Affirmed and Memorandum Opinion filed November 28, 2023. 

In The

Fourteenth Court of Appeals

NO. 14-22-00612-CV

FRANK KAMAS, Appellant

V.

BAY MOUNTAIN FUND I, LLC, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2020-45699

MEMORANDUM OPINION

Appellant Frank Kamas appeals an order granting traditional and noevidence summary judgment in favor of Appellee Bay Mountain Fund I, LLC. We 

affirm. 

BACKGROUND

In June 2019, Kamas sought a hard money loan1

 from Bay Mountain to 

1

 Hard money loans are short-term, high-interest-rate loans to real-estate investors for which the 
2 

purchase and remodel a residential investment property located at 11423 

Sagewhite Drive, Houston, Texas (the “property”). According to the Final Terms 

Sheet, Kamas would receive a loan from Bay Mountain for $178,200 with 12.5 

percent interest per year; his monthly payments would be for interest only; and 

there would be a holdback for the remodel of the property totaling $15,680 at the 

time of closing based on the budget and estimate submitted by him.

On June 26, 2019, Kamas obtained a loan from Bay Mountain in the 

principal amount of $178,200 and bought the property. He signed a promissory 

note in the principal amount of $178,200 as well as a deed of trust to secure 

payment of the promissory note listing Bay Mountain as the lender. The 

promissory note contains a conspicuous merger close, which provides: 

NOTICE: THIS NOTE AND ALL OTHER DOCUMENTS

RELATING TO THE INDEBTEDNESS evidenced hereby constitute 

a written loan agreement, which represents the final agreement 

between the parties and may not be contradicted by evidence of prior,

contemporaneous or subsequent oral agreements of the parties. There 

are no unwritten oral agreements between the parties relating to this 

Note and the indebtedness evidenced thereby. 

In accordance with Bay Mountain’s standard procedures, Kamas also signed a 

Non-Homestead Affidavit averring that (1) the property is not and is not intended 

to be his “true and lawful homestead”; (2) he will not reside in it or claim it as his 

homestead; (3) he “is obtaining the financing for business or investment purposes 

only and not for personal, family or household purposes”; (4) the affidavit was 

“made to induce” Bay Mountain to loan funds to him and the loan would “only be 

disbursed in reliance upon” these statements; and (5) his “true and lawful 

real estate itself is offered as collateral (i.e., short-term private mortgages). Vodicka v. Lahr, No. 

03-10-00126-CV, 2012 WL 2075713, at *1 (Tex. App.—Austin June 6, 2012, no pet.) (mem. 

op.). 
3

homestead” was at another property. He additionally signed a Tax Escrow 

Agreement, in which he agreed to make monthly payments to be placed in escrow 

for the payment of real estate property taxes. Kamas also agreed to keep the 

property insured and reimburse Bay Mountain for the cost of insurance if he failed 

to keep it insured.

After June 2020, Kamas made no payments to Bay Mountain, including

payments for property taxes and insurance. Bay Mountain proceeded to pay the 

insurance premiums and taxes on the property. In July 2020, Bay Mountain 

notified Kamas that the property would be sold at a substitute trustee’s sale on 

August 4, 2020.

Kamas sued Bay Mountain on July 31, 2020, and asserted claims for breach 

of contract, common law fraud, violation of Texas Property Code section 5.065,

violations of the Texas Debt Collection Act, and agency and respondeat superior. 

On October 2, 2020, Bay Mountain filed its original answer and a counterclaim for 

breach of contract. Kamas filed his original answer to Bay Mountain’s 

counterclaim in December 2020, alleging affirmative defenses of unclean hands,

lack of standing, lack of subject matter jurisdiction, statute of limitations, prior 

material breach and/or discharge, equitable estoppel, promissory estoppel and/or

quasi-estoppel, laches, waiver, ratification, release, statute of frauds, contributory 

negligence, comparative fault, and proportional responsibility.

In August 2021, Kamas filed his first amended petition and asserted claims 

for breach of contract, promissory estoppel, fraud (including fraud in the 

inducement, fraud in the factum, fraud in the execution, and common law fraud), 

statutory fraud, usury, accounting, declaratory judgment, violations of the Texas 

Debt Collection Act, violations of the Truth in Lending Act, violations of the Real

Estate Settlement Procedures Act, conspiracy, alter ego, joint enterprise, agency,
4

vicarious liability, and/or respondeat superior. Nine days later, Bay Mountain filed 

a second amended petition, alleging numerous affirmative defenses as well as

counterclaims for breach of contract, fraud, and fraud in real estate transaction.

In January 2022, Bay Mountain filed a no-evidence and traditional motion 

for partial summary judgment. Bay Mountain argued it is entitled to summary 

judgment pursuant to Texas Rule of Civil Procedure 166a(i) because (1) “Kamas is 

unable to provide any evidence as to the essential elements of the following claims 

asserted by Kamas in his First Amended Petition:” promissory estoppel, fraud

(including fraud in the inducement, fraud in the factum, fraud in the execution, and 

common law fraud), statutory fraud (including fraud in a real estate transaction),

usury, accounting, declaratory judgment, violations of the Texas Debt Collection 

Act, violations of the Truth in Lending Act, violations of the Real Estate 

Settlement Procedures Act, conspiracy, theories of alter ego, joint enterprise, 

and/or single business enterprise, and agency, vicarious liability, and/or respondeat 

superior; and (2) there is no evidence to support Kamas’s affirmative defenses of 

unclean hands, waiver, equitable estoppel, promissory estoppel and/or quasiestoppel, ratification, offset, release, prior material breach, failure to mitigate 

damages, fraud, and illegality.

Regarding its traditional motion for partial summary judgment, Bay

Mountain argued that (1) Kamas’s fraud and estoppel claims are barred by the 

express language of the loan documents; (2) Kamas is prohibited as a matter of law

from recovering under his promissory estoppel claim; (3) the Texas Debt 

Collection Act, Truth in Lending Act, and Real Estate Settlement Procedures Act 

are inapplicable; (4) Kamas’s usury claim is barred by the enforceable usury 

savings clause in the loan documents; and (5) Kamas’s declaratory judgment claim 

fails to present new controversies.
5

In February 2022, Bay Mountain filed a third amended answer, alleging 

numerous affirmative defenses and counterclaims for breach of contract, fraud,

fraud in a real estate transaction, fraud by non-disclosure, unjust enrichment, and 

quantum meruit. About a month later, Kamas filed (1) a second amended petition, 

in which he asserted only claims for breach of contract, fraud (including fraud in 

the inducement, fraud in the factum, fraud in the execution, and common law

fraud), and usury; and (2) an amended answer to Bay Mountain’s third amended

counterclaims, in which he limited his affirmative defenses to illegality, offset, and 

fraud. The following day, Kamas filed his response to Bay Mountain’s motion for 

partial summary judgment. A few days thereafter, Bay Mountain filed (1) a reply 

to Kamas’s summary judgment response; and (2) objections to Kamas’s summary 

judgment evidence. The trial court made no ruling on the objections.

On April 19, 2022, the trial court granted Bay Mountain’s motion for partial 

no-evidence and traditional summary judgment, dismissing with prejudice 

Kamas’s (1) promissory estoppel, fraud, statutory fraud, usury, accounting,

declaratory judgment, violations of the Texas Debt Collection Act, violations of 

the Truth in Lending Act, violations of the Real Estate Settlement Procedures Act, 

conspiracy, alter ego, joint enterprise, single business enterprise, agency, vicarious 

liability, and respondeat superior claims; and (2) unclean hands, waiver, equitable 

estoppel, promissory estoppel and/or quasi-estoppel, ratification, offset, release, 

prior breach, failure to mitigate damages, fraud, and illegality affirmative defenses.

In the meantime, on March 24, 2022, Bay Mountain filed a motion for noevidence and traditional summary judgment on Kamas’s breach of contract claim

and a motion for traditional summary judgment on its breach of contract claim. It 

argued that it is entitled to a (1) no-evidence summary judgment because “Kamas 

has no evidence of the second and third elements of his breach of contract claim 
6

asserted against Bay Mountain”; and (2) traditional summary judgment because (a) 

Kamas’s pleading fails to meet the notice-pleading requirement and “it is unknown 

what contract Bay Mountain allegedly breached,” (b) Bay Mountain complied with 

the terms of the loan documents, and (c) Kamas has no damages as he has lived in 

the property without making any payments. Bay Mountain further argued it is 

entitled to a traditional summary judgment on its breach of contract claim because 

Kamas failed to comply with the terms of the loan documents.

End of May 2022, Kamas filed a response to Bay Mountain’s combined 

summary judgment motion. On June 1, 2022, the trial court granted Bay

Mountain’s motion for no-evidence and traditional summary judgment on Kamas’s 

breach of contract claim and motion for traditional summary judgment on Bay 

Mountain’s breach of contract claim, awarding Blue Mountain $247,018.87 in 

damages as well as interest and attorney’s fees. 

The next day, Bay Mountain filed a notice of nonsuit regarding its claims for

fraud, fraud in a real estate transaction, fraud by non-disclosure, unjust enrichment, 

and quantum meruit. On June 8, 2022, the trial court signed a final summary

judgment in accordance with its April 19, 2022 and June 1, 2022 interlocutory 

summary judgment orders and also dismissed without prejudice “all claims 

identified” in Bay Mountain’s notice of nonsuit. Kamas filed a motion for new 

trial, which was overruled by operation of law. Kamas filed a timely notice of 

appeal.

STANDARD OF REVIEW

We review a trial court’s ruling on summary judgment de novo. First 

United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 

2017); Segovia v. Houston Metals, LLC, No. 14-22-00130-CV, 2023 WL 4732887, 

at *2 (Tex. App.—Houston [14th Dist.] July 25, 2023, no pet. h.) (mem. op.). In
7

conducting our review, we take as true all evidence favorable to the nonmovant, 

indulge every reasonable inference in favor of the nonmovant, and resolve any 

doubts in the nonmovant’s favor. Parker, 514 S.W.3d at 219; Valence Operating 

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Our review is limited to the 

issues presented to the trial court because “[i]ssues not expressly presented to the 

trial court by written motion, answer or other response shall not be considered on 

appeal as grounds for reversal.” See Tex. R. Civ. P. 166a(c); City of Houston v. 

Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex. 1979); Segovia, 2023 WL 

4732887, at *2.

When a party moves for both traditional and no-evidence summary 

judgment, we first consider the no-evidence motion. Parker, 514 S.W.3d at 219;

Segovia, 2023 WL 4732887, at *2. If the nonmovant does not meet its burden 

under the no-evidence motion, there is no need to address the challenge to the

traditional motion because it necessarily fails. Parker, 514 S.W.3d at 219;

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Therefore, we 

first review each claim under the no-evidence standard and any claims that survive 

our no-evidence review will be reviewed under the traditional standard. Parker, 

514 S.W.3d at 219.

In a no-evidence motion for summary judgment, the movant asserts that 

there is no evidence of one or more essential elements of the claim or defense for 

which the nonmovant bears the burden of proof at trial. Smartt v. State, No. 14-20-

00110-CV, 2021 WL 1537459, at *2 (Tex. App.—Houston [14th Dist.] Apr. 20, 

2021, no pet.) (mem. op.); see also Tex. R. Civ. P. 166a(i). The burden then shifts 

to the nonmovant to present evidence raising a genuine issue of material fact as to 

the elements specified in the motion. Smartt, 2021 WL 1537459, at *2; see also 

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). We sustain a no-
8

evidence challenge when (a) there is a complete absence of evidence of a vital fact, 

(b) the trial court is barred by rules of law or of evidence from giving weight to the 

only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital 

fact is no more than a mere scintilla, or (d) the evidence conclusively establishes 

the opposite of the vital fact. Merriman, 407 S.W.3d at 248; Ross Stores, Inc. v. 

Miller, 612 S.W.3d 682, 688 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

Evidence is more than a scintilla if it rises to a level that would enable reasonable 

and fair-minded people to differ in their conclusions. Merriman, 407 S.W.3d at 

248; Ross Stores, Inc., 612 S.W.3d at 688. If the evidence does no more than

create a mere surmise or suspicion and is so slight as to necessarily make any 

inference a guess, it is no evidence. Ross Stores, Inc., 612 S.W.3d at 688. 

A party moving for traditional summary judgment meets its burden by 

proving there is no genuine issue of material fact and it is entitled to judgment as a 

matter of law. Tex. R. Civ. P. 166a(c); Parker, 514 S.W.3d at 220; Ayanbadejo v. 

Settles, No. 14-22-00204-CV, 2023 WL 6451185, at *2 (Tex. App.—Houston 

[14th Dist.] Oct. 3, 2023, no pet. h.) (mem. op.). A defendant moving for summary 

judgment must disprove at least one of the essential elements of each of the 

plaintiff’s causes of action or conclusively establish all the elements of an 

affirmative defense. Ayanbadejo, 2023 WL 6451185, at *2. A matter is 

conclusively established if reasonable people could not differ as to the conclusion 

to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 816 

(Tex. 2005); Ayanbadejo, 2023 WL 6451185, at *2.

ANALYSIS

Kamas challenges the trial court’s final summary judgment order. Within 

his one issue, Kamas asserts numerous arguments which we address in turn.
9

I. Kamas’s Claims for Accounting, Declaratory Judgment, and 

Promissory Estoppel

Kamas contends the trial court erroneously granted summary judgment on 

his promissory estoppel, declaratory judgment, and accounting claims. We 

disagree.

“Amended pleadings supersede prior pleadings, and any claim not carried 

forward in an amended pleading is deemed dismissed.” Bos v. Smith, 556 S.W.3d 

293, 306 (Tex. 2018); FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 

255 S.W.3d 619, 633 (Tex. 2008); Davis v. Angleton Indep. Sch. Dist., 582 S.W.3d 

474, 478 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (mem. op.); see Tex. 

R. Civ. P. 65. Thus, filing an amended pleading that does not include a claim

effectively nonsuits or voluntarily dismisses the omitted claim as of the time the 

pleading is filed. FKM P’ship, Ltd., 255 S.W.3d at 633; see Davis, 582 S.W.3d at

478.

Here, Kamas asserted 16 claims against Bay Mountain. However, in his

second amended petition (the live pleading), Kamas only pleaded causes of action

for breach of contract, fraud (including fraud in the inducement, fraud in the 

factum, fraud in the execution, and common law fraud), and usury. Additionally, 

in his amended answer to Bay Mountain’s third amended counterclaim, Kamas 

asserted only affirmative defenses for illegality, offset, and fraud. Therefore, 

Kamas effectively dismissed any claims and defenses he previously asserted when 

he filed his second amended petition and amended answer. See Bos, 556 S.W.3d at

306; FKM P’ship, Ltd., 255 S.W.3d at 633; Davis, 582 S.W.3d at 478. As such, 

Kamas cannot now raise arguments based on promissory estoppel, declaratory 

judgment, and accounting when he dismissed these claims.

Accordingly, we overrule Kamas’s contention regarding his dismissed 
10

promissory estoppel, declaratory judgment, and accounting claims.

II. Kamas’s Claim for Breach of Contract 

Kamas claims the trial court erroneously granted summary judgment on his

cause of action for breach of contract. His argument on appeal consists of the 

following statement:

Bay Mountain sued on the promissory note, whereas Kamas sued for 

breach of contract because Bay Mountain refuses to honor its actual 

agreement by insisting it is entitled to the incorrect larger amount 

reflected in the promissory note obtained by fraud and forgery. If the 

actual amount agreed upon is not reflected in the promissory note, as 

testified by Kamas, then Kamas has established his breach of contract 

claim because the promissory note upon which the judgment is based 

is not the actual agreement of the parties and Bay Mountain breached 

the actual agreement by seeking recovery for a larger amount than 

was agreed upon and foreclosure on the property in question.

The Rules of Appellate Procedure require that an appellant’s brief “contain a clear 

and concise argument for the contentions made, with appropriate citations to 

authorities and to the record.” Tex. R. App. P. 38.1(i). Kamas failed to support his 

argument with citations to the record. Thus, Kamas waived his complaint because 

he failed to properly brief it. See id.; Komerica Post, LLC v. Byun, No. 14-21-

00636-CV, 2023 WL 6475453, at *6 (Tex. App.—Houston [14th Dist.] Oct. 5, 

2023, no pet. h.) (mem. op.).

Even if Kamas had not waived his argument, he still would not prevail. A 

breach of contract claim has four essential elements: (1) the existence of a valid 

contract, (2) the plaintiff performed or tendered performance as contractually 

required, (3) the defendant breached the contract by failing to perform or tender 

performance as contractually required, and (4) the plaintiff sustained damages due 

to the breach. M.A. Mills, P.C. v. Kotts, 640 S.W.3d 323, 327 (Tex. App.—

Houston [14th Dist.] 2022, pet. denied); see also Pathfinder Oil & Gas, Inc. v. 
11

Great W. Drilling, Ltd., 574 S.W.3d 882, 890 (Tex. 2019).

To defeat a no-evidence summary judgment motion, the non-movant must 

produce evidence raising a genuine issue of material fact as to each challenged 

element. See Parker, 514 S.W.3d at 219; In re A.J.L., No. 14-16-00834-CV, 2017 

WL 4844479, at *4 (Tex. App.—Houston [14th Dist.] Oct. 26, 2017, no pet.)

(mem. op.). This burden requires the nonmovant to specifically identify the 

supporting proof it seeks to have considered by the trial court and explain why it 

demonstrates a fact issue exists. Great Hans, LLC v. Liberty Life Serv. Corp., No. 

05-20-00113-CV, 2021 WL 5822841, at *2 (Tex. App.—Dallas Dec. 8, 2021, no 

pet.) (mem. op.); see also In re A.J.L., 2017 WL 4844479, at *4. 

Bay Mountain moved for no-evidence summary judgment on Kamas’s 

breach of contract claim arguing that Kamas “has no evidence” of the elements of 

breach and damages. With regard to damages, Kamas argued that his “damage

consists of erroneously increased interest payments charged by Bay Mountain on 

amounts not disbursed to me, which I paid through January 2020.” However,

Kamas failed to point to any evidence in support of his assertion. Without 

evidence, Kamas cannot raise a genuine issue of material fact as to the challenged 

element of damages and, thus, cannot defeat Bay Mountain’s no-evidence motion.

Accordingly, we overrule Kamas’s contention that the trial court erroneously

granted summary judgment on his breach of contract claim.

III. Kamas’s Claim for Fraud

Kamas seems to contend the trial court erroneously granted summary 

judgment on his common-law fraud and fraudulent inducement claims. In that 

regard, he merely outlines the elements of these two claims in his brief and then 

states: “Here, Bay Mountain clearly had a duty to disclose the actual amount of 
12

the loan along with all of the fees it was charging related to the loan documents, 

and therefore, its failure to so disclose gives rise to fact questions on Kamas’ fraudby-nondisclosure claim.”

As we stated, the Rules of Appellate Procedure require that an appellant’s 

brief “contain a clear and concise argument for the contentions made, with 

appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i). 

Because Kamas failed to support his argument with citations to the record, he

waived his complaint. See id.; Komerica Post, LLC, 2023 WL 6475453, at *6.

Even if Kamas had not waived his argument, he would not prevail because 

Kamas does not and cannot show that he raised a fact issue on all the challenged 

fraud elements in order to defeat Bay Mountain’s partial no-evidence summary 

judgment motion. In its no-evidence motion, Bay Mountain contended that 

“Kamas is unable to establish the necessary elements for his fraud, fraud in the

inducement” claims and

[s]pecifically, despite sufficient time for discovery, Kamas has no 

evidence of the following elements:

1. That a material misrepresentation was made;

2. The representation was false;

3. When the representation was made, the speaker knew it was false or

made it recklessly without any knowledge of the truth and as a 

positive assertion;

4. The speaker made the representation with the intent that the other 

party should act upon it;

5. The party acted in reliance on the representation; and

6. The party thereby suffered injury.

For his fraudulent inducement claim, in addition to the six (6) 

elements listed above, Kamas has no evidence of “a false promise of 

future performance made with a present intent not to perform.”

(citations to authorities omitted).
13

To prevail on a common-law fraud claim, a plaintiff must show: (1) the 

defendant made a material representation that was false; (2) the defendant knew 

the representation was false or made it recklessly as a positive assertion without 

any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act 

upon the representation; (4) the plaintiff actually and justifiably relied upon the 

representation; and (5) the plaintiff suffered injury as a result. JPMorgan Chase 

Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018); Ernst & 

Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). 

Fraudulent inducement is a species of common-law fraud that shares the same 

basic elements; but because fraudulent inducement arises only in the context of a 

contract, the existence of a contract is an essential part of its proof. Anderson v. 

Durant, 550 S.W.3d 605, 614 (Tex. 2018).

In his response, Kamas did nothing more than point to two allegedly false 

statements. However, assuming that these statements constitute material 

representations that were false, Kamas failed to address and provide evidence of 

any of the other challenged elements to raise a fact issue as required by Rule 

166a(i) to defeat Bay Mountain’s no-evidence motion. See Parker, 514 S.W.3d at 

219; Mack Trucks, Inc., 206 S.W.3d at 582; Smartt, 2021 WL 1537459, at *2;

Kaye/Bassman Int’l Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 812 (Tex. 

App.—Dallas 2010, pet. denied). 

Accordingly, we overrule Kamas’s assertion that the trial court erroneously

granted summary judgment on his common-law fraud and fraudulent inducement

claims. 

IV. Bay Mountain’s Claim for Breach of Contract

Kamas seems to also challenge the trial court’s grant of traditional summary 

judgment on Bay Mountain’s breach of contract claim by stating: 
14

As for the fraud claim, because the misrepresentations were in the

context of an agreement, the fraud is fraud-in-the-inducement, and by 

telling Kamas that the paperwork had already been processed and

therefore could not be corrected until later, and then forging Kamas’

signature and refusing to make the changes to reflect the actual

amount agreed upon, a question of fact is present barring summary

judgment on Bay Mountain[’]s suit on the promissory note.

However, Kamas failed to support his contentions with citations to the record and, 

therefore, waived his complaint due to improper briefing. See Tex. R. App. P. 

38.1(i) (“The brief must contain a clear and concise argument for the contentions 

made, with appropriate citations to authorities and to the record.”); Komerica Post,

LLC, 2023 WL 6475453, at *6.

Even if Kamas had not waived his complaint, he would not prevail. Kamas

did not make these contentions in his response to Bay Mountain’s motion for 

traditional summary judgment on its breach of contract claim. In its motion, Bay 

Mountain argued that it is entitled to a traditional summary judgment on its breach 

of contract claim because Kamas failed to comply with the terms of the loan 

documents. Kamas did not mention fraud in the inducement or forgery in his 

summary judgment response but instead stated:

Bay Mountain’s breach of contract claim fails because a party to a 

contract who is in default cannot maintain a suit for breach of 

contract. I have provided documentary evidence of Bay Mountain’s

breach of contract, which pre-date its claim of contractual breach.

“Pleadings are not proof.” Bay Mountain’s reliance upon pleadings in 

this case to support its motion for summary judgment is misplaced. 

The fact that Bay Mountain pled breach of contract against me does 

not prove anything. For these reasons, Bay Mountain’s Motion for 

Traditional Summary Judgment must fail as a matter of law.

(citations to authorities omitted).

As we noted, our review is limited to the arguments presented to the trial 

court, and we cannot reverse a summary judgment based on arguments not 
15

expressly presented to the trial court by written motion or other response to the 

summary judgment motion. See Tex. R. Civ. P. 166a(c) (“Issues not expressly 

presented to the trial court by written motion, answer or other response shall not be 

considered on appeal as grounds for reversal.”); Clear Creek Basin Auth., 589 

S.W.2d at 678; Hall v. Bean, 416 S.W.3d 490, 493 (Tex. App.—Houston [14th 

Dist.] 2013, no pet.); see also Morris v. Branch Banking & Tr. Co., No. 05-15-

01249-CV, 2017 WL 3634334, at *6 (Tex. App.—Dallas Aug. 24, 2017, pet. 

denied) (mem. op.). Kamas failed to present to the trial court the argument he now 

raises on appeal, and we may not consider it.

Additionally, we note that after Bay Mountain sought no-evidence summary 

judgment on Kamas’s affirmative defenses (including fraud), Kamas failed to 

address in his summary judgment response any of the challenged elements of his

fraud defense as required by Rule 166a(i) to defeat Bay Mountain’s no-evidence 

motion. See Parker, 514 S.W.3d at 219; Mack Trucks, Inc., 206 S.W.3d at 582;

Smartt, 2021 WL 1537459, at *2; Kaye/Bassman Int’l Corp., 321 S.W.3d at 812. 

Kamas cannot for the first time on appeal present arguments relating to his fraud 

defense. See Tex. R. Civ. P. 166a(c); Clear Creek Basin Auth., 589 S.W.2d at 678; 

Hall, 416 S.W.3d at 493; see also Morris, 2017 WL 3634334, at *6.

Accordingly, we overrule Kamas’s assertion that the trial court erroneously 

granted summary judgment on Bay Mountain’s breach of contract claim, and we 

overrule Kamas’s sole issue.

CONCLUSION

We affirm the trial court’s final judgment.
16

/s/ Meagan Hassan

Justice

Panel consists of Justices Bourliot, Hassan, and Poissant.