Jones v. Jones

888 S.W.2d 849, 1994 WL 510237

Opinions

OPINION

ANDELL, Justice.

This is an appeal from a summary judgment granted in a bill of review proceeding. The plaintifl7appellant is Marilyn Jones (Marilyn). The defendant/appellee is William Ward Jones (the Estate), executor of the estate of Royce M. Jones (Royce), deceased. We affirm.

The Facts

Marilyn and Royce were first married in May, 1964. They divorced in 1966, but remarried in November, 1969. They divorced again in May, 1973. Marilyn claims that after the latest divorce, she and Royce entered into a common law marriage. Royce died in September, 1984. At various times after Royce’s death, Marilyn filed lawsuits against the Estate, including the four discussed (in chronological order) below.

The first of the four, cause number 195,-819-401, was brought in Harris County Probate Court Number One, and sought to collect child support allegedly owed Marilyn by Royce. Marilyn was represented by counsel in this lawsuit. The disposition of this lawsuit is not relevant to this appeal.

The second, cause number 195,819-003 (lawsuit 003), was also brought in Harris County Probate Court Number One, and contésted Royee’s will. Marilyn alleged that Royce had concealed his ownership interest in Star Cooling Towers, Inc., from her, and that the Estate had exercised undue influence on Royce in order to

avoid permitting [Marilyn] to learn [sic] about the existence of and seek recovery of her Community Property share of the stock in Star Cooling Towers, Inc. D/B/A Jones Cooling Towers Co.; Star Cooling Towers, Inc. of Houston; Jones Cooling Towers Co.; and Park-Jones Cooling Towers Co., which was concealed from her at the time of her second divorce in 1978 and throughout her marriage.

Marilyn was represented by counsel in this lawsuit.

The third, cause number 195,819-402 (lawsuit 402), was also brought in Harris County Probate Court Number One. Star Cooling Towers, Inc., Star Cooling Towers, Inc. D/B/A Jones Cooling Towers Co., Star Cooling Towers, Inc. of Houston, Park-Jones Cooling Towers Co., and Jones Cooling Towers Co. were named as defendants along with the Estate. Marilyn alleged that:

(1) Royce “knowingly concealed his ownership ... of Star Cooling Towers, Inc.” from her, and in another.place in the petition, that Royce lied about what property he owned, intentionally “fail[ing] to disclose his true estate... .”;

(2) the defendants committed “fraudulent acts ... in concealing and misrepresenting the existence of property belonging to the community,” referring to Royce’s stock in Star Cooling Towers, Inc.;

(3) the goal of the defendants in committing these acts was “to defraud [Marilyn] out of her community property rights arising from her common law marriage to [Royce] in 1973 and her earlier two marriages to [Royce]”; and

(4) she “would not have agreed to the divorce in 1973 ... without a division of the concealed property had [she] known about the fraudulent concealment.”

Marilyn agreed to dismiss “all causes of action” in lawsuit 003. The trial court dismissed that lawsuit on October 3, 1990.

The defendants moved for summary judgment in lawsuit 402. On October 15, 1990, the trial court granted the defendants’ motions in lawsuit 402 and entered final judgment against Marilyn in that lawsuit. The judgment concludes with the following language:

It is therefore ORDERED, ADJUDGED and DECREED that any and all claims and causes of action against all Defendants asserted by [Marilyn] ... are in all things denied in [lawsuit 402].

All relief no [sic] expressly granted herein is denied.

At some point during the pendency of lawsuit 402, Marilyn, represented by counsel, filed a bill of review (the bill of review proceeding) in the Bexar County court in which she and Royce were divorced in 1973. The parties dispute when the bill of review was filed, and it is not in the record. However, Marilyn’s first amended bill of review is in the record. In that pleading, Marilyn alleges that she “learned on or about August 22, 1986 that Royce ... had concealed property from her ... specifically his ownership interest in a business ... called Star Cooling Towers, Inc.” Elsewhere in the petition, she states that she suffered “fraudulent concealment” of the property “by her husband....”

On March 20, 1992, the bill of review proceeding was transferred to Harris County Probate Court Number One and assigned cause number 195,819-402. On April 19, 1992, Marilyn’s attorney withdrew, and she proceeded pro se.

The Estate filed a motion for summary judgment in the bill of review proceeding on October 27,1992. The Estate asserted three grounds for summary judgment:

(1) the final judgment in lawsuit 402 precludes any recovery by Marilyn in the bill of review proceeding because of the doctrine of res judicata;

(2) the stock in which Marilyn asserts an interest in the bill of review proceeding did not exist at the time of her divorce from Royce in 1973; and

(3) the statute of limitations expired on Marilyn’s cause of action for fraudulent concealment before she brought the bill of review proceeding.

A hearing on the Estate’s motion was set for November 19, 1992.

Marilyn failed to file a response to the Estate’s motion seven days prior to the date of the hearing. Through an attorney, she filed a response to the Estate’s motion on the day of the hearing, but it was filed without seeking leave of court to do so.¹ At the hearing, Marilyn, through her attorney, filed a motion for continuance, asking that the hearing be postponed for at least 15 days. The trial court denied the motion.

The trial court refused to consider Marilyn’s response because it was untimely. The court granted the Estate’s motion without specifying the grounds on which it did so.

Marilyn filed a motion for new trial on December 10, 1992, and a second motion for new trial on December 23. The trial court denied the second motion on January 14, 1993.

The Sufficiency of the Estate’s Summary Judgment Proof

In point of error one, Marilyn contends that the Estate’s summary judgment proof was “legally insufficient.” Marilyn attacks three of the Estate’s exhibits: exhibit A, a copy of the 1990 final judgment in lawsuit 402; exhibit C, a copy of the third amended original petition in lawsuit 003; and exhibit D, a copy of the third amended original petition in lawsuit 402. The Estate used these exhibits to support its res judicata argument in its motion for summary judgment. Marilyn complains of exhibit A because it is a copy, not a certified copy; of exhibit C because it had been superseded by a later pleading; and of exhibit D because it is a copy, not a certified copy.

We hold, however, that Marilyn’s failure to make these complaints to the trial court in a timely manner waives them on appeal. Texas Rule of Civil Procedure 166a(f) provides in relevant part as follows:

Defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity, but refusal to amend.

Tex.R.Civ.P. 166a(f). Marilyn did not make a timely objection to any alleged defects in the form of the Estate’s summary judgment evidence; her only response to the Estate’s motion was untimely. Even in her untimely response, Marilyn did not object to exhibits C and D.

A party loses its right to complain on appeal of alleged defects in the form of the summary judgment movant’s evidence by not making a timely objection in the trial court. See Republic Bankers Life Ins. Co. v. Wood, 792 S.W.2d 768, 774-75 (Tex.App.—Fort Worth 1990, writ denied). These alleged defects of form might easily have been cured had they been pointed out in a timely response. See id. Marilyn has waived her right to bring this complaint on appeal. See id.

In McIntire v. McIntire, 702 S.W.2d 284 (Tex.App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.), the nonmovant complained for the first time on appeal that an uncertified copy of a divorce decree was not a proper basis for the trial court to have granted summary judgment on the ground of res judicata. Id. at 286. We held that the appellant waived his right to complain about the uncertified copy of the decree because he did not raise the issue in the trial court. Id. The same principles apply here to exhibits A and D.²

In any event, the Estate’s summary judgment proof was sufficient. Marilyn objects on appeal to exhibit A, a copy of the 1990 final judgment in lawsuit 402, and exhibit D, a copy of the third amended original petition in lawsuit 402, arguing that “[w]hen a motion for summary judgment is based on the defense of res judicata, certified copies of prior proceedings are required. This is true even where the prior proceeding took place in the same court.”

No citation of authority follows these assertions, and we find the law to be to the contrary:

Generally, a trial court may take judicial notice of its own records in the same case.... [I]n a summary judgment case, the trial court may judicially notice the documents and orders which are a part of its record in the present case since they are ... already on file and available for the court’s consideration at the hearing.

McCurry v. Aetna Casualty & Surety Co., 742 S.W.2d 863, 867-68 (Tex.App.—Corpus Christi 1987, writ denied). Here, in considering exhibits A and D, the judge considered two documents from his own court with the same cause number as the action over which he was then presiding. It was proper for the court to do so. Because the trial court could take judicial notice of the documents of which exhibits A and D are copies, the Estate need not have attached copies of them to its motion for summary judgment, anyway.

Marilyn complains of exhibit C, a copy of the third amended original petition in lawsuit 003, because it was superseded by a fourth amended original petition. While the record reflects that this is true, we find no significance in this fact. The Estate attached the copy of the third petition because it contained some of the same allegations as those made in lawsuit 402. The same allegations made in the third petition are also contained in the fourth petition. Had these allegations been omitted in the fourth petition, and thus abandoned, we might have reached a different conclusion. Here, though, where the same allegations were made in the later pleading, we find no problem with the Estate’s attachment of the third petition as summary judgment proof.³

We overrule point of error one.

Res Judicata

In point of error two, Marilyn contends that the evidence shows that there are genuine issues of material fact. She argues that res judicata does not apply here.

The doctrine of res judicata declares that: [A] cause of action once finally determined between the parties on the merits by a competent tribunal cannot afterward be litigated by new proceedings. The judgment in the first suit precludes a second action by the parties ... on matters actually litigated and on causes of action ... arising out of the same subject matter that might have been litigated in the first suit.

Gracia v. RC Cola-7 Up Bottling Co., 667 S.W.2d 517, 519 (Tex.1984).

Stated another way, “[a] subsequent suit will be barred if it arises out of the same subject matter of a previous suit and which through the exercise of diligence could have been litigated in a prior suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627, 631 (Tex.1992). The doctrine of res judicata preserves the sanctity of judgments; it bars subsequent collateral attacks on a final judgment. Matthews Construction Co. v. Rosen, 796 S.W.2d 692, 694 (Tex.1990).

In lawsuit 402, Marilyn alleged that Royce “knowingly concealed his ownership ... of Star Cooling Towers, Inc.” from her, and that Royce lied about what property he owned, intentionally “fail[ing] to disclose his true estate....” The judgment disposing of Marilyn’s claims in lawsuit 402 recites that any and all claims and causes of action against all defendants, including the Estate, Star Cooling Towers, Inc., Star Cooling Towers, Inc. D/B/A Jones Cooling Towers Co., Star Cooling Towers, Inc. of Houston, Park-Jones Cooling Towers Co., and Jones Cooling Towers Co., “asserted by [Marilyn] ... are in all things denied.”

Marilyn’s first amended bill of review, her live pleading at the time the trial court rendered summary judgment in the bill of review proceeding, names the Estate as the defendant and alleges that “Royce ... had concealed property from her ... specifically his ownership interest in a business ... called Star Cooling Towers, Inc.,” and that she suffered “fraudulent concealment” of the property “by her husband_” This claim, however, had already been resolved against Marilyn, by a court of competent jurisdiction, on the merits, in lawsuit 402, a lawsuit brought by the same plaintiff against the same defendant via the same cause of action for the same alleged wrongful act perpetrated by the same person concerning the same subject matter.⁴ Therefore, the bill of review proceeding was precluded by the doctrine of res judicata.⁵

Having concluded that the summary judgment was proper because of the doctrine of res judicata, we need not address the validity of the Estate’s other two grounds for summary judgment. When a trial court’s summary judgment order does not specify the ground on which summary judgment is granted, the summary judgment will be affirmed if any of the grounds asserted in the motion are meritorious. Home Indemnity Co. v. Pate, 814 S.W.2d 497, 500 (Tex.App.—Houston [1st Dist.] 1991, writ denied).

We overrule point of error two.

Marilyn’s “day in court”

In point of error three, Marilyn contends that “[t]he trial court erred in granting the Estate’s motion for summary judgment because [she] was denied her opportunity to have her day in Court.” The trial court’s decision to terminate Marilyn’s bill of review proceeding via summary judgment was, on this record, a correct one. Marilyn was given a fair, legitimate opportunity in court, but simply lost on a valid defense motion.

We overrule point of error three.

Conclusion

The trial court was correct in granting summary judgment to the Estate. Marilyn’s claims are barred by the doctrine of res judicata, and Marilyn waived her right to complain of the Estate’s proof of such. The proof was, in any ease, sufficient.

We affirm the judgment of the trial court.

HUTSON-DUNN, J., concurring and dissenting.

1 . See Tex.R.Civ.P. 166a(c).

2 . McIntire was decided under TexR.App.P. 166a(e) as it existed in 1985. 702 S.W.2d at 286. In 1990, an amendment to rule 166a inserted a new subsection d, and simply redesignated subsection e as the current subsection f.

3 . We therefore reject Marilyn’s argument that "[a] pleading which has been amended and superseded cannot support a Motion for Summary Judgment on the issue of res judicata.” Marilyn cites no authority to support this proposition, but refers to Tex.R.Civ.P. 65 in her discussion. Rule 65 states that, subject to certain conditions, a pleading for which another is substituted "shall no longer be regarded as a part of the pleading in the record of the cause[J" Tex.R.Civ.P. 65. Applied here, this means only that Marilyn's third petition in lawsuit 003 was superseded for the purposes of lawsuit 003. Rule 65 does not forbid the Estate’s use of the third petition in lawsuit 003 to support its res judicata argument, where the allegations in the third petition that are the subject of the res judicata claim were repeated in the last petition in that lawsuit, the fourth petition.

4 . We are mindful that lawsuit 402(1) named other defendants besides the Estate, and (2) alleged other wrongful acts perpetrated by other persons, in addition to Royce’s alleged fraudulent concealment of his interest in Star Cooling Towers, Inc. Nevertheless, the fact remains that Marilyn, in both lawsuit 402 and the bill of review proceeding, sued the Estate alleging fraudulent concealment by Royce for his alleged concealment of his interest. That lawsuit 402 also involved other defendants and other allegations against other persons in addition to the fraudulent concealment allegation against Royce does not preclude lawsuit 402 from being the basis of a valid res judicata defense in the subsequent bill of review proceeding. The res judicata requirements that the parties be identical in both suits and that the same cause of action be involved in both suits, see Sutherland v. Cobern, 843 S.W.2d 127, 130 (Tex.App.—Texarkana 1992, writ denied), are met here.

5 . Even if res judicata did not apply here on the ground discussed above, Marilyn clearly could have litigated the matters set forth in the bill of review proceeding in lawsuit 402. Res judicata would apply on this ground, as well. Gracia, 667 S.W.2d at 519.