Court of Appeals of Texas, Second District, Fort Worth
Marlene W. Mitchell, Appellant
Wilmington Savings Fund Society, FSB d/b/a Christiana Trust as Trustee of the American Mortgage Investment Partners Fund I Trust and Wilmington Savings Fund Society, FSB d/b/a Christiana Trust as Owner Trustee of the Residential Credit Opportunities Trust III, Appellee
Appeal from the 17th District Court Tarrant County, Texas
Trial Court No. 017-291827-17
Kerr, Birdwell, and Bassel, JJ.
appeal is from the trial court's final summary judgment
for Wilmington Savings Fund Society, in its trustee capacity,
in Marlene Mitchell's second suit attempting to challenge
the judicial foreclosure sale of her residence. Because her
second suit is barred by res judicata, we affirm.
home was sold in September 2016 pursuant to a judicial
foreclosure order. See Mitchell v. Wilmington Sav. Funds
Soc., FSB, No. 02-18-00089-CV, 2019 WL 150262, at *1
(Tex. App.--Fort Worth Jan. 10, 2019, no pet.) (mem. op.).
After the buyer filed a forcible detainer suit, Mitchell
filed two bankruptcy petitions in federal court. Id.
After dismissal of the first bankruptcy petition, Mitchell
filed an adversary proceeding in the second bankruptcy
against Wilmington in its trustee capacities, bringing claims
for wrongful foreclosure, for injunctive relief, and to quiet
title. A little over a week later, Mitchell filed this suit
in the 17th District Court, bringing claims to quiet title,
for relief from wrongful foreclosure, and for injunctive
13, 2017, Mitchell filed a Joint Stipulation of Dismissal
With Prejudice of the adversary proceeding in the bankruptcy
court. In that filing, Mitchell agreed that she "no
longer wishe[d] to pursue the claims she . . . asserted in
[the] adversary proceeding," and, in agreement with
Wilmington, she sought dismissal of "all of her claims
in [the] adversary proceeding" with prejudice. This
effected a dismissal of the proceeding with prejudice.
See Fed. R. Civ. P. 41(a)(1)(A)(ii); Fed.R.Bankr.P.
7041; McVay v. Perez (In re Perez), 411 B.R. 386,
397 (Bankr. D. Colo. 2009).
February 2018, the county court at law rendered a judgment of
possession for Wilmington in the forcible detainer case;
Mitchell appealed that judgment, which this court affirmed
and which is now final. See Mitchell, 2019 WL
150262, at *4. Meanwhile, Wilmington filed a traditional and
no-evidence motion for summary judgment in the 17th District
Court case, arguing in part that res judicata applied to bar
Mitchell's claims against it because they had already
been resolved in the bankruptcy adversary proceeding. The
trial court granted Wilmington's traditional motion and
rendered a final, take-nothing judgment on all of
review a summary judgment de novo. Travelers Ins. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider
the evidence presented in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary
to the nonmovant unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable
inference and resolve any doubts in the nonmovant's
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399
(Tex. 2008). A defendant is entitled to summary judgment on
an affirmative defense if the defendant conclusively proves
all elements of that defense. Frost Nat'l Bank v.
Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010);
see Tex. R. Civ. P. 166a(b), (c). To accomplish
this, the defendant must present summary-judgment evidence
that conclusively establishes each element of the affirmative
defense as a matter of law. See Chau v. Riddle, 254
S.W.3d 453, 455 (Tex. 2008).
Claims Barred by Res Judicata
first issue, Mitchell claims the trial court erred by
granting summary judgment for Wilmington, claiming in part
that the trial court refused to hear critical
evidence and that res judicata does not
apply. The trial court did not specify in its
order whether it granted summary judgment on traditional or
no-evidence grounds. Because our review of the traditional
grounds makes a review of Mitchell's second issue
regarding evidentiary exclusion unnecessary, we consider the
propriety of granting the traditional motion first. See
Reynolds v. Murphy, 188 S.W.3d 252, 258 (Tex. App.--Fort
Worth 2006, pet. denied) (op. on reh'g).
judicata bars litigation of a second suit when (1) a court of
competent jurisdiction has rendered a prior final judgment on
the merits, (2) the prior suit involved the same parties or
those in privity with them, and (3) the second suit's
claims are the same as those raised in the prior suit or the
claims in the second suit could have been raised in the first
suit. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644,
652 (Tex. 1996); New Talk, Inc. v. Sw. Bell Tel.
Co., 520 S.W.3d 637, 645 (Tex. App.- Fort Worth 2017, no
pet.). Mitchell does not dispute that the parties in the
adversary proceeding were the same, but she does contend that
the bankruptcy court did not adjudicate the complaints she
raised in the 17th District Court.
look to federal law to determine whether the disposition of
Mitchell's claims in the second bankruptcy proceeding
bars this state-court suit. See San Antonio ISD v.
McKinney, 936 S.W.2d 279, 281 (Tex. 1996); Hill v.
Fed. Nat'l Mortg. Ass'n, No. 14-15-00388-CV,
2016 WL 1660392, at *2 (Tex. App.-Houston [14th Dist.] Apr.
26, 2016, no pet.) (mem. op.); see also, e.g.,
Aerojet-Gen. Corp. v. Askew, 511 F.2d 710, 715 (5th
Cir. 1975) (explaining reasons for applying federal res
judicata law when federal judgment was rendered first);
cf. Ellis v. Amex Life Ins. Co., 211 F.3d 935,
937-38 (5th Cir. 2000) (holding that when two cases are
pending, first-rendered judgment is entitled to preclusive
effect even if suit in which second judgment was rendered was
filed first). Under federal law, a dismissal or nonsuit with
prejudice is "tantamount to a judgment on the
merits" for res judicata purposes because it "works
a permanent, inalterable change in the parties' legal
relationship to the defendant's benefit: the defendant
can never again be sued by the plaintiff or its privies for
claims arising out of the same subject matter." Epps
v. Fowler, 351 S.W.3d 862, 868-69 (Tex. 2011) (citing
Dean v. Riser, 240 F.3d 505, 509 (5th Cir. 2001));
see, e.g., Matter of W. Tex. Mktg. Corp.,
12 F.3d 497, 501 (5th Cir. 1994) (noting that parties'
filing of stipulations of dismissal in bankruptcy proceeding
barred relitigation of any of the issues raised in ...