Texas Judiciary Online - HTML Opinion

^{^[1]} Despite the previous merger of = Banc One=20 Texas Leasing Corp. into Banc One Acceptance Corp., the petition = showed=20 Banc One Texas Leasing Corp. as one of the plaintiffs. The = trial=20 court later allowed Banc One Acceptance Corp. to be = substituted for=20 Banc One Texas Leasing Corp.

^{^[2]} An original motion for summary judgment = was filed=20 by Bank One, N.A. and Bank One Texas Leasing Corp., although Bank = One=20 Texas Leasing Corp. had merged into Banc One Acceptance = Corp. On May=20 14, 2003, the trial court entered an order granting summary=20 judgment. Tello appealed the summary judgment to this court = under=20 case number 14‑03‑00644‑CV. We dismissed = the appeal on the ground=20 the summary judgment was not final because it did not dispose of = Bank One=20 Texas Leasing Corp.=3Ds claims. See Tello v. = Bank One,=20 N.A., 138 S.W.3d 533 (Tex. App.CHouston [14th Dist.] 2004, no = pet.). Bank=20 One, N.A. and Banc One Acceptance Corp. then filed a supplemental = petition=20 and supplemental motion for summary judgment to clarify the issues = concerning their identities. They presented proof that Banc = One=20 Acceptance Corp. is the current lessor/owner by virtue of = its merger=20 with Bank One Texas Leasing Corp. In the First Amended = Summary=20 Judgment, the trial court allowed Banc One Acceptance Corp. to be=20 substituted for Banc One Texas Leasing Corp. and then granted = summary=20 judgment in favor of Bank One, N.A. and Banc One Acceptance=20 Corp.

^{^[3]} Now that we have clarified the = correct=20 names of the Bank entities who are parties to this suit, we will = refer to=20 the appellees, Bank One, N.A. and Banc One Acceptance Corp., = collectively=20 as Athe Bank,@ except where necessary to refer to them = separately.

^{^[4]} Pertinent pleadings, including = the original=20 motion for summary judgment and Tello=3Ds response, are not included in the = appellate=20 record for this cause number. However, they are included in = the=20 record for the appeal from original summary judgment. = Accordingly,=20 we have taken judicial notice of that record.

^{^[5]} The Bank did not specify whether = the part=20 of its motion opposing Tello=3Ds counterclaims was a traditional motion = or a=20 Ano-evidence@ motion. Compare Tex. R. Civ. P. 166a(c) = with Tex. R. Civ. = P.=20 166a(i). At times, the Bank used language applicable = to a=20 traditional motion; but at other times, the Bank generally = asserted that=20 Tello has Ano evidence@ to support his various claims or = factual=20 allegations. However, the motion did not Astate the elements as to which there is = no=20 evidence@ as required by Rule 166a(i). = See=20 Tex. R. Civ. P.=20 166a(i). Because the motion did not unambiguously = state it=20 was filed under Rule 166a(i) and did not strictly comply with that = rule,=20 we construe it as a traditional motion. See Adams v. = Reynolds=20 Tile & Flooring, Inc., 120 S.W.3d 417, 420 (Tex. = App.CHouston [14th Dist.] 2003, no=20 pet.).

^{^[6]} We note that the evidence = indicates that=20 only one of the Bank entities, Banc One Acceptance Corp., is the = lessor of=20 the vehicle. The evidence shows Bank One, N.A. is a = lienholder on=20 the vehicle, but does not show this lien secures the indebtedness = that is=20 the subject of the lease at issue or how being a lienholder = entitled Bank=20 One, N.A. to recover under the lease. Nevertheless, on = appeal, Tello=20 does not argue that both Bank entities failed to prove the initial = elements of their breach of contract claim.

^{^[7]} Tello also pleaded counterclaims = for=20 common-law fraud and breach of contract. However, on appeal, = he=20 presents no issue or argument challenging the summary judgment on = those=20 counterclaims. Therefore, he has waived any challenge to the = summary=20 judgment on those counterclaims. See Jacobs v.=20 Satterwhite, 65 S.W.3d 653, 655B56 (Tex. 2001) (recognizing appellate = court may=20 not reverse summary judgment on a particular claim when appellant = fails to=20 challenge summary judgment on that claim).

^{^[8]} The Bank representative made = these=20 averments with respect to Bank One, N.A. and Banc One Texas = Leasing Corp.,=20 although Banc One Texas Leasing Corp. had already merged with Banc = One=20 Acceptance Corp. However, the Bank entities presented proof = in their=20 supplemental motion for summary judgment that Banc One Acceptance = Corp.=20 became the lessor and owner of the vehicle by virtue of its merger = with=20 Banc One Texas Leasing Corp. Therefore, the averments = concerning=20 Banc One Texas Leasing Corp. necessarily apply equally to Banc One = Acceptance Corp.

^{^[9]} The Bank=3Ds motion did not specifically address = the DTPA=20 counterclaim, although it addressed the factual allegation forming = the=20 basis of the counterclaim. See Black v. Victoria = Lloyds=20 Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (stating defendant = moving for=20 summary judgment on ground there is no genuine issue of material = fact on=20 essential element of plaintiff=3Ds claim must identify or address the = claim and its=20 elements). However, on appeal, Tello does not challenge the = summary=20 judgment on his DTPA counterclaim on the ground that the = Bank=3Ds motion was deficient or the trial = court granted=20 more relief than requested. See Beathard Joint = Venture v.=20 W. Houston Airport Corp., 72 S.W.3d 426, 436 (Tex. = App.CTexarkana 2002, no pet.) (recognizing = appellant=20 must raise an issue on appeal that excess relief was improperly = granted in=20 summary judgment order); Toonen v. United Servs. Auto.=20 Ass=3Dn., 935=20 S.W.2d 937, 942 (Tex. App.CSan Antonio 1996, no writ) (same). = Instead,=20 he suggests there was a fact issue on the = counterclaim.

^{^[10]} In his response to the motion for = summary=20 judgment, Tello repeated the same general statement to address = each=20 counterclaim (as well as each affirmative defense). He = merely stated=20 that Aa genuine issue of material fact exists = as to=20 [counterclaim/affirmative defense]@ and referred to his attached evidence = and =20 pleadings.

^{^[11]} Tello also pleaded the = affirmative defense=20 of failure of consideration. However, in his appellate = brief, he=20 presents no issue or argument addressing this defense. = Therefore, he=20 has waived any contention that the evidence raised a genuine issue = of=20 material fact on this defense sufficient to defeat summary = judgment.=20 See Jacobs, 65 S.W.3d at 655B56.

^{^[12]} Contrary to our dissenting=20 colleague=3Ds suggestion, the inadequacy in = Tello=3Ds brief with respect to this issue is = not just a=20 lack of Awell-organized and sharply focused=20 writing,@ but a failure to advance any = substantive analysis=20 and cite any authority or evidence to inform us why he was = allegedly=20 entitled to offset the Bank=3Ds damages or otherwise defeat the = summary judgment=20 based on his return of the vehicle to Randall Reed Ford. = Moreover,=20 the dissent would reverse the summary judgment because the Bank = omitted=20 the back of the lease from its summary judgment evidence and a = missing=20 provision may address the effect of Tello=3Ds return of the vehicle to Randall Reed = Ford on=20 his liability to the Bank or the amount of its damages. = However,=20 Tello does not complain that the back of the lease was omitted, = much less=20 assert that any missing provisions may address his return of the=20 vehicle. The fact that the dissent advocates reversal on = this basis,=20 when Tello makes no such argument, merely accentuates that his = contention=20 is inadequately briefed.

^{^[13]} In addition, the requirement that = issues be=20 expressly presented by written answer or response refers to an = answer or=20 response to the motion for summary judgment, not to the = pleadings. =20 See Wheeler v. Security State Bank, N.A., 159 S.W.3d 754, = 756 n.2=20 (Tex. App.CTexarkana 2005, no pet.) (citing = Clear=20 Creek, 589 S.W.2d at 673).

^{^[14]} Our dissenting colleague = advocates reversal=20 because the Bank=3Ds own evidence is insufficient to = support the=20 damages awarded, and the dissent then calculates the damages = purportedly=20 supported by its evidence. However, Tello makes no such = argument=20 challenging the sufficiency of the Bank=3Ds motion and evidence. The dissent = seems to=20 interpret the following statement in Tello=3Ds brief as raising this argument: =20 AThe motion for summary judgment and its = supporting=20 evidence must show there is no genuine issue of a material fact = and that=20 the movant is entitled to judgment as a matter of law.@ We cannot construe this single = reference to=20 the general standard applicable to every summary judgment motion, = without=20 any argument concerning, or reference to, the Bank=3Ds evidence in this case, as an adequate = argument=20 challenging the sufficiency of the Bank=3Ds motion and evidence to support the = damages=20 awarded.

^{^[15]} The dissent also asserts that = Tello was not=20 required to raise the issue regarding his return of the vehicle in = his=20 summary judgment response because he is attacking the = conclusiveness of=20 the Bank=3Ds motion and evidence. As we have = noted,=20 Tello has not adequately presented an argument attacking the=20 conclusiveness of the Bank=3Ds motion and evidence. But, even = if he had,=20 that would be a separate issue than his contention he should = nonetheless=20 defeat summary judgment based on his own affidavit showing he = returned the=20 vehicle. The fact that the dissent (and Tello) must refer to = Tello=3Ds own evidence attached to his = response=20 when urging reversal based on his return of the vehicle shows that = his=20 contention is not an attack on the conclusiveness of the=20 Bank=3Ds motion=20 and evidence. Finally, we disagree with the = dissent=3Ds suggestion that, because an omitted = provision on=20 the back of the lease may address the effect of Tello=3Ds return of the vehicle, his contention = is merely=20 an attack on the conclusiveness of the Bank=3Ds motion and evidence. Even if the = Bank had=20 attached all the provisions and a missing provision addressed the = effect,=20 if any, of Tello=3Ds return of the vehicle, such provision = would have=20 been inconsequential unless Tello Aexpressly@ presented to the trial court his = contention=20 that return of the vehicle should affect the Bank=3Ds entitlement to summary=20 = judgment.