No RES JUDICATA where underlying judgment reversed or vacated

THE DEFENSE OF RES JUDICATA Res judicata bars a party from attempting to relitigate a claim or cause of action that a competent tribunal has finally adjudicated. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999). For res judicata to apply, the following elements must be present: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the same 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. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008). FIRST ELEMENT OF RES JUDICATA DEFENSE: A PRIOR JUDGMENT ON THE MERITS Because of our holding that the motions for summary judgment in the first suit were erroneously granted, a prior final judgment on the merits does not exist on which Biela's and Alert can base their res judicata argument. Accordingly, the appellees cannot establish the first element of res judicata as a matter of law. The October 14, 2008 order granting summary judgment is therefore reversed, and the cause is remanded to the trial court for further proceedings. SOURCE: Nos. 04-08-00587-CV, 04-08-00857-CV (San Antonio Court of Appeals 6/10/09, pet. denied Oct 16, 2009)