Case: 14-10555      Document: 00512827261         Page: 1    Date Filed: 11/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10555                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                         November 5, 2014
JANET CUMMINGS SMITH,                                                      Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff–Appellant
v.

JP MORGAN CHASE BANK, N.A.,

                                                 Defendant–Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                            U.S.D.C. No. 3:13-CV-4533


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is a mortgage case arising under Texas state law.                       Plaintiff–
Appellant Janet Cummings Smith appeals the district court’s decision
dismissing her Texas state law claim under Federal Rule of Civil Procedure
12(b)(6) as time-barred. The parties agree that the suit was filed more than
four years after the cause of action accrued and that this case is
indistinguishable from our decision in Priester v. JP Morgan Chase Bank, N.A.,


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-10555     Document: 00512827261       Page: 2   Date Filed: 11/05/2014



                                    No. 14-10555

(5th Cir.), cert denied, 

(2013) in which we affirmed
a district court’s dismissal of a similar claim as time-barred after four years.
Smith argues that this Court in Priester made an Erie guess that has not been
ratified by the Texas Supreme Court, and, therefore, Priester, and the Texas
case it relies on, “is not controlling.” Constrained by our prior precedent under
our rule of orderliness, we disagree and affirm.
          I.    JURISDICTION AND STANDARD OF REVIEW
      This Court has jurisdiction to review the district court’s final judgment.
28 U.S.C. § 1291. The district court had diversity jurisdiction under 28 U.S.C.
§ 1332. We apply Texas substantive law and federal procedural law to the
state law claims. See Erie R.R. Co. v. Tompkins, 

, 78 (1938).
       “We review a district court’s dismissal under Rule 12(b)(6) de novo,
‘accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs.’” Doe ex rel. Magee v. Covington Cnty. Sch.
Dist. ex rel. Keys, 

, 854 (5th Cir. 2012) (en banc) (citation omitted).
“To survive dismissal pursuant to Rule 12(b)(6), plaintiffs must plead ‘enough
facts to state a claim to relief that is plausible on its face.’” 

Atl. Corp. v. Twombly, 

, 570 (2007)).
                              II.    DISCUSSION
      The dispute in this case is over a home equity line of credit that
Defendant–Appellee JP Morgan Chase Bank, N.A. (JP Morgan) extended to
Smith in exchange for a lien on her home. Smith asserts JP Morgan’s lien is
invalid under article XVI, § 50(t) of the Texas Constitution because the
principal on the loan exceeds fifty percent of the fair market value of her home.
Smith argues the district court erred in dismissing this claim as time-barred.
JP Morgan counters that the Texas “residual four year statute of limitations
applies to claims a home equity loan violates the Texas constitutional


                                         2
     Case: 14-10555        Document: 00512827261          Page: 3     Date Filed: 11/05/2014



                                        No. 14-10555
requirements regarding home equity loans.” JP Morgan cites our decision in

. We agree with JP Morgan.
       Article XVI, § 50 of the Texas Constitution provides that a second lien on
a home is invalid “if the total principal amount outstanding exceeds . . . 50
percent of the fair market value of the homestead.” Section 16.051 of the Texas
Civil Practice and Remedies Code provides that “[e]very action for which there
is no express limitations period . . . must be brought not later than four years
after the day the cause of action accrues.” In Priester, we concluded this section
of the Civil Practice and Remedies Code and its four-year “limitations period
applies to constitutional 

.
       As noted above, the parties agree that this suit was filed more than four
years after the action accrued. But Smith contends that our decision in Priester
was a wrongly decided Erie guess. Maybe so, but “[i]t is a well-settled Fifth
Circuit rule of orderliness that one panel of our court may not overturn another
panel’s decision, absent an intervening change in the law.” Jacobs v. Nat’l
Drug Intelligence Ctr., 

, 378 (5th Cir. 2008). As three other panels
have previously noted, there has been no change in the law that would allow
us to overturn the Priester decision. 1 On the contrary, subsequent Texas




       1 Bormio Invs., Inc. v. U.S. Bank Nat’l Ass’n, No. 14-10548, 

, at *1
(5th Cir. Sept. 22, 2014) (per curiam) (“Bormio does not dispute that if Priester applies, the
statute of limitations has run. Instead, it argues that the subsequent Texas Supreme Court
case of Finance Commission of Texas v. Norwood, 

(Tex. 2014) demonstrates
that Priester was wrongly decided. . . . Neither party has cited, and we have not located, any
case that would represent an intervening change in the law allowing us to reconsider Priester;
accordingly, under our rule of orderliness, we are bound by Priester.”); Bormio Invs., Inc. v.
USBC Bank USA Nat’l Ass’n, No. 13-11311, 

, at *2 (5th Cir. June 30, 2014)
(per curiam) (“The four-year residual limitations period continues to apply to claims [under
the Texas Constitution], and, having failed to file within four years of the accrual of this
action, the Plaintiffs’ claims are time-barred.”); Moran v. Ocwen Loan Servicing, L.L.C., 560
F. App’x 277, 279 (5th Cir. 2014) (per curiam) (rejecting the plaintiffs’ argument “that Priester
is not controlling because it is incorrect,” because under the rule of orderliness, the court had
“no occasion to revisit Priester”).
                                               3
     Case: 14-10555       Document: 00512827261          Page: 4     Date Filed: 11/05/2014



                                         No. 14-10555
decisions have followed Priester’s reasoning and validated its holding.
Williams v. Wachovia Mortg. Corp., 

, 397 (Tex. App.—Dallas
2013, pet. denied) (“We find the Fifth Circuit’s analysis persuasive.” (citing

)). 2
       Therefore, the four-year residual limitations period continues to apply to
claims of this nature, and Smith’s claims are time-barred.
                                 III.     CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.
                                   IV.     SANCTIONS
       We notice that Smith’s counsel, Mark A. Swaim, of the Swaim Law Office
in Irving, Texas has pressed this same argument on behalf of different clients
in two other appeals before this Court, and each time this Court has swiftly
rejected the argument.         See Bormio Invs., Inc., 

, at *1
(“Bormio does not dispute that if Priester applies, the statute of limitations has
run. Instead it argues . . . that Priester was wrongly decided.”); Bormio Invs.,
Inc., 

, at *2 (“The Plaintiffs contend that Priester was
wrongly decided under an Erie-guess analysis.”). One of these panels recently
cautioned Mr. Swain “not to file frivolous appeals,” but ultimately concluded
“that sanctions [were] not warranted in [that] case.” Bormio Invs., Inc., 

, at *1.
       Federal Rule of Appellate Procedure 38 authorizes the award of damages
and single or double costs if an appeal is frivolous, and federal courts of appeals



       2 See also Wood v. HSBC Bank USA, N.A., No. 14-13-00389-CV, 

,
at *4, *7 (Tex. App.—Houston [14th Dist.] July 31, 2014, no pet. h.) (“We too find the Priester
court’s analysis persuasive not only because of its sound reasoning, but also because its
conclusion comports with Texas Supreme Court precedent . . . . We conclude that the [Texas
Civil Practice & Remedies Code] section 16.051 four-year statute of limitations applies to the
Woods’ constitutional claims.”).
                                              4
     Case: 14-10555       Document: 00512827261         Page: 5     Date Filed: 11/05/2014



                                       No. 14-10555
“can sanction an appellant for a frivolous appeal sua sponte.” Conner v. Travis
Cnty., 

, 801 (5th Cir. 2000) (per curiam). An appeal is frivolous if
it is “entirely devoid of colorable merit.” See Coghlan v. Starkey, 

,
811–12 (5th Cir. 1988) (supplemental opinion) (per curiam). We also have the
authority to order counsel for the appellants to pay attorney fees and costs from
his or her own resources. See Atwood v. Union Carbide Corp., 

,
1094 (5th Cir. 1988) (per curiam).
       The Appellant’s argument borders on frivolity; however, in light of the
timing of the two prior decisions of this Court, 3 we cannot say this appeal is
“entirely devoid of colorable merit.” See 

. But because
the judgment of the district court is affirmed, costs are taxed against the
appellant consistent with Federal Rule of Appellate Procedure 39(a)(2). In
light of the repetitive arguments advanced by counsel for the Appellant
without notice to the Court of their rejection, see Fed. R. App. P. 28(j), we
HEREBY ORDER counsel for the Appellant to pay the costs taxed against the
Appellant from his own resources. See 

. We again
caution Mr. Swaim “not to file frivolous appeals.” Bormio Invs., Inc., 

, at *1.




       3  The first rejected appeal was filed six days after Mr. Swain filed Smith’s appellant
brief in this case.
                                              5