AFFIRMED; Opinion Filed July 30, 2013.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-12-00369-CV

                              MENEESE WALL, Appellant
                                               V.
     PHILLIP M. ORR, JR., TRUSTEE OF THE ORR FAMILY TRUST,
                              Appellee

                        On Appeal from the 366th Judicial District Court
                                     Collin County, Texas
                            Trial Court Cause No. 366-03307-2010

                               MEMORANDUM OPINION
                       Before Justices Moseley, Bridges, and Lang-Miers
                                  Opinion by Justice Moseley

       This is an appeal from a summary judgment granted on the grounds of res judicata or

collateral estoppel. Maneese Wall sued Phillip M. Orr, Jr., as Trustee of the Orr Family Trust for

debt and breach of fiduciary duty alleging Orr did not pay her a distribution in the same manner

as paid to other contingent beneficiaries. Orr’s answer, among other things, raised the defenses

of res judicata and collateral estoppel based on a Kentucky judgment confirming an arbitration

award arising from a prior settlement agreement. Orr filed a traditional motion for summary

judgment based on these affirmative defenses. The trial court granted the motion and rendered

summary judgment that Wall take nothing on her lawsuit. This appeal followed.

       In two issues on appeal, Wall contends the trial court erred by granting summary

judgment because there are genuine issues of material fact and Orr did not conclusively prove all
elements of his affirmative defenses. We discuss both issues together. The background of the

case and the evidence adduced in the trial court are well known to the parties; thus, we do not

recite them here in detail. Because all dispositive issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment.

                                                 BACKGROUND

        In 2005, Wall and Orr, along with several of their family members, were parties to a

mediation of at least four lawsuits pending in Kentucky. That mediation resulted in a mediation

memorandum signed by or on behalf of Wall, Orr, and the other parties.                           The mediation

memorandum provided for binding arbitration of any dispute arising out of the agreement.

        In December 2005, another lawsuit was filed in Kentucky (the 2005 Kentucky suit)

seeking to set aside a prior partial summary judgment on equitable grounds. A week later, the

parties, including Wall and Orr, signed a contractual, agreed order incorporating and accepting

the mediation memorandum as the settlement agreement of the parties.1 The agreed order named

an arbitrator to arbitrate “disputes or other issues mentioned [in] said memorandum” and

authorized the court to appoint arbitrators if the named arbitrator was unable to serve and the

parties could not agree on an arbitrator.

        Several disputes arose between the family members and in 2006, the Kentucky trial court

appointed a panel of arbitrators to resolve the disputes pursuant to the agreement in the

mediation memorandum and the agreed order.                     Both Wall and Orr were parties to and

participated in the arbitration proceeding. The arbitration proceeding resulted in a number of

confidential orders. On July 24, 2007, the arbitrators issued their thirteenth order. Among other

things, this order considered and denied Wall’s motion that Orr and the other petitioners in the


        1
            The caption of the agreed order lists three of the pending Kentucky lawsuits, but not the 2005 Kentucky
suit.


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arbitration be required to distribute to her $63,780.522 in proceeds from the sale of certain

property (parcel A and B described in sections 4 and 16 of the mediation memorandum). The

arbitrators also considered and granted Orr’s counter-motion to permit him to tender a cashier’s

check payable to Wall in that amount to the arbitrators until Wall complied with the arbitrators’

prior order that she execute a mutual release. The arbitrators ruled that Orr’s tender of the

certified check to them was sufficient under the circumstances to meet his obligation under a

previous order of the arbitrators to pay the sum to Wall. Orr tendered to the arbitrators the

cashier’s check payable to Wall in July 2007.

         Following a two day evidentiary hearing in October of 2007, on February 29, 2008 the

arbitrators issued their twenty-eighth order as their final award.

         Orr and the other petitioners filed suit in Kentucky to confirm the second through twenty-

eighth orders of arbitrators as the arbitration award. Wall was a party to this suit. While this

Kentucky confirmation suit was pending, Orr as trustee distributed to the other beneficiaries of

the trust their share of the proceeds for the partitioned property and filed tax forms for the

distributions. Orr had previously tendered Wall’s distribution to the arbitrators pursuant to the

thirteenth order of arbitrators. On April 9, 2008, Orr sent Wall a letter explaining the distribution

and enclosing her tax-form K-1.

         In January of 2009, while the Kentucky confirmation suit was pending, Wall filed in the

2005 Kentucky suit a motion demanding payment of $63,780.52.                               She claimed Orr had

distributed this amount to the other beneficiaries but withheld it from her based on invalid orders

of the trial court and the arbitrators, and that he had issued a false form K-1 to her. (Wall admits

in her affidavit the 2005 lawsuit was referred to arbitration.) In its February 19, 2010 order

         2
            This sum represents Wall’s share of proceeds from the sale of land that passed into the Orr Family Trust
as a result of a partition suit in Kentucky. The partition suit was one of the suits included in the 2005 mediation that
resulted in the mediation memorandum. According to Wall, the partition suit was not referred to arbitration.


                                                         –3–
denying the motion, the Kentucky trial court stated that “resolution of any disputes concerning

the Mediation Memorandum (adopted by the agreement) shall be made exclusively through

arbitration.”

        Wall filed the present suit in Collin County on August 11, 2010, while the Kentucky

confirmation suit was still pending. Wall alleged a claim for debt in the amount of $63,780.52

and a claim for breach of fiduciary duty arising out of Orr’s distribution of that amount to the

other beneficiaries of the trust and his issuing a form K-1 to Wall for payment of that amount in

2007.

        Back in Kentucky, the suit for confirmation of the arbitration award proceeded. A

hearing was held in March of 2011 and on April 6, 2011, the Kentucky trial court signed an order

and judgment confirming, among others, the thirteenth and twenty-eighth orders of arbitrators as

the arbitration award. The order and judgment also denied Wall’s request to vacate portions of

the arbitrators’ orders and stated it was a final and appealable judgment. The Kentucky court

later denied Wall’s post-judgment motions challenging the judgment.

        After the Kentucky court confirmed the arbitration award, Orr filed his motion for

summary judgment in the Collin County suit. Wall filed a response, attaching her affidavit and

several exhibits. The trial court granted the motion and Wall’s motion for new trial was denied

by operation of law. This appeal followed.

                                     STANDARD OF REVIEW

        We review the trial court’s summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We apply the well-established standards for

reviewing summary judgments. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Property Mgmt. Co.,

690 S.W.2d 546, 548–49 (Tex. 1985). A motion for summary judgment on traditional grounds

must show there is no genuine issue as to a specified material fact and that, therefore, the moving


                                               –4–
party is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). Thus, for a defendant to

prevail on a traditional motion for summary judgment, he must either disprove at least one

element of the plaintiff’s claim as a matter of law, or conclusively establish all elements of an

affirmative defense. Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex. 1996);

Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet. denied).

If the movant meets its burden, then and only then must the non-movant party respond and

present evidence raising a fact issue as to the material facts in question. See Rhone–Poulenc, Inc.

v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999).

                                         APPLICABLE LAW

       We first determine the preclusive effect of the Kentucky judgment confirming the

arbitration award according to Kentucky law. See Purcell v. Bellinger, 940 S.W.2d 599, 601

(Tex. 1997) (per curiam) (applying New York law to determine preclusive effect of New York

judgment in Texas proceeding).

       Under Kentucky law, res judicata is an affirmative defense which operates to bar

repetitious suits involving the same cause of action. Yeoman v. Commonwealth Health Policy

Bd., 983 S.W.2d 459, 464–65 (Ky. 1998). The doctrine of res judicata is formed by two

subparts: (1) claim preclusion and (2) issue preclusion. Id. Claim preclusion bars a party from

re-litigating a previously adjudicated cause of action and entirely bars a new lawsuit on the same

cause of action. Id. Issue preclusion bars the parties from re-litigating any issue actually

litigated and finally decided in an earlier action. Id.

       Claim preclusion requires an identity of parties, identity of causes of action, and a

resolution on the merits. Coomer v. CSX Transp., Inc., 319 S.W.3d 266, 271 (Ky. 2010). The

key inquiry in deciding whether the lawsuits concern the same controversy is whether they both

arise from the same transactional nucleus of facts. Yeoman, 983 S.W.2d at 465. If the two suits


                                                 –5–
concern the same controversy, then the previous suit is deemed to have adjudicated every matter

which was or could have been brought in support of the cause of action. Id. In determining

whether there is identity of the causes of action, Kentucky courts apply the “transactional”

approach from the RESTATEMENT (SECOND) OF JUDGMENTS § 24. Coomer, 319 S.W.3d at 372

n.14.

        The transactional approach looks beyond the legal theories asserted and analyzes the

claim in factual terms “to make it coterminous with the transaction regardless of the number of

substantive theories, or variant forms of relief flowing from these theories, that may be available

to the plaintiff.” Dennis v. Fiscal Court of Bullitt Cty., 784 S.W.2d 608, 610 (Ky. App. 1990)

(quoting RESTATEMENT (SECOND) OF JUDGMENTS § 24 cmt. a).

                                                  DISCUSSION

        We begin with claim preclusion. The identity of the parties and decision on the merits

elements are not strongly contested in the case. The summary judgment evidence establishes

Wall and Orr were both parties to the mediation memorandum, the agreed order, and the

arbitration proceedings. Wall states in her brief there was no determination on the merits, but her

argument is merely a restatement of her primary contention that the causes of action in Texas are

not identical to the causes of action decided in the arbitration proceeding.                     The summary

judgment evidence establishes that the arbitration proceeding was decided on the merits of the

claims presented and the arbitration award and orders were confirmed by the Kentucky trial

court. We conclude these two elements were established by the motion for summary judgment.3

        3
           In parts of her appellate brief, Wall appears to argue the Kentucky order and judgment confirming the
arbitration award is not final because an appeal is pending in Kentucky. She cites no authority that under Kentucky
law a judgment is not final for purposes of claim preclusion while it is on appeal. The general rule, and the rule
followed in Texas, is that a judgment is final for purposes of claim preclusion despite a pending appeal. See
Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986) (adopting RESTATEMENT (SECOND) OF JUDGMENTS § 13
cmt. f (1982)). We have found no Kentucky case on point, but it appears Kentucky follows the restatement on res
judicata issues. See Coomer, 319 S.W.3d at 371. Further, absent evidence to the contrary we presume Kentucky
law is the same as Texas on this point. See Keene Corp. v. Gardner, 837 S.W.2d 224, 227 (Tex. App.—Dallas

                                                       –6–
         We turn to the primary contention in this appeal—identity of the causes of action. Wall

alleged in her Texas lawsuit that Orr as trustee was indebted to her in the amount of $63,780.52

and that he breached his fiduciary duty by (1) not treating her fairly in relation to the other

beneficiaries; (2) declaring and paying a distribution to the other beneficiaries to the exclusion of

Wall; (3) misrepresenting to Wall that the $63,780.52 had been paid to her when it had not; and

(4) representing to the IRS that the payment had been made, subjecting Wall to capital gains

taxes.

         Wall’s summary judgment affidavit elaborates on the basis of her claims. Wall discusses

Orr’s motion to tender the cashier’s check to the arbitrators, stating that she refused to sign the

mutual release because the earlier lawsuits were the subject of pending appeals in Kentucky. She

then states: “I claimed the sum of $63,780.52 in damages at the Arbitration because the

Arbitrators ruled that I was not entitled to receive these funds unless I signed a release of my

claims involving the Mays’ [her grandparents] trusts.” She says she learned Orr had distributed

to the other beneficiaries their share of the proceeds of the sale of the partition property when he

sent her the April 9, 2008 letter and form K-1. She said that the distribution to the other

beneficiaries but not to her unless she signed the release was a breach of fiduciary duty.

         The transactional nucleus of facts that forms the basis of Wall’s claims in Texas are her

entitlement to an immediate distribution of the proceeds of the partition property and her

obligation to execute a mutual release under the terms of the mediation memorandum. These

matters were the subject of the mediation memorandum, which contained the agreement to

arbitrate. And they were litigated in the arbitration; specifically, in their thirteenth order, the

arbitrators considered and rejected Wall’s claim for payment of the $63,780.52, granted Orr’s


1992, writ denied). The Kentucky court’s order and judgment states it is a final and appealable judgment.
Accordingly, we reject Wall’s argument that the judgment is not final.


                                                  –7–
counter-motion, and held that Orr’s obligation to pay Wall that amount was met by his tendering

to the arbitrators the cashier’s check. The Kentucky trial court later confirmed that order and the

final award of the arbitrators.

       Wall contends the breach of fiduciary duty arose after the arbitration when Orr

distributed funds to the other beneficiaries but not to her unless she signed the release. However,

as she states in her affidavit, the arbitrators had already ruled she was not entitled to receive

these funds unless she signed the release. Thus her claims in Texas arise out of the same

transactional nucleus of facts as the arbitration proceeding.

       Wall also argues the causes of action are not identical because her claims about the

distribution of the $63,780.52 were not ripe when the original Kentucky declaratory judgment

suit was filed in 2002. This argument ignores, however, the subsequent events including the

mediation memorandum, the agreed order, (both containing an agreement to arbitrate), the

arbitration proceeding and orders, and the resulting judgment confirming the arbitration award.

The nucleus of facts giving rise to her claims arose in the mediation memorandum and during the

arbitration proceeding. The judgment confirming that arbitration award is the subject of Orr’s

claim preclusion defense. And by her own admission, Wall knew the basis of her claims while

the confirmation proceeding was still pending in Kentucky. Thus, to the extent her claims had

not already been presented to the arbitrators, they could have been presented to the Kentucky

trial court during the confirmation lawsuit.

       The summary judgment record is clear that Wall’s claims in the present litigation arise

out of the same transactional nucleus of facts—the mediation memorandum and agreed order—

as the arbitration proceeding. Once we look beyond Wall’s legal theories of debt and breach of

fiduciary duty, we find the factual bases of her claims are coterminous with the mediation

memorandum, the agreed order, and the Kentucky arbitration and confirmation proceedings. See

                                                –8–
Dennis, 784 S.W.2d at 610. We conclude the summary judgment evidence establishes the

identity of causes of action element of claim preclusion. We overrule both of Wall’s issues.

                                              CONCLUSION

        The summary judgment evidence establishes there is no genuine issue of material fact

and Orr is entitled to judgment as a matter of law on his affirmative defense of claim preclusion. 4

Accordingly, the trial court did not err by granting Orr’s motion for summary judgment. We

affirm the trial court’s judgment.



120369F.P05



                                                          /Jim Moseley/
                                                          JIM MOSELEY
                                                          JUSTICE




        4
           Because summary judgment was proper on the ground of claim preclusion, we need not address whether
it was proper on the ground of issue preclusion. See TEX. R. APP. P. 47.1.


                                                    –9–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                         JUDGMENT

MENEESE WALL, Appellant                                On Appeal from the 366th Judicial District
                                                       Court, Collin County, Texas
No. 05-12-00369-CV         V.                          Trial Court Cause No. 366-03307-2010.
                                                       Opinion delivered by Justice Moseley.
PHILLIP M. ORR, JR., TRUSTEE OF THE                    Justices Bridges and Lang-Miers
ORR FAMILY TRUST, Appellee                             participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
     It is ORDERED that appellee PHILLIP M. ORR, JR., TRUSTEE OF THE ORR
FAMILY TRUST recover his costs of this appeal from appellant MENEESE WALL.


Judgment entered this 30th day of July, 2013.




                                                   /JimMoseley/
                                                   JIM MOSELEY
                                                   JUSTICE




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