Christine E. Reule v. M & T Mortgage, M & T Bank Bayview Loan Servicing, LLC, Bayview Financial Trading Group, LP, Bayview Financial LP and Hughs, Watters, Askanase, LLP , 483 S.W.3d 600 ( 2015 )

Affirmed and Majority, Concurring, and Dissenting Opinions filed October
29, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00502-CV
CHRISTINE E. REULE, Appellant
V.
M&T MORTGAGE, M&T BANK, BAYVIEW LOAN SERVICING, LLC,
BAYVIEW FINANCIAL TRADING GROUP, LP, BAYVIEW FINANCIAL,
LP, HUGHES, WATTERS, ASKANASE, LLP, CAROLYN TAYLOR,
AUDREY LEWIS, JEFF LEVA, SANDY DASIGENIS, AND RLZ
INVESTMENTS, INC., Appellees
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2008-75636
MAJORITY OPINION
Appellant Christine E. Reule appeals from a take nothing judgment in favor
of appellees M&T Mortgage, M&T Bank, Bayview Loan Servicing, LLC,
Bayview Financial Trading Group, LP, Bayview Financial, LP, and Hughes,
Watters & Askanase, LLP (collectively, Mortgagees/Representatives), as well as
appellees Carolyn Taylor, Audrey Lewis, Jeff Leva, Sandy Dasigenis (collectively,
Trustees), and appellee RLZ Investments, Inc. We affirm.
I. BACKGROUND
A. Overview
Reule purchased a condominium located in Houston in 1999. As part of the
purchase, Reule financed $32,300 with a loan from First Capital Bank. Reule
signed a promissory note and a Deed of Trust. For at least four years, Reule made
payments on the note. In 2003, Bayview Financial Trading Group, LP acquired
Reule’s mortgage. Reule alleged that she developed a dispute with her new
mortgage servicer, M&T Mortgage, sometime in 2004. The dispute centered on
how M&T Mortgage credited sums she paid in excess of her monthly mortgage
payment and payments M&T Mortgage made for her taxes. In ultimate response
to M&T Mortgage’s refusal to “make proper credits to the account,” Reule sent
M&T Mortgage a check for $205.98, the amount of her regular monthly mortgage
payment, in November 2006, and noted in the memo line that is was “full and final
pmnt on the disputed account.” M&T Mortgage cashed the check. Thereafter,
Reule made some mortgage payments, but failed to pay others.
In March 2007, Reule’s mortgage loan servicing was transferred to Bayview
Loan Servicing, LLC (Bayview Loan). On April 19, Hughes, Watters & Askanase,
L.L.P. (Hughes, Watters), on behalf of Bayview Loan, accelerated the payments
due under the note and notified her Reule that a foreclosure sale would occur in
June. Bayview Loan did not proceed with the foreclosure sale. Reule stopped
making payments on her mortgage in July 2008.
Meanwhile, in December 2008, Reule filed suit against the
Mortgagees/Representatives, the Trustees, and RLZ Investments arising largely
2
from her claim that she paid in full on her home mortgage through the partial
payment marked “full and final,” as well as the Mortgagees/Representatives’
ongoing efforts to collect payments on what they alleged was a delinquent account.
Reule asserted as “claims” (1) accord and satisfaction; (2) violations of the Texas
Deceptive Trade Practices Act (DTPA); (3) violations of the federal Fair Debt
Collection Practices Act (FDCPA); (4) violations of the Texas Debt Collection Act
(TDCA), and (5) breach of contract.
In February 2009, Bayview Loan notified Reule that she was in default and
demanded payment of $1,839.80. Reule did not pay the amount Bayview Loan
claimed was owed. Bayview Loan subsequently foreclosed on Reule’s property,
and the property was sold in a July 5, 2011 foreclosure sale. Reule continued
living in the property despite the foreclosure sale and was still occupying the
property as of the date of trial in May 2013. After the foreclosure, Reule filed a
second suit for declaratory relief that was consolidated with her December 2008
suit.
B. The Summary Judgments
The trial court granted partial summary judgment on many of Reule’s claims
in three separate orders. In December 2009, the trial court granted Appellees’
“Motion for Partial Summary Judgment” on accord and satisfaction and the DTPA
claims. In January 2012, the trial court granted in part and denied in part the
Mortgagees/Representatives’ “Motion for Second Motion [sic] for Summary
Judgment.” Specifically, the trial court ordered that the
Mortgagees/Representatives’ traditional and no-evidence motion for summary
judgment on the FDCPA claims and TDCA claims were granted and the
3
Mortgagees/Representatives’ no-evidence summary judgment motion on Reule’s
breach of contract and Declaratory Judgments Act claims were denied.1
Finally, in July 2012, the trial court granted the Mortgagees/Representatives’
motion for summary judgment on all of Reule’s pleaded damage claims that
sounded in tort. Specifically, the trial court granted the motion stating, “Plaintiff
as a matter of law cannot recover personal injury, mental anguish and/or pain and
suffering type damages through Plaintiff’s wrongful foreclosure, breach of
contract, and declaratory judgment causes of action.”
C. The Jury Trial
The trial court called all remaining claims to trial on May 30, 2013. Reule
and her daughter were the only witnesses. Reule rested on June 5. The trial court
heard and granted motions for directed verdict on the following claims, which it
specifically documented in the final judgment:
(1) all of Reule’s claims against Bayview Financial Trading Group, LP,
Bayview Financial, LP, M&T Mortgage, M&T Bank, Hughes Watters, Carolyn
Taylor, Audrey Lewis, Jeff Leva, and Sandy Dasigenis;
(2) the wrongful foreclosure and the section 12.001 claims against Bayview
Loan;2 and
(3) the wrongful foreclosure and breach of contract claims against RLZ
Investments, Inc.3
1
The trial court also granted in part Reule’s motion for summary judgment regarding
chain of title and limitations on the foreclosure sale. In a September 14, 2012 order, the trial
court reconsidered the rulings, denied Reule’s motion, and declared that “Defendants have
established as a matter of law that the initial acceleration of that note was abandoned and the
loan reinstated such that the statute of limitations regarding the foreclosure sale had not expired
before the foreclosure sale had occurred.” Although Reule challenges the denial of the motion
for summary judgment, Reule does not urge error in this declaration.
2
It appears that these were the only claims raised against RLZ Investments.
4
The jury returned a verdict in which it determined, in pertinent part, that
(a) Bayview Loan is the owner of the Deed of Trust; (b) Bayview Loan did not fail
to comply with the terms of the Deed of Trust; (c) Reule failed to comply with the
terms of the Deed of Trust; and (d) Reule and Bayview Loan did not agree to a
note Reule claimed to have signed in purple, know at trial as the “Purple Ink
Note.”
D. The Post-Verdict Motions
The Mortgagees/Representatives filed a post-trial motion for sanctions
against Reule, seeking sanctions of $3,015. As grounds, the
Mortgagees/Representatives asserted Reule significantly delayed trial and wasted
the time of the trial court, the parties and their counsel, and the jury by, inter alia,
tardiness to court proceedings, failing to be prepared for pretrial proceedings,
failing to be prepared to present her case in chief, changing her exhibit list several
times during trial, and failing to provide counsel with copies of her exhibits. The
trial court granted the motion for sanctions on June 24, 2013, and ordered Reule to
pay $900 “in sanctions for interfering with the Court’s ability to hear evidence and
decide issues of law and fact in the trial of this matter.”
Reule filed a motion and an amended motion for judgment notwithstanding
the verdict (JNOV), asking the trial court to disregard all jury findings and to enter
judgment in her favor. She did not file a motion for new trial. The trial court
3
Reule has not challenged any of these directed-verdict rulings. In her reply brief, Reule
claims that HWA LLC failed to “file” a motion for directed verdict. But a motion for directed
verdict may be made orally. See Walker v. Hitchcock Indep. Sch. Dist., No. 01-11-00797-CV,
2013 WL 3771302, at *8 (Tex. App.—Houston [1st Dist.] Jul. 16, 2013, no pet.) (mem. op.)
(citing Dillard v. Broyles, 633 S.W.2d 636, 645 (Tex. App.—Corpus Christi 1982, writ. ref’d
n.r.e.), and noting that Tex. R. Civ. P. 268 regarding directed verdicts only requires specificity,
which can be met with an oral or written argument). Further, the trial court not only entertained
a motion for directed verdict from HWA LLC at the close of Reule’s evidence, the trial court
asked for and received argument on that and all of the other motions for directed verdict.
5
denied the JNOV motion and entered a take-nothing judgment. That same day, the
trial court signed an amended order of sanctions, which provided that, as an
alternative to paying the $900 in sanctions, “Ms. Reule may submit to the court a
written statement in her own handwriting that states 100 times that, ‘I will not
waste the time of the court, opposing counsel, jurors, or court personnel.’” Reule
timely noticed her appeal.
II. ANALYSIS
A. Issues on Appeal
Reule’s brief, though redrawn with additional length afforded, fails to “state
concisely all issues or points presented for review.” Tex. R. App. P. 38.1(f). We
nonetheless construe Reule’s brief liberally to reach her appellate issues on the
merits, where possible. See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008).
Despite our liberal reading of her brief, we note that pro se litigants such as Reule
are held to the same standards as licensed attorneys and must comply with all
applicable rules of procedure. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185
(Tex. 1978); Brown v. Tex. Emp’t Comm’n, 801 S.W.2d 5, 8 (Tex. App.—Houston
[14th Dist.] 1990, writ denied).
Liberally construing Reule’s brief, we glean challenges to the following:
(1) the sufficiency of the evidence to support several jury findings; (2) several pre-
trial summary judgment orders; (3) the trial court’s allowing the withdrawal of
Reule’s counsel nearly two years before trial, over Reule’s objection; (4) the trial
court’s refusal to submit jury questions provided by Reule; (5) the trial court’s
failure to submit Reule’s state and federal fair debt collection claims to the jury;
(6) the denial of Reule’s JNOV motion on damages for medical costs; (7) the post-
trial amended order granting sanctions against Reule; (8) the denial of Reule’s
quiet-title claim; (9) the trial court’s refusal to apply New York law to some of
6
Reule’s claims; (10) the timeliness of the Mortgagees/Representatives’ trial brief;
(11) the Mortgagees/Representatives’ purported violations of motions in limine;
and (12) the trial court’s “tossing out” of Reule’s “chain of title” claim.
Because several of Reule’s issues fall into similar categories, we discuss
them together. But we begin our analysis of Reule’s issues with her sufficiency
complaints.
B. Sufficiency of the Evidence
Reule challenges the sufficiency of the evidence to support the jury’s
answers to questions 1, 2, 4, and 8. We begin our analysis by noting that Reule
challenged both the legal and factual sufficiency of the evidence to support these
jury findings. But, to preserve error for appellate review, Reule would have had to
voice a complaint of factual insufficiency of the evidence to support a jury finding
in a motion for new trial. Tex. R. Civ. P. 324(b)(2). Reule did not file a motion
for new trial. Reule filed a motion for JNOV. A JNOV motion does not preserve a
challenge to the factual sufficiency of the evidence. Cecil v. Smith, 804 S.W.2d
509, 510–11 (Tex. 1991); Daniels v. Empty Eye, Inc., 368 S.W.3d 743, 749 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied). Thus, Reule has not preserved her
factual-sufficiency complaints. We consider only the legal sufficiency of the
evidence to support these findings.
In reviewing the legal sufficiency of the evidence, we view the evidence in
the light most favorable to the finding, crediting favorable evidence if a reasonable
fact finder could, and disregarding contrary evidence unless a reasonable fact
finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005).
When a party attacks the legal sufficiency of an adverse finding on an issue on
which it has the burden of proof, it must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of the issue. Dow Chem.
7
Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). We must first examine the record
for evidence that supports the finding; if there is no evidence to support the
finding, then we examine the entire record to determine if the contrary position is
established as a matter of law. See id. We may sustain the issue only if the
contrary position is conclusively established. Id.
We may not sustain a legal sufficiency, or “no evidence,” point unless the
record demonstrates that: (1) there is a complete absence of a vital fact; (2) the
court is barred by the rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence to prove a vital fact is no
more than a scintilla; or (4) the evidence establishes conclusively the opposite of
the vital fact. City of Keller, 168 S.W.3d at 810. The jury is the only judge of
witness credibility and the weight to give to a witness’s testimony. See id. at 819.
With these principles in mind, we turn to Reule’s legal-sufficiency challenges.
1. Question 1: Bayview Loan Servicing owns the deed of trust
Question No. 1 asked the jury whether Bayview Loan Servicing is the owner
of the Deed of Trust and instructed the jury to answer “yes” if Reule failed to
prove by the preponderance of the evidence that Bayview Loan Servicing is not the
owner of the Deed of Trust. Reule’s own exhibits show that First Capital Bank
assigned the Deed of Trust to “Wachovia Bank, N.A. as Trustee (Bayview),” and
that Wachovia Bank assigned the Deed of Trust to Bayview Loan Servicing.
During cross-examination, the following exchange occurred between Reule and the
Mortgagees/Representatives’ attorney:
Q. So based on -- based on the documents I just showed you, which is,
when we first started off, the Deed of Trust with First Capital as a
result in the sale of your property. Then the assignment occurs from
Wachovia as the trustee -- or from First Capital to Wachovia as the
trustee for Bayview. Then there’s a second assignment that goes from
8
Wachovia as a trustee for Bayview to Bayview Loan Servicing, do
you agree with me that at a minimum that's what those documents
state?
A. That’s what these documents state.
Q. Okay, and --
A. But I’m disputing of whether or not they’re required additional
assignments.
Q. I understand that, Ms. Reule, but you --
A. Okay.
Q. Based on those documents that you saw, those legal documents
that are filed with the real property records.
A. That’s what your client did, correct.
Reule did not claim that there were subsequent assignments. And, although Reule
vigorously contests that the Deed of Trust was ever validly transferred from the
original owner, First Capital, Reule made payments to subsequent servicers or
owners Interbay, M&T, and Bayview Loan Servicing without objection through at
least 2005. Viewing the evidence in the light most favorable to the jury’s finding,
we conclude that legally sufficient evidence supports the jury’s determination that
Bayview Loan Servicing owned Reule’s Deed of Trust. Her sufficiency challenge
to the jury’s answer to Question 1 is overruled.
2. Question 2: Bayview Loan Servicing complied with the deed of trust
In Question 2, the jury was asked if Bayview Loan Servicing failed to
comply with the terms of the Deed of Trust and answered, “no.” In her argument
regarding this issue, Reule asserts that Bayview Loan Servicing failed to provide a
notice to cure as required by the Deed of Trust prior to accelerating the note. The
record reflects, however, that on February 24, 2009, Bayview Loan Servicing sent
written notice to Reule that she was in default on her loan. This notice provided,
pertinently:
9
We have not received the 7/1/2008 and succeeding installments. This
is a formal demand for payment of the total amount past due, which is
$1,839.80 as of the date of this letter. If payment by cashier’s check
or certified check is not received prior to the next installment due
date, another installment will become due. Our acceptance of any
funds less than the full amount necessary to reinstate the loan shall not
constitute a waiver of our rights and/or remedies under the documents
or applicable law.
If we do not receive payment or hear from you disputing the validity
of the debt or any portion thereof within thirty (30) days, we will
assume the debt to be valid. . . .
[W]e will accelerate the maturity of the loan, declare the entire
obligation due and payable without further demand, and begin
foreclosure proceedings. . . .
You have the right to bring a court action to assert the nonexistence of
a default or any other defense to acceleration and sale of the property
and you may have other rights under state law. After the loan is
accelerated, it may be reinstated if, at least 5 days before the
scheduled sale of the property:
1. All past due installments, late charges, advances and any other
items secured by the loan documents are paid as if the loan was not
accelerated, all reasonable attorney’s fees, any Trustee’s fees and
costs incurred in enforcing the remedies under the loan documents
are paid, and all breaches of any covenants or agreements made
under the loan documents are cured; AND,
2. You take any other action reasonably required by us to assure that
the lien and any interest in the property, and your obligation to pay
the sums secured by the loan documents continue unimpaired and
in full force and effect.
(emphasis added). This letter complies with the acceleration provision contained
in the Deed of Trust that Reule claims Bayview Loan Servicing failed to follow.
Moreover, Reule acknowledged during cross-examination that “the notices
of acceleration after that [letter] were consistent with [her] failure to pay the 30-
day notice.” In fact, she provided as one of her exhibits a Notice of Acceleration
10
and Notice of Substitute Trustee’s Sale dated June 13, 2011, which advised her that
she was in default and “that despite the sending of written notice of default and
notice of intent to accelerate the maturity of the Loan, the default was not timely
cured.” This letter stated that Bayview Loan Servicing “hereby accelerates the
maturity of the Loan and declares the entire balance of the Loan due and payable in
full.” The letter explained that a foreclosure sale authorized by the Deed of Trust
would take place on July 5 and that the payoff due as of June 14 was $44,967.50.
The letter further advised that “the amount necessary to prevent this foreclosure
sale may be determined by contacting” Hughes Watters.
From this evidence, the jury reasonably could have found that Bayview
Loan Servicing did not fail to comply with the terms of the Deed of Trust. Thus,
Reule’s sufficiency challenge to the jury’s answer to Question 2 is overruled.
3. Question 4: Reule failed to comply with the deed of trust
The jury answered “yes” to Question 4, which asked if Reule failed to
comply with the terms of the Deed of Trust. The first provision of the Deed of
Trust states, “Borrower shall promptly pay when due the principal of and interest
on the debts evidenced by the Note and any prepayment and late charges due under
the Note.” And at the time of trial, it was undisputed that Reule had not paid her
mortgage for 58 months. Thus, there is legally sufficient evidence that Reule
failed to comply with the Deed of Trust.
4. Question 8: Bayview Loan Servicing and Reule did not agree to the
“Purple Ink Note”
The jury determined in Question 8 that the “Purple Ink Note” was not agreed
to by Bayview Loan Servicing and Reule. Reule alleged that the version of the
note that bears her signature in black ink is not her signature. Reule could not find,
did not produce, and did not offer into evidence a “Purple Ink Note.” Reule agreed
11
she signed a note. Reule claimed that, of a large stack of documents that she did
sign and return to her lender, only the note bore her signature in purple ink. Reule
had no idea whether the note she signed is in any way different from the note made
an exhibit in the trial. And, Reule did not actually claim that the note admitted into
evidence at trial is a forgery—she merely recalled signing in purple ink and
thought the loop on the “L” in her signature looked different. Reule adduced no
evidence that the Mortgagees/Representatives (or anyone else) forged her signature
on the note signed in black ink contained in our record.
In short, the issue of whether a Purple Ink Note existed and was agreed upon
is based entirely on the jury’s evaluation of the parties’ credibility. And the jury is
the sole judge of the credibility of witnesses and the weight to be given their
testimony. Id. By their answer to Question 8, the jury indicated it did not believe
Reule’s testimony that she signed the note in purple ink. Accordingly, there is
legally sufficient evidence to support the jury’s answer to Question 8.
For the foregoing reasons, we overrule Reule’s legal-sufficiency challenges.
We now turn to her remaining issues, beginning with numerous issues that relate to
pre-trial summary judgment orders.
C. Pre-Trial Summary Judgment Orders
Many of Reule’s complaints arise from pre-trial partial summary judgment
orders, including her challenge to the denial of her motion for summary judgment,
the partial summary judgment disposing of Reule’s accord and satisfaction “claim”
and DTPA claims, and the partial summary judgment in favor of the
Mortgagees/Representatives on Reule’s tort damages claims. For the reasons
described below, all of these issues lack merit.
12
1. Denial of Reule’s motion for summary judgment
Reule filed a motion for summary judgment in May 2009, seeking
affirmative judgment on all of her claims. Although the trial court initially granted
her motion in two regards, the trial court reconsidered that decision in a September
14, 2012 order and denied her motion in its entirety. On appeal, Reule challenges
the trial court’s denial of her summary judgment, the reconsideration, and certain
evidentiary rulings associated with the denial. Reule devotes a substantial portion
of her appellate briefing to arguing that her affirmative motion for summary
judgment was well-founded and should have been granted and that the trial court
abused its discretion by (a) reconsidering its summary judgment decision, (b)
denying her motion to exclude and for sanctions, and (c) permitting new evidence
and new theories from the Mortgagees/Representatives.
Generally, the denial of summary judgment cannot be reviewed on appeal.
See Cincinnati Life Ins. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). Further, it is
well settled that where the movant unsuccessfully moves for summary judgment
and subsequently loses in a trial on the merits, the order denying the summary
judgment cannot be reviewed on appeal. United Parcel Serv., Inc. v.
Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied); Orozco v. Orozco, 917 S.W.2d 70, (Tex. App.—San Antonio 1996, writ
denied); Pennington v. Gurkoff, 899 S.W.2d 767, 769 (Tex. App.—Fort Worth
1995, writ denied); Nash v. Civil Serv. Comm’n, Palestine, 864 S.W.2d 163, 165
(Tex. App.—Tyler 1993, no writ). Consequently, we cannot review the trial
court’s denial of Reule’s motion for summary judgment, nor the subsidiary issues
associated therewith.
Under these circumstances, we overrule these issues.
13
2. Summary judgment on accord and satisfaction
Reule urges that the trial court should not have granted summary judgment
in favor of the Mortgagees/Representatives on her “claim” of accord and
satisfaction. The Mortgagees/Representatives sought summary judgment on
Reule’s accord and satisfaction “claims,” urging that (1) the undisputed facts
established that there was no agreement or meeting of the minds that the lender
would accept a tender of less than one percent of the loan balance in satisfaction of
the loan and (2) Reule’s tender lacked good faith. The trial court granted the
motion without specifying its basis.
The financial entities did not have a counterclaim for loan deficiency against
Reule. At the time of trial and ultimate judgment, the Mortgagees/Representatives
did not seek an award of deficiency damages against Reule. Accord and
satisfaction is, as Reule acknowledges, an affirmative defense. See Tex. R. Civ. P.
94 (providing that accord and satisfaction is an affirmative defense). Stated
differently, it is a matter in avoidance. Reule was not seeking to avoid a claim
actually raised by the Mortgagees/Representatives. As such, even if the trial court
erred in granting this summary judgment, the error is harmless.4 See Progressive
County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919 (Tex. 2005) (per curiam)
(explaining that subsequent events, such as a take-nothing judgment following a
jury trial on a breach of contract claim, should be considered when determining
harm from trial court’s grant of summary judgment).
Accordingly, we overrule this issue.
4
Reule complains that the trial court would not allow her to present “accord and
satisfaction” evidence to the jury to persuade them that she was not in breach of the deed of trust.
However, Reule did testify before the jury that she made final payment on her loan by way of the
notation in the memo section of her check. And, she has not directed us to any location in the
record where she requested a jury instruction on accord and satisfaction, or where any such
request was denied by the trial court. See Tex. R. Civ. P. 276.
14
3. Summary judgment on damages
The Mortgagees/Representatives filed a June 2012 consolidated partial
motion for summary judgment alleging that “as a matter of law . . . Plaintiff cannot
recover personal injury, mental anguish and/or, pain and suffering type damages
through Plaintiff’s live causes of action.” The trial court granted the motion and
ordered summary judgment on such damage claims for Reule’s wrongful
foreclosure, breach of contract, and declaratory judgment causes of action.
At the close of evidence, the trial court directed a verdict against Reule on
her wrongful foreclosure claims and her section 12.002 claims. Reule does not
appeal those directed verdict rulings.5 Reule failed to prove her breach of contract
claim on the merits and, therefore, the jury did not reach the question of damages.
As such, we conclude that any error in the trial court’s order granting partial
summary judgment on an element or elements of damages available upon proof of
Reule’s causes of action was rendered harmless by the trial court’s unchallenged
directed verdict on wrongful foreclosure and section 12.002, and the jury’s verdict
on breach of contract. See id.
Thus, we overrule this issue.
4. Partial summary judgment on Reule’s DTPA claims
The Mortgagees/Representatives sought partial summary judgment on
Reule’s DTPA claims, urging that Reule is not a consumer as defined under the
DTPA. The trial court granted the motion. On appeal, Reule challenges the trial
court’s granting of this motion.
5
Although Reule discusses the law of wrongful foreclosure in detail in her brief, she
neither references the directed verdicts on her wrongful foreclosure claims nor does she discuss
any evidence that she claims to have adduced on the wrongful foreclosure claims.
15
We review the granting of a summary judgment de novo. Mann Frankfort
Stein Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Where, as
here, the order granting summary judgment does not specify the grounds relied
upon, we affirm “if any of the summary judgment grounds are meritorious.” FM
Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000).
A party moving for traditional summary judgment must establish that there
is no genuine issue of material fact and that it is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 215–16 (Tex. 2003). If the party establishes such a right to judgment,
the burden shifts to the nonmovant to present evidence raising a genuine issue of
material fact. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22,
23 (Tex. 2000). We review all evidence in the light most favorable to the
nonmovant and indulge every reasonable inference. Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 156–57 (Tex. 2004).
The parties agree that a plaintiff must establish consumer status to pursue
claims under the DTPA. See Amstad v. U.S. Brass Corp., 919 S.W.2d 644, 649
(Tex. 1996). That is, the plaintiff must have sought or acquired goods or services
by purchase or lease and those goods or services must form the basis of the DTPA
complaint. See Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 539 (Tex.
1981). Whether one is a consumer under the DTPA is a question of law. Holland
Mortgage & Inv. Corp. v. Bone, 751 S.W.2d 515, 517 (Tex. App.—Houston [1st
Dist.] 1987, writ ref’d n.r.e.).
As a general rule, where the underlying transaction is a loan, consumer
status is not conferred because money is neither a good or service. See Riverside
Nat’l Bank v. Lewis, 603 S.W.2d 169, 173-74 (Tex. 1980). Reule relies upon a line
of authority from the Texas Supreme Court recognizing an exception to the general
16
rule of Riverside where the objective of the transaction complained of was the
purchase or lease of a good or service notwithstanding that the plaintiff borrowed
money to complete the transaction. See Flenniken v. Longview Bank & Trust Co.,
661 S.W.2d 705, 707 (Tex. 1983). However, following our precedent construing
Flenniken, and indulging all inferences in Reule’s favor, none of her evidence of
alleged deceptive trade practices pertains to the actual sales transaction or to a
deceptive act related to the original financing of her home. See Brown v. Bank of
Galveston, Nat’l Ass’n, 930 S.W.2d 140, 143–44 (Tex. App.—Houston [14th
Dist.], aff’d 963 S.W.2d 511 (Tex. 1996), abrogated on other grounds, Ford Motor
Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007)). Therefore, Flenniken does not
apply. Id.
Reule’s challenge to the trial court’s summary judgment on her DTPA
claims is overruled. Having addressed and overruled all of Reule’s summary
judgment related issues, we turn to her complaint regarding the withdrawal of her
counsel.
D. Withdrawal of Reule’s Counsel
Reule challenges the trial court’s 2011 order permitting G. P. Matherne to
withdraw as her counsel.6 Matherne filed his motion on June 30, 2011. His
alleged good cause for withdrawal was that Reule had employed new counsel. He
alleged that he had delivered a copy of the motion to Reule and advised her of her
right to object. Matherne supplied the court with a last known address for Reule
and advised her within the body of the motion of all pending settings. Matherne
also attached a letter he had sent to Reule in which he advised her of the July 11,
6
We note from our clerk’s record that Matherne appears to have served as Reule’s
counsel only in a limited way. Reule herself signed her original petition and her first amended
original petition. In fact, until the date of Matherne’s motion to withdraw, our clerk’s record
contains only a single pleading signed by Matherne.
17
2011 deadline to file a response to the opposing parties’ summary judgment
motion and the setting on his motion to withdraw.
Reule responded to the motion to withdraw and objected. By her response,
Reule challenged Matherne’s allegation of good cause and stated that, although she
had hired another lawyer, the new lawyer was not a substitute lawyer but was hired
for one issue only. At the hearing on the matter, Matherne elaborated that he and
Reule disagreed on legal strategy and, therefore, she had hired new counsel to
pursue the matters that he did not feel were appropriate.
Reule did not assert that Matherne’s motion was deficient in any way other
than his allegation of good cause. The trial court granted the motion but delayed
the effective date until after a response to the opposing parties’ summary judgment
motion was due. The trial court signed no summary judgment orders in 2011.
Thus, following the 2011 summary judgment proceedings, Reule continued to
represent herself, as she had done intermittently from the 2008 inception of the
lawsuit, for more than two additional years and through a jury trial.
We review a trial court’s ruling on a motion to withdraw as counsel for
abuse of discretion. See Sims v. Fitzpatrick, 288 S.W.3d 93, 100 (Tex. App.—
Houston [1st Dist.] 2009, no pet.). Even where a trial court abuses its discretion by
granting a noncompliant or inadequate motion to withdraw, such error is rendered
harmless where the party is given adequate time to secure new counsel and time
for such counsel to investigate the case and prepare for trial. See Williams v. Bank
One, Texas, N.A., 15 S.W.3d 110, 114 (Tex. App.—Waco 1999, no pet.).
Reule does not allege that she did not have sufficient time to retain new
counsel. She does not allege that she sought a continuance to obtain counsel that
18
was denied.7 We conclude that, as a matter of law, Reule was not harmed by the
alleged error in permitting her counsel to withdraw. See Williams, 15 S.W.3d at
114.
Because this issue lacks merit, we overrule it. As detailed below, the
remainder of Reule’s issues are either inadequately briefed or not preserved for our
review.
E. Inadequately Briefed Issues
In one hundred and seven pages of briefing, Reule complains of nearly all of
the trial court’s rulings, including discovery, incidental, or dispositive rulings, over
the course of five years of litigation against numerous defendants. Many of her
factual assertions and arguments are not supported by record references. See Tex.
R. App. P. 38.1(g), (i). Moreover, Reule has not provided a proper table of
contents or authorities, statement of the case, and, most importantly, statement of
issues presented. See Tex. R. App. P. 38.1(b), (c), (d), (f). Because her appellate
brief is lengthy and poorly organized, it is difficult to discern the issues and
arguments she presents for our review. Further, although we must construe
Reule’s brief liberally so as not to dispose of issues without reaching the merits
where possible,8 we note that the clerk’s record and supplements contain over
2,000 pages. Additionally, Reule filed over 30 volumes of reporter’s records,
although the record from her trial is contained in only 12 volumes; several of these
reporter’s records share the same number. Thus, without proper citation, the
voluminous nature of this record makes it difficult to discern whether there is any
support for many of Reule’s complaints. Despite our liberal construction of
7
Indeed, Reule failed to cite a single authority in support of this issue. Thus, as well as
being without merit, this issue is also inadequately briefed. See Tex. R. App. P. 38.1(i).
8
See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008); see also Tex. R. App. P.38.9.
19
Reule’s briefing, we conclude that the following issues were not adequately
briefed.
1. Any claims against the Trustees and RLZ Investments, Inc.
Because of the deficits in Reule’s briefing, it is difficult to determine which
issues are directed to which parties. And, as discussed above, the trial court
directed verdicts on all of Reule’s claims against the Trustees and RLZ
Investments, Inc.9 Reule has not challenged any of the directed verdicts on appeal.
Although Reule sporadically makes mention of some of these parties, she has not
clearly identified any issues associated with them. We thus conclude that any
issues concerning these parties have not been adequately briefed and are overruled.
2. Refusal to submit Reule’s jury charge
Reule complains that “[t]he trial judge refused to present any jury charged
[sic] submitted by Reule, and only presented those proposed by Financial Entities.”
Reule’s sole citation is to the actual charge of the trial court. Reule does not
identify a single proposed jury instruction she claims was refused10 in error by the
court. Were we to undertake, without proper citation, an independent review of all
of Reule’s numerous proposed jury instructions, those before trial and during trial,
to glean which were proper submissions, supported by the evidence and the
pleadings, we would be abandoning our role as neutral adjudicators and become an
advocate for the appellant. See Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex.
App.—Amarillo 2003, pet. denied); see also Deutsch v. Hoover, Bax & Slovacek,
L.L.P., 97 S.W.3d 179, 198–99 (Tex. App.—Houston [14th Dist.] 2002, no pet.)
9
Of these parties, only RLZ Investments is identified in the identity of parties and their
counsel section of Reule’s appellate brief.
10
Even if not waived by failure to adequately brief the point, Reule’s issue regarding the
jury charge is not preserved as Reule has not identified how she complied with Texas Rule of
Civil Procedure 276.
20
(“Though Deutsch states in a conclusory manner that the trial court erred by
refusing his questions regarding misrepresentation, breach of contract, and breach
of fiduciary duty, as defenses to the Law Firm’s contract claim, he does not cite or
otherwise specify any refused question or questions that he alleges properly
presented these purported defenses.”).
This issue is overruled.
3. Failure to submit “fair debt collection claims”
Reule complains that “[t]he trial court would not allow Reule to discuss any
fair debt collection claims, nor have a jury question or instructions regarding
same.” However, Reule has not provided any record support for her claim that the
trial court refused to allow her to discuss her fair debt collection claims, or where
she sought a jury question or instruction on these claims. She has thus failed to
adequately brief this issue. See Tex. R. App. P. 38.1(i).
We overrule Reule’s challenge to the trial court’s failure to submit debt
collection questions or instructions to the jury.
4. Denial of Reule’s JNOV regarding damages for medical costs
Reule complains as follows:
The trial court erred in denying Reule’s motion for a directed verdict
(CR 1619-1668, 1713-1798), in granting final judgment, and denying
her post-verdict motions to vacate and set aside the final judgment, for
judgment notwithstanding the verdict, and for new trial because there
is no evidence or insufficient evidence to support the jury’s findings
to an erroneously submitted question regarding damages.
Reule’s citations are to her motion for JNOV, in its entirety, and her supplemental
motion for JNOV. Reule does not identify the allegedly erroneous “question
regarding damages” or the alleged error in such question. The gravamen of
21
Reule’s discussion appears to be that she should have been awarded damages
without regard to success on the merits of any claim. In fact, our review of the
motion and the supplemental motion cited reflects that Reule asked the trial court
to “disregard all the jury findings and sign a judgment notwithstanding the verdict
that awards plaintiff her home, and additional damages for wrongful foreclosure,
wrongful eviction, and Civil Practice and Remedies Code Section 12.002
damages.”
We conclude that Reule’s discussion of this issue does not provide the court
with sufficient information to examine any alleged error; therefore any such error
is waived by inadequate briefing. See Goad v. Hancock Bank, No. 14-13-00861-
CV, 2015 WL 1640530, at *5 (Tex. App.—Houston [14th Dist.] Apr. 9, 2015, no
pet.) (mem. op.) (holding that a “passing argument” that contains no substantive
argument, analysis, or citation to the record or relevant authorities constitutes
briefing waiver).
Accordingly, this issue is overruled.
5. The post-trial order granting sanctions against Reule
On June 24, 2013, following the trial of the cause, the trial court heard
Bayview Loan’s amended motion for sanctions, by which it sought monetary
sanctions of $3,015 for Reule’s conduct during pretrial and trial proceedings that
resulted in nine hours of wasted time. The trial court granted the motion; however,
the trial court sanctioned Reule only $900 “for interfering with the Court’s ability
to hear evidence and decide issues of law and fact in the trial of this matter.”
At a September 3 hearing, the trial court revisited the sanctions issue and
signed an amended order for sanctions giving Reule, as an alternative to paying
$900, the option to “submit to the Court a written statement in her own
22
handwriting that states 100 times that, ‘I will not waste the time of the Court,
opposing counsel, jurors or court personnel.’” 11 At no time during that hearing or
since has Reule complained about the alternative sanction; instead, she simply
asked the trial court to spell out exactly what she was expected to write in the 100
lines.
On appeal, Reule’s complaint about being sanctioned consists of, in its
entirety, the following:
Defendant violated the court order sealing Appellant’s
documents on three separate occasions, refused to answer discovery,
requiring 4 motions to compel. At no time whatsoever were the
Financial Entit[i]es sanctioned. However, appellant, who is disabled
and was sick the entire trial, was sanctioned for being disabled. The
court has a double standard, huge infractions by opposing counsel are
rewarded, while minor inf[r]actions by a pro se litigant are crucified.
This was a common theme throughout the litigation. Opposing
counsel got special treatment, wasn’t required to comply with the
rules or a court order, and Appellant was sanctioned for being sick
and disabled.
The imposition of sanctions was excessive and an abuse of
discretion. The court was well aware of Appellant’s disability, and did
NOTHING TO ACCOMMODATE HER DISALITY [sic] AS
REQUIRED BY THE AMERICANS WITH DISABILITY [sic] ACT.
The court REFUSED to sanction Appellees in this case who had
serious violations of a court order, and Texas Rules of Civil
Procedure, Rule 21c. Publicizing Appellant’s checks, with the account
number, AFTER the court issued an order sealing those records, was
deliberate, an abuse, harassing for which the court did nothing about.
Appellant’s motions for sanctions feel on deaf ears. Refusing to
answer discovery resulting in four motions to compel, also fell on deaf
ears. Refusing to apply Rule 193.6 man[da]tory exclusion for failing
11
The trial court did not reconsider the sanction in response to any request by Reule.
Rather, as part of the hearing on entry of judgment, Bayview Loan complained that the sanction
had not been paid and that the order contained no deadline by which to pay. Reule did not object
to the amended order during the hearing. Reule’s only complaint was that she was not required
to pay the sanction while the case was on appeal.
23
to identify witnesses including experts, provide documents pertaining
to their experts, and failure to timely disclose new legal theories.
Appellees weren’t even required to follow procedure in filing a 106
motion for leave. Yet, Appellant was sanctioned for being sick and
disabled, and being disorganized because she suffers from Attention
Deficient HyperActivity disorder. She was entitled to
accommodations pursuant to the ADA.
A party should not be sanction[ed] for being sick and disabled.
There was no good cause for the sanction issued against Appellant.
The trial court invited Appellees to file a motion for sanctions which
was completely inappropriate. The trial court should have sanctioned
Appellees for repeated violations of court orders, and for failing to
timely disclose expert witnesses, legal theories and ????
Reule’s rambling “sanctions argument,” even liberally construed, is
insufficient for several reasons. Reule fails to cite a single case in support of this
argument. She fails to cite to the record to support this argument, including any
cite to the original or amended sanctions order or any of the hearings where the
sanctions were discussed. She fails to mention or challenge the amended (live)
sanctions order that provided an alternative to monetary sanctions. As such, she
makes no mention of any difficulty with handwriting anywhere in her briefing.
She fails to cite to any evidence of a disability or any instance in which she
requested any accommodation for a disability or lodged any complaint about a
sanction that fails to acknowledge a disability. See Tex. R. App. P. 38.1(i) (“The
brief must contain a clear and concise argument for the contention made, with
appropriate citations to authorities and to the record.”). And to the extent that
Reule is complaining about some other failing in the trial court’s exercise of
discretion, the complaint is waived for failure to support it with analysis, citation to
the record, citation to authority, or argument about why the sanction was
inappropriate in light of her undisputed conduct. See, e.g., Fox v. Alberto, 455
S.W.3d 659, 668 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
24
Our dissenting colleague would disregard our briefing rules,12 reach a thorny
question of first impression that is not presented, and reverse the sanctions
imposed. This “thorny issue” is whether our current framework for analyzing trial
court sanctions sufficiently protects disabled litigants from being sanctioned for
their disability, rather than their litigation conduct. Certainly, this is an important
concern. But no party to this appeal has raised or discussed this issue in any
meaningful fashion. The dissenting opinion even acknowledges that “[o]n this
record, we have nothing that tells us whether the sanctioned trial behavior is
disability-related.” That is the point. It was Reule’s burden to make a record and
cite to that record in this court.
The dissent nonetheless would reverse on this inadequate record because the
trial court might not have had the knowledge or expertise to determine whether
Reule’s sanctionable conduct was disability-related. The dissent is apparently
proposing a new rule, one that either (a) prohibits a trial court sanctioning a litigant
or lawyer who claims a disability or (b) requires that a trial court demonstrate, on
the record, medical competence prior to sanctioning a single disabled litigant or
lawyer. Either way, such a new rule is patently unworkable and all the more
unworkable in this case.
Reule, a former paralegal, brought this lawsuit. Reule had five years to
prepare for trial. Reule decided what witnesses and documents to use to meet her
12
Notwithstanding our discretion in the area of briefing waiver, we must balance the
rights of the parties in this endeavor. For example, where a party fails to adequately brief in an
opening brief, but takes steps to cure the inadequacy by supplemental authorities and citations,
we may consider the issue because the opposing party has an opportunity to respond. See
Elaazami v. Lawler Foods, Ltd., No. 14-11-00120-CV, 2012 WL 376687, at *6 (Tex. App.—
Houston [14th Dist.] Feb. 7, 2012, no pet.) (mem. op.). But here, neither the appellant nor the
appellees have supplied any citations to the record or legal authority on the issue of sanctions.
Reaching this issue is not judicial liberal construction. It is judicial advocacy.
25
burden at trial. But, Reule resisted both traditional pretrial preparation and parity.13
Reule wanted a jury trial, but repeatedly left the jury, the trial court, and the
defendants waiting beyond the appointed hour because she “was running late.”
The record contains no suggestion that Reule’s tendency to be tardy was
“disability-based.” Reule never asked the trial court for any reasonable
accommodation for a disability, whether it be to start the proceedings later, hold
telephone conferences, or stagger proceedings to permit days of rest—nothing.
Similarly, Reule asked the jury to award mental anguish damages based upon
disabilities, but she vehemently objected to being cross examined on those
disabilities. The trial court was in the best position to decide whether Reule was
attempting to use a disability as both sword and shield.
In short, while considering whether a disability prevented Reule from
showing respect for the rules as well as the time of the trial court, opposing
counsel, and the jury, the trial court was also entitled to consider whether a
disability actually had been an impediment to Reule during pretrial and trial. It is
unclear how the dissent would have a trial court balance the rights of a pro se
13
Reule moved to strike the trial court’s pretrial preparation order, stating:
Plaintiff further objects on the grounds that the Court has required
extensive trial preparation docket on a pro se litigant who cannot possibly comply
based upon her disability, medical condition and it seems the court only does this
to pro se litigants in an attempt to exclude vital evidence. There is [sic] over 2000
pages of documents that will need to be submitted during the trial. Plaintiff does
not have the financial means to provide copies of all documents, doesn’t have the
physical means to go through all documents and make an exhibit list of over 2000
pages of documents, designate and mark them. And this has never been requested
in the past. Only the new Judge, Judge Wesley Ward, who is obviously bias[ed]
against pro se litigants, has made it impossible for a pro se party to get their case
properly prepared for trial. Plaintiff is not ready for trial, cannot be ready for trial
in light of the court’s ridiculous trial scheduling order, and believe[s] the trial will
take at least 3 weeks to present all evidence and witnesses.
The trial court denied the motion but allowed Reule to make the pretrial disclosures in any non-
“fancy” format she chose.
26
plaintiff with disabilities against the rights of defending parties to manage their
litigation costs or to discover and meet the evidence against them.
Finally, our dissenting colleague would reverse because any sanction that
includes rote handwriting, even in the alternative, is an abuse of discretion as a
matter of law. Reule did not complain of the handwriting sanction during the
hearing at which it was imposed and, had she objected, the trial court would have
been entitled to consider that Reule herself filed a handwritten “Motion to
Conduct Discovery Prior to Entry of Judgement” that same day. The trial court
would have been in the best position to decide whether Reule’s argument was
belied by Reule’s own conduct—had Reule made a “handwriting” argument.
Reule must follow the rules or ask for relief from them; she may not simply
disregard them. When Reule filed an appellate brief with this court that was
substantially in excess of the permitted words, we enforced our appellate briefing
rules, struck the brief, and ordered it redrawn. Rule 38.1 is important because it
requires the appellant to inform the court of the basis for the relief sought. The
rule is also important because it puts the appellee on notice of the error(s) claimed
and the basis for such errors so they may adequately defend. In fairness to all
parties, we must enforce the briefing rules—all of them. See, e.g., San Saba
Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (explaining that, although we must interpret our briefing rules
reasonably and liberally, “[n]onetheless, parties asserting error on appeal still must
put forth some specific argument and analysis showing that the record and the law
supports their contentions”); Deutsch, 97 S.W.3d at 199 (“A party asserting error
on appeal bears the burden of showing that the record supports the contention
raised, and of specifying the place in the record where matters upon which he relies
or of which he complains are shown.”).
27
For the foregoing reasons, this issue is overruled. We turn finally to those
issues that Reule failed to preserve for our review.
F. Preservation
Generally, to present a complaint for appellate review, the record must show
that the complaint was made to the trial court by a timely request, objection, or
motion stating with sufficient specificity the grounds for relief sought and that the
trial court ruled on the complaint, either expressly or implicitly. See Tex. R. App.
P. 33.1(a); see also In re A.L.S., 338 S.W.3d 59, 70 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied). Important prudential considerations underlie error
preservation rules, such as conserving judicial resources by permitting trial courts
the opportunity to correct error before an appeal proceeds; encouraging fairness
among litigants by preventing a party from unfairly surprising his opponent on
appeal by stating his complaint for the first time; increasing accuracy in judicial
decision-making by giving lower courts the chance to first consider and rule on
error; and providing the parties the chance to develop and refine their arguments so
that courts of appeal may focus on and analyze the key issues. In re B.L.D., 113
S.W.3d 340, 350 (Tex. 2003) (citations omitted). Several of Reule’s issues were
not properly preserved for our review.
1. Claim for quiet title
Reule focuses some of her briefing on an alleged claim to quiet title.
However, her live pleading contained in our record does not contain a claim to
quiet title, nor has Reule pointed to any evidence or requested jury questions on
such a claim. See Tex. R. Civ. P. 278 (providing that court “shall submit the
questions, instructions and definitions . . . which are raised by the written pleadings
and the evidence”).
28
Accordingly, this issue presents nothing for our review and is overruled.
2. Failure to apply New York law
Reule complains of the trial court’s refusal to apply New York law or any
jury instructions on New York law. But her citations to the record do not support
her contention that the trial court made any ruling on the applicable law. The
record suggests, instead, that the trial court asked for cases that might show the
difference between New York and Texas law, yet Reule continued to rely upon
cases applying Texas law as well as New York law. The
Mortgagees/Representatives urged that New York law does not apply. Reule does
not cite and our review does not reveal any objection to the charge of the court on
the basis that it failed to instruct or apply New York law. Absent a ruling, Reule
has not preserved the alleged error for review. Tex. R. App. P. 33.1(a)(2).
We overrule this issue.
3. Defendant’s trial brief was untimely
Reule complains that the untimely trial brief of the financial entities
regarding Texas Civil Practice and Remedies Code section 12.002 ambushed her
“without giving any notice or proper opportunity to respond.” During presentation
of their motions for directed verdict, the Mortgagees/Representatives provided the
trial court with a brief regarding the applicability of Chapter 12 to mortgage
assignments.14 Reule had previously supplied the trial court with cases on Chapter
12, and these cases were discussed during the directed verdict hearing. When the
trial court inquired whether Reule had any other cases to offer, Reule responded:
“Other than what I’ve previously given you, no. I mean, not that I have right
offhand.” Reule did not object to the trial brief or seek a continuance or
14
Reule has not provided any citation to our record for this brief.
29
postponement of the matters; she did not seek leave to submit a brief or more cases
prior to the court’s ruling. Accordingly, Reule has failed to preserve any complaint
about the timing of the trial court’s receipt of a trial brief. Tex. R. App. P.
33.1(a)(1)(A).
We thus overrule this issue.
4. Violations of Reule’s motions in limine
Reule complains that the trial court permitted the Mortgagees/
Representatives to ask “specific questions relating to prior lawsuit[s]” despite
granting Reule’s motions in limine.15 But a trial court’s ruling on a motion in
limine preserves nothing for appellate review. See Greenberg Traurig of N.Y.,
P.C. v. Moody, 161 S.W.3d 56, 91 (Tex. App.—Houston [14th Dist.] 2004, no
pet.). And “[b]ecause a trial court’s ruling on a motion in limine preserves nothing
for review, a party must object at trial when the testimony is offered to preserve
error for appellate review.” Id.
The trial court, according to Reule, allowed the Mortgagees/Representatives
to ask numerous questions regarding numerous prior lawsuits Reule had
maintained that had nothing to do with the present case and were not relevant.
Reule has failed to identify the actual questions and answers about prior lawsuits
about which she complains or where she objected to such questions. Reule
15
Although the trial court initially granted Reule’s motions in limine, the trial court
revisited that ruling. Specifically, Reule herself elicited testimony from her daughter about the
stress she observed in connection with the foreclosure efforts. As a part of her claims for
violations of Texas Civil Practice and Remedies Code section 12.002, Reule was seeking mental
anguish damages. Following the aforementioned testimony, the Mortgagees/Representatives
approached the bench and asked the trial court to permit questions about other lawsuits during
the relevant time period to show other potential sources of her stress. The trial court stated, “I
think they’re entitled to question you about alternative causes of your anxiety.” The trial court
required the Mortgagees/Representatives to establish a proper predicate that Reule opened the
door to the cross examination and that the prior lawsuits were relevant to the time period at issue.
Thus, the trial court reversed its decision regarding the prior lawsuit subject matter.
30
provides a citation to the clerk’s record for her motion in limine. Reule provides a
citation to an entire volume of reporter’s record containing a discussion of the
limine ruling. However, Reule provides no citation to any portion of the record
where she objected to the allegedly offending testimony.
Thus, this issue presents nothing for our review because Reule has failed to
preserve error, and it is overruled. See id.
5. “Tossing out” chain of title
Reule complains that the “court error in tossing out the chain of title, and
failing to allow an instruction on chain of title.”16 Reule does not identify where or
how the trial court “tossed out” chain of title. Nor has she identified where she
requested a jury question on “chain of title” and where such a question was
refused. See Tex. R. Civ, P. 276; see also Coates v. Coates, No. 05-08-00440-CV,
2009 WL 679592, at *2 (Tex. App.—Dallas Mar. 17, 2009, pet. denied) (mem.
op.) (“Appellants do not refer us to any place in the record where they drew the
court’s attention to their pretrial jury charge in any way, so the filing of that
document preserved no error.”).
Thus, she has failed to preserve this issue, and it is overruled.
16
“Chain of title” has been defined as “[t]he successive conveyances, commencing with
the patent from the government, each being a perfect conveyance of the title down to and
including the conveyance to the present holder.” Reserve Petroleum Co. v. Hutcheson, 254
S.W.2d 802, 806 (Tex. Civ. App.—Amarillo 1952, writ ref’d n.r.e.) (quoting Having v. Thorne
Inv. Co., 46 S.W.2d 329, 332 (Tex. Civ. App.—Amarillo 1932, no writ)). Reule does not cite
and we do not find any authority for construing “chain of title” as an independent cause of
action.
31
III. CONCLUSION
Having overruled all of Reule’s issues, we affirm the trial court’s judgment.
/s/ Sharon McCally
Justice
Panel consists of Chief Justice Frost and Justices Boyce and McCally (Frost, C.J.,
dissenting) (Boyce, J., concurring).
32