Opinion
No. 01-10-01151-CV
Opinion issued October 27, 2011.
On Appeal from the 125th Judicial District Court, Harris County, Texas, Trial Court Case No. 887109.
Panel consists of Chief Justice RADACK and Justices BLAND and HUDDLE.
MEMORANDUM OPINION
Mark McShaffry appeals a summary judgment entered in favor of LBM-Jones Road, L.P., LBM-Jones Road, G.P., Inc., Lee Gittleman, WDJ Management, L.L.C., and Gerald Peter Jacob (collectively, "LBM"). At trial, LBM moved for summary judgment on the basis of the res judicata and collateral estoppel effect of a county court judgment involving these parties and subject matter. We conclude that McShaffry briefed the res judicata issue but does not address any error in the judgment based on collateral estoppel. As the trial court's summary judgment can stand on the issue that McShaffry did not brief, we affirm.
Background
LBM leased commercial property on Jones Road to Zephyr Fallbrook Partners, L.P. ("Zephyr") for the purpose of operating a pizza restaurant. Mark McShaffry, David Gerow and Jonathan Brindsen signed the lease as guarantors in the event of a default. In a separate contribution agreement, McShaffry, Brindsen and Gerow agreed to certain obligations and rights as partners of Zephyr. Zephyr became insolvent and defaulted on its lease obligations to LBM.
In January 2007, LBM sued Zephyr in Harris County Civil Court No. 3 for breach of the lease agreement and sued Gerow, McShaffry and Brindsen as guarantors on the lease. Although all defendants appeared and answered the suit, McShaffry and Gerow did not appear for trial. At that bench trial, the county court heard testimony from Gerald Jacob, a principal in the company that manages and leases property on behalf of LBM. Jacob testified about the status of the leased property and the damages for a default under the lease. The county court then entered a final judgment in favor of LBM for $675,563.37, holding Gerow and McShaffry jointly and severally liable as guarantors on the lease. The final judgment dismissed Zephyr and Brindsen from the lawsuit.
Pursuant to a settlement agreement, LBM assigned Brindsen the county court judgment. After efforts to collect the judgment from McShaffry were unsuccessful, the court appointed a receiver to collect the county court judgment.
In April 2010, McShaffry filed this lawsuit in district court. McShaffry claimed that LBM: (1) interfered with the contribution contract between McShaffry, Brindsen and Gerow by settling with Brindsen and assigning the county court judgment to him; and (2) engaged in fraud by providing false testimony at trial. Specifically, McShaffry asserted that LBM had settled with Brindsen and then, pursuant to the settlement agreement, agreed to participate in a "sham" trial in the county court and assign the resulting judgment to Brindsen.
LBM moved for summary judgment on the basis of res judicata and collateral estoppel, contending that McShaffry's suit presented an impermissible collateral attack on the county court judgment. McShaffry responded that res judicata did not bar his claims because his claims against LBM did not accrue until after the county court had entered a judgment against him. The trial court granted summary judgment in favor of LBM.
Discussion
Standard of Review
An appellate court reviews de novo a trial court's ruling on a summary judgment motion. Mann Frankfort Stein Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To succeed on a summary judgment motion under Texas Rule of Civil Procedure 166a(c), a movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrisson Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for summary judgment on an affirmative defense must prove each element of its defense as a matter of law, leaving no issues of material fact. Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 n. 10 (Tex. 2005). Res judicata and collateral estoppel are affirmative defenses. TEX. R. CIV. P. 94.
To conclusively establish a matter, the movant must show that reasonable minds could not differ as to the conclusion to be drawn from the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex. 2005). The evidence is reviewed in the light most favorable to the non-movant, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). When, as here, a trial court's order granting summary judgment does not specify the grounds relied upon, we affirm the summary judgment if any of the summary judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000).
Analysis
When multiple grounds for summary judgment exist and the trial court does not specify the ground on which it granted summary judgment, an appellant must negate on appeal all possible grounds. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.-Houston [1st Dist.] 2002, no pet.). If the appellant fails to negate each possible ground upon which the judgment may have been granted, an appellate court must uphold the summary judgment. See Ellis, 68 S.W.3d at 898. An appellant also may assert a general complaint that the trial court erred in granting summary judgment. See Malooly Bros. Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). McShaffry, however, makes no such assertion.
LBM moved for summary judgment against McShaffry on the grounds of res judicata and collateral estoppel. Res judicata and collateral estoppel are independent affirmative defenses. Because the order granting summary judgment did not specify the particular grounds on which it was rendered; McShaffry must defeat each of these grounds. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
We conclude McShaffry has not briefed the alternative ground of collateral estoppel. See Williams v. Crum Forster Commercial Ins., 915 S.W.2d 39, 42-43 (Tex. App.-Dallas 1995) (noting that issue is waived when appellant fails to cite legal authority in support of issue, as required by rules of appellate procedure, and thereby affirming summary judgment because appellant had not properly challenged each ground asserted in support of summary judgment), rev'd on other grounds, 955 S.W.2d 267 (Tex. 1997). McShaffry offers no discussion on the ground of collateral estoppel. Rather, McShaffry confines his appeal to res judicata, asserting as his claimed error: "The trial court erred in granting Appellees' res judicata Motion for Summary Judgment because McShaffry did not have a claim against Appellees until after the trial court entered a Judgment resolving all claims against all parties in the previous lawsuit." McShaffry offers no legal analysis, argument, citations to the record, nor any authorities to support his contention on appeal that his claims are not barred by collateral estoppel. See TEX. R. APP. P. 38.1(h).
Because the trial court could have granted summary judgment on the basis that McShaffry's claims were barred by either res judicata or collateral estoppel, and McShaffry did not brief the collateral estoppel ground, we must affirm the summary judgment. See Ellis, 68 S.W.3d at 898; Iglesia Hispana Nueva Vida Houston, Inc. v. Rosin, No. 01-06-00048-CV, 2007 WL 1633723, at *3 (Tex. App.-Houston [1st Dist.], June 7, 2007, no pet.) (mem. op.) (affirming summary judgment on collateral estoppel because appellant did not address it as a possible ground for trial court's summary judgment ruling); McIntyre v. Wilson, 50 S.W.3d 674, 681-82 (Tex. App.-Dallas 2001, pet. denied) (upholding summary judgment because trial court could have granted summary judgment on ground that appellant failed to adequately brief, by offering no discussion on issue, making passing reference to ground in other issues, and citing generally to law review article).
We note that, were we to decide it, our review of McShaffry's appellate complaint about the trial court's summary judgment based on res judicata does not reveal a basis for reversal.
Conclusion
We conclude that the claims of error on appeal do not challenge all grounds that support the trial court's summary judgment. Accordingly, we affirm the judgment of the trial court.