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concluding that because the earlier judgment HISD relied upon to support its res judicata argument was reversed, the summary judgment on appeal must likewise be reversed
Summary of this case from Schmidt v. WardOpinion
No. 01-04-01116-CV
Opinion issued December 8, 2005.
On Appeal from 334th District Court, Harris County, Texas, Trial Court Cause No. 2004-25165.
Panel consists of Justices NUCHIA, JENNINGS, and HIGLEY.
MEMORANDUM OPINION
Appellant, Ina Watson, appeals a summary judgment granted in favor of appellee, Houston Independent School District ("HISD"). HISD's motion for summary judgment was based solely on the affirmative defense of res judicata. In support of its motion, HISD proved that it had previously obtained a summary judgment against Ina's husband, Frank Watson, in another lawsuit. HISD asserted that the earlier summary judgment against Frank should be given preclusive effect with respect to Ina's claims.
The facts are well known to the parties but are briefly summarized as follows. Frank was employed by HISD as an assistant superintendent. After HISD terminated his employment, Frank filed suit alleging that he was dismissed for reporting corrupt activities related to HISD's privatization of its employee health care program and asserting various causes of action. HISD moved for summary judgment contending that Frank had waived his right to file suit because he had accepted a lump sum post-termination payment from HISD pursuant to his employment contract. HISD also contended that the payment made Frank's claims moot. After the district court granted HISD's motion for summary judgment against Frank, Ina filed the underlying suit, alleging that Frank's termination violated the Texas Open Meetings Act. See Tex. Gov't Code Ann. 551.001-.146 (Vernon 2004).
HISD noted in its motion for summary judgment that Frank had appealed the earlier judgment to the Fourteenth Court of Appeals. Citing Scurlock Oil v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986), HISD contended that the earlier judgment retained its preclusive effect while Frank's appeal was pending. Before the Fourteenth Court of Appeals issued its opinion in Frank's appeal, the trial court granted HISD's motion for summary judgment against Ina based on the preclusive effect of the earlier judgment against Frank. Ina then filed the instant appeal.
On August 9, 2005, the Fourteenth Court of Appeals issued its opinion in Frank's appeal. The court reversed the summary judgment against Frank and remanded the cause to the district court for further proceedings. See Watson v. Houston Indep. Sch. Dist., No. 14-03-01202-CV, 2005 WL 1869064, *7 (Tex.App.-Houston [14th Dist.] Aug. 9, 2005, no pet.). That reversal changes the complexion of this appeal. Accordingly, we examine the effect of the reversal on HISD's res judicata defense.
An appellate court may take judicial notice of a sister appellate court's action in another case. See Collins v. Guinn, 102 S.W.3d 825, 829 n. 2 (Tex.App.-Texarkana 2003, pet. denied); In re Trevino, 79 S.W.3d 794, 795 (Tex.App.-Corpus Christi 2002, orig. proceeding.).
To establish its affirmative defense of res judicata, HISD was required to show that the earlier judgment against Frank was a final judgment on the merits rendered by a court of competent jurisdiction. See Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996) (listing elements of res judicata). The earlier judgment against Frank is no longer a final judgment because a reversed judgment is generally nullified, leaving it as if it had never been rendered other than as to further rights of appeal. See Flowers v. Flowers, 589 S.W.2d 746, 748 (Tex.Civ.App.-Dallas 1979, no writ).
This Court has previously concluded that, when an appellate court reverses the first judgment, the finality necessary for claim or issue preclusion is eliminated. J.J. Gregory Gourmet Servs., Inc. v. Antone's Imp. Co., 927 S.W.2d 31, 34 (Tex.App.-Houston [1st Dist.] 1995, no writ); see Frazin v. Hanley, No. 05-03-00014-CV, 2004 WL 516168, at *1-2 (Tex.App.-Dallas Mar. 27, 2004, no pet.) (mem. op.) (reversing summary judgment based on res judicata and other defenses derived from preclusive effect of earlier judgment because earlier judgment had been reversed on appeal). As was recognized by the Scurlock Oil court, "[a] judgment in a second case based upon the preclusive effects of a prior judgment should not stand if the first judgment is reversed." 724 S.W.2d at 6 ( citing Butler v. Eaton, 141 U.S. 240, 243, 11 S. Ct. 985, 986-87 (1891)).
Because the earlier judgment, on which HISD relies, has been reversed, the summary judgment rendered against Ina cannot stand. Frazin, 2005 WL 1869064, at *1-2. We hold that, at this time, HISD cannot assert the affirmative defense of res judicata, as derived from the earlier summary judgment against Frank, to defeat Ina's claims. We reverse the judgment of the trial court and remand this case for further proceedings.