                                  NO. 07-05-0402-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                JANUARY 24, 2007
                         ______________________________

                                    JAMES DYKES,

                                                              Appellant

                                            v.

                                  GARY CRAUSBAY,

                                                     Appellee
                       _________________________________

        FROM THE COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY;

              NO. 05-31,305-2; HON. JENNIFER RYMELL, PRESIDING
                       _______________________________

                                    Opinion
                        _______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      James Dykes (Dykes) appeals from a summary judgment denying him recovery

against Gary Crausbay (Crausbay). The latter had moved for summary judgment on the

ground that Dykes’ claim was barred by the defense of res judicata; that is, the claim was

a compulsory counterclaim to one initiated by Crausbay in and adjudicated by a small

claims court in Tarrant County. The trial court agreed with Crausbay and expressed as
much in its order. Before us, Dykes asserts that the trial court erred in concluding that res

judicata barred his recovery. We agree and reverse the judgment.

       Background

       Crausbay sued Dykes in small claims court for claims arising from a lease

agreement. His basis for recovery consisted of “breach of contract and fraudulently

reporting me to [a] collection agency and credit bureau deposit and expenses on duplex

.” The small claims court directed a verdict against Crausbay, but before it did, Dykes

initiated suit against Crausbay in a local county court at law for breach of the lease

agreement. The sums he prayed for consisted of $3,560.75 in damages and $2,500 for

attorney’s fees at the trial level if the cause was undisputed. Attorney’s fees for defending

an appeal and totaling $7,000 were also sought.

       As previously mentioned, Crausbay moved for summary judgment because he

believed that Dykes’ claim was barred by res judicata. This was purportedly so because

Dykes’ suit involved the same issues, evidence and “persons” as the suit brought by

Crausbay in the small claims court. Furthermore, Dykes’ claims purportedly had been or

should have been tried in that proceeding.

       Discussion

       The doctrine of res judicata “does not bar a former defendant who asserted no

affirmative claim for relief in an earlier action from stating a claim in a later action that could

have been filed as a . . . counterclaim in the earlier action, unless the claim was

compulsory in the earlier action.” Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d

203, 207 (Tex. 1999). A counterclaim is compulsory only if it is within the jurisdiction of the



                                                2
trial court, it is not at the time of filing the answer the subject of a pending action, it is

mature and owned by the defendant at the time of filing the answer, it arose out of the

same transaction or occurrence that is the subject matter of the opposing party’s claim, it

is against an opposing party in the same capacity, and it does not require the presence of

third parties over whom the court lacks jurisdiction. Id.

       Next, a small claims court has original jurisdiction of civil matters in which exclusive

jurisdiction is not vested in the district or county court and in which the amount in

controversy is not more than $5,000, exclusive of interest.          TEX . GOV’T CODE ANN .

§27.031(a)(1) (Vernon 2004). These limitations apply to both original and counterclaims.

See Smith v. Clary, 917 S.W.2d 796, 798 (Tex. 1996) (stating that a counterclaim, whether

permissive or compulsory, must be within the trial court’s jurisdiction); French v. Moore,

169 S.W.3d 1, 7-8 (Tex. App.– Houston [1st Dist.] 2004, no pet.) (stating that counterclaims

must meet the jurisdictional limit independently, and one which exceeds the jurisdictional

limit may not be brought in justice court). Furthermore, when determining the amount in

controversy, we look at and accept as true the monetary allegations in the petition, unless

the opponent expressly alleges that those allegations were proffered as a sham. Bland

Indep. School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). So too do we include

attorney’s fees in the calculation. Garza v. Chavarria, 155 S.W.3d 252, 256 (Tex. App.–El

Paso 2004, no pet.); Printing Center of Texas, Inc. v. Supermind Pub. Co., Inc., 669

S.W.2d 779, 785 (Tex. App.–Houston [14th Dist.] 1984, no writ).

       As disclosed by the face of Dykes’ original petition, he sought approximately $3,500

in damages and $2,500 in attorney’s fees. Together, they exceed the $5,000 jurisdictional



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limit of the small claims court. Thus, Dykes’ claim was not a compulsory counterclaim; so,

its prosecution in the county court at law was not barred by the doctrine of res judicata.1

        The trial court having erred in accepting Crausbay’s defense of res judicata, we

reverse the judgment and remand the cause for further proceedings.



                                                             Brian Quinn
                                                             Chief Justice




        1
           That Crausbay arg ues ju risdiction would have existe d if D yke s sim ply re quested a “reasonable
atto rney’s fee” as opposed to a specific dollar amount is of no import. W e look at what was pled, not what
could have be en p led. Se e G arza v . Chavarria, 155 S.W .3d 252, 257 n.3 (Te x. Ap p.–E l Paso 20 04, no pe t.)
(noting that a trial court m ay have ju risdiction over a cause where the dam ages sought fall within its
jurisdictional limits a nd the pro pon ent sim ply proffered a generic request for an unspecified amount of
atto rney’s fees). And, to the extent Crausbay suggests that the demand for $2,500 in fees was simply a sham,
it was his burden to prove that as a matter of law. After all, his affirmative defense of res judicata was
dependent upon Dykes’ claim being within the jurisdiction of the justice court. So, since one invoking an
affirmative defense via summ ary judgment has the burden to prove each aspect of the defense , Pustejovsky
v. Rapid-A me rican Corp., 35 S.W .3d 643, 646 (Tex. 2000), and to prove res judicata, Dykes’ claim had to be
with in the jus tice court’s jurisdiction, Crausbay had the obligation to establish, as a matter of law, that Dykes’
request for $2,500 in attorney’s fees was baseless. He cites us to no evidence of record illustrating that he
did so. Nor did our ow n re view of the re cord uncover an y.

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