Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 141st District Court Tarrant County, Texas
Trial Court No. 141-236257-09
Sudderth, C.J.; Kerr and Birdwell, JJ.
decade and a half of legal proceedings, appellant Peterson,
Goldman & Villani, Inc. (PGV) is still seeking someone to
satisfy a guaranty agreement. In an earlier suit, PGV
obtained a judgment against the defunct company that executed
the guaranty, Ancor Holdings LLC (Ancor LLC). In this suit,
PGV seeks to enforce that judgment against a group of related
parties-Ancor Holdings LP (Ancor LP) and its principals, who
are the appellees here.
trial court rendered a take-nothing summary judgment in favor
of appellees on grounds of res judicata, reasoning that PGV
should have pressed all of its claims in the earlier suit. We
hold, to the contrary, that PGV's suit to enforce the
judgment does not offend res judicata. We further hold that
PGV conclusively established Ancor LP's liability as a
successor to Ancor LLC's judgment debt. We therefore
affirm, in part, reverse and render, in part, and reverse and
remand, in part.
LLC was a holding company whose members were appellees
Timothy McKibben and Joseph Randall Keene. At the turn of the
millennium, Ancor LLC was a significant investor in a company
called OpenPoint Systems, Inc., who was a borrower under a
loan agreement with Bank of America. OpenPoint was struggling
in early 2000. In March 2000, as part of an arrangement to
restructure the loan, Ancor LLC executed a guaranty agreement
in favor of Bank of America.
2000, OpenPoint filed for bankruptcy, triggering the guaranty
agreement. Bank of America sold its rights under the guaranty
to PGV. PGV then attempted to collect from Ancor LLC, filing
suit in Dallas County. After three and a half years of
arbitration, PGV obtained an arbitration award against Ancor
LLC. In May 2008, a Dallas district court signed a final
judgment confirming the arbitration award.
2008, PGV discovered that-unbeknownst to it and Bank of
America, and in breach of a clause in the guaranty-Ancor LLC
had merged with Ancor LP approximately eight years earlier,
leaving Ancor LP the sole surviving entity. Peterson,
Goldman & Villani, Inc. v. Ancor Holdings, LP, 420
S.W.3d 281, 283 (Tex. App.- El Paso 2013, pet. denied)
(setting out these background facts). Consequently, PGV moved
to modify the judgment to include Ancor LP as a judgment
debtor subject to execution for the confirmed arbitration
judgment. The trial court denied PGV's motion to modify.
Both Ancor LLC and PGV appealed the trial court's
arbitration-confirmation judgment to the Dallas Court of
Appeals, which subsequently affirmed.
that judgment was on appeal, though, PGV filed this suit
against Ancor LP and its principals, McKibben, Keene, and
Ancor Partners, Inc. PGV sought satisfaction of the judgment
awarded against Ancor LLC, alleging various causes of action
including successor liability. Appellees asserted res
judicata and limitations as defenses. The proceeding was soon
transferred to a district court in Tarrant County.
moved for partial summary judgment on its
declaratory-judgment and breach-of-contract claims against
Ancor LP. For their part, appellees filed two motions for
summary judgment in which they argued, inter alia,
that PGV's claims were barred by res judicata. The trial
court denied PGV's motion for partial summary judgment,
granted appellees' motions for summary judgment, and
dismissed PGV's claims with prejudice.
appeal was heard on transfer before the El Paso Court of
Appeals, from which we have borrowed our recitation of the
background facts. See id. In pertinent part, the El
Paso court held that the elements of res judicata had not
been conclusively established, and therefore summary judgment
could not be sustained on that basis. Id. at 284-85.
The court concluded that appellees had "never
addressed" the privity element of res judicata,
"much less established" it conclusively.
Id. at 285. For that reason and others, the court
reversed the summary judgment to the extent that it disposed
of PGV's contractual and declaratory-judgment claims.
Id. at 287. The court affirmed the summary judgment
to the extent that it disposed of PGV's other
remand, PGV amended its petition; it retained its claim for
successor liability while adding some new theories and
nonsuiting others. Appellees filed an amended answer in which
they pleaded res judicata and laches, among other affirmative
parties once again filed dueling motions for summary
judgment. Appellees focused solely on res judicata, taking
pains to address privity. PGV argued that it had conclusively
established Ancor LP's successor liability on the
judgment. Once again, the trial court denied PGV's
motion, granted appellees' motion, and dismissed all of
PGV's claims with prejudice. PGV appeals.
Summary Judgment Against PGV
first issue, PGV asserts that the trial court erred in
granting summary judgment on the basis of res judicata. PGV
asserts that appellees failed to establish two of the three
elements of its res judicata defense: (1) privity between
Ancor LLC and the appellees here and (2) that the subsequent
action is based on claims or causes of action that were or
should have been raised in the first action. We agree that
the claims in the subsequent suit-in particular, PGV's
successor-liability claim to enforce the arbitration
judgment-were not and should not have been raised in the
first action. These were therefore not the type of claims
that were required to be raised in the first action or be
review a summary judgment de novo. Travelers Ins. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider
the evidence presented in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary
to the nonmovant unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable
inference and resolve any doubts in the nonmovant's
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399
(Tex. 2008). A defendant is entitled to summary judgment on
an affirmative defense if the defendant conclusively proves
all elements of that defense. Frost Nat'l Bank v.
Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010);
see Tex. R. Civ. P. 166a(b), (c). When both parties
move for summary judgment and the trial court grants one
motion and denies the other, the reviewing court should
review both parties' summary judgment evidence and
determine all questions presented. Mann Frankfort,
289 S.W.3d at 848. We should then render the judgment that
the trial court should have rendered. See Myrad Props.,
Inc. v. LaSalle Bank Nat'l Ass'n, 300 S.W.3d
746, 753 (Tex. 2009); Mann Frankfort, 289 S.W.3d at
judicata is an affirmative defense. See Tex. R. Civ.
P. 94. A defendant who moves for summary judgment on the
basis of this affirmative defense therefore has the burden to
prove conclusively all its elements as a matter of law.
Dauz v. Valdez, 571 S.W.3d 795, 803 (Tex.
App.-Houston [1st Dist.] 2018, no pet.); see Parsons v.
Turley, No. 02-09-00381-CV, 2010 WL 5187704, at *2 (Tex.
App.-Fort Worth Dec. 23, 2010, pet. denied) (mem. op.).
judicata, also known as claim preclusion, prevents the
relitigation of a finally adjudicated claim and related
matters that should have been litigated in a prior
suit. State & Cty. Mut. Fire Ins. Co. v.
Miller, 52 S.W.3d 693, 696 (Tex. 2001). The policies
behind the claim-preclusion doctrine reflect the need to
bring all litigation to an end, prevent vexatious litigation,
maintain stability of court decisions, promote judicial
economy, and prevent double recovery. Engelman Irrigation
Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex.
2017). The elements of the res judicata defense are as
follows: (1) a prior final determination on the merits by a
court of competent jurisdiction; (2) identity of parties, or
those in privity with them, in the prior and subsequent
actions; and (3) the subsequent action is based on claims or
causes of action that were or should have been raised in the
first action. Travelers Ins., 315 S.W.3d at 862. Our
focus here is the third element.
determining whether a claim or cause of action should have
been raised in a prior action, Texas follows the
transactional approach. Citizens Ins. Co. of Am. v.
Daccach, 217 S.W.3d 430, 449 (Tex. 2007). Under this
approach, we look to whether the subsequent claim or cause of
action arises out of the same subject matter-the same
"transaction, or series of connected transactions, out
of which" the original suit arose. Id. (quoting
Barr v. Resolution Tr. Corp. ex rel. Sunbelt Fed.
Sav., 837 S.W.2d 627, 631 (Tex. 1992)). Determining the
scope of the "subject matter" or
"transaction" of the prior suit requires "an
analysis of the factual matters that make up the gist of the
complaint, without regard to the form of action."
Id. This should be done pragmatically, "giving
weight to such considerations as whether the facts are
related in time, space, origin, or motivation, whether they
form a convenient trial unit, and whether their treatment as
a trial unit conforms to the parties' expectations or
business understanding or usage." Id.
the two lawsuits did not involve a common time, origin,
motivation, or domain. The two lawsuits involve different
parties and are predicated on two different agreements,
executed at different times and for different purposes. The
guaranty agreement was executed in March 2000 by Bank of
America and Ancor LLC to shore up Bank of America's loan
to OpenPoint. The merger agreement was executed in September
2000 by Ancor LLC and Ancor LP in order to restructure
McKibben and Keene's holdings in a different
organizational form. The two agreements are each
self-contained, with no internal references between each
other. "Where claims arise at different times through
separate transactions not made in the context of a continuing
legal relationship, res judicata may not apply, even where
the parties and subject matter of the transactions are the
same." Pinebrook Props., Ltd. v. Brookhaven Lake
Prop. Owners Ass'n, 77 S.W.3d 487, 497 (Tex.
App.-Texarkana 2002, pet. denied); see Karle v.
Innovative Direct Media Ltd., 309 S.W.3d 762, 766 (Tex.
App.- Dallas 2010, no pet.) (determining res judicata did not
apply because the "two lawsuits arose under different
facts and different contracts"); Tex. Beef Cattle
Co. v. Green, 860 S.W.2d 722, 724 (Tex. App.-Amarillo
1993, writ denied) (concluding that res judicata did not
apply because the two suits concerned separate cattle
transactions that were executed months apart). Moreover, as
appellees emphasized during the initial proceeding, PGV did
not have a "continuing legal relationship" with
Ancor LP. See Pinebrook Props., 77 S.W.3d at 497. In
their summary judgment briefing, appellees argued,
"Ancor LLC and Ancor LP are not the same entity . . .
and [they] never have been." They further argued,
"These are two distinct entities, and a merger did not
render them 'one and the same' for purposes of
PGV's lawsuit." Ancor LP thus made clear that its
"expectations or business understanding" were to be
treated as separate from Ancor LLC for purposes of the
guaranty agreement. See Citizens Ins., 217 S.W.3d at
such, the two proceedings entailed two discrete sets of
proof. The first proceeding revolved around the
interpretation of Ancor LLC's guaranty agreement, as well
as evidence concerning the value of OpenPoint's
collateral. The second proceeding was to focus on the
distinct terms of the merger agreement and the successor
liability of Ancor LP. Such claims would not necessarily have
made a convenient unit for trial. And if a purpose of res
judicata is to prevent repetitive litigation, we note that
PGV's claims did not require any issues related to
OpenPoint or Ancor LLC's guaranty to be duplicated in
this second suit. See Engelman Irrigation, 514
S.W.3d at 750. PGV could simply allege that it had a valid
judgment to enforce against appellees, without delving into
detail concerning the origins of that judgment.
lawsuit would not be forbidden, for res judicata does not bar
actions brought to enforce prior judgments. See Matthews
Constr. Co. v. Rosen, 796 S.W.2d 692, 694 (Tex. 1990);
In re Estate of Lynch, 395 S.W.3d 215, 227 (Tex.
App.-San Antonio 2012, pet. denied); McCarroll v. My
Sentinel, LLC, No. 14-08-01171-CV, 2009 WL 4667403, at
*2 (Tex. App.-Houston [14th Dist.] Dec. 10, 2009, no pet.)
(mem. op.); Walker v. Anderson, 232 S.W.3d 899, 912
(Tex. App.-Dallas 2007, no pet.). Applying the doctrine of
res judicata in a suit to enforce a judgment would