                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00197-CV


ERIC BENSON                                                      APPELLANT

                                     V.

INDYMAC MORTGAGE SERVICES,                                       APPELLEES
A DIVISION OF ONEWEST BANK,
FSB; AND FEDERAL NATIONAL
MORTGAGE ASSOCIATION, A/K/A
FANNIE MAE


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         FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION1

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                              I. INTRODUCTION

     In two issues, Appellant Eric Benson challenges the trial court’s summary

judgment rendered in favor of Appellees Indymac Mortgage Services, a division


     1
      See Tex. R. App. P. 47.4.
of OneWest Bank, FSB; and Federal National Mortgage Association, a/k/a

Fannie Mae. We will affirm.

                          II. PROCEDURAL BACKGROUND

      Benson filed suit against Appellees, asserting causes of action for breach

of contract, intentional infliction of emotional distress, and violations of the

Deceptive Trade Practices Act (DTPA) and requesting a temporary restraining

order. In due course, Appellees filed a combined traditional and no-evidence

motion for summary judgment on Benson’s claims. Benson filed a response and

attached summary judgment evidence.          The trial court granted Appellees’

combined traditional and no-evidence motion for summary judgment and

dismissed with prejudice all of Benson’s claims against Appellees. This appeal

followed.

  III. RESPONSE DOES NOT ADDRESS EVERY BREACH OF CONTRACT ELEMENT OR
   EVERY ELEMENT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS THAT IS
        CHALLENGED IN THE NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

      In two issues, Benson argues that the trial court erred by granting

summary judgment because genuine issues of material fact are in dispute

concerning his breach of contract claim and his intentional infliction of emotional

distress claim.2




      2
      Benson does not challenge on appeal the summary judgment granted on
his DTPA claim.

                                        2
      The elements of a breach of contract claim are (1) the existence of a valid

contract, (2) performance or tendered performance by the plaintiff, (3) breach of

the contract by the defendant, and (4) resulting damages to the plaintiff. Rice v.

Metro. Life Ins. Co., 324 S.W.3d 660, 666 (Tex. App.—Fort Worth 2010, no pet.).

Appellees’ no-evidence summary judgment motion asserted that no evidence

existed on any of these four elements. On appeal, Appellees claim that Benson’s

response to Appellees’ no-evidence and traditional motion for summary judgment

did not address or point to summary judgment evidence on each of the four

breach of contract elements that Appellees challenged by their no-evidence

motion.   Appellees claim that the breach of contract no-evidence summary

judgment therefore must be affirmed.

      To establish a claim for intentional infliction of emotional distress, a plaintiff

must prove: (1) the plaintiff is a person; (2) the defendant acted intentionally or

recklessly; (3) the emotional distress suffered by the plaintiff was severe; (4) the

defendant’s conduct was extreme and outrageous; (5) the defendant’s conduct

proximately caused the plaintiff’s emotional distress; and (6) no alternative cause

of action would provide a remedy for the severe emotional distress caused by the

defendant’s conduct. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex.

2006).    Appellees’ no-evidence summary judgment motion asserted that no

evidence existed on elements two, three, four, or five. On appeal, Appellees

claim that Benson’s response to Appellees’ no-evidence and traditional motion

for summary judgment did not address or point to summary judgment evidence

                                          3
on element four of his alleged intentional infliction of emotional distress claim.

Appellees claim that the no-evidence summary judgment on Benson’s intentional

infliction of emotional distress claim therefore must be affirmed.

      Benson’s summary judgment response addressed only the first breach of

contract element listed above—the existence of a valid contract.        Benson’s

response did not address the other elements of his breach of contract claim or

point to summary judgment evidence raising a fact issue on these challenged

elements. Likewise, Benson’s summary judgment response addressed only the

second intentional infliction of emotional distress element listed above—whether

Appellees had acted recklessly—and did not point to summary judgment

evidence raising a fact issue on the other three elements challenged by

Appellees. A trial court must grant a no-evidence motion if the nonmovant does

not produce evidence raising a fact issue on the challenged elements. See Tex.

R. Civ. P. 166a(i).

      Giving Benson’s briefing a liberal construction, he nonetheless attempts in

this court for the first time on appeal to argue that the summary judgment

evidence he attached to his response3 raises issues of fact on some of the other



      3
        Benson attached the following summary judgment evidence to his
response to Appellees’ no-evidence motion for summary judgment:               an
instruction manual from OneWest Bank; a Forbearance Plan Agreement; copies
of money orders he sent in for payment under the Forbearance Plan Agreement;
a FedEx delivery confirmation of his money orders; OneWest Bank’s
“Consolidated Notes Log”; the entire transcript from the July 14, 2011 temporary
injunction hearing; the entire transcript from Benson’s August 13, 2013
                                         4
challenged elements of his breach of contract claim and some of the other

challenged elements of his intentional infliction of emotional distress claim.4 But

because Benson’s response to the no-evidence motion did not bring to the trial

court’s attention any arguments or summary judgment evidence concerning any

element of his breach of contract claim other than the first element—whether a

valid contract existed—or any element of his intentional infliction of emotional

distress claim other than the second element—whether Appellees acted

recklessly, he failed to meet his burden in responding to a no-evidence summary

judgment motion of raising an issue of material fact. See Plotkin v. Joekel, 304

S.W.3d 455, 477 n.12 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (holding

that appellant challenging no-evidence summary judgment must meet rule

166a(i) burden in trial court, not for first time on appeal); see also Aleman v. Ben

E. Keith Co., 227 S.W.3d 304, 309 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(indicating that nonmovant’s burden is to point out evidence raising a fact issue);

Springer v. Am. Zurich Ins. Co., 115 S.W.3d 582, 585 (Tex. App.––Waco 2003,

pet. denied) (“If it is [the nonmovant’s] assertion that the Commission decision

constitutes evidence that would defeat the no-evidence motion for summary

judgment, it was her responsibility to present such an assertion to the trial court

deposition; deposition excerpts from the Vice President of OneWest Bank; and
Benson’s affidavit.
      4
        Benson’s brief does not segregate his arguments concerning each
particular element of each claim; he argues the summary judgment evidence as
a whole raises fact issues as to the cause of action in its entirety.

                                         5
through her response.”). Accordingly, we may not consider for the first time on

appeal Benson’s arguments and references to summary judgment evidence

concerning the second, third, and fourth elements of his breach of contract claim

or the fourth and fifth elements of his intentional infliction of emotional distress

claim because these arguments and summary judgment references were not

provided to the trial court. See Plotkin, 304 S.W.3d at 477; Holloway v. Tex.

Elec. Util. Constr., Ltd., 282 S.W.3d 207, 212 (Tex. App.—Tyler 2009, no pet.)

(holding that no-evidence summary-judgment response was inadequate to raise

fact issue when party failed to discuss challenged element anywhere in

response).

      We overrule Benson’s two issues.

                                 IV. CONCLUSION

      Having overruled both of Benson’s issues, we affirm the trial court’s

judgment.



                                                   PER CURIAM


PANEL: WALKER, GARDNER, and MCCOY, JJ.

DELIVERED: February 27, 2014




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