In re P.D.D.

• Decision Date: 05 June 2008
• Docket Number: No. 06-07-00079-CV.,06-07-00079-CV.
• Parties: In the Interest of P.D.D., A Child.
• Court: Texas Court of Appeals

256 S.W.3d 834

In the Interest of P.D.D., A Child.

No. 06-07-00079-CV.

Court of Appeals of Texas, Texarkana.

Submitted May 14, 2008.

Decided June 5, 2008.

Shawn M. Morgan, Dunbar, Craytor & Morgan, LLP, Texarkana, for appellant.

James E. Keever, M.D., J.D., Texarkana, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

This is an appeal by Vickey Pace McAllister of an order denying her recovery of a claim against Joel Steven Pace for unpaid health insurance premiums and unpaid medical expenses incurred by McAllister for coverage of their child, P.D.D. The trial court ruled that the claims of McAllister were barred under the doctrine of res judicata.

BACKGROUND OF CONTROVERSY

McAllister and Pace were once husband and wife. A divorce was instituted by McAllister in 1993 and granted January 31, 1994; the divorce decree recited that no children were born to or adopted by the marriage and that none were expected. However, shortly after the divorce was granted, McAllister discovered herself to be pregnant and she filed an action to modify in a suit affecting the parent-child relationship. P.D.D., the child resulting from that pregnancy, was born on October 3, 1994, and an agreed order of paternity was entered on June 30, 1995, which found Pace to be the father and ordered him to pay child support and health insurance premiums for the child, with uninsured medical expenses to be shared by McAllister and Pace. This same order named McAllister managing conservator of the child with Pace as possessory conservator having standard specified rights of possession of the child.

At some point during 1995, McAllister and Pace re-established a joint household and lived together without marriage until the early part of 1999, when they once again separated. In 2003, McAllister moved to Arizona and remarried. In the Summer of 2004, McAllister and Pace experienced some kind of disagreement concerning Pace's visitation with or possession of P.D.D. and amicable relations between Pace and McAllister evaporated. McAllister moved her residence without telling Pace of her whereabouts or the whereabouts of P.D.D. On November 16, 2004, Pace filed an action for contempt to compel enforcement of his custodial rights with P.D.D. As a result of the hearing on that motion, on March 28, 2005, McAllister was held in contempt of court and ordered to pay Pace's attorney's fees; in addition, Pace was granted compensatory possession days in addition to those regular days set out in the 1995 order. Writs of attachment and commitment for McAllister were issued on April 18, 2005, but these writs were never served on McAllister.¹

On July 19, 2005, Pace filed a motion to modify the custody of P.D.D. McAllister responded with a request for modification of the child support obligation, retroactive to the date of filing of the request. A hearing on these issues was begun on August 30, 2005, but recessed before completion of all of the evidence, the trial court indicating that it would be resumed at a later time. Instead of a resumption of the hearing, an agreed order was entered on November 15, 2005; in the agreed order, the previous finding of McAllister's contempt of court and the portions of the previously-entered order granting Pace an award of attorney's fees were vacated; the orders regarding the conservatorship and possession of and access to P.D.D. were modified to a standard possessory order. The order concluded with the statement that "IT IS ORDERED that all relief requested in this case and not expressly granted is denied. All other terms of the prior orders not specifically modified in this order shall remain in full force and effect."

On March 13, 2006, McAllister filed an application for enforcement of the support order and for the return of items of personalty belonging to the child; specifically, McAllister sought to recover $400.00 in unpaid child support for the month of October 2005, $37,645.28 in reimbursement of health insurance premiums for a period beginning at the birth of the child and ending in 2003,² and Pace's half of uninsured medical expenditures, the return of a pink blanket and diamond necklace belonging to the child, and a judgment for attorney's fees incurred in bringing the action.³ A hearing on this claim was conducted on October 12, 2006, after which the trial court received trial briefs by both McAllister and Pace. In its memorandum order dated February 19, 2007, the trial court included a finding that the agreed order entered November 15, 2005, barred McAllister's claims by res judicata. As a basis for this, the trial court found that the issues had been tried by consent in the hearing leading to the entry of that order and that the prior order was a monumentation of a settlement agreement between the parties which disposed of all claims between the parties prior to the entry of the agreed order. There were no findings of fact and conclusions of law requested and none were filed, but in recitations contained in the order, the trial court based its findings that a settlement had occurred on the pleadings and testimony of the parties at the August 30, 2005, hearing.

In her appeal, McAllister maintains that: (1) Pace had never filed pleadings claiming either res judicata or settlement prior to the hearing. Because there were no pleadings filed upon which those affirmative defenses could have been raised, Pace was prohibited from doing so. (2) There was no trial by consent of the issue of the health insurance premiums or settlement in the prior hearing and resulting agreed order. (3) The trial court erred in ruling that there was a previous trial by consent of the issue of health insurance premium reimbursement.

WERE AFFIRMATIVE DEFENSES RAISED BY PACE'S PLEADINGS?

Rule 94 of the Texas Rules of Civil Procedure provides, in part, that "In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction ..., payment, release, res judicata ..., waiver, and any other matter constituting an avoidance or affirmative defense." TEX.R. CIV. P. 94. It has long been held that the purpose of Rule 94 is to give the opposing party notice of the defensive issues to be tried. Land Title Co. of Dallas, Inc. v. F.M. Stigler, Inc., 609 S.W.2d 754, 756 (Tex.1980); Hunter v. Carter, 476 S.W.2d 41, 45 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.); Musso v. Cronley, 422 S.W.2d 840, 841 (Tex.Civ.App.-Waco 1967, no writ).

An affirmative defense does not tend to rebut factual propositions asserted by a plaintiff, but rather it seeks to establish an independent reason why the plaintiff should not recover. Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex.1991); Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.-Houston [1st Dist.] 2005, pet. denied).

McAllister has argued that Pace failed to comply with the requirement of Rule 94 that the affirmative defenses of res judicata and settlement be specially pled.

Although Pace's brief makes no mention of this fact, the first full paragraph in his "First Amended Response to Motion for Enfocement [sic] and Motion to Enforce and Motion for Sanctions Under Tex. Civ. Prac. & Rem.Code § 10.002" recites in part:

RESPONDENT would show that each of these alleged violations was fully addressed in a hearing on August 30, 2005, by this Court and disposed of by the order of this Court, signed by the Honorable Ralph Burgess on November 15, 2005, specifically the final paragraph of said order on page 15 which states, "IT IS ORDERED that all relief requested in this case and not expressly granted is denied."

In prescribing the degree of definiteness which pleadings contain, Rule 47 of the Texas Rules of Civil Procedure requires that they be particular enough as to "give fair notice of the claim involved." TEX.R. CIV. P. 47. A party need not plead a cause of action and its elements with specificity if it can be reasonably inferred from the pleadings. McNeil v. Nabors Drilling USA, Inc., 36 S.W.3d 248, 250 (Tex.App.-Houston [1st Dist.] 2001, no pet.). Although there is no mention of the words "barred," "claim preclusion," "issue preclusion," or "res judicata" within them, the pleadings filed by Pace were sufficient to place McAllister on notice of the intention of Pace to interpose the defense that the issues raised by McAllister for recovery of unpaid health insurance premiums and medical expenses had been previously litigated in the previous hearing and were thus not capable of being heard once again.

As to whether there were pleadings which raised the issue of whether a settlement between the parties precluded recovery, it appears there were no such allegations contained in Pace's response. Therefore, irrespective of whether this issue would fall within the terminology of accord and satisfaction, waiver, or estoppel, there is simply no pleading conforming to the requirements of Rule 94. Accordingly, the issue of settlement (however characterized) was not raised in the pleadings.

TRIAL BY CONSENT?

However, although an affirmative defense has not been pleaded, it can still be considered if, at trial, it is tried by the consent of the parties. See TEX.R. CIV. P. 67; see also Bell v. Meeks, 725 S.W.2d 179, 179-80 (Tex.1987). To determine whether an issue was tried by consent, the court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Pickelner v. Adler, 229 S.W.3d 516, 523 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); Beck v. Walker, 154 S.W.3d 895, 901 n. 3 (Tex.App.-Dallas 2005, no pet.); Stephanz v. Laird, 846 S.W.2d 895, 901 (Tex.App.-Houston [1st Dist.] 1993, writ denied); Watts v. St. Mary's Hall, Inc., 662 S.W.2d 55, 58 (Tex. App.-San Antonio 1983, writ ref'd n.r.e.).

Looking at the circumstances leading up to the hearing held on August 30, 2005, we find that McAllister had been previously found to be in contempt;...