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holding that because putative husband did not provide the underlying facts to support his assertion that he and another person were informally married, his assertion was conclusory and not competent summary judgment evidence
Summary of this case from Oliver Commc'ns Grp., Inc. v. Schneider Elec. Bldgs. Americas, Inc.Opinion
NO. 02-17-00354-CV
05-31-2018
KELLIE D. RIDER AND SAMUEL RIDER APPELLANTS v. 21 ST MORTGAGE CORPORATION AND BOS HOME, LLC APPELLEES
FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 348-286331-16 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellants Kellie D. Rider and Samuel Rider appeal from the trial court's summary judgments in favor of appellees 21st Mortgage Corporation and BOS Home, LLC in the Riders' wrongful-foreclosure suit. We dismiss Kellie's appeal based on her failure to file a brief challenging the trial court's summary judgment entered against her. See Tex. R. App. P. 43.2(f). We affirm the trial court's summary judgment as to Samuel because he failed to raise a genuine, material fact issue on the jurisdictional issue of standing. See Tex. R. App. P. 43.2(a).
In 2002, Kellie, Samuel, Dale Rider, and Beverly Rider signed a deed of trust to secure Samuel and Dale's note to buy a residential property in Haslet, Texas (the loan agreement). In June 2014, 21st Mortgage—the assignee of the loan agreement's beneficiary—filed a declaratory-judgment action against Kellie, Samuel, and Dale in the 96th District Court seeking enforcement of its foreclosure rights under the loan agreement (21st Mortgage's suit). In December 2014, Samuel and Kellie divorced, and the divorce court awarded Kellie the Haslet property as her separate property. In the decree, the divorce court specifically ordered that Samuel was "divested of (loses) all right, title, interest and claim in and to that property." Further, the decree provided that it was "a muniment of title to transfer ownership of all property awarded to any party."
On March 27, 2015, the trial court in 21st Mortgage's suit rendered final judgment in favor of 21st Mortgage, concluding that 21st Mortgage had a valid lien against the Haslet property and authorizing it to conduct a nonjudicial foreclosure sale. The trial court dismissed 21st Mortgage's claims against Samuel without prejudice at 21st Mortgage's request. No party appealed the judgment in 21st Mortgage's suit.
Kellie attempted to stop the foreclosure sale by filing two suits in two separate trial courts—the 342nd District Court and the 96th District Court— against 21st Mortgage and other financial entities involved in servicing the loan agreement (Kellie #1 and Kellie #2). Samuel intervened in Kellie #2 based on his alleged status as a "named mortgagee," "an owner," and a "fractional owner." But the foreclosure sale occurred on February 2, 2016, and BOS Home was the successful bidder. BOS Home filed a forcible-entry-and-detainer action, seeking to evict all residents of the Haslet property, and obtained a writ of possession. In the 348th District Court, Kellie filed a third suit against 21st Mortgage and BOS Home to stop execution of the writ of possession and raised wrongful-foreclosure claims (Kellie #3). Samuel intervened in Kellie #3 on the same bases he raised in Kellie #2. Kellie, Samuel, and their daughter also filed multiple bankruptcy actions in an attempt to avoid the effect of the judgment in 21st Mortgage's suit and the writ of possession. The bankruptcy courts dismissed each of their petitions.
On January 24, 2017, the trial court dismissed Kellie's claims in Kellie #1 based on res judicata and collateral estoppel. The trial court further imposed sanctions against Kellie because her claims were brought in bad faith. Kellie did not appeal. On June 15, 2017, in Kellie #2, the trial court granted summary judgment in favor of 21st Mortgage and dismissed Kellie's and Samuel's claims with prejudice. Their appeal of the judgment in Kellie #2 is pending in our sister court. See Rider v. 21st Mortg. Corp., No. 07-17-00389-CV (Tex. App.—Amarillo).
In Kellie #3, both 21st Mortgage and BOS Home moved for judgment as a matter of law on Kellie's claims against them. The trial court granted summary judgment in favor of 21st Mortgage and BOS Home, dismissing Kellie's claims on the bases of res judicata and collateral estoppel.
In separate motions, 21st Mortgage and BOS Home sought traditional summary judgment on Samuel's claims in intervention in Kellie #3 based on several grounds, including that the trial court lacked subject-matter jurisdiction over Samuel's claims because he had no standing nor did he have a justiciable interest in the Haslet property. Samuel responded to the motions and asserted that he had standing and a justiciable interest because he and Kellie "subsequently reconciled [and] entered into an informal or common law marriage, and Samuel moved back into the Property." In support of this allegation, he attached his unsworn declaration in which he declared under penalty of perjury that he and Kellie reconciled on May 1, 2015—after the trial court's final judgment in the 21st Mortgage suit—and that he "claimed the Property as [his] homestead" based on his and Kellie's belief they were "informally married." See generally Tex. Civ. Prac. & Rem. Code Ann. § 132.001 (West Supp. 2017) (setting out requirements for unsworn declaration to be used in lieu of sworn statement). Kellie's declaration, which was also attached to Samuel's response, merely averred that each statement in Samuel's declaration "is true and correct and within my personal knowledge." Samuel additionally responded that the divorce decree did not "divest [him] of his obligation under the Note and Deed of Trust"; therefore, his interest in the Property "persisted" even after the decree. In support, Samuel pointed to a tax form he received from 21st Mortgage that informed him to report as income the debt cancellation on the Haslet property. On the form, 21st Mortgage had checked that Samuel was "personally liable for repayment of the debt."
The trial court granted both summary-judgment motions, specifying that it did not have subject-matter jurisdiction based on Samuel's lack of "standing or a justiciable interest to bring the claims in question." Kellie and Samuel filed a motion for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c).
Kellie and Samuel both noticed their intent to appeal the trial court's summary-judgment orders in Kellie #3, and both were listed as appellants on the designation of the clerk's record. But counsel for Kellie and Samuel filed an appellate brief only on Samuel's behalf and raised issues applicable solely to Samuel. And Samuel seemed to assert in his brief that he was the only party who filed a notice of appeal from the summary-judgment orders in Kellie #3. 21st Mortgage and BOS Home followed suit and did not address Kellie's claims in their briefs, concluding that Kellie "is not an appellant in this appeal." We notified the parties that we would dismiss Kellie's appeal based on her failure to file a brief unless Kellie reasonably explained the failure. See Tex. R. App. 38.8(a)(1), 44.3. Kellie did not respond to our notice; therefore, we dismiss Kellie's appeal for want of prosecution. See Tex. R. App. P. 38.8(a)(1), 42.3(b), 43.2(f), 44.3.
Samuel asserts in a sole appellate issue that the trial court erred by concluding that he had no standing in Kellie #3 or justiciable interest in the property and, therefore, by dismissing his claims in intervention for want of subject-matter jurisdiction. Because the trial court's summary-judgment order was specifically limited to Samuel's lack of standing or a justiciable interest, we will focus on those two grounds in our review of the summary judgment against Samuel. See Cates, 927 S.W.2d at 625-26. Our review is de novo, considering the evidence presented in the light most favorable to the nonmovant to determine whether there is a genuine issue as to any material fact precluding judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Buck v. Palmer, 381 S.W.3d 525, 527 (Tex. 2012). Both standing and a justiciable interest are components of a trial court's subject-matter jurisdiction, which are appropriately raised in a summary-judgment motion. See Alamo Heights ISD v. Clark, No. 16-0244, 2018 WL 1692367, at *7 (Tex. Apr. 6, 2018); Heckman v. Williamson Cty., 369 S.W.3d 137, 162 (Tex. 2012); Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Initially, 21st Mortgage and BOS Home carried the burden to conclusively negate Samuel's claims by establishing that the trial court lacked subject-matter jurisdiction. See Clark, 2018 WL 1692367, at *7. If they did so, Samuel was then required to proffer competent, controverting evidence that raised a genuine, material fact regarding the jurisdictional issue. See id.
We recognize that the parties' appellate arguments directed to 21st Mortgage's and BOS Homes' other summary-judgment grounds allow this court to address these other grounds in the interest of judicial economy even though the trial court did not rule on them. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); FinServ Cas. Corp. v. Transamerica Life Ins. Co., 523 S.W.3d 129, 150-51 (Tex. App.—Houston [14th Dist.] 2016, pets. denied); St. John Backhoe Serv. v. Vieth, No. 02-15-00098-CV, 2016 WL 4141026, at *7-8 (Tex. App.—Fort Worth Aug. 4, 2016, no pet.) (mem. op.). But because one ground upon which the trial court expressly relied was meritorious, we need not go further in order to affirm the trial court's summary-judgment order. See Westchester Fire Ins. Co. v. Admiral Ins. Co., 152 S.W.3d 172, 178 (Tex. App.—Fort Worth 2004, pet. denied) (en banc op. on reh'g).
We conclude that Samuel failed to carry his summary-judgment burden to raise a genuine fact issue through competent summary-judgment evidence regarding his standing to raise his intervention claims, all of which involved the foreclosure and sale of the Haslet property. Samuel's bare declaration (and Kellie's assertion that Samuel's declaration was "true and correct") that he and Kellie were "informally married" as of their May 1, 2016 reconciliation did not provide the underlying facts to support this assertion; therefore, it was conclusory, not readily controvertible, and not competent summary-judgment evidence. See, e.g., Edwards v. Fed. Nat'l Mortg. Ass'n, No. 08-16-00136-CV, 2017 WL 4161689, at *6 (Tex. App.—El Paso Sept. 20, 2017, pet. denied); Long v. Sw. Funding, L.P., No. 03-15-00020-CV, 2017 WL 672445, at *7 (Tex. App.—Austin Feb. 16, 2017, no pet.) (mem. op.); VSR Fin. Servs., Inc. v. McLendon, 409 S.W.3d 817, 825 (Tex. App.—Dallas 2013, no pet.). See generally Tex. Fam. Code Ann. § 2.401(a) (West 2006) (delineating proof required to establish informal marriage). As BOS Home argued in its brief,
Samuel . . . presented no evidence on the issue of the informal marriage other than his self-serving "declaration" that was unsupported by any corroboration from any person outside the
alleged informal marriage. There were no jointly filed tax returns, no statements from persons stating they held themselves out as husband and wife, no written agreement to be married; Zip, Zero, Nada.
Samuel also asserted that he was still obligated under the loan agreement as evidenced by the tax form 21st Mortgage issued to him after the foreclosure sale. But the divorce decree completely divested Samuel of any property interest in the Haslet property even though he was a named borrower under the loan agreement. Cf. Olmstead v. Napoli, 383 S.W.3d 650, 652-53 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding divorce decree divested wife of all interest as beneficiary of husband's IRA and, therefore, wife not entitled to its proceeds). The tax form 21st Century sent to Samuel could not revive a property right he had been divested of in a final judgment. Cf. Diedrich v. Comm'r of I.R.S., 457 U.S. 191, 194-95 (1982) (holding substance of transaction controls over form in determining whether taxable income was realized); S.E.C. v. Wyly, 56 F. Supp. 3d 394, 409-10 (S.D.N.Y. 2014) (recognizing substance controls over form of transaction in interpreting federal tax law and stating form is not controlling for tax purposes when facts are to the contrary); United States v. Campbell, 704 F. Supp. 715, 726 (N.D. Tex. 1988) ("The courts need not give tax effect to the form in which the parties cast their transactions if that form does not coincide with economic reality."), aff'd as modified, 897 F.2d 1317 (5th Cir. 1990).
We note that this form, presumably issued after the foreclosure sale and after Kellie's and Samuel's alleged reconciliation, was sent to Samuel at an address in Newark, Texas, not Haslet.
Samuel also asserted that when he reconciled with Kellie after the divorce decree divested him of his interest in the Haslet property, he created a new homestead right in the Haslet property. But to establish a homestead, a claimant must show a concurrent intent to claim the property as a homestead as well as overt acts of homestead usage. See Denmon v. Atlas Leasing, L.L.C., 285 S.W.3d 591, 595 (Tex. App.—Dallas 2009, no pet.). Again, Samuel's summary-judgment proof is conclusory regarding his asserted homestead claim, amounting to nothing more than his self-serving statement that he "had and [has] claimed the Property as [his] homestead." See Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994); cf. Am. Petrofina Co. of Tex. v. Crump Bus. Forms, Inc., 597 S.W.2d 467, 471 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.) ("Statements that the witnesses did not agree or conspire are not readily controvertible statements, and thus, do not satisfy the requirements of [the summary-judgment] rule . . . .").
In his declaration, Samuel listed an address in Arlington as his home address, not the Haslet address.
Because Samuel failed to raise a genuine issue of material fact regarding his standing to challenge the foreclosure and the execution of the writ of possession as to the Haslet property, 21st Mortgage and BOS Home were entitled to summary judgment on his intervention claims based on the foreclosure and sale of the Haslet property. We overrule Samuel's issue and affirm the trial court's summary-judgment order dismissing Samuel's claims.
We need not address the separate but related issue of justiciable interest. See Tex. R. App. P. 47.1.
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: SUDDERTH, C.J.; MEIER and GABRIEL, JJ. DELIVERED: May 31, 2018