Opinion
01-20-00403-CV
07-27-2021
NASSER CHEHAB, Appellant v. BBVA USA, Appellee
On Appeal from the 151st District Court Harris County, Texas, Trial Court Case No. 2019-81640
Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
RICHARD HIGHTOWER JUSTICE.
In this breach-of-contract case, the trial court granted a summary judgment against Nasser Chehab in favor of BBVA USA. In two issues, Chehab appeals the summary judgment, asserting that BBVA did not show it was entitled to a traditional or no-evidence summary judgment on his breach-of-contract claim. Because Chehab failed to challenge all grounds on which BBVA sought summary judgment on his claim, we affirm.
Chehab sued BBVA USA as "BBVA Bank." The trial court's Amended Final Summary Judgment-which is the final judgment in this case-states that BBVA was "improperly named as BBVA Bank," which we refer to hereafter as "BBVA."
Background
In April 2015, Chehab purchased a Chevrolet Tahoe from an auto dealership and sought financing for the purchase through the dealership. Chehab and the dealership signed a "Motor Vehicle Retail Installment Sales Contract" (the Contract), setting out the terms of financing, including a requirement that he make monthly payments. The Contract reflects that the auto dealer assigned the Contract to BBVA, f/k/a Compass Bank.
Before filing this suit, Chehab sued BBVA and the auto dealership in another suit filed in November 2015. In that earlier suit, Chehab claimed that he had been led to believe that the Contract had been assigned to Chase Bank, not to BBVA. Chehab alleged that the Contract was altered after he signed it, changing the assignment from Chase Bank to BBVA. In April 2016, the trial court granted a summary judgment in favor of BBVA, ordering that Chehab take nothing on his claims against BBVA, granting BBVA summary judgment on its asserted claims, and awarding BBVA its attorney's fees.
Acting pro se, Chehab filed this suit against BBVA in November 2019. As in the 2015 suit, the dispute here arises from the Contract. In this suit, Chehab acknowledged that he was, at times, late in making his monthly payments to BBVA, resulting in late fees. Chehab alleged that he sent payments to BBVA that included additional funds to pay the late fees. Chehab complained that BBVA applied the additional funds to the principal rather than to his late fees. Chehab asserted that BBVA breached the Contract by applying the funds to the principal. Chehab equated late fees with finance charges and relied on a clause in the Contract, which provided that his payments would be applied first to unpaid finance charges and then "to anything else [he] owed under [the] agreement."
BBVA answered Chehab's suit, generally denying Chehab's breach-of-contract claim and asserting numerous affirmative defenses, including res judicata and collateral estoppel. Along with its answer, BBVA asserted a counterclaim against Chehab for declaratory relief, requesting a determination that it properly applied Chehab's payments and seeking its attorney's fees.
BBVA also sought sanctions against Chehab, asserting that Chehab's suit was "baseless, groundless, . . . frivolous and brought in bad faith and for purposes of harassment." BBVA pointed out that Chehab had previously sued BBVA regarding the Contract and that BBVA had prevailed in the 2015 suit. BBVA asserted that Chehab had threatened to sue BBVA again if BBVA "did not release the judgment" it had obtained against Chehab in the earlier case. BBVA also alleged that Chehab had "a history of filing numerous lawsuits against numerous defendants."
BBVA then filed a no-evidence and a traditional motion for summary judgment. In its no-evidence motion, BBVA claimed that Chehab could not produce evidence of the elements of his breach-of-contract cause of action.
Among its grounds for traditional summary judgment, BBVA asserted that Chehab's breach-of-contract claim was barred by res judicata "and/or" collateral estoppel. BBVA argued that these equitable defenses applied because Chehab could have brought his breach-of-contract claim in the 2015 suit. And BBVA pointed out that it had obtained a take-nothing summary judgment against Chehab in that suit. BBVA's summary judgment evidence included Chehab's petition and the judgment from the 2015 suit as well as the Contract. To support its counterclaim for declaratory relief, BBVA relied on the language of the Contract. BBVA pointed out that the Contract did not define "finance charge" to include late fees, as Chehab claimed. Rather, the Contract separately addressed how late fees and finance charges would be handled.
Chehab responded to BBVA's motions for summary judgment. He continued to assert that BBVA had breached the terms of the Contract by misapplying his payments. Chehab also asserted that his claims were not barred by res judicata or collateral estoppel because his claims in this suit were different from those in the 2015 suit. Chehab's summary judgment evidence included the Contract, documents from BBVA showing his payment history, and his own affidavit.
Following a hearing, the trial court granted BBVA's no-evidence and traditional motions for summary judgment. The trial court's Amended Final Summary Judgment recites that summary judgment was granted "in favor of BBVA on all [Chehab's] claims against BBVA and on all of BBVA's claims against [Chehab]." It states that Chehab had "produced no evidence to the contrary." The judgment also orders that Chehab "take nothing on his claims against BBVA," awards BBVA its attorney's fees, and incorporates an earlier order granting sanctions against Chehab relating to discovery matters.
Appearing pro se, Chehab now appeals.
Attached to BBVA's brief is an order-known as a prefiling order-declaring Chehab a vexatious litigant and ordering that he must obtain permission from the appropriate local administrative judge before filing any new litigation in state court. See Tex. Civ. Prac. & Rem. Code § 11.101. The order was issued in yet another case that Chehab had brought against BBVA. The order reflects that, since 2015, Chehab has filed nine lawsuits besides this suit, including other suits against BBVA, its attorneys, and the auto dealership. In the order, the trial court found, inter alia, that "Chehab has a history of filing or repeatedly re-litigating unsuccessful or frivolous suits." Chehab appealed the prefiling order, but the appeal was recently dismissed for want of prosecution. Chehab v. BBVA USA, No. 01-20-00766-CV, 2021 WL 2931357 (Tex. App.-Houston [1st Dist.] July 13, 2021, no pet. h.). We are aware that, other than an appeal from the prefiling order itself, a clerk of court may not file an appeal presented, pro se, by a vexatious litigant who is subject to a prefiling order unless the litigant obtains an order from the appropriate local administrative judge permitting the filing. See Tex. Civ. Prac. & Rem. Code § 11.103(a), (d). However, we take judicial notice that the prefiling order was signed after Chehab filed this appeal. See Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.1 (Tex. App.-Houston [1st Dist.] 2006, no pet.) ("We may take judicial notice of our own records between the same parties involving the same subject matter."); id. at 878 n.2 (taking judicial notice of Harris County record of vexatious litigants). Thus, the order declaring Chehab a vexatious litigant did not prohibit the filing of this appeal. See Tex. Civ. Prac. & Rem. Code § 11.103(a).
Summary Judgment
In two issues, Chehab generally contends that the trial court erred and "abused its discretion" in granting a take-nothing summary judgment on his breach-of-contract claim, the only cause of action he asserted. BBVA responds that the take-nothing summary judgment on Chehab's claim must be affirmed because Chehab failed to challenge each ground on which the trial court's ruling could have been based.
A. Governing Legal Principles
BBVA moved for summary judgment on Chehab's breach-of-contract claim based on traditional and no-evidence grounds. The trial court granted both motions without specifying the grounds on which it relied. When a trial court does not specify the grounds on which it granted the motion for summary judgment, we must affirm if any of the grounds asserted in the motion are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
An appellant may raise an issue that generally contends that the trial court erred in rendering summary judgment, see Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970), but the appellant must also "present . . . arguments and supporting authority in order to merit reversal," McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex. App.-Houston [1st Dist.] 2007, pet. denied). In other words, "[e]rror is not preserved as to every ground on which summary judgment could be based simply by raising a general issue; the appellant must also support the issue with argument and authorities challenging each ground." Rollins v. Denton Cty., No. 02-14-00312-CV, 2015 WL 7817357, at *2 (Tex. App.-Fort Worth Dec. 3, 2015, no pet.) (mem. op.); see Klentzman v. Brady, 312 S.W.3d 886, 899 (Tex. App.- Houston [1st Dist.] 2009, no pet.) ("Although we recognize that such a broad [Malooly] issue is authorized, an appellant must nevertheless also present argument and supporting authorities in support of that issue."). If the appellant fails to challenge each ground on which summary judgment could have been granted, we must uphold the summary judgment on the unchallenged ground. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.-Dallas 2009, pet. denied).
B. Analysis
As permitted by Malooly Brothers, Chehab has asserted broad issues challenging summary judgment on his breach-of-contract claim. However, we agree with BBVA that the summary judgment must be affirmed because Chehab did not challenge each ground on which the trial court granted the take-nothing judgment on that claim.
To succeed on a no-evidence motion for summary judgment, the movant bears the burden to specifically identify one or more elements for which there is no evidence. Tex.R.Civ.P. 166a(i); see Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671, 695-96 (Tex. 2017). Chehab correctly points out that "[a] no-evidence motion that fails to specifically identify the challenged elements [of a claim] is fundamentally defective and insufficient to support summary judgment as a matter of law." Hamilton as Tr. of Joan Carol DeYoung-Burland Tr. v. Maynard, No. 01-19-00925-CV, 2020 WL 6787514, at *2 (Tex. App.-Houston [1st Dist.] Nov. 19, 2020, no pet.) (mem. op.) (internal quotation marks omitted); see Tex. R. Civ. P. 166a(i). Chehab asserts that BBVA's no-evidence motion did not adequately identify the elements of Chehab's breach-of-contract claim.
The essential elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained resulting from the breach. B & W Supply, Inc. v. Beckman, 305 S.W.3d 10, 16 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). BBVA's motion asserted that Chehab "has failed to provide any evidence of (1) the existence of a contract, (2) performance or tendered performance by [Chehab], (3) breach of the contract by [BBVA], or (4) damages." Thus, contrary to Chehab's contention, BBVA's no-evidence motion specified each element of his breach-of-contract claim that it challenged. From the motion, Chehab was sufficiently notified that BBVA was challenging each of the four elements of his breach-of-contract claim. Because the motion specifically identified the challenged elements, the burden then shifted to Chehab to produce more than a scintilla of evidence in support of each element of his breach-of-contract claim to avoid a no-evidence summary judgment. See B.C. v. Steak N Shake Operations, 598 S.W.3d 256, 259 (Tex. 2020).
On appeal, Chehab has not addressed BBVA's no-evidence challenge to the damages element of his claim. Because Chehab does not challenge every ground on which the no-evidence summary judgment could have been granted on his breach-of-contract claim-specifically, the no-evidence-of-damages ground-we must affirm the take-nothing judgment on that claim. See Janai v. Sanford Rose Assocs. Int'l, Inc., No. 05-18-01079-CV, 2020 WL 728428, at *6 (Tex. App.-Dallas Feb. 13, 2020, pet. denied) (mem. op.) (affirming no-evidence summary judgment on DTPA and fraud claims because appellant failed to address all elements of those claims on which no-evidence summary judgment challenge was made); Miller v. El Campo Holdings LLC, No. 02-15-00388-CV, 2017 WL 370936, at *4-*5 (Tex. App.-Fort Worth Jan. 26, 2017, no pet.) (holding that no-evidence summary judgment must be affirmed because appellant did not address no-evidence ground challenging reliance element of appellant's fraud claim).
In addition, BBVA sought traditional summary judgment based on the affirmative defenses of res judicata and collateral estoppel. See KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015) (recognizing that one route to meet burden for traditional summary judgment is for movant to conclusively prove all elements of affirmative defense). On appeal, Chehab does not address BBVA's asserted affirmative defenses of res judicata or collateral estoppel. Because the trial court could have granted traditional summary judgment on the basis that Chehab's breach-of-contract claim was barred by either res judicata or collateral estoppel, and Chehab has not addressed either ground, we must accept the validity of the unchallenged grounds and affirm the take-nothing summary judgment on that claim. See Hernandez v. Mortg. Elec. Registration Sys., Inc., No. 01-18-00468-CV, 2019 WL 5381995, at *5 (Tex. App.-Houston [1st Dist.] Oct. 22, 2019, pet. denied) (mem. op.) (affirming summary judgment based on unchallenged grounds of res judicata and collateral estoppel); Iglesia Hispana Nueva Vida Houston, Inc. v. Rosin, No. 01-06-00048-CV, 2007 WL 1633723, at *3 (Tex. App.-Houston [1st Dist.] June 7, 2007, no pet.) (mem. op.) (upholding summary judgment on collateral estoppel because appellant did not address it as possible ground for trial court's summary-judgment ruling).
In sum, because Chehab has not challenged grounds on which BBVA sought summary judgment on his breach-of-contract cause of action, we are procedurally constrained to affirm the take-nothing summary judgment on that claim. See McCoy, 240 S.W.3d at 272-273; Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Under these circumstances, we overrule Chehab's two issues without considering his arguments on those issues because we must affirm the trial court's decision to grant summary judgment in favor of BBVA on the unchallenged grounds. See Hernandez, 2019 WL 5381995, at *6.
In his brief, Chehab does not mention BBVA's counterclaim or the portion of the trial court's judgment granting summary judgment on that claim, nor does he mention or challenge the award of attorney's fees or sanctions assessed against him. Thus, any challenge to those portions of the judgment are not preserved. Cf. Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 916 (Tex. 2015) ("A court of appeals commits reversible error when it sua sponte raises grounds to reverse a summary judgment that were not briefed or argued in the appeal."); Jacobs v. Satterwhite, 65 S.W.3d 653, 655-56 (Tex. 2001) (recognizing appellate court may not reverse summary judgment on particular claim when appellant fails to challenge summary judgment on that claim).
Conclusion
We affirm the judgment of the trial court.