Khera Interest Inc. v. Wilmington Trust National Association Not in Ints Individual Capacity but Solely as Trustee of the MFRA Trust 2015-1 ( 2023 )

Affirmed and Memorandum Opinion filed April 6, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00404-CV
KHERA INTEREST INC., Appellant
V.
WILMINGTON TRUST NATIONAL ASSOCIATION NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS TRUSTEE OF THE MFRA
TRUST 2015-1, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2020-11448
MEMORANDUM OPINION
Appellant Khera Interest, Inc. (“Khera”) appeals a summary judgment
granted in favor of appellee Wilmington Trust National Association not in its
individual capacity but solely as trustee of the MFRA Trust 2015-1
(“Wilmington”). In three issues, Khera argues the trial court erred by (1) entering a
final judgment that did not dispose of all claims and all parties; (2) granting a
declaratory judgment to Wilmington’s relating to the superiority of title, and
because this declaratory relief sought is duplicative of Wilmington’s judicial
foreclosure action; and (3) denying Khera’s motion to compel discovery and
failing to overrule Wilmington’s discovery objections. We affirm.
I. BACKGROUND
On February 19, 2020, Wilmington filed a lawsuit against Bonita Hicks
(“Hicks”) and Khera, asserting a claim for breach of contract against Hicks and a
cause of action for judicial foreclosure on a lien against Hicks and Khera.
Wilmington alleged that Hicks executed a note and deed of trust using the property
as collateral for the indebtedness. Wilmington subsequently became the holder of
the mortgage, and Hicks failed to pay the mortgage in full. Wilmington then filed
this lawsuit to foreclose on the property, which it alleged was currently owned by
Khera after Khera purchased the property at a foreclosure sale conducted by the
homeowner’s association after Hicks defaulted on payment of association dues.
On October 29, 2020, Wilmington filed its first amended petition, adding a
cause of action against Khera to quiet title. Wilmington alleged that Khera “is the
current owner of the Property . . . .” As to its breach-of-contract claim against
Hicks, Wilmington’s live pleading stated that “[b]ecause of a material breach of
the Loan Agreement, [Wilmington] seeks judgment allowing a non-judicial
foreclosure pursuant to [Texas Property Code] § 51.002, and the terms of the Loan
Agreement with respect to all Defendants who are obligors of the Loan Agreement
or acquired the Property subject to the Defendant’s debts.” See Tex. Prop. Code
Ann. § 51.002 (titled “Sale of Real Property Under Contract Lien”). As to its
claims for judicial foreclosure, Wilmington alleged that a note was made to acquire
the property or refinance a debt against the property; Hicks executed and delivered
a deed of trust conveying the property in trust as collateral to secure payment of the
loan; the note and deed of trust remain unpaid; “Khera’s ownership of the Property
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is subject to payment in full of Wilmington’s lien”; and neither defendant had
tendered payoff of the note and deed of trust. As to its quiet-title claim against
Khera, Wilmington alleged that “[p]ursuant to Section 9.12 of HOA’s restrictions
and Declarations, the lien of the assessments shall be subordinate to the lien of any
mortgagee, [and] Khera’s interest was subordinate to [Wilmington’s] superior first
lien.” Thus, Wilmington argued, it is “entitled to the equitable determination that
[Wilmington] holds superior clear title to the Property and that Khera’s interest is
subordinate to [Wilmington’s] interest.” In relevant part, Wilmington sought “at
least $150,154.85 in damages” “[b]ased on Defendant’s breach of her obligations
under the Loan Agreement.”
Wilmington filed a motion for default judgment as to Hicks.1 On October
30, 2020, the trial court entered an interlocutory default judgment against Hicks,
awarding Wilmington with a judgment allowing judicial and non-judicial
foreclosure of its lien on the property. See id. The order further provided that “[t]he
amount owed under the Loan Agreement at issue is $150,154.85 as of February 26,
2020.”
On December 7, 2020, Khera filed a counter-petition against Wilmington,
asserting a claim for quantum meruit and requesting a declaratory judgment. Khera
sought declarations that the deed of trust was unenforceable as to Khera; that
Wilmington had no legal, possessory, or any other right to the subject property;
and that Khera held title to the property free and clear of any liens or other
encumbrances.
On December 14, 2020, the trial court granted Wilmington’s motion for
summary judgment as to Khera’s claims, explicitly incorporating the November
1
The motion for default judgment does not appear in the record on appeal. It is unclear
when Wilmington filed the motion.
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16, 2020 interlocutory default judgment as to Hicks. The trial court awarded
Wilmington $10,925.69 in damages.
On December 17, 2020, Wilmington filed a motion to vacate “and/or”
reconsider the order granting its summary judgment motion against Khera,
averring that the payoff amount of the loan agreement awarded as damages in the
final judgment was inaccurate. Wilmington argued the amount awarded in the
order was the amount owed to bring the loan current and that the amount owed
under the note was $150,154.85. The trial court granted the motion on December
28, 2020, ordering that its order from December 14, 2020, “vacated and set aside.”
On January 27, 2021, Khera filed a motion to compel discovery, seeking, in
relevant part, documents related to the execution of the note, deed of trust, and the
servicing of the mortgage. Khera argued the documents sought “are highly relevant
to the causes of action asserted by [Wilmington] and are likely to yield evidence
that [Khera] could use in opposition to the currently pending summary judgment
motion filed by [Wilmington].” In particular, Khera sought documents concerning
the amount and balance of the loan secured by the deed of trust, which Khera
argued was relevant as to the damages sought by Wilmington.
On February 5, 2021, Wilmington filed a second amended petition, seeking
(1) declaratory relief that Wilmington’s lien interest in the property superior to that
of Khera’s, and (2) judicial foreclosure of its lien on the property against Hicks and
Khera. Wilmington’s second amended petition did not include its previously
asserted claims for breach of contract against Hicks or to quiet title against
Wilmington. The trial court denied Khera’s motion to compel discovery on
February 8, 2021.
On April 26, 2021, Wilmington filed a second amended hybrid motion for
summary judgment as to Khera, arguing that Wilmington was entitled to summary
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judgment on its declaratory judgment claim and that Khera’s claim for declaratory
judgment failed because “Khera has no evidence to support its claim that
[Wilmington’s] deed of trust is unenforceable, no evidence that [Wilmington] has
no legal right to the subject property[,] and no evidence to support [Khera’s] claim
that it holds free and clear fee simple title to the Property.” Wilmington also moved
for summary judgment on Khera’s quantum meruit claim, arguing that: Khera did
not have “clean hands,” because Khera purchased the property at a foreclosure;
quantum meruit was inapplicable to the facts of the case; and Khera provided no
evidence of the elements of its quantum meruit claim. Wilmington attached an
affidavit of Thomas O’Connell, a Senior Vice President of the mortgage servicer
for Wilmington, Planet Home Lending, LLC, testifying to the creation of the note
and the deed of trust with Hicks and Hicks’ failure to make payments. O’Connell’s
affidavit further attested that true and correct copies were attached of the payment
history on the note; the payoff statement; the note; the deed of trust; a corporate
assignment of the deed of trust; the homeowners’ association covenants,
conditions, restrictions, and easements; and other original documents concerning
the note and deed of trust.
On May 10, 2021, Khera filed its own motion for partial summary judgment
as to Wilmington’s declaratory-judgment claim. Khera argued that Wilmington’s
second amended petition replaced its quiet-title action with a declaratory-judgment
action, and that a declaratory-judgment action was improper because the trespass-
to-try-title statute governs the parties’ dispute. See id. § 22.001(a) (“A trespass to
try title action is the method of determining title to lands, tenements, or other real
property.”). Khera further argued that Wilmington’s declaratory-judgment action
was improper because it was duplicative of Wilmington’s claim for judicial
foreclosure. Wilmington filed a reply to Khera’s motion for summary judgment,
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arguing that Wilmington “is not seeking a foreclosure judgment as to . . . Khera”
and that Wilmington’s motion “moves solely on its claim for declaratory
judgment.”
On May 25, 2021, the trial court signed an order, granting Wilmington’s
second amended motion for summary judgment. The order declared that “Khera’s
title is subject to [Wilmington’s] valid first lien mortgage” and dismissed Khera’s
counterclaims with prejudice. The order did not award Wilmington any damages.
This appeal followed.
II. FINAL JUDGMENT
In its first issue, Khera argues that the trial court erred when it entered its
final judgment because the judgment did not dispose of all claims and parties.
Khera argues that Wilmington’s second amended motion for summary judgment
only addressed Wilmington’s claim for declaratory judgment against Khera, but it
did not address Hicks or Wilmington’s claim for judicial foreclosure.
A. JURISDICTION
This court’s jurisdiction is established exclusively by constitutional and
statutory enactments. See Tex. Const. art. V, § 6; Tex. Gov’t Code Ann. § 22.220.
Unless one of the sources of our authority specifically enables an interlocutory
appeal, we only have jurisdiction over an appeal taken from a final judgment. See
Tex. Civ. Prac. & Rem. Code Ann. §§ 51.012, 51.014; N.E. Indep. Sch. Dist. v.
Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).
B. APPLICABLE LAW
A judgment issued without a conventional trial is final for purposes of
appeal if and only if it actually disposes of all claims and parties then before the
court, regardless of its language, or it states with unmistakable clarity that it is a
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final judgment as to all claims and parties. See Lehmann v. Har–Con Corp., 39
S.W.3d 191, 192–93 (Tex. 2001). Because a final judgment does not have to be in
any particular form, deciding whether a judicial decree is a final judgment must be
determined from its language and the record in the case. Id. at 195.
If the judgment does not dispose of every pending claim but is “clearly and
unequivocally” final on its face, the judgment is not interlocutory merely because
the record does not afford a legal basis for the adjudication. Id. at 206. Rather, the
judgment is final but erroneous, and it must be reversed. Id. Finally, the general
rule is that an interlocutory judgment becomes final when it merges into the final
judgment disposing of the entire case. See Webb v. Jorns, 488 S.W.2d 407, 409
(Tex. 1972); see, e.g., McLernon v. Dynegy, Inc., 347 S.W.3d 315, 322 (Tex.
App.—Houston [14th Dist.] 2011, no pet.) (“Instead, to the extent that the two
previous interlocutory orders contained language ordering recovery of a sum
certain, they would merge into the January 8, 2009 order to constitute a final,
appealable judgment.”); Douglas v. Am. Title Co., 196 S.W.3d 876, 877, 879 n.6
(Tex. App.—Houston [1st Dist.] 2006, no pet.) (“[T]he vexatious-litigant order
merged into the final judgment and is appealable.”); see also Hyundai Motor Co. v.
Alvarado, 892 S.W.2d 853, 855 (Tex. 1995) (per curiam) (noting that a partial
summary judgment becomes final upon disposition of other issues in case).
C. ANALYSIS
Khera argues the trial court’s order granting Wilmington’s motion for
summary judgment did not dispose of all claims between the parties because, at the
time the summary judgment motion was filed, Wilmington’s live pleading
“included causes of action for judicial foreclosure and declaratory judgment.”
Khera further argues that Wilmington’s motion “was filed only as to its declaratory
judgment cause of action and the counterclaims—it did not address the judicial
7
foreclosure cause of action nor did it address . . . Hicks.” Accordingly, Khera
argues “there was no judicial foreclosure judgment at the time the ‘final order’ on
5/25/21 . . . ; it was a live and unresolved claim.”
Here, Wilmington first obtained a default judgment against Hicks awarding
it judicial and non-judicial foreclosure on the property. Wilmington then filed a
motion for summary judgment against Khera, which the trial court granted but later
vacated based on Wilmington’s request. In its motion to vacate, Wilmington did
not seek to modify or vacate the interlocutory order against Hicks granting judicial
and non-judicial foreclosure of the property. The trial court granted the motion to
vacate and, in its October 30, 2020 order, did not vacate the default partial
judgment granting Wilmington judicial foreclosure. Stated differently, the trial
court did not vacate its previous disposition of Wilmington’s claim for judicial
foreclosure. Thus, the trial court’s interlocutory order disposing of Wilmington’s
judicial foreclosure claim remained intact following the granting of Wilmington’s
motion to vacate.
Subsequently, Wilmington filed a second amended petition that omitted the
prior claims for breach of contract against Hicks and to quiet title against Khera.
Wilmington then filed a second amended motion for summary judgment against
Khera, seeking summary judgment on its remaining live claim against Khera
(declaratory judgment) and on Khera’s counterclaims. The trial court signed an
order granting Wilmington’s second amended summary judgment motion, and the
interlocutory order merged with the summary judgment order creating a final
judgment. See Webb, 488 S.W.2d at 409; McLernon, 347 S.W.3d at 322.
Accordingly, we reject Khera’s argument that we lack jurisdiction because the trial
court did not dispose of Wilmington’s claims against Hicks.
Khera also argues that the judgment was not final because Wilmington did
8
not serve Hicks with its second amended petition. If an amended pleading asserts a
new cause of action distinct from that stated in the original pleading or seeks a
more onerous judgment against the defendant than it prayed for in the original
pleading, then new service of process is essential to enable the plaintiff to proceed
to judgment. Fidelity & Guar. Ins. v. Drewery Const. Co., 186 S.W.3d 571, 574
(Tex. 2006) (per curiam); AAMCO Transmissions, Inc. v. Bova, 484 S.W.3d 520,
523 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Here, Wilmington’s live
pleading did not assert a new cause of action or seek any other relief against Hicks
than its previous pleading on which it obtained the default judgment against Hicks.
Thus, new service of process on Hicks was not essential for Wilmington to proceed
to judgment against Khera on its second amended pleading. See Fidelity & Guar.
Ins., 186 S.W.3d at 574; AAMCO Transmissions, Inc., 484 S.W.3d at 523.
We overrule Khera’s first issue.
III. DECLARATORY JUDGMENT
In its second issue, Khera argues that the trial court erred in granting a
declaratory judgment to Wilmington because the Uniform Declaratory Judgment
Act does not apply to an action relating to the superiority of title; averring that
Texas Property Code § 22.001 requires that a trespass-to-try-title action is the
proper method of determining title to real property, and further, that the declaratory
relief sought is duplicative of Wilmington’s judicial-foreclosure action.
A. APPLICABLE LAW & STANDARD OF REVIEW
1. Trespass To Try Title
“By statute, a trespass-to-try-title action ‘is the method of determining title
to lands.’” Brumley v. McDuff, 616 S.W.3d 826, 831–32 (Tex. 2021) (quoting Tex.
Prop. Code Ann. § 22.001(a)). “Although related claims exist to determine
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narrower questions of possession, a cloud on a title, or a non-possessory interest, a
trespass-to-try-title action is the exclusive remedy for resolving overarching claims
to legal title.” Id. at 832 (footnotes omitted).
In a trespass-to-try-title action, a plaintiff may prove legal title by
establishing: (1) a regular chain of title conveyances from the
sovereign to the plaintiff; (2) a superior title to that of the defendant
out of a common source; (3) title by limitations (i.e., adverse
possession); or (4) possession that has not been abandoned.
Id. The substance of the plaintiff’s pleadings determines whether a claim sounds in
trespass to try title. Id. “A suit that seeks to resolve a title dispute is, in effect, an
action in trespass to try title, whatever its form.” Id. at 836.
In recent years, the Texas Supreme Court has addressed distinctions between
the various causes of action for settling questions related to title. See Brumley, 616
S.W.3d at 832–33; Lance v. Robinson, 543 S.W.3d 723, 735–37 (Tex. 2018). In
Lance, the Court held the claimants could bring a declaratory-judgment action to
establish rights to an easement, as opposed to the trespass-to-try-title statute, noting
that an easement is a nonpossessory interest and the claimants did not assert any
ownership or possessory interest in the disputed area. Lance, 543 S.W.3d at 736–
37. The court explained that the trespass-to-try-title statute is the proper procedural
vehicle “when the claimant is seeking to establish or obtain the claimant’s
ownership or possessory right in the land at issue.” Id. at 736 (emphasis added).
Thus, if the determination sought only prospectively implicates title, then the
dispute does not have to be brought as a trespass-to-try-title action. See, e.g., Chase
Home Fin., L.L.C. v. Cal W. Reconveyance Corp., 309 S.W.3d 619, 633–34 (Tex.
App.—Houston [14th Dist.] 2010, no pet.) (holding declaratory relief was
available to determine validity of competing instruments and resolving dispute
between two purported lienholders); Red Rock Props. 2005, Ltd. v. Chase Home
Fin., L.L.C, No. 14-08-00352-CV, 2009 WL 1795037, at *5–6 (Tex. App.—
10
Houston [14th Dist.] June 25, 2009, no pet.) (mem. op.) (recognizing declaratory-
judgment action in that case over lien superiority prospectively affected title).
2. Declaratory Judgment
“A declaratory-judgment action ‘provides an efficient vehicle for parties to
seek a declaration of rights under certain instruments.’” Sustainable Tex. Oyster
Res. Mgmt., L.L.C. v. Hanna Reef, Inc., 623 S.W.3d 851, 864 (Tex. App.—
Houston [1st Dist.] 2020, pet. denied) (quoting Martin v. Amerman, 133 S.W.3d
262, 265 (Tex. 2004)); see Allstate Ins. v. Irwin, 627 S.W.3d 263, 269 (Tex. 2021)
(“The Uniform Declaratory Judgments Act empowers Texas courts ‘to declare
rights, status, and other legal relations whether or not further relief is or could be
claimed.’” (quoting Tex. Civ. Prac. & Rem. Code Ann. § 37.003(a))). “Under its
terms, any ‘person interested’ under a written contract ‘may have determined any
question of construction or validity’ arising under that contract and ‘obtain a
declaration of rights, status, or other legal relations thereunder.’” Allstate Ins., 627
S.W.3d at 269 (citing Tex. Civ. Prac. & Rem. Code Ann § 37.004(a)). “The Act’s
stated ‘purpose is to settle and to afford relief from uncertainty and insecurity with
respect to rights, status, and other legal relations; and it is to be liberally construed
and administered.’” Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 37.002(b)).
Courts have determined that a declaration concerning lien validity and superiority
are proper for declaratory relief. Cf. Lance, 543 S.W.3d at 736; see I-10 Colony,
Inc. v. Lee, 393 S.W.3d 467, 475 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied); see, e.g., Chase Home Fin. L.L.C., 309 S.W.3d at 633–34; Red Rock
Props. 2005, Ltd., 2009 WL 1795037, at *5–6.
3. Deeds of Trust & Liens
“The purpose of a deed of trust is to secure a lender the repayment of a
borrower’s debt.” Fin. Freedom Senior Funding Corp. v. Horrocks, 294 S.W.3d
11749, 755 (Tex. App.—Houston [14th Dist.] 2009, no pet.). “To accomplish this
purpose, a deed of trust creates only a lien on property and does not constitute a
conveyance of the property.” Id.Generally, different liens on the same property have priority according to the
time of their creation. Red Rock Props. 2005, Ltd., 2009 WL 1795037, at *3. This
rule is known as first in time is first in right. Id.It is well settled law in Texas that a valid foreclosure on a lien filed first in
time (sometimes referred to as a “superior” lien) extinguishes a later-filed lien
(sometimes referred to as “inferior” or “subordinate” lien) if there are insufficient
excess proceeds from the foreclosure sale to satisfy the later-filed lien. I-10
Colony, Inc., 393 S.W.3d at 472–73; see, e.g., Diversified Mortg. Investors v.
Lloyd D. Blaylock Gen. Contractor, Inc., 576 S.W.2d 794, 808 (Tex. 1978) (op. on
reh’g); Kothari v. Oyervidez, 373 S.W.3d 801, 807 (Tex. App.—Houston [1st
Dist.] 2012, pet. denied); Elbar Invs., Inc. v. Wilkinson, No. 14-99-00297-CV,
2003 WL 22176624, at *2 (Tex. App.—Houston [14th Dist.] Sept. 23, 2003, pet.
denied) (mem. op.). Stated differently, the purchaser at the foreclosure sale takes
title free from the subordinate lien. Nat’l W. Life Ins. v. Acreman, 425 S.W.2d 815,
817–18 (Tex. 1968); I-10 Colony, Inc., 393 S.W.3d at 472–73; Poston v. Wachovia
Mortg. Corp., No. 14–11–00485–CV, 2012 WL 1606340, at *2 (Tex. App.—
Houston [14th Dist.] May 8, 2012, pet. denied) (mem. op.). Conversely, with few
exceptions, foreclosure on a subordinate lien will not extinguish a superior lien and
the purchaser at the foreclosure sale will take subject to the superior lien. I-10
Colony, Inc., 393 S.W.3d at 472–73.
4. Analysis
Here, Wilmington’s live petition alleged that it sought “declaratory relief
that [Khera’s] interest in the Property, if any, is subject to the first mortgage lien
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Deed of Trust to which [Wilmington] is the beneficiary.” Wilmington’s petition
further alleged that it “is entitled to the equitable determination that [Wilmington]
holds superior clear title to the Property and that Khera’s interest is subordinate to
[Wilmington’s] interest” and that it “seeks a Declaratory Judgment from this Court
declaring Khera’s interest in the Property, if any, is subordinate and subject to
[Wilmington’s] Deed of Trust.” The trial court’s order provides that “it is therefore
established and declared that Defendant Khera’s title is subject to [Wilmington’s]
valid first mortgage lien.”
Wilmington’s claim against Khera sought to establish that Khera’s
ownership of the property was subject to Wilmington’s lien but did not seek to
establish possession or ownership over the property; rather, the claim prospectively
implicated title by determining that Khera’s ownership was subject to
Wilmington’s lien on the property. See Lance, 543 S.W.3d at 736; I-10 Colony,
Inc., 393 S.W.3d at 475; Chase Home Fin. L.L.C., 309 S.W.3d at 633–34; see also
Fin. Freedom Senior Funding Corp. v. Horrocks, 294 S.W.3d 749, 755–56 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (“[A] deed of trust creates only a lien
on property and does not constitute a conveyance of the property.”). Accordingly,
we conclude that Wilmington did not need to assert this claim under the trespass-
to-try-title statute. See Lance, 543 S.W.3d at 736.
We note that Wilmington’s live petition sought an equitable determination
that Wilmington holds superior title to the property. This determination is subject
to the trespass to try title statute. However, the trial did not enter a declaration
providing that Wilmington holds superior title, and the other declarations sought
were properly brought under the Uniform Declaratory Judgment Act.
Finally, Khera argues that “[i]t is improper to bring a claim for declaratory
judgment when it is merely duplicative of claims already before the court.”
13
However, the authority Khera cites in support of its argument does not stand for
this proposition. See Tex. R. App. P. 48.1(i). Instead, the authorities cited stand for
the proposition that a declaratory judgment action may not be used to obtain
attorney’s fees when there is another cause of action available that does not
provide for the recovery of attorney’s fees. See MBM Fin. Corp. v. Woodlands
Operating Co., L.P., 292 S.W.3d 660, 670 (Tex. 2009) (“But when a claim for
declaratory relief is merely tacked onto a standard suit based on a matured breach
of contract, allowing fees under Chapter 37 would frustrate the limits Chapter 38
imposes on such fee recoveries.”); Wells Fargo Bank, N.A. v. Robinson, 391
S.W.3d 590, 595 (Tex. App.—Dallas 2012, no pet.) (“Furthermore, Robinson’s
request for declaratory relief is merely duplicative of his claims for wrongful
foreclosure and breach of contract. A plaintiff may not use the declaratory
judgment act to recover attorney’s fees that are not otherwise available by simply
seeking a declaratory judgment on issues already before the court as part of other
claims asserted.”). Khera does not argue that the trial court erred when it awarded
attorney’s fees to Wilmington. See Tex. R. App. P. 48.1(i). Furthermore, contrary
to Khera’s argument, the Supreme Court of Texas has stated that “the existence of
another adequate remedy does not bar the right to maintain an action for
declaratory judgment . . . .” MBM Fin. Corp., 292 S.W.3d at 669 (quoting Cobb v.
Harrington, 144 Tex. 360, 190 S.W.2d 709, 714 (1945)).
We overrule Khera’s second issue.
IV. MOTION TO COMPEL DISCOVERY
In its third issue, Khera argues the trial court erred in denying its motion to
compel discovery and by “not overruling” Wilmington’s discovery objections.
We review the trial court’s ruling on a motion to compel for an abuse of
discretion. See Ford Motor Co. v. Castillo, 279 S.W.3d 656, 661 (Tex. 2009). A
14
trial court abuses its discretion when it acts in an arbitrary or unreasonable manner
without reference to guiding rules or principles. Samlowski v. Wooten, 332 S.W.3d
404, 410 (Tex. 2011).
On appeal, Khera argues that, subsequent to the filing of Wilmington’s
amended petition, the trial court erred when it denied its motion to compel
discovery as to items concerning evidence of the damages awarded to Wilmington
in the interlocutory order. The only live cause of action pled in Wilmington’s
amended petition was for declaratory judgment concerning the superiority of
Wilmington’s lien vis-a-vis Khera’s ownership interest in the property.2 Thus, the
evidence concerning damages and the amount owed under the note is not relevant
to Wilmington’s claim for declaratory relief because Wilmington did not seek, nor
was it awarded, damages based on the balance of the loan. Instead, Wilmington
sought and obtained its only request for relief as to Khera: a declaration that
“Khera’s title is subject to [Wilmington’s] valid first mortgage lien.” Accordingly,
we cannot conclude that the trial court abused its discretion when it denied Khera’s
motion to compel discovery.
Khera also argues that the trial court erred by not overruling Wilmington’s
objections to Khera’s discovery requests. However, the trial court did not rule on
Wilmington’s objections, and Khera did not object to the trial court’s failure to
rule. See Tex. R. App. P. 33.1(a). Furthermore, as previously concluded, the trial
court did not abuse its discretion in denying the motion to compel because the
items requested were not relevant.
We overrule Khera’s third issue.
2
Khera also filed a second motion to compel and a motion for discovery sanctions, but
Khera did not obtain a ruling from the trial court on those motions. See Tex. R. App. P. 33.1(a).
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V. CONCLUSION
We affirm the trial court’s judgment.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Zimmerer, Spain, and Poissant. (Spain, J., concurring
without opinion).
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