Opinion
No. 05-11-00275-CV
03-12-2012
GREEN TREE SERVICING, LLC, Appellant v. LANA THOMPSON, Appellee
AFFIRM; Opinion Filed March 12, 2012
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 65733
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
Appellant Green Tree Servicing, LLC appeals from a summary judgment in favor of appellee Lana Thompson. In multiple related issues Green Tree argues that the trial court erred when it rendered judgment in favor of Thompson. We affirm.
Background
Thompson sued her ex-husband, Dana Earl Richardson, and Green Tree, the loan servicer on a mobile home, for claims arising from the payment of insurance proceeds after a fire destroyed the mobile home.
According to Thompson's petition, Thompson and Richardson bought the mobile home from Thompson's employer for $40,000 prior to their marriage. The loan for the mobile home was in Richardson's name only, but the down payment came from the couple's joint checking account. Thompson alleges that the mobile home was awarded to her in the divorce. She also alleges that after the divorce, she made all loan payments and obtained and paid for an insurance policy on the mobile home with Ranchers & Farmers Mutual Insurance Company.
Thompson filed a claim with Ranchers & Farmers Mutual after the mobile home was destroyed by fire in February 2007. Ranchers & Farmers Mutual issued a check in the amount of $57,000 jointly payable to Thompson and Green Tree. Thompson called Green Tree's office and was told to endorse the check and bring it to Green Tree. Thompson contends that she “was assured on the telephone and in person that Green Tree would pay the balance of the loan and send Ms.Thompson a check for the remaining amount.” Thompson endorsed the check and gave it to Green Tree to pay off the remainder of the loan's outstanding balance of $14,358.41. Green Tree cashed the check, paid off the loan, and sent a check for the remaining balance of $42,641.59 to Richardson. Richardson refused to endorse it to Thompson and instead cashed the check.
Thompson sued Green Tree and Richardson and asserted claims against Green Tree for common-law fraud, conversion, negligence, and attorneys' fees. Green Tree answered and filed a motion for summary judgment on Thompson's claims. Thompson also moved for summary judgment on her claims for conversion, negligence, and attorneys' fees, and Green Tree filed a response. The trial court considered Thompson's motion for summary judgment, granted summary judgment in favor of Thompson on her negligence claim, and awarded Thompson $42,641.59 in damages plus prejudgment and postjudgment interest against Green Tree. The trial court did not rule on Green Tree's motion for summary judgment. The trial court also signed an order in which it severed Green Tree's cross-claim against Richardson and recited that the summary judgment finally disposes of all other claims and is appealable. Green Tree appeals from the trial court's summary judgment in favor of Thompson and asks us to reverse and render judgment in favor of Green Tree. Analysis
First Issue
In its first issue on appeal Green Tree argues that the trial court erred in determining that Green Tree was liable to Thompson. Green Tree does not refer to its motion for summary judgment. But rather than asking this Court to remand this case to the trial court, it asks this Court to “render a judgment that Thompson take nothing against Green Tree.” Because Green Tree asks us to render judgment in its favor, we construe Green Tree's first issue as an argument that the trial court erred when it denied Green Tree's motion for summary judgment.
Although Green Tree filed a motion seeking summary judgment in Green Tree's favor on Thompson's claims, there is no evidence in the record to demonstrate that Green Tree's motion was heard or ruled on by the trial court. As a general rule, “[w]hen parties present cross-motions that are opposed and mutually exclusive, an order that grants one motion may implicitly deny the other.” Gen. Agents Ins. Co. of Am., Inc. v. El Naggar, 340 S.W.3d 552, 557 (Tex. App.-Houston [14th Dist.] 2011, pet. denied). But that general rule does not apply in this case because the trial court's summary-judgment order expressly states that it considered only Thompson's motion for summary judgment. See, e.g., Patterson v. City of Brenham, No. 14-10-00111-CV, 2011 WL 782231, at *2 (Tex. App.-Houston [14th Dist.] Mar. 8, 2011, no pet.) (mem. op.) (noting appellant filed motion for summary judgment, but record did not indicate “the trial court ruled on this motion or even that the court was aware of the motion”). There is no reporter's record in this case, and the clerk's record does not demonstrate that Green Tree's motion was set for a hearing or otherwise considered by the trial court. Additionally, Green Tree does not explain how the trial court erred by denying its motion for summary judgment. As a result, we cannot consider Green Tree's first issue. See Tex. R. App. P. 33.1. We resolve Green Tree's first issue against it.
Second and Third Issues
Green Tree argues its second and third issues together, addressing Thompson's claims for common-law fraud, conversion, and negligence. Green Tree argues that Thompson did not prove her claims for negligence, common-law fraud, and conversion as a matter of law. But the trial court granted summary judgment in favor of Thompson on her negligence claim only, and it explained that the basis of its ruling was that Green Tree “breached its duty as constructive trustee to Plaintiff Lana Thompson, a joint payee of Check #0780018184, by disbursing funds that rightfully belonged to Plaintiff to Dana Richardson.” As a result, because the trial court ruled in favor of Thompson on her negligence claim and not on her claims for common-law fraud and conversion, we do not need to address Green Tree's arguments on appeal that Thompson did not prove those claims as a matter of law. Cf. Hixon v. Tyco Int'l Ltd., No. 01-04-01109-CV, 2006 WL 3095326, at *10 n.9 (Tex. App.-Houston [1st Dist.] Oct. 31, 2006, no pet.) (mem. op.) (declining to address appellants' argument that their evidence was sufficient to defeat appellee's no-evidence motion for summary judgment because “the trial court granted no relief on that motion”).
In its combined second and third issues Green Tree's argument concerning Thompson's negligence claim states, in its entirety, as follows:
The elements of negligence are that the Defendant owed a legal duty to the Plaintiff, that Defendant breached the duty and the breach proximately caused the Plaintiff's injury. See Western Investment, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In the present case there is no evidence that Green Tree owed a legal duty to [Thompson] or that Green Tree breached the duty. Specifically, Green Tree's duty was to the insured and to its customer, Richardson, not Appellee Thompson. There is no evidence that Green Tree owed [Thompson] any duty or that Green Tree breached such a duty.
With respect to Thompson's negligence claim, Green Tree does not cite to the record or to any applicable authority to support its argument that it did not owe or breach a duty to Thompson. As a result, we conclude that Green Tree's argument concerning Thompson's negligence claim was not adequately briefed. See Tex. R. App. P. 38.1(i) (argument section of appellant's brief must contain “appropriate citations to authorities and to the record”). We resolve Green Tree's second and third issues against it.
Fourth Issue
In its fourth issue Green Tree argues that Thompson is not entitled to the insurance proceeds because Richardson, not Thompson, is still the owner of the mobile home. We cannot address this argument on appeal, however, because the record does not demonstrate that it was raised below in response to Thompson's motion for summary judgment. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”). We resolve Green Tree's fourth issue against it. Conclusion
We resolve Green Tree's issues against it and affirm the trial court's judgment.
ELIZABETH LANG-MIERS
JUSTICE
110275F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
GREEN TREE SERVICING, LLC, Appellant
V.
LANA THOMPSON, Appellee
No. 05-11-00275-CV
Appeal from the 354th Judicial District Court of Hunt County, Texas. (Tr.Ct.No. 65733).
Opinion delivered by Justice Lang-Miers, Justices FitzGerald and Francis participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Lana Thompson recover the full amount of the trial court's judgment and the costs of this appeal from appellant Green Tree Servicing, LLC and International Fidelity Insurance Company as surety on appellant's supersedeas bond.
Judgment entered March 12, 2012.
ELIZABETH LANG-MIERS
JUSTICE