Opinion
No. 05-14-00583-CV
03-08-2016
J. WAYNE JOHNSON, Appellant v. HERRING BANK, CHURCH LOANS & INVESTMENTS TRUST, AND CHURCHLOANS.COM, INC., Appellees
On Appeal from the 160th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-11-15858
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Fillmore, and Justice Stoddart
Opinion by Chief Justice Wright
This case involves a claim for wrongful foreclosure. The trial court granted two summary judgments, one in favor of appellee Herring Bank (Herring) and one in favor of appellees Church Loans & Investments Trust and Churchloans.com, Inc. (together, Church Loans). Appellant J. Wayne Johnson argues the affidavit of the substitute trustee, which was offered in support of both summary judgment motions, was flawed because (1) it set forth conclusions rather than facts, and (2) it failed to attach all of the documents referenced in the affidavit. Johnson also contends the summary judgments should fail because the trial court did not identify the ground on which it granted the motions. We affirm the trial court's judgments.
The property at issue in this case was owned by the three plaintiffs below: God's Tabernacle of Deliverance C.V.M., Inc., Cardell Deyun Booker, and Johnson. When plaintiffs defaulted on their mortgage obligations, sellers Herring and Church Loans gave notice and foreclosed on the property. The foreclosure took place on January 3, 2012, which was the first Tuesday of that month. However, when the substitute trustee filed his deed, he mistakenly identified January 4, 2012 as the foreclosure date. The plaintiffs based their claim on this error, arguing the foreclosure did not comply with the Texas Property Code's requirement that the foreclosure take place on the first Tuesday of the month. The substitute trustee's deed was subsequently corrected to show the correct foreclosure date. But the plaintiffs argued the correction was issued in error and was void.
Herring and Church Loans filed substantively identical motions for summary judgment. Both contained a no-evidence ground, challenging plaintiffs to offer evidence that the foreclosure sale was not held in compliance with the property code. Both also contained a traditional ground, based on the affidavit of the substitute trustee, which asserted the sale was valid as a matter of law and the substitute trustee's deed was properly corrected. The trial court granted both parties' motions without specifying the ground on which it relied. Only Johnson perfected an appeal to this Court.
When both no-evidence and traditional summary judgment motions are filed we generally address the no-evidence motion first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). We apply well known standards in our review of no-evidence summary judgment motions. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). We employ the same legal sufficiency standard used to review a directed verdict. TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. To defeat the summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of material fact on each challenged element of its claim. TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. Within the framework of these standards, we review summary judgments de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
Both motions for summary judgment set forth the following no-evidence ground:
After an adequate time for discovery, Plaintiffs have no evidence of any material failure to follow the requirements of the Texas Property Code or other statute with respect to the conduct of the foreclosure sale on the property at issue.Thus, Johnson was required to come forward with evidence raising a genuine issue of material fact on his claim that the foreclosure was not held in compliance with statute. See Gish, 286 S.W.3d at 310. Johnson's response did not include affidavits or documentary evidence. His response was verified, but a verified responsive pleading is not competent summary judgment evidence. Olsen v. Comm'n for Lawyer Discipline, 347 S.W.3d 876, 886 (Tex. App.—Dallas 2011, pet. denied); see also Wol+Med Sw. Dallas Ltd. P'ship v. Dallas Cent. Appraisal Dist., No. 05-12-00011-CV, 2013 WL 1247053, at *1 (Tex. App.—Dallas Feb. 27, 2013, no pet.) (mem. op.) ("A response to a motion for summary judgment is a pleading and may not itself be considered summary judgment evidence."). Because Johnson offered no competent summary judgment evidence in response to the no-evidence motions, he has failed to carry his burden under rule 166a(i). See Gish, 286 S.W.3d at 310.
Johnson has likewise failed in this Court to identify any error in the no-evidence motion or proceedings. The only reference his brief makes to the no-evidence motion is to complain that the trial court did not specify the ground on which it was granting the summary judgment motions. The trial court is under no such obligation. Instead, when the trial court grants a summary judgment motion without specifying the ground on which it relied, the appellant must establish that each of the grounds asserted in the motion is insufficient to support the judgment. Fidelity & Deposit Ins. v. Swan Roofing, L.L.C., 167 S.W.3d 633, 635 (Tex. App.—Dallas 2005, no pet.). We must affirm the summary judgment if any of the theories presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
Johnson has failed to identify any error associated with the trial court's granting of the no-evidence summary judgment motions in this case. Accordingly we need not address the motions' traditional grounds, and we affirm the trial court's judgments.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 140583F.P05
JUDGMENT
On Appeal from the 160th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-11-15858.
Opinion delivered by Chief Justice Wright, Justices Fillmore and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Herring Bank, Church Loans & Investments Trust, and Churchloans.com, Inc. recover their costs of this appeal from appellant J. Wayne Johnson. Judgment entered March 8, 2016.