Opinion issued December 9, 2014




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-13-00426-CV
                          ———————————
           VALTON EASON AND TERESA EASON, Appellants
                                     V.
             DEUTSCHE BANK NATIONAL TRUST, Appellee



                   On Appeal from the 61st District Court
                           Harris County, Texas
                     Trial Court Case No. 2012-08619



                      MEMORANDUM OPINION

     Valton and Teresa Eason appeal the trial court’s order granting summary

judgment in favor of appellee, Deutsche Bank National Trust, on the Easons’

claims arising from the foreclosure of their home. The Easons contend that the
trial court erred in granting Deutsche Bank’s motion for summary judgment

because (1) judgment was granted on a petition that was not on file with the court;

(2) Deutsche Bank should have filed special exceptions before filing its summary

judgment motion; and (3) the judgment disposed of causes of action not addressed

in Deutsche Bank’s motion. We affirm.

                                   Background

      On September 30, 2004, Teresa Eason 1 executed an adjustable rate note in

the amount of $132,000 related to real property located in Harris County. The note

was payable to Decision One Mortgage Company, LLC. To secure payment of the

note, the Easons executed a deed of trust encumbering the property. Deutsche

Bank subsequently acquired the note and maintained possession of it through its

loan servicer, GMAC Mortgage, LLC.

      In December 2010, the Easons defaulted on their mortgage loan by failing to

make the required monthly payment.            After they failed to cure the default,

Deutsche Bank initiated foreclosure proceedings and bought the property at the

foreclosure sale on August 2, 2011.2



1
      Teresa Eason’s surname was McGrew at the time she signed the document.
2
      On June 29, 2011, the Easons filed suit against GMAC regarding the foreclosure
      proceedings. After they failed to serve GMAC, the suit was dismissed for want of
      prosecution.



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      On February 13, 2012, the Easons, acting pro se, filed an Application and

Affidavit for Temporary Restraining Order and Temporary Injunction, seeking

injunctive relief and damages based on allegations of fraud and negligent

misrepresentation. 3 Deutsche Bank answered in a timely manner but waited until

February 2, 2013 to file its hybrid traditional and no-evidence motion for summary

judgment to which the Easons filed no response. Following a hearing on March 1,

2013, the trial court granted Deutsche Bank’s motion for summary judgment and

dismissed the Easons’ claims.          The Easons had not attended the hearing.

Subsequently, the Easons—now represented by counsel—filed a motion for

rehearing/motion for new trial arguing that the trial court should deny Deutsche

Bank’s summary judgment motion because the bank (1) failed to specially except

to the Easons’ application before filing its motion; (2) failed to address the Easons’

causes of action in their motion; and (3) moved for summary judgment on a

pleading that was not a live petition. The trial court denied the Easons’ motion for

rehearing/motion for new trial. On appeal, the Easons do not challenge the denial

of their motion for rehearing/motion for new trial; rather, they challenge only the

trial court’s order granting Deutsche Bank’s motion for summary judgment.

3
      In their briefs, the parties state that the trial court denied the Easons’ request for
      preliminary injunctive relief on March 8, 2012, and cite to page 79 of the clerk’s
      record. However, page 79 of the clerk’s record is Deutsche Bank’s response to the
      Easons’ motion for rehearing/motion for new trial. The clerk’s record does not
      include an order denying the Easons’ request for injunctive relief or otherwise
      reflect such a ruling.

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                                    Discussion

   A. Standard of Review

      We review a trial court’s decision to grant a motion for summary judgment

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A

party seeking a no-evidence summary judgment must assert that no evidence exists

as to one or more of the essential elements of the nonmovant’s claim on which the

nonmovant would have the burden of proof at trial. Miles v. Lee Anderson Co.,

339 S.W.3d 738, 741 (Tex. App.—Houston [1st Dist.] 2011, no pet.).                In

conducting our no-evidence summary judgment review, we will “review the

evidence presented by the motion and response in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence

favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not.” Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2008) (quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (Tex. 2006)). Once the movant specifies the elements on which there is

no evidence, the burden shifts to the nonmovant to raise a fact issue on the

challenged elements. TEX. R. CIV. P. 166a(i). A no-evidence summary judgment

will be sustained on appeal when (1) there is a complete absence of evidence of a

vital fact, (2) the court is barred by rules of law or of evidence from giving weight

to the only evidence offered by the nonmovant to prove a vital fact, (3) the



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nonmovant offers no more than a scintilla of evidence to prove a vital fact, or (4)

the nonmovant’s evidence conclusively establishes the opposite of a vital fact.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

      Under the traditional summary-judgment standard, the movant has the

burden to show that no genuine issues of material fact exist and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether there are disputed

issues of material fact, we take as true all evidence favorable to the nonmovant and

indulge every reasonable inference in the nonmovant’s favor. Nixon, 690 S.W.2d

at 548–49. A defendant moving for summary judgment must conclusively negate

at least one essential element of each of the plaintiff’s causes of action or

conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.

v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

   B. Analysis

      The Easons contend that the trial court erred in granting Deutsche Bank’s

motion for summary judgment because (1) judgment was granted on a petition that

was not on file with the court; (2) Deutsche Bank should have filed special

exceptions before filing its summary judgment motion; and (3) the judgment

disposed of causes of action not addressed in Deutsche Bank’s motion. Deutsche

Bank asserts that it was entitled to judgment as a matter of law on the Easons’



                                          5
claims of fraud and negligent misrepresentation on both no-evidence and

traditional grounds.

      To prevail on a fraud claim, a plaintiff must establish that (1) the defendant

made a material representation, (2) the representation was false, (3) the defendant

either knew the representation was false when made or made it recklessly without

any knowledge of its truth and as a positive assertion, (4) the defendant made the

representation with the intention that it be acted upon, (5) the representation was in

fact relied upon, and (6) damage to the plaintiff resulted. See Ins. Co. of N. Am. v.

Morris, 981 S.W.2d 667, 674 (Tex. 1998). To prevail on a claim of negligent

misrepresentation, a plaintiff must demonstrate that (1) the representation is made

by a defendant in the course of his business, or in a transaction in which he has a

pecuniary interest; (2) the defendant supplies “false information” for the guidance

of others in their business; (3) the defendant did not exercise reasonable care or

competence in obtaining or communicating the information; and (4) the plaintiff

suffers pecuniary loss by justifiably relying on the representation. McCamish,

Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex.

1999).

      In its no-evidence motion, Deutsche Bank argued that it was entitled to

judgment as a matter of law on the Easons’ claims of fraud and negligent

misrepresentation. With regard to the Easons’ fraud claim, Deutsche Bank argued



                                          6
that the Easons could present no evidence that Deutsche Bank made a

representation that was material and false; it was made recklessly as a positive

assertion, without knowledge of its truth; it was made with the intent that the

Easons act on it; and the Easons relied on the alleged misrepresentation resulting in

injury to them. As to the Easons’ negligent misrepresentation claim, Deutsche

Bank argued that the Easons could present no evidence that Deutsche Bank

supplied false information for the guidance of others; Deutsche Bank failed to

exercise reasonable care or competence in obtaining or communicating the

information; they justifiably relied on the alleged representation; and they suffered

pecuniary loss as a result.

      Once Deutsche Bank specified the elements on which there was no

evidence, the burden shifted to the Easons to raise a fact issue on the challenged

elements. See TEX. R. CIV. P. 166a(i). The Easons, however, did not present any

evidence to the trial court raising a fact issue regarding any of the challenged

elements of either cause of action.4 Because the Easons failed to meet their burden

under Rule 166a(i), Deutsche Bank was entitled to a no-evidence summary

judgment on the Easons’ claims of fraud and negligent misrepresentation. See
4
      Pro se litigants are not exempt from complying with the rules of procedure.
      Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Mansfield State Bank v.
      Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (noting “no basis exists for
      differentiating between litigants represented by counsel and litigants not
      represented by counsel in determining whether rules of procedure must be
      followed.”).


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King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003) (noting no-

evidence summary judgment will be sustained on appeal when there is complete

absence of evidence of vital fact). As such, we conclude that the trial court

properly granted summary judgment in favor of Deutsche Bank. We overrule the

Easons’ issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                              Jim Sharp
                                              Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




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