692 S.W.2d 127 | Tex. App. | 1985
This is an appeal from a trial court’s order dismissing, with prejudice, a suit filed by Donald G. Gage against the Tom Fairey Company (“the Company”) for damages under the Texas Deceptive Trade Practices Act, TEX.BUS. & COM.CODE
Gage’s petition alleges that he purchased a tractor from the Company on March 4, 1980. Prior to the March 4th purchase he had used the tractor under a lease arrangement. During the purchase negotiations Gage requested that the tractor’s hydraulic system - be repaired before the sale was closed. The Company serviced the tractor and assured Gage that it was repaired, that he would have no further trouble with it, and that it was like a “brand new” tractor. Based on these representations Gage con-sumated the purchase. Within one month following that purchase he began to have problems with the tractor, and as a result he had to have subsequent repairs made. Gage seeks damages for the Company’s: (1) misrepresentations, prior to purchase, that the tractor was repaired and in a “like new” condition; (2) misrepresentations that the tractor was of a particular standard, quality, or grade; (3) knowingly false or misleading statements of the need for parts, replacements, or repair service; and (4) failure to disclose information concerning the tractor which was known at the time of the transaction with the intent to induce him into entering a transaction which he would not have entered had that information been disclosed. Gage also seeks consequential damages.
The prior action, which the trial court concluded operated as res judicata to bar this case, was a suit on a promissory note for $4089.99, filed and pursued to final judgment by the Company against Gage, in a county court in Travis County. The Company contends that the trial court correctly determined the issue of res judicata because Gage raised the issue of repairs made to the tractor as a defense to the former suit and is therefore precluded from raising it as the basis of this suit. In Gage’s answer to that prior suit he stated that:
the note upon which Plaintiff bases its cause of action was given to Plaintiff as payment for repair work that Plaintiff performed on a John Deere 410 No. 318819. Defendant would show the Court that Plaintiff’s repair work was faulty and in fact that the tractor was never properly repaired and prior to the maturity of the note the tractor was again out of service as result of Plaintiff’s (sic) faulty repair and refusal to properly repair the machine. Plaintiff (sic) states that such faulty repair and refusal to repair said machine constitutes a failure of consideration such that negates Defendants obligation to paid said note.
In the present case, Gage did not file an answer to appellee’s sworn plea in abatement asserting that those repairs which Gage raised as a defense in the prior suit are the same repairs of which he now complains.
The rule of res judicata in Texas bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been litigated in a former suit, as well as those which were actually litigated. Segrest v. Segrest, 649 S.W.2d 610 (Tex.1983); Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963); Gilbert v. Fireside Enterprises, Inc., d/b/a Fireside Lodge of Dallas, 611
. Res Judicata is a plea in bar and not a plea in abatement; however, we conclude that the misnomer is not controlling and the plea shall be considered as having been properly brought. See Texas Highway Department v. Jarrell, 418 S.W.2d 486 (Tex.1967).