         TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                       NO. 03-02-00182-CV




                                 Rhett Webster Pease, Appellant


                                                  v.


     Balcom, Mann & Stevens; Diana Estala Stevens; and Barbara J. Lipscomb, Appellees



      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
          NO. 99-10036, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING




               Rhett Webster Pease appeals from the district court=s summary judgment that he take

nothing on his claims for wrongful foreclosure, conversion, duress, slander, fraud, and bad faith. On

appeal, he contends that the evidence does not support appellees= claims that they were assigned the

note on which they foreclosed, that they had the authority and right to foreclose, and that Barbara J.

Lipscomb was the trustee of record when the foreclosure occurred. Pease also argues that Lipscomb

waived her affirmative defenses of res judicata and collateral estoppel by not pleading them at trial.

We will affirm the judgment.
                                           BACKGROUND

                This is one of several cases concerning ownership and possession of a house and real

property in northern Travis County. Pease signed a note on the property in 1994.1 In 1996, Pease

began reducing his mortgage payments by deducting taxes and insurance payments, asserting that he

paid his own taxes and did not owe the insurance payment; the mortgage company,2 however, did

not agree to these deductions and eventually refused to accept what it deemed partial payments.

                The mortgage company initiated a nonjudicial foreclosure in 1997, hiring Stevens and

Balcom, Mann & Stevens (Athe firm@) as counsel. Lipscomb became the substitute trustee. Pease

sued the mortgage company, alleging that it was not the holder of the note. He filed for bankruptcy

protection in 1997 and 1998.

                The mortgage company foreclosed in 1999, purchasing the property and obtaining a

declaratory judgment that it owned the property. In a forcible entry and detainer action, a court

awarded the mortgage company possession of the property.




        1
         Others on the note are Janell Pease and Jane Moon, who are not parties here.
        2
         More than one mortgage company held the mortgage during its existence. Because there is no
need to distinguish among the companies in this appeal, we will refer to them collectively as Athe mortgage
company.@




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                Pease then filed three more suits. He filed this suit against the firm, Stevens, and

Lipscomb, alleging wrongful foreclosure, conversion, duress, slander, fraud, and bad faith. He filed a

separate action against the mortgage company, contending that the substitute trustee=s deed was void

and seeking an injunction to prevent the mortgage company from asserting ownership; the mortgage

company responded by seeking an injunction against Pease from filing and maintaining suits

concerning the property. Pease also filed an action in federal court against Stevens and the mortgage

company, as well as judges, clerks, law-enforcement officers, and governmental bodies involved in the

foreclosure; the federal district court dismissed all of Pease=s causes of action.

                In the injunction action, the state district court denied Pease=s request and granted the

mortgage company=s request for an injunction. The injunction provides that


        Plaintiff, Rhett Webster Pease, is permanently enjoined from, and he is to cease and
        desist in, maintaining any existing lawsuits, including Cause No. 99-10036, and filing
        any new lawsuits, against Principal Residential Mortgage, Inc., its representatives and
        employees, Diana Estala Stevens, Gregory A. Balcom, June A. Mann, and Balcom,
        Mann & Stevens, P.C., relating in any way to the real property located at 12600
        Limerick Avenue, Austin, Texas 78727 . . . .


Pease v. Principal Mortgage, Inc., No. 99-11614 (261st Dist. Ct., Travis County, Tex. Jan. 31, 2000)

(emphasis added).

                In this action, Stevens and the firm moved for summary judgment, asserting that

Pease=s claims were barred by the anti-suit injunction, res judicata, and collateral estoppel. They also

requested summary judgment based on problems with particular claims. Lipscomb adopted their

motion. The district court granted the motions without specifying a basis.


                                            DISCUSSION

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               Pease raises five issues concerning the summary judgment. By four issues, he challenges

the evidentiary support for the judgment. By the fifth, he contends that Lipscomb was not entitled to

summary judgment based on unpleaded affirmative defenses.

               A summary judgment is appropriate when there are no material fact issues and the

movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). In evaluating a

motion for summary judgment, courts must take evidence favorable to the nonmovant as true, indulge

every reasonable inference in favor of the nonmovant, and resolve any doubts in the nonmovant=s

favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When a summary

judgment is granted on general grounds, we must consider on appeal whether any theory asserted by

the movant will support the summary judgment. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79

(Tex. 1989). If any theory advanced is meritorious, we will affirm the summary judgment. See id. On

appeal, the appellant must negate all grounds for the judgment. State Farm Fire & Cas. Co. v. S.S.,

858 S.W.2d 374, 381 (Tex. 1993).


Anti-suit injunction

               Appellees moved for summary judgment on grounds that the permanent anti-suit

injunction entered in Travis County District Court cause number 99-11614 bars Pease from pursuing

this suit. The injunction prohibits Pease from Amaintaining any existing lawsuits, including Cause

No. 99-10036@ relating to the property and against various parties including Stevens and the firm.

The cause number listed in the order is the district court cause number for this case. None of Pease=s

appellate issues addresses the anti-suit injunction. Because Pease failed to challenge this basis of the




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summary judgment, we must affirm the judgment favoring Stevens and the firm. See Rogers, 772

S.W.2d at 79.

                The anti-suit injunction does not prohibit Pease from suing Lipscomb. Her adoption

of the other appellees= motion for summary judgment does not extend the reach of the injunction.

Thus, we must explore whether the summary judgment favoring her is supported by the remaining

bases of the motion for summary judgment.


Affirmative defenses

                Appellees asserted the affirmative defenses of res judicata and collateral estoppel against

many of Pease=s claims. Stevens and the firm raised these in both their motion for summary judgment

and in their amended answer; Lipscomb never filed an answer asserting any affirmative defenses, but

did join and adopt the other appellees= motion for summary judgment in which they asserted the

defenses. See Tex. R. Civ. P. 58 (adoption of pleading by reference); Chapman v. King Ranch, Inc., 41

S.W.3d 693, 700 (Tex. App.CCorpus Christi 2001, pet. filed) (approving adoption of other parties=

summary judgment motion).

                By his fifth issue, Pease asserts that Lipscomb was not entitled to summary judgment

based on affirmative defenses raised by other parties because she did not plead them in her answer.

See Tex. R. Civ. P. 94. Pease, however, did not file an objection or special exception to Lipscomb=s

failure to plead these defenses in her answer and, accordingly, waived his right to raise that complaint

on appeal. See Tex. R. Civ. P. 90 (AEvery defect, omission or fault in a pleading either of form or of

substance, which is not specifically pointed out by exception in writing and brought to the attention

of the judge in the trial court . . . before the judgment is signed, shall be deemed to have been waived

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by the party seeking reversal on such account . . . .@). A party may request and be granted summary

judgment based on affirmative defenses not pleaded in an answer if the nonmovant does not object to

the absence of an answer containing those affirmative defenses and if the motion is meritorious. See

Roark v. Stallworth Oil, 813 S.W.2d 492, 494-95 (Tex. 1991). Lipscomb did not plead affirmative

defenses in her answer, but joined in and adopted the summary judgment motion by Stevens and the

firm that was based in large part on affirmative defenses. In Pease=s answer to the motion for summary

judgment, he states, AThe defendants answered asserting general denial. Defendants have filed no

amended answer alleging affirmative defenses or special exceptions.@ This is a neutral observation of

fact, is neither an objection nor an exception, and does not request the district court take any action

based on the observation; the grounds Pease urges to defeat the summary judgment motion do not

include Lipscomb=s failure to plead affirmative defenses in her answer. We conclude that Pease

waived any pleading defect or omission in Lipscomb=s answer, and that the affirmative defenses were

tried by consent based on the summary judgment motion that Lipscomb adopted. We must therefore

assess whether the record supports the summary judgment favoring Lipscomb on these bases.

                The motion for summary judgment included assertions of res judicata and collateral

estoppel. Res judicata, or claim preclusion, precludes relitigation of claims that have been fully

adjudicated, or arise out of the same subject matter and that could have been litigated in a prior

action. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). It requires proof of a final

judgment on the merits, a second action based on claims that were or could have been raised in the

first action, and identity or privity of the parties in the two actions. Id. Defensive collateral estoppel,

or issue preclusion, can prevent relitigation by a plaintiff of issues previously lost against another


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defendant. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 519 (Tex. 1998).

The litigant asserting collateral estoppel must show that the facts sought to be litigated in the second

action were fully and fairly litigated in the first action and that those facts were essential to the

judgment in the first action. Id. Strict identity of parties is not required; it is only necessary that the

party against whom the doctrine is asserted was a party or in privity with a party in the first action.

Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 802 (Tex. 1994).

                All of Pease=s claims in this suit arise from the same foreclosure that gave rise to his

previous suits. Pease=s allegations of wrongful foreclosure are identical to those he made in the

injunction suit, including allegations of wrongdoing by Lipscomb. He claims fraud in this suit as

before, although his allegations are stated differently. Some of the fraud allegations from the 1997 suit

have been restated as part of his claims for conversion, duress, and slanderCmade for the first time in

this suit. Thus, Pease either brought or could have brought the claims raised in this suit in his

previous suits. The district court rendered take-nothing summary judgments against these claims in

both the 1997 suit and the injunction suit. Even though Lipscomb was not a defendant in the

previous actions, as substitute trustee she is in privity with the mortgage company with respect to

Pease=s claims that the foreclosure and related actions by her and the mortgage company harmed him;

illustrating this point, Pease complained of Lipscomb=s participation in the foreclosure in the

injunction suit even when he did not seek to recover from her.

                Res judicata and collateral estoppel bar Pease=s claims against Lipscomb.


                                           CONCLUSION




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                The record supports the district court=s summary judgment against Pease=s claims. The

anti-suit injunction bars Pease from maintaining this action against Stevens and the firm. Although

Lipscomb failed to plead the affirmative defenses of res judicata and collateral estoppel in her answer,

Pease did not object to this failure and waived his right to complain about it on appeal. His claims

against Lipscomb are barred by res judicata and collateral estoppel because they either have been

brought against parties in privity with Lipscomb and defeated, or they should have been brought in

his previous lawsuits.

                We affirm the judgment.




                                               David Puryear, Justice

Before Justices Kidd, Patterson and Puryear

Affirmed

Filed: December 31, 2002

Do Not Publish




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