Derwin Tatum v. Wells Fargo Home Mortgage, Inc. and Federal Home Loan Mortgage Corporation

Opinion issued December 30, 2014

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-13-00855-CV

———————————

DERWIN TATUM, Appellant

V.

WELLS FARGO HOME MORTGAGE, INC. AND

FEDERAL HOME LOAN MORTGAGE CORPORATION, Appellees

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Case No. 10-DCV-182578

MEMORANDUM OPINION

Appellant Derwin Tatum appeals an adverse take-nothing summary

judgment in his suit against appellees Wells Fargo Home Mortgage, Inc. and

Federal Home Loan Mortgage Corporation (“Freddie Mac”) for wrongful

foreclosure, breach of contract, fraud, and declaratory judgment. In three issues,

Tatum challenges: (1) the summary judgment; (2) an award of attorney’s fees; and

(3) an interlocutory order that required Tatum to make monthly payments into the

court’s registry while the suit was pending.

We affirm the trial court’s take-nothing summary judgment in favor of the

appellees and the award of attorney’s fees as to Wells Fargo. We modify the

judgment to eliminate the award of attorney’s fees to Freddie Mac, and we vacate

the trial court’s order of “adequate-protection” payments, which we conclude is a

void injunction. Accordingly, we remand the case to the trial court to determine

how much money Tatum paid under the void injunction and to enter an order

refunding those amounts to him.

Background

In March 2001, Tatum obtained a mortgage loan from Wells Fargo in the

amount of $221,350.00 to buy a house in Richmond, Texas. The mortgage

documents included a promissory note and a deed of trust securing the loan with a

lien on the property.

The promissory note required Tatum to make monthly payments and

provided that failure to do so would constitute a default. The note provided for late

charges in the event of overdue payments and acceleration of the debt if Tatum

defaulted. In the event of default and acceleration, Wells Fargo would have the

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right to reimbursement for costs of enforcing the note, including attorney’s fees. At

the bottom of the note, just above Tatum’s signature and in boldface capital letters,

appeared the following words:

THIS WRITTEN LOAN AGREEMENT REPRESENTS THE

FINAL AGREEMENT BETWEEN PARTIES AND MAY NOT

BE CONTRADICTED BY EVIDENCE OF PRIOR,

CONTEMPORANEOUS, OR SUBSEQUENT ORAL

AGREEMENTS OF THE PARTIES.

THERE ARE NO UNWRITTEN ORAL AGREEMENTS

BETWEEN THE PARTIES.

The deed of trust similarly required Tatum to make monthly payments under

the note. The deed also provided for acceleration of the note should a default fail to

be timely cured, and in that situation Wells Fargo would be entitled to collect

expenses it incurred, including reasonable attorney’s fees.

Both the note and the deed required written notice of default to be sent to

Tatum “prior to acceleration following [his] breach of any covenant or agreement.”

The deed required that any such notice apprise Tatum of the alleged default and

what he could do to cure it, and it specified that such a notice “shall be deemed to

have been given to Borrower when mailed by first class mail or when actually

delivered to Borrower’s notice address if sent by other means.” The notices were to

be sent to the address of the house in Richmond or any other address properly

designated by Tatum.

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For approximately eight years, Tatum made payments as they came due, but

he fell behind when he and his wife divorced. Wells Fargo sent Tatum notices of

default and intent to accelerate on September 14, 2009, October 18, 2009, and

March 2, 2010. The March 2010 notice was sent by certified mail. These notices

stated the amount of the delinquency, including late fees, as applicable. Duplicate

notices were sent to Tatum at the Richmond house and at another address in

Houston, Texas. These notices stated that the loan was “in default,” and they

warned that unless “the payments on your loan can be brought current” within one

month, “it will become necessary to accelerate your Mortgage Note and pursue the

remedies provided for in your Mortgage or Deed of Trust.” The letters also stated

that if “funds are not received by the above referenced date,” Wells Fargo would

accelerate the loan and begin foreclosure proceedings.

On April 1, 2010, notice was sent to Tatum that payment of the debt had not

been received and Wells Fargo had elected to accelerate the maturity of the debt.

The notice stated that the house would be sold at auction on Tuesday, May 4, 2010,

in accordance with the provisions in the deed of trust and as provided in an

enclosed “Notice of Substitute Trustee Sale.” Tatum contends that between mid-

April and early July 2010, he orally negotiated a loan modification with Wells

Fargo, and in reliance on that modification he paid Wells Fargo an additional

$10,900.

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Wells Fargo sold the property to Freddie Mac for $185,318.70. In June

2010, Freddie Mac filed a forcible entry and detainer suit to gain possession of the

property, which Tatum continued to occupy. The following month, Freddie Mac’s

attorney sent Tatum a notice of lease termination demanding possession and

instructing him to vacate the house. That same month, Wells Fargo issued a check

to Tatum for $10,900 “for misapplication reversal.”

Tatum filed his own suit against Wells Fargo and Freddie Mac to stop the

forcible entry, set aside the foreclosure sale, and for a declaratory judgment,

temporary restraining order, and temporary injunctions. The petition was only

served on Freddie Mac, which filed its answer. Wells Fargo later voluntarily

appeared and filed its answer. It also counterclaimed for attorney’s fees as

sanctions for the filing of a frivolous lawsuit. A month later, Freddie Mac filed a

motion to substitute counsel, at which point both defendants were represented by

the same attorneys.

Wells Fargo and Freddie Mac filed a “motion for adequate protection,” an

equitable remedy employed by bankruptcy courts to require debtor-mortgagors to

make monthly payments for the benefit of the mortgagee. See, e.g., In re DeSardi,

340 B.R. 790, 797 (Bankr. S.D. Tex. 2006). Tatum opposed this motion, arguing in

part that Wells Fargo and Freddie Mac had not met the standard for imposition of

an injunction. The trial court granted the motion and ordered Tatum to pay $1,950

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into the registry of the court on the first day of each month “during the pendency of

this civil action.”

In May 2013, Tatum filed his first amended petition in which he pleaded for

(1) temporary injunctive relief, (2) a declaratory judgment regarding the alleged

oral modification and associated attorney’s fees, (3) breach of the alleged oral

contractual modification, (4) statutory and common-law fraud, and (5) wrongful

foreclosure. The appellees moved for summary judgment on both traditional and

no-evidence grounds, seeking dismissal of all Tatum’s claims and an award of

attorney’s fees. Tatum responded in opposition, with evidence, but after a hearing

the trial court granted the motion for summary judgment and awarded attorney’s

fees of $44,594.28. Tatum filed a motion for new trial reasserting arguments that

the award of attorney’s fees was improper. The trial court denied the motion for

new trial, and Tatum appealed.

Analysis

On appeal, Tatum challenges the trial court’s grant of a take-nothing

summary judgment in favor of Wells Fargo and Freddie Mac, the award of

attorney’s fees, and the interlocutory order that required him to make payments

into the court’s registry during the pendency of this case.

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I. Summary judgment

In his first issue, Tatum argues that the trial court erred in granting summary

judgment in favor of Wells Fargo and Freddie Mac. The appellees supported their

motion with both traditional and no-evidence grounds. Among other things, they

argued that (1) there was no evidence of damages because Tatum’s debt exceeded

the value of the property at foreclosure, (2) there was no evidence of any element

of fraud, (3) the contract claims were barred by the statute of frauds and language

in the promissory note, (4) the required notices were conclusively proved, and

(5) the claims for injunctive and declaratory relief fail because the other claims

lacked legal or factual support. Finally, they sought attorney’s fees pursuant to the

deed of trust. They later supplemented the motion with an affidavit from counsel

and billing records to support the fee request.

Tatum responded and provided his own affidavit as summary-judgment

evidence. He averred that he did not know about the foreclosure until he received

notice of the eviction suit, he had negotiated an oral modification to the loan, and

he had $70,000 in accrued equity in the house. He attached to his affidavit several

letters that he purportedly sent to Wells Fargo in furtherance of a loan

modification. In his affidavit, he refers to the attachments—i.e., the letters or

memo he wrote—but he does not attest that he actually transmitted them to Wells

Fargo. The documents do not themselves establish whether and to whom they were

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sent, as two of the three documents are directed “To Whom It May Concern,” with

no indication within the document that it may concern an agent or employee of

Wells Fargo. As to the request for attorney’s fees, Tatum argued that Wells Fargo

and Freddie Mac did not file suit or a counterclaim seeking attorney’s fees and that

the fee request was not reasonable for several reasons including that they did not

segregate the fees between the two defendants.

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

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). When, as in this case, a trial court’s order granting summary judgment

does not specify the grounds relied upon, “the reviewing court must affirm

summary judgment if any of the summary judgment grounds are meritorious.” FM

Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000). In

addition, when there are multiple grounds for summary judgment and the order

does not specify which was relied upon to render the summary judgment, the

appellant must negate all grounds on appeal. Ellis v. Precision Engine Rebuilders,

Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (citing

State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993)). “If

summary judgment may have been rendered, properly or improperly, on a ground

not challenged, the judgment must be affirmed.” Id. (citing Holloway v. Starnes,

840 S.W.2d 14, 23 (Tex. App.—Dallas 1992, writ denied)).

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The party moving for traditional summary judgment bears the burden of

showing that no genuine issue of material fact exists and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A genuine issue

of material fact exists if the nonmovant produces evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. See Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). A defendant moving for traditional summary

judgment must conclusively negate at least one essential element of each of the

plaintiff’s causes of action or conclusively establish each element of an affirmative

defense. Henkel v. Norman, 441 S.W.3d 249, 251 (Tex. 2014) (per curiam).

A no-evidence motion for summary judgment is essentially a directed

verdict granted before trial, to which we apply a legal-sufficiency standard of

review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006). A party

may move for no-evidence summary judgment if, after adequate time for

discovery, there is no evidence of one or more essential elements of a claim or

defense on which the nonmovant would have the burden of proof at trial. TEX. R.

CIV. P. 166a(i). The motion must state the elements as to which there is no

evidence. Id. The reviewing court must grant the motion unless the nonmovant

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produces summary-judgment evidence raising a genuine issue of material fact. Id.;

see Mack Trucks, 206 S.W.3d at 582.

A. Wrongful foreclosure

Wells Fargo and Freddie Mac sought summary judgment as to Tatum’s

wrongful-foreclosure claim on the grounds that there was no evidence of the

element of damages. “A plaintiff seeking damages for wrongful foreclosure must

show that (1) an irregularity in the foreclosure sale (2) caused the plaintiff

damages.” Houston Omni USA Co. v. Southtrust Bank Corp., No. 01-07-00433-

CV, 2009 WL 1161860, at *6 (Tex. App.—Houston [1st Dist.] Apr. 30, 2009, no

pet.) (mem. op.) (citing Univ. Sav. Ass’n v. Springwoods Shopping Ctr., 644

S.W.2d 705, 706 (Tex. 1982)). The “correct measure of damages” for wrongful

foreclosure is “the difference between the value of the property in question at the

date of foreclosure and the remaining balance due on the indebtedness.” C & K

Invs. v. Fiesta Grp., Inc., 248 S.W.3d 234, 254 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (citing Farrell v. Hunt, 714 S.W.2d 298, 299 (Tex. 1986)).

In response to the motion for summary judgment, Tatum averred in his

affidavit that after falling behind on his payments, he “entered into conversations

pertaining to a contemplated modification agreement.” He attested that he made

payments totaling $10,900. He stated: “In addition to the fact that the equity in the

home was over $70,000.00, I was only about 3 or 4 payments behind on the note at

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the time that I completed the loan modification applications.” He also averred that

Wells Fargo sent him a check for $10,900 after he filed suit, but the check was not

honored when he tried to deposit it.

A conclusory statement in an affidavit is not sufficient to raise a fact issue or

defeat a no-evidence motion for summary motion. See, e.g., Ryland Grp., Inc. v.

Hood, 924 S.W.2d 120, 122 (Tex. 1996). A conclusory statement is one which

does not provide the underlying facts to support the conclusion. See, e.g.,

Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied). Tatum’s passing mention that “the

equity in the home was over $70,000.00” was the only allusion to damages for

wrongful foreclosure in his summary-judgment evidence. He did not provide any

underlying facts to support his assertion that he had $70,000 of equity in the home.

Specifically, he made no mention of the value of the house or the amount owed on

the mortgage at the time of foreclosure, nor did he provide any factual basis for

determining either value. Such statements “are not credible, nor susceptible to

being readily controverted.” Ryland Grp., 924 S.W.2d at 122. Accordingly, his

statement regarding the equity in the home was conclusory and inadequate to

defeat the no-evidence motion for summary judgment. Accordingly, we conclude

that the trial court correctly granted summary judgment as to the wrongful-

foreclosure claim.

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B. Statutory and common-law fraud

Wells Fargo and Freddie Mac also sought summary judgment on the

statutory and common-law fraud claims. In particular, they argued that Tatum had

no evidence that: (1) Wells Fargo made false representations, (2) Wells Fargo was

aware that the speaker knew his statements were false or made recklessly and

without knowledge of the truth; (3) the speaker intended Tatum to act upon his

representation; (4) he suffered injury; or (5) Wells Fargo knew of or benefited from

the falsity of a third-party’s representation or promise.

In his brief, Tatum argues that the court should have submitted his fraud

claims to a jury. In support of this argument, he quotes Section 27.01 of the Texas

Business and Commerce Code, which defines a cause of action for statutory fraud,

and he provides citations to several cases regarding evidentiary sufficiency after a

jury trial, the need for an appellant to prove justifiable reliance on a

misrepresentation, and whether a fraud claim for out-of-pocket damages is barred

by the statute of frauds. But he does not respond to the no-evidence grounds for

summary judgment raised by the motion. He provides neither argument nor

citation to the record indicating that he came forward with legally sufficient

evidence on the elements challenged by the no-evidence motion. Because summary

judgment as to Tatum’s fraud claims could have been rendered on the no-evidence

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grounds raised in the motion, we must affirm the court’s grant of summary

judgment as to the fraud claims. See Ellis, 68 S.W.3d at 898.

C. Breach of contract

In addition to Tatum’s complaints about the foreclosure, he also contends

that the loan agreements were orally modified and that Wells Fargo breached these

agreements by accepting and keeping payments made after the foreclosure sale.

Wells Fargo and Freddie Mac argued, among other things, that Tatum’s contract

claims were barred by the statute of frauds. On appeal, as in the trial court, Tatum

argues that the statute of frauds does not apply because of the partial-performance

exception and that the court should have considered parol evidence to determine

the existence of an oral contract.

The essential elements of a breach of contract claim are (1) the existence of

a valid contract; (2) performance or tendered performance by the plaintiff;

(3) breach of the contract by the defendant; and (4) damages sustained as a result

of the breach. E.g., N. & W. Ins. Co. v. Sentinel Inv. Grp., LLC, 419 S.W.3d 534,

539 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The appellees challenge the

first element by arguing that the statute of frauds defeats the allegation of an oral

contract modification as a matter of law.

As relevant to the claims at issue in this case, the statute of frauds provides

that a “loan agreement in which the amount involved in the loan agreement

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exceeds $50,000 in value is not enforceable unless the agreement is in writing and

signed by the party to be bound or . . . [his] authorized representative.” TEX. BUS.

& COM. CODE § 26.02(b). The statute also provides that in such a loan agreement,

the financial institution must give the debtor the following notice:

This written loan agreement represents the final agreement between

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

contemporaneous, or subsequent oral agreements of the parties.

There are no unwritten oral agreements between the parties.

Id. § 26.02(e). This notice “must be in type that is boldface, capitalized,

underlined, or otherwise set out from surrounding written material so as to be

conspicuous.” Id. “Generally, if a contract falls within the statute of frauds, then a

party cannot enforce any subsequent oral material modification to the contract.” SP

Terrace, L.P. v. Meritage Homes of Tex., LLC, 334 S.W.3d 275, 282 (Tex. App.—

Houston [1st Dist.] 2010, no pet.) (citing Dracopoulas v. Rachal, 411 S.W.2d 719,

721 (Tex. 1967)).

In this case, both the deed of trust and the promissory note executed in 2001

are subject to the statute of frauds as contracts involving a loan agreement in

excess of $50,000 in value. Tatum argues that the statute of frauds does not bar

evidence of a subsequent oral modification because the deed of trust does not

include the statutory language. However, the statute specifies that the language

about the nullity of oral agreements may be contained in “a separate document

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signed by the debtor . . . or incorporated into one or more of the documents

constituting the loan agreement.” TEX. BUS. & COM. CODE § 26.02(e). In this case,

the statutory notice appears in boldface, capitalized type at the bottom of the

promissory note that Tatum signed. Thus, the terms of the promissory note prohibit

enforcement of a subsequent oral modification.

In Ellen v. F.H. Partners, LLC, No. 03-03-00310-CV, 2010 WL 4909973

(Tex. App.—Austin Dec. 1, 2010, no pet.) (mem. op.), the court of appeals held

that a subsequent oral statement by a bank representative could not be enforced as

a contract. After Sonny Ellen defaulted on a $500,000 mortgage for the purchase of

real property, he approached the note holder’s loan officer and asked for time to

refinance or sell the property before the initiation of foreclosure proceedings.

Ellen, 2010 WL 4909973, at *1. Ellen contended that the loan officer said such

delay was “doable,” which he interpreted as a promise to delay foreclosure. Id. But

the property was sold at a foreclosure auction, and Ellen sued for promissory

estoppel. Id. at *2. The court of appeals affirmed the trial court’s take-nothing

summary judgment. The appellate court held that because the loan agreement

included a signed, written notice of invalidity of oral statements and because the

loan agreement was subject to the statute of frauds, Ellen could not enforce an oral

modification to the loan agreement. Id.

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The same logic applies to this appeal: because the promissory note was

subject to the statute of frauds and it included the statutory notice of invalidity of

oral statements, any oral modification to Tatum’s loan is unenforceable. See id.

Nevertheless, Tatum argues that his contract claims are not barred by the

statute of frauds because the partial-performance exception applies. Partial

performance of a contract is an equitable exception to the statute of frauds. See

Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex. App.—Dallas 2002, pet.

denied); Resendez v. Maloney, No. 01-08-00954-CV, 2010 WL 5395674, at *7

(Tex. App.—Houston [1st Dist.] Dec. 30, 2010, pet. denied) (mem. op.). “Under

the partial performance exception to the statute of frauds, contracts that have been

partly performed, but do not meet the requirements of the statute of frauds, may be

enforced in equity if denial of enforcement would amount to a virtual fraud.”

Exxon, 82 S.W.3d at 439. Virtual fraud means that due to reliance on a contract, a

party has suffered a substantial detriment for which he has no adequate remedy,

and the other party would reap an unearned benefit if permitted to invoke the

statute of frauds. See id. However, the acts constituting partial performance must

be unequivocally referable to the agreement and corroborative of the fact that a

contract actually was made, such that they serve no purpose other than to fulfill the

particular agreement sought to be enforced. Id. Otherwise, they do not tend to

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prove the existence of the otherwise unenforceable agreement relied upon by the

plaintiff. Id. at 439–40.

Wells Fargo supported its motion for summary judgment with an affidavit

from its corporate representative, who averred that the bank did not modify, agree

to modify, or promise to modify Tatum’s loan. Tatum’s summary-judgment

evidence does not indicate that Wells Fargo actually agreed to modify the loan.

Instead his affidavit avers that he “endeavored to make acceptable arrangements”

and that the parties “contemplated” a modification, but not that they actually

reached an agreement or that Wells Fargo promised to modify the loan. When a

nonmovant’s summary-judgment evidence does no more than create a mere

surmise or suspicion, it is not legally sufficient. See Kroger Tex. L.P. v. Suberu,

216 S.W.3d 788, 793 (Tex. 2006). Tatum’s affidavit does not establish that Wells

Fargo agreed to a loan modification: it provides no more than a hint or mere

suspicion of an agreement. This is not legally sufficient. See id. Because there is no

evidence of an agreement, there is also no evidence that Tatum’s action in paying

$10,900 to Wells Fargo was unequivocally referable to the agreement. See Exxon,

82 S.W.3d at 439. Moreover, apart from any allegation of an oral modification, the

fact that the payments were made was consistent with Tatum’s default and the

acceleration of the loan. Accordingly, we conclude that the partial performance

equitable exception to the statute of frauds does not apply in this case, and we hold

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that the trial court did not err in granting summary judgment as to Tatum’s breach

of contract claim.

D. Declaratory judgment

In his first amended petition, Tatum sought a declaratory judgment that

(1) the parties modified the loan, (2) the foreclosure sale was void due to the loan

modification and “lack of requisite notice of the alleged deficiency of the modified

loan agreement,” (3) Wells Fargo refunded the $10,900 that he paid in reliance on

the loan modification, (4) Wells Fargo converted $10,900 that was deposited in his

account, (5) $10,900 should be applied to the loan as modified, and (6) the

appellees “should not be entitled to tack on late fees, attorney’s fees or the costs of

foreclosure on the loan balance.” Tatum also sought attorney’s fees in conjunction

with his declaratory-judgment action.

Wells Fargo and Freddie Mac sought summary judgment as to the

declaratory-judgment claim on the grounds that it is not the proper procedural

device for resolving factual disputes and that the summary-judgment proof

established as a matter of law that the foreclosure proceedings were proper. They

argued that all of Tatum’s claims failed “as a matter of fact and law.” Summary

judgment was granted, dismissing all of Tatum’s declaratory-judgment claims.

On appeal, Tatum contends that a declaratory-judgment counterclaim is

appropriate when it raises separate issues with “greater ramifications” or otherwise

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not “fully covered” by the original suit. He also argues that he “provided sufficient

evidence of an oral modification agreement” and that the trial court “erred by

refusing to submit this evidence at final trial.” He concludes his appellate argument

by stating that “[t]his Court should reverse and require the trial court to enter a

declaratory judgment spelling out the exact terms of the loan modification

agreement including the interest rate, monthly note and schedule, and the term of

the note if Derwin Tatum convinces the factfinder that the bank agreed to these

terms.”

It is axiomatic that to obtain reversal on appeal, an appellant must bring

forward a “clear and concise argument for the contentions made.” TEX. R. APP.

P. 38.1(i). The only clear and concise argument offered for reversing the summary

judgment dismissing the declaratory-judgment claims is predicated on the

argument that the loan agreement was orally modified, and we have already

explained that the trial court correctly rejected this claim. Accordingly, we overrule

Tatum’s appellate challenge to the dismissal of his declaratory-judgment claim.

The appellees’ brief addresses the substantive arguments they raised in the trial

court to support their challenge to each particular aspect of Tatum’s declaratory-

judgment claim, but since Tatum’s brief does not refute any of these arguments, we

need not discuss them to affirm this aspect of the judgment. See Ellis, 68 S.W.3d at

898.

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E. Injunctive relief

Tatum makes no argument on appeal regarding the propriety of the summary

judgment in respect to his claims for injunctive relief. Wells Fargo and Freddie

Mac challenged his injunctive claims on the basis that his alleged injury was not

irreparable and he was not likely to succeed at final trial on the merits. Because

summary judgment as to Tatum’s claims for injunctive relief could have been

rendered on this unchallenged ground, we must affirm this part of the court’s grant

of summary judgment. See id.

We overrule Tatum’s first issue.

II. Contractual attorney’s fees

In their motion for summary judgment, the appellees sought attorney’s fees

based on the contractual provision in the deed of trust. The trial court awarded

attorney’s fees to Wells Fargo and Freddie Mac, and Tatum challenges this award

in his second issue. In particular, Tatum argues that (1) his counsel’s affidavit

controverted the reasonableness of the amount of fees incurred, (2) Wells Fargo

“did not sue under the deed of trust” and the issue was not tried by consent, (3) the

fees were not segregated between Wells Fargo and Freddie Mac, and (4) there was

no presuit demand for attorney’s fees.

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A. Contractual basis for fee recovery

“As a general rule, litigants in Texas are responsible for their own attorney’s

fees and expenses in litigation.” Ashford Partners, Ltd. v. ECO Res., Inc., 401

S.W.3d 35, 41 (Tex. 2012). “Under Texas law, a court may award attorney’s fees

only when authorized by statute or by the parties’ contract.” Peterson Grp., Inc. v.

PLTQ Lotus Grp., L.P., 417 S.W.3d 46, 87 (Tex. App.—Houston [1st Dist.] 2013,

pet. denied) (citing MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d

660, 669 (Tex. 2009)).

Section 9 of the deed of trust authorizes the recovery of reasonable

attorney’s fees “if . . . there is a legal proceeding that might significantly affect

Lender’s interest in the Property and/or rights under this Security Instrument.”

Tatum filed suit against Wells Fargo and Freddie Mac arguing, among other

things, that the foreclosure sale was wrongful and void for failure to strictly

comply with the deed of trust. Considering that Tatum’s petition sought to

invalidate the foreclosure sale, this is a legal proceeding that might significantly

affect the parties’ interest in the property. See, e.g., Tanner v. Nationwide Mut.

Fire Ins. Co., 289 S.W.3d 828, 831 (Tex. 2009) (courts are to construe contracts

according to the plain, ordinary meaning of the language used).

Wells Fargo was the “Lender” under the deed of trust, and accordingly,

unless the award is barred by some other rule of law, it was entitled to its

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attorney’s fees. Freddie Mac, however, was not a party to the deed of trust, nor was

it a third-party beneficiary because the deed of trust did not clearly provide any

benefit to one who subsequently purchased the property at a foreclosure sale. See,

e.g., Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002) (contract must contain clear

and unequivocal language showing intent to benefit a third party for such party to

be entitled to enforce the agreement as a third-party beneficiary). Thus, we

conclude that Wells Fargo was entitled to recover attorney’s fees, but Freddie Mac

was not.

B. Reasonableness of fees

Tatum also argues that the court erred in awarding attorney’s fees because

the amount of fees was unreasonable and was controverted by his attorney’s

affidavit. Tatum’s attorney proffered two affidavits on the question of attorney’s

fees. The first affidavit stated:

I am an attorney who is duly licensed by the State Bar of Texas and

has been employed as a civil trial attorney for a period in excess of ten

years. I am Board Certified in Personal Injury Trial Law. I am familiar

with the usual, ordinary and customary charges for like or similar

services that were rendered in connection with this cause. I have

reviewed the request for attorneys’ fees in the motion for summary

judgment. In my opinion, the fees claimed are not a reasonable and

necessary fee for the services rendered in preparation for this case.

Because this statement did not provide underlying facts to support the conclusion

that the fees were unreasonable, it was conclusory, and therefore it did not raise a

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fact issue on the question of the reasonableness of the requested attorney’s fees.

See Ryland Grp., 924 S.W.2d at 122; Pipkin, 383 S.W.3d at 670.

In his second affidavit, Tatum’s attorney averred that he had reviewed the

affidavit from appellees’ attorney, and in his opinion, the “fees claimed are not a

reasonable and necessary fee for the services rendered in preparation for this case.”

He points out that Freddie Mac was previously represented by a different law firm.

He mentions that billing entries as remote as February 2011 show charges for

reviewing and responding to discovery requests, yet the appellees’ counsel

contended that they did not receive those requests and asked for duplicates as

recently as July 2013. The affidavit also asserts that the fees are not segregated

between Wells Fargo and Freddie Mac.

Like the earlier affidavit, this one is also conclusory because it does not

provide a factual basis for the conclusion that the amount of fees requested by

Wells Fargo was unreasonable. The affidavit does not provide any support to

challenge the hourly rates charged as being unreasonably high, the time spent as

excessive, the tasks performed as unnecessary, or that the work was not performed

as detailed in the billing records. The lack of a factual basis for the conclusion

offered makes this affidavit insufficient to raise a question of fact as to the

reasonableness of attorney’s fees. See Cammack the Cook, L.L.C. v. Eastburn, 296

S.W.3d 884, 895 (Tex. App.—Texarkana 2009, pet. denied) (holding that affidavit

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did not controvert evidence of attorney’s fees when it did not provide a factual

basis for conclusion that fees were unreasonable).

C. Trial by consent

Tatum also argues that the judgment for attorney’s fees was improper

because the appellees did not include a request for attorney’s fees in their

pleadings, this defect was raised in the trial court, and the issue was not tried by

consent. A judgment must be supported by the pleadings, and a party may not be

granted relief in the absence of pleadings to support such relief. TEX. R. CIV.

P. 301; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983); Salomon

v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

However, “[w]hen issues not raised by the pleadings are tried by express or

implied consent of the parties, they shall be treated in all respects as if they had

been raised in the pleadings.” TEX. R. CIV. P. 67; see Roark v. Stallworth Oil &

Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); Hartford Fire Ins. Co. v. C. Springs

300, Ltd., 287 S.W.3d 771, 780 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied). Trial by consent may be applied in the context of summary judgments. See

Roark, 813 S.W.2d at 495; Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 273

n.6 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d). To determine whether an

issue was tried by consent, we must review the record not for evidence of the issue,

but rather for evidence of trial of the issue. Hartford Fire Ins., 287 S.W.3d at 780.

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“A party’s unpleaded issue may be deemed tried by consent when evidence on the

issue is developed under circumstances indicating both parties understood the issue

was in the case, and the other party failed to make an appropriate complaint.” Case

Corp. v. Hi-Class Bus. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas

2005, pet. denied). However, an issue is not tried by consent if the evidence

relevant to that issue is also relevant to other issues raised by the pleadings. See

Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 446 (Tex. 1993).

Wells Fargo did plead for attorney’s fees. In its original answer, Wells Fargo

included a counterclaim for attorney’s fees as a sanction for the filing of a

frivolous claim. Tatum argued in the trial court that Wells Fargo had not filed a

counterclaim upon which a recovery of attorney’s fees could be predicated.

However, the deed of trust does not require that Wells Fargo be a claimant in a

legal proceeding affecting its interest in the property in order to be entitled to

reasonable attorney’s fees.

In any event, we conclude that in the unusual procedural circumstances

presented in this case, the issue of attorney’s fees was tried by consent. In opposing

the appellees’ request for attorney’s fees in their motion for summary judgment,

Tatum’s counsel provided his own affidavit, in which he averred:

As of the date of filing the motion for summary judgment, Defendant

has not filed a counterclaim seeking attorney’s fees. Notwithstanding

the fact WELLS FARGO has not sued to recover attorneys’ fees, the

claimed amount for attorney’s fees is excessive. The Court should

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deny the motion for summary judgment and allow the factfinder to

determine the amount of attorney’s fees—in the event that it is

needed. Attached hereto as Exhibit “B” please find an affidavit from

that indicates that the $38,102.53 in attorneys’ fees claimed are not a

reasonable and necessary fee for the services rendered in preparation

for this case.

In his affidavit, Tatum’s counsel asserted that in his opinion the fees were not

reasonable.

The parties entered into a Rule 11 agreement, providing for the late filing of

a supplement to the motion for summary judgment and response thereto. The

agreement took the form of a letter from Tatum’s counsel to counsel for Wells

Fargo and Freddie Mac, stating that no affidavit in support of attorney’s fees had

been received, and suggesting an extension of time for a response. The letter

stated:

To the extent you intend to seek a recovery for attorney’s fees, kindly

provide us a copy of these items by Thursday, July 18, at 10:00 a.m.

In turn, afford us until Friday at 5:00 p.m. in which to convert [sic]

this claim by supplementing our response to the motion for summary

judgment. Should you not agree to our proposal, we will have no

choice but to object to them on this basis.

If this agreement meets with your approval, please indicate by signing

below.

The agreement was signed by counsel for all parties.

Wells Fargo and Freddie Mac filed a supplement to their motion for

summary judgment in regard to attorney’s fees. In it, they argued that they were

entitled to attorney’s fees pursuant to the deed of trust and because Tatum’s lawsuit

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was frivolous. Attached to this supplement was an affidavit from their attorney,

who averred that the fee was reasonable, was calculated based on the number of

hours spent and the stated hourly rate, and that his hourly rate was reasonable.

Billing records were attached which showed the hours worked and billed, the

hourly rate, a narrative description of the tasks accomplished, and itemized costs.

Tatum responded that the appellees had “not filed a counterclaim seeking

attorneys’ fees,” and he opposed the fee request as unreasonable. In the attached

affidavit, Tatum’s attorney asserted his opinion that the fees were unreasonable.

At the summary-judgment hearing, Tatum’s counsel specifically asked the

court to approve the parties’ agreement “with respect to the attorney’s fees issue,”

i.e., for Tatum to waive 21-day notice required by rule, to allow the appellees to

supplement their motion for summary judgment with an affidavit and records

pertaining to attorney’s fees, and for Tatum to file a response days before the

summary-judgment hearing. The court granted a motion permitting Tatum’s late

filing.

Wells Fargo and Freddie Mac argued that the attorney’s fees were

authorized by both the deed of trust and the promissory note. Tatum disputed their

entitlement to attorney’s fees because they had not filed a counterclaim, and

because the fees were not reasonable or segregated by defendant. He also argued

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that some charges predated Wells Fargo’s appearance in the case, and that Freddie

Mac was not entitled to attorney’s fees.

The record here shows that Tatum understood the issue of attorney’s fees

was part of the summary-judgment proceedings. His counsel brought to the

appellees’ attention the fact that he had not received an affidavit in support of their

request for attorney’s fees and agreed to allow them time to supplement their

motion for summary judgment. He affirmatively sought court approval of their

agreement regarding extending the time to supplement the motion for summary

judgment and the time for Tatum’s response to the attorney’s fee request. Tatum

raised his concerns regarding segregation and reasonableness. None of these

arguments or the supporting evidence, i.e. competing affidavits, was relevant to

any other issue in the case.

Because the issue of attorney’s fees was developed under circumstances that

indicated Tatum and the appellees understood the issue was in the case, we hold

that the attorney’s fees issue was tried by consent. See Case, 184 S.W.3d at 771.

D. Segregation of fees

Tatum further argues that the attorney’s fee award was improper because the

appellees’ summary-judgment evidence did not segregate the fees by work done

for each client. “When a lawsuit involves multiple claims or parties, the proponent

of attorney’s fees must segregate recoverable fees from those incurred by parties or

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on claims for which fees are not recoverable.” Clearview Props., L.P. v. Prop. Tex.

SC One Corp., 287 S.W.3d 132, 143 (Tex. App.—Houston [14th Dist.] 2009, pet.

denied) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex.

2006)). Attorney’s fees that relate solely to a claim for which fees are

unrecoverable must be segregated. Chapa, 212 S.W.3d at 313. The Supreme Court

of Texas has held that attorney’s fees are recoverable only as provided by contract

or statute, and it “eliminated the exception for fees incurred solely on separate but

arguably intertwined claims.” Varner v. Cardenas, 218 S.W.3d 68, 69 (Tex. 2007)

(citing Chapa, 212 S.W.3d at 313). But the Supreme Court did not require that all

fees be segregated even when incurred by co-defendants jointly represented by the

same counsel and when such fees are incurred as a result of the same discrete tasks

and work. Such is the case here.

The billing records at issue show some charges for work incurred in regard

to protecting Wells Fargo’s interest and some incurred in protecting Wells Fargo

and Freddie Mac’s common interest. At the hearing, counsel for the appellees

explained:

Freddie Mac’s only in the case because they purchased the property at

the foreclosure sale. All of the claims are against Wells Fargo. So, in

that sense, when we’re filing pleadings on behalf of Wells Fargo,

we’re filing pleadings on behalf of Wells Fargo and Freddie Mac.

Freddie Mac’s only there by name, because there’s no real claims

against them. So, in that sense, we didn’t have to segregate any time

between Freddie Mac and Wells Fargo, because it’s all the same

work.

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Wells Fargo was entitled to contractual attorney’s fees by virtue of the deed of

trust. Nothing in the record shows that any of the attorney’s fees at issue were

incurred for work solely on behalf of Freddie Mac. Accordingly, the appellees

were not required to segregate attorney’s fees. See Chapa, 212 S.W.3d at 313.

E. Presuit demand

Finally, Tatum argues that the attorney’s fee award was improper because

Wells Fargo failed to make a presuit demand in compliance with section 38.001 of

the Civil Practice and Remedies Code. The appellees never sought statutory

attorney’s fees for breach of contract; rather, they sought attorney’s fees as

provided in the deed of trust. “When parties include an attorney’s fee provision in a

contract, the language of the contract controls rather than the language of the

statute.” Peterson Grp., 417 S.W.3d at 88. Because Wells Fargo was not required

to make a presuit demand, Tatum’s argument to that effect lacks merit.

We sustain Tatum’s second issue in part, and we will modify the trial court’s

judgment to award attorney’s fees to Wells Fargo but not Freddie Mac. Tatum’s

second issue is otherwise overruled.

III. Order for “adequate-protection” payments

In his third issue, Tatum argues that the trial court erred by ordering him to

make “adequate-protection” payments during the pendency of litigation. Among

other things, he contends that this order was a mandatory injunction and that the

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appellees did not establish their right to an injunction. Wells Fargo and Freddie

Mac argue that the order was not an injunction and that the trial court had broad

equitable powers to order these payments.

A temporary injunction is an extraordinary remedy, the purpose of which is

“to preserve the status quo of the litigation’s subject matter pending a trial on the

merits.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). An

applicant seeking a temporary injunction must plead and prove: “(1) a cause of

action against the defendant; (2) a probable right to the relief sought; and (3) a

probable, imminent, and irreparable injury in the interim.” Id. The applicant is not

required to establish that he will prevail at trial on the merits; rather, the only

question before the trial court is whether the applicant is entitled to preservation of

the status quo in the meantime. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.

1993); Intercontinental Terminals Co. v. Vopak N. Am., Inc., 354 S.W.3d 887, 897

(Tex. App.—Houston [1st Dist.] 2011, no pet.).

In Qwest Communications Corp. v. AT&T Corp., 24 S.W.3d 334 (Tex.

2000), the Supreme Court held that it is the character and function of an order, not

whether it complies with formal and procedural requirements, that determines

whether an order is an injunction. Qwest, 24 S.W.3d at 336–38. In that case, an

order was an injunction when it restricted the defendant’s conduct, mandated that it

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take certain actions, was entered upon the plaintiff’s request, was effective

immediately, and operated during the pendency of the suit. Id. at 336–37.

Rules of Civil Procedure 683 and 684 set forth the formal requirements for

an order granting a temporary injunction. Rule 683 provides:

Every order granting an injunction and every restraining order shall

set forth the reasons for its issuance; shall be specific in terms; shall

describe in reasonable detail and not by reference to the complaint or

other document, the act or acts sought to be restrained; and is binding

only upon the parties to the action, their officers, agents, servants,

employees, and attorneys, and upon those persons in active concert or

participation with them who receive actual notice of the order by

personal service or otherwise.

Every order granting a temporary injunction shall include an order

setting the cause for trial on the merits with respect to the ultimate

relief sought. The appeal of a temporary injunction shall constitute no

cause for delay of the trial.

TEX. R. CIV. P. 683. Rule 684 requires that an order granting a temporary

injunction “fix the amount of security to be given by the applicant.” TEX. R. CIV.

P. 684. “[T]hese procedural requirements are mandatory, and an order granting a

temporary injunction that does not meet them is subject to being declared void and

dissolved.” Qwest, 24 S.W.3d at 337; see InterFirst Bank San Felipe, N.A. v. Paz

Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986) (stating that requirements of

Rule 683 are mandatory and must be strictly followed); Conlin v. Haun, 419

S.W.3d 682, 686 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (aggregating

cases).

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We conclude that the order for adequate protection functioned as a

temporary injunction. It mandated that Tatum take certain actions, i.e., make

periodic payments during the pendency of litigation, it was entered on the

appellees’ request, it was effective at the time it was entered, and it operated during

the pendency of the suit. See Qwest, 24 S.W.3d at 336–37.

Tatum further argues that the order was improperly entered because the

appellees did not prove their entitlement to an injunction in that they failed to plead

and prove a cause of action against him, a probable right to the relief sought, and a

probable, imminent, and irreparable injury in the interim. See Butnaru, 84 S.W.3d

at 204. However, we need not reach this argument because our determination that

this order is an injunction inescapably leads to the conclusion that it is void

because it did not comply with the formal requirements in Rules 683 and 684. It

did not set forth the reasons for its issuance, set the cause for trial, or fix any

amount of security. See TEX. R. CIV. P. 683, 684. Accordingly, this order is void.

See Qwest, 24 S.W.3d at 336–38. We do not reach Tatum’s merits-based

arguments pertaining to this order because “appellate courts do not have

jurisdiction to address the merits of appeals from void orders.” Freedom

Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012). We hold that the

order granting adequate protection was void, we vacate that order, and we remand

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to the trial court to determine what sum of money, if any, should be refunded to

Tatum.

Conclusion

We modify the trial court’s judgment to award attorney’s fees to Wells

Fargo but not Freddie Mac, and we affirm the judgment as modified. We further

vacate the order for adequate protection and remand to the trial court to determine

what sum of money, if any, should be refunded to Tatum.

Michael Massengale

Justice

Panel consists of Justices Jennings, Sharp, and Massengale.

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