David Rockwell and Carlene Rockwell v. Wells Fargo Bank, N.A. ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00100-CV
DAVID ROCKWELL AND CARLENE APPELLANTS
ROCKWELL
V.
WELLS FARGO BANK, N.A. APPELLEE
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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In four points, Appellants David Rockwell and Carlene Rockwell appeal the
trial court’s grant of summary judgment in favor of Appellee Wells Fargo Bank,
N.A. We will affirm.
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See Tex. R. App. P. 47.4.
II. BACKGROUND
Appellants executed a deed of trust in May 2006 to secure repayment of a
loan that Carlene obtained from Edward Jones Mortgage, LLC in the amount of
$210,400 and that she used to purchase a house in Parker County. A note and
the deed of trust were assigned to Wells Fargo, who in May 2009 notified
Appellants that their payments were delinquent and that the note would be
accelerated if the default was not cured. Appellants failed to cure the default,
and Wells Fargo appointed a substitute trustee and informed Appellants that the
property was scheduled to be sold at a foreclosure sale. Appellants filed this
lawsuit just before the date set for the foreclosure sale, alleging claims against
Wells Fargo for wrongful foreclosure and for violation of the Deceptive Trade
Practices Act (DTPA) and the Texas Debt Collection Act (TDCA). Wells Fargo
did not proceed with the foreclosure sale, but it ultimately filed a motion for
summary judgment on all of Appellants’ claims. Appellants never responded to
Wells Fargo’s motion, and the trial court granted it and denied Appellants’
subsequent motion to vacate the summary judgment. This appeal followed.
III. INSUFFICIENT NOTICE OF HEARING ON MOTION FOR SUMMARY JUDGMENT
In their first point, Appellants argue that the trial court erred by not vacating
the summary judgment because they did not receive “sufficient” notice of the
hearing on Wells Fargo’s motion.
Except on leave of court, with notice to opposing counsel, the motion for
summary judgment and any supporting affidavits shall be filed and served at
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least twenty-one days before the time specified for the hearing. See Tex. R. Civ.
P. 166a(c). However, lack of proper notice of a summary judgment hearing is a
nonjurisdictional defect that the nonmovant can waive. May v. Nacogdoches
Mem’l Hosp., 61 S.W.3d 623, 626 (Tex. App.—Tyler 2001, no pet.). Another
appellate court has concisely explained the distinction between preserving an
argument for appellate review complaining of insufficient notice of a hearing on a
motion for summary judgment and preserving an appellate argument complaining
of no notice of a hearing on a motion for summary judgment. See Rios v. Tex.
Bank, 948 S.W.2d 30, 33 (Tex. App.—Houston [14th Dist.] 1997, no writ). The
court explained:
A party who has no notice of the summary judgment hearing is
unable to attend the hearing and should be able to preserve error by
post-trial motion alone. If, on the other hand, a party receives notice
that is untimely, but sufficient to enable the party to attend the
summary judgment hearing, the party must file a motion for
continuance and/or raise the complaint of late notice in writing,
supported by affidavit evidence, and before the trial court during the
summary judgment hearing. To hold otherwise would allow a party
who participated in the hearing to lie behind the log until after the
summary judgment is granted and then raise the complaint of late
notice for the first time in a post-trial motion. Furthermore, if a party
receives sufficient notice to attend the hearing and does not attend
the hearing, due process requirements are satisfied.
Id. (citations and footnotes omitted); see May, 61 S.W.3d at 627 (“It is only when
a party is not given notice of the summary judgment hearing, or a party is
deprived of its right to seek leave to file additional affidavits or other written
response, that it may preserve error in a post-trial motion.”). The court went on
to hold that the appellant, who had seven days’ notice of the summary judgment
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hearing, did not preserve his argument regarding insufficient notice of the hearing
because although he could have filed a motion for a continuance or a motion for
leave to file a response raising the issue of late notice, he did not do so. Rios,
948 S.W.2d at 33. This court has previously cited with approval Rios and May.
See In re K.C., No. 02-08-00023-CV, 2008 WL 4180335, at *1 & nn.13–15 (Tex.
App.—Fort Worth Sept. 11, 2008, no pet.) (mem. op.) (holding that appellant,
who received three days’ notice of hearing, waived issue complaining of
insufficient notice of hearing by failing to object or move for a continuance prior to
the hearing).
In this case, Wells Fargo sent notice of the November 14, 2011 setting to
Appellants on October 18, 2011, via certified mail, return receipt requested, but
for some reason, Appellants’ counsel did not sign the “green card” return receipt
until November 10, 2011, four days before the date scheduled for the hearing.
Appellants acknowledge that they received actual notice of the hearing on Wells
Fargo’s motion for summary judgment four days before the date set for the
hearing. Because the four days’ notice was untimely but sufficient to enable
them to file a written objection to the hearing, to preserve error, Appellants must
have moved for a continuance of the hearing or otherwise sought leave of court
to raise the issue of insufficient notice, but like the appellant in Rios, Appellants
never did so.
Appellants cite authorities relevant to cases in which the nonmovant to a
summary judgment motion received no notice of the hearing on the motion. See
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Mark Rotella Custom Homes, Inc. v. Cutting, No. 02-07-00133-CV, 2008 WL
623785, at *2 (Tex. App.—Fort Worth Mar. 6, 2008, no pet.) (mem. op.)
(“However, the opposing party may rebut th[e] presumption [that notice of a
hearing setting, when properly mailed, was received by the addressee] by
offering proof that the notice or document was not received.”); Rabie v. Sonitrol
of Houston, Inc., 982 S.W.2d 194, 195–97 (Tex. App.—Houston [1st Dist.] 1998,
no pet.) (“Thus, there was no evidence before the trial court to controvert
defendant’s sworn affidavit stating that he never received notice of the certified
mail.”). But these authorities are inapposite because, as explained, this case
involves insufficient notice, not lack of notice. Appellants’ post-judgment motion
to vacate the summary judgment was consequently insufficient to preserve error.
Accordingly, we hold that Appellants failed to preserve this point for
appellate review. See Rios, 948 S.W.2d at 33; see also Hatler v. Moore Wallace
N. Am., Inc., No. 01-07-00181-CV, 2010 WL 375807, at *1–2 (Tex. App.—
Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.) (reasoning that motion for
new trial complaining of insufficient notice of summary judgment hearing did not
preserve same argument on appeal); May, 61 S.W.3d at 627 (holding that
nonmovant waived argument on appeal regarding insufficient notice of summary
judgment hearing because she failed to file written objection upon receiving two
days’ notice of the hearing). We overrule Appellants’ first point.
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IV. PREMATURE MOTION FOR SUMMARY JUDGMENT
In their third point, Appellants argue that the trial court erred by granting
Wells Fargo summary judgment on no-evidence grounds because the motion
was premature—the discovery period had not ended—and additional time was
needed to conduct adequate discovery.
We review a trial court’s determination that there has been an adequate
time for discovery on a case-by-case basis, under an abuse of discretion
standard, bearing in mind that a trial court abuses its discretion only when it acts
in an unreasonable and arbitrary manner or when it acts without reference to any
guiding rules or principles. LaRue v. Chief Oil & Gas, L.L.C., 167 S.W.3d 866,
873 (Tex. App.—Fort Worth 2005, no pet.); see Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert. denied, 476 U.S.
1159 (1986). In determining whether the time period for discovery was
adequate, courts have looked at the nature of the case, the nature of the
evidence necessary to controvert the motion, the length of time that the case was
active, the amount of time that the motion was on file, the amount of discovery
that had already taken place, and whether the deadlines were specific or vague.
Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 339 (Tex. App.—Dallas
2002, no pet.).
The record demonstrates that Appellants filed this lawsuit on December 6,
2010. Wells Fargo removed the case to federal court several weeks later, but
the case was remanded back to state court on or about May 16, 2011. Wells
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Fargo filed its motion for summary judgment approximately five months later, in
mid-October 2011, and the trial court granted the motion on or about
November 30, 2011. Appellants do not challenge Wells Fargo’s contention that
they failed to conduct any discovery during the pendency of the case, including
between May and October 2011, when the case was pending in state court. Nor
do Appellants identify what discovery they needed, if any, in order to adequately
respond to Wells Fargo’s motion for summary judgment. Instead, they merely
contend that “[i]nformation outside the formal discovery process that guides
counsel in the focused pursuit of certain items in discovery has been in flux in
this area of law, with developments over the past year or two constantly affecting
the calculus of when and where discovery should be pursued” and that “[t]o have
forced this case to an abrupt conclusion in November [2011] via summary
judgment . . . is not in keeping with the interest of justice in this case.”
Considering each of the factors set out above in light of both the record and
Appellants’ specific arguments, we cannot conclude that the trial court abused its
discretion by determining that an adequate time for discovery had elapsed. See,
e.g., Robeson v. Mortg. Elec. Registration Sys., Inc., No. 02-10-00227-CV, 2012
WL 42965, at *4 (Tex. App.—Fort Worth Jan. 5, 2012, pet. filed) (mem. op.)
(holding similarly); Wolfe v. Fairbanks Capital Corp., No. 02-03-00100-CV, 2004
WL 221212, at *1 (Tex. App.—Fort Worth Feb. 5, 2004, no pet.) (mem. op.)
(same). We overrule Appellants’ third point.
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V. SUMMARY JUDGMENT
In their second and fourth points, Appellants argue that the trial court erred
by granting Wells Fargo summary judgment because Well Fargo’s evidence
supported Appellants’ claims.
Although Appellants did not file a response to Wells Fargo’s motion for
summary judgment, it is well established that the trial court may not grant a
summary judgment by default for lack of an answer or response to the motion by
the nonmovant unless the movant’s summary judgment proof is legally sufficient.
See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); City of
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). In a
summary judgment case, the issue on appeal is whether the movant met the
summary judgment burden by establishing that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ.
P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). We review a summary judgment de novo. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
Wells Fargo’s summary judgment evidence included the affidavit of
Jennifer Robinson. Appellants complain that Robinson did not indicate that she
had examined the original documents that she relied upon to support her
affidavit. Notwithstanding that Appellants cite no authority requiring an affiant to
examine original documents in order to rely on those documents for purposes of
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making an affidavit, Robinson stated the following in her affidavit: “All Exhibits
attached hereto are the original or exact duplicates of the original.”
Appellants also complain that Robinson’s affidavit states that the exhibit
evidencing the appointment of the substitute trustee was filed approximately one
year before it was executed. The exhibit itself unambiguously shows that the
appointment was executed on September 2, 2010, and filed on October 5, 2010.
Appellants seem to complain that Wells Fargo is unable to enforce the
note because the note “showed no indication of an indorsement to Wells
[Fargo].” “A note may be transferred . . . even if it is not indorsed . . . .” Leavings
v. Mills, 175 S.W.3d 301, 309 (Tex. App.—Houston [1st Dist.] 2004, no pet.).
“Absent an indorsement, however, possession must be accounted for by proving
the transaction through which the note was acquired.” Jernigan v. Bank One,
Tex., N.A., 803 S.W.2d 774, 777 (Tex. App—Houston [14th Dist.] 1991, no writ).
Wells Fargo submitted summary judgment evidence and proved the transfer by
which it acquired the note.
Appellants complain that the assignment of the deed of trust and note was
“almost certainly not executed and/or acknowledged on the date indicated”
because there is no legal description contained on the document. The
assignment unambiguously states that it was executed on May 16, 2006.
Appellants complain that the notices of the substitute trustee sales were
not executed. Notwithstanding that the foreclosure sale never occurred,
according to Wells Fargo, the documents were “not represented to be the actual
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notices of substitute trustee sales filed in the real property records” but were
“merely offered to evidence Appellee’s notice to Appellants that it had
accelerated the Note and intended to foreclose.”
Finally, Appellants argue that the affidavit of David Rockwell, which they
attached to their original petition, raised a fact issue relevant to one or more of
their claims. But the affidavit is irrelevant for purposes of Wells Fargo’s motion
for summary judgment because Appellants did not attach it to a response to the
motion for summary judgment. See Speck v. First Evangelical Lutheran Church
of Houston, 235 S.W.3d 811, 816 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
We overrule Appellants’ second and fourth points.
VI. CONCLUSION
Having overruled all of Appellants’ points, we affirm the trial court’s
judgment.
BILL MEIER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT, J.; and MEIER, J.
DELIVERED: October 18, 2012
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