James P Arthur v. John Michael Raborn, Blackburne & Brown Mortgage Fund, Inc.

Opinion issued December 22, 2022




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-21-00072-CV
                            ———————————
  JAMES P. ARTHUR, MARY ARTHUR, LEGONITE, INC., PARADISE
     LIVING, INC., AND ARTHUR HOLDINGS, L.P., Appellants
                                         V.
                     JOHN MICHAEL RABORN, Appellee


                     On Appeal from the 11th District Court
                             Harris County, Texas
                       Trial Court Case No. 2020-13849


                          MEMORANDUM OPINION

      Appellants James P. Arthur, Mary Arthur, Legonite, Inc., Paradise Living,

Inc., and Arthur Holdings, L.P. (collectively, “the Arthur parties”) own a parcel of

property that they use to operate an assisted living facility. The Arthur parties sued
their lender, Blackburne & Brown Mortgage Fund I, and appellee John Michael

Raborn, the substitute trustee named in the deed of trust securing the property, and

asserted claims for affirmative relief and injunctive relief. Raborn moved to dismiss

the claims against him under Property Code section 51.007(a), arguing that he had a

reasonable belief that he had been named as a party solely in his capacity as a trustee

under a deed of trust. The trial court granted the motion and dismissed the Arthur

parties’ claims against Raborn without prejudice.

      On appeal, the Arthur parties argue that the trial court erred by (1) using an

unauthorized procedure to dismiss the claims against Raborn; (2) granting Raborn’s

motion to dismiss because the motion was substantively deficient and did not comply

with any applicable laws or rules; and (3) denying the Arthur parties’ motion to sever

the claims against Raborn after granting his motion to dismiss. We affirm.

                                    Background

      James and Mary Arthur purchased a parcel of property in southwest Houston

sometime before 2006. At the time of purchase, a sixteen-unit condominium

complex was located on the property. The Arthurs decided to renovate the building

and convert it to an assisted living facility. To accomplish this goal, the Arthurs

sought third-party financing and eventually entered into a loan agreement with

Blackburne & Brown Mortgage Fund I (“Blackburne”). Raborn was named

substitute trustee under the deed of trust securing the loan.


                                           2
      In late 2015, Raborn, as trustee and on behalf of Blackburne, sent letters to

the Arthur parties notifying them that they had not complied with their payment

obligations under the loan. Blackburne then initiated foreclosure proceedings. The

Arthur parties sued Blackburne in 2016 and asserted claims for wrongful

foreclosure. The trial court granted a temporary restraining order prohibiting

foreclosure of the property.

      After a court-supervised mediation, the Arthur parties and Blackburne entered

into a Settlement Agreement in 2016. Among other rights and responsibilities, the

Settlement Agreement set out a schedule for the Arthur parties’ payment obligations

to Blackburne. The parties also drafted a conditional Agreed Final Judgment that

would only be filed with the court if the Arthur parties did not comply with the

payment obligations set out in the Settlement Agreement. The Agreed Final

Judgment authorized foreclosure of the property and provided different amounts of

liquidated damages to Blackburne depending on when the Agreed Final Judgment

was filed with the court.

      The signing of the Settlement Agreement did not end the disputes between the

Arthur parties and Blackburne. The Arthur parties alleged that they repeatedly

requested an accounting and payoff balance statement from Blackburne so they

could pay off the entire remaining obligation, but Blackburne did not cooperate.




                                        3
After the Arthur parties did not make a payment required by the Settlement

Agreement, Blackburne filed the Agreed Final Judgment with the trial court.

      The Arthur parties filed additional lawsuits against Blackburne, including a

suit filed in 2018 and a suit filed in 2019. Raborn was not named as a defendant in

these lawsuits.

      Blackburne initiated foreclosure proceedings against the property in

November 2019. The Arthur parties obtained a temporary restraining order

prohibiting sale of the property. They alleged that Blackburne disregarded this order

and foreclosed anyway.

      The Arthur parties filed the underlying lawsuit against Blackburne and

Raborn in March 2020, after Blackburne initiated foreclosure proceedings against

other properties owned by the Arthur parties.1 In this lawsuit, the Arthur parties

alleged that Raborn was acting as trustee for Blackburne. The Arthur parties asserted

claims for breach of the Settlement Agreement, breach of the Agreed Final




1
      In their answer, Raborn and Blackburne alleged that a federal bankruptcy court in a
      prior proceeding involving Mary Arthur had ruled that her bankruptcy petition was
      part of a scheme “to delay, hinder, and defraud Blackburne,” a secured creditor of
      Arthur. The bankruptcy court also ruled that Blackburne was “permitted to pursue
      its state law remedies” against several named properties in addition to the property
      that secured the original loan, “including foreclosure and/or eviction.” The
      properties named in the bankruptcy court’s order included the properties at issue in
      the underlying lawsuit.
                                           4
Judgment, fraud, and wrongful foreclosure. The Arthur parties also sought injunctive

relief enjoining the foreclosure sale of their other properties.

      Raborn and Blackburne filed an answer.2 Raborn pleaded that he was not a

necessary party to the lawsuit because he was not a party to either the Settlement

Agreement or the Agreed Final Judgment. Instead, Raborn had a reasonable belief

that he had been sued solely in his capacity as substitute trustee under the deed of

trust securing the property. Although this pleading was not verified, Raborn

submitted an unsworn declaration in which he declared under penalty of perjury that

the facts stated in the answer were true and correct.

      In May 2020, Raborn filed a motion to dismiss the Arthur parties’ claims

against him pursuant to Property Code section 51.007. This statute sets out a

dismissal procedure for trustees who are not necessary parties because they have

been sued solely in their capacity as trustee under a deed of trust. See TEX. PROP.

CODE § 51.007(a)–(d). Raborn argued that he properly alleged in his answer that he

had a reasonable belief he had been sued solely in his capacity as trustee, and the

Arthur parties failed to file a timely verified response rebutting that pleading. Raborn

requested that the trial court dismiss the claims against him without prejudice.




2
      Blackburne also asserted affirmative claims for breach of contract and fraud against
      the Arthur parties.
                                           5
      The trial court granted Raborn’s motion on July 13, 2020, and dismissed the

Arthur parties’ claims against him without prejudice.

      The Arthur parties moved for reconsideration of the trial court’s dismissal

order. On December 8, 2020, the trial court denied the Arthur parties’ motion for

reconsideration.

      Following the trial court’s denial of the motion for reconsideration, the Arthur

parties moved to sever their claims against Raborn into a separate lawsuit. At this

time, the underlying proceeding had been consolidated with the Arthur parties’

lawsuits against Blackburne filed in 2018 and 2019. The Arthur parties’ claims

against Blackburne in all three lawsuits, as well as Blackburne’s claims against the

Arthur parties in the underlying proceeding, all remained pending. Raborn opposed

severance of the claims against him.

      The trial court denied the Arthur parties’ motion to sever on January 5, 2021.

The Arthur parties filed a notice of appeal from this order, and the case was assigned

appellate cause number 01-21-00072-CV. Raborn is the only appellee in this

appeal.3 Several months after this appeal was filed, the trial court signed a final


3
      Because the trial court denied the Arthur parties’ motion to sever and did not sever
      the claims against Raborn into a separate lawsuit, the July 13 dismissal order, the
      December 8 order denying reconsideration, and the January 5 order denying
      severance were not final judgments. See In re Guardianship of Jones, 

, 924 (Tex. 2021) (per curiam) (stating that in cases in which judgment has been
      rendered without conventional trial on merits, judgment is not final unless it
      (1) actually disposes of all pending claims and parties, or (2) clearly and
                                           6
judgment in the consolidated case. In the final judgment, the trial court dismissed

the Arthur parties’ claims against Blackburne and awarded Blackburne actual

damages and sanctions.

                        Dismissal of Claims Against Raborn

      In their first issue, the Arthur parties argue that the trial court erred by

dismissing the claims against Raborn because the court did not use either of the

dismissal procedures authorized by the Rules of Civil Procedure: dismissal pursuant

to Rule 91a or dismissal on a motion for summary judgment. In their second issue,

the Arthur parties argue that Raborn’s motion to dismiss was substantively defective

and “did not comply with the applicable laws and rules.”


      unequivocally states that it finally disposes of all claims and parties, even if it does
      not actually do so). Generally, with a few mostly statutory exceptions, a party may
      take an appeal only from a final judgment. Elec. Reliability Council of Tex., Inc. v.
      Panda Power Generation Infrastructure Fund, LLC, 

, 632 (Tex.
      2021). When we receive a notice of appeal in a civil case before the trial court
      renders a final judgment, we may treat the case as a prematurely filed appeal and
      permit the defect to be cured. Fusion Indus., LLC v. Edgardo Madrid & Assocs.,
      LLC, 

, 849 (Tex. App.—El Paso 2021, no pet.); TEX. R. APP. P.
      27.1(a). If the trial court renders a final judgment before we dismiss a prematurely
      filed notice of appeal, the jurisdictional defect is cured, and we treat the notice of
      appeal “as having been filed on the day of the trial court’s final judgment.” Fusion
      Indus., 624 S.W.3d at 849. Here, the Arthur parties filed a notice of appeal from an
      interlocutory order. While this appeal has been pending, however, the trial court
      signed a final judgment on May 15, 2021, that disposes of all claims and all parties.
      We therefore deem the Arthur parties’ premature notice of appeal as filed on the
      date of the final judgment, and we conclude that we have appellate jurisdiction over
      this appeal. See id. (“To the extent Fusion’s notice of appeal was premature, the
      later rendition of a final judgment in the trial court cured any defect.”); Espalin v.
      Child.’s Med. Ctr. of Dallas, 

 (Tex. App.—Dallas 2000, no pet.)
      (“[A] document filed in an attempt to appeal an interlocutory order that later
      becomes final serves to appeal the final judgment.”).
                                             7
A.    Standard of Review and Governing Law

      Property Code section 51.007(a) provides a procedural mechanism for a

trustee under a deed of trust to seek dismissal from a lawsuit. Cantor v. Wachovia

Mortg., FSB, 

 (N.D. Tex. 2009). Pursuant to that section, a

trustee named in a lawsuit “may plead in the answer that the trustee is not a necessary

party by a verified denial stating the basis for the trustee’s reasonable belief that the

trustee was named as a party solely in the capacity as a trustee under a deed of trust,

contract lien, or security instrument.” TEX. PROP. CODE § 51.007(a); Freezia v. IS

Storage Venture, LLC, 

, 384 n.1 (Tex. App.—Houston [14th Dist.]

2015, no pet.).

      Within 30 days after the trustee files the verified denial, a verified response is

due from “all parties” to the lawsuit “setting forth all matters, whether in law or fact,

that rebut the trustee’s verified denial.” TEX. PROP. CODE § 51.007(b); Freezia, 

 n.1. If a party does not have an objection or fails to file a timely

verified response to the trustee’s verified denial, “the trustee shall be dismissed from

the suit or proceeding without prejudice.” TEX. PROP. CODE § 51.007(c); Freezia,

 n.1; see WAMCO XXVIII, Ltd. v. Casa Grande Cotton Fin. Co.,

 (N.D. Tex. 2004) (dismissing claims against substitute

trustee under section 51.007 after plaintiff failed to file verified response to trustee’s

answer containing verified denial).


                                            8
      If a party files a timely verified response to the trustee’s verified denial, the

trial court shall set the matter for hearing. TEX. PROP. CODE § 51.007(d). “The court

shall dismiss the trustee from the suit or proceeding without prejudice if the court

determines that the trustee is not a necessary party.” Id.

      Whether a defendant is entitled to dismissal under the facts alleged is a legal

question that we review de novo. See In re Farmers Tex. Cnty. Mut. Ins. Co., 

, 266 (Tex. 2021) (orig. proceeding) (considering dismissal under Rule

of Civil Procedure 91a); see also City of Dallas v. Sanchez, 

(Tex. 2016) (per curiam) (stating that rulings pursuant to Rule 91a are reviewed de

novo “because the availability of a remedy under the facts alleged is a question of

law”); Marsh USA Inc. v. Cook, 

 (Tex. 2011) (stating that courts

review de novo issues of statutory construction and “application of the law to

undisputed facts in summary judgments”).

B.    Analysis

      1.     Whether Raborn Used an Authorized Dismissal Procedure

      In this case, the Arthur parties filed suit against Blackburne and Raborn on

March 2, 2020, and asserted claims relating to foreclosure proceedings. The Arthur

parties alleged in their original petition that Raborn represented Blackburne as its

attorney and that Raborn was a trustee under a deed of trust. The allegations




                                           9
described the Arthur parties’ relationship with Blackburne, which dated back at least

to 2006 and concerned a property in southwest Houston.

      Specifically with respect to Raborn, the Arthur parties alleged that

Blackburne, beginning in December 2015, “caused its co-Defendant Attorney John

M. Raborn to start sending to Arthurs a series of letters alleging non-payment or late

payment of mortgage and taxes to Harris County Tax Office.” During a prior lawsuit

that the Arthur parties initiated against Blackburne in 2016 related to attempts to

foreclose on the property, Raborn represented Blackburne at court-ordered

mediation. A later court-supervised mediation resulted in the Settlement Agreement

and the conditional Agreed Final Judgment. The Arthur parties also alleged that after

they obtained a temporary restraining order enjoining Blackburne from foreclosing

on the property in 2019, Raborn informed the Arthur parties’ counsel that “he would

still proceed with the Restrained Foreclosure” and he did foreclose on the property.

      The Arthur parties asserted four claims for affirmative relief: breach of the

Settlement Agreement; breach of the Agreed Final Judgment; fraud or

misrepresentation; and wrongful foreclosure of the property. The Arthur parties also

sought injunctive relief to prohibit Blackburne and Raborn from foreclosing upon

other properties owned by the Arthur parties.

      On March 23, 2020, Blackburne and Raborn filed an answer and asserted

counterclaims. In this filing, they alleged:


                                          10
      To the extent there is dispute between the Arthur Parties and
      Blackburne that is not precluded by law and/or asserted defenses,
      Raborn is not a necessary party to this lawsuit. Raborn is not a party to
      the Settlement Agreement or Agreed Final Judgment. Raborn has a
      reasonable belief that he is named in this lawsuit solely in his capacity
      as a substitute trustee under the deed of trust dated February 16, 2016
      that secured the promissory note dated February 16, 2016 that
      memorialized a loan by Blackburne to Arthur P. Holding, LP in the
      original principal amount of $1,225,000.00. That deed of trust gave
      Blackburne a security interest in the Beechnut Property. Upon Arthur
      P. Holdings, LP’s failure to satisfy its obligations pursuant to the deed
      of trust and promissory note, Blackburne appointed Raborn as
      substitute trustee and directed him to foreclose the Beechnut Property.
      Ultimately, such foreclosure did not occur but the Beechnut Property
      was subsequently sold via a constable’s sale pursuant to the Agreed
      Final Judgment. In addition, pursuant to section 51.007 of the Texas
      Property Code, a trustee shall not be liable for any good faith error
      resulting from reliance on any information in law or fact provided by
      the mortgagor or mortgagee. Similarly, a trustee may not be held to the
      obligations of a fiduciary of the mortgagor or mortgagee.

Although this denial was not verified, the answer was accompanied by an unsworn

declaration from Raborn. Raborn declared, under penalty of perjury, that the facts

stated in the answer were true and correct.

      On May 15, 2020, more than 30 days after Raborn filed the denial contained

in his answer, he moved to dismiss the Arthur parties’ claims against him under

Property Code section 51.007. Raborn argued that he was not a necessary party to

the lawsuit and that he had been sued solely in his capacity as substitute trustee under

the deed of trust securing the loan in favor of Blackburne. He further argued that the

Arthur parties were required to file a verified response by April 22, 2020, but they

failed to do so. He requested that the trial court dismiss the claims against him
                                          11
without prejudice. The trial court granted Raborn’s motion to dismiss, finding that

the Arthur parties failed to file a timely verified response and that Raborn was named

as a party to the lawsuit solely in his capacity as a trustee under a deed of trust.

      On appeal, the Arthur parties argue that the trial court’s dismissal of the claims

against Raborn was improper in part because the court did not use a dismissal

procedure authorized by the Rules of Civil Procedure, such as dismissal pursuant to

Rule 91a or the summary judgment procedure. See TEX. R. CIV. P. 91a (setting out

procedure for dismissal of claims on grounds that claims have no basis in law or

fact); TEX. R. CIV. P. 166a (setting out procedure for traditional and no-evidence

motions for summary judgment). The Arthur parties are correct that Raborn’s motion

to dismiss does not meet the procedural requirements of either Rule 91a or Rule

166a. However, Property Code section 51.007 sets out a procedure by which a

trustee under a deed of trust may move for dismissal of certain claims asserted

against him. See TEX. PROP. CODE § 51.007(a)–(d); Cantor, 

;

Freezia, 

 n.1.

      The Arthur parties do not address section 51.007 in their brief or argue that

Raborn’s motion to dismiss does not meet the requirements of section 51.007. We

therefore conclude that although Raborn did not move for dismissal of the claims

against him pursuant to Rule 91a or the summary judgment procedure, he utilized a

dismissal mechanism that is authorized under Texas law. See TEX. PROP. CODE


                                           12
§ 51.007(a)–(d). The trial court, therefore, did not use an unauthorized procedure to

dismiss the claims against Raborn.4

      The Arthur parties also argue in their first issue that the motion to dismiss

“was not properly before the trial court when the order to dismiss was signed by the

trial judge.” They point out that, in late June 2020, their counsel had filed a notice

with the trial court that he would not be available for court proceedings until early

August 2020 due to health reasons. They also point to an email from the trial court’s

coordinator stating that a hearing scheduled for July 13 had “been passed” and that

the Arthur parties’ counsel “will need to be present for the hearing.” The trial court

signed the order dismissing the claims against Raborn on July 13.

      We first note that the email from the court coordinator, which was part of an

exchange between the coordinator and Raborn, reflects the cause number for the

2019 case between the Arthur parties and Blackburne, not the 2020 case that also

involved Raborn. At the time of this email exchange, the 2019 and 2020 cases had

not been consolidated yet. Later emails reflected that the passed hearing was a status

conference hearing for the 2019 case, a hearing which required the presence of the


4
      The Arthur parties also argue that although Blackburne and Raborn’s answer
      contained special exceptions, the trial court did not follow the procedure for granting
      special exceptions and instead dismissed Raborn from the lawsuit. The Arthur
      parties cite no authority requiring the trial court to rule on the special exceptions
      before ruling on Raborn’s motion to dismiss. We further note that dismissal pursuant
      to section 51.007 is specifically required to be without prejudice. See TEX. PROP.
      CODE § 51.007(c)–(d).
                                            13
Arthur parties’ counsel. The hearing would be rescheduled once counsel was

available.

      Additionally, we note that section 51.007 only requires a hearing if the

respondent “files a timely verified response to the trustee’s verified denial.” See id.

§ 51.007(d) (providing that under such circumstances “the matter shall be set for

hearing”). The statute is silent about the necessity of a hearing when the respondent

does not file a timely verified response. Id. § 51.007(c) (“If a party has no objection

or fails to file a timely verified response to the trustee’s verified denial, the trustee

shall be dismissed from the suit or proceeding without prejudice.”); see Cadena

Comercial USA Corp. v. Tex. Alcoholic Beverage Comm’n, 

, 325–

26 (Tex. 2017) (“We presume the Legislature chooses a statute’s language with care,

including each word chosen for a purpose, while purposefully omitting words not

chosen. In that vein, we take statutes as we find them and refrain from rewriting the

Legislature’s text.”) (internal quotations and citations omitted). The Arthur parties

did not file a timely verified response to Raborn’s denial pleaded in his answer.

      Because the Arthur parties did not file a verified response to Raborn’s denial,

the trial court was not statutorily required to hold a hearing on Raborn’s motion to

dismiss. We hold that the trial court did not use an unauthorized procedure when it

dismissed the claims against Raborn pursuant to Property Code section 51.007.

      We overrule the Arthur parties’ first issue.


                                           14
      2.     Whether Raborn’s Motion to Dismiss Was Substantively Deficient

      The Arthur parties argue that Raborn’s motion to dismiss was substantively

deficient because it was based on Raborn’s “beliefs,” which is not a sufficient basis

to grant a dispositive motion. Section 51.007(a), however, specifically provides that

a trustee may plead in his answer that he is not a necessary party to the lawsuit by a

verified denial “stating the basis for the trustee’s reasonable belief that the trustee

was named as a party solely in the capacity as a trustee under a deed of trust, contract

lien, or security instrument.” TEX. PROP. CODE § 51.007(a) (emphasis added). The

statute allows the plaintiff to file a verified response and set “forth all matters,

whether in law or fact, that rebut the trustee’s verified denial.” Id. § 51.007(b). If, as

here, the plaintiff does not timely respond, “the trustee shall be dismissed from the

suit or proceeding without prejudice.” Id. § 51.007(c).

      Here, Raborn pleaded in his answer that he was not a necessary party to the

lawsuit, noting that he was not a party to either the Settlement Agreement or the

Agreed Final Judgment. Instead, he reasonably believed that he was named as a party

solely in his capacity as substitute trustee under the deed of trust securing the

property. He pleaded that Blackburne named him as substitute trustee and directed

him to initiate foreclosure proceedings on the property after the Arthur parties

allegedly breached their obligations under the Settlement Agreement and Agreed

Final Judgment. The statutory language requires only that the trustee, in his verified


                                           15
denial, state the basis for his reasonable belief that he was named as a party solely

in his capacity as trustee.5 Id. § 51.007(a). Raborn did so here. Under this particular

statutory scheme, Raborn’s denial was not deficient because it was based on his

“belief.”

      The Arthur parties also contend that Raborn’s presence in the lawsuit was

required to afford them complete relief, arguing that “[i]t was [Raborn’s] churning

of legal work and bills beginning in 2014 which precipitated these lawsuits.” The

Arthur parties, however, made no allegations concerning Raborn’s attorney’s fees

or billing practices in their original petition. Their petition contains few references

to Raborn by name, and those references make clear that Raborn was acting in his




5
      To the extent the Arthur parties argue that Raborn’s denial was substantively
      deficient because it was not verified, we note that Raborn supported the pleading in
      the answer with his unsworn declaration. He declared under penalty of perjury that
      the facts contained in the answer were true and correct. An unsworn declaration may
      be used “in lieu of a written sworn declaration, verification, certification, oath, or
      affidavit required by statute or required by a rule, order, or requirement adopted as
      provided by law.” TEX. CIV. PRAC. & REM. CODE § 132.001(a); Gillis v. Harris
      Cnty., 

 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Such
      a declaration must be in writing and must be subscribed as true under penalty of
      perjury. Baylor Scott & White v. Project Rose MSO, LLC, 

, 291
      (Tex. App.—Tyler 2021, pet. denied); Gillis, 

 (stating that “key”
      to unsworn declaration is that it is signed under penalty of perjury); TEX. CIV. PRAC.
      & REM. CODE § 132.001(c) (requiring unsworn declaration to be in writing and
      subscribed as true under penalty of perjury), (d) (requiring unsworn declaration to
      contain jurat in substantially same form as shown in statute). Raborn’s unsworn
      declaration was in writing, signed, and made under penalty of perjury. This
      declaration complies with section 132.001 and may therefore be used in lieu of a
      verification. See TEX. CIV. PRAC. & REM. CODE § 132.001(a), (c), (d).
                                            16
capacity as trustee under the deed of trust. The Arthur parties do not assert any claims

against Raborn that are independent from his actions as trustee.

      Moreover, all the Arthur parties’ claims stem from the alleged wrongful

foreclosure of the property and their attempts to prevent Blackburne from

foreclosing on other properties that they own. Federal district courts interpreting

section 51.007 have held that trustees are “nominal” parties in suits for wrongful

foreclosure and that a trustee named solely in that capacity is not a necessary party

in a suit to prevent foreclosure. See Fairport Ventures, LLC v. Long as Tr. for U.S.

Bank Nat’l Ass’n, No. H-21-2347, 

, at *2 (S.D. Tex. Sept. 20,

2021); Eisenberg v. Deutsche Bank Tr. Co. Ams., No. SA-11-CV-384-XR, 

, at *4 (W.D. Tex. July 5, 2011); see also TEX. PROP. CODE § 51.007(e) (“A

dismissal of the trustee pursuant to Subsections (c) and (d) shall not prejudice a

party’s right to seek injunctive relief to prevent the trustee from proceeding with a

foreclosure sale.”).

      Finally, the Arthur parties argue that dismissal based on their failure to file a

verified response to Raborn’s denial was improper because at the time their response

was due, a Texas Supreme Court Emergency Order relating to the COVID-19

pandemic was in effect that suspended filing deadlines. We disagree that the trial

court’s order granting Raborn’s motion to dismiss violated the applicable

Emergency Order.


                                          17
      Section 51.007(b) provides that “[w]ithin 30 days after the filing of the

trustee’s verified denial, a verified response is due from all parties to the suit or

proceeding setting forth all matters, whether in law or fact, that rebut the trustee’s

verified denial.” TEX. PROP. CODE § 51.007(b). If the respondent does not file a

timely verified response, “the trustee shall be dismissed from the suit or proceeding

without prejudice.” Id. § 51.007(c). Raborn filed his denial on March 23, 2020. The

Arthur parties’ response was therefore due thirty days later, or by April 22, 2020.

      In response to the COVID-19 pandemic, the Texas Supreme Court has issued

a series of Emergency Orders relating to the conduct of court proceedings. The

court’s First Emergency Order Regarding the COVID-19 State of Disaster, signed

on March 13, 2020, provided, in relevant part:

      2.     Subject only to constitutional limitations, all courts in Texas may
             in any case, civil or criminal—and must to avoid risk to court
             staff, parties, attorneys, jurors, and the public—without a
             participant’s consent:
             a.    Modify or suspend any and all deadlines and procedures,
                   whether prescribed by statute, rule, or order, for a stated
                   period ending no later than 30 days after the Governor’s
                   state of disaster has been lifted; . . . .

See 

, 265 (Tex. 2020) (Order) (effective March 13, 2020) (emphasis

added). In the First Emergency Order, the Texas Supreme Court did not, as the

Arthur parties appear to argue, automatically suspend all deadlines in all cases.

Instead, this Emergency Order gave trial courts broad discretion to modify or


                                          18
suspend any deadlines and procedures prescribed by statute, rule, or order. See Kim

v. Ramos, 

, 269–70 (Tex. App.—Houston [1st Dist.] 2021, no pet.)

(construing similar language in Texas Supreme Court’s Twenty-Ninth Emergency

Order).

      The First Emergency Order was in effect at the time Raborn filed his answer,

which contained his pleading that the Arthur parties had sued him solely in his

capacity as trustee under the deed of trust. The trial court therefore had the authority

to modify or suspend the Arthur parties’ 30-day response deadline. However, the

Arthur parties point to no evidence in the appellate record that the trial court did so.

The Arthur parties argue that the trial court issued an abatement order on March 20,

2020, but there is no indication that this abatement order was issued in the underlying

proceeding. The appellate record does not contain an abatement order. The trial

court’s docket sheet for this proceeding contains no entry on March 20, 2020, and

does not reference the entry of an abatement order at any point during the pendency

of the proceeding. Instead, the email exchange between the trial court coordinator

and Raborn, discussed above, indicates that the abatement order was issued in the

2019 case between the Arthur parties and Blackburne.

      We conclude that the Arthur parties have not demonstrated that the trial court,

by granting Raborn’s motion to dismiss in part because the Arthur parties did not

timely file a verified response, violated any order of the Texas Supreme Court or


                                          19
another order of the trial court. We further conclude that Raborn’s motion to dismiss

pursuant to Property Code section 51.007 was not substantively deficient.

      We overrule the Arthur parties’ second issue.

                            Denial of Motion to Sever

      In their third issue, the Arthur parties argue that the trial court abused its

discretion by denying the motion to sever their claims against Raborn into a separate

cause number, which would have made the trial court’s order dismissing those

claims a final judgment.

      Rule of Civil Procedure 41 provides that “[a]ny claim against a party may be

severed and proceeded with separately.” TEX. R. CIV. P. 41. “A severance divides

the lawsuit into two or more separate and independent causes.” In re United Fire

Lloyds, 

 (Tex. App.—San Antonio 2010, orig. proceeding); see

Van Dyke v. Boswell, O’Toole, Davis & Pickering, 

 (Tex. 1985)

(“A severance splits a single suit into two or more independent actions, each action

resulting in an appealable final judgment.”).

      A claim is properly severable if (1) the controversy involves more than one

cause of action; (2) the severed claim would be the proper subject of a lawsuit if

independently asserted; and (3) the severed claim is not so interwoven with the

remaining action that they involve the same facts and issues. In re State, 

 (Tex. 2011) (orig. proceeding); F.F.P. Operating Partners, L.P. v. Duenez,


                                         20


 (Tex. 2007) (quoting Guar. Fed. Sav. Bank v. Horseshoe

Operating Co., 

 (Tex. 1990)). We review a trial court’s order

on a motion to sever for an abuse of discretion. F.F.P. Operating Partners, 

; Liberty Nat’l Fire Ins. Co. v. Akin, 

 (Tex. 1996)

(orig. proceeding) (“Severance of claims under the Texas Rules of Civil Procedure

rests within the sound discretion of the trial court.”).

      The trial court granted Raborn’s motion to dismiss on July 13, 2020. This

ruling dismissed the claims against Raborn without prejudice, but the Arthur parties’

claims against Blackburne remained pending. The Arthur parties filed a motion for

reconsideration of the court’s dismissal order.

      While the Arthur parties’ motion for reconsideration was pending, the trial

court granted Blackburne’s motion to consolidate the underlying suit with the two

previous suits that the Arthur parties had filed against Blackburne. These lawsuits

did not contain any claims asserted against Raborn. Thus, at the time the trial court

consolidated the three cases, the only claims asserted against Raborn had been

dismissed.

      On December 8, 2020, the trial court denied the Arthur parties’ motion for

reconsideration. Ten days later, the Arthur parties moved to sever the claims against

Raborn into a separate cause number. The Arthur parties argued that the order

denying reconsideration was a final order or judgment with respect to Raborn, and a


                                           21
severance would “permit\allow the removal of Defendant Raborn from the case.”

Raborn responded to this motion and opposed severance.

      The trial court denied the Arthur parties’ motion to sever on January 5, 2021.

The Arthur parties filed a notice of appeal from this order on February 5, 2021. On

May 15, 2021, while this appeal against Raborn was pending, the trial court signed

a final judgment disposing of the remaining claims between the Arthur parties and

Blackburne in the three consolidated cases.

      Texas courts have held that severing a claim after a dispositive ruling on that

claim to expedite appellate review is not an abuse of discretion. See Cherokee Water

Co. v. Forderhause, 

, 525–26 (Tex. 1982) (concluding that

severance of deed-reformation claim after trial court granted summary judgment on

declaratory judgment claim, “apparently in an effort to expedite appellate review of

the declaratory judgment action,” did not constitute abuse of discretion); Dorsey v.

Raval, 

 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.)

(holding that trial court did not abuse its discretion by severing claims against

particular defendant because, at time severance occurred, all claims against

defendant had been dismissed by summary judgment).

      Conversely, this Court has held that no authority limits a trial court’s

discretion and requires it to sever a claim after the trial court issues an interlocutory

dispositive ruling on the claim. Marshall v. Harris, 

, 35 (Tex. App.—


                                           22
Houston [1st Dist.] 1989, orig. proceeding) (per curiam) (concluding that relator did

not demonstrate he was entitled to mandamus relief when trial court denied motion

to sever claims asserted by relator after court granted interlocutory summary

judgment in favor of defendant on relator’s claims); In re De La Cerda, No. 12-12-

00149-CV, 

, at *3 (Tex. App.—Tyler Feb. 6, 2013, orig.

proceeding [mand. denied]) (mem. op.) (declining to grant mandamus relief when

trial court refused to sever claims resolved by interlocutory default judgment). We

further stated that no authority holds that a trial court abuses its discretion by denying

a motion to sever claims “resolved by an interlocutory summary judgment that

delays the movant’s appeal.” Marshall, 764 S.W.2d at 35.

      Even if the trial court erred by denying the Arthur parties’ motion to sever the

claims against Raborn, we conclude that this ruling does not constitute reversible

error. The trial court disposed of the claims against Raborn when it granted Raborn’s

motion to dismiss in July 2020, and it reaffirmed that dismissal when it denied the

Arthur parties’ motion for reconsideration in December 2020.

      Denying the motion to sever—and keeping the claims against Raborn in the

consolidated case even though no further actions needed to be taken with respect to

those claims—could have potentially delayed the Arthur parties’ seeking of

appellate remedies against Raborn. However, the Arthur parties filed a notice of

appeal from the order denying the motion to sever—resulting in this appeal—even


                                           23
though the order denying the motion to sever was interlocutory and not appealable.

The Arthur parties thus began the appellate process on their claims against Raborn,

albeit prematurely. The trial court then signed a final judgment disposing of all

claims and all parties in the case approximately three months after the Arthur parties

filed their notice of appeal. The signing of the final judgment cured the jurisdictional

defect arising from the prematurely filed notice of appeal. See Fusion Indus., LLC v.

Edgardo Madrid & Assocs., LLC, 

, 849 (Tex. App.—El Paso 2021,

no pet.); TEX. R. APP. P. 27.1(a).

      The trial court’s denial of the Arthur parties’ motion to sever did not probably

cause the rendition of an improper judgment, nor did it prevent the Arthur parties

from properly presenting their case to this Court. See TEX. R. APP. P. 44.1(a) (stating

standard for reversible error in civil cases). Moreover, the only parties to this appeal

are the Arthur parties as appellants and Raborn as the sole appellee. The only other

issues in this appeal are whether the trial court properly dismissed the claims against

Raborn; the merits of the trial court’s dismissal of the Arthur parties’ claims against

Blackburne are not at issue in this appeal. Thus, even if the trial court erred by

denying the Arthur parties’ motion to sever, remanding the case to the trial court and

ordering the court to grant the motion to sever would serve no practical effect. See

Meeker v. Tarrant Cnty. Coll. Dist., 

 (Tex. App.—Fort Worth

2010, pet. denied) (“An issue may become moot when a party seeks a ruling on some


                                          24
matter that, when rendered, would not have any practical legal effect on a then-

existing controversy.”). We therefore hold that the trial court’s denial of the Arthur

parties’ motion to sever did not constitute reversible error.

      We overrule the Arthur parties’ third issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                               April L. Farris
                                               Justice

Panel consists of Justices Goodman, Countiss, and Farris.




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