In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-26-00204-CV
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IN RE THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CW ABS, INC., ASSET-BACKED CERTIFICATES, SERIES 2007-1
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Original Proceeding
136th District Court of Jefferson County, Texas Trial Cause No. D-203632
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MEMORANDUM OPINION
This matter was previously before this Court in an appeal from a final judgment on a jury verdict, and we reversed the trial court’s judgment in part, rendered judgment in part, and remanded the case for a new trial on liability and damages, if any, as to only two of the plaintiffs’ claims. We remanded for a new trial the claim under the Finance Code section 392.304(a)(14) and the plaintiffs’ breach of contract claim, and we remanded the issue of attorney’s fees, if any. Bank of N.Y. Mellon v. Hall, No. 09-23-00102-CV, 2025 Tex. App. LEXIS 3526 (Tex. App.— Beaumont, May 22, 2025, no pet.). On remand in the trial court, the Real Parties in
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Interest David Hall and Teresa Hall (“the Halls”), amended their pleadings to re- assert claims on which this Court rendered a take-nothing judgment in the prior appeal. In this mandamus proceeding, Relator, The Bank of New York Mellon f/k/a The Bank of New York, as Trustee for the Certificateholders of the CW ABS, Inc., Asset-Backed Certificates, Series 2007-1 (“BNYM”), contends the trial court abused its discretion by refusing to strike the Halls’ Second Amended Petition and limit the new trial to the two claims we remanded—the breach of contract claim and the claim for an alleged violation of Section 392.304(a)(14) of the Finance Code. Concluding the trial court clearly abused its discretion in failing to strike some part of the new petition and that the Relator lacks an adequate remedy by appeal, we conditionally grant mandamus relief in part.
Background
We summarized and examined the parties’ disputes and the evidence from the jury trial at length in our May 2025 opinion and we need not repeat it here. See id. 2025 Tex. App. LEXIS 3526, at **1-63. Briefly, the Halls obtained a $44,800 home equity loan from New Century Mortgage Company in 2000. Id. at *2. In 2011, the Halls obtained payoff information from the lender and submitted a check to the loan servicer at the time. Id. In 2015, the Halls learned the loan servicer made an error and approximately $19,000 had not been applied to the loan in 2011. Id. The Halls sued BNYM in 2016, and in 2017, the parties entered into a Rule 11 settlement
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agreement. Id. at **2-3 After receiving and executing a release, the Halls non-suited their case against BNYM. Id. In 2019, the Halls filed this lawsuit, docketed as Trial Cause Number D-203632, and went to trial before a jury on their claims against BNYM for breach of contract, negligent misrepresentation, and violations of the Texas Debt Collections Act (“TDCA”). The jury found BNYM failed to comply with the Rule 11 Agreement, that BNYM made false and misleading misrepresentations, that BNYM made a negligent misrepresentation, and awarded a total of over one million dollars in damages to the Halls. Id. at *3.
On appeal, BNYM argued (1) the trial court erred in refusing to submit a question to the jury on whether there was a meeting of the minds by the parties as to all essential terms of the Rule 11 Agreement; (2) the trial court erred in refusing to set aside the jury’s verdict regarding the Halls’ claim for negligent misrepresentation and claim for TDCA violations; (3) that even if the Halls established their right to recover under the TDCA, the damages awarded for mental anguish, credit injury, and value of the Agreement as received as compared to as represented were not supported by legally and factually sufficient evidence; and (4) insufficient evidence supported the amount of attorney’s fees awarded by the jury. Id. at **73-74.
We reversed the trial court’s judgment. Id. at *112. We held the Halls’
negligent misrepresentation claim was not barred by the economic loss rule because the negligent misrepresentation claim was based on a separate injury and the
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economic losses were independent of those recoverable under the Halls’ breach of contract claim. Id. at **78-80. We held, however, that there was legally and factually insufficient evidence to support any award for past or future economic loss on their claim of negligent misrepresentation and we rendered a take-nothing judgment on that claim. Id.
On the Halls’ claims for TDCA violations, we held that because statements regarding loan modifications do not concern the “character, extent, or amount of consumer debt[,]” their claim that BNYM used “fraudulent, deceptive, or misleading representation[s]” prohibited by Finance Code section 392.304(a)(8) fail as a matter of law, and we rendered a take-nothing judgment on that claim. Id. at *86.
Evidence admitted at trial showed that in July of 2018 BNYM’s counsel told the Halls’ attorney that BNYM was processing the loan modification, and in reliance on BNYM’s representations, the Halls continued to send the payment amounts BNYM told them to pay monthly along with the coupon from the coupon booklet BNYM provided to the Halls, whereas the evidence at trial established that BNYM did not decide to book the loan until August of 2021. Id. at *88. We held legally and factually sufficient evidence supported the Halls’ claim that BNYM “represent[ed] falsely the status or nature of the services rendered by the debt collector or the debt collector’s business[]” as prohibited by Finance Code section 392.304(a)(14). Id. at *87. We held, however, that factually insufficient evidence supported the amount
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awarded by the jury for past mental anguish, and we remanded the case for a new trial on liability and damages recoverable for the alleged violation of Finance Code section 392.304(a)(14). Id. at **96-97.
We remanded the case for liability and damages on the Halls’ breach of contract claim because in their Motion to Enter Judgment they elected to recover only on their claims for violations of the TDCA and negligent misrepresentation and not their breach of contract claim. Id. at **111-12. Thus, we held they are entitled to a new trial to present their claim for breach of contract and the claim for violation of the TDCA under section 392.304(a)(14) together with applicable damages that may be recoverable on those claims. Id. at *112. Because we reversed and rendered on two claims and reversed and remanded on two claims, we reversed and remanded the attorney’s fee award as well. Id. at **112-13.
Thus, we rendered a take-nothing judgment on the Halls’ claims for negligent misrepresentation and for a violation of Finance Code section 392.304(a)(8). Id. We remanded the case for a new trial on liability and damages, if any, as to the claim under section 392.304(a)(14), we remanded the breach of contract claim for a new trial on liability and damages, and we remanded the issue of attorney’s fees as to the remanded claims. Id. at *113.
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The Halls’ Second Amended Petition The Halls filed a Second Amended Petition after we remanded the case to the trial court. The petition added “new” factual allegations:
7.18 Since the first trial of this matter, Bank has informed Plaintiffs of their “new monthly payment,” which payment(s) have been timely made by Plaintiffs as directed by Bank, only for said payments to be once again and repeatedly deemed insufficient, such that Plaintiffs suffer still another rolling default and the late fee penalties and negative credit reporting associated therewith.
7.19 Additionally, Bank has informed Plaintiffs of escrow shortage(s), which amount(s) when paid by Plaintiffs as directed by Bank have, again, been deemed “insufficient,” despite Bank’s initial representation to the contrary.
7.20 Bank’s serial inability to accurately and/or correctly communicate the specific amount of debt owed on the Loan including, but not limited to, the correct monthly payment and/or escrow balance is such that Plaintiffs do not know the correct, specific amount owed on the Loan.
7.21 Each one of the representations, as described above, was made by Bank negligently, grossly negligently, and/or recklessly without any knowledge of the truth as a positive assertion.
7.22 From the time that Bank made these representations, as described above, Plaintiffs believed them to be true as positive assertions made by persons with knowledge of their truth. Specifically, that the Loan Modification (as outlined in the Agreement) was being processed and/or booked, that Bank had fixed/cured the issue (at or before trial), and that various payments owed (coupon books, monthly payments, escrow shortages, etc.) were the correct amounts actually due, such that Plaintiffs relied, to their detriment, on Bank’s reckless and/or negligent misrepresentations.
On their claim for breach of contract, in their Second Amended Petition the Halls allege:
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10.01 Plaintiffs hereby adopt by reference the allegations contained in Section [VII] (“Facts”) hereinabove, and incorporate the allegations as if fully set forth at length herein.
10.02 Bank’s actions as described herein constitute a breach of contract committed upon Plaintiffs in violation of Texas law causing damage to Plaintiffs. Put simply, Bank’s conduct constitutes a breach of the contract between Plaintiffs and Bank.
10.03 Here, there are two contracts, both of which Bank has breached. The first contract is the Agreement. The second contract is the Loan Modification.
10.04 At all times relevant, Plaintiffs and Bank had entered into the aforementioned contracts, which are attached hereto as Exs. 2 and 4, respectively.
10.05 Plaintiffs fully performed and/or substantially performed Plaintiffs’ contractual obligations.
10.06 Bank, which accepted the terms of the contracts, [] breached the Contracts by failing to perform as agreed, which failures include, inter alia,:
(i) failing to book the Loan Modification;
(ii) failing to credit Plaintiffs’ cash payments against the principal balance;
(iii) failing to pay Plaintiff $1,250 within 30 days of the signing of the Release;
(iv) negatively reporting Plaintiffs’ credit and charging late fees for payments, which occurred then and continues to occur now as part of the negative feedback loop(s);
(v) by sending “inspectors” to the Home to assess it for foreclosure and “beginning to institute foreclosures proceedings”
despite the previous agreement(s); and/or (vi) other ways to be specified at trial.
10.07 Bank’s breach(es) caused injury to Plaintiffs.
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10.08 Bank’s breach(es) are (were) the proximate and/or producing cause of Plaintiffs’ damages, such detailed more fully below (§ XIII. DAMAGES); Plaintiffs were also forced to retain the undersigned attorneys to recover the damages that they have sustained as a result of the breaches of contracts.
10.09 Plaintiffs gave Bank notice as required by TEX. CIV. PRAC. & REM. CODE § 38.002.10.[]
On their claim that BNYM violated the TDCA, the Halls allege:
11.01 Plaintiffs hereby adopt by reference the allegations contained in Section VII (“Facts”) hereinabove, and incorporate the allegations as if fully set forth at length herein.
11.02 Plaintiffs are “consumers” under the TDCA because the Loan is a consumer debt.
11.03 Bank can be sued under the TDCA because Bank is a debt collector; additionally, Defendant BONY may be held liable for TDCA violations under a theory of vicarious liability.[]
11.04 Here, Bank violated the TDCA when it committed one or more wrongful acts in violation of TEX. FIN. CODE § 392.304 against Plaintiffs including, but not limited to,
(8) misrepresenting the character, extent, or amount of a consumer debt, or misrepresenting the consumer debt’s status in a judicial or governmental proceeding;
(14) representing falsely the status or nature of the services rendered by the debt collector or the debt collector’s business;
and (19) using any other false representation or deceptive means to collect a debt.
11.05 These and other acts and/or omissions of Bank (are) were the proximate and/or a producing cause of Plaintiffs’ damages who were injured as a result of said acts and/or omissions and which damages are detailed more fully below (§ [XIII]. Damages).
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The Halls’ Second Amended Petition also alleges a claim for negligent misrepresentation, asserting:
12.02 Plaintiffs do not assert any claim for negligent misrepresentation for any act/omission that occurred prior to September 2, 2022.
12.03 Since September 2, 2022, Bank has made material misrepresentation(s) about the Loan Modification, the Cure, the monthly payments owed to Bank as part of the Loan, and as to escrow shortages, which representations are independent of any contracts between the parties herein.
12.04 Bank made these representations in the course of transaction(s)
in which Bank has a pecuniary interest.
12.05 Bank made the representations for the guidance of others, i.e., Plaintiffs.
12.06 Bank did not use reasonable care in obtaining/communicat[ing]
the information to Plaintiffs, who actually, justifiably, and reasonably relied upon Bank’s representations in making payments.
12.07 Bank’s misrepresentation(s) proximately caused injury to Plaintiffs, which resulted in Plaintiffs’ damages.
BNYM filed a motion to strike Plaintiffs’ Second Amended Petition because it contains allegations that fall outside the scope of our mandate.
In response, the Halls argued we issued a general remand that allows the Halls to amend their petition to add additional claims. After a brief non-evidentiary hearing, the trial court denied BNYM’s motion to strike the Halls’ Second Amended Petition.
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Mandamus Standard
We may issue a writ of mandamus to remedy a clear abuse of discretion by the trial court when the relator lacks an adequate remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). “A trial court clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker, 827 S.W.2d at 839 (internal quotations omitted). A trial court also abuses its discretion if it fails to correctly analyze or apply the law, because a trial court has no discretion in determining what the law is or in applying the law to the facts. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135; Walker, 827 S.W.2d at 840.
We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments, considering whether extending mandamus relief will preserve important substantive and procedural rights from impairment or loss. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex. 2008) (orig. proceeding). An appeal is not an adequate remedy if the very act of proceeding to trial—regardless of the outcome—would defeat the substantive right involved. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding). “Mandamus will issue to ensure compliance with this court’s judgment.” Lee v. Downey, 842 S.W.2d 646, 648 (Tex. 1992) (orig. proceeding).
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Issues and Arguments
BNYM contends the trial court abused its discretion by refusing to strike the Halls’ Second Amended Petition given the limited nature of our mandate. BNYM further contends its lacks an adequate appellate remedy due to the trial court’s refusal to strike the Second Amended Petition, thus forcing BNYM to defend against issues at trial that are beyond the scope of our limited mandate.
The Halls contend we issued a general mandate that did not expressly prohibit any amendment to their pleadings. They further contend an appeal provides an adequate remedy. Finally, they argue laches bars BNYM’s complaint about their amended pleading.
Analysis
When an appellate court “remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). The instructions given to a trial court in the former appeal will be adhered to and enforced. Id. “In interpreting the mandate of an appellate court, however, the courts should look not only to the mandate itself, but also to the opinion of the court.” Id. The trial court is authorized to take all actions that are necessary to give full effect to the appellate court’s judgment, but the trial court has no authority to take any action that is inconsistent or beyond the scope of that which is necessary to give full effect to the appellate
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court’s judgment and mandate. Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013).
We conclude that the Halls’ Second Amended Petition presents a claim that is contrary to the scope of our mandate, and the trial court abused its discretion by refusing to strike that part of the Second Amended Petition that reasserts a claim we reversed and rendered. Most obvious is the reassertion of a claim under Finance Code section 392.304(a)(8). We previously held that statements regarding loan modifications do not concern the “character, extent, or amount of consumer debt[,]” and the Halls have no claim under Finance Code section 392.304(a)(8), as a matter of law, and we rendered a take-nothing judgment on that claim. Id. at *86. We conclude the trial court abused its discretion in failing to strike that section of the Second Amended Petition. Next, the Second Amended Petition reasserts a claim for negligent misrepresentation again, even after we rendered a take-nothing judgment on that claim. Plaintiffs allege in their Second Amended Petition, “Plaintiffs do not assert any claim for negligent misrepresentation for any act/omission that occurred prior to September 2, 2022.” And, on appeal the Halls contend that the negligent misrepresentation claim is a “new claim” because it is based on actions and misrepresentations that occurred by BNYM after September 2, 2022. Although BNYM may question whether the Halls will be able to prove the necessary elements of a “new” negligent misrepresentation claim, we cannot say the trial court abused
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its discretion in failing to strike that claim based solely on what is alleged in the Halls’ Second Amended Petition.1 We note however, that BNYM may still file special exceptions to the amended petition to require the Halls to specify the factual basis for this or any other claim, and should have the opportunity to file a motion for summary judgment on particular claims, or seek a motion for directed verdict at the appropriate time if the Halls fail to establish sufficient evidence of any of their claims.
Citing Simulis, L.L.C. v. Gen. Elec. Cap. Corp., the Halls argue a remand for further proceedings consistent with the appellate court’s opinion reopens the case entirely and allows a party to amend their pleadings freely. See 392 S.W.3d 729, 734-35 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). In Simulis, the trial court granted summary judgment on Simulis’s promissory estoppel and quantum meruit counterclaims. Id. at 731. The appellate court affirmed the grant of summary judgment on the promissory estoppel claim because Simulis’s reliance on alleged promises of future business was unreasonable as a matter of law, but it found a fact issue precluded summary judgment, reversed that part of the summary judgment,
1 We reject any argument that the Halls’ section 392.304(a)(8) claim should survive because it also is a “new” claim or is based on conduct that occurred after the first trial. Unlike the Halls’ negligent misrepresentation claim which failed because they presented legally insufficient evidence of damages at trial, their section 392.304(a)(8) claim failed because the conduct they allege is not actionable as a matter of law, regardless of how often it occurs.
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and remanded the case for further proceedings consistent with the appellate court’s opinion. Id. at 731-32. On remand, rather than pursue its quantum meruit claim, Simulis amended its pleading to add new counterclaims. Id. The trial court granted special exceptions, then ordered Simulis to amend its pleading to assert a claim for quantum meruit only, then granted a motion to dismiss the case with prejudice after Simulis amended its pleading to assert claims other than promissory estoppel and quantum meruit. Id. at 732. In a second appeal, the court concluded its opinion and mandate made it clear that two claims were considered on appeal from the grant of summary judgment, one of which was affirmed and one of which was reversed and remanded. Id. at 735. The court of appeals explained that because the appellate court had merely addressed the specific claims presented in the limited summary judgment record before it, Simulis was free to amend its pleadings to add new claims except as to those claims on which the appellate court rendered summary judgment. Id. at 735.
In contrast to Simulis, the judgment we reversed in the first appeal was not a summary judgment, which could only affect claims challenged in the motion for summary judgment, but a judgment on a jury verdict that adjudicated all claims that were brought or could have been brought between the parties. We reversed and rendered judgment for BNYM on certain claims, and we only remanded the breach
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of contract claim and the claim under the Finance Code section 392.304(a)(14), including the attorney’s fees that might be recoverable on those specific claims.
Citing In re W. Star Trucks US, Inc., the Halls argue a trial court’s decision to permit an amended pleading is inherently discretionary and not amenable to mandamus because the relator has an adequate remedy through appeal to seek review of the denial of the motion to strike. See 112 S.W.3d 756, 763 (Tex. App.—Eastland 2003, orig. proceeding). Here, however, the trial court lacks the discretion to exceed our mandate on remand. Phillips, 407 S.W.3d at 234.
The Halls argue we should apply the doctrine of laches to deny mandamus relief because the Halls amended their pleading eight months before BNYM filed its motion to strike in the trial court. The Halls mentioned the eight-month gap between the filing of their amended pleading and BNYM’s request to strike that pleading in their response to the motion to strike, but they did not identify any specific prejudice that they suffered because of the delay.
Generally, laches requires that a party show an unreasonable delay occurred and a good faith and detrimental change in position by the real party in interest resulted from the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex. 2010) (orig. proceeding). The Halls complain that they drafted discovery requests and filed a motion to compel discovery on their “new” claims, and they will need to repeat that effort if they file another lawsuit against BNYM. The delay may have caused the
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Halls to waste some effort pursuing discovery, but they have not shown that the delay resulted in a detrimental change in their position. See id. We decline to apply the doctrine of laches to deny mandamus relief to BNYM.
Mandamus relief is appropriate to spare private parties and the public the time and money that may be wasted by enduring eventual reversal of improperly conducted proceedings. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014); In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. We have already rendered a take- nothing judgment on the Halls’ claims for negligent misrepresentation and on the Halls’ TDCA claims other than their claim under Finance Code section 392.304(a)(14). See Hall, 2025 Tex. App. Lexis 3526, at **112-13. Appeal is not an adequate remedy considering BNYM will be subjected to another cycle of discovery and trial before our mandate would be enforced. We conclude the benefits of mandamus relief outweigh the detriments. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 136.
Conclusion
We conclude that the trial court clearly abused its discretion by denying BNYM’s motion to strike part of the Second Amended Petition and that the relator lacks an adequate remedy by appeal. We are confident that the trial court will vacate its order denying BNYM’s motion to strike the Halls’ Second Amended Petition, sign an order striking that part of the Halls’ Second Amended Petition that reasserts
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any claim we previously reversed and rendered, and that includes a prohibition on filing any claim under Finance Code section 392.304(a)(8). That said, we agree the trial court did not abuse its discretion in denying that part of the motion to strike which sought to strike any claim for breach of contract or the claim under Finance Code section 392.304(a)(14), or any alleged new cause of action, if any, that accrued after the date of the first trial. A writ of mandamus shall issue only in the event the trial court fails to comply.
PETITION CONDITIONALLY GRANTED IN PART AND DENIED IN PART.
PER CURIAM
Submitted on June 23, 2026 Opinion Delivered August 27, 2026
Before Johnson, Wright and Chambers, JJ.