Rick Emmert v. Wilmington Savings Fund Society, FSB D/B/A Christina Trust, as Trustee, Not in Its Individual Capacity but Solely as Indenture for ARLP, Securitization Trust, Series 2015-1 and Rushmore Loan Management Services, LLC

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00012-CV
___________________________

RICK EMMERT, Appellant

V.

WILMINGTON SAVINGS FUND SOCIETY, FSB D/B/A CHRISTINA TRUST,
AS TRUSTEE, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS
INDENTURE FOR ARLP, SECURITIZATION TRUST, SERIES 2015-1, AND
RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Appellees

On Appeal from the 236th District Court
Tarrant County, Texas
Trial Court No. 236-303682-18

Before Kerr, Birdwell, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
 MEMORANDUM OPINION

In this title dispute, Wilmington Savings Fund Society, FSB d/b/a Christina

Trust, as Trustee, not in its individual capacity but solely as indenture for ARLP,

Securitization Trust, Series 2015-1, and Rushmore Loan Management Services, LLC

moved for summary judgment on res judicata and collateral-estoppel grounds, arguing

that a 2017 judgment barred Rick Emmert’s current suit against them. The trial court

granted the motion, and Emmert appealed, arguing in two issues that the

2017 judgment did not bar his current suit. Because Emmert did not brief all possible

grounds on which the summary judgment could have been granted, we affirm the trial

court’s judgment.

Background

In May 2008, Emmert signed a home-equity security instrument granting a lien

on his home in favor of Wachovia Mortgage, FSB to secure a $600,000 home-equity

note. After Emmert defaulted on the loan in December 2009, the then mortgage

servicer sent Emmert a notice of default and intent to accelerate. When he failed to

cure, the then mortgage servicer accelerated the note.

In June 2014, U.S. Bank, which had taken ownership of the loan, sued Emmert

and junior lienholder Regions Bank to foreclose on U.S. Bank’s lien. 1 See Tex. R. Civ.

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Emmert is the note’s sole obligor, but both he and his wife signed the security
instrument. Although U.S. Bank also sued Emmert’s wife in 2014, she is not a party to
this case.

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P. 309, 310, 735, 736. Regions Bank was served but never answered. Emmert

answered and asserted several counterclaims and affirmative defenses, including

limitations.

During that suit’s pendency, U.S. Bank sold the loan to Wilmington.

Wilmington substituted as plaintiff and moved for summary judgment on its judicial-

foreclosure claim and on most of Emmert’s counterclaims and affirmative defenses.

In March 2017, the trial court granted the motion and signed a judicial-

foreclosure judgment. See Tex. R. Civ. P. 309, 310. The 2017 judgment did not

mention Regions Bank 2 but stated that it was “a final judgment that disposes of all

issues” and that “all relief not expressly granted is denied.” Emmert appealed from

that judgment, arguing that the trial court had erred by granting summary judgment

for Wilmington because limitations had barred the foreclosure action and because

Wilmington had failed to accelerate the note. Emmert v. Wilmington Savs. Fund Soc’y,

FSB, No. 02-17-00119-CV, 2018 WL 1005002, at *2–5 (Tex. App.—Fort Worth Feb.

22, 2018, no pet.) (mem. op.). We affirmed the 2017 judgment. Id. at *5.

In October 2018, Wilmington and Rushmore (the current mortgage servicer)

foreclosed on the property, and Wilmington bought the property at the foreclosure

sale. Emmert then promptly sued Wilmington and Rushmore to quiet title and to stop

Wilmington and Rushmore from evicting him. The trial court temporarily restrained

2
Regions Bank is listed in the judgment’s style but is not mentioned in the body
of the judgment.

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Wilmington and Rushmore from evicting Emmert and from conveying the property.

After the suit was removed to federal court and remanded back to state court,

Wilmington and Rushmore moved for summary judgment on res judicata and

collateral-estoppel grounds, arguing that the 2017 judgment barred Emmert’s current

suit.

Emmert responded that the 2017 judgment did not bar his current suit because

that judgment was interlocutory in that it did not actually dispose of all parties and all

claims—specifically Regions Bank and Emmert’s limitations affirmative defense—or

because it failed to clearly and unequivocally state that it did. See Lehmann v. Har-Con

Corp., 39 S.W.3d 191, 205 (Tex. 2001) (explaining that when “there has not been a

conventional trial on the merits,” a judgment is final and appealable if it actually

disposes of all claims and all parties or if it “clearly and unequivocally” states that it

does). He also asserted that limitations was not “a res judicata issue as dates change

daily.” His response did not address Wilmington and Rushmore’s collateral-estoppel

ground for summary judgment. 3

Wilmington and Rushmore’s summary-judgment motion was entitled
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“Defendants’ Motion for Summary Judgment Based on Res Judicata,” but they
moved for summary judgment “on the basis that this lawsuit is barred by res judicata,
collateral estoppel and/or issue preclusion.” We note that “res judicata” is a generic
name for the general doctrine on the conclusive effects of a final judgment, and
within that general doctrine, claim preclusion (res judicata) and issue preclusion
(collateral estoppel) are related concepts. Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed.
Sav., 837 S.W.2d 627, 628 (Tex. 1992); New Talk, Inc. v. Sw. Bell Tel. Co., 520 S.W.3d
637, 645 (Tex. App.—Fort Worth 2017, no pet.) (citing Barr, 837 S.W.2d at 628). And
a motion’s character is determined by its substance, not its title. See Bradshaw v. Sikes,

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 The trial court granted Wilmington and Rushmore’s summary-judgment

motion without specifying the grounds on which it relied.4 Emmert has appealed and

raises two issues: (1) the trial court erred by granting summary judgment because we

did not have jurisdiction over his appeal from the 2017 judgment because that

judgment was interlocutory and (2) the trial court erred by granting summary

judgment on res judicata grounds because the 2017 judgment was not final.

Analysis

When, as here, a party moves for summary judgment on multiple grounds and

the trial court’s summary-judgment order does not specify the ground (or grounds) on

which it is based, the appellant must negate all possible grounds on which the

summary judgment could be based. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,

473 (Tex. 1995); Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas

2009, pet. denied). To accomplish this, an appellant may challenge a summary

judgment by making either a general assignment of error covering all possible

No. 02-11-00169-CV, 2013 WL 978782, at *3 (Tex. App.—Fort Worth Mar. 14, 2013,
pet. denied) (mem. op.) (citing 51 Tex. Jur. 3d Motion Procedure § 3 (2008)); see also
Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex. 1999) (“[W]e look to the
substance of a motion to determine the relief sought, not merely to its title.”).
4
The title of the trial court’s order granting summary judgment is “Order
Granting Defendants’ Motion for Summary Judgment Based on Res Judicata.” That
is, the trial court’s order mirrors the title of the summary-judgment motion. See Mathes
v. Kelton, 569 S.W.2d 876, 878 n.3 (Tex. 1978) (stating that the substance and not the
label or form of a judgment is controlling in determining its validity). The body of the
order does not identify the grounds on which the trial court granted the motion.

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summary-judgment grounds (a “Malooly issue”) or specific assignments of error for

each individual ground. See Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970);

Rollins v. Denton Cty., No. 02-14-00312-CV, 2015 WL 7817357, at *2 (Tex. App.—Fort

Worth Dec. 3, 2015, no pet.) (mem. op.). But “[e]rror is not preserved as to every

ground on which summary judgment could be based simply by raising a general issue;

the appellant must also support the issue with argument and authorities challenging

each ground.” Rollins, 2015 WL 7817357, at *2. “When an argument is not made

challenging every ground on which the summary judgment could be based, we are

required to affirm the summary judgment, regardless of the merits of the

unchallenged ground.” Id.

Here, Wilmington and Rushmore moved for summary judgment on res judicata

and collateral-estoppel grounds. As noted, res judicata has been used as a broad term

for the related concepts of claim preclusion (res judicata) and issue preclusion

(collateral estoppel). See Barr, 837 S.W.2d at 628. Although res judicata and collateral

estoppel fall within the same “doctrinal umbrella,” they are two distinct legal theories.

McShaffry v. LBM-Jones Rd., L.P., No. 01-10-01151-CV, 2011 WL 6306684, at *2 (Tex.

App.—Houston [1st Dist.] Dec. 15, 2011, no pet.) (mem. op. on reh’g) (citing Barr,

837 S.W.2d at 628).

Res judicata bars the relitigation of claims that have been finally adjudicated or

that arise out of the same subject matter and that could have been litigated in the prior

action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). For res judicata to

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apply, the following elements must be present: (1) a prior final judgment on the merits

by a court of competent jurisdiction; (2) the same parties or those in privity with

them; and (3) a second action based on the same claims as were raised or could have

been raised in the first action. Id.

Collateral estoppel precludes the relitigation of issues resolved in a prior suit.

Barr, 837 S.W.2d at 628. A party relying on the collateral-estoppel bar must prove that

(1) the facts sought to be litigated in the second action were fully and fairly litigated in

the first action; (2) those facts were essential to the judgment in the first action; and

(3) the parties were cast as adversaries in the first action. Sysco Food Servs., Inc. v.

Trapnell, 890 S.W.2d 796, 801 (Tex. 1994). “[T]he judgment requirement for collateral

estoppel does not always require a final, appealable judgment.” Van Dyke v. Boswell,

O’Toole, Davis & Pickering, 697 S.W.2d 381, 385 (Tex. 1985). Rather, the test for

finality for collateral-estoppel purposes is “whether the conclusion in question is

procedurally definite,” which requires consideration of several factors: whether “the

parties were fully heard, [whether] the court supports its decision with a reasoned

opinion[, and whether] the decision was subject to appeal or was in fact reviewed on

appeal.” Id. (quoting Restatement (Second) of Judgments § 13 cmt. g (Am. Law Inst.

1982)).

Although res judicata and collateral estoppel are related concepts, they are

independent affirmative defenses. McShaffry, 2011 WL 6306684, at *2. Emmert thus

must negate both grounds because the trial court did not specify the ground or

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grounds on which it granted summary judgment, see Star-Telegram, 915 S.W.2d at 473;

McShaffry, 2011 WL 6306684, at *2, notwithstanding the order’s title, see Mathes,

569 S.W.2d at 878 n.3.

Within Emmert’s two appellate issues, he challenges the trial court’s granting

Wilmington and Rushmore’s summary-judgment motion on the res judicata ground,

arguing that because the 2017 judgment was not final, the summary judgment on

Wilmington and Rushmore’s res judicata affirmative defense based on that judgment

was erroneous. But Emmert does not challenge the summary judgment on

Wilmington and Rushmore’s collateral-estoppel affirmative defense. He confines his

appellate arguments to the 2017 judgment’s finality and res judicata’s applicability and

offers no legal analysis, argument, citations to the record, or citations to legal authority

arguing that collateral estoppel did not bar his suit.5 See Tex. R. App. P. 38.1(h).

Because the trial court could have granted summary judgment on the basis that

Emmert’s claims were barred by either res judicata or collateral estoppel, and Emmert

did not challenge the collateral-estoppel ground, we must affirm the judgment. See

McShaffry, 2011 WL 6306684, at *2–3; Iglesia Hispana Nueva Vida Hous., Inc. v. Rosin,

No. 01-06-00048-CV, 2007 WL 1633723, at *3 (Tex. App.—Houston [1st Dist.] June

7, 2007, no pet.) (mem. op.). We thus overrule Emmert’s two issues.

5
Although Emmert challenges the collateral-estoppel grounds in his reply brief,
a party cannot raise an issue in his reply brief that he did not raise in his brief on the
merits. See Rollins, 2015 WL 7817357, at *2 n.6 (explaining well-established principle
and listing supporting authority).

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 Conclusion

Having overruled Emmert’s two issues, we affirm the trial court’s judgment.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Delivered: February 25, 2021

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