                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00019-CV


RAYMOND R. CORREA AND                                             APPELLANTS
SANTA ROSADO

                                       V.

CITIMORTGAGE INC.                                                    APPELLEE


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          FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 348-256265-11

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                        MEMORANDUM OPINION1

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      In two points, Appellants Raymond R. Correa and Santa Rosado appeal

the trial court’s summary judgment for Appellee Citimortgage, Inc. We affirm.

      After Citimortgage acquired Appellants’ house via nonjudicial foreclosure,

Appellants sued Citimortgage and Willow Bend Mortgage Company for wrongful


      1
       See Tex. R. App. P. 47.4.
foreclosure, fraudulent lien instrument, wrongful debt collection practices,

trespass to try title, and for an injunction.     Appellants did not respond to

Citimortgage’s written discovery requests.      The record does not reflect, and

Appellants do not contend, that Appellants propounded any discovery between

the April 2012 setting of the trial date and the July 2012 filing by Citimortgage of

a combined traditional and no-evidence motion for summary judgment on all of

Appellants’ claims.

      Appellants did not respond to Citimortgage’s motion and did not file a

motion for leave to file a late response, a motion to undeem admissions, or a

motion for continuance.       The trial court granted Citimortgage’s motion in its

entirety on August 23, 2012, ten months after Appellants filed the case, and

seven months after the federal court remanded the case to the trial court.

Appellants filed a motion to vacate the summary judgment after nonsuiting Willow

Bend. In their motion to vacate, Appellants asked the trial court to vacate the

summary judgment order or grant them a new trial and to undeem their

admissions. The trial court did not rule on the motion, and Appellants do not

appeal its implicit denial.

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of rule

166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the

appellant failed to produce more than a scintilla of evidence under that burden,



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then there is no need to analyze whether the appellee’s summary judgment proof

satisfied the less stringent rule 166a(c) burden. Id.

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      In their second point, Appellants argue that summary judgment was

premature because they had not had an adequate time to conduct discovery.

However, “[w]hen a party contends that it has not had an adequate opportunity

for discovery before a summary judgment hearing, it must file either an affidavit

explaining the need for further discovery or a verified motion for continuance.”

Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). If neither of

these steps is taken, error is not preserved for our review. See id.; see also

Kaldis v. Aurora Loan Servs., 424 S.W.3d 729, 736 (Tex. App.—Houston [14th

Dist.] 2014, no pet.).    Because Appellants took neither of these steps, we

overrule their second point as unpreserved. See Tex. R. App. P. 33.1.



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

summary judgment because Citimortgage’s summary judgment evidence, which

was attached in support of the traditional portion of its motion, “established that

there were outstanding fact issues on each element of each outstanding claim”

and because their claims were established by this evidence.

      In its motion, Citimortgage argued that all of Appellants’ claims—wrongful

foreclosure, wrongful debt collection practices, trespass to try title, fraudulent lien

instrument, and injunction—failed because they were based on “the single,

erroneous allegation” that Citimortgage did not have standing to enforce the note

and deed of trust or to foreclose on the property because the assignments “from

MERS to Citimortgage were allegedly not authorized, and therefore were

fraudulent.” In the no-evidence portion of its motion, Citimortgage asserted that

Appellants could produce (1) no evidence that it lacked standing to enforce the

note and deed of trust or to foreclose on their property; (2) no evidence that the

assignments from MERS were invalid; (3) no evidence that there was any other

alleged defect in the foreclosure sale—specifically, no evidence of a defect in the

foreclosure sale, a grossly inadequate selling price, or a causal connection

between the defect and the inadequate price; (4) no evidence of damages

because there was no evidence that Appellants had never been dispossessed of

the property or of any lost equity; (5) no evidence that it engaged in any wrongful

debt collection practice or violated any provision of the Texas Debt Collection Act

(TDCA)—specifically,     no   evidence     that   any   representations    made     by

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Citimortgage in connection with its foreclosure efforts violated the TDCA and no

evidence that Appellants suffered any compensable damages as a result of any

alleged TDCA violations; (6) no evidence of trespass to try title—specifically, no

evidence of a regular chain of conveyances from the sovereign, superior title out

of a common source, title by limitations, or title by prior possession coupled with

proof that possession was not abandoned; and (7) no evidence to support their

claim for injunctive relief—specifically, no evidence to prove that they have a

probable right to relief because all of their claims fail, and no evidence that they

will suffer a probable, imminent, and irreparable injury.2

      We have previously held that when a summary judgment movant files a

combined traditional and no-evidence summary judgment motion,

      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.

      2
        Citimortgage argued in the traditional part of its motion that Appellants
had no standing to challenge the assignments and that its summary judgment
evidence conclusively showed that it had standing to enforce the note and deed
of trust as the holder of the note, as the mortgagee of the loan, and as the
mortgage servicer of the loan; that Appellants defaulted on the note; and that all
requisite foreclosure notices were provided. Citimortgage further argued that as
the holder of the note entitled to enforce the security interest, it had the authority
to foreclose and therefore did not violate any provision of the TDCA and that the
summary judgment evidence established that it was the property’s owner
pursuant to a valid foreclosure sale, defeating Appellants’ trespass-to-try-title
claim. And Citimortgage stated that because Appellants could not succeed on
any of their claims as a matter of law, their request for injunctive relief must be
denied.

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See Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012 WL

335858, at *5 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.). We

explained that while this may seem unjust,

      [t]he 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 [no-evidence] 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. 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. 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, they neither produced summary judgment
      evidence nor directed the trial court to where such evidence could
      be found in its file.

             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.


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Id. at *3–4 (footnotes omitted); see also Wood v. Wells, No. 02-11-00087-CV,

2011 WL 5515483, at *5 (Tex. App.—Fort Worth Nov. 10, 2011, no pet.) (mem.

op. on reh’g) (affirming no-evidence summary judgment when, although appellant

filed a response, he did not direct the trial court to any evidence attached to

appellees’ traditional motion for summary judgment or point out the existence of

any fact issues regarding damages raised by that evidence); Viasana v. Ward

Cnty., 296 S.W.3d 652, 655 (Tex. App.—El Paso 2009, no pet.) (reasoning that it

was inappropriate to consider evidence attached to traditional summary judgment

motion in connection with review of no-evidence motion because nonmovant did

not file response referencing evidence attached to traditional motion). Because

Appellants did not file a response to the no-evidence motion, we conclude that

the trial court had no choice but to grant the no-evidence motion on the grounds

presented, and we overrule Appellants’ first point.

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

judgment.

                                                      PER CURIAM

PANEL: MCCOY, GARDNER, and MEIER, JJ.

DELIVERED: July 24, 2014




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