Harriet Nicholson v. David Stockman, Donna Stockman, and Denise Boerner ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00103-CV
___________________________
HARRIET NICHOLSON, Appellant
V.
DAVID STOCKMAN, DONNA STOCKMAN, AND DENISE BOERNER,
Appellees
On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-305585-19
Before Gabriel, Bassel, and Wallach, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
In this appeal arising from a property foreclosure, appellant Harriet Nicholson
appeals from the trial court’s interlocutory, no-evidence summary judgment entered in
favor of appellees David Stockman (Stockman), Donna Stockman (Donna), and
Denise Boerner (Boerner) and from the trial court’s later severance order, which
rendered the summary judgment final and appealable. Because we conclude that the
trial court did not err by granting the summary judgment and did not abuse its
discretion by granting the severance motion, we affirm.
I. BACKGROUND
In 2001, Nicholson executed a deed of trust to her home in Tarrant County in
favor of Mortgage Electronic Registration Systems, Inc. (MERS)1 to secure a
contemporaneous $125,048 promissory note. The deed of trust was recorded in
Tarrant County. MERS later assigned its interest in the deed to Bank of New York
Mellon (BONY). The mortgage servicer for the loan was Bank of America, N.A.
After Nicholson defaulted on her obligations under the deed, Bank of America
appointed Stockman as the substitute trustee to enforce the deed. Stockman sold the
property to BONY at a July 3, 2012 nonjudicial foreclosure sale, which apparently
occurred in Dallas County. The substitute trustee’s deed was recorded in Tarrant
County.
1
MERS was the nominee of the lender, Mid America Mortgage, Inc. and its
successors and assigns.
2
BONY brought an ultimately successful forcible-detainer action to evict
Nicholson from the property. Nicholson, acting pro se, filed suit against BONY,
Stockman, Bank of America, Countrywide Home Loans, Inc., and others involved in
the foreclosure process, seeking to enjoin the eviction. Meanwhile, Stockman filed a
notice rescinding the 2012 foreclosure sale and resulting trustee’s deed because the
sale had occurred (or at least had been noticed to be) in Dallas County even though
the property was located in Tarrant County. See Tex. Prop. Code Ann. § 51.002(a).
Nicholson amended her petition several times,2 adding claims and adding as
defendants Donna and Boerner, who had been named as alternate substitute trustees
along with Reconstruct Company, N.A. in Stockman’s rescission notice. During the
litigation, the trial court granted Nicholson a partial summary judgment, declaring the
substitute trustee’s deed and Stockman’s subsequent rescission “invalid.”
Appellees filed a no-evidence summary-judgment motion, which the trial court
granted. Appellees then moved to sever the claims brought against them to confer
finality on the no-evidence summary judgment. Appellees followed in the footsteps
of Bank of America and Countrywide who had successfully severed Nicholson’s
claims against them after the trial court had granted summary judgment in their favor.3
2
More on the timing and content of some of these amendments later.
3
The trial court’s summary judgment in favor of Bank of America and
Countrywide, which was the subject of a separate appeal, was recently affirmed by this
court. Nicholson v. Bank of Am., N.A., No. 02-19-00085-CV, 2019 WL 7407739, at *1
3
The trial court granted Appellees’ motion to sever. Nicholson moved for new trial,
arguing that the summary-judgment and severance orders were in error. The motion
was overruled by operation of law. See Tex. R. Civ. P. 329b(c).
Nicholson appeals and argues that material fact issues on each element of her
claims precluded summary judgment, that the severance order was improper, and that
Appellees could not be substitute trustees because they had no contractual
relationship with BONY or Bank of America.
II. SEVERANCE
We review a severance order for an abuse of discretion. See Liberty Nat’l Fire
Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. 1996). Nicholson argues that such an
abuse occurred because all of her claims were “identical, involving the same facts and
issues,” and because the severance was unnecessary based on the trial court’s earlier
severance of her claims against Bank of America and Countrywide.
“Any claim against a party may be severed and proceeded with separately.”
Tex. R. Civ. P. 41. In a case with multiple defendants, if summary judgment is
properly granted in favor of one defendant, it is generally proper to sever the claim
against that defendant for purposes of appeal. Aviation Composite Techs., Inc. v. CLB
Corp., 131 S.W.3d 181, 187 n.5 (Tex. App.—Fort Worth 2004, no pet.); Arredondo v.
City of Dall., 79 S.W.3d 657, 665 (Tex. App.—Dallas 2002, pet. denied). Although
(Tex. App.—Fort Worth Dec. 31, 2019, no pet. h.) (mem. op., not designated for
publication).
4
Nicholson’s claims against Bank of America and Countrywide had been dismissed and
severed, her claims against other named defendants remained pending. A severance
after an interlocutory summary-judgment order to expedite appellate review is proper
and not an abuse of discretion. Cherokee Water Co. v. Forderhause, 641 S.W.2d 522, 525–
26 (Tex. 1982), cited in Dorsey v. Raval, 480 S.W.3d 10, 15 (Tex. App.—Corpus Christi–
Edinburg 2015, no pet.); Arredondo, 79 S.W.3d at 665. Here, even if Nicholson’s
claims against all named defendants were founded on the same nucleus of facts, we
cannot conclude that the trial court abused its discretion by ordering the severance
after granting the interlocutory, no-evidence summary judgment in favor of Appellees.
See, e.g., Young v. Heins, No. 01-15-00500-CV, 2017 WL 2376828, at *11 (Tex. App.—
Houston [1st Dist.] June 1, 2017, pet. denied) (mem. op.); Dorsey, 480 S.W.3d at 15;
Banks v. River Oaks Steak House, No. 2-03-363-CV, 2004 WL 1858216, at *3 (Tex.
App.—Fort Worth Aug. 19, 2004, no pet.) (mem. op.); Arredondo, 79 S.W.3d at 665.
We overrule issue two.
III. SUMMARY JUDGMENT
Nicholson contends that the trial court granted summary judgment in error
because she proffered evidence raising genuine, material fact issues on each element
of her claims against Appellees. See Tex. R. Civ. P. 166a(i). When reviewing a no-
evidence summary judgment, we examine the entire record in the light most favorable
to the nonmovant, indulging every reasonable inference and resolving any doubts
against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam). We
5
review a no-evidence summary judgment for evidence that would enable reasonable
and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008) (per curiam).
In her first amended petition, which is not included in the appellate record but
which named Stockman as a defendant, Nicholson sought a declaration that the
rescission of the foreclosure sale and resulting substitute trustee’s deed were invalid
and that this invalid rescission did not resurrect the lien conferred in the original deed
of trust. Stockman moved for a no-evidence summary judgment, arguing that
because the trial court had already declared the rescission invalid, Nicholson’s claim
was moot. The trial court granted Stockman’s motion in an interlocutory order.
Nicholson then filed a second amended petition, which also is not in the
appellate record, ostensibly raising claims for fraud and for conspiracy to commit
fraud against Stockman. Stockman filed a no-evidence motion for summary judgment
on these claims, which the trial court granted.
In her subsequent eighth amended petition,4 Nicholson again named Stockman
as a defendant and added Donna and Boerner as parties. She alleged that Appellees,
and the other named defendants, knowingly filed fraudulent documents in violation of
Section 12.002 of the Civil Practice and Remedies Code, were negligent per se, were
4
The appellate record does not contain Nicholson’s third, fourth, fifth, sixth, or
seventh amended petitions, but they do not appear to be relevant to the issues in this
appeal.
6
grossly negligent, conspired to commit fraud, and committed fraud. She also sought
declaratory relief directed to the validity of the substitute trustee’s deed and the
subsequent rescission, again urging that the 2001 deed of trust had been “wiped out”
by the invalid substitute trustee’s deed and rescission.
Appellees moved for a no-evidence summary judgment. Stockman asserted
that the conspiracy and fraud claims could not be raised against him because the trial
court previously granted him summary judgment on those same claims. Appellees
argued that there was no evidence to support the elements of Nicholson’s claims.
The trial court granted the motion in a nonspecific, interlocutory order.
In her appellate brief, Nicholson’s substantive argument specifically directed to
the trial court’s summary-judgment order is one sentence long with no citation to the
record: “Sufficient evidence was before the trial court to support every element of
every claim to preclude the grant of Appellees’ no-evidence motion for summary
judgment or there were genuine issues of material fact (controverting evidence) for
trial.” Nicholson fails to explain what specific evidence supported each element, to
discuss what those elements are, or to parse each ground Appellees raised in their no-
evidence motion. Even more egregious is her complete failure to provide citations to
the 1178-page clerk’s record or to describe the evidence illustrating the genuine,
material fact issues she relies on. See Horton v. Stovall, No. 18-0925, 2019 WL 6971668,
at *3 (Tex. Dec. 20, 2019) (per curiam) (“Courts are not required to comb through the
record to find evidence to support a party’s appellate issues, but nothing prevents
7
courts from undertaking reasonable efforts to locate evidence described in a party’s
brief.”). Nicholson’s cursory and inadequate briefing on this issue is not a “readily
correctable” or “harmless” defect; rather, the brief is a “flagrant violation[]” of the
procedural rules that imposes an unreasonable burden on this court—to parse the
lengthy record for summary-judgment evidence in an attempt to locate unidentified
fact issues for each element of her claims.5 Id. We conclude that Nicholson, through
inadequate and non-remediable briefing, failed to present for our review any error
arising from the trial court’s summary-judgment order. See, e.g., Jimenez v. Citifinancial
Mortg. Co., 169 S.W.3d 423, 425–26 (Tex. App.—El Paso 2005, no pet.); Trebesch v.
Morris, 118 S.W.3d 822, 824–25 (Tex. App.—Fort Worth 2003, pet. denied); Hall v.
Stephenson, 919 S.W.2d 454, 466–67 (Tex. App.—Fort Worth 1996, writ denied). See
generally Tex. R. App. P. 38.1(i) (requiring argument portion of brief to provide
“appropriate citations to authorities and to the record”); Horton, 2019 WL 6971668, at
*3 (recognizing appellate courts have discretion to find briefing waiver or to allow
amendment or rebriefing based on the facts of the case). We overrule issue one.
Even if Nicholson had appropriately briefed this issue, we would conclude that
the trial court did not err by granting Appellees’ motion. First, the trial court had
5
Nicholson was provided a copy of the appellate record before she initially filed
her brief. After we noted several procedural defects in her brief and requested
corrections, Nicholson filed an amended brief. See Tex. R. App. P. 9.4, 38.1, 38.7,
44.3. Appellees’ brief responded to Nicholson’s amended brief, and we similarly rely
on Nicholson’s amended brief.
8
previously dismissed, in two interlocutory summary-judgment orders, Nicholson’s
declaratory-judgment, fraud, and conspiracy claims against Stockman. They could not
be revived by Nicholson’s eighth amended petition. See Martin v. First Republic Bank,
799 S.W.2d 482, 488–89 (Tex. App.—Fort Worth 1990, writ denied). Second,
Nicholson produced no evidence that Donna or Boerner took any affirmative action
regarding the foreclosure sale, the substitute trustee’s deed, or the subsequent
rescission other than their nominal inclusion as alternate substitute trustees in
Stockman’s rescission, which was subsequently found to be invalid. Third, Appellees’
no-evidence motion set out each element of each claim Nicholson brought against
them and specifically argued that there was no evidence to support any of her claims.
In response, Nicholson did not raise more than a scintilla of evidence creating a
genuine issue of material fact on each element of each claim. And Appellees’
arguments to the trial court that Nicholson’s claims failed as a matter of law were well
founded. Under these circumstances, the summary judgment was not in error. See
Tex. R. Civ. P. 166a(i); Gillham v. Sanchez, No. 05-17-01449-CV, 2019 WL 2082466, at
*5–6 (Tex. App.—Dallas May 13, 2019, pet. denied) (mem. op.).
IV. SUBSTITUTE-TRUSTEE AUTHORITY
Nicholson contends that after Stockman issued the substitute trustee’s deed, he
had no further express or implied authority to act as BONY and Bank of America’s
agent; thus, she contends he had no authority to rescind the substitute trustee’s deed.
But the trial court declared the foreclosure sale and substitute trustee’s deed invalid,
9
granting Nicholson the relief she requested and re-urges on appeal. This argument is
thus moot.
She further asserts that Donna and Boerner suffered from the same lack of
authority. But as we have recognized, Nicholson has failed to proffer any evidence
that Donna or Boerner took any action regarding the foreclosure sale, the substitute
trustee’s deed, or the rescission. Accordingly, whether they had the authority to take
any such action is of no moment to Nicholson’s claims. We overrule issue three.
V. CONCLUSION
We conclude that the trial court did not err by granting summary judgment in
favor of Appellees, thereby dismissing Nicholson’s claims against them, and that the
trial court did not abuse its discretion by severing those claims in order to make its
summary judgment final and appealable. Accordingly, we affirm the trial court’s
November 2, 2018 order granting Appellees’ no-evidence summary-judgment motion
and the trial court’s January 17, 2019 order granting Appellees’ motion to sever. See
Tex. R. App. P. 43.2(a). We also deny Nicholson’s request for appellate sanctions
against Appellees. Cf. Tex. R. App. P. 45 (providing for damage award if appeal
deemed frivolous).
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: January 16, 2020
10