Gracia v. RC Cola-7-Up Bottling Co.

• Citation: 667 S.W.2d 517
• Decision Date: 04 April 1984
• Docket Number: COLA-7-UP,No. C-2610,C-2610
• Parties: Josefina GRACIA, Petitioner, v. RCBOTTLING CO., et al., Respondents.
• Court: Texas Supreme Court

Page 517

667 S.W.2d 517

Josefina GRACIA, Petitioner, v. RC COLA-7-UP BOTTLING CO., et al., Respondents.

No. C-2610.

Supreme Court of Texas.

April 4, 1984.

Rehearing Denied May 2, 1984.

Richard C. Arroyo, Brownsville, for petitioner.

Adams, Graham, Jenkins, Graham & Hamby, Tom Lockhart, Harlingen, for respondents.

BARROW, Justice.

This is a suit for damages allegedly sustained by Josefina Gracia, wife of Odilon Gracia, as a result of a collision between an automobile operated by Odilon and a truck owned by RC Cola-7-Up Bottling Co. of Harlingen, Inc. (the Bottling Company). The trial court rendered a take-nothing summary judgment on the Bottling Company's pleas of res judicata and accord and satisfaction. The court of appeals affirmed. 659 S.W.2d 152. We reverse the judgments of the courts below and remand the cause to the trial court.

On February 29, 1980, a collision occurred between the Bottling Company's truck and the Gracia family car, which was operated by Odilon and in which the couple's minor daughter, Dolores Gracia, was a passenger. Both Odilon and Dolores sustained injuries. Josefina was not involved in the collision. A suit was subsequently filed by "ODILON GRACIA, Individually and with his wife, JOSEFINA GRACIA, as Next Friends of DOLORES GRACIA, minor child" against the Bottling Company and its driver, Artemia Rene Garcia. On July 30, 1981, after three days of testimony, a settlement was reached and an agreed judgment was rendered. This judgment is the basis of the Bottling Company's plea of res judicata.

The July 30 judgment recites that the cause "wherein ODILON GRACIA, Individually and with his Wife, JOSEFINA GRACIA, as Next Friends of DOLORES GRACIA, minor child, are Plaintiffs" came on to be heard and that these parties appeared. No appearance was shown by Josefina individually. The judgment awarded a total of $250,000 to plaintiffs. Of that sum, $124,555.55 was to be paid into the registry of the court for the benefit of the minor child. The remaining $125,444.45 was ordered paid as follows:

[T]he Plaintiffs, ODILON GRACIA and JOSEFINA GRACIA, Individually, should have and recover of and from the Defendants, RC--7-Up BOTTLING COMPANY, HARLINGEN, TEXAS and ARTEMIO RENE GARCIA, the sum of One-hundred Twenty-five Thousand Four-hundred Forty-four and 45/100 Dollars ($125,444.45), said sum including the Fifty-thousand and No/100 Dollars ($50,000.00) in settlement to ODILON GRACIA for all his individual claims for personal injuries and damages, and the remainder of such sum representing Seventy-thousand and No/100 Dollars ($70,000.00) in attorneys' fees and One-thousand Five-hundred Eighty-three and 48/100 Dollars ($1,583.48) in expenses incurred by them and on behalf of the minor, DOLORES GRACIA, in the prosecution of her claim for personal injuries, and Three-thousand Eight-hundred Sixty and 97/100 Dollars ($3,860.97) in out-standing medical bills and expenses incurred by them for the treatment of the minor, DOLORES GRACIA.

The judgment form provided signature spaces for the approval of the parties as well as their attorneys. Significantly, the judgment as originally drafted called for the signature of Odilon Gracia only "as Next Friend of Dolores Gracia" and Josefina Gracia "Individually and as Next Friend of Dolores Gracia." This was changed at the time of signing to reverse the capacities in which the parties signed. Odilon signed "Individually & as Next Friend" and Josefina deleted the phrase "Individually" and signed only "as Next Friend of Dolores Gracia." The $125,444.45 portion of the judgment was satisfied by a draft issued by the Bottling Company's liability insurer. That draft was made payable to and was endorsed by Odilon Gracia and Josefina Gracia and their attorney Richard C. Arroyo.

About six months later, this new cause was filed by Josefina Gracia individually seeking to recover damages for loss of consortium as a result of the injuries to her husband and for economic loss suffered as a result of staying at the hospital with her injured daughter. The Bottling Company was granted a take-nothing summary judgment. The Bottling Company's motion asserted that the 1981 judgment was res judicata and that the sum paid to Josefina Gracia was an accord and satisfaction of all claims growing out of the accident in question.

In Whittlesey v. Miller, 572 S.W.2d 665 (Tex.1978), this Court concluded that one spouse has an independent cause of action for loss of consortium as a result of physical injuries caused to the other spouse by the negligence of a third party. It was further held that the deprived spouse was not barred by the settlement agreement executed by her injured husband. This holding was made applicable to all actions arising after the effective date of that decision. Under this holding, Josefina Gracia has a cause of action for loss of consortium unless barred by res judicata or accord and satisfaction.

The doctrine of res judicata states that a cause of action once finally determined between the parties on the merits by a competent tribunal cannot afterward be litigated by new proceedings. The judgment in the first suit precludes a second action by the parties and their privies on matters actually litigated and on causes of action or defenses arising out of the same subject matter that might have been litigated in the first suit. Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.1979); Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971).

If Josefina was a party to the first lawsuit, her present claim for loss of consortium was merged into the judgment. She could have asserted that claim in the first suit and thus can not now relitigate it. See Westinghouse Credit Corp. v. Kownslar, 496 S.W.2d 531 (Tex.1973); Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex.1973); Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963); see generally Steakley and Howell, Ruminations on Res Judicata, 28 Sw.L.J. 355 (1974).

It is apparent at the outset that Josefina Gracia appeared in the original action only in a representative capacity as next friend of her minor daughter, Dolores. The pleadings clearly so state. In a suit by a "next friend," the real party plaintiff is the child and not the next friend. Wygal v. Myers, 76 Tex. 598, 13 S.W. 567 (1890); Allen v. Roark, 625 S.W.2d 411, 416 (Tex.Civ.App.--Fort Worth 1981), rev'd in part on other grounds, 633 S.W.2d 804 (Tex.1982); cf., Loden v....