     Case: 13-50070       Document: 00512386447         Page: 1     Date Filed: 09/25/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        September 25, 2013

                                     No. 13-50070                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



ROWLAND J. MARTIN, JR., Successor in Interest to Moroco Ventures
L.L.C.,

               Plaintiff - Appellant

v.

CHARLES GREHN; RELIANT FINANCIAL INCORPORATED; EDWARD
BRAVENEC, Esq.; THE LAW OFFICE OF MCKNIGHT AND BRAVENEC;
1216 WEST AVENUE INCORPORATED,

               Defendants - Appellees



                   Appeals from the United States District Court
                         for the Western District of Texas
                              USDC No: 5:11-CV-414


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Rowland Martin appeals the district court’s grant of summary judgment
in favor of Charles Grehn, Reliant Financial Incorporated, Edward Bravenec, the
law office of McKnight and Bravenec, and 1216 West Avenue Incorporated


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 13-50070

concerning property he lost during his bankruptcy proceedings.            For the
following reasons, we AFFIRM.
                        FACTS AND PROCEEDINGS
      In late 2005, Rowland Martin went bankrupt. It was in December of that
year that he filed for Chapter 13 protection, listing a property at 1216 West
Avenue in San Antonio, TX, as an asset. Several months later, Martin filed for
Chapter 11 bankruptcy for his wholly-owned company, Moroco Ventures, L.L.C.
(“Moroco”). He listed the West Avenue property again on his schedule of assets.

      The property was subject to liens. One of those liens was a mortgage note
that the original grantees assigned to Reliant Financial, Inc. (“Reliant”) in 2004.
In May 2004, Reliant transferred this note on a servicing-retained basis to
Bernhardt Properties I, Ltd. This transfer was recorded in the real property
records of Bexar County, TX, that July. Meanwhile, Reliant authorized Aegis
Mortgage Corporation (“Aegis”) as its subservicing agent to take all necessary
actions to collect payments on the loan.

      The law firm of McKnight and Bravenec, attorneys to Martin, held another
lien on the property for unpaid legal fees. Martin took out this second lien in
May 2005. By December of that year, loan collection efforts failed and Martin
and Moroco filed for bankruptcy.

      Aegis filed a motion to lift the automatic bankruptcy stay in May of 2006.
A hearing was held on Aegis’s unopposed motion and the stay was lifted. Aegis
and Martin entered into an agreement on July 31, 2006 for Martin to resume
payments on the mortgage. Aegis filed a notice of stay termination asserting
that Martin had “failed to tender the August 1, 2006 post-petition payment.”
The stay was lifted.

      At this point, the law firm of McKnight and Bravenec filed suit to stop


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Aegis’s foreclosure.   They asserted that the parties had entered into an
agreement allowing them to purchase the first mortgage. They paid off the first
lien, and foreclosed on the property on October 3, 2006. Ten days later, Martin
filed a third party petition against both the Bravenec firm and Reliant for
wrongful foreclosure. On October 30, 2006, the Bexar County district court
denied Martin’s application for a temporary restraining order and injunction and
held that the foreclosure sale was valid on October 30, 2006.          The court
proceedings, both state and federal, were dismissed. Martin did not appeal.

      Over four years later, on October 4, 2010, Martin filed suit in federal
district court against Reliant (and Charles Grehn, its owner) and Edward
Bravenec (as well as his law office, and a company of his called 1216 West Ave,
Inc.) with a laundry list of claims making the same basic point: the sale was
wrong and the property should be returned to him. Specifically, Martin alleged
that the defendants: 1) committed fraud, 2) breached a fiduciary duty, 3) violated
the Fair Debt Collection Practices Act (“FDCPA”) and “federal common law
wrongful appropriation,” 4) violated due process under 42 U.S.C. § 1983, 5)
violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C §
1961 (“RICO”) (originally couched as violations of the Clayton and the Sherman
Acts), and 6) negligently inflicted emotional distress.

      They did so, Martin contended, in the following manner: 1) Reliant’s agent
defrauded him and the bankruptcy court by pretending to be a creditor with
standing to enforce the lien note when Reliant had no such standing; 2) Martin’s
former lawyers tricked him into signing a second mortgage to pay off his debts
to them in violation of their fiduciary duties; 3) Reliant made false
representations concerning the legal status of his debt by pretending to have
standing in violation of the FDCPA; 4) the defendants “avail[ed]” themselves of
a “quid pro quo relationship” that lawyer McKnight had with the bankruptcy


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court judge to somehow hide the fact that a suit in trespass to try title had been
filed by the law firm against Reliant; 5) the defendants engaged in a conspiracy
to collect unlawful debts in violation of RICO; and 6) these actions left Martin
“sorely grieved” at the loss of his “homestead” such that he “suffered mental
anguish and emotional distress.”

       After a series of motions, the district court granted summary judgment for
the defendants and against Martin on all claims. Martin appealed.1

                               STANDARD OF REVIEW

       Summary judgment is proper only if the movant establishes that there is
no genuine dispute as to any material fact, thus entitling the moving party to
judgment as a matter of law. FED. R. CIV. P. 56(a). “We view facts in the light
most favorable to the non-movant and draw all reasonable inferences in its
favor.” Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996). But we “may
affirm summary judgment on any legal ground raised below, even if it was not
the basis for the district court’s decision.” Performance Autoplex II Ltd. v. Mid-
Continent Cas. Co., 322 F.3d 847, 853 (5th Cir. 2003).

                                       DISCUSSION

1. Jurisdiction
       Martin argues that the court has jurisdiction over both his appeal from a
final decision of the United States District Court under 28 U.S.C. § 1291 and
orders from his 2005-2006 bankruptcy cases (case numbers 05-80116 and 06-
5029) via the All Writs Act, 28 U.S.C. § 1651.
       [A] party seeking to appeal a bankruptcy court's judgment to a district
       court has ten days following entry of the bankruptcy court's judgment to


       1
         Martin has filed three additional motions subsequent to his appellant’s brief,
including a motion to “strike appellees’ brief,” a motion to file a reply brief out of time, and a
motion to amend. All of these motions have been considered and are denied.

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      file a notice of appeal with the bankruptcy clerk. Failure to file a notice
      of appeal timely deprives the district court of jurisdiction to consider that
      appeal and, in turn, deprives us of jurisdiction to consider an appeal from
      the ruling of the district court. Given its jurisdictional nature, this
      requirement cannot be waived.

In Re Bayhi, 528 F.3d 393, 401 (5th Cir. 2008)(footnotes omitted); Fed. R.
Bankr.P. 8002(a).
      Martin’s bankruptcy cases were dismissed on June 20, 2006 and January
8, 2007, and he has presented no evidence of ever having filed a timely appeal.
This court has no jurisdiction to review orders of the bankruptcy court that were
never appealed correctly. The great majority of Martin’s brief concerns issues
he raises about the bankruptcy proceedings. Since these were never appealed
during the appropriate time and to the appropriate court, they are not properly
before us and will not be considered.
      This court has jurisdiction over the final decision of a federal district court,
and affirms the district court’s grant of summary judgment for the defendants
on the remaining claims. There is no genuine issue of material fact as to any of
these. Although numerous, they can be divided into those that are time barred,
those that fail to produce any evidence on the merits, and those that are based
on nonexistent causes of action.
2. Time Barred Claims
      Martin’s FDCPA, fraud, breach of fiduciary duty, and § 1983 claims are
time barred. Martin argues that the court should apply equitable tolling. For
the reasons outlined below, we disagree.
      Claims under the FDCPA must be brought within one year from the “date
the violation occurs.” 15 U.S.C. § 1692k(d). Martin’s claims of unfair debt
collection arise out of allegations from before October of 2006, over four years
before he brought the claim.
      “In determining the limitations period for a section 1983 claim, we apply

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the applicable period provided by state law, in this case the two-year Texas
personal injury limitations period.” Pete v. Metcalfe, 8 F.3d 214, 217 (5th Cir.
1993)(citation omitted); TEX. CIV. PRAC. & REM. CODE § 16.003(a). The
deprivation of due process Martin complains of is the alleged conspiracy between
the state court judge and the parties to take his property. Even if true, all of
these claims occurred over four years ago and are time barred.
      Claims for fraud and breach of fiduciary duty must be brought within “four
years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM.
CODE § 16.004(a). The alleged fraud concerned Reliant and Aegis’ involvement
with the bankruptcy proceedings in July 2006. The alleged breach of fiduciary
duty concerned the actions of Martin’s lawyers in presumably convincing him to
execute a second lien note for his outstanding legal debts in May 2005. Both of
these “causes of action” accrued over four years before Martin filed his original
complaint on October 4, 2010.
      Martin argues that equitable tolling should apply to his claims. As to the
claims against Reliant, Martin never raised the issue of equitable tolling at the
district court level in six separate responses to Reliant’s motion for summary
judgment. This court has a “virtually universal practice of refusing to address
matters raised for the first time on appeal.” Lofton v. McNeil Consumer &
Specialty Pharm., 672 F.3d 372, 381 (5th Cir. 2012), quoting Karl Rove & Co. v.
Thornburgh, 39 F.3d 1273, 1280 (5th Cir. 1994). The arguments for equitable
tolling as to Reliant have only been raised on appeal and will not be considered.
      As for equitably tolling the claims against Bravenec, the court applies
equitable tolling “sparingly.” Granger v. Aaron’s, Inc., 636 F.3d 708, 712 (5th Cir.
2011). Moreover, the plaintiff bears the burden to justify a claim for equitable
tolling. Id. The continuous tort doctrine is an exception to the Texas statute of
limitations and creates a separate cause of action each day. Gen. Universal Sys.,
Inc. v. HAL, Inc., 500 F.3d 444, 451 (5th Cir. 2007). An act that has a permanent

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effect is not subject to the continuous tort doctrine because it accrues on the date
of occurrence. See Kittrell v. City of Rockwall, 526 F.2d 715, 716 (5th Cir. 1976).
      Here, the continuous tort doctrine is inapplicable to Martin’s trespass
claim because the foreclosure proceeding constituted a permanent act. The
foreclosure proceeding ceased on the date that seizure occurred. Accordingly,
Martin alleged nothing more than a prior act that continued to inflict injury.
      Martin argues that the fraud claim is subject to equitable tolling because
Reliant concealed the true owner of the lien note. Generally, equitable tolling
requires (1) that the plaintiff pursued his rights diligently and (2) some
extraordinary circumstances stood in his way. Credit Suisse Sec. (USA) LLC v.
Simmonds, 132 S.Ct. 1414, 1419 (2012). Moreover, the fraudulent concealment
doctrine requires that: (1) the defendant concealed the facts at issue; and (2) the
plaintiff failed to discover the relevant facts despite the exercise of due diligence.
Texas v. Allan Const. Co., 851 F.2d 1526, 1528 (5th Cir. 1988).
      The concealment element is satisfied through evidence that either the
wrong was self-concealing or that the defendant took affirmative steps to conceal
its existence. Id. An affirmative act of concealment requires more than mere
silence; indeed, the defendant must perform some “trick or contrivance tending
to exclude suspicion and prevent inquiry.” Id. at 1529 (quoting Crummer Co. v.
DuPont, 255 F.2d 425, 432 (5th Cir. 1958)). Finally, the tolling period ceases
when the facts that were fraudulently concealed are, or should have been,
discovered by the plaintiff. Id. at 1533.
      Martin argues that Reliant concealed the true owner of the note and
Bravenec concealed a “secret relationship” with the presiding district judge
because he contributed to the judge’s campaign and another lawyer in his firm,
McKnight, practiced law with the judge previously. However, Martin fails to
produce any evidence of concealment by the defendants. Reliant recorded the
transfer of the note in the property records of Bexar County. Similarly, Martin

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discovered the alleged improper relationship through widely circulated public
sources, such as a newspaper article in which the judge discussed his
relationship with McKnight openly. Defendants can hardly be said to have
concealed anything, and Martin has presented no evidence that he exercised due
diligence to discover well-known facts.
      Even assuming arguendo that Reliant concealed facts relevant to the
FDCPA claim in a manner that would trigger tolling, Martin nevertheless failed
to bring a timely claim. There is a one year statute of limitations under the
FDCPA. 15 U.S.C. § 1692k(d). Martin admittedly discovered the transfer of the
note in August 2007. Accordingly, he should have brought the claim prior to
August 2008, but instead filed the claim in October 2010. Therefore, Martin is
not entitled to equitable tolling of his claims.
3. Claims Without Evidence
      The district court properly granted summary judgment to the Reliant
defendants on the deprivation of due process claim. Such a claim requires some
state action. Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 172 (1972). The fact
that Reliant prevailed in the bankruptcy court does not provide the state action
required. Martin also alleges a conspiracy between Bravenec and the state court
judge, but provides no evidence for this assertion.
      The district court properly granted summary judgment for the Reliant
defendants on the RICO claims. Martin alleges that the Reliant defendants
violated RICO by their participation in his bankruptcy without standing and by
conspiring with his former lawyers to collect a debt obtained in breach of a
fiduciary duty. As the district court noted, 18 U.S.C. § 1962(c) does not remotely
relate to the allegations Martin has made, and his claim for relief was rightly
recognized as unfounded.
      Even if Martin’s fraud claim were not time barred, he failed to present any
evidence in support of it.

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      The elements of fraud in Texas are (1) the defendant made a
      representation to the plaintiff; (2) the representation was material; (3) the
      representation was false; (4) when the defendant made the representation
      the defendant knew it was false or made the representation recklessly and
      without knowledge of its truth; (5) the defendant made the representation
      with the intent that the plaintiff act on it; (6) the plaintiff relied on the
      representation; and (7) the representation caused the plaintiff injury.

Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032-
33 (5th Cir. 2010)(citing Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51
S.W.3d 573, 577 (Tex. 2001)).


      The fraud Martin alleges is that Reliant and Aegis represented that they
had standing to enforce the lien note on his property.         He relied on this
representation by agreeing to the lift of the stay order that ultimately allowed
for the property to be foreclosed. Reliant and Aegis responded by pointing out
that they in fact did have standing. Although they transferred ownership of the
note to Bernhard Properties, they retained the obligation to service it.
      Martin’s argument fails on multiple grounds. He provided no evidence
that Reliant and Aegis did not have standing, while Reliant and Aegis produced
the contracts that identify their relationships to each other and the property.
Martin also fails to show any injury related to this representation. Martin’s
injuries apparently came about because he repeatedly did not pay his debts. As
a result, he lost his land.
4. Nonexistent Claims
      The district court properly granted summary judgment to the defendants
on the negligent infliction of emotional distress claim. This tort does not exist
in Texas. In Texas, “there is no general duty not to negligently inflict emotional
distress.” Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993). Likewise, the district
court correctly recognized that there was no “federal common law” wrongful


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appropriation claim.
                               CONCLUSION
     For the reasons given above, the district court’s order granting summary
judgment for the defendants is AFFIRMED.




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