     Case: 13-40198       Document: 00512367043         Page: 1     Date Filed: 09/09/2013




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

                                                                            FILED
                                                                        September 9, 2013

                                     No. 13-40198                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



HARRY W. STURGES, IV,

                                                  Plaintiff - Appellant
v.

SUNTRUST MORTGAGE, INCORPORATED,

                                                  Defendant - Appellee



                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 3:11-CV-396


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Harry Sturges appeals the district court’s granting summary judgment for
Suntrust Mortgage against his claims for wrongful foreclosure, quiet title,
trespass to quiet title, and related declaratory judgment. The district court
concluded Sturges did not show a genuine dispute as to any material fact
supporting his wrongful-foreclosure claim, and as a result his other claims
necessarily failed as well. AFFIRMED.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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      The facts underlying this action are largely undisputed. To the extent
there is a dispute, the facts are presented in the light most favorable to Sturges
as the non-moving party, as is required when reviewing a summary judgment.
See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 313-14 (5th Cir. 2007).
      In 2007, Sturges purchased a home in Galveston, Texas, with the intent
to make it his principal residence and homestead. To finance this purchase, he
received two loans from SunTrust. Neither loan included an escrow agreement,
meaning Sturges was responsible for paying all taxes relating to the property
directly to the proper authorities. In 2009, Galveston County initiated an action
against Sturges to collect unpaid taxes. Sturges defended the suit, claiming he
never received a tax bill and did not owe the taxes in any event.
      Despite Sturges’ continuing defense, in January 2010 SunTrust intervened
and paid the allegedly outstanding taxes. Having thus disposed of the tax
dispute, SunTrust then increased the amount of Sturges’ monthly payments on
one of his loans so as to recoup the amount of tax paid. As a result, SunTrust
demanded $31,169.55 from Sturges in January 2011, as compared to his
previous monthly liability of $10,040.30.      When Sturges failed to pay the
increased amount, and after allowing him 30 days to cure his default, SunTrust
notified Sturges that the loan had been accelerated and the property would be
sold at a foreclosure sale in June 2011. Despite the foreclosure sale’s proceeding
as planned, Sturges maintains possession of the property.
      Sturges filed this action in state court in August 2011, and SunTrust
immediately removed to federal court.          Sturges claimed SunTrust had
wrongfully foreclosed on the property, trespassed quiet title (or, in the
alternative, Sturges sought to quiet title in the property), and sought declaratory
judgment on these issues. The district court concluded, inter alia, SunTrust had
not breached the controlling deed of trust when it paid the disputed taxes on the

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property and added the total to Sturges’ loan amount. Therefore, SunTrust had
not wrongfully foreclosed on the property.        The court granted summary
judgment for SunTrust because Sturges’ other claims could not succeed without
his wrongful-foreclosure claim.
      Summary judgment is reviewed de novo, and we apply the same standard
as the district court. Brown v. Ill. Cent. R.R. Co., 705 F.3d 531, 537 (5th Cir.
2013). Summary judgment is appropriate where the “movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(a). All evidence is viewed in the
light most favorable to the non-moving party, and all reasonable inferences are
drawn in that party’s favor. Jenkins, 487 F.3d at 313-14.
      Sturges argues primarily that, under the terms of the deed of trust,
SunTrust did not have the right to unilaterally pay the disputed taxes and add
the tax liability to his loan amount. Sturges claims this action constituted a
breach of the deed of trust, and the resulting foreclosure was therefore wrongful
and unjustified. He contends the controlling section of the deed of trust is
Section Four, which provides that Sturges “shall pay all taxes, assessments,
charges, fines, and impositions attributable to the Property which can attain
priority over” the SunTrust loan. Section Four continues:
      Borrower shall promptly discharge any lien which has priority over
      this Security Instrument unless Borrower: (a) agrees in writing to
      the payment of the obligation secured by the lien in a manner
      acceptable to Lender, but only so long as Borrower is performing
      such agreement; (b) contests the lien in good faith by, or defends
      against enforcement of the lien in, legal proceedings which in
      Lender’s opinion operate to prevent the enforcement of the lien
      while those proceedings are pending, but only until such
      proceedings are concluded; or (c) secures from the holder of the lien
      an agreement satisfactory to Lender subordinating the lien to this
      Security Instrument. If Lender determines that any part of the
      Property is subject to a lien which can attain priority over this
      Security Instrument, Lender may give Borrower a notice identifying

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      the lien. Within 10 days of the date on which that notice is given,
      Borrower shall satisfy the lien or take one or more of the actions set
      forth above in this Section 4.
      The other relevant section of the deed of trust is Section Nine, which
provides:
            If (a) Borrower fails to perform the covenants and agreement
      contained in this Security Instrument, (b) there is a legal proceeding
      that might significantly affect Lender’s interest in the rights under
      this Security Instrument (such as a proceeding in bankruptcy,
      probate, for condemnation or forfeiture, for enforcement of a lien
      which may attain priority over this Security Instrument or to
      enforce laws or regulations), or (c) Borrower has abandoned the
      Property, then Lender may do and pay for whatever is reasonable
      or appropriate to protect Lender’s interest in the Property and
      rights under this Security Instrument, including protecting, and/or
      assessing the value of the Property, and securing and/or repairing
      the Property. Lender’s actions can include, but are not limited to: (a)
      paying any sums secured by a lien which has priority over this
      Security Instrument; (b) appearing in court; and (c) paying
      reasonable attorneys’ fees to protect its interest in the Property
      and/or rights under this Security Instrument, including its secured
      position in a bankruptcy proceeding. . . . Although Lender may take
      action under this Section 9, Lender does not have to do so and is not
      under any duty or obligation to do so. It is agreed that Lender incurs
      no liability for not taking any or all actions authorized under this
      Section 9.
            Any amounts disbursed by Lender under this Section 9 shall
      become additional debt of Borrower secured by this Security
      Instrument. These amounts shall bear interest at the Note rate
      from the date of disbursement and shall be payable, with such
      interest, upon notice from Lender to Borrower requesting payment.
      Under Texas law, a deed of trust is interpreted using the same rules as
those applied to contracts. Fin. Freedom Sr. Funding Corp. v. Horrocks, 294
S.W.3d 749, 753 (Tex. Ct. App. 2009). Our task is to “ascertain the true
intentions of the parties as expressed in the instrument,” seeking specifically
their objective intent by “consider[ing] the entire writing in an effort to
harmonize and give effect to all the provisions of the contract so that none will

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be rendered meaningless.” Id.; see also J.M. Davidson, Inc. v. Webster, 128
S.W.3d 223, 229 (Tex. 2003). In addition, where terms in a contract appear to
conflict, “terms stated earlier in an agreement must be favored over subsequent
terms.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983).
      Based on these rules of interpretation, Sturges asserts Section Four of the
deed of trust should control. Not only does it deal specifically with “taxes,”
whereas Section Nine deals generally with legal proceedings and liens, but
Section Four also appears earlier in the writing. Considering the further, well-
known rule that ambiguities in an instrument should be construed against the
drafter, and the deed of trust is a uniform document used by several banks,
Sturges maintains he was within his rights under Section Four to contest the tax
suit without interference from SunTrust.          In other words, because he
“contest[ed] the lien in good faith,” Section Four absolved him of any
responsibility under the deed of trust to pay the allegedly owed taxes; SunTrust’s
intervention deprived him of his right to contest his tax liability and forced him
to pay the taxes in a lump sum to SunTrust, which he was unable to do.
      However, Sturges’ preferred reading of the deed of trust requires assuming
ambiguity or conflicting terms, where neither exists. As the district court
explained, Sections Four and Nine can both be given their full meaning without
reducing the strength of either.      While Sturges asserts the best way to
harmonize all terms of the agreement is to find Section Nine inapplicable to tax
suits and tax liens, there is no reason both Section Four’s specific language and
Section Nine’s general language cannot apply to such situations. As the district
court noted, both sections use the permissive “may” in laying out SunTrust’s
remedial options: under Section Four, it may provide notice and require
borrower to take an approved action to satisfy or contest the lien outranking
SunTrust’s; under Section Nine, it may, inter alia, “pay[] any sums secured by
a lien which has priority over this Security Instrument.” These two options do

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not conflict with each other, and are not ambiguous. SunTrust had the right to
take action under either Section Four or Section Nine–or, if it preferred,
neither–and chose Section Nine.
      Our conclusion is further supported by two other textual features of the
agreement. First, language in Sturges’ preferred Section Four allows him, as the
borrower, to contest a tax suit in a manner that “in Lender’s opinion operate[s]
to prevent the enforcement of the lien while those proceedings are pending,”
(emphasis added). SunTrust’s decision to intervene and pay the taxes illustrates
that it was not of the opinion that Sturges’ defense against the tax suit had the
effect of preventing the tax lien’s enforcement.
      Second, by its terms Section Four applies where there is “any lien” on the
property with priority over the agreement. While the taxing authorities were
suing Sturges for unpaid taxes, they had not yet obtained a judgment granting
them a lien on the property. By contrast, Section Nine applies, inter alia, where
“there is a legal proceeding that might significantly affect Lender’s interest in
the rights under this Security Instrument.” The tax suit clearly fits under that
umbrella, and Section Nine is therefore more applicable to Sturges’ situation
than is Section Four.
      Before the district court, Sturges argued further that he had not received
the required notice from SunTrust before it foreclosed, and that SunTrust misled
him as to a potential loan modification. He has waived both contentions by
failing to brief them. E.g., Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Because SunTrust acted within its rights under the deed of trust by paying
Sturges’ allegedly delinquent taxes and adding the total to his loan amount, its
subsequent foreclosure upon Sturges’ failure to pay the increased amount was
not wrongful.
      AFFIRMED.



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