IN THE
TENTH COURT OF APPEALS
No. 10-04-00255-CV
In the Interest of M.S.D., a minor child
From the 411th District Court
Polk County, Texas
Trial Court No. PC03116
MEMORANDUM Opinion
The Attorney General appeals the trial court’s decision to grant a summary judgment in favor of Larry LaBove, the defendant in a paternity action, based on his claims of collateral estoppel and res judicata. Because LaBove did not conclusively establish the elements of either collateral estoppel or res judicata, we reverse the trial court’s judgment.
A defendant moving for summary judgment on an affirmative defense has the burden to establish conclusively that defense. McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003);
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Collateral estoppel and res judicata are affirmative defenses. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 802 (Tex. 1994); see also Tex. R. Civ. P. 94.
Collateral Estoppel
Collateral estoppel precludes the relitigation of issues that were actually litigated, essential to the judgment in a prior suit, and identical to the issue(s) in the pending action. Johnson & Higgins v. Kenneco Energy, 962 S.W.2d 507, 521 (Tex. 1998); Van Dyke v. Boswell, O'Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985). Actual litigation occurs when an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined. Van Dyke, 697 S.W.2d at 384.
LaBove claims the Attorney General is collaterally estopped from relitgating the issue of whether LaBove was M.S.D.’s father because the Department of Protective and Regulatory Services had previously brought suit and the court determined that LaBove was not the father of M.S.D. The summary judgment evidence does not conclusively establish that the issue of whether LaBove was M.S.D.’s father was actually litigated. The paternity issue was not raised by the Department’s pleadings. Although a request was made to determine whether LaBove was a father, no specific child was linked to that request. There is no summary judgment evidence that LaBove’s parentage of M.S.D. was submitted for determination by the court and there is no evidence that paternity was determined in the prior action.
LaBove argues that because the order stated, “LARRY D. LABOVE, a non-parent, is appointed possessory conservator of the child(ren) [M.S.D.]…,” paternity was determined by the trial court. LaBove misconstrues this sentence and its import within the earlier order. This was a statement in a section of the order regarding those who had possession or access to a particular child. It was a statement of conservatorship regarding a person who had not been judicially determined to be a parent and therefore, was being referred to as “a non-parent.” This was not a determination of paternity.
LaBove had the burden to conclusively establish all three elements of collateral estoppel. Because he did not conclusively establish the first element, it is unnecessary for us to determine whether he conclusively established the remaining elements. Thus, the trial court erred in granting the summary judgment on LaBove’s collateral estoppel claim.
Res Judicata
Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). It 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. Id.
The parties do not dispute that the first element was conclusively shown by summary judgment proof. The parties dispute, however, whether the Attorney General was in privity with the Department. The agencies can be in privity in at least three ways: (1) they can control an action even if they are not parties to it; (2) their interests can be represented by a party to the action; or (3) they can be successors in interest, deriving their claims through a party to the prior action. Amstadt, 919 S.W.2d at 653. Privity exists if the parties share an identity of interests in the basic legal right that is the subject of litigation. Id.
The Department exists as a creature of statute, operating under the Health and Human Services Commission, with a director appointed by the executive commissioner of the Commission and does not fall under the office of the Attorney General. See Tex. Gov’t Code Ann. §§ 531.001, 531.005, 531.0055, & 531.0056 (Vernon 2005). The Attorney General is elected in a state-wide election and has no supervisory control over the Department. See Tex. Const. art. IV, §§ 1, 2; see also Tex. Gov’t Code Ann. §§ 402.001 et. seq. (Vernon Pamp. 2004-2005).
LaBove’s summary judgment proof consisted of:
1. LaBove’s affidavit;
2. The original petition for protection and conservatorship and for termination of the parent-child relationship regarding three children, including M.S.D;
3. The citation for service and return for Robin Donley for the petition filed in item 2, above;
4. A petition to establish the parent-child relationship regarding M.S.D. and LaBove;
5. A final order in the suit affecting parent-child relationship initiated by the petition in item 2, above;
6. A motion to consolidate three actions: the suit instituted by the original petition in item 2, above, a final divorce action, and a suit affecting parent-child relationship involving the final adjudication of non-parentage regarding M.S.D;
7. An order on the motion to consolidate; and
8. A petition to establish the parent-child relationship and motion to clarify regarding M.S.D. and LaBove, which includes a motion to sever the suit from item 2, above.
These documents do not provide proof that the Attorney General could control the Department’s action, that the Attorney General’s interests could be represented by the Department in the Department’s action, or that the Attorney General could be a successor in interest.
These documents also do not provide proof that the Attorney General and the Department shared an interest in the basic legal right that is the subject of the two proceedings. In the Department’s action, the Department requested paternity to be established between LaBove and an unnamed child. But the action was primarily concerned with the possession and access of three children. As was discussed previously, the summary judgment proof does not conclusively establish that the parentage issue regarding LaBove and M.S.D was determined by the trial court as part of the earlier judgment. The Attorney General’s petition concerned only a determination of parentage between LaBove and M.S.D. and the support of M.S.D. These documents do not conclusively establish a shared interest in a basic legal right as is necessary for this summary judgment proceeding.
LaBove did not conclusively establish that the Attorney General and the Department were in privity. Thus, he did not establish that the action brought by the Attorney General was barred by the order rendered in the Department’s action. Accordingly, the trial court erred in granting LaBove’s summary judgment based on res judicata.
Conclusion
The Attorney General’s issue on appeal is sustained, and the trial court’s judgment is reversed and remanded for proceedings consistent with this opinion.
Pending Motion
The Attorney General also filed a motion to exclude the third supplemental Clerk’s Record in this cause. Because the summary judgment proof was the same in the first volume of the Clerk’s Record as was in the third supplemental Clerk’s Record, the motion is dismissed as moot.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Motion dismissed
Reversed and remanded
Opinion delivered and filed September 28, 2005
[CV06]