AFFIRMED and Opinion Filed August 15, 2023 

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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 prope rty securing a promissory note, DTC Partners, LLC—Series I, A Series of Dallas Texas Capital Pa rtners, LLC brought a deficiency action against KOKB Medical Pr operties, LLC and Sullivan R. Bryant. DTC also alleged KOKB, Br yant, and Finch Clinic, PL LC fraudulently transferred real property with intent to defraud DTC. The trial court granted summary judgment for DTC on its claims and against KOKB a nd Bryant on counterclaims they brought–2– against DTC. KOKB, Bryant , and Finch Clinic challenge the trial court’s summary judgment in five issues. We affirm.
B ACKGROUND On November 30, 2001, KOKB executed a promissory note in the amount of $204,750 in favor of InterBay Funding, LLC to purchase nine se parate parcels of land. The note was secured by a deed of trust on the nine properties. In 2006, KOKB refinanced the loan wi th InterBay. On February 17, 2006, KOKB entered into a new promissory no te in the amount of $263,250, and funds from that note were used to pay off the fi rst note. Bryant, KO KB’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 Ro ad and 3538 N. Hampton Road (“the Hampton properties”). The Hampton properties were two of the nine parcels that secured the first note. KOKB and Brya nt would later contend the second note was supposed to have been secure d by all nine properties that ha d secured the first note. In August 2006, InterBay assigned the second note and deed of trust to Bayview Loan Servicing, LL C. Almost five years la ter, on June 28, 2011, KOKB and Bryant entered into a stipulation ag reement and a loan adjustment agreement with Bayview regarding the second note. Th e stipulation agreement recited that the loan was past due in an amount over $50,000. Bayview agreed to suspend foreclosure proceedings if KOKB and Br yant complied with the terms of the–3– stipulation agreement and executed the loan adjustment agreement. The agreements modified the balance and the repayment term s of the note. No changes were made to the deed of trust. In April 2018, Bayview assigned the se cond note, which was in default, and guaranty to DTC. The two Hampton pr operties securing the second note were scheduled for foreclosure on July 3, 2018. A few days before the scheduled for eclosure sale, KOKB and Bryant brought suit in the 95th Judicial District Court of Dallas County against DTC to stop the foreclosure. KOKB and Bryant admittedl y stopped paying on the note years prior to get Bayview’s attention over an issu e 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 proper ties that secured the first note. KOKB and Bryant alleged that “review of the re financing closing documents revealed that a second page of the property descriptio n was missing and did not get filed by Bayview.” According to KOKB and Brya nt, Bayview assured them it would work to “restore a loan” secured by all nine parc els. 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 st op the sale, KOKB and Bryant asserted a breach of contract clai m against DTC. They alleged Bayview and InterBay breached the note by failing to re view KOKB and Brya nt’s request for–4– reinstatement and payment of delinquent ta xes. 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 ha d authority to foreclose on the property. Further, it was undisputed that KOKB and Br yant failed to make payments for years and were in default. DTC argued the fact that, althoug h 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 bankruptc y. DTC asked the bankruptcy court for relief from the automatic stay as to the Ha mpton 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 inst ant 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,–5– PLLC. DTC added new claims involving th e allegedly fraudulent transfer of real property among these parties. The fraudulent transfer cl aims involve the following facts. On May 1, 2017, KOKB executed a deed of tr ust that gave “My Medical Center, LC” a security interest in many of KOKB’s properties, in cluding 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, so le 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 de position 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 Marc h 5, KOKB executed a General Warranty Deed to My Mail. For “[c]ash and othe r good and valuable consideration,” KOKB transferred seven Dallas properties to My Mail. The two Hampton properties were not part of the transfer. KOKB later transf erred a Hunt County prope rty to My Mail. There was another transfer of property while the deficiency suit was pending. On September 14, 2020, My Ma il transferred five propertie s to appellee Finch Clinic in a Special Warranty Deed. Three of th e properties were among those transferred from KOKB to My Mail in February 2019. The other two were the Hampton–6– 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 fo r violations of the Texas Uniform Fraudulent Transfer Act (“TUFTA”) ba sed on KOKB’s conveyance of eight properties to My Mail and based on My Ma il’s conveyance of fi ve properties to Finch Clinic. DTC alleged th e properties were transferre d with intent to hinder, delay, and defraud KOKB and Br yant’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 adver tising the properties for sale. 1 KOKB and Bryant filed counterclaims ag ainst DTC for wrongful foreclosure, breach of contract, conversion, and violations of the Texas Theft Liability Act. They alleged InterBay refused to accept paymen ts on the second not e 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 tr ansferred to My Mail/Dodd were later fraudulently transferred to Guel. After Guel asserted a bona fide purchaser defense, DTC nonsuited its claims against Guel.–7– as collateral. Bryant agreed and waited for InterBay to provide new documents. Years passed, but InterBay had not drafte d new documents and refused to accept payments on the note. After the sec ond note was assigned to Bayview, Bryant informed Bayview of the situation and Bayview said the second note would be written off. 2 Thereafter, Bayview assigne d the second note to DTC. KOKB and Bryant alleged DTC had no le gal authority to foreclose on the Hampton properties because DTC had assume d a cancelled note, as Bayview told Bryant the second note had been written o ff. They alleged DTC breached the contract it allegedly assumed when DTC claimed the second note was in default and foreclosed. KOKB and Brya nt alleged they were rea dy and willing to perform the second note, but Bayview refu sed 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 fo reclosure constituted a violation of

2 KOKB and Bryant’s Original Coun terclaim 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, ju st 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 Origin al Counterclaim that they bro ught the collateral issue to InterBay’s attention and InterBay agreed to execute new documents and re fused to accept payments for years. Yet later in the pleading, KOKB and Bryant allege it was Bayvi ew that refused to accept their payments. This is consistent with their allegations in the prior suit.–8– the Texas Theft Liability Act. 3 See T EX

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. § 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 su mmary judgment on its fraudulent transfer claims. DTC argued the record conclusi vely established that KOKB and My Mail violated TUFTA when they made the My Mail and Finc h 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 Brya nt take nothing on their counterclaims against DTC. The trial court also voided the conveyan ces 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 agains t KOKB and Bryant for the deficiency on the second note. It also moved for summ ary 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 peti tion against InterBay and Bayview, asserting claims for breach of contract, fraud, negligent misrepresentation, breach of fiduciary duty, and negligence. InterBay and Bayvi ew moved for summary judgment on grounds the claims against them were barred by the res judicata effect of the lawsuit in the 95t h 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.–9– Special Warranty Deed and attempted c onveyance to Finch Clinic clouded DTC’s title to the Hampton properties, which DTC purchased in March 2019 at the foreclosure sale. DTC claime d the evidence conclusively established that the cloud placed on DTC’s title by the Special Warr anty 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 decl ared the September 14, 2020 Special Warranty Deed between My Mail and Fi nch Clinic void to the exte nt it attempted to convey any interest in the two Hampton propert ies. DTC then nonsuited its claim for exemplary damages. In this appeal, KOKB, Bryant, and Finc h Clinic contend the trial court erred in granting both partial motions for summary judgment. First, KOKB and Bryant contend their counterclaims were not barre d by res judicata or the statute of limitations. Appellants next argue allege that DTC’s TU FTA claims fail. Finally, KOKB and Bryant assert the trial court erred in granti ng the second partial motion for summary judgment because the second not e was not a valid, enforceable contract and because DTC failed to provide a pr oper accounting for the deficiency.
F IRST S UMMARY J UDGMENT O RDER KOKB and Bryant’s Counterclaims–10– In their first issue, KOKB and Bryant c ontend the trial court erred in finding that their counterclaims against DTC we re barred by res judicata. Res judicata requires proof of three elements: (1) a pr ior 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 c ould 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 th e movant is entitled to judgment as a matter of law. T EX

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. P. 166a(c). Res judicata is the generic term for a gr oup of related concepts concerning the conclusive effects gi ven final judgments. Barr v. Resolution Trust Corp. , 837 S.W.2d 627, 628 (Tex. 1992). Texas courts follow the tran sactional approach to res judicata. Id. at 631. Under this approach, the doctr ine bars lawsuits that arise out of the same subject matter as a prior suit wh en, with the use of diligence, the subject matter could have been litigated in the prior suit. Eagle Oil & Gas Co. v. TRO-X,–11– 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 th e 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 preven t double recovery. Eagle Oil & Gas , 619 S.W.3d at 705; Barr , 837 S.W.2d at 630. In its first motion for partial summa ry judgment, DTC argued KOKB and Bryant’s counterclaims for wrongful foreclos ure, 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 Brya nt in June 2018, days before the scheduled foreclosure sale of the Hampt on properties. KOKB and Bryant sought a temporary restraining orde r 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 countercl aims. 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 bankrupt cy documents to the motion, DTC’s res judicata argument was based only on the judgment in the 95th District Court.–12– They alleged they had relied on Bayview’s promises to adjust the note to correct the problem with the collateral. KOKB and Br yant alleged that Bayview and InterBay breached the second note by failing to re view KOKB and Bryant’s request for reinstatement and payment of delinquent ta xes. They argued DTC stepped into the shoes of Bayview and InterBay as the breaching party. In the prior suit, DTC moved for su mmary judgment on grounds it was the holder of the note and deed of trust and ha d 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 modi fication to pledge more collateral for the second note was required to be in writing a nd there was none. Instead, the evidence showed that KOKB, Bryant, and Bayview ag reed to modify the payment terms of the second note in 2011, and the descrip tion of the pledged collateral was not modified. On September 22, 2018, the 95t h District Court granted DTC’s motion and ordered that KOKB and Bryant take nothing on thei r claims against DTC. In the instant suit, KOKB and Brya nt’s counterclaim s for wrongful foreclosure, breach of contract, convers ion, and violations of the Texas Theft Liability Act are all based on the premise th at there had been a mistake in which properties were collateral for the seco nd note and Bayview refused to accept payment on the note because it was going to re vise the loan documents to correct the issue. This is the same set of facts on which KOKB and Brya nt sought to avoid foreclosure in the first suit. The trial c ourt in the first suit, in granting summary–13– judgment for DTC, already determined thes e issues adversely to KOKB and Bryant. Under the transactional appr oach, KOKB and Bryant’s cl aims in the prior lawsuit and in this case arise from the same subj ect 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 aros e 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 judi cata does not apply because they could not have brought a wrongful foreclosure cl aim prior to foreclosure. The subject matter upon which their wrongful foreclosure claim and other claims are premised was previously litigated in the 95th Distri ct 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 count erclaims under the doctrine of res judicata. We overrule KOKB and Bryant’s first issue. In their second issue, KOKB and Brya nt contend the tria l court erred in granting summary judgment on limitations gr ounds. Because we have concluded–14– that res judicata barred KOKB and Bryant’s counterclaims, we need not address this issue. See T EX

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Fraudulent Conveyance/TUFTA Claims In their third issue, KOKB and Bryant c ontend 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 cred itor of the debtor. T EX

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. § 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 pr operty 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, In c. v. TA/Westchase Place, Ltd. , 80 S.W.3d 601, 610 n.6 (Tex. App.—Houston [1st Dist.] 2002, no pet.).–15– 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 execu ted in favor of “My Medical Center.” In their reply brief, KOKB and Bryant ac knowledge 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 am ount of equity, the properties meet the definition of “asset” and TUFTA applies. KOKB and Bryant’s other ar guments under this issue involve evidence of the intent to defraud. In determining act ual 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 T EX

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. § 24.005(b). Evidence of a single “badge of fraud” does not c onclusively demonstrate in tent, 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 tr ansfer 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 in solvent shortly after the transfer was made. See T EX

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. § 24.005(b) (1), (8) & (9). KOKB challenges the evidence to support thes e three factors. It argues My Mail–16– was not an insider of KOKB, the proper ties 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 judgm ent motion that seven of the factors in § 24.005(b) showed intent to defraud. In addition to the thr ee already mentioned, DTC asserted that (1) KOK B 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 we re 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 prope rties 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 presente d evidence of three badges of fraud). By failing to challenge all factor s relevant in this case to the intent to defraud, KOKB–17– and Bryant cannot demonstrate that summary judgment on DTC’s TUFTA claim was improper. Further, the evidence conclusively esta blished that My Mail was an insider, another “badge of fraud.” KOKB and Bryant argue D odd, My Mail’s sole owner, does not meet the TUFTA definition of an in sider 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 partners hip in which the debtor is a general partner, or a rela tive of a general partner, director, officer, or person in control of the debtor. T EX

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. § 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 Pe nsion Plan v. Stephenson , 805 S.W.2d 16, 18–19 (Tex. App.—Dallas 1991, no writ). Here, Dodd was Bryant’s a ccountant of more than forty years. Dodd stated in his deposition that he and Bryant had been friends and business associates since the 1970s. DT C’s evidence showed that Dodd allowed Bryant to control the properties after the tr ansfer. 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 ev idence 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.–18– S ECOND S UMMARY J UDGMENT O RDER KOKB and Bryant’s remaining issues involve the summary judgment for DTC on its deficiency claim. In their f ourth issue, KOKB a nd Bryant argue the second note was not a valid, enforceable cont ract. They argue that a mutual mistake about the collateral for the note prevented the meeting of the minds necessary for contract formation. Alternatively, they ar gue that if the contract was valid, there was a prior material breach when Bayview refused to accept their payments. DTC contends KOKB and Bryant wa ived 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 materi al breach in their response to DTC’s summary judgment motion. DTC is correct that KOKB and Bryant did not plead the affirmative defense of prio r material breach or argue it in their summary judgment response. Although KOKB and Bryant assert otherwise, they have not included any record references in s upport of their assertion. An affirmative defense not raised in a responsive pleadi ng 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.—Dalla s 2010, no pet.). The issue of prior material breach has been waived.–19– Although KOKB and Bryant also did not raise mutual mistake in their answers, it appears the defe nse was tried by consent. See Purser v. Coralli , No. 05- 15-00359-CV, 2016 WL 6087675, at *3 (Tex. App.—Dalla s Oct. 18, 2016, no pet.) (mem. op.) (in summary judgment context, a ffirmative defense is tried by consent if nonmovant expressly raises defense in its response, and movant responds to defense on merits without objecting). KOKB a nd Bryant argued mutual mistake in their summary judgment response. DTC did not ar gue waiver in its reply. It instead briefly addressed the i ssue in a footnote. In their summary judgment respons e, 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 “anot her 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’ a llegation that the Note was cancelled is irrelevant.” It is possible th e trial court interpreted DTC’s argument to be that the issue of mutual mistake had b een previously litigated and that it agreed with that position. Because DTC’s argumen ts 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 exis t regarding mutual mist ake. We are aware that consideration of this issue is in consistent with th e determination the–20– counterclaims were barred by res judica ta because KOKB a nd Bryant had the opportunity to litigate the a llegedly mistaken collateral in the prior suit. We further note that KOKB and Br yant 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 fo r KOKB and Bryant to be seeking to avoid an agreement due to an alleged mi stake 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 ag reement does not express the real intentions of the parties by reason of mutual mistake, ex trinsic evidence is admissible to show the real agreement. Id. To prove a mutual mistake, the evidence must show that both parties were acti ng 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 bot h parties made a mistake regarding the terms in a written agreement are often diffi cult to prove because a party who signs a document is presumed to know its contents. Fort Apache Energy, Inc. v. Houston–21– 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 mist ake. They argue that they and InterBay intended that all nine properties be include d 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 T EX

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. P. 38.1(i). Presumably they rely on Bryant’s affidav it 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 fi rst 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 acknowle dged an error in the clos ing 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 repeated ly. 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 ge nuine fact issue about whether he/KOKB and InterBay were mutually mistaken about the collateral for the second note. The–22– original parties to the second note were KOKB and InterBay . KOKB has not presented any evidence that InterBay wa s mistaken about the collateral for the second note. Further, to the extent Bayvi ew’s alleged acknowledge ment of an error in the closing documents is relevant to th e issue of a mutual mistake between KOKB and InterBay, Bayview’s undisputed acti ons counter any evidence there was a mutual mistake. Bayview and KOKB modi fied the loan documents in 2011, five years after KOKB executed the second note. No changes were made to the collateral, only the repaymen t 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 se cond note does not impact Bryant’s guaranty. The guaranty provides that Br yant’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 c ontend the trial court erred in granting summary judgment because DTC did not provide a proper accounting. Without citation to authority, they argue DTC di d not provide the trial court with enough information to determine the defi ciency 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 principa l, (2) $108,576.71 in accumulated interest,–23– (3) $87,873.10 in accumula ted default interest, (4) $112,629.26 for a negative escrow balance, (5) $58,896.70 in accu mulated 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 th e 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 th e 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.) (uncontro verted affidavit made on personal knowledge of bank officer that identifies note and gua ranty 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 su mmary 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 DT C acquired the note, and has columns for the principal, escrow, and corporate advances which corre spond to the amounts in the judgment. The loan history summary contains all the figures awarded to DTC. KOKB and Bryant submitted no evidence to contradi ct 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– 

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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 PR OPERTIES, LLC, SULLIVAN R. BRYANT, AND FINCH CLINIC, PLLC.
Judgment entered this 15th day of August, 2023.