NUMBER 13-12-00048-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
RONALD ROGERS, INDIVIDUALLY
AND AS EXECUTOR OF THE
ESTATE OF LOUIS ROGERS, Appellant,
v.
TED L. WALKER, Appellee.
On appeal from the 1st District Court
of Jasper County, Texas.
DISSENTING MEMORANDUM OPINION
Before Justices Garza, Perkes and Longoria
Dissenting Memorandum Opinion by Justice Perkes
Because I believe the trial court properly granted summary judgment in favor of
Ted. L. Walker on res judicata grounds, I respectfully dissent to that portion of the majority
opinion holding the trial court erred in granting summary judgment with respect to the res
judicata defense. I join the majority in the remaining holdings.
Rogers sued Gayle Creel and Ted. L. Walker for fraud, conspiracy to commit fraud,
conspiracy to breach fiduciary duty, conversion, conspiracy to commit conversion,
securing execution of a document by deception, breach of contract, and malpractice.
The record reflects that Rogers recovered an earlier final judgment against Creel based
on fraud and embezzlement. Specifically, Rogers’ claim against Creel in the first lawsuit
involved fraud and embezzlement in a probate proceeding based on Rogers’ allegation
that Creel transferred all assets of the estate into his own name.
The second suit against Ted L. Walker asserted that “through a series of fraudulent
and tortious actions by Creel and Ted L. Walker, Louise Rogers’ estate funds were
misappropriated, her house and land were repossessed and the estate is over $220,000
in debt.” The pleadings also asserted that Ted L. Walker assisted “Creel’s tortious
actions by conduct that itself was tortious . . . .”
Clearly, Rogers’ second suit, based upon allegations of fraud, conspiracy and
breach of fiduciary duty, arose out of the same subject matter as the first suit. The first
suit was for fraud and embezzlement in conjunction with handling the estate; the second
urges conspiracy to commit fraud, among other claims, regarding the handling of the
estate.
Texas uses the transactional approach to res judicata. Barr v. Resolution Trust
Corp., 837 S.W.2d 627, 630 (Tex.1992). Under this approach, res judicata precludes a
second action by the parties and their privies, not only on matters actually litigated, but
also on causes of action or defenses which arise out of the same subject matter and
2
which might have been litigated in the first suit. Jonalstem, Ltd. v. Corpus Christi Nat’l
Bank, 923 S.W.2d 701, 704 (Tex. App.—Corpus Christi 1996, writ denied). A
determination of the subject matter of a suit requires an examination of the factual basis of
the claim or claims in the prior litigation, without any regard to the form of the action.
Barr, 837 S.W.2d at 630. Any cause which arises out of those same facts should, if
practicable, be litigated in the same suit. Id.
A party may plead itself out of court by pleading facts that affirmatively negate its
cause of action. Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625, 632 (Tex.
App.—Houston [14th Dist.] 1997, pet. denied). Here, Rogers’ own pleadings claim that
Ted L. Walker and Creel conspired with respect to the decedent’s estate. The fraud and
conspiracy to commit fraud claims are barred because they are causes of action which
arose out of the same subject matter and could have been litigated in the first suit, but
were not. See Jonalstem, 923 S.W.2d at 704. They were part of the same transaction.
Summary judgment on res judicata grounds was proper.
The majority urges that there is no evidence that appellant alleged a conspiracy in
the first suit. That is not the point. The case law requires only that the issue could have
been litigated in the first suit. Barr, 837 S.W.2d at 630. Walker was not a party to the
first suit, though he could have been made a party to it. In the second suit, Rogers
pleaded that the parties were conspirators. Again, the fact that Walker did not
independently prove that fact should not stand in the way of his res judicata defense for
the simple reason that the alleged conspiracy is the basis for the second action. I do not
believe that it would be either necessary or advisable for Walker to have pleaded or
3
admitted that he was involved in a conspiracy to defraud the estate as part of his
summary judgment burden. Had he done so, I believe that he would put himself in a
position contrary to his interest; he would be admitting his liability, certainly something he
would not want to do. Rather, I believe it was enough for Walker to attach evidence,
which on its face showed that Rogers was alleging that the parties were co-conspirators.
Because they were alleged to be co-conspirators, it seems clear that Walker could have
been joined in the prior suit. Thus, I would affirm the summary judgment based upon res
judicata.
GREGORY T. PERKES
Justice
Delivered and filed the
23rd day of May, 2013.
4