Givens, Roderick v. v. Midland Mortgage Co , 2012 Tex. App. LEXIS 10096 ( 2012 )

AFFIRM; Opinion issued December 5, 2012.
In The
Q!mtrt uf .ppia15
Fift1! Ihtrict rif xa at tlallaz
No, 054 1’00524-CV
RODERICK V. GIVENS, Appellant
MIDLAND MORTGAGE COMPANY, MIDFI RST BANK,
AND BARRETT DAFFIN FRAPPIER TURNER & ENGEL, LLP, Appellees
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-09-04021
OPINION
Before Justices Moseley, Fillmore, and Myers
Opinion By Justice Fillmore
Appellant Roderick V. Givens appeals the partial summary judgment granted in favor of
appellees Midland Mortgage Company (Midland), MidFirst Bank (MidFirst), and the law firm of
Barrett Daffin Frappier Turner & Engel, LLP (BDFTE), and the final summary judgment granted
in favor of Midland and MidFirst. Givens raises five issues on appeal. Givens contends the trial
court erred in granting summary judgment because a genuine issue of material fact exists as to
whether BDFTE submitted a notice of foreclosure sale in the capacity of trustee and, if not, the trial
court erred in granting summary judgment in favor of Midland and MidFirst because the notice of
foreclosure sale was not given by the lender or trustee. Givens also contends the trial court erred in
granting summary judgment because a genuine issue of material fact exists as to whether BDFTIi
owed a duty of care to (iivc;ls and breached that duty of care, HDFTE fluted to properly record a
notice of loreelosure sale, and Givens was denied the opportunity to reinstate a loan in violation of
a Deed of Trust. Finally, Ciivens contends the trial court erred in granting Midland and MidFirst’s
second motion for summary judgment without notice. We affirm the trial court’s judgment.
Background
On March 7, 2003, Givens executed a Note and Deed of Trust securing the refinance ofreal
property and improvements located in Grand Prairie, Texas (the property). The lender on the Note
is MidFirst. Midland is MidFirst’s mortgage servicer. In August2008, Givens was in default under
the Note. Midland sent notices of default to Givens. Through its legal counsel, BDFTE, Midland
sent Givens a Notice of Acceleration and a Notice of Substitute Trustee Sale. The Notice of
Substitute Trustee Sale was tiled with the Dallas County Clerk. Through BDFTE, Midland also
provided Givens with a Reinstatement Quote, setting out the reinstatement funds to be tendered by
Givens in order to reinstate the Note. Givens did not tender the amount necessary to reinstate the
Note, and the property was sold at a non-judicial foreclosure sale on April 7, 2009.
Givens filed this lawsuit against Midland, MidFirst, and BDFTE, asserting claims ofbreach
of contract negligent misrepresentation, violations ofthe deceptive trade practice act (DTPA) and
the theft liability act common law fraud, and for declaratory judgment Midland, MidFirst and
BDFTE filed a motion for partial summaryjudgment, seeking dismissal ofGivens’s claims against
BDFTE, and Givens’s claims of negligent misrepresentation, DTPA violations, and breach of
contract against Midland and MidFirst.
The trial court signed an order of partial summary judgment on April 19, 2010, granting
summary judgment in favor of BDTFE on all claims against it, and granting summaryjudgment in
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tavor of Midland and Nlidl’ lrst on Givens’s dat ins oi’nelirent mis representation aeainst them. The
trial court denied sumniarv udement on ( ivcus s dat nis o Dl P,\ violations and breach ot’contract
aeaiflst Midland and \lidl’trst,
On December I (, 2( >1 0, N/I idland and Mid lirst tiled their second inot ion flr summai-v
judment on their counterclaim for a declaratory tudement that N/I idlaud properly conducted a non
judicial foreclosure sale of the property after (iivens tailed to comply with the terms of the Note and
Deed of Trust and t’or a summary judgment on Givens’s claims of breach of contract, DTPA and
theft liability act violations, common law fraud. and for declaratory relief. The trial court signed the
final summary judgment on January 31, 2011, granting summary judgment in favor of Midland and
MidFirst and disposing ot all remaining claims against them,
Givens’s motion br new trial was overruled by operation of law, and (iivens tiled this
appeal.
Standard of Review
We review a trial court’s decision to grant or deny a motion for summary judgment (Ic novo.
See Tex. Mun. Power Agency v. Pub, Util. (oinm’n of Tex., 253 S.W.3d 184, 192 (Tex, 2007), The
standard of review for traditional summary judgment is well established. See Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985).
1 The movant has the burden to demonstrate that no
genuine issue of material fact exists and he is entitled to judgment as a matter of law. See Tex.R.
Midland and MidFirst characterize their second motion forsittntnajudgtncnt as a “hybrid” motion in which they sought summa’ judgment
on Givens’s remaining claims because Givens “has no evidence with respect to certain elements” of his remaining claims and because ofmovants’
“negation of necessary factual elements’ ofGivens’s remaining causes of action. \Vith regard to a reference to a “no-evidence” component of the
motion. Midland and MidFirst do not Set out the elements ofGivens’s remaining causes of action for which there is purportedly no evidence. Sec
Bc’s’er Props., LLC’.,‘. fern’ Jlujlnian Cusiont Builder, LL.C’., 355 5.W.3d 875, 858 (Tex. App.—-—DaIIas 2011, no pet.) (itt no-evidence motion for
summary judgment. movant must specifically state which elements of nonmovant’s claims lack supporting cs idence); see also TEX. R. Ctv. P. I 66a(i)
(motion must State the elements as to which there is no evidence); fox. R. Civ. P. I 66a, 1997 crnt. (West 2004) (motion must he specific in
challenging the evidentiarv support (bran elemeittofa claim or defense: paragraph (i)does not authorize conclusorvmotions for general no-evidence
challenges to an opponents ease). Rather. Midland and MtdFtrst’s second motion for summary judgment sets out the summaryjudgment evidence
and the legal bases (‘or Midland and Midbirst’s entitlement to traditional summary judgment.
(1 v. P. I 66a( et: VLVOI1. 69() S.\V .2d at 5449. We consider the e idenee in the Irht most lavorable
to the nonmovani. See :V/xoii, 69() S.W .
d at 549. Every reasonable intbrenee must he induleed in
2
lavor of the nonnio ant and any doubts resolved in his lavor. (‘ftc of Keller v. W/Lvo,i. I 6$ SW3d
802, 824 (Tex. 2005).
Identity of Trustee
In his first issue on appeal, Givens contends the trial court erred in granting summary
judgment in Eivor of I3DFTE because a genume issue otmaterial fact exists as to the identity of the
trustee. According to (livens. IiDFTE “submitted the notice of sale,” and because the Deed of Trust
provided either the lender or trustee shall give notice of the foreclosure sale, BDFTE was sued as a
“substitute trustee.”
2 in this issue. Givens further contends that if the trial court was correct in
granting summary judgment in favor of BDFTE on Givens’s claims that BDFTE was the substitute
trustee, then summary judgment in favor of Midland and MidFirst was error because the notice of
sale was not given by the lender or trustee as required by the Deed of Trust.
Givens argues that, because the [)eed of trust provides that either the lender or trustee shall
give notice of the loreclosure sale, and the formal notice letter with attached Notice of Substitute
Trustee Sale was sent to Givens by BDFTE, BDFTE sent the notice of sale as the substitute trustee.
3
Givens does not contend BDFTE was the Lender. On appeal, Givens argues BDFTE filed no
summary judgment evidence that the lender, MidFirst, sent notice of sale to Givens.
However, Givens has not contested the summary judgment proof that Midland is the
mortgage servicer for the Lender, MidFirst, or that BDFTE is the law firm representing Midland as
2
“Substitute trustee” means “a person appointed by the current mongagce or mortgage servicer under the tems of the security instrument to
exercise the power of sale” TEX. PROP. Cone ANN. * 51.001(7) (West. Supp. 2012).
We note that the Notice of Substitute Trustee Sale enclosed with the correspondence from BDFTE advised the substitute trustee would sell
the property at the foreclosure sale and reflects a signature by substitute trustee “L. Patton.”
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MidFirst’s morteaee servicer, The uncontested summary judgment proof in support of the motion
br partial suinmai-v judgment contains the letter twin Bl)ETE tIn’warding the Notice ot Stihstitiite
l’rustee Sale. 1 hat letter includes the ibllowing statements:
l’his law him represents Mll)LAN I) MOR FGAG1 CO.. the Mortgage Servicer, in
it’ iflOl t .2 iLL b inlmn e icti itiL iii I hL ‘t liL 01 1 L \ IS L h i\ L bLLn tuthom i/Ld b\
the Mortgage Servicer to initiate legal proceedings in connection with the collection
ot a debt associated with a Deed o fTnist.
MIDLAND MORTGAGE CO. is acting as the Mortgage Servicer fur MIDFIRST
I3ANK, who is the Mortgagee of the Note and Deed of Trust associated with [the
loan at issuej.
The Mortgage Servicer is authorized to represent the Mortgagee by virtue of a
servicing agreement with the Mortgagee. Pursuant to the Servicing Agreement and
the Texas Property Code § 51.0025, the Mortgage Servicer is authorized to collect
the debt and to administer any resulting foreclosure of the property securing the
above referenced loan.
BDFTE’s summary judgment evidence also includes the affidavit of Ihad Burr, Vice President of
Midland and custodian ot records for Midland with respect to Givens’s loan, in which he attested
Midland is the loan servicer fur the note holder and beneficiary of the Deed of Trust. MidFirst. Burr
further attested that, “[a]fter [Givens] failed to bring the Note current as requested in the Notices of
Default, [Midland], through legal counsel, sent [Givens] a Notice of Acceleration along with a
Notice of Substitute Trustee Sale.” See Bass i. Bass, 790 S.W.2d 113, I l7l8 (Tex. App.—Fort
Worth 1990, no writ) (uncontested facts in movant’s affidavit in support of summary judgment are
accepted as true on appeal).
Section 51.0025 of the property code provides that a mortgage servicer may administer the
foreclosure of property tinder section 51.002 on behalf ofa mortgagee if the mortgage servicer and
the mortgagee have entered into an agreement granting the current mortgage servicer authority to
service the mortgage and if
the notices required under Section 5 1 .002(b) disclose that the mortgage servicer is
representing the mortgagee under a servicing agreement with the mortgagee and the
name of the mortgagee; and:
(A) the address of the mortgagee; or
(B) the addiess of the mortg Ige scrieer if there is an agi cement gr mtim a
mortgage servicer the authority to service the mortgage.
Tcx. PRor. Coi ANN, § 51 .0025 (West Supp. 2012). The Notice of Substitute Trustee Sale
included in BDFTE’s summary judgment evidence states that Midland was representing MidFirst
in accordance with a servicing agreement and provides MidFirst’s address.
The uncontested summary judgment evidence in support of the motion for partial summary
judgment also includes the affidavit of Shelley Douglass, an attorney with BDFTE. See Bass, 790
S.W.2d at 117—18. Douglass attested BDFTE and its attorneys were retained by Midland as
foreclosure counsel “to commence foreclosure proceedings to enforce [MidFirst’sJ lien against the
Property secured by the Loan Agreement” and to provide Midland with legal representation in
protecting its interests against those of Givens. In her affidavit, Douglass states that, to the extent
BDFTE had any contact or communication with Givens, that contact or communication was
conducted by BDFTE solely in its capacity as counsel for Midland. See Dallas Indep. Sch. Dist. v
Fin/an, 27 S.W.3d 220, 233 (Tex, App.—Dallas 2000, pet. denied) (generally an attorney is exempt
from liability to a party other than his client for damages because an attorney deals at arm’s length
with adverse parties and, therefore, he is not liable to them for his actions as an attorney on behalf
of his client) (citing Martin v. Trevino, 578 S.W.2d 763, 771 (Tex, Civ. App.—Corpus Christi 1978,
writ ref’d n.r.c.)); see also Renfi-oe v. Jones & Assocs., 947 S.W.2d 285, 287—88 (Tex. App.—Fort
Worth 1997, writ denied) (reasoning that attorney does not have a right ofrecovery, under any cause
of action, against another attorney arising from conduct in which second attorney engaged while
representing a party in the lawsuit in which the first attorney also represented a party, applies with
equal force to liability of an attorney to the opposing party) (citing Bradt v. West, 892 S.W.2d 56,
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(lex App. Houston [I st Disi.i I 9$3 writ denied) and !i u Bell ( I7). . ( i(1LkCIl, ‘)39 i.
52S, 53 (ND. lex. l’)9c)).
We are unpersuaded by Givens’s argument that a genuine issue of material fact exists as to
whether BDFTE was serving as the substitute trustee in providing the notice of the foreclosure sale.
I h umm ii \ judnmnt id n, est thlishul 13D1 I I v i ing i kg fi couim I tot tiw moi tg ige
servicer. Midland, in providin the foreclosure notice on behalf of the lender, MidFirst. We are,
therefore, also unpersuaded by Givens’s argument that if the trial court was correct in granting
summary judgment in favor of BDFTE on Givens’s claims that BDFTE was the substitute trustee,
then summary judgment in tivor of Midland and MidFirst was ermr because the notice of sale was
not delivered 1w the lender or trustee as required by the Deed of Trust.
We resolve Givens’s first issue against him.
1)uty of Care Owed by RDFTE to Givens
In his second issue, Givens contends that, if correct in his first issue that the trial court erred
in granting summary judgment in favor of BDFTE because it was the substitute trustee, then genuine
issues of material fact exist as to whether BDFTE, as the alleged substitute trustee, owed (jivens a
duty of care and whether such a duty of care was breached by 131)FTE, Having concluded with
regard to Givens’s first issue that the trial court did not err in granting summary judgment in favor
of BDFTE because no genuine issue of material fact exists on Givens’s assertion that BDFTE was
the substitute trustee, we need not address Givens’s second issue. See TEX. R. APP. P. 47.1.
Notice of Sale
In his third issue, Givens contends the trial court erred in granting summary judgment in
favor of appellees, because a genuine issue of material fact exists as to whether the notice of
foreclosure sale was properly recorded where the notice of foreclosure sale was not recorded in the
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deed records twentvone days prior to the fiweelosure sale of the property.
A Noi ice of Suhstitute Trustee Stile was included m the summary tidement evidence
support me the motion ldr partial summary udement and the second motion for summarvjudemcnt.
In support of the motion tir partial summary udgnient and the second motion for summary
judment, Burr attests in his affidavits that the Notice of Substitute Trustee Sale attached to his
aftidavits was filed with the County Clerk of Dallas County on January 26, 2009. The Notice of
Substitute Trustee Sale bears a stamp showing the original of that document was filed with the
Dallas County Clerk on January 26, 2009.
Despite Burr establishing in his affidavits that the Notice of Substitute Trustee Sale is a
business record, on appeal Givens asserts the Notice of Substitute Trustee Sale is riot self-
authenticating under rule of evidence 902 and is. therefbre, inadmissible hearsay. Even assuming
Givens is correct, however, this hearsay objection to the Notice of Substitute Trustee Sale was not
raised in the trial court. This authentication argument alleges a complaint of defect in the tbrm of the
summary judgment evidence and cannot he grounds for reversal unless specifically pointed out to
the trial court by objection. See Republic Bankers Li/b Ins. C’o. v. Wood, 792 S.W.2d 768, 774—75
(Tex. App.—-Fort Worth 1990, writ denied). Givens’s contention that the Notice of Substitute
Trustee Sale was not competent summary judgment evidence has not been preserved for appellate
review, and he has waived the right to complain about the evidence on appeal. See TEx. R. App. P.
33.1 (a)(2); Thompson v. Chrysler First Bits. Credit Corp., 840 S.W.2d 25, 28—29 (Tex.
App.—DaIlas 1992, no writ).
The Deed of Trust provides that, ifthe lender invokes the power of foreclosure sale, “Lender
or Trustee shall give notice of the time, place and tenils of sale by posting and recording the notice
at least 21 days prior to sale as provided by applicable law.” Givens argues the “applicable law,”
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section 51 002 h)( ) ol the property code, required the lender or trustee to record the notice 01
loreclosure sale in the (Iced records. Which \V1S not done here. We hive previously rejected this
arnument in iu,i!yo,,ie,i’ .Jurora Loan S’ci’cu’es. LLC 375 SW.3d ( I 7(1 cx. App. —Dallas, pet.
bled).
Section 51 .002(h) of the property code provides:
(b) Except as provided by Subsection (h 1) [which is not applicable here], notice of
the sale v hich must include a statLment of the earliest time at u hich the sale vill
begin, must he given at least 21 days helore the date of the sale by:
(1) posting at the courthouse door of each county in which the property is
located a written notice designating the county in. which the property will be
sold;
(2) tiling in the office of the county clerk of each county in which the
property is located a copy of the notice posted under Subdivision (1); and
(3) serving written notice ol the sale by certified mail on each debtor who,
according to the records of the mortgage servicer of the debt, is obligated to
PiY the debt.
TI \ Pi >r C out \NN 51 002(b) (Wcst Supp 2() II) I hc plain lam.tu ig of scction 5 I 002(b)(2)
requires a party to file the notice of’ sale with the county clerk in which the property is located.’
Aurora Loaji Sen’s., 375 S.W.3d at 621; see TEX. PROP. CODE ANN. 51 .002(h)(2). “It does not
require the notice of sale to be recorded in the permanent deed records. Aurora Loan Servs., 375
S.W.3d at 621; see (i/SO Thompson, 840 S.W.2d at 32, “Based on the statute’s plain language, we
conclude that the legislature did not intend subsection (b)(2) of section 51.002 to require a party to
record a notice of foreclosure sale in the permanent deed records of the county in which the property
is located.” Aurora Loan Servs., 375 S.W.3d at 621; see also Thompson, 840 S.W.2d at 32.
We resolve Givens’s third issue against him.
Reinstatement of the Loan
In his fourth issue, Givens argues the trial court erred in granting summary judgment because,
in violation of the Deed of Trust, he was denied the “opportunity” to reinstate the loan.
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Givens’s appellate brieling of this issue consists of his verbatim repetition (>this allegations
tinder the caption ‘Reinstateiuent” of his 1:1151 \‘eri tied Amended Petition. Signi licantl, n the text
troni his petition rcpeited as his turtl issue on appeal. (jivens has emphasized a portion ol the
1emstatement” provision ol the Deed of 1 rust that stales, “Borrower shall tender in a lump sum
all amounts required to bring Borrower’s account current .,“ and acknmvledgcs in his pleading
and his appellate brief that he did not tender the reinstatement amount See Baucum v. Great im.
Ins, Go, oJJ’.L Y,, 370 5, \V .2d 863, 866 (Tex, 1963) (valid and legal tender ol money consists of actual
production of the funds and offer to pay the debt involved); Fillion v. David Silvers Go., 709 S.W.2d
240, 246 (Tex. App.— Houston [14th Dist.j 1986, writ ref’d n.r.c.) (tender oI’whatever sum is owed
on mortgage debt is condition precedent to mortgagor’s recovery of title from mortgagee who is in
possession and claims title under a void foreclosure sale). Moreover, the trial court signe(l a
December 2. 2010 order granting sanctions against Givens whereby Midland’s and MidFirst’s
requests [hr admissions were deemed admitted by Givens.° In response to a request for admission
by Midland and MidFirst, Givens was deemed to have admitted he failed to pay the total amount
demanded to be paid in the Reinstatement Quote. Further, in support of the motion for partial
summary judgment and the second motion for summary judgment, Burr attested in his affidavits:
Upon the request of Mortgagor [Givens], [Midland], through legal counsel, provided
[Givens] with a Reinstatement Quote setting out the necessary funds to be paid in
order to reinstate the Note. Payment was not received as requested in the
Reinstatement Quote.
We note Givens’s appellate brief contains no citation to the record or legal authority to support this issue on appeal.
The “Reinstatement” provision of the Deed of Trust further provides that the lump sum to be tendered to reinstate the Note or Security
Instrument includes “to the extent they are obiigations of the Borrower under this Security instrument. foreciosure costs and reasonable attorneys fees
and expenses properly associated with the foreclosure proceeding.
6
Givens does not complain on appeal about the December 2, 2(110 order granting sanctions against him
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A copy of the Reinstatement Quote was attached to l3urr’s affidavits. See Bass. 790 SW,2d at
I 7 I S (uncontested fuels in movant s attidavi in support of summary judgment are accepted as true
on appeal). In t ovens s response to appel lees’ notion fir partial summary judgment, he states he
does not dispute that a letter characterized as a reinstatement quote was sent to him by B[)1TE.
We conclude that on this record, no genuine issue of material fiuct exists with regard to
(iivens’s claim he was denied the “opportunity” to reinstate the loan in violation of the Deed of’
Trust. The trial court (lid not err in granting summary judgment on Givens’s “reinstatement” claim.
We resolve Givens’s fourth issue against him.
Submission of Second Motion for Summary Judgment
In his fifth issue on appeal, Givens asserts the trial court erred because it considered the
second motion For summary judgment tiled by Midland and MidFirst without notice. According to
Givens, that second motion for summary judgment “was ruled on without giving Givens with [sic
an opportunity to respond.’ Givens argues he did not receive adequate notice of a hearing on the
second motion fbi summary judgment or of the trial court’s “submission setting on the (lay of the
hearing.”
The record reflects that on January 21, 2011, Givens’s counsel was served by hand delivery
and by email with notice of the hearing of Midland’s and MidFirst’s second motion for summary
judgment scheduled for 9: 15 a.m., January 26, 2011. At the hearing of Givens’s motion for new
trial, Givens’s counsel confirmed that, at the latest, she received notice of a hearing on the second
motion for summary judgment on January 24, 2011, although she states she was not aware of the
date of the hearing until January 25, 201 1. Despite knowing the hearing was scheduled for Januaiy
Givens makes theconclusory statement at the end of his curso areument of this issue that an alleged failure to apply a just and lawful offset
violates the terms of the Deed of Trust and “Defendants provide no evidence that they applied the payments to Gtvens’ account” However, there
is no summary judgment evidence in the record of the “payments Givcns argues were not applied to his account.
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26, 2011, Givens’s counsel did not tile an objection to the hearing. See Ma v. IVaeogdoches il4em ‘1
Hasp 6 1 S W 3d 623 627 ( fex App — I ylci 2001 no pLt ) (where imended motion for summary
,
judgment served by fax two days prior to hearing thereon, court of appeals held there was adequate
time to file written objection prior to the hearing and waived right to raise such issue on appeal
where no objection in writing filed with trial court prior to the hearing). Further, counsel for Givens
informed the trial court at the hearing of Givens’s motion for new trial that she did not attend the
January 26, 2011 hearing because she had a 10:00 a,m, hearing in another court that day.
What Givens does not include in her brief on appeal is the fact, as confirmed by the trial court
at the hearing of Givens’s motion for new trial, that no hearing took place on January 26, 2011.
Rather, because Givens’s counsel was not present at the scheduled hearing of the second motion for
summary judgment, the trial court did not hear argument from movants’ counsel, and, instead,
considered the second motion for summary judgment by submission.
We are also unpersuaded by Givens’s argument that the second motion for summary
judgment being considered by submission “abrogated” his “rights to be heard” and “was ruled on
without giving Givens with [sic) an opportunity to respond.” At the hearing of his motion for new
trial, Givens’s counsel advised the trial court that if she had known the motion for summary
judgment was to be considered by submission, she would have “submitted something” to the trial
court. However, as Givens acknowledges, oral hearing of a motion for summary judgment is not
mandatory. See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); see
also TEx. R. Civ. P. 166a(c) (no oral testimony shall be received at a hearing on a motion for
summary judgment). Further, at a November 29, 2010 hearing, the parties announced their
agreement to waive time requirements for filing motions for summary judgment and that such
motions would be ripe for consideration by the trial court the first week in January 2011. The
I2
Ibllowing exchange occurred at that hearing between the trial court, counsel for movants Midland
and MidFirst, and (Jivens’s counsel:
Movanic’ Counsel: And if wc’re 45 days out, would the Court aflbrd me the
opportunity to tile a summary judgment motion before trial?
(Jivens’s Counsel: We would like the same opportunity. Your honor.
The Court: Okay. I’m going to let y’all both do it. Y’all go — you waive time
requirements, we’ll hear it the tirst week in January.
Givens’s Counsel: Yes, Your Honor.
Movants’ Counsel: Yes, Judge.
Trial Court: Both of y’all file them and we will get them done.
The second motion for summary judgment was filed on December 16,2010. Despite having agreed
any motions for summary judgment filed would be ripe for consideration the first week of January
2011, Givens did not file a response to the second motion for summary judgment?
At the hearing of Givens’s motion for new trial and on appeal, Givens argues Midland and
MidFirst failed to “seek a certificate of conference as to the hearing date.” However, there is no
requirement under the rules of civil procedure or the local rules of the Dallas County civil district
courts requiring a certificate of conference regarding a summary judgment hearing date, and Givens
has cited to no authority for such an argument. See TEX. Clv. 1)1ST. Cr. bc. it. 2.07(e) (certificate
of conference is not required for motions for summaryjudgment).
We conclude the trial court did not err in ruling on the second motion for summaryjudgment.
We resolve Givens’s fifth issue against him.
Givens’s counsel stated in appellant’s bid that she ‘did nut file a wriucn response to the Summaq Judgment Motion as the Motion and
evidence did not controvut the chime being made by Plaintiff in the vetified pleadings.” See Hidalgo v. &sn(v Sar & Loan A1s’n. 462 5.W.2d
540,543 (Tex. 1971) (‘Pleadings simply outline the isaues they an, not evidence, even fur swnmaiyjudgment purposes.”)
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Conclusion
Flaying resolved Givens’s issues against him, we affirm the trial court’s judgment.
ROBFRT Nil FILL MORE
JUSTICE
I 10524FP05
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Qttnirt af piah
FiftI! IiZtrtrt uf ixaz at ia11a
JUDGMENT
R()DERICK V. GIVENS, Appellant Appeal from the 192nd Judicial District Court
of Dallas County, Texas. (TrCLNo. DC09
No, 05l UO0524CV V, 04021).
Opinion delivered by Justice Fillmore,
MiDLAND MORTGAGE COMPANY, Justices Moseley and Myers participating.
MIDFIRSI BANK, AND BARREII
DAFFIN FRAPPIER TURNER & ENGEL,
LLP, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFiRMED. It is ORIERED that appellees Midland Mortgage Company, MidFirst Bank, and
Barrett Daffin Frappier Turner & Engel, LLP, recover their costs of this appeal from appellant
Roderick V. Givens.
Judgment entered December 5, 2012.
ROBERT M. FiLLMORE,
JUSTICE