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 C au se No. 2020

- 45699

MEMORANDUM OPINION Appellant Frank Kamas appeals an order gr anting traditional and no

evidence summary judgment in favor of Appellee Bay Mountain Fund I, LLC

. We affirm.

B ACKGROUND
In J u ne 2019, Kamas s ought a hard money loan 1 from B ay Mounta in to

1 H ard money loans are short

- term, high

- in terest

- rate loans to real -e stat e investors for which the2 purchase and remodel a residential investment property located at 11423 Sagewhite Drive, Houston, Texas (the “ property ”). According to the Final Terms Sheet , K amas would receive a loan from Bay Mountain for $178,200 with 12.5
perce nt inter e st per year ; his monthly payments would be for interest only ; and there would be a holdback for the remodel of the p roperty totaling $ 15,680 at the time of closing based on the budget and estimate submitted by him.

On Ju ne 26, 2019, Kamas obt ained a loan f rom Bay M ountain in the principal amount of $178,200 and bought the property

. He sign ed a p romissory

n ote in the principal amount of $178,200 a s well as a d eed of t rust to secur e payment of the p romissory n ote listing Bay Mountain as the lender

. The
prom issory 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 n ot 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 Mountai n ’s standard procedures, Kamas also signed a Non

- Homestead Affidavit averring that (1) the p roperty 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 ob taining the financ i ng 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 es tate itself i s offered as collateral ( i.e. , short

- term private mortgages). Vo dicka v. Lahr , No. 03-10-00126- CV, 2012 WL 2075713 , at *1 (Tex. Ap p.— Aust in June 6, 2012, no pet.) (mem. op.)

.3 homestead ” was at another property . He additionally signed a Tax Escrow Agreement , in which he agree d to make monthly payments to be placed in escrow for the payment of real estate property taxes. Kamas also agreed to keep th e
p roperty i nsured and reimburse Bay Mountain for the cost of insu rance 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 pa y the insura nce premium s and taxes on the pro perty . In July 2020, Bay Mountain notifi ed 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 assert ed claims for breach of contract, commo n law fraud , violation of Texas Property Code section 5.065, violations of the Tex as Debt Collection Act, and agency and respondeat superior

. On October 2, 2020, Bay Mountain filed its original answer an d a counter claim for breach of contract. Kamas filed hi s origi n al answer to Bay Mountain ’ s counterclaim in December 2020 , alleging af firmative defenses of unclean hands, lack of standing, lack of subject matter jurisdiction, statute of limitations, prior material breach and/or discha rge, equitable estoppel, promiss or y estoppel and/or quasi

- estoppel , laches, waiver, ratificatio n, release, statute of frauds, c ontributory negligence, comparative fault, and proportional responsibility.

I n A ugust 2021, Kamas filed his first amended petition and asserted claims for breac h o f contract, promissory estoppel, fraud ( including f raud in the i nducement, f raud in the f actum, f raud in the e xecution, and c ommon l aw f raud ) , statutory fraud, usury, accounting, declaratory judgment, violations of the Texas Debt Collection Act, violati ons 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 , alle gin g numerous affirmative de fenses a s well as counterclaims for breach of contract, fraud, and fraud in real estate transaction

. I n January 202 2 , Bay Mountain filed a no
- evidence a nd traditional motion for partia l summary judgment . Bay Mountain argued it is e nti t led 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, fra ud ( including fraud i n 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
A ct, violations of the Tru th in Lending Act, violations of t he 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 ) t here is no evidence to support Kamas ’ s affirmative defenses of

u nclean hands, waiver, equitable estoppel, promissory estoppel and/or quasi

estoppel , ratification, offset, release, prior material breach , failure to mitigate damages, frau d, and illegalit y

. 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 p ro missory 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 decl aratory judgment claim fails to present new controvers ies.5 I n February 2022, Bay Mountai n filed a third amended answer , a lleging

numerous affirmative defenses and coun t e rclaims for breach of contract, fraud, fraud in a real estate transaction, fraud b y non
- disclosure, unjust enrichment, and quantum meruit. A bout a month later, Kamas fil ed (1) a second amended petition , in which he asserted only claims for breach of contract, fraud ( including fraud i n the inducement, fraud in the factum, fraud in the e x ecution , and common law fraud ) , and usu ry ; and (2) a n amended answer to Bay Mountain ’ s third amended counterclaims , in which he lim ited his affirmative defenses to illegality , offset, and fraud. The following day , Kamas filed his response to Bay Mountain ’ s moti on for partial summary judgmen t. A few days thereafter , Bay Mountain filed (1) a reply
to Kamas ’ s summary judgment response ; and (2) objections to Kamas ’ s summary judgment evide nce. The trial court made no ruling on the objections. On April 19, 2 0 22, th e trial co urt 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 Texa s Debt C ollection Act, violations of the Truth in Lending Act, violations of the Real Estate Settlement Procedures Act, conspiracy, alter ego, joint e nterprise, single business enterprise, agency, vicarious liability, and respondeat superior claims ; and (2 ) unclea n 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, o n March 24, 2022, Bay Mountain f i led a motion for no

evidence and traditional summary judgment on Kamas ’ s breach of c ontract claim and a motion for traditional summary judgment on it s breach of contract claim. It argued that it is entitled to a (1) no
- evidence summary judgme nt becau se “ K amas has no evidence of the second and third elements of his breach of contract cl aim6 asserted against Bay Mountain ” ; and (2) traditional summary judgment because (a)
Kamas ’ s pleading fails to meet the notice

- p leading requirement and “ it is un known what c o ntract Bay Mountain a llegedly 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 with out making any payments. Bay Mountain further argued it is entitle d to a tradition al s ummary judgment on its breach of contract claim because Kamas fa iled to comply with the terms of t he 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
M ountai n ’ s motion for no

- evidence and traditional summary judgment on Kamas ’ s breach of c ontract claim and motion for traditional summary judgment on Bay Mountain ’ s breach of contract claim , awarding Blue Mountain $247,018.87 in damages as wel l as interes t and at torney ’ s fees

. The next day , Bay Mountain filed a n otice of n onsuit re g arding it s 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 si gned a fin a l s ummary judgment in ac cordance with its April 19, 2022 and June 1 , 2022 in terlocutory summary judgment orders and also dismissed without prejudice “ all claims identified ” in Bay Mountain ’ s notice of nonsuit. Kamas filed a motion for new tri al , which wa s ov errule d by operation of law. Kamas filed a timely notice of appeal

. S TANDARD OF R EVIEW
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) ; Seg ovia v. Ho u sto n Meta ls, LLC , No. 14

- 22

- 00130

- CV, 2023 WL 4732887, at *2 (Tex. App.

— Houston [14th Dist.] July 25, 2023, n o pet. h.) (mem. op.)

. In7 conducting our rev iew , we take as true all evidence favorable to the non movant, indulge every reasonable inference in f a vor of the no n mova nt, and resolve any doubts in the non movant ’ 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 e xp ressly pres ented to the trial court by written motion, answer or other response shall not be considered on appeal as groun ds 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 473 2887, 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 non movant does not meet its burden under th e no
- evidence motion, there is no need t o address the challenge to the traditional motion because it necessarily fails. Parker , 514 S.W.3d at 219 ; Me rriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013). Th erefore , we first review each claim under the no

- evide nce standard and a ny claims that survive

our no
- evidence review w ill be reviewed under the traditional standard. Parker , 514 S.W.3d at 21 9

. In a no

- evidence motion for summary judgment, the movant asserts that there is no evidence of one or mo re 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.) ; s ee also Tex. R. Ci v. 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. 2 006). We su stain 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 vita l fact, (c) the eviden ce offered to prove a vital fact is no more than a mere sci ntilla, or (d) the evidence conclusively establishes the o pposite of the vital fact. Merriman , 407 S.W.3d at 248 ; Ross Stores, Inc. v. Miller , 612 S.W.3d 682 , 6 88 (Tex. App.

— Houston [14th Dist.] 2 02 0, no pet.)

. Evidence is more than a scintilla if it rise s 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 ev idence does no more th an
create a me re surmise or suspicion and is so slight as t o 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 provi ng there is no genu ine i ssue of mate rial fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c) ; Parker , 514 S.W.3d at 2 20 ; 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 movi ng for summary judgment must disprove at least one of the essential elements of each of the plaintiff ’ s causes of action or conclusive ly establish all the elements of an affirmative defense. Ayanbadejo , 2023 WL 645 1185 , at *2

. A ma tter i s conclusively es tablished 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

. A NALYSIS
Kamas cha llenges the tria l court ’ s final summary j udgment order . Within his one issue, Ka mas asserts numerous arguments whi ch we address in turn.9 I. Kamas ’ s Claims for A ccounting, Declaratory Judgment, and Promissory Estoppel

Kamas contends the trial court erron eously granted s um mary j udgment on his pr omissory estopp el, declaratory judgment, and accounting cla ims. We disagree

. “Amended pleadings supersede prior pleadings, and any claim not carried forward in an amen ded pleadi ng is deemed dismissed.” Bos v. Smith , 556 S.W.3d
29 3, 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.] 20 18, pet. denied) (mem. op.) ; see Tex. R. Civ. P. 65

. T hus, filing an am ended p leading th at does not include a c laim effectively nonsuits or volunta rily 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 1 6 claims against Ba y Mounta i n

. Howe ver, in his second amended petiti on (the live pleading), Ka mas only pleaded causes of action for breach of contrac t, fraud ( including f raud in the i nducement, f raud in the f

actum , f raud in the e xecution, and c ommon l aw f ra ud ) , and usu ry

. Addi tionally, in his amended answer to Bay Mountain ’ s third amended counterc laim , Kamas

a sserted only affirmative defenses for illegality , offset, and fraud. Therefore,
Kamas effectively dismiss ed any claims and defenses he previously a ss erted when he fil ed his second ame nded petition and amended answer. See Bos , 556 S.W.3d at 3 06 ; FKM P ’ ship, Ltd

. , 255 S.W.3d at 633 ; Davis , 582 S.W.3d at 478

. As such , Kamas cannot now r aise arguments based on promissory estopp el, declaratory judgment, and accounting whe n he dismissed th ese claims. Accordingly, we overrule Kamas ’ s conten tion regarding his dismissed10 promissory estopp el, declaratory judgment, and accounting claims

. II. Kamas ’ s Claim for Breach of Contract

Kamas c la ims the trial court er ro n eously granted summary judgment o n 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 ins isting it is entitled to the incorre ct 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 tes tified by Kamas, then Ka mas has established his breac h of contract claim because the promissor y 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 agree d upon and foreclosure on th e p roper ty in question. The Rules of Appella te Procedure require that an appel lant ’ s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to th e record.” Tex. R. Ap p. P. 38.1 (i). Kamas failed to supp ort his argument with citations to t he rec ord. Th us, 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 waive d hi s argument, he still would not prevail. A breach of contract claim has four essential elements : (1) the existence of a valid
contract , (2) the plaint iff performed or tende re d performanc e as contractually
req uired, (3) the defendant breached the contr act 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 , 3 27 (Tex. App.

— Houston [14th Dist.] 2022, pet. denied) ; s ee also Pathfinder Oil & G as, 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 evi dence raising a genuin e 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 r equires the nonmovant to spec if ically identify the supporting pro of it seeks to have considered by the trial court and explain why it demons trates a fact issue exists. Great Hans, LLC v. Liberty Life Serv. Corp. , No. 05

- 20

- 00113

- CV, 2021 WL 5822841 , at *2 (Tex. App.

— Da llas Dec. 8, 20 21 , no pet.) (mem. op.) ; see also In re A.J.L. , 2017 WL 4844479 , at *4

. Bay Mou ntain moved for n o
- evidence summary judgment on Kamas ’ s breach of contract claim arguing that K amas “ has no evidence ” of the e lements of bre ach and dama ges . With reg ard to da ma ges, Kamas argued that his “ damage consists of erroneously increased interest payments charged b y Bay Mountain on amounts not disbursed to me, whi ch I paid through January 2020. ” However,
Kamas fai led to point to any e vidence in support of his asserti on

. Without evidence, Kamas cannot ra is e a genuine issue of material fact as to the challenged element of damages and , thus, cannot defeat Bay Mounta in ’ s no
- evidence motion

. Accordingly, we overrule Kamas ’ s conten tion that the trial court erroneously grant ed summary judgment on h is breach of contract claim

. II I

. Kamas ’ s Claim for Fraud

Kamas seems to contend the trial court erron eously granted summary judgment on his c ommon
- law fraud and fraud ulent inducement claim s

. In that regard, he merely o utlines the el ements o f these two claims in his brief and then
states: “ Here, Bay Mountain clearly had a duty to dis close the actual amount of12 the loan along with all of the fees it was charging related to the loan documents, and therefore, its failure to so disclose g ives rise to fact questions o n Kam as’ fraud

by

- nondisclosure claim. ” As we stated, t he Rules of Appella te Procedure require that an appel lant ’ s brief “contain a clear and concise argument for the contentions made, with appropriate citations to authoritie s and to the record.” Tex. R. App. P. 38.1 (i ).
Because Kamas failed to support his argument with citations to t he rec ord , he waived his complaint

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

. Even if Kamas had not waive d hi s argument, he would no t prevail because
Kamas does no t and cannot sho w that he raised a fact issue on all th e challenged fraud el ements in order to defeat Bay Mountain ’ s partial n o
- evidence s ummary judgment motion. I n its no
- e vidence motion, Bay Mountain contended that

“ Kamas is unable to establish the necessary elements for his fraud, fraud in the inducement ” c laims and [s] pecific ally, despite sufficient time for discovery, Kama s has no
ev idence of the following elements : 1. That a material misrepresentation was made; 2. The representation was false; 3. When the representation was made, th e speaker knew it was false or made it reckles sly 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 r eliance on the representation; and 6. The party thereby suffered in jury. For his fraudulent inducement claim, in addition to the six (6) elements listed abo ve, Kamas has no evidence of “a false promise of future performance made with a present intent not to perform. ” ( citations to authoriti es omitted)

.13 To prevail on a common
- law fraud claim, a plaintiff must show: ( 1) the defe ndant made a material representa tion that was false ; (2) the defendant knew the represe ntation 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 re presentation; (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. Pa c. Mut. Life Ins. Co. , 51 S.W.3d 573 , 577 (Tex. 2001)

. Fraudulent inducement is a spec ies of common

- law fraud th at shares the same basic elements ; but b ecause fraudulent inducement arises only in the context of a contract, the existence of a co ntract is a n essential part of its proo f. Anderson v.
Durant , 550 S.W.3d 605 , 614 (Tex. 2018)

. In his response , Kamas did nothing more tha n point to t wo allegedly false statements. However, assuming that the se statements constitute material representati on s that w ere fal s e, K amas failed to address and provide evidence of
any of the o ther challenged el ements to raise a fact issue as required by R ule 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.3 d 806 , 812 (Tex. App.

— Dallas 2010, pet. denied)

. Accordingly, we overrule Kamas ’ s assertion that the trial court erron eously granted summary judgment on his c ommo n
- law fraud and fraud ulent induce ment claim s

. IV. Bay Mountain ’ s Claim for Breach of Contract Kamas seems to also challenge the trial court ’ s grant of traditional summary judgment o n Bay Mountain ’ s breach of contract claim by stating:14 A s fo r the fraud claim, because the misrepresentat ions 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 f orgi ng Kamas’ si gnature and refusing to make the changes to reflect the actual amount agreed upon, a qu estion of fact is present barring summary judgment on Bay Mountain [ ’ ] s suit on the promissory note. However, Kamas failed to support his contention s with cit ations to t he r ec or d and, therefore , waived his complaint due to im proper brief ing

. See Tex. R. Ap p. 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.

Eve n if Kamas had not w ai ved his complaint , he would n ot prevail . Kamas did not make th ese contention s in his response to Bay Mountain ’s motion for traditional s ummary judgment on its br each of contract claim. In its moti on, Bay Mountain argued that it is e ntitle d to a tradition al s ummary judgment on its br each of contract claim because Kamas fa iled to comply with the terms of t he loan documents. Kamas did not mention fraud in the inducement or forgery in his summary judg ment response but instead stated :
Ba y Mountain’s breach of contract cla im 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 con tract, which pre
- date its claim of contractual b reach. “Pleadings ar e 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 pro ve anything. For these reasons, Bay Mountain’s Motion for Traditional Summary Judgment must fail as a matter of law. ( citations to authoriti es omitted)

. As we not ed, o ur review is limited to the argument s presented to the trial
court , and we cannot rever se a summary judgment based on argum ents not15 expressly presented to the trial court by written motion or other response to the summary judgment motion

. See Tex. R. Civ. P. 166a(c) ( “ I ssues not expressly presented to the trial court by written motion, answ er or other response shall not be

co nsidered on appeal as groun ds for reversal. ” ) ; Clea r Creek Basin Auth. , 589 S.W.2d at 67 8 ; 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 , a t *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

. Additiona lly, we note that a fter Ba y Mounta in sought no

- evidence summary judgment o n Kamas ’ s affirmative defenses (including fraud) , K amas failed to address in his summary judgment response any of the c hallenged element s of his fraud defense as required by Rule 166a(i) to defeat Bay Mountai n ’ s no
- e vidence motion

. See Parker , 514 S.W.3d at 219 ; Mack Trucks
, I n c

. , 206 S.W.3d at 582; Smart t , 2021 WL 1537459 , at *2 ; Kaye/Bassman Int ’ l Corp. , 321 S.W.3 d at 812

. Kamas cannot for the first ti me on appeal present arguments relating to his fraud d efense. See Tex. R. Civ. P. 166a(c) ; Clear Cree k Basin Auth. , 589 S.W.2d at 67 8 ; Hall , 416 S.W.3d at 493 ; see also Morris , 2017 WL 3634334 , at *6

. A ccordingly, we overrule Kamas ’ s assertion that the tr ial court erroneously granted summary judgment o n Bay Mountain ’ s breach of contract claim , and we

over rule Kamas ’ s sole issue.

C ONCLUSION
We affirm the trial court ’ s final judgment

.16 /s/ Meaga n Hassan J ustic e

Pan el con s i sts of Ju stices Bourliot , Hass an, and Poiss ant.