Johnston v. Crook

• Decision Date: 25 July 2002
• Docket Number: No. 14-01-00244-CV.,14-01-00244-CV.
• Citation: 93 S.W.3d 263
• Parties: Cheryle R. JOHNSTON, Receiver, Appellant, v. Judy Swate CROOK, Appellee.
• Court: Texas Court of Appeals

93 S.W.3d 263

Cheryle R. JOHNSTON, Receiver, Appellant, v. Judy Swate CROOK, Appellee.

No. 14-01-00244-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 25, 2002.

COPYRIGHT MATERIAL OMITTED

Cheryle R. Johnson, K. Charles Peterson, Houston, for appellants.

Shawn Russel Casey, Houston, for appellees.

Panel consists of Chief Justice BRISTER and Justices ANDERSON and FROST.

OPINION ON REHEARING

JOHN S. ANDERSON, Justice.

We overrule appellee's motion for rehearing, withdraw our opinion filed April 11, 2002, and substitute this opinion in its place.

Appellant Cheryle R. Johnston, the receiver (Receiver) appointed to collect a divorce judgment in favor of Dian Frances Hartwell, challenges (1) a take-nothing summary judgment in favor of appellee, Judy Swate Crook; and (2) denial of Receiver's motion for partial summary judgment.¹ We reverse and remand.

PROCEDURAL BACKGROUND

Six years ago, the supreme court observed, "This case has a convoluted procedural history." Ex parte Swate, 922 S.W.2d 122, 123 (Tex.1996). Now, we have before us an additional twist.²

The lawsuit began July 9, 1996, when Hartwell sued Crook under the Uniform Fraudulent Transfer Act to recover a house, a diamond ring, and $105,000.³ Hartwell alleged Tommy E. Swate, husband first of Hartwell, then of Crook, transferred the property to Crook to prevent Hartwell from collecting a post-divorce final judgment she had obtained against Swate. Hartwell pleaded she could not have discovered with due diligence "[c]ertain transfers" by Swate within the four-year statute of limitations.

On October 7, 1998, in an effort to collect Hartwell's post-divorce judgment, Receiver intervened in Hartwell's fraudulent transfer suit. Receiver alleged the court had "jurisdiction over [Receiver's] claims in that they arise from the same facts and circumstances as set out in Plaintiffs Petition to Set Aside Conveyances on file in this action."

In January 2000, Receiver filed a second amended petition to set aside the conveyances, listing only herself (and not Hartwell) as a party. Receiver's allegations against Crook are identical to those in Hartwell's 1996 petition. Receiver also pleaded "[c]ertain transfers [by Swate] could not be discovered with due diligence within the four year statute of limitations," and further alleged, "these causes of action have been brought within one year from the date of discovery." In her amended answer, Crook asserted a general denial and the affirmative defenses of waiver, estoppel, limitations, laches, and res judicata. Crook also alleged the cause of action constituted an impermissible collateral attack on Crook's divorce judgment.

Both parties filed traditional motions for summary judgment. Receiver sought judgment against Crook arguing the trial court, in earlier contempt proceedings, already had determined the facts necessary to her fraudulent transfer cause of action. The trial court denied the motion.

Crook then moved for summary judgment, alleging Receiver's claims were barred by estoppel, res judicata, the doctrine of collateral attack on existing judgments, and limitations. She alleged the house was transferred on April 2, 1990; the ring, by February 7, 1992; and the cash, by July, 1993. She did not address the issue of the discovery rule, raised by Receiver in her pleadings, in relation to any of the alleged transfers. Receiver responded, alleging the motion, filed three days before the case was set for trial, was not timely filed and contained numerous factual inaccuracies. The trial court granted Crook's motion without stating the grounds.⁴

DISCUSSION

Issues Presented and Standard of Review

In point of error one, Receiver argues the trial court erred in granting Crook's motion for summary judgment. In point of error two, Receiver argues the trial court erred in denying her motion for partial summary judgment.

When, as in this case, the parties have filed competing motions for summary judgment, and the trial court grants one motion and denies the other, we may consider the propriety of the denial as well as the grant. Gramercy Ins. Co. v. MRD Inv., Inc., 47 S.W.3d 721, 724 (Tex.App.-Houston [14th Dist] 2001, pet. denied) (citing Com'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex.1997)). If the issue raised is based on undisputed and unambiguous facts, we may determine the question presented as a matter of law. Gramercy Ins. Co., 47 S.W.3d at 724. We may then either affirm the judgment or reverse and render the judgment the trial court should have rendered, including one that denies both motions. Id. (citing Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988)). However, if resolution of the issues rests on disputed facts, summary judgment is inappropriate, and we should reverse and remand for further proceedings. Gramercy Ins. Co., 47 S.W.3d at 724 (citing Coker v. Coker, 650 S.W.2d 391, 394-95 (Tex.1983)).

The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non-movant. Id. 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Id. at 549.

A plaintiff moving for summary judgment must conclusively prove all essential elements of its claim. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986); Geiselman v. Cramer Fin. Group, Inc., 965 S.W.2d 532, 535 (Tex.App.-Houston [14th Dist.] 1997, no writ). A defendant moving for traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against it. Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff's theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). When the trial court does not specify the ground on which it granted summary judgment, we must affirm the judgment if any of the movant's theories with respect to the claim are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

I.

Point of error one: Did the trial court err in granting Crook's motion for summary judgment?

A.

Claim preclusion/issue preclusion

In her motion for summary judgment, Crook asserted estoppel, res judicata, and the doctrine of collateral attack on existing judgments. Crook alleged "Plaintiffs" had filed an identical suit in the 312th District Court, and the court dismissed "their" intervention with prejudice. In support, Crook attached (1) an order dismissing Hartwell's plea in intervention in the Crook-Swate divorce in the 312th District Court and (2) a copy of a subsequent plea in intervention in the same court by the former receiver, John Eikenburg. Crook did not provide a copy of Hartwell's plea or an order disposing of Eikenburg's plea.

In response, Receiver alleged the 312th District Court had never dismissed the former receiver's (Eikenburg's) plea in intervention. In support, Receiver attached her affidavit stating, "John Eikenburg, in his capacity as Receiver, filed the Plea in Intervention which is attached to [Crook's] motion for Summary Judgment as Exhibit F. That Plea in Intervention has never been dismissed."⁵ Receiver also stated she had personal knowledge of the facts in her affidavit, and had worked on the collection of the judgment against Swate since 1993, first at Eikenburg's request, then as Receiver.

Receiver's controverting affidavit created a fact question on Crook's claims of estoppel, res judicata, and the doctrine of collateral attack. Summary judgment on these theories would have been error in light of this genuine issue of material fact. See TEX.R. CIV. P. 166a(c).

In addition, although the trial court dismissed Hartwell's plea "with prejudice," we do not equate such a dismissal with dismissal of a "claim" or "cause of action," sufficient to support the defense of res judicata or collateral estoppel. Cf. Mossier v. Shields, 818 S.W.2d 752, 754 (Tex. 1991) (per curiam) (holding claimant estopped from litigating same claim that had been dismissed with prejudice for discovery abuse). We look not only at the use of "with prejudice" in the order, but also at the status of the record. See Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex.1997) (per curiam) (stating ambiguous decree must be interpreted by "reviewing both the decree as a whole and the record" to carry out the property disposition correctly).

Both Hartwell and Eikenburg intervened in the action in the 312th District Court after that court had rendered judgment. As such, their interventions were untimely. See Beach v. Beach, 912 S.W.2d 345, 348 (Tex.App.-Houston [14th Dist.] 1995, no writ) (stating once final judgment is rendered in case, intervention cannot be filed unless judgment is set aside); see also First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex.1984) (stating plea in intervention is too late if filed after judgment and may not be considered unless and until judgment has been set aside). Moreover, an intervenor is a party for purposes of appeal only if (1) she timely files a pleading, and (2) the trial court does not strike the pleading before the entry of final judgment. Preston v. American Eagle Ins. Co., 948 S.W.2d 18, 20 (Tex.App.-Dallas 1997, no writ). Thus, Hartwell and Eikenburg, who filed untimely pleas in intervention after judgment, were never parties and could not have appealed the judgment or dismissal of their pleas. See id.

In short, when, as here, the court dismisses a post-judgment plea in intervention, that dismissal (in contrast to dismissal of...