OPINION
Opinion by
Wilfredo and Ines Del C. Rivera appeal summary judgments in favor of Countrywide Home Loans, Inc., Landsafe Appraisal Services, Inc., and Shirley P. Burchett. In nine issues, the Riveras complain the trial judge erred in granting summary judgment on limitations, granting no evidence motions for summary judgment on the Riveras’ damages, granting Burchett summary judgment on the Riveras’ claim of fraudulent misrepresentation, and awarding attorney’s fees to Burchett. We affirm in part and reverse and render in part.
In 1998, the Texas Constitution was amended to allow homeowners to voluntarily encumber their homesteads with liens in exchange for extension of credit, i.e., “home equity loan.” Tex. Const, art. XVI, § 50(a)(6)(A)-(Q). Section 50(a)(6)(B) specifically provides that a Texas homestead is protected “from forced sale, for the payment of all debts” except for an extension of credit that “is of a principal amount that when added to the aggregate total of the outstanding principal balance of all other indebtedness secured by valid encumbrances against the homestead does not exceed 80 percent of the fair market value of the homestead on the date the extension of credit is made.” Tex. Const. art. XVI, § 50(a)(6)(B).
In 2001, the Riveras requested a loan from Countrywide. The loan was to be secured by their homestead. Countrywide contacted a subsidiary, Landsafe, to obtain an appraisal of the property. Landsafe in turn requested Burchett perform the appraisal. Burchett appraised the fair market value of the property at $850,000 as of the September 28, 2001 closing date. Countrywide loaned the Riveras $280,000, eighty percent of the $850,000 fair market value appraisal. At closing, the Riveras received a copy of Burchett’s appraisal. They were also provided and signed an “Acknowledgment as to Fair Market Value of Homestead Property” stating the fair market value of the property as of the closing date was $350,000. That acknowledgment, also signed by Countrywide, states the lender “has no knowledge or reason to believe that the fair market value of the Homestead Property stated in this written acknowledgment is incorrect,” as well as the lender’s acknowledgment of the $350,000 fair market value of the property as of the closing date per the appraisal evaluation. Included in the loan documents at closing was a review appraisal obtained by Countrywide and Landsafe prepared by Jeff McGregor, Jr. This appraisal indicated the $350,000 fair market value by Burchett appeared overstated and the fair market value of the property was between $261,040 and $293,580. A “Home Equity Note Texas Home Equity Security Instrument (First Lien)” was also *838 executed contemporaneously with the home equity loan.
The Riveras fell behind in their loan payments, and the property was scheduled for foreclosure by trustee’s sale in April 2006. In March 2006, while speaking with neighbor John “Patrick” Bain, Wilfredo Rivera learned Bain was an appraiser in the mortgage industry. Bain reviewed the Riveras’ loan documents and brought McGregor’s review appraisal to Wilfredo’s attention.
In their original petition, the Riveras assert common law causes of action against Countrywide, Landsafe, and Burchett for negligence, fraud, and conspiracy, seeking damages for mental anguish and out of pocket costs. 1 Additionally, the Riveras allege Countrywide violated article XVI, section 50(a)(6)(B) of the Texas Constitution by lending more than eighty percent of the fair market value of the homestead property. 2 At the time of the Riveras’ loan closing, the forfeiture provision of the home equity constitutional provision stated the lender or any holder of the note for a home equity loan
shall forfeit all principal and interest of the extension of credit if the lender or holder fails to comply with the lender’s or holder’s obligations under the extension of credit within a reasonable time after the lender or holder is notified by the borrower of the lender’s failure to comply.
Act of May 29, 2003, 78th Leg., R.S., S.J.R. No. 42, § 1, 2003 Tex. Gen. Laws 6219, 6219 (amended 2003) (current version Tex. Const, art. XVI, § 50(Q)(x)).
3
See Doody v. Ameriquest Mortgage Co.,
*839 Countrywide, Landsafe, and Burchett moved for traditional and no-evidence summary judgments. See Tex.R. Civ. P. 166a(e) and (i). Burchett moved for traditional summary judgment on the grounds that (i) limitations barred the Riveras’ common law claims and (ii) Burchett made no false representation. Burchett also moved for no-evidence summary judgment on the ground the Riveras had not sustained any damages. Countrywide and Landsafe jointly moved for traditional summary judgment on the grounds the statute of limitations barred the Riveras’ common law claims as well as the two claims against Countrywide and for a no-evidence summary judgment on the ground the Riveras had not sustained any damages. The trial judge granted Countrywide and Landsafe’s traditional and no-evidence motions for summary judgment and granted Burchett’s motion for summary judgment “in its entirety.”
Standard of Review
The standard for reviewing a traditional summary judgment is well established.
See
Tex.R. Civ. P. 166a(c);
Nixon v. Mr. Prop. Mgmt. Co.,
We review a no-evidenee summary judgment under the same legal sufficiency standard used to review a directed verdict.
See
Tex.R. Civ. P. 166a(i);
Gen. Mills Rests., Inc. v. Tex. Wings, Inc.,
Countrywide’s Statute of Limitations Affirmative Defense
In their first four issues, the Riveras assert the trial judge erred in granting Countrywide’s traditional motion for summary judgment on limitations. The River-as and Countrywide agree the four-year statute of limitations applies to the constitutional and fraudulent lien causes of action.
See
Tex. Civ. PRAC. & Rem.Code Ann. § 16.051 (Vernon 2008) (when no corresponding action expressly listed within statutes, residual four-year statute of limitations applies);
Ho v. Univ. of Tex. at Arlington,
Defendants moving for summary judgment on the affirmative defense of limitations must prove conclusively the elements of that defense.
Pustejovsky v. Rapid-American Corp.,
Neither the constitutional provision or the fraudulent lien statute define the accrual date.
See
Tex. Const, art. XVI, § 50(a)(6)(A)-(Q); Tex. Civ. PRAC. & Rem. Code Ann. § 12.002(a), (b) (Vernon Supp. 2008). Therefore, we must determine the accrual date for limitations purposes.
Holy Cross Church of God in Christ v. Wolf,
In this case, we conclude the legal injury occurred when Countrywide made a loan to the Riveras in excess of the amount allowed by law. The constitution provides that the cap on the amount of the home equity loan must not exceed eighty percent of the fair market value of the homestead “on the date the extension of credit is made.” Tex. Const, art. XVI, § 50(a)(6)(B) (emphasis added). See also Tex. Const. art. XVI, § 50(a)(6)(J) (may not accelerate home equity loan because of decrease in homestead market value). Under the constitutional amendment, when a lender makes a loan in violation of the eighty-percent cap, the borrower has a right to bring suit for forfeiture of all principal and interest resulting from the extension of credit at any time after the loan closes. Tex. Const, art XVI, § 50(Q)(x). Thus, the Riveras’ cause of action for Countrywide’s violation of the eighty-percent loan cap resulting in forfeiture of all principal and interest accrued September 28, 2001, the date of closing of the Riveras’ home equity loan.
Because the cause of action accrued September 28, 2001, the Riveras had until September 28, 2005 to file their cause of action. Nevertheless, the Riveras did not file their original petition until March 31, 2006. Under these circumstances, we cannot conclude the trial judge erred in granting Countrywide’s motion for summary judgment on limitations.
In reaching this conclusion, we reject the Riveras’ argument that the cause of action did not accrue until the “maturity date of the last note, obligation, or installment.” The Riveras claim it would be “manifestly unjust to permit a lender to force the sale of a property up to four years after the due date of the last payment (or acceleration) while limiting a borrower’s defense against such action to four years after the making of the note.” A lenders’s right to foreclose is based on a borrower’s breach of the underlying note. This is not analogous to a suit for the constitutional violation of the eighty per *841 cent cap on a home equity loan. A borrower may make payments on the note for many years, but the lender’s suit for breach of contract only accrues when the borrower fails to make a scheduled payment. The borrower’s obligations under the note are only extinguished upon the “maturity date of the last note, obligation, or installment.” In contrast, a borrower could sue a lender for a constitutional violation of the eighty percent cap on a home equity loan the day after closing on the loan.
The Riveras alternatively argue the discovery rule and the doctrine of fraudulent concealment are grounds for concluding the trial judge erred in granting summary judgment for Countrywide on limitations. To rely on the discovery rule or the doctrine of fraudulent concealment, the Riveras were required to properly plead and prove each defense to negate Countrywide’s limitations challenge.
See Via Net v. TIG Ins. Co.,
211 S.W.Sd 310, 313 (Tex.2006) (defendant’s motion for summary judgment based on limitations need not negate discovery rule unless plaintiff pleaded it);
Weaver v. Witt,
The Riveras’ Damages
Countrywide, Landsafe, and Bur-chett filed no-evidence motions for summary judgment on the Riveras’ claims for damages relating to their common law causes of action. These damages were limited to mental anguish and out of pocket expenses. The trial judge granted the summary judgment motions. In their sixth issue, the Riveras assert Countrywide, Landsafe, and Burchett “failed to establish as a matter of law that Rivera[s] did not incur damages.” We note this is an incorrect characterization of the burden upon the parties filing a no-evidence motion for summary judgment.
See Gen. Mills,
Texas Rule of Appellate Procedure 38 provides that a brief to this Court shall contain, among other things, a concise, no-nargumentative statement of the facts of the case, supported by record references, and a clear and concise argument for the contention made with appropriate citations to authorities and the record. Tex.R.App.
*842
P. 38.1. In their appellate brief, the Riv-eras have cited no record references or legal analysis in support of mental anguish damages and no legal analysis or legal authority in support of their claim for out-of-pocket expenses. Under these circumstances, we conclude the Riveras have failed to adequately brief this issue. Because the Riveras have failed to adequately brief this ground or cite to competent summary judgment evidence that would raise a fact issue on the claimed out-of-pocket expenses and mental anguish damages, they have waived their challenge to summary judgment on these damages.
See McIntyre v. Wilson,
Burchett’s Attorney’s Fees
In their seventh issue, the Riveras assert the trial judge erred in awarding attorney’s fees to Burchett. Under this issue, the Riveras claim the trial judge had “no authorities upon which to base” the award of attorney’s fees and costs. We agree.
A trial judge’s award of sanctions is reviewed under an abuse of discretion standard.
Herring v. Welborn,
In her post-judgment motion, Burchett asserted the action was groundless under section 17.50(c) of the Texas Business and Commerce Code as an additional basis for recovery of attorney’s fees.
See
Tex. Bus. & Com.Code Ann. § 17.50(c) (Vernon Supp.2008). We do not address this claim, however, because this ground of recovery was not pleaded at the time of the submission of Burchett’s motion for summary judgment.
See Akin Prods. Co. v. Bush,
We sustain the Riveras’ seventh issue. We reverse the judgment of the trial judge awarding Burchett her attorney’s fees, and judgment is rendered that Burchett take nothing on her claim for attorney’s fees.
Motion for Continuance
In their eighth issue, the Riveras contend the trial judge erred in denying their motion for continuance of the no-evidence motions for summary judgments on damages because they were not allowed adequate time to conduct discovery.
The denial of a motion for continuance is reviewed under an abuse of discretion standard.
Gen. Motors v. Gayle,
The Riveras’ original petition designated the case as level 2 for discovery purposes under Texas Rule of Civil Procedure 190.3. Under rule 190.3, the discovery period ended the earlier of thirty days before the date set for trial or nine months after the earlier of the date of the first oral deposition or the date of the first response to written discovery. See Tex.R. Civ. P. 190.3(b)(1)(B). Burchett’s and Countrywide and Landsafe’s motions for summary judgment were filed March 26 and 30, 2007, respectively.
In their motion for continuance, the Riveras asserted they were entitled to a continuance because the May 2007 trial setting was the first trial setting and depositions were scheduled in late April. The Riveras did not describe any efforts to obtain discovery prior to those deposition dates or why discovery could not be conducted in the six-month period prior to the filings of the motions for summary judgment.
5
See Risner v. McDonald’s Corp.,
Motion for New Trial
In their ninth issue, the Riveras contend the trial judge erred in denying their motion for new trial based on newly discovered evidence.
Whether a motion for new trial on the ground of newly discovered evidence will be granted or refused is generally a matter addressed to the sound discretion of the trial judge, and the trial judge’s action will not be disturbed on appeal absent an abuse of discretion.
Jackson v. Van Winkle,
The Riveras were required to satisfy the following elements to obtain a new trial based upon newly discovered evidence: (i) admissible relevant evidence introduced on the hearing for new trial demonstrating the existence of newly discovered evidence relied upon; (ii) no knowledge of such evidence until after the conclusion of the trial and that such evidence could not have been discovered pri- or to the trial with the exercise of due diligence; (iii) such evidence was not cumulative or to be used for impeachment; and, (iv) such evidence would probably produce a different result if a new trial was granted.
See Gilley v. Anthony,
The Riveras filed an unverified motion for reconsideration and new trial asserting newly discovered evidence warranted a new trial. Subsequently, the Riv-eras filed an affidavit in support of their motion. In the affidavit, the Riveras’ attorney makes conclusory statements that the evidence tendered in the motion for new trial is admissible and competent, the evidence presented was made available to him after the deadline for the Riveras to respond to motions for summary judgment, and the evidence is not merely cumulative of other evidence considered by the trial judge in ruling on the motions for summary judgment and would probably produce a different result from the trial judge’s summary judgments. The affidavit does not satisfy all necessary elements of a new trial based on newly discovered evidence. The affidavit fails to address whether the purported newly discovered evidence was known to the Riveras or how the Riveras were diligent in obtaining such evidence prior to the submission of the summary judgments.
Even assuming for the purpose of our analysis the affidavit of the Riveras’ attorney was adequate, the record reveals the Riveras failed to establish the requisite elements for a new trial based on newly discovered evidence.
The purported newly discovered evidence was excerpts of the April and May depositions of Burchett, Bain, and the Landsafe representative, and documents
*845
produced by Countrywide and Landsafe in May 2007. The burden is on the Riv-eras to show they exercised the required diligence in procuring the testimony and documents for use in responding to the summary judgments.
See Krider v. Hempftling,
Burchett’s and Countrywide and Land-safe’s motions for summary judgment were filed almost one year after the River-as’ original petition. The parties agreed to an April 27, 2007 submission date for the motions for summary judgment. On June 7, 2006, in response to the Riveras’ interrogatories, Countrywide and Landsafe indicated responsive documents would be produced at a mutually agreeable time and place. The record reflects the Riveras did not request to review those documents until April 30, 2007, over ten months later. Countrywide and Landsafe produced the documents on May 2, 2007.
The Riveras knew or could have ascertained persons cognizant of the facts prior to the submission of the motions summary for judgment. This is particularly true of the parties (Burchett, Countrywide and Landsafe) and the neighbor Bain. On February 27, 2007, the depositions of the Riveras were taken. That date, the River-as assert they first requested proposed dates for the depositions of Countrywide, Landsafe and Burchett. The record indicates the Riveras made a letter request to Burchett’s counsel for dates for Burchett’s deposition two days after Burchett’s motion for summary judgment was filed. Prior to his deposition, there is no evidence the Riveras had previously attempted to schedule the deposition of neighbor Bain. The fact the Riveras, before submission of summary judgments, knew of the existence of evidence material to their case, but did not compel the attendance of necessary witnesses or take their depositions, evidences a lack of diligence that precludes the grant of a new trial on the ground of newly discovered evidence.
See Tex. Motor Coaches v. McKinney,
Further, the purported newly discovered evidence (documents and testimony concerning disagreement with Burchett’s appraisal or testimony of Bain concerning the date the Riveras first learned of the review appraisal) is cumulative of the summary judgment evidence submitted by the Riveras, is consistent with evidence considered by the trial judge in ruling on the motions for summary judgment, and is not so material that it would probably produce a different result with regard to the summary judgments granted.
See In re Thoma,
Finally, summary judgments were granted in favor of Countrywide, Land-safe, and Burchett on damages and limitations, as well as in favor of Burchett on fraudulent misrepresentation. There was no purported newly discovered evidence relevant to the no-evidence summary judgments on plaintiff’s damages.
On the record before us, we cannot conclude the trial judge abused his discretion in denying the motion for new trial. We overrule the Riveras’ ninth issue.
We affirm the no-evidence summary judgments in favor of Countrywide, Bur-chett and Landsafe as to the Riveras’ common law cause of actions. We affirm the summary judgment in favor of Countrywide on limitations on the constitutional *846 and fraudulent lien statute cause of actions. We reverse the award of Burchett’s attorney’s fees and render judgment that Burchett take nothing on her attorney’s fees claim.
Notes
. The Riveras also alleged violations of the Texas Deceptive Trade Practices Act but later conceded they were not "consumers” under the Act. These claims are not raised on appeal.
. The Riveras did not request a declaratory judgment or permanent injunction that would stop the attempted foreclosure by Countrywide.
. In 2003, the citizens of Texas voted to amend this section. In addition to adding specific ways by which a lender or holder could cure a home equity loan's constitutional violations, the amendment changed the "reasonable time” period standard to require curing action with a more specific sixty-day period.
See Fix v. Flagstar Bank, FSB,
. We make no comment whether the discovery rule or fraudulent concealment doctrine would have applied if either had been properly asserted, nor do we address whether, under the facts of this case, a fact issue would have existed precluding summary judgment for Countrywide.
. In her April 19, 2006 answer, Burchett filed a plea in abatement due to the Riveras’ failure to provide pre-suit notice of their deceptive trade practice act claim.
See
Tex. Bus. & Com.Code Ann. § 17.505(d) (Vernon 2002). The Riveras argue the case was automatically abated for 148 days, from the filing on April 19, 2006 until Burchett waived the abatement by responding to discovery on September 26, 2006. Burchett argues she waived the abatement when she responded to the Riveras’ discovery on May 22, 2006. The record does not confirm the date Burchett’s discovery responses were served. Even assuming this matter was abated through September 26, 2006, the Riveras had seven months before submission of the no-evidence
motions
for summary judgment to conduct discovery. This factor favors the trial judge’s determination that adequate
time
for discovery had passed.
See Rest. Teams Int’l, Inc. v. MG Secs. Corp.,
. The Riveras did not request a continuance of the submission of Countrywide, Landsafe, and Burchett’s traditional motions for summary judgment. Even if the trial judge had granted a continuance with regard to the no-evidence motions under rule 166a(i), the motion for continuance did not seek to disturb submission of the traditional summary judg *844 ment motions, which were ultimately granted by the trial judge.