Barnett v. Maida

• Decision Date: 24 April 1975
• Docket Number: No. 7694,7694
• Citation: 523 S.W.2d 325
• Parties: Joel E. BARNETT, Appellant, v. Peter W. MAIDA et al., Appellees.
• Court: Texas Court of Appeals

Page 325

523 S.W.2d 325

Joel E. BARNETT, Appellant, v. Peter W. MAIDA et al., Appellees.

No. 7694.

Court of Civil Appeals of Texas Beaumont.

April 24, 1975.

Rehearing Denied May 15, 1975.

Larry P. Peyton, Houston, for appellant.

James D. McNicholas, Beaumont, for appellees.

KEITH, Justice.

Plaintiff below appeals from an order of dismissal of his suit after the trial court had sustained a plea in abatement (which was in actuality a plea to the jurisdiction) which urged the plea of res judicata and estoppel by judgment. No evidence was offered on the hearing but the trial court took notice of certain prior proceedings in the same court in entering the order of dismissal.

Cause No. E--92301 upon the docket of the 172nd District Court of Jefferson County, Texas, was a suit brought by our present plaintiff, Barnett, against Maida and Moor, our present defendants, involving certain transactions relating to stock which plaintiff at one time owned in a corporation known as Stadium Center in Beaumont. In that case the trial court entered summary judgment for the defendant Maida on April 30, 1973, and for the defendant Moor on May 22, 1973.

The cause was duly appealed to this court where it bore No. 7533 and was, by this court, affirmed with an opinion bearing date of December 13, 1973. Barnett v. Maida, 503 S.W.2d 610 (Tex.Civ.App.--Beaumont 1973, writ ref'd n.r.e.). Barnett's motion for rehearing was overruled, without written opinion, on January 10, 1974. Barnett duly filed his application for writ of error on February 11, 1974, and it was docketed in the Supreme Court of Texas under No. B--4485. Thereafter, on May 22, 1974, the Supreme Court entered its order refusing the application with the notation, no reversible error, and said judgment became final on June 10, 1974.

The present suit, No. E--100186 upon the docket of the 172nd District Court of Jefferson County, Texas, was filed on May 2, 1974. It involved the same parties, both plaintiff and defendant, and the identical subject matter that had been involved in the prior litigation. In the present suit, the gravamen of the complaint is that on May 3, 1972, 'Maida and Moor wrongfully conspired to have the corporation convert Barnett's stock by cancelling same and unlawfully appropriating same as treasury stock of the corporation, all to the benefit of Maida and Moor.' Further allegations were to the effect that by reason 'of said wrongful conversion, Maida and Moor directly increased their equity ownership of Stadium Center, thereafter jointly owning one hundred per cent of the outstanding shares of Stadium Center.' Plaintiff sought recovery of $250,000 for the alleged wrongful conversion of his stock and a like amount as exemplary damages.

At the outset of our discussion, we invoke the rule stated in Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763 (1942):

'It is the established law of this state that courts may take notice of their own records and a former judgment may be held to be conclusive in a subsequent action when the record shows a judgment rendered in a cause involving the same subject matter between the same or practically the same parties, even though no plea of res judicata was interposed in the subsequent suit.'

Accord: Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961); McKenzie v. Frost, 448 S.W.2d 520, 523 (Tex.Civ.App.--El Paso 1969, writ ref'd n.r.e.); Allright, Inc. v. Galbreath, 469 S.W.2d 810, 811 (Tex.Civ.App.--Houston (14th Dist.) 1971, no writ).

The trial court took notice of its own records and there was no necessity for the tender of formal proof of the facts disclosed by the trial court's own files. Similarly, under the authorities noted above, we have taken notice of our own records involving the same case and parties. Point one is overruled.

The early case of Foster v. Wells, 4 Tex. 101, 104 (1849), recognized the rule that a judgment or decree of a court of competent jurisdiction was final as to the matters determined but extended it further by saying: "(I)t is not only final as to the matters actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have decided." This rule was quoted in the leading case on the subject, Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97, 99, 47 Am.St.Rep. 79 (1894), and is still valid. Freeman, supra, was cited by our Supreme Court recently in Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex.1963), and Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.1971).

Plaintiff seeks to avoid this rule by contending:

'It must be remembered that the cause of action asserted by Barnett in the current litigation is separate and distinct from that asserted in the prior litigation, notwithstanding...