Rosa v. Avery
| Docket Number | 12-23-00140-CV |
| Decision Date | 31 October 2023 |
| Parties | REBECCA DE LA ROSA AND CESARDE LA ROSA, APPELLANTS v. KACIE HOPE AVERY AND JASONMATHEW AVERY, APPELLEES |
| Court | Texas Court of Appeals |
Appeal from the 273rd District Court of Shelby County, Texas (Tr.Ct.No. 20CV35415-B)
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Rebecca De La Rosa and Cesar De La Rosa (collectively Appellants) appeal the trial court's summary judgment entered in favor of Appellees Kacie Hope Avery and Jason Mathew Avery (collectively the Averys). Appellants raise five issues on appeal. We reverse and remand in part and affirm in part.
On February 26, 2020, Heston Avery decided to play a prank on A.D.L.R., a friend who came to his house to visit. In so doing, he pointed a shotgun at A.D.L.R. Heston did not believe the shotgun was loaded when he pulled the trigger. The shotgun was, in fact, loaded. It fired. A.D.L.R. later died from his wounds.
Robert Avery, Heston's grandfather, gave Heston the shotgun in 2015, when Heston was twelve or thirteen-years-old and living in Temple, Texas. Because Heston's parents, the Averys would not allow him to keep the shotgun at their house Robert kept the gun at his home until the Averys and Heston moved to Joaquin, Texas in late 2018, at which point Robert gave it to Heston to take with him.
Appellants filed the instant suit against Heston, the Averys, and Robert. As to the Averys, Appellants alleged that they were negligent in allowing Heston to possess the shotgun used to kill A.D.L.R. because they knew or should have known that due to Heston's youth, inexperience, immaturity, reckless nature, complex developmental trauma, attention deficit disorder, and/or other factors, Heston likely would use the shotgun in a manner involving unreasonable risk of harm to himself or others. Appellants similarly alleged that Robert was negligent in that he gave Heston the shotgun.
Appellants agreed to settle their claims against the Averys for $25,000. Appellants signed a release and an agreed judgment, by which their Appellants' case against the Averys was dismissed with prejudice on July 27, 2022. Appellants' case against Robert also was settled and dismissed. Their suit against Heston, the sole remaining defendant, continued.
Thereafter Appellants assert that, after much delay, they received discovery responses comprising twelve pages of documents from Miracle Farm, Inc., a residential boys ranch Heston attended between 2018 and 2019. Appellants' counsel notified Robert's counsel that this discovery proved that Robert gave false and incomplete deposition testimony and untruthful interrogatory answers. He further suggested in this letter that Appellants reasonably relied on Robert's sworn testimony and discovery responses in making their decision to settle the case against him, none of the information revealed in the Miracle Farm documents was part of settlement negotiations, and they believed that the "boilerplate" settlement and release were procured by Robert's fraud and fraudulent inducement. Appellants' counsel further related that Appellants asked him to take "all appropriate legal actions against [Robert] and Miracle Farm, Inc., including recission of the settlement agreement and release and a separate lawsuit to recover actual and punitive damages." Appellants' counsel subsequently sent an email to the Averys' trial counsel with his letter to Robert's counsel as an attachment. In the email, Appellants' counsel stated, "Please see attached letter to [Robert's attorney] as it is relevant to our case also."
Soon thereafter, the Averys intervened in the still-pending suit between Appellants and Heston and sought a declaratory judgment that the agreed take-nothing judgment and release are binding upon Appellants, final, and serve to conclude the litigation between the parties.[1] Thereafter, they filed a traditional motion for summary judgment, in which they argued that Appellants' claims were barred by res judicata and, further, that they were entitled to a declaratory judgment that the release and agreed, final, take-nothing judgment bars Appellants from seeking recission of the release and final judgment.
Appellants filed a response to the Averys' motion for summary judgment. In their response, they argued, in pertinent part, that the doctrine of res judicata did not apply, the Averys failed to authenticate the exhibits attached to their motion, their suit was not authorized by the Uniform Declaratory Judgment Act (UDJA), and the Averys did not prove that Appellants' actions amounted to anticipatory breach of the settlement agreement.
Ultimately, the trial court granted the Averys' motion for summary judgment and severed the cause between Appellants and the Averys from their suit against Heston. This appeal followed.
In their first issue, Appellants argue that the trial court erred in granting the Averys' motion for summary judgment because there is no second lawsuit filed by Appellants against them.
We review a trial court's summary judgment de novo. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017); Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A trial court may render summary judgment when "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues [presented]." Tex.R.Civ.P. 166a(c); accord Lightning Oil, 520 S.W.3d at 45; Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003). "A defendant may obtain summary judgment by conclusively establishing an affirmative defense." Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021) (citing Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010)).
We review the evidence presented in the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see also Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits, and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.-Tyler 2008, pet. denied).
Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. See Tex. R. Civ. P. 166a(c). If the trial court's order granting summary judgment does not specify the grounds relied on for its ruling, we will affirm it if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
The doctrine of res judicata, or claim preclusion, bars causes of action that already have been adjudicated fully or that, with the use of diligence, could have been brought in the prior suit. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 225 (Tex. 2022) (citing Eagle Oil & Gas, 619 S.W.3d at 705). "The doctrine is necessary to 'bring an end to litigation, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery.'" Eagle Oil & Gas, 619 S.W.3d at 705 (quoting Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007)). Res judicata requires proof of three elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Rosetta Res. Operating, 645 S.W.3d at 225 (citing Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)).
Additionally, a judgment in one suit will not operate as res judicata to a subsequent suit on the same question between the same parties where, in the interval, the facts have changed, or new facts have occurred which may alter the legal rights or relations of the parties. Hernandez v. Del Ray Chem. Intern., Inc., 56 S.W.3d 112, 116 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (citing Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949-50 (Tex. 1990)).
For res judicata to apply, a claim must be in existence at the time suit is filed and cannot be merely a prospective or anticipated claim. See Hernandez, 56 S.W.3d at 116 (citing Cowling v. Colligan, 312 S.W.2d 943, 947 (Tex. 1958)) (a judgment is res judicata "only of present and not future conditions"). Thus, a judgment does not bar a subsequent action arising from the same set circumstances if the subsequent claim accrued after the original judgment. Hernandez, 45 S.W.3d at 116.
We begin our analysis by recognizing that res judicata is an affirmative defense, which the Averys first raised in their motion for summary judgment. See Tex. R. Civ. P. 94. Appellants argue that the Averys failed to establish their entitlement to judgment as a matter of law with regard to res judicata because there is no summary-judgment evidence establishing that Appellants filed a second action against the Averys based on the same claims as were raised or could have been raised in the first action. See Rosetta Res Operating, 645 S.W.3d at 225. We agree.
The Averys' declaratory-judgment action arises from Appellants' contention that Robert and the Averys...
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