Mark D. Mattlage-Thurmond and Robert J. Snowden v. First National Bank of McGregor D/B/A TFNB Your Bank for Life, David Littlewood, and Friedrich Matthies

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-23-00040-CV

MARK D. MATTLAGE-THURMOND AND ROBERT J. SNOWDEN, Appellants

V.

FIRST NATIONAL BANK OF MCGREGOR D/B/A
TFNB YOUR BANK FOR LIFE, DAVID LITTLEWOOD,
AND FRIEDRICH MATTHIES, Appellees

On Appeal from the 414th District Court
McLennan County, Texas
Trial Court No. 2020-3125-5

Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
 MEMORANDUM OPINION

Mark D. Mattlage-Thurmond (Mattlage) and Robert J. Snowden (collectively Appellants)

sued First National Bank of McGregor d/b/a TFNB Your Bank for Life (Bank), David

Littlewood, and Friedrich Matthies (collectively Appellees) following a dispute over a series of

loans obtained from the Bank. The trial court granted summary judgment in favor of Appellees

and dismissed all of Appellants’ claims. Appellants argue that the trial court erred by

concluding, among other things, that their claims were barred by a prior settlement during

bankruptcy proceedings.1 Because we conclude that the summary judgment was proper, we

affirm the trial court’s judgment.

I. Factual and Procedural Background

This case is largely determined by its factual and procedural history. As a result, we

recite it in detail.

Mattlage and Snowden owned a 185-acre tract of property located in McLennan County,

Texas (Crawford Property), which they sought to develop as a men’s retreat. Mattlage-

Thurmond v. First Nat’l Bank of McGregor, No. 10-22-00019-CV, 2022 WL 4546902, at *1

(Tex. App.—Waco Sept. 28, 2022, no pet.) (mem. op.). To effectuate that goal, Mattlage and

Snowden approached Matthies, the Bank’s executive vice president, to inquire about refinancing

the purchase-money mortgage on the Crawford Property and obtaining financing for the men’s

retreat. The Bank refinanced the mortgage and provided five short-term loans secured by the

1
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (Supp.). We follow the
precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
Crawford Property and three other rental properties owned by Appellants. According to

Appellants, “Matthies told [them] that the loans would be rolled into one loan with a long term

amortization at the conclusion of the discussed construction.”

Appellants “built a swimming pool and an apartment complex on the [Crawford]

[P]roperty, and they partially completed the RV park. However, they could not complete the

project in its entirety due to overspending and weather delays, amongst other issues.” In re

Mattlage-Thurmond, No. 22-50032, 2022 WL 3544393, at *1 (5th Cir. Aug. 18, 2022)

(per curiam). They “nonetheless opened their venue to the public but were unable to realize their

financial projections for revenues. The Bank tried to help by extending the notes’ maturity and

payment terms,” but Appellants “were unable even to make interest-only payments on the

notes.”2 Id.

As noted by the Waco Court of Appeals, because Appellants “eventually stopped making

payments on the loans, . . . [the Bank] began the process for foreclosure of the [Crawford

Property].” Mattlage-Thurmond, 2022 WL 4546902, at *1. “[O]n November 4, 2019,

[Appellants] filed a voluntary Chapter 11 [bankruptcy] case” to stop the foreclosure sale. In re

Mattlage-Thurmond, 2022 WL 3544393, at *1.

On February 26, 2020, after a settlement conference, the bankruptcy court entered an

agreed order between Appellants and the Bank. Among other things, the agreed order recited

that, as a result of the five short-term loans, “[the Bank] ha[d] a claim against [Appellants] in the

2
On February 8, 2016, Appellants signed a $336,900.00 promissory note to the Bank that was set to mature on
August 8, 2016, which provided for monthly interest-only payments (“the February 2016 Note”). The February
2016 Note was secured by a deed of trust in favor of the Bank on the Crawford Property.
3
amount of $1,174,085.35” and gave Appellants fourteen days to file any objection to the claim.

The agreed order required Appellants to send the Bank “adequate protection payment from the

cash flow of the Crawford Property in the amount of $3,000.00” per month and stated, “By

August 1, 2020, all the [Appellants’] remaining obligations to [the Bank], including [another]

September 2018 Note, plus non-default interest and all fees and expenses referenced herein, shall

be paid in full.”3 Appellants were ordered to sign a deed in lieu of foreclosure to the Bank, and

the terms of the agreed order provided that, on Appellants failure to comply with the obligations

in the agreed order, “the automatic stay [would] be lifted to permit [the Bank] to file and record

the Deed in Lieu.”

Appellants failed to comply with the terms of the agreed order. On September 4, 2020,

the Bank sent Appellants a notice of foreclosure on the Crawford Property.

In response to the Crawford Property foreclosure, on October 2, 2020, Appellants “filed

suit in district court in McLennan County . . . asserting that there was an agreement to

consolidate the construction loans.” Mattlage-Thurmond, 2022 WL 4546902, at *1. Appellants’

original petition asserted agency and respondeat superior4 and contended that they closed on the

loans because they relied on Matthies’ statements, which they characterized as “[the Bank’s]

3
The September 2018 Note is the subject of our opinion on Appellants’ appeal in cause number 06-23-00039-CV.
4
The original petition stated,

Whenever in this petition it is alleged that any Defendant did, or failed to do, any act, thing and/or
omission, it is meant that Defendant itself or its agents, officers, servants, employees, vice
principals, or representatives either did or failed to do such act, thing and/or omission, and it was
done with the full authorization or ratification of Defendant, and/or done in the normal routine,
course and scope of the agency or employment of Defendant or its agents, officers, servants,
employees, vice principals, or representatives and/or with actual and/or apparent authority of
Defendant.
4
representations.” Appellants wrote that Littlewood, the Bank’s president, informed them “that

[the Bank] was not going to consolidate the loans despite their earlier promise to do so” and that

Appellants “could [make] interest-only payments for one year and revisit” the consolidation

issue, but were denied making interest-only payments for two years. Appellants also said that

Littlewood told them they were “too old to operate a business” during a board meeting and that

Matthies said the same thing in the Bank lobby. Based on the legal theory that Matthies and

Littlewood were the Bank’s agents, Appellants asserted causes of action against Appellees for

common-law and statutory fraud, fraudulent inducement, intentional misrepresentation, unjust

enrichment, breach of contract, defamation, tortious interference with a contract, and tortious

interference with business relations and sought declaratory relief and a restraining order

preventing the Crawford Property foreclosure.

The district court granted Appellants’ requested temporary restraining order, prompting

Appellees’ motion to dissolve it because the Crawford Property was the subject of a pending

bankruptcy and the bankruptcy court had already denied Appellants’ request to delay the

upcoming foreclosure “two days before filing [the district court] lawsuit.” Appellees attached

the bankruptcy court’s order permitting foreclosure of the Crawford Property and argued that

Appellants’ claims were barred by res judicata. After filing an answer that raised, among other

things, the affirmative defense of statute of frauds, Appellees removed the district court suit to

bankruptcy court on October 30, 2020.

The bankruptcy court dissolved the district court’s temporary injunction after noting that

Appellants were sophisticated parties and that “all . . . of the promissory notes that initiated these

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various [short-term] loans exclude[d] oral agreements” by containing the following terms:

“THIS PROMISSORY NOTE REPRESENTS THE FINAL AGREEMENT BETWEEN

BORROWER AND LENDER AND MAY NOT BE CONTRADICTED BY EVIDENCE OF

PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF

BORROWER AND LENDER. THERE ARE NO UNWRITTEN ORAL AGREEMENTS.” See

id. at *1. On January 5, 2021, the bankruptcy court remanded Appellants’ claims against

Littlewood and Matthies, but further proceedings in the bankruptcy court, which impact the

outcome here, continued.

On April 6, 2021, the Crawford Property was sold by foreclosure. On May 18, 2021, the

bankruptcy court granted the Bank’s motion for summary judgment against Appellants on their

claims “for fraudulent inducement/intentional misrepresentation/common law fraud, statutory

fraud, unjust enrichment, breach of contract, defamation, negligent misrepresentation, tortious

interference with a contract, tortious interference with business relations, and requested remedies

of damages, attorneys’ fees and costs, declaratory relief, accounting, and specific performance.”5

Appellants “appealed the bankruptcy court’s [summary judgment] order . . . to the United States

District Court for the Western District of Texas in Waco,” to no avail. Id. at *1. They again

appealed to the Fifth Circuit, which found, “To the extent [Appellants] assert that they are

entitled to equitable relief, they have provided no legal basis to support this contention. . . . The

bankruptcy court held hearings, reviewed the evidence on multiple occasions, and determined

that . . . the statute of frauds barred the[ir] claims.” In re Mattlage-Thurmond, 2022 WL

5
These were the same claims raised against the Bank in the original petition in this case.
6
3544393, at *2. As a result, the Fifth Circuit affirmed the summary judgment in August 2022.

Id.

Appellants also appealed the bankruptcy court’s orders that (1) denied them leave to file

amended claims and (2) granted the Bank’s motion for summary judgment on the ground that

res judicata barred any claims that could have been raised by Appellants.6 The Fifth Circuit

affirmed the bankruptcy court after finding that res judicata applied because the agreed order

“bar[red] subsequent claims.” Id.

On October 19, 2022, Littlewood and Matthies moved to dismiss the claims against them

for want of prosecution. Because the motion to dismiss was unsuccessful, they amended their

answer to include res judicata as an affirmative defense.

On February 8, 2023, Littlewood and Matthies filed traditional and no-evidence motions

for summary judgment. Among other things, Littlewood and Matthies argued in the traditional

motion that they had conclusively established the res judicata defense because the claims against

the Bank were adjudicated by the bankruptcy court and Appellants’ claims against Littlewood

and Matthies “ar[o]se as a result of them being officers and employees of the [B]ank.” The

motion also argued that Appellants had no evidence of essential, required elements on their

causes of action.

In their response to the summary judgment motion, Appellants argued that their claims

were not barred by res judicata because the bankruptcy proceedings were only between them and

6
The bankruptcy court said, “I’m going to grant summary judgment to the Bank on their motion and deny the motion
to amend the pleadings because basically what they’re asserting is more defensive causes of action counterclaims
which are barred by res judicata.”
7
the Bank, not Littlewood and Matthies. They also asserted that, “but for Matthies’

misrepresentations on consolidating the loans, [Appellants] would not have entered into the

contracts with [the Bank] or agree[d] to make interest only payments on the loans for a year.”7

On February 28, 2023, before the trial court could rule on the summary judgment motion,

Appellants amended their petition to remove the agency and respondeat superior language from

their original petition. While the original petition for common-law fraud and intentional

misrepresentation said that the Bank, “through its agent Mr. Matthies, fraudulently made

material representations” regarding consolidation of the loans, the amended petition, which

added a claim for negligent misrepresentation, simply said that “Matthies made [these] oral

representations outside of the scope of his employment.”8 While the defamation allegation in the

original petition, which was based on statements that Appellants were too old to operate a

business, claimed that the Bank was “liable for Messrs. Littlewood and Matthies’ statements

because they were acting in their official capacity during the time the statements were made,” the

amended petition claimed that the remarks were “outside their scope of employment.” The

amended petition also dropped Appellants’ claims of statutory fraud, fraudulent inducement,

unjust enrichment, breach of contract, tortious interference with a contract, and tortious

interference with business relations as well as a request for declaratory relief.

7
Appellants’ summary judgment response included Matthies’ deposition, which stated, “[W]e have also explained
that many times, that we did intend for them to complete the projects and, when they got through, that their cash
flow per month would allow us to set it on a long-term path; but that never came to fruition.”
8
The original petition was verified by Mattlage, who declared under penalty of perjury that the facts provided in the
original petition were within his personal knowledge and were true and correct. The amended petition was
unverified.
8
 Following a hearing, the trial court granted the Bank’s summary judgment and dismissed

all of Appellants’ claims, with prejudice.

II. Standard of Review

“We review a trial court’s summary judgment de novo.” Mattlage-Thurmond, 2022 WL

4546902, at *4 (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003)). Where, as here, “the order granting the summary judgment does not specify the grounds

upon which judgment was rendered, we must affirm the summary judgment if any of the grounds

in the summary judgment motion is meritorious.” Lotito v. Knife River Corp.-S., 391 S.W.3d

226, 227 (Tex. App.—Waco 2012, no pet.) (citing FM Props. Operating Co. v. City of Austin, 22

S.W.3d 868, 872 (Tex. 2000)).

Here, we find dispositive the issue of whether the trial court properly granted the

traditional summary judgment on Appellees’ res judicata defense. “The movant in a traditional

summary judgment motion must show that there is no genuine issue of material fact and that he

is entitled to judgment as a matter of law.” Mattlage-Thurmond, 2022 WL 4546902, at *4

(citing TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.

1985)). “We must consider all the evidence in the light most favorable to the nonmovant,

indulging every reasonable inference in favor of the nonmovant and resolving any doubts against

the motion.” Id. “In our review, we take the nonmovant’s competent evidence as true.” Id.

(citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005)).

9
III. Res Judicata Barred Appellants’ Claims

“A final judgment on the merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that action.” Comer v. Murphy Oil

USA, Inc., 718 F.3d 460, 467 (5th Cir. 2013) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452

U.S. 394, 398 (1981)). For this reason, “[r]es judicata, sometimes referred to as claim

preclusion, bars the litigation of claims that either have been litigated or should have been raised

in an earlier suit.” Flying Diamond-W. Madisonville L.P. v. GW Petroleum, Inc., No. 10-07-

00281-CV, 2009 WL 2707405, at *6 (Tex. App.—Waco Aug. 26, 2009, no pet.) (mem. op.)

(citing Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005)). “When two

successive suits seek recovery for the same injury, ‘a judgment on the merits operates as a bar to

the later suit, even though a different legal theory of recovery is advanced in the second suit.’”

Id. (quoting Nilsen v. City of Moss Point, Miss., 701 F.2d 556, 564 (5th Cir. 1983)); see Comer,

718 F.3d at 467 (“[E]ven if the second suit is for a different cause of action, the right, question,

or fact once so determined must, as between the same parties or their privies, be taken as

conclusively established, so long as the judgment in the first suit remains unmodified.”

(alteration in original)).

In its traditional motion, Appellees argued that the plaintiffs’ claims were barred by res

judicata because of the agreed order and the bankruptcy court’s summary judgment based on the

statute of frauds. “Because the issue is whether the federal bankruptcy court order bars the

[plaintiffs’] claims in state court, the federal law of res judicata controls.” Mitchell v. Fort Davis

State Bank, 243 S.W.3d 117, 122 (Tex. App.—El Paso 2007, no pet.) (citing Geary v. Tex. Com.

10
Bank, 967 S.W.2d 836, 837 (Tex. 1998) (per curiam) (“since bankruptcy is a federal proceeding,

federal law controls whether res judicata will bar a later state court proceeding”)); see Semtek

Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507 (2001).

“A bankruptcy judgment bars a subsequent suit if: (1) both cases involve the same

parties; (2) a court of competent jurisdiction rendered the prior judgment; (3) the prior decision

was a final judgment on the merits; and (4) the same cause of action is at issue in both cases.”

In re Mattlage-Thurmond, 2022 WL 3544393, at *3 (citing Latham v. Wells Fargo Bank, N.A.,

896 F.2d 979, 983 (5th Cir. 1990)).

As for the first requirement, the Fifth Circuit has explained “that ‘parties’ for purposes of

res judicata does not mean formal, paper parties only, but also includes parties in interest, that is,

that persons whose interests are properly placed before the court by someone with standing to

represent them are bound by the matters determined in the proceeding.” Gulf Island-IV, Inc. v.

Blue Streak-Gulf Is Ops, 24 F.3d 743, 746 (5th Cir. 1994) (quoting Latham v. Wells Fargo Bank,

N.A., 896 F.2d 979, 983 (5th Cir. 1990)). In other words, “[t]he doctrine of res judicata . . . bars

a second action by parties and their privies on matters actually litigated in a previous suit, as well

as claims ‘“which, through the exercise of diligence, could have been litigated in a prior suit.”’”

Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50, 58 (Tex. 2006) (quoting Getty Oil Co. v.

Ins. Co. of N. Am., 845 S.W.2d 794, 799 (Tex. 1992)). The Fifth Circuit has noted “that

directors, officers, and employees of a company are in privity with the company for purposes of

res judicata.” Grynberg v. BP, P.L.C., 527 F. App’x 278, 282 n.4 (5th Cir. 2013) (per curiam)

(citing Henry v. Farmer City State Bank, 808 F.2d 1228, 1235 n.6 (7th Cir. 1986)); see Sacks v.

11
Tex. S. Univ., 83 F.4th 340, 346 (5th Cir. 2023) (per curiam) (“A vicarious liability relationship

between an employer and employee can create the requisite privity here.”) (citing Lubrizol Corp.

v. Exxon Corp., 871 F.2d 1279, 1288–89 (5th Cir. 1989)); see also Wang v. The Prudential Ins.

Co. of Am., No. 3:09-CV-1309-O, 2010 WL 2000521, at *1 (N.D. Tex. May 18, 2010) (order),

aff’d sub nom Judy Chou Chiung-Yu Wang v. Prudential Ins. Co. of Am., 439 F. App’x 359 (5th

Cir. 2011) (per curiam), (citing Lubrizol Corp., 871 F.2d at 1288) (“Where an initial suit was

filed against a corporation on the grounds of vicarious liability, the employees are in privity with

the employer for purposes of res judicata.”).

The record showed that Appellants filed their original petition against Appellees while a

bankruptcy proceeding was pending. The original petition, which was verified, asserted that

Littlewood and Matthies were acting within the course and scope of their employment when

making representations about loan consolidation and alleged defamatory statements. Before the

original petition was filed, Appellants had already entered into an agreed order. In re Mattlage-

Thurmond, 2022 WL 3544393, at *1. The summary judgment evidence showed that Littlewood

participated in the significant negotiations that led to the agreed order “(through counsel) in [his]

capacity as [the Bank’s] Chief Executive Officer].” Despite the agreement, Appellants had

attempted to raise essentially the same claims “against the Bank based on alleged oral

agreements to consolidate their short-term loans,” in addition to a defamation claim. Id. Based

both on the agreed order and the statute of frauds, the bankruptcy court ruled against Appellants

on their claims, and its judgment was affirmed on appeal.

12
 Even so, Appellants argue they should be able to raise essentially the same claims

because the same parties were not involved in the litigation. They reason that the agreed order

was only between Appellants and the Bank and related only to the amounts owed to the Bank.

Yet, Appellants raised objections to the Bank’s bankruptcy claim on the ground that they “had

pending claims against the Bank and did not owe any funds,” including claims for fraud,

misrepresentation, and defamation. Id. In other words, their objections to the Bank’s claim were

based on Littlewood’s and Matthies’ conduct. As a result, the claims against Littlewood and

Matthies were incorporated into the bankruptcy proceedings, which were not merely about the

amounts owed to the Bank. Instead, the bankruptcy proceedings considered Littlewoods’ and

Matthies’ conduct and resolved the merits of several claims based on the statute of frauds, which

Appellants do not address. In the bankruptcy proceedings, the Bank adequately represented

Appellees’ interests by defending the claims involving them and by filing motions for summary

judgment in the bankruptcy court.9 For these reasons, we conclude that Littlewood and Matthies

were in privity with the Bank.

As for the second requirement, Appellants do not dispute that the agreed order or

summary judgment based on the statute of frauds was entered by a court of competent

jurisdiction.

9
Appellants further argue that their amended petition clarified that their lawsuit was no longer against Littlewood
and Matthies in their official capacities. Yet, Appellants’ response to the summary judgment motions, and their
summary judgment evidence, showed that conversations with Littlewood occurred because he was the Bank
president, that conversations with Matthies occurred because he was the executive vice president for the Bank, and
that Appellants imputed Littlewood’s and Matthies’s statements to the Bank. Even taking their amended petition as
true, Appellants’ claims in the bankruptcy proceedings were based on the same alleged conduct by Littlewood and
Matthies.
13
 As for the third requirement, “‘an order allowing a proof of [a bankruptcy] claim is . . . a

final judgment’ for purposes of res judicata.” Id. at *3 (citing In re Baudoin, 981 F.2d 736, 742

(5th Cir. 1993)). Also, “an order granting relief from an automatic stay is a final and appealable

order.” In re Chunn, 106 F.3d 1239, 1241 (5th Cir. 1997). The “bankruptcy court’s February

26, 2020[,] entry of the Agreed Order” acknowledged the Bank’s claims and expressly stated that

the parties agreed to pay them. In re Mattlage-Thurmond, 2022 WL 3544393, at *3. As a result,

this constituted an order allowing the Bank’s claim, which was a final judgment. Id. Moreover,

the bankruptcy court entered a summary judgment on the merits of claims against the Bank

involving Littlewood and Matthies based on the statute of frauds, and that summary judgment

was affirmed on appeal.

Next, we address the last requirement of res judicata—whether the same cause of action

was at issue in the bankruptcy proceedings. Federal courts apply “the transactional test of

Section 24 of the Restatement (Second) of Judgments.” Id. “Under that test, the preclusive

effect of a prior judgment extends to all rights the original plaintiff had ‘“with respect to all or

any part of the transaction, or series of connected transactions, out of which the [original] action

arose.”’” Id. (alteration in original) (quoting Petro-Hunt, L.L.C. v. United States, 365 F.3d 385,

395–96 (5th Cir. 2004) (quoting Restatement (Second) of Judgments § 24(1) (1982))). “The

critical issue under this determination is whether the two actions under consideration are based

on ‘the same nucleus of operative facts.’” Id. at *4 (quoting Osherow v. Ernst & Young, LLP

(In re Intelogic Trace, Inc.), 200 F.3d 382, 386 (5th Cir. 2000)). “[T]he type of relief requested,

14
substantive theories advanced, or types of rights asserted” are not the focus of this test. Id.

(quoting United States v. Davenport, 484 F.3d 321, 326 (5th Cir. 2007)).

Here, the Fifth Circuit has eased our analysis in this matter. Appellants raised defamation

claims, which were resolved by the bankruptcy court via a summary judgment that was

eventually affirmed by the Fifth Circuit. As noted by the Fifth Circuit, Appellants’ claims, “all

relate[d] to the parties’ lending and borrowing relationship” and were based on the argument that

the Bank “failed to consolidate said money as [Littlewood and Matthies] had [allegedly]

previously orally agreed.” Id. “In short, the ‘factual predicate of the claims asserted’ entirely

revolve[d] around construction on the Crawford Property, the loans provided for the

construction, the [Appellants’] obligations to pay back the loans, and the Bank’s attempts to

recover its money.” Id. “Thus, the claims are the same under the transactional test, and the

fourth element of res judicata is satisfied.” Id.

We conclude that Appellees established the defense of res judicata as a matter of law. As

a result, the trial court did not err by dismissing Appellants’ claims.

IV. Conclusion

We affirm the trial court’s judgment.

Charles van Cleef
Justice

Date Submitted: November 6, 2023
Date Decided: November 20, 2023

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