AFFIRMED and Opinion Filed August 15, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-22-00403-CV 

KOKB MEDICAL PROPERTIES, LLC, SULLIVAN R. BRYANT, AND 

FINCH CLINIC, PLLC, Appellants 

V. 

DTC PARTNERS, LLC—SERIES I, A SERIES OF DALLAS TEXAS 

CAPITAL PARTNERS, LLC, Appellee 

On Appeal from the 160th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-19-03360 

MEMORANDUM OPINION 

Before Justices Reichek, Nowell, and Garcia 

Opinion by Justice Reichek 

Following the foreclosure sale of property securing a promissory note, DTC 

Partners, LLC—Series I, A Series of Dallas Texas Capital Partners, LLC brought a 

deficiency action against KOKB Medical Properties, LLC and Sullivan R. Bryant. 

DTC also alleged KOKB, Bryant, and Finch Clinic, PLLC fraudulently transferred 

real property with intent to defraud DTC. The trial court granted summary judgment 

for DTC on its claims and against KOKB and Bryant on counterclaims they brought 
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against DTC. KOKB, Bryant, and Finch Clinic challenge the trial court’s summary 

judgment in five issues. We affirm. 

BACKGROUND

 On November 30, 2001, KOKB executed a promissory note in the amount of 

$204,750 in favor of InterBay Funding, LLC to purchase nine separate parcels of 

land. The note was secured by a deed of trust on the nine properties. 

 In 2006, KOKB refinanced the loan with InterBay. On February 17, 2006, 

KOKB entered into a new promissory note in the amount of $263,250, and funds 

from that note were used to pay off the first note. Bryant, KOKB’s sole managing 

member, signed a guaranty and guaranteed repayment of the second note. The 

second note was secured by a deed of trust granting a lien on two parcels of real 

property in Dallas, 3534 N. Hampton Road and 3538 N. Hampton Road (“the 

Hampton properties”). The Hampton properties were two of the nine parcels that 

secured the first note. KOKB and Bryant would later contend the second note was 

supposed to have been secured by all nine properties that had secured the first note. 

 In August 2006, InterBay assigned the second note and deed of trust to 

Bayview Loan Servicing, LLC. Almost five years later, on June 28, 2011, KOKB 

and Bryant entered into a stipulation agreement and a loan adjustment agreement 

with Bayview regarding the second note. The stipulation agreement recited that the 

loan was past due in an amount over $50,000. Bayview agreed to suspend 

foreclosure proceedings if KOKB and Bryant complied with the terms of the 
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stipulation agreement and executed the loan adjustment agreement. The agreements 

modified the balance and the repayment terms of the note. No changes were made 

to the deed of trust. 

 In April 2018, Bayview assigned the second note, which was in default, and 

guaranty to DTC. The two Hampton properties securing the second note were 

scheduled for foreclosure on July 3, 2018. 

A few days before the scheduled foreclosure sale, KOKB and Bryant brought 

suit in the 95th Judicial District Court of Dallas County against DTC to stop the 

foreclosure. KOKB and Bryant admittedly stopped paying on the note years prior 

to get Bayview’s attention over an issue with Bayview’s alleged failure to pay 

property taxes. As alleged in that petition, in 2014, Bryant learned the second note 

was secured by only two of the nine properties that secured the first note. KOKB 

and Bryant alleged that “review of the refinancing closing documents revealed that 

a second page of the property description was missing and did not get filed by 

Bayview.” According to KOKB and Bryant, Bayview assured them it would work 

to “restore a loan” secured by all nine parcels. KOKB and Bryant alleged they relied 

on Bayview’s promises it would adjust the note to correct the problem with the 

collateral. In addition to a claim for injunctive relief to stop the sale, KOKB and 

Bryant asserted a breach of contract claim against DTC. They alleged Bayview and 

InterBay breached the note by failing to review KOKB and Bryant’s request for 
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reinstatement and payment of delinquent taxes. They argued DTC stepped into the 

shoes of Bayview and InterBay. 

DTC moved for summary judgment in the prior suit on grounds it was the 

holder of the note and deed of trust and had authority to foreclose on the property. 

Further, it was undisputed that KOKB and Bryant failed to make payments for years 

and were in default. DTC argued the fact that, although the payment terms of the 

note were modified in 2011 by agreement of the parties, the description of the 

pledged collateral was not modified. On September 22, 2018, the 95th District Court 

granted DTC’s motion and ordered that KOKB and Bryant take nothing on their 

claims against DTC. 

The Hampton properties were then scheduled for foreclosure on November 6, 

2018. Thereafter KOKB filed for bankruptcy. DTC asked the bankruptcy court for 

relief from the automatic stay as to the Hampton properties so it could proceed with 

foreclosure. On January 3, 2019, the bankruptcy court granted DTC’s motion and 

lifted the automatic stay with respect to the Hampton properties. 

The two Hampton properties were sold at a foreclosure sale on March 5, 2019. 

DTC purchased the properties for $250,000. 

On March 7, 2019, DTC filed the instant suit against KOKB and Bryant, 

alleging that after the proceeds of the sale were applied to KOKB’s balance, 

$464,966.59 was still owed on the second note. DTC later amended its pleadings to 

add defendants My Mail Center LC, John W. Dodd, and appellee Finch Clinic, 
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PLLC. DTC added new claims involving the allegedly fraudulent transfer of real 

property among these parties. 

The fraudulent transfer claims involve the following facts. On May 1, 2017, 

KOKB executed a deed of trust that gave “My Medical Center, LC” a security 

interest in many of KOKB’s properties, including the two Hampton properties. That 

deed of trust secured a $100,000 loan My Medical Center made to KOKB. Bryant 

says he believed the second note had been written off at that point and he intended 

to give My Medical Center a first priority lien for the properties. Apparently “My 

Medical Center” is actually “My Mail Center.” Dodd, sole owner of My Mail and 

Bryant’s long-time accountant, is listed as the trustee on the deed of trust between 

KOKB and My Medical Center. Dodd admitted in his deposition that the name My 

Medical Center was “inadvertently used” and was a mistake. 

Almost two years later, on February 1, 2019, ahead of the foreclosure sale of 

the Hampton properties scheduled for March 5, KOKB executed a General Warranty 

Deed to My Mail. For “[c]ash and other good and valuable consideration,” KOKB 

transferred seven Dallas properties to My Mail. The two Hampton properties were 

not part of the transfer. KOKB later transferred a Hunt County property to My Mail. 

There was another transfer of property while the deficiency suit was pending. 

On September 14, 2020, My Mail transferred five properties to appellee Finch Clinic 

in a Special Warranty Deed. Three of the properties were among those transferred 

from KOKB to My Mail in February 2019. The other two were the Hampton 
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properties. Finch Clinic’s only manager is Bryant. The Special Warranty Deed 

indicates the consideration for the transfer was $20.00 and “other good and valuable 

Consideration.” 

DTC’s live pleading asserted claims for violations of the Texas Uniform 

Fraudulent Transfer Act (“TUFTA”) based on KOKB’s conveyance of eight 

properties to My Mail and based on My Mail’s conveyance of five properties to 

Finch Clinic. DTC alleged the properties were transferred with intent to hinder, 

delay, and defraud KOKB and Bryant’s creditors, including DTC. It also sought to 

quiet its title to the two Hampton properties. DTC alleged its title to those properties 

was superior to Finch Clinic’s claim to those properties under the Special Warranty 

Deed. DTC also sought exemplary damages under a slander-of-title theory and an 

injunction prohibiting the defendants from transferring the properties, entering the 

Hampton properties, and advertising the properties for sale.1

 

 KOKB and Bryant filed counterclaims against DTC for wrongful foreclosure, 

breach of contract, conversion, and violations of the Texas Theft Liability Act. They 

alleged InterBay refused to accept payments on the second note until the collateral 

issue was resolved. InterBay told Bryant it would take care of the delinquent taxes 

if he and KOKB would execute a new note and deed of trust with all nine properties 

1 DTC’s live pleading added another defendant, Guel Family Builders, Inc. DTC alleged four 

of the properties fraudulently transferred to My Mail/Dodd were later fraudulently transferred to 

Guel. After Guel asserted a bona fide purchaser defense, DTC nonsuited its claims against Guel. 
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as collateral. Bryant agreed and waited for InterBay to provide new documents. 

Years passed, but InterBay had not drafted new documents and refused to accept 

payments on the note. After the second note was assigned to Bayview, Bryant 

informed Bayview of the situation and Bayview said the second note would be 

written off.2

 Thereafter, Bayview assigned the second note to DTC. 

 KOKB and Bryant alleged DTC had no legal authority to foreclose on the 

Hampton properties because DTC had assumed a cancelled note, as Bayview told 

Bryant the second note had been written off. They alleged DTC breached the 

contract it allegedly assumed when DTC claimed the second note was in default and 

foreclosed. KOKB and Bryant alleged they were ready and willing to perform the 

second note, but Bayview refused to accept payment until the collateral mistake was 

corrected. For the same reasons, KOKB and Bryant asserted DTC wrongfully 

converted the Hampton properties used as collateral in the second note. Finally, 

KOKB and Bryant alleged DTC’s wrongful foreclosure constituted a violation of 

2 KOKB and Bryant’s Original Counterclaim mistakenly asserts that InterBay assigned the 

second note to Bayview in 2009. The undisputed evidence shows InterBay assigned the second 

note and deed of trust to Bayview in August 2006, just a few months after the original loan was 

refinanced. Apparently because of confusion over the timing of that assignment, KOKB and 

Bryant alleged in their Original Counterclaim that they brought the collateral issue to InterBay’s

attention and InterBay agreed to execute new documents and refused to accept payments for years. 

Yet later in the pleading, KOKB and Bryant allege it was Bayview that refused to accept their 

payments. This is consistent with their allegations in the prior suit. 
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the Texas Theft Liability Act.3

 See TEX.CIV. PRAC.& REM.CODE ANN. § 134.003(a) 

(person who commits theft is liable for resulting damages). 

 DTC filed a motion for partial summary judgment. It asserted it was entitled 

to summary judgment on all of KOKB and Bryant’s counterclaims on res judicata 

grounds. DTC also asserted that the breach of contract claim was barred by 

limitations. In addition, DTC sought summary judgment on its fraudulent transfer 

claims. DTC argued the record conclusively established that KOKB and My Mail 

violated TUFTA when they made the My Mail and Finch Clinic conveyances. DTC 

asked the trial court to void the My Mail and Finch Clinic conveyances. 

 The trial court granted DTC’s motion for partial summary judgment. It 

ordered that KOKB and Bryant take nothing on their counterclaims against DTC. 

The trial court also voided the conveyances to My Mail and the Finch Clinic. 

 Thereafter, DTC filed a second motion for partial summary judgment. DTC 

sought judgment as a matter of law against KOKB and Bryant for the deficiency on 

the second note. It also moved for summary judgment on its quiet title claim. It 

argued that My Mail’s representation of ownership in the September 14, 2020 

3 KOKB and Bryant also filed a third-party petition against InterBay and Bayview, asserting 

claims for breach of contract, fraud, negligent misrepresentation, breach of fiduciary duty, and 

negligence. InterBay and Bayview moved for summary judgment on grounds the claims against 

them were barred by the res judicata effect of the lawsuit in the 95th District Court, by the statute 

of limitations, and by the economic-loss rule. The trial court granted InterBay and Bayview’s 

motion for summary judgment. KOKB and Bryant do not challenge the summary judgment for 

those parties. 
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Special Warranty Deed and attempted conveyance to Finch Clinic clouded DTC’s 

title to the Hampton properties, which DTC purchased in March 2019 at the 

foreclosure sale. DTC claimed the evidence conclusively established that the cloud 

placed on DTC’s title by the Special Warranty Deed should be cleared. 

 The trial court granted DTC’s second partial motion for summary judgment. 

It awarded judgment for DTC against KOKB and Bryant, jointly and severally, on 

the deficiency in the amount of $771,913.76, plus attorney’s fees, post-judgment 

interest, and court costs. It also declared the September 14, 2020 Special Warranty 

Deed between My Mail and Finch Clinic void to the extent it attempted to convey 

any interest in the two Hampton properties. DTC then nonsuited its claim for 

exemplary damages. 

 In this appeal, KOKB, Bryant, and Finch Clinic contend the trial court erred 

in granting both partial motions for summary judgment. First, KOKB and Bryant 

contend their counterclaims were not barred by res judicata or the statute of 

limitations. Appellants next argue allege that DTC’s TUFTA claims fail. Finally, 

KOKB and Bryant assert the trial court erred in granting the second partial motion 

for summary judgment because the second note was not a valid, enforceable contract 

and because DTC failed to provide a proper accounting for the deficiency. 

FIRST SUMMARY JUDGMENT ORDER

KOKB and Bryant’s Counterclaims
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In their first issue, KOKB and Bryant contend the trial court erred in finding 

that their counterclaims against DTC were barred by res judicata. Res judicata 

requires proof of three elements: (1) a prior final judgment on the merits by a court 

of competent jurisdiction, (2) identity of parties, and (3) a second action based on 

the same claims as were raised or could have been raised in the first action. Rosetta 

Res. Operating, LP v. Martin, 645 S.W.3d 212, 225 (Tex. 2022). KOKB and Bryant 

challenge the third element. They argue their counterclaims could not have been 

brought in their prior lawsuit against DTC in the 95th District Court because the 

claims are based on DTC’s alleged wrongful foreclosure and the foreclosure sale 

took place after the first judgment. 

We review the granting of a motion for summary judgment de novo. 

Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A party moving 

for a traditional summary judgment has the burden of proving that there is no 

genuine issue of material fact and that the movant is entitled to judgment as a matter 

of law. TEX. R. CIV. P. 166a(c). 

Res judicata is the generic term for a group of related concepts concerning the 

conclusive effects given final judgments. Barr v. Resolution Trust Corp., 837 

S.W.2d 627, 628 (Tex. 1992). Texas courts follow the transactional approach to res 

judicata. Id. at 631. Under this approach, the doctrine bars lawsuits that arise out of 

the same subject matter as a prior suit when, with the use of diligence, the subject 

matter could have been litigated in the prior suit. Eagle Oil & Gas Co. v. TRO-X, 
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L.P., 619 S.W.3d 699, 705 (Tex. 2021); Funmilayo v. Velandera Energy Partners 

LLC, No. 05-21-01015-CV, 2023 WL 2472891, at *4 (Tex. App.—Dallas Mar. 13, 

2023, pet. denied) (mem. op.). In determining what constitutes the same subject 

matter, we examine the “factual basis of the claim or claims in the prior litigation” 

and analyze “the factual matters that make up the gist of the complaint, without 

regard to the form of action.” Funmilayo, 2023 WL 2472891, at *4 (quoting Barr, 

837 S.W.2d at 630). The doctrine is necessary to bring an end to litigation, prevent 

vexatious litigation, maintain the stability of court decisions, promote judicial 

economy, and prevent double recovery. Eagle Oil & Gas, 619 S.W.3d at 705; Barr, 

837 S.W.2d at 630. 

In its first motion for partial summary judgment, DTC argued KOKB and 

Bryant’s counterclaims for wrongful foreclosure, breach of contract, conversion, and 

violations of the Texas Theft Liability Act were barred by the res judicata effect of 

the judgment in the suit in the 95th District Court in Dallas County.4

 That prior suit 

was brought against DTC by KOKB and Bryant in June 2018, days before the 

scheduled foreclosure sale of the Hampton properties. KOKB and Bryant sought a 

temporary restraining order prohibiting DTC from going forward with the sale. 

4

 In its appellate brief, DTC argues the bankruptcy court’s decision to lift the stay as to the Hampton 

properties also has a preclusive effect on the counterclaims. DTC contends the bankruptcy court determined 

the validity of the second note when it lifted the stay to allow foreclosure. DTC did not, however, move 

for summary judgment on that ground. Although DTC mentioned the bankruptcy proceeding in its first 

summary judgment motion and attached some bankruptcy documents to the motion, DTC’s res judicata 

argument was based only on the judgment in the 95th District Court. 
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They alleged they had relied on Bayview’s promises to adjust the note to correct the 

problem with the collateral. KOKB and Bryant alleged that Bayview and InterBay 

breached the second note by failing to review KOKB and Bryant’s request for 

reinstatement and payment of delinquent taxes. They argued DTC stepped into the 

shoes of Bayview and InterBay as the breaching party. 

In the prior suit, DTC moved for summary judgment on grounds it was the 

holder of the note and deed of trust and had authority to foreclose on the property. 

It was undisputed that KOKB and Bryant failed to make payments and were in 

default. DTC further argued that any modification to pledge more collateral for the 

second note was required to be in writing and there was none. Instead, the evidence 

showed that KOKB, Bryant, and Bayview agreed to modify the payment terms of 

the second note in 2011, and the description of the pledged collateral was not 

modified. On September 22, 2018, the 95th District Court granted DTC’s motion 

and ordered that KOKB and Bryant take nothing on their claims against DTC. 

In the instant suit, KOKB and Bryant’s counterclaims for wrongful 

foreclosure, breach of contract, conversion, and violations of the Texas Theft 

Liability Act are all based on the premise that there had been a mistake in which 

properties were collateral for the second note and Bayview refused to accept 

payment on the note because it was going to revise the loan documents to correct the 

issue. This is the same set of facts on which KOKB and Bryant sought to avoid 

foreclosure in the first suit. The trial court in the first suit, in granting summary 
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judgment for DTC, already determined these issues adversely to KOKB and Bryant. 

Under the transactional approach, KOKB and Bryant’s claims in the prior lawsuit 

and in this case arise from the same subject matter for purposes of res judicata. See 

Ohio Gravy Biscuit, Inc. v. NRZ Pass-Through Trust X, No. 05-20-00881-CV, 2022 

WL 1164660, at *6 (Tex. App.—Dallas Apr. 20, 2022, no pet.) (mem. op.) (quiet 

title counterclaim was barred by res judicata because it arose out of same transaction 

in prior suit where deed of trust was at issue); McMillan v. Tally Two Inv. Grp., LLC, 

No. 03-20-00452-CV, 2022 WL 319854, at *2 (Tex. App.—Austin Feb. 3, 2022, 

pet. ref’d) (mem. op.) (issue of validity of warranty deed had been finally adjudicated 

and res judicata barred further attempts to invalidate deed). We are not persuaded by 

KOKB and Bryant’s argument that res judicata does not apply because they could 

not have brought a wrongful foreclosure claim prior to foreclosure. The subject 

matter upon which their wrongful foreclosure claim and other claims are premised 

was previously litigated in the 95th District Court. To allow KOKB and Bryant to 

relitigate the issue of the validity of the second note and deed of trust would run 

counter to the principles behind the doctrine of res judicata. We conclude DTC was 

entitled to summary judgment on the counterclaims under the doctrine of res 

judicata. We overrule KOKB and Bryant’s first issue. 

In their second issue, KOKB and Bryant contend the trial court erred in 

granting summary judgment on limitations grounds. Because we have concluded 
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that res judicata barred KOKB and Bryant’s counterclaims, we need not address this 

issue. See TEX. R. APP. P. 47.1. 

Fraudulent Conveyance/TUFTA Claims 

In their third issue, KOKB and Bryant contend the trial court erred in granting 

summary judgment for DTC on its claim that KOKB’s transfer of properties to My 

Mail violated TUFTA. KOKB and Bryant first argue that TUFTA did not apply 

because the transferred properties were not assets as defined by TUFTA. 

TUFTA’s purpose is to prevent debtors from prejudicing creditors by 

improperly moving assets beyond their reach. Janvey v. Golf Channel, Inc., 487 

S.W.3d 560, 566 (Tex. 2016). TUFTA provides that a transfer made by a debtor is 

fraudulent as to a creditor if the debtor made the transfer with actual intent to hinder, 

delay, or defraud any creditor of the debtor. TEX. BUS. & COM. CODE ANN. § 

24.005(a). “Transfer” means every mode of disposing of or parting with an asset or 

interest in an asset. Id. § 24.002(12). “Asset” means property of a debtor, but does 

not include property to the extent it is encumbered by a valid lien. Id. § 24.002(2). 

The value of property in excess of a lien encumbering it is an “asset” under TUFTA. 

See Telephone Equip. Network, Inc. v. TA/Westchase Place, Ltd., 80 S.W.3d 601, 

610 n.6 (Tex. App.—Houston [1st Dist.] 2002, no pet.). 
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In their opening brief, KOKB and Bryant asserted that the properties at issue 

were not assets under TUFTA because they were encumbered by a valid lien. They 

refer to the May 1, 2017 deed of trust executed in favor of “My Medical Center.” 

In their reply brief, KOKB and Bryant acknowledge that any equity in the property 

above the amount of the lien would be an asset under TUFTA. They also 

acknowledge that the properties’ equity exceeds the amount of the $100,000 lien. 

Although the parties disagree about the amount of equity, the properties meet the 

definition of “asset” and TUFTA applies. 

KOKB and Bryant’s other arguments under this issue involve evidence of the 

intent to defraud. In determining actual intent under § 24.005(a)(1), TUFTA 

provides a list of eleven, nonexclusive indicia of fraudulent intent. Janvey, 487 

S.W.3d at 566; see TEX. BUS. & COM. CODE ANN. § 24.005(b). Evidence of a single 

“badge of fraud” does not conclusively demonstrate intent, but a confluence of 

several presents a strong case of fraud. Janvey, 487 S.W.3d at 566–67. 

KOKB and Bryant say DTC relied on just three of the eleven factors in § 

24.005(b) to show fraudulent intent: (1) the transfer was to an insider (My Mail), (2) 

the value of the consideration received by KOKB was less than reasonable value of 

the assets transferred, and (3) KOKB was insolvent or became insolvent shortly after 

the transfer was made. See TEX. BUS. & COM. CODE ANN. § 24.005(b) (1), (8) & (9). 

KOKB challenges the evidence to support these three factors. It argues My Mail 
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was not an insider of KOKB, the properties were transferred for a reasonably 

equivalent value, and KOKB and Bryant were not insolvent at the time of transfer. 

In fact, DTC argued in its summary judgment motion that seven of the factors 

in § 24.005(b) showed intent to defraud. In addition to the three already mentioned, 

DTC asserted that (1) KOKB and Bryant retained control of the transferred 

properties after the transfer; (2) they were aware of the imminent deficiency suit at 

the time of the transfers, (3) the My Mail conveyances were for substantially all of 

KOKB’s assets, and (4) KOKB transferred all of its property to My Mail, an alleged 

lienor, who transferred much of the properties to Finch Clinic, an insider. See id. § 

24.005(b) (2), (4), (5) & (11). By failing to challenge these factors upon which DTC 

relied to show it was entitled to summary judgment, KOKB and Bryant have failed 

to negate all possible grounds for summary judgment. See Jarvis v. Rocanville 

Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied). DTC was not 

required to produce evidence of all eleven factors to show intent. The trial court 

could have determined that the four unchallenged factors alone supported a 

conclusion that KOKB acted with intent to defraud. See Tidwell v. Roberson, No. 

14-16-00170-CV, 2017 WL 3612043, at *3–4 (Tex. App.—Houston [14th Dist.] 

Aug. 22, 2017, pet. denied) (mem. op.) (upholding summary judgment on fraudulent 

transfer claim where plaintiffs presented evidence of three badges of fraud). By 

failing to challenge all factors relevant in this case to the intent to defraud, KOKB 
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and Bryant cannot demonstrate that summary judgment on DTC’s TUFTA claim 

was improper. 

Further, the evidence conclusively established that My Mail was an insider, 

another “badge of fraud.” KOKB and Bryant argue Dodd, My Mail’s sole owner, 

does not meet the TUFTA definition of an insider or otherwise qualify as one. If the 

debtor is a corporation, the term “insider” includes: the director of the debtor, an 

officer of the debtor, a person in control of the debtor, a partnership in which the 

debtor is a general partner, a general partner in a partnership in which the debtor is 

a general partner, or a relative of a general partner, director, officer, or person in 

control of the debtor. TEX. BUS. & COM. CODE ANN. § 24.002(7)(B). The TUFTA 

definition of “insider” does not limit an insider to the listed descriptions. Putman, 

M.D.P.A. Money Purchase Pension Plan v. Stephenson, 805 S.W.2d 16, 18–19 (Tex. 

App.—Dallas 1991, no writ). Here, Dodd was Bryant’s accountant of more than 

forty years. Dodd stated in his deposition that he and Bryant had been friends and 

business associates since the 1970s. DTC’s evidence showed that Dodd allowed 

Bryant to control the properties after the transfer. Further, after KOKB transferred 

property to My Mail, My Mail conveyed some of them back to Bryant via the Finch 

Clinic for just $20. The evidence establishes Dodd’s insider status and that status, 

coupled with the badges of fraud KOKB and Bryant do not challenge, is more than 

sufficient to conclusively establish actual intent to defraud. We overrule the third 

issue. 
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SECOND SUMMARY JUDGMENT ORDER

 KOKB and Bryant’s remaining issues involve the summary judgment for 

DTC on its deficiency claim. In their fourth issue, KOKB and Bryant argue the 

second note was not a valid, enforceable contract. They argue that a mutual mistake 

about the collateral for the note prevented the meeting of the minds necessary for 

contract formation. Alternatively, they argue that if the contract was valid, there was 

a prior material breach when Bayview refused to accept their payments. 

 DTC contends KOKB and Bryant waived these arguments. DTC argues 

KOKB and Bryant failed to plead mutual mistake or prior material breach as 

affirmative defenses and also failed to argue prior material breach in their response 

to DTC’s summary judgment motion. DTC is correct that KOKB and Bryant did 

not plead the affirmative defense of prior material breach or argue it in their 

summary judgment response. Although KOKB and Bryant assert otherwise, they 

have not included any record references in support of their assertion. An affirmative 

defense not raised in a responsive pleading is waived, and issues that are not 

expressly presented to the trial court by written motion, answer, or response will not 

serve as grounds for reversal of a summary judgment on appeal. Roark v. Stallworth 

Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); Parks v. Developers Sur. & 

Indem. Co., 302 S.W.3d 920, 924 (Tex. App.—Dallas 2010, no pet.). The issue of 

prior material breach has been waived. 
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Although KOKB and Bryant also did not raise mutual mistake in their 

answers, it appears the defense was tried by consent. See Purser v. Coralli, No. 05-

15-00359-CV, 2016 WL 6087675, at *3 (Tex. App.—Dallas Oct. 18, 2016, no pet.) 

(mem. op.) (in summary judgment context, affirmative defense is tried by consent if 

nonmovant expressly raises defense in its response, and movant responds to defense 

on merits without objecting). KOKB and Bryant argued mutual mistake in their 

summary judgment response. DTC did not argue waiver in its reply. It instead 

briefly addressed the issue in a footnote. 

In their summary judgment response, KOKB and Bryant argued both no 

meeting of the minds and mutual mistake in the same section. In the footnote in its 

reply, DTC argued the trial court should not consider a “meeting-of-the-minds 

argument” because it was “another means to make the same [tired] argument.” DTC 

went on to argue, “Without ambiguity from the Note’s terms, and no evidence 

supporting a mutual mistake, KOKB Defendants’ allegation that the Note was 

cancelled is irrelevant.” It is possible the trial court interpreted DTC’s argument to 

be that the issue of mutual mistake had been previously litigated and that it agreed 

with that position. Because DTC’s arguments on mutual mistake were not fleshed 

out in the trial court, however, out of an abundance of caution we will address KOKB 

and Bryant’s argument that fact issues exist regarding mutual mistake. We are aware 

that consideration of this issue is inconsistent with the determination the 
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counterclaims were barred by res judicata because KOKB and Bryant had the 

opportunity to litigate the allegedly mistaken collateral in the prior suit. 

We further note that KOKB and Bryant do not contend the Hampton 

properties were not supposed to be collateral for the second note. Rather, they seek 

to avoid the note because those properties—plus additional properties—were to be 

collateral for the note. It is incongruous for KOKB and Bryant to be seeking to avoid 

an agreement due to an alleged mistake that they benefitted from. 

A mutual mistake of fact occurs when the parties to an agreement have a 

common intention but the written contract does not reflect the intention of the parties 

due to a mutual mistake. Smith-Gilbard v. Perry, 332 S.W.3d 709, 713 (Tex. App.—

Dallas 2011, no pet.). When a party alleges that an agreement does not express the 

real intentions of the parties by reason of mutual mistake, extrinsic evidence is 

admissible to show the real agreement. Id. To prove a mutual mistake, the evidence 

must show that both parties were acting under the same misunderstanding of the 

same material fact. Id. The party seeking relief from a mutual mistake must prove 

what the true agreement was and also that the provisions of the writing that differ 

from the true agreement made were placed in the instrument by mutual mistake. 

Estes v. Republic Nat’l Bank of Dallas, 462 S.W.2d 273, 275 (Tex. 1970); SmithGilbard, 332 S.W.3d at 714. Claims that both parties made a mistake regarding the 

terms in a written agreement are often difficult to prove because a party who signs a 

document is presumed to know its contents. Fort Apache Energy, Inc. v. Houston 
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Energy, L.P., No. 09-14-00007-CV, 2015 WL 5042133, at *7 (Tex. App.—

Beaumont Aug. 27, 2015, no pet.) (mem. op.) (citing Toler v. Sanders, 371 S.W.3d 

477, 482 (Tex. App.—Houston [1st Dist.] 2012, no pet.)). 

KOKB and Bryant contend that issues of material fact exist about whether the 

second note is enforceable due to mutual mistake. They argue that they and InterBay 

intended that all nine properties be included as collateral on the second note. KOKB 

and Bryant’s briefing of this issue does not identify what source provides this 

evidence or include any references to the record for this argument. See TEX. R. APP.

P. 38.1(i). 

Presumably they rely on Bryant’s affidavit to show mutual mistake. In his 

affidavit, Bryant states that when he signed the second note, he believed it covered 

all nine properties like the first note. On August 29, 2006, Interbay assigned the note 

to Bayview. Bryant called Bayview at an unspecified date to explain the collateral 

defect, and Bayview acknowledged an error in the closing documents. Bayview 

refused to accept further payments until the issue was resolved with the collateral. 

Months and years passed while Bryant waited for Bayview to present new 

documents. Bryant called Bayview repeatedly. Bayview eventually informed him 

the second note was defective and would be written off. However, Bayview later 

assigned the second note to DTC. 

 Bryant’s affidavit does not raise a genuine fact issue about whether he/KOKB 

and InterBay were mutually mistaken about the collateral for the second note. The 
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original parties to the second note were KOKB and InterBay. KOKB has not 

presented any evidence that InterBay was mistaken about the collateral for the 

second note. Further, to the extent Bayview’s alleged acknowledgement of an error 

in the closing documents is relevant to the issue of a mutual mistake between KOKB 

and InterBay, Bayview’s undisputed actions counter any evidence there was a 

mutual mistake. Bayview and KOKB modified the loan documents in 2011, five 

years after KOKB executed the second note. No changes were made to the 

collateral, only the repayment terms. Bayview never modified the loan documents 

in response to Bryant’s communications with them. And it never wrote off the note. 

Bayview instead assigned the note and deed of trust to DTC. Bayview’s assignment 

of the deed of trust lists only the Hampton properties. 

In addition, any invalidity of the second note does not impact Bryant’s 

guaranty. The guaranty provides that Bryant’s obligations “shall be unconditional 

irrespective of the genuineness, validity, regularity or enforceability of the Note” 

and the deed of trust. We overrule KOKB and Bryant’s fourth issue. 

In their fifth issue, KOKB and Bryant contend the trial court erred in granting 

summary judgment because DTC did not provide a proper accounting. Without 

citation to authority, they argue DTC did not provide the trial court with enough 

information to determine the deficiency owed on the second note. 

The trial court awarded DTC actual damages of $771,913.76, which was 

comprised of: (1) $239,767.36 in principal, (2) $108,576.71 in accumulated interest, 
 –23– 

(3) $87,873.10 in accumulated default interest, (4) $112,629.26 for a negative 

escrow balance, (5) $58,896.70 in accumulated interest on escrow, (6) $164,330.11 

in corporate advances, and (7) $374 in NSF fees. KOKB and Bryant argue DTC 

provided only a general “six-point bullet list” to support these numbers. 

 Where a validly executed note goes into default and there is a foreclosure sale 

of the security for the note, the owner of the note must prove the following elements 

to be entitled to a judgment for any deficiency remaining on the note: (1) the amount 

due on the note at the time of foreclosure; (2) that proper notice of acceleration has 

been given; (3) that a valid foreclosure sale was made; and (4) that it has given credit 

to the obligor for the amount received at the foreclosure sale and any other legitimate 

credit. Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d 25, 28 (Tex. 

App.—Dallas 1992, no writ). Courts do not usually require the movant to file 

detailed proof reflecting the calculations of the balance due on a note in order to 

support a motion for summary judgment. Obasi v. Univ. of Okla. Health Sci. Ctr., 

No. 04-04-00016-CV, 2004 WL 2418009, at *1 (Tex. App.—San Antonio Oct. 27, 

2004, pet. denied) (mem. op.). 

Because DTC was not required to file detailed proof of the calculations 

reflecting the balance due on the note, this issue is without merit. See Cha v. Branch 

Banking & Trust Co., No. 05-14-00926-CV, 2015 WL 5013700, at *4 (Tex. App.—

Dallas Aug. 25, 2015, pet. denied) (mem. op.) (uncontroverted affidavit made on 

personal knowledge of bank officer that identifies note and guaranty and recites 
 –24– 

principal and interest due is sufficient to support summary judgment). And contrary 

to KOKB and Bryant’s assertion that DTC provided only a short bullet-point 

summary of the amounts due, DTC’s summary judgment evidence included a 

thirteen-page loan history ledger and a loan history summary authenticated by a 

business records affidavit. The ledger dates back to the inception of the loan in 

March 2006, before DTC acquired the note, and has columns for the principal, 

escrow, and corporate advances which correspond to the amounts in the judgment. 

The loan history summary contains all the figures awarded to DTC. KOKB and 

Bryant submitted no evidence to contradict DTC’s proof of the amount of the 

deficiency. We overrule the fifth issue. 

We affirm the trial court’s summary judgment orders. 

220403F.P05 

 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
 –25– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

KOKB MEDICAL PROPERTIES, 

LLC, SULLIVAN R. BRYANT, 

AND FINCH CLINIC, PLLC, 

Appellants 

No. 05-22-00403-CV V. 

DTC PARTNERS, LLC-SERIES I, 

A SERIES OF DALLAS TEXAS 

CAPITAL PARTNERS, LLC, 

Appellee 

 On Appeal from the 160th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-19-03360. 

Opinion delivered by Justice 

Reichek. Justices Nowell and Garcia 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellee DTC PARTNERS, LLC-SERIES I, A SERIES 

OF DALLAS TEXAS CAPITAL PARTNERS, LLC recover its costs of this appeal 

from appellants KOKB MEDICAL PROPERTIES, LLC, SULLIVAN R. 

BRYANT, AND FINCH CLINIC, PLLC. 

Judgment entered this 15th day of August, 2023.