Affirmed and Memorandum Opinion filed March 30, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00613-CV
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CASTER DERRA GOVANT, Appellant
V.
HOUSTON COMMUNITY COLLEGE SYSTEM and BOB HAYES, Appellees
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 99-22174
M E M O R A N D U M O P I N I O N
Caster Derra Govant (AGovant@) sued the Houston Community College System (AHCCS@) and Bob Hayes (AHayes@) for negligence and negligence per se. The trial court rendered summary judgment in favor of HCCS and Hayes. We reversed the summary judgment as to Hayes and remanded.[1] The trial court again rendered summary judgment in favor of Hayes. In two issues, Govant contends the trial court erred because (1) Hayes waived all affirmative defenses not pled by the time of the first appeal, and (2) Hayes was precluded from relitigating facts and issues already decided on appeal. We affirm.
PROCEDURAL BACKGROUND
The factual background of this case has been detailed in our previous opinion. See Govant v. Houston Cmty. Coll. Sys., 72 S.W.3d 69, 71B72 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Because the factual background is not relevant to this appeal, we will not repeat it here.
In our previous opinion, we held that Hayes was not entitled to official immunity. Id. at 74. We therefore reversed the trial court=s grant of summary judgment in favor of Hayes and remanded the case to the trial court. Id. at 76.
On remand, Hayes amended his answer to add the defenses of the statute of limitations and contributory negligence.
Govant filed a motion for partial summary judgment arguing that in our previous opinion we decided that Hayes was liable as a matter of law. Hayes filed a cross-motion for summary judgment arguing that Govant=s claim was barred by the statute of limitations, that Hayes owed no duty to Govant, and that Govant could not show causation. The trial court granted summary judgment in favor of Hayes.
ANALYSIS
I. Affirmative Defenses
In his first issue, Govant contends Hayes waived all affirmative defenses not pleaded by the time of the first appeal under the doctrines of res judicata and collateral estoppel.
Res judicata precludes the 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. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). It requires proof of (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) the 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.
Collateral estoppel precludes the relitigation of adjudicated essential facts. Welch v. Hrabar, 110 S.W.3d 601, 607 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). It requires proof that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) those facts were essential to the judgment in the first action, and (3) the parties were cast as adversaries in the first action. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).
Contrary to Govant=s contention, a case on remand is not a second action. See Steffan v. Steffan, 29 S.W.3d 627, 631 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (AAn appeal from a prior or former proceeding is not a >subsequent action.=@). Because the doctrines of res judicata and collateral estoppel apply only to a second action, neither doctrine precludes the amendment of pleadings on remand. See Amstadt, 919 S.W.2d at 652; Sysco, 890 S.W.2d at 801. Hayes was thus entitled to amend his answer to include additional affirmative defenses. See Hudson v. Wakefield, 711 S.W.2d 628, 630B31 (Tex. 1986); Tower Contracting Co. v. Flores, 157 Tex. 297, 304, 302 S.W.2d 396, 400 (1957); Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W.3d 504, 511 (Tex. App.CCorpus Christi 2002, no pet.). We overrule Govant=s first issue.
II. Findings of Law and Fact
In his second issue, Govant contends that Hayes is precluded from relitigating facts and issues already decided on appeal. Govant contends we Aadjudicated that [Hayes] had a ministerial duty, that he breached that duty, that his conduct was the cause of the breach and that [Hayes] violated the applicable statutes.@ In support of his position, Govant cites language in our opinion that,
Hayes, however, did not file or provide a copy of the Report with TCLEOSE until some five months later, on February 5, 1997. We find, in this context, that five months is not a reasonable period of time. Accordingly, Hayes failed to satisfy the requirements of section 1701.452(a).
. . .
Hayes was under a ministerial duty to provide Govant a copy of the Report, and the record is bereft of any evidence that he ever satisfied this duty.
Govant, 72 S.W.3d at 73B74.
None of the issues that Govant contends we adjudicated were properly before us on appeal. The only issues before us were (1) whether affidavits offered by Hayes and HCCS were competent, (2) whether Hayes was entitled to official immunity, and (3) whether there were genuine issues of material fact as to Govant=s equal protection and due process causes of action. Id. at 71.
Any conclusions of law made in our previous opinion were subject to change based on additional evidence. A[W]hen in the second trial or proceeding, one or both of the parties amend their pleadings, it may be that the issues or facts have sufficiently changed so that the law of the case no longer applies.@ Creative Thinking Sources, 74 S.W.3d at 511. The language of our previous opinion acknowledges that our determination was limited by the facts and issues before us: AWe find, in this context . . . .@; A[T]he record is bereft of any evidence . . . .@ Govant, 72 S.W.3d at 73B74. Hayes was entitled to amend his pleadings or introduce additional evidence such that our previous opinion was no longer binding.
Nor would any findings of fact we supposedly made be binding on the trial court. First, as an appellate court we lack the authority to make original findings of fact; we can only Aunfind@ facts. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744B45 (Tex. 1986); Ponce v. Sandoval, 68 S.W.3d 799, 809 (Tex. App.CAmarillo 2001, no pet.). Second, the record was incomplete because we considered only a limited appeal from a summary judgment. See Governing Bd. v. Pannill, 659 S.W.2d 670, 680B81 (Tex. 1983) (noting that a record presented after a trial on the merits Adiffers in a very material sense@ from a record presented on a summary judgment). Third, because we were reviewing a grant of summary judgment, we were required to view all the evidence in the light most favorable to the nonmovant, a requirement not imposed on a neutral fact-finder. See Hudson, 711 S.W.2d at 631.
Our mandate and opinion also did not limit the trial court to merely a determination of damages. We limited the trial court on remand only to Afurther proceedings consistent with [our] opinion.@ Govant, 73 S.W.3d at 76. For the reasons explained above, none of the trial court=s actions were inconsistent with our opinion. We overrule Govant=s second issue.
We affirm the judgment of the trial court.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed March 30, 2004.
Panel consists of Chief Justice Hedges and Justices Fowler and Guzman.
[1] We affirmed the summary judgment dismissing the claims against HCCS, so HCCS is not a party to this appeal.