Court of Appeals of Texas, Fourth District, San Antonio
Everett W. GREGORY Jr. and Marcia Gregory, Appellants
BANK OF AMERICA, N.A. and Jesse R. Mendoza, Appellees
the 37th Judicial District Court, Bexar County, Texas Trial
Court No. 2014 CI 05064 Honorable Cathy Stryker, Judge
Sitting: Karen Angelini, Justice, Luz Elena D. Chapa,
Justice, Irene Rios, Justice.
Elena D. Chapa, Justice.
W. Gregory Jr. and Marcia Gregory appeal the trial
court's summary judgment on their claims against
appellees Bank of America N.A. and Jesse R. Mendoza. The
Gregorys argue they raised a fact issue regarding each
element of their cause of action for breach of contract
against Bank of America and their related claims for a
declaratory judgment, permanent injunction, and
attorney's fees. The Gregorys do not challenge the
dismissal of their cause of action under the Deceptive Trade
Practices Act (DTPA) or their claims against Mendoza. We
affirm in part, reverse in part, and remand for further
1999, the Gregorys refinanced a house they owned in San
Antonio. The Gregorys signed a deed of trust and a promissory
note to NationsBank for the amount of $85, 900. The note
required the Gregorys to make payments on the first day of
each month for fifteen years. The deed of trust provided how
the payments received by NationsBank must be applied to
interest, principal, and other amounts due. If the Gregorys
defaulted by failing to timely pay in full each month, the
note authorized NationsBank to notify the Gregorys of the
default. If the Gregorys failed to pay the overdue amount by
a certain date after their receipt of the notice, NationsBank
could accelerate the note and demand payment of the entire
balance. Bank of America is NationsBank's successor in
interest and became the holder of the note in April 1999.
Gregorys filed for bankruptcy in 2008, but continued to make
payments to Bank of America through the bankruptcy trustee.
After the Gregorys filed for bankruptcy, Bank of America
stopped accepting the Gregorys' automated payments. Bank
of America's records show Bank of America received funds
from the Gregorys in various months, but Bank of America
reversed the payments instead of applying the payments to the
Gregorys' account. In fall 2012, the Gregorys started
making payments to Bank of America over the phone, but Bank
of America also reversed some of those payments and did not
apply them to the Gregorys' account. The Gregorys
continued making payments in 2013 and 2014 by cashier's
checks drawn on the Gregorys' account at Chase Bank. Bank
of America accepted the Gregorys' cashier's checks
throughout 2013 and the first several months of 2014. Bank of
America credited some of the Gregorys' payments in 2013,
but reversed other payments.
2013, Bank of America sent the Gregorys a notice stating the
Gregorys were in default. The notice lists the payments
allegedly missed from March 2011 to July 2013. The notice
stated the Gregorys had the right to cure the default by
paying Bank of America a total of $38, 555.20. The notice
also stated that if the default was not cured "in the
full amount" by August 20, 2013, "the mortgage
payments will be accelerated with the full amount . . .
becoming due and payable in full." The Gregorys
attempted to tender payments, but Bank of America refused to
accept the payments as curing the default because the amount
paid was less than $38, 555.20.
America requested that the bankruptcy court grant it relief
from the automatic stay. After the request was granted, the
Gregorys filed suit to enjoin Bank of America from
foreclosing on the house. The trial court issued a
preliminary injunction, finding there was a substantial
probability that Bank of America would foreclose on the house
"when there is no default sufficient to justify
foreclosure." The Gregorys also sued Bank of America for
breach of contract and violating the DTPA. The Gregorys
sought damages, a declaratory judgment, a permanent
injunction, and attorney's fees. The Gregorys named Jesse
Mendoza, a Bank of America employee, as a defendant and
alleged he defamed Marcia Gregory and was "verbally
rough" with her, but Mendoza was never served.
America filed a traditional and no-evidence motion for
summary judgment. Bank of America argued its evidence
conclusively established it did not breach the deed of trust
or the note. In support of its traditional ground, Bank of
America relied on the loan documents, the default notice,
Everett Gregory Jr.'s deposition, bankruptcy filings, and
a "bankruptcy plan ledger." Although Bank of
America also attached a business records affidavit to its
motion, the affidavit does not explain the transaction codes
contained in the bankruptcy plan ledger. Bank of America
further argued the Gregorys had no evidence of any element of
their cause of action for breach of contract. Bank of
America's motion also challenged the Gregorys' cause
of action under the DTPA, and requested summary judgment on
the Gregorys' claims for a declaratory judgment,
permanent injunction, and attorney's fees because the
Gregorys did not have a valid, underlying cause of action to
support the requested relief.
Gregorys filed a response and produced an affidavit from
Everett Gregory Jr., Bank of America's records showing
the transaction history for the Gregorys' account, and
copies of the fronts and backs of cashier's checks made
payable to, and accepted and cashed by, Bank of America
beginning in January 2013 through April 2014. The trial court
granted Bank of America's motion and dismissed all of the
Gregorys' claims. The Gregorys appeal.
review a summary judgment de novo." City of San
Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561
(Tex. App.-San Antonio 2000, pet. denied). To prevail on a
traditional motion for summary judgment, the movant must show
"there is no genuine issue as to any material fact and
the [movant] is entitled to judgment as a matter of
law." Tex.R.Civ.P. 166a(c); accord Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).
"When a party moves for a no-evidence summary judgment,
the nonmovant must produce some evidence raising a genuine
issue of material fact." Romo v. Tex. Dep't of
Transp., 48 S.W.3d 265, 269 (Tex. App.-San Antonio 2001,
no pet.) (citing Tex.R.Civ.P. 166a(i)). The nonmovant does
not have the burden to marshal its evidence, but it must
produce some evidence that raises a fact issue on the
challenged element. See id. We take as true all
evidence favorable to the nonmovant, resolve all conflicts in
the evidence in the non-movants' favor, and "indulge
every reasonable inference and resolve any doubts in the
nonmovant's favor." Rhône-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 223 (Tex. 1999); see City of
San Antonio, 47 S.W.3d at 561.
& Claims against Mendoza
Gregorys do not argue the trial court erred by rendering
summary judgment on their DTPA cause of action or on their
claims against Mendoza. We must refrain from deciding cases
on issues not raised by the parties. See W. Steel Co. v.
Altenburg, 206 S.W.3d 121, 124 (Tex. 2006) (per curiam).
We therefore affirm the trial court's judgment as to the
Gregorys' DTPA cause of action and their claims against
America raised several grounds for summary judgment on the
Gregorys' cause of action for breach of contract. Because
the trial court did not specify the grounds for granting
summary judgment, we must affirm if any grounds advanced in
Bank of America's motion are meritorious. See FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868,
872 (Tex. 2000). Bank of America argued in its summary
judgment motion that its evidence conclusively established it
did not breach the deed of trust or the note and the Gregorys
have no evidence of any element of their cause of action for
breach of contract. The elements of breach of contract are:
"(1) 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." Richter v. Wagner Oil Co., 90
S.W.3d 890, 898 (Tex. App.-San Antonio 2002, no pet.). The
Gregorys argue they raised a fact issue as to each element of
their breach of contract claim and established Bank of
America is not entitled to judgment as a matter of law.
covenants in a deed of trust and a promissory note are
contractual. See Williams v. Durst's Adm'x,
35 Tex. 421, 423 (1871); Jim Maddox Props., LLC v. WEM
Equity Capital Invs., Ltd., 446 S.W.3d 126, 132 (Tex.
App.-Houston [1st Dist.] 2014, no pet.). The parties agreed
to the covenants contained in the deed of trust and the
promissory note in 2009, and the Gregorys allege they are
suing Bank of America for breaching those agreements. Bank of
America does not argue on appeal why the deed of trust or the
note is not a valid contract. We hold Bank of America's
no-evidence ground as to the "valid contract"
element of the Gregorys' cause of action does not support
the trial court's summary judgment.
Performance or Tendered Performance
plaintiff alleging a breach of contract must show it
performed or tendered performance under the contract.
Richter, 90 S.W.3d at 898. "A tender is an
unconditional offer by a debtor to pay another a sum not less
in amount than that due on a specified debt." Jensen
v. Covington, 234 S.W.3d 198, 206 (Tex. App.-Waco 2007,
pet. denied). "Prevention of performance by one party
excuses performance by the other party, both of conditions
precedent to performance and of promise." Dorsett v.
Cross, 106 S.W.3d 213, 217 (Tex. App.-Houston [1st
Dist.] 2003, pet. denied). "When the obligation of a
party to a contract depends upon a certain condition's
being performed, and the fulfillment of the condition is
prevented by the act of the other party, the condition is
considered fulfilled." Id.; see
Jensen, 234 S.W.3d at 206 ("[A] formal tender is
excused where the creditor has indicated he is unwilling to
accept what is due in discharge of the debt.").
America did not challenge this element in its traditional
motion for summary judgment or argue the evidence
conclusively establishes the Gregorys failed to perform or
tender performance. Instead, Bank of America asserted the
Gregorys had no evidence showing they performed or tendered
performance. Bank of America also argues the Gregorys did not
perform because they missed several payments and failed to
pay $38, 555.20 to cure the default. The promissory note
required the Gregorys to make monthly payments at a specified
NationsBank location in San Antonio "or at a ...