Opinion
No. 05-03-01706-CV
Opinion issued July 13, 2005.
On Appeal from the 192nd District Court, Dallas County, Texas, Trial Court Cause No. 03-09062-K.
Affirmed.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
MEMORANDUM OPINION
Timothy Frazin appeals the trial court's summary judgment in favor of Michael A. Cohen on Frazin's breach of contract, unjust enrichment, and fraud claims. In six issues, Frazin argues the trial court erred in granting Cohen's motion for summary judgment on the ground that res judicata bars Frazin's claims and in sustaining Cohen's objections to Frazin's summary judgment evidence. We affirm the trial court's judgment.
After this case was submitted, Frazin filed a Motion for Partial Disposition in which he concedes his seventh, eighth, and ninth issues are not appropriate grounds for appeal. Accordingly, we will not address his seventh, eighth, and ninth issues.
During part of 1997, 1998, and 1999, Frazin and Cohen worked together in a business venture selling Beanie Babies and other products. In October 1999, Frazin signed a promissory note by which he promised to pay Cohen $225,000. In January 2001, Cohen sued Frazin to recover unpaid amounts under the note. In a series of answers, Frazin asserted various affirmative defenses and raised counterclaims of usury, slander, deceptive trade practices, fraud, breach of contract, unjust enrichment, and conversion. Frazin nonsuited his claims other than his claims for usury, deceptive trade practices, slander, defamation, and intentional infliction of emotional distress. All of Frazin's remaining counterclaims were adjudicated against Frazin by the trial court's September 10, 2002 summary judgment. Frazin did not appeal from that judgment.
On December 30, 2002, Frazin filed his original petition in the underlying case against Cohen. In his petition, he raised the same breach of contract, unjust enrichment, and fraud claims he raised as counterclaims in the prior suit. Cohen filed a motion for summary judgment on the grounds that res judicata barred Frazin's claims. The trial court granted Cohen's motion, and this appeal followed.
In his first and second issues, Frazin argues the trial court erred in granting Cohen's motion for summary judgment because Cohen failed to offer any evidence that the pleadings attached to Cohen's summary judgment motion were the live pleadings at the time of the adjudication of the prior lawsuit or that the "Final Judgment" attached to the motion was actually the final judgment in the prior lawsuit. Frazin did not object to Cohen's motion for summary judgment on these grounds in the trial court. The summary judgment non-movant, in a written answer or response to the motion, must expressly present to the trial court those issues that would defeat the movant's right to summary judgment, such as the failure of the movant to attach certified copies of a prior case to establish res judicata. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). Failing to do so, the non-movant may not assign those issues as error on appeal. Id. Accordingly, we conclude Frazin has not preserved these issues for our review. See id. We overrule Frazin's first and second issues. In his third, fourth, and fifth issues, Frazin argues the trial court erred in granting summary judgment and dismissing his claims on the basis that they were barred by res judicata. In reviewing the trial court's decision to grant summary judgment, we apply well-known standards. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). Res judicata precludes relitigation of claims that have been finally adjudicated or that arise out of the same subject matter and could have been litigated in the prior action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). 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 as 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). Texas follows the transactional approach to res judicata in determining what claims should have been brought, if they could have been, in a prior action. Barr, 837 S.W.2d at 630-31. Under the transactional approach, a judgment in a previous suit precludes a second action by the parties on matters actually litigated and on causes of action arising out of the same subject matter and that might have been litigated in the first suit. Id. at 630.
Frazin argues specifically that res judicata does not bar his claims because they were non-suited without prejudice in the prior suit, Cohen failed to establish that the claims adjudicated in the prior suit arose out of the same transaction as the claims sought to be barred, and there was evidence to show the claims arose out of a different transaction. Voluntarily withdrawn claims are still subject to the doctrine of res judicata. Antonini v. Harris County Appraisal Dist., 999 S.W.2d 608, 614 (Tex.App.-Houston [14th Dist.] 1999, no pet.); Jones v. Nightingale, 900 S.W.2d 87, 90 (Tex.App.-San Antonio 1995, writ ref'd); see Barr, 837 S.W.2d at 631 (subsequent suit barred if it arises out of same subject matter of previous suit and, through exercise of diligence, could have been litigated in prior suit). We have reviewed the record, and it reflects that Frazin's claims in the underlying case were either raised in the original lawsuit or were directly related to those claims. Under these circumstances, the trial court did not err in concluding Frazin's claims were barred by res judicata. See Barr, 837 S.W.2d at 631; Jones, 900 S.W.2d at 90. We overrule Frazin's third, fourth, and fifth issues.
In his sixth issue, Frazin argues the trial court erred in sustaining Cohen's objections to certain summary judgment evidence. Specifically, Frazin complains of the trial court's exclusion of his affidavit attempting to distinguish the claims in the original lawsuit from the claims in the underlying suit, along with certain financial records and records of proceedings in the original lawsuit. We review a trial court's decision to admit or exclude summary judgment evidence under an abuse of discretion standard. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Double Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 852 (Tex.App.-Dallas 2003, no pet.). Cohen objected to Frazin's summary judgment evidence as a collateral attack on the trial court's judgment in the original lawsuit. If, as here, an appeal is not timely perfected from a final judgment, res judicata bars a subsequent collateral attack on the judgment. See Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990); West Oso Indep. Sch. Dist. v. Paisano Minerals, 661 S.W.2d 300, 301 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.). Accordingly, we conclude the trial court did not abuse its discretion in sustaining Cohen's objections to Frazin's summary judgment evidence. See Owens-Corning, 972 S.W.2d at 43. We overrule Frazin's sixth issue.
We affirm the trial court's judgment.