Court of Appeals of Texas, Third District, Austin
THE 340TH DISTRICT COURT OF TOM GREEN COUNTY NO. C130102C,
THE HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana.
D. Triana, Justice.
dispute concerning the constitutionality of a loan on real
property, Appellant Ben Melton challenges the district
court's grant of summary judgment in favor of Appellees.
We will affirm the judgment in part and reverse and remand in
part for a determination of attorney's fees.
1997, Melton purchased a leasehold estate interest from the
City of San Angelo for a property on Lake Nasworthy. The
leasehold is Melton's homestead. Melton makes annual
payments under the terms of the lease, which ends in
September 2036. On March 13, 2009, Melton refinanced an
existing note on the property by taking out a home equity
loan from Colonial. To effectuate the loan, Melton signed a
Texas Home Equity Note (Note) and a Texas Home Equity
Security Instrument (collectively, the loan documents)
securing a $223, 648 lien on the leasehold. The loan was
settled and funded at title company First Western's
office. Melton stopped paying on the Note in February 2013.
On March 13, 2013, the fourth anniversary of the day he
signed the loan documents, Melton sued Appellees as well as
the appraiser involved in the loan's origination,
asserting several causes of action and seeking a declaratory
judgment that the loan was not eligible for foreclosure based
on several provisions of Article XVI, section 50, of the
moved for summary judgment on the ground that the statute of
limitations barred Melton's claims, which Appellees
asserted accrued on the date the loan closed. Although Melton
filed his suit on the fourth anniversary of the loan's
closing, he did not serve Appellees with the suit until two
months later, May 13, 2013. The district court granted
summary judgment in favor of Appellees in 2014, ordering that
Melton take nothing on his claims. The district court ruled
that Melton defaulted on his payment obligations, that the
loan could be foreclosed through sale of the property, and
that Colonial could recover attorney's fees and costs
from Melton. In 2015, the district court granted summary
judgment in favor of the appraiser. The district court found
Melton's claims against the appraiser frivolous and
awarded sanctions against Melton and Melton's attorney.
Melton did not challenge the portions of the judgment
relating to the appraiser, although his then-attorney
appealed the sanctions against him. See Mosser v.
Mims, No. 03-15-00365-CV, 2017 Tex.App. LEXIS 3988, at
*1 (Tex. App.-Austin May 3, 2017, no pet.) (mem. op.). After
these rulings were merged into a final judgment, Melton
appealed, arguing that his claims against Appellees alleging
constitutional defects in the loan were not subject to any
Melton's appeal was pending, the Texas Supreme Court
issued Wood v. HSBC Bank USA, N.A., holding that
"liens securing constitutionally noncompliant
home-equity loans are invalid until cured and thus not
subject to any statute of limitations." 505 S.W.3d 542,
545 (Tex. 2016). In light of Wood, this Court
reversed the judgment of the district court and remanded the
case for further proceedings. See Melton v. CU Members
Mortg., No. 03-15-00339-CV, 2017 Tex.App. LEXIS 1441
(Tex. App.-Austin Feb. 22, 2017, no pet.) (mem. op.). On
remand, Appellees again moved for summary judgment, which the
district court granted, entering an order disposing of all
claims except for the amount of attorney's fees to be
awarded to Appellees. Later the district court granted
summary judgment to Appellees as to their attorney's
fees. On Appellees' motion, the district court entered an
amended order combining its two earlier orders into a single
final order. Melton appeals.
moved for summary judgment on both no-evidence and
traditional grounds. A no-evidence summary-judgment motion
must assert that the nonmovant has produced no evidence of
one or more essential elements of its claim. Duvall v.
Texas Dep't of Human Servs., 82 S.W.3d 474, 477
(Tex. App.-Austin 2002, no pet.); see Tex. R. Civ.
P. 166a(i). Once the movant specifies the elements on which
there is no evidence, the burden shifts to the nonmovant to
produce summary-judgment evidence raising a genuine issue of
material fact on the challenged elements. Trilogy
Software, Inc. v. Callidus Software, Inc., 143 S.W.3d
452, 459 (Tex. App.-Austin 2004, pet. denied) (citing
Tex.R.Civ.P. 166a(i)). To raise a genuine issue of material
fact, the nonmovant must set forth more than a scintilla of
probative evidence as to the essential elements of the
nonmovant's claim on which the nonmovant would have the
burden of proof at trial. Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the evidence
supporting a finding rises to a level that would enable
reasonable, fair-minded persons to differ in their
conclusions, then more than a scintilla of evidence exists.
Id. Less than a scintilla of evidence exists when
the evidence is "so weak as to do no more than create a
mere surmise or suspicion" of fact, and the legal effect
is that there is no evidence. Jackson v. Fiesta Mart,
Inc., 979 S.W.2d 68, 70 (Tex. App-Austin 1998, no pet.)
(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61,
63 (Tex. 1983)). If the nonmovant fails to produce more than
a scintilla of evidence of the challenged fact, the motion
must be granted. Ford Motor Co. v. Ridgway, 135
S.W.3d 598, 600 (Tex. 2004).
prevail on a motion for traditional summary judgment, a party
must show that there are no genuine issues of material fact
and that it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c); KMS Retail Rowlett, LP v. City of
Rowlett, No. 17-0850, 2019 Tex. Lexis 463, at *9 (Tex.
May 17, 2019). When reviewing a summary judgment, we take as
true all evidence favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts in the
nonmovant's favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A defendant
who moves for summary judgment must disprove at least one
essential element of the plaintiffs causes of action.
Duvall, 82 S.W.3d at 477.
trial court does not state the basis on which it granted
summary judgment, we must affirm if any of the movants'
theories has merit. Texas Workers' Comp. Comm'n
v. Patient Advocates, 136 S.W.3d 643, 648 (Tex. 2004).
Because the propriety of a summary judgment is a question of
law, we review the trial court's decision de novo.
Valence Operating Co., 164 S.W.3d at 661.
argues the district court erred in granting summary judgment
for a multitude of reasons that are organized into four
overarching issues: (1) the district court abused its
discretion in sustaining objections to two pieces of
summary-judgment evidence, (2) the district court erred in
ruling that Melton take nothing on his claims against
Appellees, (3) the district court erred in granting
Appellees' motion for summary judgment, and (4) the
district court erred in awarding attorney's fees to
first issue, Melton complains that the district court abused
its discretion in sustaining two of Appellees' objections
to summary-judgment evidence. Appellees had objected that (1)
Melton's declaration was a sham affidavit, (2)
Melton's designation of an expert was untimely, and (3)
Melton is contractually estopped from challenging the
appraisal. The district court agreed ...