Opinion issued September 28, 2017




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-16-00481-CV
                            ———————————
    PREMIUM PLASTICS SUPPLY, INC., REGINALD BARHAM, AND
                 CAROL BARHAM, Appellants
                                         V.
          THOMAS HOWELL AND LAURA HOWELL, Appellees


                    On Appeal from the 189th District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-59650


                                   OPINION

      This case involves a trial court proceeding to confirm an arbitration award in

a commercial landlord-tenant dispute. Landlords Thomas and Laura Howell,

appellees here, filed suit in the trial court to confirm an arbitration award in their

favor against their former tenants, appellants Premium Plastics Supply, Inc. and
Reginald and Carol Barham. After the Howells moved for summary judgment,

appellants filed counterclaims for improper lockout under the Property Code,

unauthorized access, and breach of oral agreements. The trial court granted partial

summary judgment confirming the arbitration award. The Howells subsequently

moved for summary judgment on appellants’ counterclaims, arguing that they were

barred by res judicata because they should have been raised in the now-concluded

arbitration proceeding. The trial court granted summary judgment on the

counterclaims.

      Appellants appeal the trial court’s summary judgment entered on their

counterclaims.1 In their sole issue on appeal, they argue that the trial court erred by

granting summary judgment on their counterclaims because the issue of res judicata

must be decided by the arbitrator and not the trial court. We affirm.

                                     Background

      In May 2012, appellants signed a two-year lease for commercial space owned

by the Howells. The lease contained an arbitration provision, which provided that

all disputes related to it must be arbitrated:

      ARBITRATION. Any controversy or claim related to this contract,
      including the construction or application of this contract, will be settled
      by binding arbitration under the rules of the American Arbitration
      Association, and any judgment granted by the arbitrator(s) may be
      enforced in any court of proper jurisdiction.


1
      They do not appeal the confirmation of the arbitration award.
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      Appellants continued to occupy the space after the lease ended in May 2014.

In October 2014, the Howells sent a notice of default to appellants seeking payment

under the holdover clause of the lease, which governed payment after the lease term

lapsed. When appellants failed to pay, the Howells initiated arbitration with the

American Arbitration Association.

      After initiating arbitration, the Howells changed the locks on the leased space.

In response, appellants asserted counterclaims in the arbitration for improper lockout

under the Property Code, unauthorized access, and breach of oral agreements.

However, the appellants dismissed the counterclaims before the final evidentiary

proceeding in the arbitration; in their appellants’ brief, they state that they dismissed

the claims so that they could pursue them in a trial court. In the final arbitration

award, the arbitrator awarded the Howells $33,500 in unpaid rent for the period from

November 2014 to May 2015.

      The Howells filed suit in district court in Harris County, seeking a declaratory

judgment confirming the arbitration award, and subsequently filed a summary-

judgment motion. After the summary-judgment motion was filed, appellants

amended their answer “to reassert the counterclaims previously raised and

withdrawn in the arbitration.” The trial court granted the Howells’ partial summary

judgment, confirming the arbitration award. The Howells then moved for summary

judgment on appellants’ counterclaims, arguing that they were barred by res judicata


                                           3
because they should have been raised in the arbitration. The trial court granted the

second summary-judgment motion and rendered a final judgment.

                                      Discussion

      In their sole issue, appellants contend that the trial court erred by granting

summary judgment on their counterclaims because the issue of res judicata must be

decided by the arbitrator and not the trial court.

A.    Standard of Review

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary judgment,

we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

      In a traditional summary-judgment motion, the movant has the burden to show

that no genuine issue of material fact exists and that the trial court should grant

judgment as a matter of law. TEX. R. CIV. P.166a(c); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A genuine issue

of material fact exists if the nonmovant produces evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. See Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). A defendant moving for traditional summary


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judgment on an affirmative defense has the burden to conclusively prove all the

elements of the affirmative defense as a matter of law. See Henkel v. Norman, 441

S.W.3d 249, 251 (Tex. 2014) (per curiam). Once the movant meets his burden, the

burden shifts to the non-movant to raise a genuine issue of material fact precluding

summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.

1995).

B.    Res Judicata

      “Res judicata, or claims preclusion, prevents the relitigation of a claim or

cause of action that has been finally adjudicated, as well as related matters that, with

the use of diligence, should have been litigated in the prior suit.” Barr v. Resolution

Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992); see Smith v. Brown, 51 S.W.3d 376,

379 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). A counterclaim is required

to be litigated in an initial arbitration or suit when “it arises out of the transaction or

occurrence that is the subject matter of the opposing party’s claim and does not

require for its adjudication the presence of third parties of whom the court cannot

acquire jurisdiction[.]” TEX. R. CIV. P. 97(a). Res judicata promotes the finality of

judgments and thus “serves vital public interests.” Hallco Texas, Inc. v. McMullen

Cty., 221 S.W.3d 50, 58 (Tex. 2007) (quoting San Remo Hotel, L.P. v. San

Francisco, 545 U.S. 323, 345, 125 S. Ct. 2491, 2506 (2005)).




                                            5
      Res judicata is an affirmative defense. See Williams v. Hous. Firemen’s Relief

& Ret. Fund, 121 S.W.3d 415, 437 n.21 (Tex. App.—Houston [1st Dist.] 2003, no

pet.). To establish their right to judgment as a matter of law on their affirmative

defense of res judicata, the Howells had to establish (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 subsequent action based on the same claims as were or could

have been raised in the first action. Joachim, 315 S.W.3d at 862.

      An arbitration award has preclusive effect for purposes of res judicata. See

Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, 105 S.W.3d 244, 270 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied); see also Anzilotti v. Gene D. Liggin,

Inc., 899 S.W.2d 264, 266 (Tex. App.—Houston [14th Dist.] 1995, no writ); J.J.

Gregory Gourmet Servs., Inc. v. Antone’s Import Co., 927 S.W.2d 31, 33 (Tex.

App.—Houston [1st Dist.] 1995, no writ); City of Baytown v. C.L. Winter, Inc., 886

S.W.2d 515, 518 (Tex. App.—Houston [1st Dist.] 1994, writ denied). For example,

in Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, 105 S.W.3d 244 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied), Tanox and its former lawyers were engaged

in a fee dispute that went to arbitration. See id. at 250. The arbitrators found in favor

of the lawyers, and the lawyers filed suit in the trial court to confirm the arbitration

award. Id. Tanox sought to vacate the arbitration award and filed counterclaims for

breach of contract and various tort claims. Id. The trial court entered summary


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judgment confirming the arbitration award and denying Tanox’s request to vacate

the award. Id. The lawyers subsequently moved for summary judgment on Tanox’s

counterclaims on the basis of res judicata, arguing that the counterclaims should

have been raised in the now-concluded arbitration proceeding. Id. The trial court

granted summary judgment on the counterclaims, and the appellate court affirmed,

holding that the claims were barred by res judicata. Id.

C.    Did the Howells conclusively prove all of the elements of their res
      judicata defense?

      To be entitled to summary judgment, the Howells were required to

conclusively prove all the elements of their res judicata defense as a matter of law.

There is no dispute regarding the second element, because the same parties were

involved in the arbitration proceeding and the trial court proceeding. We therefore

consider the first and third elements in turn.

      1.     Did the Howells conclusively prove the existence of a prior final
             judgment on the merits?

      The Howells’ summary-judgment evidence demonstrated the existence of a

prior final judgment on the merits. Their summary-judgment evidence included a

copy of the arbitration award. An arbitration award is treated as a prior final

judgment and has preclusive effect for purposes of res judicata. See Tanox, 105

S.W.3d at 270. The Howells therefore proved the existence of a prior final judgment

on the merits. See id.


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      2.     Did the Howells conclusively prove appellants’ claims were or
             could have been raised in the arbitration proceeding?

      The Howells’ summary-judgment evidence demonstrated both that

appellants’ claims were raised in the arbitration proceeding before being voluntarily

dismissed, and that those claims could and should have been raised in the arbitration

proceeding. The summary-judgment evidence included a copy of appellants’

counterclaims filed in the arbitration, which were identical to the counterclaims

appellants asserted in the trial court after the arbitration award issued. Appellants

concede that they filed counterclaims in the arbitration identical to those they

eventually filed in the trial court, and that they voluntarily dismissed the

counterclaims in the arbitration before entry of the arbitration award.

      Moreover, the Howells established that appellants’ counterclaims could and

should have been raised in the arbitration proceeding. In their summary-judgment

motion, the Howells argued that the arbitration provision applied to appellants’

counterclaims because the counterclaims related to the lease and the landlord-tenant

relationship created thereby. In the trial court and on appeal, appellants argue that

their counterclaims were not subject to the arbitration provision because they were

not about the holdover rent disagreement and arose after the initiation of arbitration.2

Thus, they argue that their counterclaims are not compulsory counterclaims that



2
      Appellants do not argue that the arbitration clause is unenforceable.
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were required to be tried in the arbitration, and that they can be tried in the trial court

instead. See TEX. R. CIV. P. 97(a) (requiring that compulsory counterclaims be

brought in initial proceeding).

       Arbitration agreements are interpreted under traditional contract interpretation

principles. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227 (Tex. 2003). The

arbitration provision in the lease agreement, which was included in the Howells’

summary-judgment evidence, is broad and provides that any controversy or claim

relating to the lease must be settled in arbitration:

       ARBITRATION. Any controversy or claim related to this contract,
       including the construction or application of this contract, will be settled
       by binding arbitration under the rules of the American Arbitration
       Association, and any judgment granted by the arbitrator(s) may be
       enforced in any court of proper jurisdiction.

See RSR Corp. v. Siegmund, 309 S.W.3d 686, 701 (Tex. App.—Dallas 2010, no pet.)

(phrase “relates to,” in particular, is recognized as very broad term with respect to

scope of arbitrable claims); Am. Realty Trust, Inc. v. JDN Real Estate–McKinney,

L.P., 74 S.W.3d 527, 531 (Tex. App.—Dallas 2002, pet. denied) (“A broad

arbitration clause, purporting to cover all claims, disputes, and other matters arising

out of or relating to the contract or its breach, creates a presumption of

arbitrability.”). Broad arbitration provisions like this one are not limited to claims

that literally arise under the contract, but rather embrace all disputes between the

parties having a significant relationship to the contract, regardless of the label


                                            9
attached to the dispute. AdvoCare GP, LLC v. Heath, No. 05-16-00409-CV, 2017

WL 56402, at *5 (Tex. App.—Dallas Jan. 5, 2017, no pet.) (mem. op.) (quoting

Pennzoil Expl. and Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1067 (5th Cir.

1998)).

      Here, it is undisputed that all of appellants’ claims arise out of their landlord-

tenant relationship with the Howells. That relationship was created by the lease,

which contains the arbitration provision. Accordingly, appellants’ counterclaims

were subject to the arbitration provision in the lease. See AdvoCare, 2017 WL 56402,

at *5; RSR, 309 S.W.3d at 701; Am. Realty Trust, 74 S.W.3d at 531; see also TEX.

R. CIV. P. 97(a).

      For the foregoing reasons, we conclude that the Howells conclusively proved

the existence of their res judicata defense.

D.    Did appellants raise a genuine issue of material fact regarding the
      applicability of res judicata?

      Appellants argue that they raised a fact issue regarding the applicability of res

judicata because the issue of res judicata could only be decided by the arbitrator, and

not the trial court. Appellants rely primarily on W. Dow Hamm III Corp. v.

Millennium Income Fund, LLC, 237 S.W.3d 745 (Tex. App.—Houston [1st Dist.]

2007, no pet.), to support their argument.

      In Dow, the parties participated in an arbitration and obtained a final

arbitration award. Id. at 748. Later, one of the parties initiated a second arbitration.

                                          10
Id. at 749. The opposing party argued that the claims being raised in the second

arbitration were or should have been resolved in the first arbitration, and filed suit

in the trial court seeking a stay of the second arbitration based upon res judicata. Id.

at 750. The trial court stayed the second arbitration, and the party seeking arbitration

filed a petition for writ of mandamus. Id. A panel of our Court concluded that

“whether a prior arbitration proceeding is res judicata of a later one is a matter for

the arbitrator to determine,” not the trial court. Id. at 754. This is because “the res

judicata effect of a prior arbitration award is a matter of procedural arbitrability,”

not substantive arbitrability, and is therefore “not the court’s province to decide.” Id.

at 755. Accordingly, this Court held that the trial court abused its discretion by

staying the second arbitration on the basis that res judicata barred the second

arbitration, conditionally granted mandamus relief, and directed the trial court to

vacate its order staying the second arbitration. Id. at 756–57.

      Appellants argue that the res judicata issue in this case is likewise one of

procedural arbitrability and therefore could only be decided by the arbitrator. But

this is not a matter of arbitrability of additional claims in arbitration after a first

arbitration. To the contrary, appellants voluntarily dismissed their counterclaims

during the arbitration proceeding. They then continued arbitration on the other

claims to a final award, and now seek to try the claims they dismissed. Therefore,

the question to be decided here is not whether the counterclaims cannot be arbitrated,


                                           11
but rather, whether they can be relitigated and were not compulsory counterclaims.

Tanox demonstrates that, in these circumstances, the trial court has jurisdiction to

determine the issue of res judicata. See Tanox, 105 S.W.3d at 250, 270 (affirming

trial court’s determination that res judicata based on prior arbitration proceeding

barred litigation of defendant’s counterclaims). Dow is inapposite. We therefore

conclude that appellants failed to raise a fact issue regarding whether the trial court

could determine that their claims were barred by res judicata.

      Because the Howells conclusively proved their res judicata defense and

appellants did not raise a fact issue about the applicability of res judicata, we hold

that the trial court did not err in granting summary judgment on appellants’

counterclaims.

      We overrule appellants’ sole issue.

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Chief Justice Radack and Justices Keyes and Bland.




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