Martin v. Martin, Martin & Richards, Inc.

• Decision Date: 29 May 1997
• Docket Number: No. 2-96-112-CV,2-96-112-CV
• Parties: Jan MARTIN, Independent Executrix of the Estate of Gary Martin, Appellant, v. MARTIN, MARTIN & RICHARDS, INC., and Roneal Martin, Appellees.
• Court: Texas Court of Appeals

Page 1

991 S.W.2d 1

Jan MARTIN, Independent Executrix of the Estate of Gary Martin, Appellant, v. MARTIN, MARTIN & RICHARDS, INC., and Roneal Martin, Appellees.

No. 2-96-112-CV.

Court of Appeals of Texas Fort Worth.

May 29, 1997.

Bishop, Payne, Williams & Werley, L.L.P., Thomas J. Williams, Fort Worth, for Appellant.

Law, Snakard & Gambill, Ed Huddleston, Dabney D. Bassel, Lynn M. Johnson, Fort Worth, for Appellee.

Panel A: CAYCE, C.J.; HOLMAN, J., and H. TOD WEAVER, J. (Retired) (Sitting by Assignment).

OPINION

H. TOD WEAVER, Justice (Retired).

This is an appeal from a summary judgment in favor of appellees, Martin, Martin and Richards, Inc. ("MMR"), and Roneal Martin ("Roneal"), defendants below against Gary Martin, ("Gary") plaintiff below. The case involves a breach of contract claim filed by Gary against MMR and Roneal under a contract signed by Gary, Roneal, and Floyd O. Richards, on February 29, 1988.

Gary filed this suit against MMR on October 9, 1992. MMR filed its original motion for summary judgment on August 26, 1993. Roneal was named as an additional defendant in the suit on August 31, 1993. A supplemental motion for summary judgment was filed by MMR and Roneal on October 29, 1993. On November 2, 1993, the trial court signed an order granting the defendants' motions for summary judgment. Gary filed his response to the supplemental motion for summary judgment on November 4, 1993, and leave for filing that response was granted on November 15, 1993.

The order granting defendants' motion for summary judgment became final and appealable on February 20, 1996. After the order granting defendants' motion for summary judgment was signed, and while the case was still pending before the trial court, Gary died on June 29, 1994, and this appeal was perfected by appellant, Jan Martin, the Independent Executrix of the Estate of Gary Martin, deceased.

Appellant brings two points of error. Under point one, she claims the trial court erred in granting appellees' motion for summary judgment. The principal issue addressed by us under this point is whether Gary's breach of contract claims in the present lawsuit were barred by res judicata as a result of the dismissal of a prior lawsuit with prejudice. Under point two, appellant claims, in the alternative, that the trial court erred in granting Roneal's motion for summary judgment because there was no hearing on said motion, or, alternatively, Gary had no notice or insufficient notice of a hearing on that motion. We overrule both points of error and affirm the judgment of the trial court.

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of a material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, Acker v. Texas Water Comm'n, 790 S.W.2d 299, 301-02 (Tex.1990), and all doubts about the existence of a genuine issue of a material fact are resolved against the movant. Cate, 790 S.W.2d at 562; Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am., 391 S.W.2d at 47.

In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47.

A defendant is entitled to summary judgment if the summary judgment evidence establishes, as a matter of law, that at least one element of a plaintiff's cause of action cannot be established. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex.1975). To accomplish this, the defendant-movant must present summary judgment evidence that negates an element of plaintiff's claim. Once evidence is presented, the burden shifts to the plaintiff to put on competent controverting evidence that proves the existence of a genuine issue of material fact with regard to the element challenged by the defendant. Centeq Realty, 899 S.W.2d at 197.

The defendant-movant may also succeed by pleading and conclusively establishing each element of an affirmative defense, thereby rebutting the plaintiff's cause of action. Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex.App.--Dallas 1994, writ denied). Again, once a movant has established a right to summary judgment, the burden shifts to the nonmovant to present any evidence that would prevent summary judgment. Id.

When, as in this case, a trial court's order granting summary judgment does not specify the grounds relied on for its ruling, summary judgment will be affirmed on appeal if any of the theories advanced by the movant are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Martin v. Southwestern Elec. Power Co., 860 S.W.2d 197, 198 (Tex.App.--Texarkana 1993, writ denied).

Res Judicata

Point of error one concerns the question of whether Gary's claims for breach of contract in the present case were barred by res judicata. Appellees listed some 13 grounds in support of their motions for summary judgment, one of which involved a claim that Gary's claims for recovery under the contract in the present suit were barred by res judicata because of an order of dismissal with prejudice that was entered in a prior lawsuit in which Gary, as intervenor, sought declaratory relief. ¹

Res judicata bars relitigation of claims that were brought or could have been brought in an earlier case involving the same parties (or their privies) and the same subject matter. Soto v. Phillips, 836 S.W.2d 266, 268 (Tex.App.--San Antonio 1992, writ denied) (op. on reh'g). Res judicata, or claim preclusion, is predicated on several policies. The policies behind the doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 629 (Tex.1992). In determining what claims are barred by res judicata, Texas has adopted what is known as the "transactional" approach. Id. at 630-31. To determine whether or not a subsequent claim is barred by res judicata requires:

A determination of what constitutes the subject matter of a suit necessarily requires an examination of the factual basis of the claim or claims in the prior litigation. It requires an analysis of the factual matters that make up the gist of the complaint, without regard to the form of action. Any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit.

Id. at 630.

Judgment on a declaratory judgment action also bars subsequent prosecution on the same cause of action. See Ortega v. First RepublicBank Fort Worth, 792 S.W.2d 452, 456 (Tex.1990) (op. on reh'g); Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex.), cert. denied, 464 U.S. 894, 104 S.Ct. 242, 78 L.Ed.2d 232 (1983); MJR'S Fare of Dallas v. City of Dallas, 792 S.W.2d 569, 571-72 (Tex.App.--Dallas 1990, writ denied) (op. on reh'g); and Brown v. Scherck, 393 S.W.2d 172, 179 (Tex.Civ.App.--Corpus Christi 1965, no writ).

We will now review the contract, the causes of action alleged by Gary in his plea in intervention in the prior lawsuit, and the causes of action he alleged in the present lawsuit, with respect to how they bear on the res judicata arguments of MMR and Roneal.

The Contract

The contract on which Gary sued was an instrument entitled "Agreement to Sell and Purchase" (the "Contract"), dated February 29, 1988, and signed by Gary, Floyd Richards, and Roneal. Although that instrument does not so indicate, it is undisputed that the three parties who signed the Contract were the sole shareholders, directors, and principal officers of MMR, and owned the stock of MMR in approximately equal proportions. The Contract was not signed by MMR and the same does not name MMR as a party. Pertinent portions of the contract provided:

• Gary Martin sells and conveys all of his right, title and interest in MMR to MMR.

• Upon the execution of the Contract, Gary Martin shall have no further interest in the business or in any of the assets of the business, whether as owner, creditor, lessor, bailor or otherwise, and that Floyd Richards and Roneal Martin may continue to conduct the business free of any claim or interest by Gary Martin, except that Gary Martin shall retain an interest in a life insurance policy insuring his life and in two automobiles as shown.

• It is agreed that Gary Martin shall be retained by MMR as a consultant at the monthly rate of $10,833.33 per month for a period of ten years, payable bi-monthly on the 1st and 15th of each month, beginning March 1, 1988.

• In consideration of the transfer, Gary Martin shall be paid $200,000.00 at the rate of $1,667.67 per month for a period of ten years, payable bi-monthly on the 1st and 15th of each month, beginning March 1, 1988.

• Roneal Martin and Floyd Richards shall pay and discharge, as and when due, all debts, liabilities and obligations of every and any kind and character which have arisen or which may hereafter arise out of the partnership of C.C. & Co. and MMR, or the conduct of either business, whether such debts, liabilities and obligations are absolute or contingent, and known or unknown.

• All businesses shall be continued without any winding up or termination.

• This agreement contains the entire...