COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

NUMBER 13-12-00474-CV 

CHARLIE O. BURNETT III, Appellant,

v.

BANK OF NEW YORK MELLON F/K/A THE BANK 

OF NEW YORK, AS TRUSTEE OF THE CERTIFICATE 

HOLDERS OF THE CWABS, INC., ASSET-BACKED 

CERTIFICATES, SERIES 2006-18, Appellee.

 

On appeal from the County Court at Law No. 5

of Nueces County, Texas.

 

NUMBER 13-12-00753-CV 

CHARLIE O. BURNETT III, Appellant,

v.

BANK OF NEW YORK MELLON F/K/A THE BANK 

OF NEW YORK, AS TRUSTEE OF THE CERTIFICATE 

HOLDERS OF THE CWABS, INC., ASSET-BACKED 

CERTIFICATES, SERIES 2006-18, Appellee.
2

 

On appeal from the 214th District Court

of Nueces County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza 

Memorandum Opinion by Justice Rodriguez

On February 13, 2014, this Court rendered its decisions in these appeals by 

memorandum opinion. Appellant filed a motion for rehearing and a motion for rehearing 

en banc reconsideration in each appeal on February 28, 2014. We deny the motions;

however, we withdraw our previous memorandum opinion and judgments and issue this 

memorandum opinion and the related judgments in their stead.

This memorandum opinion addresses two appeals that involve the same real 

property located at 914 Ashland Drive in Corpus Christi, Texas (the Property). Appellate 

cause number 13-12-00474-CV (Burnett I) involves a forcible detainer action filed by 

appellee Bank of New York Mellon f/k/a the Bank of New York, as Trustee for the 

Certificate Holders of the CWABS, Inc., Asset-backed Certificates, Series 2006-18 (the 

Bank) against appellant Charlie O. Burnett III, pro se. See TEX. PROP. CODE ANN. §§

24.001–.008 (West 2000 & West Supp. 2013) (providing statutory remedies for removing 

tenants, specifically suits for forcible entry and detainer and eviction). The county court 

rendered a judgment of possession in favor of the Bank, and Burnett appealed. By six 

issues, Burnett contends that (1–3) the trial court lacked jurisdiction because the Bank 

had no standing to bring a forcible detainer action seeking possession of the Property; 
3

(4–5) the trial court erred in failing to grant his motion to correct the final judgment and in 

denying his request for discovery; and (6) this Court should accept his asseveration of 

the record.

Appellate cause number 13-12-00753-CV (Burnett II) involves an action to quiet 

title of the Property filed by Burnett against the Bank. The district court entered a 

summary judgment in favor of the Bank, and Burnett appealed. By three issues, Burnett 

contends that the trial court erred (1) in failing to allow adequate time for discovery before 

granting the Bank’s no-evidence motion for summary judgment; (2) in failing to grant a 

continuance before granting the Bank's no-evidence and traditional motions for summary 

judgment; and (3) in finding no disputed issues of material fact that precluded summary 

judgment.

We affirm both judgments.

I. BACKGROUND

A. Foreclosure

On August 15, 2006, Vickie Heiman obtained a $103,410.00 loan from 

Countrywide Home Loans, Inc. (Countrywide), the original lender, to purchase the 

Property. The deed of trust, executed by the grantors, Vickie and Jason Heiman, 

granted a security interest in the Property. The deed of trust defined Mortgage Electronic 

Registration Systems, Inc. (MERS), a beneficiary under the deed of trust, as “a separate 

corporation that [was] acting solely as a nominee for [Countrywide] and [Countrywide]’s 

successors and assigns.” The deed of trust set out the following:

The beneficiary of this [deed of trust] is MERS (solely as nominee for 

[Countrywide] and [Countrywide]’s successors and assigns) and the 

successors and assigns of MERS. This [deed of trust] secures to 
4

[Countrywide]: (i) the repayment of the Loan, and all renewals, extensions 

and modifications of the Note; and (ii) the performance of Borrower’s 

covenants and agreements under this [deed of trust] and the 

Note. . . . Borrower understands and agrees that MERS holds only legal 

title to the interest granted by Borrower in this [deed of trust], but, if 

necessary to comply with law or custom, MERS (as nominee for 

[Countrywide] and [Countrywide]’s successors, and assigns) has the right 

to exercise any or all of those interests, including, but not limited to, the right 

to foreclose and sell the Property; and to take any action required of Lender 

. . . .

On April 28, 2011, MERS assigned all beneficial interest it held in the deed of trust, 

“together with the note or notes therein described” and “all rights accrued or to accrue 

under said deed of trust,” to the Bank.

Vickie subsequently defaulted on her mortgage payments, and on June 7, 2011, 

the Bank foreclosed on the Property. A substitute trustee’s deed provided the following: 

(1) the grantors/mortgagors were Vickie and Jason Heiman; (2) the original mortgagee 

was MERS; (3) the current mortgagee was identified as the Bank; (4) the grantee/buyer 

was the Bank; and (5) the date of the sale of the Property from the Heimans to the Bank 

was June 7, 2011.

B. Forcible Detainer Action Filed by the Bank

On October 19, 2011, the Bank filed suit for forcible detainer in the Justice Court, 

Precinct 2, Nueces County, Texas. The Bank sought possession as against Burnett, 

who refused to vacate the Property, where he was living at that time. On October 28, 

2011, the justice court entered an order granting the Bank possession of the premises. 

Burnett appealed to County Court at Law Number 5 in Nueces County, Texas. On April 

25, 2012, after hearing argument on Burnett’s motion to dismiss, the county court 

determined that Burnett had not shown a title issue that would deprive it of jurisdiction, 
5

and after receiving evidence, the county court granted the Bank a judgment for 

possession of the property.1 Burnett appealed.

C. Quiet Title Action Filed by Burnett

On October 27, 2011, one day before the justice court entered its order of 

possession, Burnett filed an original petition in trespass to try title in the 214th Judicial 

District Court of Nueces County. When he amended his petition on March 6, 2012, 

Burnett converted his trespass to try title action to an action to quiet title. On March 29, 

2012, Jason executed a quitclaim deed to Burnett for his interest in the Property.2

On July 24, 2012, the Bank filed a motion for traditional and for no-evidence 

summary judgment in Burnett’s action to quiet title, asserting the following grounds: (1) 

Burnett was a stranger to the note and deed of trust and lacked standing to challenge the 

loan documents, assignments, or foreclosure; (2) Burnett’s claims were based entirely on 

“show-me-the-note” theories, which have been rejected by Texas and federal courts; and 

(3) any purported leasehold or quit-claim interest asserted by Burnett was subject to being 

extinguished by the foreclosure of the Bank’s purchase money deed of trust. In support 

of its motion, the Bank attached Burnett’s amended petition and the affidavit of Krysta 

Clark, an assistant vice-president at the Bank. Among other things, Clark’s affidavit 

established the following documents as business records and attached them in support 

of the Bank’s motion: (1) the August 15, 2006 promissory note; (2) the August 15, 2006 

 

1 The Bank offered and the county court admitted, without objection, the following exhibits: (1) the 

deed of trust; (2) the substitute trustee’s deed; and (3) a business records affidavit that indicated that proper 

notice of the sale was given.

2 Burnett recorded the quitclaim deed in the official public records of Nueces County, Texas on 

August 22, 2012.
6

deed of trust; (3) an assignment of the deed of trust/mortgage to the Bank by MERS; and 

(4) the substitute trustee’s deed that set out the details of the June 7, 2011 foreclosure 

sale.

Burnett filed a verified response urging that the Bank had “no standing whatever 

to proceed against [Burnett] in collection against the subject real property at issue in this 

case.” He asserted that the Bank had no standing because it did not own any note or 

deed of trust respecting the Property. Burnett asked the trial court to grant him a 

reasonable time of ninety days to conduct “relevant and appropriate discovery” and to 

continue the summary judgment proceedings pending completion of discovery. Burnett 

claimed that he needed “adequate and reasonable discovery so as to afford [him] 

sufficient discovery of the true facts showing that [the Bank] cannot proceed in this case 

and prevail on the said pending MSJ.” He asked the trial court for sufficient time “to 

conduct discovery in order to properly and fully defend against the pending MSJ.” 

Burnett explained that, among other issues, he was

convinced that [the Bank] does not have lawful standing to bring this action 

on several bases, including but not limited to, any ownership in the 

underlying real property which it is alleged to have acquired from MERS 

who did not and does not and never has had any ownership interest in either 

the Note and/or DOT.

Burnett also objected to the Bank’s summary judgment evidence, specifically to 

Clark’s affidavit and the exhibits attached to her affidavit. He challenged purported facts 

set out in the affidavit and argued that Clark’s affidavit was incompetent. Burnett also 

objected and excepted to facts alleged by the Bank in its motion and argued that his 

quitclaim title to the property was superior to the Bank’s title, a fact he claims to have 

established through the following language in his affidavit which he attached to his 
7

response: “I hereby swear that the Responses, and Answers, facts and circumstances 

and argument set out in the foregoing Response are made by me from my personal 

knowledge, are made under penalties of perjury and are true and correct.” In support of 

his response, Burnett attached the March 29, 2012 deed from Jason to “Charlie O. Burnett 

III, Trustee, his heirs and assigns,” quitclaiming “all of [Jason’s] rights, title and interest in 

and to” the Property.

The Bank replied, challenging Burnett’s motion for continuance and responding to 

Burnett’s objections to the Bank’s summary judgment evidence. The Bank also objected 

to Burnett’s summary judgment evidence, specifically to Burnett’s “use of verified ‘factual’ 

statements in the Response itself as summary judgment evidence.” In support of its 

argument, the Bank cited, among other cases, Hidalgo v. Surety Savings & Loan Ass’n

for the proposition that a party cannot rely on factual statements contained in its own 

response as summary judgment proof, even if the response is verified. See 462 S.W.2d 

540, 545 (Tex. 1971). The Bank repeated its grounds for summary judgment and replied 

to Burnett’s response, asserting that his claim that MERS cannot assign the deed of trust 

has been rejected in Texas and that the Bank is the holder of the Note and the record 

assignee of the deed of trust with authority to foreclose under the Texas Property Code.

On September 18, 2012, the trial court granted the Bank’s motion on both 

traditional and no-evidence grounds. By granting the motion, the trial court implicitly 

denied Burnett’s request for additional time to conduct discovery and overruled both 

parties' objections to the evidence. See TEX. R. APP. P. 33.1(a)(2)(A). Burnett appealed 

this judgment.
8

II. THE BANK’S FORCIBLE DETAINER ACTION (BURNETT I)

A. Jurisdiction

The first three issues in Burnett’s appeal from the judgment entered in the Bank’s 

forcible detainer action challenge the jurisdiction of the county court. By his first issue, 

Burnett contends that the Bank lacked standing to invoke the jurisdiction of the county 

court because there were mixed issues of title and possession. In his second issue, 

Burnett asserts that the trial court erred when it “denied facts and documents” that were 

before it because they “clearly display[ed] mixed issues of title and possession.” Burnett 

claims by his third issue that the court erred when it denied his assertion that the Bank 

failed to prove the requisite chain of documents showing standing to seek possession.

The Bank offered the substitute trustee’s deed as evidence, and the county court 

admitted it without objection. The substitute trustee’s deed identified the Bank as the 

mortgagee that purchased the Property from the Heimans at the foreclosure sale on June 

7, 2011. The Bank also offered, and the court admitted without objection, the deed of 

trust executed by the Heimans. It provided that if the property was sold under the deed 

of trust,

Borrower or any person holding possession of the Property through 

Borrower shall immediately surrender possession of the Property to the 

purchaser at that sale. If possession is not surrendered, Borrower or such 

person shall be a tenant at sufferance and may be removed by writ of 

possession or other court proceeding.

By this provision, the Heimans agreed that they would become tenants at 

sufferance if they did not immediately surrender possession of the property upon its being 

sold at a nonjudicial foreclosure sale. And Burnett, who occupied the property at the 

time of the foreclosure, was at best a tenant at sufferance because at the hearing on the 
9

forcible detainer action he offered no evidence in his defense of any legally enforceable 

agreement to establish otherwise. See Fandey v. Lee, 880 S.W.2d 164, 169 (Tex. 

App.—El Paso 1994, writ denied) (op. on reh’g) (“In the absence of a legally enforceable 

agreement, such as a lease or rental agreement or a contract to sell, an occupier of 

premises is at best a tenant at sufferance and at worst a trespasser.”).

Given the deed-of-trust provision and the facts set out in the substitute trustee’s 

deed, the relationship between the Bank and Burnett became that of landlord and tenant 

once the Bank acquired the Property at the foreclosure sale and Burnett refused to vacate 

it. This relationship provided a basis for determining possession without resolving the 

issue of title to the property. See Lopez v. Sulak, 76 S.W.3d 597, 604–05 (Tex. App.—

Corpus Christi 2002, no pet.) (explaining that the litigant pursuing the forcible entry and 

detainer suit need not prove that it has title to the property; rather, it need only show 

sufficient evidence of ownership to demonstrate a superior right to immediate 

possession); see also Rodriguez v. Citimortgage, No. 03-11-00093-CV, 2011 WL 182122, 

at *2 (Tex. App.—Austin Jan. 6, 2011, no pet.) (mem. op.) (concluding that a substitute 

trustee’s deed, deed of trust, and notices to vacate constituted sufficient evidence to 

establish superior right of possession post-foreclosure). Because the Bank provided a 

basis for determining its superior right to possession of the Property and the county court 

was not required to determine the issue of title to resolve the right to immediate 

possession, the county court did not lack jurisdiction to determine possession. This 

argument fails. 

Burnett also informs this Court that he “clearly appraised the [county] court orally 

and in writing that a title dispute was then pending before the 214th District Court.” Yet 
10

“a forcible detainer action is not exclusive, but cumulative, of any other remedy that a 

party may have in the courts of this state, [and] the displaced party is entitled to bring a 

separate suit in the district court to determine the question of title.” Villalon v. Bank One, 

176 S.W.3d 66, 68–71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (citing Scott v. 

Hewitt, 127 Tex. 31, 90 S.W.2d 816, 818–19 (1936); Dormady v. Dinero Land & Cattle 

Co., 61 S.W.3d 555, 558 (Tex. App.—San Antonio 2001, pet. dism'd) (op. on reh’g); Rice 

v. Pinney, 51 S.W.3d 705, 709 (Tex. App.—Dallas 2001, no pet.)). In other words, 

“[f]orcible detainer actions in justice courts may be brought and prosecuted concurrently 

with suits to try title in district court.” Id. (citing Dormady, 61 S.W.3d at 558; Pinney, 51 

S.W.3d at 709). Without more, we are not convinced by Burnett’s suggestion that a quiet 

title action filed in district court removes jurisdiction from the county court where a forcible 

detainer action on the same property has been filed. 

Finally, Burnett asserts that his alleged title dispute would obviate the jurisdiction 

of the county court. The basis for this argument appears to be Burnett’s attack on the 

validity of the process through which the Bank acquired the property, specifically MERS' 

ownership interest and its role in the assignment. Again, this argument is not persuasive. 

In a forcible detainer action, “the only issue shall be as to the right to actual 

possession; and the merits of the title shall not be adjudicated.” TEX. R. CIV. P. 746; 

Villalon, 176 S.W.3d at 68–71 (citing Ward v. Malone, 115 S.W.3d 267, 270 (Tex. App.—

Corpus Christi 2003, pet. denied)). “To prevail in a forcible detainer action, a plaintiff is 

not required to prove title but is only required to show sufficient evidence of ownership to 

demonstrate a superior right to immediate possession.” Villalon, 176 S.W.3d at 68–71

(citing Pinney, 51 S.W.3d at 709)); see Dormady, 61 S.W.3d at 559.
11

We have already concluded that the landlord-tenant relationship established in the 

deed of trust provided a basis for the county court to determine that the Bank had the 

right to immediate possession without resolving whether the Bank wrongfully foreclosed

on the property. In this forcible detainer action, where the merits of the Bank’s title “shall 

not be adjudicated,” see TEX. R. CIV. P. 746, Burnett has not established that the right to 

immediate possession required the resolution of any title dispute. See Falcon v. Esignia, 

976 S.W.2d 336, 338 (Tex. App.—Corpus Christi 1998, no pet.) (“[S]pecific evidence of 

title dispute is required to raise an issue of a justice court’s jurisdiction. . . . Without the 

Falcons having presented specific evidence [of their valid claim to title in the property] to 

raise a genuine title dispute, the jurisdiction of the court was never at issue.”); see also 

Yarto v. Gilliland, 287 S.W.3d 83, 93 (Tex. App.—Corpus Christi 2009, no pet.) 

(concluding that “‘specific evidence’ of a title dispute exists when . . . the party has 

asserted a basis for title ownership that is not patently ineffective under the law and is 

intertwined with the issue of immediate possession.”).

We overrule the first three issues in Burnett I.

B. Burnett’s Motion for Correction of Final Judgment

By his fourth issue, Burnett complains that the trial court erred when it failed to 

grant his motion for correction of the final judgment. Burnett asserts that the trial court 

should have included, in the judgment, its denials of his motions to dismiss the Bank’s 

action. Burnett claims that the trial court’s failure to correct its judgment to include its 

denials of his motions to dismiss prejudiced him because he was left without any 

opportunity to have this Court review his motions and the trial court’s denial of the 

motions. However, Burnett does not provide appropriate citations to authorities and to 
12

the record for this contention, and we conclude that the argument he brings on appeal is 

inadequately briefed. See TEX. R. APP. P. 38.1(i). Moreover, the final judgment did 

address Burnett’s motions to dismiss when it set out that “[a]ll further relief is hereby 

denied. This judgment finally disposes of all parties and all claims.” Burnett could have 

brought substantive appellate issues related to the trial court’s denials of his motions to 

dismiss, but did not do so. We overrule the fourth issue in Burnett I.

C. Burnett’s Discovery Request

By his fifth issue, Burnett contends that the trial court erred when it denied his 

request for discovery. Burnett electronically filed a motion for continuance on December 

25, 2011 that was based, in part, on his need to conduct discovery. However, the trial 

court did not deny this motion. Instead, it granted Burnett’s motion, which, in effect, 

allowed for the continuance of discovery. This argument is, therefore, unfounded. We 

overrule the fifth issue in Burnett I.

D. Burnett’s Use of Asservation to Verify Record Documents

By his sixth and final issue in Burnett I, Burnett asks this Court to accept his use 

of asservation, an affirmation without an oath, in the acknowledgement and verification of 

several documents contained in the record. The Bank does not challenge any record 

documents on this basis, and we need not reach this issue. See TEX. R. APP. P. 47.1.

III. BURNETT’S ACTION TO QUIET TITLE

(BURNETT II)

A. Burnett’s Motion for Continuance

By his first and second issues in Burnett’s appeal of the summary judgment 

entered against him in his quiet-title action, Burnett contends that the trial court abused 
13

its discretion when it denied him additional time for discovery before ruling on the Bank’s 

motions for summary judgment. Burnett claims that he offered a reasonable reason for 

continuance in order to perform adequate discovery.

1. Applicable Law and Standard of Review

The trial court may order a continuance of a summary-judgment hearing if it 

appears “from the affidavits of a party opposing the motion that he cannot for reasons 

stated present by affidavit facts essential to justify his opposition.” TEX. R. CIV. P. 

166a(g). “No application for a continuance shall be heard before the defendant files his 

defense, nor shall any continuance be granted except for sufficient cause supported by 

affidavit, or by consent of the parties, or by operation of law.” Id. R. 251.

If the ground of such application be the want of testimony, the party applying 

therefor shall make affidavit that such testimony is material, showing the 

materiality thereof, and that he has used due diligence to procure such 

testimony, stating such diligence, and the cause of failure, if known; that 

such testimony cannot be procured from any other source. 

Id. R. 252.

A party cannot simply complain that additional discovery is required and describe 

in a conclusory fashion the additional discovery he believes is needed; the party must 

also explain the substance of the requested discovery and how the discovery would aid 

him in responding to the summary judgment motion. See Retzlaff v. Mendieta-Morales, 

356 S.W.3d 676, 681 (Tex. App.—El Paso 2011, no pet.); Brown v. Brown, 145 S.W.3d 

745, 749 (Tex. App.—Dallas 2004, pet. denied) (affirming the denial of a request for 

continuance where the appellant failed to explain his need for further discovery); Martinez 

v. Flores, 865 S.W.2d 194, 197–98 (Tex. App.—Corpus Christi 1993, writ denied) 

(determining that a request for more time “to complete discovery” was not sufficient). 
14

The party must also present affidavit evidence showing due diligence. See TEX. R. CIV.

P. 252; Risner v. McDonald’s Corp., 18 S.W.3d 903, 909 (Tex. App.—Beaumont 2000, 

pet. denied).

We employ an abuse of discretion standard to review a trial judge's discovery 

rulings. See Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998). A trial court's 

discretion to grant or deny a motion for continuance is broad. Yowell v. Piper Aircraft 

Corp., 703 S.W.2d 630, 635 (Tex. 1986) (op. on reh’g). We review a trial court's denial 

of a motion for continuance on a case-by-case basis to evaluate whether the trial court 

committed a clear abuse of discretion. See Joe v. Two Thirty Nine Joint Venture, 145 

S.W.3d 150, 161 (Tex. 2004). Such an abuse of discretion exists if the trial court's action 

was arbitrary and unreasonable, and reversal of a trial court's decision to deny the 

continuance is warranted only if the record clearly reflects that there has been a disregard 

of a party's rights. See Yowell, 703 S.W.2d at 635.

2. Discussion

In his response to the Bank’s motion for traditional and no-evidence summary 

judgment, Burnett sought a continuance to conduct “relevant and appropriate discovery.” 

But he did not explain the need for additional discovery, its substance, or how the 

additional discovery would aid in the preparation of his summary-judgment response. 

See TEX. R. CIV. P. 252; Retzlaff, 356 S.W.3d at 681; Brown, 145 S.W.3d at 749. The 

reasons Burnett submitted for the continuance were that he needed additional time to 

conduct adequate and reasonable discovery “so as to afford [himself] sufficient discovery 

of the true facts showing that [the Bank] cannot proceed in this case and prevail on the 

said pending MSJ.” Burnett set out that he needed more time to conduct discovery in
15

order to “properly and fully defend against the pending MSJ.” Burnett asserted, in a 

conclusory fashion, that he was convinced that the Bank did not have lawful standing to 

bring its action; i.e., that it had no ownership in the property because MERS had no 

ownership interest in it. Burnett did not explain how further discovery would aid him in 

responding to the summary judgment motion on this matter.

In his appellate brief, Burnett claims that he presented the following reasons in 

support of his request for leave to conduct further discovery: (1) time to make inquiries 

to develop statements in Clark’s affidavit; (2) time to depose the appropriate officers of 

MERS, the Bank, and Bank of America; (3) time to determine the true nature of alleged 

facts and circumstances set out in various paragraphs of the Bank’s motion; and (6) time 

to determine the nature of the assignment of the note. Without citing the record, Burnett 

asserts that he specifically identified these reasons in his response to the Bank’s motion 

for summary judgment. We have reviewed the record and find that Burnett made only 

general arguments in support of his request for leave to conduct additional discovery. 

While Burnett objected to the Bank’s summary judgment evidence and factual allegations 

because he needed more time to determine the true nature of certain alleged facts and 

circumstances, he did not identify, in any detail, the additional discovery he now identifies, 

its substance, or how the additional discovery would aid in responding to the summary 

judgment motion. See TEX. R. CIV. P. 251, 252; Retzlaff, 356 S.W.3d at 681; Brown, 145 

S.W.3d at 749. And Burnett provided no affidavit evidence showing due diligence; for 

example, his attempts to secure discovery of the evidence or why he was unable to obtain 
16

the testimony earlier.3 See TEX. R. CIV. P. 252; Risner, 18 S.W.3d at 909.

In the absence of an explanation of the need for additional discovery, its 

substance, and Burnett’s due diligence in this matter, we cannot say that the trial court 

clearly abused its discretion when it implicitly denied Burnett’s request for a continuance 

of the summary-judgment proceedings to allow for discovery. See Two Thirty Nine Joint 

Venture, 145 S.W.3d at 161; Kepple, 970 S.W.2d at 526. The record does not clearly 

reflect that there has been a disregard of Burnett’s rights. See Yowell, 703 S.W.2d at 

635. We overrule Burnett’s first and second issues in Burnett II.

B. The Bank’s No-Evidence Motion for Summary Judgment

By his third issue, Burnett contends that the trial court erred in granting summary 

judgment in the Bank’s favor because there are several disputed issues of material fact. 

Relevant to the disposition of this issue, Burnett challenges the Bank’s claim that he 

produced no evidence of a properly-recorded interest in the Property. The Bank 

responds, arguing that the trial court properly granted its no-evidence motion for summary 

judgment because Burnett provided no evidence that he held any ownership interest in 

the Property on or before June 7, 2011, the date of the foreclosure, and in fact, Burnett’s 

own summary judgment evidence, the quitclaim deed dated March 29, 2012, conclusively 

established that Burnett did not receive his interest, if any, until after the Bank foreclosed 

on the property. We agree with the Bank.

1. Standard of Review

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

 

3 The Bank filed its motion for summary judgment on July 24, 2012, approximately nine months 

after Burnett filed his lawsuit. Neither party directs this Court to any written discovery propounded or 

depositions noticed during that period.
17

Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Alejandro v. Bell, 84 S.W.3d 383, 

390 (Tex. App.—Corpus Christi 2002, no pet.). A no-evidence motion must specifically 

state the elements for which there is no evidence. TEX. R. CIV. P. 166a(i); Timpte Indus., 

Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The burden then shifts to the non-movant 

to produce evidence raising a genuine issue of material fact on the elements specified in 

the motion. TEX. R. CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 

(Tex. 2006).

We consider the evidence presented in the light most favorable to the nonmovant, 

crediting evidence favorable to the nonmovant if reasonable jurors could, and 

disregarding evidence contrary to the nonmovant unless reasonable jurors could not. 

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); 

see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge every 

reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. 

Parker, 249 S.W.3d 392, 399 (Tex. 2008). We will affirm a no-evidence summary 

judgment if the record shows one of the following: (1) there is no evidence on the 

challenged element; (2) rules of law or evidence bar the court from giving weight to the 

only evidence offered to prove the challenged element; (3) the evidence offered to prove 

the challenged element is no more than a scintilla, or (4) the evidence conclusively 

establishes the opposite of the challenged element. City of Keller, 168 S.W.3d at 810.

When, as here, the district court's order granting summary judgment does not 

specify the ground or grounds relied on for the ruling, summary judgment will be affirmed 

on appeal if any of the theories advanced are meritorious. Beck v. Law Offices of Edwin 

J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 425 (Tex. App.—Austin 2009, no pet.) (citing 
18

State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993)). And where, as 

here, a party moves for both no-evidence and traditional summary judgment, the 

appellate court typically first reviews the trial court’s ruling under the no-evidence 

standard of review. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If 

the trial court properly granted the no-evidence motion, the appellate court will not 

consider arguments Burnett raised in response to the Bank’s traditional summary 

judgment motion. See id.

2. Applicable Law

To prevail in a suit to quiet title, a plaintiff must prove: (1) he has an interest in a 

specific property; (2) title to the property is affected by a claim by the defendant; and (3) 

the claim, although facially valid, is invalid or unenforceable. See, e.g., Vernon v. 

Perrien, 390 S.W.3d 47, 61 (Tex. App.—El Paso 2012, pet. denied); see also U.S. Nat'l 

Bank Ass'n v. Johnson, No. 01–10–00837–CV, 2011 WL 6938507, at *3 (Tex. App.—

Houston [1st Dist.] Dec. 30, 2011, no pet.) (mem. op.). “[T]o contest a bank’s foreclosure 

of a deed of trust, a party must, at the time of the foreclosure, either (1) be the mortgagor 

under the deed of trust or be in privity with the mortgagor, or (2) have an ownership 

interest in the property affected by the foreclosure.” Ursic v. NBC Bank S. Tex., N.A.,

827 S.W.2d 334, 336 (Tex. App.—Corpus Christi 1991, writ denied) (citing Goswami v. 

Metropolitan Sav., 751 S.W.2d 487, 489 (Tex. 1988)). And the plaintiff must recover on 

the strength of his own title, not on the weakness of his adversary’s title. Fricks v. 

Hancock, 45 S.W.3d 322, 327 (Tex. App.—Corpus Christi 2001, no pet.) (citing Alkas v. 

United Sav. Ass'n of Tex., Inc., 672 S.W.2d 852, 857 (Tex. App.—Corpus Christi 1984, 

writ ref'd n.r.e.)). He “must allege right, title or ownership in himself with sufficient 
19

certainty to enable the court to see that plaintiff has a right of ownership that will warrant 

judicial interference.” Ellison v. Butler, 443 S.W.2d 886, 888–89 (Tex. Civ. App.—

Corpus Christi 1969, no writ); see Wright v. Matthews, 26 S.W.3d 575, 578 (Tex. App.—

Beaumont 2000, pet. denied). The plaintiff has the burden of supplying the proof 

necessary to establish his superior equity and right to relief. Essex Crane Rental Corp. 

v. Carter, 371 S.W.3d 366, 387–88 (Tex. App.—Houston [1st Dist.], pet. denied) (op. on 

reh’g); Ellison, 443 S.W.2d at 888–89.

3. Discussion

Burnett’s lawsuit to quiet title challenged the Bank’s June 7, 2011 foreclosure sale. 

Yet the Bank’s no-evidence motion addressed Burnett’s right of ownership in the property. 

Specifically, the Bank asserted that Burnett could provide no evidence of an ownership 

interest in the Property at the time of the foreclosure sale.

Burnett’s sole piece of summary judgment evidence filed in response to the Bank’s 

motion consisted of a quitclaim deed from Jason, one of the mortgagors under the deed 

of trust. That quitclaim deed was executed on March 29, 2012, more than nine months 

after the June 7, 2011 foreclosure sale. The quitclaim deed was recorded in the official 

public records of Nueces County, Texas on August 22, 2012, more than fourteen months 

after the June 7, 2011 foreclosure sale. Although Burnett now asserts that this recorded 

quitclaim deed renders the Bank’s assertions of his inability to produce a properly 

recorded quitclaim deed false, that is not the relevant consideration in this standing issue. 

The relevant consideration is not whether Burnett produced a recorded quitclaim deed; it 

is whether Burnett produced evidence showing that he held any ownership interest in the 
20

Property at the time of foreclosure.4

Burnett’s evidence established only that he acquired an interest, if any, in the 

Property on March 29, 2012, which was after the foreclosure and after he filed his suit 

and amended it to a quiet title action. Considering this evidence in the light most 

favorable to Burnett, crediting evidence favorable to Burnett if reasonable jurors could 

and disregarding contrary evidence unless reasonable jurors could not, see Fielding, 289 

S.W.3d at 848; City of Keller, 168 S.W.3d at 827, we conclude there was no evidence or 

no more than a scintilla of evidence that Burnett held any ownership interest in the 

Property at the relevant time. See City of Keller, 168 S.W.3d at 810. We cannot 

conclude from this quitclaim deed that Burnett has raised a fact issue regarding his 

standing to contest the Bank’s foreclosure of the deed of trust or that Burnett has shown

that he has an interest in the property, such that he could prevail on a suit to quiet title. 

See Ernst & Young, 51 S.W.3d at 577; Spoljaric, 708 S.W.2d at 434. The evidence, 

instead, conclusively establishes the opposite—that Burnett held no interest in the 

 

4 On October 4, 2013, Burnett filed a reply brief in the Burnett II appeal. In support of that brief, 

Burnett attached his affidavit executed on or about October 3, 2013. In his affidavit, Burnett set out, in 

part, the following: “On or about October 2010, I entered into an agreement with Jason Heiman, to lawfully 

acquire and enjoy his rights, benefits, interest and ownership in the [Property].” And in his appellate 

briefing, without citation to the record, Burnett alleged that he received a verbal commitment from Jason to 

give Burnett the property before the Bank filed its forcible detainer action in justice court. On October 22, 

2013, the Bank filed a motion to strike Burnett’s affidavit. We carried that motion with the case on October 

23, 2013.

In an appeal of a summary judgment, an appellate court may not consider documents attached to 

a party’s brief that are not part of the appellate record. Canton-Carter v. Baylor College of Medicine, 271 

S.W.3d 928, 932 n.2 (Tex. App.—Houston [14th Dist.] 2008, no pet.); see Guajardo v. Conwell, 46 S.W.3d 

862, 864 (Tex. 2001) (per curiam). Here, it is undisputed that Burnett’s affidavit, dated more than one year 

after the trial court granted summary judgment, was not filed in the trial court. And it is not part of the 

appellate record. Instead, Burnett attached his affidavit to his brief. Because the affidavit is not part of 

the appellate record, we may not now consider it in our review. See Canton-Carter, 271 S.W.3d at 932 

n.2; see also Guajardo, 46 S.W.3d at 864. Accordingly, we grant the Bank’s October 22, 2013 motion to 

strike, and we strike Burnett’s October 3, 2011 affidavit from the record.
21

property at the time of the foreclosure sale, and that Burnett’s interest, if any, was 

acquired later. See City of Keller, 168 S.W.3d at 810.

Based on the evidence filed by Burnett in support of his response, we conclude 

that the trial court did not err in finding that no fact issue existed on the Bank’s no-evidence 

point and in granting the Bank summary judgment on this basis. Because the trial court 

properly granted the Bank’s no-evidence motion on this basis and did not specify the 

ground relied on for its ruling, we need not consider Burnett’s remaining arguments 

related to the no-evidence motion, see Beck, 284 S.W.3d at 425, or any arguments 

regarding the traditional summary judgment motion. See Ridgway, 135 S.W.3d at 600; 

see also TEX. R. APP. P. 47.1. We overrule Burnett’s third issue in Burnett II.

IV. CONCLUSION

We affirm the judgments of the trial court.

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 20th

day of March, 2014.