Smith v. Barrett Daffin Frappier Turner Engel et al
Filing
11
MEMORANDUM OPINION and ORDER finding as moot 9 Motion to Dismiss filed by Barrett Daffin Frappier Turner Engel. (Ordered by Judge John McBryde on 3/1/2017) (npk)
U.S. DTSTRLCT COURT
DISTRICT OF TEXAS
NORTHER.t~
IN THE UNITED STATES DISTRICT C URT
NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
MAR - I 2017
j
L!.3 . ...~xs·.~-·::~
LAURA LATRELL SMITH,
§
§
Plaintiff,
§
§
BARRETT DAFFIN FRAPPIER
TURNER AND ENGEL, ET AL.
Defendants.
r ~:·.·c:;TJRT
By
Deonty
§
§
vs.
I
I
NO. 4:17-CV-156-A
§
§
§
§
MEMORANDUM OPINION
and
ORDER
Now before the court is the notice of removal filed in the
above-captioned action by defendant Wells Fargo Home Mortgage.
Having reviewed the notice of removal and state court documents
attached thereto, the record in a prior case adjudicated by the
undersigned between the same parties, and applicable legal
authorities, the court concludes that this action should be
dismissed on grounds of res judicata.
I.
Background and Facts
Prior to filing the instant action, plaintiff, Laura Latrell
I
Smith ("Smith"), previously initiated another action ("Prior
Action") by filing her original petition and an application for
temporary restraining order and temporary injunction in the
Tarrant County Court at Law No. 1, naming the same defendants as
in the instant action.
Defendant Wells Fargo Home Mortgage
removed the Prior Action on January 14, 2016, where it was
assigned to the docket of this court as Case No. 4:16-CV-022-A.
By order signed March 10, 2016, the court ordered plaintiff to
file an amended complaint by March 21, 2016.
On March 22, 2016,
citing plaintiff's failure to file an amended complaint, the
court dismissed all of plaintiff's claims against defendants for
failure to comply with a court order pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure. 1
Plaintiff initiated the instant action on February 6, 2017,
by filing her original petition and an application for temporary
restraining order and temporary injunction in the Tarrant County
Court at Law No. 1, which was removed by defendant Wells Fargo
Home Mortgage to this court on February 17, 2017.
In the instant
action, plaintiff alleges that she is the owner of property at
1123 Kielder Court in Fort Worth, Texas.
Defendants have sought
to foreclose on the property.
In the state court petition, plaintiff claims that none of
the defendants has any right or authority to foreclose on
plaintiff's property.
Plaintiff alleges that defendants'
purported violations of the Texas Business and Commerce Code, the
1
Dismissal pursuant to Rule 41 (b) operates as an adjudication on the merits.
2
Texas Finance Code, and the Fair Debt Collection Practices Act
preclude defendants from attempting to enforce a promissory note
and conduct a foreclosure sale.
allege any
clai~s
The petition itself does not
or causes of action; however, plaintiff sought
in state court a temporary restraining order and temporary
injunction enjoining defendants from conducting a foreclosure
sale.
II.
Analysis
A.
Applicable Legal Principles
Res judicata is a defense that generally must be
affirmatively pleaded.
Carbonell v. La. Depft of Health & Human
Res., 772 F.2d 185, 189 (5th Cir. 1985).
However, "[i]f a court
is on notice that it has previously decided the issue presented,
the court may dismiss the action sua sponte, even though the
d~fense
392, 412
has not been raised."
(2000).
Arizona v. California, 530 U.S.
Dismissal is proper when a plaintiff's
complaint conclusively establishes the affirmative defense of res
judicata, even if a defendant has not raised the defense, when
both actions were brought in the same district.
Carbonell, 772
F.2d at 189 (5th Cir. 1985).
Under Fifth Circuit law, "res judicata is the •venerable
legal canon' that insures the finality of judgments and thereby
3
conserves judicial resources and protects litigants from multiple
Procter & Gamble Co. v. Amway Corp., 376 F.3d 496,
lawsuits.u
499
(5th Cir. 2004)
(quoting United States v. Shanbaum, 10 F.3d
305, 310 (5th Cir. 1994)).
bars a
s~bsequent
in privity;
Under res judicata, a prior judgment
judgment when (1) the parties are identical or
(2) the judgment in the prior action was rendered by
a court of competent jurisdiction;
(3) the prior action was
concluded by a final judgment on the merits; and (4) the same
claim or cause of action was involved in both actions.
Test
Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir.
2005).
The doctrine precludes the relitigation of claims which
have been fully adjudicated or arise from the same subject
matter, and that could have been litigated in the prior action.
Nilsen v. City of Moss Point, 701 F.2d 556, 561 (5th Cir. 1983).
B.
Application of Law to This Action
The court concludes that it is readily apparent from the
face of the petition that the elements of res judicata are met,
and that this action must be dismissed.
In this case, all four elements of res judicata are
satisfied.
First, the same plaintiff has brought an action
against the same two defendants in this action and in Case No.
4:16-CV-022-A.
Second, the judgment in Case No.
4:16~CV-022-A
was rendered by a judge of this court, which is a court of
4
competent jurisdiction.
Third, Case No. 4:16-CV-022-A was
concluded by a final judgment on the merits, as all claims and
causes of action in that action were dismissed for failure to
comply with a court order pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure.
Fourth, the petition in the instant
action is virtually identical to the petition in Case No. 4:16CV-022-A, to the point that the same typographical errors appear
in both.
The petition in the instant action merely changes the
date of the foreclosure sale from January 5, 2016 to February 7,
2017, and typewrites certain previously handwritten sections. 2
All of the required elements having been met, the court
concludes that res judicata bars the instant action.
III.
Order
Therefore,
The court ORDERS that the complaint of plaintiff, Laura
Latrell Smith, against defendants, Barrett Daffin Frappier Turner
2
It is theoretically possible that the February 7, 2017 foreclosure would present a legal issue not
raised as to the January 5, 2016 foreclosure; however, here, plaintiff raises identical dispositive issues in
both actions, which would cause the action to be similarly barred under the doctrine of collateral
estoppel.
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and Engel and Wells Fargo Home Mortgage, be, and is hereby,
dismissed with prejudice.
SIGNED March 1, 2017.
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