Richard A. Rodriguez v. JPMorgan Chase Bank, N.A.

Opinion

ACCEPTED 04-14-00342-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 2/2/2015 9:39:12 AM KEITH HOTTLE CLERK

No. 04-14-00342-CV

IN THE FOURTH DISTRICT COURT OF APPEALS FILED IN AT SAN ANTONIO, TEXAS 4th COURT OF APPEALS SAN ANTONIO, TEXAS RICHARD A. RODRIGUEZ, 02/2/2015 9:39:12 AM KEITH E. HOTTLE Appellant, Clerk v.

JPMORGAN CHASE BANK, N.A. Appellee.

Appealed from the 285th District Court, Bexar County, Texas, The Honorable Dick Alcala, Presiding

BRIEF FOR APPELLEE

Marcie L. Schout (Lead Counsel) Texas State Bar No. 24027960 Wm. Lance Lewis Texas State Bar No. 12314560 Gregory M. Sudbury Texas State Bar No. 24033367 QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 (214) 871-2100 (Telephone) (214) 871-2111 (Facsimile) mschout@qslwm.com llewis@qslwm.com gsudbury@qslwm.com ATTORNEYS FOR APPELLEE, JPMORGAN CHASE BANK, N.A. SUCCESSOR IN INTEREST TO FIRST NATIONAL BANK OF CHICAGO, AS TRUSTEE IDENTITY OF PARTIES AND COUNSEL

Appellant: Appellant’s Counsel: Richard A. Rodriguez R. Robert Willmann, Jr. P.O. Box 460167 San Antonio, Texas 78246

Appellee: Appellee’s Counsel: JPMorgan Chase Bank, N.A., Marcie L. Schout Successor in Interest to First National Wm. Lance Lewis Bank of Chicago, Trustee Gregory M. Sudbury Quilling, Selander, Lownds, Winslett & Moser, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201

i 3671.2108 4823-1350-3009-V.1 TABLE OF CONTENTS

Page Identity of Parties and Counsel ...................................................................................i Index of Authorities ..................................................................................................iv

Statement of the Case............................................................................................. viii Statement Regarding Oral Argument .......................................................................ix Issues Presented for Review ......................................................................................x

Statement of Facts ......................................................................................................1 Summary of the Argument.........................................................................................4

Argument and Authorities..........................................................................................7 I. JPMC’s claim for judicial foreclosure was not barred by limitations. ............ 7

A. The undisputed evidence demonstrated that the Original Counterclaim was timely filed. ............................................................. 8

B. The First Amended Counterclaim related back to the filing of the Original Counterclaim. ....................................................11

C. None of the arguments raised and briefed by Rodriguez justify reversing the trial court’s ruling on the limitations issue. ....................................................................................................17

II. The trial court did not abuse its discretion in admitting the payoff quote shown in Exhibit 24. ............................................................................18

III. The evidence was sufficient to support the jury’s award of damages, including the calculation of accrued interest. ................................................21

IV. The trial court did not abuse its discretion in admitting JPMC’s expert testimony regarding attorney’s fees. ..............................................................25

V. It was not an abuse of discretion to deny Rodriguez’s motion to recuse because there was no reasonable doubt that the judges were impartial. ....... 28

ii 3671.2108 4823-1350-3009-V.1 VI. Rodriguez’s briefing is insufficient to preserve any complaints about the granting of JPMC’s summary judgment, and even if preserved, summary judgment was proper......................................................................31

Prayer .......................................................................................................................34

iii 3671.2108 4823-1350-3009-V.1 INDEX OF AUTHORITIES

Page

CASES Aguero v. Ramirez, 70 S.W.3d 372 (Tex. App.—Corpus Christi 2002, pet. denied) ............ 15, 16

Almazan v. United Services Auto. Ass'n, Inc., 840 S.W.2d 776 (Tex. App.—San Antonio 1992, writ denied) ....................16 Alvarado v. Farah Mfg. Co., 830 S.W.2d 911 (Tex.1992) ..........................................................................19 Atchley v. NCNB Texas Nat. Bank, 795 S.W.2d 336 (Tex. App.—Beaumont 1990, writ denied)........................23

Bowie National Bank v. Stevens, 532 S.W.2d 67 (Tex. 1975) .............................................................................9 Bus. Staffing, Inc. v. Viesca, 394 S.W.3d 733 (Tex. App.—San Antonio 2012, no pet.) ...........................22 Cain v. Bank United of Texas, FSB, Case No. 14-95-00601-CV, 1997 WL 428054 (Tex. App.— Houston [14th Dist.] July 31, 1997, pet. denied) ............................................9

Colvin v. Texas Dow Employees Credit Union, No. 01-11-00342-CV, 2012 WL 5544950 (Tex. App.— Houston [1st Dist.] Nov. 15, 2012, no pet.) ..................................................25

Cram Roofing Co., Inc. v. Parker, 131 S.W.3d 84 (Tex. App.—San Antonio 2003, no pet.) .............................12 Darpino v. T.D.C.J.-I.D., No. 12-03-00021-CV, 2003 WL 22839250 (Tex. App.—Tyler Nov. 26, 2003, no pet.) ........................................................................... 17, 18 Dove v. Graham, 358 S.W.3d 681 (Tex. App.—San Antonio 2011, pet. denied) ....................32

iv 3671.2108 4823-1350-3009-V.1 Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) .................................................................... 29, 30

Downer v. Aquamarine Operators, Inc., 701 S.W.3d 238 (Tex. 1985) .........................................................................20

Dyer v. Cotton, 333 S.W.3d 703 (Tex. App.—Houston [1st Dist.] 2010, no pet.).......... 19, 25

ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867 (Tex. 2010) .........................................................................31

Gaal v. State, 332 S.W.3d 448 (Tex. Crim. App. 2011) ......................................................29

Hansen v. JP Morgan Chase Bank, N.A., 346 S.W.3d 769 (Tex. App.—Dallas 2011, no pet.) .................. 28, 29, 30, 31 Holy Cross Church of God in Christ v. Wolff, 44 S.W.3d 562 (Tex. 2001) .............................................................................8 Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex.1991) ..........................................................................10 In re Blankenship, 392 S.W.3d 249 (Tex. App. —San Antonio 2012, no pet.) ........................32 In re Estate of Valdez, 406 S.W.3d 228 (Tex. App.—San Antonio 2013, pet. denied) ....................10 In re H.M.S., 349 S.W.3d 250 (Tex. App.—Dallas 2011, pet. denied) ....................... 28, 29

Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 (Tex.1990) ............................................................................8 Mortgage Electronic Registration Systems, Inc. v. Groves, No. 14-10-00090-CV, 2011 WL 1364070 (Tex. App.—Houston Apr. 12, 2011, pet. denied) ..................................................................... 32, 33 Nw. Nat. County Mut. Ins. Co. v. Rodriguez, 18 S.W.3d 718 (Tex. App.—San Antonio 2000, pet. denied) ......................19

v 3671.2108 4823-1350-3009-V.1 Ogden v. Gibraltar Saving Assoc., 640 S.W.2d 232 (Tex. 1982) ...........................................................................9

Pioneer Bldg. & Loan Ass’n v. Johnston, 117 S.W.2d 556 (Tex. Civ. App.—Waco 1938, writ dism’d) ......................10

Sandhu v. Pinglia Investments of Texas, L.L.C., 14-08-00184-CV, 2009 WL 1795032 (Tex. App.—Houston [14th Dist.] June 25, 2009, pet. denied) ........................................................23 Santiago v. Novastar Mortg., Inc., 443 S.W.3d 462 (Tex. App.—Dallas 2014, pet. filed) ..................................34 Scott v. Commercial Services of Perry, Inc., 121 S.W.3d 26 (Tex. App.—Tyler 2003, pet. denied) ..................................24 Sharpe v. Lomas & Nettleton Fin. Corp., 601 S.W.2d 55 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) ..................23 Shumway v. Horizon Credit Corp., 801 S.W.2d 890 (Tex. 1991) ...........................................................................8

Sierad v. Barnett, 164 S.W.3d 471 (Tex. App.—Dallas 2005, no pet.) .....................................20

Smith v. CDI Rental Equipment, Ltd., 310 S.W.3d 559 (Tex. App. –Tyler 2010, no pet.) ........................................13 Stanley v. CitiFinancial Mortgage Co., Inc., 121 S.W.3d 811 (Tex. App.—Beaumont 2003, pet. denied) ..........................9

Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d 25 (Tex. App.—Dallas 1992, no writ).......................................23

Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005) .........................................................................17

Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37 (Tex. App.—San Antonio 2006, no pet.) .............................19 Walker v. Hanes, 570 S.W.2d 534 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.) .....................................................................................................10

vi 3671.2108 4823-1350-3009-V.1 Whittier v. Ocwen Loan Servicing, L.L.C., 13-20639, 2014 WL 6791382 (5th Cir. Dec. 3, 2014) ..................................34

Williams v. Khalaf, 802 S.W.2d 651 (Tex. 1990) .........................................................................15

Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231 (Tex. App.—Houston [1st Dist.] 2008, no pet.).................24

STATUTES TEX. CIV. PRAC. & REM. CODE § 16.003..................................................................14 TEX. CIV. PRAC. & REM. CODE § 16.004..................................................................14 TEX. CIV. PRAC. & REM. CODE § 16.035(a) ............................................ 8, 13, 14, 15

TEX. CIV. PRAC. & REM. CODE § 16.068......................................... 12, 13, 14, 15, 16

RULES TEX. R. APP. P. 38.1(i) ..............................................................................................32 TEX. R. CIV. P. 193.6(a) .................................................................................... 18, 19

vii 3671.2108 4823-1350-3009-V.1 STATEMENT OF THE CASE Appellant Richard Rodriguez filed this suit over fourteen years ago seeking

to delay a foreclosure of certain real property (the “Property”). 1 CR 1. Appellee

JPMorgan Chase Bank, N.A., Successor in Interest to First National Bank of

Chicago, Trustee, filed a counterclaim for breach of contract and sought judicial

foreclosure. 1 CR 116, 291. The trial court granted summary judgment on all

claims asserted by Rodriguez. 1 CR 414. Thereafter, the parties were re-aligned

with JPMC as plaintiff, and the matter was set for a jury trial.

As part of the pre-trial proceedings, at the invitation of both parties, the trial

court considered Rodriguez’s argument that JPMC’s claim for judicial foreclosure

was barred by limitations in light of matters of which it could take judicial notice,

and the trial court rejected the limitations defense. 2/10 RR 44:13-24; 2 CR 485.

The case was then presented to a jury, and following trial, the jury found that

Rodriguez had failed to comply with the loan agreement, his failure was not

excused, and JPMC sustained $441,027.10 in damages as a result. 2 CR 417-419.

Rodriguez filed a motion for judgment notwithstanding the verdict which was

denied. 2 CR 426, 489. The trial court entered judgment in favor of JPMC,

awarding JPMC $441,027.10, attorney’s fees, costs and interest and ordering the

Property be foreclosed. 2 CR 486-487. Rodriguez appealed. 2 CR 490.

viii 3671.2108 4823-1350-3009-V.1 STATEMENT REGARDING ORAL ARGUMENT Oral argument is not warranted in this case. Appellee does not believe that

oral argument will significantly impact the decisional process of the Court. If

however, the Court believes oral argument would be helpful and oral argument is

held, Appellee desires to participate therein.

ix 3671.2108 4823-1350-3009-V.1 ISSUES PRESENTED FOR REVIEW Issue 1: Did the trial court correctly reject Rodriguez’s argument that JPMC’s judicial foreclosure claim was barred by limitations where (1) the original counterclaim was filed within four years of the effective acceleration of the loan, and (2) the amended petition for judicial foreclosure related back to the filing of the original counterclaim? Issue 2: Did the trial court abuse its discretion in admitting the payoff quote shown in Exhibit 24 where there was no showing that the alleged late disclosure of the payoff quote resulted in unfair surprise or unfair prejudice to Rodriguez?

Issue 3: Was there more than a mere scintilla of evidence to support the jury’s award of damages, including the interest owed under the terms of the note, where Rodriguez admitted the amount of the principal balance owed on the loan, the loan documents specified the applicable rate of interest, and testimony explained how the interest component of the damage model was calculated? Issue 4: Did the trial court abuse its discretion in allowing new counsel to substitute in as attorney’s fee expert where there was no showing that the alleged late substitution of experts resulted in unfair surprise or unfair prejudice to Rodriguez?

Issue 5: Was it an abuse of discretion to deny Rodriguez’s motion to recuse where a letter to the presiding judge complaining about the length of time the case had been pending did not lead to a reasonable doubt about the impartiality of the judges assigned to this case?

Issue 6: Is the conclusory briefing by Rodriguez sufficient to preserve his challenge to the validity of the summary judgment granted on his quiet title claim, and to the extent it is, did the trial court correctly grant summary judgment on Rodriguez’s claims pertaining to JPMC’s standing to foreclose where JPMC was in possession of the original note and there was a complete chain of assignments of the deed of trust?

x 3671.2108 4823-1350-3009-V.1 STATEMENT OF FACTS Underlying Facts

In December 1995, Rodriguez financed his purchase of certain real property

(the “Property”) through a loan evidenced by a note (the “Note”) payable to First

Texas Mortgage in the original principal amount of $147,100, which was secured

by a deed of trust (the “Deed of Trust”) encumbering the Property. PX 1, PX 2,

PX 3. First Texas Mortgage, the originating lender, assigned the Deed of Trust to

Old Kent Mortgage Company in December 1995. 1 CR 343. Old Kent then

assigned the Deed of Trust to First National Bank of Chicago, as Trustee in

February 1996. 1 CR 347. JPMC is the successor by merger to Bank One, the

successor by merger to First National Bank of Chicago. 2/11 RR 9:24 to 10:12.

12. At trial, JPMC was in possession of the original Note. 2/11 RR 7:3-11.

Rodriguez defaulted on the Note in early 2000 by failing to make payments

as they came due. 2/10 RR 113:1-4. On May 2, 2000, the servicer of the loan

gave notice that Rodriguez was in default, provided a thirty day opportunity to cure

that default, and warned that if the default was not cured, the balance due would be

accelerated. PX 12. On July 7, 2000, foreclosure counsel sent a letter to

Rodriguez accelerating the balance owed and scheduling the Property for

foreclosure on August 1, 2000. PX 14. Subsequently, on August 11, 2000, a new

notice of acceleration was issued and the Property was scheduled for foreclosure

1 3671.2108 4823-1350-3009, V.1 on September 5, 2000. PX 17. That foreclosure sale did not proceed because

Rodriguez filed this suit on September 5, 2000. 2/11 RR 23:1-5.

Rodriguez has not made any payments on the loan since early 2000.

2/10 RR 120:21-24. Despite that, as of the time of trial, no foreclosure had taken

place and Rodriguez remained in possession of the Property. 2/10 RR 127:2-8. As

of January 31, 2014, the total amount owed on the Note was $489,673.72. PX 24.

Procedural History

Rodriguez filed suit on September 5, 2000 seeking to enjoin foreclosure.

1 CR 1. JPMC filed a counterclaim against Rodriguez on August 11, 2004

asserting claims for breach of contract and declaratory judgment relating to

Rodriguez’s failure to pay amounts due on the Note. 1 CR 116. On April 20,

2012, JPMC filed its first amended counterclaim expressly seeking judicial

foreclosure as a remedy for its previously asserted breach of contract claim.

1 CR 291.

In May 2012, JPMC filed an amended motion for summary judgment

seeking a judgment that Rodriguez take nothing on his affirmative claims and also

seeking judgment on JPMC’s counterclaims. 1 CR 301. The motion was initially

granted in full, disposing of the case. 1 CR 400. However, in November 2012, the

original order was vacated and a new order was entered, granting summary

judgment on all claims asserted by Rodriguez, but denying summary judgment on

2 3671.2108 4823-1350-3009, V.1 the affirmative claims asserted by JPMC because the issue of Rodriguez’s

affirmative defense of limitations had not been addressed by JPMC’s motion.

1 CR 413-414.

On November 18, 2013, Presiding Regional Judge Peeples assigned Senior

Judge Dick Alcala to preside over this matter. 2 CR 96. The case was set for a

December 13 scheduling conference at which time the parties were advised the

case was set for trial on February 10, 2014. Also at that scheduling conference an

order was signed allowing JPMC’s current counsel to substitute in place of prior

counsel. 2 CR 4.

On January 31, 2014, ten days before the trial setting, Rodriguez filed a

motion to recuse Judge Alcala and Judge Peeples. 2 CR 13. The motion to recuse

was premised on a letter sent to Judge Peeples which was docketed by the clerk on

November 18, 2013. 2 CR 15. The letter was from Ruth Prokop, who lived near

the Property, raising concerns about the length of time the case had been pending.

2 CR 1. The motion to recuse was referred to Judge Pat Priest who conducted a

hearing on February 6, 2014. 2/6 RR 1. At the conclusion of the hearing, Judge

Priest denied the motion to recuse. 2/6 RR 41:16-24.

Prior to trial, JPMC filed a motion pursuant to Rule 248 seeking a ruling on

the question of law of whether JPMC’s counterclaims were barred by limitations as

asserted by Rodriguez. 2 CR 185. Rodriguez agreed that it was appropriate for the

3 3671.2108 4823-1350-3009, V.1 trial court to rule on this issue prior to the beginning of the trial. 2/10 RR 20:18 to

24:12; 2/10 RR 31:13-19; 2/10 RR 34:21 to 35:22. The trial court then ruled that

JPMC’s claims were not barred by limitations. 2/10 RR 44:13-24.

Following a two day trial, the jury returned a verdict for JPMC, and the trial

court entered a judgment in accordance with those findings on March 24, 2014.

2 CR 486. Rodriguez then filed this appeal. 2 CR 490.

SUMMARY OF THE ARGUMENT Despite admittedly not making a payment on the Note since early 2000,

Rodriguez remains in possession of the Property and continues to contest the

ability of JPMC to foreclose on the Deed of Trust. Given the unpreserved and

utterly frivolous arguments raised by Rodriguez in his Amended Appellant’s Brief,

it is clear that this appeal is being used as just another tool to attempt to delay a

foreclosure that Rodriguez has to this point been successful in avoiding for over

fourteen years.

Rodriguez first contends that JPMC’s claim for foreclosure is barred by

limitations. However, as the trial court correctly concluded in the context of a

Rule 248 motion before trial, JPMC’s foreclosure claim is not barred by limitations

as a matter of law. Under Texas law, the limitations period on foreclosure is four

years from the time of acceleration. Here, the loan was accelerated on either

July 7, 2000, or August 11, 2000. JPMC’s original counterclaim was filed on

4 3671.2108 4823-1350-3009, V.1 August 11, 2004. Given that the limitations period was tolled for 156 days

between July 2000 and August 11, 2004, the original counterclaim was timely

filed, regardless of which acceleration is treated as effective. JPMC’s first

amended counterclaim, which expressly sought the remedy of foreclosure, related

back to the original counterclaim. As a result, JPMC’s foreclosure claim was not

barred by limitations.

Rodriguez also challenges the admission of a payoff quote and expert

testimony regarding attorney’s fees, contending that the payoff quote was not

disclosed and the expert was not designated until less than thirty days before trial.

However, in making this argument, Rodriguez applies the test from prior Rule

215(5), rather than the current and applicable Rule 193.6. Under the applicable

test, the evidence should be admitted if there is good cause for the late disclosure,

or there is a lack of unfair prejudice or unfair surprise. Rodriguez fails to apply the

second prong of this test. The trial court did not abuse its discretion admitting the

evidence when there was no unfair surprise or unfair prejudice.

The jury’s award of damages was supported by legally sufficient evidence.

Rodriguez challenges the evidence to support the award of interest under the Note.

However, where the evidence included a detailed payoff quote, the Note providing

the rate of interest, an admission by Rodriguez regarding the principal balance

owed, and testimony from JPMC’s corporate representative explaining the general

5 3671.2108 4823-1350-3009, V.1 method of the calculation, there was more than a scintilla of evidence to support

the jury’s damage finding.

Rodriguez attempted to avoid the trial in this matter by filing a motion to

recuse, premised on a letter sent to the Presiding Regional Judge regarding the

length of time this case had been on file. However, nothing about that letter, or the

subsequent rulings of or interactions with the assigned judges, would cause a

reasonable member of the public at large, to have a reasonable doubt that the judge

is actually impartial. As a result, the trial court did not abuse its discretion in

denying the motion to recuse.

With regard to Rodriguez’s final issue, he has waived any issue regarding

the validity of the summary judgment granted to JPMC on his claim to quiet title

because he has failed to adequately brief this issue, leaving JPMC and this Court to

guess about what his complaint may be. In addition, assuming that Rodriguez is

complaining about whether JPMC demonstrated its standing to foreclose, the

summary judgment evidence demonstrated a complete chain of assignments of the

Deed of Trust and revealed that JPMC was in possession of the original Note.

Such evidence is sufficient to demonstrate JPMC’s standing to foreclose as a

matter of law.

6 3671.2108 4823-1350-3009, V.1 Because none of the issues raised by Rodriguez would justify reversing the

Judgment, this litigation, which has spanned over fourteen years should be allowed

to come to a conclusion.

ARGUMENT AND AUTHORITIES

I. JPMC’s claim for judicial foreclosure was not barred by limitations. Rodriguez relied on the affirmative defense of limitations in an attempt to

avoid JPMC’s claim for judicial foreclosure. Pursuant to Rule 248, JPMC filed a

pre-trial brief requesting that the trial court apply the undisputed evidence and

applicable Texas Rules of Civil Procedure to determine as a question of law

whether JPMC’s judicial foreclosure claim was barred by limitations. 2 CR 185.

Rodriguez agreed that the limitations issue was one that should be determined by

the trial court as a matter of law and was not an issue for submission to the jury.

2/10 RR 20:18 to 24:12; 2/10 RR 31:13-19; 2/10 RR 34:21 to 35:22. After

considering the undisputed evidence presented by the parties, the trial court

concluded that JPMC’s judicial foreclosure claim was timely filed as a matter of

law and denied Rodriguez’s defense premised on limitations. 2 CR 485.

Rodriguez states four issues related to his statute of limitations defense, but

appears to assert a combined argument as to all four issues. Appellant’s Am. Br., p.

12-21. Nevertheless, the undisputed evidence demonstrated that Rodriguez’s

limitation defense failed as a matter of law.

7 3671.2108 4823-1350-3009, V.1 A. The undisputed evidence demonstrated that the Original Counterclaim was timely filed. The statute of limitations to conduct a foreclosure sale or file a claim for

judicial foreclosure is four years after the note is accelerated. Holy Cross Church

of God in Christ v. Wolff, 44 S.W.3d 562, 567 (Tex. 2001); TEX. CIV. PRAC. &

REM. CODE § 16.035(a). When a cause of action accrues is a question of law, not

fact. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990).

Rodriguez references letters from March 31, 2000, April 14, 2000 and

May 2, 2000 as demonstrating acceleration of the loan which started the four year

limitations period. Appellant’s Am. Br., p. 15, 21-22. These letters are not any

evidence that the loan was accelerated. “Effective acceleration requires two acts:

(1) notice of intent to accelerate, and (2) notice of acceleration.” Holy Cross, 44

S.W.3d at 566. “Both notices must be clear and unequivocal.” Id. In determining

whether a notice is a notice of acceleration, a “strict reading” is required and a

notice should be “construed to avoid acceleration.” Shumway v. Horizon Credit

Corp., 801 S.W.2d 890, 893 (Tex. 1991). The March and April 2000 letters

memorialize forbearance plans that would allow Rodriguez to bring his loan

current. PX 10; PX 11. There is no mention of acceleration anywhere in these

letters. Id. The May 2, 2000 letter is a notice of default and opportunity to cure

providing notice of the lender’s intent to accelerate in the future if the default is not

cured. 2 CR 246; 2/10 RR 40:16-18 (Rodriguez’s counsel identifying the May 2

8 3671.2108 4823-1350-3009, V.1 letter as a notice of intent to accelerate). Cases interpreting similar letters with

language that the lender “will accelerate” the indebtedness if the default is not

cured have held that such letters are notices of intent to accelerate and are not

accelerations. Ogden v. Gibraltar Saving Assoc., 640 S.W.2d 232, 233 (Tex.

1982); see also Stanley v. CitiFinancial Mortgage Co., Inc., 121 S.W.3d 811 (Tex.

App.—Beaumont 2003, pet. denied); Cain v. Bank United of Texas, FSB, Case

No. 14-95-00601-CV, 1997 WL 428054 (Tex. App.—Houston [14th Dist.] July

31, 1997, pet. denied). The case cited by Rodriguez does not discuss whether

similar letters result in acceleration and instead is concerned with a lender’s

purported waiver of the right to accelerate by failing to invoke acceleration despite

default. Bowie National Bank v. Stevens, 532 S.W.2d 67, 68 (Tex. 1975).

Accordingly, the letters from March 31, 2000, April 4, 2000 and May 2, 2000 are

not evidence that the loan was accelerated at those times.

Instead, the evidence demonstrated that the loan was first accelerated on

July 7, 2000. 2 CR 363. On August 11, 2000, a new notice of acceleration was

issued. The Original Counterclaim was timely filed on August 11, 2004, within

four years after that acceleration. 1 CR 116. Moreover, even if the July 7, 2000

9 3671.2108 4823-1350-3009, V.1 acceleration is treated as the operative acceleration, 1 the application of tolling

principles 2 results in the conclusion the Original Counterclaim was timely filed.

Under Texas law, “where a person is prevented from exercising his legal

remedy by the pendency of legal proceedings, the time during which he is thus

prevented should not be counted against him in determining whether limitations

have barred his right.” Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157

(Tex.1991) (quoting Walker v. Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.—

Corpus Christi 1978, writ ref’d n.r.e.). This general proposition has been applied

specifically to injunctions wrongfully enjoining a foreclosure sale. Pioneer Bldg.

& Loan Ass’n v. Johnston, 117 S.W.2d 556, 559 (Tex. Civ. App.—Waco 1938,

writ dism’d).

With no objection from Rodriguez, the trial court took judicial notice of

various documents from the court file and noted that the court records prevented

foreclosure for several lengthy periods between the July 7, 2000 acceleration and

1 Rodriguez argues that JPMC waived the issue of whether the July 7, 2000 acceleration was abandoned. Appellant’s Am. Br., p. 21-22. While JPMC does not believe this is a correct statement of the law, JPMC does not address the abandonment argument and instead assumes that the July 7, 2000 acceleration remained effective. Even then, the application of tolling provisions results in the conclusion that the Original Counterclaim was filed within the applicable four-year statute of limitations. 2 Rodriguez does not argue in his brief that the trial court erred in determining that tolling provisions applied to toll the statute of limitations, and he failed to address the tolling argument. As a result, Rodriguez has waived any argument contesting that acceleration was tolled. In re Estate of Valdez, 406 S.W.3d 228, 235 (Tex. App.—San Antonio 2013, pet. denied) (an issue that is not adequately briefed is waived). However, even assuming this issue was not waived, the trial court correctly applied tolling provisions.

10 3671.2108 4823-1350-3009, V.1 the filing of the Original Counterclaim on August 11, 2004. 2/10 RR 37.

Specifically, the lender was prevented by Court authority from foreclosing for a

total of 156 days as follows:

• September 5, 2000 Temporary Restraining Order (tolled 14 days)

2 CR 164-166;

• November 22, 2000 Agreement on Setting and Posting (tolled 41

days) 2 CR 379;

• June 1, 2001 Order (tolled 67 days) 2 CR 381-382; and

• October 31, 2001 Rule 11 Agreement (tolled 34 days) 2 CR 398-400.

Accordingly, applying tolling provisions, the Original Counterclaim filed on

August 11, 2004 was timely, even if the July 7, 2000 acceleration (or the

March 31, 2000,3 April 14, 2000 or May 2, 2000 “accelerations” claimed by

Rodriguez) remained effective.

B. The First Amended Counterclaim related back to the filing of the Original Counterclaim. Because the Original Counterclaim was timely filed within the four year

statute of limitations, the First Amended Counterclaim filed on April 20, 2012

(1 CR 291) relates back and was also timely filed. The “relation back” doctrine is

found in section 16.068 of the Texas Civil Practice and Remedies Code which

3 Treating the March 31, 2000 letter as a notice of acceleration, the limitations period would have had to be tolled by 133 days for the August 11, 2004 filing to be timely. The total amount of tolling was 156 days.

11 3671.2108 4823-1350-3009, V.1 provides “if a filed pleading related to a cause of action, cross action, counterclaim,

or defense that is not subject to a plea of limitation when the pleading is filed, a

subsequent amendment or supplement to the pleading that changes the facts or

grounds of liability or defense is not subject to a plea of limitation unless the

amendment or supplement is wholly based on a new, distinct, or different

transaction or occurrence.” TEX. CIV. PRAC. & REM. CODE § 16.068. Texas courts

have devised a two-prong test to determine whether an amended petition relates

back to the original petition. Cram Roofing Co., Inc. v. Parker, 131 S.W.3d 84, 89

(Tex. App.—San Antonio 2003, no pet.). “First, the original cause of action

asserted in the first pleading must have been timely filed; and second, the amended

pleading which alleged new facts or grounds of liability or defense must not be

based on a new, different, or distinct transaction or occurrence.” Id. “Even if the

amended petition contains new causes of action, the new causes of action are not

barred by the statute of limitations unless they arise from a wholly different

transaction.” Id. (holding that the libel cause of action asserted in an amended

pleading was timely when it related to the same transaction at issue in the original

pleading).

Here, as discussed above, the Original Counterclaim was timely filed within

the applicable four-year limitations period from the acceleration of the loan. In

addition, the First Amended Counterclaim did not arise from a wholly different

12 3671.2108 4823-1350-3009, V.1 transaction. The Original Counterclaim asserted claims for breach of contract and

declaratory judgment relating to Rodriguez’s failure to make payments on the loan.

1 CR 116-123. The factual allegations specifically reference the Note and Deed of

Trust and the fact that Rodriguez had not made any payments on the loan since suit

was filed in September 2000. 1 CR 116-117. The First Amended Counterclaim

again asserted claims for breach of the Note and Deed of Trust. 2 CR 179-180.4

As remedy for the breach, the First Amended Counterclaim sought both judicial

and non-judicial foreclosure. 2 CR 393. As these claims related to the same facts

and the same breach of contract, there can be no question that they did not arise

from a “wholly different transaction.” Indeed, Rodriguez does not argue that the

claims in the First Amended Counterclaim arose out of a different transaction.

Instead, Rodriguez attempts to avoid the application of section 16.068 by

noting that section 16.035, the statute of limitations applicable to foreclosure,

requires an “explicit suit for foreclosure” and that a lawsuit must “expressly

include words making it clear” it is a suit for recovery of real property.

4 The counter-plaintiff in the Original Answer was First National Bank of Chicago. 1 CR 116. The counter-plaintiff in the First Amended Answer and Counterclaim was JPMorgan Chase Bank, N.A., successor in interest to First National Bank of Chicago, as Trustee. “In a merger, the privileges, powers, rights, and duties of the corporation are transferred to the surviving corporation and are there continued and preserved.” Smith v. CDI Rental Equipment, Ltd., 310 S.W.3d 559, 565 (Tex. App. –Tyler 2010, no pet.). Thus, “the surviving corporation of a merger may prosecute the claims of . . . the merging entity.” Id. Because JPMC is the successor in interest through merger to First National Bank of Chicago, as Trustee (2/11 RR 9:24 to 10:12), the First Amended Counterclaim was asserted in the correct name of the unchanged real party in interest.

13 3671.2108 4823-1350-3009, V.1 Appellant’s Am. Br., p.16, 19. However, nothing about the language of section

16.035 or case law applying the relation back doctrine supports Rodriguez’s

argument. The language of section 16.035 requires that “a person must bring suit

for . . . the foreclosure of a real property lien not later than four years after the day

the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE § 16.035(a). The

language in section 16.035 is similar to other statutes of limitations and does not

amount to an exemption from the relation back principles dictated by section

16.068.

The language in the general four-year statute of limitations requires that “a

person must bring suit on the following causes of action not later than four years

after the day the cause of action accrues” and proceeds to list the specific actions

such as debt, fraud and breach of fiduciary duty to which the section applies. Id. at

§ 16.004. The general two year statute of limitations is similarly worded requiring

“a person must bring suit for trespass . . . not later than two years after the day the

cause of action accrues.” Id. at § 16.003. The language in each of these sections

specifically reference causes of action that must be brought within the specified

time period. Despite that language, section 16.068 is applied to these causes of

action. For example, section 16.004 requires that a person “must bring suit” for

fraud within the four-year statute of limitations. Id. at § 16.004. The relation back

principles of section 16.068 have been applied where the plaintiff initially timely

14 3671.2108 4823-1350-3009, V.1 filed a breach of contract action and subsequently amended to assert what would

have been a time barred fraud claim. Williams v. Khalaf, 802 S.W.2d 651, 658

(Tex. 1990) (“Although the fraud amended pleadings were filed almost six years

after the transaction, § 16.068 saves the fraud cause of action from being barred by

limitations because the earlier breach of contract pleading was timely and the new

pleading related to the same transaction or occurrence.”).

The language of section 16.035(a) does not require a different application of

section 16.068. Indeed, if Rodriguez’s argument was accepted, it would apply

equally to all causes of action specifically mentioned in a statute of limitations and

would render section 16.068 largely meaningless. As a result, Rodriguez’s

argument must be rejected and the relation back principles of section 16.068 apply

to determine whether the judicial foreclosure claim expressly stated in the First

Amended Counterclaim was timely.

The sole case cited by Rodriguez in his discussion of section 16.035 does

not support a different conclusion. Appellant’s Am. Br., p. 19-20. In Aguero, the

original petition to enforce the note was filed more than four years after, but within

six years of when the cause of action to enforce the note or foreclose accrued.

Aguero v. Ramirez, 70 S.W.3d 372, 374-75 (Tex. App.—Corpus Christi 2002, pet.

denied). The borrower argued that because the right to foreclose was barred by a

four year statute of limitations, the lender was also precluded from enforcing the

15 3671.2108 4823-1350-3009, V.1 note despite the application of a six year statute of limitations to actions to enforce

a note. Id. 373-74. While the Court recognized that rights to enforce a note and

rights to enforce a deed of trust are distinct rights, it was not asked to and did not

apply the relation back doctrine or statute to the time barred claim of foreclosure.

Indeed, the relation back doctrine would not have applied in that situation because

the foreclosure claim was barred by limitations at the time the original petition was

filed. Almazan v. United Services Auto. Ass'n, Inc., 840 S.W.2d 776, 778-79 (Tex.

App.—San Antonio 1992, writ denied) (holding that the relation back doctrine

only applies to claims that would have been timely if asserted in the original

petition because the relation back doctrine is a tolling doctrine). Accordingly,

Aguero has no relevance to the issue of whether the relation back doctrine would

apply under the circumstances presented here where the judicial foreclosure claim

would have been timely if included in the Original Counterclaim in August 2004.

The Original Counterclaim was timely filed within four years of either

August 11, 2000 acceleration or the July 7, 2000 acceleration if tolling is applied

as discussed above. The First Amended Counterclaim was based on the same

transaction or occurrence. Indeed, it simply expressly sought the remedy of

judicial foreclosure as a remedy for the breach of contract claim asserted in the

Original Counterclaim. Under section 16.068, the claim for judicial foreclosure

16 3671.2108 4823-1350-3009, V.1 was timely, and the trial court correctly denied the limitations defense asserted by

Rodriguez.

C. None of the arguments raised and briefed by Rodriguez justify reversing the trial court’s ruling on the limitations issue. Rodriguez now challenges the validity of the procedure used by the trial

court in determining the limitations issue. Appellant’s Am. Br.¸ p. 17-19.

However, before the trial court ruled adversely to him, Rodriguez invited the trial

court to consider and rule on the limitations issue as a matter of law. Rodriguez’s

counsel repeatedly indicated he thought it was appropriate for the trial court to rule

on the limitations issue as a matter of law after the parties submitted documents

demonstrating the undisputed facts relevant to the limitations issue. 2/10 RR 20:18

to 24:12; 2/10 RR 31:13-19; 2/10 RR 34:21 to 35:22. Rodriguez cannot invite this

alleged error and then complain after the trial court rules adversely to him. Tittizer

v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (“a party cannot complain

on appeal that the trial court took a specific action that the complaining party

requested, a doctrine commonly referred to as ‘the invited error’ doctrine.”).

Moreover, the sole case cited by Rodriguez in support of his argument is

irrelevant to the issue at hand. Darpino v. T.D.C.J.-I.D., No. 12-03-00021-CV,

2003 WL 22839250 (Tex. App.—Tyler Nov. 26, 2003, no pet.). In Darpino, a pro

se inmate filed suit against the Texas Department of Criminal Justice. Id. at *1.

Prior to trial, the inmate filed a motion seeking production of documentary

17 3671.2108 4823-1350-3009, V.1 evidence and seeking to subpoena witnesses. Id. The motion was not brought to

the attention of the court until after opening statements had been given. Id. When

the trial court directed the inmate to call his first witness, he advised that he had no

witnesses and for the first time brought the pre-trial motion to the attention of the

court. Id. On appeal, the inmate referred to Rule 248 without discussing it. The

Court noted that Rule 248 did not apply in that situation because the record did not

reveal any questions of law, exceptions to pleadings or other unresolved pending

matters. Id. at *3. In addition, the matter was not raised until after opening

arguments had been given. Id.

In contrast, here, the Rule 248 motion was utilized by JPMC to bring to the

trial court’s attention questions of law that could be resolved before the trial began

based on undisputed facts and facts the trial court could take judicial notice of.

These issues were taken up by the trial court, with the agreement of Rodriguez’s

counsel, before the trial began. Accordingly, there is no error in the trial court

considering these questions of law in the context of a Rule 248 motion prior to the

beginning of the trial.

II. The trial court did not abuse its discretion in admitting the payoff quote shown in Exhibit 24. While Rodriguez quotes the language of Rule 193.6, he fails to accurately

discuss the test that has been developed by the courts in applying Rule 193.6.

Appellant’s Am. Br., p. 23-24. Under the test devised by the courts, if a party fails

18 3671.2108 4823-1350-3009, V.1 to timely disclose evidence in accordance with discovery deadlines, the party may

not offer the evidence unless “(1) good cause exists for the failure to timely make,

amend, or supplement the response, or (2) the failure will not unfairly surprise or

prejudice the other parties.” Dyer v. Cotton, 333 S.W.3d 703, 717 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (citing Alvarado v. Farah Mfg. Co., 830 S.W.2d

911, 913–14 (Tex.1992) (applying former Rule 215.5)) (emphasis added). It is

important to note that the standard discussed by Rodriguez is based on prior Rule

215(5) which only permitted admission of the evidence on a showing of good

cause. Alvarado, 830 S.W.2d at 913–14. The current Rule193.6 allows admission

upon a showing of good cause, or lack of unfair surprise or unfair prejudice. TEX.

R. CIV. P. 193.6(a). Thus, the statement of the test found in Dyer is the correct test

to apply to this situation. Nw. Nat. County Mut. Ins. Co. v. Rodriguez, 18 S.W.3d

718, 722, n.1 (Tex. App.—San Antonio 2000, pet. denied).

A trial court’s decision to admit or exclude evidence under this test is

reviewed for an abuse of discretion. Dyer, 333 S.W.3d at 717; Vela v. Wagner &

Brown, Ltd., 203 S.W.3d 37, 52 (Tex. App.—San Antonio 2006, no pet.). “The

test for abuse of discretion is whether the trial court acted without reference to any

guiding rules or principles. An Appellate court must uphold the trial court’s

evidentiary ruling if there is any legitimate basis for the ruling.” Sierad v. Barnett,

19 3671.2108 4823-1350-3009, V.1 164 S.W.3d 471, 481 (Tex. App.—Dallas 2005, no pet.) (citing Downer v.

Aquamarine Operators, Inc., 701 S.W.3d 238, 241-42 (Tex. 1985).

The trial court did not abuse its discretion in admitting the updated payoff

quote because there was no showing of unfair surprise or prejudice to Rodriguez.

Documents filed with the trial court in June 2011 and re-filed in May 2012,

included an Affidavit reflecting that as of May 2011, the total amount due on the

loan was $394,853.86. 1 CR 185, 341. That sum was composed of $141,657.34 in

principal, $131,402.18 in interest though May 31, 2011, $107,312.79 in escrow

advances, $327.66 in late charges, $207.95 in property inspection fees and

$13,945.94 in corporate advances. 1 CR 185, 341. The nature of a mortgage loan

like the one at issue is that interest continues to accrue and escrow advances

continue to be made and other expenses are incurred in connection with the loan.

Exhibit 24 merely reflected an updated payoff quote with updated amounts for

interest, escrow advances and other fees and expenses associated with the loan.

PX 24. If JPMC was going to provide an updated payoff quote with figures close

in time to the trial date, it is axiomatic that the payoff quote would be produced

close in time to trial. Rodriguez impliedly admits that if Exhibit 24 had been

produced thirty days before trial, he would not have had grounds to challenge the

20 3671.2108 4823-1350-3009, V.1 admissibility of Exhibit 24. The fact that Exhibit 24 was produced 12 days 5 before

trial instead of 30 days before trial as demanded by Rodriguez did not cause any

unfair prejudice or unfair surprise. As a result, the trial court did not abuse its

discretion in allowing the admission of Exhibit 24.

III. The evidence was sufficient to support the jury’s award of damages, including the calculation of accrued interest. Rodriguez contends that there is no evidence to support the damages

awarded by the jury because there is no explanation for how interest was calculated

under the terms of the Note. Appellant’s Am. Br., p. 26. To the contrary, the

evidence is legally sufficient to support the jury’s award of damages based on the

payoff quote, admissions of Rodriguez at trial, and explanation of the payoff quote

provided at trial.

This Court has stated the standard of review applicable to a legal sufficiency

or no evidence challenge as follows:

In a legal sufficiency review, we view the evidence in the light most favorable to the trier of fact’s findings and indulge every reasonable inference that supports them. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). We will reverse a judgment on a legal sufficiency challenge if the record discloses (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the vital fact.

5 Exhibit 24 was included in the summary judgment evidence filed in support of JPMC’s Second Motion for Summary Judgment filed on January 29, 2014. 2 CR 516.

21 3671.2108 4823-1350-3009, V.1 Bus. Staffing, Inc. v. Viesca, 394 S.W.3d 733, 742 (Tex. App.—San Antonio 2012,

no pet.).

The damages awarded by the jury were supported by more than a mere

scintilla of evidence. Rodriguez contends that there was not sufficient evidence to

show the unpaid principal balance owed on the loan and accordingly, any

calculation of accrued interest based on that unpaid principal balance is not

supported by the evidence. However, Rodriguez himself testified that as of

June 30, 2000 and August 7, 2000, the principal balance owed on the loan was

$141,657.34, the amount shown in the payoff relied upon by JPMC. 2/10 RR

143:21 to 144:2; 2/10 RR 153:12 to 154:4. Given that Rodriguez agreed on the

principal amount owed on the Note, there is more than a scintilla of evidence to

support JPMC’s calculation of the principal balance owed on the Note.

In addition, the method of calculating interest was set out in the Note itself,

which provided that “interest will be charged on unpaid principal until the full

amount of principal has been paid,” and that such interest would be at a “yearly

rate of 8.125%.” PX 2. JPMC’s corporate representative Richardra Winder

testified that she reviewed documents and JPMC’s electronic payment records to

verify the amount owed on the loan. 2/11 RR 5:8 to 6:8; 2/11 RR 24:1-7. She

further identified Exhibit 24 as a payoff quote generated by JPMC from its system

records and identified the line item amounts for unpaid principal balance, accrued

22 3671.2108 4823-1350-3009, V.1 interest and escrow advance balances and testified that the amounts shown in the

payoff statement matched the amounts shown in JPMC’s computerized records,

including the computerized records from those who held or serviced the loan prior

to JPMC. 2/11 RR 24:8-13; 2/11 RR 26:10 to 28:15; 2/11 RR 58:17 to 59:10;

2/11 RR 67: 9-16. She explained that interest was calculated at a rate of 8.125%

per year and that the amount of interest due was a simple calculation of 8.125% per

year multiplied by the principal balance extended out over the fourteen plus years

the loan has been in default. 2/11 RR 60:11-23. That amounts to more than a mere

scintilla of evidence to support the jury’s determination of the amounts owed by

Rodriguez on the loan.

In the summary judgment context, courts have repeatedly held that affidavits

from bank employees reflecting a statement of the amount of principal and interest

owed on a loan were not conclusory and were sufficient to establish the amount

owed on a loan as a matter of law, even where the precise interest calculation was

not shown. Sharpe v. Lomas & Nettleton Fin. Corp., 601 S.W.2d 55, 57 (Tex. Civ.

App.—Dallas 1980, writ ref'd n.r.e.); see also Sandhu v. Pinglia Investments of

Texas, L.L.C., 14-08-00184-CV, 2009 WL 1795032, at *5 (Tex. App.—Houston

[14th Dist.] June 25, 2009, pet. denied); Thompson v. Chrysler First Bus. Credit

Corp., 840 S.W.2d 25, 29 (Tex. App.—Dallas 1992, no writ); Atchley v. NCNB

Texas Nat. Bank, 795 S.W.2d 336, 337 (Tex. App.—Beaumont 1990, writ denied).

23 3671.2108 4823-1350-3009, V.1 “A lender need not file detailed proof reflecting the calculations of the balance due

on a note; an affidavit by a bank employee which sets forth the total balance due

on a note is sufficient to sustain an award of summary judgment.” Scott v.

Commercial Services of Perry, Inc., 121 S.W.3d 26, 29 (Tex. App.—Tyler 2003,

pet. denied). If this evidence is not conclusory and is sufficient to entitle a lender

to a judgment as a matter of law in the summary judgment context, the evidence

adduced at trial in this matter is more than a mere scintilla of evidence to support

JPMC’s calculation of damages.

The cases cited by Rodriguez do not apply to these facts. In Williams, the

Court held that the credit card company had not proved the terms of the credit

agreement as a matter of law because it “did not produce the actual agreement or

any other document that established the agreed terms, including the applicable

interest rate or the method for determining the applicability and amount of finance

charges.” Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d

231, 237 (Tex. App.—Houston [1st Dist.] 2008, no pet.). “The interest rate and

other information reflected in the statements that were provided by Unifund are

inconsistent, varying from 5% to 22.4%, and there is no indication of the

agreement reached as to interest.” Id. Here, the terms of the Note, including the

applicable rate of interest was proved through the Note itself. PX 2.

24 3671.2108 4823-1350-3009, V.1 The Colvin case is similarly unavailing. In Colvin, the credit card lender

submitted an affidavit indicating that a credit card application with a $2,000 limit

was approved. Colvin v. Texas Dow Employees Credit Union, No. 01-11-00342-

CV, 2012 WL 5544950, at *1 (Tex. App.—Houston [1st Dist.] Nov. 15, 2012, no

pet.). The affidavit went on to state that the “principal balance due and payable is

$12,444.30, plus interest at the rate of 7.75% from and after August 23, 2007.” Id.

The Court found that there was not sufficient evidence to support summary

judgment because the evidence “does not explain how TDECU suffered damages

in the amount to $12,344.30 when the credit card application on which it relies

indicates a credit limit of $2,000.” Id. at *6.

Because there is more than a mere scintilla of evidence to support JPMC’s

calculation of damages, the damages award to JPMC should be affirmed.

IV. The trial court did not abuse its discretion in admitting JPMC’s expert testimony regarding attorney’s fees. As was the case with the challenge to the admissibility of Exhibit 24, the

trial court’s decision to allow JPMC’s attorney’s fee expert to testify is reviewed

for an abuse of discretion. Dyer, 333 S.W.3d at 717; Vela, 203 S.W.3d at 52. If a

party fails to timely disclose evidence in accordance with discovery deadlines, the

party may not offer the evidence unless “(1) good cause exists for the failure to

timely make, amend, or supplement the response, or (2) the failure will not unfairly

surprise or prejudice the other parties.” Dyer, 333 S.W.3d at 717.

25 3671.2108 4823-1350-3009, V.1 The trial court focused on the issue of unfair surprise or prejudice when the

attorney’s fee issue was raised pre-trial. Rodriguez complained that JPMC’s

current counsel were designated to testify regarding attorney’s fees on January 27.

2/10 RR 12:21-23. The district court responded as follows:

I realize that, but surprise is what I’m looking for. Given the nature of where this case has started from when I was assigned, what’s – and the length of time this case has been pending, I kind of put it on a quick track, so everyone’s sort of had to get on the ball and do with what they have at this present circumstance to get this matter concluded, and now – now, that’s what I want to know is do you have – do you allege any surprise? *** THE COURT: If I’m not wrong, okay. But going back to the surprise. MR. WILLIMANN (counsel for Rodriguez): The surprise, Your Honor, has to do with the designation of Mr. Sudbury and Mr. Lewis as expert witnesses for attorneys fees. That was just done on January 27th, 13 days ago, so that is surprise. There’s no way we can do discovery about their attorneys fees request in these 13 days. So that new – that untimely designation is a surprise as to those two counsel and their designation as expert witnesses for attorneys fees.

MR. SUDBURY (counsel for JPMC): May I very briefly. Throughout the course of this case, the prior attorneys on behalf of Chase were designated. Defendant (Rodriguez) has known that Chase sought its attorneys fees in this case. All that was done was merely to switch the current attorneys for Chase to indicate it would be us instead of one of the prior attorneys. So Defendant Rodriguez has had essentially 14 years to do whatever discovery he wanted to do related to Chase’s attorneys fees, Your Honor.

MR. WILLMANN: Your Honor, it’s 13 days, not 14 years.

26 3671.2108 4823-1350-3009, V.1 MR. SUDBURY: Your Honor, but there’s always been attorneys designated to testify regarding attorneys fees.

2/10 RR 12:24 to 13:7; 2/10 RR 14:5 to 15:4. Following that exchange, the trial

court implicitly found there was not unfair surprise or prejudice and denied the pre-

trial motion to exclude testimony on attorney’s fees. 2/10 RR 15:5-6. Rodriguez

renewed his objection to the timeliness of the designation when the attorney’s fee

testimony was offered at trial. 2/11 RR 68:5-13. The parties argued their positions

as follows:

MR. LEWIS (counsel for JPMC): Judge, attorneys have always been designated to testify as on attorney’s fees as of this case. You know we substituted late last year and there was a scheduling order in place. The scheduling said (sic) the trial. We immediately updated our disclosures, listed Mr. Sudbury in place of the entire (prior) counsel because we had just taken over the case. And, so, we would offer the same testimony that the prior counsel would offer. We’re just different lawyers.

MR. WILLMANN: The – the – the counsel—the current counsel entered in this case at the status conference on December the 13th, 2000 (sic), they were formally in the case. These lawyers could have been designated as expert witnesses on attorney’s fees well before the January 10th cutoff date to designate witnesses. In other words, they were in the case a month. They could have designated these two attorneys as witnesses for attorneys fees in a timely manner. But they did not.

2/11 RR 68:15 to 69:9. The trial court then overruled the objection.

There is no indication of unfair surprise. JPMC had been seeking attorney’s

fees since its counterclaim was filed on August 11, 2004 (1 CR 118) and that claim

27 3671.2108 4823-1350-3009, V.1 was restated in its amended counterclaim on April 20, 2012 (1 CR 298-299). It

was undisputed that JPMC’s prior counsel had been designated as experts on

attorney’s fees. In addition, it is anticipated that attorney’s fees will continue to be

incurred in advance of the trial and during the trial. The amended designation was

simply to allow JPMC’s current attorneys, who would be participating in the trial,

to offer the expert testimony to support the award of attorney’s fees. Given those

facts, the trial did not abuse its discretion in finding a lack of surprise or unfair

prejudice and admitting the testimony on attorney’s fees.

V. It was not an abuse of discretion to deny Rodriguez’s motion to recuse because there was no reasonable doubt that the judges were impartial. A trial court’s decision to deny a motion to recuse is reviewed for an abuse

of discretion. In re H.M.S., 349 S.W.3d 250, 253 (Tex. App.—Dallas 2011, pet.

denied). “A trial court abuses its discretion if it acts in an arbitrary or unreasonable

manner without reference to any guiding rules or principles.” Hansen v. JP

Morgan Chase Bank, N.A., 346 S.W.3d 769, 776 (Tex. App.—Dallas 2011, no

pet.). This Court “examine[s] the totality of the circumstances and will not reverse

an assigned judge’s ruling if it is within the zone of reasonable disagreement.” In

re H.M.S., 349 S.W.3d at 253.

Texas Rule of Civil Procedure 18b provides the grounds for recusal.

Rodriguez asserts that the relevant grounds are that a judge should recuse when

“the judge’s impartiality might reasonably be questioned” or when “the judge has a

28 3671.2108 4823-1350-3009, V.1 personal bias or prejudice concerning the subject matter or a party.” Appellant’s

Am. Br., p. 36; TEX. R. CIV. P. 18b(b)(1), (2). “The test for recusal under rule

18b(2) is ‘whether a reasonable member of the public at large, knowing all the

facts in the public domain concerning the judge’s conduct, would have a

reasonable doubt that the judge is actually impartial.’” Hansen, 346 S.W.3d at

776. A lack of impartiality applies when it appears that the judge “harbors an

aversion, hostility or disposition of a kind that a fair-minded person could not set

aside when judging the dispute.” Gaal v. State, 332 S.W.3d 448, 453 (Tex. Crim.

App. 2011). In discussing the standards applicable to recusal, one Court has noted:

The movant bears the burden of proving that recusal is warranted, and this burden is met only through a showing of bias or partiality to such an extent that the movant was deprived of a fair trial. Id. Judicial rulings alone almost never constitute a valid basis for a motion to recuse based on bias or partiality. See Liteky v. U.S., 510 U.S. 540, 555, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). Furthermore, opinions formed by the judge based on facts introduced or events occurring in the course of proceedings do not constitute a valid basis for a recusal motion unless “they display a deep-seated favoritism or antagonism that would make a fair judgment impossible.” Id. A judge’s ordinary efforts at courtroom administration, even if stern or short-tempered, are immune. Id. at 556, 114 S. Ct. 1147.

In re H.M.S., 349 S.W.3d at 253-54. “In short, a trial court has the inherent power

to control the disposition of cases ‘with economy of time and effort for itself, for

counsel, and for litigants.’” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex.

2001). “A trial court may properly intervene to maintain control in the courtroom,

to expedite the trial, and to prevent what it considers to be a waste of time” and

29 3671.2108 4823-1350-3009, V.1 exercising the court’s broad discretion to “maintain control and promote

expedition” does not amount to a ground for recusal. Id. at 241. “Judicial remarks

during the course of a trial that are critical or disapproving of, or even hostile to,

counsel, the parties, or their cases, ordinarily do not support a bias or partiality

challenge.” Hansen, 346 S.W.3d at 776.

Rodriguez premised his motion to recuse on a letter that was sent to the

Presiding Judge of the Fourth Administrative Judicial Region in October 2013.

2 CR 1. Rodriguez argues that this letter was intended to influence and prejudice

the court. Appellant’s Am. Br., p. 35. However, there is no showing in the record

that this letter in fact had an improper influence over Judge Peeples or Judge

Alcala. At the hearing on the motion to recuse, Rodriguez argued that the letter

impacted how Judge Alcala chose to manage his docket in this matter, as

demonstrated by the fact that he set the case for trial relatively quickly and refused

to allow continuances of trial settings or hearings. 2/6 RR 31:20 to 35:23. These

facts would not give rise to a “reasonable doubt that the judge is actually

impartial.” Instead, Judge Alcala’s rulings applied equally to both parties. While

the letter could potentially have impressed upon Judge Alcala the need to have this

case resolved and off the Court’s docket, that fact would have been equally

apparent from the fact that this case had been pending for thirteen years by that

30 3671.2108 4823-1350-3009, V.1 point. A court’s use of its broad discretion to manage its docket and promote

expedition of cases before it does not serve as a grounds for recusal.

Nothing about Judicial Ethics Opinion 154 or the Code of Judicial Conduct

warrants a finding that the trial court abused its discretion in denying the motion to

recuse. Judicial Ethics Opinion 154 deals with a judge’s ethical obligations when

he is contacted by a litigant ex parte. Appellant’s Am. Br., p. 36-37. This is not a

situation where a litigant engaged in ex parte communications. Instead, the letter

at issue was from a neighbor of Rodriguez. 2 CR 1-2, 30. In addition, neither the

Judicial Ethics Opinion nor the Code of Judicial Conduct set the standard for

recusal. Instead, that standard is set by Rule 18b and cases interpreting that rule.

Under those authorities, the standard for recusal is whether “a reasonable member

of the public at large, knowing all the facts in the public domain concerning the

judge’s conduct, would have a reasonable doubt that the judge is actually

impartial.’” Hansen, 346 S.W.3d at 776. There are no facts here that would lead

to the questioning of the impartiality of the judges involved. As a result, it was not

an abuse of discretion to deny the motion to recuse.

VI. Rodriguez’s briefing is insufficient to preserve any complaints about the granting of JPMC’s summary judgment, and even if preserved, summary judgment was proper. “The Texas Rules of Appellate Procedure require adequate briefing.” ERI

Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 880 (Tex. 2010); see TEX. R.

31 3671.2108 4823-1350-3009, V.1 APP. P. 38.1. Specifically, Rule 38.1(i) requires that an appellant's brief contain

clear and concise arguments, ‘with appropriate citations to authorities and to the

record.’ TEX. R. APP. P. 38.1(i); In re Blankenship, 392 S.W.3d at 259. Failure to

satisfy this requirement waives the issue on appeal. See In re Blankenship, 392

S.W.3d at 259; Dove v. Graham, 358 S.W.3d 681, 685 (Tex. App.—San Antonio

2011, pet. denied).” In re Estate of Valdez, 406 S.W.3d 228, 235 (Tex. App.—San

Antonio 2013, pet. denied).

Rodriguez fails to offer clear and concise argument with appropriate citation

to the record and authorities to explain why the trial court allegedly made an

incorrect decision in granting summary judgment on his claim to quiet title.

Appellant’s Am. Br., p. 38-39. It is impossible to discern from the brief what

precise issue from the summary judgment is even being challenged. While

Rodriguez does cite generally to Mortgage Electronic Registration Systems, Inc. v.

Groves, there is no explanation of what proposition of law that case is cited for,

how that case applies to the facts of this matter, or what summary judgment

evidence is implicated in applying that case. Instead, Rodriguez simply provides

that case cite and then cites to the pages in the record where the entirety of the

summary judgment briefing is located. Appellant’s Am. Br., p. 39. This briefing is

insufficient to preserve this issue for review, and therefore, it has been waived.

32 3671.2108 4823-1350-3009, V.1 Moreover, to the extent this issue is not waived, JPMC is left to speculate as

to how Groves applies here. Given that Rodriguez cites this case in connection

with his quiet title claim, presumably he is citing the case for the proposition that a

quiet title claim in some instances does not require the claimant to show the

strength of its own title, as in the situation where a claimant is seeking to clear a

cloud on its title. Mortgage Electronic Registration Systems, Inc. v. Groves, No.

14-10-00090-CV, 2011 WL 1364070, at *3 (Tex. App.—Houston Apr. 12, 2011,

pet. denied). However, in his response to the motion for summary judgment,

Rodriguez never cites to Groves and does not discuss his quiet title claim.

1 CR 354-363. Instead, the response focuses entirely on addressing the

counterclaim that had been asserted by JPMC. Accordingly, even if the Court

were to indulge in scouring the record to ascertain Rodriguez’s argument, the

argument is not even present in the summary judgment record.

In addition, to the extent Rodriguez is purporting to challenge Chase’s

standing to foreclose based on the chain of assignments of the Deed of Trust, 6 the

summary judgment evidence established Chase’s standing to foreclose.

Specifically, at the summary judgment hearing, the original Note was presented for

the trial court’s inspection. 1 CR 400. There was uncontroverted summary

judgment evidence that Chase was the owner and holder of the Note. 1 CR 340. 6 Rodriguez indicated that the pleadings raised the issue of whether liens had been properly transferred between the various holders. Appellant’s Am. Br., p. 38.

33 3671.2108 4823-1350-3009, V.1 The original blue ink promissory note was also produced at trial. 2/11 RR 7:3-11.

Case law is clear that if a party is the owner or holder of the Note, it has standing

to foreclose. Santiago v. Novastar Mortg., Inc., 443 S.W.3d 462, 478 (Tex. App.—

Dallas 2014, pet. filed); see also Whittier v. Ocwen Loan Servicing, L.L.C., 13-

20639, 2014 WL 6791382, at *2 (5th Cir. Dec. 3, 2014). Accordingly, any alleged

issue regarding the chain of assignments of the Deed of Trust, which has not been

briefed in any detail by Rodriguez, is irrelevant to the issue of Chase’s standing to

foreclose.

Additionally, the evidence establishes a complete chain of assignments of

the Deed of Trust. First Texas Mortgage, the originating lender, assigned the Deed

of Trust to Old Kent Mortgage Company in December 1995. 1 CR 343. Old Kent

then assigned the Deed of Trust to First National Bank of Chicago, as Trustee in

February 1996. 1 CR 347. JPMC is the successor by merger to Bank One, the

successor by merger to First National Bank of Chicago. 2/11 RR 9:24 to 10:12.

12. Accordingly, even if this issue had been briefed and preserved by Rodriguez, it

does not serve as a basis for reversing the trial court’s judgment.

PRAYER WHEREFORE, PREMISES CONSIDERED, JPMorgan Chase Bank, N.A.,

Successor in Interest to First National Bank of Chicago, Trustee, prays that the

Judgment be affirmed in all things.

34 3671.2108 4823-1350-3009, V.1 Respectfully submitted,

/s/ Marcie L. Schout Marcie L. Schout Texas State Bar No. 24027960 Wm. Lance Lewis Texas State Bar No. 12314560 QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 (214) 871-2100 (Telephone) (214) 871-2111 (Facsimile) mschout@qslwm.com llewis@qslwm.com

ATTORNEYS FOR APPELLEE, JPMORGAN CHASE BANK, N.A., SUCCESSOR IN INTEREST TO FIRST NATIONAL BANK OF CHICAGO, TRUSTEE

CERTIFICATE OF SERVICE On February 2, 2015, I served a copy of this Brief for Appellee via electronic delivery upon the following: R. Robert Willmann, Jr., Esq. P.O. Box 460167 San Antonio, Texas 78246.

/s/ Marcie L. Schout Wm. Lance Lewis / Marcie L. Schout

35 3671.2108 4823-1350-3009, V.1 CERTIFICATE OF COMPLIANCE I certify that this document was produced on a computer using Microsoft Word and contains 9,246 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/ Marcie L. Schout Marcie L. Schout

36 3671.2108 4823-1350-3009, V.1