Green Tree Servicing, LLC v. Thompson, Lana Faye

 
AFFIRM; Opinion Filed March 12, 2012
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-11-00275-CV
............................
GREEN TREE SERVICING, LLC, Appellant
V.
LANA THOMPSON, Appellee
.............................................................
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 65733
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice Lang-Miers
 
Appellant Green Tree Servicing, LLC appeals from a summary
judgment in favor of appellee Lana Thompson. In multiple related issues
Green Tree argues that the trial court erred when it rendered judgment
in favor of Thompson. We affirm.
 
Background
 
Thompson sued her ex-husband, Dana Earl Richardson, and Green
Tree, the loan servicer on a mobile home, for claims arising from the
payment of insurance proceeds after a fire destroyed the mobile home.
According to Thompson's petition, Thompson and Richardson bought
the mobile home from Thompson's employer for $40,000 prior to their
marriage. The loan for the mobile home was in Richardson's name only,
but the down payment came from the couple's joint checking account.
Thompson alleges that the mobile home was awarded to her in the divorce.
She also alleges that after the divorce, she made all loan payments and
obtained and paid for an insurance policy on the mobile home with
 
Ranchers & Farmers Mutual Insurance Company.
Thompson filed a claim with Ranchers & Farmers Mutual after the
mobile home was destroyed by fire in February 2007. Ranchers & Farmers
Mutual issued a check in the amount of $57,000 jointly payable to
Thompson and Green Tree. Thompson called Green Tree's office and was
told to endorse the check and bring it to Green Tree. Thompson contends
that she “was assured on the telephone and in person that Green Tree
would pay the balance of the loan and send Ms. Thompson a check for the
remaining amount.” Thompson endorsed the check and gave it to Green Tree
to pay off the remainder of the loan's outstanding balance of
$14,358.41. Green Tree cashed the check, paid off the loan, and sent a
check for the remaining balance of $42,641.59 to Richardson. Richardson
refused to endorse it to Thompson and instead cashed the check.
Thompson sued Green Tree and Richardson and asserted claims
against Green Tree for common-law fraud, conversion, negligence, and
attorneys' fees. Green Tree answered and filed a motion for summary
judgment on Thompson's claims. Thompson also moved for summary judgment
on her claims for conversion, negligence, and attorneys' fees, and Green
Tree filed a response. The trial court considered Thompson's motion for
summary judgment, granted summary judgment in favor of Thompson on her
negligence claim, and awarded Thompson $42,641.59 in damages plus
prejudgment and postjudgment interest against Green Tree. The trial
court did not rule on Green Tree's motion for summary judgment. The
 
trial court also signed an order in which it severed Green Tree's
cross-claim against Richardson and recited that the summary judgment
finally disposes of all other claims and is appealable. Green Tree
appeals from the trial court's summary judgment in favor of Thompson and
asks us to reverse and render judgment in favor of Green Tree.
Analysis
 
First Issue
In its first issue on appeal Green Tree argues that the trial
court erred in determining that Green Tree was liable to Thompson. Green
Tree does not refer to its motion for summary judgment. But rather than
asking this Court to remand this case to the trial court, it asks this
Court to “render a judgment that Thompson take nothing against Green
Tree.” Because Green Tree asks us to render judgment in its favor, we
construe Green Tree's first issue as an argument that the trial court
erred when it denied Green Tree's motion for summary judgment.
Although Green Tree filed a motion seeking summary judgment in
Green Tree's favor on Thompson's claims, there is no evidence in the
record to demonstrate that Green Tree's motion was heard or ruled on by
the trial court. As a general rule, “[w]hen parties present
cross-motions that are opposed and mutually exclusive, an order that
grants one motion may implicitly deny the other.” Gen. Agents Ins. Co.
of Am., Inc. v. El Naggar, 340 S.W.3d 552, 557 (Tex. App.-Houston [14th
Dist.] 2011, pet. denied). But that general rule does not apply in this
case because the trial court's summary-judgment order expressly states
 
that it considered only Thompson's motion for summary judgment. See,
e.g., Patterson v. City of Brenham, No. 14-10-00111-CV, 2011 WL 782231,
at *2 (Tex. App.-Houston [14th Dist.] Mar. 8, 2011, no pet.) (mem. op.)
(noting appellant filed motion for summary judgment, but record did not
indicate “the trial court ruled on this motion or even that the court
was aware of the motion”). There is no reporter's record in this case,
and the clerk's record does not demonstrate that Green Tree's motion was
set for a hearing or otherwise considered by the trial court.
Additionally, Green Tree does not explain how the trial court erred by
denying its motion for summary judgment. As a result, we cannot consider
Green Tree's first issue. See Tex. R. App. P. 33.1. We resolve Green
Tree's first issue against it.
Second and Third Issues
Green Tree argues its second and third issues together,
addressing Thompson's claims for common-law fraud, conversion, and
negligence. Green Tree argues that Thompson did not prove her claims for
negligence, common-law fraud, and conversion as a matter of law. But the
trial court granted summary judgment in favor of Thompson on her
negligence claim only, and it explained that the basis of its ruling was
that Green Tree “breached its duty as constructive trustee to Plaintiff
Lana Thompson, a joint payee of Check #0780018184, by disbursing funds
that rightfully belonged to Plaintiff to Dana Richardson.” As a result,
because the trial court ruled in favor of Thompson on her negligence
claim and not on her claims for common-law fraud and conversion, we do
 
not need to address Green Tree's arguments on appeal that Thompson did
not prove those claims as a matter of law. Cf. Hixon v. Tyco Int'l
Ltd., No. 01-04-01109-CV, 2006 WL 3095326, at *10 n.9 (Tex. App.-Houston
[1st Dist.] Oct. 31, 2006, no pet.) (mem. op.) (declining to address
appellants' argument that their evidence was sufficient to defeat
appellee's no-evidence motion for summary judgment because “the trial
court granted no relief on that motion”).
In its combined second and third issues Green Tree's argument
concerning Thompson's negligence claim states, in its entirety, as
follows: The elements of negligence are that the Defendant owed a legal
duty to the Plaintiff, that Defendant breached the duty and the breach
proximately caused the Plaintiff's injury. See Western Investment, Inc.
v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). In the present case there is
no evidence that Green Tree owed a legal duty to [Thompson] or that
Green Tree breached the duty. Specifically, Green Tree's duty was to the
insured and to its customer, Richardson, not Appellee Thompson. There is
no evidence that Green Tree owed [Thompson] any duty or that Green Tree
breached such a duty.
With respect to Thompson's negligence claim, Green Tree does not cite to
the record or to any applicable authority to support its argument that
it did not owe or breach a duty to Thompson. As a result, we conclude
that Green Tree's argument concerning Thompson's negligence claim was
not adequately briefed. See Tex. R. App. P. 38.1(i) (argument section of
 
appellant's brief must contain “appropriate citations to authorities and
to the record”). We resolve Green Tree's second and third issues against
it.
Fourth Issue
In its fourth issue Green Tree argues that Thompson is not
entitled to the insurance proceeds because Richardson, not Thompson, is
still the owner of the mobile home. We cannot address this argument on
appeal, however, because the record does not demonstrate that it was
raised below in response to Thompson's motion for summary judgment. See
Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to the trial
court by written motion, answer or other response shall not be
considered on appeal as grounds for reversal.”). We resolve Green Tree's
fourth issue against it.
Conclusion
 
We resolve Green Tree's issues against it and affirm the trial
court's judgment.
 
ELIZABETH
LANG-MIERS
JUSTICE
110275F.P05
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GREEN TREE SERVICING, LLC, Appellant
No. 05-11-00275-CVV.
LANA THOMPSON, AppelleeAppeal from the 354th Judicial District Court of
Hunt County, Texas. (Tr.Ct.No. 65733).
Opinion delivered by Justice Lang-Miers, Justices FitzGerald and Francis
participating. In accordance with this Court's opinion of this
date, the judgment of the trial court is AFFIRMED. It is ORDERED that
appellee Lana Thompson recover the full amount of the trial court's
judgment and the costs of this appeal from appellant Green Tree
Servicing, LLC and International Fidelity Insurance Company as surety on
appellant's supersedeas bond.
Judgment entered March 12, 2012.
 
/Elizabeth
Lang-Miers/
ELIZABETH
LANG-MIERS
JUSTICE
 
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