Opinion
No. 05-10-00444-CV
Opinion Filed September 27, 2011.
On Appeal from the 68th Judicial District Court Dallas County, Texas, Trial Court Cause No. 10-00482-C.
Before Justices MORRIS, O'NEILL, and FILLMORE.
MEMORANDUM OPINION
In three points of error, Darren L. Reagan argues the trial court erred by granting summary judgment in favor of Tolleson Private Bank because (1) Tolleson failed to comply with section 51.002(d) of the property code when it initiated the foreclosure process before the judgment reviving Tolleson's liens on Reagan's house was final, (2) Tolleson initiated and completed the foreclosure process before the judgment reviving Tolleson's liens on Reagan's house was final, and (3) Tolleson's defense that Reagan's claims were barred by collateral estoppel was not supported by the law or the summary judgment evidence. We limit recitation of the procedural history, pleadings, and facts of this case because these matters are well-known to the parties. We issue this memorandum opinion because the law to be applied in the case is well settled. See Tex. R. App. P. 47.4. We affirm the trial court's judgment.
Reagan obtained two loans from Tolleson and agreed to the imposition of two liens on his house to secure the loans. After Reagan wired money to Tolleson to satisfy the two loans on the property, Tolleson released the liens. Tolleson was subsequently notified by a trustee in the bankruptcy proceedings of a third party that the transfer of the funds to Tolleson was viewed as preferential under the bankruptcy code. The trustee demanded that Tolleson return the money. Tolleson sued Reagan over the disputed funds, and the parties entered into a settlement agreement in which Reagan agreed that, if Tolleson was required to return any of the funds to the bankruptcy trustee, Reagan would owe Tolleson the same amount that was returned to the trustee and the liens on the property would be reinstated.
Tolleson subsequently sued Reagan to enforce the settlement agreement. The trial court granted Tolleson partial summary judgment on July 28, 2007. On August 21, 2007, Tolleson issued a notice of default on the liens to Reagan. On September 10, 2007, the trial court signed a final judgment reimposing the liens on the property and finding the release of the liens was void (the 2007 judgment). On September 11, 2007, Tolleson issued a notice of sale for the property and sold the property at a foreclosure sale on October 2, 2007.
On July 24, 2009, Reagan filed this case against Tolleson. Reagan alleged Tolleson breached the parties' contract by foreclosing on the property when the judgment reestablishing the liens on the property was not final. Reagan also brought claims against Tolleson for constructive fraud, for wrongful disclosure, and under the Texas Debt Collection Act and the Texas Deceptive Trade Practices Act.
Tolleson filed a motion for summary judgment on the grounds that Reagan's claims were barred by collateral estoppel, Tolleson had the contractual right to foreclose on the property any time after Reagan defaulted on his obligations under the loans on the property, and Tolleson did not have to wait until the appeal of the 2007 judgment was final to foreclose on the property. In his response, Reagan argued Tolleson was required to wait until the 2007 judgment was final before initiating the foreclosure process, and his claims were not barred by collateral estoppel. The trial court granted Tolleson's motion for summary judgment without specifying the grounds.
On appeal, Reagan challenges the trial court's grant of summary judgment in three points of error. Reagan specifically argues that Tolleson failed to comply with section 51.002(d) of the property code because the 2007 judgment was not final when Tolleson initiated the foreclosure process, Tolleson initiated the foreclosure process and conducted the foreclosure sale before the 2007 judgment was final, and Tolleson failed to establish its defense of collateral estoppel as a matter of law.
Section 51.002(d) of the property code provides:
Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall serve a debtor in default under a deed of trust or other contract lien on real property used as the debtor's residence with written notice by certified mail stating that the debtor is in default under the deed of trust or other contract lien and giving the debtor at least 20 days to cure the default before notice of sale can be given under Subsection (b). The entire calendar day on which the notice required by this subsection is given, regardless of the time of day at which the notice is given, is included in computing the 20-day notice period required by this subsection, and the entire calendar day on which notice of sale is given under Subsection (b) is excluded in computing the 20-day notice period.
Tex. Prop. Code Ann. § 51.002(d) (West Supp. 2010).
We review a summary judgment do novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004); Smith v. Deneve, 285 S.W.3d 904, 909 (Tex. App.-Dallas 2009, no pet.). When we review a traditional summary judgment in favor of a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Smith, 285 S.W.3d at 909. A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). When multiple grounds for summary judgment are raised and the trial court does not specify the ground or grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 684 (Tex. App.-Dallas 2007, pet. denied) (op. on reh'g). If an appellant does not challenge each possible ground on which summary judgment could have been granted, we must uphold the summary judgment on the unchallenged ground. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.-Dallas 2009, pet. denied).
In its motion for summary judgment, Tolleson asserted it was entitled to judgment as a matter of law because collateral estoppel barred Reagan's claims, Tolleson had the contractual right to foreclose on the property at any time after Reagan defaulted on the loans, and Tolleson was not required to wait until the appeal of the 2007 judgment was final to foreclose on the property. In his brief on appeal, Reagan argues the trial court erred by granting summary judgment because the summary judgment evidence established (1) Tolleson initiated the foreclosure process and conducted the foreclosure sale before the 2007 judgment was final, (2) Tolleson failed to comply with section 51.002(d) of the property code by initiating the foreclosure process before the 2007 judgment was final, and (3) Reagan's claims were not barred by collateral estoppel. However, Reagan does not challenge Tolleson's second ground for summary judgment that it had a contractual right to foreclose at any time after Reagan defaulted on his obligations under the loans. By failing to brief one of the grounds for summary judgment, Reagan waived any error as to the granting of summary judgment on that ground. See Malooly Bros., Inc., 461 S.W.2d at 120; In re Estate of Bendtsen, 230 S.W.3d 823, 826 (Tex. App.-Dallas 2007, pet. denied). Because Reagan does not challenge every possible ground for the trial court's summary judgment, we must affirm the summary judgment granted in favor of Tolleson. See Jarvis, 298 S.W.3d at 313-14; Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.-Dallas 2005, no pet.) (reviewing court will affirm summary judgment as to particular claim if appellant does not present argument challenging all grounds on which summary judgment could have been granted).