Firas Kadhum v. Homecomings Financial Network, Inc., and Deutsche Bank Trust Company Americas, F/K/A Bankers Trust Company and Baxter & Schwartz, P.C.

Opinion issued April 27, 2006     

      In The  

Court of Appeals  

For The

First District of Texas  

---

  NO. 01-05-00705-CV

---

FIRAS KADHUM, Appellant

V.

HOMECOMINGS FINANCIAL NETWORK, INC., DEUTSCHE BANK TRUST COMPANY AMERICAS F/K/A BANKERS TRUST COMPANY, and BAXTER & SCHWARTZ, P.C., Appellees

---

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Cause No. 2004-33914  

---

  MEMORANDUM OPINION

            Appellant, Firas Kadhum, appeals from summary-judgment orders entered in favor of appellees, Homecomings Financial Network, Inc. (“Homecomings”), Deutsche Bank Trust Company Americas F/K/A Bankers Trust Company (“Deutsche”), and Baxter & Schwartz, P.C. (“Baxter”) (hereinafter collectively referred to as “appellees”). We determine (1) whether Kadhum preserved his complaints regarding his motion to compel and motion for continuance and (2) whether the trial court erred in its summary-judgment rulings. We affirm the trial court’s judgment.

Background  

          In November 2001, Kadhum entered into a home-equity loan agreement (“the note”) with Homecomings, using 21019 Meadow Hill Drive (“the Meadow Hill property”) as security for the $224,000 loan. Homecomings later sold the note to Deutsche. Kadhum stopped making payments. On May 10, 2004, Deutsche filed an application in the 269th Judicial District Court of Harris County Texas, seeking an expedited foreclosure under Texas Rule of Civil Procedure 736(1) (“the May 2004 proceeding”). See Tex. R. Civ. P. 736(1).

          On June 28, 2004, Kadhum filed a “petition contesting the right to foreclose” against appellees in the 269th District Court of Harris County, Texas, seeking abatement and dismissal of the May 2004 proceeding under Texas Rule of Civil Procedure 736(10) (“the June 2004 proceeding”). See Tex. R. Civ. P. 736(10). In his petition, Kadhum contested Deutsche’s right to foreclosure because (1) the co-owner of the homestead, Joellie Shawnlet Regan, was protected under the Soldiers and Sailors Act; (2) Homecomings breached the contract because it did not have permission to sell the note, did not provide prior notice of its sale, and did not pay Kadhum consideration for the sale of Kadhum’s note to Deutsche; (3) appellees violated the Fair Debt Collection Practices Act (“FDCPA”) because they did not provide Kadhum with verification of debt and included false evidence in their pleadings; and (4) Deutsche committed fraud by instituting foreclosure proceedings. The trial court abated Deutsche’s application for foreclosure in the May 2004 proceeding.  

          On March 23, 2005, Kadhum served requests for admissions on appellees in the June 2004 proceeding. On April 11, 2005, appellees objected to Kadhum’s discovery requests because they were untimely. The requests for admissions to Deutsche were not served until March 23, 2005, and the request seeking to audit Deutsche was not served until April 4, 2005. The discovery period ended April 2, 2005. The trial date was set for May 2, 2005.

          On April 11, 2005, appellees filed motions for summary judgment in the June 2004 proceeding. On April 15, 2005, Kadhum filed a verified motion for continuance to obtain full discovery. The trial court granted appellees’ motions for summary judgment on June 23, 2005. On July 8, 2005, Kadhum filed a motion for reconsideration, requesting that the trial court vacate its summary-judgment orders. On July 21, 2005, the trial court expressly denied Kadhum’s motion for reconsideration. On July 22, 2005, Kadhum filed his notice of appeal of the summary judgment orders in the June 2004 proceeding.  

Motion to Compel

          In his first point of error, Kadhum argues that he was “unable to obtain complete discovery [because] Appellees hid evidence and provided incomplete records.” Specifically, Kadhum argues that he “filed motions to compel answers to [his requests for admissions] and that the [trial court] never ruled on them during or after the hearing.”

          The record does not reflect that Kadhum filed a motion to compel, nor does Kadhum cite to the clerk’s record indicating that any such motion to compel was filed. Because the record does not show that a motion to compel was presented to the

trial court or ruled on, any possible error is not preserved for review. See Tex. R. App. P. 33.1(a); see Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991).

          We overrule Kadhum’s first point of error.   

Motion for Continuance

          In his second point of error, Kadhum argues that he was “not given sufficient opportunity for discovery and Appellees were uncooperative for purposes of no-evidence summary judgment rule.” Specifically, he argues that the trial court erred because it did not rule on his motion for continuance.

          Although Kadhum filed a motion for continuance, he neither requested a hearing on the matter nor obtained a ruling from the trial court. A party moving for continuance of a summary-judgment hearing must obtain a written ruling on its motion in order to preserve a complaint for appellate review. See Tex. R. App. P. 33.1; Mitchell v. Bank of Am., N.A., 156 S.W.3d 622, 625–26 (Tex. App.—Dallas 2004, pet. denied); see also Ross v. State, 133 S.W.3d 618, 628 (Tex. Crim. App. 2004). Because Kadhum did not obtain a written ruling on his motion for continuance, he failed to preserve this complaint for appellate review. See Tex. R. App. P. 33.1.

          Moreover, even if the trial court can be deemed to have implicitly overruled Kadhum’s continuance motion, the decision to grant or to deny a motion for continuance is within the trial court’s discretion, and such determination will be reversed only upon a showing of a clear abuse of discretion. Retzlaff v. Texas Dep’t of Criminal Justice, 135 S.W.3d 731, 745 (Tex. App.—Houston [1st Dist.] 2003, no pet.); see State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988)  . A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

          A party may move for a no-evidence summary judgment after adequate time for discovery has passed. Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). “Adequate time” is determined by the nature of the cause of action, the evidence necessary to controvert the no-evidence motion, and the length of time that the case has been active. Id. A court may also look to factors such as the amount of time that the no-evidence motion has been on file, whether the movant has requested stricter time deadlines for discovery, the amount of discovery that has already taken place, and whether the discovery deadlines that are in place are specific or vague. Id.; McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

          Here, appellees objected to Kadhum’s request for admissions, because Deutsche was not served until March 23, 2005, 10 days before the discovery period ended, and objected to Kadhum’s request to audit Deutsche because it was not served until April 4, 2005, two days after the discovery period had ended. Kadhum filed his motion for continuance on April 15, 2005.

          Kadhum’s motion for continuance stated that, if Kadhum’s request for continuance was granted, he would be able to show that material fact issues existed. In his motion for continuance, Kadhum specifically contended that the depositions of the officers of Homecomings and Deutsche were material to show whether Homecomings had performed according to the agreement and whether Deutsche had verified Homecomings’s compliance with contract provisions. On June 23, 2005, the trial court signed two separate orders granting appellees’ motions for summary judgment.    

          Given the length of time that this case had been pending on the trial court’s docket and the late dates on which Kadhum’s discovery requests were served, we could not say that the trial court abused its discretion in refusing to grant Kadhum’s request for a continuance were we to reach the merits of this point of error. See Wood Oil Distrib., Inc., 751 S.W.2d at 865 (holding that trial court does not abuse its discretion in denying motion for continuance when movant fails to pursue discovery diligently); Tex. R. Civ. P. 198.1.  

          We overrule Kadhum’s second point of error.                   

Summary Judgment

          In his third, fourth, fifth, sixth, and seventh points of error,   Kadhum argues that the trial court erred in granting appellees’ motions for summary judgment.

  A.      Standard of Review

          The propriety of summary judgment is a question of law, and we thus review the trial court’s ruling de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, evidence favorable to the non-movant is taken as true, and all reasonable inferences are indulged in the non-movant’s favor. Johnson County Sheriff’s Posse v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996). When a summary-judgment order does not state the grounds upon which it was granted, the summary judgment may be affirmed on any of the movant’s theories that has merit. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex. 1996); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). In such a situation, appellate courts should consider all grounds for summary judgment that the movant presented to the trial court when they are properly preserved for appeal. Cincinnati Life Ins. Co., 927 S.W.2d at 625. Thus, to prevail, the party appealing from such an order must show that each of the independent arguments alleged in the motion is insufficient to support the order. Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex. App.—Houston [1st Dist.] 1988, writ denied); McCrea v. Cubilla Condo. Corp., 685 S.W.2d 755, 757 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.).

B.      The Nature of the Summary-Judgment Motions  

          Appellees styled their motions for summary judgment as “no-evidence” motions. Rule 166a(i) of the Rules of Civil Procedure provides that “[t]he motion must state the elements as to which there is no evidence.” Tex. R. Civ. P. 166a(i). The comment to rule 166a(i), which is intended to inform the construction and application of the rule, states, “The motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” Tex. R. Civ. P. 166a, 1997 Comment. Thus, a no-evidence summary-judgment motion must explicitly assert that there is no evidence of one or more specifically identified elements of the opponent’s claim. See Johnson v. Felts, 140 S.W.3d 702, 706 (Tex. App.—Houston [14th Dist.] 2004, pet. denied); Cmty. Initiatives, Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 279–80 (Tex. App.—El Paso 2004, no pet.). An appellate court cannot read between the lines, infer, or glean from the pleadings or proof any grounds for summary judgment other than those grounds expressly set forth before the trial court in the motion. Cf. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); Johnson, 140 S.W.3d at 706.

          A no-evidence motion for summary judgment that does not “challenge a specific element of [the non-movant’s] claim” is not reviewed as a no-evidence motion. Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.). When a no-evidence motion for summary judgment does not specifically state which elements lack evidence, the motion should be treated as a motion for a 166a(c) summary judgment. Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168 (Tex. App.—Texarkana 2000, pet. denied).       

          Here, appellees stated in their motions that no evidence supported any of the elements of any of Kadhum’s causes of action. This statement is conclusory and thus insufficient to meet rule 166a(i)’s requirements. See Johnson, 140 S.W.3d at 706. However, appellees also contended in their motions for summary judgment that, as a matter of law, Kadhum could not establish breach of contract because the security instrument provided for the sale of the note and change of loan-service provider. We therefore construe appellees’ motions for summary judgment as motions for traditional summary judgment, in part, on the above-stated ground.

C.      Breach of Contract        

          In his fourth point of error, Kadhum argues that “[t]he evidence is factually sufficient to support a verdict of breach of contract by Homecomings.” We interpret this as an argument that fact issues precluded summary judgment.  

          The elements of a breach of contract are that (1) the plaintiff and defendant had a valid, enforceable contract; (2) the plaintiff performed or tendered performance of his contractual obligations; (3) the defendant breached the contract; and (4) the defendant’s breach caused the plaintiff’s injuries. Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex. App.—Houston [1st Dist.] 1997, no writ).

          Kadhum alleged that Homecomings breached the contract because it did not have permission to sell the note and did not provide notice of the sale of the note. However, Homecomings attached the security agreement to its motion for summary judgment. That note stated in part that “[t]he note or a partial interest in the Note (together with this Security Instrument) may be sold one or more times without prior notice to Borrower.” Kadhum produced no evidence to controvert the security agreement produced by Homecomings. Accordingly, Homecomings conclusively disproved at least one element of Kadhum’s claim that Homecomings breached the contract because it did not have permission to sell the note and because it did not provide notice of the sale of the note. Therefore, we hold that the trial court did not err in rendering summary judgment for Homecomings on Kadhum’s cause of action against it for breach of contract.

            We overrule Kadhum’s fourth point of error.D.Inadequately Briefed Points of Error

          In his fifth point of error, Kadhum asserts that “[t]he evidence is factually sufficient to prove Lack [sic] of consideration.” In his sixth point of error, Kadhum asserts that “[t]he evidence is factually sufficient to show Fraud in the Factum.” In his seventh point of error, Kadhum asserts that “[t]he evidence is factually sufficient to prove the debt Collector [sic] did not adhere to Fair Debt Collection Practices Act.”

          Kadhum offers no argument or citations to the record or to authority. We do not consider these points of error because Kadhum has inadequately briefed them. See Tex. R. App. P. 38.1(h); Franz v. Katy Indep. Sch. Dist., 35 S.W.3d 749, 755 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

          We overrule Kadhum’s fifth, sixth, and seventh points of error.  

  Unchallenged Ruling

          Appellees moved for rule 166a(c) summary judgment against Kadhum’s breach-of-contract claim on the ground that Homecomings had permission to sell the note and did not have an obligation to provide notice of the sale of the note. Appellees did not request summary-judgment relief against Kadhum’s claims for protection under the Soldiers and Sailors Act. Nonetheless, the trial court’s June 23, 2005 summary-judgment orders recited that “Plaintiff take nothing by his suit.”

          It is well-established that a summary judgment can be granted only on the grounds addressed in the motion for summary judgment. See Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex. App.—Houston [1st Dist.] 1999, no pet.); Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A summary judgment granting more relief than that that a party has requested is subject to reversal, but it is not, for that reason alone, interlocutory. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). In circumstances in which the trial court grants more relief than was requested, the order must be appealed and can be reversed on that basis. Id. at 206. In his brief on appeal, however, Kadhum asserts no challenges relating to the trial court’s granting of more relief than requested in appellees’ summary-judgment motions. Therefore, we affirm those portions of the summary-judgment orders disposing of Kadhum’s claim against appellees for protection under the Soldiers and Sailors Act. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Garcia v. Nat’l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  

Conclusion

          We affirm the judgment of the trial court.

                                                             Tim Taft

                                                             Justice

Panel consists of Justices Taft, Higley, and Bland.