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Southern County Mutual Insurance Co. v. Ochoa3/2/2000
summary judgment evidence sufficient to raise an issue of fact on each element of the defense to avoid summary judgment. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678-9 (Tex. 1979); Neuhaus v. Richards, 846 S.W.2d 70, 74 (Tex. App.--Corpus Christi 1992), judgment set aside without reference to merits to effect settlement agreement, 871 S.W.2d 182 (Tex. 1994).
Res Judicata
Res judicata precludes relitigation of claims that have been finally adjudicated or that arise out of the same subject matter as a prior action and could have been litigated in the prior action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992); In re Estate of Ayala, 986 S.W.2d 724, 726 (Tex. App.--Corpus Christi 1999, no writ). It 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. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); Ayala, 986 S.W.2d at 726.
In the present case, Trinity raised the prior Stowers action as a defense to the present lawsuit. In July 1994, suit was filed in Bleeker's name against Trinity on a Stowers claim for negligently failing to settle the earlier claims made by the Ochoas that resulted in the January 1994 judgment against Bleeker for $11,500,000. Bleeker also sued for statutory causes of action under the DTPA and Texas Insurance Code based on the same conduct by Trinity. The trial court granted judgment against Trinity for $77,000,000. This Court affirmed the Stowers claim, but the Texas Supreme Court ultimately reversed and rendered judgment that Bleeker take nothing. Trinity Universal Ins. Co. v. Bleeker, 944 S.W.2d 672, (Tex. App.--Corpus Christi 1997), reversed, 966 S.W.2d 489 (Tex. 1998).
There is no dispute that the first element concerning a prior final judgment has been met in the present case. However, the Ochoas contend both that they were not parties to that judgment, and that it did not involve the same claims as the present contract action.
With regard to identity of parties, although the prior action was prosecuted in Bleeker's name, the Ochoas were the real parties in interest. After the Ochoas had recovered the original judgment against Bleeker, the trial court in that action signed a March 1, 1994, turnover order "that all causes of action which Ronnie Dale Bleeker may have against [Trinity] ... are hereby assigned to the Plaintiffs in proportion [to their interest in the judgment against Bleeker].... It is ordered that Plaintiffs are entitled to proceed to prosecute and settle all such assigned claims in the name of Ronnie Dale Bleeker." The Ochoas admit that, by virtue of this turnover order, they controlled the July 1994 lawsuit against Trinity.
Courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment which may be rendered. Ex parte Foster, 188 S.W.2d 382 (Tex. 1945); American Indemnity Co. v. Fellbaum, 263 S.W. 908, 910 (Tex. 1924); Elliott v. Hamilton, 767 S.W.2d 262, 263 (Tex. App.--Beaumont 1989, writ denied); Credit Bureau of Laredo, Inc. v. State, 515 S.W.2d 706, 709 (Tex. Civ. App.--San Antonio 1974), aff'd, 530 S.W.2d 288 (Tex. 1975); Ellison v. McGlaun, 482 S.W.2d 304, 310 (Tex. Civ. App.--Amarillo 1972, writ ref'd n.r.e.); Bragdon v. Wright, 142 S.W.2d 703, 705 (Tex. Civ. App.--Texarkana 1940, writ dism'd w.o.j.).
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