Opinion issued June 3, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00604-CV
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TONY LEE AND JAMES MORGAN, Appellants
V.
BAC HOME LOANS SERVICING, LP, FKA COUNTRYWIDE HOME
LOANS SERVICING, LP, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2011-26464
MEMORANDUM OPINION
Appellants, Tony Lee and James Morgan, challenge the trial court’s grant of
the motions to dismiss and for summary judgment of appellee, Bank of America,
N.A., as successor by merger to BAC Home Loans Servicing, LP, formerly known
as Countrywide Home Loan Servicing, LP (“Countrywide”), on their claims
against Bank of America for breach of contract, negligence, and wrongful
foreclosure. In three issues, Lee and Morgan contend that the trial court erred in
dismissing Morgan’s claims, granting Bank of America summary judgment on
Lee’s claims, and denying their motions for new trial.
We affirm.
Background
On October 11, 2007, Lee purchased the real property and improvements
located at 7207 Tickner Street in Houston, Texas, by borrowing money from
Countrywide. Lee agreed to repay the loan by executing a promissory note
secured by a deed of trust, which named Mortgage Electronic Registration
Systems, Inc. (“MERS”) 1 as the beneficiary and nominee of the original lender,
Countrywide Bank, FSB. The deed of trust was recorded in the mortgage records
of Harris County, Texas. MERS subsequently assigned the deed of trust to Bank
of America on October 28, 2010. 2
In 2010, Lee became delinquent on the loan. Bank of America sought, and
Lee submitted, an application for a loan modification under the United States
1
The MERS system is “an electronic mortgage registration system and
clearinghouse that tracks beneficial ownerships in, and servicing rights to,
mortgage loans.” In re Mortg. Elec. Registration Sys. (MERS) Litig., 659 F.
Supp.2d 1368, 1370 (J.P.M.L. 2009).
2
The original assignment was recorded in the real property records of Harris
County, Texas.
2
Treasury Department’s Home Affordable Modification Program (“HAMP”), 3 but
no modification was ever approved. Bank of America later accelerated the loan
and posted the property for non-judicial foreclosure. Meanwhile, Lee entered into
a short sale contract to sell the property to Morgan, and together they sued Bank of
America seeking to enjoin foreclosure. The trial court granted Lee and Morgan an
injunction and proceeded with their claims for breach of contract, negligence, and
wrongful foreclosure.
Bank of America filed a no-evidence summary-judgment motion against
both Lee and Morgan, and it moved to dismiss Morgan’s claims for lack of
standing, asserting that it had no relationship with him regarding the property at
issue. Bank of America further asserted that no private cause of action exists under
HAMP and Morgan had no evidence to support the elements of his claims for
breach of contract and negligence. It also asserted that Lee had no evidence to
support any of the elements of his claim for breach of contract, any claim arising in
tort is precluded by the economic loss doctrine, and no private cause of action
exists under HAMP.
In his response to Bank of American’s motion to dismiss, Morgan asserted
that he has standing both as a third-party beneficiary to the contract between Lee
and Bank of America and in his own capacity for tortious interference with the
3
See 12 U.S.C § 5219(a) (2009).
3
sales contract between him and Lee. Morgan further asserted that a justiciable
dispute exists as to specific performance of his contract for sale with Lee and a
breach of the contract between Lee and Bank of America. In response to Bank of
America’s summary-judgment motions,4 Lee and Morgan together asserted that
Morgan has standing as a third-party beneficiary to the contract between Lee and
Bank of America; they had evidence creating a fact issue on the elements of their
claims for breach of contract and negligence; Lee performed under the contract,
cured any default by entering into a sales agreement with Morgan, and Bank of
America breached its contract with Lee by proceeding with the foreclosure despite
his cure; Bank of America did not have the authority to accelerate the note and
foreclose on the property because it was not the holder of the note; Bank of
America did not follow HAMP policies and procedures;5 and Bank of America
was improperly attempting to circumvent special exceptions practice through its
motion.
As summary-judgment evidence, Lee and Morgan attached to their response
the affidavit of Morgan and several pages from the deed of trust. Bank of America
4
Although entitled, “Plaintiffs’ Response to Defendant’s No-Evidence Motion for
Summary Judgment Against James Morgan,” the response addresses issues raised
in Bank of America’s separate no-evidence summary-judgment motions against
Morgan and Lee.
5
Morgan and Lee asserted that Bank of America had adopted United States
Treasury Directives regarding HAMP as its own internal policies and procedures.
4
moved to strike certain paragraphs of Morgan’s affidavit, and the trial court
granted its motion as to various paragraphs on the ground that they contained
conclusory statements.
The trial court granted Bank of America’s motion to dismiss Morgan’s
claims, and it granted summary judgment against Lee on his claims. Lee and
Morgan then filed motions for new trial, arguing that the trial court had erred in
granting Bank of America summary judgment because Bank of America had used
its summary-judgment motion to circumvent special-exceptions practice, there was
an inadequate time for discovery, they had produced evidence raising a fact issue
on the elements challenged by Bank of America, and a disputed fact issue existed
about whether Bank of America had approved the proposed sale between Lee and
Morgan. Morgan also argued that he should be “reinstated” into the case because
the trial court had erroneously found that it did not have jurisdiction over his
claims. The trial court denied Lee and Morgan’s motions for new trial.
Dismissal of Morgan’s Claims
In their first issue, Lee and Morgan simply assert that the “Motion to
Dismiss for Lack of Jurisdiction against James Morgan [s]hould have been
[d]enied.” Lee and Morgan present no further argument or citation to the record or
authority beyond this sentence.
5
The conclusory, unsupported title in one sentence, contained in a
preliminary section of the brief listing the issues presented, without any discussion
of the issue in the argument section, is insufficient to raise an issue for our review.
See TEX. R. APP. P. 38.1(i) (requiring a brief to contain a “clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record”); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284
(Tex. 1994) (noting that appellate courts have discretion to deem issues waived due
to inadequate briefing); M.D. Mark, Inc. v. PIHI P’ship, No. 01–98–00724–CV,
2001 WL 619604, at *12 (Tex. App.—Houston [1st Dist.] June 7, 2001, no pet.)
(not designated for publication) (“There is no ‘argument and authority’ section
corresponding to the three points of error listed in the table of contents. As such,
they are not properly before the Court.”). Because there is no discussion of this
issue in the body of Lee and Morgan’s brief and no citation to supporting authority,
we hold that they have presented nothing for our review. See Cervantes-Peterson
v. Texas Dep’t of Family & Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—
Houston [1st Dist.] 2006, no pet.); Richard v. Cornerstone Constructors, Inc., 921
S.W.2d 465, 469 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (overruling
points of error because although “courts generally construe the briefing rules
liberally, a point of error unsupported by the citation of any authority presents
nothing for [an appellate court] to review”).
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We overrule Lee and Morgan’s first issue.
No-Evidence Summary Judgment
In his second issue, Lee argues that the trial court erred in granting summary
judgment against him because Bank of America used its no-evidence summary-
judgment motion to circumvent special-exceptions practice, there was an
inadequate time for discovery, he produced summary-judgment evidence raising a
fact issue on the elements challenged by Bank of America, and a disputed fact
issue exists as to whether Bank of America had approved the proposed sale
between Lee and Morgan.
The trial court’s grant of summary judgment relates only to Lee’s claims
because it dismissed Morgan’s claims. Because the trial court’s summary
judgment against Lee did not prejudice Morgan, he has no justiciable interest in the
summary judgment and lacks standing to challenge it. See Kitchen v. Norkus, No.
01-12-01054-CV, 2013 WL 6198324, at *1 (Tex. App.—Houston [1st Dist.] Nov.
26, 2013, no pet.) (mem. op., not designated for publication); see also A & B Bolt
& Supply, Inc. v. Nat’l Oil Well Varco, LP, No. 01–07–01069–CV, 2008 WL
340511, at *2 (Tex. App.—Houston [1st Dist.] Feb. 7, 2008) (mem. op., not
designated for publication) (dismissing certain appellants who were not enjoined
by trial court’s order).
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We review a no-evidence summary judgment de novo under the same legal-
sufficiency standard used to review a directed verdict. Provident Life & Accident
Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Gen. Mills Rests., Inc. v. Tex.
Wings, Inc., 12 S.W.3d 827, 832–33 (Tex. App.—Dallas 2000, no pet.). To prevail
on a no-evidence summary-judgment motion, a movant must allege that there is no
evidence of an essential element of the adverse party’s cause of action or
affirmative defense. TEX. R. CIV. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v.
Reese, 148 S.W.3d 94, 99 (Tex. 2004). The burden then shifts to the nonmovant to
present evidence raising a genuine issue of material fact as to each of the elements
challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006); Hahn v. Love, 321 S.W.3d 517, 524 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied). Although the non-movant is not required to marshal his proof, he
must present evidence that raises a genuine issue of material fact on each of the
challenged elements. TEX. R. CIV. P. 166a(i); see Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004). A no-evidence summary-judgment motion may not
be granted if the non-movant brings forth more than a scintilla of evidence to raise
a genuine issue of material fact on the challenged elements. See Ridgway, 135
S.W.3d at 600. More than a scintilla of evidence exists when the evidence “rises to
a level that would enable reasonable and fair-minded people to differ in their
conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
8
1997). When reviewing a no-evidence summary-judgment motion, we assume that
all evidence favorable to the non-movant is true and indulge every reasonable
inference and resolve all doubts in favor of the non-movant. Spradlin v. State, 100
S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Special Exceptions Practice
Lee first argues that the trial court erred in granting Bank of America
summary judgment because it used the motion to circumvent special-exceptions
practice. In support of his argument, Lee relies on several cases in which the
defendants attacked the sufficiency of the plaintiffs’ pleadings, arguing in their
summary-judgment motions that the plaintiffs had failed to state a cause of action.
See Kassen v. Hatley, 887 S.W.2d 4, 13 n. 10 (Tex. 1994); Vawter v. Garvey, 786
S.W.2d 263, 264 (Tex. 1990); San Jacinto River Auth. v. Duke, 783 S.W.2d 209,
209 (Tex. 1990). However, these cases are not applicable here because the
defendants in those cases based their matter-of-law summary-judgment motions on
the plaintiffs’ pleadings and whether a plaintiff had stated a claim. Here, in its no-
evidence summary-judgment motion, Bank of America argued that Lee had no
evidence to support the elements of his claims, not that his pleadings failed or were
insufficient to assert a cause of action. The trial court simply granted Bank of
America summary judgment based on the lack of any evidence produced by Lee in
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response to the no-evidence motion, not on the basis of a failure to sufficiently
state a claim.
Inadequate time for discovery
Lee next argues that the trial court erred in granting Bank of America
summary judgment because he had not yet had an adequate opportunity for
discovery. When a party contends that it has not had an adequate opportunity for
discovery before a summary-judgment hearing, the party must file either an
affidavit explaining the need for further discovery or a verified motion for
continuance. See Tenneco, Inc. v. Enter. Prods., Co., 925 S.W.2d 640, 647 (Tex.
1996); West v. SMG, 318 S.W.3d 430, 443 (Tex. App.—Houston [1st Dist.] 2010,
no pet.). The record does not reflect that Lee took either of these steps; thus, he
failed to preserve error. See Tenneco, Inc., 925 S.W.2d at 647; Doe v. Roman
Catholic Archdiocese of Galveston–Houston ex rel. Dinardo, 362 S.W.3d 803,
811–12 (Tex. App.—Houston [14th Dist.] 2012, no pet.); Triad Home Renovators,
Inc. v. Dickey, 15 S.W.3d 142, 145 (Tex. App.—Houston [14th Dist.] 2000, no
pet.).
Genuine Issues of Material Fact
Lee next argues that the trial court erred in grating Bank of America
summary judgment because a fact question exists as to whether Bank of America
10
approved his proposed sale to Morgan and he provided summary-judgment
evidence raising a fact issue on the elements of his claims.
Lee does not discuss the standard of review applicable to this issue, provide
any analysis, or cite any relevant authority. A brief must contain a clear and
concise argument for the contentions made with appropriate citations to the
authorities and to the record. See TEX. R. APP. P. 38.1(i). Lee neither makes any
substantive argument, nor provides any citation to authority demonstrating that the
trial court erred in granting summary judgment. Lee provides this Court no
guidance as to how Morgan’s affidavit or the deed of trust attached to his response
precluded summary judgment on any of his causes of action, nor does he point out
any material fact issue on the elements necessary to support his causes of action.
See Washington v. Taylor, 01-08-00255-CV, 2010 WL 1571201, at *5 (Tex.
App.—Houston [1st Dist.] Apr. 8, 2010). Thus, this portion of Lee’s issue is
waived. See TEX. R. APP. P. 38.1(i); Saudi v. Brieven, 176 S.W.3d 108, 120 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied) (holding that appellant’s failure to
cite authority and provide analysis in initial brief waived issue on appeal).
Moreover, we note that Lee has presented no evidence raising a fact issue on any
element of his claims challenged by Bank of America in its no-evidence summary-
judgment motion, and he has not otherwise shown that a genuine issue of material
fact existed on the pertinent elements.
11
Accordingly, we hold that the trial court did not err in granting Bank of
America summary judgment.
We overrule Lee’s second issue.
Motion for New Trial
In their third issue, Lee and Morgan assert in one sentence, without any
additional briefing, that the “Motion for New Trial should have been granted” for
the same reasons that the trial court erred in granting Bank of America summary
judgment.
We review the trial court’s denial of a motion for new trial for an abuse of
discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983); Xenos Yuen
v. Fisher, 227 S.W.3d 193, 204 (Tex. App.—Houston [1st Dist.] 2007, no pet.). A
trial court has broad discretion to deny or to grant a motion for new trial, and the
trial court’s discretion will not be disturbed on appeal absent a showing of a
manifest abuse of that discretion. Batra v. Clark, 110 S.W.3d 126, 128 (Tex.
App.—Houston [1st Dist.] 2003, no pet.).
Lee and Morgan’s arguments in their motions for new trial reiterated the
arguments that they presented in their response to Bank of America’s no-evidence
summary-judgment motion and motion to dismiss Morgan’s claims. We have
concluded that the trial court did not err in granting summary judgment against
Lee, and Morgan has waived the issue of whether the trial court erred in dismissing
12
his claims. Accordingly, we further hold that the trial court did not err in denying
Lee and Morgan’s motions for new trial.
We overrule Lee and Morgan’s third issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
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