Nancy Alanis v. U.S Bank National Association, as Successor Trustee to Bank of America, National Association, as Successor by Merger to Lasalle Bank, M.A., as Trustee for the MLMI Trust Series 2006-He6, Nationstar Mortgage, LLC D/B/A Mr. Cooper

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-21-00021-CV

Nancy ALANIS,
Appellant

v.

U.S. BANK NATIONAL ASSOCIATION, as successor trustee to Bank of America, National
Association, as successor by Merger to Lasalle Bank, M.A., as trustee for the MLMI Trust Series
2006-He6; Nationstar Mortgage, LLC d/b/a Mr. Cooper,
Appellees

From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2020-CI-01238
Honorable Michael E. Mery, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Lori I. Valenzuela, Justice

Delivered and Filed: August 31, 2022

AFFIRMED

In this dispute about her home equity loan, Appellant Nancy Alanis sued two financial

institutions for multiple causes of action including breach of contract and fraud, and the defendants

counterclaimed. Alanis moved for no-evidence summary judgment; the defendants nonsuited their

counterclaims and they moved for traditional summary judgment on limitations and res judicata.

The trial court granted the defendants’ motion and denied Alanis’s no-evidence motion, and Alanis
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appeals. Because Alanis’s claims were precluded, and her no-evidence motion was moot, we

affirm the trial court’s orders.

BACKGROUND

The underlying suit over Alanis’s home equity loan is her third; it follows one in state court

and a second in federal court.

A. Home Equity Loan, Foreclosure

In 2006, Alanis owned a duplex at 1040 Blanco Road, San Antonio, Bexar County, Texas.

After the duplex was damaged by a neighbor’s falling tree limb, Alanis obtained a $96,000 home

equity loan which was secured by a deed of trust on the property. The loan was eventually

transferred to U.S. Bank, N.A., and in 2010, after disputes about her loan payments, U.S. Bank

foreclosed on the property.

B. First Lawsuit

In her first suit, Alanis challenged the foreclosure proceedings in state district court in

Bexar County, and she was awarded damages and attorney’s fees; on appeal, those awards were

reversed. Alanis v. US Bank Nat’l Ass’n (Alanis I), 489 S.W.3d 485, 515 (Tex. App.—Houston

[1st Dist.] 2015, pet. denied). In 2013, Alanis remained in possession of the property, and U.S.

Bank advised Alanis that her new loan servicer was Nationstar Mortgage LLC.

C. Second Lawsuit

After Nationstar threatened a second foreclosure, Alanis sued Nationstar in federal district

court. Alanis v. Nationstar Mortgage LLC (Alanis II), No. SA18CV00138OLGESC, 2019 WL

4003117, at *1 (W.D. Tex. Aug. 23, 2019). Alanis and Nationstar settled, and her federal suit was

dismissed with prejudice.

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D. Third Lawsuit, Instant Appeal

In January 2020, Alanis sued U.S. Bank and Nationstar (collectively U.S. Bank) in state

district court. She asserted numerous claims, including breach of contract and fraud, based on the

defendants’ alleged violations of provisions of section 50 of Article XVI of the Texas Constitution.

Alanis and U.S. Bank filed competing motions for summary judgment. U.S. Bank’s

traditional motion sought summary judgment on the grounds of limitations and res judicata. The

trial court denied Alanis’s motions, and it granted U.S. Bank’s motion.

Alanis appeals, and she presents a single, two-part issue. She argues that the trial court

erred in (1) granting U.S. Bank’s traditional motion for summary judgment and (2) denying her

no-evidence motion.

We begin by reciting the standard of review.

STANDARD OF REVIEW

For a traditional motion for summary judgment, a trial court may render summary

judgment when “there is no genuine issue as to any material fact and the moving party is entitled

to judgment as a matter of law on the issues [presented].” TEX. R. CIV. P. 166a(c); accord Tex.

Workforce Comm’n v. Wichita Cty., 548 S.W.3d 489, 492 (Tex. 2018); Lightning Oil Co. v.

Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).

“We review a trial court’s summary judgment de novo.” Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010); accord Wichita Cty., 548 S.W.3d at 492.

“When the parties file competing summary judgment motions and the trial court grants one

and denies the other, ‘we consider the summary judgment evidence presented by both sides,

determine all questions presented, and if the trial court erred, render the judgment the trial court

should have rendered.’” Wichita Cty., 548 S.W.3d at 492 (quoting Sw. Bell Tel., L.P. v. Emmett,

459 S.W.3d 578, 583 (Tex. 2015)).

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“When a trial court does not specify the grounds it relied upon in making its determination,

reviewing courts must affirm summary judgment if any of the grounds asserted are meritorious.”

Lightning Oil, 520 S.W.3d at 45; accord FM Props. Operating Co. v. City of Austin, 22 S.W.3d

868, 872 (Tex. 2000).

U.S. BANK’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

In her first complaint, Alanis argues the trial court erred when it granted U.S. Bank’s

traditional motion, which presented limitations and res judicata grounds. Without stating the

grounds for its decision, the trial court granted summary judgment against all of Alanis’s claims.

A. Parties’ Arguments

Alanis argues that, inter alia, because new facts arose after the conclusion of the previous

cases, the trial court could not have properly granted U.S. Bank’s motion for summary judgment

based on res judicata. Specifically, Alanis contends that “no financial institution ever produced

the constitutionally infirm documents forming the basis of her current claims [and] she first learned

of the constitutional infirmities [in her loan closing documents] now at issue through a March 30,

2020 letter she received from U.S. Bank’s attorney.” And, in her view, these new material facts

show there was no “identity of issues in this suit and those litigated in the former actions.”

U.S. Bank argues that, inter alia, all of Alanis’s claims are barred by res judicata. It

contends that the record conclusively establishes all three elements of its affirmative defense, and

the trial court could have properly granted summary judgment based on res judicata.

B. Claim Preclusion Elements

“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 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); accord Joachim, 315 S.W.3d at 862.

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“The party relying on the affirmative defense of res judicata must prove (1) a prior final

determination 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 as were or could have been

raised in the first action.” Joachim, 315 S.W.3d at 862 (citing Amstadt v. U.S. Brass Corp., 919

S.W.2d 644, 652 (Tex. 1996)); accord Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449

(Tex. 2007).

C. Prior Final Judgment

The first element of U.S. Bank’s affirmative defense is “a prior final determination on the

merits by a court of competent jurisdiction.” See Joachim, 315 S.W.3d at 862; Daccach, 217

S.W.3d at 449.

Both sides note that, in 2010, Alanis sued U.S. Bank for wrongful foreclosure and

violations of the Texas Constitution’s provisions on home equity loans in the 408th Judicial

District Court in Bexar County, Texas, in cause number 2010-CI-07833, and the trial court

rendered a final judgment on April 2, 2014. See Alanis I, 489 S.W.3d at 492, 499.

Both sides also note that, in 2018, Alanis sued Nationstar for claims under the Fair Debt

Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692–1692p, and the Texas Debt Collection Act

(TDCA), TEX. FIN. CODE ANN. §§ 392.001–.404, in the Western District of Texas in cause number

SA-18-CV-00138-OLG, and the district court signed a “Joint Stipulation of Dismissal with

Prejudice,” which disposed of all of Alanis’s claims against Nationstar, on December 18, 2019.

See Alanis II, 2019 WL 4003117, at *1.

The prior determinations on the merits were from courts of competent jurisdiction and each

final determination was signed before Alanis filed the underlying suit on January 21, 2020. See

Joachim, 315 S.W.3d at 862; Daccach, 217 S.W.3d at 449.

The record conclusively establishes the first element.

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E. Identity of Parties

The second element of U.S. Bank’s defense is an “identity of parties or those in privity

with them.” See Joachim, 315 S.W.3d at 862; Daccach, 217 S.W.3d at 449.

Alanis sued U.S. Bank in the first suit, Alanis I, 489 S.W.3d at 491, and she sued Nationstar

in the second suit, Alanis II, 2019 WL 4003117, at *1. In the underlying suit, she sued U.S. Bank

and Nationstar, the same parties she sued in the prior suits. See Joachim, 315 S.W.3d at 862;

Daccach, 217 S.W.3d at 449.

The record conclusively establishes the second element.

F. Present Claims Were or Could Have Been Raised in Earlier Suits

The third element of U.S. Bank’s defense is “a second action based on the same claims as

were or could have been raised in the first action.” See Joachim, 315 S.W.3d at 862; Daccach,

217 S.W.3d at 449.

1. Whether Claims Could Have Been Raised

To determine whether a claim could have been raised in a prior suit, we use a “transactional

approach to res judicata, which requires claims arising out of the same subject matter to be litigated

in a single lawsuit.” Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50, 58 (Tex. 2006) (citing

Barr, 837 S.W.2d at 631).

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.” Barr, 837 S.W.2d at 630; accord

Daccach, 217 S.W.3d at 449. We consider “whether the facts are related in time, space, origin, or

motivation, whether they form a convenient trial unit, and whether their treatment as a trial unit

conforms to the parties’ expectations or business understanding or usage.” Daccach, 217 S.W.3d

at 449 (quoting Barr, 837 S.W.2d at 631).

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If the facts relevant to a present claim were evident in a prior suit, and the other essential

elements are met, claim preclusion will prevent “another bite at the apple.” Hallco, 221 S.W.3d

at 60.

2. Claims in Prior Suits

In the first suit—based on U.S. Bank’s alleged mishandling of the initiation and servicing

of her home equity loan on the 1040 Blanco Road property—Alanis raised the following claims

against U.S. Bank: “trespass to try title, violations of the False Lien Statute, fraud, conspiracy,

breach of contract, violations of the [Texas] FDCPA and its federal counterpart, violations of the

Texas Constitution’s provisions regarding home equity loans, negligence, and wrongful

foreclosure, and she sought declaratory judgment voiding the foreclosure.” Alanis I, 489 S.W.3d

at 492.

In the second suit—based on Nationstar’s alleged mishandling of the servicing of her home

equity loan on the 1040 Blanco Road property—Alanis raised the following claims against

Nationstar: violations of the federal debt collection statutes, and violations of the Texas debt

collection statutes. Alanis II, 2019 WL 4003117, at *1.

3. Claims in Present Suit

In the underlying suit—based on U.S. Bank’s and Nationstar’s respective alleged

mishandling of the initiation and servicing of her home equity loan on the 1040 Blanco Road

property—Alanis raised the following claims against U.S. Bank and Nationstar: violations of the

False Lien Statute, fraud, breach of contract, violations of the Texas Debt Collection Act,

violations of the Texas Constitution’s provisions regarding home equity loans, gross negligence,

quiet title, intentional infliction of emotional distress, attorney’s fees, exemplary damages,

injunctive relief, and declaratory judgment.

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4. Same Claims Previously Raised

As we have noted above, Alanis’s present claims are based on the same facts: the alleged

mishandling of the initiation and servicing of her home equity loan for her 1040 Blanco Road

property, beginning at the loan inception and continuing through Nationstar’s servicing of the loan.

Cf. Daccach, 217 S.W.3d at 449; Hallco, 221 S.W.3d at 58; Barr, 837 S.W.2d at 631 (“[A] final

judgment on an action extinguishes the right to bring suit on the transaction, or series of connected

transactions, out of which the action arose.”).

In the first suit and the present suit, Alanis raised these claims: violations of the False Lien

Statute, fraud, breach of contract, violations of the Texas Debt Collection Act, violations of the

Texas Constitution’s provisions regarding home equity loans, attorney’s fees, and declaratory

judgment. See Alanis I, 489 S.W.3d at 492.

In the second suit and the present suit, Alanis raised these claims against Nationstar:

violations of the federal debt collection statutes and violations of the Texas debt collection statutes.

See Alanis II, 2019 WL 4003117, at *1.

The record conclusively establishes that these present claims were raised in prior suits. See

Joachim, 315 S.W.3d at 862; Daccach, 217 S.W.3d at 449.

5. Alleging New Constitutional Violations

Despite these obvious unities, Alanis argues that new facts have occurred since the prior

suits, and therefore res judicata is not applicable. See Marino v. State Farm Fire & Cas. Ins. Co.,

787 S.W.2d 948, 949–50 (Tex. 1990) (“[A] judgment in one suit will not operate as res judicata to

a subsequent suit on the same question between the same parties ‘where, in the interval, the facts

have changed, or new facts have occurred which may alter the legal rights or relations of the

parties.’” (quoting City of Lubbock v. Stubbs, 327 S.W.2d 411, 414 (Tex. 1959))).

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Specifically, Alanis asserts her present claims are based on constitutional infirmities in the

loan documents, and she contends she could not have brought the present claims in the prior suits

because “she first learned of the constitutional infirmities now at issue through a March 30, 2020

letter she received from U.S. Bank’s attorney.”

As evidence of the allegedly new facts, in her October 13, 2020 affidavit, Alanis asserts

she did not receive some constitutionally required notices at closing (in 2006) or copies of her

closing documents. She states that she received copies of the documents in her loan records on

March 30, 2020, including the “NOTICE CONCERNING EXTENSIONS OF CREDIT DEFINED

BY SECTION 50(a)(6), ARTICLE XVI, TEXAS CONSTITUTION,” but that was the first time

she learned that she had not been provided all the proper documents at closing.

Thus, according to Alanis, her present claims accrued on March 30, 2020, and these new

facts vitiate any res judicata defense. See Marino, 787 S.W.2d at 949–50.

6. Disposition of New Constitutional Violations

For summary judgment review purposes, we take Alanis’s affidavit’s alleged facts as true,

but we are not bound to accept her legal conclusions. See Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005).

In her first suit, Alanis may not have had copies of the entire set of executed loan

documents, and some of the constitutionally required disclosures may not have been given to her

at closing, but the facts relevant to Alanis’s present claims were evident in the first suit. Cf. Hallco,

221 S.W.3d at 60. Specifically, Alanis’s deed of trust was part of the first trial’s record, and the

“deed of trust provided that it ‘secures an extension of credit defined by Section 50(a)(6), Article

XVI, Texas Constitution’ and that all of the terms and conditions of that section ‘for creating a

valid lien on a homestead have been fully satisfied.’” Alanis I, 489 S.W.3d at 492.

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This deed disclosure pointed Alanis to section 50—which contains the provisions she now

complains of—and she was free to review the constitution’s other protections and examine her

documents, including the deed of trust, for their compliance with the constitutional protections in

her first suit. See id. See generally TEX. CONST. art. XVI, § 50 (homestead protections).

Further, in her second suit, Alanis knew of Nationstar’s alleged misconduct in attempting

to collect on the loan. Alanis II, 2019 WL 4003117, at *1.

Although Alanis may not have discovered or discerned other claims she could have raised

when she prosecuted her first two suits, the loan documents showing U.S. Bank had not complied

with all the constitutionally required disclosures were evident at the times of her prior suits, and

she could have raised her present claims in the prior suits. Cf. Hallco, 221 S.W.3d at 58–60.

We conclude as a matter of law that Alanis’s present constitutional violations claims

against U.S. Bank and Nationstar for their alleged violations of the Texas Constitution are based

on the same transaction or series of connected transactions, and they could have been raised in the

prior suits. See Barr, 837 S.W.2d at 631 (“[A] final judgment on an action extinguishes the right

to bring suit on the transaction, or series of connected transactions, out of which the action arose.”).

7. New Claims

In the present suit, Alanis raises new claims of gross negligence, quiet title, intentional

infliction of emotional distress, exemplary damages, and injunctive relief.

For these new claims, the relevant facts were also evident at the time of her prior suits, and

she could have raised them then. Cf. Hallco, 221 S.W.3d at 58–60. Even if Alanis did not have

the relevant facts when she filed her original petitions, through her diligence, which was required,

see Barr, 837 S.W.2d at 628, she could have discovered the facts and amended her pleadings. See

id. at 631 (“Discovery should put a claimant on notice of any need for alternative pleading.”).

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Further, as demonstrated by the proceedings in the prior suits, Alanis’s claims formed a

convenient trial unit which the parties tried together. See Daccach, 217 S.W.3d at 449 (convenient

trial unit); Alanis II, 2019 WL 4003117, at *1 (claims, proceedings); Alanis I, 489 S.W.3d at 491

(claims, proceedings).

Having considered “the factual basis of [Alanis’s] claims in the prior litigation [and] the

factual matters that make up the gist of [Alanis’s present claims],” see Barr, 837 S.W.2d at 630,

we conclude as a matter of law that Alanis’s new claims against U.S. Bank and Nationstar are

based on the same transaction or series of connected transactions, and they could have been raised

in the prior suits, see id. at 631.

G. Claims Barred by Res Judicata

U.S. Bank moved for summary judgment against all of Alanis’s claims based on its

affirmative defenses of limitations and 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 the use of diligence, should

have been litigated in the prior suit.” Barr, 837 S.W.2d at 628.

Here, the record conclusively establishes the three essential elements of U.S. Bank’s

affirmative defense of res judicata: (1) prior determinations by courts of competent jurisdiction,

(2) identity of parties in the present suit with the parties in the prior suits, and (3) present claims

that could have been raised in the prior suits. See Joachim, 315 S.W.3d at 862; Hallco, 221 S.W.3d

at 58–60. Accordingly, Alanis’s claims in the present suit are precluded by res judicata. See

Joachim, 315 S.W.3d at 862; Daccach, 217 S.W.3d at 449.

Because the trial court’s order granting U.S. Bank’s summary judgment did not state the

grounds it relied on, and the trial court could have properly granted U.S. Bank’s traditional motion

for summary judgment based solely on res judicata, we overrule Alanis’s complaint that the trial

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court erred by granting U.S. Bank’s motion for summary judgment. See Lightning Oil Co. v.

Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017); Barr, 837 S.W.2d at 628.

ALANIS’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

In her second complaint, Alanis argues the trial court erred when it denied her no-evidence

motion for summary judgment against U.S. Bank’s counterclaims as moot after U.S. Bank

nonsuited its counterclaims.

A. Additional Background 1

After Alanis sued U.S. Bank and Nationstar, in a combined pleading, U.S. Bank and

Nationstar filed counterclaims against Alanis: Nationstar sued her for breach of contract, U.S.

Bank sued her for equitable subrogation, and both sought costs and attorney’s fees.

In response, Alanis filed a no-evidence motion for summary judgment against U.S. Bank’s

and Nationstar’s counterclaims. Alanis’s no-evidence motion asserted twenty-two “No-Evidence

motion for summary judgment issues” which alleged U.S. Bank and Nationstar had no evidence

to support some element of their respective counterclaims.

Thereafter, U.S. Bank and Nationstar nonsuited all their counterclaims against Alanis, and

on the same day it granted U.S. Bank’s and Nationstar’s traditional motion for summary judgment,

the trial court denied Alanis’s no-evidence motion as moot.

B. Parties’ Arguments

Alanis argues that U.S. Bank’s nonsuit of its counterclaims against her “did not render the

entirety of [her] summary judgment motion moot—only those portions of the motion expressly

relating to U.S. Bank’s counterclaims.” She contends that paragraph 19 of her motion asked the

trial court to render judgment in her favor, parts of paragraph 20 “refer to live non-counterclaim

1
In this “Additional Background” section, we refer to U.S. Bank and Nationstar separately.

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type issues warranting resolution on their merits,” and we should construe her no-evidence motion

as a traditional motion and render judgment in her favor on her claims.

U.S. Bank argues that when it nonsuited its counterclaims, Alanis’s no-evidence motion

assailing those counterclaims became moot. U.S. Bank also argues that Alanis’s references in her

no-evidence motion to her own affirmative claims did not keep her no-evidence motion alive after

U.S. Bank nonsuited its counterclaims. Further, U.S. Bank notes that Alanis never asked the trial

court to consider her no-evidence motion as a traditional motion, and she cannot raise this

argument for the first time on appeal.

C. No-Evidence Motion

Alanis’s motion was titled, and it referenced itself as, “Plaintiff Nancy Alanis No-Evidence

Motion For Summary Judgment.” In substance, her motion states the standard of review for a no-

evidence motion only; it does not state or refer to the standard of review for a traditional motion.

The argument section heading is labeled “No Evidence Summary Judgment Issues,” and

the introductory paragraph for the individual issues states “The No-evidence motion for summary

judgment issues are as follows.” Each individual issue contains a heading and two paragraphs.

Each heading reads “No-Evidence Summary Judgment – Issue No. [X],” and each of the

subsequent twenty-one issues have the identical heading with only the sequence number changed.

The first sentence of each first paragraph begins with “On pg. [X] of Defendants’ Original

Counterclaim filed on July 30, 2020, . . . .” The first sentence of each second paragraph begins

with the assertion that the defendants have no evidence to support a specific evidentiary element.

Finally, the prayer asks the trial court to “grant her Plaintiff Nancy Alanis No Evidence

Motion [f]or Summary Judgment in its entirety,” but it does not ask the trial court to consider part

or all of the motion as a traditional motion or grant her summary judgment on her claims.

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D. Disposition of No-Evidence Motion

On appeal, Alanis asks that we consider her no-evidence motion as a traditional motion

because her defensive no-evidence motion against U.S. Bank’s counterclaims refers to her

affirmative claims in her pleadings. But we “cannot ‘read between the lines, infer or glean from

the pleadings or the proof’ any grounds for granting the summary judgment other than those

grounds expressly set forth before the trial court [in the motion for summary judgment].” See

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993) (alterations in original)

(quoting Clark v. First Nat’l Bank of Highlands, 794 S.W.2d 953, 956 (Tex. App.—Houston [1st

Dist.] 1990, no writ)).

Except for the one-sentence paragraph 10 of her no-evidence motion, which we address

below, Alanis’s repetitive, consistent motion presents only no-evidence grounds against U.S.

Bank’s counterclaims; its form, title, and headings are all consistent with its substance: they all

indicate it is a no-evidence motion. Cf. Sanchez v. Mulvaney, 274 S.W.3d 708, 710 (Tex. App.—

San Antonio 2008, no pet.).

Alanis refers to her affirmative claims against U.S. Bank in her no-evidence issues, but she

does so in the defensive context of seeking summary judgment on no-evidence grounds against

U.S. Bank’s counterclaims.

Her motion does not expressly set out her affirmative claims and seek traditional summary

judgment on them, and we may not carve out Alanis’s references from their express, defensive,

no-evidence context to create otherwise unexpressed traditional grounds for affirmative relief. See

TEX. R. CIV. P. 166a(c); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013); McConnell, 858

S.W.2d at 343.

Nowhere in her individual no-evidence issues does she ask the court to grant her

affirmative relief on her own claims that she references, and irrespective of the res judicata bar,

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the trial court could not have properly granted traditional summary judgment on Alanis’s claims

on the basis of her no-evidence motion. See TEX. R. CIV. P. 166a(c) (requiring the movant to “state

the specific grounds therefor”); McConnell, 858 S.W.2d at 343.

Thus, when U.S. Bank nonsuited its counterclaims, Alanis’s no-evidence motion against

them became moot, and the trial court did not err in denying her no-evidence motion against U.S.

Bank’s counterclaims. See City of Dallas v. Albert, 354 S.W.3d 368, 375 (Tex. 2011) (citing

Joachim, 315 S.W.3d at 862) (“If a claim is timely nonsuited, the controversy as to that claim is

extinguished, the merits become moot, and jurisdiction as to the claim is lost.”).

E. Disposition of Traditional Motion

In paragraph 10 of her no-evidence motion, Alanis states the following: “Alanis has alleged

a fraud and [Texas Civil Practice and Remedies Code] 12.002 claim and seeks to quiet title and

set aside a [Texas Rules of Civil Procedure] Rule 736(9) Order which bars the application of res

judicata and therefore, the Defendants[’] reliance on the doctrine of res judicata fails as a matter

of law.”

Assuming arguendo that the trial court should have construed paragraph 10 as a ground for

a traditional motion for summary judgment on Alanis’s fraud and fraudulent lien claims and her

action to quiet title, cf. Amouri v. Sw. Toyota, Inc., 20 S.W.3d 165, 168 (Tex. App.—Texarkana

2000, pet. denied) (addressing a motion for summary judgment that contained both traditional and

no-evidence summary judgment language), it would still avail her nothing.

First, Alanis would have had to have met her traditional summary judgment burden on

those claims. See TEX. R. CIV. P. 166a(c); Tex. Workforce Comm’n v. Wichita Cty., 548 S.W.3d

489, 492 (Tex. 2018). Even if she had, we have already determined that all of Alanis’s claims

were barred by res judicata, and the trial court’s denial of Alanis’s traditional motion on her fraud

and fraudulent lien claims in conjunction with its granting of U.S. Bank’s traditional motion

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against all of Alanis’s claims was, at worst, harmless error. Cf. G & H Towing Co. v. Magee, 347

S.W.3d 293, 298 (Tex. 2011) (reviewing a summary judgment granted against a cause of action

that was not presented in the motion but deciding that because “the omitted cause of action [was]

precluded as a matter of law by other grounds raised in the case,” the error was harmless).

F. Disposition of Second Complaint

U.S. Bank’s nonsuit of its counterclaims against Alanis rendered her no-evidence motion

against those counterclaims moot, and to the extent that any portion of her no-evidence motion

could be considered a traditional motion for summary judgment on her affirmative claims, the trial

court’s denial of any such traditional grounds was at most, harmless error.

We overrule Alanis’s second complaint.

CONCLUSION

Contrary to Alanis’s arguments, there were no new facts in this third suit over her home

equity loan initiation and servicing to allow her claims to avoid U.S. Bank’s affirmative defense

of res judicata, and the trial court did not err in granting U.S. Bank’s traditional motion for

summary judgment against all of Alanis’s claims.

Further, when U.S. Bank nonsuited its counterclaims against her, Alanis’s no-evidence

motion against U.S. Bank’s counterclaims became moot, and the trial court’s denial of her no-

evidence motion was proper; its denial of any ground for traditional summary judgment included

in her no-evidence motion was, at worst, harmless error.

Accordingly, we affirm the trial court’s orders denying Alanis’s no-evidence motion

against U.S. Bank’s counterclaims and granting U.S. Bank’s traditional motion for summary

judgment against all of Alanis’s claims.

Patricia O. Alvarez, Justice

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