                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

    PETERSON, GOLDMAN & VILLANI,
    INC.                                               §

                                 Appellant,            §                 No. 08-12-00135-CV

    v.                                                 §                    Appeal from the

    ANCOR HOLDINGS, L.P. TIMOTHY                       §              141st Judicial District Court
    MCKIBBEN,    JOSEPH  RANDALL
    KEENE, AND ANCOR CAPITAL                           §               of Tarrant County, Texas
    PARTNERS, INC.,1
                                                       §                (TC#141-23625709-09)
                                 Appellees.
                                                       §

                                               OPINION

         This case concerns a guaranty agreement executed by a limited liability company no longer

in existence because of its merger with a similarly-named limited partnership. The issue is

whether Appellant—owner of the guaranty—may hold Appellees—the limited partnership and its

members—liable for satisfaction of a judgment awarded against the limited liability company.




1
  We note that one of the Appellees has been inconsistently identified throughout these proceedings. In their
appellate brief, Appellees identify themselves as Ancor Holdings, LP, Timothy McKibben, Joseph Randall Keene,
and Ancor Capital Partners, Inc. But in their first amended answer and in their motions for summary judgment,
Appellees identified themselves as Ancor Holdings, LP, Timothy McKibben, Joseph Randall Keene, and Ancor
Partners, Inc. None of the parties, however, has raised an issue regarding the proper identity of the Appellees.
Accordingly, we need not concern ourselves with the apparent incongruity between Ancor Capital Partners, Inc. and
Ancor Partners, Inc.
The trial court granted a take-nothing summary judgment in favor of Appellees. We affirm, in

part, and reverse and remand, in part.

                     FACTUAL AND PROCEDURAL BACKGROUND

       In March 2000, Ancor Holdings LLC (Ancor LLC) executed a guaranty agreement in favor

of Bank of America. The agreement prohibited Ancor LLC from merging or consolidating with

any other company unless Ancor LLC was the survivor and further provided that Ancor LLC could

not change its legal structure without Bank of America’s permission. When Ancor LLC failed to

pay the guaranty, Peterson, Goldman & Villani, Inc. (PGV)—as successor to Bank of

America—sued Ancor LLC in Dallas County in February 2004. After three years of arbitration,

PGV obtained a judgment in May 2008 confirming the arbitrator’s award against Ancor LLC.

       In July 2008, PGV discovered that—unbeknownst to it and Bank of America and in breach

of the guaranty—Ancor LLC had merged with Ancor Holdings L.P. (Ancor LP) approximately

eight years earlier. The Agreement and Plan of Merger between Ancor LLC and Ancor LP

provides that Ancor LP, as the surviving entity, “shall assume all the liabilities of every kind and

description of [Ancor LLC] and [Ancor LP].”

       Consequently, PGV moved to modify the judgment to include Ancor LP as the judgment

debtor on grounds of misnomer.            Ancor LLC opposed the motion, arguing that a

misidentification, rather than a misnomer had occurred, because Ancor LLC and Ancor LP were

two separate, distinct entities. The trial court denied PGV’s motion but modified the judgment

for reasons not relevant to this appeal. Both Ancor LLC and PGV timely appealed the trial

court’s modified final judgment to the Dallas Court of Appeals.


                                                 2
           While that judgment was being appealed, PGV sued Ancor LP and Ancor LP’s members,

Timothy McKibben, Joseph Randall Keene, and Ancor Partners, Inc., in September 2008 for

satisfaction of the judgment awarded against Ancor LLC.2 Appellees asserted res judicata and

limitations as defenses. In its third amended petition filed in March 2010, PGV sought a

declaratory judgment that Appellees were liable for the judgment awarded against Ancor LLC and

brought various causes of action sounding in tort and contract. Appellees responded by filing an

amended motion for summary judgment in which they argued that all of PGV’s claims in its third

amended petition were barred by limitations and by res judicata and that PGV’s tort claims, alter

ego claims, and claims for estoppel, conspiracy, and punitive damages failed for other reasons.

           After responding to this motion, PGV filed a fourth amended petition. Once more, PGV

sought a declaratory judgment that Appellees were bound by the judgment against Ancor LLC

and, once again, brought causes of action sounding in tort and contract. In conjunction with this

petition, PGV moved for partial summary judgment on its declaratory-judgment and

breach-of-contract claims against Ancor LP. In this motion, PGV asserted Ancor LP was liable

for the judgment awarded against Ancor LLC because Ancor LP had assumed all of Ancor LLC’s

liabilities. Appellees countered by filing a supplement motion for summary judgment in which

they argued that PGV’s declaratory-judgment and breach-of-contract claims premised on the

assumption-of-liability theory were barred by limitations and res judicata.




2
    Ancor Capital, Inc. was not initially named a defendant, but was subsequently added as one.
                                                           3
        The trial court—without stating its reasons for doing so—denied PGV’s motion for partial

summary judgment, granted Appellees’ amended motion for summary judgment and supplemental

motion for summary judgment, and dismissed PGV’s claims with prejudice.

                                       STANDARD OF REVIEW

        We review a trial court’s decision to grant summary judgment de novo.3 Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). To prevail on

summary judgment, a movant must prove that there is no genuine issue of material fact and that it

is entitled to judgment as a matter of law. See TEX.R.CIV.P. 166a(c); Little v. Tex. Dep’t of

Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). In deciding whether the movant met its

burden, we construe all evidence favorable to the non-movant as true, indulge every reasonable

inference in favor of the non-movant, and resolve any doubts in the non-movant’s favor. Nixon v.

Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). Because res judicata and

limitations are affirmative defenses, Appellees were required to establish all of the elements of

these defenses as a matter of law. TEX.R.CIV.P. 94; City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671, 679 (Tex. 1979).

                                             RES JUDICATA

        In its first issue, PGV argues that “[Appellees] have not met the elements of res judicata.”

Appellees contend that PGV’s claims in its fourth amended petition are barred by res judicata

because the claims “were brought, or could have been brought, in the original Dallas Suit.”


3
  PGV complains only of the trial court’s decision granting Appellees’ motions. We thus do not address the trial
court’s denial of PGV’s motion for partial summary judgment. Quantum Chem. Corp. v. Harris County Appraisal
Dist., 962 S.W.2d 50, 51 (Tex.App.--Houston [1st Dist.] 1997, no writ)(“We consider the denial if appellant
complains of both the granting of appellee’s motion and the denial of its own.”).
                                                       4
According to Appellees, the issue of which party was liable under the guaranty was settled in the

first action because the trial court’s judgment imposing liability upon Ancor LLC and denying

PGV’s request to substitute Ancor LP as the liable party was affirmed in Ancor Holdings, LLC v.

Peterson, Goldman & Villani, Inc., 294 S.W.3d 818 (Tex.App.--Dallas 2009, no pet.).                  In

affirming the judgment, the Dallas Court of Appeals overruled PGV’s cross-appeal concerning the

trial court’s failure to include Ancor LP as a judgment debtor. Id. at 834. The court concluded

that Ancor LLC and Ancor LP were two separate, distinct entities and that, because Ancor LP was

not served, it could not be included as a judgment debtor. Id. But whether the second action is

based on the same claims that were raised or could have been raised in the first action does not end

our inquiry. As we noted above, Appellees bore the burden to establish all elements of res

judicata as a matter of law. This they failed to do.

                                           Applicable Law

        Res judicata, also known as claim preclusion, prevents re-litigation of a claim that has been

finally adjudicated or that arises from the same subject matter and should have been litigated in a

prior suit. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). It applies when: (1)

there is a prior final determination on the merits by a court of competent jurisdiction; (2) the parties

in the second action are the same or in privity with those in the first action; and (3) the second

action is based on the same claims as were raised or could have been raised in the first action. Id.

                                              Discussion

        In their summary judgment motions, Appellees never addressed whether—much less

established that—the parties in this action are the same or in privity with those in the first action.


                                                   5
Indeed, Appellees asserted in their motions for summary judgment that Ancor LP was not a party

to the judgment in the first action. Appellees thus failed to establish that res judicata applied to

the claims brought by PGV in this action. Accordingly, the trial court erred in granting summary

judgment on this basis.

       PGV’s first issue is sustained.

                          LIMITATIONS AND JUDICIAL ESTOPPEL

       In its second issue, PGV asserts that Appellees are judicially estopped from asserting

limitations as a defense because their current position—that Ancor LLC did not exist as an

independent entity following its merger with Ancor LP—is inconsistent with their previous

successful one—that Ancor LLC and Ancor LP were separate and distinct entities. We agree.

                                         Applicable Law

       “The doctrine of judicial estoppel ‘precludes a party from adopting a position inconsistent

with one that it maintained successfully in an earlier proceeding.’” Pleasant Glade Assembly of

God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008). As “a rule of procedure based on justice and

sound public policy[,] . . . [i]ts essential function ‘is to prevent the use of intentional

self-contradiction as a means of obtaining unfair advantage.’” Id. [Internal citations omitted].

For the doctrine to apply, the following elements must be present: (1) a sworn, inconsistent

statement made in a previous judicial proceeding; (2) the party who made the statement

successfully maintained the previous position; (3) the previous statement was not made

inadvertently or by mistake, fraud, or duress; and (4) the statement was deliberate, clear, and

unequivocal. In re Estate of Huff, 15 S.W.3d 301, 309 (Tex.App.--Texarkana 2000, no pet.).


                                                 6
                                            Discussion

        Appellees are judicially estopped from asserting limitation as an affirmative defense in this

case.

        Appellees prevailed in the first action by asserting a position contrary to that asserted in

this action. As illustrated by Ancor Holdings, LLC v. Peterson, Goldman & Villani, Inc.,

Appellees argued successfully in the previous litigation that Ancor LP was not liable for

satisfaction of the judgment awarded against Ancor LLC because Ancor LLC and Ancor LP were

two separate, distinct entities.   Both Keene and McKibben testified during the arbitration

proceedings that they were serving as Ancor LLC’s president and chairman of the board,

respectively, and that Ancor LLC currently owned and operated six companies. However, during

the course of this litigation, Appellees claimed that when Ancor LLC merged with and into Ancor

LP in September 2000, Ancor LLC ceased to exist as a viable, on-going entity. Appellees thus

moved for summary judgment on the basis that PGV was barred by limitations from re-litigating

the issue of which party was liable under the guaranty because PGV—aware of the merger and its

effects—had the opportunity in the first action to sue the correct party—Ancor LP—but chose

instead to sue the incorrect party—Ancor LLC. Appellees’ position in the first action was

intentional, not inadvertent. Keene and McKibben testified under oath in the first action that, in

essence, Ancor LLC was a viable, on-going entity. “[Appellees] [cannot] . . . be heard now to

maintain a contrary position in the absence of proof that [their] [testimony] was made

inadvertently or by mistake or by fraud or duress.” Long v. Knox, 155 Tex. 581, 585, 291 S.W.2d

292, 295 (1956). Here, there is no such proof. Indeed, Appellees acknowledge in their brief that


                                                 7
Keene and McKibben appeared in the first action as witnesses on behalf of Ancor LLC. “There

[is] not only no proof . . . [that Appellees’ position in the first action was inadvertent] but rather the

evidence shows conclusively that [their] [testimony] was made voluntarily, with full knowledge of

all the facts and with the intention to prevent satisfaction of the judgment against [them].” Id.

        Appellees do not contend judicial estoppel is inapplicable in this case. Rather, they argue

that PGV, by suing its attorneys for permitting the statute of limitations to expire against Ancor

LP, judicially admitted that its claims against Ancor LP are barred.              “However, a judicial

admission constitutes a waiver of proof of the admitted or asserted fact only in the proceeding in

which it is made or, perhaps, in a subsequent proceeding involving the same parties.” Aetna Life

Ins. Co. v. Wells, 557 S.W.2d 144, 147 (Tex.Civ.App.--San Antonio 1977, writ ref’d n.r.e.).

Here, Appellees are strangers to the malpractice suit between PGV and its attorneys. And

Appellees do not content that PGV’s alleged judicial admission was made in a subsequent

proceeding involving the same parties.         Appellees have thus failed to establish that PGV

judicially admitted that its claims against Ancor LP are barred by limitations.

        Because Appellees impermissibly profited in this action by asserting a position contrary to

that asserted in the first action in support of their argument that Ancor LP is not liable under the

guaranty, they are judicially estopped from asserting limitations as an affirmative defense.

Therefore, Appellees are not entitled to summary judgment on this basis, and the trial court erred

in granting summary judgment on this ground.




                                                    8
               PGV’s second issue is sustained.       Given our conclusion that Appellees are

judicially estopped from raising the defense of limitations, we need not decide PGV’s third issue:

whether Appellees are equitably estopped from asserting limitations.

                 REMAINING GROUNDS FOR SUMMARY JUDGMENT

       Although Appellees were unsuccessful in establishing their right to summary judgment on

the bases of res judicata and limitations, they also moved for summary judgment on other grounds.

Specifically, they claimed that “PGV’s tort claims (for fraud, tortious interference with contract,

and negligent misrepresentation)” were futile because perjured testimony “cannot serve as a basis

for a suit in tort.” Appellees also maintained that PGV could not prevail on its alter ego claims

because these types of claims could not be asserted against an LLC and because there was no

evidence that Keene and McKibben perpetuated a fraud. Appellees further argued that PGV’s

claims for estoppel failed because “estoppel theories are not independent causes of action” and

PGV’s claims for conspiracy and punitive damages failed because these claims were concomitant

with PGV’s underlying tort claims. On appeal, Appellees contend that we should uphold the trial

court’s summary judgment as to these claims because PGV did not challenge the propriety of

summary judgment on these other grounds. We agree.

       It is well-settled that if a trial court does not specify the basis on which summary judgment

is granted, the appellant must challenge and negate all possible grounds on which summary

judgment could have been granted; otherwise, we must uphold the judgment on that basis.

Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). Here, PGV did not respond—in

either its summary judgment responses or appellate briefs—to the propriety of summary judgment


                                                9
on grounds other than res judicata and limitations. Rather, PGV appears to presume the trial

court’s summary judgment rested solely on these two grounds. Other than to make passing

references to Appellees’ inconsistent misrepresentations in arguing that limitations and res

judicata were inapplicable because the merger never took place, PGV offers no discussion on the

other grounds for summary judgment raised by Appellees.4 Because PGV failed to negate all

possible grounds on which summary judgment could have been granted as to its tort claims, alter

ego claims, and claims for estoppel, conspiracy, and punitive damages, we conclude the summary

judgment on these claims must stand. See Star-Telegram, 915 S.W.2d at 473.

                                               CONCLUSION

        We reverse the trial court’s grant of summary judgment in favor of Appellees on PGV’s

declaratory-judgment and contractual claims. We remand those claims to the trial court for

further proceedings consistent with this opinion. In all other respects, the trial court’s judgment is

affirmed.



December 19, 2013
                                                     YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




4
  Indeed, PGV claims in its fourth issue that “fact issues persist as to when the alleged merger became effective.”
However, we need not address this issue because we have already concluded that the trial court erred in granting
summary judgment based on res judicata and limitations.
                                                        10
