AFFIRM; and Opinion Filed July 10, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-12-00685-CV

MATTHEW JENKINS AND J.W. JENKINS, Appellants

V.

STEWART TITLE COMPANY AND JPMORGAN CHASE BANK, N.A., Appellees

On Appeal from the County Court at Law No. 5

Dallas County, Texas

Trial Court Cause No. CC-12-03062-E

MEMORANDUM OPINION

Before Justices Moseley, O’Neill, and Lewis 

Opinion by Justice Lewis

This lawsuit involves the purported purchase of residential real estate by appellants 

Matthew and J.W. Jenkins, who are cousins and business partners. The trial court granted 

summary judgment against appellants and in favor of appellees Stewart Title Company (“Stewart 

Title”) and JPMorgan Chase Bank, N.A. (“Chase”). Appellants moved to reconsider both 

summary judgments; the trial court overruled their motions. In two issues, appellants contend 

the trial court erred in overruling the motions to reconsider. After reviewing appellants’ issues, 

we conclude the dispositive issues are clearly settled in law, so we issue this memorandum 

opinion pursuant to Texas Rule of Appellate Procedure 47.4. The factual nature of this case, as 

well as its procedural history, pleadings, and evidence are well known to the parties. Therefore, 

we do not recount these matters in detail. We affirm the trial court’s judgment.
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Background1

Appellants contend they were seeking to purchase residential investment property subject 

to foreclosure. A broker helped appellants identify the property at issue in this suit, and 

appellants contend they negotiated a price of $250,000 for it. Appellant Matthew Jenkins

traveled to Mississippi, as he was instructed, to close on the purchase. He executed the closing 

documents, but he later realized that the sales contract identified the sale price as $349,000 and 

the documents identified only Matthew as a contracting party. Appellants contend they notified 

all relevant parties that they were cancelling the transaction and they were told the erroneous 

documents would be investigated and fixed. But the transaction was not cancelled—Stewart 

Title closed on the disputed sale, and Chase accepted assignment of the funded loan. Appellants 

refused to pay on the loan, and Chase eventually foreclosed on the property. Appellants contend 

the failure to cancel the transaction and the subsequent foreclosure on the property have damaged 

their credit and caused them mental anguish.

Appellants sued not only Stewart Title and Chase, but also their realtor, broker, seller, 

and original lender. The trial court granted summary judgment in favor of Stewart Title and 

Chase; it denied appellants’ motions to reconsider both summary judgments. The court then

severed appellants’ claims against Stewart Title and Chase, and appellants brought this appeal.

Reconsideration of Summary Judgments

This appeal involves both traditional and no evidence summary judgment motions. In a 

traditional motion, the party moving for summary judgment has the burden of showing 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); Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A 

 1

 Our factual background is taken from appellants’ live pleading. When reviewing a motion for summary judgment, we take the 

nonmovant’s evidence as true, indulge every reasonable inference in favor of the nonmovant, and resolve all doubts in favor of the nonmovant. 

M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In this case, as we discuss below, the nonmovant appellants did 

not timely present any summary judgment evidence.
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traditional movant has the burden of proving all essential elements of its cause of action or 

defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). 

By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no 

evidence exists as to one or more elements of a claim on which the nonmovant would have the 

burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a 

genuine issue of material fact on each of the challenged elements. TEX. R. CIV. P. 166a(i); Gen. 

Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.—Dallas 2000, no pet.). If 

the nonmovant fails to do so, the trial judge must grant the motion. Id. In both traditional and no 

evidence proceedings, the nonmovant—except on leave of court—must file its response not later 

than seven days prior to the date of the summary judgment hearing. See TEX. R. CIV. P. 166a(c); 

Crooks v. Moses, 138 S.W.3d 629, 635–636 (Tex. App.—Dallas 2004, no pet.).

We review a motion to reconsider a prior summary judgment for an abuse of discretion. 

Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.—Houston [1st Dist.] 2009, pet. 

denied). After a trial court has granted a summary judgment motion, the court generally has no 

obligation to consider additional motions on the issues adjudicated by the summary judgment. 

See id. But a motion for leave to file a late summary judgment response should be granted if the 

nonmovant establishes good cause by showing that (1) its failure to respond in a timely fashion 

was caused by accident or mistake and was not intentional or the result of conscious indifference, 

and (2) allowing the late response will cause no undue delay or otherwise injure the summary 

judgment movant. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex. 

2002).

Stewart Title’s Motion

In their first issue, appellants contend the trial court erred in overruling their request for 

reconsideration of the summary judgment in favor of Stewart Title. Appellants’ live pleading set 
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forth claims against Stewart Title for negligent misrepresentation and breach of fiduciary duty. 

Appellants’ factual allegations were limited to this statement: “Upon information and belief, 

Stewart Title and/or its agent in Mississippi, closed on the disputed sale even after being told that 

the sale was cancelled.” Stewart Title filed a no evidence summary judgment motion, 

contending there was no evidence that:

a. Prior to closing the subject transaction, [Stewart Title] was notified to not close 

the subject transaction.

b. Prior to closing the subject transaction, [Stewart Title’s] alleged “agent in 

Mississippi” was notified to not close the subject transaction.

c. [Stewart Title] closed the subject transaction after being notified that the 

transaction was cancelled.

d. [Stewart Title’s] alleged “agent in Mississippi” closed the subject transaction 

after being notified that the transaction was canceled.

e. [Stewart Title] had an “agent in Mississippi” in connection with the subject 

transaction.

f. [Stewart Title] had any legal obligation or duty to not complete the closing of 

the subject transaction if notified by either [appellant] (after he/they executed all 

of the closing documents) that the transaction was canceled.

g. [Stewart Title] made any misrepresentations to the [appellants], or either of 

them.

h. [Stewart Title] breached any fiduciary duty to the [appellants], or either of 

them.

This motion was legally sufficient to invoke rule 166a(i)’s requirement that appellants come 

forward with sufficient evidence to raise a genuine issue of material fact on each of the 

challenged elements. See Gen. Mills Rest., Inc., 12 S.W.3d at 832. But appellants filed no 

response to Stewart Title’s motion. The trial court granted summary judgment, ordering that 

appellants take nothing by their claims against Stewart Title and dismissing those claims with 

prejudice. See id. (if nonmovant does not come forward with sufficient evidence to raise genuine 

issue of material fact on each challenged issue, trial court must grant motion).
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A month after the court’s summary judgment order, appellants filed a Motion for 

Reconsideration of Defendant Stewart Title Company’s No-Evidence Motion for Summary 

Judgment. The motion purported to offer summary judgment evidence in response to Stewart 

Title’s motion, but it did not seek leave of court to file the evidence, and it made no attempt to 

establish good cause for appellants’ failure to respond in accordance with the rules. The trial 

court denied the motion. More than six months after the trial court’s summary judgment order, 

appellants filed their Second Motion for Reconsideration of Stewart Title Company’s NoEvidence Motion for Summary Judgment (the “Second Motion”), again purporting to offer 

evidence defeating Stewart Title’s motion, but again neglecting to ask for leave of court and 

making no showing of good cause for failing to respond to the motion in a timely fashion. The 

trial court denied the Second Motion as well.

In this Court, appellants argue that they produced sufficient evidence in their Second 

Motion to raise a genuine issue of material fact on each element of their negligent 

misrepresentation and breach of fiduciary claims. However, we need not address the sufficiency 

of any evidence offered with the Second Motion, because that evidence was never before the trial 

court. Appellants have never sought leave of court to file evidence late and have never

attempted to make a showing of good cause for their failure to respond to Stewart Title’s no 

evidence motion in a timely fashion. Accordingly, the trial court correctly denied their Second 

Motion. See, e.g., Carpenter, 98 S.W.3d at 688; see also Macy, 294 S.W.3d at 651.

Appellants contend on appeal that Stewart Title did not move for summary judgment on 

their declaratory judgment claim, so summary judgment on that claim was inappropriate. 

Appellants’ declaratory judgment claim stated in its entirety:

41. Pursuant to Chapter 37 of the Texas Civil Practice and Remedies Code, 

Plaintiff Matthew Jenkins requests that this court consider the terms of the 

contract the subject of this case, and find that (a) there is no legally enforceable 

contract between Defendants Universal and Chase and, (b) that the Deed, Deed of 
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Trust, and the Note are null and void, and (c) any other declaratory relief 

necessary and proper in order to determine the legal rights and liabilities of the

parties.

Nothing in that pleading gives notice that appellants were making a declaratory judgment claim 

against Stewart Title. And nothing in appellants’ factual allegation against Stewart Title—i.e., 

that it closed on the real estate purchase though told not to do so—is related to the declaratory 

judgment sought in appellants’ pleading. We conclude appellants made no cognizable 

declaratory claim against Stewart Title. Thus, Stewart Title had no reason to seek summary 

judgment on such a claim.

We discern no abuse of discretion in the trial court’s decision to overrule the Second 

Motion. We overrule appellants’ first issue.

Chase’s Summary Judgment Motion

In their second issue, appellants contend the trial court erred in overruling their request

for reconsideration of the summary judgment in favor of Chase. Chase’s combined traditional 

and no evidence summary judgment motion addressed all of the claims asserted against it by 

appellants: breach of the common law duty of unreasonable collection efforts, intentional 

infliction of emotional distress, invasion of privacy, defamation, and declaratory judgment. 

Appellants made no response to Chase’s summary judgment motion, and the trial court granted 

judgment in Chase’s favor on all of appellants’ claims. Three weeks later, appellants filed their 

Motion for Reconsideration of Defendant JPMorgan Chase Bank, N.A.’s Traditional and NoEvidence Motion for Summary Judgment and Motion for New Trial. In this motion, appellants 

purported—as they had in Stewart Title’s case—to offer summary judgment evidence sufficient 

to defeat Chase’s motion. But appellants failed again to seek leave of court, and they made no 

attempt to show good cause for their untimely presentation of evidence. The trial court denied 

appellants’ motion to reconsider.
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In this Court, appellants challenge only the trial court’s failure to grant their motion to 

reconsider as to their declaratory judgment claim against Chase. The declaratory judgment claim 

was part of Chase’s traditional summary judgment motion, so even though appellants made no 

response, the motion must be legally sufficient to survive review. “Summary judgments must 

stand on their own merits, and the non-movant’s failure to answer or respond cannot supply by 

default the summary judgment proof necessary to establish the movant’s right.” City of Houston 

v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Chase’s motion stated:

E. Matthew’s requests for declaratory judgment and equitable relief fail as a 

matter of law.

Matthew’s requests for declaratory judgment and equitable relief fail as a matter 

of law. Matthew seeks a declaration that: (a) there is no legally enforceable 

contract “between” defendants Universal and Chase;* and (b) the Deed, Deed of 

Trust, and Note are null and void. There is no legal justification for such a 

declaration. Undisputed evidence proves Matthew signed the Note and Deed of 

Trust and that no fraudulent statements were made concerning the nature of the 

Note and Deed of Trust to induce Matthew to sign them. See Ex. 4, 5. Even if 

the New Home Contract was procured by fraud, the Note and Deed of Trust are 

separate, valid, and enforceable agreements. See Shenandoah Assocs. v. J&K 

Props., Inc., 741 S.W.2d 470, 482 (Tex. App—Dallas 1987, writ denied).

* Plaintiffs admit Universal assigned the loan to Chase. Ex. 3 ¶18. Chase

therefore interprets Matthew’s request for a declaration that there is no legally 

enforceable agreement “between” defendants Universal and Chase as a request for 

a declaration that the Note and Deed of Trust are not enforceable.

Chase’s summary judgment record contains the note and deed of trust, signed by 

Matthew Jenkins, which are evidence of his indebtedness. And appellants have not pleaded any 

wrongdoing by Chase that would cause the note or deed of trust to be unenforceable. Thus, the 

motion is legally sufficient to establish Chase’s right to judgment. See Clear Creek Basin Auth., 

589 S.W.2d at 678. If appellants wished to rely on an affirmative defense to Chase’s claim on 

the executed instruments, they were required to come forward with summary judgment evidence 

sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. 

See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). But appellants filed no timely 
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response and no timely summary judgment evidence that could raise such a fact issue. 

Appellants’ untimely evidence, offered without seeking leave of court or making a showing of 

good cause for the delay in its production, was never before the trial court and cannot serve to 

defeat Chase’s right to judgment as a matter of law. See, e.g., Carpenter, 98 S.W.3d at 688; see 

also Macy, 294 S.W.3d at 651.

We conclude the trial court did not abuse its discretion in denying appellant’s motion to 

reconsider Chase’s motion for summary judgment. We overrule appellants’ second issue.

Motion for Damages for Frivolous Appeal

Stewart Title has filed a Motion for Damages for Frivolous Appeal. We are authorized to 

award “just damages” if an appeal is objectively frivolous and injures the appellee. Njuku v. 

Middleton, 20 S.W.3d 176, 178 (Tex. App.—Dallas 2000, pet. denied). An appeal is frivolous if, 

at the time asserted, the advocate had no reasonable grounds to believe the judgment would be 

reversed or when an appeal is pursued in bad faith. In re A.W.P., 200 S.W.3d 242, 245 (Tex.

App.—Dallas 2006, no pet.). We will impose sanctions only under circumstances we find truly 

egregious. D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 205 (Tex. App.—Dallas 

2011, no pet.). 

We decline to find appellants’ appeal frivolous under the facts of this case.

Conclusion

We have decided appellants’ issues against them. We affirm the trial court’s judgment.

120685F.P05

/David Lewis/

DAVID LEWIS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

MATTHEW JENKINS AND J.W. 

JENKINS, Appellants

No. 05-12-00685-CV V.

STEWART TITLE COMPANY AND 

JPMORGAN CHASE BANK, N.A., 

Appellees

On Appeal from the County Court at Law 

No. 5, Dallas County, Texas

Trial Court Cause No. CC-12-03062-E.

Opinion delivered by Justice Lewis. 

Justices Moseley and O’Neill participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellees STEWART TITLE COMPANY and JPMORGAN 

CHASE BANK, N.A. recover their costs of this appeal from appellants MATTHEW JENKINS 

AND J.W. JENKINS.

Judgment entered this 10th day of July, 2013.

/David Lewis/

DAVID LEWIS

JUSTICE