Opinion
No. 04-19-00731-CV
09-09-2020
John LANDER, Appellant v. THE BANK OF NEW YORK MELLON fka The Bank of New York, as Trustee for Certificateholders CWABS, Inc., Asset-backed Certificates, Series 2006-23, Appellee
MEMORANDUM OPINION
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-CI-20260
Honorable Cynthia Marie Chapa, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice AFFIRMED
Judge Cynthia Marie Chapa signed the appealed summary judgment order. Judge Norma Gonzalez signed a severance order, making part of the appealed summary judgment order final and appealable.
John Lander appeals a final summary judgment the trial court rendered in favor of the appellee, the Bank of New York Mellon (BONYM). Because Lander fails to challenge all grounds raised in BONYM's summary judgment motion, we affirm.
BACKGROUND
After BONYM notified Lander of its intent to foreclose on his home, Lander sued BONYM and another defendant. Lander alleged breach of contract and fraud claims against BONYM, seeking damages and attorney's fees. BONYM answered, and alleged affirmative defenses and counterclaims. BONYM's counterclaims were for breach of contract; non-judicial foreclosure and, alternatively, judicial foreclosure; and, alternatively, equitable subrogation.
BONYM filed a combined traditional and no-evidence motion for summary judgment, challenging Lander's claims, and asserting its entitlement to judgment as a matter of law on its counterclaims. The trial court granted BONYM's motion, and rendered summary judgment: (1) dismissing all of Lander's claims against BONYM with prejudice; and (2) ordering BONYM is entitled to relief on its counterclaims against Lander.
Because Lander's claims against the other defendant were still pending, the summary judgment was not final. BONYM moved to sever Lander's claims against BONYM to make the summary judgment on Lander's claims final and appealable. The trial court granted BONYM's motion, and severed Lander's claims against BONYM into a separate cause. The severance order did not sever BONYM's counterclaims against Lander into the separate cause. Lander filed a timely notice of appeal in the severed cause.
STANDARD OF REVIEW
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a summary judgment in which the trial court did not specify its basis for granting summary judgment, we review the summary judgment motion to determine whether any grounds asserted therein are meritorious. Heritage Gulf Coast Props., Ltd. v. Sandalwood Apts., Inc., 416 S.W.3d 642, 653 (Tex. App.—Houston [14th Dist.] 2013, no pet.). If an appellant does not challenge all grounds upon which summary judgment could have been granted, we presume any unchallenged ground is meritorious and must affirm. See id.
DISCUSSION
Lander argues the trial court erred in granting summary judgment on BONYM's counterclaims because: (1) "the loan failed to comply with article XVI, § 50, which made the lien invalid"; (2) BONYM "agreed to the terms of a non-recourse loan and they do not hold a valid lien"; (3) "the noncompliant loan made equitable subrogation unavailable to" BONYM; and (4) Lander could not be held personally liable for the $457,816.92 judgment because the BONYM "agreed in the Loan Agreement to look solely to the Property."
A. BONYM's Counterclaims
Lander filed his notice of appeal in the severed cause. Only Lander's claims against BONYM are in the severed cause. BONYM's counterclaims were not severed and remain part of the original cause. Lander's brief challenges the summary judgment as to BONYM's counterclaims. Lander's issues relating to BONYM's counterclaims address an interlocutory summary judgment in the original cause, and are therefore not ripe for disposition in this appeal. Addressing those issues in Lander's appeal of the dismissal of his own claims would require us to render an advisory opinion as to the validity of the trial court's interlocutory summary judgment on BONYM's counterclaims, which we may not do. See Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 683 (Tex. 2020). We therefore lack jurisdiction to decide Lander's challenges to the summary judgment on BONYM's counterclaims. See id.
B. Lander's Claims
Because only Lander's claims against BONYM were severed, our review is limited to the grounds BONYM raised in its motion challenging Lander's claims. Lander's claims were for breach of contract and fraud.
1. Breach of Contract
Lander alleged BONYM "failed to conform to their duties under the contract as Defendants withheld over $3,000 from the loan amount to pay back taxes that encumbered the property upon closing, but never paid such an amount." "As a result of Defendant's [BONYM], breach of contract Plaintiff has suffered financial loss. Plaintiff, seeks attorney's fees under section 38.001 of the Texas Civil Practices and Remedies Code."
BONYM moved for summary judgment on this claim, asserting the following no-evidence grounds:
No Evidence to Support Claim for Breach of Contract. Plaintiff has not and cannot produce evidence establishing that (1) he complied with the terms of the Loan Agreement, (2) that Defendant breached the Loan Agreement, or that (3) Plaintiff has been damaged in any manner. This case has been on file since August 2017, and in that time, Plaintiff has not conducted discovery. A reasonable amount of time for discovery has lapsed and Plaintiff cannot produce evidence to support one or more elements of his claim for breach of contract.BONYM also asserted a traditional summary judgment ground, arguing "Limitations Bars Plaintiff's Breach of Contract Claim for Non-Compliance." Lander's brief does not address all elements of his breach of contract claim (such as damages), cite any relevant authorities regarding those elements, or challenge the limitations ground. See TEX. R. APP. P. 38.1(i); Brooks v. Excellence Mortgage, Ltd., 486 S.W.3d 29, 36 (Tex. App.—San Antonio 2015, pet. denied) (outlining breach of contract elements). We therefore presume the unchallenged summary judgment grounds are meritorious.
In one sentence, Lander's brief states there is no statute of limitations on a trespass to try title claim. Lander did not allege a trespass to try title claim.
2. Fraud
In support of his fraud claim, Lander alleged BONYM "committed fraud by placing a lien on Plaintiff's property, and attempting to foreclose on Plaintiff's property using forged documents. Plaintiff has given written notice to [BONYM], regarding the forgery and violation of Section 50 of the Texas Constitution and Defendant [BONYM], has failed to correct any errors and continues to attempt to foreclose knowing said documents are forged."
BONYM moved for summary judgment on this claim, asserting the following no-evidence grounds:
No Evidence to Support Claim for Fraud. Plaintiff has failed to produce and cannot produce competent summary judgment evidence that: 1) defendant made a representation to Plaintiff; 2) that the representation was false; 3) that the representation was material; 4) that Defendant made the alleged representation with knowledge of its falsity, or made such a representation reckless without knowledge of its truth; 5) that Defendant made the alleged representation with the intent that Plaintiff act on it; 6) that Plaintiff in fact relied on the representation; or 7) that Defendant caused any injury to Plaintiff.Lander's brief does not address any of the elements of his fraud claim, or cite any relevant authorities regarding these elements. See TEX. R. APP. P. 38.1(i). In his brief, Lander does not address all of the grounds for summary judgment, including whether BONYM "made the alleged representation with knowledge of its falsity, or made such a representation reckless without knowledge of its truth." See Mercedes-Benz USA, LLC v. Carduco, Inc., 583 S.W.3d 553, 557 (Tex. 2019) (stating knowledge of falsity, plaintiff's reliance, and injury are elements of a fraud claim). We therefore presume these unchallenged grounds in BONYM's summary judgment motion are meritorious.
Lander also does not address the summary judgment ground based on the economic loss rule.
CONCLUSION
Because we must presume the unchallenged summary judgment grounds are meritorious, we affirm the trial court's judgment as to Lander's claims. Due to a lack of jurisdiction, we do not address Lander's issues challenging the summary judgment on BONYM's counterclaims that remain in the original cause.
Luz Elena D. Chapa, Justice