### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00422
- CV

Billie O . Stone d/b/a Stobil Enterprise , Appellant

v. Randolph
- Brooks Federal Credit Union , Appellee

FROM THE 433RD DISTRICT COURT OF COMAL COUNTY NO. C2020
- 1435D , THE HONORABLE DIB WALDRIP , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Billi e O. Stone d/b/a Stobil Enterprise, appearing p ro se, appeals from the trial
court ’s order dismi ss ing his wrong ful

- forecl osure lawsuit pursuant to Rule 91a. See Tex. R. Civ. P. 91 a . For the following reasons, we affirm the dismissal order.

BACKGROUND In 2010, appellee Randolp h

- Brooks Federal Credit Union ( RBFCU) loaned Stone $628,000 for the purchase of residential real property in Comal County , in ex cha nge for which
Stone exe c u ted a promissory note and pledged the property as collateral by issuing a deed of
trust to RBFCU

. In 2016, a fter Stone became delinquent on his repayment obligations under the note , RBFCU notified Stone that he might qualify fo r o ptions in lieu of forec l o sure. Stone alleges that in 2018, he had a ph one conversation with a n RBFCU representative that resulted in

a n oral “ for

bearance agreement ” but that about a m onth later he received an email from RBFCU
sta ting that it was unable to as sist him further with a l oan modification . About a month later,2

Stone all eges that RBFCU again notified him that the only way he could avoid forec losure was to pay the balance due under t he note

.

Stone did not pay the balanc e but instead filed for Chapter 13 ba nkrup tcy re li e f
i n May 2018 , which stayed the foreclosure proce edings. His bankruptcy case was dismissed shor tly thereafter due to his failure to file mandatory bankruptcy administration documents and

assu rances to creditors. In late June 2 018 , S tone filed a seco nd C hapter 13 b a n krupt cy petition. The bankruptcy court dismissed this second petition in August 2018 due to, among other things, Stone ’ s failure to fi le several years ’ worth of fede ral tax returns and the general unfeasibility of C hap ter 13 re organiz atio n bas ed on Stone ’ s own calculation of assets, income, and debts. Thereafter, RB FCU notified Stone that it intended to f oreclose on the property September 4, 2018. S tone filed for bankruptcy a third time , and RBFCU foreclosed on the
pr ope rty as schedu led.

Ju st short of t wo years later, Stone filed th e underlying lawsuit against RBFCU , alleging that it wrongfully foreclosed on the property after he had stopped making required payments. After answerin g the suit, RBFCU filed a Ru le 91a motion to di smis s and set the motion for hearing on Dec e mber 9, 2020 , serving Stone with notice of the hearing on November 12, 2020. On November 16, 2020, Stone filed a response to the Rule 9 1a motion . At the December 9 non - evidentiary hearing, St one argued that he did not recei ve adequate notice of the hearing, even though he admitted that the address on the certificate o f service was his correct address. The tr ial court, although reco gnizing that the c ertificate of service creates a
pres u mption that the notice was pro perly ser ved, no net heless permitted Stone to submit an additional written response by December 15. Stone timely filed an additional response . On3

March 4, 2021, the trial court granted RBFCU ’ s Rule 9 1a motion to di smiss, and Stone timely perf ect ed thi s ap peal.

DIS CUSSION

S tone lists twenty

- one issues in his issue statement , but he generally fail s to support his l isted issues with cle ar a rgument s or appropriate citati ons to auth orit ies or to the record

. See Tex. R. App. P. 38.1(i) (requi ring brief to con ta in “ cle ar and con cise arg ument for the contentions made, with appropriate citations to auth orities and to the record ” )

. Although we construe pro se briefs liberally, pro se appel lants are held to the same standards a s appellants
represe nted by couns el t o avoid g iving them an unfair advantage. Vaclavik v. Di Addison , No. 03

- 19

- 00528

- C V, 2021 WL 1704249, at *1 (Tex. App.

— A u stin Apr. 30, 2021, no pet.) (mem. op.) (citing Mansfield S tate Bank v. Cohn , 573 S.W.2 d 181, 184

– 85 (Tex. 1978) ).
H olding Stone to th i s stand a rd, we conclude that he has waived most of his issues by failing to support them with s ubstantive arguments or appropriate citations. S ee Tex. R. App. P. 38.1(i)

. Nonetheless, w e will attempt to address his i ssues as best as we un derstand t hem. See Ste wa rt v. Texas Health & Hum. Servs. Comm ’ n , No. 03

- 09

- 00226

- CV, 201 0 WL 5019285, at *1 n.1 (Tex. App.

— Austin Dec. 9, 2010, no pet.) (mem. op.)

.

From Stone ’ s twenty

- one issu es, we distill three main complaints

. First, he
argues th at the tri a l court erre d in gra nting RBFCU ’ s Rule 91a motion because RBFCU did not support its motion with evidence or otherwise “ prove its case , ” “ hid information fro m the trial
court, ” did not “ di sprove ” Stone ’ s petiti on and its attachments , and did not comp ly wit h Texas
R ule of C ivil Procedure 93

. We secondly understand Stone to contend that he did not receive adequate notice o f the hearing on appellee ’ s Rule 91a motion or a fair hearing . T hirdly, Stone4

contends that the trial co urt erred by not finding that he is a “ go v ernm ent a l e ntity ” purportedly exempt from paying RBFCU ’ s attorney ’ s fees

.

Dismissal is appropriate under Rule 91a “if the allegations, take n as true, together with inferences reasonably drawn from them, do n ot e ntitle the claimant to th e relief sought

. . . [or] no reasonable pe rson could beli eve the facts pleaded.” Tex. R. Civ. P. 91a.1

. Whether the dismissal standard is satisfied depends “solely on the pleading of the cause of action.” Id.
R. 91a.6. “A cause of action has no basis in law if the all e gati ons, taken as true, t ogether with
in ferences reasonably drawn from them, do not entitle the claimant to the relief sought.” Id.
R. 91a.1. A motion to dismiss must identify each cause of action cha llenged and “must state
sp ecifically the rea s ons the cause of action has no basis in law, no basis in fact, or both.” Id.
R. 91a.2. The trial court may not consider evidence when ruli ng on a Rule 91a motion and must base its ruling only on the pleadin gs an d any supporting exhibit s. Id. R. 91a.6.

An appe llate cou rt revie ws a trial c ourt ’ s ruling on a motion to dismiss de novo. City of Dallas v. Sanchez , 494 S.W.3d 722, 72 4 (Tex. 2016 )

. Similarly, we base our review on the allegations set forth in th e live petition and attach ments theret o, con s tru e the pl eadings
l iberall y in favor o f the plaintiff, and accept as true the factual allegations. Wooley v. Schaffer , 447 S.W.3d 71, 75

– 76 ( Tex. App.

— Houston [14th Dist.] 2014, pet. denied ); see Bedford
Inter net Off

. Space, LLC v. T

exas Ins. Grp ., In c. , 537 S.W.3d 717, 720 (Tex . App.

— Fort Worth 2017, pet. dism ’ d ) (plain language of Rule 91a.6 “requires the trial court to wear blinders to any pleadings except ‘the pleading of the cause of action’ ”). However, we need not accept as true
any legal conclu s io ns put fort h by the pleader. City of Aust in v. Liberty Mut

. , 431 S.W.3d 817,
826 n.7 (Tex. App.

— Austin 2014, no pet.)

.5 As to Stone ’ s first g roup of issues

— in which he challenges the pr opriety of dis missal und e r Rule 91a

— we co n clude that the trial cour t did not err

. Sto ne asserted only one cause of action in his live petition: wrongful foreclosure. The re are three elements of such a claim : (1) a defect in the foreclosure

- sale proceedings, (2) a grossly inadequa te selling p rice , and (3) a causal connec tion betwee n the def ect and the grossly inadequate selling p rice. Collins v. Bayview Loan Servicing, LLC , 416 S.W.3d 682, 687 n.7 (Tex. App.

— Houston [14 th Dist. ] 2013, no pet.)

. Taking th e factual allegations in S tone ’ s petit ion and it s attachments as t r ue, Stone

n ei ther ar ticulat e d these elem ents n or alleged facts supporting any of th em. Although in his pleadi ngs Stone alludes t o a p urported “ violation ” of the bankruptcy court ’ s August 3 , 2018 ruling and a purpor ted “ breach ” of the parties ’ oral “ for be a rance agree ment, ” ne ither of these allegations allege s a defect i n the foreclosure process itsel f

. 1 Furthermore, St one failed to allege facts supporting the second and third elements: th at RBFCU sold the home for a grossly inad equa te selling price and tha t there is a causal connection between such inadequate pri ce and an allege d procedural defect in the foreclosure sale

. We accordingly ho ld that t he trial court did not err in granting RBF CU ’ s Rule 91a motion because the fa ctual all egations in Stone ’ s p eti tion and a ttachment s d o not support any of the three elements of his wrongful

- foreclosure claim and, therefore, the claim has n o basis in law

. See Tex. R. Civ. P. 91a.1 ; Zawislak v. Mos kow , No. 03

- 18

- 00280

- CV , 2019 WL 220 2209, at * 4 (Tex. App.

— A ustin May 22, 2019, no pet. ) (mem. op.) (affirming grant of Rule 9 1 a motion where live pleading and its exhi bits did
not alle ge ne cessary element of fraud claim) ; DeVoll v. Demonbreun , No. 04

- 14

- 00116

- CV ,

1 Moreover , Stone ’ s own factual allegations and att achments belie th ese m ere legal con c lusions of purported wrongdoing : the transcript of the phone call he had with th e RBFCU representative es tablishes that the parties reach ed no fo rbear ance agreement , and the bankruptcy court ’ s August 3, 2018 order does n othing more t han dismiss Stone ’ s C h apter 13 case without pr ejudice.6

2014 WL 7440314, at * 3 (Tex . App.

— San Antonio Dec. 31, 20 14, no pet. ) ( same )

. We overrule
Stone ’ s first set of issues. 2

In his second group of issues, Stone con tends that he did not r eceive adequate notice of the hearing on RBFCU ’ s Rule 91a motion and that the hearing w as u nfair b ecause the trial court “ ignored ” the facts an d evid ence he submitted with his petition

. However, the record demonstrates that notice of the hearing was serve d on Stone more than the required fo urteen days before the hearing, see Tex. R. Civ. P. 91a .6, and Stone admitted a t the hea ring t hat the ad dress

on the certificate of service was his correct address. While the trial court recognized that the certificate of service creates a pr e sumption that the notice was properly served, the t rial court

n onet heless permitted Stone t o submit an add itional wr itten res ponse after the hearing, and St one filed a supp lem ental brief with the trial court by the deadline it set for such brief. Nothing in the record supports Stone ’ s argument that his oppos ition to RBFC U ’ s Rule 91a motion was not affor ded fa ir conside ration by the trial court, and because t he trial court was require d to rule

“ solely o n the pleading, together with any pleading exhibits permitted under the Texas Rule of Civ il Procedure 59 , ” see Woo ley , 447 S.W.3d at 80 , we hold t hat , even assum ing Stone did not
h ave timely notice o f the hearing , any such failu re of notice was harmless. See Tex. R. App.
P. 44.1(a)

. Moreover , and for the same reason s , he has not demonstrated that t he heari ng was

“ unfair

. ” We o verrule Stone ’ s se co nd group of iss ues .

In Stone ’ s t hird and f

inal group of issues, he assert s that the trial court failed to
fin d that he is a “ go vernmental entity ” and accordingly err ed in awarding RBFCU its at torney ’ s

2 Within this issue, Stone also appears to take issue with the trial court ’ s ruling on the Rule 91a motion after the forty

- five

- day period s pecified in the ru le. See Tex. R. Civ. P. 91a. 3. W e ha ve p reviously hel d that su c h period is merely directory rather than mandatory , s ee Koenig v. Blaylock , 497 S.W.3d 595, 598 (Tex. App.

— Austin 2016, pet. denied) , and

— in any event

— Stone fails to articulate whether, or how, he was harmed b y the timin g of such rul ing.7

fees

. However , Stone never allege d any facts that support his claim to being a governm ental entity , and he ma de no argument before the tria l court that a n award of a ttorney ’ s fees is thus foreclosed , raising the issue for the first time on appeal and thus failing to preserve the issue

. See Tex. R. Ap p. P

. 33.1

. Secon dly, the autho rity he c ites for his claimed governmental status

— 38 U.S.C. § 4212(a)(1)

— is inapposite . Th at statute pro vides that when part ies contract with the United States , they must take “ af firmative action to em pl oy and advance in employ ment
qua lified cov ered veter ans. ” 38 U.S.C. § 4212(a)(1) (ent itled “ Veterans ’ employment emphasis under Federal contracts ” ). No thing in the statute purports to give veterans 3 governmental

- entity
status or speaks to attorne y ’ s fees. See id

. We therefore overrule Stone ’ s third grou p of issu es .
CONCLUSION Having ov erruled St one ’ s issues, we affirm the trial court ’ s order of dismissal.

__________________________________________ Thoma s J. Baker , Justice Before Ju stices Baker, Kelly, and Smith Affirmed File d: March 8, 2023

3 In his petiti on, S tone id entifie s himself as “ a United States Ar my Retired and 100% Mil itary Service Disabled Veteran. ”