Glenn L. Leffler v. JP Morgan Chase Bank, N.A., F/K/A Bank One F/K/A First USA Bank A/K/A Chase Bank U.S.A., N.A.

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

GLENN L. LEFFLER, §
No. 08-07-00320-CV
Appellant, §
Appeal from the
v. §
34th District Court
JP MORGAN CHASE BANK, N.A., f/k/a §
BANK ONE, f/k/a FIRST USA BANK, of El Paso County, Texas
a/k/a CHASE BANK U.S.A., N.A., §
(TC#2006-925)
Appellee. §

OPINION

This is an appeal from the granting of a traditional and no-evidence motion for summary

judgment in favor of JP Morgan Chase Bank, N.A. (Chase or Appellee) in a suit alleging conversion,

negligence, breach of contract, fraud, and usury. Glenn L. Leffler (Leffler or Appellant) argues that

the trial court erred in granting summary judgment in favor of Chase. We affirm.

I. FACTUAL BACKGROUND

Appellant sued Appellee on February 24, 2006 for conversion, negligence, breach of contract,

fraud, and usury. Appellant alleged he was double billed by the Appellee in 1996 in the amount of

$3,994.74 plus interest, late fees, and other amounts. Appellant had two credit card accounts with

Appellee; the first ended in 4425 and the second account in 8972. On or about June 6, 1996

Appellant requested that the balance on the 4425 account be transferred to the 8972 account. The

July 1996 statements for both accounts reflect the $3,994.74 transfer and reference the same

transaction number, F336600HC000C2156. The September 1996 statement for account 4425 shows

a subsequent charge for a balance transfer of $3,761.57 and has a reference number of
F336600JY000C4206. Although account 4425 was closed in June of 1996 after the balance transfer,

it could be charged on for a period of three months.

Appellant alleged that the original balance transferred from account 4425 to account 8972

of $3,994.74 was charged back to account 4425 in the amount of $3,761.57 and that he repeatedly

requested that Chase remove the charge from account 4425. Appellant paid account 4425 in full in

December of 2003. On January 5, 2005, over a year later, Appellant sent a written request to

Appellee for the return of the double-billed funds; this request was denied in writing by the Appellee

on February 19, 2005. On February 24, 2006, Appellant filed suit. On December 14, 2006, Appellee

filed a Traditional and No-Evidence Motion for Summary Judgment. On July 31, 2007, the trial

court granted the summary judgment, without stating the grounds, and a take-nothing judgment was

entered. On appeal Appellant challenges the trial court’s granting of the Traditional Motion for

Summary Judgment but does not challenge the granting of the No-Evidence Motion for Summary

Judgment.

II. DISCUSSION

We review the granting of a summary judgment de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003). Summary judgments must stand on their own merits. Rhone-Poulenc, Inc. v. Steel,

997 S.W.2d 217, 223 (Tex. 1999). When reviewing a summary judgment, we take as true all

evidence favorable to the nonmovant. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911

(Tex. 1997); Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Wornick

Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). We indulge every reasonable inference and resolve

any doubts in the nonmovant’s favor. See Science Spectrum, Inc., 941 S.W.2d at 911; Friendswood

Dev. Co., 926 S.W.2d at 282; Wornick Co., 856 S.W.2d at 733; Nixon v. Mr. Property Management
Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). On appeal, the movant still bears the burden of

showing that there is no genuine issue of material fact, and that the movant is entitled to judgment

as a matter of law. See Nixon, 690 S.W.2d at 548.

Traditional Summary Judgment

TEX .R.CIV.P. 166a provides a method of summarily terminating a case when it clearly

appears that only a question of law is involved and that there is no genuine fact issue. See Swilley

v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972). The party moving for summary judgment carries the

burden of establishing that no material fact issue exists and that it is entitled to judgment as a matter

of law. See TEX .R.CIV .P. 166a; Wornick Co., 856 S.W.2d at 733. The movant must establish its

right to summary judgment on the issues expressly presented to the trial court by conclusively

proving all elements of the movant’s cause of action or defense as a matter of law. See Walker v.

Harris, 924 S.W.2d 375, 377 (Tex. 1996); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.

1995). A defendant moving for summary judgment on the affirmative defense of limitations has the

burden to conclusively establish that defense. See Velsicol Chem. Corp. v. Winograd, 956 S.W.2d

529, 530 (Tex. 1997).

No-Evidence Summary Judgment

A no-evidence summary judgment under Rule 166a(i) is reviewed under a legal sufficiency

standard. Martinez v. Leeds, 218 S.W.3d 845, 848 (Tex.App.–El Paso 2007, no pet.); Wyatt v.

Longoria, 33 S.W.3d 26, 31 (Tex.App.–El Paso 2000, no pet.). The party moving for a no-evidence

summary judgment must assert that there is no evidence of one or more essential elements of a claim

or defense on which the nonmovant would have the burden of proof at trial. Martinez, 218 S.W.3d

at 848; see TEX .R.CIV .P. 166a(i). The moving party must specifically state the elements as to which

there is no evidence. Gray v. Woodville Health Care Center, 225 S.W.3d 613, 616 (Tex.App.–El
Paso 2006, pet denied); see TEX .R.CIV .P. 166a(i). The burden then shifts to the nonmovant to

produce evidence raising a fact issue on the challenged elements. Martinez, 218 S.W.3d at 848. To

raise a genuine issue of material fact, the nonmovant must set forth more than a scintilla of probative

evidence as to an essential element of his claim or defense. A no-evidence summary judgment is

properly granted if the plaintiff fails to bring forth more than a scintilla of probative evidence to raise

a genuine issue of material fact as to the challenged elements. Jackson v. Fiesta Mart, Inc., 979

S.W.2d 68, 70-71 (Tex.App.–Austin 1998, no pet.).

On Appeal

Where the district court does not state the basis for granting summary judgment, the appellant

must negate all grounds that support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,

473 (Tex. 1995); State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 381 (Tex. 1993);

Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). If the appellant fails to negate each ground on

which the judgment may have been rendered, we must uphold the summary judgment. See Carr,

776 S.W.2d at 569; TGS-NOPEC Geophysical Co. v. Combs, 268 S.W.3d 637, 644

(Tex.App.–Austin 2008, pet. filed). When a ground upon which summary judgment may have been

rendered, whether properly or improperly, is not challenged, the judgment must be affirmed.

Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex.App.–Dallas 1992, writ denied).

In this case the Appellee filed a No-Evidence and a Traditional Motion for Summary

Judgment. The trial court granted summary judgment without stating the basis for its ruling.

Appellant’s petition asserted claims of fraud, conversion, negligence, breach of contract, and usury.

Appellee’s No-Evidence Summary Judgment Motion specifically asserts that there was no evidence

on each element of every cause of action. On the fraud claim, the Appellee asserted that there was

no evidence that Appellee made a false material misrepresentation, that the Appellee made a false
representation when the Appellee knew the representation was false or made the representation

recklessly as a positive assertion and without knowledge of its truth, that the false representation was

made with the intent that Appellant act on it, that Appellant relied on the false material

representation made or that the fraudulent representation caused damage or injury to Appellant. On

the negligence claim, the Appellee asserted that there was no evidence to show that it breached a

duty to plaintiff or that it proximately caused any injury or damages. On the conversion claim, the

Appellee asserted that there was no evidence that Appellant owned, possessed, or had the right to

immediate possession of property, or that the property was personal property. On the breach of

contract claim, Appellee asserted that there was no evidence of a valid, enforceable contract between

the Appellant and Appellee, of a breach of that contract, or that the Appellant suffered any injury.

On the usury claim, the Appellee asserted that there was no evidence that Appellee took, received,

reserved, or charged a rate of interest greater than is allowed by 12 U.S.C. § 85, or that the Appellee

knowingly took, received, reserved, or charged a rate of interest greater than is allowed by 12 U.S.C.

§ 85.

In response to the No-Evidence Motion, the Appellant had the burden to produce more than

a scintilla of probative evidence to raise a genuine issue of material fact on each element specifically

challenged in the No-Evidence Motion. The Appellant’s Response to the No-Evidence Motion states

that the Appellee was incorrect that there is no evidence and refers to the plaintiff’s affidavit. The

Appellant’s response does not specifically address each element challenged as is required by

TEX .R.CIV .P. 166a(i). Because the Appellant failed to raise a fact issue on each element of each

cause of action by producing more than a scintilla of probative evidence, the Appellant did not carry

his burden of overcoming the no-evidence summary judgment at trial. Martinez, 218 S.W.3d at 848.

On appeal the Appellant was required to challenge both the traditional and the no-evidence
grounds upon which the summary judgment could have been granted; however, he does not

challenge the granting of the no-evidence summary judgment. Because the Appellant has failed to

raise a challenge to the granting of the summary judgment on no-evidence grounds, this issue is

waived on appeal, and we must affirm the summary judgment on those grounds. See Carr, 776

S.W.2d at 569. Because we affirm the trial court’s ruling, we find it unnecessary to discuss the

statute of limitations arguments raised in the Traditional Motion for Summary Judgment.

III. CONCLUSION

We affirm the judgment of the trial court.

GUADALUPE RIVERA, Justice

May 13, 2009

Before Chew, C.J., McClure, and Rivera, JJ.