## In the Court of Appeals Second Appellate District of Texas

a t Fort Worth

__________________________ _ No. 02

- 19

- 00103

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048

- 305585

- 19

Befo re Gabriel, Basse l, and Wallach, JJ. Mem orandum Opinion by Justice Gabriel 

### H ARRIET 

### N ICHOLSON 

### , Appellant

V


### . D AVID 

### S TOCKMAN 

### , D ONNA 

### S TOCKMAN 

### , AND 

### D ENISE 

### B OERNER 

### , Appellees2 MEMORAN DUM OPINION In this app eal arising from a property foreclosure, a ppellant Harriet Nicholson appeals from the trial court ’ s interlocutory, no
- evidence summary judgment enter ed in favor of ap pellees D a vid Stockman (Stockman) , Donna Stockman (Donna) , and
Den ise Boerner (Boerner) and from the trial court ’ s later severance order, which

re ndere d the summary judgment final and appealable. Because we conclude that the trial court d id not err by gra nting the summary judgment and di d not abuse it s discretion by gr anting the severance motion, we affirm. I. BACKGROUND In 2001 , Nichols on executed a deed of trust to her home in Tarrant County in favor of Mortgage Electronic Registration Systems, Inc. (M ERS) 1 to secure a contemporaneous $125,04 8 pr omiss ory note. T h e deed of trust was recorded in Tarrant Count

y. MERS later assigned its interest in the deed to Bank of New York Mellon (BONY)

. The mortga ge servicer for the l oan was Bank of America , N.A. A f ter Nic holson defaulted on h er obligations under the deed , Bank of America
app ointed Stockman as the substitute tru stee to enforce the deed. Stockman sold the property to BO NY at a July 3, 2012 nonjudici al for eclosure sale , which apparently occurred in Dallas County

. The substitute tru stee ’ s deed was recorded in Tarrant County.

1 MERS was the n o m inee of the lender, Mid America M ortgage, Inc. and its succ essor s and assigns.3

BONY brought a n ultimately successful forcible

- detainer action to evict Nicholso n from the property

. Nicholson , acting pro se, filed suit agains t BONY, Stock man, Bank of A me rica, Countrywide Home Loans, Inc., and others involved in th e foreclosure process, seeking to enjoin the evi ction

. Meanwhile, Stockman filed a notice rescind in g the 2012 foreclosure sale and resulting trustee ’ s deed because the sale had occurred (or at l east had be en noticed to be) in Dallas County even though the property was located i n Tarrant County

. See Tex. Prop. Code Ann. § 51.002(a). Nichol son amended her petition se veral t imes , 2 adding claims and add ing as defendants Donna and Boerner, who had b een named as alternate substitute trustees along with Reconstruct C ompa ny, N.A. in Stockman ’ s rescission notice

. During the litigation, the tria l court granted Nicholson a pa rtial summary judgment, declaring the

s ubstitute trustee ’ s deed and Stockman ’ s su bseque nt rescission “ invalid

. ” Appellees filed a no
- evidence summary

- judgment motion , which the trial court
gran ted. Appellees then moved to sever the claims brought again st them to confer fina lity on the no
- evidence summary judgment. Ap pellees follow ed in the footsteps of Bank of America and Countrywide who had successfully severed Nichols on ’ s claims aga inst them af

ter the trial court had granted summary judgment in their favor. 3

2 More on the timing and content o f some of these amendments lat er.

3 The trial court ’ s summary judgment in favor of Bank of America and Countrywid e , which was the su bj ect of a se parate appeal , was rece ntly affi rmed by this court
. Nicholson v. Bank of Am., N.A. , No. 02

- 19

- 00085

- CV , 2019 WL 7407739, at *14

The tri al cour t granted Appellees ’ motion to sever. Nicholson mov ed fo r new trial,
argu ing that the summary

- judgment and severa nce orders were in error. The mot ion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). Nicholson appeals and argues that material fact issues o n each element of her claims preclude d summary judgment , that the severance o rder was improper , and that Appellees co uld not be substitute trus tees because th ey had no contractua l rel ationship with BONY or Bank of America. II. SEVERANCE W e r eview a severance order for an abuse of discretio n. See L i bert y Nat ’ l Fire Ins. Co. v. Akin , 927 S.W.2 d 627, 629 (Tex. 1996). Nich olson argues that such an

a buse occur red because all of her claims were “ identical, involving the same facts and issues , ” an d because the severance was unnecessary based on the trial cour t ’ s earlier

sever ance of her claims aga i n st Bank of America and Countrywide

.

“ Any cla im against a party may be severed and proceede d wit h s eparately. ” Tex. R. Ci v. P. 41. In a case with multiple defendants, if summary judgm ent is properl y granted in favor of one defendant, it is generally proper to se ver the claim against that defendant for purposes of appeal

. Aviation Composite Techs., Inc. v. CLB C orp. , 131 S. W.3d 181 , 187 n.5 (Tex. App

. — Fort Worth 2004, no pet.) ; Arr edon do v. City of Dall. , 79 S.W.3d 657, 665 (Tex. App.

— Dallas 2002, pet. denied)

. Although (Tex. Ap p.

— Fort Worth Dec. 31, 2019, n o pet. h.) (me m . op., not de signated for pu blication)

.5

Nicholson ’ s claims against B ank of America and Countrywide had been dismissed an d severed, her claims aga inst other named defendants remained pending . A s everance afte r an interlo c u to ry summary

- judgment orde r to expedite appellate review is proper and not an abuse of d iscretion. 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 Ch risti

– E dinburg 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 nucl eus of facts, we

cannot conclude that the trial court abused it s discretion b y order ing the severance after granting the inte rlocutory, no
- e vidence summar y judgment in favor of App ellees

. See , e.g. , Young v. Heins

, No. 01

- 1 5

- 00500

- CV, 2017 WL 2376828, at *11 (Tex. App.

— Houston [1st Dist. ] June 1, 2017, pet. denied) (me m. op.); Dor sey , 480 S.W.3d at 15 ; Banks v. River Oaks Steak H ouse , N o. 2

- 0 3

- 363

- CV, 2004 WL 1858216, at *3 ( Tex. App.

— For t Worth Aug. 19, 2004, no pet.) (mem. op.) ; Arred ondo , 79 S.W .3d at 665.
W e overrule issue two. III. SUMMARY JUDGMENT
N icholson contends th at the trial court granted summary judgment in err or becaus e she p roffer ed evid ence raising genuine, mater ial fact issues on each element of her claims again st Appellee s. See Tex. R. Civ . P. 166a(i ). When reviewing a no

eviden ce summary judg ment, we examine the entire record in the light most favora ble

to the no nmovant, indulging e very reasonabl e inference and resolving any doubts against the motion. Suda n v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006) (per curiam)

. We6

review a no

- evidence sum mary judgment f or evidence that would enable reasonable and fair

- minded ju rors to diffe r in th eir conclusio ns. Hamilton v. Wi lson , 249 S.W.3d 425, 426 (Tex. 2008) (per curiam)

. In her firs t amen ded peti tion, which is not included in the appellate record but which named Stockman as a defendant, Nicholson sought a decla ration that the rescis sion of the f

oreclosure sale and resulting subs titute tru stee ’ s deed were invalid and that th is inv alid rescis sion did not resurrect the lien conferred in the original deed

o f trust

. S to ckman moved for a no

- evidence summary judgment, arguing that bec ause t h e tri al court had alr eady decla re d the rescission invalid, Nicholson ’ s claim

was moot. Th e trial court grante d Stockman ’ s mo tion in an inter locutory order. Nich olson then filed a second amended petition, which also is not in the
ap pellat e record, ostensibly raising claim s for fraud and for conspiracy to commit fraud against S t ockman. Stockman filed a no

- evidence motion for s umma ry judgment on these c laims , which the trial court granted. In her subsequ ent ei ghth amended pe tit i on, 4 Nicholson again named St ockman

as a defendant and added Donna and Boerner as parties. She alleged that Appellees, and the other name d defendants, knowin gly filed f raudulent documents in violation of Section 12.002 of the Civil Practice and R e med ies C o de , were negligent per se, w ere

4 The appellate reco rd does not c ontain Nicholson ’ s third, fourth, fifth, sixth, or se ven th amen ded petitions , but t hey do not appear to be rele vant to the issues in thi s a ppeal.7

grossly ne gligent, con spired to commit fraud, and committed f r aud

. She also sought declaratory relief directed to the validity of the substitute trustee ’ s deed and the subsequent r escission , again u r ging that the 2001 deed of trust had be en “ wiped out ” by the invalid substitut e trustee ’ s deed and rescission

. Appellees moved for a no
- evidence summary jud gment. Stockman asserted that the conspiracy and fraud claims could not be ra ised a gainst him because the trial

court pr eviously gran ted him summary judgment on those same cla ims. Appellees argued that there was no evidence to support the elements of Nicholson ’ s claims. The trial court granted th e motion in a non specific , interlo c utory order. In her appellate brie f, Ni cholson ’ s substantive argumen t specifically directed to the trial court ’ s summary

- judgment o rder is one sentence long with no citation to the record: “ Sufficient evidence was befor e the trial cour t to support every eleme nt of every claim to preclude the gr ant of Appellees ’ no
- evidence mo tion for summa ry ju dgme nt or there were genuine issues of ma terial fact (controver ting evidence) for trial. ” Nicholson fails to expla i n what specific evidence sup ported each element , to discuss what those elements are , or t o parse each grou nd Appellees raised in their no

eviden ce motion

. Even more eg regious is her complete failure to provide citations to

t he 1178

- page clerk ’ s record or to describe the evidence illustrat ing the genuine , material fact issues she relies on. S ee Horton v. Stovall , No. 18

- 0925, 2019 WL 6971668,

at *3 (Tex. Dec. 20, 2019) (per curiam) ( “ Courts are not required to comb t hrough the record to find evidence to suppo rt a party ’ s appellate issues , but nothing prevents8

courts from undertaking reasonable efforts to locate evidence d escribed in a party ’ s brie f. ” ). Nicholson ’ s curso ry and inadequate briefing on this issue is not a “ readi ly correctable” or “ harmless ” defec t ; rather, the brief is a “ flagr ant viola tion [] ” of the
pro cedural rules that imposes an unreasonable burden on thi s court

— to parse th e lengt hy record f

or summary

- ju d gment evidence in an attempt to locate unidentified fa ct issues for each element of her cl aims

. 5 Id. W e conclude th at Nicholson , through inadequate and non

- remediable briefin g, fai led to present f or our review any error arising fr om th e trial court ’ s summa ry

- judgment order

. See , e .g. , Jimenez v. Citifinancial Mortg. Co. , 16 9 S.W.3d 423, 425

– 26 (Tex. App.

— El Paso 2005, no pet.) ; Tre besch v. Morris , 118 S.W.3d 822, 82 4

– 2 5 (Tex

. App.

— Fort Worth 20 0 3, pet. denied) ; Hall v. Stephenson , 919 S.W.2d 454, 466

– 67 (T ex. App.

— Fort Worth 1996 , writ denied)

. See generally Tex. R. App. P. 38 .1(i) ( requiring argument portion of brief to provide

“ a ppropriate citation s to authorities and to th e record ” ) ; Horton , 2019 WL 6971668, at *3 (recognizing appellate court s ha ve di sc retion to find br iefing waiver or to allow amendment or rebriefing based on the facts of the case)

. W e overrule issue one. Even if Nicholson had appropriately briefed thi s issue, we would con clude that the trial court did not err by granting Appellees ’ motion

. First, the trial court had

5 Nicholson was provided a copy of the appella te record before she initially filed her brief. After we noted s everal procedural defects in her brief and request ed cor rection s , Nicholson filed an amended brief. See Tex. R. App. P. 9.4, 38.1 , 38.7, 44.3

. Appellees ’ brief responded to Nicholso n ’ s amende d brief, and we sim ilarly rely on Nicholson ’ s amended brief.9

previo usly di smissed , in t wo interlo cutory summary

- judgment orders , Nichols on ’ s declar atory

- judgm ent, fraud, and conspiracy c laims agains t Stockman . T h e y could not be revived by Nicholson ’ s ei ghth amended petition. Se e Marti n v . First Republic Bank , 799 S.W.2d 482, 4 88

– 89 (Tex. App.

— Fort Worth 1990, writ denied). Second,
N icho lson produced no evide n ce that Donna or Boerner took any affir mative action regarding the foreclosure sale , the substi tute tru stee ’ s deed, or th e subse que n t rescission other than their nominal i nclu sion as alternate substitute trustees in Stockman ’ s rescis sion, which was subsequ ently foun d to be in valid. Thi rd , Appe llees ’

no
- evidence motion set out e ach element of each c laim Ni cholson brought aga inst th em and specifically argued that there wa s no evidenc e to support any of her claims

. In response, Nicholson did not raise more than a sc intilla of evidence creating a genuine issue of material fact on each element of each c laim. And Appellees ’

ar gu ments to the trial cour t that Nicholson ’ s claims fail ed 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) ; G illham 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 Stock man issued the substitute trustee ’ s deed, he had no further ex press or implied authority to act as BO NY and Bank of America ’ s

a gent; thus, she contends he had no authority to rescind the sub st itute trustee ’ s deed

. But the tri al court declared the foreclosure sale a nd substitute tru stee ’ s dee d invali d,10

granting Nicholson the relief she requested and re

- ur ges on a ppeal. This argum ent is thus moot. She further asserts that Donna and Boerner suffered from the same lack of authority

. But as we ha ve recogniz ed , Nicholson has fail ed to proffer any eviden ce that Donna or Boerner took any action reg arding the f oreclosure sa le, the subst itute

trustee ’ s deed, or the rescission. Accordingly, whet her th ey had the authority to take any such action is of no moment to Nicholson ’ s claims. We overrule issue three. V. CONCLUSION W e conclude that the trial court did not err by granting summar y jud gment in favor of Appellees, thereby dismissing Nicholson ’ s claims aga inst them, and that the trial court did not abuse its discretio n by severi ng those claims in order to make its summary judgment final and appealabl e. Acco rdingly, we affirm the tr i al court ’ s November 2, 2018 order granting Appellees ’ no
- evi dence summary

- judgme nt mo tion and the trial court ’ s January 1 7, 2019 order gra nting Appellees ’ motion to sever. S ee Tex. R. App. P. 43.2(a). We also deny Ni cholson ’ s re quest for appellate sancti ons against Appel lees

. Cf. Tex. R. App. P. 45 (providing for d amage award if app eal deem ed frivolous)

. / s/ Lee Gabriel
Lee G abriel Justice Deliver ed: January 16 , 202 0