Offensive use of Collateral Estoppel doctrine by the Plaintiff against the Defendant

When the Plaintiff invokes collateral estoppel 

In seeking to invoke the doctrine of collateral estoppel, a party must establish three elements: (1) the facts sought to be litigated in the second action were fully and fairly litigated, (2) those facts were essential to the judgment in the prior action, and (3) the issue is identical to an issue in the prior action. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001).

When collateral estoppel is being used offensively, as it is here, the plaintiff uses the doctrine to estop a defendant from relitigating an issue that the defendant litigated and lost in prior litigation. Yarbrough's Dirt Pit, Inc. v. Turner, 65 S.W.3d 210, 216 (Tex. App.-Beaumont 2001, no pet.).

A trial court has broad discretion in determining whether to allow a plaintiff to use collateral estoppel offensively. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979); see also Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 7 (Tex. 1986) (citing Parklane Hosiery with approval); Goldstein v. Comm'n for Lawyer Discipline, 109 S.W.3d 810, 812-13 (Tex. App.-Dallas 2003, pet. denied). A trial court abuses its discretion only when its action is arbitrary and unreasonable, without reference to guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

In determining whether to apply collateral estoppel offensively, the trial court must consider the Parklane Hosiery factors. See Parklane Hosiery Co., 439 U.S. at 329-30; Yarbrough's Dirt Pit, 65 S.W.3d at 216. The first factor is whether application of the doctrine will tend to increase litigation by allowing a plaintiff to "wait and see" before filing suit instead of joining in the prior litigation. See Parklane Hosiery, 439 U.S. at 329-330; see also Avila v. St. Luke's Lutheran Hosp., 948 S.W.2d 841, 858 (Tex. App.-San Antonio 1997, pet. denied).

Second, the trial court must determine whether the offensive use of collateral estoppel is unfair under the circumstances of the particular case. See Parklane Hosiery, 439 U.S. at 330. Under this factor, we consider the defendant's incentive in the first action to vigorously defend the suit, the foreseeability of future suits, and the availability of procedural safeguards in the second suit that were not available in the first suit. See id.; see also Goldstein, 109 S.W.3d at 812-13.

SOURCE: CORPUS CHRISTI COURT OF APPEALS- 13-12-00452-CV - 5/29/2014

Claim Preclusion and Issue Preclusion

   
BOTH CLAIM PRECLUSION AND ISSUE PRECLUSION FALL UNDER THE RUBRIC "RES JUDICATA" --BROADLY SPEAKING  
(loosly translated from Latin as "stuff already decided by a judge")
  
But the case law nevertheless makes distinction between res judicata narrowly speaking and collateral estoppel

The term res judicata "is the generic term for a group of related concepts concerning the conclusive effects given final judgments." Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). "Within this general doctrine, there are two principal categories: (1) claim preclusion (also known as res judicata); and (2) issue preclusion (also known as collateral estoppel)." Id.

 

The category at issue in this case, claim preclusion, "prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit." Id.

 

Claim preclusion prohibits the "assertion of a claim in a subsequent case when (1) there is a final determination on the merits by a court of competent jurisdiction; (2) the parties in the second action are the same or in privity with those in the first action; and (3) the second action is based on the same claims as were raised or could have been raised in the first action." Pipes v. Hemingway, 358 S.W.3d 438, 448 (Tex. App.-Dallas 2012, no pet.). Accordingly, a second suit asserting "`matters actually litigated and on causes of action or defenses arising out of the same subject matter that might have been litigated in the first suit'" is precluded by the doctrine of res judicata. Id. (quoting Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010)).

Cf. Harris Cnty. v. Sykes, 136 S.W.3d 635, 640 (Tex. 2004) (stating that "a dismissal constitutes a final determination on the merits of the matter actually decided"); Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex. 1999) (per curiam) (explaining that dismissal with prejudice qualifies as final determination on merits). 

See Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50, 58 (Tex. 2006) (explaining that doctrine of res judicata "requires claims arising out of the same subject matter to be litigated in a single lawsuit").

SOURCE: AUSTIN COURT OF APPEAL - No. 03-11-00091-CV – 2/1/2013 – Smith v. City of Blanco

 

In Hallco Tex., Inc. v. McMullen Cnty., 221 S.W.3d 50, 58 (Tex. 2006), the Texas Supreme Court summarized the doctrine, and explained the rationale for it, as follows:

The doctrine of res judicata, or claim preclusion, bars a second action by parties and their privies on matters actually litigated in a previous suit, as well as claims "`which, through the exercise of diligence, could have been litigated in a prior suit.'" Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 799 (Tex.1992) (quoting Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992)).

 

We apply the transactional approach to res judicata, which requires claims arising out of the same subject matter to be litigated in a single lawsuit. Barr, 837 S.W.2d at 631. The res-judicata doctrine "serves vital public interests" by promoting the finality of judgments. San Remo Hotel, L.P. v. San Francisco, 545 U.S. 323, 345, 125 S.Ct. 2491, 162 L.Ed.2d 315 (2005).

 

We have recognized that the doctrine prevents needless, repetitive litigation, John G. and Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 288-89 (Tex.2002) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)), and in doing so, "advance[s] the interest[s] of the litigants (who must pay for each suit), the courts (who must try each suit), and the public (who must provide jurors and administration for each suit)." Schneider Nat'l Carriers, Inc., v. Bates, 147 S.W.3d 264, 278 (Tex. 2004).

 

Collateral Estoppel - The doctrine, its purpose, and its elements when invoked as a defense

    

LAWYER LINGO: What is collateral estoppel?
 
Collateral estoppel, or issue preclusion, prevents the relitigation of identical issues of fact or law that were actually litigated and essential to the final judgment in a prior suit. Texas Dep't of Public Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001); Barr, 837 S.W.2d at 628.
 
POLICY RATIONALE
 
The doctrine is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by preventing any relitigation of an ultimate issue of fact. Petta, 44 S.W.3d at 579; Sysco Food Servs., 890 S.W.2d at 801.
 
ESSENTIAL ELEMENTS OF COLLATERAL ESTOPPEL AS A DEFENSE  
   
A party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. John G. & Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Indem. Ins. Co. v. City of Garland, 258 S.W.3d 262, 271 (Tex. App.-Dallas 2008, no pet.).
 
THE ISSUE OF IDENTITY OF PARITES, PRIVITY
   
Strict mutuality of parties is no longer required. Petta, 44 S.W.3d at 579; Richards v. Comm'n for Lawyer Discipline, 35 S.W.3d 243, 249 (Tex. App.-Houston [14th Dist.] 2000, no pet.). It is only necessary that the party against whom collateral estoppel is being asserted was a party or in privity with a party in the first action. Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990).
 
PRIVITY
 
“People can be in privity in at least three ways: (1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the prior action.” Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996); see also State Farm Lloyds v. C.M.W., 53 S.W.3d 877, 886 (Tex. App.-Dallas 2001, pet. denied).
 
SOURCE: DALLAS COURT OF APPEALS - 05-10-00410-CV - 1/8/12 

Quasi-estoppel differentiated from equitable estoppel doctrine

  
WHAT IS QUASI-ESTOPPEL AND WHEN CAN IT BE INVOKED?
  

The doctrine of quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken by a party. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000); Eckland Consultants, Inc. v. Ryder, Stillwell, Inc., 176 S.W.3d 80, 87 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

The doctrine applies when it would be unconscionable to allow a party to maintain a position inconsistent with one in which it had acquiesced, or from which it had accepted a benefit. Lopez, 22 S.W.3d at 864; Eckland Consultants, Inc., 176 S.W.3d at 87. “Thus, quasi-estoppel forbids a party from accepting the benefits of a transaction and then subsequently taking an inconsistent position to avoid corresponding obligations or effects.” Eckland Consultants, Inc., 176 S.W.3d at 87.

“Unlike equitable estoppel, quasi-estoppel requires no showing of misrepresentation or detrimental reliance.” Id.

   

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00209-CV – 11/23/11 

Pre-injury release as bar to subsequent lawsuit

 
RELEASE AS AN AFFIRMATIVE DEFENSE AGAINST NEGLIGENCE CLAIM

Release is an affirmative defense. Tex. R. Civ. P. 94. The effect of a release like the one at issue in this case “is to relieve a party in advance of responsibility for its own negligence.” Dresser Indus., Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 507 (Tex. 1993). “It operates to extinguish the claim or cause of action as effectively as would a prior judgment between the parties and is an absolute bar to any right of action on the released matter.” Id. at 508.

Because a pre-injury release of a party's “own negligence is an extraordinary shifting of risk, [the Texas Supreme Court] has developed fair notice requirements which apply to these types of agreements.” Id. To constitute fair notice, a release must satisfy the requirements of conspicuousness and the express negligence rule. Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190, 192 (Tex. 2004); Dresser, 853 S.W.2d at 508. Whether a provision provides fair notice is a question of law for the courts. Dresser, 853 S.W.2d at 509.
The business and commerce code's standard for conspicuousness applies to our determination of whether a release is conspicuous. Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875, 879 (Tex. App.-Dallas 2008, pet. denied) (citing Dresser, 853 S.W.2d at 510-11). It states:

(10) “Conspicuous,” with reference to a term, means so written, displayed, or presented that a reasonable person against which it is to operate ought to have noticed it. Whether a term is “conspicuous” or not is a decision for the court. Conspicuous terms include the following:
(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and
(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

Tex. Bus. & Com. Code Ann. § 1.201(10) (West 2009). The test for the court is “whether attention can reasonably be expected to be called to [the provision].” Mickens, 264 S.W.3d at 879 (quoting Littlefield v. Schaefer, 955 S.W.2d 272, 275 (Tex. 1997)); Sydlik v. REEIII, Inc., 195 S.W.3d 329, 332-33 (Tex. App.-Houston [14th Dist.] 2006, no pet.). 
  
The express negligence rule states that if a party intends to be released from its own future negligence it must express that intent in clear, unambiguous terms within the four corners of the contract. Reyes, 134 S.W.3d at 192; Sydlik, 195 S.W.3d at 333. The purpose of “the express negligence rule is to require scriveners to make it clear when the intent of the parties is to exculpate” a party for that party's own negligence. Atlantic Richfield Co. v. Petroleum Pers., Inc., 768 S.W.2d 724, 726 (Tex. 1989). Language that specifically refers to “any negligent act of [the released party]” may be sufficient to define the parties' intent. Id.
  
SOURCE: Dallas Court of Appeals - 05-10-00146-CV - 8/11/11

Res Judicata & Collateral Estoppel - Claim Preclusion and Issue Preclusion in Texas Courts

AFFIRMATIVE DEFENSE OF RES JUDICATA (CLAIM PRECLUSION) Under the doctrine of res judicata, a party is precluded from litigating a claim in a pending action if (1) in a previous action, a court of competent jurisdiction rendered a final determination on the merits of a claim, (2) the parties that litigated the prior claim are identical to or in privity with the parties litigating the pending claim, and (3) the pending claim (a) is identical to the prior claim or (b) arises out of the same subject matter as the prior claim and could have been litigated in the previous action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Being a determination on the merits, the prior final judgment bars the same claims in the present action under the doctrine of res judicata. See Joachim 315 S.W.3d at 862. SOURCE: Houston Court of Appeals 01-10-00020-CV 5/12/22 AFFIRMATIVE DEFENSE OF COLLATERAL ESTOPPEL (ISSUE PRECLUSION) Under the doctrine of collateral estoppel, a party is precluded from raising an issue in a pending action if in a previous action, (1) the party was cast as an adversary with respect to the same issue, (2) that issue was fully and fairly litigated, and (3) that issue was essential to the judgment rendered. John G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Texas Dept. of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001). SOURCE: Houston Court of Appeals 01-10-00020-CV 5/12/22

The Elements of Collateral Estoppel

What are the Elements of Collateral Estoppel? When does collateral estoppel (not) apply? The elements of collateral estoppel are: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) those facts were essential to the judgment in the first action, and (3) the parties were cast as adversaries in the first action. Case Funding Network, L.P. v. Anglo-Dutch Petroleum Int'l, Inc., 264 S.W.3d 38, 52 (Tex. App.--Houston [1st Dist.] 2007, pet. denied) (citing Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001)). It is undisputed that the Pedens were not "cast as adversaries" against South Texas and Lawton in the earlier suit. Therefore, collateral estoppel does not apply. The trial court erred if it granted summary judgment on this ground. SOURCE: 01-08-00373-CV (9/10/09)

Effect of Collateral Estoppel

The doctrine of collateral estoppel prevents a party from relitigating an issue of fact or law that it previously litigated and lost. See Quinney Elec., Inc. v. Kondos Entm't, Inc., 988 S.W.2d 212, 213 (Tex. 1999) (per curiam). Collateral estoppel applies when an issue was fully and fairly litigated in a previous action and was essential to the judgment in that action. Id.Here, the BII defendants had the burden to establish that (1) the facts or law sought to be litigated in the second suit were fully and fairly litigated in the first suit, (2) those issues were essential to the judgment in the first suit, and (3) Suzanne and 2055, as the parties against whom collateral estoppel is asserted, and Robert, as the other party to the first suit, were cast as adversaries. John G. and Marie Stella Kenedy Mem'l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Indem. Ins. Co. v. City of Garland, 258 S.W.3d 262, 271 (Tex. App.-Dallas 2008, no pet.). An issue has been litigated for collateral estoppel purposes if it was properly raised, by the pleadings or otherwise, submitted for determination, and determined. Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985); Indemnity Ins. Co., 258 S.W.3d at 271. SOURCE: 05-08-01057-CV