Cindy J. Stiggers v. Fleet Mortgage Corporation--Appeal from 225th Judicial District Court of Bexar County

No. 04-01-00024-CV
Cindy J. STIGGERS,
Appellant
v.
FLEET MORTGAGE CORPORATION,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-05953
Honorable Henry S. Schuble, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Tom Rickhoff, Justice

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: August 29, 2001

AFFIRMED

Cindy J. Stiggers appeals the rendition of summary judgment for Fleet Mortgage Corporation in this breach of contract claim. We affirm.

Background

Stiggers bought a home in San Antonio in August 1986. She financed the house through Fleet but fell behind in her payments in 1998. Fleet sent Stiggers a letter in June 1998 in which it agreed to grant Stiggers a "Special Forebearance" for six months. In February 1999, Stiggers requested a workout option and sent in financial information to achieve this. She was told over the phone that she would get a second six month forebearance period, but she never received written confirmation of this. Instead, in June 1999, she received a letter denying another review of her account. Fleet Mortgage refused her offer to pay $5000; the company foreclosed on the home in August 1999 and sold it at a public auction.

Stiggers sued Fleet for breach of written and oral agreements. She sought to enjoin Fleet from demanding back payments, asked the trial court to reinstate her right to possess the house, and sought attorney's fees. Fleet filed a no-evidence motion for summary judgment and, in the alternative, asserted the affirmative defense of the Statute of Frauds. Without specifying the basis for its ruling, the trial court rendered a take-nothing summary judgment.

Breach of Contract

To prevail in a breach of contract claim, a party must show (1) the existence of a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. MacIntire v. Armed Forces Benefit Ass'n, 27 S.W.3d 85, 88-89 (Tex. App.--San Antonio 2000, no pet.). A no-evidence summary judgment is properly rendered if the respondent fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the respondent's claim on which the respondent would have the burden at trial. Tex. R. Civ. P. 166a(i); Roberts v. Lain, 32 S.W.3d 264, 268 (Tex. App.--San Antonio 2000, no pet.). We review the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Rodriguez v. Sciano, 18 S.W.3d 725, 726 (Tex. App.--San Antonio 2000, no pet.). When, as here, the judgment is silent regarding the grounds upon which it was rendered, we will affirm on any meritorious ground advanced in the motion. Roberts, 32 S.W.2d at 268.

Although Stiggers characterizes her arrangement with Fleet as a contract modification, both oral and written, it is evident on the face of the documents she submitted in response to the motion for summary judgment that there was no contract other than the original note and deed of trust. The letter of June 4, 1998, shows that Fleet approved a "Special Forbearance" for six months until Stiggers' "income is established and stabilized." The letter goes on to say that Fleet would "reevaluate your file for a Loan Modification and/or a Partial Claim, once this is determined." In the letter of June 23, 1999, Fleet rejected Stiggers request for a loan modification, giving as its reason, "You have been offered numerous opportunities to current your account, but to no avail we are still in the process of attempting to bring your account current. It is for this reason that I must deny a review for a Modification of your Note." Viewing this evidence in the light most favorable to Stiggers, it is clear that neither letter modifies the loan; to the contrary, the first delays the decision about whether to modify the loan, and the second rejects the request to modify it.

Because we have held the first letter did not create a contract, we likewise hold that any oral agreement to provide a second six-month period of forebearance was also not a contract modification. The February 1999 letter to Stiggers from Fleet is merely a request for documentation. At best, any oral agreement that stemmed from this letter or Stiggers' submission of the requested information simply repeated the terms of the first letter. It was a forebearance, not a modification.

Additionally, Stiggers cannot prevail on her claim for promissory estoppel, because she did not argue this theory to the trial court. Issues not expressly presented to the trial court by written motion, answer, or other response, shall not be considered on appeal as grounds to reverse. Tex. R. Civ. P. 166a(c); Tex. R. App. P. 33.1(a); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

We overrule both points of error.

We affirm the summary judgment.

Catherine Stone, Justice

DO NOT PUBLISH