Juan Moreno and Leticia Moreno v. Octavio Guajardo--Appeal from 111th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-06-00475-CV
Juan and Leticia MORENO,
Appellants
v.
Octavio GUAJARDO,
Appellee
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2004-CVQ-001395-D2
Honorable Raul Vasquez, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: May 30, 2007

 

AFFIRMED

 

This is an appeal from a traditional and no-evidence summary judgment rendered in favor of appellee, Octavio Guajardo. We affirm.

BACKGROUND

In the underlying litigation, Juan and Leticia Moreno sued Octavio Guajardo after Guajardo foreclosed on the property the Morenos purchased from him. In their original petition, the Morenos asserted claims for violations of the Texas Deceptive Trade Practices Act, common law fraud, fraud in a real estate transaction, wrongful foreclosure, and breach of contract. Guajardo filed a general denial and specially excepted to the original petition on nineteen grounds, which attacked all of the Morenos' causes of action except for wrongful foreclosure. Following a hearing on November 29, 2004, at which the Morenos and their attorney failed to appear, the trial court granted the special exceptions. On December 6, 2004, Guajardo's attorney faxed the Morenos' attorney a copy of the proposed order regarding the special exceptions and a letter requesting that he contact him if there were any objections to the form of the order. Nothing in the record indicates the Morenos' attorney responded to the faxed letter. On December 7, 2004, the trial court signed the order granting all of Guajardo's special exceptions and ordering the Morenos to replead by December 10, 2004. The order provided that "such pleading not cured shall be stricken, with prejudice to the right to re-file the same." The Morenos failed to replead within the required time.

On December 14, 2004, the Morenos and Guajardo appeared before the trial court and agreed to a pre-trial scheduling order that allowed the Morenos to amend their pleadings no later than April 30, 2005. Again, the Morenos failed to replead. On May 20, 2005, Guajardo filed a traditional and no-evidence motion for summary judgment. Shortly after Guajardo filed his motion, the Morenos filed a "motion to set aside 'death penalty' sanction[s]," which was denied following a hearing. The day before the summary judgment hearing, the Morenos filed an amended petition without leave of court. (1) The trial court rendered summary judgment in favor of Guajardo. The Morenos complain of the trial court's judgment in five issues on appeal.

SPECIAL EXCEPTIONS "Special exceptions may be used to challenge the sufficiency of a pleading." Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Tex. R. Civ. P. 91. "When the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading." Id. "If a party refuses to amend, or the amended pleading fails to state a cause of action, then summary judgment may be granted." Id. Here, the Morenos do not challenge the trial court's decision to grant the special exceptions. Instead, in their first and second issues on appeal, the Morenos assert (1) the trial court erred when it struck their pleadings without providing a reasonable amount of time to cure the special exceptions, and (2) striking the pleadings was an abuse of discretion and resulted in "death penalty" sanctions. For the following reasons we conclude the Morenos' argument is without merit.

The trial court gave the Morenos their first opportunity to cure when it granted the special exceptions by allowing them to replead by December 10, 2004. Although the order giving the Morenos until December 10 to replead was not signed until December 7, the Morenos' attorney had notice of the proposed order at least by December 6. The Morenos' attorney did not object to the amount of time given to replead, nor did he request an extension of time. The Morenos' attorney also failed to replead by December 10. Four days later, on December 14, the Morenos were before the trial court to enter into the pre-trial scheduling order. The pre-trial scheduling order set a new date by which all parties had to replead if necessary. Again, the Morenos did not replead. Instead, the Morenos waited until after Guajardo filed his motion for summary judgment and one day before the summary judgment hearing to file their amended petition, without leave of court. Thus, nothing in the record supports the Morenos' contention that they were not given a reasonable amount of time to cure the pleading deficiencies. Finally, if a pleader refuses to amend his pleadings, the trial court may strike the objectionable portion of the pleadings. See D.A. Buckner Constr., Inc. v. Hobson, 793 S.W.2d 74, 75-6 (Tex. App.--Houston [14th Dist.] 1990, orig. proceeding). Because the Morenos did not amend their pleadings, the trial court did not err in striking the Morenos' pleadings. Accordingly, we overrule the Morenos' first and second issues on appeal.MOTION FOR SUMMARY JUDGMENT

In issues three and four, the Morenos contend the trial court erred by granting Guajardo's traditional and no-evidence motion for summary judgment. We review a trial court's ruling on a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). If the trial court does not specify the ground upon which it based its ruling, as in this case, the summary judgment will be affirmed on appeal if any of the grounds in the summary judgment motion can be sustained. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam).

1. Traditional Summary Judgment

A party may properly move for summary judgment after the trial court sustains special exceptions and the non-movant has been granted an opportunity to amend but fails to do so. See Friesenhahn, 960 S.W.2d at 658. Here, Guajardo moved for a traditional summary judgment on the Morenos' DTPA, common law fraud, fraud in a real estate transaction, and breach of contract claims on the grounds that the Morenos' "claims were stricken for failure and refusal of [the Morenos'] to cure the special exceptions sustained" by the court. In their response to the motion for summary judgment, the Morenos argued they filed an amended petition that cured the special exceptions. An amended petition was filed the day before the summary judgment hearing; however, the record does not contain an order granting the Morenos leave to amend this petition. See Tex. R. Civ. P. 63 (requiring leave of court if filed within seven days of date of trial). Therefore, the trial court properly granted summary judgment on the Morenos' claims for violations of the DTPA, common law fraud, fraud in a real estate transaction, and breach of contract.

2. No-evidence Summary Judgment

In a no-evidence motion for summary judgment, a party may seek summary judgment by asserting there is no evidence on a ground on which the adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). In his no-evidence motion, Guajardo asserted there was no evidence of any element of the Morenos' causes of action, including no evidence of damages for wrongful foreclosure. The burden then shifted to the Morenos to produce more than a scintilla of evidence to raise a genuine issue of material fact on damages for wrongful foreclosure. See Tex. R. Civ. P. 166a(i); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). In their response to Guajardo's no-evidence motion for summary judgment, the Morenos produced the following: (1) the affidavit of Leticia Moreno, (2) the affidavit of Juan Moreno, (3) the affidavit of the Morenos' attorney, Armando Trevi o, (4) a contract for deed, (5) a letter providing notice of foreclosure, and (6) the receipts of payments. However, the Morenos failed to provide any evidence regarding damages resulting from the alleged wrongful foreclosure. Thus, the Morenos did not meet their burden to raise a fact issue sufficient to defeat Guajardo's entitlement to a no-evidence summary judgment. Accordingly, we overrule their fourth issue on appeal.

 

CONCLUSION

We affirm the trial court's judgment. (2)

Sandee Bryan Marion, Justice

 

1. The Morenos' amended petition did not add any new claims.

2. We decline to address the Morenos' final issue regarding whether the trial court erred in denying the Morenos' motion for new trial because we have already determined the summary judgment was properly rendered, and, therefore, it is not dispositive of this appeal. Tex. R. App. P. 47.1.