                                     IN THE
                             TENTH COURT OF APPEALS

                                     No. 10-12-00302-CV

TODD PHILLIPPI,
                                                                     Appellant
    v.

CITI RESIDENTIAL LENDING, INC.,
                                                                     Appellee



                              From the County Court at Law
                                   Ellis County, Texas
                                Trial Court No. C-08-3657


                              MEMORANDUM OPINION1


         Asserting five issues, Appellant Todd Phillippi complains of the summary

judgment entered by the trial court in this wrongful-foreclosure suit. We will affirm.

         In his first three issues, Phillippi asserts that the summary judgment was not

final and appealable and was improper because Citi did not move for summary

judgment on Phillippi’s declaratory-judgment claim and on the temporary injunction



1 The background of this appeal is well known to the parties; thus, we do not recite it here in detail.
Because the dispositive legal issues are settled in law, we issue this memorandum opinion. TEX. R. APP.
P. 47.2(a), 47.4.
that had been entered in the case. We agree with Citi that Phillippi did not plead a

cause of action for declaratory judgment. His live pleading alleges seven causes of

action and then states the following in a section entitled “Relief Requested:” “There

exists a genuine controversy between the parties herein that would be terminated by

the granting of declaratory judgment.         Plaintiffs therefore request that declaratory

judgment be entered as follows:”. As Citi notes, nothing follows. And we also agree

with Citi that, even if Phillippi did plead a declaratory-judgment claim, the error would

be harmless in this case. See G & H Towing Co. v Magee, 347 S.W.3d 293, 297-98 (Tex.

2011).

         Phillippi’s pleading for injunctive relief is not a cause of action, but an equitable

remedy, and Citi was not required to specifically address the request for injunctive

relief in its motion. See Cooper v. Litton Loan Serv’g, LP, 325 S.W.3d 766, 769-70 (Tex.

App.—Dallas 2010, pet. denied). And regarding the trial court’s temporary injunction,

its own terms provided that it would remain in place “until time of Trial;” the

temporary injunction remained in force until the trial court’s final summary judgment.

See Indep. Am. Real Estate Inc. v. Davis, 735 S.W.2d 256, 261 (Tex. App.—Dallas 1987, no

writ). Issues one, two, and three are overruled.

         In his fourth issue, Phillippi contends that the alleged lack of service of Citi’s no-

evidence and traditional motion for summary judgment and notice of the summary-

judgment hearing deprived him of due process. Phillippi did not file a response to

Citi’s motion. In his amended motion to set aside the summary judgment/motion for

new trial, Phillippi alleged that he was not served at his “address of record” and that he

Phillippi v. Citi Residential Lending, Inc.                                              Page 2
did not receive notice of the summary-judgment hearing. The amended motion to set

aside was overruled by operation of law. We review the trial court’s refusal to grant the

amended motion for an abuse of discretion. Irvin v. Guarantee Co. of N. Am., USA, No.

05-07-01230-CV, 2008 WL 2971806, at *4 (Tex. App.—Dallas Aug. 5, 2008, no pet.) (mem.

op.).

        Due process “requires only that the method of notice be reasonably calculated,

under the circumstances, to apprise the interested parties of the pendency of the

action.” Pierce v. Tex. Racing Comm’n, 212 S.W.3d 745, 758 (Tex. App.—Austin 2006, pet.

denied). Rule 21a allows for service “by certified or registered mail, to the party’s last

known address.” TEX. R. CIV. P. 21a. “Last known address” is not defined. Also, a

certificate of service is prima facie evidence of the fact of service. Id.

        Citi served its motion for summary judgment on Phillippi (who was appearing

pro se by that time) at his “homestead address” by certified mail, return receipt

requested and by first-class mail, according to the motion’s certificate of service.2 The

trial-court clerk’s docket indicates the issuance of a fiat setting Citi’s motion for

summary judgment for hearing and showing service of the fiat on Phillippi at the same

homestead address. A few weeks later, Citi’s co-defendant Deutsche Bank filed and

served its own summary-judgment motion (which was also granted) on Phillippi at his

homestead address. Phillippi filed a response to Deutsche Bank’s motion.

2
  In his brief, Phillippi incorrectly asserts that Citi’s motion was filed “without a certificate of service.”
His brief then asserts, without citation to the record, that the motion was “actually served on an address
not that of Phillippi.” In its motion, Citi cited to the Ellis County Appraisal District records that reflect
that the homestead address is his residence for which he claimed a property tax homestead exemption
and that this case’s subject property, which the deed of trust required to be Phillippi’s “principal
residence,” was vacant and was never claimed by him as his homestead.

Phillippi v. Citi Residential Lending, Inc.                                                            Page 3
           In his affidavit, Phillippi denied receiving “any” motion for summary judgment

or notice of a hearing on a motion for summary judgment from Citi.3 Phillippi does not

deny under oath that the homestead address used by Citi and the clerk was his address;

rather, he claims that it was not his “address of record.” Nor does Phillippi deny that

he receives mail at his homestead address or that it is his residence, and he does not

explain why he did not receive the motion that was mailed two ways to his homestead

address.4

           The trial court did not abuse its discretion by refusing to set aside the summary

judgment for Citi.            Citi certified that it mailed its motion two different ways to

Phillippi’s homestead address, and notice of the hearing was also sent to that address.

Phillippi responded to Deutsche Bank’s motion, which was also served at that address.

And while Phillippi denied receiving the motion or hearing notice, in both the trial

court and on appeal, he has failed to explain how or why he did not receive those

mailings at his home address.5 The trial court was free to believe or disbelieve all or




3
    To repeat, the trial-court clerk, not Citi, served the fiat on Phillippi at his homestead address.
4
  In the pendency of this appeal, the Clerk of the Court had at least two mailings to Phillippi at his
“address of record” returned by the United States Postal Service. As a result, in our March 6, 2014 Order
on Rehearing, we ordered Phillippi to certify his current mailing address. He certified that his current
mailing address is his address of record. We warned Phillippi that if his mailing address changed, this
appeal would be dismissed unless he timely notified the Court in a certification. We have not received a
certification of a new mailing address from Phillippi. We note that the Clerk’s June 18, 2014 notice of
submission to Phillippi at his address of record/current mailing address was returned by the United
States Postal Service to the Clerk with the notation: “Unclaimed Unable to Forward.”

5
 To date Phillippi has failed to provide the Clerk of the Court an explanation for why the Clerk’s
mailings to him have been returned.


Phillippi v. Citi Residential Lending, Inc.                                                              Page 4
any part of Phillippi’s affidavit testimony.6 See Rundle v. Comm’n for Lawyer Discipline, 1

S.W.3d 209, 213-14 (Tex. App.—Amarillo 1999, no pet.). Due process was satisfied

because the method of notice—mailing to Phillippi’s homestead (residence) address—

was reasonably calculated to apprise him. Issue four is overruled.

        In issue five, Phillippi asserts that his summary-judgment evidence on file in

response to Citi’s first no-evidence motion for summary judgment, which the trial court

had denied, shows that fact issues exist on his claims and that Citi’s second motion for

summary judgment should not have been granted.                          But even if we considered

Phillippi’s prior summary-judgment evidence, Citi moved for both a no-evidence and

traditional summary judgment. The trial court granted Citi’s motion without stating

the reasons or grounds therefor, and Phillippi cannot prevail on appeal without

defeating every one of the grounds in Citi’s motion for traditional summary judgment.

See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). In his brief,

Phillippi makes no attempt to address any of Citi’s traditional grounds for summary

judgment.

        Moreover, as the appealing party, Phillippi has the burden of bringing forward

the record of Citi’s summary-judgment evidence to provide us a basis for review of

error. Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004); Taylor

v. Jones, No. 10-13-00147-CV, 2014 WL 813805, at *1 (Tex. App.—Waco Feb. 27, 2014, no

pet.) (mem. op.). “If the pertinent summary judgment evidence considered by the trial



6
  In its motion, Citi presented evidence that Phillippi is a disbarred attorney with three felony convictions
(fraudulent use of identifying information and two counts of tampering with a governmental record).

Phillippi v. Citi Residential Lending, Inc.                                                           Page 5
court is not included in the appellate record, an appellate court must presume that the

omitted evidence supports the trial court’s judgment.” Barrios, 156 S.W.3d at 550; see

Taylor, 2014 WL 813805, at *1.                In his amended designation of the clerk’s record,

Phillippi specifically requested that the “trial exhibits” be excluded. Citi notes that this

was a request to exclude from the record Citi’s exhibits to its motion for summary

judgment. Those exhibits are not in the clerk’s record. Therefore, we must presume

that the missing exhibits support the trial court’s summary judgment in favor of Citi.

See Taylor, 2014 WL 813805, at *1.

        For both of these reasons, we overrule issue five. Having overruled all issues, we

affirm the trial court’s judgment.



                                                         REX D. DAVIS
                                                         Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Chief Justice Gray dissents with a note)*
Affirmed
Opinion delivered and filed August 14, 2014
[CV06]

        *(Chief Justice Gray dissents. A separate opinion will not follow. He notes,
however, that Phillippi’s affidavit that he received neither the motion for summary
judgment or notice of the hearing of the motion destroys the presumption of service
created by the proof of service. Thereafter it was not Phillippi’s burden to explain why
he did not receive notice. Chief Justice Gray would, on this basis alone and without
discussing any other issues, reverse the trial court’s judgment, and remand the case to
the trial court, because the court affirms the trial court. Chief Justice Gray respectfully
dissents.)



Phillippi v. Citi Residential Lending, Inc.                                              Page 6
