Affirmed and Memorandum Opinion filed April 7, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00550-CV
D. PATRICK SMITHERMAN, Appellant
V.
BANK OF AMERICA, N.A., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2011-47746
MEMORANDUM OPINION
Appellant D. Patrick Smitherman challenges the summary judgment in favor
of appellee Bank of America, N.A. (BANA) on Smitherman’s breach of contract
and fraud claims. Smitherman asserts that he raised genuine issues of material fact
on both of his claims, which precludes summary judgment. Because we determine
that Smitherman failed to raise a genuine fact issue regarding damages, we affirm.
BACKGROUND
In 2005, Smitherman entered into a mortgage agreement to purchase real
property located at 1044 West 25th Street, #E, Houston, by executing a note for
$183,900, secured by a deed of trust. Smitherman defaulted on his February and
March 2011 mortgage payments, which at that time amounted to $1,205.65 per
month. BANA, the note holder, notified Smitherman of the default in writing on
March 21, 2011. The notice provided that Smitherman could cure the default on or
before April 20, 2011 by paying $2,514.28, which consisted of past due mortgage
payments and a late fee. The notice provided that to cure the default, BANA “must
receive the amount of $2,514.28 plus any additional regular monthly payments or
payments, late charges, fees and charges which become due on or before April 20,
2011.” (emphasis added). The notice further stated:
The default will not be considered cured unless [BANA] receives
“good funds” in the amount of $2,514.28 on or before April 20,
2011. . . . If less than the full amount that is due is sent to us, we can
keep the payment and apply it to the debt but still proceed to
foreclosure since the default would not have been cured.
If the default is not cured on or before April 20, 2011, the
mortgage payments will be accelerated with the full amount
remaining accelerated and becoming due and payable in full, and
foreclosure proceedings will be initiated at that time. As such, the
failure to cure the default may result in the foreclosure and sale of
your property.
According to Smitherman, on April 19, he went to a local BANA branch “to
cure his defaults.” He spoke to the branch manager and explained his situation. He
was put through by phone at the branch location to a member of BANA’s Loss
Mitigation Unit. Smitherman spoke with this individual, a female whose last name
was Ramirez, and she advised him that BANA would accept $2,411.30 to cure the
default. Smitherman asserts that Ramirez informed him that BANA would waive
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the late charges and accept the past-due mortgage payments to cure his default.
Ramirez also advised Smitherman that his April 2011 payment, due at that time,
could be repaid in four equal monthly installments, beginning on May 18 and
continuing through August 18. Smitherman understood that under this
arrangement, his mortgage payments for May, June, July, and August would be
due on the 18th of each month and would include equal portions of the April 2011
payment. Ramirez indicated that the necessary paperwork would be sent to
Smitherman to reflect this repayment plan. 1 That same day, Smitherman authorized
the issuance of an electronic check in the amount of $2,411.30 to BANA.
Smitherman defaulted on the May 18 mortgage payment, believing he had
been set up for automatic debit for the payment. 2 He asserted that he did not
discover the payment had not gone through until he received a July 19, 2011 debt
acceleration notice from BANA. This letter provided that payment of past due
amounts on Smitherman’s mortgage loan had not been received and the mortgagee
had elected to accelerate the maturity of the debt. It stated that Smitherman had a
right to reinstate the loan and that he could call the Foreclosure Department to
obtain reinstatement figures. Smitherman could not recall receiving any
correspondence from BANA following his April 19 telephone conversation with
Ramirez until he received the July 19 debt acceleration notice. BANA attached a
1
In his June 2013 deposition, Smitherman could not recall whether he received anything
in writing from BANA regarding the repayment plan; he further stated that he could not recall if
the female, whose name he also could not recall, indicated that something in writing would be
sent. He stated that he “throw[s] a lot of [his] mail away.” But in his January 2014 affidavit
attached to his summary judgment response, Smitherman stated definitively that (1) Ramirez was
the name of the individual to whom he had spoken and (2) she indicated the “necessary
paperwork” to reflect the repayment plan would be sent to him.
2
In his June 2013 deposition, Smitherman offered no reason for his failure to pay his
May through August 2011 mortgage payments.
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copy of a notice of substitute trustee sale to the debt acceleration notice, which
provided that the property would be sold on September 6, 2011, by public auction.
On August 12, Smitherman filed this suit seeking a restraining order,
temporary injunction, permanent injunction, and damages for breach of contract.
Smitherman alleged that BANA had breached its mortgage agreement with him by
failing to properly notify him and permit him to cure the default. Smitherman
obtained a temporary restraining order (TRO) that same day, preventing BANA
from foreclosing on the property. The parties agreed to extend the TRO until
September 9, 2011. No other injunctive relief appears of record.
On January 7, 2014, BANA filed a traditional and no-evidence motion for
summary judgment. In this motion, BANA asserted that Smitherman’s claims for
breach of contract, injunctive relief, and fraud failed as a matter of law. BANA
further asserted that Smitherman lacked evidence of one or more of the elements of
each of his claims. Smitherman responded to BANA’s summary judgment motion,
asserting that fact issues precluded summary judgment. The trial court heard the
motion, and, following the hearing, entered final summary judgment in favor of
BANA on all of Smitherman’s claims. This appeal timely followed.
ANALYSIS
A. Standard of Review
We review de novo the trial court’s decision to grant a summary judgment.
Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009).
When the trial court grants the judgment without specifying the grounds, we will
affirm if any of the grounds presented are meritorious. FM Props. Operating Co. v.
City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). BANA moved for summary
judgment on both traditional and no-evidence grounds. Because we affirm the trial
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court’s summary judgment on no-evidence grounds, we describe only the standard
of review applicable to a no-evidence summary judgment.
We review the summary judgment evidence in the light most favorable to
the non-movant, crediting evidence favorable to the non-movant if reasonable fact
finders could, and disregarding contrary evidence unless reasonable fact finders
could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009); see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003). In a no-evidence summary judgment motion, the movant asserts that
there is no evidence of one or more essential elements of the claims for which the
non-movant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The trial
court must grant the motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i). The non-
movant is “‘not required to marshal its proof; its response need only point out
evidence that raises a fact issue on the challenged elements.’” Hamilton v. Wilson,
249 S.W.3d 425, 427 (Tex. 2008) (quoting Tex. R. Civ. P. 166a(i) cmt.–1997). We
review a no-evidence summary judgment for evidence that would enable
reasonable and fair-minded fact finders to differ in their conclusions. Id. (citing
City of Keller, 168 S.W.3d at 822).
B. No Evidence of Damages
The elements of a breach of contract claim are (1) a valid contract; (2)
performance or tendered performance by the plaintiff; (3) breach of the contract by
the defendant; and (4) damages to the plaintiff resulting from that breach. West v.
Triple B Servs., LLP, 264 S.W.3d 440, 446 (Tex. App.—Houston [14th Dist.]
2008, no pet.). In the no-evidence portion of its motion for summary judgment,
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BANA asserted, inter alia, that Smitherman had no evidence of damages. 3
Smitherman responded to the summary judgment motion and attached his affidavit.
Regarding damages, Smitherman stated, “Plaintiff has suffered damages as a result
of the breach by Defendant of the Deed of Trust.” That is the only reference in
support of his claim for damages for breach of contract. Smitherman refers to
“Exhibit D” in support of this conclusory statement, but there is no Exhibit D
contained in our record. Thus, Smitherman failed to come forward with evidence
of damages in response to BANA’s no-evidence motion. See Tex. R. Civ. P.
166a(i) (“[T]he court must grant the motion [for summary judgment] unless the
respondent produces summary judgment evidence raising a genuine issue of
material fact.”).
On appeal, however, Smitherman asserts that his answer to BANA’s first
interrogatory provides evidence of his damages. But “a party cannot rely on its
own answer to an interrogatory as summary judgment evidence.” Morgan v.
Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curiam). Further, BANA
emphasizes that the property was not sold at foreclosure and Smitherman continues
to live there, even though he has not made a mortgage payment since April 2011 or
paid property taxes since 2010. Smitherman acknowledges that he has not paid the
mortgage on the property since April 2011. He asserts, however, that he has been
unable to sell the property because his attempts to sell the property “became
impossible once [he] had to file this litigation to in fact protect this same home.”
Smitherman fails to explain how his inability to sell a property in which he has
3
Smitherman contends that summary judgment on his fraud claim was also improper.
Smitherman did not include a claim for fraud in his live pleading, but BANA addressed fraud in
its summary judgment motion. Smitherman has not asserted that fraud was tried by consent. See
Tex. R. Civ. P. 67. Nonetheless, even if we were to consider this claim as tried by consent, lack
of damages or injury would vitiate any claim of fraud. See, e.g., Aquaplex, Inc. v. Rancho La
Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (listing elements of fraud claim and equating
injury with damages).
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been living without having paid his mortgage or property taxes for several years
constitutes evidence of damages. To the extent that Smitherman is alleging
damages in the form of lost profits, he has failed to provide adequate evidence of
such damages.4 See, e.g., Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc.,
877 S.W.2d 276, 278–79 (Tex. 1994) (explaining requisites for proof of damages
of lost profits, including that they must be proven with “reasonable certainty”).
In short, Smitherman has not provided any competent summary judgment
evidence of damages. Thus, the trial court did not err in granting BANA’s no-
evidence summary judgment motion on Smitherman’s claims. 5 Accordingly, we
overrule Smitherman’s issues.
4
Smitherman averred in his affidavit that he had been attempting to sell his property
when BANA initiated foreclosure proceedings against him. However, in his response to the no-
evidence portion of BANA’s summary judgment motion, he did not refer to this evidence. But,
he did refer to his affidavit in response to BANA’s assertion that he had no evidence of injury
relative to his “fraud claim.” Thus, in an abundance of caution, we address this evidence on
appeal.
5
On appeal, Smitherman asserts that he is entitled to injunctive relief as follows:
[BANA]’s entire argument as to why [Smitherman] was not entitled to injunctive
relief is premised on its claim that [Smitherman] will not prevail on his breach of
contract claim. The summary judgment evidence, however, showed that
[Smitherman] will likely prevail on a breach of contract claim.
Such a conclusory argument, with no citations to authority or the record, constitutes briefing
waiver. See Fox v. Alberto, No. 14-13-00007-CV, —S.W.3d—, 2014 WL 6998094, at *6 (Tex.
App.—Houston [14th Dist.] Dec. 11, 2014, no pet. h.); Tex. R. App. P. 38.1(i).
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CONCLUSION
We have overruled Smitherman’s appellate issues and affirm the trial court’s
judgment.
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally.
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