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Nicholson v. Bank of America, N.A.

Court of Appeals of Texas, Second District, Fort Worth

December 31, 2019

Harriet Nicholson, Appellant
v.
Bank of America, N.A. and Countrywide Home Loans, Inc., Appellees

          On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-304598-18

          Before Gabriel, Bassel, and Wallach, JJ.

          MEMORANDUM OPINION

          Mike Wallach Justice

         Appellant Harriet Nicholson sued Appellees Bank of America, N.A. (BoA) and Countrywide Home Loans, Inc. (Countrywide), and other defendants on claims related to the foreclosure of her home. The trial court granted summary judgment for BoA and Countrywide and severed the claims against them. Nicholson appeals from both the grant of summary judgment and the severance. We affirm.

         Background

         On July 3, 2012, the substitute trustee under a deed of trust foreclosed on Nicholson's Tarrant County property. However, the notice of foreclosure sale listed the Dallas County courthouse as the location of the sale rather than the Tarrant County courthouse.

         After the purchaser at the foreclosure sale brought a forcible detainer action to evict her, Nicholson filed suit in the 342nd district court of Tarrant County against the purchaser, the substitute trustee, BoA, and others for claims arising from the foreclosure sale and to stop her eviction. While that suit (Nicholson I) was pending, the substitute trustee executed a rescission of the 2012 foreclosure sale and of the substitute trustee's deed, and he recorded this instrument in the Tarrant County real property records. On October 26, 2017, the trial court signed a final judgment ordering that the substitute trustee's deed and rescission were invalid and void and dismissing Nicholson's remaining claims with prejudice.

         In 2016, before rendition of a final judgment in Nicholson I, Nicholson filed this suit against the substitute trustee in the 48th district court of Tarrant County. By amended pleadings, she added Countrywide[1] and BoA as defendants. In Nicholson's eighth amended petition, she asserted (as she had in Nicholson I) claims for violations of Section 12.002 of the Texas Civil Practice and Remedies Code, negligence per se, gross negligence, and fraud, and she sought declaratory relief.[2] She also alleged civil conspiracy to commit fraud.

         Countrywide and BoA each filed a motion for summary judgment. In BoA's motion, it asserted that it was entitled to judgment as a matter of law because Nicholson's claims were barred by res judicata and collateral estoppel. It challenged Nicholson's tort claims on the ground that they were barred by the economic loss doctrine. It further moved for summary judgment on each of Nicholson's claims on the grounds that it was entitled to judgment "as a matter of law and undisputed fact" and that "Plaintiff cannot prove with competent summary judgment evidence each element of her claim."[3] Countrywide moved for summary judgment on identical grounds.

         The trial court granted Countrywide's and BoA's summary judgment motions without specifying the grounds and subsequently granted their motions to sever. Nicholson filed a motion for new trial, which the trial court denied. Nicholson now appeals.

         Discussion

         I. This court has jurisdiction over both of Nicholson's issues.

         We begin by considering Appellees' argument that we do not have jurisdiction over Nicholson's first issue. See In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam). They argue that this court should dismiss Nicholson's first issue "in which she attempts to challenge the [summary judgment orders]," because in the section of her notice of appeal listing the date of the orders from which she appealed, she listed only the dates of the severance order-which rendered the summary judgments final-and the order denying her motion for new trial. We disagree.

         Under the Texas Rules of Appellate Procedure, a notice of appeal must "state the date of the judgment or order appealed from." Tex.R.App.P. 25.1(d)(2). However, "[t]he requirement in Rule 25.1(d) that the notice of appeal must state the date of the judgment or order appealed from does not . . . limit what trial court rulings may be challenged on appeal," but rather "is used to determine whether the appeal is timely." Anderson v. Long, 118 S.W.3d 806, 810 (Tex. App.-Fort Worth 2003, no pet.). Nicholson's notice of appeal invoked this court's jurisdiction over Appellees, and Rule 25.1 does not limit the issues that Nicholson may bring on appeal. See id. at 809 (stating that "Anderson's timely filing of her notice of appeal invoked our jurisdiction over the Longs, who were parties to the order sustaining the plea to the jurisdiction" and that "[n]othing in [Texas Rule ...


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