Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/22/2015 4:50:02 PM JEFFREY D. KYLE Clerk No. 03-15-00020-CV THIRD COURT OF APPEALS 6/22/2015 4:50:02 PM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00020-CV *1 ACCEPTED [5775876] CLERK ______________________________________________________
IN THE COURT OF APPEALS OF TEXAS THIRD DISTRICT, AUSTIN ______________________________________________________
JAMES V. LONG, Appellant, vs.
SOUTHWEST FUNDING LP, et al., Appellees.
______________________________________________________
On Appeal from the 126 th Judicial District Court Travis County, Texas Trial Court Cause No. D-1-GN-10-003483 ______________________________________________________
APPELLEE SOUTHWEST FUNDING L.P.’S BRIEF Brian P. Casey State Bar No. 00793476 Douglas G. Dent State Bar No. 24078062 6836 Bee Caves, Bldg. 3, Suite 303 Austin, Texas 78746 Tel.: 512-617-6409 Fax: 888-530-9616 bcasey@caseylawtx.com ddent@caseylawtx.com ATTORNEYS FOR APPELLEE SOUTHWEST FUNDING, L.P.
TABLE OF CONTENTS TABLE OF CONTENTS ........................................................................................ 2
INDEX OF AUTHORITIES .................................................................................. 3
I. STATEMENT ON ORAL ARGUMENT ......................................................... 4
II. RESTATED ISSUE PRESENTED .................................................................. 4
III. ADOPTION AND JOINDER ......................................................................... 4
IV. STATEMENT OF FACTS .............................................................................. 4
V. SUMMARY OF ADDITIONAL ARGUMENT ............................................. 5
VI. ARGUMENT AND AUTHORITIES .............................................................. 5
VII. CONCLUSION ................................................................................................ 7
INDEX OF AUTHORITIES Cases
Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005)……………..5
Carr v. Brasher , 776 S.W.2d 567, 569 (Tex. 1989)………………………………..5
Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013)………………..5
Lockett v. HB Zackry Co. , 285 S.W.3d 63, 72 (Tex.App. – Houston [1 st Dist.]
2009, no pet.)………………………………………………………………...6
McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 343 (Tex. 1993)……..6
I. STATEMENT ON ORAL ARGUMENT Appellee Southwest Funding does not request oral argument and does not
believe that oral argument is necessary to address the issues raised by this appeal.
II. RESTATED ISSUE PRESENTED Issue No. 1: Whether the trial court erred in granting summary judgment in favor
of Appellees. [1]
III. ADOPTION AND JOINDER Appellee Southwest Funding, L.P. hereby joins, adopts and incorporates by
reference all statements and arguments contained in Appellees IndyMac Mortgage
Services, OneWest Bank, FSB and Deutsche Bank National Trust Co.’s brief filed
with this Court on June 22, 2015.
IV. STATEMENT OF FACTS [2] Southwest Funding, L.P. (“Southwest Funding”) was not a party to the
underlying foreclosure proceeding. The Deutsche Bank defendants filed their
motion for summary judgment with the trial court on November 12, 2013. [3] The
trial court granted the Deutsche Bank defendants’ motion on January 21, 2014. [4]
Southwest Funding joined in the Deutsche Bank defendants’ motion on December
*5 23, 2013. [5] Appellant did not file any response to Southwest Funding’s joinder. [6]
On October 9, 2014, the trial court granted Southwest Funding’s motion for
summary judgment. [7]
V. SUMMARY OF ADDITIONAL ARGUMENT The trial court did not err in granting summary judgment against Appellant
and in favor of Appellee Southwest Funding, L.P. on Appellant’s TILA claim.
Appellant failed to respond to Southwest Funding’s motion for summary judgment,
and therefore, Appellant may not challenge the factual evidence on appeal.
VI. ARGUMENT AND AUTHORITIES On appeal, a trial court’s summary judgment is reviewed de novo. [8] When
the trial court’s order granting summary judgment does not specify the grounds on
which the court relied for its ruling, summary judgment will be affirmed on appeal
if any theories advanced are meritorious. [9] When an appellant fails to challenge a
ground on which a trial court may have granted summary judgment—either
properly or improperly, then summary judgment must be affirmed. [10]
Southwest Funding’s joinder in the other Appellees’ motion for summary
judgment before the trial court was appropriate, as Texas courts recognize the
*6 adoption of a co-party’s motion for summary judgment as a legitimate procedural
practice. [11] However, Appellant’s failure to respond to Southwest Funding’s
motion is fatal to this appeal.
A non-movant must present to the trial court, by written answer or response,
any issues defeating the movant’s entitlement to summary judgment. [12] The effect
of a failure by a non-movant to raise an issue is that the non-movant is limited on
appeal to arguing the legal sufficiency of the grounds presented by the movant. [13]
Following Southwest Funding’s filing of its joinder in the Deutsche Bank
defendants’ motion for summary judgment, Appellant failed to file any response.
Appellant even failed to appear at the hearing on Southwest Funding’s request for
summary judgment. As a result of these failures, Appellant’s appellate issues with
respect to Southwest Funding are limited. Appellant may not raise any issue
regarding a genuine issue of material fact because Appellant failed to make such
argument before the trial court.
The trial court found that Southwest Funding was entitled to summary
judgment as a matter of law. The arguments set forth by Appellant on appeal are
factual in nature and do not address the legal sufficiency of Southwest Funding’s
summary judgment. Because Appellant failed to raise any fact issues in response
*7 to Southwest Funding’s motion for summary judgment before the trial court,
Appellant may not now raise such issues. Accordingly, the trial court’s summary
judgment must be affirmed.
VII. CONCLUSION For the foregoing reasons, Appellee Southwest Funding, L.P. respectfully
requests that this Court and affirm the Trial Court’s judgment, and grant such other
relief to which Appellee may be entitled.
Respectfully submitted, By: /s/ Brian P. Casey Brian P. Casey State Bar No. 00793476 Douglas G. Dent State Bar No. 24078062 6836 Bee Caves, Bldg. 3, Suite 303 Austin, Texas 78746 Tel.: 512-617-6409 Fax: 888-530-9616 bcasey@caseylawtx.com ddent@caseylawtx.com *8 Certificate of Service Pursuant to Tex. R. App. P. 9.5, I hereby certify that on June 22, 2015, I
served the foregoing document via e-file or facsimile on the following persons:
James D. Pierce
1 Sugar Creek Center 1080
Sugar Land, Texas 77478
jim@jamespierce.com
Bradley E. McLain
Daniel P. Tobin
J. Garth Fennegan
SettlePou
3333 Lee Parkway, Eighth Floor
Dallas, Texas 75219
Fax: 214-526-4145
/s/ Brian P. Casey Brian P. Casey Certificate of Compliance Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document contains
1,083 words.
/s/ Brian P. Casey Brian P. Casey
[1] Appellant does not challenge the trial court’s granting of summary judgment against
[2] Because Southwest Funding joins and adopts the other arguments and statements in co- Appellees’ brief, this Statement of Facts includes only additional facts necessary to Southwest Funding’s additional argument set forth below.
[3] CR 182.
[4] CR 350.
[5] CR 316.
[6] Appellant’s summary judgment response to the Deutsche Bank defendants’ motion (CR 255) does not address Southwest Funding’s request for summary judgment.
[7] CR 363.
[8] Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005).
[9] Carr v. Brasher , 776 S.W.2d 567, 569 (Tex. 1989).
[10] Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013).
[11] Lockett v. HB Zackry Co. , 285 S.W.3d 63, 72 (Tex.App. – Houston [1 st Dist.] 2009, no pet.)
[12] McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 343 (Tex. 1993).
[13] Id.