Opinion issued December 9, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00426-CV ——————————— VALTON EASON AND TERESA EASON, Appellants V. DEUTSCHE BANK NATIONAL TRUST, Appellee
On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2012-08619
MEMORANDUM OPINION
Valton and Teresa Eason appeal the trial court’s order granting summary
judgment in favor of appellee, Deutsche Bank National Trust, on the Easons’
claims arising from the foreclosure of their home. The Easons contend that the trial court erred in granting Deutsche Bank’s motion for summary judgment
because (1) judgment was granted on a petition that was not on file with the court;
(2) Deutsche Bank should have filed special exceptions before filing its summary
judgment motion; and (3) the judgment disposed of causes of action not addressed
in Deutsche Bank’s motion. We affirm.
Background
On September 30, 2004, Teresa Eason 1 executed an adjustable rate note in
the amount of $132,000 related to real property located in Harris County. The note
was payable to Decision One Mortgage Company, LLC. To secure payment of the
note, the Easons executed a deed of trust encumbering the property. Deutsche
Bank subsequently acquired the note and maintained possession of it through its
loan servicer, GMAC Mortgage, LLC.
In December 2010, the Easons defaulted on their mortgage loan by failing to
make the required monthly payment. After they failed to cure the default,
Deutsche Bank initiated foreclosure proceedings and bought the property at the
foreclosure sale on August 2, 2011.2
1 Teresa Eason’s surname was McGrew at the time she signed the document. 2 On June 29, 2011, the Easons filed suit against GMAC regarding the foreclosure proceedings. After they failed to serve GMAC, the suit was dismissed for want of prosecution.
2 On February 13, 2012, the Easons, acting pro se, filed an Application and
Affidavit for Temporary Restraining Order and Temporary Injunction, seeking
injunctive relief and damages based on allegations of fraud and negligent
misrepresentation. 3 Deutsche Bank answered in a timely manner but waited until
February 2, 2013 to file its hybrid traditional and no-evidence motion for summary
judgment to which the Easons filed no response. Following a hearing on March 1,
2013, the trial court granted Deutsche Bank’s motion for summary judgment and
dismissed the Easons’ claims. The Easons had not attended the hearing.
Subsequently, the Easons—now represented by counsel—filed a motion for
rehearing/motion for new trial arguing that the trial court should deny Deutsche
Bank’s summary judgment motion because the bank (1) failed to specially except
to the Easons’ application before filing its motion; (2) failed to address the Easons’
causes of action in their motion; and (3) moved for summary judgment on a
pleading that was not a live petition. The trial court denied the Easons’ motion for
rehearing/motion for new trial. On appeal, the Easons do not challenge the denial
of their motion for rehearing/motion for new trial; rather, they challenge only the
trial court’s order granting Deutsche Bank’s motion for summary judgment.
3 In their briefs, the parties state that the trial court denied the Easons’ request for preliminary injunctive relief on March 8, 2012, and cite to page 79 of the clerk’s record. However, page 79 of the clerk’s record is Deutsche Bank’s response to the Easons’ motion for rehearing/motion for new trial. The clerk’s record does not include an order denying the Easons’ request for injunctive relief or otherwise reflect such a ruling.
3 Discussion
A. Standard of Review
We review a trial court’s decision to grant a motion for summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A
party seeking a no-evidence summary judgment must assert that no evidence exists
as to one or more of the essential elements of the nonmovant’s claim on which the
nonmovant would have the burden of proof at trial. Miles v. Lee Anderson Co.,
339 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2011, no pet.). In
conducting our no-evidence summary judgment review, we will “review the
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.” Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2008) (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006)). Once the movant specifies the elements on which there is
no evidence, the burden shifts to the nonmovant to raise a fact issue on the
challenged elements. TEX. R. CIV. P. 166a(i). A no-evidence summary judgment
will be sustained on appeal when (1) there is a complete absence of evidence of a
vital fact, (2) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered by the nonmovant to prove a vital fact, (3) the
4 nonmovant offers no more than a scintilla of evidence to prove a vital fact, or (4)
the nonmovant’s evidence conclusively establishes the opposite of a vital fact.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
Under the traditional summary-judgment standard, the movant has the
burden to show that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there are disputed
issues of material fact, we take as true all evidence favorable to the nonmovant and
indulge every reasonable inference in the nonmovant’s favor. Nixon, 690 S.W.2d
at 548–49. A defendant moving for summary judgment must conclusively negate
at least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
B. Analysis
The Easons contend that the trial court erred in granting Deutsche Bank’s
motion for summary judgment because (1) judgment was granted on a petition that
was not on file with the court; (2) Deutsche Bank should have filed special
exceptions before filing its summary judgment motion; and (3) the judgment
disposed of causes of action not addressed in Deutsche Bank’s motion. Deutsche
Bank asserts that it was entitled to judgment as a matter of law on the Easons’
5 claims of fraud and negligent misrepresentation on both no-evidence and
traditional grounds.
To prevail on a fraud claim, a plaintiff must establish that (1) the defendant
made a material representation, (2) the representation was false, (3) the defendant
either knew the representation was false when made or made it recklessly without
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Opinion issued December 9, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-13-00426-CV ——————————— VALTON EASON AND TERESA EASON, Appellants V. DEUTSCHE BANK NATIONAL TRUST, Appellee
On Appeal from the 61st District Court Harris County, Texas Trial Court Case No. 2012-08619
MEMORANDUM OPINION
Valton and Teresa Eason appeal the trial court’s order granting summary
judgment in favor of appellee, Deutsche Bank National Trust, on the Easons’
claims arising from the foreclosure of their home. The Easons contend that the trial court erred in granting Deutsche Bank’s motion for summary judgment
because (1) judgment was granted on a petition that was not on file with the court;
(2) Deutsche Bank should have filed special exceptions before filing its summary
judgment motion; and (3) the judgment disposed of causes of action not addressed
in Deutsche Bank’s motion. We affirm.
Background
On September 30, 2004, Teresa Eason 1 executed an adjustable rate note in
the amount of $132,000 related to real property located in Harris County. The note
was payable to Decision One Mortgage Company, LLC. To secure payment of the
note, the Easons executed a deed of trust encumbering the property. Deutsche
Bank subsequently acquired the note and maintained possession of it through its
loan servicer, GMAC Mortgage, LLC.
In December 2010, the Easons defaulted on their mortgage loan by failing to
make the required monthly payment. After they failed to cure the default,
Deutsche Bank initiated foreclosure proceedings and bought the property at the
foreclosure sale on August 2, 2011.2
1 Teresa Eason’s surname was McGrew at the time she signed the document. 2 On June 29, 2011, the Easons filed suit against GMAC regarding the foreclosure proceedings. After they failed to serve GMAC, the suit was dismissed for want of prosecution.
2 On February 13, 2012, the Easons, acting pro se, filed an Application and
Affidavit for Temporary Restraining Order and Temporary Injunction, seeking
injunctive relief and damages based on allegations of fraud and negligent
misrepresentation. 3 Deutsche Bank answered in a timely manner but waited until
February 2, 2013 to file its hybrid traditional and no-evidence motion for summary
judgment to which the Easons filed no response. Following a hearing on March 1,
2013, the trial court granted Deutsche Bank’s motion for summary judgment and
dismissed the Easons’ claims. The Easons had not attended the hearing.
Subsequently, the Easons—now represented by counsel—filed a motion for
rehearing/motion for new trial arguing that the trial court should deny Deutsche
Bank’s summary judgment motion because the bank (1) failed to specially except
to the Easons’ application before filing its motion; (2) failed to address the Easons’
causes of action in their motion; and (3) moved for summary judgment on a
pleading that was not a live petition. The trial court denied the Easons’ motion for
rehearing/motion for new trial. On appeal, the Easons do not challenge the denial
of their motion for rehearing/motion for new trial; rather, they challenge only the
trial court’s order granting Deutsche Bank’s motion for summary judgment.
3 In their briefs, the parties state that the trial court denied the Easons’ request for preliminary injunctive relief on March 8, 2012, and cite to page 79 of the clerk’s record. However, page 79 of the clerk’s record is Deutsche Bank’s response to the Easons’ motion for rehearing/motion for new trial. The clerk’s record does not include an order denying the Easons’ request for injunctive relief or otherwise reflect such a ruling.
3 Discussion
A. Standard of Review
We review a trial court’s decision to grant a motion for summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A
party seeking a no-evidence summary judgment must assert that no evidence exists
as to one or more of the essential elements of the nonmovant’s claim on which the
nonmovant would have the burden of proof at trial. Miles v. Lee Anderson Co.,
339 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2011, no pet.). In
conducting our no-evidence summary judgment review, we will “review the
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.” Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2008) (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006)). Once the movant specifies the elements on which there is
no evidence, the burden shifts to the nonmovant to raise a fact issue on the
challenged elements. TEX. R. CIV. P. 166a(i). A no-evidence summary judgment
will be sustained on appeal when (1) there is a complete absence of evidence of a
vital fact, (2) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered by the nonmovant to prove a vital fact, (3) the
4 nonmovant offers no more than a scintilla of evidence to prove a vital fact, or (4)
the nonmovant’s evidence conclusively establishes the opposite of a vital fact.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
Under the traditional summary-judgment standard, the movant has the
burden to show that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there are disputed
issues of material fact, we take as true all evidence favorable to the nonmovant and
indulge every reasonable inference in the nonmovant’s favor. Nixon, 690 S.W.2d
at 548–49. A defendant moving for summary judgment must conclusively negate
at least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
B. Analysis
The Easons contend that the trial court erred in granting Deutsche Bank’s
motion for summary judgment because (1) judgment was granted on a petition that
was not on file with the court; (2) Deutsche Bank should have filed special
exceptions before filing its summary judgment motion; and (3) the judgment
disposed of causes of action not addressed in Deutsche Bank’s motion. Deutsche
Bank asserts that it was entitled to judgment as a matter of law on the Easons’
5 claims of fraud and negligent misrepresentation on both no-evidence and
traditional grounds.
To prevail on a fraud claim, a plaintiff must establish that (1) the defendant
made a material representation, (2) the representation was false, (3) the defendant
either knew the representation was false when made or made it recklessly without
any knowledge of its truth and as a positive assertion, (4) the defendant made the
representation with the intention that it be acted upon, (5) the representation was in
fact relied upon, and (6) damage to the plaintiff resulted. See Ins. Co. of N. Am. v.
Morris, 981 S.W.2d 667, 674 (Tex. 1998). To prevail on a claim of negligent
misrepresentation, a plaintiff must demonstrate that (1) the representation is made
by a defendant in the course of his business, or in a transaction in which he has a
pecuniary interest; (2) the defendant supplies “false information” for the guidance
of others in their business; (3) the defendant did not exercise reasonable care or
competence in obtaining or communicating the information; and (4) the plaintiff
suffers pecuniary loss by justifiably relying on the representation. McCamish,
Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.
1999).
In its no-evidence motion, Deutsche Bank argued that it was entitled to
judgment as a matter of law on the Easons’ claims of fraud and negligent
misrepresentation. With regard to the Easons’ fraud claim, Deutsche Bank argued
6 that the Easons could present no evidence that Deutsche Bank made a
representation that was material and false; it was made recklessly as a positive
assertion, without knowledge of its truth; it was made with the intent that the
Easons act on it; and the Easons relied on the alleged misrepresentation resulting in
injury to them. As to the Easons’ negligent misrepresentation claim, Deutsche
Bank argued that the Easons could present no evidence that Deutsche Bank
supplied false information for the guidance of others; Deutsche Bank failed to
exercise reasonable care or competence in obtaining or communicating the
information; they justifiably relied on the alleged representation; and they suffered
pecuniary loss as a result.
Once Deutsche Bank specified the elements on which there was no
evidence, the burden shifted to the Easons to raise a fact issue on the challenged
elements. See TEX. R. CIV. P. 166a(i). The Easons, however, did not present any
evidence to the trial court raising a fact issue regarding any of the challenged
elements of either cause of action.4 Because the Easons failed to meet their burden
under Rule 166a(i), Deutsche Bank was entitled to a no-evidence summary
judgment on the Easons’ claims of fraud and negligent misrepresentation. See 4 Pro se litigants are not exempt from complying with the rules of procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (noting “no basis exists for differentiating between litigants represented by counsel and litigants not represented by counsel in determining whether rules of procedure must be followed.”).
7 King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003) (noting no-
evidence summary judgment will be sustained on appeal when there is complete
absence of evidence of vital fact). As such, we conclude that the trial court
properly granted summary judgment in favor of Deutsche Bank. We overrule the
Easons’ issue.
Conclusion
We affirm the trial court’s judgment.
Jim Sharp Justice
Panel consists of Justices Keyes, Sharp, and Huddle.