Roberto Avila Goitia v. PNC Bank, N.A.

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-25-00604-CV Roberto Avila GOITIA, Appellant v. PNC BANK, N.A., Appellee From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2025-CI-12849 Honorable Tina Torres, Judge Presiding Opinion by: Lori Massey Brissette, Justice Sitting: Rebeca C. Martinez, Chief Justice Lori Massey Brissette, Justice Velia J. Meza, Justice Delivered and Filed: September 30, 2026 AFFIRMED AS MODIFIED IN PART; REVERSED AND REMANDED IN PART This is one of two appeals before this court involving appellant Roberto Avila Goitia and appellee PNC Bank, N.A. 1 In this appeal, Avila Goitia challenges the trial court’s orders granting PNC’s Rule 91a motion to dismiss his causes of action, asserting the trial court incorrectly applied res judicata to dismiss his claims. Avila Goitia also contends the trial court improperly expunged 1 See Avila Goitia v. PNC Bank, N.A., No. 25-00630 (Tex. App.—San Antonio).  04-25-00604-CV his notices of lis pendens. Based on the law and the record, we affirm as modified in part and reverse and remand in part. BACKGROUND Despite Avila Goitia filing multiple lawsuits and bankruptcies over the years to retain possession of the real property at issue, located in the Greensview of Sonterra subdivision in Bexar County, the property was ultimately foreclosed in January 2025. After Avila Goitia refused to vacate the property, PNC filed suit seeking possession and the trial court rendered judgment in favor of PNC. 2 Avila Goitia was evicted on April 30, 2025. ORDER GRANTING PNC’S RULE 91A MOTION On June 6, 2025, Avila Goitia filed the underlying lawsuit—Cause No. 2025CI12849— against PNC. In the petition, Avila Goitia claimed he was the “rightful owner” of the property. He alleged PNC refused his previous payment plans; blocked hardship relief; wrongfully attempted to foreclose the property during previous pending bankruptcy and temporary restraining order proceedings; wrongfully foreclosed “under retaliatory, staged circumstances” including surveilling him and “fabricat[ing] payoffs”; evicted him without a valid writ; and engaged in “systemic fraud” including dual tracking, loss mitigation suppression, and “equity theft.” 3 Avila Goitia acknowledged that PNC might contend the underlying lawsuit (Cause No. 2025CI12849) was barred by res judicata because of a separate lawsuit that remained pending (Cause No. 2025CI06807), but asserted res judicata did not apply because this matter presented “new facts, 2 Avila Goitia also sued additional defendants, but they were never served and filed no motions or pleadings. See Mitchell v. Thomas, No. 09-24-00035-CV, 2026 WL 61490, at *4 (Tex. App.—Beaumont Jan. 8, 2026, no pet.) (order can be final for purposes of appeal where record shows remaining party was never served and filed no motions or pleadings). Further, the order provides that it is a “final order that disposes of all parties and claims.” See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex. 2004) (citing Lehman v. Har-Con Corporation, 39 S.W.3d 191, 195 (Tex. 2001)). Accordingly, we treat the order as a final judgment. 3 Avila Goitia further alleged multiple attorneys repeatedly failed to appear at hearings on his behalf and his eviction occurred despite his other pending lawsuit against PNC in cause no. 2025CI06807. -2-  04-25-00604-CV unlitigated claims, and newly filed exhibits,” and “[n]o full adjudication of [his] damages or fraud occurred.” He brought claims for wrongful foreclosure, trespass to try title, breach of contract, fraud, violation of 12 U.S.C. § 2605 for mishandling his request for assistance, violation of the Texas Debt Collection Act, negligence, and gross negligence. 4 Just as Avila Goitia predicted, PNC Bank asserted that his claims were barred by res judicata and moved to dismiss his petition, specifically identifying two other lawsuits as barring the underlying suit on res judicata grounds: Cause No. 2024CI229192 and Cause No. 2025CI06807. Avila Goitia filed a response to the motion arguing it should be denied because PNC attempted to introduce facts outside the petition and exhibits in violation of Rule 91a. 5 A. Applicable Law and Standard of Review Texas Rule of Civil Procedure 91a provides a party may move to dismiss a cause of action on the grounds that it has “no basis in law or fact.” TEX. R. CIV. P. 91a.1; Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 654 (Tex. 2020). A claim has no basis in law “if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.” TEX. R. CIV. P. 91a.1; Bethel, 595 S.W.3d at 654. Rule 91a.1 “does not limit the universe of legal theories by which the movant may show that the claimant is not entitled to relief based on the facts as alleged.” Bethel, 595 S.W.3d at 655. 6 We 4 He sought damages of $27 million including “[o]ver $220,000 in stolen equity,” “medical harm,” “[r]etaliatory losses,” and “substantial business losses.” 5 He further asserted the dismissal of Cause No. 2024CI229192 was improperly entered by his attorney without his consent and that the dismissal by the trial court in Cause No. 2025CI06807 was erroneous because he included “over sixty exhibits demonstrating wrongful foreclosure” and because the trial court lacked jurisdiction. He also made a series of other contentions including that his eviction was entered without the presence of his attorney violating his due process rights, PNC was involved in a “coordinated scheme” against him involving “fraud, dual tracking, equity theft, and abuse of process,” and there was a conspiracy—among the federal government, PNC, his former attorneys, and the court’s e-filing system—to sabotage his case. 6 A claim has no basis in fact “if no reasonable person could believe the facts pleaded.” TEX. R. CIV. P. 91a.1; Bethel, 595 S.W.3d at 654. -3-  04-25-00604-CV “may not consider evidence” in ruling on a Rule 91a motion but must strictly decide the motion based on the substance of a plaintiff’s pleading along with a narrow class of exhibits attached to the pleading. TEX. R. CIV. P. 91a.6. Set forth in Rule 59 of the Texas Rules of Civil Procedure, the permissible exhibits are: notes, accounts, bonds, mortgages, records, and all other written instrument that constitute “in whole or in part, the claim sued on.” TEX. R. CIV. P. 59. We may, however, also consider the defendant’s affirmative defenses put forth in the motion if the allegations, taken as true, along with reasonable inferences drawn from them, do not entitle the claimant to the relief sought. See TEX. R. CIV. P. 91a.; Bethel, 595 S.W.3d at 656. 7 For the affirmative defense of res judicata to apply, there must be: (1) a prior final judgment 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 that were raised or could have been raised in the first lawsuit. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). We review the merits of a Rule 91a motion de novo. Bethel, 595 S.W.3d at 654. B. Analysis Here, PNC argues res judicata applies because multiple suits brought by Avila Goitia have been dismissed. PNC explicitly points to two other matters: Cause No. 2024CI229192 and Cause No. 2025CI06807. It is undisputed that the parties are the same in the present action and in those prior actions. See id. But in order to conclude that the underlying suit (Cause No. 2025CI12849) had no legal basis due to res judicata, the trial court necessarily had to consider the prior final judgment on the merits in Cause No. 2024CI229192 and Cause No. 2025CI06807 as well as the claims that 7 As the Supreme Court explained in Bethel, “some affirmative defenses will not be conclusively established by the facts in a plaintiff’s petition.” Bethel, 595 S.W.3d at 656. -4-  04-25-00604-CV were raised or could have been raised by Avila Goitia in those matters. See Daccach, 217 S.W.3d at 449; Walker v. Peninsula Point Owners Ass’n, Inc., No. 13-25-00557-CV, 2026 WL 1027673, at *5 (Tex. App.—Corpus Christi–Edinburg Apr. 16, 2026, no pet.); Randhawa v. Amick Storm Mgmt., LLC, No. 01-23-00757-CV, 2024 WL 3891861, at *3 (Tex. App.—Houston [1st Dist.] Aug. 22, 2024, no pet.). 8 Under the transactional approach followed by Texas law, a prior suit bars a subsequent suit if the suits arise out of the same subject matter, and that subject matter could have been litigated in the initial suit. Castaneda v. Abacus Funding Group, No. 05-23-00623-CV, 2025 WL 383613, at *3 (Tex. App.—Dallas Feb. 4, 2025, pet. denied). To make that determination, we must analyze the factual matters that make up the gist of the complaint, without regard to the form of action. See id. at 4. We make this determination pragmatically, weighing considerations like whether the facts are related in time, space, origin, or motivation. See id. First, with regard to the nonsuit entered in 2024CI229192, a nonsuit with prejudice can have res judicata effect. See Epps v. Fowler, 351 S.W.3d 862, 868–69 (Tex. 2011) (providing res judicata effect of non-suit with prejudice works permanent, inalterable change in parties’ legal relationship because defendant can never again be sued by plaintiff for claims arising out of same subject matter). Thus, the question is: what claims were raised or could have been raised in Cause No. 2024CI229192 that would have preclusive effect as to the underlying suit (Cause No. 2025CI12849)? See Daccach, 217 S.W.3d at 449. Avila Goitia sought a declaratory judgment and temporary injunction in his 2024 petition suing PNC. He alleged PNC failed to properly account for all of his payments and made unauthorized charges to his account as servicer and did so in 8 Avila Goitia makes no mention of Cause No. 2024CI229192 whatsoever in his pleadings, but he includes the petition in Cause No. 2024CI229192 as well as his nonsuit with prejudice in that case as an exhibit to his petition. See TEX. R. CIV. P. 91a.6. -5-  04-25-00604-CV order to foreclose his property. In the interim, he sought a temporary restraining order restraining PNC from selling the property in a then-scheduled foreclosure sale. Pragmatically speaking, the gist of Avila Goitia’s complaint was that PNC improperly sought to foreclose his property by using accounting improprieties to effect that result. In the underlying suit (Cause No. 2025CI12849), the gist of Avila Goitia’s complaint was that he was wrongfully foreclosed upon and wrongfully evicted from his property. But, while he alleges similar conduct, because there was no foreclosure or eviction in 2024 when Cause No. 2024CI229192 was pending, we cannot conclude that he could have brought a wrongful foreclosure or eviction claim in the prior suit. See, e.g., Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 706 (Tex. 2021) (“Res judicata cannot bar a claim that was not ripe at the time the first lawsuit was filed.”). In Cause No. 2025CI06807, there was no nonsuit. Instead, the trial court dismissed that matter, granting PNC’s Rule 91a motion to dismiss, after this lawsuit was already filed. Indeed, Avila Goitia’s petition in this matter alleges the other lawsuit (Cause No. 2025CI06807) was active as of June 6, 2025. The prior lawsuit (Cause No. 2025CI06807) was dismissed on August 15 and then PNC filed its motion to dismiss in this matter on August 19, 2026, asserting res judicata. But, while PNC attaches the trial court’s order of dismissal in Cause No. 2025CI06807 as an exhibit to its Rule 91a motion in this matter, we may not consider PNC’s evidentiary exhibits in support of its Rule 91a motion as a part of our analysis. TEX. R. CIV. P. 91a.6; Bethel, 595 S.W.3d at 656. Instead, such exhibits would only be appropriate in a later motion for summary judgment context. See C.V.P.G. Family Tr v. PlainsCapital Bank, Tr. Of Guerra Mineral Tr., No. 08-23-00320-CV, 2024 WL 2445793, at *6 n. 7 (Tex. App.—El Paso May 23, 2024, no pet.) (“Res judicata is an -6-  04-25-00604-CV affirmative defense best left for determination at the summary judgment stage because it requires proof of facts rarely alleged in a plaintiff’s pleading.”). 9 Accordingly, we conclude the trial court erred by granting PNC’s Rule 91a motion to dismiss Avila Goitia’s claims for wrongful foreclosure and trespass to try title—the only claims that were not ripe at the time of the original suit and the only claims he challenges the trial court’s dismissal of in this court. 10 See Eagle Oil & Gas, 619 S.W.3d at 706 (holding res judicata does not bar claims that were not ripe when first lawsuit filed); Large v. Cras, No. 09-24-0333-CV, 2026 WL 1597549, at *1 (Tex. App.—Beaumont June 4, 2026, no pet.) (affirming dismissal of unchallenged claims). ORDER EXPUNGING AVILA GOITIA’S NOTICES OF LIS PENDENS After Avila Goitia filed the underlying suit, he also filed two notices of lis pendens. PNC moved to expunge them, based on the fact that Avila Goitia voluntarily dismissed his 2024 suit, and the trial court granted its Rule 91a motion to dismiss in Cause No. 2025CI06807. In support of its motion, it attached Avila Goitia’s 2024 nonsuit. PNC also attached a Rule 11 agreement in a separate 2024 suit in which Avila Goitia agreed that if he did not provide evidence of a signed purchase agreement with earnest money paid, PNC could foreclose on the property on or after December 3, 2024. 11 At the hearing, PNC also reiterated that, in addition to the numerous lawsuits, Avila Goitia had also filed five bankruptcies to stop the previous foreclosures of the property. 9 While Texas courts are bound by the limitations of Rule 91a, in that no evidence outside of the pleadings may be considered on the merits, Federal Rule of Civil Procedure 12(d) requires a court to treat a motion to dismiss under Rule 12(b)(6) or 12(c) that includes additional evidence “as one for summary judgment under Rule 56.” FED. R. CIV. P. 12(d). 10 Because we conclude the trial court erred by granting the Rule 91a motion, we decline to consider Avila Goitia’s contention that the trial court violated his rights by ruling on the “unset” Rule 91a motion without proper notice and opportunity to be heard. See TEX. R. APP. P. 47.1. 11 It did not attach the motion to dismiss in Cause No. 2025CI06807. -7-  04-25-00604-CV In opposition to the motion and at the hearing, Avila Goitia asserted various arguments relating to wrongful foreclosure, trespass to try title, an allegedly “fraudulent” nonsuit, and irregularities in his other pending matter (Cause No. 2025CI06807). He also contended expunction was improper because his claims were real property claims for wrongful foreclosure and trespass to try title and cited his exhibits to his petition as evidence in opposition to the expunction motion. The trial court acknowledged PNC’s evidence of res judicata including the Rule 11 agreement, noted Avila Goitia had already been foreclosed, which he acknowledged, explained parties were not allowed to “bring a number of lawsuits pertaining to this same exact property,” and granted the motion. A. Applicable Law and Standard of Review Section 12.0071(a) permits a party to move to expunge a notice of lis pendens. See TEX. PROP. CODE § 12.0071(a). The trial court “shall” order the notice expunged if, based on affidavits, counter-affidavits and any other proof the court allows, the court determines the petition on which the notice is based does not contain a real property claim or the plaintiff fails to establish by a preponderance of the evidence the probable validity of the real property claim. See id. § 12.0071(c) (further providing expunction proper if person filing notice did not serve copy of it on each party entitled to copy), (e); see also Sommers for Alabama & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521 S.W.3d 749, 753–54 (Tex. 2017). Because the language in the statute is mandatory, i.e., the trial court “shall order the notice of lis pendens expunged,” we determine as a matter of law whether the trial court erred in ordering expunction of the notice. See TEX. PROP. CODE § 12.0071(c); Walker v. Walker, 631 S.W.3d 259, 267–68 (Tex. App.—Houston [14th Dist.] 2020, no pet.). -8-  04-25-00604-CV B. Analysis Avila Goitia contends the trial court erred by expunging his lis pendens because he pleaded real property claims. Here, Avila Goitia’s petition plainly seeks title to the property, and there is no dispute between the parties that his claims are real property claims. See TEX. PROP. CODE § 12.007(a) (real property claim is claim “involving title to real property, the establishment of an interest in real property, or the enforcement of an encumbrance against real property”); Walker, 631 S.W.3d at 268 (providing for notice of lis pendens to be proper, an adequate nexus must exist between asserted claims and subject property, and something less than title is enough to establish nexus, but claimed interest in subject property must be direct and not collateral). But the trial court’s decision was clearly based on the alternative ground of whether Avila Goitia established by a preponderance of the evidence the probable validity of the real property claim. Although PNC asserted this ground in its appellee’s brief, Avila Goitia did not challenge the trial court’s holding on this ground. Accordingly, we cannot conclude the trial court erred by concluding Avila Goitia failed to establish by a preponderance of the evidence the probable validity of his real property claims. 12 See TEX. PROP. CODE § 12.0071(c). 13 CONCLUSION We affirm as modified the trial court’s September 18, 2025 order granting PNC’s motion to expunge the notices of lis pendens. We reverse the trial court’s September 22, 2025 order granting PNC’s motion to dismiss Avila Goitia’s claims for wrongful foreclosure and trespass to 12 Even if Avila Goitia had challenged the trial court’s holding on this basis, we could not conclude the trial court erred because the evidence shows Avila Goitia could not show by a preponderance of the evidence a probable validity of his real property claims. 13 Having determined that we cannot conclude the trial court erred, we modify the trial court’s order to delete cause number 2025CI06807 and replace it with the correct cause number of 2025CI12849. -9-  04-25-00604-CV try title and otherwise affirm the trial court’s September 22, 2025 order granting PNC’s motion to dismiss. We remand to the trial court for further proceedings consistent with this opinion. Lori Massey Brissette, Justice - 10 -