Opinion
No. 06-08-00119-CV
Date Submitted: May 18, 2009.
Date Decided: June 5, 2009.
On Appeal from the Fourth Judicial District Court Rusk County, Texas, Trial Court No. 2007-418.
Before MORRISS, C.J., CARTER and MOSELEY, JJ.
MEMORANDUM OPINION
Albert O. Freeman is again before this Court, in reference to a 1.3-acre tract of land near Lake Cherokee. The bounds of that property were finally determined in an opinion by this Court in which we affirmed a jury finding that Freeman had adversely possessed the property. As a part of that judgment, the boundary of the property and its ownership were specifically determined and locations specified in detail. The result is that Freeman has ownership of a piece of property surrounded on three sides by Cherokee Water Company property, and the fourth (north) side — the side facing the lake — is the boundary that is the subject of the current controversy.
I. The Continuing Controversy
The property at bar is immediately southeast of Lake Cherokee, and within very close proximity to the lake. Cherokee Water Company placed a fence on the boundary line between Freeman's property and the lake; Freeman takes umbrage at its existence and admittedly removed it on two occasions. Cherokee sought damages for trespass and conversion, as well as an injunction (ordering Freeman not to take down the fence again), and later added a claim seeking declaratory relief. The court entered a summary judgment in favor of Cherokee on liability, and the parties filed stipulations resolving the remaining issues regarding damages and attorney's fees.
II. Is the Fence Properly Located?
In three points of error that overlap and essentially merge, Freeman argues that the trial court erred in rendering judgment. He contends (1) that there is a fact issue about whether the fence was placed on the actual boundary between that owned by Lake Cherokee and that owned by Freeman and (2) that there is conflicting evidence about the proper location to place the fence. The only real issue raised by Freeman involves the placement of the fence. Freeman argues that there are fact issues to be decided and that summary judgment was improper.
The property is the "Park A Lot," which is effectively surrounded by property owned by Cherokee. Cherokee hired a surveyor to mark the boundary between Park A Lot and Lot SQ-1. Freeman argues that the boundary is about ninety feet north of the location marked by the surveyor. The trial court independently appointed a surveyor to determine whether the fence along the northern boundary conforms with the judgment of the trial court (as affirmed by this Court). The surveyor, Dwayne Miley, testified that the fence was not located on Park A Lot (and thus was not impinging on Freeman's property) — with one exception. He testified that the fence was 5-3/4 inches south of the north boundary line (and thus on Freeman's property) at one survey shot. However, he went on to testify that all of the remaining survey shots showed that the remainder of the fence was actually north of the boundary line, and therefore was not on Freeman's property. Cherokee amended its motion for summary judgment to include those findings as summary judgment evidence.
In his response to the motion for summary judgment, Freeman attached summary judgment proof consisting of plats, pleadings from the previous litigation (and affidavits originally filed in that litigation), a copy of our opinion in cause number 06-03-00168-CV, and an affidavit from Johnny Freeman. Johnny Freeman's affidavit sets out the basis of Freeman's claim: that his father, in 1957, built an earth pier into the lake, with a canal alongside it, presumably to haul boats on and to fish from, and that the newly constructed fence bisects that pier. Freeman argues this evidence is proof that he owned the property, including the pier, and that the fence was thus unlawfully placed.
This argument misses the point. The location of the boundary lines was specified in the 2002 judgment of the trial court, which was affirmed by this Court. This is a final judgment. The location of the property line has been judicially determined. The discussion in our previous opinion regarding the earthen dam was a recitation of some of the evidence of Freeman's adverse possession of the lot, not a portion of the lot's description. Assuming that the correct location line can be determined from that prior judgment, the only question is whether the location as judicially determined was properly translated to an actual location on the ground. Cherokee Water Co. v. Freeman, 145 S.W.3d 809 (Tex.App. 2004, pet. denied).
This issue is aligned with the discussion of the description of the property in our previous opinion. We acknowledged that the litigation was largely caused by disagreement about the actual location of the property on the ground and whether the written description of the location accurately described the property. Id. at 820. We concluded that the map and plat attached to the trial court's judgment was adequate to show the physical location of the property and affirmed the trial court's judgment which placed the boundaries at the locations shown by those instruments.
In one aspect of his argument in this appeal, Freeman now stands in the position of arguing that the boundaries shown by those instruments are not correct. He refers in his response to the motion for summary judgment to the expert opinions of Gary Bailey, K. C. Lust, and Perry Thompson as to the location of the northwest corner of Park Lot A, which he states is ninety feet deep in the lake. Our record contains such an affidaivt only from Lust.
A copy of Lust's affidavit is attached to the response. It is dated July 23, 2001, and was evidently part of the evidence at the prior trial. From our reading of the brief, Freeman does not argue that the survey line establishing the fence inaccurately traces the description in the previous judgment, but argues that the boundary should be established from surveys done before the boundary line was finally resolved in the judgment. The summary judgment evidence shows, through the affidavits of the two surveyors involved, that the fence was built correctly on the boundary line as set out by the prior judgment of the district court — and affirmed by this Court.
Even if Lust's affidavit were relevant at this juncture, it is so rife with qualifying language that it simply does not specify a correct location, it specifies where a location may be found based on information given by Freeman.
III. Res Judicata
Cherokee, among other things, contends that the judgment in its favor was correct because res judicata requires such. It argues that under our prior opinion, as a matter of law, the location of the property has been finally determined, and res judicata requires such.
An appellate court reviews de novo the trial court's summary judgment. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A defendant is entitled to summary judgment on an affirmative defense if it conclusively proves each element of the defense asserted. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996); Joachim v. Travelers Ins. Co., 279 S.W.3d 812, 815 (Tex.App.-Amarillo 2008, pet. filed). When the material facts are undisputed, the nonmovant may defeat a motion for summary judgment by establishing that the movant's legal position is unsound. Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 90 (Tex.App. 1996, writ denied).
Res judicata is an affirmative defense treated as a plea in bar which reaches the merits of the case. Tex. R. Civ. P. 94 (citing Tex. Hwy. Dep't v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967)).
Res judicata, also known as claim preclusion, 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); Pyles v. Young, No. 06-07-00066-CV, 2007 WL 4462738 (Tex.App. Dec. 21, 2007, no pet.) (mem. op.). Texas follows the transactional approach to res judicata. Barr, 837 S.W.2d at 630. This approach mandates 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. 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).
In this case, there is no doubt that all three elements are present. The summary judgment proof contains copies of the plats and maps that were part of the underlying judgment, which we affirmed. Those documents show on their face the location of the north boundary of the property. The summary judgment proof from the two surveyors involved in this instance was that the fence was on that boundary line. The claim concerning the proper location of the boundary lines either was or could have been raised in the preceding lawsuit.
There is neither summary judgment evidence that it was not on that boundary line, nor is there any argument to that effect. The argument is that the boundary was elsewhere.
The same parties are involved. The courts involved clearly had jurisdiction over the matters raised therein, and the judgment of this Court in the preceding case is final.
Under these circumstances, we conclude that the concept of res judicata terminates the question of the location of the boundary and that in the absence of allegation or evidence that the fence as built was not on that previously judicially determined boundary line, the trial court properly rendered summary judgment in favor of Cherokee.
We affirm the judgment.