                             Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00605-CV

                                          Richard KING,
                                             Appellant

                                             v.
     Deutsche Bank International Trust Co. as the Trustee for Asset-Backed-Pass-Thro
  DEUTSCHE BANK NATIONAL TRUST CO., as Trustee for Asset-Backed Pass-Through
                              Certificates, Series 2004-W5,
                                         Appellee

                    From the 131st Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008-CI-20918
                            Honorable Martha Tanner, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: July 24, 2013

AFFIRMED

           Richard King challenges the summary judgment granted in favor of Deutsche Bank

National Trust Company, as the Trustee for Asset-Backed Pass-Through Certificates, series

2004-W5 (“the Bank”). We affirm the judgment of the trial court.

                                           BACKGROUND

           On January 28, 2004, King obtained a home-equity loan secured by real property

commonly known as 13722 Hunter Moss, San Antonio, Texas (“the Property”). At closing,
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King executed a Texas Home Equity Security Instrument. The Security Instrument was assigned

to the Bank on April 11, 2007.

       On December 18, 2008, the Bank sued King for foreclosure and writ of possession of the

Property. King asserted a general denial, and also filed a counterclaim alleging violations of the

Texas Deceptive Trade Practices Act (“DTPA”), fraud, and unfair debt collection. On May 12,

2010, the Bank moved for summary judgment, arguing there were no genuine issues of material

fact reflecting that King breached his Note and Security Instrument and that the Bank was

entitled to enforce its security interest in the Property by public sale. On July 20, 2010, the trial

court granted the Bank’s motion with regard to King’s counterclaim of DTPA violations, but

denied the motion as to all other grounds. Subsequently, the Bank filed an amended motion for

traditional and no-evidence summary judgment on April 20, 2012. King filed a response on May

7, 2012. After a hearing on May 14, 2012, the trial court granted the Bank’s amended motion for

summary judgment in its entirety, allowing the Bank to foreclose on the Property and disposing

of the remainder of King’s counterclaims. King timely appealed.

       Appearing pro se, King challenges the summary judgment in fifteen issues. A pro se

litigant is held to the same standards as licensed attorneys and must comply with rules of

procedure. Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005); Shull v. United Parcel Serv., 4

S.W.3d 46, 52-53 (Tex. App.—San Antonio 1999, pet. denied). In light of our obligation to

liberally construe briefs, however, we address King’s arguments to the extent that they are

adequately briefed and that we can understand them. See TEX. R. APP. P. 38.9. To the extent

that any of his arguments are unintelligible and inadequately briefed, they are overruled. See id.

R. 38.1(i); Gray v. Nash, 259 S.W.3d 286, 294 (Tex. App.—Fort Worth 2008, pet. denied)

(holding that issues were waived due to inadequate briefing).


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                         SUMMARY JUDGMENT STANDARD OF REVIEW

       We review a trial court’s grant or denial of summary judgment de novo. Provident Life

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a traditional

motion for summary judgment, the moving party must prove that “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

expressly set out in the motion.” TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548 (Tex. 1985). “When reviewing a summary judgment, we take as true all

evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any

doubts in the nonmovant’s favor.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157

(Tex. 2004).

       A no-evidence summary judgment is essentially a directed verdict granted before trial, to

which we apply a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 750-51 (Tex. 2003). A no-evidence motion for summary judgment must be granted

if, after an adequate time for discovery, the moving party asserts that there is no evidence of one

or more essential elements of a claim or defense on which an adverse party would have the

burden of proof at trial and the nonmovant fails to produce more than a scintilla of summary

judgment evidence raising a genuine issue of material fact on those elements. TEX. R. CIV. P.

166a(i); Medistar Corp. v. Schmidt, 267 S.W.3d 150, 157 (Tex. App.—San Antonio 2008, pet.

denied). We view the evidence in the light most favorable to the non-movant, disregarding all

contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711

(Tex. 1997).




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                                                         ANALYSIS

           We begin by addressing King’s claims that the Bank’s amended motion for summary

judgment is barred by res judicata and estoppel. 1 Res judicata precludes relitigation of claims

that have been finally adjudicated, or that arise out of the same subject matter and could have

been litigated in the prior action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.

1992). The elements of res judicata are (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.

Citizens Ins. Co. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).

           First, King appears to argue that the Bank was barred from pursuing foreclosure of the

Property in its Amended Motion for Summary Judgment because the first motion for summary

judgment was denied. We disagree that the Bank was prohibited from filing a second motion for

summary judgment on any issues surviving the first order. In its original motion for summary

judgment, the Bank alleged there was no evidence to support King’s counterclaims for DTPA

violations, fraud, and unfair debt collection. On July 20, 2010, the trial court granted the motion

only with regard to King’s counterclaim of DTPA violations; in all other respects, the motion for

summary judgment was denied. Thereafter, the Bank filed its amended motion for summary

judgment, seeking a “traditional motion on its right to foreclose” on the Property and again

asserting there was no evidence to support King’s counterclaims of fraud and unfair debt

collection. A denial of summary judgment is not a final adjudication of any matter, and a motion

for summary judgment may be reurged after it has been denied. See De Los Santos v. Sw. Tex.

Methodist Hosp., 802 S.W.2d 749, 756 (Tex. App.—San Antonio 1990, no writ), overruled on



1
    King’s res judicata arguments are related to his first, second, fifth, seventh, ninth, and tenth issues.

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                                                                                             04-12-00605-CV



other grounds, 876 S.W.2d 314 (Tex. 1994); Villages of Greenbriar v. Torres, 874 S.W.2d 259,

262 (Tex. App.—Houston [1st Dist.] 1994, writ denied). The only preclusive effect of the July

20, 2010 order was that King no longer had a viable claim for violations of the DTPA.

        Second, King alleges that res judicata applies to this case because his counterclaims

against Litton Loan Servicing, the Bank’s mortgage servicer, were not adjudicated by trial in the

underlying case. However, res judicata only bars relitigation of a plaintiff’s claims, not a

defendant’s counterclaims, unless the compulsory counterclaim rule is applicable. See Musgrave

v. Owen, 67 S.W.3d 513, 519 (Tex. App.—Texarkana 2002, no pet.); Pinebrook Props., Ltd. v.

Brookhaven Lake Prop. Owners Ass’n, 77 S.W.3d 487, 496 (Tex. App.—Texarkana 2002, pet.

denied). Here, Litton Loan Servicing is not a party to this case and was introduced into the

litigation only by way of a counterclaim filed by King. Accordingly, we disagree that any

litigation relating to Litton Loan Servicing precludes the granting of summary judgment in favor

of the Bank.

        Third, King claims that res judicata invalidates the summary judgment because of a class

action lawsuit filed in California against the Bank and Litton Loan Servicing. 2 Generally, basic

principles of res judicata apply to class actions just as they do to any other form of litigation.

Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874 (1984). Consequently, claims in a

class action suit that proceed to final judgment are subject to preclusion from “relitigation.” Id.;

see also Daccach, 217 S.W.3d at 450. Here, however, even if King had established that he was a

member of the certified class in the California lawsuit, res judicata would not apply because

Litton Loan Servicing was not a party to the underlying action, and any judgment rendered by




2
 See Alan Schaffer, et al. v. Litton Loan Servicing L.P., et al., No. 2:05-CV-07673-MMM-JC (C.D. Cal. Nov. 26,
2012).

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                                                                                      04-12-00605-CV



the California court cannot serve as a basis for reversal of the trial court’s judgment in this

appeal. Accordingly, we overrule King’s issues related to res judicata.

       In his eighth issue, King argues that the judgment should not stand because his

counterclaims contained allegations of fraud, unfair debt collection, and violations of the DTPA.

We interpret this argument to mean that because King did not receive a trial on his

counterclaims, the summary judgment should not stand. Summary judgment may be granted in

favor of the movant only if the evidence offered in support of the motion establishes a right to a

judgment as a matter of law. Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex. 1984). The record

indicates that the Bank properly filed its Amended Motion for Summary Judgment and that the

trial court properly considered the motion. See TEX. R. CIV. P. 166a. King has failed to

demonstrate that the trial court erred in granting the motion. We therefore overrule King’s

eighth issue.

       In his eleventh and twelfth issues, King alleges that the Plaintiff’s Original Petition fails

to state a claim on which the court could render a ruling, and even if a proper claim was set forth,

such claim would be barred by the statute of limitations. The proper way for a defendant to

argue that a plaintiff has failed to plead a cause of action is by special exceptions.           See

Centennial Ins. Co. v. Commercial Union Ins. Co., 803 S.W.2d 479, 483 (Tex. App.—Houston

[14th Dist.] 1991, no writ) (holding that “only after special exceptions have been sustained and a

party has been given an opportunity to amend its pleadings may a case be dismissed for failure to

state a cause of action”); Moseley v. Hernandez, 797 S.W.2d 240, 242 (Tex. App.—Corpus

Christi 1990, no writ) (“A special exception is the appropriate vehicle for urging that the plaintiff

has failed to plead a cause of action . . . and the pleader must be given, as a matter of right, an

opportunity to amend the pleading.”).


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       Not only did King fail to present a special exception, but the record indicates that the

Bank sought a non-judicial foreclosure of the home equity lien because of a material breach of

the Loan Agreement. See TEX. CONST. art. XVI, § 50(a)(6); TEX. R. CIV. P. 735, 736. This was

a typical foreclosure proceeding and one upon which the trial court was capable of rendering

judgment.

       Furthermore, in Texas a party may bring suit for the recovery of real property under a

real property lien or the foreclosure of a real property lien within four years after the day the

cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.035(a) (West 2002). Here,

both parties concede that the Bank’s damages “would have been created as early as October

2006.” Because the Bank’s petition was filed on December 18, 2008, the Bank’s cause of action

for foreclosure of the mortgage was not barred by the statute of limitations. We therefore

overrule King’s eleventh and twelfth issues.

       In his third, fourth, sixth, and fourteenth issues, King alleges that he was surprised by the

Bank’s Amended Motion for Summary judgment because it was not filed seven days prior to the

hearing. The hearing on the amended motion for summary judgment was held on May 14, 2012.

The amended motion was filed on April 20, 2012. Given these facts, the record reflects that the

hearing was held twenty-four days after the Bank’s amended motion was filed and served. Thus,

there is no evidence that King was surprised or did not receive the timely and appropriate notice

required. See TEX. R. CIV. P. 166a(c). King’s issues on this subject are therefore overruled.

       Finally, in his fifteenth issue, King appears to argue that the Bank committed the tort of

abuse of process. King did not raise this claim in the trial court and has waived this issue on

appeal. See TEX. R. APP. P. 33.1(a)(1). Further, King merely alleges the elements of the tort,

and does not argue how the process was abused or how the trial court erred. This issue is


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                                                                                           04-12-00605-CV



therefore inadequately briefed. See TEX. R. APP. P. 38.1(i). Similarly, King has failed to present

anything for our review in issue thirteen 3 due to inadequate briefing. See id. Accordingly, we

overrule King’s remaining issues.

                                             CONCLUSION

        Based on the foregoing, we overrule King’s issues on appeal and affirm the judgment of

the trial court.

                                                     Rebeca C. Martinez, Justice




3
 Without providing any argument, King’s thirteenth issue provides: “Texas Homestead Protection Law. This is
defendants homestead. A homestead is protection from forced sale of all debts.”

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