Holly Dawn Ruthven v. D. Elaine Wike ( 2024 )

Opinion issued March 28, 2024
In The
Court of Appeals
For The
First District of Texas
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NO. 01-22-00696-CV
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HOLLY DAWN RUTHVEN, Appellant
V.
D. ELAINE WIKE, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 22-CV-0969
MEMORANDUM OPINION
Texas law gives conclusive effect to final judgments and prohibits collateral
attacks on claims and issues that have previously been finally resolved. See Barr v.
Resolution Tr. Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628–31 (Tex.
1992) (discussing res judicata and collateral estoppel). This is an appeal from a
summary judgment dismissing a collateral challenge on the grounds of res judicata.
On appeal, appellant Holly Dawn Ruthven argues that the prior judgment is void,
and therefore res judicata does not preclude her lawsuit. We conclude that the
underlying judgment is not void and res judicata applies. We affirm the trial
court’s judgment.
Background
Appellee D. Elaine Wike loaned appellant Holly Dawn Ruthven money to
develop a parcel of real estate into a commercial RV park. The loan was secured
by a note and deed of trust. Ruthven defaulted on the loan. After multiple failed
attempts to resolve their dispute without litigation, Ruthven and Wike filed
separate lawsuits against each other. Ruthven sued Wike challenging the validity
of Wike’s lien on the property. Wike sued Ruthven for foreclosure, pleading in the
alternative for either a non-judicial foreclosure under Texas Rules of Civil
Procedure 735 and 736, or a judicial foreclosure with an order of sale and writ of
possession. Wike’s and Ruthven’s separate lawsuits were consolidated under cause
number 15-CV-1153.
In 2019, the trial court rendered final, default judgment in Wike’s favor. The
court found that Ruthven owed Wike the unpaid balance on the loans, along with
principal and unpaid interest, which amounted to a total of $216,440.40. The final
judgment for judicial foreclosure included an order of sale and writ of possession.
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In its findings of fact and conclusions of law, the trial court explained the
reasons for the default judgment:
As evidenced below, the Court had no alternative but to issue “Death
Penalty” sanctions against this Plaintiff/Counter-Defendant
(RUTHVEN) and enter said adverse Final Judgment as a direct
consequence of this Plaintiff/Counter-Defendant’s willful, obstructive
disregard of this Court’s lawful orders, her intentional defiance and
abuse of discovery, and her intentional, disingenuous conduct and
misrepresentations to this Court.
The trial court then enumerated the many specific abuses of discovery and
litigation that Ruthven committed. The trial court detailed the applicable legal
standards, and it concluded:
107. Sanctions are proper and justified under the facts and the law
against Plaintiff/Counter-Defendant RUTHVEN pursuant to
Rule 215 of the Texas Rules of Civil Procedure.
108. WIKE’s pleadings are presumed true. TEX. R. CIV. P. 13.
109. WIKE is entitled to the Order of Sale to enforce her security
interest in the property. TEX. R. CIV. P. 309.
110. WIKE is entitled to the Writ of Possession. TEX. R. CIV. P. 310.
Ruthven filed a notice of appeal in this Court, but she failed to file a brief.
Ruthven v. Wike, No. 01-19-00817-CV, 2021 WL 3556663, at *1 (Tex. App.—
Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem. op.). In our opinion
dismissing her appeal for want of prosecution, we stated: “Appellant’s brief was
originally due on February 27, 2020. Although appellant’s counsel has filed
numerous pleadings and received numerous extensions, she has failed to file a brief
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on behalf of appellant almost eighteen months later.” Id. (emphasis original). We
detailed the procedural history in this Court, which included eleven requests for
extension of time to file a brief, and we dismissed the appeal for want of
prosecution. Id. at *1–*2. The Texas Supreme Court denied Ruthven’s petition for
review and motion for rehearing of the denial of petition for review. See Supreme
Court of Texas Order of Feb. 4, 2022, denying review
(https://www.txcourts.gov/supreme/orders-opinions/2022/february/february-4-
2022/), and Supreme Court of Texas Order of April 1, 2022, denying rehearing
https://www.txcourts.gov/supreme/orders-opinions/2022/april/april-1-2022/). Our
Court’s mandate issued on April 15, 2022.
After the mandate issued, Wike informed Ruthven that she intended to begin
collection, and she offered Ruthven an opportunity to leave voluntarily before
contacting a sheriff to effectuate eviction. Eventually a writ of execution was
issued, and the property was sold at a public auction in July 2022, pursuant to the
order of sale.1
Meanwhile, on June 1, 2022, Ruthven filed an original petition in this case.
In her original petition, Ruthven alleged multiple causes of action challenging
Wike’s lien, based on allegations of unfairness and fraud in connection with the
loans from Wike. In her petition, Ruthven alleged that the trial court’s 2019
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Wike bought the property at public auction for approximately $25,000, which was
credited to the deficiency judgment of approximately $216,000.
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judgment was void because the trial court granted relief under Rules 735 or 736 of
the Texas Rules of Civil Procedure (regarding nonjudicial foreclosure) when it had
a mandatory duty to dismiss Wike’s claims under those rules.
In response, Wike alleged that Ruthven’s 2022 suit was barred by res
judicata, and she moved for summary judgment. She attached the following
evidence to her motion: (1) the 2019 trial court judgment, (2) the 2019 findings of
fact and conclusions of law, (3) the memorandum opinion from this Court
dismissing Ruthven’s appeal of the 2019 judgment for want of prosecution, (4) the
judgment and mandate from this Court, (5) orders from the Texas Supreme Court
denying petition for review and rehearing of the denial of petition for review,
(6) an email to Ruthven regarding eviction, (7) the writ of execution and order of
sale, (8) the sheriff’s sale documents, (9) a notice of lis pendens that Ruthven
recorded after this Court’s mandate issued, and (10) an email from Wike to
Ruthven informing her that Wike intended to file a motion for sanctions if Ruthven
did not vacate the property, remove the lis pendens, and dismiss her 2022 lawsuit.
Ruthven responded to the motion for summary judgment by arguing that res
judicata was not a bar to her lawsuit because the underlying 2019 judgment is void.
Ruthven argued that she filed suit initially to challenge the validity of Wike’s
asserted lien on her property. She asserted that when the trial court joined Wike’s
suit, Wike’s foreclosure suit became a counterclaim. Ruthven argued that a claim
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for expedited foreclosure under Rule 735 cannot be asserted by a lender as a
counterclaim to a suit brought by a debtor challenging the validity of the lien.
Ruthven maintained that the trial court was required to dismiss Wike’s claims in
the consolidated lawsuit. In addition, she argued that the trial court improperly
included a deficiency judgment in the final judgment because Rules 735 and 736
prohibit rendition of a deficiency judgment. Finally, Ruthven argued that a final
judgment under Rule 735 is not appealable, so there was no appellate jurisdiction
in the prior case. Therefore, she concluded that the 2019 trial court judgment, the
judgment from this Court, and the orders from the Supreme Court of Texas were
all void because none of those courts had jurisdiction.
Ruthven supported her motion for partial summary judgment with an
unsworn declaration from her attorney. In this declaration, he alluded to Ruthven’s
“claimed homestead,” which was asserted in her petition in the prior lawsuit. Wike
responded that Ruthven had no right to complain about the joinder of the cases
because she had moved for joinder of the cases in the trial court.
The trial court agreed that Ruthven’s suit was barred by res judicata, granted
summary judgment in favor of Wike, and dismissed Ruthven’s 2022 suit. Ruthven
appealed.
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Analysis
On appeal, Ruthven first argues that the 2019 judgment is void because the
trial court lacked subject-matter jurisdiction. Next, she argues that res judicata is
inapplicable and unsupported by summary-judgment evidence. Finally, she asks
this Court to treat her brief as a petition for writ of mandamus if we determine that
we lack jurisdiction over this appeal.
I. Standard of Review
Procedurally, this appeal arises as an appeal from a trial court’s ruling on a
motion for summary judgment. We review de novo the trial court’s ruling on a
motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A party moving for traditional
summary judgment bears the burden of showing that no genuine issue of material
fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P.
166a(c); see Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16
(Tex. 2003). “When a defendant moves for summary judgment on a plaintiff’s
claim, it must either (1) disprove at least one essential element of the plaintiff’s
cause of action or (2) plead and conclusively establish each essential element of its
affirmative defense, thereby defeating the plaintiff’s cause of action.” Sur. Bonding
Co. of Am. v. Auto. Acceptance Corp., 674 S.W.3d 580, 587 (Tex. App.—Houston
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[1st Dist.] 2023, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.
1995)).
II. The trial court’s judgment was not void.
We understand Ruthven’s first issue to be that the 2019 judgment was void
because it was an improper judgment for expedited foreclosure under Rules 735
and 736. She asserts that Wike’s foreclosure suit was an improper counterclaim.
Rules 735 and 736 pertain to foreclosures of certain kinds of liens. See TEX.
R. CIV. P. 735, 736. Rule 735.1 defines which liens are affected by the rules. TEX.
R. CIV. P. 735.1. It states that Rule 736 is the “procedure for obtaining a court
order, when required, to allow foreclosure of a lien containing a power of sale in
the security instrument . . . including a lien securing any of the following . . . a
home equity loan, reverse mortgage, or home equity line of credit under article
XVI, sections 50(a)(6), 50(k), and 50(t) of the Texas Constitution.” Id. Article
XVI, section 50 of the Texas Constitution pertains to “Protection of homestead
from forced or unauthorized sale; exceptions; requirements for mortgage loans and
other obligations secured by homestead.” TEX. CONST. art. XVI, § 50. Rule 736.11
provides that a proceeding or order of foreclosure is “automatically stayed if a
respondent files a separate, original proceeding in a court of competent jurisdiction
that puts in issue any matter related to the origination, servicing, or enforcement of
the loan agreement, contract, or lien sought to be foreclosed.” TEX. R. CIV. P.
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736.11(a). The rule also requires the trial court to dismiss a pending proceeding or
vacate a Rule 736 order when the respondent files such a challenge. Id. 736.11(c).
Ruthven argues that the trial court had a nondiscretionary duty to dismiss
Wike’s foreclosure suit simply because she filed a suit putting in issue matters
related to enforcement of the loan agreement. She also contends that, after the trial
court granted her motion to consolidate her case with Wike’s, Wike’s suit became
an impermissible counterclaim. She contends that the trial court had a ministerial
duty to dismiss Wike’s suit. See In re Dominguez, 416 S.W.3d 700, 707 (Tex.
App.—El Paso 2013, no pet.).
We disagree with Ruthven. First, Wike pleaded for both a judicial
foreclosure, which affords the creditor an opportunity to obtain a deficiency
judgment if the indebtedness exceeds the sale price, and alternatively for expedited
foreclosure under Rules 735 and 736. Rule 736.11 does not require a court to
dismiss a suit for judicial foreclosure. See TEX. R. CIV. P. 735.3 (“Judicial
Foreclosure Unaffected”). Second, prior to entry of judgment, the trial court struck
Ruthven’s pleadings as a sanction for abuse of the discovery and litigation process,
after lesser sanctions had failed to secure her cooperation. So, as a matter of law,
Ruthven had no live pleading putting in issue matters related to the lien or loan
agreement when the trial court rendered judgment. The trial court’s judgment made
no mention of Rules 735 or 736, and it expressly awarded a deficiency judgment.
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Because Wike pleaded alternatively for judicial and non-judicial foreclosure, we
conclude that the 2019 judgment was a judicial foreclosure. Ruthven’s argument
regarding voidness is meritless.
We overrule Ruthven’s first issue.
III. Ruthven’s suit is barred by res judicata.
On appeal, Ruthven’s res judicata argument relies on her assumption that the
2019 judgment was based on Rules 735 and 736. Nevertheless, Ruthven has at
least raised the issue of the propriety of the court’s summary judgment, which was
based on the affirmative defense of res judicata.
Res judicata is an affirmative defense. See TEX. R. CIV. P. 94. Res judicata,
or claim preclusion, bars the relitigation of claims that have been finally
adjudicated or that could have been litigated in the prior action. Engelman
Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017). The party
asserting it 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. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
In this case, we have a prior final determination by courts of competent
jurisdiction and identity of parties. In addition, Wike’s first action was based on the
loan agreement and lien. Ruthven is challenging the loan and lien in this case.
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Because Wike pleaded for a judicial foreclosure, Ruthven could have raised her
concerns about the loan in that action. But rather than pursue her claims and
arguments, she forfeited her claims by sanctionable actions in the trial court. That
is, she could have, but did not, raise her claims in the first action. We conclude that
the third element of res judicata is satisfied here. See id.We overrule Ruthven’s second issue, and we do not need to reach her third
issue. See TEX. R. APP. P. 47.1.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly
Justice
Panel consists of Justices Kelly, Countiss, and Rivas-Molloy.
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