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

• Court: Court of Appeals of Texas
• Decided: March 25, 2021
• Docket: 02-20-00180-CV
• Status: Published

Opinion

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in favor of three financial entities and one law firm involved in the later-rescinded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

2 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While this suit was pending, Stockman rescinded the sale and cancelled the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.).

1 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.

3 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

4 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 2

argued barred Nicholson’s claims as a matter of law.

5 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).

6 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

7 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.”

8 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,

9 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

10 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

11 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

12 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