Hey, TCPAWorld!

Brandon Callier is back and at it again with a new defendant! This serial TCPA plaintiff is no stranger to TCPAWorld—he’s made quite the name for himself. And quite a bit of cash. Just this April, Callier won a default judgment of $132,500.

In the latest Callier court decision, the Western District of Texas addressed issues of res judicata and vicarious liability. Frankly, this decision—Callier v. White Road Capital, LLC, No. EP-23-CV-00177-RFC, 2024 WL 4219171 (W.D. Tex. Sept. 12, 2024)—should be referenced in law school classes as a textbook example of these principles.

On May 1, 2023, Callier filed suit against three defendants for violating the TCPA: (1) Pearl Delta Funding, LLC (“Pearl Delta”); (2) MyFaz Consulting, LLC (“MyFaz”); and (3) White Road Capital, LLC (“White Road”).

While Callier claimed that MyFaz made the calls at issue, MyFaz sent him merchant cash advance contracts revealing that it was acting as an agent for Pearl Delta and White Road. In July of 2023, Callier voluntarily dismissed his claims against Pearl Delta and MyFaz with prejudice, leaving White Road behind as the sole defendant.

In response, White Road filed a motion to dismiss. White Road argued that because the dismissal with prejudice entered against MyFaz effectively determined that MyFaz was not liable, then it could not be vicariously liable for the calls MyFaz made.

For reference, res judicata requires the following elements to be present: (1) parties that are identical or in privity; (2) a final adjudication in a prior action by a court of competent jurisdiction; and (3) the plaintiff must have brought the same claim or cause of action in both actions.

White Road was correct that a party’s voluntary dismissal with prejudice under Rule 41(a)(1) operates as a final adjudication on the merits for purposes of issue and claim preclusion. Therefore, res judicata would bar Callier from bringing a subsequent suit against MyFaz or Pearl Delta based on the same cause of action.

However, White Road failed to recognize an implicit requirement of res judicata—there must have been two successive actions. Indeed, “[a] final adjudication on the merits in favor of an agent acting for his principal is conclusive in a subsequent suit brought against the principal for vicarious liability determined in the former litigation.” Id. at 2-3 (quoting Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 598 (Tex. App. 1994)). Said another way, “[w]here a plaintiff has sued parties in serial litigation over the same transaction … the courts have denied the plaintiff a second bite at the apple.” Id. at 3 (quoting Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279, 1288 (5th Cir. 1989)).

Here, Callier sued all three defendants in the same action and dismissed two. White Road remained. Since Callier only ever filed this singular lawsuit addressing these claims, res judicata is not applicable. This is simply a continuation of the original lawsuit.

Needless to say, the Western District of Texas stamped its Order with two words: MOTION DENIED. 

Stay tuned for more updates on Callier’s latest TCPA battles.