Bank of America

Harriet takes Her Chariot to the Circled Wagons at Gumbo5 Seeking to Reverse a Miscarriage of Justice

Nicholson requests the Court reverse the district court’s judgment; render judgment and declare the Second Court of Appeals judgment is void.

PETITION FOR EN BANC RECONSIDERATION

DEC 14, 2023 | REPUBLISHED BY LIT: DEC 15, 2023

TO THE HONORABLE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT:

Appellant, Harriet Nicholson (“Nicholson”), respectfully seeks an en banc reconsideration of this Court’s Opinion of December 5, 2023 because its primary authority cited, Weekly v. Morrow, 204 F.3d 613, 615 (C.A.5 (La.),2000) is unavailing in light of the materially distinguishable facts and circumstances central to this appeal and conflicts with this court’s decision.

The panel decision conflicts with a decisions of the United States Supreme Court and of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decision and shows unto the Court the following:

I.      INTRODUCTION

The instant action was a collateral attack on the Texas’ appellate court (reviewing court) void judgment for lack of subject matter jurisdiction because it assumed appellate jurisdiction over non-appealable interlocutory orders.

Nicholson’s Appellant’s Brief relies on Steph v. Scott, 840 F.2d 267, 270 (C.A.5 (Tex.),1988) which this court was bound to follow under the Rule of Orderliness which held:

Applying Texas law, a federal court may entertain a collateral attack on a state court judgment in four instances: 1) if the state court lacked jurisdiction over the party or his property; 2) if the state court lacked jurisdiction over the subject matter of the suit; 3) if the state court lacked jurisdiction to enter the particular judgment rendered; or 4) if the state court  lacked  the  capacity  to  act  as  a  court.

II. ARGUMENT

The Key Case Cited by the Court—Weekly v. Morrow— is Unavailing

The instant action was a collateral attack on a state appellate court (reviewing court) void judgment, not an action seeking appellate review of a state trial court error as held in Weekly v.

Morrow, 204 F.3d 613, 615 (C.A.5 (La.),2000).

This court held in Weekly v. Morrow, 204 F.3d 613, 615 (C.A.5 (La.),2000):

The Supreme Court has definitively established, in what has become known as the Rooker–Feldman doctrine, that “federal district courts, as courts of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify final orders of state courts.

If a state trial court errs the judgment is not void, it is to be reviewed and corrected by the appropriate state appellate court.

Weekly v. Morrow, 204 F.3d 613, 615 (C.A.5 (La.),2000).

A federal court is not engaged in the appellate review prohibited by Rooker-Feldman when it considers an issue dealt with by an interlocutory state court order.

See Davis v. Bayless, 70 F.3d 367, 375-76 (5th Cir.1995)

(“[O]ur Circuit has not allowed the Rooker-Feldman doctrine to bar an action in federal court when that same action would be allowed in the state court of the rendering state.”);

Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 4469.1 at 147

(“It seems particularly questionable to bar federal-question jurisdiction [under the Rooker-Feldman doctrine] if the courts of other states, and indeed other courts of the same state, would have jurisdiction to the same federal question.”).

On one hand, this court cannot determine Rooker-Feldman precludes subject matter jurisdiction to review the record to determine whether the Texas appeals court judgment is void for lack of subject matter jurisdiction; and on the other hand, determine this case is an impermissible collateral attack.

Rooker-Feldman cannot be used as a sword and shield in the instant action.

“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”

Ex parte McCardle, 7 Wall. 506, 514, 19 L.Ed. 264 (1868); Steel Co. v. Citizens for a Better Environment, 118 S.Ct. 1003, 1012, 523 U.S. 83, 94 (U.S.Ill., 1998).

Federal court may not, via doctrine of “hypothetical jurisdiction,” decide cause of action before resolving whether court has Article III jurisdiction; doing so would carry courts beyond bounds of authorized judicial action and thus offend fundamental principles of separation of powers, and would produce nothing more than hypothetical judgment, which would come to same thing as advisory opinion, disapproved by Supreme Court from the beginning; abrogating SEC v. American Capital Investments, Inc., 98 F.3d 1133.

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (U.S.Ill., 1998).

III.                     CONCLUSION

Under this court’s Rule of Orderliness and to maintain uniformity of its decisions, en banc rehearing is warranted.

IV.                         PRAYER

WHEREFORE, PREMISES CONSIDERED, Nicholson prays that this Court GRANT her Petition for En Banc Rehearing.

RESPECTFULLY SUBMITTED,

/s/ Harriet Nicholson

5th Circuit Opinion (unpublished)

DEC 5, 2023 | REPUBLISHED BY LIT: DEC 5, 2023

Before Davis, Southwick, and Ho, Circuit Judges. Per Curiam:*

Under the Rooker-Feldman doctrine, federal district courts “cannot sit as appellate courts in review of state court judgments.”

Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000).

Plaintiff Harriet Nicholson sued Defendants Bank of America and Countrywide Home Loans in federal district court after exhausting her

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

remedies in Texas state court.

Because we find the state court’s judgment to have been final and not void, the Rooker-Feldman doctrine precludes the federal district court from hearing this case because of lack of subject matter jurisdiction.

Thus, we affirm the district court’s decision to dismiss Plaintiff’s case.

I.

In the underlying state court proceedings, Plaintiff Harriet Nicholson brought claims against several Defendants, including Bank of America and Countrywide Home Loans, related to the foreclosure sale of her home.

The state trial court granted summary judgment in favor of Defendants. It also granted Bank of America and Countrywide’s motion to sever Nicholson’s claims against them.

The Fort Worth Court of Appeals sided with the state trial court and affirmed the orders, and the Supreme Court of Texas denied Nicholson’s petition for review.

Nicholson then sought relief in federal court.

In the operative amended complaint, Nicholson argued that the state appellate court’s judgment was void because the court lacked jurisdiction.

Bank of America and Countrywide moved to dismiss the amended complaint, arguing that it was an impermissible collateral attack on a state court order under the Rooker-Feldman doctrine.

The magistrate judge agreed and recommended that the complaint be dismissed.

The federal district court overruled Nicholson’s objections, accepted the magistrate judge’s findings, and dismissed Nicholson’s complaint.

II.

This case primarily concerns whether the federal district court has jurisdiction over a case that has already been adjudicated in state court.

This question rests on whether the Rooker-Feldman doctrine applies.

The Rooker-Feldman doctrine bars federal district courts from reviewing final judicial determinations of state courts.

See Liedtke v. State Bar of Tex., 18 F.3d 315, 317 (5th Cir. 1994)

(citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S. 462 (1983)).

This doctrine applies to “cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005); see Lance v. Dennis, 546 U.S. 459, 464 (2006)

(describing Rooker-Feldman as a “narrow doctrine”).

Nicholson argues that Rooker-Feldman does not apply to this case for two reasons.

First, Nicholson maintains that the state appellate court’s judgment is void for lack of jurisdiction because the state trial court’s orders were interlocutory, not final.

See Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 461 (5th Cir. 2004)

(“[T]he question we ask is not whether the order at issue was, in fact, appealed, but only whether the order was a final state court judgment in a particular case and thus was appealable.”) (internal quotations omitted).

She notes that the doctrine does not preclude federal courts from reviewing void state court judgments.

See Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 384−85 (5th Cir. 2017).

So Nicholson argues that the federal district court does have jurisdiction to hear this case.

Under Texas law, appeals are generally reserved for final judgments— judgments that fully “dispose of all issues and parties in a case.”

N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).

But when a suit is severed, the two or more independent actions each result in separate, final appealable judgments.

See Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 383 (Tex. 1985); see also Tex. R. Civ. P. 41

(“Any claim against a party may be severed and proceeded with separately.”).

Thus, “a judgment which fully adjudicates one of the severed causes is appealable even though the entire controversy as it existed prior to the severance is not deter- mined thereby.”

Pierce v. Reynolds, 329 S.W.2d 76, 78−79 (Tex. 1959).

Here, the state trial court granted summary judgment in favor of Bank of America and Countrywide on October 30, 2018.

The next month, the state trial court granted their motion to sever.

Thus, under Texas law, the state trial court’s summary judgment order became final and appealable when the court severed Bank of America and Countrywide’s claims.

Therefore, we reject Nicholson’s argument that the state appellate court’s judgment was void for lack of jurisdiction because the trial court’s judgment was interlocutory.

Second, Nicholson also notes that the Rooker-Feldman doctrine does not apply here because it is limited to cases where “a party suffered an adverse final judgment rendered by a state’s court of last resort.”

Illinois Cent. R.R. Co. v. Guy, 682 F.3d 381, 390 (5th Cir. 2012).

The state appellate judgment in this case originates from the state’s intermediate appellate court (i.e., Fort Worth Court of Appeals), and not from the state’s final appellate court (i.e., Texas Supreme Court).

Our court, in Miller v. Dunn, 35 F.4th 1007, 1011 (5th Cir. 2022), however, has noted the “uncertainty in this circuit as to whether a pending state-court appeal precludes applying the doctrine.”

In Miller, our court settled previous confusion by holding that the Rooker-Feldman doctrine does not apply “where a state appeal is pending when the federal suit is filed.” Id. at 1012.

Here, unlike in Miller, the state proceedings were no longer pending by the time Nicholson filed her complaint in federal court.

The Texas Supreme Court denied Nicholson’s petition for review in July 2020, and Nicholson did not bring suit in federal court until July 2021.

We accordingly affirm.

In addition, we deny Nicholson’s motions to strike the Appellees’ brief and to sanction counsel.

BRIEF OF APPELLEE

MAR 29, 2023 | REPUBLISHED BY LIT: MAR 30, 2023

BRIEF OF APPELLANT

FEB 27, 2023 | REPUBLISHED BY LIT: MAR 11, 2023

Note; embedded images included in brief not transcribed below.

I.      STATEMENT REGARDING ORAL ARGUMENT

Given the clarity of the record and the law, Harriet Nicholson do not believe that oral argument is necessary for this appeal. However, if the Court elects to hear argument, then Appellants would welcome the opportunity to address the Court and will appear and participate.

II.      JURISDICTIONAL STATEMENT

The district court had jurisdiction over Nicholson’s independent equitable action pursuant to 28 U.S.C. §§ 1331 and 1332.   This court has jurisdiction to review the district court’s final judgment pursuant to 28 U.S.C. § 1291.

This is an appeal from the district court’s judgment dismissing this action for a lack of subject matter jurisdiction based on the Rooker-Feldman doctrine.

The district court entered its judgment on August 9, 2022.

ROA.866 Appellant filed a timely Amended Rule 59(e),60(b) on August 13, 2022 ROA. 879-891.

The district court entered order denying Rule 59(e)(60) on September 30, 2022 ROA.905-907

Appellant filed a timely notice of appeal on October 27, 2022. ROA.; FED. R. APP. P. 4(a)(1)(A). ROA.926

III.   STATEMENT OF ISSUE PRESENTED FOR REVIEW

1.               Did the district court err by dismissing this independent action – collaterally attacking an appellate court’s void judgment for lack of subject-matter jurisdiction- based on the Rooker-Feldman doctrine?

IV.          STATEMENT OF THE CASE

Plaintiff – Appellant filed this independent action against Defendants Bank of America, N.A. (hereinafter also referred to as Defendant BANA) and Countrywide Home Loans, Inc. (hereinafter also referred to as Defendant CHLI) collaterally attacking the intermediate appellate court’s void judgment for lack of subject matter jurisdiction for assuming appellate jurisdiction over non-appealable interlocutory orders not authorized by statute; asking this Court to set it aside.

See Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.2005) (stating that only void judgment, which includes judgment rendered by court lacking subject matter jurisdiction, may be collaterally attacked);

Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994) quoting Fleming v. Seeligson, 57 Tex. 524, 531 (1882) (stating that the only issue in a collateral attack is whether the underlying judgment is void).

It is fundamental error for an appellate court to assume jurisdiction over an interlocutory order when not expressly authorized to do so by statute.

New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 679 (Tex.1990) (per curiam) (reversing the court of appeals’ judgment and rendering judgment dismissing the appeal for lack of jurisdiction because the trial court had not rendered a final judgment) (citing Long v. Humble Oil & Refining Co., 380 S.W.2d 554, 555 (Tex.1964) (per curiam));

see also Brooks v. Northglen Ass’n, 141 S.W.3d 158, 164 (Tex.2004); Brown v. Todd, 53 S.W.3d 297, 306 (Tex.2001).

Nicholson only had a substantial right to collaterally attack the appellate court’s void judgment for lack of subject-matter jurisdiction for assuming appellate jurisdiction over non-appealable interlocutory orders not authorized by statute in the federal district court.

It is black letter law, the Texas Constitution afforded Nicholson no right to appeal the Second Court of Appeals’ void judgment to the Supreme Court; review by the Supreme Court is a matter of discretion. Indus. Specialists, LLC v. Blanchard Ref. Co. LLC, 652 S.W.3d 11, 16 (Tex. 2022) (Whether to grant review is a matter of judicial discretion.”); TEX. R. APP. P. 56.1.

The state court record before the district court affirmatively and conclusively proves the Second Court of Appeals judgment is void for lack of subject matter jurisdiction because it assumed appellate jurisdiction over non-appealalbe interlocutory summary judgment and severance orders not authorized by statute.1

Both parties agree the appellate court lacked jurisdiction and the orders were not final. ROA.848

The magistrate report rightly acknowledged, both parties argued the appellate court lacked jurisdiction and the Orders were not “final” which stated in relevant part:

1Texas appellate court has jurisdiction over interlocutory appeals only to the extent such jurisdiction is expressly granted by section 51.014 of the Texas Civil Practice and Remedies Code. See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001); Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000) (“An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments.”)

[A] collateral attack may be made in a proceeding where the judgment being attacked forms the basis of claim or of a defense.

A collateral attack, unlike a direct or independent attack, is incidental to the proceeding in which it is made.

Browning v. Navarro, 887 F.2d 553, 562 (5th Cir. 1989)

See generally 1B J.W. Moore, J.D. Lucas, and T.S. Currier, Moore’s Federal Practice § 0.407 (2d ed.1988).

A two step analysis is employed when such an attack is made on a state court judgment in federal court.

Id. quoting Salazar v. U.S. Air Force, 849 F.2d 1542, 1546 n. 8 (5th Cir.1988); A.L.T. Corp. v. S.B.A., 801 F.2d 1451, 1455 (5th Cir.1986);

Rives v. Franklin Life Ins. Co., 792 F.2d 1324, 1328-29 (5th Cir.1986);

and Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1020-21 (5th Cir.1982), cert. denied, 464 U.S. 818, 104 S.Ct. 79, 78 L.Ed.2d 90 (1983).

First, it must be determined whether the judgment is entitled to full faith and credit. Id.

If there are federal grounds for vacating a state court judgment, it is not entitled to full faith and credit. Id.

Second, 28 U.S.C. § 1738 does not require a federal court to give a state judgment more credit than it would be given in the state which rendered the judgment. Id.

Thus, if the Second Court of Appeals judgment was subject to collateral attack in Texas on the basis that the court lack subject matter jurisdiction, it is subject to collateral attack in federal court. Id.

A judgment which is void because of lack of jurisdiction is not entitled to full faith and credit. Browning v. Navarro, 887 F.2d 553, 563 (5th Cir. 1989).

On appeal of the Orders, Defendants-Appellees argued that the appellate court lacked jurisdiction because the Orders were not “final.” ROA.848

Appellees can not profess ignorance for their excuse for making the argument, the summary judgment and severance orders was a final judgment in the instant case. ROA.471

Appellees were parties to the litigation in the Second Court of Appeals judgment being collaterally attacked; represented by the same counsel, Connie Flores, and the same prominent law firm (McGuire Woods) knew they were making unwarranted arguments before the district Court .ROA.409

The United States Court of Appeals for the Fifth Circuit has recognized that, “[u]nder some circumstances, a federal court may review the state court record to determine if the judgment is void.”

Mosley v. Bowie County, 275 F. App’x 327, 329 (5th Cir. 2008) (citing United States v. Shepherd, 23 F.3d 923, 925 & n.5 (5th Cir. 1994)

(“The government argues that the state judgment is void and therefore subject to collateral attack. However, in Texas, when a collateral attack is made on a judgment, the error which is alleged to render the judgment void must appear on the face of the court record. Having reviewed the state court record, we conclude that it contains no error of the sort that would render the state judgment void. ”)

This is one of those circumstances – where the federal court must review a state court record to determine if a judgment is void. If a court lacks [subject matter] jurisdiction, the judgment is void and the district court must set it aside.”

Thompson v. Deutsche Bank Nat’l Trust Co., 775 F.3d 298, 306 (5th Cir. 2014) (quoting Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir. 1986)).

Defendants BANA and CHLI did not file an answer; instead they filed a motion to dismiss Plaintiff’s complaint. ROA.158-160

Plaintiff filed a first amended complaint in response to the motion to dismiss. ROA.201-339

Then, BANA and CHLI filed a motion to dismiss Plaintiff’s first amended complaint. ROA.343-345

The Magistrate Judge made a report and recommendation to the Trial Court concluding Rooker-Feldman barred Nicholson’s collateral attack on the appellate’s court void judgment for lack of subject matter jurisdiction and the case be dismissed without prejudice. ROA.845-850

Plaintiff filed objections to the report and recommendation of the Magistrate Judge. ROA.851-864

Despite those objections, the Trial Court adopted the report of the Magistrate Judge and entered a final judgment dismissing the case without prejudice. ROA.865

The trial court entered judgment. ROA.866

Plaintiff filed an amended motion for reconsideration and to alter or amend the judgment. ROA.879-891 The Trial court denied the Rule 59(e) and 60 motion. ROA. This appeal then ensued. ROA. 905-907

1Texas appellate court has jurisdiction over interlocutory appeals only to the extent such jurisdiction is expressly granted by section 51.014 of the Texas Civil Practice and Remedies Code.

See Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007);

Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 355 (Tex. 2001);

Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 336 (Tex. 2000)

(“An appellate court lacks jurisdiction to review an interlocutory order unless a statute specifically authorizes an exception to the general rule, which is that appeals may only be taken from final judgments.”)

V.       STATEMENT OF FACTS

This is an appeal of a dismissal without prejudice of Plaintiffs’ complaint under Rule 12(b)(1).

VI.       STATE COURT PROCEEDING IN CASE 048-286132-16

On June 21, 2016, Nicholson filed suit against David Stockman seeking declaratory relief an artifice (Notice of Rescission of Foreclosure Sale/Cancellation of Substitute Trustee’s Deed), clandestinely filed in the Tarrant County, Texas during the pendency of a post-forecloure lawsuit to adjudicate title ; an attempt to save face and escape liability for legal malpractice for an invalid foreclosure sale. The clerk docketed the case and assigned cause 048-286132-16. ROA.760

On June 23, 2017, Bank of America, N.A, conceded the artifice (Notice of Rescission of Foreclosure Sale/Cancellation of Substitute Trustee’s Deed), was null and void in a related case, 342-262692-12 styled Harriet Nicholson v. Bank of New York, Bank of America, N.A., Recontrust, Melanie Cowan, David Stockman, and Countrywide Home Loans, Inc. ROA.913-916

On October 26, 2017, the trial judge in the related case (342-262692-12 (Nicholson 1)) signed a “Final Judgment” declaring the artifice, 2014 Notice of Rescission of Foreclosure Sale/Cancellation of Substitute Trustee’s Deed, was invalid and void. ROA. 760

On June 11, 2018, Plaintiff filed her Eighth Amended Petition, against David Stockman, Donna Stockman, Denise Boerner, Bank of America, N.A., Countrywide Home Loans, Inc., Bank of New York, Recontrust, Nationstar Mortgage, Harvey Law Group, William Viana, and Tereke Trekle. the operative pleading. In the Eighth Amended Petition, Nicholson asserted causes of action for violations of § 12.002 of the Civil Practice and Remedies Code, negligence per se, gross negligence per se, declaratory judgment pursuant to Chapter 37 of the Civil Practice and Remedies Code, civil conspiracy to commit fraud, fraud, and respondeat superior against all eleven defendants. ROA.22-110

On October 30, 2018, the Trial Court granted summary judgment in favor of BANA and against the Eighth Amended Petition dismissing all claims against them with prejudice.

That same day, the Trial Court also granted summary judgment in favor of CHLI and against the Eighth Amended Petition dismissing all claims against them with prejudice. ROA.113, 115

On November 28, 2018, the Court granted BANA’s and CHLI’s Motion to Sever. ROA.117-118

On January 24, 2019, Plaintiff filed a Petition for Writ of Mandamus (the “Mandamus Petition”), in which she asked the Court of Appeals to issue a writ of mandamus ordering the Trial Court to vacate the November 28, 2018 Severance Order based on an abuse of discretion.

The Clerk docketed the Mandamus Petition as Case # 02-19-00022-cv. On February 7, 2019, the Court issued its Per Curiam Memorandum Opinion denying the Mandamus Petition and denying Plaintiff’s motion for emergency relief.

See In re Nicholson, No. 02-19-00022-cv, 2019 WL 490132 (Tex. Civ. App.—Fort Worth Feb. 7, 2019)

On February 26, 2019, Plaintiff filed the Notice of Appeal, appealing Bank of America, N.A.’s and Countrywide Home Loans, Inc.’s October 30, 2018 Summary Judgment Orders and November 28, 2018 Severance Order. On December 31, 2019, the Second Court of Appeals affirmed the interlocutory summary judgment and severance orders.ROA.132

On Februray 19, 2020, the trial court signed a “Final Judgment” in case 048- 26132-16 disposing of all parties and claims resutling in a final and appealable judgment. ROA.134-135

VII.       FEDERAL COURT PROCEEDINGS

Plaintiff filed suit on July 30, 2021 collaterally attacking a void judgment of the Second Court of Appeals for lack of subject matter jurisdiction. ROA.12-136

On September 13, 2021, BANA and CHLI filed their Rule 12(b)(1) motion to dismiss Plaintiff’s original Complaint for lack of subject matter jurisdiction, based on the applicability of the Rooker-Feldman doctrine.ROA.158-160

That same day, Appellant/Plaintiff filed the Amended Complaint, alleging that the Rooker-Feldman doctrine did not preclude collaterally attacking the Second Court of Appeals’ void judgment for lack of subject matter jurisdiction because it assumed appellate jurisdiction over non-appealable interlocutory orders not authorized by statute and should be set aside.ROA.201-339

On September 27,  2021,  Defendants-Appellees  moved to dismiss Plaintiff’s amended complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that the district court did not have jurisdiction to rule on the case because it constituted a collateral attack on a state court order. ROA.343-345, 846.

Plaintiff filed oppositions to the Motion to Dismiss. ROA.386-465. Defendants filed their Reply Brief on October 12, 2021. ROA.466-477.

On July 20, 2022, the Magistrate Judge filed Findings and Recommendations and recommended granting Bank of America’s, Countrywide Home Loans Inc.’s Motion to Dismiss/Lack of Jurisdiction.

On August 1, 2022, Nicholson filed OBJECTIONs to USMJ Findings and Recommendations arguing Rooker-Feldman does not bar collaterally attacking a void judgment for lack of subject matter jurisdiction.

On August 9, 2022, the district judge filed an ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE.

On August 9, 2022, the district judge filed JUDGMENT: DISMISSED WITHOUT PREJUDICE.

On August 13, 2022, Nicholson filed an Amended MOTION to Alter Judgment FRCP 59(e), 60, 72(b)(3). ROA On 08/29/2022 Bank of America, Countrywide Home Loans Inc filed Objection to Amended MOTION to Alter Judgment FRCP 59(e), 60, 72(b)(3). On August 29, 2022, Nicholson filed a Reply to Bank of America’s and CHLI’s Objections.

On September 30, 2020, the district judge signed an ORDER denying Nicholson’s Amended Rule 59(e)and 60 Motions.

(Ordered by Chief District Judge David C Godbey on 9/30/2022)

On October 27, 022, Nicholson filed her timely NOTICE OF APPEAL as to 47 (p.865) Order Accepting/Adopting Findings and Recommendations, 48 (p.866) Judgment, 54 (p.905) Order on Motion to AlterJudgment to the Fifth Circuit by Harriet Nicholson.

2 Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994) quoting .Fleming v. Seeligson, 57 Tex. 524, 531 (1882)

(stating that the only issue in a collateral attack is whether the underlying judgment is void).

VIII.     STANDARD OF REVIEW

A district court’s dismissal for a lack of subject matter jurisdiction is reviewed de novo. Truong v. Bank of Am., N.A., 717 F.3d 377, 381 (5th Cir. 2013).

IX.                    SUMMARY OF THE ARGUMENT

The Rooker-Feldman doctrine does not apply because Nicholson is not seeking to reverse the final judgment in the trial court case 48-286132-16 rendered on February 19, 2020.

In other words, Nicholson is not asking the district court to sit in appellate review of the final judgment of the trial court.

Indeed, the  final judgment in the trial court case is wholly unrelated to Nicholson collaterally attacking the Texas intermediate appellate court’s void judgment for lack of subject- matter jurisdiction in this action; that arose before the final judgment was signed in the trial court on February 19, 2020.

The district court erred in concluding that Rooker-Feldman barred Nicholson’s collateral attack on the Second Court of Appeals for lack of jurisdiction because Appellees were unsuccessful in their jurisdictional challenge on appeal, concluding Nicholson was estopped from collaterally attacking the Second Court of Appeals void judgment for lack of subject-matter jurisdiction in this independent action stating in relevant part: ROA.849

X.       ROOKER-FELDMAN DOCTRINE DOES NOT APPLY TO THIS ACTION

A.               Rooker-Feldman does not bar a collateral attack on an intermediate appellate court’s void judgment for lack of subject matter jurisdiction for assuming appellate jurisdiction over non-appealable interlocutory orders not authorized by Texas statute.

The Rooker-Feldman doctrine places a “limit on federal subject-matter jurisdiction” on the theory “that only the United States Supreme Court has been given jurisdiction to review a state-court decision.” 18B Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 4469.1 (2d ed.).

The doctrine has four elements, applying only if there is: (1) a state-court loser; (2) alleging harm caused by a state-court judgment; (3) that was rendered before the district court proceedings began; and (4) the federal suit requests review and reversal of the state-court judgment.

Houston v. Venneta Queen, 606 F. App’x 725, 730 (5th Cir. 2015).

“A state court judgment is attacked for purposes of Rooker- Feldman ‘when the [federal] claims are inextricably intertwined with a challenged state court judgment,’ or where the losing party in a state court action seeks ‘what in substance would be appellate review of the state judgment.’”

Weaver v. Tex. Capital Bank, N.A., 660 F.3d 900, 904 (5th Cir. 2011) (per curiam) (citations and internal quotation marks omitted).

Crucially, however, Rooker-Feldman “does not preclude federal jurisdiction over an ‘independent claim,’ even ‘one that denies a legal conclusion that a state court has reached.’”

Id. at 904 (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005)).

In other words, the doctrine “applies only where a plaintiff seeks relief that directly attacks the validity of an existing state court judgment.”

Weaver, 660 F.3d at 904.

The doctrine does not apply here.

As Nicholson argued below, if the Rooker Feldman doctrine applied to this independent action collateral attacking a void intermediate appellate’s court judgment for lack of jurisdiction in this case, federal district courts “would be without jurisdiction to hear all cases brought challenging void judgments for lack of subject matter jurisdiction —an absurd result.” .

The second element is not met because the injury at issue stems from the appellate court’s void judgment-, not from the state court’s final judgment; and the source of the alleged injury is a “hallmark” of the Rooker-Feldman doctrine.

Truong v. Bank of America, N.A., 717 F.3d 377, 382 (5th Cir. 2013).

The fourth Rooker-Feldman element also is not met because Nicholson did not request the district court to review and reverse a state trial court’s final judgment. Appellant do not seek to have the interlocutory summary judgment and severance orders set aside.

Rather, the issue in this case was the appellate court’s judgment is void for lack of subject matter jurisdiction. The district court was incorrect.

The only issue it had to decide was whether the appellate court’s judgment was void for lack of subject matter jurisdiction. Stewart

B.                Rooker-Feldman is inapplicable in a collateral attack2 on a void Texas appellate court’s judgment for lack of subject matter jurisdiction.

As an initial matter, this Court must analyze the nature of the Texas state court’s interlocutory summary judgment and severance orders through the lens of2 Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994) quoting

.Fleming v. Seeligson, 57 Tex. 524, 531 (1882) (stating that the only issue in a collateral attack is whether the underlying judgment is void).

the Rooker-Feldman doctrine. Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004). quoting Richard v. Hoechst Celanese Chem. Group,  Inc., 355 F.3d 3845, 350 (5th Cir.2003) (citing Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 373, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996);

In re Lease Oil Antitrust Litigation, 200 F.3d 317, 319 n. 1, 320 (5th Cir.2000);

Gauthier v. Continental Diving Svcs., Inc., 831 F.2d 559, 561 (5th Cir.1987)). The trial court’s orders in the instant case were merely interlocutory in nature, and therefore had no preclusive effect under the Rooker-Feldman doctrine. Cf. Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 462 (5th Cir. 2004).

“[T]he Rooker-Feldman doctrine only applies insofar as a state court judgment merits full faith and credit. Id. This Court must therefore consider how the Texas courts would treat the summary judgment and severance orders at issue.Id.

The question this Court must answer: (1) Would Texas courts give preclusive effect to the interlocutory summary judgment and severance orders. Id.

C.               The Summary Judgment and Severance Orders Were Not “Final” State Court Judgments.

The Rooker-Feldman doctrine applies only to “final judgment[s] rendered by a state’s court of last resort.”

Id. (quoting Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 390 (5th Cir. 2012)).

Under Tex. Const. Art. V, § 6; Tex. Gov’t Code Ann. § 22.220 (Vernon Supp.2009).

Appellate jurisdiction is established exclusively by constitutional and statutory enactments.

Appellate jurisdiction is never presumed.

Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 546 (Tex.App.-Dallas 2009, no pet.).

Unless one of the sources authorizes an interlocutory appeal, appeals courts only have jurisdiction over an appeal taken from a final judgment.

Lehmann v. Har- Con Corp., 39 S.W.3d 191, 195 (Tex.2001);

N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966).

A judgment is final if it disposes of all pending parties and claims in the record.

Guajardo v. Conwell, 46 S.W.3d 862, 863-64 (Tex.2001) (per curiam); Lehmann, 39 S.W.3d at 195.

These precepts of Texas law require this Court to deem the state court orders in question were interlocutory in nature, not final judgments, and discord it full faith and credit for Rooker-Feldman purposes.

Cf. Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 461 (5th Cir. 2004)

This Court held in Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 461 (5th Cir. 2004):

In considering whether the collateral attack on a state court judgment in federal court is precluded by the Rooker- Feldman doctrine, the question we ask is not whether the order at issue was, in fact, appealed, but only whether the order was a “final state court judgment in a particular case” and thus was appealable.3

In the instant case, the face of the record affirmatively and conclusively proves the summary judgment and severance orders were intelocutory in nature, not final state court judgments.

As such, full faith and credit did not attach by the state court’s ruling on BANA’s and CHLI’s Motion for Summary Judgment and Motion for Severance being interlocutory under Texas law.

Appellees agreed the orders at issue were interlocutory on appeal in the Second Court of Appeals, Fort Worth, Texas. ROA.412, 431, 432, 435

3 Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 461 n 12 (5th Cir. 2004) quoting Dist. of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983).

See also id. at 476, 103 S.Ct. 1303

(explaining that federal district courts are “without authority to review final determinations of” state appellate courts in judicial proceedings because “review of such determinations can be obtained only in this [Supreme] Court”).

D.              The summary judgment and severance orders were not “final state court judgments” precluding review by the Rooker-Feldman doctrine.

Under Texas law, when orders do not dispose of all pending parties and claims, the orders remain interlocutory and unappealable until final judgment is rendered unless a statutory exception applies.

Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 352 (Tex. 2001); Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992) (orig. proceeding)

The partial summary-judgment orders on appeal were not final because they did not dispose of all pending claims and parties.

See Clark v. Pimienta, 47 S.W.3d 485, 485 (Tex. 2001) (per curiam)

(order was interlocutory because it did not actually dispose of all claims and parties and did not state with unmistakable clarity that it was a final judgment).

ROA.481-486, 488-493, 495-501

A severance order that does not dispose of all parties and claims is a non appealable interlocutory order.

Beckham Group, P.C. v. Snyder, 315 S.W.3d 244 (Tex.App.-Dallas 2010, no pet.;

Balistreri v. Remax Realty, No. 05-10-00611-CV, 2011 WL 149984 (Tex. App.-Dallas Jan. 19, 2011, no pet.) (mem. op.).

A severance order itself is not a final judgment.

Allen Parker Co. v. Trustmark Nat. Bank, 14- 11-00027-CV, 2012 WL 8017011 (Tex. App.-Houston [14th Dist.] Feb. 16, 2012,

no pet.) (mem. op.) citing Beckham Group, P.C. v. Snyder, 315 S.W.3d 244, 245 (Tex. App.-Dallas 2010, no pet.)

No statute authorized an interlocutory appeal in the summary judgment and severance orders.

Because the trial court did not dispose of all claims and parties in any of the three orders, they were interlocutory.

Clark v. Pimienta, 47 S.W.3d 485, 486 (Tex. 2001)

(order was interlocutory because it did not actually dispose of all claims and parties and did not state with unmistakable clarity that it was a final judgment)

The district court rightly stated, “The trial court did not enter final judgment in favor of the remaining parties until February 2020, however.”. ROA.335-336, 846

When a trial court renders a final judgment, the court’s interlocutory orders merge into the judgment and may be challenged by appealing that judgment.

See Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 619 S.W.3d 628, 636 (Tex. 2021).

Because no statute provided for an interlocutory appeal from the interlocutory orders, the Second Court of Appeals judgment is void for lack of subject-matter jurisdiction.

E.              The Second Court of Appeals’ void judgment for lack for lack of subject matter jurisdiction was subject to collateral attack in the federal district court.

Under Texas law (which governs whether Texas judgments are subject to collateral attack in federal court,

see United States v. Shepherd, 23 F.3d 923, 925 (5th Cir. 1994)),

“a judgment is void and subject to collateral attack only where it was rendered without `jurisdictional power’ in the sense of lack of subject matter jurisdiction.”

Matter of Gober, 100 F.3d 1195, 1203 (5th Cir. 1996) (cleaned up) (quoting Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990));

Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994) quoting Fleming v. Seeligson, 57 Tex. 524, 531 (1882)

(stating that the only issue in a collateral attack is whether the underlying judgment is void).

Because jurisdiction is necessary for the court to have power to act, it may be questioned at any time by any party or the court itself.

McCauley v. Consolidated Underwriters, 157 Tex. 475, 304 S.W.2d 265, 266 (1957);

Ramsey v. Dunlop, 146Tex. 196, 205 S.W.2d 979, 983 (1947)

A court’s jurisdiction contains two elements:

(1) jurisdiction of the subject matter

and

(2) jurisdiction of the person.

The first element is established by operation of law through the constitutional and statutory provisions that enumerate the kinds of cases the court can entertain.

Federal Underwriters Exchange v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943).

The second element is established either by a litigant’s voluntary entry into the court or by the serving of process on the litigant in accordance with state procedures consistent with due process.

Colson v. Thunderbird Bldg. Materials, 589 S.W.2d 836, 839-840 (Tex.Civ.App.—Amarillo 1979, writ ref’d n.r.e.).

If one of the elements is missing, the court’s judgment is subject to collateral attack and any judgment or order rendered by the court is void.

Austin Independent School District v. Sierra Club, 495 S.W.2d 878, 881 (Tex.1973).

Lack of subject matter jurisdiction renders a judgment void.

Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990)

1.   The Second Court of Appeals’ failure to ensure it had subject-matter jurisdiction was fatal.

The district court rightly stated, “On appeal of the Orders, Defendants argued that the appellate court lacked jurisdiction because the Orders were not “final.”” ROA.848

Under Texas law, appellate courts “always have the duty to ensure that subject-matter jurisdiction—their own and that of the lower courts—is secure.”

S.C.v. M.B., 650 S.W.3d 428, 449 (Tex. 2022) citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445-46 (Tex. 1993).

The state appellate court failed to ensure subject matter jurisdiction was secured over the interlocutory summary judgment and severance orders, however, the state appellate court determined that it had personal jurisdiction (emphasis added) over Appellees, and upheld the Orders. Doc. 15 at 133;

Nicholson v. Bank of Am., N.A., No. 02-19-00085-CV, 2019 WL 7407739, at *1-2 (Tex. App.-Fort Worth, Dec. 31, 2019).ROA.125

As a matter of law, the Second Court of Appeals judgment is void for lack of subject matter jurisdiction and was subject to collateral attack in the federal district court.

2.                 The   Second   Court  of   Appeals   ensured   it   had   personal jurisdiction.

The court held, “On appeal of the Orders, Defendants argued that the appellate court lacked jurisdiction because the Orders were not “final.”” ROA.848

In December 2019, the state appellate court determined that it had personal jurisdiction (emphasis added) over Appellees, and upheld the Orders. Doc. 15 at 133;

Nicholson v. Bank of Am., N.A., No. 02-19-00085-CV, 2019 WL 7407739, at *1-2 (Tex. App.-Fort Worth, Dec. 31, 2019) stating in relevant part:

We begin by considering Appellees’ argument that we do not have jurisdiction over Nicholson’s first issue.

See In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam).

They argue that this court should dismiss Nicholson’s first issue “in which she attempts to challenge the [summary judgment orders],”

…….

Nicholson’s notice of appeal invoked this court’s jurisdiction over Appellees,

We have jurisdiction over both of Nicholson’s issues.ROA.125

F.                Nicholson had a substantial right to collaterally attack the intermediate appellate court’s void judgment for lack of subject matter jurisdiction in the federal district court.4

The Texas Constitution afforded Nicholson no right to appeal the Second Court of Appeals’ void judgment to the Supreme Court; review by the Supreme Court is a matter of discretion.

A petition for review is the first step in an appeal to the Supreme Court, and consists of a party’s request to the court to select his or her case for consideration.

Indus. Specialists, LLC v. Blanchard Ref. Co. LLC, 652 S.W.3d 11, 16 ](Tex. 2022)

(Whether to grant review is a matter of judicial discretion.”);

TEX. R. APP. P. 56.1

As for how the supreme decides whether to grant or deny petitions for review, Justice Lehrmann emphasized that the supreme court is not a court of error correction.

The fact that the trial court or the court of appeals made an error (even an egregious one) is simply not a basis for the supreme court to grant review.

See How the Texas Supreme Court Decides to Grant or Deny Review (appeal.pro)5

The Rooker-Feldman doctrine applies only to “final judgment[s] rendered by a state’s court of last resort.”

Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 384 (5th Cir. 2017) (quoting Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 390 (5th Cir. 2012)).

[I]n light of the `narrow ground’ Rooker-Feldman occupies,” however, “[the doctrine] does not prohibit a plaintiff from `presenting some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which [the plaintiff] was a party.'”

Burciaga v. Deutsche Bank Nat’l Tr. Co., 871 F.3d 380, 385 (5th Cir. 2017) quoting Truong, 717 F.3d at 8382 (alteration omitted) (quoting Exxon, 544 U.S. at 284, 293, 125 S.Ct. 1517).

For example, “Rooker- Feldman does not preclude review of void state court judgments.” Id. (citations omitted);

see Rooker v. Fidelity Tr. Co., 263 U.S. 413, 415 (1923)

Under Texas law (which governs whether Texas judgments are subject to collateral att2ack in federal court) “a judgment is void and subject to collateral attack only where it was rendered without `jurisdictional power’ in the sense of lack of subject matter jurisdiction.”

NUNU v. Texas, No. 21-20446, Summary Calendar (5th Cir. Mar. 17, 2022) quoting United States v. Shepherd, 23 F.3d 923, 925 (5th Cir. 1994)),

“Both Texas and federal authorities recognize that only void judgments may be collaterally attacked6, and that only judgments which show a jurisdictional defect on the face of the record are classified as void judgments.”

Little v. Celebrezze, 259 F.Supp. 9, 11 (N.D.Tex.1966);

In re Altman Nursing, 299 B.R. 813, 820 (Bankr.N.D.Tex.2003) citing Gober v. Terra Corporation, 100 F.3d 1195, 1202 (5th Cir.1996) (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985)).

State law governs a collateral attack on a state-court judgment. JB MORTGAGE COMPANY, LLC v. LORDEN, No. 17-50966 (5th Cir. Nov. 12, 22018).

In Texas, a judgment is void when an action violates the Texas constitution and the rendering court “had no jurisdiction of the parties, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court.”

Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985);

see In re Altman Nursing, 299 B.R. 813, 820 (Bankr.N.D.Tex.2003).

Other Texas authority takes the narrower view that only lack of subject matter jurisdiction renders one void.

See Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985);

McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961);

Cook v. Cameron, 733 S.W.2d 137, 140 (Tex.1987);

Nguyen v. Intertex, 93 S.W.3d 288, 294-95 & n. 3 (Tex.App.2002).

A void judgment is a legal nullity.

See Black’s Law Dictionary 1822 (3d ed.1933);

see also id., at 1709 (9th ed.2009) United Student Aid Funds, Inc. v. Espinosa, U.S., 130 S.Ct. 1367, 1377 (2010)

G.               The federal district court must review the state court record to determine if the judgment is void or not; and must set aside a void judgment.

If a court lacks subject matter jurisdiction, the judgment is void and the district court must set it aside.” Recreational Props., Inc. v. Sw. Mortg. Serv. Corp., 804 F.2d 311, 314 (5th Cir.1986). The district court has no discretion — the judgment is either void or it is not. Id

H.               Whether Nicholson was judicially estopped from collaterally attacking the Second Court of Appeals void judgment for lack of subject matter jurisdiction in the federal district court?

The court erred in concluding Nicholson was judicially estopped from challenging the Second Court of Appeals subject matter jurisdiction because the Defendants were unsuccessful in their endeavor to convince the Texas intermediate appellate court it lacked jurisdiction. ROA.849

Assuming arguendo, the Court lacked subject matter jurisdiction as the basis for dismissal, this would be nothing more than an advisory opinion.

Regarding subject matter jurisdiction, “the consent of the parties is irrelevant [and] principles of estoppel do not apply.”

Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 (1982)

Subject-matter jurisdiction may not be conferred on the basis for judicial estoppel, because such [doctrine] cannot create subject-matter jurisdiction where it does not otherwise exist.

See In re Crawford & Co., 458 S.W.3d 920, 928 n.7 (Tex. 2015) (per curiam) (orig. proceeding)

(noting judicial estoppel cannot create subject-matter jurisdiction)

Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001)

(“As a general rule, a court cannot acquire subject-matter jurisdiction by estoppel.”);

Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex.2000)

(“[S]ubject-matter jurisdiction is a power that `exists by operation of law only, and cannot be conferred upon any court by consent or waiver’….. “)

(quoting Federal Underwriters Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (1943)).

XI.       CONCLUSION

In this appeal, there are basically no disputed facts.

The face of the record affirmatively and conclusively proves the intermediate appellate court lacked subject-matter jurisdiction over non-appealable interlocutory orders resulting in a void judgment.

The district court erred by dismissing this action because the Rooker-Feldman doctrine did not preclude Nicholson collaterally attacking a void judgment of the Texas intermediate court for lack of subject matter jurisdiction.

Under Texas law (which governs whether Texas judgments are subject to collateral attack in federal court) “a judgment is void and subject to collateral attack only where it was rendered without `jurisdictional power’ in the sense of lack of subject matter jurisdiction.”

NUNU v. Texas, No. 21-20446, Summary Calendar (5th Cir. Mar. 17, 2022) quoting United States v. Shepherd, 23 F.3d 923, 925 (5th Cir. 1994))

The district court committed multiple errors of law and fact to expand the Rooker-Feldman doctrine far beyond its narrow contours.

Thus, because Nichoson’s federal independent equitable action did not seek the district court to sit an appellate review of a final state court judgment, the district court had jurisdiction and a duty to review the face of the record to determine if the Second Court of Appeals December 31, 2019 judgment was void for lack of subject mater jurisdiction and set it aside.

WHEREFORE, Nicholson respectfully requests that the Court reverse the district court’s judgment; render judgment and declare the Second Court of Appeals judgment is void for lack of subject matter and set aside; and award Nicholson court costs, and all other and further relief to which she may be entitled.

Respectfully submitted,

4 “A substantial right is affected if the order affects the subject matter of the litigation”,

SeeJarrett v. Eichler, 244 Neb. 310, 311 (Neb. 1993)

5 See website How the Texas Supreme Court Decides to Grant or Deny Review (appeal.pro), last visited February 19, 2023.

6 Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex.1994) quoting Fleming v. Seeligson, 57 Tex. 524, 531 (1882)

(stating that the only issue in a collateral attack is whether the underlying judgment is void).

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