dissenting.
I cannot agree with the majority that a judgment denying attorney’s fees sought under a note is not res judicata of a subsequent claim for the same attorney’s fees under a deed of trust securing payment of the note. Neither can I agree that a court can rule on whether attorney’s fees are recoverable in one suit and, in that same suit, reserve the very question decided with respect to those same attorney’s fees. Instead, I would hold that the adverse ruling in the first suit would bar recovery in the second suit under the doctrine of res judicata. Thus, I would affirm. Accordingly, I must dissent.
Because the majority fails to correctly perceive, and to apply in this case, the doctrine of res judicata, a definitive statement of that doctrine is appropriate for a clearer understanding of both the majority opinion and this dissent. As the supreme court noted in Griffin v. Holiday Inns, 496 S.W.2d 535, 538 (Tex.1973): “Courts generally agree that a judgment is conclusive as to all matters that were considered or should have been considered in the suit. The problem is in determining how much of what could have been considered in the first suit, but was not, is merged in or barred by the judgment rendered.” [Emphasis added]. Under the supreme court’s definition of res judicata, the present action for the same attorney’s fees incurred in defending against the injunction were considered by both the trial court and this court in Slivka v. Swiss Avenue Bank, 653 S.W.2d 939 (Tex.App.—Dallas 1983, no writ), and thus should be barred. Indeed, in that case, (Slivka I) a panel of this court reversed the trial judge’s award to the bank of these same attorney’s fees and rendered judgment that the bank take nothing because the bank had not sued on the notes.1 Consequently, we do not reach the second prong of the doctrine of res judicata, which is “that which should have been considered in the suit,” a question not easy of solution. Because the majority opinion is based on this second prong and ignores the first, it is wrong in refusing to apply res judicata to this suit.
Apparently, the majority misreads Griffin because that opinion characterizes the res judicata question as asking whether the condition for recovery of attorney’s fees in the first case (Slivka I) had been met. In my view, that question is immaterial because, rightly or wrongly, this court in Slivka I denied recovery based upon the failure of the bank to sue to collect on the note. See Segrest v. Segrest, 649 S.W.2d 610, 612-13 (Tex.1983); See also Trahan v. Trahan, 626 S.W.2d 485, 487-88 (Tex.1981). Indeed, to this day, including this action, there has yet to be a suit by the bank to recover on the notes! Instead, the question with respect to whether res judicata applies to bar the second suit over the same res should be whether the second suit concerns the same subject matter, i.e., the very same attorney’s fees denied the bank in Slivka I. *399Foster v. Wells, 4 Tex. 101 (1849); Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869, 871 (Tex.Civ.App.—Dallas, 1980, no writ).
The supreme court in Griffin has determined the res judicata question contrary to the bank’s position in this suit. See also Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex.1979). In Griffin, the supreme court quoted the following language from Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.1971): “Stated differently, a party cannot relitigate matters which he might have interposed, but failed to do so, in an action between the same parties or their privies in reference to the same subject matters. Freeman v. McAninch, 87 Tex. 132, 27 S.W. 97 (1894).” [Emphasis added]. Griffin at 537. The Griffin court in explaining what was meant by the term “subject matter” for the purposes of res judica-ta stated: “When the statement quoted above is read in context, it is clear that the term ‘subject matter’ refers to the claim or controversy at issue in the earlier suit and not to the transaction out of which the suit arose.” Applying the law of res judicata as interpreted by the supreme court to this case, the subject matter in Slivka I was the propriety of awarding attorney’s fees to the bank for defending against the injunction, which is precisely the same subject matter of this suit. The only difference is the theory advanced by the bank to recover those fees. As the supreme court in Griffin observed: “It is generally recognized that a judgment in a suit to recover damages on one theory is conclusive as to all theories of liability that might have been alleged ... with respect to the claim. See Kestatement, Judgments, § 63, comment a; 2 Freeman, Law of Judgments, 5th ed. 1925, Sec. 682.” Id. at 537. Thus, the fact that the bank asserted as a theory to recover its attorney’s fees expended in defending against the injunction the language of the notes in Slivka I and has asserted in this case the language of the deeds of trust as a theory to recover the same attorney’s fees is immaterial with respect to whether res judicata bars this action. Instead, the crucial inquiry is whether the second suit concerns the same subject matter as the first suit, which fact is undisputed in this case.
Neither can I agree that the Bank’s right to recover attorney’s fees in defending the injunction was expressly reserved by this Court in the appeal of the prior action. First, the holding in Slivka I did not expressly reserve decision on the Bank’s right to attorney’s fees incurred in that action but said merely:
We do not reach the question of whether the Bank may recover attorney’s fees in any other action or by virtue of the provisions of the deeds of trust and this opinion is not to be read as holding that the Bank may not hereafter recover attorney’s fees as provided for in the notes and deeds of trust. [Emphasis added.]
653 S.W.2d at 944. A reasonable construction of this language is that it refers to the Bank’s right to recover attorney’s fees for legal action necessary to enforcement of its rights in the future, for which attorney’s fees may be incurred after that decision. Indeed, this is what Slivka argued in the Court trial below, which the trial court accepted in awarding the Bank only those attorney’s fees incurred after the judgment on appeal and in denying it those fees incurred in the prior action.
More importantly, this Court did not reserve judgment on those fees incurred in the prior case but rather decided that they were not recoverable. This Court held as follows:
We reverse the judgment of the trial court insofar as it awards the amount of $11,735.77 for attorney’s fees and render judgment that the Bank take nothing against Slivka.
653 S.W.2d at 944. A court may reserve decision on an issue or on the right to maintain a second action only by expressly reserving decision in its judgment. Great Southern Life Insurance Co. v. Johnson, 25 S.W.2d 1093, 1097 (Tex.Comm’n App. 1930 holding approved); Hermann v. Allen, 103 Tex. 382, 128 S.W. 115, 116 (1910); Chandler v. Prichard, 321 S.W.2d 891, 894 (Tex.Civ.App.—Eastland 1958, writ ref’d n.r.e.); Railroad Commission v. Humble *400Oil & Refining Co., 119 S.W.2d 728, 729 (Tex.Civ.App.—Austin 1938, writ ref’d); Armstrong v. Anderson, 70 S.W.2d 801, 803 (Tex.Civ.App.—El Paso 1934 writ dism’d). A court cannot both reserve judgment and render judgment. Consequently, the majority erred in imputing that effect to the judgment in Slivka I.
Accordingly, I would hold that the Bank is barred from asserting a claim for the attorney’s fees incurred in the prior action because that claim is barred by the doctrine of res judicata.
. I doubt the correctness of the decision in Slivka I because other language in the notes with respect to attorneys’ fees should have permitted the bank to recover its attorneys fees in that case.