                                                                      ACCEPTED
                                                                  05-19-00385-CV
                                                        FIFTH COURT OF APPEALS
                                                                  DALLAS, TEXAS
                                                               6/19/2019 11:18 AM
                                                                       LISA MATZ
                                                                           CLERK

             No. 05-19-00385-CV
     _________________________________
                                              FILED IN
                                       5th COURT OF APPEALS
    IN THE TEXAS COURT OF APPEALS           DALLAS, TEXAS
  FIFTH DISTRICT OF TEXAS AT DALLAS    6/19/2019 11:18:13 AM
     _________________________________        LISA MATZ
                                                Clerk
             KIMBERLY D. HOGAN,
                         Appellant,

                       v.

 ASPIRE FINANCIAL, INC. D/B/A ASPIRE LENDING,
                          Appellee
    _________________________________

On Appeal from the 162nd Judicial District Court
             Dallas County, Texas
            Cause No. DC-18-01806
    _________________________________

            APPELLEE’S BRIEF
     _________________________________

                            Donald E. Uloth
                            Texas Bar No. 20374200
                            don.uloth@uloth.pro
                            18208 Preston Rd. Suite D-9 # 261
                            Dallas, TX 75252
                            phone: (214) 725-0260
                            fax: (866) 462-6179

                            Counsel for Appellee
                  IDENTITY OF PARTIES AND COUNSEL

      The following is a complete list of the parties to the trial court’s final

judgment, as well as the names and addresses of their trial and appellate counsel:

Plaintiff/Appellant, Kimberly D. Hogan

Counsel for Plaintiff/Appellant in the Trial Court and the Court of Appeals:

      None – Plaintiff/Appellant was, and is, pro se.

Defendant/Appellee, Aspire Financial, Inc. d/b/a Aspire Lending

Counsel for Defendant/Appellee in the Trial Court and the Court of Appeals:

      Donald E. Uloth
      Texas Bar No. 20374200
      18208 Preston Rd. Suite D-9 # 261
      Dallas, TX 75252




                                           ii
                      TABLE OF CONTENTS

Identity of Parties and Counsel .………………………………………………..… ii

Table of Contents ………………………………………………………………. iii

Index of Authorities …………………………………………………………….. iv

Statement of the Case ……………………………………………………………. 1

Statement Regarding Oral Argument …………………………………………….. 1

Issues Presented …………………………………………………………………... 1

Statement of Facts ………………………………………………………………... 2

Summary of the Argument ………………………………………………………. 3

Argument ………………………………………………………………………… 4

    Summary judgment based on limitations was
    proper because Plaintiff’s petition alleged facts
    proving when her causes of action accrued ……………………………….. 4

    Summary judgment was proper on the claim for
    fraud in the sale of real estate because Plaintiff’s
    petition negated the possible application of this claim …………………… 6

    Plaintiff failed to supply any summary judgment evidence
    in response to a proper no-evidence motion for summary judgment,
    so the trial court correctly granted the motion …………………………….. 7

Prayer …………………………………………………………………………….. 8

Certificate of Service ……………………………………………………………... 8

Certificate of Compliance …………………………………………………………9

                                 iii
                     INDEX OF AUTHORITIES

Cases                                                         Page(s)

Alice Roofing & Sheet Metal v. Halleman,
      775 S.W.2d 869 (Tex. App.—San Antonio 1989, no writ) ………………. 4

Marketic v. U.S. Bank Nat'l Assoc.,
     436 F. Supp. 2d 842 (N.D. Tex. 2006) …………………………………… 6

Provident Life & Accident Ins. Co. v. Knott,
      128 S.W.3d 211 (Tex. 2003) ……………………………………………… 5

Washington v. City of Houston,
     874 S.W.2d 791 (Tex. App.—Texarkana 1994, no writ) …………………. 4

Statutes

TEX. BUS. & COMM. CODE § 17.46 et seq. ……………………………………….. 5

TEX. BUS. & COMM. CODE § 27.01 ……………………………………………… 6

Rules

TEX. R. CIV. P. 166a(i) …………………………………………………………... 7




                                 iv
                         STATEMENT OF THE CASE

      Plaintiff filed a civil suit for damages in Williamson County, Texas. CLR

12-16. Defendant counterclaimed for defamation, and moved to transfer venue to

Dallas County. CLR 17-19. After the transfer of venue, the trial court granted

partial summary judgment on five claims. CLR 29. The court later granted

summary judgment on Plaintiff’s remaining claims. CLR 51. After a bench trial

on the counterclaim, the court signed a Final Judgment. CLR 62-63.

              STATEMENT REGARDING ORAL ARGUMENT

      Appellant’s Brief says “Oral Argument Requested” on the cover, but the

brief does not explain how this would be helpful. Appellant does not believe oral

argument it would be helpful to the Court’s decisional process.

                             ISSUES PRESENTED

Issue One

      When the Petition alleges facts establishing when the causes of action
accrued, whether additional proof is required to obtain summary judgment on those
claims based on limitations.

Issue Two

       When the Petition alleges facts negating a cause of action, whether any
additional proof is required to obtain summary judgment on that claim.

Issue Three

       Whether Plaintiff provided the trial court with summary judgment evidence
sufficient to defeat Defendant’s no-evidence motion for summary judgment.

                                         1
                             STATEMENT OF FACTS

       On May 15, 2017, Plaintiff filed her Original Petition in Williamson County,

Texas. The petition alleged that she sought a mortgage loan from Defendant, and

she believed she was approved. She claims she took certain actions in reliance on

her belief, only to learn later that her loan application was denied. The petition is

based entirely on events that occurred on or before June 14, 2013, almost four

years before she filed her lawsuit. CLR (Clerk’s Electronic Record) 12-16.

       On July 3, 2017, Defendant filed an answer (including a limitations

defense), a motion to transfer venue, and a counterclaim for defamation. CLR 17-

19. On January 30, 2018, the court in Williamson County signed an order

transferring the case to Dallas County. CLR 5.

       On July 23, 2018, Defendant filed a motion for partial summary judgment.

CLR 20-22. The motion asserted that four claims were barred by the applicable

statutes of limitation (the claims for negligence, gross negligence, negligent

misrepresentation, and deceptive trade practices). The motion also asserted that a

fifth claim, Plaintiff’s claim for fraud in the sale of real estate, failed because the

statute on which the claim was based did not apply to the facts alleged in the

petition.

       On September 13, 2018, the trial court granted the motion, and signed an

order dismissing these five claims. CLR 29.

                                            2
       On February 11, 2019, after adequate time for discovery, Defendant filed a

no-evidence motion for summary judgment on Plaintiff’s remaining claims

(common law fraud, fraud in the inducement, and promissory estoppel). CLR 37-

41. Plaintiff filed her response to the motion on February 25, 2019. CLR 42-45.

Plaintiff did not include any evidence along with her response, and the trial court

granted the motion by order dated March 7, 2019. CLR 51.

       On March 13, 2019, the trial court conducted a bench trial on the

counterclaim, and on March 20, 2019 the court signed a Final Judgment. CLR 62-

63.

                       SUMMARY OF THE ARGUMENT

       Appellant has not identified any reversible error by the trial court. The first

summary judgment was proper because the Original Petition alleged the facts

necessary for the court to find, as a matter of law: (a) that four claims were barred

by limitations, and (b) a fifth claim was not applicable to the facts alleged in the

petition. The second summary judgment was proper because Plaintiff produced no

summary judgment evidence, and thus failed to show a genuine issue of material

fact for trial.




                                           3
                                    ARGUMENT

Summary judgment based on limitations was proper because Plaintiff’s
petition alleged facts proving when her causes of action accrued.

      The factual allegations in a petition are sometimes sufficient to show that

one or more of the claims being asserted cannot succeed on the merits. For

example, in Washington v. City of Houston, 874 S.W.2d 791 (Tex. App.—

Texarkana 1994, no writ), the plaintiff’s petition alleged facts that proved the

defendant enjoyed governmental immunity from the claims asserted. The opinion

discussed whether any additional proof might be required, beyond plaintiff’s own

allegations, to support the defendant’s request for summary judgment, and the

court answered this question in the negative, stating: “[W]here the plaintiff’s

pleadings themselves establish the lack of a valid cause of action, such as the fact

that the statute of limitations has run, or if the pleadings allege facts which, if

proved, establish governmental immunity, pleadings alone can justify summary

judgment and special exceptions are not required.” Id. at 794.

      In one of the cases cited in Washington as support for this proposition, the

court found summary judgment based on limitations was proper based solely on

the plaintiff’s allegations, without the need for additional evidence. See Alice

Roofing & Sheet Metal v. Halleman, 775 S.W.2d 869, 870-71 (Tex. App.—San

Antonio 1989, no writ).



                                            4
        And so it is in the present case. Plaintiff’s petition describes her efforts to

obtain a mortgage from Defendant, her belief that she had been approved, and the

actions allegedly taken in reliance on her belief. All of these actions took place

before June 14, 2013, the date Plaintiff says she was told her loan application was

denied. CLR 14 at ¶ 9.

        The petition therefore established as a matter of law that her claims accrued

on or before June 14, 2013. See, e.g., Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 221 (Tex. 2003) (a cause of action accrues when events have

occurred that would authorize a party to seek a remedy). Plaintiff did not plead the

discovery rule, or claim that she was unaware of the relevant facts until some later

time.

        Plaintiff filed her lawsuit on May 15, 2017, almost four years after her

claims accrued. CLR 12. Plaintiff’s claims for negligence, gross negligence,

negligent misrepresentation, and for alleged violations of the Texas Deceptive

Trade Practices Act (TEX. BUS. & COMM. CODE § 17.46 et seq.), were therefore

barred by their respective two-year limitations periods. Appellant has not proved

reversible error, and the trial court’s ruling on these four claims should be

affirmed.




                                             5
Summary judgment was proper on the claim for fraud in the sale of real
estate because Plaintiff’s petition negated the possible application of this
claim.

      In her petition, Plaintiff alleged that she sought a loan from Defendant so she

could buy a house. CLR 13. Plaintiff did not allege that she sought to buy a house

from Defendant. Defendant therefore moved for summary judgment because

Plaintiff failed to state a viable cause of action.

      In the motion, Defendant cited Marketic v. U.S. Bank Nat'l Assoc., 436 F.

Supp. 2d 842 (N.D. Tex. 2006), in which the court stated: “It is well established

that a cause of action for statutory fraud [i.e. one based on section 27.01 of the

Texas Business & Commerce Code] does not arise from a transaction between a

mortgagor and a mortgagee because such a transaction does not involve the sale or

transfer of real estate from one party to another.” Id. at 856. Plaintiff did not

contest this, or even address this claim in her response to the motion. CLR 23-28.

      Likewise, Appellant’s Brief does not mention this claim. The trial court

properly granted summary judgment dismissing this claim because the pleadings

themselves established the lack of a valid cause of action. Plaintiff/Appellant has

not shown reversible error with respect to the trial court’s disposition of this claim,

and the ruling should be affirmed.




                                            6
Plaintiff failed to supply any summary judgment evidence in response to a
proper no-evidence motion for summary judgment, so the trial court correctly
granted the motion.

      After adequate time for discovery, Defendant filed a no-evidence summary

judgment motion on Plaintiff’s claims for fraud, fraudulent inducement, and

promissory estoppel. The motion specifically identified the elements of each

claim, and it specified the elements for which there was no evidence. CLR 37-40.

      In this posture, the court was required to grant the summary judgment

motion unless Plaintiff produced evidence sufficient to raise a genuine issue of

material fact. See TEX. R. CIV. P. 166a(i).

      Plaintiff’s response did not include any evidence. She did not submit an

affidavit, and there were no documents attached to or specifically referenced in the

response. The response did state: “All of the Proof/Evidence/Exhibits have been

Submitted and Accepted by the Court,” CLR 44, but there was no explanation of

what proof she was referring to, or how it raised a question of fact. Plaintiff had

her day in court and she was heard, but she presented no evidence to justify going

to trial on her claims.

      The trial court therefore made the only possible ruling it could have made

under the circumstances, and Appellant has not shown any reversible error in the

ruling. This Court should therefore affirm the no-evidence summary judgment on

these claims.


                                          7
                                     PRAYER

      Appellee requests an order affirming the trial court’s summary judgments.


                                              Respectfully submitted,

                                              /s/ Donald E. Uloth
                                              Donald E. Uloth
                                              Texas Bar No. 20374200
                                              18208 Preston Rd. Suite D-9 #261
                                              Dallas, TX 75252
                                              phone: (214) 725-0260
                                              fax: (866) 462-6179
                                              Attorney for Appellee

                         CERTIFICATE OF SERVICE

      I certify that on June 19, 2019, I filed this document with the Clerk of the

Court through the Court’s electronic filing system, and I also served the document

to Plaintiff/Appellant Kimberly D. Hogan by email to kdhogan@ymail.com.


                                              /s/ Donald E. Uloth
                                              Donald E. Uloth




                                          8
                      CERTIFICATE OF COMPLIANCE

      I certify that this brief complies with the typeface requirements of Texas

Rule of Appellate Procedure 9.4(e) because it has been prepared in a conventional

typeface no smaller than 14-point for text and 12-point for footnotes. This

document complies with the word-count limitations of Texas Rule of Appellate

Procedure 9.4(i) because it contains 1,302 words, excluding the parts exempted by

Texas Rule of Appellate Procedure 9.4(i)(1).


                                               /s/ Donald E. Uloth
                                               Donald E. Uloth




                                         9
