Danny Royce Murphy v. Countrywide Home Loans, Inc., and Samuel Daffin, II--Appeal from 405th District Court of Galveston County

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Laws-info.com » Cases » Texas » 1st District Court of Appeals » 2006 » Danny Royce Murphy v. Countrywide Home Loans, Inc., and Samuel Daffin, II--Appeal from 405th District Court of Galveston County

State: Texas

Court: Texas Northern District Court

Docket No: 01-04-00584-CV

Case Date: 06/08/2006

Plaintiff: Danny Royce Murphy

Defendant: Countrywide Home Loans, Inc., and Samuel Daffin, II--Appeal from 405th District Court of Galveston

Preview:Danny Royce Murphy v. Countrywide Home Loans,
Inc., and Samuel Daffin, II--Appeal from 405th District
Court of Galveston County
Opinion issued June 8, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-00584-CV
DANNY ROYCE MURPHY, Appellant
V.
COUNTRYWIDE HOME LOANS, INC. AND SAMUEL DAFFIN, II, Appellees
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 02CV0624
O P I N I O N
Appellant, Danny Royce Murphy, appeals the trial court s order granting a no-evidence summary judgment in favor of
appellees, Countrywide Home Loans, Inc.and Samuel Daffin, II (collectively Countrywide ). Murphy asserts that (1)
the no-evidence summary judgment motion rendered against him was signed by a legally unqualified visiting senior
judge and is therefore void, (2) the trial court erred by denying his motion to set aside the summary judgment, and (3)
Countrywide lacked standing to be awarded any relief. We affirm.
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Background
After signing a promissory note, Murphy obtained a loan from Countrywide to purchase a home. Murphy defaulted on
the loan, notices of acceleration were sent to him, and demand was made to no avail.
Murphy sued Countrywide to prevent foreclosure. After a hearing, the trial court granted a temporary restraining order.
The court subsequently denied Murphy s application for a temporary injunction to prevent the proposed foreclosure
sale, and Countrywide foreclosed on the property.
In response to Murphy s lawsuit, Countrywide filed a general denial and later filed a no-evidence summary judgment
as to all of Murphy s claims against it. Countrywide filed an original counterclaim against Murphy seeking possession
of the property, the deficiency in the note after foreclosure, and attorney s fees. Visiting senior judge Frank T.
Carmona granted the no-evidence summary judgment against Murphy, and Countrywide then filed a traditional motion
for summary judgment as to possession. Murphy filed a motion to set aside the no-evidence summary judgment.
Presiding judge Wayne Mallia denied Murphy s motion to set aside the no-evidence summary judgment and, on the
same day, granted Countrywide s traditional summary judgment as to possession. Validity of Judgment
In his first point of error, Murphy contends that the no-evidence summary judgment is void because it was rendered
and signed by a legally unqualified visiting senior judge. Murphy alleges that the trial court record is devoid of any
documentation showing that the visiting senior judge, the Honorable Frank T. Carmona, had ever subscribed to the
constitutionally required oath of an appointed officer before beginning his assignment. See Tex. Const. art. XVI, 1(c)
(oath of office) and (d) (anti-bribery oath). Murphy also argues that, although Judge Carmona signed an anti-bribery
oath, that oath is defective because it was for another court and filed before Judge Carmona was appointed to the trial
court. // We disagree.
Murphy cites Prieto Bail Bonds v. State, 994 S.W.2d 316 (Tex. App. El Paso 1999, pet. ref d.) for the proposition that
senior judges are appointed and must take the constitutional oaths required of appointed officers. In Prieto, the retired
judge had served as both a district judge and as a justice on the El Paso Court of Appeals for a combined 23 years. Id.
at 318. Upon his retirement, the judge made an election to continue serving as a senior judge. Id.; see Tex. Gov t Code
Ann. 75.001 (a) (d) (Vernon Supp. 2005) // . He apparently did not take any additional oaths upon retirement, and the
Prieto court held that this failure nullified the orders signed by the retired judge. Prieto, 994 S.W.2d at 318-20.
Murphy argues that retired judge Carmona has not filed an oath of office since he retired as a regular district judge;
therefore, his signing of the no-evidence summary judgment renders it void. Countrywide produced five documents
filed with the Texas Secretary of State that supported its contention that Carmona had satisfied his constitutional
requirements to assume office. These documents included two Statements of Elected Office for the 122nd Judicial
District; two Oaths of Office for the 122nd Judicial District; and a Statement of Elected/Appointed Officer as Visiting
Senior District Judge, Galveston County.
We have held that the presumption of the regularity of trial court judgments and proceedings applies to appellate
challenges of visiting trial court judges for alleged failures to take their constitutionally required oaths. See Murphy v.
State, 95 S.W.3d 317, 320 (Tex. App. Houston [1st Dist.] 2002, pet. ref d) (holding that an appellant who makes such a
challenge must make a prima facie showing that the trial judge did not take the required oaths before we will consider
the issue on the merits). The burden is on the moving party to overcome the presumption. Id.
In this case, the only evidence produced by Murphy to overcome this presumption is a letter from the Texas Secretary
of State, Gwyn Shea, certifying that a diligent search of the records of that office failed to produce a Statement of
Officer or an Oath of Office for Carmona as judge of the 405th Judicial District. This is insufficient evidence for
Murphy to meet his burden on this issue. In order to determine whether Carmona filed his required oaths of office after
retirement, we would need to know the date upon which he retired. We find nothing in the record to indicate when
Carmona retired; therefore, we cannot determine whether he signed an oath of office after such date.
Murphy further argues that the Statement of Elected/Appointed Officer is defective because it does not refer to any
particular office or position and because the oath was signed before Carmona s appointment to the 405th District
Court. We find these arguments to be without merit. Murphy has not cited any legal authority for this argument. An
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issue not supported by legal authority is waived. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284
(Tex.1994).
We overrule Murphy s first issue.
Motion to Set Aside Judgment
In his second point of error, Murphy contends that the trial court erred by failing to grant his motion to set aside the no-
evidence summary judgment. He argues that the presiding judge should have found that the visiting judge acted
without authority and granted his motion to set aside the summary judgment. We disagree.
Murphy cites no legal authority for this point of error on appeal. Murphy s brief must contain a succinct, clear, and
accurate statement of the arguments made in the body of the brief. Tex. R. App. P. 38.1(g). Rule 38 requires Murphy
to provide us with such discussion of the facts and the authorities relied upon as may be requisite to maintain the point
at issue. Id. at (h); see also Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.
Houston [1st Dist.] 2002, pet. denied). This is not done by merely uttering brief conclusory statements, unsupported by
legal citations. Tesoro, 106 S.W.3d at 128. By presenting such attenuated, unsupported argument, Murphy has waived
his complaints. See Fredonia, 881 S.W.2d at 284.
We overrule Murphy s second issue.
Summary Judgment Proof
In point of error three, Murphy contends that Countrywide lacked standing to be awarded relief in the foreclosure
action against him because Countrywide was unable to show that it owned or possessed the promissory note entitling it
to foreclosure. Essentially, Murphy is complaining that Countrywide did not provide sufficient evidence to support its
traditional motion for summary judgment on the issue of possession. We disagree.
Standard of Review
Summary judgment is proper only when the movant establishes that there are no genuine issues of material fact to be
decided and it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985). To be entitled to summary judgment as a plaintiff, a movant must prove each
element of its claim as a matter of law. See Nixon, 690 S.W.2d at 548. In deciding whether a disputed material fact
exists, we accept as true evidence favorable to the non-movant and indulge every reasonable inference and resolve any
doubt in the non-movant s favor. Id. at 548-49.
Here, the only remaining issue to be disposed of in the final summary judgment was the issue of possession of the
property. Countrywide contended in its motion that no genuine issue of material fact remained as to the issue of
possession and that it was entitled to possession because it was able to prove all of the elements under the forcible
detainer theory of recovery.
Forcible detainer occurs when a person refuses to surrender possession of real property upon a statutorily sufficient
demand for possession if that person is: (1) a tenant or subtenant willfully and without force holding over after his
right of possession ends, (2) a tenant at will or by sufferance, or (3) a tenant of someone who acquired possession by
forcible entry. Tex. Prop. Code Ann. 24.002 (Vernon 2000). Generally, an occupant of the property holding over after
execution of a deed is considered a permissive tenant whose right to possession is inferior to that of the party holding
title. See Tex-Wis Co. v. Johnson, 534 S.W.2d 895, 899 (Tex. 1976). To establish forcible detainer and prevail on its
motion for summary judgment, Countrywide had to establish the following as a matter of law: (1) Countrywide was
the owner, (2) Murphy was an occupant at the time of foreclosure, (3) the foreclosure was of a lien superior to Murphy
s right to possession, (4) Countrywide made a statutorily sufficient written demand for possession, and (5) Murphy
refused to leave. See Tex. Prop. Code Ann. 24.002; Goggins v. Leo, 849 S.W.2d 373, 377 (Tex. App. Houston [14th
Dist.] 1993, no writ).
In its motion for summary judgment, Countrywide alleged that Murphy defaulted on his mortgage payments and failed
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to make payment even after notices of acceleration and demand notices were served on him. A substitute trustee s sale
was held and Countrywide purchased the property and received a substitute trustee s deed. This deed, which
transferred title to Countrywide, and an affidavit of mortgage were filed in the Galveston County real property records.
Countrywide then gave Murphy written notice to vacate the property. Murphy refused to vacate and unlawfully
remained in possession of the property.
As summary judgment evidence for the element of ownership, Countrywide attached its substitute trustee s deed and
an affidavit of mortgage. To establish that Murphy was the occupant at the time of foreclosure, Countrywide attached a
certified copy of the deed of trust. To establish that it had a lien that was superior to Murphy s right to possession,
Countrywide relied on the deed of trust and the substitute trustee s deed. And to establish that it made a demand for
possession, Countrywide relied on the notice to vacate. The fact that Murphy refused to surrender possession is
uncontested.
In his response to Countrywide s summary judgment, Murphy complains that the substitute trustee s deed, affidavit of
mortgage, and deed of trust are not admissible as evidence because they are not authenticated. Murphy questions the
certification of these documents by saying that a court file stamp is not enough to prove proper authentication. Rule
902(4) of the Texas Rules of Evidence allows for the self-authentication of certified copies of public records. See Tex.
R. Evid. 902(4). The deed of trust, substitute trustee s deed, and affidavit of mortgage in this case all contain file
stamps which indicate that they have been filed in the Galveston County real property records as official public
records. Therefore, we hold these documents to be self-authenticated. See id.
Murphy further complains that Countrywide s evidence is insufficient because the substitute trustee s deed shows the
owner of the property to be Federal Home Loan Mortgage Corporation ( Federal ) and not Countrywide. Countrywide
attached the business records affidavit of Jack O Boyle, Federal s attorney, to authenticate the notice to vacate. The
notice to vacate affirmatively names Countrywide as the authorized servicing agent for Federal. Murphy offered no
evidence to contradict this statement. Murphy did, however, attach exhibits to his response motion. The attachments
consisted of a copy of the original promissory note, a cover letter purporting to transfer the original note to First
Chicago National Processing Corporation, and Murphy s personal affidavit attesting to the validity of the attached
documents. These exhibits do not constitute evidence rebutting the issue of possession.
Finally, Murphy contends that the documents used by Countrywide as summary judgment evidence are products of a
void illegal defective fraudulent procedure because Countrywide failed to prove it had authority to foreclose. However,
rule 746 of the Texas Rules of Civil Procedure does not require Countrywide to prove title. To prevail in a forcible
detainer action, Countrywide need only show sufficient evidence of ownership to demonstrate a superior right to
immediate possession. Tex. R. Civ. P. 746; Goggins, 849 S.W.2d at 377. Murphy s allegations concerning the
propriety of the foreclosure or challenges to Countrywide s deed or title to the property cannot be considered in this
action. Tex. R. Civ. P. 746; Goggins, 849 S.W.2d at 377.
Countrywide established the elements of its forcible detainer cause of action when it showed: (1) it bought the property
at a foreclosure sale, (2) Murphy occupied the property at the time of foreclosure, (3) the foreclosure was of a lien
superior to Murphy s right to possession, (4) Countrywide made a statutorily proper demand for possession with its
notice to vacate, and (5) Murphy refused to surrender possession. The evidence sufficiently established Countrywide
had an immediate right to possession, and Murphy s evidence did not raise a material issue of fact that would bar the
granting of summary judgment. See Tex. Prop. Code Ann. 24.002; Goggins, 849 S.W.2d at 377. The trial court did not
err in granting summary judgment in favor of Countrywide.
We overrule Murphy s third issue.
Conclusion
We affirm the judgment of the trial court. All pending motions are hereby denied.
George C. Hanks, Jr.
Justice
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Panel consists of Justices Taft, Keyes, and Hanks.
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