Tony Lee and James Morgan v. Bac Home Loans Servicing, LP FKA Countrywide Homes Loans Servicing, LP

Opinion issued June 3, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00604-CV
———————————
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”).

6
 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).

7
 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

9
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.

13