                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00046-CV


KAREN B. DYER AND RUSSELL A.                                      APPELLANTS
DYER

                                       V.

ACCREDITED HOME LENDERS,                                             APPELLEE
INC.


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          FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                    ----------

                        MEMORANDUM OPINION1

                                    ----------

      Appellants Karen B. Dyer and Russell A. Dyer appeal from the trial court’s

grant of no-evidence summary judgment on their claims against Appellee

Accredited Home Lenders, Inc. In two points, the Dyers argue that the trial court

erred by granting summary judgment because their claims were supported by

Accredited’s summary judgment evidence and because “summary judgment was
      1
       See Tex. R. App. P. 47.4.
inappropriate given the issues raised” in the case. Because we hold that the trial

court did not err by granting summary judgment, we affirm.

      In May 2006, the Dyers obtained a home equity loan from Accredited

secured with a lien on their homestead property. In November 2008, the Dyers

filed suit against Accredited for, among other claims, breach of contract,

violations of the Texas constitution, and wrongful foreclosure. The Dyers alleged

that Accredited was wrongfully attempting to foreclose on their home under

Texas Rule of Civil Procedure 736 and that the foreclosure was wrongful

because of Accredited’s violations of the Texas constitution and other laws.

      Accredited answered in December 2008.           Other than substitution of

counsel for Accredited in January 2009, no action was taken in the case until

March 2010, when Select Portfolio Servicing, Inc. (SPS), claiming to be the

assignee of Accredited, filed a motion to dismiss the Dyers’ claims. Although

SPS assumed defense of this lawsuit while the case was pending in the trial

court, that entity was not substituted as the named defendant. We shall continue

to use “Accredited” to refer to the appellee.

      The trial court entered a scheduling order in July 2010, under which

discovery was to be completed by October 8, 2010, and any dispositive motions

were to be filed before October 22, 2010. The scheduling order also ordered the

parties to attend mediation in August 2010.

      On October 5, 2010, Accredited filed a traditional and no-evidence motion

for summary judgment.       No scheduling order on this motion appears in the


                                          2
record, but the trial court held a hearing on Accredited’s motion on October 29,

2010, and the Dyers’ response was therefore due seven days prior to this date.2

The Dyers did not file a response until October 26, 2010. In their response, the

Dyers asserted that Accredited’s summary judgment motion was internally

inconsistent and supported the Dyers’ claims. The Dyers did not attach any

evidence to their response. They did, however, refer to Accredited’s motion and

portions of Karen Dyer’s deposition attached to Accredited’s motion.

      The next day, the Dyers filed a motion to have their response deemed

timely. The Dyers asserted that their attorney had attempted to file the response

on time but had been prevented from doing so by a malfunction of the e-filing

system.

      On October 29, 2010, the date of the hearing, the court granted no-

evidence summary judgment for Accredited.           The typed order contains text

stating that the trial court “considered the motion, the response thereto, the reply,

and the arguments of counsel,” with the words “the response thereto, the reply”

struck out. From this order, it is clear that the trial court declined to consider the

Dyers’ late-filed response.

      In their first point, the Dyers argue that the trial court erred by granting

summary     judgment    because     Accredited’s   summary      judgment    evidence


      2
        See Tex. R. Civ. P. 166a(c) (providing that, except on leave of court, the
adverse party may not file its written response to a summary judgment motion
later than seven days prior to the date of the hearing on the motion).


                                          3
supported their claims. In response, Accredited argues that the Dyers failed to

timely respond to their summary judgment motion, that their late-filed response

was not filed with leave of court, and that they are therefore restricted on appeal

to arguing that the motion was insufficient as a matter of law. The Dyers do not

argue that the trial court should have considered their late-filed response, and

they do not point out any deficiencies in Accredited’s motion. They argue only

that Accredited’s own evidence, attached in support of its traditional summary

judgment motion, raised questions of fact sufficient to defeat its no-evidence

motion.

      The evidence to which the Dyers direct this court does not raise a fact

issue on all of the elements challenged by Accredited. For example, the Dyers

alleged that the principal amount of the loan was greater than eighty percent of

the fair market value of the property at the time that they closed on the loan,3 and

Accredited asserted in its motion that the Dyers had no evidence to support this

claim. On appeal, the Dyers direct this court to Karen’s deposition, in which she

testified about the appraisal value stated in the loan documents and

acknowledged that the loan was not more than eighty percent of this amount.

The Dyers do not point this court to any evidence in the record that this appraisal

value was not the true market value of the property. The Dyers also alleged that

      3
       See Tex. Const. art. XVI, § 50(a)(6)(B) (allowing a creditor to foreclose on
homestead property only when, among other things, the principal amount owed
does not exceed eighty percent of the fair market value of the homestead on the
date the extension of credit is made).


                                         4
Accredited breached the contract by failing to properly apply payments, but they

do not direct us to any evidence that Accredited did misapply payments in breach

of the parties’ contract.

      The Dyers do point out some evidence on their claim that Accredited did

not provide a copy of a final itemized disclosure of the actual fees, points,

interest, costs, and charges that would be charged at closing, as required by the

constitution.4 Karen testified in her deposition that even though she signed at

closing an affidavit stating that she had previously received the disclosure and

reviewed it, in fact she had never seen the disclosure before she was presented

with it at the deposition.

      This evidence, however, was attached to Accredited’s motion in support of

its traditional summary judgment motion.       The Dyers’ attempt to use this

evidence to obtain a reversal on appeal highlights a troubling area of summary

judgment law—troubling in that within this area of summary judgment practice,

courts will sometimes be caught between ignoring the rules of procedure on the

one hand or allowing a seemingly unfair result on the other hand. We refer

specifically to those instances when a movant files a combined traditional and

no-evidence summary judgment motion and, in support of the traditional motion,


      4
        See id. § 50(a)(6)(M)(ii) (allowing a creditor to foreclose on homestead
property securing a loan when the loan was not closed before one business day
after the date that the owner of the homestead receives a copy of a final itemized
disclosure of the actual fees, points, interest, costs, and charges that will be
charged at closing).


                                        5
attaches evidence that raises a fact issue on the elements challenged as having

no evidence under the movant’s no-evidence motion.

        The well-established summary judgment law of this state provides that in a

traditional summary judgment motion, the movant has the burden to establish its

right to judgment as a matter of law.5 A trial court may not grant a traditional

summary judgment by default if the nonmovant does not respond to the motion

when the movant’s summary judgment evidence is legally insufficient. 6 That is,

even if the nonmovant fails to file a response to the motion, the movant must still

produce legally sufficient evidence to establish its right to judgment as a matter of

law.7

        When filing a no-evidence motion, on the other hand, the movant’s burden

is to produce a legally sufficient motion—the movant has no burden to produce

evidence.8     If the movant’s motion is sufficient, the burden shifts to the

nonmovant to produce evidence.9 If the nonmovant does not produce evidence

        5
         City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979).
        6
         Id.
        7
       Id.; see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337,
343 (Tex. 1993) (stating that a motion for summary judgment must stand on its
own merits, and “the non-movant’s failure to answer or respond cannot supply by
default the summary judgment proof necessary to establish the movant’s right”).
        8
      Lucio v. John G. & Marie Stella Kenedy Mem’l Found., 298 S.W.3d 663,
672 (Tex. App.—Corpus Christi 2009, pet. denied).
        9
         See id.; Tex. R. Civ. P. 166a(i).


                                             6
sufficient to raise a fact issue, the trial court must grant the motion.10 If the

movant for some reason attaches evidence to its motion, the trial court may not

consider the evidence except in the limited circumstance when the evidence

raises a fact issue.11 But under normal circumstances, no evidence is attached,

and none is required for the trial court to grant the motion.12

      The Supreme Court of Texas has acknowledged that the summary

judgment rule does not prohibit a party from filing a combined or “hybrid”

motion.13 In a combined motion, the movant usually must attach evidence in

support of the traditional motion in order to establish a right to judgment as a

matter of law.14 But when reviewing a trial court’s grant of a combined motion

when the judgment does not specify on what ground the trial court granted

summary judgment, we must first review the no-evidence motion before

considering the movant’s evidence and whether it established the movant’s right

to judgment under rule 166a(a) or (b).15


      10
        Tex. R. Civ. P. 166a(i); Lucio, 298 S.W.3d at 672.
      11
        Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).
      12
        See Tex. R. Civ. P. 166a(i).
      13
        Binur, 135 S.W.3d at 651.
      14
        See, e.g., id. (“The fact that evidence may be attached to a motion that
proceeds under subsection (a) or (b) does not foreclose a party from also
asserting that there is no evidence with regard to a particular element.”).
      15
        Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).


                                           7
      It seems unjust to allow a no-evidence summary judgment to stand when

the record discloses not only that evidence exists to support the challenged

element, but that the evidence was before the trial court. The law, however,

requires us to ignore traditional summary judgment evidence attached to a

combined summary judgment motion unless the nonmovant has directed the trial

court to that evidence in its response to the no-evidence motion. If we were to

reverse in this case, we would have to hold that the trial court had a duty to

examine the evidence attached to Accredited’s motion to determine if any

evidence existed in the record to support the challenged elements. To do so

would contradict the plain wording of the summary judgment rule, which provides

that the trial court must grant the no-evidence summary judgment unless the

nonmovant produces summary judgment evidence raising a genuine issue of

material fact.16 The comment to the rule states that the nonmovant must not only

produce evidence but must also point out to the trial court the evidence that

raises a fact issue.17 That is, even though evidence is before the trial court that,

if produced by the nonmovant, would require the court to deny the no-evidence

summary judgment, because it was not pointed out to the trial court by the

nonmovant, it must be ignored. Because the Dyers did not file a timely response,




      16
        See Tex. R. Civ. P. 166a(i).
      17
        See id. & cmt.


                                         8
they neither produced summary judgment evidence nor directed the trial court to

where such evidence could be found in its file.18

      Although it appears to be a triumph of procedure over substance, we

cannot create a rule that the trial court disposing of a combined motion has a

duty to look at the traditional summary judgment evidence to see if it defeats the

movant’s right to no-evidence summary judgment when the rules of procedure

place the burden on the nonmovant to produce evidence. If we created such a

rule, it would conflict with the Supreme Court’s holding that parties may file

combined motions. A party moving for both traditional and no-evidence summary

judgment would be compelled out of an abundance of caution to abandon the

practice of filing combined motions. Instead, the party would have to first file a

no-evidence motion, wait for the trial court to rule on it, and, if the court denies

the motion, only then file a traditional summary judgment motion.

      The cases cited by the Dyers do not support their argument. They contend

that the law already provides that a trial court must consider Accredited’s

evidence if it raises a fact issue. The Dyers cite the Eastland Court of Appeals’s




      18
         See Steinkamp v. Caremark, 3 S.W.3d 191, 194 (Tex. App.—El Paso
1999, pet. denied) (holding that a party may use evidence already in the trial
court record in responding to a no-evidence motion but must ensure that the
evidence is properly before the trial court for consideration and that a party may
ensure that the evidence is properly before the court either by requesting that the
trial court take judicial notice of the evidence that is already in the record or by
incorporating that document or evidence in the party’s response).


                                         9
opinion in Garrett19 to support this assertion. The Garrett court did state that

evidence attached by the movant to a no-evidence summary judgment motion is

not considered unless it raises a fact issue. But that court did not rely on this

statement of the law in its holding, and in support of the statement, Garrett cited

the Supreme Court’s opinion in Binur. In that case, the Supreme Court stated

that “if a motion brought solely under [rule 166a(i)] attaches evidence, that

evidence should not be considered unless it creates a fact question.” 20 The

Supreme Court has not held that in ruling on the no-evidence part of a combined

motion, a trial court must consider evidence attached by the movant in support of

its request for relief under 166a(a) or (b).

      The El Paso Court of Appeals considered this same issue in Viasana v.

Ward County.21 In that opinion, the court stated:

      Ward County’s motion was brought under both Rules 166a(b) and
      166a(i)[,] and it attached evidence in support of its traditional
      summary judgment motion. There is nothing to indicate that Ward
      County intended for the attached evidence to be considered in
      connection with its no-evidence summary judgment motion. Further,
      Viasana did not file a response referencing the evidence attached to
      the summary judgment motion or pointing out the existence of any
      fact issues raised by that evidence. Accordingly, it is inappropriate
      to consider the evidence attached to the summary judgment motion
      in connection with our review of the Rule 166a(i) motion. Viasana is


      19
       Garrett v. Patterson–UTI Drilling Co., 299 S.W.3d 911, 917 (Tex. App.—
Eastland 2009, pet. struck).
      20
        Binur, 135 S.W.3d at 651.
      21
        296 S.W.3d 652, 655 (Tex. App.—El Paso 2009, no pet.).


                                          10
      restricted on appeal to challenging the sufficiency of the summary
      judgment motion.22

      Similarly, the First Court of Appeals disregarded the argument of the

appellants who contended that despite their failure to timely respond to the no-

evidence motion, the trial court erred by granting summary judgment because the

appellee attached evidence to its earlier-filed traditional motion, and, according to

the appellants, this evidence created a fact issue on the challenged elements.23

That court noted that “where as here, the movant has filed a motion that identifies

the elements as to which there is no evidence, and in a form that is neither

conclusory nor a general no-evidence challenge, summary judgment must be

rendered absent a timely and legally adequate response by the nonmovant.”24

      We have no choice but to agree with the El Paso and Houston courts. The

summary judgment rule puts the burden on the nonmovant to point out evidence

to defeat a no-evidence summary judgment, not on the trial court. Although this

may create a seemingly unfair result,25 we must apply the established summary


      22
        Id. (citation omitted).
      23
         Landers v. State Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App—Houston
[1st Dist.] 2008, no pet.).
      24
        Id. (emphasis added).
      25
        Because the trial court did not reach Accredited’s traditional motion, we
do not consider whether the evidence provided by Accredited established its right
to judgment as a matter of law. Accordingly, we cannot say whether the trial
court would or should have rendered judgment for Accredited even if it had
overruled the no-evidence motion.


                                         11
judgment law of Texas and the plain language of the rule.           And under our

summary judgment law, in the face of a legally sufficient motion for no-evidence

summary judgment, the nonmovant must file a response to defeat summary

judgment regardless of whether the trial court has before it evidence that would

defeat summary judgment if attached to a timely response. The nonmovant must

bring that evidence to the attention of the trial court or lose. The Dyers did not

meet their burden in this case. Accordingly, we overrule the Dyers’ first point.

      In their second point, the Dyers argue that the trial court erred by granting

summary judgment because summary judgment was inappropriate given that the

case raised issues “that are inherently those for a fact finder.” They contend that

they “relied on plain, repeated representations” of Accredited personnel “related

to the valuation of the property, amount of the loan, [and] costs of the loan” and

that “a trier of fact should have an opportunity to fully evaluate the testimony of

[the Dyers] and other persons in open court.” The Dyers did not file a timely

response to the summary judgment motions and do not complain on appeal that

the trial court should have considered their response. As discussed above, the

only evidence referenced by the Dyers in their brief was provided by Accredited

in support of its traditional summary judgment motion, and the trial court did not

err by not considering it. Because the Dyers did not timely file a response to

Accredited’s no-evidence motion, the trial court did not err by granting the

motion. We overrule the Dyers’ second point.




                                        12
      The Dyers include a footnote in their brief asserting that although SPS

represented to the trial court that it was the assignee of Accredited, there is no

assignment in the record, and “summary judgment for [SPS] is improper because

of a lack of documented connection to” the loan forming the basis of the suit.

The Dyers do not cite any law to support this assertion and do not make any

argument indicating how this assertion relates to their points.26 They do not, for

example, argue that SPS’s attorneys had no authority to assert a motion for

summary judgment, and because SPS did not seek affirmative relief in the trial

court, the Dyers’ argument does not on its face raise an issue of standing. 27 We

therefore do not consider this argument.28




      26
         See Tex. R. App. P. 38.1(f) (requiring briefs to state concisely all issues
or points presented for review and providing that the statement of an issue will be
treated as covering every subsidiary question that is fairly included), 38.1(i)
(requiring briefs to contain a clear and concise argument for the contentions
made, with appropriate citations to authorities and to the record).
      27
         See Tex. R. Civ. P. 12 (providing that a party to a suit may file a motion
asserting the party’s belief that the suit is being prosecuted or defended without
authority); Kessling v. Friendswood Indep. Sch. Dist., 302 S.W.3d 373, 386 (Tex.
App.—Houston [14th Dist.] 2009, pet. denied) (noting that a party seeking
affirmative relief must have standing).
      28
       See Tex. R. App. P. 38.1(i); Fredonia State Bank v. Gen. Am. Life Ins.
Co., 881 S.W.2d 279, 284 (Tex.1994) (discussing “long-standing rule” that issue
may be waived due to inadequate briefing).


                                        13
     Having overruled both of the Dyers’ points, we affirm the trial court’s

judgment.




                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

LIVINGSTON, C.J., concurs without opinion.

DELIVERED: February 2, 2012




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