                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00385-CV

TC & C REAL ESTATE HOLDINGS, INC.,
                                                             Appellant
v.

DANIEL RAY SHERROD AND WENDY SHERROD,
                                  Appellees


                            From the 87th District Court
                             Limestone County, Texas
                              Trial Court No. 29,970-B


                           MEMORANDUM OPINION


       TC & C Real Estate Holdings, Inc. brings this appeal from the trial court's

judgment granting summary judgment in favor of Danny and Wendy Sherrod. For

over twenty years, TC & C has been trying to buy the Sherrods' property. This is the

third time that TC & C has filed suit to try to force a sale. This is the third time that TC

& C has not been successful in the trial court. This is the third time TC & C and has

appealed the trial court’s decision. This is the third time we have affirmed the relevant

portion of the trial court’s judgment.
SUMMARY JUDGMENT

        In its first two issues, TC & C asserts that the trial court erred in granting the

Sherrods’ motion for summary judgment and in denying its motion for summary

judgment.

Standard of Review

        We review a trial court's decision to grant or deny a motion for summary

judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d

184, 192, 199 (Tex. 2007) (citing rule for review of grant of summary judgment and

reviewing denied cross-motion for summary judgment under same standard); BMTP

Holdings, L.P. v. City of Lorena, 359 S.W.3d 239, 243 (Tex. App.—Waco 2011), aff'd 409

S.W.3d 634 (Tex. 2013). In our review of cross-motions for summary judgment, we

review the summary judgment evidence presented by each party, determine all

questions presented, and render the judgment that the trial court should have rendered.

Tex. Mun. Power Agency, 253 S.W.3d at 192 (citing Comm'rs Court v. Agan, 940 S.W.2d 77,

81 (Tex. 1997)). In the summary judgment context, we review the record "in the light

most favorable to the nonmovant, indulging every reasonable inference and resolving

any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

If, as in this case, an order granting the summary judgment does not specify the

grounds upon which judgment was rendered, we must affirm the summary judgment if

any of the grounds in the summary judgment motion is meritorious.              FM Props.


TC & C Real Estate Holdings, Inc. v. Sherrod                                        Page 2
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Lotito v. Knife River

Corporation-South, 391 S.W.3d 226, 227 (Tex. App.—Waco 2012, no pet.).

        Under the traditional summary judgment standard, the movant has the burden

to show that no genuine issues of material fact exist and that it is entitled to judgment as

a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d

546, 548 (Tex. 1985); Lotito, 391 S.W.3d at 227. A defendant who conclusively negates at

least one of the essential elements of a cause of action or conclusively establishes each

element of an affirmative defense is entitled to summary judgment. Randall's Food Mkts.

v. Johnson, 891 S.W.2d 640 (Tex. 1995). The granting of a no-evidence motion will be

sustained when "(a) there is a complete absence of evidence of a vital fact, (b) the court

is barred by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms.,

Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

Procedural Background

        TC & C alleged in its First Amended Original Petition in the underlying

proceeding that the Sherrods breached a contract with TC & C which “entitled TC & C

to purchase the [] property…if and when the property is offered for sale by the

Sherrods.” They further alleged that its right to purchase the property was triggered


TC & C Real Estate Holdings, Inc. v. Sherrod                                           Page 3
when the Sherrods voluntarily entered into an oil and gas lease and that the Sherrods

breached the contract when they failed to first tender the sale of the property to TC & C.

The Sherrods denied TC & C’s allegations and filed a counterclaim to remove a cloud

on the title to their property created by TC & C and to request a declaration from the

trial court that TC & C has no “legal, contractual, or equitable interest in” the Sherrods’

property.

        Both the Sherrods and TC & C filed no-evidence and traditional motions for

summary judgment. Both traditional motions for summary judgment asserted the plea

in bar of res judicata. We recognize that if a no-evidence motion for summary judgment

and a traditional motion for summary judgment are filed which, respectively, asserts

the plaintiff has no evidence of an element of its claim and, alternatively, asserts that the

movant has conclusively negated that same element of the claim, we address the no-

evidence motion for summary judgment first. Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 600 (Tex. 2004).       The rule does not apply when the no-evidence motion for

summary judgment and the traditional motion for summary judgment are not on the

same grounds. See e.g., Lotito v. Knife River Corporation-South, 391 S.W.3d 226, 227, n. 2

(Tex. App.—Waco 2012, no pet.) (“if the traditional motion is based on the legal

question of whether the plaintiff is asserting a recognized legal claim, we must first

address that issue before proceeding to review a judgment based on a no-evidence

motion for summary judgment which purports to attack elements of the alleged


TC & C Real Estate Holdings, Inc. v. Sherrod                                           Page 4
claim.”). The rule also does not apply when, as here, the movant asserts a plea at bar,

such as res judicata, only in the traditional motion for summary judgment; and thus, we

may address that assertion first. Accordingly, we address the parties’ claims of res

judicata.

Res Judicata (a.k.a. the “we’ve been down this road before” defensive bar)

        Res judicata bars the relitigation of claims that have been finally adjudicated, or

that could have been litigated, in a prior action. See Barr v. Resolution Trust Corp., 837

S.W.2d 627, 628 (Tex. 1992). For res judicata to apply, the following elements must be

present: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2)

the same 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. Igal v. Brightstar

Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008); Citizens Ins. Co. v. Daccach, 217

S.W.3d 430, 449 (Tex. 2007). Thus, a party may not pursue a claim determined by the

final judgment of a court of competent jurisdiction in a prior suit as a ground of

recovery in a later suit against the same parties. Igal, 250 S.W.3d at 86; Tex. Water Rights

Comm'n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex. 1979).

        In their traditional motion for summary judgment, the Sherrods asserted that in

the first suit, they expressly sought a judicial declaration that TC & C had no interest in

the property, the trial court granted that relief, and that portion of the trial court’s

judgment was not reversed by this Court. The Sherrods further asserted that in the


TC & C Real Estate Holdings, Inc. v. Sherrod                                          Page 5
second suit, they moved for summary judgment on the ground that TC & C’s claims

were barred by res judicata and had been or should have been finally determined in the

previous lawsuit; the trial court granted the Sherrods’ motion “in all things;” and this

Court determined in its judgment that “there was no error in the judgment of the court

below.” Thus, their argument continued, in this third suit, TC & C’s claim that the

Sherrods breached a contract, that being the right of first refusal, is barred by res

judicata as well.     TC & C, in turn, claimed in its traditional motion for summary

judgment that the Sherrods were precluded by res judicata from prevailing on their

claims because of this Court’s two previous opinions, and arguing that the Court’s

holding was that TC & C had a right of first refusal to the property. See T.C. & C. Real

Estate Holdings, Inc. v. Sherrod, No. 10-05-00124-CV, 2007 Tex. App. LEXIS 2347 (Tex.

App.—Waco Mar. 21, 2007, no pet.) (mem. op.); TC & C Real Estate Holdings, Inc. v.

Sherrod, No. 10-02-00002-CV (Tex. App.—Waco Aug. 22, 2001, no pet.) (mem. op.). As

will be explained, we agree with the Sherrods’ arguments and, in particular, with their

interpretation of the legal effect of the trial court’s and this Court’s judgments.

The First Suit

        First, a right of first refusal is an interest in property. Williams v. State, 406

S.W.3d 273, 281 n. 2 (Tex. App.—San Antonio 2013, pet. denied); Benefit Realty Corp. v.

City of Carrollton, 141 S.W.3d 346, 350-51 (Tex. App.—Dallas 2004, pet. denied).

        Second, our opinions are not what the trial court enforces. It is our judgment


TC & C Real Estate Holdings, Inc. v. Sherrod                                          Page 6
that a trial court must enforce when it receives the appellate court mandate, TEX. R. APP.

P. 51.1(b), and a trial court has no discretion to interpret or review an appellate court's

mandate or judgment. In re Castle Tex. Prod. Ltd. P'ship, 157 S.W.3d 524, 527 (Tex.

App.—Tyler 2005, orig. proceeding); Martin v. Credit Protection Ass'n, 824 S.W.2d 254,

255 (Tex. App.—Dallas 1992, writ dism'd woj); Schliemann v. Garcia, 685 S.W.2d 690, 692

(Tex. App.—San Antonio 1984, orig. proceeding).

        Third, the summary judgment evidence shows that, in the first suit initiated by

TC & C, the trial court’s judgment granted the Sherrods’ request for a declaration that

TC & C had no interest in the Sherrods’ property and specifically stated in the judgment

that TC & C had no interest in the property. Although the trial court used the term

“find” in its judgment when it declared TC & C had no interest in the Sherrods’

property and TC & C complained in its first appeal that we should ignore “findings” in

the trial court’s judgment, TC & C did not specifically complain about the declarative

nature of the trial court’s “finding.” Further, it was findings of fact that was the subject

of TC & C’s brief in the first appeal, not “findings” in the nature of holdings or a

determination of claims. Moreover, it is “findings of fact” that is prohibited from being

given effect in the judgments, not the holdings or declarations therein. See TEX. R. CIV.

P. 299a (“Findings of fact shall not be recited in a judgment.”). Finally, this Court, in

our first opinion, considered only the “findings of fact” TC & C specifically challenged

and thus did not address this particular “finding” or, more importantly, the related


TC & C Real Estate Holdings, Inc. v. Sherrod                                          Page 7
declaration of the rights of the parties.

        Nevertheless, judgments, like other written instruments, are to be construed as a

whole toward the end of harmonizing and giving effect to all the court has written.

Constance v. Constance, 544 S.W.2d 659, 660 (Tex. 1976). Conclusive effect is not to be

given the use or not at a particular point in the judgment of the commonly employed

decretal words, and what the court has adjudicated is to be determined from a fair

reading of all the provisions of the judgment. Id. From a fair reading of the trial court’s

judgment, the trial court, granted the Sherrods’ request for a declaratory judgment and

declared that TC & C had no interest in the Sherrods’ property.

        We also did not address the propriety of the declaratory judgment in our first

opinion because TC & C did not preserve the issue for appeal.             Further, in our

judgment, we did not reverse that portion of the trial court’s judgment which granted

the Sherrods a declaratory judgment. We only reversed the portion of the trial court’s

judgment that held TC & C was not entitled to the return of its earnest money and

rendered a judgment that TC & C recover $1,500 from the Sherrods.                 But, the

declaration by the trial court that TC & C had no interest in the Sherrods’ property

remained intact.

The Second Suit

        The summary judgment evidence also shows that after TC & C filed its second

suit against the Sherrods claiming it was entitled to specific performance based on the


TC & C Real Estate Holdings, Inc. v. Sherrod                                         Page 8
same right of first refusal at issue in the first suit, the Sherrods filed a motion for

summary judgment arguing that 1) TC & C’s claims in its second suit were barred by

res judicata because a final judgment was entered in the previous suit that TC & C had

no interest in the Sherrods’ property; 2) even if the right of first refusal was not barred

by res judicata, a condition precedent to exercising that right had not occurred; 3) this

Court affirmed the trial court’s declaratory judgment that TC & C had no interest in the

property; and 4) Rebecca Mooring was not an independent party but an agent of

Cameron Henderson, the owner of TC & C. The trial court granted the Sherrods’

motion for summary judgment “in all things.”

        On appeal to this Court, TC & C made what is generally referred to as a

“Malooly” issue challenging, as it must, all the grounds raised in the Sherrods’ motion

for summary judgment and upon which the judgment granting the motion could have

been supported. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (stating

that summary judgment "must stand," because "it may have been based on a ground not

specifically challenged by the plaintiff" and because "there was no general assignment

that the trial court erred in granting summary judgment").          Specifically, TC & C

complained that “the trial court erred in granting the Sherrods’ motion for summary

judgment and in denying its motion for summary judgment because the Sherrods

granted TC & C a right to purchase the property and that right vested when an offer to

purchase the property by a third party was communicated to the Sherrods.” T.C. & C.


TC & C Real Estate Holdings, Inc. v. Sherrod                                         Page 9
Real Estate Holdings, Inc. v. Sherrod, No. 10-05-00124-CV, 2007 Tex. App. LEXIS 2347, *2

(Tex. App.—Waco Mar. 21, 2007, no pet.) (mem. op). We focused only on one ground in

the Sherrods’ motion. That ground was the second one referred to above: that even if

the right of first refusal was not barred by res judicata, a condition precedent to

exercising that right had not occurred; the Sherrods had not decided to sell the

property. Writing to only address this particular argument, we did not determine

whether or not res judicata applied. Because we are not required to determine whether

every ground raised in a motion for summary judgment is meritorious when the trial

court does not specify the ground or grounds it relied upon in granting summary

judgment, see FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000),

our silence on the Sherrods’ ground for summary judgment based on res judicata did

not suggest that res judicata did not apply and that the Sherrods’ other grounds were

not meritorious. Having decided the issue on one ground, it was unnecessary for the

Court to address the remaining grounds that might also have supported the trial court’s

judgment granting the motion for summary judgment. See TEX. R. APP. P. 47.1 (opinion

must be as brief as practicable but that addresses every issue raised and necessary to

final disposition). Further, our judgment affirmed the trial court’s summary judgment

which had granted the Sherrods’ motion “in all things.”

Conclusion

        Accordingly:


TC & C Real Estate Holdings, Inc. v. Sherrod                                     Page 10
        A) In the first suit,

                1. after the trial court having declared that TC & C had no interest
                   in the Sherrods’ property, and

                2. this Court having left undisturbed that portion of the trial
                   court’s judgment; and

        B) In the second suit,

                1. the trial court then having granted a summary judgment “in all
                   things” with one ground being res judicata, and

                2. this Court having affirmed the trial court’s judgment; therefore

        C) In this, the third suit,

                1. We hold TC & C’s interest in the property has previously been
                   finally adjudicated, moreover

                2. res judicata bars TC & C from pursuing any claim related to
                   having acquired an interest in the Sherrods’ property.

Thus, the trial court did not err in granting the Sherrods’ motion for summary judgment

and in declaring, again, that TC & C has no interest in the Sherrods’ property. For the

same reasons, the trial court did not err in denying TC & C’s motion for summary

judgment.

        TC & C’s first two issues are overruled.

OBJECTIONS TO SUMMARY JUDGMENT EVIDENCE

        In its third issue, TC & C contends the trial court erred in failing to sustain all its

objections to the Sherrods’ late filed affidavit attached to their response to TC & C’s

motion for summary judgment. We did not rely on this affidavit in our review of the
TC & C Real Estate Holdings, Inc. v. Sherrod                                            Page 11
Sherrods’ motion for summary judgment. Thus, even if the trial court erred, TC & C

was not harmed. See TEX. R. APP. P. 44.1(a). TC & C’s third issue is overruled.

CONCLUSION

        Having overruled each of TC & C’s issues on appeal, we affirm the trial court’s

judgment.




                                               TOM GRAY
                                               Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 21, 2014
[CV06]




TC & C Real Estate Holdings, Inc. v. Sherrod                                      Page 12
