                              Fourth Court of Appeals
                                     San Antonio, Texas
                                MEMORANDUM OPINION

                                        No. 04-19-00764-CV

                                          Nancy ALANIS,
                                             Appellant

                                                 v.

   WELLS FARGO BANK NATIONAL ASSOCIATION, as Trustee for the Pooling and
 Servicing Agreement Dated as of October 1, 2006 Securitized Asset-Backed Receivables LLC
Trust 2006-NC3 Mortgage Pass-Through Certificates Series 2006 NC3, Ocwen Loan Servicing,
                       LLC, and Mackie Wolf Zientz & Mann, PC,
                                        Appellees

                     From the 438th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2019-CI-03042
                          Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: April 29, 2020

AFFIRMED

           This is an appeal from a trial court’s order granting Wells Fargo’s motion for summary

judgment. Nancy Alanis argues the trial court erred by granting Wells Fargo’s motion for

summary judgment and by dismissing her petition for bill of review and other causes of action.

We affirm the trial court’s judgment.
                                               BACKGROUND 1

        In June of 2006, Alanis borrowed $193,500 from New Century Mortgage Company to

purchase a home. Alanis signed a note secured by a deed of trust. Alanis’s note and deed of trust

were subsequently transferred and assigned to Wells Fargo.

        In January of 2011, Alanis was sent notice of Wells Fargo’s acceleration of the note and

intent to foreclose. In February of 2011, Alanis filed suit, alleging numerous causes of action

against Wells Fargo, Ocwen Loan Servicing, LLC, and Mackie Wolf Zientz & Mann, P.C.

(collectively, “Wells Fargo”). Wells Fargo filed a counterclaim seeking a judicial foreclosure.

Thereafter, Wells Fargo obtained a series of orders in their favor relating to various claims asserted

by Alanis, culminating in a final judgment, dated March 3, 2016, which (1) granted Wells Fargo a

judicial foreclosure, (2) declared that Alanis take nothing on her remaining claims, and (3)

disposed of all remaining parties and claims. Alanis appealed, and this court affirmed the trial

court’s judgment. Alanis, 2018 WL 1610939, at *1.

        On February 14, 2019, Alanis filed a petition for bill of review, seeking review of the same

judgment that was the subject of her prior appeal. In addition to her bill of review, Alanis asserted

various causes of action against Wells Fargo in her petition. Alanis then moved for a partial

summary judgment on her bill of review. Wells Fargo moved for a no-evidence summary

judgment on Alanis’s bill of review and a traditional summary judgment on Alanis’s other claims.

The trial court granted Wells Fargo’s summary judgment and denied Alanis’s partial summary

judgment. In its order, the trial court dismissed Alanis’s bill of review with prejudice, declared

that Alanis take nothing on her claims, and disposed of all remaining parties and claims. Alanis

now appeals that judgment.

                                          STANDARD OF REVIEW


1
  The following is a brief summation of the underlying facts and the procedural history of the case. For a more
thorough recitation of the underlying facts, see Alanis v. Wells Fargo Bank Nat’l Ass’n, No. 04-17-00069-CV, 2018
WL 1610939, at *1 (Tex. App.—San Antonio Apr. 4, 2018, pet. denied) (mem. op.).
       We review a trial court’s order granting summary judgment de novo. Cmty. Health Sys.

Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). When reviewing a summary

judgment, we take evidence favorable to the nonmovant as true, and indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Id. at 680.

       A party may move for summary judgment on the ground that there is no evidence of one

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

of proof at trial. TEX. R. CIV. P. 166a(i). The trial court must grant the motion unless the adverse

party produces more than a scintilla of summary judgment evidence raising a genuine issue of

material fact on each of the challenged elements. See King Ranch, Inc. v. Chapman, 118 S.W.3d

742, 751 (Tex. 2003). More than a scintilla of evidence is defined as evidence that “rises to a level

that would enable reasonable and fair-minded people to differ in their conclusions.” Id. (quoting

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Less than a scintilla of

evidence exists when the evidence is “so weak as to do no more than create a mere surmise or

suspicion” of a fact. Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

       In a traditional motion for summary judgment, the moving party bears the burden of

proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of

law. Hansen, 525 S.W.3d at 681.

                                             ANALYSIS

I.     Bill of Review

       A bill of review is an equitable proceeding brought by a party seeking to set aside a prior

judgment that is no longer appealable or subject to a motion for new trial. Baker v. Goldsmith,

582 S.W.2d 404, 406 (Tex. 1979). However, “a bill of review may not be used as an additional

remedy by a litigant who has made a timely but unsuccessful appeal.” McIntyre v. Wilson, 50

S.W.3d 674, 679 (Tex. App.—Dallas 2001, pet. denied). A bill of review complainant must prove

(1) a meritorious defense to the underlying cause of action (2) that the complainant was prevented
from making by the fraud, accident, or wrongful act of the opposing party, (3) unmixed with any

fault or negligence on the complainant’s part. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex.

1998). With respect to the fraud requirement, only extrinsic fraud will support a bill of review.

King Ranch, Inc., 118 S.W.3d at 752.

       In her petition for bill of review, Alanis argues she was prevented from advancing a

meritorious defense, claiming Wells Fargo forged mortgage records that effectuated an assignment

of lien from New Century to Wells Fargo. According to Alanis, because of this alleged forgery,

the assignment of lien from New Century to Wells Fargo was void; therefore, Wells Fargo lacked

standing to seek a foreclosure.

       However, as Wells Fargo urged in its no-evidence motion for summary judgment, Alanis

was not prevented from advancing this defense. Alanis previously argued Wells Fargo lacked

standing to seek a foreclosure in the trial court and subsequent appeal, categorizing her argument

as one of “forgery.” See Alanis, 2018 WL 1610939, at *2. In Alanis, this court recognized that

Alanis “only had standing to challenge the assignment from New Century to Wells Fargo on

grounds that would render the assignment void.” Here, again, Alanis argues the assignment was

“forged” because the New Century employees lacked authority to execute certain relevant

documents. In Alanis, this court explained:

       The execution of a document by a person who lacks authority renders the document
       voidable, not void. . . . Because Alanis does not present any argument that would
       render the assignment from New Century to Wells Fargo void, she does not have
       standing to challenge the assignment to Wells Fargo . . . .

Id. (citations omitted). This court concluded Wells Fargo established its standing to seek a

foreclosure. Id. Alanis may not attempt to relitigate this defense through a bill of review. See

McIntyre, 50 S.W.3d at 679.

       On this record, Alanis cannot show she was prevented from making a meritorious defense

in the underlying cause of action. See Tice v. City of Pasadena, 767 S.W.2d 700, 705 (Tex. 1989)
(dismissing the complainant’s bill of review because it “constitute[d] an attempt on the part of [the

complainant] to relitigate the same issues which have already been litigated by the same parties

and which have been decided by this court”); Nabelek v. Bradford, No. 14-04-01177-CV, 2006

WL 915824, at *2 (Tex. App.—Houston [14th Dist.] Apr. 6, 2006, pet. denied) (mem. op.)

(affirming dismissal of appellant’s bill of review where the court found that appellant was not

prevented from asserting his defenses in the underlying action because he had previously asserted

those same defenses in the trial and appellate court).

        Accordingly, the trial court did not err in granting Wells Fargo’s motion for summary

judgment and denying Alanis’s bill of review. 2

II.     Remaining Claims

        In addition to her bill of review, Alanis asserts various causes of action against Wells Fargo

in her petition. In its motion for summary judgment, Wells Fargo argues these claims are barred

by res judicata.

        “Res judicata precludes relitigation of claims that have been finally adjudicated, or that

arise out of the same subject matter and that could have been litigated in the prior action.” Amstadt

v. U. S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). To establish its entitlement to summary

judgment on the affirmative defense of res judicata, Wells Fargo is required to prove: (1) a prior

final judgment on the merits by a court of competent jurisdiction; (2) the identity of the parties, or

those in privity with them; and (3) a second action based on the same claims which were raised,

or could have been raised, in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862

(Tex. 2010). In determining whether the second action is based on the same claims which were

raised, or could have been raised, in the first action, “[w]e apply the transactional approach to res


2
  Additionally, Alanis contends the trial court erred in sustaining Wells Fargo’s objections to her summary judgment
evidence. We need not address whether the trial court erred in sustaining Wells Fargo’s objections because the
exclusion of Alanis’s summary judgment evidence did not result in the rendition of an improper judgment. See
Spradlin v. State, 100 S.W.3d 372, 381 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (first citing TEX. R. APP. P.
44.1(a)(1); then citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995)).
judicata, which requires claims arising out of the same subject matter to be litigated in a single

lawsuit.” Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 58 (Tex. 2006). “A determination

of what constitutes the subject matter of a suit necessarily requires an examination of the factual

basis of the . . . claims in the prior litigation.” Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed.

Savs., 837 S.W.2d 627, 630 (Tex. 1992).

       Here, there was a prior final judgment on the merits by a court of competent jurisdiction.

See Alanis, 2018 WL 1610939, at *1. Wells Fargo and Alanis were parties to the prior suit and

are parties to this suit. Both in the prior suit and in the present suit, Alanis’s complaints arise out

of Wells Fargo’s alleged wrongful foreclosure. Both in the prior suit and in the present suit, Wells

Fargo’s alleged wrongful foreclosure is premised on the same alleged forgery of the same

documents allegedly executed by the same persons. We conclude that Alanis’s claims in the

present suit involve the same subject matter as the prior suit and are, therefore, barred by res

judicata. See Amstadt, 919 S.W.2d at 652.

       Accordingly, the trial court did not err in granting Wells Fargo’s motion for summary

judgment and dismissing Alanis’s remaining claims.

III.   Motion to Quash

       Alanis contends the trial court erred when it granted Wells Fargo’s motion to quash

Alanis’s written discovery requests. A trial court’s discovery rulings are reviewed for an abuse of

discretion. Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998). A trial court abuses its

discretion when it acts arbitrarily or unreasonably or without reference to any guiding rules or

principles. Id.

       A review of Alanis’s written discovery requests in the present suit indicates Alanis sought

additional information surrounding the assignment from New Century to Wells Fargo. In light of

our holding in Alanis that the assignment from New Century to Wells Fargo was facially valid and

that Alanis lacked standing to challenge the assignment, we cannot conclude the trial court abused
its discretion in granting Wells Fargo’s motion to quash written discovery requests that concern

the same subject matter. See Alanis, 2018 WL 1610939, at *2; see also Miller v. State & Cty. Mut.

Fire Ins. Co., 1 S.W.3d 709, 717 (Tex. App.—Fort Worth 1999, pet. denied) (holding the trial

court did not abuse its discretion in granting a motion to quash where extensive discovery had been

conducted on the same issues in the prior suit). 3

                                                   CONCLUSION

         We affirm the trial court’s judgment.

                                                           Rebeca C. Martinez, Justice




3
  Alanis also argues the trial court granted Wells Fargo’s motion for summary judgment without adequate time for
discovery. Alanis has failed to preserve this complaint for our review. See Willms v. Ams. Tire Co., 190 S.W.3d 796,
807 (Tex. App.—Dallas 2006, pet. denied) (“In order to preserve a complaint that the summary judgment was
premature, the party claiming it did not have adequate time for discovery must file either an affidavit explaining the
need for further discovery or a verified motion for continuance.” (citing Tenneco, Inc. v. Enter. Prods. Co., 925 S.W.2d
640, 647 (Tex. 1996))).
