Jane B. Knapp v. L. Fabian Worthing, III, M.D.

Affirmed and Memorandum Opinion filed May 4, 2004 Affirmed and Memorandum Opinion filed May 4, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00730-CV ____________ JANE B. KNAPP, Appellant V. L. FABIAN WORTHING, III, M.D., Appellee On Appeal from the 281st District Court Harris County, Texas Trial Court Cause No. 02-13617 M E M O R A N D U M   O P I N I O N Appellant Jane B. Knapp appeals from the trial court=s order dated April 14, 2003, which granted summary judgment in favor of appellee L. Fabian Worthing, III, M.D., on all claims. This case arises from appellee=s alleged conduct concerning the condition, removal, and subsequent disposition of appellant=s breast implants. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm. The Issues Appellant presents six issues for review. She contends that the trial court erred in granting appellee=s motion for summary judgment because material fact issues exist with respect to her claims of (1) fraud by failure to disclose, (2) tortious interference with litigation, (3) breach of fiduciary duty, and (4) breach of contract/conversion. Further, she argues that the trial court erred in granting summary judgment because appellee=s defenses of (5) res judicata and (6) statute of limitations are inapplicable to this case. Because we find that our resolution of appellant=s fifth issue is dispositive of this case, we do not consider her remaining issues below.[1] Res Judicata In her fifth issue, appellant argues that the trial court erred in granting summary judgment in favor of appellee because the doctrine of res judicata is inapplicable to the facts of this case. Texas follows the transactional approach to res judicata. State and County Mut. Fire Ins. Co. 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. Id. 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). In this case, appellant brought forth the following claims in her Second Amended Original Petition: (1) fraud by affirmative misrepresentation, (2) fraud by failure to disclose, (3) tortious interference with litigation, (4) breach of fiduciary duty, (5) breach of contract, and (6) conversion. The application of res judicata in the present case requires us to examine these six claims in relation to those claims that were made the basis of a previous suit involving both parties.[2] Appellee argues that such an examination yields the conclusion that all of appellant=s claims in the present case either were litigated or could have been litigated in the previous suit. We agree and set forth below our reasons therefor in the order listed immediately above. Affirmative Misrepresentations In the present case, appellant alleges that appellee made misrepresentations of material facts in support of her fraud claim. Namely, she asserts that appellee made misrepresentations concerning his surgical procedure and the condition and disposition of her implants after removal. Appellant argues that appellee represented the implants as not having been ruptured when in fact they were, and that he sent her implants to Dr. Shanklin but in fact disposed or tampered with them. However, the same allegations were advanced and rejected in appellant=s previous suit against Dr. Shanklin and appellee.[3] We therefore find that appellant=s claim concerning affirmative misrepresentations in the present case has already been litigated in her previous suit, and accordingly is barred by res judicata. Failure to Disclose As the basis of her claim for fraud by failure to disclose in the present case, appellant alleges that appellee failed to disclose the fact that he served as an expert witness for Dow Corning, the manufacturer of her implants, during the course of prior breast implant litigation in 1990. In her September 2, 1997 deposition, however, appellant admitted that her lawyer, Dan Cartwright, had received timely notice of appellee=s scheduled deposition with Dow Corning. While appellant contends that she personally did not have knowledge of appellee=s deposition, knowledge acquired by a client=s attorney during the existence of the attorney-client relationship, and while acting within the scope of the attorney=s authority, is imputed to the client. See McMahan v. Greenwood, 108 S.W.3d 467, 480-81 (Tex. App.CHouston [14th Dist.] 2003, pet. denied). Because appellant had knowledge of appellee=s deposition with Dow Corning at the time she brought her previous suit arising from the same subject matter against Dr. Shanklin and appellee, we find that her claim concerning failure to disclose could have been litigated in the previous suit, and accordingly is barred by res judicata. Tortious Interference with Litigation In the present case, appellant claims that appellee tortiously interfered with her litigation against Dow Corning.[4] She alleges that appellee tampered with or destroyed her implants and committed perjury in his deposition with respect to her physical condition and the disposition of her removed implants. As we have already stated with respect to appellant=s fraud allegations, though, these are claims that were advanced and rejected in her previous suit, and accordingly are barred by res judicata. Breach of Fiduciary Duty As the basis for her claim for breach of fiduciary duty in the present case, appellant again alleges that appellee tampered with and destroyed her implants and failed to disclose the fact that he served as an expert witness for Dow Corning during prior breast implant litigation. We find that these allegations either have already been litigated or could have been litigated in her previous suit against Dr. Shanklin and appellee, and accordingly are barred by res judicata. Breach of Contract and Conversion Finally, appellant alleges as the basis for her claims involving breach of contract and conversion that appellee forwarded her removed implants to Dr. Shanklin, rather than deliver them directly to appellant as they had previously agreed. She also alleges that the implants that were finally produced were not hers, but those that had belonged to someone else. However, we have already determined that these allegations have already been litigated in her previous suit against Dr. Shanklin and appellee, and accordingly are barred by res judicata. Arguments Against Application of Res Judicata Despite our findings that the claims presented in this suit either were actually litigated or could have been litigated in the previous suit, appellant contends that the doctrine of res judicata is inapplicable because: (1) the summary judgment granted to appellee in the previous suit is not a final judgment, and (2) appellee=s own conduct estops him from obtaining relief under the doctrine. We disagree and examine these contentions below. First, appellant contends that the summary judgment granted to appellee in the previous suit is not a final judgment because the order did not contain a AMother Hubbard@ clause, and appellee presented no evidence that the trial court severed her claims against appellee from her claims against appellee=s initial co-defendant, Dr. Douglas R. Shanklin. Of course, the mere absence or omission of a Mother Hubbard clause does not render a summary judgment interlocutory. Inglish v. Union State Bank, 945 S.W.2d 810, 811 (Tex. 1997). Moreover, court records reflect the fact that the trial court did order severance of the claims in the previous suit and granted appellant=s non-suit of its claims against Dr. Shanklin. See supra note 2. Therefore, the summary judgment granted in favor of appellee in the previous suit constitutes a final judgment as required under the doctrine of res judicata. See Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Appellant=s first contention is without merit. Second, appellant contends that appellee=s own conduct estops him from obtaining relief under the doctrine and cites in support White v. Bell, 290 S.W. 849 (Tex. Civ. App.CWaco 1927, writ ref=d), and Sutherland v. Cobern, 843 S.W.2d 127 (Tex. App.CTexarkana 1992, writ denied). These cases, however, stand for the proposition that litigants should not be allowed to profit from inconsistent positions on available remedies. See White, 290 S.W. at 851; Sutherland, 843 S.W.2d at 131. In the present case, appellant points not to inconsistencies in positions taken in relation to available remedies, but inconsistencies between appellee=s testimony and that of Dr. John W. Siebert and Jami Harman. Because White and Sutherland are inapplicable, appellant=s second contention is without merit. Conclusion We overrule appellant=s fifth issue and do not reach her remaining issues because summary judgment is appropriate on the ground of res judicata. The judgment of the trial court is affirmed. /s/ Adele Hedges Chief Justice Judgment rendered and Memorandum Opinion filed May 4, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. [1] If the trial court=s order granting summary judgment does not state the grounds therefor, the appealing party must show that it is error to base the judgment on any of the grounds asserted in the motion. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). [2] See Knapp v. Worthing, No. 97-14249A (281st Dist., Bland, J.) (order granting summary judgment to defendant), appeal dismissed for want of jurisdiction, No. 01-98-01110-CV (Tex. App.CHouston [1st Dist.] April 22, 1999) (summary judgment order interlocutory). The order was made final by order of non-suit of the claims against the remaining party dated November 11, 2000. Knapp v. Shanklin, No. 97-14249 (281st Dist., Bland, J.) (order granting non-suit). [3] See Plaintiff=s Original Petition in Knapp v. Shanklin and Worthing, No. 97-14249. [4] We assume but do not decide that tortious interference with litigation constitutes a valid cause of action in Texas.