Lead Opinion
MAJORITY OPINION ON REMAND ON REHEARING
Appellee’s motion for rehearing is overruled. We withdraw the majority opinion issued July 17, 2003, and substitute this opinion in its place.
In 1998, appellant Maureen Espeche, individually and as next friend of her son Jonathan, sued appellee William Ritzell for breach of contract and fraud, and sought a bill of review based on an agreement Es-peche and Ritzell allegedly executed around the time of their 1984 divorce. The trial court rendered a take-nothing summary judgment against Espeche, and she appealed, raising the following three issues: (1) whether the trial court erred when it granted Ritzell’s motion for summary judgment, which was based solely on his affirmative defense of res judicata, (2) whether the trial court erred in granting summary judgment because Ritzell’s motion did not address Espeche’s bill of review or Jonathan’s claims, and (3) whether the trial court erred in granting summary judgment because there were disputed fact issues that should have been submitted to the jury.
In our original opinion, we dismissed the appeal, concluding the trial court did not render a final judgment because there were no summary judgment grounds properly before the trial court on which it could have rendered judgment on Jonathan’s claims. Espeche v. Ritzell,
We conclude the summary judgment motion before the trial court did not address Espeche’s claim for a bill of review and we reverse the trial court’s summary judgment to the extent it ordered Espeche take nothing on that claim. We also conсlude the doctrine of res judicata does not bar Espeche’s breach of contract claim for spousal support or Jonathan’s breach of contract claims, and we reverse the trial court’s summary judgment to the extent it ordered Espeche take nothing on her breach of contract claim for spousal support and to the extent it ordered Espeche take nothing as next friend of Jonathan.
FACTUAL AND PROCEDURAL BACKGROUND
According to Espeche, on March 12, 1984, she and Ritzell entered into a written agreement for the division of their estates. That agreement provided:
This is a private agreement between William A. Ritzell and Maureen A. Rit-zell for property division.
I, William A. Ritzell agree to provide for Maureen A. Ritzell and her son Jonathan after our pending divorce as detailed below. Providing she does not make claim on my ARCO retirement fund and stocks and share at the time of our divorce. But I understand that under Texas law, she is entitled to half of all of these funds therefore I have asked her to postpone her claim until I officially retire from ARCO.
I, William A. Ritzell agree to the following:
1. The sum of 2,400 dollars, U.S. each month in support for Maureen and Jonathan untill [sic] such time as [J]onathan graduates from high school.
2. Retain medical and dental insurance (presently provided by AET-NA) until Jonathan reaches age 18, for both Maureen and Jonathan.
*662 3. Promise to provide 50 percent of each yearly income tax refund and to turn that 50 percent over to Maureen within 10 days of receipt. Due to the fact that I am and will continue to claim them both as my legal dependants.
4. At the time of my retirement, it is promised to Maureen A. Ritzell, one half 50 percent of all retirement benefits including stocks, shares and bonuses. This agreement is made because Maureen has agreed not tо seek retirement, stocks and shares until I retire.
Just below paragraph 4, the agreement contains what appear to be the signatures of Ritzell and Espeche above their typed names.
The following month, Espeche filed for divorce, representing she and Ritzell had acquired no real property as part of the community estate and requesting the court to divide the personal property by awarding the same to the party having possession. She did not allude to the March 12 agreement or request it be incorporated into the divorce dеcree. She subsequently testified she did not bring the agreement to her attorney’s or the court’s attention because Ritzell asked her not to, saying he would lose his job if she did so.
On June 19, 1984, the trial court granted the divorce. The decree provided in part:
The Court finds that there is no child of the marriage of the Petitioner and Respondent and none is expected.3
The Court finds that no real property was accumulated during the marriage and that there has been an equitable and fair division of personal property, with due consideration being given to all insurance, рensions, retirement and other job related benefits.
IT IS ORDERED, ADJUDGED AND DECREED that the property of the parties be and is hereby awarded to the party having possession of such property, and all insurance, pensions, retirement and other job related benefits are hereby awarded to the respective party earning same.
The June 19 divorce decree does not acknowledge, incorporate, refer to, or approve the March 12 agreement. Espeche did not appeal the divorce.
In July 1998, Espeche sued Ritzell for breach of the Mаrch 12, 1984 agreement. Espeche alleged Ritzell never fully performed under the contract and breached it entirely in 1994. Specifically, Espeche alleged (1) Ritzell ceased paying her $2,400 per month after July 1994; (2) during July 1994, Ritzell deleted Espeche and Jonathan from coverage under his medical and dental insurance; and (3) Ritzell claimed Espeche and her son Jonathan as dependents on Ritzell’s federal income tax returns from 1983 to 1994, but Ritzell did not pay Espeche one-half his tax refund every year. Espeche also alleged Ritzell fraudulently misrepresented and omitted material facts on which she relied when she entered the March 12 agreement.
On October 11, 1999, Ritzell answered, alleging (1) he did not execute the March 12, 1984 agreement, (2) Espeche’s claims were barred by res judicata, limitations, accord and satisfaction, estoppel, lack of capacity, defect of parties, failure to notify and prove loss, and (3) the alleged agreement was ambiguous and unenforceable. In his answer, Ritzell incorporated Es-peche’s allegation that Ritzell paid Es-peche “$2,400 a month through at least July, 1994.” On the same date, Ritzell filed his motion for summary judgment, asserting res judicata and alleging the sig
On October 27, 1999, Espeche served her first amended original petition, adding her son Jonathan as a party to the lawsuit. On October 28, 1999, Espeche served her second amended original petition, which added the bill of review. Espeche’s second amendment to her original petition was filed six days before the summary judgment hearing Ritzell had scheduled for November 4,1999.
On October 29, 1999, Espeche filed her response to Ritzell’s motion for summary judgment. On November 1, 1999, in a single document, Ritzell filed a reply to Espeehe’s rеsponse to the motion for summary judgment and a motion for leave to amend and move for summary judgment against Jonathan Espeche. Ritzell also attacked Espeche’s request for a bill of review. Without signing any further orders, the trial court granted summary judgment against Espeche on November 5, 1999.
DISCUSSION
Introduction
Ritzell moved for summary judgment arguing the 1984 decree granting Espeche her divorce from Ritzell barred Espeche’s present suit on the ground of res judicata. The trial court granted the motion ordering “Espeche, Individually and as Next Friend of Jonathan Espeche, a minor, take nothing by reasоn of her suit in this case.” In issue one, Espeche argues that Ritzell did not prove all the elements of res judi-cata; in issue two, that the trial court erred in ruling on her bill of review and Jonathan’s claims; and in issue three, that there were disputed fact issues precluding summary judgment. We begin with issue two because resolution of that issue determines the scope of the remaining issues.
The Scope of the Motion for Summary Judgment
In her second issue, Espeche contends the trial court erred in granting summary judgment because Ritzell’s motion failed to address Espeche’s bill of review and Jonathan’s claims. After Rit-zell filed his motion for summary judgment, Espeche twice amended her petition. In her first amended petition, she included Jonathan in the style of the petition. In her second amended petition, she added her claim for a bill of review. A party may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. See Chessher v. Southwestern Bell Tel. Co.,
Espeche filed both amendments less than seven days before the day the trial court heard the summаry judgment motion. Espeche was therefore required to obtain leave of court to file her amended pleadings, and the court was required to grant leave unless there was a showing of surprise to Ritzell. See Tex.R. Crv. P. 63; see also Goswami v. Metro. Sav. & Loan Ass’n,
A plaintiffs timely filed amended pleading supersedes all previous pleadings and becomes the controlling petition in the case regarding theories of recovery. Tex.R. Civ. P. 65; J.M. Huber Corp. v. Santa Fe Energy Res., Inc.,
On November 1, three days before the summary judgment hearing, Ritzell filed his “motion for leave to amend and move for summary judgment against Jonathan Espeche.” Texas Rule of Civil Procedure 166a(c) provides that, absent leave of court, a motion for summary judgment shall be filed and served twenty-one days before the time specified for the hearing. The record before this court, however, contains no orders signed by the trial court showing the court granted Ritzell leave to amend his summary judgment motion. In addition, there is no amended summary judgment motion in the record. The only indication the trial court granted leave to amend is a notation in the docket sheet stating, “Leave granted to [Defendant] to amend MSJ to include Jonathan Espeche.” The docket sheet entry may not stand as an order. Util. Pipeline Co. v. Am. Petrofina Mktg.,
The summary judgment motion that was properly before the court did not address the bill of review added in Es-peche’s second amended petition. As discussed above, the second amended petition was the live pleading at the time of the summary judgment proceeding. Under Chessher, as a matter of law, the trial court could not grant summary judgment on the added clаim. See Chessher,
At oral argument, however, Rit-zell, contended his summary judgment motion addressed Espeche’s subsequently added bill of review. If a motion for summary judgment is sufficiently broad to encompass later-filed claims, the movant need not amend his motion. See Wilson v. Korthauer,
Herе, Ritzell’s motion was not sufficiently broad to encompass Espeche’s bill of review. In her second amended petition, Espeche added the following allegation, not included in the original petition: “Rit-zell told [her] not to make her attorney or the Court aware of the Agreement, because if there was any issue as to his retirement, he would lose his job.” She also alleged, “Ritzell lied, and used his position of fear and intimidation to trick [her] into not seeking her attorney’s or the Court’s advice.” Ritzell’s motion for summary judgment was a traditional motion for summary judgment. See Tex.R. Civ. P. 166a(c). Ritzell assеrted and presented proof only on his affirmative defense of res judicata. Ritzell did not, either in his motion for summary judgment or by his summary judgment proof, address the additional allegations in Espeche’s second amended petition.
Espeche further contends that Ritzell’s motion for summary judgment did
The trial court erred in granting summary judgment on Espeche’s bill of review. See Chessher,
Res Judicata
In issue one, Espeche contends the trial court erred in granting the motion for summary judgment because Ritzell failed to prove all the elements of res judicata as a matter of law. The purpose of summary judgment is to eliminate patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn,
A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against the movant. Levesque v. Wilkens,
In his summary judgment motion, Ritzell asserted res judicata barred Espeche’s and Jonathan’s breach of contract claims. Res judicata precludes reliti-gation of claims that have been finally adjudicated, or that arise out of the same subject matter and could have been litigated in a prior action. Amstadt v. U.S. Brass Corp.,
In the private agreement, Ritzell agreed to (1) provide $2400 per month to both Espeche and Jonathan; (2) retain medical and dental insurance for Espeche and Jonathan; (3) pay fifty percent of his income tax refund to Espeche; and (4) pay fifty percent of his retirement benefits to Espeche.
With regard to the first obligation—to pay spousal and child support—Ritzell’s res judicata defense fails on the third element. At the time of the divorce, Texas courts recognized a significant distinction between court decreed support payments and support provisions in property settlement agreements that are agreed to by the parties. See Francis v. Francis,
Similarly, Espeche’s breach of contract cause of action under the second and third provisions of the contract is not barred by the doctrine of res judicata. The second provision provides that Ritzell will retain medical and dental insurance for Espeche and Jonathan until Jonathan is eighteen years old. The third provision is a promise from Ritzell to provide fifty percent of each yearly income tax refund to Espeche because Ritzell planned to continue to claim Espeche and Jonathan as dependants on his income tax return. The Family Code defines spousal maintenance as “an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.” Tex. Fam.Code § 8.001(1). Ritzell’s maintenance of Es-peche’s medical and dental insurance and his promise to pay half of his income tax refund to her fall within the definition of spousal support. Therefore, as with the first provision of the contract, Espeche’s claims under the second and third provisions of the contract could not have been adjudicated in the original divorce proceeding.
The same reasoning, however, does not apply to the provision in the agreement relating to retirement benefits. In the divorce decree, the trial court purported to divide the entire community estate, and Espeche does not argue the decree is ambiguous in that regard. Res judicata, therefore, applies to assets, such as retirement benefits, that werе part of the community estate apportioned by the family court. See Appleton,
Jonathan’s Breach of Contract Claims
The question presented with regard to Jonathan’s claims is whether Jonathan can be considered in privity with Espeche in thе 1984 divorce action. Generally, a person is not bound by a judgment in a suit to which he was not a party. See Tex. Civ. Prao. & Rem.Code § 37.006(a). The doctrine of res judicata creates an exception to this rule by forbidding a second suit arising out of the same subject matter of an earlier suit by one in privity with the party to the original suit. Amstadt,
Here, the basic legal right asserted by Espeche in the 1984 divorce action was her right to an equitable division of the marital property. Because Jonathan was not a child of the marriage, he could not have litigated his contractual claims in the divorce suit. See McGee v. McGee,
We sustain issue one with regal’d to Espeche’s portion of the breach of contract claim, which rests on the spousal support provisions of the March 12, 1984 separation agreement, and with regard to Jonathan’s breach of contract claim. With regard to Espeche’s claim to the retirement benefits, we overrule issue one.
Disputed Fact Issues
In issue three, Espeche argues the trial court erred in granting summary judgment because there are disputed fact issues that should have been submitted to a jury. She presents her discussion in two parts: (1) bill of review and (2) enforceability of the 1984 agreement.
Because we have determined the trial court erred in granting a take-nothing summary judgment on Espeche’s claim for bill of review, we need not address the first part of Espeche’s argument. Furthermore, in analyzing Espeche’s issue one, we examined the effect of Ritzell’s res judicata defense on Espeche’s and Jonathan’s breach of contract claims and have taken into account the cases cited in the second part of their argument in issue three. Because Espeche presented no fact issue regarding the application of res judi-cata to a claim for retirement benefits, we neеd not revisit the second part of her argument.
CONCLUSION
We affirm the judgment of the trial court to the extent it ordered Espeche take nothing on her breach of contract claim relating to Ritzell’s retirement benefits. We reverse the judgment of the trial court to the extent it ordered Espeche take nothing on her breach of contract
JOHN S. ANDERSON, J. concurring.
Notes
. In our original opinion, we indicated Es-peche's "Second Amended Original Petition” was actually her first amended original petition and vice versa. See Espeche v. Ritzell,
. On appeal, Espeche does not address res judicata in relation to her fraud claim. See Brinkman v. Brinkman,
. Jonathan Espeche is not a child of the marriage.
. At oral argument, Ritzell’s counsel suggested Espeche may have waived objection to a late-filed amended motion for summary judgment. Given the status of the record, however, the pivotal issue is not the untimeliness of the motion, but whether an amended motion was before the court. Our record reflects there was no amended motion for summary judgment before the trial court because no leave was granted to file it. See Tex.R. Civ. P. 166a(c).
. Espeche's fraud claim is not before this court, and this court’s judgment does not affect the trial court’s summary judgment to the extent it ordered Espeche take nothing on her fraud claim.
Concurrence Opinion
concurring on remand on rehearing.
I concur in the result. I would, however, hold the summary judgment motion properly before the trial court, which Rit-zell filed before Jonathan was added as a plaintiff, did not address Jonathan’s claims. Accordingly, I would not reach the merits of Ritzell’s res judicata defense to those claims, but, instead, would hold the trial court erred in granting summary judgment on Jonathan’s claims because, in so doing, the trial court was granting relief on claims not addressed in the motion. See Chessher v. Southwestern Bell Tel. Co.,
It is axiomatic one may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Chessher,
Relying on the rule that the effect of a pleading is to be determined by its allegations and evident purpose, rather than its style, the majority reasons that Jonathan’s claims as a third party beneficiary to the contract were included in Espeche’s original petition even though Jonathan was not a named party in that petition. Majority op. at 8 (citing Hawkins v. Anderson,
In short, to determine the sufficiency of Ritzell’s motion, the majоrity focuses solely on the nature of Jonathan’s claims as set forth in Espeche’s original petition rather than looking at Jonathan’s status as a party in relation to Ritzell’s res judi-cata defense. A summary judgment motion addressing the causes of action brought by one plaintiff, however, does
The affirmative defense of res judicata requires the identity of parties or their privies in the prior and present lawsuits. See Amstadt v. U.S. Brass Corp.,
Thus, I would hold the trial court erred in ruling on Jonathan’s claims. Accordingly, I agree summary judgment should be reversed as to Jonathan’s claims, albeit for reasons different from those stated in the majority opinion.
For these reasons, I respectfully concur in the result only.
. Ritzell did not argue to this court that the motion for summary judgment properly before the court encompassed Jonathan’s claims. Instead, Ritzell contended, based on a docket entry, the trial court had granted leave to amend his summary judgment motion. Ritzell implicitly admits the deficiency of his original motion with regard to Jonathan’s claims.