                             Fourth Court of Appeals
                                  San Antonio, Texas
                                         OPINION
                                     No. 04-11-00849-CV

                            AAA FREE MOVE MINISTORAGE, LLC,
                                        Appellant

                                               v.

                                 OIS INVESTMENTS, INC.,
                                         Appellee

                  From the 131st Judicial District Court, Bexar County, Texas
                               Trial Court No. 2010-CI-01619
                       Honorable John D. Gabriel, Jr., Judge Presiding

                       OPINION ON RECONSIDERATION EN BANC
Opinion by:      Luz Elena D. Chapa, Justice

Sitting en banc: Catherine Stone, Chief Justice
                 Karen Angelini, Justice
                 Sandee Bryan Marion, Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice
                 Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: October 30, 2013

REVERSED AND REMANDED

        This court previously granted appellee’s motion for reconsideration en banc. We now

 withdraw the panel’s November 21, 2012 opinion and judgment and issue this opinion and

 judgment in their place.
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        This appeal arises out of a dispute about the terms of a lease. OIS Investments, Inc.

(“OIS”) sued its landlord, AAA Free Move Mini Storage, L.L.C. (“AAA”), seeking a

declaratory judgment that AAA could not terminate the lease and that OIS was properly

in possession of the premises. AAA filed a counterclaim for declaratory judgment and trespass

to try title, and asserted various causes of action for damages arising out of OIS’s continued

possession of the premises. Both parties moved for summary judgment on the issue of the res

judicata effect of a final judgment denying possession in a forcible entry and detainer action

involving the same property. The district court granted summary judgment in favor of OIS and

awarded it attorney’s fees. AAA appeals the judgment. We hold the judgment in the forcible

detainer action does not bar litigation of the claims asserted by AAA in the district court, and we

reverse the trial court’s judgment.

                                         BACKGROUND

        In 1991, Official Inspection Station, Inc., which is now OIS Investments, Inc., entered

into a ground lease agreement with a previous owner for premises at 7100 Bandera Road. The

lease provided that it could be terminated under certain circumstances and provided for

extensions. The parties subsequently entered into negotiations to extend the lease, but later

disagreed about what the precise terms of the extension were.

        In 2009, AAA bought the premises and sent OIS a six-month notice of termination of the

lease pursuant to what AAA believed were the terms of the lease, as modified and extended.

After receiving the notice, but before the six-month period expired, OIS filed this declaratory

judgment action seeking declarations that AAA had no right to terminate the lease and OIS was

properly in possession of the premises. AAA filed a declaratory judgment counterclaim seeking



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a determination of whether the lease had been validly extended, and if so, a declaration of the

parties’ rights under the lease, including the conditions under which it could terminate the lease.

In addition, AAA asserted causes of action for trespass to try title, breach of contract, quantum

meruit, and tortious interference with existing and prospective business relations.

        While this suit was pending in the district court, AAA filed a forcible detainer action in

the justice court, asserting it had properly terminated the lease pursuant to its terms and was

entitled to immediate possession. The justice court in the detainer action rendered a take nothing

judgment in favor of OIS and awarded OIS its attorney’s fees and expenses. The judgment was

affirmed on appeal to the county court.

        Following the judgment in the county court, OIS moved for summary judgment in this

case on the ground that the final judgment in the detainer case was res judicata of the claims

made in this cause because the same issue—validity of AAA’s termination of the lease—was

decided in the county court. OIS argued that the county court ruled in its favor because it

necessarily found AAA could not terminate the lease. OIS argued the finding has “res judicata”

effect in this litigation, bars a declaratory judgment action to construe the lease, and precludes

AAA from arguing OIS breached the lease or tortiously interfered with its business relations by

remaining on the premises. AAA filed a counter-motion for partial summary judgment, seeking

a ruling that the judgment in the detainer case was not res judicata of its claims in this cause.

The district court denied AAA’s motion, granted final summary judgment in favor of OIS,

expressly disposing of all parties and claims, and awarded attorney’s fees to OIS. AAA appealed.

        While this appeal has been pending, AAA filed another detainer action against OIS,

alleging it was entitled to immediate possession because of nonpayment of rent. The justice

court issued a writ of possession, and the county court rendered judgment for AAA after a trial


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 de novo on appeal. This court affirmed the county court’s judgment on October 2, 2013. OIS

 Inv. Inc. v. AAA Free Move Ministorage, LLC., No. 04-12-00775-CV, 2013 WL 5508407 (Tex.

 App.—San Antonio Oct. 2, 2013, no pet. h.) (mem. op.). This court’s mandate has not yet issued.

                                             MOOTNESS

       AAA filed a suggestion of mootness, arguing that the causes of action for declaratory

judgment regarding the parties’ rights under the lease have become moot in light of the judgment

of eviction against OIS. AAA further asserted that the eviction effectively moots OIS’s res

judicata argument and AAA requested that we summarily reverse and remand for a trial on the

merits of AAA’s damages claims. We deny the motion. We agree the parties’ claims for

declaratory relief regarding their rights under the lease may become moot when OIS surrenders

possession and no longer claims any rights under the lease or when this court’s judgment in the

detainer suit becomes final. However, a final judgment in the detainer action will not moot AAA’s

causes of action for damages or the necessity of our deciding the issue upon which OIS prevailed

below—whether the county court’s judgment in favor of OIS in the first detainer case bars those

damage claims.

                                         APPLICABLE LAW

       The doctrine of res judicata prevents relitigation of a claim or cause of action that has been

finally adjudicated and all related matters that, with the use of diligence, should have been litigated

in the prior suit. State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001); Barr

v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). Res judicata requires proof of the

following elements: (1) a 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




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that 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).

        In this case, the first action was filed pursuant to Chapter 24 of the Texas Civil Practice

and Remedies Code and former Texas Rule of Civil Procedure 738, et seq. (repealed 2013). 1 A

forcible detainer suit is a special proceeding designed to provide a speedy, summary, and

inexpensive determination of the right to immediate possession of real property. Scott v. Hewitt,

90 S.W.2d 816, 818–19 (Tex. 1936); Dormady v. Dinero Land & Cattle Co., 61 S.W.3d 555, 557

(Tex. App.—San Antonio 2001, pet. dism’d w.o.j.). A detainer action in justice court may assert

only a claim for possession and a claim for rent within the justice court’s jurisdiction. See TEX.

R. CIV. P. 510.3(d). To facilitate the purpose of the detainer action, the only issue the justice court

may adjudicate is the right to actual immediate possession of the premises. Marshall v. Hous.

Auth. of City of San Antonio, 198 S.W.3d 782, 785–86 (Tex. 2006); Aspenwood Apt. Corp. v.

Coinmach, Inc., 349 S.W.3d 621, 635 (Tex. App.—Houston [1st Dist.] 2011, pet. granted); Black

v. Washington Mut. Bank, 318 S.W.3d 414, 416 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d

w.o.j.); Dormady, 61 S.W.3d at 557; see TEX. R. CIV. P. 510.3(c). No other issues, controversies

or rights of the parties related to the property, including title, can be adjudicated in a detainer suit.

TEX. R. CIV. P. 510.3(e); Puentes v. Fannie Mae, 350 S.W.3d 732, 738–39 (Tex. App—El Paso

2011, pet. dism’d); Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—Houston

[1st Dist.] 2007, no pet.). Neither counterclaims nor the joinder of suits against third parties are

permitted. TEX. R. CIV. P. 510.3(e). The county court’s authority in an appeal of a detainer

judgment from the justice court is similarly restricted. Nguyen, 229 S.W.3d at 435.



1
 The rules governing proceedings in justice courts, including detainer actions, were amended by the Texas Supreme
Court, effective August 31, 2013. 76 Tex. B.J. 440. The former rules governing forcible entry and detainer (Rules
738–755) were repealed and replaced by Rule 510, Eviction Cases. See TEX. R. CIV. P. 510.1, et seq.

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       Because of the limited nature of a detainer action, the legislature has further provided that

an eviction suit “does not bar a suit for trespass, damages, waste, rent, or mesne profits.” TEX.

PROP. CODE ANN. § 24.008 (West 2000). A forcible detainer action is cumulative of, not exclusive

of, other remedies that a party may have. Holcombe v. Lorino, 79 S.W.2d 307, 309 (Tex. 1935);

Dormady, 61 S.W.3d at 558.

                                            Discussion

       AAA contends the trial court erred in granting OIS summary judgment on res judicata

grounds because the detainer action adjudicated only the issue of immediate possession of the

premises. AAA argues the court in the detainer action did not adjudicate the ultimate rights of the

parties under the lease and that AAA could not have asserted its affirmative claims for relief in

that action. OIS argues that res judicata bars all the claims in this suit because the county court

specifically determined that AAA could not terminate the lease and that issue was finally

determined for all purposes.

       OIS relies primarily on this court’s 1974 opinion in Glau-Moya Parapsychology Training

Inst., Inc. v. Royal Life Ins. Co., 507 S.W.2d 824 (Tex. Civ. App.—San Antonio 1974, no writ).

In that case, Glau-Moya contended it was in possession of the leased premises pursuant to a valid

addendum that extended the lease. Id. at 824. Royal successfully pursued a forcible entry and

detainer action in the justice court. Id. at 825. On Glau-Moya’s appeal to the county court, Royal

argued the lease had terminated, Glau-Moya was holding over pursuant to an alleged lease

addendum that was invalid, and that Royal was entitled to immediate possession. Id. The county

court rendered judgment for Royal that it was entitled to actual immediate possession of the

premises. Id. Glau-Moya then filed suit in district court, where both parties sought declaratory




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judgments as to the validity of the lease addendum and whether the lease had terminated. The

district court granted summary judgment in favor of Royal. Id.

       On appeal, this court stated that even though the only issue adjudicated by the county court

in the detainer action was the right to possession, “the real issue” was the rights of the parties

under the lease and the validity of the addendum. Id. at 826. The court held that determining the

right of immediate possession “necessarily involved a construction and determination by the trial

court of the validity of the addendum” and making “a determination of whether the lease [was]

terminated.” Id. The court held that fact question was conclusively settled by the county court’s

final judgment and could not be further litigated in a subsequent suit between the same parties.

Id. at 827. Relying on Young Women’s Christian Ass’n v. Hair, 165 S.W.2d 238 (Tex. Civ.

App.—Austin 1942, writ ref’d w.o.m.) and Rankin v. Hooks, 81 S.W. 1005 (Tex. Civ. App.—

Dallas 1904, no writ) (holding judgment of possession in detainer suit was res judicata of

subsequent suit in district court as to validity of lease), overruled by Johnson v. Highland Hills

Drive Apts., 552 S.W.2d 493 (Tex. Civ. App.—Dallas 1977), writ ref’d n.r.e., 568 S.W.2d 661

(Tex. 1978) (per curiam), this court concluded that the judgment in the detainer suit was

conclusive of the matters before the court. Id.

       AAA contends the weight of authority is against the holding in Glau Moya, that it was

wrongly decided, and that we should expressly overrule it. In support of its position, AAA relies

primarily on the Dallas Court of Appeals’s decision in Johnson v. Highland Hills Drive Apts., 552

S.W.2d 493 (Tex. Civ. App.—Dallas 1977), writ ref’d n.r.e., 568 S.W.2d 661 (Tex. 1978) (per

curiam). Johnson sued Highland Hills Drive Apartments for wrongful eviction after it evicted her

in a forcible detainer action. Id. at 494. The trial court granted summary judgment for Highland




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Hills on the ground that the judgment in the detainer suit was res judicata of Johnson’s wrongful

eviction action. Id.

       In ruling for Johnson, the Dallas court of appeals discussed both Glau-Moya and that

court’s earlier decision in Rankin v. Hooks. Id. at 494–95. The court noted that neither opinion

referred to article 3994 of the Texas Revised Civil Statutes (now section 24.008 of the Texas

Property Code). Id. The court construed former article 3994 as expressing a clear legislative

intent that a judgment of possession in a forcible detainer action is no bar to subsequent litigation

in the district court based on the same facts. Id. at 495. It found this construction to be consistent

with the theory that a forcible detainer action is intended to determine only who is entitled to

immediate possession of the premises and is cumulative of other remedies, rather than exclusive.

Id. at 495; see Holcombe, 79 S.W.2d at 309. The court concluded its analysis by holding:

       [W]hen properly construed, article 3994 prevents any issue in the detainer action,
       other than immediate possession, from acting as an estoppel by judgment in a
       subsequent action in the district court with respect to a determination of the adverse
       parties’ rights under a lease even though this determination may very well result in
       a different ultimate disposition of possession of the premises. . . . [T]he judgment
       of possession is . . . a final determination only with respect to the right of immediate
       possession. . . . [It] does not determine the ultimate rights of the parties with respect
       to any other issue in controversy regardless of whether this other issue results in a
       change of possession of the premises.

Johnson, 552 S.W.2d at 495–96. The court expressly rejected the holding in Glau-Moya as

erroneous and expressly overruled its earlier decision in Rankin. Id. at 495.

       We recognize that OIS has cited cases that support its position and the holding in Glau-

Moya. See Dubose v. Curtin, 341 S.W.2d 188 (Tex. Civ. App.—Houston 1960, writ ref’d n.r.e.);

Baines v. Clinton Park Dev. Co., 224 S.W.2d 729 (Tex. Civ. App.—Galveston 1949, no writ);

Dyches v. Ellis, 199 S.W.2d 694 (Tex. Civ. App.—Austin 1947, no writ); Hair, 165 S.W.2d 238.

However, since the Johnson court rejected Glau-Moya, Texas courts have uniformly recognized


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that because “a judgment of possession in a forcible detainer action is a determination only of the

right to immediate possession and does not determine the ultimate rights of the parties to any other

issue in controversy relating to the realty in question.” Nguyen, 229 S.W.3d at 437; see

Aspenwood, 349 S.W.3d at 637; Black 318 S.W.3d at 417; Lopez v. Sulak, 76 S.W.3d 597, 605

(Tex. App.— Corpus Christi 2002, no pet.). This court so recognized in Valencia v. Garza, 765

S.W.2d 893, 899 (Tex. App.—San Antonio 1989, no writ), where we held that because the final

judgment in a forcible entry and detainer suit determined only the question of immediate

possession and did not determine the ultimate rights of the parties to any other issue in controversy

relating to the subject property, the take-nothing judgment in the detainer suit was not res judicata

of the rights of the parties to possession in a subsequent district court action. It is also now settled

that a judgment of possession in a forcible detainer action is not a final determination of whether

the eviction was wrongful, Marshall, 198 S.W.3d at 787, and does not bar or estop a subsequent

suit by the lessee for wrongful eviction. Garcia v. Galvan, Nos. 14-11-00338-CV—14-11-00350-

CV, 2012 WL 1606312, at *4 (Tex. App.—Houston [14th Dist.] May 8, 2012, pet. dism’d w.o.j.)

(mem. op.) (discussing cases).

        Accordingly, the more recent cases recognize that because of the limited matter

adjudicated in a forcible detainer action, a subsequent suit in district court may adjudicate matters

relating to the property that could result in a different determination of possession from that

rendered in the forcible detainer suit. Aspenwood, 349 S.W.3d at 637; Nguyen, 229 S.W.3d at

437. In Aspenwood v. Coinmach, a dispute arose about the status of a commercial lease after the

property changed owners.       A forcible detainer action resulted in a final judgment against

Aspenwood, the owner of the property. 349 S.W.3d at 627. Aspenwood then filed suit in district

court seeking a declaration that Coinmach had no leasehold interest and asserted causes of action



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for trespass to try title, breach of contract, violations of the Deceptive Trade Practices Act, fraud,

and tortious interference with contract and prospective business relations. Id. at 627–28. The

court of appeals held that the justice and county courts in the detainer action were authorized to

resolve only the question of immediate possession and the judgment therein was not a

determination of Coinmach’s ultimate rights, if any, under the lease. Id. at 637. The court

concluded that the judgment in the detainer action therefore could not be res judicata of any of the

issues or claims in the district court action. Id. at 638; see also Lopez, 76 S.W.3d at 606 (holding

that judgment granting landlord possession in forcible detainer action is not res judicata of tenant’s

trespass to try title suit in district court claiming breach of contract, fraud, and tortious interference

with business relations); Buttery v. Bush, 575 S.W.2d 144 (Tex. Civ. App.—Tyler 1979, writ ref'd,

n.r.e.) (holding that judgment of eviction in justice court is not res judicata of subsequent

declaratory judgment action regarding validity of lease and rights of parties under lease and

renewal option).

        OIS also argues that section 31.004 of the Texas Civil Practice and Remedies Code

supports its argument that the judgment in the first detainer suit is res judicata of all the claims in

the present action because the county court found AAA was not entitled to terminate the lease.

That section, in its entirety, states:

        (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.

        (b) This section does not apply to a judgment in probate, guardianship, mental
        health, or other matter in which a lower trial court has exclusive subject matter
        jurisdiction on a basis other than the amount in controversy.




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       (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 (West 2008).

       We initially question whether this section has any application at all in determining the

effect of a judgment in a forcible detainer action because of the exclusion in part (b) for judgments

in matters “in which a lower trial court has exclusive subject matter jurisdiction on a basis other

than the amount in controversy.” Id. § 31.004(b). Because justice courts have exclusive

jurisdiction over forcible detainer actions, it would appear that section 31.004 is inapplicable in

its entirety and does not aid in our analysis of this case. But see McCloud v. Knapp, 507 S.W.2d

644, 647–48 (Tex. Civ. App.—Dallas 1974, no writ) (holding that article 2226a (predecessor to

section 31.004) applies to judgment in forcible entry and detainer actions because justice court

does not have exclusive jurisdiction to determine the right of possession of real property, declare

parties’ rights, or determine damage claims).

       If, as OIS argues, section 31.004(a) applies to a judgment in a forcible detainer case, that

statute supports the conclusion we reach today: that the judgment of the justice or county court in

a detainer action is binding on the parties only with respect to the award or denial of immediate

possession of the premises. See id. (holding that judgment for possession in detainer suit is not

res judicata in tenant’s suit for enforcement of oral contract for lifetime tenancy). In Webb v.

Persyn, 866 S.W.2d 106 (Tex. App.—San Antonio 1993, no writ), this court construed and applied

section 31.004(a). In that case, a county court rendered a default judgment against Persyn for

property damage caused in an automobile accident. Id. at 107. Persyn argued that a subsequent

suit filed in district court for personal injury damages was barred by res judicata. Id. at 107–08.

This court held that the county court judgment was binding on the parties only as to the award of

property damages. Id. The court held that the county court judgment did not bar or have any

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other collateral estoppel effect on the personal injury suit. Id. The court specifically held that the

first clause of section 31.004(a) meant that Persyn could relitigate the question of fault, even

though the county court had resolved that fact issue against him. Id. at 108. Thus, to the extent

that section 31.004 of the Civil Practice and Remedies Code applies to detainer judgments, the

justice or county court’s factual or legal determinations subsidiary to the award of possession or

denial of possession have no collateral estoppel or res judicata effect in a subsequent district court

action between the same parties.

        We conclude that Glau-Moya was incorrectly decided and we overrule it. The holding in

Glau-Moya is inconsistent with the purpose of detainer suits to provide a limited, speedy remedy,

failed to recognize the limited nature of the issue adjudicated in such suits, and failed to give effect

to the predecessor of section 24.008 of the Property Code. This court has never cited the opinion

and it has not been followed by any other court. We agree with the reasoning of the court in

Johnson and hold that no issue in a detainer action other than the right of immediate possession

has preclusive effect in a subsequent suit between the parties. See Johnson, 552 S.W.2d at 495.

The right of immediate possession is not an issue in this case. Rather, the issues in this case

involve the validity and terms of the renewal and extension of the lease, the parties’ ultimate rights

under the lease, and the damages, if any, AAA suffered as a result of any wrongful possession by

OIS. These issues are distinct from the right of immediate possession that was adjudicated by the

county court. Accordingly, the judgment in the detainer action is not res judicata of any of the

claims asserted in this cause, and we reverse the trial court’s judgment that disposed of all the

claims on res judicata grounds.




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                                            ATTORNEY’S FEES

        Because we reverse the summary judgment in favor of OIS on both its and AAA’s

declaratory judgment claims and on AAA’s breach of contract claim, we also reverse the award

of attorney’s fees to enable the trial court to reconsider the fees after it considers the claims on

remand. See Grohman-Kahlig v. Kahlig, No. 04-07-00468-CV, 2008 WL 5377704 (Tex. App.—

San Antonio Dec. 17, 2008, no pet.) (mem. op.) (op. on r’hg). 2

                                                CONCLUSION

        We hold the trial court erred in granting summary judgment to OIS on its suit for

declaratory judgment and on AAA’s counterclaims for declaratory judgment, trespass to try title,

breach of contract, quantum meruit, and tortious interference with contract or prospective business

relations on the ground that the county court’s judgment in the forcible detainer action was res

judicata of the claims. The court also erred in awarding attorney’s fees to OIS. We reverse the

judgment and remand the entire case to the trial court for further proceedings consistent with this

opinion. To the extent it is inconsistent with this opinion, we overrule Glau-Moya Parapsychology

Training Inst., Inc. v. Royal Life Ins. Co., 507 S.W.2d 824 (Tex. Civ. App.—San Antonio 1974,

no writ). We deny the motion to dismiss the appeal for mootness. It is for the trial court on remand

to determine whether any of the parties’ claims have become moot by reason of the judgment in

the second detainer suit.


                                                        Luz Elena D. Chapa, Justice




2
  AAA argued alternatively that we should reverse the fee award because OIS failed to expressly move for summary
judgment on that ground. Because of our disposition of the rest of the appeal, we need not decide that issue.

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