Thursday, June 30, 2011

Defending a lawsuit on the basis of "res judicata"


Res judicata precludes re-litigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Res judicata is an affirmative defense. Tex. R. Civ. P. 94.


The party asserting the defense must prove: (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. Amstadt, 919 S.W.2d at 652. We apply a transactional approach to res judicata. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). Under that approach, the subject matter of a suit is based on the factual matters that comprise the gist of the complaint. Id. at 630. Any claim that arises out of those facts should be litigated in the same action. Id.
SOURCE: Houston Court of Appeals - 14-10-00053-CV - 6/30/11


The compulsory counterclaim rule and the doctrine of res judicata are affirmative defenses. Commint Technical Services, Inc. v. Quickel, 314 S.W.3d 646, 651 (Tex. App.—Houston [14th Dist.] 2010, no pet.). An affirmative defense, or “plea in bar,” operates to prohibit the assertion of a cause of action and involves the final disposition of a case. Tex. Underground, Inc. v. Texas Workforce Comm’n 335 S.W.3d 670, 675 (Tex. App.—Dallas 2011, no pet.) (citing Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354 (Tex. App.—San Antonio 1999, pet. denied); In re A.M., 936 S.W.2d 59, 62 (Tex. App.—San Antonio 1996, no writ)).

An affirmative defense is not typically disposed of in a preliminary hearing, such as a motion to dismiss. Tex. Underground, 335 S.W.3d at 675 (citing Martin, 2 S.W.3d at 354). Rather, an affirmative defense should be raised through a motion for summary judgment or proven at trial. Id. at 676; In re D.K.M., 242 S.W.3d 863, 865 (Tex. App.—Austin 2007, no pet.); see Montgomery Cnty. v. Fuqua, 22 S.W.3d 662, 669 (Tex. App.—Beaumont 2000, pet. denied) (“Affirmative defenses are ‘pleas in bar,’ and do not provide a justification for summary dismissal on the pleadings.”).

SOURCE: Houston Court of Appeals - 01-10-00476-CV - 6/30/11

We review the trial court’s grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156–57 (Tex. 2004). A movant must establish its right to summary judgment by showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Joe, 145 S.W.3d at 157. We review a summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006) (per curiam). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. denied, 131 S.Ct. 1017 (2011); see Tex. R. Civ. P. 166a(b), (c).

SOURCE: Houston Court of Appeals - 14-10-00053-CV - 6/30/11

RELATED LEGAL DEFENSES, TERMS: collateral estoppel, claim and issue preclusion

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