Court of Appeals of Texas, Fourth District, San Antonio
the 225th Judicial District Court, Bexar County, Texas Trial
Court No. 2015-CI-16953 Honorable Antonia Arteaga, Judge
Sitting: Marialyn Barnard, Justice, Patricia O. Alvarez,
Justice, Irene Rios, Justice.
MARIALYN BARNARD, JUSTICE.
Cynthia Raddatz, Vernon Rocchi, and Grant Rocchi appeal the
trial court's order granting a motion for summary
judgment filed by Gem Rental Properties, LLC and Gem Rentals,
LLC. The order dismisses appellants' claims based on the
doctrine of res judicata. The appellants contend the trial
court erred in granting the summary judgment because: (1) the
defendants in appellants' first lawsuit are different
than the defendants in the underlying lawsuit; (2) any claim
that the defendants are the same is barred by the legal
doctrine of collateral estoppel; and (3) the assertion of res
judicata as an affirmative defense is barred by the doctrine
of judicial estoppel. We affirm the trial court's
December of 2012, Gem Rental Properties LLC conveyed the
property located at 722 E. Drexel in San Antonio, Texas (the
"Property") to Vernon C. Rocchi and Cynthia J.
Raddatz as husband and wife. The deed was executed by Jim
Glasgow as legal representative of Gem Rental Properties,
LLC. In connection with the conveyance, Rocchi and Raddatz
executed a deed of trust and a mortgage agreement agreeing to
make monthly payments on the $20, 000 Gem Rental Properties,
LLC lent Rocchi and Raddatz to purchase the Property.
January 5, 2015, Rocchi and Raddatz filed an original
petition against "JIM GLASGOW, INDIVIDUALLY and D/B/A
GEM PROPERTIES" seeking injunctive relief and a
restraining order to prevent "GLASGOW-GEM" from
foreclosing on the Property. The petition alleged
"GLASGOW-GEM" "had not been accepting or
claiming the payments [Rocchi and Raddatz] tendered" by
certified mail, return receipt requested.
March 18, 2015, an original answer was filed identifying
Glasgow, individually, and Gem Properties, L.L.C. as the
defendants answering the lawsuit. The answer explained that
Gem Rentals, L.L.C. is a Texas limited liability company, and
the business with Rocchi and Raddatz "was transacted and
conducted by Gem Rentals, L.L.C." The answer further asserted the petition
contained a defect because Glasgow "never committed any
act in his own name such as to incur personal
liability." Therefore, Glasgow asserted he was not
liable in the capacity in which he was sued.
answer also asserted the affirmative defenses of laches and
estoppel, contending "Defendants would show that GEM
RENTALS, L.L.C. has already foreclosed upon the property
indefinitely referred to in Plaintiffs' pleadings, and
that it is too late for this Court to enjoin a foreclosure
that has already occurred. Having failed to timely present
their request for injunctive relief to this Court, Plaintiffs
are now estopped from raising this claim."
29, 2015, the trial court granted a motion to dismiss
Rocchi's and Raddatz's cause of action with
prejudice. In the order, the trial court found Glasgow was
not liable in the capacity in which he was sued. The trial
court also found "no such entity as GEM PROPERTIES
exists, nor is GEM PROPERTIES the same entity as Gem Rentals,
L.L.C." Finally, the trial court found Rocchi and
Raddatz "failed to timely bring their cause of
action" and "their claim is subject to the defense
of laches." The trial court dismissed the claim with
prejudice concluding "it is now too late to obtain the
relief sought by Plaintiffs." Rocchi and Raddatz did not
appeal the trial court's order.
October 6, 2015, the appellants filed the underlying lawsuit
against Gem Rental Properties, LLC and Gem Rentals, LLC
(collectively "Gem Rentals") asserting various
wrongful foreclosure claims. Gem Rentals moved for summary
judgment based on the affirmative defense of res judicata,
and the trial court granted the motion.
review a trial court's granting of a summary judgment de
novo. Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005). To prevail on a traditional motion for
summary judgment, the movant must show "there is no
genuine issue as to any material fact and the [movant] is
entitled to judgment as a matter of law." Tex.R.Civ.P.
166a(c); see also Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 846 (Tex. 2005). In reviewing a
summary judgment, we take as true all evidence favorable to
the non-movant, indulging every reasonable inference and
resolving any doubts in the non-movant's favor. Joe
v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157