AFFIRMED and Opinion Filed December 20, 2018




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-17-00855-CV

                      APEX FINANCIAL CORPORATION, Appellant
                                       V.
                               LOAN CARE, Appellee

                       On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-17-05921


                             MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                  Opinion by Justice Whitehill

       Appellant Apex Financial Corporation sued appellee Loan Care for a declaratory judgment

that Apex was entitled to equitable subrogation, damages, and attorney’s fees. After a bench trial,

the trial judge signed a take-nothing judgment against Apex. Apex appeals. We affirm.

                                        I. BACKGROUND

A.     Facts

       We draw the following facts from the trial court’s findings of fact and the trial evidence:

       This litigation arises from a series of conveyances and foreclosures concerning a

condominium in Richardson, Texas.

       In 1989, Jose and Juanita Rocha bought the condominium subject to a purchase-money

deed of trust in favor of lender Florida Federal Savings Bank. The deed of trust was conveyed
several times and was ultimately acquired by The Bank of New York Mellon Trust Company,

N.A. (“the bank”) in 2014.

       Meanwhile, in 1995 the Rochas sold the condominium to Christina Rosales subject to a

contract for deed.

       In 1997, the condominium’s condominium association foreclosed on the condominium for

nonpayment of assessments, late charges, and collection costs. Apex bought the condominium at

the foreclosure sale. Apex began making the payments on the original purchase-money loan, but

it never extinguished that loan or its related deed of trust lien against the property.

       In June 2011, the association recorded a notice of lien against the condominium, again for

nonpayment of assessments, late charges, and collection costs.

       Two months later, the association foreclosed on the condominium, and consequently Apex

lost its interest in it. There is no indication in the record that Apex redeemed its interest.

       The condominium’s ownership changed hands a few times after that.

       In October 2014, the bank foreclosed its purchase-money deed of trust. The foreclosure

deed listed Loan Care as the mortgage servicer.

B.     Procedural History

       In October 2015, Apex sued the bank and Loan Care alleging that (i) Apex attempted to

pay off the outstanding purchase-money loan balance before the October 2014 foreclosure sale

and (ii) the trustee refused Apex’s tender of an amount exceeding the loan amount and proceeded

to sell the condominium instead to the highest bidder. Apex sought a declaratory judgment that it

was equitably subrogated to the bank’s and Loan Care’s rights due to its payments towards the

purchase-money debt. Apex also requested damages of at least $30,000, punitive damages, and

attorney’s fees.




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       Loan Care answered, asserting a general denial and affirmative defenses including the

statute of limitations and Apex’s “voluntary Action.” The record does not indicate that the bank

ever answered.

       There was a one-day bench trial of Apex’s claims against Loan Care.

       Several days later, the trial judge signed a take-nothing judgment in favor of Loan Care.

The judge later signed an order severing Apex’s claims against Loan Care from those against the

bank, making the interlocutory judgment final. The judge also signed findings of fact and

conclusions of law. The judge ruled that (i) Apex’s claims were time-barred, (ii) Apex’s payments

were voluntary, and (iii) Apex had no equitable subrogation rights against Loan Care, though it

might have such rights against the Rochas.

       Apex timely appealed.

                                          II. ANALYSIS

       Apex presents one “issue” on appeal, with three parts:

       The trial court erred in finding that (1) payments made by Appellant were
       voluntary; (2) that there was a statute of limitations applicable to the right of
       Appellant, standing in the shoes of the original borrowers, to extinguish the loan;
       and (3) that its status of non-owner of the property barred its right to extinguish the
       loan.

       We overrule Apex’s issue because Apex does not brief its challenge to Loan Care’s

limitations defense, which was one independent basis of the trial court’s judgment.

       An appellant must attack all independent bases or grounds that fully support a judgment.

Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423 (Tex. App.—Dallas 2009, no pet.). If the

appellant fails to attack an independent ground, we must accept its validity, thus making any error

in the other grounds supporting the judgment harmless. See id. at 424; see also St. John Missionary

Baptist Church v. Flakes, 547 S.W.3d 311, 312 (Tex. App.—Dallas 2018, pet. pending) (en banc).




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       Moreover, an appellant does not satisfy its obligations by merely asserting in an issue that

a ground for the judgment is incorrect; the appellant must also support that issue with proper

argument, authorities, and record references. See TEX. R. APP. P. 38.1(i); see also Kasper v.

Meadowwood Ranch Estates, Inc. Prop. Owners Ass’n, No. 05-07-00982-CV, 2008 WL 3579379,

at *2 (Tex. App.—Dallas Aug. 15, 2008, no pet.) (mem. op.) (affirming judgment because

appellants inadequately briefed their challenge to one independent basis). We are not responsible

for doing the legal research that might support a party’s contentions, and a brief fails if it does not

provide existing legal authority that can be applied to the facts of the case. Bolling v. Farmers

Branch Indep. Sch. Dist., 315 S.W.3d 893, 895, 896 (Tex. App.—Dallas 2010, no pet.).

       Here, Apex has not adequately briefed its challenge to the trial court’s limitations ruling.

To begin, Apex’s sole limitations record reference in its argument is a citation to the trial court’s

adverse conclusion of law on limitations. However, there are no record references supporting an

argument that the conclusion was wrong.

       Furthermore, it is undisputed that Apex’s brief presents no substantive argument about

limitations. Rather Apex’s brief mentions limitations in its above quoted statement of the issue

and later repeats that sentence verbatim in the summary of the argument and again in the argument

itself. Finally, the brief’s argument section makes one last mention of limitations as follows: “The

Rochas certainly had that right to pay off their loan [ahead of any foreclosure sale], without being

limited by any statute of limitations and Appellant, in their shoes, also had that same right.” The

sentence is unsupported by legal authority, record reference, or logical argumentation. The brief

says nothing else about limitations.

       To reverse the judgment, we would have to independently research from scratch the law of

limitations as to equitable subrogation claims, including applicable accrual rules, and apply that

law to the facts of this case, all without any assistance from Apex. This we cannot do without

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interjecting ourselves in the case as appellant’s advocate when appellant did not so act itself. See

State Bar of Tex. v. Evans, 774 S.W.2d 656, 658 n.5 (Tex. 1989) (per curiam) (appellate court

erred by reversing judgment based on arguments appellant did not raise); Liles v. Contreras, 547

S.W.3d 280, 296 (Tex. App.—San Antonio 2018, pet. denied) (appellate court would become an

advocate if it were “to construct an argument for appellant and engage in research to support the

argument”); Bolling, 315 S.W.3d at 895 (“Were we to [search for authority to support a party’s

contentions], we would be abandoning our role as judges and become an advocate for that party.”);

In re B.A.B., 124 S.W.3d 417, 420 (Tex. App.—Dallas 2004, no pet.) (“The failure to adequately

brief an issue, either by failing to specifically argue and analyze one’s position or provide

authorities and record citations, waives any error on appeal.”).

       Rule of appellate procedure 38.1(i) provides:

       The brief must contain a clear and concise argument for contentions made, with
       appropriate citations to authorities and to the record.

       According to rule 38.9(b),

       If the court determines, either before or after submission, that the case has not been
       properly presented in the briefs, or that the law and authorities have not been
       properly cited in the briefs, the court may postpone submission, require additional
       briefing, and make any other order necessary for a satisfactory submission of the
       case.

(emphasis added).

       Furthermore, “an appellate court has some discretion to choose between deeming a point

waived and allowing amendment or rebriefing.” Fredonia State Bank v. Gen. Am. Life Ins. Co.,

881 S.W.2d 279, 284 (Tex. 1994). Exercising this discretion, we have often ruled that inadequately

briefed issues are waived. See, e.g., CreditOne, LLC v. Brown, No. 05-07-01592-CV, 2009 WL

2462770, at *2 (Tex. App.—Dallas Aug. 13, 2009, no pet.) (mem. op.) (waiver ruling was case

dispositive); Herrell v. Allstate Ins. Co., No. 05-08-00442-CV, 2009 WL 1912687, at *2–3 (Tex.

App.—Dallas July 6, 2009, no pet.) (mem. op.) (same); Kasper, 2008 WL 3579379, at *2 (same);

                                                –5–
see also Santiago v. Bank of N.Y. Mellon, No. 05-17-00144-CV, 2017 WL 4946095, at *3–4 (Tex.

App.—Dallas Nov. 1, 2017, no pet.) (mem. op.); Small v. State, No. 05-12-00083-CR, 2013 WL

1247055, at *1 (Tex. App.—Dallas Feb. 27, 2013, no pet.) (not designated for publication); Staton

Holdings, Inc. v. Tatum, L.L.C., 345 S.W.3d 729, 733 (Tex. App.—Dallas 2011, pet. denied); In

re Estate of Miller, 243 S.W.3d 831, 840 (Tex. App.—Dallas 2008, no pet.); Blanks v. Liberty

Mut. Fire Ins. Co., 196 S.W.3d 451, 452–53 (Tex. App.—Dallas 2006, pet. denied); McIntyre v.

Wilson, 50 S.W.3d 674, 681–82 (Tex. App.—Dallas 2001, pet. denied).

       Equity abhors forfeitures, Wagner & Brown, Ltd. v. Sheppard, 282 S.W.3d 419, 429 (Tex.

2008), and so do we. But here Apex’s brief shows that it is familiar with the appellate rules’

briefing requirements—it adequately briefed all other arguments supporting its issue. Given that

demonstrated understanding of the rules and ability to apply them when it believes it has

reasonable arguments to assert, the lack of supporting argument and record references suggests

that Apex does not believe it has a viable limitations argument to make. That is, if Apex had a

reasonable limitations argument to make, it knew how to make it and would have done so.

       Accordingly, we overrule Apex’s sole issue on appeal.

                                      III. CONCLUSION

       We affirm the trial court’s judgment.




                                                 /Bill Whitehill/
                                                 BILL WHITEHILL
                                                 JUSTICE

Boatright, J., dissenting

170855F.P05




                                               –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 APEX FINANCIAL CORPORATION,                         On Appeal from the 44th Judicial District
 Appellant                                           Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-17-05921.
 No. 05-17-00855-CV          V.                      Opinion delivered by Justice Whitehill.
                                                     Justices Stoddart and Boatright
 LOAN CARE, Appellee                                 participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

      It is ORDERED that appellee Loan Care recover its costs of this appeal from appellant
Apex Financial Corporation.


Judgment entered December 20, 2018.




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