In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00325-CV

___________________________

On Appeal from the 17th District Court

Tarrant County, Texas

Trial Court No. 017-291827-17

Before Kerr, Birdwell, and Bassel, JJ.

Memorandum Opinion by Justice Birdwell

MARLENE W. MITCHELL, Appellant

V.

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
2

MEMORANDUM OPINION

This 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.

Background

Mitchell’s 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 relief.

On June 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 
3

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).

In 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 Mitchell’s claims.

Standard of Review

We 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, 
4

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).

Mitchell’s Claims Barred by Res Judicata

In her 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 

evidence1 and that res judicata does not apply.

2 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).

Res 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, 

 1

The majority of her argument relates to the no-evidence motion, but she also 

argues that summary judgment was improper on res judicata grounds.

2

Arguably, Mitchell failed to adequately brief her res judicata complaint for 

failure to cite authority. See Tex. R. App. P. 38.1(i). We nevertheless address the 

argument because Mitchell clearly raises it as a ground for reversal. See Perry v. Cohen, 

272 S.W.3d 585, 587–88 (Tex. 2008).
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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.

We must 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 the 
6

dismissed proceeding); Matlock Realty Enter., Inc. v. Crown Fin., LLC, No. 02-15-00189-

CV, 2016 WL 438381, at *4 (Tex. App.—Fort Worth Feb. 4, 2016, no pet.) (mem. 

op.) (noting that it is well settled in the Fifth Circuit that a dismissal with prejudice, 

including in a bankruptcy proceeding, is a final judgment on the merits for res judicata 

purposes).

Mitchell contends that the bankruptcy court never adjudicated her 17th District 

Court claim that Wilmington lacked standing to file the 2016 judicial foreclosure suit. 

But she raised those complaints in the adversary proceeding, seeking to have the 

foreclosure sale declared void because “neither the original mortgagee, subsequent 

holders of the note or Deed of Trust, their trustees or any successor trustees held a 

beneficial interest under the deed of trust.” And even if her 17th District Court title 

and wrongful foreclosure complaints based on a lack of standing are not identical to 

the standing complaints she raised in the adversary proceeding,

3 they are similar 

enough that she could have raised them in the adversary proceeding; Mitchell’s goal in 

both the adversary proceeding and this suit was the same: to have the 2016 judicial 

foreclosure order and sale declared void. See Petro-Hunt, L.L.C. v. United States, 365 

F.3d 385, 395–96 (5th Cir. 2004) (explaining that Fifth Circuit has adopted 

transactional test for determining whether claims are the same for res judicata 

 3

In a first amended petition in the 17th District Court, Mitchell more expressly 

argued that in the 2016 foreclosure suit, Wilmington failed to provide sufficient 

evidence of all of the transfers by which it had obtained its interest in the debt; thus, it 

had failed to show standing.
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purposes, under which the critical question is whether the claims arise from the same 

nucleus of operative facts).

Finally, the bankruptcy court had jurisdiction to adjudicate Mitchell’s adversary 

proceeding claims. See 11 U.S.C.A. § 541, 28 U.S.C.A. §§ 157(b)(1), (2)(E), 1334;

Matlock v. Lomas Mortg. U.S.A., Inc. (In re Matlock), 154 B.R. 721, 721–22 (Bankr. E.D. 

Ark. 1993); cf. Ger. Am. Capital Corp. v. Oxley Dev. Co. (In re Oxley Dev. Co.), 493 B.R. 

275, 283–84, 286–87 (Bankr. N.D. Ga. 2013) (holding that creditor’s suit to quiet title 

and declare foreclosure valid was a core proceeding over which bankruptcy court had 

jurisdiction even if bankruptcy court would have to refer to state law to determine at 

least part of claim).

Accordingly, we hold (1) that Wilmington conclusively proved that the 

dismissal of Mitchell’s bankruptcy adversary proceeding with prejudice was a final 

judgment adjudicating Mitchell’s claims in this suit for res judicata purposes and, 

therefore, (2) that the 17th District Court did not err by granting Wilmington’s 

traditional summary judgment. We overrule Mitchell’s first issue. Because her second 

issue challenges the trial court’s decision to exclude her evidence that is unrelated to 

Wilmington’s affirmative defense––and thus could not raise a fact issue defeating 

Wilmington’s proof––we need not address the issue. See Tex. R. App. P. 47.1.
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Conclusion

Having overruled Mitchell’s dispositive issue, we affirm the trial court’s 

judgment. We also deny any pending motions in this court.

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: May 2, 2019