Angela Jeanette THOMPSON, Appellant v. Sheryl Ann WEAVER, as Independent Administrator of the Estate of Alan Ray Adams, Deceased, Appellee.
No. 12-13-00151-CV.
Court of Appeals of Texas, Tyler.
April 30, 2014.
A petition in an original proceeding must contain a clear and concise argument for the contentions made, with appropriate citations to authorities.
Here, Fitzgerald contends that, in the contempt judgment, the trial court should have excluded Fitzgerald‘s anticipated unwillful noncompliance from its directive requiring him to produce documents. As examples of the circumstances in which unwillful noncompliance is likely, he restates the objections he asserted to support his motion for a protective order.5 Yet, Fitzgerald cites only one case, Ex parte Chambers, which stands for the proposition that a willful violation is necessary for a criminal contempt conviction. The remainder of his argument consists of mere conclusions unaccompanied by any discussion of applicable legal principles or controlling authority. Consequently, he has not provided the “clear and concise argument” and “appropriate citations to authorities” required by
We overrule Fitzgerald‘s third issue.
DISPOSITION
Fitzgerald has not shown that the contempt judgment or the underlying order granting Cadle‘s motion to compel discovery is void. Therefore, he has not shown a clear abuse of discretion by the trial court in enforcing its order compelling discovery. See Snodgrass, 332 S.W.3d at 663. Accordingly, we deny Fitzgerald‘s petition for writ of mandamus.
In its response to Fitzgerald‘s petition, Cadle requests that its attorney‘s fees and costs in this proceeding be awarded against Fitzgerald. We overrule Cadle‘s request.
Carl David Adams, Dallas, for Appellee.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
OPINION
JAMES T. WORTHEN, Chief Justice.
Angela Jeanette Thompson appeals the trial court‘s summary judgment rendered in favor of Appellee Sheryl Ann Weaver, as Independent Administrator of the Estate of Alan Ray Adams, Deceased. In two issues, Thompson argues that the trial court erred (1) in granting summary judgment in Weaver‘s favor on Thompson‘s affirmative defense of res judicata and (2) in denying Thompson‘s motion for sanctions. We reverse and render in part and affirm in part.
BACKGROUND
On November 29, 2010, Thompson‘s vehicle collided head-on with a vehicle driven by Adams. Adams did not survive the crash.
Case 1
Weaver, Adams‘s sister and independent administrator of his estate, filed suit against Thompson in Cherokee County, Texas. The suit consisted of wrongful death claims made on behalf of Adams‘s mother, father, and child and a survival claim made by Weaver on behalf of Adams‘s estate. In addition to damages for, among other things, wrongful death and Adams‘s pain and suffering and mental anguish (nonproperty damages), Weaver sought to recover damages for destruction of Adams‘s vehicle and deer rifles (property damages).
In early 2011, the parties negotiated a settlement and their attorneys signed a Rule 11 agreement that stated, in pertinent part, as follows: “This will confirm that you have agreed to accept the offer of policy limits from Republic Insurance Group on behalf of Angela Jeanette Thompson in return for a full release and dismissal of all claims against Ms. Thompson.” Subsequently, Weaver nonsuited the claims for nonproperty damages and executed a formal release and settlement agreement. However, this release and settlement agreement did not release Weaver‘s claims for nonproperty damages. Thereafter, Weaver moved to dismiss all pending claims with prejudice. On March 10, 2011, the trial court signed an order stating that “all pending claims of Plaintiff in the above entitled and numbered cause be and the same are hereby DISMISSED
Case 2
On July 15, 2011, Weaver, in her capacity as independent administrator of Adams‘s estate, filed the instant suit in Smith County against Thompson for damages from the same accident as was the subject of Case 1. Thompson filed a motion for summary judgment on her affirmative defense of res judicata. Weaver filed an amended motion for summary judgment arguing that the releases resulting from Case 1 did not cover her personal injury damages and a no evidence motion for summary judgment on Thompson‘s affirmative defense of res judicata. Thompson filed a response to Weaver‘s motions. The trial court granted Weaver‘s motions and denied Thompson‘s motion. Thompson also filed a motion for sanctions, which was denied. After further proceedings, the trial court entered a final judgment in Weaver‘s favor. This appeal followed.
RES JUDICATA
In her first issue, Thompson argues that the trial court erred in granting Weaver‘s amended no evidence motion for summary judgment and denying Thompson‘s traditional motion for summary judgment on her affirmative defense of res judicata.
Standard of Review
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
We review a trial court‘s grant of a summary judgment de novo. Frost Nat‘l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010). We examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See
Furthermore, after adequate time for discovery, a party without presenting summary judgment evidence may also move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.
When, as here, parties file cross motions for summary judgment, each party in support of its own motion necessarily takes the position that there is no genuine issue of fact in the case and that it is entitled to judgment as a matter of law. Lambrecht & Assocs., Inc. v. State Farm Lloyds, 119 S.W.3d 16, 20 (Tex.App.-Tyler 2003, no pet.). If one motion is granted and the other denied, we must review the summary judgment evidence presented by both sides and determine all questions presented. Id. In so doing, we first review the order granting summary judgment and if we determine the order was erroneous, we review the trial court‘s action in overruling the denied motion. Id. We may then either affirm the judgment or reverse and render the judgment the trial court should have rendered, including one that denies both motions. Id.
Governing Law
The claim preclusion doctrine of res judicata prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit. See Compania Financiara Libano v. Simmons, 53 S.W.3d 365, 367 (Tex.2001); Musgrave v. Owen, 67 S.W.3d 513, 519 (Tex.App.-Texarkana 2002, no pet.). Res judicata requires proof of the following elements: (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 action. See Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex.1996).
Texas follows the transactional approach to res judicata in determining what claims should have been brought, if they could have been, in a prior action. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630-31 (Tex.1992). As our sister court of appeals has explained,
[a] final judgment extinguishes the right to bring other suits on the transaction or series of transactions involved in that litigation .... In determining whether the transaction is the same, we consider and weigh whether the facts are related in time, space, origin, or motivation; whether they form a convenient trial unit; and whether their treatment as a trial unit conforms to the parties’ expectations or business usage.
Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 597 (Tex.App.-Texarkana 1994, writ denied). The transactional approach requires courts, in order to determine res judicata, to examine the factual basis, not the legal theories, presented in the cases. Owen, 67 S.W.3d at 519. The
Claim Preclusion and the Transactional Approach
In the instant case, each party presented summary judgment evidence relevant to the issue of res judicata. That summary judgment evidence, consisting of documents from Case 1, included (1) Weaver‘s pleadings from Case 1, (2) Weaver‘s notice of nonsuit, (3) Weaver‘s motion to dismiss with prejudice, and (4) the trial court‘s order dismissing “all pending claims” with prejudice.
We first note that the trial court‘s order of dismissal with prejudice of all pending claims in Case 1 was a final judgment on the merits by a court of competent jurisdiction. See Mossler v. Shields, 818 S.W.2d 752, 754 (Tex.1991) (“[I]t is well established that a dismissal with prejudice functions as a final determination on the merits.“); Christensen v. Chase Bank USA, N.A., 304 S.W.3d 548, 553 (Tex.App.-Dallas 2009, pet. denied); Zimmerman v. Texaco, Inc., 409 S.W.2d 607, 614 (Tex.Civ.App.-El Paso 1966, writ ref‘d n.r.e.). Furthermore, Thompson and Weaver, as representative of Adams‘s estate, were both parties in Case 1. Thus, we must consider whether the case at hand is based on the same claims that were raised or could have been raised in the first action.
There is no doubt that the facts giving rise to this case—the automobile accident between Thompson and Adams that resulted in Adams‘s death—are identical to the facts giving rise to Case 1. Moreover, the claims for property damages and nonproperty damages form a convenient trial unit and treating them as such conforms to the parties’ expectations, whereas separate lawsuits would require significant duplication of effort of the court and the parties involved. See Barr, 837 S.W.2d at 631. Indeed, Weaver‘s claims for nonproperty damages were made in Case 1. In sum, we conclude that the two cases share the same nucleus of operative facts. See Owen, 67 S.W.3d at 519.
Weaver argues that because she nonsuited her nonproperty claims and because the trial court‘s order of dismissal with prejudice expressly applied only to “pending claims[,]” her nonproperty claims are not precluded by res judicata. We disagree.
Generally, the taking of a voluntary nonsuit does not resolve the issues in the case and does not prejudice the parties against seeking the same relief in a subsequent lawsuit. Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 807 (Tex.1993). A voluntary nonsuit, however, may be subject to res judicata. McGowen v. Huang, 120 S.W.3d 452, 462 n. 6 (Tex.App.-Texarkana 2003, pet. denied); Antonini v. Harris Cnty. Appraisal Dist., 999 S.W.2d 608, 614-15 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Jones v. Nightingale, 900 S.W.2d 87, 90 (Tex.App.-San Antonio 1995, writ ref‘d); see also Jordan v. Bustamante, 158 S.W.3d 29, 36 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (recognizing that abandoning cause of action pursuant to
Here, Weaver nonsuited her nonproperty claims in Case 1. Then, in accordance with her motion, the trial court dismissed the remaining causes of action with prejudice. Thus, we conclude that under the transactional approach to res judicata, Weaver‘s nonproperty claims, which could have been brought in Case 1, but which she chose to nonsuit prior to successfully seeking a dismissal with prejudice, are barred by res judicata. See Antonini, 999 S.W.2d at 614-15; Jones, 900 S.W.2d at 90. Therefore, we hold that the trial court erred in granting Weaver‘s no evidence motion for summary judgment on res judi-
DENIAL OF MOTION FOR SANCTIONS
In her second issue, Thompson argues that the trial court erred in denying her motion for sanctions. We review the trial court‘s ruling regarding the imposition of sanctions under Chapter 10 of the Texas Civil Practice and Remedies Code under the same standard we apply when reviewing a sanctions ruling under
Chapter 10 provides, in pertinent part, that a “court that determines that a person has signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person, a party represented by the person, or both.”
In the instant case, the sole underlying basis for Thompson‘s motion was her contention that Weaver‘s attorney filed the instant suit for purposes of harassment, because he did so despite the apparent res judicata implications stemming from Weaver‘s actions in and the trial court‘s resolution of Case 1. These allegations bring her motion under the purview of Subsections 10.001(1) and (2). In its order denying Thompson‘s motion for sanctions, however, the trial court declined to set forth the reasons for its decision.
We first consider whether Weaver‘s pleadings in the instant case are warranted by existing law. See
We next consider whether Weaver‘s pleadings are warranted by a nonfrivolous argument for the extension, modification or reversal of existing law, or the establishment of a new law. Id. “Frivolous,” as used in this context implicates a thorough lack of factual or legal rigor in the party‘s position. See F.D.I.C v. Hurwitz, 384 F.Supp.2d 1039, 1109 (S.D.Tex. 2005) rev‘d on other grounds, F.D.I.C. v. Maxxam, Inc., 523 F.3d 566 (5th Cir.2008); compare
As set forth previously, the taking of a voluntary nonsuit generally does not resolve the issues in the case and does not prejudice the parties against seeking the same relief in a subsequent lawsuit. See Specia, 849 S.W.2d at 807. This principle forms the legal basis of Weaver‘s argument that she was entitled to seek relief in the instant suit. In her motion for summary judgment and her response to Thompson‘s motion, Weaver made a lengthy and vehement argument that despite the longstanding transactional approach to res judicata, her claims are not barred thereby. We concluded that the authority on which Weaver relied was either inapplicable under or distinguishable from the unique facts of this case and that the transactional approach to res judicata controlled. As a result, Weaver‘s argument was ultimately unsuccessful. But in considering the parties’ arguments, it was plain that there were two competing, valid, longstanding legal principles that could not both be applied. Thus, having considered Weaver‘s argument and the authorities she cited to the trial court, we cannot conclude that Weaver‘s argument that she was entitled to file the instant suit was thoroughly void of legal rigor in her position. Accordingly, we conclude that the trial court could have reasonably found that Weaver‘s pleadings were warranted by a nonfrivolous argument for the extension or modification of an existing law.2 Therefore, we hold that the trial court did not abuse its discretion in denying Thompson‘s motion for sanctions under Section 10.001(2). Thompson‘s second issue is overruled.
DISPOSITION
Having sustained Thompson‘s first issue, we reverse the trial court‘s judgment and render judgment that Weaver take nothing on her claims. Having overruled Thompson‘s second issue, we affirm the trial court‘s order denying her motion for sanctions.