COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00019-CV 

RAYMOND R. CORREA AND 

SANTA ROSADO

APPELLANTS

V.

CITIMORTGAGE INC. APPELLEE 

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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 348-256265-11

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MEMORANDUM OPINION1

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In two points, Appellants Raymond R. Correa and Santa Rosado appeal 

the trial court’s summary judgment for Appellee Citimortgage, Inc. We affirm.

After Citimortgage acquired Appellants’ house via nonjudicial foreclosure, 

Appellants sued Citimortgage and Willow Bend Mortgage Company for wrongful 

 

1See Tex. R. App. P. 47.4.
2

foreclosure, fraudulent lien instrument, wrongful debt collection practices, 

trespass to try title, and for an injunction. Appellants did not respond to 

Citimortgage’s written discovery requests. The record does not reflect, and 

Appellants do not contend, that Appellants propounded any discovery between 

the April 2012 setting of the trial date and the July 2012 filing by Citimortgage of 

a combined traditional and no-evidence motion for summary judgment on all of 

Appellants’ claims.

Appellants did not respond to Citimortgage’s motion and did not file a 

motion for leave to file a late response, a motion to undeem admissions, or a 

motion for continuance. The trial court granted Citimortgage’s motion in its 

entirety on August 23, 2012, ten months after Appellants filed the case, and 

seven months after the federal court remanded the case to the trial court. 

Appellants filed a motion to vacate the summary judgment after nonsuiting Willow 

Bend. In their motion to vacate, Appellants asked the trial court to vacate the 

summary judgment order or grant them a new trial and to undeem their 

admissions. The trial court did not rule on the motion, and Appellants do not 

appeal its implicit denial.

When a party moves for summary judgment under both rules 166a(c) and 

166a(i), we will first review the trial court’s judgment under the standards of rule 

166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the 

appellant failed to produce more than a scintilla of evidence under that burden, 
3

then there is no need to analyze whether the appellee’s summary judgment proof 

satisfied the less stringent rule 166a(c) burden. Id.

After an adequate time for discovery, the party without the burden of proof 

may, without presenting evidence, move for summary judgment on the ground 

that there is no evidence to support an essential element of the nonmovant’s 

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the 

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the 

nonmovant produces summary judgment evidence that raises a genuine issue of 

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 

425, 426 (Tex. 2008).

In their second point, Appellants argue that summary judgment was 

premature because they had not had an adequate time to conduct discovery. 

However, “[w]hen a party contends that it has not had an adequate opportunity 

for discovery before a summary judgment hearing, it must file either an affidavit 

explaining the need for further discovery or a verified motion for continuance.” 

Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). If neither of 

these steps is taken, error is not preserved for our review. See id.; see also 

Kaldis v. Aurora Loan Servs., 424 S.W.3d 729, 736 (Tex. App.—Houston [14th 

Dist.] 2014, no pet.). Because Appellants took neither of these steps, we 

overrule their second point as unpreserved. See Tex. R. App. P. 33.1.
4

In their first point, Appellants argue that the trial court erred by granting 

summary judgment because Citimortgage’s summary judgment evidence, which 

was attached in support of the traditional portion of its motion, “established that 

there were outstanding fact issues on each element of each outstanding claim” 

and because their claims were established by this evidence.

In its motion, Citimortgage argued that all of Appellants’ claims—wrongful 

foreclosure, wrongful debt collection practices, trespass to try title, fraudulent lien 

instrument, and injunction—failed because they were based on “the single, 

erroneous allegation” that Citimortgage did not have standing to enforce the note 

and deed of trust or to foreclose on the property because the assignments “from 

MERS to Citimortgage were allegedly not authorized, and therefore were 

fraudulent.” In the no-evidence portion of its motion, Citimortgage asserted that 

Appellants could produce (1) no evidence that it lacked standing to enforce the 

note and deed of trust or to foreclose on their property; (2) no evidence that the 

assignments from MERS were invalid; (3) no evidence that there was any other 

alleged defect in the foreclosure sale—specifically, no evidence of a defect in the 

foreclosure sale, a grossly inadequate selling price, or a causal connection 

between the defect and the inadequate price; (4) no evidence of damages 

because there was no evidence that Appellants had never been dispossessed of 

the property or of any lost equity; (5) no evidence that it engaged in any wrongful 

debt collection practice or violated any provision of the Texas Debt Collection Act 

(TDCA)—specifically, no evidence that any representations made by 
5

Citimortgage in connection with its foreclosure efforts violated the TDCA and no 

evidence that Appellants suffered any compensable damages as a result of any 

alleged TDCA violations; (6) no evidence of trespass to try title—specifically, no 

evidence of a regular chain of conveyances from the sovereign, superior title out 

of a common source, title by limitations, or title by prior possession coupled with 

proof that possession was not abandoned; and (7) no evidence to support their 

claim for injunctive relief—specifically, no evidence to prove that they have a 

probable right to relief because all of their claims fail, and no evidence that they 

will suffer a probable, imminent, and irreparable injury.2

We have previously held that when a summary judgment movant files a 

combined traditional and no-evidence summary judgment motion, 

under our summary judgment law, in the face of a legally sufficient 

motion for no-evidence summary judgment, the nonmovant must file 

a response to defeat summary judgment regardless of whether the 

trial court has before it evidence that would defeat summary 

judgment if attached to a timely response. The nonmovant must 

bring that evidence to the attention of the trial court or lose.

 

2Citimortgage argued in the traditional part of its motion that Appellants 

had no standing to challenge the assignments and that its summary judgment 

evidence conclusively showed that it had standing to enforce the note and deed 

of trust as the holder of the note, as the mortgagee of the loan, and as the 

mortgage servicer of the loan; that Appellants defaulted on the note; and that all 

requisite foreclosure notices were provided. Citimortgage further argued that as 

the holder of the note entitled to enforce the security interest, it had the authority 

to foreclose and therefore did not violate any provision of the TDCA and that the 

summary judgment evidence established that it was the property’s owner 

pursuant to a valid foreclosure sale, defeating Appellants’ trespass-to-try-title 

claim. And Citimortgage stated that because Appellants could not succeed on 

any of their claims as a matter of law, their request for injunctive relief must be 

denied.
6

See Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012 WL 

335858, at *5 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.). We 

explained that while this may seem unjust, 

[t]he law, however, requires us to ignore traditional summary 

judgment evidence attached to a combined summary judgment 

motion unless the nonmovant has directed the trial court to that 

evidence in its response to the no-evidence motion. If we were to 

reverse in this case, we would have to hold that the trial court had a 

duty to examine the evidence attached to Accredited’s motion to 

determine if any evidence existed in the record to support the 

challenged [no-evidence] elements. To do so would contradict the 

plain wording of the summary judgment rule, which provides that the 

trial court must grant the no-evidence summary judgment unless the 

nonmovant produces summary judgment evidence raising a genuine 

issue of material fact. The comment to the rule states that the 

nonmovant must not only produce evidence but must also point out 

to the trial court the evidence that raises a fact issue. That is, even 

though evidence is before the trial court that, if produced by the 

nonmovant, would require the court to deny the no-evidence 

summary judgment, because it was not pointed out to the trial court 

by the nonmovant, it must be ignored. Because the Dyers did not 

file a timely response, they neither produced summary judgment 

evidence nor directed the trial court to where such evidence could 

be found in its file.

Although it appears to be a triumph of procedure over 

substance, we cannot create a rule that the trial court disposing of a 

combined motion has a duty to look at the traditional summary 

judgment evidence to see if it defeats the movant’s right to noevidence summary judgment when the rules of procedure place the 

burden on the nonmovant to produce evidence. If we created such 

a rule, it would conflict with the Supreme Court’s holding that parties 

may file combined motions. A party moving for both traditional and 

no-evidence summary judgment would be compelled out of an 

abundance of caution to abandon the practice of filing combined 

motions. Instead, the party would have to first file a no-evidence 

motion, wait for the trial court to rule on it, and, if the court denies the 

motion, only then file a traditional summary judgment motion.
7

Id. at *3–4 (footnotes omitted); see also Wood v. Wells, No. 02-11-00087-CV, 

2011 WL 5515483, at *5 (Tex. App.—Fort Worth Nov. 10, 2011, no pet.) (mem. 

op. on reh’g) (affirming no-evidence summary judgment when, although appellant 

filed a response, he did not direct the trial court to any evidence attached to 

appellees’ traditional motion for summary judgment or point out the existence of 

any fact issues regarding damages raised by that evidence); Viasana v. Ward 

Cnty., 296 S.W.3d 652, 655 (Tex. App.—El Paso 2009, no pet.) (reasoning that it 

was inappropriate to consider evidence attached to traditional summary judgment 

motion in connection with review of no-evidence motion because nonmovant did 

not file response referencing evidence attached to traditional motion). Because 

Appellants did not file a response to the no-evidence motion, we conclude that 

the trial court had no choice but to grant the no-evidence motion on the grounds 

presented, and we overrule Appellants’ first point.

Having overruled both of Appellants’ points, we affirm the trial court’s 

judgment.

PER CURIAM

PANEL: MCCOY, GARDNER, and MEIER, JJ.

DELIVERED: July 24, 2014