *6 (concluding that the trial court did
not err by granting summary judgment on the borrower’s claims, “which are based
entirely on her argument that [the lender] lacked the capacity to enforce the terms of
the note and deed of trust”).
Meyerhoff also pleaded claims for injunctive relief and for declaratory
judgment. Appellee moved for summary judgment on the basis that those claims
were dependent on Meyerhoff’s recovery on his breach-of-contract claim or
duplicative of other relief sought by Meyerhoff. The only issue that Meyerhoff raises
in his brief about these additional claims is that he
is entitled to injunctive relief because he is statutorily entitled to it under TDC[P]A due to the foregoing wrongful acts of Pacific, to prevent further acts to deprive Meyerhoff of title to and possession of the Property, since there is a lack of demonstrated authority for all acts beginning with the origination, indorsement of the Note, the Transfer, and the subsequent appointment of substitute trustees to threaten foreclosure sales. There is further a right to injunctive relief under the Court’s equitable powers, to prevent violations of Meyerhoff’s right to the ownership and possession of the Property as against those who cannot demonstrate their own right, and from the Transfer and Assignment forward, Pacific cannot claim that right. [Emphasis added.]
17 Thus, Meyerhoff raises no argument about the propriety of the grant of summary
judgment that is not subsumed within our holding on his breach-of-contract claim.
Accordingly, we overrule Meyerhoff’s second point.
4. Appellee’s pleadings gave adequate notice of its claim for nonjudicial foreclosure, and the proof conclusively established Appellee’s entitlement to that remedy.
Meyerhoff’s third point challenges the propriety of summary judgment on
Appellee’s counterclaim for foreclosure. Meyerhoff argues that Appellee’s
counterclaim sought a judicial foreclosure while its motion for summary judgment
sought a nonjudicial foreclosure. Meyerhoff contends that by granting summary
judgment for Appellee to pursue a nonjudicial foreclosure, the trial court granted
Appellee relief that was not supported by pleading or proof.
Although not a model of clarity, Appellee pleaded for nonjudicial foreclosure
pursuant to chapter 51 of the Texas Property Code and, in the alternative, for judicial
foreclosure pursuant to rule of civil procedure 309. The rules of civil procedure
expressly permit such alternative pleading. See Tex. R. Civ. P. 48; Santiago v. Cent.
Mortg. Co., No. 05-14-00552-CV, 2015 WL 1805048, at *6 (Tex. App.—Dallas Apr.
21, 2015, pet. denied) (mem. op.) (“Even assuming without deciding that the sections
of Central’s pleading pertaining to judicial foreclosure and non-judicial foreclosure
were, as alleged by the Santiagos, ‘inconsistent,’ Central was entitled to include both
sections in its pleading pursuant to rule 48.”). Indeed, this court has affirmed a
18 summary judgment allowing for the mortgagee to pursue a nonjudicial foreclosure
after the mortgagee had pleaded for a judicial or nonjudicial foreclosure. Weeks v.
Bank of Am., N.A., No. 02-13-00039-CV, 2014 WL 345633, at *1–2 (Tex. App.—Fort
Worth Jan. 30, 2014, no pet.) (mem. op.) (affirming trial court’s summary judgment
authorizing appellee to enforce deed of trust by nonjudicial foreclosure when appellee
pleaded for “nonjudicial foreclosure, or in the alternative, a judicial foreclosure”).
While Appellee’s counterclaim did seek a “judgment for judicial foreclosure,” it
went on to request a judgment “allowing it to enforce its lien against the Property in
accordance with the [Deed of Trust] and Texas Property Code [S]ection 51.002.”
And Appellee’s motion for summary judgment similarly sought relief “allowing it to
proceed with foreclosure in accordance with the [Deed of Trust] and Texas Property
Code [S]ection 51.002, or judicial foreclosure under Texas Rule of Civil Procedure
309.” Section 51.002 governs nonjudicial foreclosures. Tex. Prop. Code Ann. §
51.002. Thus, we conclude that the summary judgment for a nonjudicial foreclosure
to be conducted pursuant to the Deed of Trust and Section 51.002 of the Property
Code was supported by Appellee’s pleading.
With respect to the proof supporting the judgment for nonjudicial foreclosure,
Appellee conclusively established the existence of a debt that was in default, including
the amount due and owing; the requisite notices of default, acceleration, and
foreclosure sale were provided to Meyerhoff; and Appellee’s standing as the
mortgagee or noteholder to pursue a nonjudicial foreclosure. See Weeks, 2014 WL
19 345633, at *4 (affirming judgment for nonjudicial foreclosure “pursuant to the other
summary[-]judgment evidence, including the deed of trust, which was also attached to
the motion for summary judgment”). Meyerhoff sets forth nothing to contradict or
challenge this proof. Therefore, the trial court did not err by granting summary
judgment in favor of Appellee on its counterclaim.
Accordingly, we overrule Meyerhoff’s third point.
IV. THE SUMMARY JUDGMENT IS VOID AS TO BARR
As set forth above, with respect to Barr’s presence in the trial-court
proceedings, the record reflects that she was never served with process and that she
had never entered an appearance before the trial court rendered judgment.
It is axiomatic that a “trial court ha[s] no jurisdiction either to enter judgment
or to enforce it against a party who had neither been properly served nor appeared.”
Ross v. Nat’l Ctr. for the Emp’t of the Disabled, 197 S.W.3d 795, 796–97 (Tex. 2006); see
also Tex. R. Civ. P. 124 (“In no case shall judgment be rendered against any defendant
unless upon service, or acceptance or waiver of process, or upon an appearance by the
defendant, as prescribed in these rules, except where otherwise expressly provided by
law or these rules.”). A party may serve a counterclaim in accordance with the
provisions of Texas Rule of Civil Procedure 21a, but service in that circumstance
requires that the counter-defendant have entered an appearance. Tex. R. Civ. P. 124
(“When a party asserts a counterclaim or a cross-claim against another party who has
20 entered an appearance, the claim may be served in any manner prescribed for service of
citation or as provided in Rule 21(a).” (emphasis added)).
As we have outlined above, the only time that Barr’s name appears in this suit
as a plaintiff is in the style of the suit in the TRO, Appellee’s counterclaim, Appellee’s
summary-judgment motion and reply, and the trial court’s judgment. The judgment
of the trial court is void as to Barr because it never acquired jurisdiction over her:
When, as here, a trial court enters a judgment before it acquires jurisdiction of the parties, the judgment is void. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985); In re Mask, 198 S.W.3d 231, 234 (Tex. App.—San Antonio 2006, orig. proceeding) (“A judgment or order is void when it is apparent that the court rendering it lacked jurisdiction of either the parties or the subject matter of the lawsuit.”). A void order has no force or effect and confers no rights; it is a mere nullity. In re Garza, 126 S.W.3d 268, 271 (Tex. App.—San Antonio 2003, orig. proceeding). A void order is not subject to ratification, confirmation, or waiver. Id.
Velasco v. Ayala, 312 S.W.3d 783, 798–99 (Tex. App.—Houston [1st Dist.] 2009, no
pet.); see also In re Merino, 542 S.W.3d 745, 747 (Tex. App.—Houston [14th Dist.] 2018,
orig. proceeding) (“A judgment is void and subject to collateral attack if there was ‘a
complete failure or lack of service’ that violates due process.” (quoting PNS Stores, Inc.
v. Rivera, 379 S.W.3d 267, 273–74 (Tex. 2012))).
Barr, described as a “Counter-Defendant,” is listed as an appellant in the notice
of appeal, but we acquire jurisdiction only over parties to the trial court’s judgment.
See Tex. R. App. P. 25.1(b) (“The filing of a notice of appeal by any party invokes the
appellate court’s jurisdiction over all parties to the trial court’s judgment or order
21 appealed from.”). As noted, Barr was a stranger to the proceeding when the trial
court ostensibly rendered judgment against her.
Further, when we encounter a judgment that is void as to one party, we have
no jurisdiction to review the judgment as to that party:
Because jurisdiction is fundamental, an appellate court must determine, even sua sponte, whether it has jurisdiction to consider an appeal. An appellate court’s jurisdiction extends no further than the jurisdiction of the trial court. When the trial court acts outside its jurisdiction, the proper action by the reviewing court is to set aside the improper judgment and dismiss the appeal.
Ins. Co. of the State of Penn. v. Martinez, 18 S.W.3d 844, 846–47 (Tex. App.—El Paso
2000, no pet.); see also Bird v. Kornman, 152 S.W.3d 154, 160 (Tex. App.—Dallas 2004,
pet. denied) (“When faced with a void judgment on appeal, the appellate court should
declare the judgment void.”). Accordingly, we lack jurisdiction to consider the merits,
if any, of Barr’s attempted appeal.
V. CONCLUSION
Having overruled Meyerhoff’s three points, we affirm the trial court’s judgment
as to him. Having determined that the judgment is void as to Barr, we vacate the trial
court’s judgment as to her and dismiss her appeal.
/s/ Dabney Bassel
Dabney Bassel Justice
Delivered: October 10, 2019