Ex Parte: Melonie Lynn Myers

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-01-00017-CV ______________________________





EX PARTE MELONIE LYNN MYERS, Appellant

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On Appeal from the 5th Judicial District Court Bowie County, Texas Trial Court No. 00C1054-005

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Before Cornelius, C.J., Grant and Ross, JJ. Opinion by Chief Justice Cornelius

O P I N I O N

Melonie Lynn Myers appeals from a district court order denying the expunction of criminal records. Myers sought the expunction of records related to two felony indictments against her that were eventually dismissed by the State. The trial court denied the expunction by its order dated November 28, 2000, based on the Texas Department of Public Safety's (DPS) affirmative defense of res judicata. Myers now challenges the propriety of applying res judicata to an expunction proceeding.

On December 10, 1997, a Bowie County grand jury returned felony indictments charging Myers with sexual assault and indecency with a child. Both indictments were later dismissed pursuant to motions filed by the State. The stated reason for filing of the motions to dismiss was that the State could not locate any witnesses to testify against Myers. On September 3, 1999, the district court granted Myers' petition for expunction of the records related to her arrest on these indictments. On the DPS's appeal of that decision, we reversed and rendered judgment denying expunction because Myers failed to submit proof in the trial court, beyond the sworn pleading, that she had not been convicted of a felony in the five years preceding her arrest. Ex parte Myers, 24 S.W.3d 477, 481 (Tex. App.-Texarkana 2000, no pet.). Myers did not seek a review of our decision through either a motion for rehearing or a petition for review by the Texas Supreme Court.

In July 2000, Myers filed a second petition for expunction, naming essentially the same parties and raising the same issues set out in her previous petition. The DPS answered, raising res judicata as an affirmative defense. The trial court sustained the defense and denied expunction.

Myers contends that the trial court erroneously applied the doctrine of res judicata to deny her petition for expunction because in the prior expunction proceeding based on the same criminal charges she failed to prove her eligibility. Because an expunction proceeding is legal in nature, and because the DPS has met all the elements of its defense, we find that res judicata bars the relitigation of Myers expunction request.

Myers contends that an expunction proceeding is administrative in nature, not legal, and therefore, the legal doctrine of res judicata does not apply. She further argues that because the expunction statute is remedial in nature, it should be interpreted broadly so it would not bar a subsequent petition for expunction where denial of the prior petition was for legally insufficient evidence of the statutory prerequisites.

The question whether res judicata applies in a given instance is a mixed question of law and fact. When a matter involving both factual determinations and legal conclusions is decided by the trial court, Texas appellate courts generally use an abuse of discretion standard of review. Pony Express Courier Corp. v. Morris, 921 S.W.2d 817, 820 (Tex. App.-San Antonio 1996, no writ). In applying this standard, we defer to the trial court's factual determinations as long as they are properly supported by the record, and we review its legal determinations de novo. Pony Express Courier Corp. v. Morris, 921 S.W.2d at 820 (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)). In this case, the parties do not dispute any factual issue. Because the only issues presented for review involve purely legal determinations, the proper standard of review is de novo. See Walker v. Packer, 827 S.W.2d at 840.

The doctrine of res judicata, or claims preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as all related matters that, with the use of diligence, could or should have been litigated in the prior action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex. 1992). The bar of a claim by 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. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Myers does not dispute that all three of those elements have been met here. At the hearing, Myers stipulated that she was presenting the same issues that were presented in her prior petition for expunction and that there was a final judgment in the prior action. The DPS introduced into evidence without objection our opinion and mandate from Ex parte Myers, 24 S.W.3d at 477, as well as the transcript from the hearing in the trial court in that proceeding. This evidence shows that the same parties have been joined in this expunction petition that were joined in Myers' prior petition. Because all three elements have been met by competent evidence, res judicata bars the relitigation of Myers' new expunction claim.

Myers asks us to hold that an expunction proceeding is administrative in nature rather than legal in nature. Expunction actions are legal proceedings that (1) are established and governed by express statutory provisions, (2) must be filed in a specific court of law, and (3) are decided by applying past facts to the burden of proof specified in the statute.

Expunction is a statutory privilege that is granted by, and may be limited by, the Legislature. State v. Autumn Hills Ctrs., Inc., 705 S.W.2d 181, 182 (Tex. App.-Houston [14th Dist.] 1985, no writ). Where a cause of action is created by statute, the statutory provisions must be satisfied in order to sustain the action. Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.-Houston [14th Dist.] 1997, no pet.). A petition for expunction, under the statute in effect at the time of Myers' arrest, must have been filed in a district court for the county in which the person was arrested. See Ex parte Myers, 24 S.W.3d at 479. An expunction cannot be considered in any court other than that specified in the statute, because the Legislature's designation of venue is mandatory and jurisdictional. Id. at 480.

An expunction action is a special proceeding where the court's actions are not exercised according to the course of the common law, but according to the express requirements of the statutory scheme. See Johnson v. Williams, 24 S.W.2d 79, 80 (Tex. Civ. App.-Eastland 1929, writ ref'd). It is a civil proceeding where the burden of compliance with the statutory burden of proof rests solely with the petitioner. Ex parte Myers, 24 S.W.3d at 480-81. It is an adversarial proceeding in which all of the law enforcement agencies and other officials or entities that have records subject to expunction must be named in the petition. Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b)(8) (Vernon Supp. 2002). All law enforcement agencies that may have records the petitioner wants expunged must receive notice of, and are entitled to be represented by counsel at, the expungement hearing. Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (Vernon Supp. 2002). An agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases. Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) (Vernon Supp. 2002). Texas law governing expunction of criminal records creates a unique situation in which all persons and agencies party to an expunction action share not only interwoven, but identical, interests. Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991). Thus, a partial expunction by some, but not all, of the agencies listed in the petition is not permitted. Id.

Because expunction is not a common-law right, but a statutory one, a court has no equitable power to expand the clear meaning of the statute. Texas Dep't of Pub. Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. App.-Houston [1st Dist.] 1994, no writ); Texas Dep't of Pub. Safety v. Wiggins, 688 S.W.2d 227, 229 (Tex. App.-El Paso 1985, no writ). It is clear that an expunction action is a legal proceeding.

Myers argues that if expunction were an administrative proceeding, res judicata would not bar her subsequent expunction petition. We disagree. Even if expunction actions were administrative proceedings, they are the type of administrative proceedings to which res judicata applies. In support of her position, Myers cites Davenport v. State, 574 S.W.2d 73 (Tex. Crim. App. 1978), and Bryant v. L.H. Moore Canning Co., 509 S.W.2d 432 (Tex. App.-Corpus Christi 1974, no writ). The Bryant court pointed out, however, that the principles of res judicata apply in certain types of administrative actions. Bryant v. L.H. Moore Canning Co., 509 S.W.2d at 434 (citing R.R. Comm'n v. Phillips, 364 S.W.2d 408 (Tex. Civ. App.-Austin 1963, no writ)). The nature of the action is the controlling factor in determining whether res judicata applies to an administrative decision.

In judicial proceedings, courts apply law to past facts that remain static. On the other hand, administrative bodies are concerned with fluid facts and changing policies. Killingsworth v. Broyles, 300 S.W.2d 164, 165 (Tex. Civ. App.-Austin 1957, no writ). From the nature of an expunction proceeding, even if we assume that it is an administrative proceeding, it is the type of administrative proceeding in which res judicata would apply to bar relitigation of Myers' subsequent petition.

Myers argues that res judicata does not apply to decisions of courts performing administrative functions, citing Davenport v. State, 574 S.W.2d at 432, and Burrows v. Texas Dep't of Pub. Safety, 740 S.W.2d 19 (Tex. App.-Dallas 1987, no writ.). The Burrows court held that a plea of guilty to a driving while intoxicated charge did not bar an administrative license revocation hearing, pursuant to the authority of Tex. Rev. Civ. Stat. Ann. art. 6687b, § 22 (Vernon 1977). The situation in Burrows is not present in this case. There were two separate proceedings of different types and undertaken pursuant to different statutory provisions. The administrative proceedings under Section 22 of Article 6687b are essentially civil in nature and are not criminal prosecutions. Burrows v. Texas Dep't of Pub. Safety, 740 S.W.2d at 20 (citing Texas Dep't of Pub. Safety v. Casselman, 417 S.W.2d 146, 147 (Tex. 1967)). Such a proceeding is separate and distinct from a criminal prosecution for driving while intoxicated. It does not involve the same parties, because the district attorney's office, charged with prosecuting the offense, has no right to appear at the license revocation hearing. Nor does the DPS have a right to be represented at the criminal trial of a driving while intoxicated charge. Furthermore, Burrows relies entirely on Davenport for the proposition that res judicata does not apply to administrative proceedings. Burrows v. Texas Dep't of Pub. Safety, 740 S.W.2d at 21. The court in Davenport stated that a community supervision revocation hearing was administrative in nature, and only for that reason held that res judicata did not operate to bar the state's subsequent motion to revoke community supervision. ⁽¹⁾ Davenport v. State, 574 S.W.2d at 76.

In Ex parte Tarver, the court reached the opposite conclusion than in Davenport. Ex parte Tarver, 725 S.W.2d 195, 197 (Tex. Crim. App. 1986). The Tarver court held that the doctrine of collateral estoppel barred the state from prosecuting the appellant for assault after the state failed to prove the same allegation in a probation revocation hearing. Collateral estoppel ⁽²⁾

means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Ex parte Tarver, 725 S.W.2d at 198 (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 25 L. Ed. 2d 469, 475 (1970)). The court expressly disagreed with the decision in Davenport. Id. at 199. The court noted that a community supervision revocation hearing involves a trial court acting as finder of fact, after a full hearing on an issue at which both the state and an accused are represented by counsel, and to that extent the court is "acting in a judicial capacity." Id. Accordingly, even if expunction proceedings were administrative rather than legal, the fact that they take place in a district court, with a trial judge acting as fact finder, with a full hearing at which all parties have the right to be represented by counsel, demonstrates that the expunction court is acting in a judicial capacity.

For the reasons stated, we affirm the judgment of the trial court.

William J. Cornelius

Chief Justice

Date Submitted: January 3, 2002

Date Decided: January 24, 2002

Publish

1. The State's second motion to revoke probation, filed six weeks after the first was denied, alleged the same factual bases as ground for revocation that were alleged in the first motion to revoke. Davenport v. State, 574 S.W.2d 73, 74 (Tex. Crim. App. 1978).

2. Collateral estoppel is issue preclusion, while res judicata is claims preclusion. See Coalition of Cities for Affordable Util. Rates v. Public Util. Comm'n, 798 S.W.2d 560, 562-63 (Tex. 1990) (explaining when the doctrines of res judicata and collateral estoppel bar relitigation of claims or issues).

e expected to perform until Patel gave instructions at each stage of progress. Patel was on the premises the entire time Julian was working. Patel not only directed each of Julian's activities, he was working jointly with Julian at the time Julian was injured. There is evidence showing that Julian acted as Patel's employee, because Patel had the right to control the progress, details, and methods of operation of Julian's work. See Thompson v. Travelers Indem. Co. of Rhode Island, 789 S.W.2d 277, 278 (Tex. 1990). The facts on the degree of control exercised are disputed, and resolution of this factual dispute will determine whether Patel or Super Tint owed a duty of reasonable care to Julian. Taking all inferences in favor of Julian, Patel exercised sufficient control over the activities of Julian to subject Patel to liability as a master or employer. We must, for the purpose of summary judgment, consider Julian to be an employee of Super Tint. ⁽¹⁾

Appellees have failed to demonstrate their right to summary judgment under Rule 166a(c) because they have not conclusively proven Julian was an independent contractor. They have thus failed to establish that Julian was required to provide all necessary equipment or that Julian had exclusive control over the means of performing the work. This ground of the summary judgment also fails to provide an adequate basis for the trial court's judgment.

Patel and Super Tint also argue in the alternative that even if some duty existed, they had no duty to act affirmatively and that liability cannot be predicated on 1) failure to provide equipment to Julian for use in performing the work requested, or 2) failure to provide instructions to Julian about how to do the work. These contentions are incorrect. In Texas, an employer has a "nondelegable and continuous" duty to an employee to provide adequate help in performance of the work assignment. Harrison v. Oliver, 545 S.W.2d 229 (Tex. Civ. App.-Houston [1st Dist.] 1976, writ dism'd). The employer has a similar duty to provide the employee with safe instrumentalities and tools, and to provide a safe place to work. Id. at 230 (citing W. Union Tel. Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977 (1947)); Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 401 (1934); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 926 (Tex. App.-Houston [1st Dist.] 1988, no writ). Appellees' position can only be maintained if Julian was an independent contractor rather than an employee. In support of this position, they argue there is evidence tending to show that Julian was acting as an independent contractor. This argument fails to grasp the relevant standard. Appellees have the burden to conclusively prove, as a matter of law, their right to summary judgment. All inferences at the summary judgment stage must be taken in favor of Julian. The only permissible inference under the relevant legal standard is that Julian was an employee of Super Tint. See Nixon, 690 S.W.2d at 549. Appellees alleged failures to act could give rise to liability. Appellees failed to prove they were entitled to summary judgment on this ground.

Appellees also contended that the alleged failures to act did not proximately cause the injuries sustained by Julian. Proximate cause is generally a mixed question of law and fact for the jury to determine. Ely v. Gen. Motors Corp., 927 S.W.2d 774, 781 (Tex. App.-Texarkana 1996, writ denied). A lack of proximate cause, however, may be established as a matter of law where the circumstances are such that reasonable minds could not arrive at a different conclusion. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Ely, 927 S.W.2d at 781. Proximate cause consists of both cause in fact and foreseeability. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992). Cause in fact means that the defendant's act or omission was a substantial factor in bringing about the injury, without which the injury would not have otherwise occurred. Allbritton, 898 S.W.2d at 775; Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995). Cause in fact is limited by foreseeability: whether the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act created for others. Travis, 830 S.W.2d at 98; Nixon, 690 S.W.2d at 549-50. Foreseeability does not require that the actor anticipate the precise manner in which the injury will occur, but only the general character of the injury. Travis, 830 S.W.2d at 98; El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987); Nixon, 690 S.W.2d at 550.

It is undisputed that Patel instructed Julian to help move the glass and that Patel directed and participated in the actual moving of the glass. Julian provided evidence that Patel failed to provide any safety instructions, gloves, or other equipment related to handling the glass and that Super Tint in fact did not have any such procedures or equipment. Patel further admitted he did not know how to safely handle glass of this type. Julian also provided evidence that Patel failed to look to see whether Julian had a good grip before lifting the glass and that Patel lifted the glass before Julian, in fact, had a good grip. It is foreseeable that improperly handled glass may break and that broken glass may cause injuries such as the lacerations suffered by Julian. It is also foreseeable that proper safety equipment and procedures could help avoid injuries such as those suffered by Julian. We have already determined for the purposes of this appeal that appellees owed a duty of reasonable care to Julian. Appellees failed to conclusively establish, as a matter of law, that the omissions alleged did not proximately cause Julian's injuries. See Tex. R. Civ. P. 166a(c).

The sole remaining ground on which the traditional summary judgment motion could have been properly granted applies to Patel individually, but not to Super Tint. Under the traditional Rule 166a(c) summary judgment standard, Patel contends he is immune from suit for his personal acts of negligence because he was acting in his capacity as a corporate officer, his acts were for the benefit of the corporation, and the incident occurred on corporate property. Patel bears the burden to prove conclusively there is no genuine issue of material fact and he is entitled to summary judgment on this issue as a matter of law. Tex. R. Civ. P. 166a(c). Patel and Super Tint have admitted, in their joint Motion for Summary Judgment, that Patel was acting within the scope of his employment as an agent of Super Tint. This is sufficient to establish that Super Tint will be vicariously liable for Patel's negligent acts. Patel correctly points out he cannot be held personally liable for acts of the corporation. See, e.g., Menetti v. Chavers, 974 S.W.2d 168, 171 (Tex. App.-San Antonio 1998, no pet.). Patel is also immune from personal liability where the duty breached is charged only to the corporate entity, such as the duty to provide a safe workplace. See Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996).

Neither of these rules shield Patel from his own acts of negligence toward another. A corporate officer or agent can be liable to others, including other company employees, for his or her own negligence. Individual liability arises only when the officer or agent owes an independent duty of reasonable care to the injured party apart from the employer's duty. Id. As the Texas Supreme Court noted,

[A]n agent whose negligence causes an auto accident may be held individually liable along with his or her employer when driving in the course and scope of employment. See Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596-97 (Tex. 1987) (liability for negligent entrustment "rests upon the combined negligence of the owner [employer] . . . and negligence of the driver"); Le Sage v. Pryor, 137 Tex. 455, 154 S.W.2d 446, 448 (Tex. Comm'n App. 1941) (employer and employee subject to liability for auto accident). Because the agent owes a duty of reasonable care to the general public regardless of whether the auto accident occurs while driving for the employer, individual liability may attach. See Schneider, 744 S.W.2d at 596-97.

Id.

Patel has admitted directing the activities of Julian with respect to moving the glass. Patel further admitted he was lifting the glass at the time Julian was injured. Julian has alleged that Patel was negligent in the manner in which he handled the piece of glass and that this act caused Julian's injuries. By participating in the act of moving the glass, Patel owed an independent duty of reasonable care to Julian, apart from his duty as Julian's employer.

Patel broadly asserted summary judgment was proper because none of his actions gave rise to personal liability. Patel bears the burden to prove conclusively that there is no genuine issue of material fact and that he is entitled to summary judgment on this issue as a matter of law. Tex. R. Civ. P. 166a(c). Since the summary judgment evidence shows that at least one of his actions could give rise to personal liability, Patel was not entitled to summary judgment on this ground.

Finding none of the grounds in appellees' traditional Motion for Summary Judgment to be meritorious, we cannot affirm the trial court's judgment on the bases presented therein. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

No-Evidence Motion for Summary Judgment

Appellees asserted under Rule 166a(i) there was no evidence on the elements of duty or proximate cause. A no-evidence summary judgment is improperly granted if nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on all challenged elements of his claim. Tex. R. Civ. P. 166a(i); see also Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (citing Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.)). We consider the evidence in the light most favorable to the nonmovant. Morgan, 27 S.W.3d at 929.

Appellees moved for summary judgment under Rule 166a(i), contending 1) there was no evidence appellees controlled Julian's work such that they owed him any duty, and 2) there was no evidence appellees engaged in any affirmative conduct which proximately caused the incident. Julian bears the burden of bringing forward more than a scintilla of evidence that raises an issue of material fact on the duty owed to him and breach of that duty. Tex. R. Civ. P. 166a(i). As shown above, there is more than a scintilla of evidence that raises fact issues with respect to both the duty and proximate cause elements. Julian has met his burden to defeat appellees' no-evidence motion on both the duty and proximate cause issues. Appellees' no-evidence motion cannot serve as a proper basis for summary judgment.

CONCLUSION

No ground in the appellees' summary judgment motion was meritorious. Julian produced sufficient summary judgment evidence on the issues of duty, breach, and proximate cause to defeat the no-evidence grounds of the motion. Patel failed to prove he was shielded from liability by his status as a corporate employee. Patel and Super Tint failed to prove Julian was an independent contractor. Neither Patel nor Super Tint demonstrated they were entitled to summary judgment as a matter of law.

The judgment of the trial court is reversed, and the cause is remanded for further proceeding.

Ben Z. Grant

Justice

Date Submitted: February 28, 2002

Date Decided: June 14, 2002

Do Not Publish

1. Even if we were to conclude Julian was an independent contractor, that would not end the inquiry as to whether a duty existed. An employer may still owe a duty to independent contractors and the independent contractors' employees to the extent that the employer retains control over some aspect or aspects of work progress. As the Texas Supreme Court observed,

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (quoting and adopting rule announced in Restatement (Second) of Torts § 414 (1977)). This rule applies where the employer retains less control than would subject him to liability as a master. Redinger, 689 S.W.2d at 418 (citing Restatement (Second) of Torts § 414, comments a and c (1965)).