Steffany Jackson v. American Home Mortgage Servicing, Inc. ( 2014 )

AFFIRM; and Opinion Filed August 4, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01596-CV
STEFFANY JACKSON, Appellant
V.
AMERICAN HOME MORTGAGE SERVICING, INC., Appellee
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-02539-2011
MEMORANDUM OPINION
Before Justices Moseley, O’Neill, and FitzGerald
Opinion by Justice FitzGerald
Appellant Steffany Jackson sued appellee American Home Mortgage Servicing, Inc.,
alleging that appellee was wrongfully attempting to evict her from her home. The trial judge
rendered a take-nothing summary judgment against appellant. Appellant timely appealed. We
affirm.
Appellant pleaded four claims against appellee: (1) violations of the Texas Deceptive
Trade Practices Act, (2) fraud by nondisclosure, (3) trespass to try title, and (4) breach of
contract. Appellee filed a motion for summary judgment in which it first attacked every claim
on traditional grounds and then attacked every claim on no-evidence grounds. After appellant
failed to file a response, the trial judge signed a take-nothing summary judgment in which she
stated that the summary-judgment motion was granted “on all the grounds stated therein.” This
summary-judgment order became final when appellee nonsuited its counterclaims against
appellant and the trial judge signed an order granting that nonsuit.
Appellant raises two issues on appeal. In her first issue, she contends that appellee’s
traditional summary-judgment grounds were not meritorious because its summary-judgment
evidence was incompetent. In her second issue, she contends that appellee’s no-evidence
grounds were not meritorious because they lacked the specificity required by Texas Rule of Civil
Procedure 166a(i). We need address only appellant’s second issue.
A no-evidence motion for summary judgment must specifically state which elements of
the nonmovant’s claims lack supporting evidence. 1 Appellant argues that appellee’s no-evidence
motion is insufficient because it “merely recites the elements of each cause of action.” The
record refutes appellant’s argument. The no-evidence portion of appellee’s motion contains the
following passage:
Plaintiff has had an adequate time to conduct discovery after filing this suit on
June 15, 2011, and she has no evidence supporting one or more essential elements
of her claims against AHMSI. Specifically:
a. There is no evidence of the following elements of Plaintiff’s DTPA
claims: (1) AHMSI committed a wrongful act under the DTPA; (2)
AHMSI’s actions were a producing cause of Plaintiff’s damages; and (3)
Plaintiff suffered injury as a result.
b. There is no evidence of the following elements of Plaintiff’s fraud claim:
(1) AHMSI intentionally failed to disclose facts; (2) AHMSI had a duty to
disclose such facts; (3) Plaintiff did not have an equal opportunity to
discover the facts; (4) Plaintiff acted in reliance on AHMSI’s omission;
and (5) Plaintiff suffered injury as a result.
c. There is no evidence of the following elements of Plaintiff’s breach of
contract claim: (1) that Plaintiff validly exercised the purchase option; and
(2) that Plaintiff was current under the Lease when she exercised the
purchase option.
1
Jose Fuentes Co., Inc. v. Alfaro, 418 S.W.3d 280, 283 (Tex. App.—Dallas 2013, pet. filed) (en banc); see also TEX. R. CIV. P. 166a(i)
(“The motion must state the elements as to which there is no evidence.”).
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d. There is no evidence of the following elements of Plaintiff’s trespass to try
title claim: (1) that Plaintiff has any claim to title of the Property.
Appellee did not make a general no-evidence challenge to appellant’s case, nor was appellee’s
motion conclusory. 2 Rather, appellee identified the specific elements of each of appellant’s four
claims that appellee claimed lacked evidentiary support. Appellant did not object that it was
unclear or ambiguous which elements were being attacked as without evidentiary support. 3
Thus, any complaints about the clarity of appellee’s motion were waived. 4
Appellant’s sole attack on the no-evidence summary judgment is without merit. Because
the no-evidence portion of appellee’s summary-judgment motion is sufficient to support the
judgment, we need not discuss appellant’s first issue concerning appellee’s traditional grounds
for summary judgment.
We affirm the trial court’s judgment
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
121596F.P05
2
See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (noting that conclusory motions and general no-evidence challenges to
an opponent’s case are not permitted by Rule 166a(i)).
3
See Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 420 (Tex. App.—Dallas 2002, no pet.) (noting supreme-court precedent
that “a nonmovant must object to an unclear or ambiguous motion for summary judgment”).
4
See id.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
STEFFANY JACKSON, Appellant On Appeal from the 417th Judicial District
Court, Collin County, Texas
No. 05-12-01596-CV V. Trial Court Cause No. 417-02539-2011.
Opinion delivered by Justice FitzGerald.
AMERICAN HOME MORTGAGE Justices Moseley and O’Neill participating.
SERVICING, INC., Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee American Home Mortgage Servicing, Inc. recover its costs
of this appeal from appellant Steffany Jackson.
Judgment entered this 4th day of August, 2014.
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