Opinion
01-21-00024-CV
08-23-2022
EDWARD FOUSSADIER, Appellant v. TRIPLE B SERVICES, LLP, Appellee
On Appeal from the 55th District Court Harris County, Texas Trial Court Case No. 2016-03307B
Panel consists of Justices Kelly, Goodman, and Guerra
MEMORANDUM OPINION
Peter Kelly, Justice
Appellant Edward Foussadier sued Triple B Services ("Triple B") and the Texas Department of Transportation after he was injured in a bicycle accident, which he alleged was caused by a defect created by Triple B's work on the road. Foussadier alleged claims for negligence and breach of implied warranty against Triple B. The trial court granted take-nothing summary judgment against Foussadier and severed his claims against Triple B. We affirmed the trial court's summary judgment, and the Supreme Court of Texas denied Foussadier's petition for review. Foussadier v. Triple B Servs., LLP, No. 01-18-00106-CV, 2019 WL 2127604, at *1 (Tex. App.-Houston [1st Dist.] May 16, 2019, pet. denied) (mem. op.).
Foussadier thereafter amended his petition in the trial court, pleading a claim for negligence against Triple B. Triple B moved for summary judgment on the grounds of res judicata and expiration of the statute of limitations. The trial court granted summary judgment and dismissed Foussadier's claims with prejudice against refiling the same claims. The court later denied Foussadier's motion for reconsideration and severed his claims against Triple B.
On appeal, Foussadier argues that the trial court erred by granting summary judgment because an exception to res judicata applies in this case and because his pleading of a negligence claim against Triple B after the resolution of the last appeal related back to his original pleading and was, therefore, timely. We disagree, and because we conclude that res judicata precludes Foussadier's negligence claim against Triple B, we do not analyze his statute of limitations arguments. We affirm.
Background
The facts of the underlying lawsuit are discussed in our initial opinion. Foussadier v. Triple B Servs., LLP, No. 01-18-00106-CV, 2019 WL 2127604, at *1 (Tex. App.-Houston [1st Dist.] May 16, 2019, pet. denied) (mem. op.). Between 2012 and 2014, Triple B performed roadwork on FM2978 near Tomball, Texas. In 2015, Foussadier was riding his bicycle on the stretch of road where Triple B had worked when his wheel fell into a hole. Foussadier lost control of his bicycle, fell, and broke his collarbone. He sued Triple B for negligence and other causes of action. Triple B filed a no-evidence motion for summary judgment. Foussadier responded with the following summary-judgment evidence: (1) transcripts from his deposition; (2) discovery responses; and (3) an expert report from a civil engineer, who conceded that he did not inspect the accident site or the road defect, but who opined that the defect in the road was caused by Triple B's faulty work.
The trial court sustained objections to some of Foussadier's summary-judgment evidence, including the expert's opinions, which the court called "the very definition of ipse dixit testimony." The court also said that there was "no support" for the expert's opinion. The court granted a take-nothing summary judgment in favor of Triple B. Three weeks later, Foussadier filed a motion for reconsideration to which he attached a second engineer's report, which Foussadier maintained created a genuine question of material fact. The trial court denied the motion for reconsideration in an order that stated that it had considered "the motion, pleadings, the response, [and] evidence" and had taken judicial notice of the case file. On February 6, 2018, the trial court severed Foussadier's claims against Triple B, and Foussadier appealed.
On appeal, we explained that a court has discretion to consider late-filed summary judgment evidence so long as there is an affirmative indication in the record that the evidence was considered. Id. at *4. We reviewed the factual situations in which courts of appeals had found an affirmative indication in the record that the evidence was considered, including two cases from the Fourteenth Court of Appeals that reached opposite conclusions about whether a statement that the court considered "other evidence" on file was an affirmative indication that the court considered late-filed summary judgment evidence. Id. at *5.
This court held that the trial court did not abuse its discretion by denying Foussadier's motion for reconsideration because there was no affirmative indication that the trial court considered the late-filed evidence. We concluded that the trial court's "statement that it considered 'evidence' [wa]s consistent with the rule that on motion for reconsideration, a court may consider only the record as it existed when the court first ruled on the motion for summary judgment," and was not an affirmative indication that the court had in fact considered the late filed evidence. The Supreme Court of Texas denied Foussadier's petition for review, and the mandate issued from this court in April 2020.
Meanwhile, in B.C. v. Steak N Shake Operations, Inc., which issued March 27, 2020, the Supreme Court of Texas concluded that a trial court's recital that it considered evidence, without qualification or limitation, is an affirmative indication that overcomes the presumption that a trial court did not consider late-filed evidence.
B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 261 (Tex. 2020).
In June 2020, after the mandate in the first appeal issued, Foussadier filed his fourth amended petition in his ongoing litigation against the Department of Transportation. Foussadier again pleaded a claim for negligence against Triple B based on the allegedly defective roadwork, which he maintains caused his bicycle accident. Foussadier alleged that B.C. represented a change in substantive law that entitled him to consideration of the evidence that he had previously attached to his motion for reconsideration.
Triple B answered the amended petition and moved for summary judgment on the grounds of res judicata and the expiration of the statute of limitations. It argued that Foussadier's negligence claim was identical to his prior claim, which had been dismissed on summary judgment. Triple B argued that B.C. did not create a new substantive right or cause of action. Triple B also asserted that Foussadier's claims were barred by the two-year statute of limitations for negligence.
The trial court granted summary judgment and dismissed Foussadier's claims against Triple B "with prejudice against the refiling of the same." After the trial court denied Foussadier's motion for reconsideration, it severed his claims against Triple B into a separate action, and Foussadier appealed.
Analysis
On appeal, Foussadier asserts that the trial court erred by granting summary judgment and by denying his motion for reconsideration. Foussadier argues that B.C. was a substantive change in decisional law that affected his rights, and, therefore, a narrow exception bars the application of res judicata. Triple B argues that res judicata applies, and the trial court correctly granted summary judgment and dismissed Foussadier's repleaded claims. We agree with Triple B.
I. Summary judgment standard of review
We review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); see Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).
II. Res judicata
"Res judicata, or 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." Barr v. Resol. Tr. Corp., 837 S.W.2d 627, 628 (Tex. 1992).
The principle of res adjudicata is founded in public policy and is as old as English jurisprudence. Fundamentally its purpose is to expedite justice by putting an end to litigation; and to preserve the sanctity of the judgments of the courts by making them immune from collateral attack. Once a court has exercised its functions of decision on an issue over which it has jurisdiction, and that decision becomes final, the parties thereto and their privies cannot escape its binding effect. Lacking this anchorage of finality a judicial system would be little more than a rule of fiat.Permian Oil Co. v. Smith, 107 S.W.2d 564, 567 (Tex. 1937) (cited with approval by Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017)).
Ordinarily, "a final judgment is the end point of litigation." Engelman Irrigation, 514 S.W.3d at 750. Res judicata precludes a second action "by the parties and their privies on 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." Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010) (quoting Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984)). "The policies behind res judicata 'reflect the need to bring litigation to an end, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery.'" Engelman Irrigation, 514 S.W.3d at 750 (quoting Barr, 837 S.W.2d at 629). "That the judgment may have been wrong or premised on a legal principle subsequently overruled does not affect application of res judicata." Id. at 749 (quoting Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983)).
"The party relying on 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., 315 S.W.3d at 862 (citing Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996)); see Tex. R. Civ. P. 94 (identifying res judicata as an affirmative defense).
A judgment is final for the purpose of res judicata "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)); Lesikar v. Moon, No. 01-12-00406-CV, 2014 WL 4374117, at *6 (Tex. App.-Houston [1st Dist.] Sept. 4, 2014, pet. denied) (mem. op.). An earlier judgment that has been reversed, however, is not preclusive because "a reversed judgment is generally nullified, leaving it as if it had never been rendered other than as to further rights of appeal." Watson v. Hous. Indep. Sch. Dist., No. 01-04-01116-CV, 2005 WL 3315254, at *1 (Tex. App.-Houston [1st Dist.] Dec. 8, 2005, no pet.) (mem. op.). And while judicial decisions generally apply retroactively, except as to cases that have already proceeded to final judgment, such retroactivity is "limited by the need for finality; once suit is barred by res judicata or by statutes of limitation or repose, a new rule cannot reopen the door already closed." Engelman Irrigation, 514 S.W.3d at 749-50.
The Supreme Court of Texas has held that there is a limited exception to res judicata. Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 950 (Tex. 1990). In Marino, the Court held that "res judicata is not a defense in a subsequent action if there has been a change in the material facts, the applicable statutory law, or the decisional law between the first judgment and the second suit." Id. at 950. (emphasis in original) "The rationale underlying this rule is that no judgment can affect subsequently arising rights and duties." Id.
III. Res judicata bars Foussadier's claims against Triple B.
Triple B argued in the trial court that there was a final determination on the merits regarding the same claims that Foussadier repleaded after the last appeal, which barred relitigation. The first summary judgment was severed from Foussadier's claims against the Department of Transportation in February 2018. Despite the fact that this summary judgment was appealed, it was final for the purpose of res judicata as of the date of its issuance in February 2018. Scurlock Oil, 724 S.W.2d at 6; Lesikar, 2014 WL 4374117, at *6. Because that judgment was not overruled, it retains its preclusive effect. See Watson, 2005 WL 3315254, at *1. This satisfies the first element of res judicata-that there be a prior final determination on the merits by a court of competent jurisdiction. See Travelers Ins., 315 S.W.3d at 862; Amstadt, 919 S.W.2d at 652.
The second element required to prove res judicata is identity of parties. See Travelers Ins., 315 S.W.3d at 862; Amstadt, 919 S.W.2d at 652. The parties to the first summary judgment were Foussadier and Triple B. Thus, the second element is also satisfied.
The third element required to prove res judicata is that the second action is based on the same claims as were or could have been raised in the first action. See Travelers Ins., 315 S.W.3d at 862; Amstadt, 919 S.W.2d at 652. Here, Foussadier's repleaded claims were the same as the claims that were the subject of the first summary judgment. Thus, the third element is also satisfied.
Despite the fact that Triple B has satisfied all three elements necessary for res judicata, Foussadier argues that B.C. substantively changed the law, and therefore the limited exception to res judicata in Marino applies. This case is, however, distinguishable from Marino because B.C. did not change the substantive law.
In Marino, an insured alleged that his insurer attempted to coerce him to sign a document releasing the insurer from liability by misrepresenting the contents of the document and denied his claim for fire damage without any investigation. 787 S.W.2d at 948. After a jury found in Marino's favor, the trial court rendered judgment awarding breach of contract damages for the insurer's failure to pay his claim. Id. About three weeks after rendition of judgment by the trial court, the Supreme Court of Texas "first recognized a tort cause of action for an insurer's breach of the duty of good faith and fair dealing. This common-law cause of action is generally referred to in a shorthand manner as a 'bad faith' claim." Id. at 949. Marino then filed a second lawsuit alleging that the insurer breached its common-law duty of good faith. Id. The trial court granted summary judgment for the defendants, and the court of appeals affirmed, concluding that the bad faith claim was barred by res judicata. Id.
The Supreme Court of Texas concluded that Marino's bad faith claim was not barred by res judicata because "the subsequent change in decisional law . . . not only conferred new rights upon Marino but created an entirely new common-law cause of action." Id. at 950. The Court held that "because Marino's 'bad faith' claim was based on rights subsequently acquired, it was not part of his former cause of action and therefore was not barred by res judicata." Id.
Foussadier argues that B.C. established a new substantive right to have his late-filed summary judgment evidence considered by the court of appeals. Appellant's Br. 14. We do not agree that B.C. established a new substantive right. In B.C., the Supreme Court of Texas identified what language in the appellate record would overcome the presumption that the trial court did not consider late-filed summary judgment evidence. B.C., 598 S.W.3d at 262. This does not afford any party a right to have late-filed summary judgment evidence considered, as that remains a matter of the trial court's discretion. See In re Est. of Mooney, No. 01-18-00096-CV, 2019 WL 3917427, at *7 (Tex. App.-Houston [1st Dist.] Aug. 20, 2019, no pet.) (mem. op.).
Foussadier also argues that the Supreme Court of Texas denied his petition for review of the first summary judgment because the controlling legal question in that appeal had just been answered by B.C., and he had "an adequate remedy to continue litigation in the trial court under the authority of Marino." Appellant's Br. 22. But this case is different from Marino. In Marino, the plaintiff raised a new claim-a bad faith claim-after receiving judgment on the verdict on his breach of contract claim. Here, Foussadier pleaded the exact same claim.
Furthermore, the late filed evidence, an expert report from Ray G. Helmer, P.E., would not have created a genuine issue of material fact because it was conclusory as to causation. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004) (conclusory statements are incompetent evidence that will not support a judgment or raise a fact issue to defeat summary judgment); see also Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) ("[I]t is the basis of the witness's opinion, and not the witness's qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixit of a credentialed witness."). Helmer opined that, based on his "personal review" of the roadwork project plans and other documents, Triple B "did not perform their contractually required roadway construction work properly," and "improperly compacted subgrade and base under the asphalt pavement of the shoulder." He did not explain what facts, measurements, or calculations led to that conclusion. Instead, he opined that "[n]ormal wear and tear should not have caused these extensive cracks and holes to occur within a period of less than a year after Triple B had completed its work."
We conclude that res judicata applies, and the trial court correctly dismissed Foussadier's claims against Triple B.
Conclusion
We affirm the judgment of the trial court.