Avila v. St. Luke's Lutheran Hosp., 04-95-00773-CV

CourtCourt of Appeals of Texas
Citation948 S.W.2d 841
Docket NumberNo. 04-95-00773-CV,04-95-00773-CV
PartiesMaria Del Carmen Marquez AVILA a/n/f of Cristina Jimenez, A Minor, Appellant, v. ST. LUKE'S LUTHERAN HOSPITAL and Marilyn Abel, L.V.N., Appellees.
Decision Date14 May 1997

Page 841

948 S.W.2d 841
Maria Del Carmen Marquez AVILA a/n/f of Cristina Jimenez, A
Minor, Appellant,
ST. LUKE'S LUTHERAN HOSPITAL and Marilyn Abel, L.V.N., Appellees.
No. 04-95-00773-CV.
Court of Appeals of Texas,
San Antonio.
May 14, 1997.
Rehearing Overruled July 23, 1997.
Opinion Concurring on Denial ofRehearing July 23, 1997.
Rehearing Overruled Aug. 6, 1997.

Page 844

James L. Branton, Carol P. Lomax, Branton & Hall, P.C., San Antonio, for Appellant.

Edward C. Mainz, Jr., Thornton, Summers, Biechlin, Dunham & Brown, L.C., San Antonio, George F. Evans, Jr., Thad D. Spalding, Ball & Weed, P.C., San Antonio, for Appellees.




This is an appeal from the granting of motions for summary judgment in favor of St. Luke's Lutheran Hospital and Marilyn Abel, L.V.N., defendants below, in a wrongful death action brought by Maria del Carmen Marquez Avila, as next friend, for her daughter

Page 845

Cristina Jimenez, a minor, following the death of Ernesto Jimenez, Sr., the child's biological father.

We reverse and remand.

Ernesto Jimenez, Sr., died on January 26, 1989, while under the care and treatment of St. Luke's Lutheran Hospital (St. Luke's), Dr. Brant S. Mittler, and Marilyn Abel, L.V.N. (Abel).

On November 8, 1989, Ernest Jimenez, Jr., Jacquelyn Jimenez and Diana Jimenez-Bolfing, the adult children of Ernesto Jimenez, Sr., filed an action in their individual capacities and on behalf of the Estate of Ernesto Jimenez, Sr., under the Texas Wrongful Death Act 1 and the Texas Survivorship Statute 2 for damages sustained as a result of the wrongful death of their father, representing to the court that, as his children, they were the statutory beneficiaries entitled to share in the recovery. The petition did not mention any other beneficiary nor did it purport to be filed for the use and benefit of any others who might be entitled to any right or interest in the right of action set up and asserted in the suit. 3

On November 12, 1991, the Jimenez adult children settled their wrongful death claim with the three defendants for an amount in excess of $500,000.00, and a final take nothing judgment was entered in favor of the three defendants.

On August 25, 1995, Maria Del Carmen Marquez Avila (Avila), as next friend of her minor daughter, Cristina, filed a second wrongful death action against St. Luke's and Abel. 4 In her petition, Avila alleged that she had lived in a monogamous relationship with Ernesto Jimenez, Sr. for two years prior to his death and that at the time of Ernesto Sr.'s death she was in her second month of pregnancy with Cristina, who was born on July 24, 1989. Avila further averred, that besides Cristina, the only other persons entitled to recover under the Texas Wrongful Death Act were the aforementioned adult Jimenez children; 5 and that they had already recovered their benefits.

On October 19, 1994, 6 St. Luke's filed its motion for summary judgment and also sought severance. This motion relied on the doctrine of res judicata as an affirmative defense and was supported by numerous documents, allegedly supporting the plea, including the final judgment and the release papers in the earlier suit. This motion was heard and overruled on November 30, 1994.

On February 27, 1995, Abel made her appearance by filing her original answer. Thereafter, on May 5, 1995, Abel filed her motion for summary judgment and severance setting up, as a bar to recovery, the doctrine of collateral estoppel.

In her motion, Abel alleged that she was entitled to judgment as a matter of law under the doctrine of collateral estoppel as a result of a judgment entered in a former cause of action, to wit: Ernesto Jimenez, Jr., Jacqueline Jimenez and Diana Jimenez-Bolfing, Individually and on behalf of the Estate of Ernesto Jimenez, Sr. v. Dr. Brant S. Mittler, St. Luke's Lutheran Hospital and Marilyn Abel, L.V.N., cause no. 89-CI-19191, in the district court, 150th Judicial District, Bexar

Page 846

County, Texas. In support of her motion, Abel attached substantially the entire record in the antecedent cause, including the various pleadings, discovery documents and final judgment. Also included were evaluation reports of various physicians and affidavits of attorneys attesting to the authenticity of the documents attached.

On May 9, 1995, St. Luke's filed its second motion for summary judgment in which it specifically adopted the argument 7 and proof in Abel's motion for summary judgment and also incorporated, by reference, the documentation attached to its previously overruled motion for summary judgment. Avila responded to both motions with some of the identical documentation relied upon by St. Luke's and Abel. Additionally, Avila attached affidavits attesting to her relationship with Ernesto Jimenez, Sr., attesting to the DNA test results confirming paternity of the deceased, confirming birth certificate registration for Cristina and attesting to Cristina's eligibility for social security benefits as a beneficiary of the deceased. Also included was the affidavit of Avila in which she denied knowledge of the existence of the previously filed wrongful death action until sometime in 1992. She further denied being consulted or consenting to any lawsuit being brought in her name or in the name of the child, Cristina, or in the settlement of same as it might refer to any claim arising out of the death of Ernest Jimenez, Sr. Other summary judgment proof consisted of affidavits corroborating Avila's claim to having had a long standing relationship with the deceased immediately prior to his death.

On June 13, 1995, the trial court addressed and granted both motions for summary judgment and entered a take-nothing judgment in favor of St. Luke's and Abel.

In three points of error, Avila asserts trial court error in granting the motions for summary judgment, claiming that the doctrines of collateral estoppel and res judicata 8 do not apply to the minor child. Moreover, Avila insists that there was no showing that privity existed between the minor child and the adult Jimenez children in the prior lawsuit for wrongful death brought by the adult Jimenez children. Finally, Avila asserts that the motions for summary judgment should not have been granted because a minor's claims cannot be compromised without court approval.

Under Rule 166a, Texas Rules of Civil Procedure, the party moving for summary judgment has the burden of establishing that there exists no material fact issue and that movant is entitled to judgment as a matter of law. When a defendant moves for summary judgment on the basis of an affirmative defense, he must conclusively prove all essential elements of that defense. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); see Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Collateral estoppel is a defense constituting an avoidance and, therefore, is also an affirmative defense. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 802 (Tex.1994); Cuellar v. City of San Antonio, 821 S.W.2d 250, 256 (Tex.App.-San Antonio 1991, writ denied); Summary judgment may be granted upon a proper plea of collateral estoppel. See Cuellar, 821 S.W.2d at 256.

The party relying upon collateral estoppel must introduce into evidence the judgment and pleadings from the prior suit or the doctrine of collateral estoppel is not applicable in the second proceeding. Scurlock Oil Co. v. Smithwick, 787 S.W.2d 560, 562 (Tex.App.--Corpus Christi 1990, no writ); City of Houston v. Houston Chronicle Publishing Co., 673 S.W.2d 316, 321 (Tex.App.--Houston [1st Dist.] 1984, no writ); Kveton v. Farmers Royalty Holding Co., 149 S.W.2d 998, 1000 (Tex.Civ.App.--Galveston 1941, no writ).

Page 847

We address Avila's first two points challenging the trial court's sustaining of St. Luke's and Abel's collateral estoppel defensive pleas. Collateral estoppel, often referred to as issue preclusion 9 and estoppel by judgment, 10 is much more narrow than res judicata, which bars litigation of claims connected with the cause of action or defense, which, with the use of diligence, might have been tried in a prior suit. Russell v. Moeling, 526 S.W.2d 533, 536 (Tex.1975).

The doctrine of collateral estoppel is designed to promote judicial efficiency, protect parties from multiple lawsuits and prevent inconsistent judgments by precluding the relitigation of issues. Trapnell, 890 S.W.2d at 801. Collateral estoppel, therefore, bars only the relitigation of identical issues of fact or law that were actually litigated and essential to the judgment in a prior suit. More specifically, the doctrine extends only to those matters [issues] that were either expressly determined or necessarily determined in an adjudication and not to those matters which might have been, but were not, raised and adjudicated therein. See Barr, 837 S.W.2d at 628. Once an actually litigated and essential issue is determined, that issue is conclusive in a subsequent action between the same parties. Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex.1985); Wilhite v. Adams, 640 S.W.2d 875, 876 (Tex.1982).

In Texas, the principle of estoppel by judgment applies whether the issue is determined by agreement or by the court. Withers v. Republic Nat'l Bank, 248 S.W.2d 271, 282 (Tex.Civ.App.--Beaumont 1951, ref'd n.r.e.). 11 In Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984), the supreme court identified three elements necessary to establish issue preclusion: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. The further requirement of mutuality was abrogated to the extent that it is now required only as to the party against whom the plea of collateral estoppel is...

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