ACCEPTED 05-19-00385-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/19/2019 11:18 AM LISA MATZ CLERK
No. 05-19-00385-CV _________________________________ FILED IN 5th COURT OF APPEALS IN THE TEXAS COURT OF APPEALS DALLAS, TEXAS FIFTH DISTRICT OF TEXAS AT DALLAS 6/19/2019 11:18:13 AM _________________________________ LISA MATZ Clerk KIMBERLY D. HOGAN, Appellant,
v.
ASPIRE FINANCIAL, INC. D/B/A ASPIRE LENDING, Appellee _________________________________
On Appeal from the 162nd Judicial District Court Dallas County, Texas Cause No. DC-18-01806 _________________________________
APPELLEE’S BRIEF _________________________________
Donald E. Uloth Texas Bar No. 20374200 don.uloth@uloth.pro 18208 Preston Rd. Suite D-9 # 261 Dallas, TX 75252 phone: (214) 725-0260 fax: (866) 462-6179
Counsel for Appellee IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the parties to the trial court’s final
judgment, as well as the names and addresses of their trial and appellate counsel:
Plaintiff/Appellant, Kimberly D. Hogan
Counsel for Plaintiff/Appellant in the Trial Court and the Court of Appeals:
None – Plaintiff/Appellant was, and is, pro se.
Defendant/Appellee, Aspire Financial, Inc. d/b/a Aspire Lending
Counsel for Defendant/Appellee in the Trial Court and the Court of Appeals:
Donald E. Uloth Texas Bar No. 20374200 18208 Preston Rd. Suite D-9 # 261 Dallas, TX 75252
ii TABLE OF CONTENTS
Identity of Parties and Counsel .………………………………………………..… ii
Table of Contents ………………………………………………………………. iii
Index of Authorities …………………………………………………………….. iv
Statement of the Case ……………………………………………………………. 1
Statement Regarding Oral Argument …………………………………………….. 1
Issues Presented …………………………………………………………………... 1
Statement of Facts ………………………………………………………………... 2
Summary of the Argument ………………………………………………………. 3
Argument ………………………………………………………………………… 4
Summary judgment based on limitations was proper because Plaintiff’s petition alleged facts proving when her causes of action accrued ……………………………….. 4
Summary judgment was proper on the claim for fraud in the sale of real estate because Plaintiff’s petition negated the possible application of this claim …………………… 6
Plaintiff failed to supply any summary judgment evidence in response to a proper no-evidence motion for summary judgment, so the trial court correctly granted the motion …………………………….. 7
Prayer …………………………………………………………………………….. 8
Certificate of Service ……………………………………………………………... 8
Certificate of Compliance …………………………………………………………9
iii INDEX OF AUTHORITIES
Cases Page(s)
Alice Roofing & Sheet Metal v. Halleman, 775 S.W.2d 869 (Tex. App.—San Antonio 1989, no writ) ………………. 4
Marketic v. U.S. Bank Nat'l Assoc., 436 F. Supp. 2d 842 (N.D. Tex. 2006) …………………………………… 6
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) ……………………………………………… 5
Washington v. City of Houston, 874 S.W.2d 791 (Tex. App.—Texarkana 1994, no writ) …………………. 4
Statutes
TEX. BUS. & COMM. CODE § 17.46 et seq. ……………………………………….. 5
TEX. BUS. & COMM. CODE § 27.01 ……………………………………………… 6
Rules
TEX. R. CIV. P. 166a(i) …………………………………………………………... 7
iv STATEMENT OF THE CASE
Plaintiff filed a civil suit for damages in Williamson County, Texas. CLR
12-16. Defendant counterclaimed for defamation, and moved to transfer venue to
Dallas County. CLR 17-19. After the transfer of venue, the trial court granted
partial summary judgment on five claims. CLR 29. The court later granted
summary judgment on Plaintiff’s remaining claims. CLR 51. After a bench trial
on the counterclaim, the court signed a Final Judgment. CLR 62-63.
STATEMENT REGARDING ORAL ARGUMENT
Appellant’s Brief says “Oral Argument Requested” on the cover, but the
brief does not explain how this would be helpful. Appellant does not believe oral
argument it would be helpful to the Court’s decisional process.
ISSUES PRESENTED
Issue One
When the Petition alleges facts establishing when the causes of action accrued, whether additional proof is required to obtain summary judgment on those claims based on limitations.
Issue Two
When the Petition alleges facts negating a cause of action, whether any additional proof is required to obtain summary judgment on that claim.
Issue Three
Whether Plaintiff provided the trial court with summary judgment evidence sufficient to defeat Defendant’s no-evidence motion for summary judgment.
1 STATEMENT OF FACTS
On May 15, 2017, Plaintiff filed her Original Petition in Williamson County,
Texas. The petition alleged that she sought a mortgage loan from Defendant, and
she believed she was approved. She claims she took certain actions in reliance on
her belief, only to learn later that her loan application was denied. The petition is
based entirely on events that occurred on or before June 14, 2013, almost four
years before she filed her lawsuit. CLR (Clerk’s Electronic Record) 12-16.
On July 3, 2017, Defendant filed an answer (including a limitations
defense), a motion to transfer venue, and a counterclaim for defamation. CLR 17-
19. On January 30, 2018, the court in Williamson County signed an order
transferring the case to Dallas County. CLR 5.
On July 23, 2018, Defendant filed a motion for partial summary judgment.
CLR 20-22. The motion asserted that four claims were barred by the applicable
statutes of limitation (the claims for negligence, gross negligence, negligent
misrepresentation, and deceptive trade practices). The motion also asserted that a
fifth claim, Plaintiff’s claim for fraud in the sale of real estate, failed because the
statute on which the claim was based did not apply to the facts alleged in the
petition.
On September 13, 2018, the trial court granted the motion, and signed an
order dismissing these five claims. CLR 29.
2 On February 11, 2019, after adequate time for discovery, Defendant filed a
no-evidence motion for summary judgment on Plaintiff’s remaining claims
(common law fraud, fraud in the inducement, and promissory estoppel). CLR 37-
41. Plaintiff filed her response to the motion on February 25, 2019. CLR 42-45.
Plaintiff did not include any evidence along with her response, and the trial court
granted the motion by order dated March 7, 2019. CLR 51.
On March 13, 2019, the trial court conducted a bench trial on the
counterclaim, and on March 20, 2019 the court signed a Final Judgment. CLR 62-
63.
SUMMARY OF THE ARGUMENT
Appellant has not identified any reversible error by the trial court. The first
summary judgment was proper because the Original Petition alleged the facts
necessary for the court to find, as a matter of law: (a) that four claims were barred
by limitations, and (b) a fifth claim was not applicable to the facts alleged in the
petition. The second summary judgment was proper because Plaintiff produced no
summary judgment evidence, and thus failed to show a genuine issue of material
fact for trial.
3 ARGUMENT
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 05-19-00385-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/19/2019 11:18 AM LISA MATZ CLERK
No. 05-19-00385-CV _________________________________ FILED IN 5th COURT OF APPEALS IN THE TEXAS COURT OF APPEALS DALLAS, TEXAS FIFTH DISTRICT OF TEXAS AT DALLAS 6/19/2019 11:18:13 AM _________________________________ LISA MATZ Clerk KIMBERLY D. HOGAN, Appellant,
v.
ASPIRE FINANCIAL, INC. D/B/A ASPIRE LENDING, Appellee _________________________________
On Appeal from the 162nd Judicial District Court Dallas County, Texas Cause No. DC-18-01806 _________________________________
APPELLEE’S BRIEF _________________________________
Donald E. Uloth Texas Bar No. 20374200 don.uloth@uloth.pro 18208 Preston Rd. Suite D-9 # 261 Dallas, TX 75252 phone: (214) 725-0260 fax: (866) 462-6179
Counsel for Appellee IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of the parties to the trial court’s final
judgment, as well as the names and addresses of their trial and appellate counsel:
Plaintiff/Appellant, Kimberly D. Hogan
Counsel for Plaintiff/Appellant in the Trial Court and the Court of Appeals:
None – Plaintiff/Appellant was, and is, pro se.
Defendant/Appellee, Aspire Financial, Inc. d/b/a Aspire Lending
Counsel for Defendant/Appellee in the Trial Court and the Court of Appeals:
Donald E. Uloth Texas Bar No. 20374200 18208 Preston Rd. Suite D-9 # 261 Dallas, TX 75252
ii TABLE OF CONTENTS
Identity of Parties and Counsel .………………………………………………..… ii
Table of Contents ………………………………………………………………. iii
Index of Authorities …………………………………………………………….. iv
Statement of the Case ……………………………………………………………. 1
Statement Regarding Oral Argument …………………………………………….. 1
Issues Presented …………………………………………………………………... 1
Statement of Facts ………………………………………………………………... 2
Summary of the Argument ………………………………………………………. 3
Argument ………………………………………………………………………… 4
Summary judgment based on limitations was proper because Plaintiff’s petition alleged facts proving when her causes of action accrued ……………………………….. 4
Summary judgment was proper on the claim for fraud in the sale of real estate because Plaintiff’s petition negated the possible application of this claim …………………… 6
Plaintiff failed to supply any summary judgment evidence in response to a proper no-evidence motion for summary judgment, so the trial court correctly granted the motion …………………………….. 7
Prayer …………………………………………………………………………….. 8
Certificate of Service ……………………………………………………………... 8
Certificate of Compliance …………………………………………………………9
iii INDEX OF AUTHORITIES
Cases Page(s)
Alice Roofing & Sheet Metal v. Halleman, 775 S.W.2d 869 (Tex. App.—San Antonio 1989, no writ) ………………. 4
Marketic v. U.S. Bank Nat'l Assoc., 436 F. Supp. 2d 842 (N.D. Tex. 2006) …………………………………… 6
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) ……………………………………………… 5
Washington v. City of Houston, 874 S.W.2d 791 (Tex. App.—Texarkana 1994, no writ) …………………. 4
Statutes
TEX. BUS. & COMM. CODE § 17.46 et seq. ……………………………………….. 5
TEX. BUS. & COMM. CODE § 27.01 ……………………………………………… 6
Rules
TEX. R. CIV. P. 166a(i) …………………………………………………………... 7
iv STATEMENT OF THE CASE
Plaintiff filed a civil suit for damages in Williamson County, Texas. CLR
12-16. Defendant counterclaimed for defamation, and moved to transfer venue to
Dallas County. CLR 17-19. After the transfer of venue, the trial court granted
partial summary judgment on five claims. CLR 29. The court later granted
summary judgment on Plaintiff’s remaining claims. CLR 51. After a bench trial
on the counterclaim, the court signed a Final Judgment. CLR 62-63.
STATEMENT REGARDING ORAL ARGUMENT
Appellant’s Brief says “Oral Argument Requested” on the cover, but the
brief does not explain how this would be helpful. Appellant does not believe oral
argument it would be helpful to the Court’s decisional process.
ISSUES PRESENTED
Issue One
When the Petition alleges facts establishing when the causes of action accrued, whether additional proof is required to obtain summary judgment on those claims based on limitations.
Issue Two
When the Petition alleges facts negating a cause of action, whether any additional proof is required to obtain summary judgment on that claim.
Issue Three
Whether Plaintiff provided the trial court with summary judgment evidence sufficient to defeat Defendant’s no-evidence motion for summary judgment.
1 STATEMENT OF FACTS
On May 15, 2017, Plaintiff filed her Original Petition in Williamson County,
Texas. The petition alleged that she sought a mortgage loan from Defendant, and
she believed she was approved. She claims she took certain actions in reliance on
her belief, only to learn later that her loan application was denied. The petition is
based entirely on events that occurred on or before June 14, 2013, almost four
years before she filed her lawsuit. CLR (Clerk’s Electronic Record) 12-16.
On July 3, 2017, Defendant filed an answer (including a limitations
defense), a motion to transfer venue, and a counterclaim for defamation. CLR 17-
19. On January 30, 2018, the court in Williamson County signed an order
transferring the case to Dallas County. CLR 5.
On July 23, 2018, Defendant filed a motion for partial summary judgment.
CLR 20-22. The motion asserted that four claims were barred by the applicable
statutes of limitation (the claims for negligence, gross negligence, negligent
misrepresentation, and deceptive trade practices). The motion also asserted that a
fifth claim, Plaintiff’s claim for fraud in the sale of real estate, failed because the
statute on which the claim was based did not apply to the facts alleged in the
petition.
On September 13, 2018, the trial court granted the motion, and signed an
order dismissing these five claims. CLR 29.
2 On February 11, 2019, after adequate time for discovery, Defendant filed a
no-evidence motion for summary judgment on Plaintiff’s remaining claims
(common law fraud, fraud in the inducement, and promissory estoppel). CLR 37-
41. Plaintiff filed her response to the motion on February 25, 2019. CLR 42-45.
Plaintiff did not include any evidence along with her response, and the trial court
granted the motion by order dated March 7, 2019. CLR 51.
On March 13, 2019, the trial court conducted a bench trial on the
counterclaim, and on March 20, 2019 the court signed a Final Judgment. CLR 62-
63.
SUMMARY OF THE ARGUMENT
Appellant has not identified any reversible error by the trial court. The first
summary judgment was proper because the Original Petition alleged the facts
necessary for the court to find, as a matter of law: (a) that four claims were barred
by limitations, and (b) a fifth claim was not applicable to the facts alleged in the
petition. The second summary judgment was proper because Plaintiff produced no
summary judgment evidence, and thus failed to show a genuine issue of material
fact for trial.
3 ARGUMENT
Summary judgment based on limitations was proper because Plaintiff’s petition alleged facts proving when her causes of action accrued.
The factual allegations in a petition are sometimes sufficient to show that
one or more of the claims being asserted cannot succeed on the merits. For
example, in Washington v. City of Houston, 874 S.W.2d 791 (Tex. App.—
Texarkana 1994, no writ), the plaintiff’s petition alleged facts that proved the
defendant enjoyed governmental immunity from the claims asserted. The opinion
discussed whether any additional proof might be required, beyond plaintiff’s own
allegations, to support the defendant’s request for summary judgment, and the
court answered this question in the negative, stating: “[W]here the plaintiff’s
pleadings themselves establish the lack of a valid cause of action, such as the fact
that the statute of limitations has run, or if the pleadings allege facts which, if
proved, establish governmental immunity, pleadings alone can justify summary
judgment and special exceptions are not required.” Id. at 794.
In one of the cases cited in Washington as support for this proposition, the
court found summary judgment based on limitations was proper based solely on
the plaintiff’s allegations, without the need for additional evidence. See Alice
Roofing & Sheet Metal v. Halleman, 775 S.W.2d 869, 870-71 (Tex. App.—San
Antonio 1989, no writ).
4 And so it is in the present case. Plaintiff’s petition describes her efforts to
obtain a mortgage from Defendant, her belief that she had been approved, and the
actions allegedly taken in reliance on her belief. All of these actions took place
before June 14, 2013, the date Plaintiff says she was told her loan application was
denied. CLR 14 at ¶ 9.
The petition therefore established as a matter of law that her claims accrued
on or before June 14, 2013. See, e.g., Provident Life & Accident Ins. Co. v. Knott,
128 S.W.3d 211, 221 (Tex. 2003) (a cause of action accrues when events have
occurred that would authorize a party to seek a remedy). Plaintiff did not plead the
discovery rule, or claim that she was unaware of the relevant facts until some later
time.
Plaintiff filed her lawsuit on May 15, 2017, almost four years after her
claims accrued. CLR 12. Plaintiff’s claims for negligence, gross negligence,
negligent misrepresentation, and for alleged violations of the Texas Deceptive
Trade Practices Act (TEX. BUS. & COMM. CODE § 17.46 et seq.), were therefore
barred by their respective two-year limitations periods. Appellant has not proved
reversible error, and the trial court’s ruling on these four claims should be
affirmed.
5 Summary judgment was proper on the claim for fraud in the sale of real estate because Plaintiff’s petition negated the possible application of this claim.
In her petition, Plaintiff alleged that she sought a loan from Defendant so she
could buy a house. CLR 13. Plaintiff did not allege that she sought to buy a house
from Defendant. Defendant therefore moved for summary judgment because
Plaintiff failed to state a viable cause of action.
In the motion, Defendant cited Marketic v. U.S. Bank Nat'l Assoc., 436 F.
Supp. 2d 842 (N.D. Tex. 2006), in which the court stated: “It is well established
that a cause of action for statutory fraud [i.e. one based on section 27.01 of the
Texas Business & Commerce Code] does not arise from a transaction between a
mortgagor and a mortgagee because such a transaction does not involve the sale or
transfer of real estate from one party to another.” Id. at 856. Plaintiff did not
contest this, or even address this claim in her response to the motion. CLR 23-28.
Likewise, Appellant’s Brief does not mention this claim. The trial court
properly granted summary judgment dismissing this claim because the pleadings
themselves established the lack of a valid cause of action. Plaintiff/Appellant has
not shown reversible error with respect to the trial court’s disposition of this claim,
and the ruling should be affirmed.
6 Plaintiff failed to supply any summary judgment evidence in response to a proper no-evidence motion for summary judgment, so the trial court correctly granted the motion.
After adequate time for discovery, Defendant filed a no-evidence summary
judgment motion on Plaintiff’s claims for fraud, fraudulent inducement, and
promissory estoppel. The motion specifically identified the elements of each
claim, and it specified the elements for which there was no evidence. CLR 37-40.
In this posture, the court was required to grant the summary judgment
motion unless Plaintiff produced evidence sufficient to raise a genuine issue of
material fact. See TEX. R. CIV. P. 166a(i).
Plaintiff’s response did not include any evidence. She did not submit an
affidavit, and there were no documents attached to or specifically referenced in the
response. The response did state: “All of the Proof/Evidence/Exhibits have been
Submitted and Accepted by the Court,” CLR 44, but there was no explanation of
what proof she was referring to, or how it raised a question of fact. Plaintiff had
her day in court and she was heard, but she presented no evidence to justify going
to trial on her claims.
The trial court therefore made the only possible ruling it could have made
under the circumstances, and Appellant has not shown any reversible error in the
ruling. This Court should therefore affirm the no-evidence summary judgment on
these claims.
7 PRAYER
Appellee requests an order affirming the trial court’s summary judgments.
Respectfully submitted,
/s/ Donald E. Uloth Donald E. Uloth Texas Bar No. 20374200 18208 Preston Rd. Suite D-9 #261 Dallas, TX 75252 phone: (214) 725-0260 fax: (866) 462-6179 Attorney for Appellee
CERTIFICATE OF SERVICE
I certify that on June 19, 2019, I filed this document with the Clerk of the
Court through the Court’s electronic filing system, and I also served the document
to Plaintiff/Appellant Kimberly D. Hogan by email to kdhogan@ymail.com.
/s/ Donald E. Uloth Donald E. Uloth
8 CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the typeface requirements of Texas
Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional
typeface no smaller than 14-point for text and 12-point for footnotes. This
document complies with the word-count limitations of Texas Rule of Appellate
Procedure 9.4(i) because it contains 1,302 words, excluding the parts exempted by
Texas Rule of Appellate Procedure 9.4(i)(1).