Jesus Banda, Juan Banda, Chon Banda, and Ruben Banda v. George H. Rau, Jr., Stevens & Rau, P.C., Randy L. Stroud, P.E., Santiago Aguilera, Blas Vallejo, Salvadore Razo, and Miguel Angel Garcia

Opinion issued November 22, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00622-CV
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JESUS BANDA, JUAN BANDA, CHON BANDA, AND RUBEN BANDA,
Appellants
V.
GEORGE H. RAU, JR., STEVENS & RAU, P.C., RANDY L. STROUD, P.E.,
SANTIAGO AGUILERA, BLAS VALLEJO, SALVADORE RAZO, AND
MIGUEL ANGEL GARCIA, Appellees
On Appeal from the 239th District Court
Brazoria County, Texas
Trial Court Case No. 75560-CV
MEMORANDUM OPINION
This is an appeal from a summary judgment granted on the claim that
appellants’ suit is barred by res judicata. We reverse and remand.
BACKGROUND
Appellants and Appellees were involved in a years-long dispute over the
ownership and location of land parcels in a mobile home park. One of the
appellants (collectively, the Bandas) had executed contracts for deed with several
of the park’s occupants. Later, a dispute arose over whether payments the
appellee-occupants were making to the Bandas were rental payments or purchase
payments. The appellee-occupants sued, and the parties reached a settlement. In
addition to reading the settlement agreement into the record, counsel prepared a
schematic drawing setting out the locations of the properties that was attached to
the parties’ Agreed Judgment. That cause was litigated in the 239th District Court
in Brazoria County.
The Agreed Judgment was entered on March 22, 2010. It stipulated that the
parties were to hire a surveyor to conduct surveys and provide legal descriptions of
the parcels and that appellant Jesus Banda was to furnish deeds to each of the
appellee-occupants within thirty days of the completion of the surveys. When this
did not occur, appellee-occupants filed a motion to enforce the judgment, which
the trial court granted on May 24, 2011. Then, on July 12, 2011, the court ordered
appellee Stroud to act as an independent surveyor and survey the property in
accordance with the judgment, and ordered appellee Rau to act as the receiver of
the property and issue deeds at the conclusion of the survey.
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The surveys were completed and, on October 7, 2011, appellee-receiver Rau
notified the Bandas via counsel that—if neither side had any correction or
suggestions regarding the accuracy of the survey—he would have Warranty Deeds
drafted based upon the surveys. In that same October 7, 2011 notice, Rau stated
that the surveys would be submitted to the trial court for approval.
On October 20, 2011, appellant Jesus Banda’s attorney sent a letter to both
appellee-receiver Rau and appellee-surveyor Stroud, protesting that the proposed
surveys were different than the conveyances agreed to by the parties in the Agreed
Judgment. The letter pointed out the specific ways in which the Bandas contended
the surveys differed from the language of the Agreed Judgment, and the trial court
was copied on the correspondence. On October 31, 2011, in response to a letter
from appellee-Stroud asserting that the surveys were consistent with a sketch
attached to the Agreed Judgment, Jesus Banda’s attorney again contended that the
surveys did not reflect the parties’ agreement. The trial court was again copied on
this correspondence and it included an informal drawing of what Jesus Bandas
contended was consistent with the court’s orders and the parties’ agreement.
On June 20, 2013, appellee Stroud advised the parties that he was going to
execute and record receiver deeds on July 1, 2013. On the afternoon of July 1,
2013, appellant Jesus Banda’s attorney faxed a letter to appellee-receiver Rau,
appellee-surveyor Stroud, and the trial court, again pointing out the particulars in
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which he believed the proposed deeds were incorrect and did not reflect the
agreement entered into by the parties in open court.
On July 9, 2013, Rau responded that he had prepared the recorded receiver
deeds “after consultation with the surveyor” and suggested that the Bandas “take
the matter up with the Court.”
A. The Underlying Lawsuit
On January 14, 2014, the Bandas filed the underlying lawsuit against
appellee-receiver Rau, appellee Stevens & Rau, P.C., appellee-surveyor Stroud,
and three appellee-occupants of land at the mobile home park. That lawsuit was
assigned to the 23rd District Court of Brazoria County. The Bandas sought
damages from appellees Rau, Stevens & Rau, P.C., and Stroud for their alleged
“course of willful conduct with the intent to interfere with the parties’ agreement.”
Specifically, the Bandas contended that, despite the court ordering the surveyor
and receiver “to execute the appropriate deeds in accordance with the orders of the
court rendered on July 12, 2011,” they instead “arbitrarily conveyed real property
on July 1, 2013, contrary to the existing agreement between the parties and in
disobedience or noncompliance with the court orders.” Against the individual
appellee-occupants, the Bandas alleged that they agreed to accept different plots
and amounts of land in Agreed Judgment than was actually conveyed to them by
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the receiver deeds. Thus, the Bandas alleged each had breached their contractual
agreements.
B. The Transfer and Summary Judgment
The three appellee-occupants requested that the 23rd District Court transfer
the cause to the 239th District Court (the court that had heard and decided the
earlier lawsuit resulting in the Agreed Judgment). The Bandas opposed the
transfer, arguing:
Defendants allege that res judicata applies to the facts in this case
because the issues involving quieting title were resolved as a result of
an agreed judgment dated March 22, 2010. The March 22, 2010
judgment required the parties to select a surveyor to provide a legal
description of the 5-acre tract of land so that deeds could be prepared
to describe the land being conveyed by Jesus Banda. Since the March
22, 2010 judgment the parties went back to the 239th District Court
on a motion to enforce. The court terminated the services of the
surveyor previously retained by the parties and on July 12, 2011
appointed Randy Stroud to survey the property and George Rau,
Receiver, was appointed to draft deeds based upon the court’s
judgment and the parties agreement.
On July 1, 2013, two years later, the receiver filed real estate deeds
with the Brazoria County Clerk’s office. The deeds filed as a matter of
record were different than the division of land agreed to on the March
22, 2010 judgment by the parties. This case was resolved by
settlement agreement and the judgment had to strictly confirm to the
terms of the agreement. There was a contract existing between the
parties that was enforceable by lawsuit as any other agreement. The
problem in this case is the land was divided by the receiver/surveyor
differently than stipulated by agreement and judgment. The issues
prior to the judgment are not being re-litigated. The lawsuit currently
before the 23rd judicial District Court attempts to correct and rescind
deeds that granted land arbitrarily to individuals that were not entitled
to it. The rule of law that applies is that the enforcement order must be
carried out consistently with the original judgment and cannot
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materially change a part of the judgment that was substantially
adjudicated. The receiver and surveyor used their discretion to take
land away from plaintiffs.
The Judge of the 239th District Court (Patrick Sebesta) was informed
during 2013 that the receiver and surveyor were not abiding by the
agreement before the court. The 239th District Court refused to
intervene professing not to have jurisdiction. The case is appropriately
filed in the 23th District Court and should not be sent to the 239th
District Court as it does not have jurisdiction of the parties.
Over this objection, the 23rd District Court transferred the underlying case
to the 239th District Court.
The three appellee-occupants moved for summary judgment on the basis of
res judicata, and the trial court granted the motion. The Bandas timely brought
this appeal.
ISSUES ON APPEAL
In a single issue, the Bandas argue “The Trial court erred in granting
summary judgment in favor of Appellees on the grounds of res judicata.” In
response, appellees contend that the trial court’s summary judgment was proper,
and they seek an award of attorneys’ fees for defending what they contend is a
frivolous appeal.
RES JUDICATA
“Res judicata is a generic term for the related concepts of claim preclusion
(res judicata) and issue preclusion (collateral estoppel).” Barnes v. United Parcel
Serv., 395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
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“Res judicata bars the re-litigation of claims that have been finally adjudicated or
that could have been litigated in the prior action.” Igal v. Brightstar Info. Tech.
Grp., 250 S.W.3d 78, 86 (Tex. 2008). For res judicata to apply, the defendant must
show that: (1) there is a prior final judgment 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 claims that were or
could have been raised in the first action. Id.; Dardari v. Tex. Commerce Bank
Nat’l Ass’n, 961 S.W.2d 466, 470 (Tex. App.—Houston [1st Dist.] 1997, no pet.).
Res judicata does not operate as a bar to litigation when the second claim could not
have been raised in the previous litigation. See Abbott Labs. v. Gravis, 470 S.W.2d
639, 642 (Tex. 1971); Voskamp v. Arnoldy, 749 S.W.2d 113, 126 (Tex. App.—
Houston [1st Dist.] 1987, writ denied).
A. The Summary Judgment
Santiago Aguilera, Blas Vallejo, and Miguel Garcia—three appellee-
occupants—filed a traditional motion for summary judgment. That motion argued,
in its substantive entirety:
On the 22nd day of March, 2010, pursuant to the Agreed Final
Judgment of this Court in Cause No. 25553 in this Court, and
Trustee’s Deeds executed by George H. Rau, Jr. the Receiver
appointed by this Court, Defendants’ title to the land involved in this
litigation was, for all time, confirmed. Copies of the Court’s Judgment
in Cause No. 25553 as well a Trustee’s Deed in favor of the
Defendant, Santiago Aguilera, are attached hereto and made parts of
this Motion for all relevant purposes. The Court is asked to take
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judicial notice of both documents which are on file in the Court
records and deed records of Brazoria County along with the Receiver's
deeds to the Defendants, BLAS VALLEJO and MIGUEL ANGEL
GARCIA, which are also “of record” in the Deed Records of Brazoria
County.
The Court’s Final Judgment bars all claims now being brought
by JESUS BANDA and the other Plaintiffs in the above-styled and-
numbered cause under the doctrine of Res Judicata. All issues and
causes of action regarding Defendants’ title to the real property
involved were forever resolved and “put to bed” by the Court’s
Judgment after years of litigation before this Court, and a Judgment
which claimants to the land in dispute asked to be entered. Plaintiffs’
present lawsuit is nothing more than an improper collateral attack on
that Agreed Final Judgment.
The Bandas filed a response, again arguing that their claims were not barred
by res judicata because they were not seeking to challenge the contents of the
Agreed Judgment from the prior suit; rather, they were arguing that the receiver
deeds did not conform to the Agreed Judgment. As evidence, the Bandas included
the parties’ Rule 11 Agreement, a transcript of the parties’ settlement agreement
being read into the record, the Agreed Judgment, and an affidavit by appellant
Jesus Banda verifying the facts in the response and averring that the Bandas claims
are based upon facts that did not exist at the time of the Agreed Judgment.
On May 25, 2015, the trial court signed an order granting “Defendants’
Motion for a full and final Summary Judgment.”1
1
It appears this summary judgment was final, although erroneous, because it
unequivocally disposed of all claims and parties even though the motion for
summary judgment it was based upon only addressed claims against three of the
five defendants. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)
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B. Analysis
On appeal, the Bandas argue that the district court “erred in granting
summary judgment based upon res judicata.” They contend that res judicata does
not bar a claim that arose after a final judgment that is based on facts not resolved
in that judgment. Because their argument is that the “the parties did not perform in
accordance with the Rule 11 Agreement nor the Agreed Judgment,” the Bandas
assert that the trial court’s judgment based upon res judicata should be reversed.
Appellees argue that that the Bandas’s claims are foreclosed because the
Bandas are “attempting to undo” the Agreed Final Judgment. Because the Bandas
did not appeal that Agreed Judgment, appellees contend that the Bandas cannot
collaterally attack that final judgment in this suit. Accordingly, appellees argue
that the trial court’s granting summary judgment based on res judicata was proper
and that the summary judgment should be affirmed.
We disagree with appellees that the Bandas “waived any complaint [they]
may have had regarding a supposed incorrect survey and deeds based” on the
Agreed Judgment. Both parties agree that the Agreed Judgment is binding and
controlling and—contrary to the appellees’ argument—the Bandas have not
(“[I]f a defendant moves for summary judgment on only one of four claims
asserted by the plaintiff, but the trial court renders judgment that the plaintiff take
nothing on all claims asserted, the judgment is final—erroneous, but final. A
judgment that grants more relief than a party is entitled to is subject to reversal,
but it is not, for that reason alone, interlocutory.”). No party has complained of
this error on appeal.
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challenged the Agreed Judgment, nor sought to “undo” it in the underlying lawsuit.
Either the survey and receiver deeds were prepared in conformity with the Agreed
Judgment or they were not. We need not resolve that issue on appeal because it is
not an issue raised in appellees’ motion for summary judgment, nor has that issue
been litigated yet in the trial court. The dispute over whether the survey and
receiver deeds comply with the Agreed Judgment is not foreclosed by res judicata
because the Bandas’ claims arise from facts that came about after the Agreed
Judgment was final.
We thus reverse the trial court’s summary judgment and remand to the trial
court for further proceedings consistent with this opinion. Given our disposition,
we reject appellees’ argument that the Bandas’ appeal is frivolous, and accordingly
we deny the appellees’ request for an award of attorneys’ fees as sanctions.
CONCLUSION
We reverse the trial court’s summary judgment and remand for further
proceedings.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Huddle.
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