ACCEPTED 01-15-00362-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 9/18/2015 8:58:37 AM CHRISTOPHER PRINE CLERK
NO. 01-15-00362-CV
FILED IN IN THE COURT OF APPEALS FOR THE 1st COURT OF APPEALS HOUSTON, TEXAS FIRST COURT OF APPEALS DISTRICT 9/18/2015 8:58:37 AM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk
JEFF LEWIS,
Appellant,
v.
AURORA LOAN SERVICES AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS,
Appellees.
On Appeal from the 201st District Court Travis County, Texas Trial Court Case No. D-1-GN-11-000618
TRANSFERRED TO THIS COURT FROM THE THIRD COURT OF APPEALS
APPELLEE’S BRIEF
J. Garth Fennegan SETTLEPOU Texas Bar I.D. 24004642 3333 Lee Parkway, Eighth Floor gfennegan@settlepou.com Dallas, Texas 75219 Daniel P. Tobin (214) 520-3300 Texas Bar I.D. 24046978 (214) 526-4145 (Facsimile) dtobin@settlepou.com Charles R. Curran ATTORNEYS FOR AURORA LOAN Texas Bar I.D. 24076334 SERVICES, LLC and MORTGAGE ccurran@settlepou.com ELECTRONIC REGISTRATION SYSTEMS, INC.
-1- IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as names and
addresses of all counsel:
Appellants: Counsel:
Jeff Lewis Stephen Casey Casey Law Office, P.C. 595 Round Rock West Drive Suite 102 Round Rock, Texas 78681 (512) 257-1324 (Phone) (512) 853-4098 (Fax)
Appellees:
Aurora Loan Services, LLC and J. Garth Fennegan Mortgage Electronic Registration Daniel P. Tobin Systems, Inc. Charles R. Curran SettlePou 3333 Lee Parkway, Eighth Floor Dallas, Texas 75219 (214) 520-330 (Phone) (214) 526-4145 (Fax)
-2- TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ..........................................................................2 TABLE OF CONTENTS ..................................................................................................3 INDEX OF AUTHORITIES...............................................................................................4 STATEMENT OF THE CASE ...........................................................................................6 STATEMENT REGARDING ORAL ARGUMENT ...............................................................7 ISSUES PRESENTED ......................................................................................................8 STATEMENT OF FACTS .................................................................................................9 SUMMARY OF THE ARGUMENT ..................................................................................11 ARGUMENT ...............................................................................................................11 Argument & Authorities ..........................................................................................11 A. Standard for No-Evidence Motion for Summary Judgment. ..............11 B. The Trial Court Properly Granted Appellees’ No-Evidence Motion for Summary Judgment. .........................................................12 C. Because the Trial Court Properly Granted the No-Evidence Motion, the Court Need Not Reach the Issue of Whether the Traditional Motion Was Properly Granted. ........................................17 CONCLUSION .............................................................................................................18 Certificate of Compliance ........................................................................................19 Certificate of Service ...............................................................................................19
-3- INDEX OF AUTHORITIES
Cases Amstadt v. U.S. Brass Corp., 919 S.W.2d 644 (Tex. 1996) ....................................13 Beverick v. Koch Power, Inc., 186 S.W.3d 145 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) .........................................................................17 Burns v. Canales, No. 14-04-00786-CV, 2006 WL 461518 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet. denied) ..............................15 Butnaru v. Ford Motor Co., 84 S.W.3d 198 (Tex. 2002) ........................................13 Catherman v. First State Bank, 796 S.W.2df 299 (Tex. App.—Austin 1990, no writ).................................................................................................13 Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) .....................................17 Frazier v. Yu, 987 S.W.2d 607 (Tex. App.—Ft. Worth 1999, pet. denied) ...........................................................................................................14 Jackson v. Am. Home Mortg. Servicing, Inc., No. 05-12-01596-CV, 2014 WL 3817085, at *1-2 (Tex. App.—Dallas Aug. 4, 2014)....................17 King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) ..................................12 Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) ......................12 Najera v. Recana Solutions, LLC, No. 14-14-00332-CV, 2015 WL 4985085, at *8 (Tex. App.—Houston -14th Dist.], no pet.) .........................15 Nelson v. Regions Mortgage, Inc., 170 S.W.3d 858 (Tex. App.— Dallas 2005, no pet.) ......................................................................................14 Timpte Indus., Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) .......................................12 Trilogy Software, Inc. v. Callidus Software, Inc., 143 S.W.3d 452 (Tex. App.—Austin 2004, pet. denied) .........................................................17 Walker v. Schion, 420 S.W.3d 454 (Tex. App.—Houston [14th Dist.] 2014, no pet.) .................................................................................................14 York v. Samuel, No. 01-05-00549-CV, 2007 WL 1018364, at *3 (Tex. App.—Houston [1st Dist.] Apr. 5, 2007, pet. denied) ..................................14 Statutes TEX. BUS. & COMM. CODE §§ 17.41-17.63 ..............................................................13
-4- TEX. FIN. CODE § 392.202 ........................................................................................13 TEX. FIN. CODE § 392.403 ........................................................................................13 Rules TEX. R. APP. P. 39.1 ...................................................................................................7 TEX. R. CIV. P. 166a(i) ...................................................................................... 11, 12
-5- STATEMENT OF THE CASE
Nature of the proceeding
On September 12, 2014, Appellees Aurora Loan Services, LLC (“Aurora”)
and Mortgage Electronic Registrations Systems, Inc. (“MERS”) filed their Motion
for Final Summary Judgment. C.R. 158. The Motion for Final Summary
Judgment contained both traditional and no-evidence components. C.R. 158-168.
Appellant Jeff Lewis (“Lewis” or “Appellant”) filed a Motion to Strike Summary
Judgment Affidavit of Fay Janati and Response to Summary Judgment. C.R. 221-
24. The Court struck the affidavit of Fay Janati. R.R. 22. Summary judgment was
thereafter rendered in favor of Aurora and MERS and against Lewis on December
16, 2014. C.R. 225-26.
On January 14, 2014, Lewis filed a Motion for New Trial. C.R. 230. On
March 2, 2015, Lewis filed a Notice of Appeal. C.R. 233.
Trial Court
The underlying proceeding was assigned to the Honorable Amy Clark
Meachum of the 201st Civil District Court of Travis County, Texas. Appellees’
Motion for Final Summary Judgment and Appellant’s Motion to Strike and
Response were heard by the Honorable Orlinda Naranjo. R.R. 1.
-6- STATEMENT REGARDING ORAL ARGUMENT
Appellees do not believe that oral argument will significantly aid the Court
in determining the legal issues presented in this appeal. TEX. R. APP. P. 39.1.
-7- ISSUES PRESENTED
Issue No. 1 (Appellant’s Issues 1 & 2): The Trial Court properly granted
Appellees’ no-evidence motion for summary judgment because Appellant did not
produce any evidence to support the challenged elements of his claims.
-8- STATEMENT OF FACTS
Appellant’s Statement of Facts goes well afield of the summary-judgment
record and consists of nothing more than the unsupported argument of counsel.
Appellant’s Statement relies on purported facts not presented to the Court in
connection with the summary judgment proceedings and that cannot aid this Court
in its resolution of Appellant’s appeal.
Lewis’s Claims. Lewis filed suit against Aurora and MERS on March 1,
2011. C.R. 3. Lewis filed his First Amended Petition on December 2, 2011. C.R.
141. In his First Amended Petition, Lewis asserted claims against Aurora and
MERS for violations of the Texas Debt Collection Act and the Deceptive Trade
Practices Act and sought injunctive and declaratory relief. C.R. 146-48.
The Summary Judgment Proceedings. On September 12, 2014, Appellees
filed their Motion for Final Summary Judgment (“MSJ”). C.R. 158. The MSJ
sought traditional summary judgment on Lewis’s claims for violation of the Texas
Debt Collection Act and the Deceptive Trade Practices Act as well as his request
for declaratory relief. C.R. 161-66. The MSJ also sought a Texas Rule of Civil
Procedure 166a(i) no-evidence summary judgment on Plaintiff’s claims for
violation of the Texas Debt Collection Act and Deceptive Trade Practices Act and
his requests for injunctive and declaratory relief. C.R. 166-68. In support of the
traditional portion of the MSJ, Appellees attached the Affidavit of Fay Janati of
-9- Nationstar Mortgage, LLC. C.R. 171-73.
Lewis filed a Motion to Strike Summary Judgment Affidavit of Fay Janati
and Response to Summary Judgment (“Motion to Strike and Response”) on
October 22, 2014. C.R. 221. The Motion to Strike and Response contained no
summary judgment evidence. See C.R. 221-24.
The MSJ and Lewis’s Motion to Strike and Response were heard on
November 10, 2014. R.R. 1, 22-31. At the hearing, the Court struck the Affidavit
of Fay Janati. R.R. 22.
On December 16, 2014, the Trial Court granted Final Summary Judgment to
Appellees. C.R. 225-26. The Final Summary Judgment Order stated that the MSJ
“should be granted on all grounds stated therein,” that “Plaintiff take nothing from
Aurora in this action,” “that Plaintiff take nothing against MERS in this action,”
and that “[t]his judgment finally disposes of all parties and all claims and is
appealable.” C.R. 225-26.
The Motion for New Trial and Appeal. On January 14, 2015, Lewis filed a
Motion for New Trial solely complaining that the Trial Court should not have
granted the MSJ after it struck the affidavit of Fay Janati. C.R. 230. No order was
issued on this Motion for New Trial. See generally C.R. On March 2, 2015, Lewis
filed his Notice of Appeal. C.R. 233.
-10- SUMMARY OF THE ARGUMENT
Appellees’ MSJ was a hybrid motion, containing both traditional and no-
evidence components. In order to obtain the denial of the MSJ in the Trial Court,
Appellant needed to produce competent summary judgment evidence raising a
genuine issue of material fact on each element of each claim which Appellees
challenged. Appellant failed to produce any summary-judgment evidence
concerning the challenged elements of Appellant’s claims. Accordingly, the Trial
Court properly a no-evidence granted summary judgment to Appellees.
ARGUMENT
Issue No. 1 (Appellant’s Issues 1 & 2)
THE TRIAL COURT PROPERLY GRANTED APPELLEES’ NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT BECAUSE APPELLANT DID NOT PRODUCE ANY EVIDENCE TO SUPPORT THE CHALLENGED ELEMENTS OF HIS CLAIMS.
Argument & Authorities
A. Standard for No-Evidence Motion for Summary Judgment.
When a party challenges the evidentiary support for essential elements of the
non-moving party’s claim or defense under Rule 166a(i), the non-movant is
required to produce evidence that raises a genuine issue of material fact on each
challenged element of its claim. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v.
-11- Gish, 286 S.W.3d 306, 310 (Tex. 2009) This Court reviews a no-evidence motion
for summary judgment under the same legal sufficiency standard used to review a
directed verdict. TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. Thus, the
Court “review[s] evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered,
crediting evidence favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.” Gish, 286
S.W.3d at 310 (internal citations omitted); Merrell Dow Pharms, Inc. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997). A trial court must grant a no-evidence
summary-judgment motion unless the non-movant brings forth more than a
scintilla of probative evidence to raise a genuine issue of material fact. TEX. R.
CIV. P. 166a(i); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
B. The Trial Court Properly Granted Appellees’ No-Evidence Motion for Summary Judgment.
Appellees’ MSJ, which was filed more than three years after Lewis first filed
suit, C.R. 3 (suit filed March 1, 2011) & C.R. 158 (MSJ filed September 12,
2014)1, contained both traditional and no-evidence motions, C.R. 161-68. The no-
evidence motion challenged the following elements of each of Lewis’s claims:
1 Appellees alleged in their MSJ that Appellant had adequate time for discovery since the action had been pending for more than three years before Appellees filed their MSJ. C.R. 166. Appellant did not indicate otherwise in the Motion to Strike and Response, the Motion for New Trial, or in his opening brief. C.R. 221-24, 230.
-12- Injunctive Relief2: Appellant has no evidence that he has a probable
right to relief on the causes of action stated in his petition and his
allegation that MERS is not a mortgagee entitled to foreclose on the
Property pursuant to the Texas Property Code. C.R. 166-67.
Texas Debt Collection Act3: Appellant has no evidence that Aurora
committed a violation of section 392.202 of the Texas Debt Collection
Act and that Plaintiff was injured as a result of any such violation.
C.R. 167.
Deceptive Trade Practices Act4: Appellant has no evidence that he is
a consumer, that Appellees could be sued under the Deceptive Trade
Practices Act, that Appellees committed violations under section
392.202 of the Texas Debt Collection Act, that Appellees committed a
violation of the Deceptive Trade Practices Act, or that Appellant
2 The elements of injunctive relief are: (1) a cause of action against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). C.R. 166. 3 The elements of Appellant’s Texas Debt Collection Act claim are: (1) defendant is a debt collector; (2) defendant committed a wrongful act in violation of Texas Finance Code § 392.202; (3) the wrongful act was committed against the plaintiff; and (4) and the plaintiff was injured as a result of the wrongful act. Catherman v. First State Bank, 796 S.W.2df 299, 302 (Tex. App.— Austin 1990, no writ) (Plaintiff must prove injury); TEX. FIN. CODE § 392.403 (requiring a violation of the Act against Plaintiff for civil remedies); TEX. FIN. CODE § 392.202 (requiring a third party debt collector). C.R. 167. 4 The elements of Appellant’s Deceptive Trade Practices Act claim are: (1) Plaintiff is a consumer; (2) Defendants can be sued under the DTPA; (3) Defendants violated a specific provision of the Act; (4) Defendant’s violation was a producing cause of Plaintiff’s damages. TEX. BUS. & COMM. CODE §§ 17.41-17.63; Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996). C.R. 167.
-13- suffered injury as a result of any alleged violation of the Deceptive
Trade Practices Act. C.R. 167.
Declaratory Relief5: Appellant has no evidence to support at least one
element of every cause of action and no evidence to support his claim
that MERS is not entitled to foreclose. C.R. 168.
Lewis produced no summary-judgment evidence with his Motion to Strike
and Response. C.R. 221-24. The only summary-judgment evidence before the
Court was the affidavit of Fay Janati. C.R. 174-220. The Court, however, struck
the affidavit of Fay Janati and thus there was no summary-judgment evidence
before the Trial Court. R.R. 22. Walker v. Schion, 420 S.W.3d 454, 457 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (court cannot consider evidence
excluded by the trial court unless the ruling is challenged on appeal) (citation
omitted); York v. Samuel, No. 01-05-00549-CV, 2007 WL 1018364, at *3 (Tex.
App.—Houston [1st Dist.] Apr. 5, 2007, pet. denied) (memo. op.) (same); Frazier
v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Ft. Worth 1999, pet. denied) (where
affidavit stricken and ruling not challenged on appeal, appellate court cannot
consider the excluded evidence).
Because the only summary-judgment evidence was excluded by the Trial
5 To be entitled to declaratory relief, Appellant was required to prove a justiciable controversy within the trial court’s jurisdiction. Nelson v. Regions Mortgage, Inc., 170 S.W.3d 858, 863 (Tex. App.—Dallas 2005, no pet.). C.R. 168.
-14- Court and because Lewis failed to produce any competent summary-judgment
evidence in support of the challenged elements of his claims, Lewis failed to carry
his burden in responding to Appellees’ no-evidence motion. Moreover, in
Appellant’s Motion to Strike and Response, he entirely failed to point out to the
court any evidence raising any fact issue as to any the challenged elements of his
claims. E.g., Najera v. Recana Solutions, LLC, No. 14-14-00332-CV, 2015 WL
4985085, at *8 (Tex. App.—Houston -14th Dist.], no pet.) (memo. op.) (failure to
point out evidence raising a fact issue in a response fatal to no-evidence motion);
Burns v. Canales, No. 14-04-00786-CV, 2006 WL 461518 (Tex. App.—Houston
[14th Dist.] Feb. 28, 2006, pet. denied) (memo op.) (“the party seeking to avoid the
effects of a well-pleaded no-evidence motion for summary judgment bears the
burden to file a written response that raises issues preventing summary judgment,
and that points to evidence supporting those issues”) (emphasis added).
Accordingly, the Trial Court properly granted Appellees’ MSJ.
Appellant’s attempt by his opening brief in this matter to make arguments
based on evidence not before the trial court is both disingenuous and improper. In
fact, by entirely failing to address the no-evidence portion of the MSJ, Appellant
waives any complaint as to the trial court granting the no-evidence MSJ. The trial
court did not have the benefit of any of the evidence Appellant purports to offer
this Court, nor was it presented with the bankruptcy documents of which Appellant
-15- asks this court to take judicial notice. See Tab B of Appellant’s Appendix.
Moreover, Appellant has failed to point this Court to any evidence
supporting the challenged elements of Plaintiff’s claims. Plaintiff has not cited to:
evidence that he has a probable right to relief on the causes of action
stated in the petition or evidence that MERS is not a mortgagee
entitled to foreclose (injunctive relief);
evidence that Aurora committed a violation of section 392.202 of the
Texas Debt Collection Act or that Plaintiff was injured as a result of
any such violation (Texas Debt Collection Act);
evidence that Appellant was a consumer, that Appellees could be sued
under the Deceptive Trade Practices Act, that Appellees committed
violations under section 392.202 of the Texas Debt Collection Act,
that Appellees committed a violation of the Deceptive Trade Practices
Act, or that Appellant suffered injury as a result of any alleged
violation of the Deceptive Trade Practices Act (Deceptive Trade
Practices Act);
or evidence to support at least one element of every cause of action or
evidence to support his claim that MERS is not entitled to foreclose
(declaratory judgment).
In sum, Appellant’s unfocused attack solely on the traditional motion for summary
-16- judgment does nothing to show that the no-evidence motion was not properly
granted.
C. Because the Trial Court Properly Granted the No-Evidence Motion, the Court Need Not Reach the Issue of Whether the Traditional Motion Was Properly Granted.
If a trial court grants summary judgment without specifying the grounds for
granting the motion, this Court must uphold the trial court’s judgment if any of the
grounds are meritorious. E.g., Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148
(Tex. App.—Houston [1st Dist.] 2005, pet. denied); Trilogy Software, Inc. v.
Callidus Software, Inc., 143 S.W.3d 452, 459 (Tex. App.—Austin 2004, pet.
denied). When the moving party files both a no-evidence and traditional motion
for summary judgment, the Court generally addresses the no-evidence motion first.
See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
The Trial Court’s Final Summary Judgment does not specifically identify
whether Appellees’ MSJ was granted as to the traditional motion or the no-
evidence motion. C.R. 225 (identifying that MSJ granted on “all grounds stated
therein”). Because the no-evidence motion was properly granted, this Court must
uphold the Final Summary Judgment in favor of Appellees. E.g., Jackson v. Am.
Home Mortg. Servicing, Inc., No. 05-12-01596-CV, 2014 WL 3817085, at *1-2
(Tex. App.—Dallas Aug. 4, 2014) (memo. op.) (upholding grant of no-evidence
portion of hybrid motion for summary judgment when the summary judgment
-17- order recited summary judgment was granted on “all the grounds stated therein.”).
CONCLUSION Appellant wholly failed to address Appellees’ no-evidence MSJ at the trial
court level and has further entirely failed to address Appellees’ no-evidence MSJ
on appeal. Accordingly, Appellees respectfully request that this Court affirm the
Trial Court’s Final Summary Judgment in favor of Appellees, tax all costs of this
appeal against Appellant, and grant all other relief to which Appellees are entitled.
/s/ Daniel P. Tobin J. Garth Fennegan Texas Bar I.D. 24004642 gfennegan@settlepou.com Daniel P. Tobin Texas Bar I.D. 24046978 dtobin@settlepou.com Charles R. Curran Texas Bar I.D. 24076334 ccurran@settlepou.com
SETTLEPOU 3333 Lee Parkway, Eighth Floor Dallas, Texas 75219 (214) 520-330 (Phone) (214) 526-4145 (Fax)
ATTORNEYS FOR APPELLEES
-18- Certificate of Compliance
I certify that this document was produced on a computer using Microsoft
Word 2010 and contains 2,447 words, as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).
/s/ Daniel P. Tobin Daniel P. Tobin
Certificate of Service This certifies that on September 18, 2015, this document was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure, by first class mail to:
Stephen Casey Casey Law Office, P.C. 595 Round Rock West Drive, Suite 102 Round Rock, Texas 78681
ATTORNEY FOR APPELLANT
-19-