Harriet Nicholson v. Harvey Law Group, Nationstar Mortgage LLC, Recontrust Company, N.A., and the Bank of New York Mellon ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00180-CV
___________________________
HARRIET NICHOLSON, Appellant
V.
HARVEY LAW GROUP; NATIONSTAR MORTGAGE LLC; RECONTRUST
COMPANY, N.A.; AND THE BANK OF NEW YORK MELLON, Appellees
On Appeal from the 48th District Court
Tarrant County, Texas
Trial Court No. 048-286132-16
Before Bassel, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant Harriet Nicholson appeals from the trial court’s summary judgment
in favor of three financial entities and one law firm involved in the later-rescinded
2012 foreclosure of her home. We conclude that based on Nicholson’s inadequate
briefing and because the law firm established a preclusive affirmative defense, the trial
court did not err by entering judgment as a matter of law dismissing Nicholson’s
claims. Thus, we affirm the trial court’s final judgment.
I. BACKGROUND
This is Nicholson’s third appeal related to the 2012 foreclosure of her home.
In 2001, Nicholson executed a deed of trust ultimately in favor of appellee Bank of
New York Mellon (BNY Mellon), securing a $125,048 loan to purchase her home in
Tarrant County. Countrywide Home Loans, Inc. was the servicer of Nicholson’s
loan, and Bank of America became the loan’s servicer after Countrywide had assigned
the loan to Bank of America’s predecessor by merger. Later, appellee Nationstar
Mortgage, LLC became the loan’s servicer. After Nicholson defaulted on her
repayment obligations, appellee ReconTrust Company was hired to initiate the
foreclosure.
BNY Mellon bought the property at a July 3, 2012 nonjudicial foreclosure sale.
The substitute trustee, David Stockman, executed a deed, which reflected that the sale
had occurred in Dallas County. After BNY Mellon brought a successful forcible-
detainer action to evict Nicholson, Nicholson filed suit against BNY Mellon and
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others involved in the foreclosure for claims arising from the sale, seeking to enjoin
the eviction.1
While this suit was pending, Stockman rescinded the sale and cancelled the
prior substitute trustee’s deed based on the improper location of the foreclosure sale.
In the rescission and cancellation of the substitute trustee’s deed, the substitute trustee
was described as being David Stockman, Denise Boerner, Donna Stockman, or
ReconTrust; however, David Stockman was the only signatory. Based on the
rescission and cancellation, the trial court granted Nicholson a partial summary
judgment, declaring the substitute trustee’s deed invalid and void but dismissing
Nicholson’s claims. Nicholson’s loan, however, remained in default.
Nicholson then added Countrywide and Bank of America as defendants to her
wrongful-foreclosure claims (the Countrywide Defendants). The trial court granted
summary judgment in favor of the Countrywide Defendants and severed the claims
against them from the remaining portion of Nicholson’s case. We affirmed the
summary judgment in favor of the Countrywide Defendants. Nicholson v. Bank of Am.,
N.A., No. 02-19-00085-CV, 2019 WL 7407739, at *3–4 (Tex. App.—Fort Worth
Dec. 31, 2019, pet. denied) (mem. op.).
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Nicholson initially brought suit only against David Stockman as the substitute
trustee, but she added multiple defendants in several amended petitions filed over the
course of two years.
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Nicholson had also named David Stockman, Donna Stockman, and Denise
Boerner as defendants, and the trial court similarly severed the claims against these
defendants (the Stockman Defendants). The trial court then granted summary
judgment in favor of the Stockman Defendants, which we affirmed. Nicholson v.
Stockman, No. 02-19-00103-CV, 2020 WL 241420, at *4 (Tex. App.—Fort Worth
Jan. 16, 2020, pet. denied) (mem. op.).
The final piece of Nicholson’s suit, and our focus today, involves Nicholson’s
claims against ReconTrust, Nationstar, BNY Mellon, and appellee Harvey Law Group
(HLG). HLG was Nationstar’s counsel and had notified Nicholson on behalf of
Nationstar that the prior acceleration had been rescinded but that her loan remained
in default. Similar to her claims against the Countrywide and Stockman Defendants,
Nicholson asserted that ReconTrust, Nationstar, BNY Mellon, and HLG made
material misrepresentations and knowingly filed documents that falsely clouded her
title, constituting negligence and gross negligence and violating the Civil Practice and
Remedies Code. She also sought 32 declarations regarding her title to the property
and the defendants’ actions, and she raised claims for fraud and conspiracy to commit
fraud. HLG counterclaimed for its attorney’s fees and costs regarding Nicholson’s
declaratory requests and also sought sanctions.
BNY Mellon, Nationstar, and ReconTrust (the Financial Defendants) filed
traditional motions for summary judgment, arguing that Nicholson had failed to raise
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a genuine issue of material fact on each element of her claims for affirmative relief.2
HLG moved for a traditional summary judgment based on the affirmative defense of
attorney immunity. For her part, Nicholson filed a motion for a traditional and partial
summary judgment on her declaratory-judgment claim.
The trial court granted the summary-judgment motions filed by the Financial
Defendants and HLG, and later entered final judgment dismissing Nicholson’s claims
and awarding HLG attorney’s fees and costs. The judgment recited that it “disposes
of all claims and parties and is a final appealable judgment.” Nicholson filed a motion
for new trial, which the trial court denied.
Nicholson appeals from the final judgment and argues that that the summary
judgments in favor the Financial Defendants were in error because she raised genuine
issues of material fact on her claims and that the summary judgment in favor of HLG
was in error because HLG was not entitled to attorney immunity. She also contends
that the severance orders were in error.
II. SEVERANCE ORDERS
Nicholson contends that the severance orders regarding the Countrywide and
Stockman Defendants were abuses of discretion because they occurred after the case
had been submitted to the fact-finder—after summary judgment had been granted in
favor of those defendants. In our prior decisions regarding the Countrywide and
The Financial Defendants also raised several affirmative defenses that they
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argued barred Nicholson’s claims as a matter of law.
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Stockman Defendants, we specifically held that the severance orders were not abuses
of the trial court’s discretion. Nicholson, 2020 WL 241420, at *2; Nicholson, 2019 WL
7407739, at *4. We decline to revisit these holdings.
III. SUMMARY JUDGMENTS
A. STANDARD OF REVIEW
We review a traditional summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). The Financial Defendants carried the burden to
prove that there was no genuine issue of material fact on Nicholson’s claims for
affirmative relief and that they were entitled to judgment as a matter of law. See Tex.
R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009). If the Financial Defendants conclusively negated at least one
essential element of Nicholson’s claims, they were entitled to a traditional summary
judgment on that claim. See Tex. R. Civ. P. 166a(b)–(c); Frost Nat’l Bank v. Fernandez,
315 S.W.3d 494, 508 (Tex. 2010). Because HLG sought summary judgment solely on
the basis of an affirmative defense, it was required to conclusively prove, through
competent summary-judgment evidence, all elements of that defense. Frost Nat’l,
315 S.W.3d at 508–09; Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam)
(op. on reh’g).
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B. PROPRIETY OF SUMMARY JUDGMENTS
1. The Financial Defendants
Against the Financial Defendants, Nicholson raised claims for filing a
fraudulent court record, lien, or claim against an interest in real property; negligence
per se; gross negligence; declarations that the filed documents and claims surrounding
the foreclosure action were fraudulent and void; civil conspiracy to commit fraud; and
fraud. Nicholson stated in her appellate brief that genuine issues of material fact
precluded summary judgment on her claims for affirmative relief. But the entirety of
her briefing on the issue is cursory and conclusory, consisting of a single paragraph;
and her citations to the voluminous record, which consists of a 14-volume clerk’s
record spanning almost 7,000 pages, are perfunctory:
[The Financial Defendants’ and HLG’s] own evidence, the Substitute
Trustee’s Deed [record citations to the substitute trustee’s deed and the
subsequent deed rescission] proves [BNY Mellon] held prima facie title
until set aside on August 18, 2017. [Record citation to trial court’s order
declaring substitute trustee’s deed invalid] As a matter of law,
[Nicholson] had no contractual relationship under the loan documents
after July 3, 2012. After foreclosure, the relationship between the
mortgagor and mortgagee in those capacities ends. [Case citations
omitted.]
As in her prior two appeals from the severed actions, Nicholson wholly fails to
explain what specific evidence supported each element of each of her numerous
claims or to even discuss what those elements are. See Nicholson, 2020 WL 241420, at
*3; Nicholson, 2019 WL 7407739, at *3. Nicholson’s defective briefing is not readily
correctable or harmless. Even under a liberal construction, her briefing is in flagrant
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violation of the procedural rules, imposing an unreasonable burden on this court to
attempt to address her issue. See, e.g., Nicholson, 2020 WL 241420, at *3; Jimenez v.
Citifinancial Mortg. Co., 169 S.W.3d 423, 425–26 (Tex. App.—El Paso 2005, no pet.); see
also Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729, 732–33 (Tex.
2020) (per curiam) (holding courts should “look not simply at the wording of parties’
issues, but also the argument, evidence, and citations relied on by those parties to
determine which issues the parties intended to and actually briefed”); Horton v. Stovall,
591 S.W.3d 567, 570 (Tex. 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 courts from undertaking reasonable efforts to locate evidence described in a
party’s brief . . . .”). We conclude that Nicholson, through briefing that did not
substantially comply with the briefing rules, failed to present for our review any error
arising from the trial court’s granting summary judgment in favor of the Financial
Defendants. See Nicholson, 2020 WL 241420, at *3.
2. HLG
Nicholson’s briefing regarding HLG’s summary judgment on the basis of
attorney immunity is more detailed. She argues that HLG’s affirmative defense does
not apply to her claims based on fraud because attorney immunity “does not extend
to fraudulent conduct that is outside the scope of an attorney’s legal representation of
his client.”
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An attorney has broad immunity from civil liability with respect to nonclients
for actions taken in connection with representing a client. See Youngkin v. Hines,
546 S.W.3d 675, 682 (Tex. 2018); Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398,
405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). In other words, an attorney
may assert his client’s rights without fear of personal liability to the opposing party.
See Miller v. Stonehenge/FASA–Tex., JDC, L.P., 993 F. Supp. 461, 464 (N.D. Tex. 1998)
(order).
Here, HLG represented Nationstar as foreclosure counsel, which Nicholson
did not dispute. Later, HLG undisputedly defended Nationstar from Nicholson’s
claims. HLG was not, however, involved with the foreclosure, the substitute trustee’s
deed, the deed rescission, or the lien assignments, all of which are the gravamen of
Nicholson’s suit. Each of Nicholson’s allegations regarding HLG relates to actions it
performed within the course and scope of its representation of Nationstar and
Nationstar’s legal interests. See, e.g., Youngkin, 546 S.W.3d at 682–83 (directing courts
to “look beyond [the plaintiff’s] characterization of activity as fraudulent and
conspiratorial and focus on the conduct at issue” to determine if attorney entitled to
immunity). HLG conclusively established that it was entitled to immunity for its
actions taken on behalf of Nationstar. See, e.g., Parker v. Buckley Madole, P.C., No. 4:17-
CV-00307-ALM-CAN, 2018 WL 1704084, at *5 (E.D. Tex. Jan. 8, 2018) (rep. &
recomm.), adopted, 2018 WL 1625670, at *1 (E.D. Tex. Apr. 4, 2018) (mem.); Wyles v.
Cenlar FSB, No. 7-15-CV-155-DAE, 2016 WL 1600245, at *3–4 (W.D. Tex. Apr. 20,
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2016) (order); Bitterroot Holdings, LLC v. MTGLQ Inv’rs, L.P., No. 5:14-CV-862-DAE,
2015 WL 363196, at *5 (W.D. Tex. Jan. 27, 2015) (order).
3. Nicholson
Nicholson argues that the trial court erred by denying her motion for partial
summary judgment on her declaratory-judgment claim. Although the trial court did
not explicitly deny Nicholson’s motion, we may imply the denial here based on the
trial court’s granting of the Financial Defendants’ and HLG’s motions. See Gen. Agents
Ins. Co. of Am. v. El Naggar, 340 S.W.3d 552, 557 (Tex. App.—Houston [14th Dist.]
2011, pet. denied). However, the extent of Nicholson’s appellate argument is a bare
statement of the presented point: “The trial court erred in denying Appellant’s Partial
Motion for Summary Judgment for Declaratory Relief.” As with her briefing directed
to the summary judgment in favor of the Financial Defendants, her arguments are
wholly insufficient to present the issue for our review. See Nicholson, 2020 WL 241420,
at *3.
IV. ATTORNEY’S FEES
Nicholson argues that the trial court erred by awarding HLG $11,700 in
attorney’s fees because HLG failed to segregate the fees.
In its motion for summary judgment, HLG argued it was entitled to an
attorney’s-fee award based on its counsel’s efforts in defending against Nicholson’s
“30 requests for declaratory judgment pursuant to the Texas Declaratory Judgment
Act.” HLG supported its request with its counsel’s affidavit in which he averred that
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HLG’s reasonable and necessary attorney’s fees “for the legal services to defend
[HLG] in this case through the filing of [HLG’s] Motion for Summary Judgment is
$11,700.00.” Attached to the affidavit was a “Summary of Attorney Time” that
parsed the services performed on HLG’s behalf and the time spent on each service.
In her response to HLG’s summary-judgment motion, Nicholson did not
assert that HLG had failed to prove its reasonable and necessary attorney’s fees or
that HLG had failed to segregate its fees, but she did raise her nonsegregation
argument in her motion for new trial. Because Nicholson failed to raise her
segregation argument in her response to HLG’s motion, she failed to preserve this
issue for our review. See Tex. R. Civ. P. 166a(c) (“Issues not expressly presented to
the trial court by written motion, answer or other response shall not be considered on
appeal as grounds for reversal.”). Including the argument in her motion for new trial
was too late for preservation purposes. See Haden v. David J. Sacks, P.C., 332 S.W.3d
503, 516 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); Villarreal v. Tex. Farmers
Ins. Co., No. 04-04-00446-CV, 2005 WL 2138174, at *1 (Tex. App.—San Antonio
Sept. 7, 2005, pet. denied) (mem. op.); see also Hruska v. First State Bank of Deanville,
747 S.W.2d 783, 785 (Tex. 1988) (applying preservation principles to argument that
awarded attorney’s fees had not been segregated).
V. APPELLATE SANCTIONS
On appeal, Nicholson moves this court to sanction ReconTrust and
ReconTrust’s appellate counsel for including “misrepresented argument” about
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Stockman’s sale rescission and deed cancellation. As ReconTrust and its counsel
point out in response, the arguments raised on ReconTrust’s behalf were based on the
record evidence and supported by applicable case law. We deny Nicholson’s motion.
See Tex. R. App. P. 45; Gard v. Bandera Cnty. Appraisal Dist., 293 S.W.3d 613, 619–20
(Tex. App.—San Antonio 2009, no pet.).
Similarly, Nicholson seeks sanctions against HLG’s trial and appellate counsel
for proffering “fabricated” evidence in the trial court. As she has throughout the
history of this case, Nicholson points to a letter, entitled “RESCISSION OF
ACCELERATION OF MATURITY OF INDEBTEDNESS,” HLG sent to
Nicholson on April 19, 2016, that informed her that the prior 2012 acceleration of her
note had been rescinded but that her prior defaults had not been waived. Nicholson
contends that this letter was fabricated and that it led to the trial court’s erroneous
summary judgment in favor of the Financial Defendants and HLG. Even assuming
we are empowered to sanction trial-court conduct for the first time on appeal, there is
nothing in the record to support Nicholson’s fabrication argument. We deny her
motion to sanction HLG’s counsel.
VI. CONCLUSION
Because we have previously determined that the trial court’s severance orders
were not abuses of discretion, we decline to address Nicholson’s issue directed to
these orders. As in her prior two appeals, Nicholson has failed to adequately brief her
arguments that the trial court erred by dismissing her claims against the Financial
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Defendants or by implicitly denying her motion for partial summary judgment.
Although her briefing directed to the dismissal of her claims against HLG is sufficient
to present the issue for our review, HLG conclusively established that it was entitled
to immunity. And Nicholson’s argument that HLG failed to segregate its attorney’s
fees was waived. Accordingly, we overrule Nicholson’s appellate issues and affirm the
trial court’s judgment. See Tex. R. App. P. 43.2(a).
/s/ Brian Walker
Brian Walker
Justice
Delivered: March 25, 2021
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