TIMOTHY MASON, Appellant v. CHASE BANK OF TEXAS, N.A., Appellee

AFFIRMED; Opinion Filed August 13, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-07-01513-CV
............................
TIMOTHY MASON, Appellant
V.
CHASE BANK OF TEXAS, N.A., Appellee
.............................................................
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 07-09624
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
        Appellant Timothy Mason appeals a summary judgment granted in favor of appellee Chase Bank on Mason's claims and Chase's counterclaims. We affirm the trial court's judgment.
Factual and Procedural Background
 
        Mason purchased an investment property and later applied for and received a construction loan from Texas Commerce Bank, N.A., Chase's predecessor prior to a merger. The principal amount of the loan was approximately $41,000. Several years later, Dallas County foreclosed on Mason's house for failure to pay property taxes and transferred ownership by sheriff's deed to the City of Dallas at a public auction at which there were no bidders. While this was happening, Mason was overseas, playing basketball. He was unaware of the foreclosure proceedings and continued to make loan payments to Chase for several more years. At some point after the auction, Mason received notice about the unpaid taxes on the property and went to the tax office where he was told that the property had been sold. He stopped making payments on the loan and filed a pro se lawsuit against Chase.
        In Mason's original pleading, he contended that Chase performed a title search in connection with its decision to lend money to him, and that he paid Chase “130.00 up front to make sure the deeds were free and clear of all taxes, liens and judgments.” Although Mason did not identify any specific causes of action against Chase, or plead the elements of any specific causes of action, he essentially contended that, when he applied for his construction loan, Chase should have discovered that taxes were owed on the property and should have refused to loan him money.   See Footnote 1  He also contended that Chase knew he was out of the country and “made no attempt to stop foreclosure.” Based on “all of the unnecessary stress, humiliation and confusing communication he has endured for the past (4) four years,” Mason sought to void the loan agreement, and also sought “$41,000.00 plus interest in damages to recover mortgage payments that he has paid on this property . . . due to the Defendant's failure to do proper title work and keep house from the foreclosure sale and punitive damages in the amount of $75,000 for all major improvements and which the Plaintiff incurred.” Mason also sought attorneys' fees.
        In response, Chase filed a general denial and also sent Mason a notice of default on, and acceleration of, his loan. After the cure period expired, Chase filed a counterclaim for breach of the loan agreement, seeking damages for the unpaid principal and interest on the loan and attorneys' fees.
        Chase moved for summary judgment on all claims. In its motion, it described Mason's petition as “convoluted and non-sensical,” noted that Mason did not “specifically identify any causes of action against Chase,” and informed the trial court that Chase construed Mason's claim against Chase to be a claim for breach of the loan agreement. Chase moved for no-evidence summary judgment on what it construed as a breach-of-contract claim. It identified the necessary elements of that claim and argued that there was no evidence as to three of those elements: (1) breach by Chase, (2) performance by Mason (or excuse from performance), or (3) proximate causation. Chase also moved for traditional summary judgment on Mason's breach-of-contract claim and argued that “the uncontroverted evidence demonstrates that Chase Bank did not breach the Loan Agreement.” Chase moved for summary judgment on its counterclaim against Mason for breach of the loan agreement and submitted summary-judgment evidence establishing the elements of that claim. Additionally, Chase moved for summary judgment on its claim for attorneys' fees and argued two alternative grounds for recovering those fees as a matter of law: (1) the loan agreement provides for payment of Chase's attorneys' fees in the event of Mason's default, and (2) the civil practice and remedies code allows for recovery of attorneys' fees in a breach-of-contract action.
        In response, Mason filed a three-page affidavit in opposition to Chase's motion, in which he attested to, among other things, the facts that (1) he was never notified about the foreclosure proceeding, (2) a loan officer at Chase notified Mason that “they have to do a title search before funding,” (3) Chase agreed to close on the loan, (4) Chase never notified Mason that “there [sic] title company made a mistake,” and (5) Mason “paid monthly payments over $14,537.00 to Chase not knowing the house was already foreclosed on.” Mason amended his pleading against Chase and added the County of Dallas as a defendant. In his amended pleading, as it pertained to Chase, Mason (1) asserted a claim for breach of the loan agreement; (2) sought a declaratory judgment “for the declaration of the invalidity of” the loan agreement; (3) asserted a claim for negligence, in which he alleged that Chase's “in[-]house Title Resource Department” “was negligence [sic] in failing to discover and disclose the tax obligations to the Plaintiff” because “the Taxes should have been paid at closing or the loan should have never closed”; and (4) asserted a claim for attorney's fees. And, although he labeled them as “counts,” he asserted the affirmative defenses of estoppel and waiver, in which he contended that Chase “is estoppel [sic] to make a claim” and “has abandoned its claim” on the loan agreement.
        In response to Mason's affidavit and amended pleading, Chase supplemented its motion for summary judgment. In its supplemental motion, Chase argued that the parol evidence rule prevented the trial court from considering Mason's affidavit. Chase moved for no-evidence summary judgment on Mason's negligence claim on three alternative grounds: (1) no evidence of duty, (2) no evidence of breach, and (3) no evidence of proximate causation. Additionally, Chase moved for traditional summary judgment on Mason's negligence claim on three alternative grounds: (1) the relationship between Mason and Chase was purely contractual and Chase performed its obligations under the terms of the loan agreement, (2) the negligence claim is barred by the economic loss rule, and (3) Chase's conduct was not the producing cause of Mason's damages. Chase moved for no-evidence summary judgment on Mason's claim for declaratory relief on two alternative grounds: (1) no evidence of a justiciable controversy, and (2) no evidence that a judicial declaration “would add anything to [Mason's] alleged breach of contract claim.” Chase moved for traditional summary judgment on Mason's claim for declaratory relief on two alternative grounds: (1) it is barred because the dispute about the contract is already the subject of Mason's breach-of-contract claim, and (2) it is “wholly negated” by Mason's admissions that he signed the note and is obligated under the note.         Without specifying the ground or grounds on which it was based, the trial court issued an order (1) sustaining the objections to Mason's summary-judgment affidavit; (2) granting Chase's motion on all of Mason's claims and Chase's counterclaims; and (3) rendering judgment against Mason for $26,151.86 in damages, $2,100 in attorneys' fees, post-judgment interest, and taxable court costs. The trial court severed the claims asserted by or against Chase into a new cause number   See Footnote 2  and declared its summary judgment order final and appealable. Mason timely filed his notice of appeal.
Issues on Appeal
 
        Mason raises three issues on appeal: (1) “Chase had a duty in contract to pay for the loss incurred by the tax foreclosure,” (2) “Chase has a duty in tort to pay for the loss incurred by the tax foreclosure,” and (3) “Chase presented no summay [sic] judgment evidence to support the take nothing judgment against all of [Mason's] claims.” In response, Chase argues that, by not alleging error on appeal, Mason has waived his right to appeal the summary judgment on Chase's affirmative claims against Mason, the trial court's decision to sustain Chase's objections to Mason's affidavit, and Mason's claim for declaratory relief. Chase also argues that the trial court's summary judgment on Mason's claims against Chase for breach of contract and negligence must be affirmed because Mason did not allege error as to each alternative ground on which that order could have been based. Finally, Chase argues the trial court properly granted summary judgment against Mason on his breach-of-contract and negligence claims because Chase did not owe a duty to Mason, “either in contract or tort,” regarding the unpaid taxes and foreclosure proceeding.
 
Analysis
 
        If several alternative grounds for granting summary judgment are presented to the trial court, and the court grants summary judgment without specifying the basis or bases for its ruling, the appellant must challenge that judgment in one of two ways. One way is to assert a general issue complaining that the trial court erred in granting the motion for summary judgment. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970) (“[T]he best approach on appeal would be a Point of Error which simply complains 'THE TRIAL COURT ERRED IN GRANTING THE MOTION FOR SUMMARY JUDGMENT.'”). The other way is to assert separate issues that challenge every ground asserted in the motion. Id. (appellant may challenge summary judgment through separate points of error on each ground asserted in motion).
        If an appellant does not assert a general issue challenging all grounds asserted in the motion, and does not assert separate issues challenging every ground asserted in the motion, the summary judgment must be affirmed on the unchallenged ground or grounds, without regard to the merits of the unchallenged ground or grounds. Malooly Bros., 461 S.W.2d at121 (“The judgment must stand, since it may have been based on a ground not specifically challenged by the plaintiff and since there was no general assignment that the trial court erred in granting summary judgment.”); Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.-Dallas 1992, writ denied) (if summary judgment may have been rendered, properly or improperly, on ground not challenged on appeal, judgment must be affirmed).
        We agree with Chase that we may not reverse a trial court's judgment in the absence of properly assigned error. Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (per curiam); accord Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (per curiam) (“It is axiomatic that an appellate court cannot reverse a trial court's judgment absent properly assigned error.”). And Mason does not contend that the trial court erred by granting summary judgment on Chase's affirmative claims against Mason or on Mason's claim for declaratory relief. Accordingly, we cannot conclude that the trial court erred in granting summary judgment in favor of Chase on those claims.
        We also agree with Chase that we must affirm the summary judgment on the remaining claims-Mason's claims against Chase for breach of contract and negligence-because Mason does not challenge every ground on which that judgment could have been based.
        Chase contended there was no evidence to support multiple essential elements of Mason's negligence and breach-of-contract claims. In its order granting summary judgment for Chase, the trial court did not specify which of Chase's several alternative grounds was the basis for its decision.
        On appeal, Mason does not assert a general issue that the trial court erred in granting summary judgment against him, nor does he challenge every ground that was raised below and could have been the basis for the court's decision. See Malooly, 461 S.W.2d at 121. Setting aside the fact that Mason's one-page argument in his appellate brief does not include appropriate citations to the record or to applicable authority as required by Texas Rule of Appellate Procedure 38.1, and without deciding the merits of the unchallenged grounds for summary judgment, we affirm the trial court's judgment in favor of Chase on Mason's claim for negligence and breach of contract on the multiple grounds listed above that are not challenged on appeal. See id.; Adams v. First Nat''l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.-Dallas 2005, no pet.) (“[A] reviewing court will affirm the summary judgment as to a particular claim if an appellant does not present argument challenging all grounds on which the summary judgment could have been granted.”).
Conclusion
 
        We affirm the trial court's judgment.
 
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
 
071513F.P05
 
Footnote 1 Mason pleaded, verbatim, that Chase “should've never loan the Plaintiff the funds without correctly given Plaintiff proper title work that was paid up front to the Defendant there in house title company.”
Footnote 2 The claims by and against Chase were severed from trial court cause number 06-09538 into trial court cause number 07-09624.