Affirm and Opinion Filed August 17, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01054-CV
ANTONIO CABALLERO, Appellant
V.
WILMINGTON SAVINGS FUND SOCIETY, FSB, Appellee
On Appeal from the 14th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-04357
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Smith1
Opinion by Justice Pedersen, III
Appellant Antonio Caballero sued appellee Wilmington Savings Fund
Society, FSB, (Wilmington) for breach of contract relating to a deed of trust on
property located at 14105 Rocksprings Court, Dallas, Texas, 75254 (Property).
Wilmington moved for summary judgment, asserting Caballero’s suit was barred by
res judicata. After response from Caballero and a hearing, the trial court granted
1
Justice Bonnie Lee Goldstein was previously a member of this panel. However, Justice Goldstein
presided over proceedings in the underlying suit. For that reason, our Court substituted Justice Craig Smith
in place of Justice Goldstein. Justice Smith joins in the opinion, having reviewed the briefs and record.
Wilmington’s motion for summary judgment. Caballero raises one issue to our
Court. We affirm the trial court’s judgment.
I. BACKGROUND
A. Property Purchase, First Suit, and Prior Appeal
Caballero purchased the Property in 2006 after borrowing $514,450 from
World Savings Bank pursuant to a thirty-year note and a deed of trust. In 2016, the
note and deed of trust were assigned to Wilmington as trustee for Normandy
Mortgage Loan Trust. In 2017, Caballero sued Rushmore Loan Management
Services LLC (Rushmore) and Wilmington to stop a foreclosure on the Property.
The trial court’s cause number in this first case was DC-17-07665, and the case was
assigned to the Honorable Judge Eric Moye. In this first suit, Caballero alleged
causes of action for wrongful foreclosure, breach of the deed of trust, violations of
the Texas Debt Collection Practices Act, usury, and suit to quiet title. Caballero
sought damages and injunctive relief.
During this first suit, the trial court entered a temporary restraining order
barring the foreclosure. Thereafter, Rushmore and Wilmington moved for summary
judgment on Caballero’s claims. The trial court granted summary judgment against
Caballero, and he appealed to this Court. Both Rushmore and Wilmington were the
appellees in the prior appeal. After review of the briefs and the record, we affirmed
the judgment of the trial court. Caballero v. Rushmore Loan Mgmt. Services LLC,
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No. 05-19-00298-CV, 2020 WL 1685418, at *1 (Tex. App.—Dallas Apr. 7, 2020,
no pet.) (mem. op.).
B. Second Suit and Summary Judgment
On March 27, 2019, Caballero filed a suit against Wilmington with a verified
petition stating:
Defendant is the Plaintiff’s mortgage holder, which is attempting to sell
Plaintiff’s homestead on April 2, 2019, through a foreclosure sale.
....
The Texas Property Code requires a mortgage lender to provide a
Notice of Default and opportunity to cure given to the borrower.
Plaintiff has received no notice of the same as required by both the
security documents and the property code. This constitutes a breach of
contract of contract [sic] for which Plaintiff sues, requesting actual
damages, attorney fees and costs of court.
Thus, Caballero’s suit is based upon Wilmington’s alleged failure to give
Caballero required notices under the “security documents and property code.”
Wilmington answered and filed a motion for summary judgment on June 27, 2019.
Wilmington’s summary judgment asserted, in part, that Caballero’s claim was barred
by res judicata. Caballero responded,2 and Judge Moye held a hearing on the motion
for summary judgment on July 25, 2019. The following exchange occurred during
the hearing:
Judge Moye: Tell me why the case which you have brought, 19-4357,
was not a claim that should have been resolved in the first case, 17-
7665.
2
Caballero attached no evidence to his response to Wilmington’s motion for summary judgment.
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Caballero’s Counsel: The answer to the question, Your Honor,
would be is that the issue is that’s a different individual trying to
exercise a foreclosure matter. It says Wilmington Funding, that’s
the confusing part. It’s Wilmington Funding as trustee for a
different entity.
Judge Moye: Just a minute. Mr. Traynor?
Wilmington’s Counsel: Your Honor, the current Plaintiff [sic] in
this case is successor-in-interest as has been shown by the
assignments attached to my motion.
Caballero’s Counsel: And, Your Honor, we would argue those
assignments are not—they’re not recorded in the right order.
They’re dated the same day –
Judge Moye: Doesn’t matter whether they’re recorded or filed or not,
does it? The case should—The case, it seems to me,—The argument of
the Defense is, this should have been raised in the—in the first case.
Caballero’s Counsel: I think, Your Honor, the issue is when the
first case was going, the first case was the second assignment.
The assignment that was recorded second in time was that—was
that Defendant in that first case. When they come to do the Notice
of Foreclosure sale in this case they use a different Defendant to
foreclose on that property. That notice was the first notice that
was recorded before the second assignment, and that’s—that’s
the issue that we see in this case, Your Honor, and why there’s—
they’re distinct cases.
The trial court granted summary judgment on the record and entered a written order,
which states:
IT IS HEREBY ORDERED that Defendant’s Motion for Summary
Judgment is granted as to all relief sought.
Caballero appealed thereafter.
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II. ISSUE RAISED ON APPEAL
Caballero raises a single issue on appeal:
Whether the Trial Court Erred in granting Appellee’s No-Evidence and
Traditional Motion for Summary Judgment in spite of the fact that there
is more than a “scintilla” of evidence in support of Appellant’s claims.
III. STANDARD OF REVIEW
We review a trial court’s summary judgment decision de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). “Our de novo standard
of review extends to both traditional and no evidence summary judgments.” Flood
v. Katz, 294 S.W.3d 756, 761 (Tex. App.—Dallas 2009, pet. denied) (citing Shaun
T. Mian Corp. v. Hewlett–Packard Co., 237 S.W.3d 851, 855 (Tex. App.—Dallas
2007, pet. denied)). “When a trial court’s order does not specify the grounds for its
summary judgment, an appellate court must affirm the summary judgment if any of
the theories presented to the trial court and preserved for appellate review are
meritorious.” Headington Royalty, Inc. v. Finley Res., Inc., 623 S.W.3d 480 (Tex.
App.—Dallas 2021, no pet. h.), reh’g denied (May 21, 2021) (quoting Fitness
Evolution, L.P. v. Headhunter Fitness, L.L.C., No. 05-13-00506-CV, 2015 WL
6750047, at *22 (Tex. App.—Dallas Nov. 4, 2015, no pet.) (mem. op. on reh’g)).
IV. DISCUSSION
A. Res Judicata
“Res judicata, or claims preclusion, prevents the relitigation of a claim or
cause of action that has been finally adjudicated, as well as related matters that, with
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the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution
Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992); see
also Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).
Accordingly, res judicata bars claims when there is “(1) a prior final judgment on
the merits by a court of competent jurisdiction; (2) identity of parties or those in
privity with them; and (3) a second action based on the same claims that were raised
or could have been raised in the first action.” Daccach, 217 S.W.3d at 449; see also
Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). We next address
whether these elements apply to the case before us.
1) Prior Final Judgment on the Merits
Wilmington asserts the first suit was resolved on the merits by a court of
competent jurisdiction. Neither Caballero’s briefing nor response to the motion for
summary judgment dispute this assertion. The record contains the trial court’s prior
order granting summary judgment against Caballero from the first suit. In our prior
opinion, we addressed the alleged breach of the deed of trust claim as a breach of
contract:
Caballero’s claim for breach of the deed of trust is one for breach of
contract. The elements for breach of contract are (1) the existence of a
valid contract, (2) the plaintiff’s performance or tendered performance,
(3) the defendant’s breach of the contract, and (4) damages as a result
of the breach. Paragon Gen. Contractors, Inc. v. Larco Constr., Inc.,
227 S.W.3d 876, 882 (Tex. App.—Dallas 2007, no pet.). Appellees
moved for summary judgment on the ground that Caballero had no
evidence he performed or tendered performance, that appellees
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breached the deed of trust, or that Caballero suffered damages as a
result of the breach.
The deed of trust defined “Lender” as meaning “World Savings Bank,
FSB, its successors and/or assignees.” (Capitalization omitted.)
Therefore, Caballero had the burden of presenting some evidence that
Rushmore was not a successor or assignee of World Savings Bank. The
only evidence Caballero presented was his declaration. In it, he does
not provide evidence that Rushmore was not the successor or assignee
of World Savings Bank. The record shows that Rushmore became the
loan servicer after Carrington, but nothing shows it did not have
authority to enter into the 2015 modification. Accordingly, Caballero
has not presented any evidence that appellees breached the deed of
trust.
....
We conclude the trial court did not err by granting appellees’ motion
for summary judgment on Caballero’s claim for breach of the deed of
trust.
Caballero, 2020 WL 1685418, at *4 (emphasis added). We further held in the first
appeal that the trial court did not err in granting Wilmington and Rushmore’s
summary judgment in the first suit as they specified elements of each of Caballero’s
causes of action—on which Caballero had the burden of proof—that lacked
evidentiary support. Caballero, 2020 WL 1685418, at *7 (citing TEX. R. CIV. P.
166a(i)). Thus, the trial court’s summary judgment in the first suit, which we
affirmed, disposed of all parties and issues in the lawsuit. We conclude there was a
prior final judgment on the merits. See Chase Manhattan Bank, N.A. v. Lindsay, 787
S.W.2d 51, 53 (Tex. 1990) (“To be final, a summary judgment must dispose of all
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parties and issues in a lawsuit.”). Accordingly, the first element of a suit barred by
res judicata is met.
2) Identity of Parties or Those In Privity With Them
Wilmington asserts the parties before us in this appeal and the parties involved
in the first suit “are identical or in privity.” Caballero responds that the first suit “was
against a different Trust managed by Wilmington Savings Fund Society.” The record
shows, and Caballero does not dispute, that “Wilmington Savings Fund Society,
FSB” was a named codefendant in the first suit. Nevertheless, Caballero asserts,
without citation, the “two different trusts mean that the cases were brought against
two different entities.” We found no such supporting evidence in the record. To the
contrary, the record shows (i) the names of the parties and documents are identical
and (ii) the documents refer to the same underlying deed of trust as those in the first
suit and prior appeal. We conclude the identities of the parties or those in privity
with them in the instant case before our Court are the same as those in the first suit
and prior appeal. The second element of a suit barred by res judicata is met.
3) Second Action Based on the Same Claims that were Raised or Could Have
Been Raised in the First Action
Wilmington asserts that the claim brought in this second suit could have been
litigated in the first suit because the claim arises out of identical facts. Caballero
responds (i) that this suit was initiated to enjoin a foreclosure pending on April 2,
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2019, and (ii) that “[d]ifferent foreclosures mean these cases are based on a different
set of facts.” Caballero offers no authority to support his assertions.
The record shows the deed of trust security agreement is dated March 13,
2006. The record shows that (i) the deed of trust instructed “notices required under
[the] security instrument . . . will be addressed to [Caballero] at 14105 Rocksprings
Ct, Dallas, TX 75243-8603” and (ii) the notices Caballero complains of were mailed
on September 12, 2016, to P.O. Box 801553, Dallas, Texas, 75380. Caballero’s first
suit against Wilmington—as a codefendant—was filed on June 29, 2017. In his
briefing, Caballero argues “appellant has never received the Notice of Default and
Opportunity to cure from [Wilmington] as required by Texas Property Code
[§] 51.002(d).3 However, in Caballero, we held:
Caballero argued in his response to the motion for summary judgment
and he argues on appeal that appellees breached the deed of trust by
violating sections 51.002 and 51.0025 of the Property Code
by . . . failing to give Caballero statutorily required notices. Caballero
did not plead any of these violations. See TEX. PROP. CODE ANN. §§
51.002, .0025.
....
3
Texas Property Code § 51.002(d) provides:
(d) Notwithstanding any agreement to the contrary, the mortgage servicer of the debt shall
serve a debtor in default under a deed of trust or other contract lien on real property used
as the debtor’s residence with written notice by certified mail stating that the debtor is in
default under the deed of trust or other contract lien and giving the debtor at least 20 days
to cure the default before notice of sale can be given under Subsection (b). The entire
calendar day on which the notice required by this subsection is given, regardless of the
time of day at which the notice is given, is included in computing the 20-day notice period
required by this subsection, and the entire calendar day on which notice of sale is given
under Subsection (b) is excluded in computing the 20-day notice period.
TEX. PROP. CODE ANN. § 51.002(d).
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. . . Caballero also complains that . . . the notices of default and
opportunity to cure . . . were given improperly, did not comply with
statutory requirements, and constituted inherently false and deceptive
means of collecting the loan. Those documents are not in the record,
and the record contains no evidence of any of those documents, whether
they failed to meet the requirements for those documents, or whether
they were false or deceptive.
Caballero, 2020 WL 1685418, at *4-5. Thus, Caballero could have raised—and
indeed, attempted to raise—his claim that Wilmington failed to give him statutorily–
required notices in the first suit and prior appeal. See Daccach, 217 S.W.3d at 449
(“Under the transactional approach followed in Texas, a subsequent suit is barred if
it arises out of the same subject matter as the prior suit, and that subject matter could
have been litigated in the prior suit.”). We must conclude Caballero’s breach of
contract claim for failure to give notice as required by the Texas Property Code was
raised and could have been pled in his prior action against Wilmington. See id. The
third element of a suit barred by res judicata is met.
As all three res judicata requirements are met, we conclude Caballero’s second
lawsuit was barred by res judicata. Consequently, we conclude the trial court did not
err in granting summary judgment against Caballero. We overrule Caballero’s sole
issue.
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V. CONCLUSION
Having overruled Caballero’s sole issue, we affirm the judgment of the trial
court.
/Bill Pedersen, III//
BILL PEDERSEN, III
191054f.p05 JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ANTONIO CABALLERO, On Appeal from the 14th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-19-04357.
No. 05-19-01054-CV V. Opinion delivered by Justice
Pedersen, III. Justices Partida-
WILMINGTON SAVINGS FUND Kipness and Smith participating.
SOCIETY, FSB, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee WILMINGTON SAVINGS FUND SOCIETY,
FSB recover its costs of this appeal from appellant ANTONIO CABALLERO.
Judgment entered this 17th day of August, 2021.
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