Opinion

Opinion issued December 15, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01151-CV

———————————

Mark McShaffry , Appellant

V.

LBM-Jones

Road, L.P., LBM-Jones Road, G.P., Inc., Lee Gittleman, WDJ Management, L.L.C.

& Gerald Peter Jacob , Appellee

On Appeal from the 125th Judicial District Court

Harris County, Texas

Trial Court Case No. 2010-00130A

MEMORANDUM OPINION ON

REHEARING

McShaffry appeals a summary judgment entered in favor of LBM‑Jones

Road, L.P., LBM-Jones Road, G.P., Inc., Lee Gittleman, WDJ Management, L.L.C.,

and Gerald Peter Jacob (collectively, “LBM”). At trial, LBM moved for summary judgment on

the basis of the res judicata and collateral estoppel effect of a county court

judgment involving these parties and subject matter.

Appellant

Mark McShaffry has moved for rehearing. We grant rehearing, withdraw our

opinion and judgment of October 27, 2011, and issue the following in their

stead. Our disposition of the case

remains unchanged. We

conclude that McShaffry briefed the res judicata issue but does not address any

error in the judgment based on collateral estoppel. The trial court’s summary judgment can stand

on the issue that McShaffry did not brief.

We further conclude that the trial court properly granted summary

judgment on res judicata grounds. We

therefore affirm.

Background

LBM

leased commercial property on Jones Road to Zephyr Fallbrook Partners, L.P.

(“Zephyr”) for the purpose of operating a pizza restaurant. Mark McShaffry, David Gerow and Jonathan

Brindsen signed the lease as guarantors in the event of a default. In a separate contribution agreement,

McShaffry, Brindsen and Gerow agreed to certain obligations and rights as partners

of Zephyr. Zephyr became insolvent and

defaulted on its lease obligations to LBM.

In

January 2007, LBM sued Zephyr in Harris County Civil Court No. 3 for breach of

the lease agreement and sued Gerow, McShaffry and Brindsen as guarantors on the

lease. Although all defendants appeared and

answered the suit, McShaffry and Gerow did not appear for trial. At that bench trial, the county court heard

testimony from Gerald Jacob, a principal in the company that manages and leases

property on behalf of LBM. Jacob

testified about the status of the leased property and the damages for a default

under the lease. The county court then

entered a final judgment in favor of LBM for $675,563.37, holding Gerow and

McShaffry jointly and severally liable as guarantors on the lease. The final judgment dismissed Zephyr and

Brindsen from the lawsuit.

Pursuant

to a settlement agreement, LBM assigned Brindsen the county court judgment.

After efforts to collect the judgment from McShaffry were unsuccessful, the

court appointed a receiver to collect the county court judgment.

In

April 2010, McShaffry filed this lawsuit in district court. McShaffry claimed

that LBM: (1) interfered with the contribution contract between

McShaffry, Brindsen and Gerow by settling with Brindsen and assigning the

county court judgment to him; and (2) engaged in fraud by providing false

testimony at trial. Specifically,

McShaffry asserted that LBM had settled with Brindsen and then, pursuant to the

settlement agreement, agreed to participate in a “sham” trial in the county

court and assign the resulting judgment to Brindsen.

LBM

moved for summary judgment on the basis of res judicata and collateral

estoppel, contending that McShaffry’s suit presented an impermissible

collateral attack on the county court judgment.

McShaffry responded that res judicata did not bar his claims because his

claims against LBM did not accrue until after the county court had entered a

judgment against him. The trial court

granted summary judgment in favor of LBM.

Discussion

Standard of Review

An appellate court

reviews de novo a trial court’s ruling on a summary judgment motion. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). To succeed on a summary judgment motion under Texas Rule of Civil

Procedure 166a(c), a movant must establish that there is no genuine issue of

material fact so that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous.

Fin. Corp. , 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for summary

judgment on an affirmative defense must prove each element of its defense as a

matter of law, leaving no issues of material fact. Garza v. Exel Logistics, Inc. , 161 S.W.3d 473 , 475 n.10 (Tex.

2005). Res judicata and collateral

estoppel are affirmative defenses. Tex.

R. Civ. P. 94.

To conclusively

establish a matter, the movant must show that reasonable minds could not differ

as to the conclusion to be drawn from the evidence. City of Keller v.

Wilson, 168 S.W.3d 802, 816 (Tex. 2005). The evidence is reviewed in the

light most favorable to the non-movant, crediting favorable evidence if

reasonable jurors could and disregarding contrary evidence unless reasonable

jurors could not. Fielding , 289 S.W.3d at 848 (citing City

of Keller, 168 S.W.3d at 827 ). When,

as here, a trial court’s order granting summary judgment does not specify the

grounds relied upon, we affirm the summary judgment if any of the summary

judgment grounds is meritorious. FM

Props. Operating Co. v. City of Austin , 22 S.W.3d 868, 873 (Tex. 2000).

Analysis

When multiple grounds for summary judgment exist and the

trial court does not specify the ground on which it granted summary judgment,

an appellant must negate on appeal all possible grounds. Star-Telegram, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc. ,

68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If the appellant fails to negate each

possible ground upon which the judgment may have been granted, an appellate

court must uphold the summary judgment. See

Ellis , 68 S.W.3d at 898 . An

appellant also may assert a general complaint that the trial court erred in

granting summary judgment. See Malooly

Bros., Inc. v. Napier , 461 S.W.2d 119, 121 (Tex. 1970). McShaffry, however, makes no such assertion.

LBM moved for summary judgment against McShaffry on the

grounds of res judicata and collateral estoppel. Res judicata and collateral estoppel are

independent affirmative defenses.

Because the order granting summary judgment did not specify the

particular grounds on which it was rendered; McShaffry must defeat each of

these grounds. See Carr v. Brasher ,

776 S.W.2d 567, 569 (Tex. 1989).

Res judicata has been used as a broad term for the related

concepts of claim preclusion (res judicata) and issue preclusion (collateral

etoppel). Barnes v. United States Parcel

Serv., Inc. , No. 01-09-00648-CV, 2010 WL 6808024 , at *4 (Tex. App. Houston—[1st

Dist.] June 23, 2011); see Barr v.

Resolution Trust Corp. , 837 S.W.2d 627, 628 (Tex. 1992). However, within this doctrinal umbrella there

are two distinct legal theories—namely res judicata and collateral

estoppel. Barr , 837 at 628. Res

judicata prevents the relitigation of a claim or cause of action that has been

finally adjudicated in a prior lawsuit. Id .

Collateral estoppel, or issue preclusion, prevents relitigation of a

fact issue resolved in a prior dispute. Id. Although

claim preclusion and issue preclusion are related concepts, each provides a

distinct affirmative defense. Therefore,

McShaffry must negate on appeal both grounds upon which the trial court’s

judgment may have been granted.

We conclude that McShaffry has not briefed the alternative

ground of collateral estoppel. See Williams v. Crum & Forster

Commercial Ins. , 915 S.W.2d 39 , 42–43 (Tex. App.—Dallas 1995) (noting that

issue is waived when appellant fails to cite legal authority in support of

issue, as required by rules of appellate procedure, and thereby affirming

summary judgment because appellant had not properly challenged each ground

asserted in support of summary judgment), rev’d

on other grounds , 955 S.W.2d 267 (Tex. 1997). McShaffry confines his appeal to res

judicata, asserting that “[t]he trial court erred in granting Appellees’ res

judicata Motion for Summary Judgment because McShaffry did not have a claim against

Appellees until after the trial court entered a Judgment resolving all claims

against all parties in the previous lawsuit.”

McShaffry offers no legal analysis, argument, citations to the

record, nor any authorities to support his contention on appeal that his claims

are not barred by collateral estoppel. See Tex.

R. App. P. 38.1(h). Because the

trial court could have granted summary judgment on the basis that McShaffry’s

claims were barred by either res judicata or collateral estoppel, and McShaffry

did not brief the collateral estoppel ground, we must affirm the summary

judgment. See Ellis , 68 S.W.3d at 898 ; Iglesia

Hispana Nueva Vida Houston, Inc. v. Rosin , No. 01-06-00048-CV, 2007 WL

1633723 , at *3 (Tex. App.—Houston [1st Dist.] June 7, 2007, no pet.) (mem. op.)

(affirming summary judgment on collateral estoppel because appellant did not

address it as possible ground for trial court’s summary judgment ruling); McIntyre v. Wilson , 50 S.W.3d

674 , 681–82 (Tex. App.—Dallas 2001, pet. denied) (upholding summary

judgment because trial court could have granted summary judgment on ground that

appellant failed to adequately brief, by offering no discussion on issue,

making passing reference to ground in other issues, and citing generally to law

review article).

Nonetheless, we

conclude that the trial court properly granted summary judgment based on res

judicata. Res judicata prevents parties

and those in privity with them from relitigating a case that a competent

tribunal has adjudicated to finality. Ingersoll–Rand Co. v. Valero Energy Corp. ,

997 S.W.2d 203, 206 (Tex. 1999). Res

judicata bars claims or defenses that could have been litigated in the earlier

suit but were not. Id. at 206–07. “The doctrine

is intended to prevent causes of action from being split, thus curbing

vexatious litigation and promoting judicial economy.” Id. at 207 . Under the

doctrine of res judicata, a party is precluded from litigating a claim in a

pending action if: (1) in a previous action, a court of competent jurisdiction

rendered a final determination on the merits of a claim; (2) the parties that

litigated the prior claim are identical to or in privity with the parties

litigating the pending claim; and (3) the pending claim (a) is identical to the

prior claim or (b) arises out of the same subject matter as the prior claim and

could have been litigated in the previous action. Travelers

Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010); Amstadt v. U.S. Brass Corp. , 919 S.W.2d

644, 652 (Tex. 1996).

Judgments—except

judgments void for lack of jurisdiction—are not subject to collateral attack;

they may only be challenged on direct attack by appeal. Browning v. Placke , 698 S.W.2d 362, 363 (Tex. 1985). A collateral attack, unlike a direct attack,

seeks to avoid the effect of a judgment in a later proceeding not instituted

for the purpose of modifying or vacating the judgment, but instituted in order

to obtain some relief that the judgment currently stands as a bar against. Henderson v. Chambers , 208 S.W.3d 546,

550 (Tex. App.—Austin 2006, no pet.) (holding that wife’s suit based on fraud

claim was collateral attack on prior judgment); see Kendziorski v. Saunders , 191 S.W.3d 395, 408 (Tex. App.—Austin

2006, no pet.) (“A collateral attack . . . ‘is an attempt to avoid the effect

of a judgment in a proceeding brought for some other purpose.’”) (quoting Employers Cas. Co. v. Block , 744 S.W.2d

940, 943 (Tex. 1988)). “[T]he

prohibition against collateral attack extends to claims that false swearing or

fraud of a party to the judgment renders it voidable.” In re

Cantu , 961 S.W.2d 482, 486 (Tex. App.—Corpus Christi 1997, no writ) (citing

Glenn v. Dallas Cnty. Bois D’Arc Island

Levee Dist. , 268 S.W. 452 (Tex. 1925); Kaphan v. Fid. & Deposit Co. of Md. , 564 S.W.2d 459, 462 (Tex.

Civ. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.)).

McShaffry sued LBM alleging that LBM interfered with a

contract between McShaffry, Brindsen and Gerow by settling with Brindsen and

assigning the county court judgment to him.

McShaffry also alleged that LBM engaged in fraud by procuring false

testimony in the county court. According

to McShaffry, Brindsen paid LBM to settle the breach of commercial lease

claim in exchange for LBM’s participation in a county court trial. LBM then assigned the resulting judgment to

Brindsen so that Brindsen could obtain more money from McShaffry than he could

have under their agreement. In all

material respects, McShaffry’s claims in this case attack the judgment

against him in the county court, because each of them stems from allegations

that LBM obtained perjured testimony, with Brindsen’s help, in the earlier suit. McShaffry was a party to the suit, but chose

not to appear at the trial. McShaffry’s

claims present a collateral attack on the county court judgment: they are in

substance claims that the county court proceedings were intrinsically

fraudulent. But he makes no showing that

he could not raise have raised these claims before the county court, during the

proceeding to which he was a party. See Browning

v. Prostok , 165 S.W.3d 336, 346 (Tex. 2005) (holding that bondholders’

claims that directors fraudulently undervalued company in earlier bankruptcy

proceeding were intrinsic to bankruptcy court’s order and collateral attack on

the judgment); see also Henderson ,

208 S.W.3d at 550 (holding that wife’s suit based on claims her ex‑husband

and lawyers fraudulently mischaracterized property was collateral attack on

prior judgment). Because McShaffry’s

claims represent an attack on the integrity of the county court

proceedings—proceedings that involved the same nucleus of operative facts and

to which he was a party—his claims present an impermissible collateral attack

and are res judicata. [1] See

Browning , 165 S.W.3d at 346 ; see also Henderson , 208 S.W.3d at 550 .

Conclusion

We conclude that the trial court’s judgment, as based on

collateral estoppel grounds, was not challenged on appeal; the judgment may

stand on this basis alone. Further, the

trial court properly granted summary judgment based on the affirmative defense

of res judicata. Accordingly, we affirm

the judgment of the trial court.

Jane Bland

Justice

Panel consists of Chief Justice Radack and Justices

Bland and Huddle.

[1]

Although

the parties did not raise the issue, we note that judgments from county courts are

not always accorded the same common-law finality as judgments from other

courts. Section 31.004 of the Texas

Civil Practice and Remedies Code abrogates the general common law rules of res

judicata and collateral estoppel for county courts, justice courts, and small

claims courts. C/S Solutions, Inc., v.

Energy Maint. Servs. Group, LLC , 274 S.W.3d at 310; see Houtex Ready Mix Concrete & Materials v. Eagle Constr. &

Envtl. Serv. , 226 S.W.3d 514, 519 (Tex. App. Houston—[1st Dist.] 2006, no

pet.).

The statute provides:

(a) A judgment or a determination of fact or law

in a proceeding in a lower trial court is not res judicata and is not a basis

for estoppel by judgment in a proceeding in a district court, except that a

judgment rendered in a lower trial court is binding on the parties thereto as

to recovery or denial of recovery.

. . .

(c) For the

purposes of this section, a ‘lower trial court’ is a small claims court, a

justice of the peace court, a county court, or a statutory county court.

Tex. Civ. Prac. & Rem. Code Ann. §

31.004(a),(c) (West 2008). Texas courts have interpreted this statute to mean

that res judicata and collateral estoppel only bar claims “actually litigated”

in courts of limited jurisdiction. C/S

Solutions, Inc. , 274 S.W.3d at 310. Nonetheless, prior county court judgments are

binding as to recovery or denial of recovery; section 31.004 does not preclude

the res judicata effect of a county court judgment on matters actually

tried. See Tex. Civ. Prac. &

Rem. Code Ann. § 31.004. Because

McShaffry’s suit attacks matters actually tried in an effort to avoid the

recovery obtained against him, section 31.004 does not bar the res

judicata defense asserted here.