Alex Wade v. Bank of America, N.A., et al

Filing

UNPUBLISHED OPINION FILED. [11-20040 Affirmed ] Judge: EMG , Judge: LHS , Judge: CH Mandate pull date is 06/22/2012 [11-20040]

Case: 11-20040

Document: 00511874522

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Date Filed: 06/01/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-20040
Summary Calendar

June 1, 2012
Lyle W. Cayce
Clerk

ALEX MELVIN WADE, doing business as American Consultant,
Plaintiff-Appellant
v.
BANK OF AMERICA, N.A., and its unknown named employees; MESSER
CAMPBELL & BRADY, Limited Liability Partnership; DISTRICT CLERK
JERRY DEERE, Clerk of the District Court of Brazoria County; CRAIG
MICHAEL BECHTEL; SHAWN KEVIN BRADY; DEPO TEXAS,
Defendants-Appellees

Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-3198

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Alex Melvin Wade, Jr., d/b/a American Consultant Legal Litigants,
Paralegals, Professional Adjusters and Financial Brokers of Texas (American
Consultant), sued Bank of America, N.A., its counsel, Shawn Brady, and his law
firm, Messer Campbell & Brady, L.L.P., court reporter Craig Michael Bechtel,
Depo Texas (the Bank of America defendants), as well as Jerry Deere, clerk of
*

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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the Brazoria County District Court, alleging violations of his federal civil rights
and state law with respect to a prior state court action by Bank of America to
repossess a Hummer H2 vehicle that Wade had financed through Bank of
America. Wade cited 42 U.S.C. §§ 1983, 1985 and provisions of the Texas
Business and Commerce Code/Uniform Commercial Code (U.C.C.). The district
court granted summary judgment, adopting the magistrate judge’s conclusion
that all Wade’s claims against the Bank of America defendants were barred by
res judicata or collateral estoppel; that Wade’s claims that he did not receive
service of a summary judgment motion in the state proceeding were without
merit because Wade was on notice of the motion and had ample time to respond
to it; that because the Bank of America defendants were not state actors, Wade
had no claims against them under §§ 1983 and 1985; and that Wade failed to
make out a prima facie case of conspiracy as to all the defendants. Wade now
appeals. We AFFIRM.
When determining the preclusive effect of a state court judgment in a
subsequent federal action, federal courts apply the preclusion law of the state
that rendered the judgment. Black v. N. Panola Sch. Dist., 461 F.3d 584, 588
(5th Cir. 2006). We review the preclusive effect of a prior judgment and a grant
of summary judgment de novo. Id. We apply the familiar summary judgment
standard. Fed. R. Civ. P. 56.
All Wade’s claims with respect to the recovery of the Hummer and any
purported overpayments are barred by res judicata. See Weaver v. Tex. Capital
Bank, N.A., 660 F.3d 900, 907 (5th Cir. 2011), cert. denied, No. 11-1057, 2012 WL
609469 (Apr. 30, 2012); Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Savs.,
837 S.W.2d 627, 630-31 (Tex. 1992). The parties are the same or in privity, there
was a final judgment by a court of competent jurisdiction, and the two suits arise
out of the same transaction, i.e., the legal relationship between Wade and Bank
of America. See Weaver, 660 F.3d at 907; Barr, 837 S.W.2d at 630-31. In
addition, because the issues of Bank of America’s entitlement to the Hummer
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and whether Wade owed money on it were raised in the prior proceeding, were
rejected by the court, and were necessary to the judgment, they are also barred
by the doctrine of collateral estoppel. See Getty Oil Co. v. Ins. Co. of N. Am., 845
S.W.2d 794, 801 (Tex. 1992).
Wade’s assertion that the state court lacked subject matter jurisdiction,
an element of res judicata, is without merit. See Tex. Gov’t Code § 24.007(b).
We likewise find no merit in Wade’s contention regarding notice of the summary
judgment motion in the state action. He raised this issue before the state court
prior to the state court’s grant of summary judgment. His claims of lack of
service are barred. See Elliot v. West, No. 01-09-00425-CV, 2011 WL 1233434,
at *1 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.).
Wade has abandoned his civil rights conspiracy claims against all parties
because he fails to address the district court’s determination that he failed to
come forward with any evidence in support of his claims and that his
conclusional allegations were insufficient. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). That determination was, in any event, correct. See
Lynch v. Cannatella, 810 F.2d 1363, 1369-70 (5th Cir. 1987). Thus, we need not
reach Wade’s argument that these claims are not barred by res judicata or
collateral estoppel.
The judgment of the district court is AFFIRMED.

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