Wanda Jones v. John K. Grubb, Ind., & John K. Grubb & Associates, P.C. ( 2003 )

Opinion issued April 17, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00672-CV

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WANDA JONES, Appellant

V.

JOHN K. GRUBB, INDIVIDUALLY, AND JOHN K. GRUBB & ASSOCIATES, P.C., Appellees

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On Appeal from the 80th District Court

Harris County, Texas

Trial Court Cause No. 2000-22543

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MEMORANDUM OPINION

          This is an appeal of summary judgment rendered for defendants/appellees, John K. Grubb, individually, and John K. Grubb & Associates, P.C. in plaintiff/appellant Wanda K. Jones’s suit against Grubb for legal malpractice and conversion. In three issues presented for our review, Jones contends that the trial court’s ruling was improper because there are genuine fact issues precluding summary judgment on her claims and Grubb’s affirmative defense of res judicata should not have prevailed.

          We affirm.

Factual & Procedural Background

          In March 1999, Jones hired Grubb to represent her in her divorce proceeding.

 Jones paid Grubb $25,000 and signed a written “Family Law Employment Contract and Retainer Fee Agreement” in which she agreed to pay him an additional $50,000 by May 5, 1999. As collateral to secure the $50,000 to be paid, Jones pledged a diamond ring and an emerald necklace. As Jones notes, a subparagraph addresses the circumstances under which Grubb could withdraw his representation and includes as grounds for withdrawal if Jones “deliberately disregards an agreement or obligation to the Firm as to expenses or fees.”

          Jones did not pay Grubb the $50,000 due in May. As a result, Grubb informed Jones he intended to withdraw from her case. He filed a motion to withdraw that Jones opposed, but that was granted by the trial court. Grubb did not return the jewelry Jones had given him as security. Jones was not able to hire another attorney to take the case, because trial was set only a few weeks away. After the court denied her motion for continuance, Jones negotiated an out-of-court settlement with her husband. Despite having a valid marital property agreement that entitled her to a $500,000 settlement, Jones agreed to settle for $155,000. She and her ex-husband agree that this was substantially less than she might have recovered had the case gone to trial.

          The trial court rendered a final divorce decree on June 16, 1999. That day, Jones sued Grubb pro se for negligent provision of legal services, unjust enrichment, declaratory judgment, breach of contract, and conversion. The trial court dismissed the suit in August 1999 for want of prosecution. In November 1999, Jones sued Grubb a second time, seeking injunctive relief ordering Grubb to execute a partial release of a lien on property that had become her homestead. In her petition, Jones referred to the underlying divorce action and attached a copy not only of the lien, but also of the security agreement she executed when she pledged her jewelry as collateral for the $50,000 she had promised to pay Grubb. She also noted that Grubb continued to allege that he was due the sum of $37,222.07 for legal services rendered in connection with the divorce. Pursuant to the parties’ resolution of their dispute, Jones filed a motion to dismiss the suit with prejudice which the trial court granted.

          In May 2000, Jones sued Grubb for breach of fiduciary duty, breach of contract, and conversion based on his withdrawal of representation and because he retained her jewelry. She sought to recover actual and punitive damages and attorney’s fees. Grubb filed a traditional motion for summary judgment raising the plea of res judicata. He also contended that there was no evidence of damages in regard to the claims for legal malpractice or conversion. The trial court denied this motion. After Grubb filed an amended motion for summary judgment and for reconsideration of his original motion for summary judgment, the trial court rendered judgment without specifying the basis for its ruling.

Discussion

          In her third issue, Jones contends that res judicata does not apply. She further contends that Grubb cannot raise this issue on appeal because it was not raised in his amended motion for summary judgment. Accordingly, we address as a threshold matter whether we may consider this issue.

          A motion for summary judgment must state the grounds on which it is based. Tex. R. Civ. P. 166a(c). It is well settled that a motion for summary judgment must stand or fall on the grounds presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). The movant must establish his entitlement to summary judgment on issues “expressly presented” to the trial court by conclusively proving all elements of a cause of action or a defense as a matter of law. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983). Therefore, a trial court may not render summary judgment on a defense that is not addressed in the summary judgment proceeding. Id. We further note that a substituted or amended motion for summary judgment supercedes and supplants the previous motion, which may no longer be considered. Frias v. Atlantic Richfield Co.,

999 S.W.2d 97, 102 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The preliminary question before us, then, is whether the defense of res judicata was expressly presented to the trial court and addressed in the summary judgment proceeding after an amended motion for summary judgment was filed.

          The record shows that, in the portion of the original motion for summary judgment detailing the basis for the motion, Grubb presented an extensive res judicata argument based on the suit Jones filed against him. He attached to the motion a copy of the petition and the trial court’s order dismissing the cause with prejudice. He also attached a copy of the petition in the suit that was dismissed for want of prosecution. In his amended motion for summary judgment, Grubb did not incorporate the first motion in its entirety, reattach the proof, or elaborate on the res judicata argument. However, the argument was not entirely omitted. In paragraph III of the amended motion, Grubb statef in the motion that he was seeking summary judgment on the ground that all of Jones’s causes of action were “barred pursuant to the rules of res judicata, collateral estoppel, and estoppel by judgment.” In addition, the motion is styled as an “Amended Motion for Summary Judgment and Motion for Rehearing.” Grubb notes that Jones’s response was made to his “motions” for summary judgment. Finally, and most significantly, the trial court’s order granting the motion expressly states that the trial court considered both the motion for summary judgment and the amended motion for summary judgment. Although the second motion for summary judgment should properly have been styled a “supplemental” motion rather than an “amended” motion, we nevertheless conclude that, under these circumstances, the issue of res judicata was expressly presented to the trial court and addressed in the summary judgment proceeding. See State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (substance of plea for relief rather than form or title of document determines true nature of pleading or motion).

          In addition to raising the plea of res judicata, Grubb contended that there was no evidence of damages for legal malpractice or conversion. When the judgment does not specify the ground relied on, we will affirm the summary judgment if any of the theories advanced in the motion for summary judgment and preserved on appeal is meritorious. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993). Because the plea of res judicata was preserved for appeal and is dispositive, we address the merits of the plea.

          Standard of Review

          Summary judgment may be obtained on a plea of res judicata. See Jones v. Nightingale, 900 S.W.2d 87, 88 (Tex. App.—San Antonio 1995, writ ref’d); Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex. App.—Corpus Christi 1991, no writ). We apply the usual standard of review. A defendant who moves for summary judgment on the basis of an affirmative defense has the burden to prove conclusively all the elements of the affirmative defense as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Accordingly, Grubb had the burden of proving each element of his affirmative defense of res judicata. In reviewing the evidence, we take as true the nonmovant’s evidence and indulge every reasonable inference in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548-49 (Tex. 1985).

          The Doctrine of Estoppel by Judgment

          There are two principal categories within the doctrine of estoppel by judgment: (1) claim preclusion—also known as res judicata—and (2) issue preclusion—also known as collateral estoppel. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Res judicata, or claim preclusion, prevents the relitigation of a claim that has been finally adjudicated, as well as related matters that should have been litigated in the prior suit. Id. It prevents splitting a cause of action and is intended to bring a final end to litigation and to promote judicial economy. Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985). Through the doctrine of res judicata, a judgment is final not only as to the matters actually determined, but also to all other matters that the parties might have litigated. Miller v. State & County Mut. Fire Ins. Co., 1 S.W.3d 709, 714 (Tex. App.—Fort Worth 1999, pet. denied). As Grubb notes, the doctrine is applicable to disputes between counsel and their former clients. See, e.g., Robinson v. Garcia, 5 S.W.3d 348, 351 (Tex. App.—Corpus Christi 1999, pet. denied) (holding that multiple disputes arising from attorney’s representation of client must be resolved in single action).

          The elements of res judicata include: (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 raised or those that could have been raised in the first action. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). To determine whether a prior and later lawsuit arise from the same claims, we analyze the factual matters that make up the gist of the claims in the earlier litigation without regard to the form of the action. Barr, 837 S.W.2d at 630. In so determining, we follow a “transactional” approach. Id. at 627. Factors to consider in determining whether facts constitute a single transaction are “their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes.” Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 798-99 (Tex. 1992) (citing Restatement (Second) of Judgments § 24 cmt. b (1980)).

          Application of the Doctrine to the Facts

          Jones contends that, because Grubb was not a party to nor in privity with the parties in the underlying divorce action, res judicata is inapplicable and does not bar this suit. In contrast, Grubb bases his argument not on the previous divorce action—to which he was neither a party nor in privity with the parties—but on the previous suit Jones brought against Grubb for injunctive relief that was settled and subsequently dismissed with prejudice. For the purposes of our transactional analysis, we agree that it is this earlier suit seeking injunctive relief that comprises the basis of Grubb’s claim, not the divorce action. We conclude that Jones’s arguments challenging res judicata based on the divorce action are irrelevant. We further conclude that the first two elements are satisfied, i.e., a final judgment was rendered by a court of competent jurisdiction and the parties are the same. Therefore, we turn to the question of whether the facts on which Jones bases her claims in this action and the facts on which she based her claim for injunctive relief against Grubb constitute a “single transaction.”

          In her prior action for injunctive relief, Jones discussed in her petition her delivery of jewelry and precious stones to Grubb as security for payment for his legal representation in her divorce. She attached their written agreement to her petition. She also referred to Grubb’s withdrawal two weeks before trial, acknowledged that Grubb maintained that Jones still owed him money for his representation in that action, and noted that he retained her jewelry. She prayed for any relief in law or equity to which she might have been entitled. Here, Jones seeks damages for legal malpractice and conversion based on his having withdrawn his representation and not returning her jewelry. The issue central to both suits was Grubbs’s representation of Jones in the divorce action, including the propriety of his withdrawal shortly before trial, and whether he had the right to continue to hold her property as security for unpaid fees. Thus, her claims arose from facts that were related in time, space, origin, and motivation. Furthermore, litigation of all of these causes of action would have formed a convenient trial unit.

Conclusion

          We hold that res judicata barred Jones’s suit against Grubb and that the trial court did not err in rendering summary judgment on this basis. Our holding is dispositive of the appeal; therefore, we need not address issues one and two challenging summary judgment on the claims for legal malpractice and conversion.

          We affirm the summary judgment.

                                                             /s/ Evelyn V. Keyes

                                                             Justice

Panel consists of Justices Taft, Keyes, and Jennings.