Geneva Honeycutt v. David Higgins and Janet Higgins

11th Court of Appeals Eastland, Texas Memorandum Opinion Geneva Honeycutt Appellant Vs. No. 11-03-00081-CV -- Appeal from Howard County David Higgins and Janet Higgins Appellees This appeal arises from a summary judgment granted on the sole ground of res judicata. Geneva Honeycutt filed the underlying action against David Higgins and Janet Higgins with respect to a gate located on property owned by appellees. Honeycutt uses the gate and a road running across appellees= property by virtue of a judicially-established easement in order to travel to and from her property. This action is the third lawsuit between the parties concerning the gate. We reverse and remand. Appellees filed the first lawsuit sometime prior to February 1996 against Honeycutt and others in an apparent effort to prohibit the defendants= use of the road located on appellees= property.[1] Honeycutt filed a counterclaim in the first suit wherein she sought to establish an easement to use the road on theories of easement by implication, easement by necessity, and easement by prescription. The trial court entered judgment in the first lawsuit in April 1997 awarding Honeycutt and the other defendants an easement by way of necessity across the road. The trial court=s judgment also provided that Honeycutt and the other defendants were permanently enjoined from intentionally leaving open the gate in question in their use of the easement. Honeycutt filed the second lawsuit concerning the gate in U.S. federal district court in March 2000. She alleged in the suit that appellees operated the gate in such a manner as to violate 42 U.S.C. ' 2000a of the Civil Rights Act of 1964. She also alleged violations of the Americans with Disabilities Act of 1990. See 42 U.S.C. ' 12101 et seq. Honeycutt sought the removal of the gate based upon these statutory provisions. The U.S. federal district court granted summary judgment in favor of appellees in November 2000. The record does not indicate the basis upon which the court granted summary judgment in favor of appellees. Honeycutt filed the underlying action against appellees in September 2001. Honeycutt=s petition contained allegations that appellees had taken steps to deny her use of the easement. She also alleged that A[t]he employment of the present gate is unreasonable to [her] present physical status.@ Honeycutt sought the entry of an injunction prohibiting appellees from interfering with her use of the easement. She also sought damages for previous instances wherein she alleged that appellees restricted her use of the easement. Honeycutt additionally sought Aan affirmative injunction for removal of the present gate and the placement of a gate that would accommodate [her] use.@ The trial court entered summary judgment in favor of appellees on January 28, 2003, on the express ground of res judicata. Honeycutt attacks the trial court=s judgment in two points of error. In her first point of error, she alleges that the trial court erred in granting appellees= motion for summary judgment. She asserts that the trial court erred in refusing to modify its original injunction in her second point of error. The movant for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non-movant. Nixon v. Mr. Property Management Company, Inc., supra at 548-49. The reviewing court must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor. Nixon v. Mr. Property Management Company, Inc., supra at 549. Appellees filed their motion for summary judgment in the underlying action solely on the affirmative defense of res judicata. Summary judgment may be obtained on the affirmative defense of res judicata. See Jones v. Nightingale, 900 S.W.2d 87, 88 (Tex.App. - San Antonio 1995, writ ref=d); Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex.App. - Corpus Christi 1991, no writ). We apply the usual standard of review. A defendant who moves for summary judgment on the basis of an affirmative defense has the burden to prove conclusively all the elements of the affirmative defense as a matter of law. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). With respect to the judgment entered in the first lawsuit, Texas follows the transactional approach to res judicata. State and County Mutual Fire Insurance Company v. Miller, 52 S.W.3d 693, 696 (Tex.2001). The doctrine prevents the relitigation of a finally-adjudicated claim and related matters that should have been litigated in a prior suit. State and County Mutual Fire Insurance Company v. Miller, supra at 696. A subsequent suit is barred if it arises out of the same subject matter of a previous suit and which, through the exercise of due diligence, could have been litigated in a prior suit. Barr v. Resolution Trust Corp. ex rel. Sunbelt Federal Savings, 837 S.W.2d 627, 631 (Tex.1992). Application of the doctrine 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. Amstadt v. United States Brass Corporation, 919 S.W.2d 644, 652 (Tex.1996). Since the second lawsuit was decided in federal court, federal law controls the determination of whether res judicata bars this proceeding. Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 718 (Tex.1990). Under federal law, res judicata is appropriate if (1) the parties to both actions are identical (or at least in privity); (2) the judgment in the first action is rendered by a court of competent jurisdiction; (3) the first action concluded with a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. See United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir.1994). The burden of proving res judicata rests on the party asserting the defense. Walker v. Sharpe, supra at 447. Therefore, in order to prevail, the movant must produce summary judgment evidence, including verified or certified copies of the judgment and pleadings from the prior suit, sufficient to establish the applicability of res judicata as a matter of law. Walker v. Sharpe, supra at 447; see Boswell v. Handley, 397 S.W.2d 213, 216 (Tex.1965). Appellees= summary judgment evidence consisted of the following items: (1) Honeycutt=s counterclaim in the first lawsuit; (2) the final judgment entered in the first lawsuit; (3) Honeycutt=s original petition in the second lawsuit; (4) the final judgment entered in the second lawsuit; and (5) excerpts of Honeycutt=s deposition transcript. Honeycutt argues in her first point of error that the doctrine of res judicata does not prohibit an attempt to modify an injunction on a showing of changed circumstances. Honeycutt=s assertion in this regard is a correct statement of the law. AA trial court generally retains jurisdiction to review, open, vacate or modify a permanent injunction upon a showing of changed conditions.@ City of San Antonio v. Singleton, 858 S.W.2d 411, 412 (Tex.1993). Appellees contend that this principle is inapplicable in this case because Honeycutt did not seek the modification of the original injunction in the trial court, but rather is seeking the issuance of a new injunction. The nature of a pleading is determined by examining its substance rather than its title or form. See State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex.1980). Honeycutt=s original petition did not contain an express request to modify the original injunction. However, she did allege that A[t]he employment of the present gate is unreasonable to [her] present physical status.@[2] Based upon this allegation, Honeycutt sought the replacement of the current gate with one that would accommodate her use. Honeycutt filed this request in the same trial court which entered the original injunction. We find that Honeycutt pleaded sufficient facts to invoke the trial court=s continuing jurisdiction to modify the original injunction based upon a change in circumstances that have allegedly occurred since its entry. Moreover, it does not appear that appellees met their burden of establishing their res judicata defense, especially with respect to the second lawsuit filed in federal district court. While the record does contain the federal district court=s judgment, the document only states: AThe Court having granted [appellees=] Motion for Summary Judgment, enters the following judgment: IT IS ORDERED, ADJUDGED, AND DECREED that [Honeycutt] take nothing as against [appellees].@ The record does not establish the basis upon which the federal court entered summary judgment in appellees= favor. The court in Vogel v. The Travelers Indemnity Company, 966 S.W.2d 748, 752 (Tex.App. - San Antonio 1998, no pet=n), determined that the absence from the summary judgment record of the operative motion leading to the dismissal of a previous action is a fatal omission to establishing the defense of res judicata. Honeycutt=s first point of error is sustained. We do not consider her second point of error wherein she argues that the trial court erred in refusing to modify the original injunction because it does not appear that the trial court has considered the merits of her contention in light of the grant of summary judgment on res judicata grounds. The trial court=s judgment is reversed and remanded. W. G. ARNOT, III CHIEF JUSTICE June 24, 2004 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]The record does not include a copy of the petition filed by appellees in the first suit. [2]She asserted in her response to the motion for summary judgment that a material change of circumstances had occurred since the entry of the original injunction.