Res Judicata Cases

EFFECT OF RES JUDICATA WHEN PROPERLY ASSERTED AS AFFIRMATIVE DEFENSE 

Res judicata bars claims that were brought, or could have been brought, in an earlier lawsuit that resulted in a final judgment on the merits. Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008). To prevail on the defense, a party must show that (1) in a previous action, a court of competent jurisdiction rendered a final determination on the merits of a claim, (2) the parties in the earlier action are identical to, or in privity with, the present parties, 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). 

SOURCE:HOUSTON COURT OF APPEALS -  No. 01-12-01114-CV. - 7/11/2013

RES JUDICATA AS TO COUNTERCLAIMS - PRIVITY 

Res judicata prevents the relitigation of a finally-adjudicated claim and related matters that should have been litigated in a prior suit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Under Texas' transactional approach to res judicata, a defendant must bring as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the opposing party's suit. State & County Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Barr, 837 S.W.2d at 630. It 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. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

"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." Id. at 652-53. Privity does not exist when persons are interested in the same question, but requires an identity of interest in the legal right actually litigated. Tex. Real Estate Comm'n v. Nagle, 767 S.W.2d 691, 694 (Tex. 1989); Pyles v. Young, No. 06-07-00066-CV, 2007 WL 4462738 (Tex. App.-Texarkana Dec. 21, 2007, no pet.) (mem. op.).

SOURCE: TEXARCANA COURT OF APPEALS - No. 06-13-00033-CV. - 9/5/2014B

Res Judicata (2014 caselaw snips)

Res judicata (14th Court of Appeals Houston)

A party claiming the affirmative defense of res judicata must prove (1) a prior final determination 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 or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); McNeil Interests, Inc. v. Quisenberry, 407 S.W.3d 381, 387 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

SOURCE: HOUSTON COURT OF APPEALS -  14-13-00113-CV - 7/15/2014

Res Judicata Doctrine (First Court of Appeals 2014)

The doctrine of res judicata bars parties from collaterally attacking a prior final judgment. Matthews Constr. Co. v. Rosen, 796 S.W.2d 692, 694 (Tex. 1990). A party seeking dismissal of a suit based on res judicata must prove (1) the existence of 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 subsequent action based on the same claims that were or could have been raised in the prior action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Envtl. Servs., L.P., 226 S.W.3d 514, 519 (Tex. App.-Houston [1st Dist.] 2006, no pet.). "[A] judgment is final for the purposes of issue and claim preclusion `despite the taking of an appeal unless what is called an appeal actually consists of a trial de novo.'" Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986) (op. on reh'g) (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 13 cmt. f (1982)).

Res judicata applies to persons in privity with a party to the prior judgment—that is, a person who is so connected with a party to the prior judgment that the party represented the same legal right. See Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971). For purposes of res judicata, this identity of interest exists when: (1) the person can control an action even if he is not a party to it; (2) the party to the prior action represented the person's interests; or (3) the person is a successor-in-interest to the party in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 653 (Tex. 1996). To determine whether res judicata bars a subsequent suit, we examine the circumstances of each case to identify any interests the parties may share. See Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 800-01 (Tex. 1992).

SOURCE: FIRST COURT OF APPEALS IN HOUSTON -

Res Judicata (Corpus Christi Court of Appeals) 

Res judicata prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as matters that, with the use of diligence, should have been litigated in the prior suit. Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992). To be entitled to res judicata, the moving party must establish: (1) a prior final judgment on the merits was rendered by a court of competent jurisdiction; (2) the parties are identical or in privity; (3) the pending action is based on the same claims that were raised or could have been raised in the previous action. Id.

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

When the res judicata defense is based on a JP court judgment, the outcome may be a different one

Austin-based court of appeals explains that preclusive effect under res judicata doctrine is more limited when the prior judgment was rendered by justice court (which is not a court of record), and reverses the trial court's dismissal of second lawsuit in district court for lack of evidence of privity as to the plaintiffs in the first suit and the second lawsuit. 
   
RES JUDICATA WHEN THE FIRST JUDGMENT WAS RENDERED BY THE JUSTICE OF THE PEACE & PRIVITY FOR RES  JUDICATA PURPOSES 

Res judicata prevents parties and those in privity with them from relitigating a case that a competent tribunal has adjudicated to finality. Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999). Res judicata generally bars claims or defenses that, through diligence, could have been litigated in the earlier suit but were not. Id. at 206-07; Getty Oil v. Insurance Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992). "The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy." Ingersoll-Rand Co., 997 S.W.2d at 207.

ELEMENTS OF RES JUDICATA DEFENSE 

Res judicata "requires proof of the following 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 that were raised or could have been raised in the first action." Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). A litigant is generally not bound by a judgment in a suit to which he was not a party unless he was in privity with a party to the original suit. McGee v. McGee, 936 S.W.2d 360, 364 (Tex. App.-Waco 1996, writ denied).

SPECIAL RULE NARROWS APPLICABILITY OF RULE IN CASE OF JP COURT JUDGMENTS [Note: Small Claims courts have been abolished] 

Regardless of party or privity status, however, judgments from small-claims courts are not accorded the same common-law finality as judgments from district courts. Under section 31.004 of the Texas Civil Practice and Remedies Code,

[a] judgment or a determination of fact or law in a proceeding in a lower trial court [e.g., a small-claims court] is not res judicata and is not a basis for estoppel by judgment in a proceeding in a district court, except that a judgment rendered in a lower trial court is binding on the parties thereto as to recovery or denial of recovery.

Tex. Civ. Prac. & Rem. Code § 31.004(a); see id. § 31.004(c).

This Court has held that

[i]n the situation where a litigant brings a lawsuit in a district court subsequent to filing suit in a court of limited jurisdiction, section 31.004 of the civil practice and remedies code modifies the common law so that "res judicata bars only those claims that were actually litigated in the limited-jurisdiction court."

Kizer v. Meyer, Lytton, Alen & Whitaker, Inc., 228 S.W.3d 384, 391 (Tex. App.-Austin 2007, no pet.) (quoting Wren v. Gusnowski, 919 S.W.2d 847, 848 (Tex. App.-Austin 1996, no writ)). The purpose of section 31.004 is to narrow the preclusive effect of judgments from courts of limited jurisdiction by precluding a subsequent suit on claims actually tried in such courts but not "any other claim that could have been joined and tried but were not." Webb v. Persyn, 866 S.W.2d 106, 107 (Tex. App.-San Antonio 1993, no writ). Section 31.004 thus abrogates the common-law rules of res judicata for small-claims-court judgments and does not bar subsequent prosecution of unlitigated claims simply because they could have been litigated in the lower court. See, e.g., id.; McClendon v. State Farm Mut. Auto. Ins. Co., 796 S.W.2d 229, 232 (Tex. App.-El Paso 1990, writ denied).

Therefore, in accordance with section 31.004, if the pleadings in the underlying lawsuit here include claims not actually adjudicated in the small-claims court, then res judicata and collateral estoppel do not bar those pleaded claims even if Voges was in privity with his grandfather with respect to the prior judgment.

If Voges was in privity with his grandfather, the claims actually litigated in small-claims court would not survive even under section 31.004. Therefore, the threshold issue in this case is whether the trial court erred in dismissing Voges's claims based on a finding of privity.

PRIVITY FOR RES-JUDICATA PURPOSES 

For purposes of res judicata, the term "privity" refers to parties who (1) exert control over the original action even if they are not parties to it, (2) have interests that were represented by a party to the original action, or (3) are successors in interest who derive their claims through a party to the prior action. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 890 (Tex. 1998); Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971); McNeil Interests, Inc. v. Quisenberry, 407 S.W.3d 381, 388 (Tex. App.-Houston [14th Dist.] 2013, no pet.).

The existence of privity turns on the particular circumstances of each case, see Getty Oil, 845 S.W.2d at 800, but "privity is not established by the mere fact that persons may happen to be interested in the same question or in proving the same state of facts," Benson, 468 S.W.2d at 363; see McNeil Interests, 407 S.W.3d at 388-90 (50% ownership interest in business did not give rise to privity relationship for purposes of res judicata and owner acting in representative capacity to hire attorney and serve as corporate representative did not constitute control by owner in individual capacity).

The trial court expressly found that (1) Voges participated in the previous litigation to such a degree that he exercised control in that litigation and (2) his interests were fully represented and litigated on his behalf by his grandfather in the lower-court proceeding.

NO EVIDENCE OF PRIVITY 

The evidentiary record to support these findings, however, is nonexistent. In fact, no evidence was admitted at the dismissal hearing and no testimony was given. There is no evidence that Voges's grandfather instituted the small-claims court proceeding on Voges's behalf or in a representative capacity. Nor is there evidence that Voges himself exerted any control over the prior litigation or that he is a successor-in-interest to his grandfather. At the dismissal hearing, Campbell stated, but did not testify under oath, that Voges was present at the hearing before the small-claims court and had argued the case on his grandfather's behalf. Even if such participation could constitute sufficient "control" to bind Voges to the outcome of the prior proceeding, there is no competent evidence of that fact. The record is simply devoid of any evidence that would support a finding of privity. Accordingly, there is no evidence to support the trial court's conclusion that Voges's claims are barred by res judicata.

CONCLUSION

Because the record contains no evidence that Voges was a party to the small-claims-court litigation or in privity with a party to that proceeding, we reverse the trial court's dismissal order and remand the cause to the trial court for further proceedings.[1]

[1] We do not hold that privity cannot be established in this case; we hold only that the trial court's finding of privity is not supported by the present record.

SOURCE: AUSTIN COURT OF APPEALS - 03-14-00125-CV - 10/28/2014

Prevailing party status for attorney fee award purposes

WHEN IS A PARTY A PREVAILING PARTY SO AS TO BE ENTITLED TO HAVE THE OPPONENT PAY HIS OR HER ATTORNEY'S FEES UNDER STATUTE OR CONTRACT? 

Under the American Rule, attorney's fees are recoverable only if authorized by statute or by contract. MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). If authorized by contract, the parties may agree on the standard that will govern the attorney's fee award, even if that standard conflicts with Chapter 38 of the Texas Practice and Remedies Code. Intercontinental Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009). If the contract provides that attorney's fees will be awarded to the prevailing party, the trial court must determine which party is "prevailing." To prevail, a party "must obtain actual and meaningful relief, something that materially alters the parties' legal relationship." Id. at 652 (citing Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). More simply, a party prevails when it "prevails upon the court to award it something, either monetary or equitable." Id. at 655.

Did the Defendant "win" (prevail) when the Plaintiff filed a nonsuit? 

In Epps v. Fowler, 351 S.W.3d 862, 869 (Tex. 2011), the Texas Supreme Court construed an attorney's fee provision in a standard real estate contract to determine whether a defendant is a prevailing party when the plaintiff properly nonsuits his claims. Guided by the Fifth Circuit's decision in Dean v. Riser, 240 F.3d 505 (5th Cir. 2001), the Court held that when a plaintiff nonsuits the claims in his lawsuit with prejudice, the defendant is considered the prevailing party because the plaintiff is barred by res judicata from re-asserting the same claims. Epps, 351 S.W.3d at 869.

When the plaintiff nonsuits his claims without prejudice, however, the Court refused to adopt such a per se approach. Id. at 869. The Court noted that a defendant would generally not be a prevailing party when the plaintiff nonsuits without prejudice because the nonsuit "works no such change in the parties' legal relationship; typically, the plaintiff remains free to re-file the same claims seeking the same relief." Id. The Court also observed, however, that "it is logical to conclude that the parties intended to award attorney's fees to compensate the defendant when the plaintiff knowingly pursues a baseless action," id. at 869, and to "`discourage the litigation of frivolous, unreasonable, or groundless claims' when a `calculating plaintiff . . . voluntarily withdraws his complaint' to escape a disfavorable judicial determination on the merits." Id. (quoting Riser, 240 F.3d at 510) (citations omitted). Accordingly, the Court held a defendant may be a prevailing party only "if the trial court determines, on the defendant's motion, that the nonsuit was taken to avoid an unfavorable ruling on the merits." Id. at 870.

The Epps Court provided some guidance to trial courts when determining whether a nonsuit was taken to avoid an unfavorable ruling on the merits. A trial court "should rely as far as possible on the existing records and affidavits, and resort to live testimony only in rare instances." Id. Looking to federal case law, the Court identified the following factors which could support such a determination, including: (1) the timing of a plaintiff's nonsuit when filed only after the defendant files a potentially dispositive motion such as a motion for summary judgment; (2) a plaintiff's unexcused failure to respond to requests for admission or other discovery that could support entry of an adverse judgment; (3) a plaintiff's failure to timely identify experts or other critical witnesses; and (4) the existence of other procedural obstacles, such as the plaintiff's inability to join necessary parties. Id. at 871.

Implied in each of these factors is that the plaintiff's nonsuit was necessary to avoid an unfavorable ruling because the plaintiff's claims were weak or without merit. Indeed, the Epps Court explained that the purpose of the rule was to discourage the plaintiff from pursuing weak claims that should be abandoned and not to penalize a plaintiff for nonsuiting when that is "precisely what should be done". Id. at 869 (citing Riser, 240 F.3d at 510). For instance, a plaintiff who nonsuits only after "discovery reveals previously unknown flaws in the plaintiff's claims" likely has not done so to avoid an unfavorable ruling on the merits. Rather, the decision "may well reflect a legitimate litigation strategy that `reveals nothing about the merits of a plaintiff's case [and thus] does not warrant a conclusion that a defendant in such a case has prevailed . . . .'" Id. at 868 (quoting Riser, 240 F.3d at 510). Accordingly, the Epps Court held that "evidence that the suit was not without merit when filed may indicate that the defendant has not prevailed and is therefore not entitled to attorney's fees." Id. at 871.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-13-00777-CV - 4/23/2014

CONTRACTUAL OR STATUTORY BASIS FOR ATTORNEY FEE CLAIM REQUIRED 

"As a general rule, litigants in Texas are responsible for their own attorney's fees and expenses in litigation." Ashford Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 41 (Tex. 2012). "Under Texas law, a court may award attorney's fees only when authorized by statute or by the parties' contract." Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d 46, 87 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (citing MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009)).

SOURCE: HOUSTON COURT OF APPEALS - 01-13-00855-CV – 12/30/2014

Does a prior declaratory judgment action entail res judicata effect?

   
Here is a scenario where the difference between claim and issue preclusion becomes meaningful: a prior suit of declaratory relief, and a second suit seek other type of relief.
  

DECLARATORY JUDGMENT AND RES JUDICATA: THE EXCEPTION
   

The elements for establishing res judicata, or claim preclusion, are "(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 v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

An exception to the application of res judicata is when the original suit sought only a declaratory judgment. See Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 335 (Tex. Civ. App.-Dallas 1973, writ ref'd n.r.e.). In this situation, the first judgment provides only declaratory relief and does not bar a subsequent proceeding for coercive relief stemming from the declaratory judgment. See id.; TEX. CIV. PRAC. & REM. CODE ANN. § 37.011 (Vernon 2008) (providing "[f]urther relief based on a declaratory judgment or decree may be granted whenever necessary or proper").

The rationale for this apparent departure from the usual rule of res judicata is that the losing party in a declaratory judgment action can normally be expected to recognize the rights declared by the judgment and act accordingly, but that if he fails to do so, the court should have ample power to enforce the judgment by subsequent coercive orders, whether or not such relief was sought in the original action.

Valley Oil, 499 S.W.2d at 336.

Under this exception, the only matters excluded from subsequent litigation are what was actually considered and ruled on in the original action. See Alsheikh v. Arabian Nat'l Shipping Corp., 01-08-00007-CV, 2009 WL 884795, at *2 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (mem. op.). In other words, while issue preclusion (collateral estoppel) applies to prior declaratory judgment actions, claim preclusion (res judicata) does not. See id.; Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628 (Tex. 1992) (distinguishing between issue preclusion and claim preclusion and defining issue preclusion as preventing relitigation of particular issues already resolved in prior suit).

SOURCE: HOUSTON COURT OF APPEALS – No. 01-11-00650-CV – 1/24/2013 – CBS Outdoor, Inc. v. Potter
 

SNIPPET FROM EARLIER CASE FROM HOUSTON ADDRESSING THE SAME ISSUE:

The doctrine of res judicata bars a second suit by parties on matters actually litigated in an earlier 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)). Texas follows the transactional approach to res judicata, which requires claims arising out of the same subject matter to be litigated in a single lawsuit. Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 58 (Tex. 2006); Barr, 837 S.W.2d at 631. For res judicata to apply, there must be: (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 that were raised or could have been raised in the first action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Here, the third element of res judicata is not met because there is no second action concerning these claims. The reversal of Jay's motion for summary judgment made the counterclaims live again, which does not constitute res judicata because the matter of attorney's fees was never finally determined. See Tex. Water Rights Comm'n v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex.1979) (stating res judicata requires cause "finally determined, without appeal").

We also note that when we rendered the declaratory judgment in favor of EOG, EOG could seek a subsequent application for relief based on rights declared in the prior judgment, "even though such relief could have been granted in the original action," unless such application was actually considered and denied in the original action. State v. Anderson Courier Serv., 222 S.W.3d 62, 66 (Tex.App.-Austin 2005, pet. denied); Valley Oil Co. v. City of Garland, 499 S.W.2d 333, 335 (Tex.Civ. App-Dallas 1973, no writ). As our sister court explained,

[T]he rationale for this apparent departure from the usual rule of res judicata is that the losing party in a declaratory judgment action can normally be expected to recognize the rights declared by the judgment and act accordingly, but that if he fails to do so, the court should have ample power to enforce the judgment by subsequent coercive orders, whether or not such relief was sought in the original action.

Valley Oil Co., 499 S.W.2d at 336; see also 3 William V. Dorsaneo III, Texas Litigation Guide § 45.03 (2008) ("After a party has obtained a declaratory judgment, a subsequent suit may be brought for further relief if it is necessary or proper. [Citation omitted.] This rule involves a departure from the strict application of res judicata, which would ordinarily bar a subsequent proceeding because coercive relief could have been granted in the original action. It is justified on the theory that the loser may be expected to recognize the rights declared by the judgment, and if not, some form of compulsion should be available."). Because the trial court never had the opportunity to consider EOG's request for attorney's fees following our declaratory judgment in favor of EOG, EOG could not be barred by res judicata to pursue that claim for relief based on rights declared by our judgment.

We hold EOG's counterclaim for attorney's fees is not barred by res judicata. We overrule Jay's second issue.

SOURCE:  Jay Petroleum, L.L.C. v. EOG Resources, Inc., 332 S.W.3d 534, 539 (Tex. App.-Houston [1st Dist.] 2009, pet. denied);

 

Privity for purposes of relitigation preclusion under res judicata doctrice

   
Is someone who was not himself or herself (or itself, in the case of an entity) a party in a prior lawsuit involving the same matter barred from litigating it in a second lawsuit? It depends. The key issue is privity -- or no privty. But what does "in privity" mean for purposes of res judicta? That may depend too. Apparently the (case) law does not give a straight answer, or - to use the apposite metaphor -- the courts of appeals have not established a bright-line rule.
   

RES JUDICATA—APPLICABLE LAW

  

Res judicata precludes relitigation 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). For res judicata to apply, there must be (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 that were raised or could have been raised in the first action. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). The doctrine seeks to bring an end to litigation, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy and prevent double recovery. Id.

Generally, people are not bound by a judgment in a suit to which they were not parties. Amstadt, 919 S.W.2d at 652. The doctrine of res judicata creates an exception to this rule by forbidding a second suit arising out of the same subject matter of an earlier suit by those in privity with the parties to the original suit. Id. at 652-53. The purposes of the exception are to ensure that a defendant is not twice vexed for the same acts, and to achieve judicial economy by precluding those who have had a fair trial from relitigating claims. Id. at 653.
  

PRIVITY DETERMINATIONS ON A CASE-BY-CASE BASIS

There is no general definition of privity that can be automatically applied in all res judicata cases; the circumstances of each case must be examined. Getty Oil v. Ins. Co. of N. Am., 845 S.W.2d 794, 800 (Tex. 1992). Privity exists if the parties share an identity of interest in the basic legal right that is the subject of the litigation. Caprock Inv. Corp. v. Montgomery, 321 S.W.3d 91, 96 (Tex. App.-Eastland 2010, pet. denied). Those in privity with a party may include persons who exert control over the action, persons whose interests are represented by the party, or successors in interest to the party. Getty Oil, 845 S.W.2d at 800-01.

SOURCE: TYLER COURT OF APPEALS - No. 12-12-00029-CV – 1/31/2013

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).

 

One bite only: Res judicata doctrine stops second bite at the proverbial apple

 

The one-bite rule – as applicable to courthouse apple chumping rather than your neighbor’s dog

 

FROM LOFTY LATIN TO PLAIN ENGLISH: THE NO-TWO-BITES AT-THE-APPLE METAPHOR

 

Res judicata bars assertion of a claim in a subsequent case when (1) there is a prior 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. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Res judicata precludes the relitigation of claims that were finally adjudicated “as well as related matters that, with the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1991). Texas follows the transactional approach to res judicata barring claims arising out of the transaction or occurrence that is the subject matter of the first suit. State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001).

As the Texas Supreme Court has explained, “[m]odern rules of procedure obviate the need to give parties two bites at the apple … to ensure that a claim receives full adjudication.” Barr, 837 S.W.2d at 631.

  

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00122-CV – 5/23/12

  

[T]he court’s order was a public record which was on file for four years and which Nancy could have discovered with the use of diligence. See Barr, 837 S.W.2d at 628 (stating res judicata bars related matters that, with the use of diligence, should have been litigated in prior suit).

PS: If you came to this page through a search enging, but were looking for the other one-bite rule, here is a link: http://www.johnneeselaw.com/news/texas-dog-laws-understanding-the-one-bite-rule 

Res judicata defense requires proof of the prior judgment in suit between the same parties or their privies

  
RES JUDICATA UNDER TEXAS AND FEDERAL LAW
 
The supreme court has admonished that, “[c]ertainly in courts of law, a claimant generally cannot pursue one remedy to an unfavorable conclusion and then pursue the same remedy in another proceeding before the same or a different tribunal.” Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008). “Res judicata bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action.” Id. (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992)).
 
ELEMENTS OF RES JUDICATA UNDER TEXAS LAW
  
For res judicata to apply under Texas state law, 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. Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007). Thus, a party may not pursue a claim determined by the final judgment of a court of competent jurisdiction in a prior suit as a ground of recovery in a later suit against the same parties. Tex. Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex. 1979).
    
Because [party] argues that the issues here were first decided in a federal tribunal, federal law controls the determination of whether res judicata will bar the later state court proceeding. See Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex. 1990).
 
ELEMENTS OF RES JUDICATA UNDER FEDERAL LAW   
  
Similar to Texas law, under federal law, res judicata will apply if: (1) the parties are identical in both suits; (2) the prior judgment is rendered by a court of competent jurisdiction; (3) there is a final judgment on the merits; and (4) the same cause of action is involved in both cases. Id.
     
SOURCE: HOUSTON COURT OF APPEALS - 01-11-00096-CV - 5/9/12
  
[Appellant] has not brought forth a prior final judgment on the merits of any issue that is the subject of the underlying litigation. Thus, he failed to raise a fact issue on res judicata. We need not reach [Appellee's] other arguments about why res judicata does not apply.

Is it res judicata? (lawyer lingo)

 
Yes, it's Latin, and it is an affirmative defense that may thwart a (second) lawsuit.  
  
RES JUDICATA  
  
Res judicata prevents parties and those in privity with them from relitigating a case that a competent tribunal has adjudicated to finality. Ingersoll–Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 206 (Tex. 1999).

Res judicata bars claims or defenses that could have been litigated in the earlier suit but were not. Id. at 206–07. “The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy.” Id. at 207.

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); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).
 
SOURCE: HOUSTON COURT OF APPEALS - 01-10-01151-CV - 12/14/11

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 based on prior federal court judgment

  
Res judicata defense based on prior action in federal court

The claim-preclusive effect of a federal-court judgment on a federal-question claim is determined by federal res judicata principles. Semtek Int’l. Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507, 121 S. Ct. 1021, 1027 (2001); see John G. Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 287 (Tex. 2002).

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 judgment 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 nucleus of operative facts as did the prior claim and could have been litigated in the previous action. In re Paige, 610 F.3d 865, 870–72 (5th Cir. 2010); see also Russell v. SunAmerica Sec., Inc., 962 F.2d 1169, 1173 (5th Cir. 1992) (“A non-party defendant can assert res judicata so long as it is in ‘privity’ with the named defendant.”).

For res judicata purposes, “privity” exists if (1) a nonparty agrees to be bound by the determination of issues in an action between others; (2) a pre-existing substantive legal relationship governs a nonparty and a party to a judgment; (3) a party with the same interests adequately represents a nonparty in a prior action; (4) a nonparty assumes control over the litigation in the prior action; (5) a nonparty serves as proxy for a party to a prior action; or (6) a special statutory scheme expressly forecloses successive litigation by nonlitigants and claim preclusion is otherwise consistent with due process. Taylor v. Sturgell, 553 U.S. 880, 893–95, 128 S. Ct. 2161, 2172–73 (2008); id. at 885, 128 S. Ct. at 2167 (disapproving of doctrine of “virtual representation”).

SOURCE: Houston Court of Appeals - 01-10-00569-CV - 8/11/11

Defending a lawsuit on the basis of "res judicata"

RES JUDICATA DOCTRINE DEFINED

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.

ELEMENTS OF RES JUDCIATA

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


NATURE OF THE DEFENSE AND PROPER WAY TO ASSERT IT

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
 
SUMMARY JUDGMENT BASED ON AFFIRMATIVE DEFENSE SUCH AS RES JUDICATA

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

Res Judicata in Texas: What is "same subject matter" for re-litigation purposes?

RES JUDICATA Res judicata precludes relitigation 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). In determining what constitutes “the same subject matter,” Texas courts follow the “transactional” approach to res judicata set forth in the Restatement (Second) of Judgments. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). The Restatement “provides that a final judgment on an action extinguishes the right to bring suit on the transaction, or series of connected transactions, out of which the action arose.” Id. (citing Restatement (Second) of Judgments § 24(1) (1982)). Whether facts constitute a “transaction” or “series” is to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage. Restatement (Second) of Judgments § 24(2); see Barr, 837 S.W.2d at 631. SOURCE: Dallas Court of Appeals 05-10-00070-CV 5/12/11 A claim under a liability indemnification clause does not accrue, and thus is not mature, until the indemnitee's liability to the party seeking damages becomes fixed and certain.” Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 208 (Tex. 1999). However, a party may bring an indemnity claim before the judgment establishing liability is final in the interest of judicial economy. Id. at 209. The indemnity claim in that situation is permissive, not compulsory. Id. at 210. But, if a party brings a permissive indemnity claim, it is required under res judicata to bring all other claims in the same action arising out of the same subject matter. See Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 799-800 (Tex. 1992). For a counterclaim to be compulsory, the claim must be mature and owned by the defendant when it files its answer. Ingersoll-Rand Co., 997 S.W.2d at 207. SOURCE: Dallas Court of Appeals 05-10-00070-CV 5/12/11 LEGAL TERMS: permissive vs. compulsory counter-claim, relitigation of claims, collateral estoppel, claim preclusion

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

What is the effect of RES JUDICATA when it applies?

RES JUDICATA Res judicata precludes the relitigation of a finally adjudicated claim and related matters that should have been litigated in a prior suit. State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001) (citing Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992)). The doctrine bars matters actually litigated and causes of actions or defenses that arise out of the same subject matter and that could have been litigated in the first suit. Barr, 837 S.W.2d at 630. “[A] claimant generally cannot pursue one remedy to an unfavorable conclusion and then pursue the same remedy in another proceeding before the same or a different tribunal.” Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2007). Texas follows the transactional approach to res judicata, which requires that a defendant bring as a counterclaim any claim arising out of the transaction or occurrence that is the subject matter of the opposing party’s suit. Miller, 52 S.W.3d at 696. For res judicata to apply, these 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, 250 S.W.3d at 86. SOURCE: Houston Court of Appeals 01-09-00816-CV 4/28/11 LEGAL TERMS: res judicata, claim preclusion, collateral estoppel, dismissal with and without prejudice; effect of prior judgment on subsequent lawsuit involving same or similar claims and parties

Property Division in Divorce Decree & Res Judicata

RES JUDICATA EFFECT OF DIVORCE DECREE 

Res judicata is an affirmative defense. Tex. R. Civ. P. 94. The party claiming the defense must prove: (1) the claims asserted in this case arise out of the same subject matter of the previous suit, (2) the claims asserted in this suit were litigated or could have been litigated through the exercise of due diligence in the previous suit, (3) there is a final judgment in the prior lawsuit. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). We take the transactional approach to res judicata. Id. Under that approach, the subject matter of a suit is based on the factual matter that make up the gist of the complaint. Id. at 630. Any claim that arises out of those facts should be litigated in the same lawsuit. Id. Res judicata applies to the property division in a final divorce decree, just as it does to any other final judgment, barring subsequent collateral attack even if the divorce decree improperly divided the property. Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990). 

SOURCE: De Acetis v. Whitley (Tex.App.- Houston [14th.] Mar. 25, 2010) (real estate dispute stemming from divorce, enforcement of property division by contempt, res judicata based on divorce proceeding) 

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)

Res Judicata: Purpose and Elements of this Affirmative Defense

WHAT IS RES JUDICATA AND WHAT PURPOSE DOES THE DOCTRINE SERVE? Res judicata, or claims 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. Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 628-29 (Tex. 1992). "The doctrine is intended to prevent causes of action from being split, thus curbing vexatious litigation and promoting judicial economy." Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex. 1999) (citing Barr, 837 S.W.2d at 629). WHAT ESTABLISHES THE AFFIRMATIVE DEFENSE OF RES JUDICATA? The elements of res judicata are: (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 that 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); Amstadt v. U. S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). "The scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties and their privies not only on matters actually litigated, but also on causes of action or defenses which arise out of the same subject matter and which might have been litigated in the first suit." Barr, 837 S.W.2d at 630 (quoting Tex. Water Rights Comm'n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex. 1979) (emphasis added)). To determine what constitutes the subject matter of a suit, we analyze the factual matters that make up the gist of the complaint, without regard to the form of action; any cause of action which arises out of those same facts should, if practicable, be litigated in the same lawsuit. Barr, 837 S.W.2d at 630; Crow Iron Works, 582 S.W.2d at 772. SOURCE: 04-07-00727-CV (7/8/09) (San Antonio Court of Appeals)

Res judicata as affirmative defense and bar to re-litigation of claims

THE CONCEPT OF RES JUDICATA AND THE LEGAL EFFECT WHEN IT APPLIES "Res judicata precludes relitigation 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). HOW TO ESTABLISH THE AFFIRMATIVE DEFENSE OF RES JUDICATA To prove res judicata, a party must establish: (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 subsequent action based on the same claims as were raised or could have been raised in the first action. Id. PARTY STATUS OR IN PRIVITY WITH A PARTY IN THE PRIOR SUIT As a general rule, people are not bound by a judgment in a suit to which they were not parties. Id. Josephina does not contend that Jesus and Norma were parties to the prior divorce suit but rather that they were in privity with Juan and, therefore, are bound by the trial court's judgment in the prior suit. WHEN DOES PRIVITY APPLY? The Texas Supreme Court has said that people can be in privity in three ways: (1) by controlling the action even if they are not parties to it; (2) by having their interests represented by a party to the action; or (3) by acting as "successors in interest, deriving their claims through a party to the prior action." Id. at 653. PRIVITY DEFINED "Privity connotes those who are in law so connected with a party to a judgment as to have such an identity of interest that the party to the judgment represented the same legal right." Maxson v. Travis Co. Rent Account, 21 S.W.3d 311, 316 (Tex. App.--Austin 1999, pet. dism'd). SOURCE: 04-08-00394-CV (7/29/09) (San Antonio Court of Appeals)