Mower v. Boyer

• Decision Date: 19 June 1991
• Docket Number: No. D-0467,D-0467
• Citation: Mower v. Boyer, 811 S.W.2d 560 (Tex. 1991)
• Parties: Lowell Kendall MOWER, Jr., Petitioner, v. Jack BOYER, Respondent.
• Court: Texas Supreme Court

Page 560

811 S.W.2d 560

Lowell Kendall MOWER, Jr., Petitioner, v.Jack BOYER, Respondent.

No. D-0467.

Supreme Court of Texas.

June 19, 1991.

Kathleen W. Osman, Andy Taylor, Laura Gibson, Houston, for petitioner.

Dale F. Carrington, David P. Willis, Houston, for respondent.

OPINION

COOK, Justice.

This case involves two inconsistent final judgments in two actions brought by the same creditor on the same promissory note.The first final judgment was rendered by the probate court, the second by the district court.We hold that the finding of the probate court that the note had been fully satisfied precluded the district court from rendering judgment for the creditor, Boyer.

Jack Boyer sued Lowell Kendall Mower, Jr., L. Kendall Mower, Sr., and Patricia Mower for allegedly failing to make any payments on a $15,000 note signed by Mower Jr. and Mower Sr.The district court rendered an interlocutory partial summary judgment against Mower Jr. and Mower Sr., stating in its written order that "Summary Judgment should be granted on all issues, except recei[pt] of consideration and the amount of the attorney's fees."The Mowers' pleadings, as amended before the trial court signed its written order, generally denied Boyer's allegations and raised lack of consideration as an affirmative defense.

Mower Sr. died while the district court action was still pending, and Boyer brought an action on the same note in probate court against the decedent's estate.After trial on the merits, the probate court rendered judgment that Boyer take nothing, on the ground that the note had been fully satisfied.Boyer did not appeal this judgment.

In the district court action, Mower Jr. moved to set aside the partial summary judgment, amended his answer to plead satisfaction and the preclusive effect of the probate court's judgment, and moved for summary judgment on these grounds.The district court denied his motion for summary judgment, tried the issues of consideration and attorney's fees, and rendered judgment for Boyer against Mower Jr. only.¹The court of appeals affirmed, holding that res judicata precluded Mower Jr. from raising satisfaction as an affirmative defense in the probate court because he failed to raise it in the prior summary judgment proceeding in the district court.795 S.W.2d 292, 293.The court of appeals also held that the district court's partial summary judgment was "final" for collateral estoppel purposes and precluded the probate court from determining the issue of liability against Boyer.795 S.W.2d at 293.We reverse the judgment of the court of appeals and render judgment for Mower Jr.

At the outset, we note that the district court's interlocutory partial summary judgment was not entitled to either res judicata or collateral estoppel effect.A partial summary judgment that is interlocutory and non-appealable is not final and cannot support a plea of res judicata.SeeHomeright Co. v. Exchange Warehouses, Inc., 526 S.W.2d 241, 244-45(Tex.Civ.App.--Tyler1975, writ ref'd n.r.e.);Restatement (Second) of Judgments§ 13(1982).In this case, the interlocutory partial summary judgment was not final because it expressly left open the issue of consideration, and thus it was not entitled to res judicata effect.

Nor was the partial summary judgment entitled to collateral estoppel effect on the issue of satisfaction of the note.A prior adjudication of an issue will be given estoppel effect only if it was adequately deliberated and firm.The factors to be considered in making this determination are (1) whether the parties were fully heard, (2) that the court supported its decision with a reasoned opinion, and (3) that the decision was subject to appeal or was in fact reviewed on appeal.SeeScurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6(Tex.1986);Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 385(Tex.1985);Restatement (Second) of Judgments§ 13, comment g (1982).The interlocutory partial summary judgment of the district court does not meet any of these criteria, as the issue of satisfaction was not expressly raised or decided, the decision was not supported by a reasoned opinion and the judgment was not reviewable by appeal.

Although the partial summary judgment in the district court was not entitled to preclusive effect, the final judgment of the probate court on Boyer's claim against Mower Sr.'s estate was entitled to preclusive effect in the district court.When a probate court exercises jurisdiction over a decedent's estate, its judgment, regular on its face, is immune from collateral attack.Graham v. Graham, 733 S.W.2d 374, 377-78(Tex.App.--Amarillo1987, writ ref'd n.r.e.);Wybrants v. Lehman, 307 S.W.2d 339, 341-42(Tex.Civ.App.--Eastland1957, writ ref'd n.r.e.);see alsoDallas Joint Stock Land Bank of Dallas v. Forsyth, 130 Tex. 563, 109 S.W.2d 1046, 1050(1937), reh'g granted in part and overruled in part, 130 Tex. 563, 112 S.W.2d 173(1938)(probate court acting within its statutory powers is a court of general jurisdiction and its judgments are immune from collateral attack).²Neither party contends that the probate court's judgment is void.If Boyer wished to challenge the judgment of the probate court on the ground that it should have been precluded by the partial summary judgment in the district court, he could have appealed the judgment of the probate court and asserted this argument on appeal.He chose not to do so, and instead proceeded to try his case in the district court.In the...