Rexrode v. Bazar

• Decision Date: 02 January 1997
• Docket Number: No. 07-96-0121-CV,07-96-0121-CV
• Citation: 937 S.W.2d 614
• Parties: Kelly REXRODE, Appellant, v. Gregory BAZAR, Appellee.
• Court: Texas Court of Appeals

Page 614

937 S.W.2d 614

Kelly REXRODE, Appellant, v. Gregory BAZAR, Appellee.

No. 07-96-0121-CV.

Court of Appeals of Texas Amarillo.

Jan. 2, 1997.

Russell C. Daves, Lubbock, for appellant.

Jones, Flygare, Galey, Brown & Wharton, James L. Wharton, John D. Rosentreter, Lubbock, for appellee.

Before BOYD, C.J., REAVIS, J., and REYNOLDS, Senior Justice. ^*

BOYD, Chief Justice.

In one point of error, appellant Kelly Rexrode contends appellee Gregory Bazar (Bazar) was not entitled to the take-nothing summary judgment in his favor because the summary judgment evidence was not sufficient to establish his claims were barred under the collateral estoppel doctrine. Disagreeing, we affirm the judgment of the trial court.

The First Suit

The question presented in this appeal requires a rather detailed review of a prior lawsuit involving these parties. On March 29, 1993, appellant filed suit against Bazar and State Farm Insurance Company (State Farm). In his suit, appellant complained that on or about October 13, 1992, he sustained bodily injuries and property damage proximately caused by Bazar's negligence and sought to recover against State Farm under the uninsured/underinsured motorist provision of his automobile insurance policy. State Farm was duly served with appellant's original petition and appellant's requests for admission on April 12, 1993. State Farm did not file any response to the requests for admissions causing them to be deemed admitted. Tex.R. Civ. P. 169(1).

When the case was called for trial on June 6, 1994, appellant non-suited Bazar, leaving State Farm as the only defendant. Following voir dire and opening statements, appellant was permitted to and did read several of the deemed admissions to the jury. However, State Farm moved to be allowed to answer the requests and that the deemed admissions be withdrawn. After a hearing outside the presence of the jury, the trial court found good cause to permit State Farm to answer the requests and withdrew the deemed admissions from the consideration of the jury. Appellant then rested without making any further attempt to produce evidence.

Subsequently, the trial court granted State Farm's motion for instructed verdict and rendered judgment that appellant "take nothing by his suit against State Farm Mutual Automobile Insurance Company...." The trial court's withdrawal of the admissions was later affirmed by this court in an unpublished opinion, styled Kelly Rexrode v. State Farm Mutual Automobile Insurance Company, 07-94-0297-CV (Tex.App.--Amarillo 1995, writ denied).

The Second Suit

On June 7, 1994, appellant filed the instant suit against Bazar, making the same allegations of negligence, proximate cause, and harm to him. In his original answer and a subsequent motion for summary judgment, Bazar asserted that appellant was collaterally estopped to assert any claim against him because appellant "completely litigated issues concerning negligence, proximate cause, and damages arising out of the accident made the subject matter of this lawsuit in a previous case...." Without specifying its reasoning, the trial court granted the take-nothing summary judgment giving rise to this appeal.

The Law

The standards for appellate review of a summary judgment are now axiomatic. As explicated by our supreme court they are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

In order for a defendant to be entitled to summary judgment, he must disprove, as a matter of law, at least one of the essential elements of each of the plaintiff's causes of action, Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991), or must establish one or more defenses as a matter of law. Bryant v. Gulf Oil Corp., 694 S.W.2d 443, 445 (Tex.App.--Amarillo 1985, writ ref'd n.r.e.). In supporting his judgment, Bazar asserted that the summary judgment evidence established he was entitled to the affirmative defense of collateral estoppel.

The doctrine of collateral estoppel is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994); Tarter v. Metropolitan Sav. & Loan Ass'n, 744 S.W.2d 926, 927 (Tex.1988).

In Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381 (Tex.1985), the supreme court held that, unlike the broader res judicata doctrine, collateral estoppel analysis does not focus on what could have been litigated, but what was actually litigated. Id. at 384. Even so, some three years later in the Tarter case, even after reiterating that collateral estoppel precludes relitigation of issues "actually litigated and essential to the judgment in a prior suit," by citing Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984) for the proposition that the collateral estoppel doctrine applies when the party against whom it is asserted "had a full and fair opportunity to litigate the issue in the prior suit," the court seemed to indicate that the opportunity to litigate an issue was sufficient to support collateral estoppel. See Tarter, 744 S.W.2d at 927. However, that choice of language was unfortunate because in Bonniwell the court expressly defined collateral estoppel as narrower than res judicata, and stated that it "bars relitigation of any ultimate issue of fact actually litigated," while res judicata bars litigation "of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in the prior suit." 663 S.W.2d at 818 (emphasis added).

More recently, in Mower v. Boyer, 811 S.W.2d 560 (Tex.1991), the supreme court held that a prior adjudication of an issue will be given estoppel effect only if it was "adequately deliberated and firm." Id. at 563. The Mower court then went on and instructed that the factors it considers in making this determination are 1) whether the parties were fully heard, 2) whether the court supported its decision with a reasoned opinion, and 3) whether the decision was subject to appeal or was in fact reviewed on appeal. Id. at 562. In view of this recent supreme court authority, we believe any confusion has been obviated and we adhere to the "actually litigated" criteria explicated in Van Dyke v. Boswell.

Thus, a party seeking to assert the bar of collateral estoppel must establish that 1) the facts sought to be litigated in the second suit were fully and fairly litigated in the first action, 2) those facts were essential to the first judgment, and 3) the parties were cast as adversaries in that first suit. Sysco Food, 890 S.W.2d at 801. For the doctrine to be invoked it is also necessary that the party against whom the plea is being asserted be a party or in privity with a party in the prior litigation. Id. at 802; Mower, 811 S.W.2d at 563.

Our initial determination must be whether there was full and fair litigation of the same fact issues in the first suit. Thomas v. Thomas, 902 S.W.2d 621, 625 (Tex.App.--Austin 1995, writ denied), citing Cole v. G.O. Assocs., Ltd., 847 S.W.2d 429, 431 (Tex.App.--Fort Worth 1993, writ denied). Appellant concedes in his brief that "the central issues in this (second) case are whether or not Gregory Bazar was negligent and whether such negligence proximately caused damages to (appellant)." However, his primary contention on appeal is that in the first suit against State Farm, neither issue was "actually litigated" as is necessary to invoke the collateral estoppel doctrine. We disagree.

For the purposes of collateral estoppel, an issue was "actually litigated" when it was properly raised, by the pleadings or otherwise, and it was submitted for determination, and determined. Van Dyke, 697 S.W.2d at 384, citing Restatement (Second) of Judgments § 27 cmt. d (1982).

Issue Properly Raised

In the original petition filed in the first suit, appellant alleged that his bodily injuries and property damage were the direct and proximate result of Bazar's negligence in operating his motor vehicle in Lubbock County. He also alleged that prior to that time, he had purchased an uninsured/underinsured motorist policy from State Farm with coverage "in the amount of $20,000 per person," and that Bazar had been operating an uninsured/underinsured vehicle. Appellant then alleged that he had complied with all conditions precedent to recovering under this policy, but State Farm refused to pay, thereby causing his damages. We find that the question of Bazar's negligence was properly raised by the pleadings in the first suit.

Issue Submitted for Determination and Determined

In the first lawsuit, Rexrode non-suited his claims against Bazar before the jury was selected, sworn and seated, and before opening statements were given. Subsequently, after the jury was seated and sworn, as we have noted, Rexrode offered only requests for admissions, with the comment "deemed admitted" after he read each request, as proof in support of his case against State Farm. The requests for admissions read by the attorney included:

1. Appellant suffered bodily injury damages in the automobile accident on October 13, 1992, in the amount of $100,000.

2. The location of the accident (the intersection of County Road 71 and County Road 15, in Lubbock, Lubbock County, Texas).

3. The automobile accident was proximately caused by Bazar's negligence.

4. Nothing appellant did or failed to do on October 13, 1992...