ESTATE OF TURNER HARGRAVE v. << (2025)

OPINION

In this home equity loan foreclosure dispute, James Hargrave appeals a summary judgment dismissing his debt-relief claims and granting appellee Green Mountain Holdings (Cayman), LTD's foreclosure counterclaim. In three issues, Mr. Hargrave contends (1) Green Mountain “lacked standing to prosecute the counterclaim”; (2) “there were outstanding fact issues (conflicting evidence) on at least one element of each outstanding claim”; and (3) “even if [Green Mountain] had standing, its counterclaim is impermissible.” We affirm.

Background

In November 2006, Susan Turner-Hargrave obtained a home equity loan by executing a note in the amount of $380,000.00, secured by a deed of trust against a Cedar Hill, Texas, residence (“the property”). Her husband, Mr. Hargrave, was not a signatory on the note but joined her in signing the deed of trust. No payment was ever made on the note.

In 2015, the then-mortgagee filed an expedited foreclosure proceeding pursuant to Texas Rule of Civil Procedure 736. See Tex. R. Civ. P. 736. That proceeding was dismissed when Ms. Turner-Hargrave and Mr. Hargrave filed a federal court lawsuit against the then-mortgagee challenging the loan agreement's enforceability. The federal court ruled against the couple in April 2018. Their appeal to the Fifth Circuit was dismissed for want of prosecution following Ms. Turner-Hargrave's July 2018 death.

The Dallas County probate court administration proceeding underlying this appeal commenced in 2019. In October 2020, Notecraft Capital, LLC became the mortgagee as to the 2006 note and deed of trust. A few months later, the probate court approved Notecraft's claim of $1,058,023.17 as a preferred debt and lien against the property. In January 2021, Notecraft filed (1) a foreclosure sale application pursuant to Texas Estates Code section 355.155 and (2) a rule 736 expedited foreclosure application. The probate court signed April 26, 2021 orders granting both applications and authorizing Notecraft “and its successors and assigns” to proceed with foreclosure regarding the property.

On July 6, 2021, Mr. Hargrave filed a separate Dallas County lawsuit against Notecraft and its mortgage servicer, FCI Lender Services, Inc., contesting the pending foreclosure. Mr. Hargrave claimed, among other things, breach of contract and violation of the Texas Property Code and Texas Debt Collection Act. Though that lawsuit was initially assigned to Dallas County Court at Law No. 1, it was transferred into the underlying probate proceeding on September 8, 2021.³

Meanwhile, Mr. Hargrave also filed an August 9, 2021 appeal in this Court challenging the probate court's April 26, 2021 orders. See Estate of Turner-Hargrave, No. 05-21-00681-CV, 2021 WL 4304570 (Tex. App.—Dallas Sept. 22, 2021, no pet.) (mem. op.). That appeal was dismissed by this Court on September 22, 2021, at Mr. Hargrave's request.

On October 7, 2021, Notecraft filed a foreclosure counterclaim in Mr. Hargrave's transferred lawsuit pending in the probate court. The counterclaim stated it was filed by “NOTECRAFT ․, its successors and assigns,” and asserted causes of action for breach of contract, non-judicial foreclosure, and, in the alternative, judicial foreclosure. On October 26, 2021, Notecraft executed an assignment of “all its right, title and interest” regarding the note and deed of trust to Green Mountain. The assignment was recorded in the Official Records of Dallas County on November 9, 2021. On November 5, 2021, Notecraft filed a “Motion to Substitute Real Party in Interest” in the probate court proceeding, requesting that Notecraft “be removed” and Green Mountain “continue as Counter-Plaintiff herein, acting on its own behalf.”⁴

In January 2022, Green Mountain filed a traditional motion for summary judgment asserting, among other things, that “Green Mountain is entitled to summary judgment on its request for an order allowing foreclosure, because the summary judgment evidence conclusively establishes that: (1) a debt exists (as Decedent Obligor executed the Note and Decedent Obligor and Hargrave executed the Deed of Trust); (2) the debt is secured by a lien created under Article 16, Section 50(a)(6) of the Texas Constitution ․; (3) the Loan is in default and is due for the January 1, 2007 payment; and (4) notice of default and notice of acceleration have been provided to Decedent Obligor and Hargrave.” The evidence attached to Green Mountain's motion included affidavits of records custodians of Green Mountain and Notecraft and approximately 180 pages of documents.

Additionally, Notecraft, FCI, and their “successors and assigns” filed a January 2022 combined traditional and no-evidence motion for summary judgment, contending the summary judgment evidence “conclusively negates one or more essential elements to prove Plaintiffs’ claims” and shows “a complete chain of assignments” and compliance with the terms of the note, deed of trust, and Texas law. The attachments to that motion included approximately 160 pages of affidavits and documents.

Mr. Hargrave filed a March 9, 2022 summary judgment response asserting, among other things, “[Green Mountain] cannot pursue any counterclaim for foreclosure as a substituted counter-claimant under a counterclaim initiated by Notecraft, who lost standing; a new proceeding must be commenced to pursue such a claim.” According to Mr. Hargrave,

Notecraft is not a proper summary judgment movant, and [Green Mountain] is not a proper Counter-Plaintiff based in any part on the relief accorded by the Fifth District Court of Appeals in Case No. 05-21-00681-CV, because Notecraft seeks relief when it claims no interest in the Note or the Security Instrument at issue, and Notecraft and [Green Mountain] claim that Notecraft assigned all interest in the Note and Security Instrument on October 26, 2021 while Hargrave's appeal in Case No. 05-21-00681-CV was still live, since at such time Hargrave was still eleven days away from the end of the time for him to have petitioned the Supreme Court of Texas for review, and the mandate of the Court of Appeals was not issued until December 6, 2021․

․ Since Notecraft did not maintain standing throughout the appeal, hence had no justiciable interest in the subject matter of this case at the time of the Mandate, Notecraft cannot claim the benefit of [the April 26, 2021 order authorizing public sale] or the Mandate of the Court of Appeals; hence [Green Mountain's] counterclaim is moot, and there is no basis for [Green Mountain] to obtain summary judgment upon it. There cannot properly be a substitution of [Green Mountain] for Notecraft in any manner where [Green Mountain] benefits from any finding or order that was issued for the benefit of Notecraft.

Further, Mr. Hargrave argued (1) the movants’ evidence was “on its face, insufficient” to support summary judgment; (2) “no relief whatsoever” should be awarded to Green Mountain “without production of the actual note and allonges”; and (3) “for the duration of a suit such as this, there [is] a complete bar to any independent claims or counterclaims by the creditor such as [Green Mountain] claims to be” and thus any resulting summary judgment on Green Mountain's “impermissible” counterclaim “would be void or voidable.”

Green Mountain, Notecraft, and FCI filed a summary judgment reply asserting, among other things, (1) their affidavits “meet the requirements of Tex. R. Civ. P. 166a(f) and attach business records which are admissible under the business records exception”; (2) “Hargrave's arguments regarding the original note and/or indorsements to the note are a red herring” because “Green Mountain established its right as the beneficiary of the Deed of Trust ․ and therefore, under Texas Property Code has the authority to foreclosure”; (3) “the no evidence motion must be considered as uncontested” because “Hargrave's response fails to set forth any evidence”; (4) the argument that the counterclaim is not permitted “relies on a quote from the Northern District of Texas regarding a mortgagee's ability to proceed on a Rule 736 expedited action for foreclosure during the pendency of a borrower's suit,” but “[t]he Counterclaim herein was not filed as an expedited action under Rule 736”; and (5) Mr. Hargrave's standing argument “lacks reason and authority” and “[a]ny argument regarding his ․ dismissed appeal is simply not relevant.”

Following written submission, the probate court signed a July 8, 2022 order denying both summary judgment motions. Green Mountain and Notecraft filed a March 17, 2023 joint motion to reconsider, which was heard on April 4, 2023. Appellees’ counsel argued, among other things, that “frequently, in mortgage litigation a lender will assign its rights from one lender to the next and ․ [t]hey stand in the shoes of the original lender and movant, just as anyone with privity.”

On January 12, 2024, the probate court signed an order vacating its previous denial order, granting both summary judgment motions, and stating that “Green Mountain, its successors, or assigns, are entitled to proceed with a non-judicial foreclosure sale of the secured property made the subject of this proceeding” and “all relief not expressly granted is denied.” Mr. Hargrave filed a motion to vacate the judgment, which was denied. This appeal timely followed.

Analysis

We review a traditional summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313, 316 (Tex. 2019). A traditional motion for summary judgment requires the moving party to show that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). On appellate review, we take evidence favorable to the nonmovant as true and we indulge every reasonable inference and resolve every doubt in the nonmovant's favor. Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019). If the movant satisfies its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Lujan, 555 S.W.3d at 84. Where, as here, the trial court's order granting summary judgment does not specify the grounds relied upon, we affirm if any of the summary judgment grounds presented to the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

Challenge to standing

A plaintiff must have both standing and capacity to bring a lawsuit. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). The issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a “justiciable interest” in its outcome, whereas the issue of capacity “is conceived of as a procedural issue dealing with the personal qualifications of a party to litigate.” Id. Standing must exist at the time a plaintiff files suit and must continue to exist between the parties at every stage of the legal proceedings, including the appeal. City of Dallas v. Woodfield, 305 S.W.3d 412, 416 (Tex. App.—Dallas 2010, no pet.).

Because an assignee “stands in the shoes” of the assignor, the assignee obtains all the rights, title, and interest that the assignor had at the time of the assignment, including all remedies that were available to the assignor against a debtor for enforcement of the obligation. See Douglas-Peters v. Cho, Choe & Holen, P.C., No. 05-15-01538-CV, 2017 WL 836848, at *7 (Tex. App.—Dallas Mar. 3, 2017, no pet.) (mem. op.); Thweatt v. Jackson, 838 S.W.2d 725, 727–28 (Tex. App.—Austin 1992), aff'd, 883 S.W.2d 171 (Tex. 1994); Hibernia Energy LLC v. Hegar, No. 03-21-00527-CV, 2023 WL 3027466, at *4 (Tex. App.—Austin Apr. 21, 2023, pet. denied) (mem. op.). Further, when a party has initiated a lawsuit in its name but thereafter assigns the rights to the lawsuit's claims to another party, the original party may continue to prosecute the suit to completion in its own name, whether or not the assignee is added or substituted as a party. Hibernia Energy, 2023 WL 3027466, at *4 (citing Tex. Mach. & Equip. Co. v. Gordon Knox Oil & Expl. Co., 442 S.W.2d 315, 316–17 (Tex. 1969) (“The right of an assignee to continue a suit in the name of its assignor, the assignee not being a necessary party and the presence of the assignor not being required, has been recognized.”)). Either way, both the assignor and assignee are deemed to have standing to maintain the action. Id.; see Eagle Supply & Mfg. L.P. v. Landmark Am. Ins., 630 S.W.3d 342, 351–52 (Tex. App.—Eastland 2021, pet. denied) (citing Gordon Knox, 442 S.W.2d at 317); see also Seiter v. Marschall, 147 S.W. 226, 228 (Tex. 1912) (citing “repeated holdings of our courts” allowing assignee to prosecute and maintain cause in assignor's name and not be required to become party of record).

In his first issue, Mr. Hargrave contends the trial court erred by granting summary judgment for Green Mountain because Green Mountain “lacked standing to prosecute the Notecraft counterclaim, Notecraft having lost standing during the First Appeal.” According to Mr. Hargrave, “Notecraft forfeited its standing during the First Appeal when it sold its interest in the Note and lien at issue on October 26, 2021.” He argues that Notecraft “was required to maintain standing throughout the First Appeal and did not do so” and thus “had no standing for which [Green Mountain] could be substituted as a party” and “no justiciable interest in the subject matter of this case, from at least October 26, 2021.” He contends that because Notecraft's claims “became moot” on October 26, 2021, “there is no basis for [Green Mountain] to have been allowed to proceed to summary judgment.”

As described above, the record shows the probate court's April 26, 2021 orders authorized Notecraft “and its successors and assigns” to proceed with foreclosure regarding the property. Notecraft filed an October 7, 2021 foreclosure counterclaim in Mr. Hargrave's lawsuit on behalf of itself and “its successors and assigns.” On October 26, 2021, Notecraft executed an assignment of “all its right, title and interest” regarding the note and deed of trust to Green Mountain, which was recorded in the Official Records of Dallas County on November 9, 2021. Notecraft's request to substitute parties was filed on November 5, 2021.

To the extent Mr. Hargrave's standing challenge is based on an asserted loss of Notecraft's status as a mortgagee on October 26, 2021, both the probate court's April 26, 2021 orders and Notecraft's counterclaim referenced Notecraft's “successors and assigns,” and thus implicated interests other than Notecraft's alone. Additionally, the Texas Property Code's chapter 51 states that if, as here, a security interest has been assigned of record, the term “mortgagee” means “the last person to whom the security interest has been assigned of record.” Tex. Prop. Code § 51.0001(4). Thus, to the extent Notecraft remained a “mortgagee” under the property code's chapter 51 until November 9, 2021, it had a corresponding justiciable interest in the lawsuit's outcome until that date, by which time it had sought to substitute parties.⁵ See id.

Moreover, Green Mountain stepped into Notecraft's shoes upon execution of the October 26, 2021 assignment and obtained all the rights and interest Notecraft had at the time of the assignment. See Douglas-Peters, 2017 WL 836848, at *7. At that point, Green Mountain could prosecute and maintain the cause in Notecraft's name and thus had standing. See Gordon Knox, 442 S.W.2d at 316–17; Seiter, 147 S.W. at 228; Hibernia Energy, 2023 WL 3027466, at *4. We decide against Mr. Hargrave on his first issue.

Evidentiary challenges

In his second issue, Mr. Hargrave contends “summary judgment on [Green Mountain's] claims and granting [Green Mountain] the right to non-judicially foreclose was improper given the insufficiency and internal inconsistency of the evidence available.” Specifically, he refers to the following portion of the summary judgment affidavit of Green Mountain's corporate representative Steven Daniels:

In my referenced capacity, I have access to and have reviewed various corporate and business records of Green Mountain, which includes all servicing records from any predecessor mortgagee and mortgage servicer and have had the opportunity to review the business records and account information related specifically to the Loan (the “Loan Records”) secured by the Property. I am fully authorized to make this declaration on behalf of Green Mountain in the above-entitled and numbered cause. All statements made herein are true and correct and based upon my personal knowledge gained from my employment by Green Mountain and a review of business records of the servicer for the subject loan, Green Mountain. When Green Mountain receives documents from other parties, such as prior mortgagee or mortgage servicers, in relation to a loan that Green Mountain owns or services, those documents are placed in the Loan Records at or near the time they are received and are adopted as business records of Green Mountain.

According to Mr. Hargrave, the affidavit “does not adequately support the MSJ” because (1) Mr. Daniels “does not indicate if he simply reviewed images on a screen ․ or if he actually made a personal physical inspection of real documents to see if they were in fact in the custody of [Green Mountain]” and (2) the final sentence of that excerpt “does not indicate at what time Green Mountain received any certain record, does not specify which records he reviewed, nor of what form (original, or what generation copy in what form or from whom received).” Additionally, Mr. Hargrave asserts (1) a later portion of Mr. Daniels's affidavit refers to an exhibit described as the note at issue “but he does not explain the absence of indorsements on the last page nor where any subsequent indorsements or allonges might appear,” and (2) “[t]he Court should award no relief whatsoever to [Green Mountain] or any party without production of the actual note and allonges.”

As to Mr. Hargrave's complaints regarding the note, a party asserting an interest under the deed of trust is not required to possess the corresponding note as a prerequisite to foreclose. Farris v. Nationstar Mortg. LLC, No. 05-17-01491-CV, 2019 WL 1512575, at *2 (Tex. App.—Dallas Apr. 8, 2019, no pet.) (mem. op.); Farkas v. Aurora Loan Servs., LLC, No. 05-12-01095-CV, 2013 WL 6198344, at *4 (Tex. App.—Dallas Nov. 26, 2013, pet. denied). The record shows that in addition to holding the note at issue, Green Mountain is also the deed of trust beneficiary by assignment. Thus, any arguments regarding the note are irrelevant here. See Morlock, L.L.C. v. Nationstar Mortg. L.L.C., 447 S.W.3d 42, 47 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (“Morlock's allegation that Nationstar is not the owner or holder of the Note is irrelevant with respect to Nationstar's right to enforce the Deed of Trust through non-judicial foreclosure under Texas law.”); see also Bierwirth v. BAC Home Loans Servicing, No. 03-12-00583-CV, 2014 WL 712520, at *3 (Tex. App.—Austin Feb. 20, 2014, no pet.) (mem. op.) (“Bierwirth's ‘show-me-the-note’ argument has been considered and rejected by Texas courts ․ because ‘foreclosure statutes simply do not require possession or production of the original note’ ” (internal citations omitted)).

As to Mr. Hargrave's remaining evidentiary complaints, his appellate brief does not explain or address how the complained-of omissions result in any “inconsistency,” nor does he cite any authority for his position that those omissions render the affidavit “insufficient.” Therefore, we conclude his remaining evidentiary complaints present nothing for this Court's review. See Tex. R. App. P. 38.1(i) (appellant's brief “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities”); see also Cruz v. Sears, Roebuck and Co., No. 05-15-00737-CV, 2016 WL 4119771, at *3 (Tex. App.—Dallas Jul. 29, 2016, no pet.) (mem. op.) (“If an appellant presents an issue generally asserting the summary judgment evidence raised fact issues, that issue must also include argument and authority explaining how the evidence defeated each ground for summary judgment.”). We decide Mr. Hargrave's second issue against him.

Permissibility of counterclaim

Texas Rule of Civil Procedure 736 provides for expedited foreclosure of certain liens, thus giving lenders an alternative to filing a foreclosure lawsuit. See Tex. R. Civ. P. 736. When an application for an expedited order under rule 736 is filed and the named respondent files no timely response, the court must grant the application by default and the order is not subject to appeal. See id. 736.7. However, a proceeding or order under rule 736 is automatically stayed if a respondent timely files “a separate, original proceeding in a court of competent jurisdiction” challenging certain matters regarding the lien. See id. 736.11(a). Upon timely motion by the respondent after the separate proceeding is filed, the court in which the rule 736 application was filed must dismiss the pending rule 736 proceeding or, if an order was already signed, vacate the rule 736 order. Id. 736.11(c).

In his third issue, Mr. Hargrave asserts rule 736 “barred” Green Mountain from “bringing a counterclaim” and thus “the resulting portions of the interlocutory order and the Final judgment are void.”⁶ In support of his contentions, he relies on the following portion of Reddick v. Deutsche Bank National Trust Co., No. 3:16-CV-1997-D, 2017 WL 6343542, at *3 (N.D. Tex. Dec. 12, 2017):

The Reddicks maintain that because Deutsche Bank could have pursued a legal remedy while the lawsuits were pending—by filing a suit or counterclaim to request foreclosure—the statute of limitations was not tolled. The court disagrees.

“A proceeding or order under [Rule 736] is automatically stayed if a respondent files a separate, original proceeding in a court of competent jurisdiction that puts in issue any matter related to the origination, servicing, or enforcement of the loan agreement, contract, or lien sought to be foreclosed prior to 5:00 p.m. on the Monday before the scheduled foreclosure sale.” Tex.R.Civ.P.736.11(a). If an automatic stay is in effect, any foreclosure sale of the property is void. See Tex. R. Civ. P. 736.11(d). Additionally, Deutsche Bank could not exercise this right by bringing a Rule 736 proceeding or a counterclaim in a borrower's suit against the lender. See Steptoe v. JPMorganChase Bank. N.A., 464 S.W.3d 429, 433 (Tex. App. 2015). Thus Deutsche Bank was entirely prevented from pursuing a Rule 736 proceeding for the duration of the Reddicks’ lawsuits.

(emphasis added). According to Mr. Hargrave, “The instant case (transferred into the probate cause number) was brought, as was Reddick, by a home equity loan debtor against whom an order authorizing foreclosure had been entered in a prior proceeding where an application for authority to foreclose had been made under Tex. R. Civ. P. 736.” He argues that pursuant to Reddick, “for the duration of a suit such as [Mr. Hargrave's], there was a complete bar to any independent claims or counterclaims by a creditor.”

This Court and others have held that due to the narrow and limited nature of rule 736 proceedings, a lender cannot bring a rule 736 proceeding as a counterclaim in a borrower's lawsuit against the lender. Cloward v. U.S. Bank Tr., N.A., No. 05-18-01397-CV, 2020 WL 4435306, at *4 (Tex. App.—Dallas Aug. 3, 2020, pet. denied) (mem. op.); Steptoe v. JPMorgan Chase Bank, N.A., 464 S.W.3d 429, 432 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Stayton v. FCI Lender Serv., Inc., No. 02-21-00084-CV, 2022 WL 1682428, at *6 (Tex. App.—Fort Worth May 26, 2022, pet. denied) (mem. op.); Kerr v. Bank of N.Y. Mellon Tr. Co., N.A., No. 02-20-00179-CV, 2021 WL 1421440, at *3 (Tex. App.—Fort Worth Apr. 15, 2021, pet. denied) (mem. op.). However, the position that a lender is also prohibited from asserting any other type of foreclosure counterclaim in a lawsuit brought by a borrower has been considered and rejected several times by our sister court of appeals in Fort Worth:

Citing Reddick v. Deutsche Bank National Trust Company, the Kerrs argue that a counterclaim for judicial foreclosure in a borrower's suit against the lender is impermissible. No. 3:16-CV-1997-D, 2017 WL 6343542, at *3 (N.D. Tex. Dec. 12, 2017). The Kerrs specifically point to a statement made in Reddick where the court stated, “Deutsche Bank could not exercise this right by bringing a Rule 736 proceeding or a counterclaim in a borrower's suit against the lender.” Id. But the Reddick court was specifically discussing proceedings under Rule 736 when making this statement. Id. Indeed, the Reddick court cited Steptoe. Id. A review of Steptoe reveals that what is impermissible is a Rule 736 proceeding being “brought as a counterclaim in a borrower's suit against the lender.” 464 S.W.3d at 433. Thus, we conclude that the Kerrs’ reliance on Reddick is misplaced.

Kerr, 2021 WL 1421440, at *3; accord Stayton, 2022 WL 1682428, at *6 (following Kerr); De La Garza v. U.S. Bank Tr. Nat'l Ass'n, No. 02-20-00397-CV, 2022 WL 2071787, at *6 (Tex. App.—Fort Worth Jun. 9, 2022, pet. denied) (mem. op.) (following Kerr).

The case before us does not involve a rule 736 proceeding brought as a counterclaim by a lender in a borrower's lawsuit. Therefore, the counterclaim in question is not prohibited by Cloward. See 2020 WL 4435306, at *4. Further, we adopt the reasoning of the Second Court of Appeals and conclude Mr. Hargrave's reliance on Reddick is misplaced. See Kerr, 2021 WL 1421440, at *3. We disagree with Mr. Hargrave's position that the counterclaim in this case was impermissible. See id. We decide against Mr. Hargrave on his third issue.

We affirm the probate court's judgment.

FOOTNOTES

3.   Following the transfer, the probate court vacated its April 26, 2021 order granting Notecraft's rule 736 foreclosure application, as required by rule 736 when a separate action contesting the right to foreclose is filed within a specified time period. See Tex. R. Civ. P. 736.11.

4.   The record shows the probate court granted the requested substitution of Green Mountain for Notecraft in a March 4, 2022 order.

5.   To the extent Mr. Hargrave's first issue can be construed to implicate capacity, a challenge to a party's capacity must be raised by a verified pleading in the trial court. Tex. R. Civ. P. 93(1)-(2); Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003). No verified pleading regarding capacity was filed in this case.

6.   Additionally, in his appellate argument pertaining to his third issue, Mr. Hargrave asserts Notecraft did not make a “sufficient” election of remedy in its counterclaim “since paragraphs 19–22 of the counterclaim seek incompatible relief.” Mr. Hargrave did not assert a complaint below regarding those paragraphs, which plead claims “in the alternative.” Accordingly, his election-of-remedy complaint regarding the counterclaim's paragraphs 19–22 presents nothing for this Court's review. See Tex. R. App. P. 33.1(a); see also Tex. R. Civ. P. 48 (a party “may set forth two or more statements of a claim or defense alternatively ․ regardless of consistency”).

Opinion by Justice Wright