                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00045-CV

GENE C. STEELE,
                                                            Appellant
v.

VELMA DUKE, INDEPENDENT EXECUTRIX
OF THE ESTATE OF FLOYD DUKE, JR., DECEASED,
                                       Appellee



                           From the 77th District Court
                            Limestone County, Texas
                            Trial Court No. 28-013-A1


                          MEMORANDUM OPINION


      This appeal is the latest chapter in litigation spanning more than two decades

regarding title to a 927.822-acre tract of land and its minerals. Our 2007 opinion, Steele

v. McDonald, No. 10-05-00266-CV, 2007 WL 2200008 (Tex. App.—Waco Aug. 1, 2007,

pet. denied) (mem. op.), provides a background of the dispute (the first lawsuit), which

resulted in a settlement in 2005 and entry of a final judgment.

      The case underlying this appeal began in May 2006 with Sally Steele and Thomas

E. Simmons suing Floyd Duke, Jr. for fraud in connection with an allegedly forged and
fraudulent 1970 deed by which Floyd claimed title to the subject property in the first

lawsuit (a trespass-to-try-title suit filed in 1986). Floyd asserted res judicata as an

affirmative defense to the fraud claim.

          Floyd died in 2007, and in 2009, his wife Velma, as independent executrix of

Floyd’s estate (hereinafter Duke), substituted as the defendant. Duke also asserted a

third-party action against Gene C. Steele, Sally’s husband, alleging against him and also

against Sally and Simmons (in an amended counterclaim), a breach-of-contract claim

pertaining to the 2005 settlement. Gene filed a counterclaim against Duke for fraud in

connection with the allegedly forged and fraudulent 1970 deed.

          Duke then moved for partial summary judgment against the fraud claims of

Gene, Sally, and Simmons, asserting that their fraud claims were barred by res judicata.

The trial court granted the motion for partial summary judgment and then severed its

ruling to make it an appealable final judgment. Gene appeals the partial summary

judgment,1 asserting in one issue that the trial court erred in granting summary

judgment on Duke’s affirmative defense of res judicata.

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

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a traditional motion for

summary judgment, we must consider whether reasonable and fair-minded jurors

could differ in their conclusions in light of all of the evidence presented. See Goodyear

Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). We must consider all the

evidence in the light most favorable to the nonmovant, indulging every reasonable

1   Sally and Simmons have not appealed.

Steele v. Duke                                                                     Page 2
inference in favor of the nonmovant and resolving any doubts against the motion. See

id. at 756.

        Gene’s fraud counterclaim alleges that the 1970 deed by which Floyd claimed

title to the subject property in the first lawsuit was forged and that Floyd’s use of it in

the first lawsuit and trial, which ended in the 2005 settlement and final judgment,

fraudulently induced Gene to enter into the settlement. Duke’s res judicata defense

primarily asserts that the allegedly forged 1970 deed and Floyd’s allegedly fraudulent

use of it in the first lawsuit could have been raised by Gene in the first lawsuit through

the use of diligence.

        The policies behind res judicata reflect the need to bring all litigation to an end,

to prevent vexatious litigation, to maintain stability of court decisions, to promote

judicial economy, and to prevent double recovery. Barr v. Resolution Trust Corp., 837

S.W.2d 627, 629 (Tex. 1992).

               Res judicata bars the relitigation of claims that have been finally
        adjudicated or that could have been litigated in the 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.
        Daccach, 217 S.W.3d at 449. 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.
        Tex. Water Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771-72 (Tex.
        1979). In short, res judicata precludes parties from relitigating claims that
        have been finally adjudicated by a competent tribunal. See Barr, 837
        S.W.2d at 628.

Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008).


Steele v. Duke                                                                          Page 3
        In this case, it is undisputed that the first two elements are met. The third

element is at issue in this appeal; for that element, Texas follows the transactional

approach.

                Under the transactional approach followed in Texas, a subsequent
        suit is barred if it arises out of the same subject matter as the prior suit,
        and that subject matter could have been litigated in the prior suit. Barr,
        837 S.W.2d at 631. We explained in Barr that “a final judgment on an
        action extinguishes the right to bring suit on the transaction, or series of
        connected transactions, out of which the action arose.” Id. at 631 (citing
        RESTATEMENT (SECOND) OF JUDGMENTS § 24(1) (1982)). Determining the
        scope of the “subject matter” or “transaction” of the prior suit requires “an
        analysis of the factual matters that make up the gist of the complaint,
        without regard to the form of action.” Id. at 630. This should be done
        pragmatically, “’giving weight to such considerations as whether the facts
        are related in time, space, origin, or motivation, whether they form a
        convenient trial unit, and whether their treatment as a trial unit conforms
        to the parties’ expectations or business understanding or usage.’’ Id. at
        631 (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 24(2) (1982)). “Any
        cause of action which arises out of those same facts should, if practicable,
        be litigated in the same lawsuit.” Id. at 630.

Citizens Ins. Co. v. Daccach, 217 S.W.3d 430, 449 (Tex. 2007).

        Within the third element, the parties agree that the summary-judgment issue is

whether Gene’s claims of the allegedly forged 1970 deed and Floyd’s allegedly

fraudulent use of it in the first lawsuit could (and should) have been raised in the first

lawsuit with the use of diligence. “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, 837 S.W.2d at 628 (emphasis added).

        In support of her res judicata affirmative defense to Gene’s fraud claim, Duke

filed the following summary-judgment evidence:

Steele v. Duke                                                                           Page 4
           A “trial abstract” (see TEX. R. CIV. P. 793) that Floyd filed in the first lawsuit on
            April 10, 1995;2 it states that Floyd will be relying on the following document
            as evidence in his behalf:

                 Deed dated November 27, 1970, from Floyd F. Duke and
                 wife M.L. Duke to Floyd Duke, Jr., acknowledged by said
                 Floyd F. Duke and wife before Mary E. Lindsey, Notary
                 Public in and for Nueces County, Texas, on November 27,
                 1970, and recorded in Vol. 909, at pages 49, 50 and 51, of the
                 Real Property Records of Limestone County, Texas.

           Floyd’s interrogatory answer, filed in the first lawsuit also on April 10, 1995,
            identifying the following document giving rise to a claim of title:

                 Deed dated 27 November 1970, from Floyd F. Duke and wife
                 M.L. Duke to Floyd Duke, Jr., located now in the law office
                 of … and having contents as shown by the record thereof in
                 Vol. 909, at pages 49 et seq., Deed Records of Limestone
                 County, Texas.

        A copy of the 1970 deed was filed by Steele with his summary-judgment

response, and it shows that the deed was filed for record with the County Clerk of

Limestone County on May 12, 1994. As Duke points out, a properly recorded deed is

notice to all persons of its existence. TEX. PROP. CODE ANN. § 13.002 (West 2004); see

Corpus v. Arriaga, 294 S.W.3d 629, 635 (Tex. App.—Houston [1st Dist.] 2009, no pet.)

(“The purpose of recording statutes in Texas is to give notice to all persons of the

existence of the instrument.”).

        A trespass-to-try-title action is a procedure by which rival claims to title or right

of possession may be adjudicated. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 755


2 With the first lawsuit’s trial occurring in January 2005, the parties were on notice of Floyd’s trial abstract
for almost ten years. See Cain v. Roberts, 644 S.W.2d 492, 493 (Tex. App.—Dallas 1982, writ ref’d n.r.e.)
(filing of trial abstract fourteen months before trial gave opponent adequate notice of instruments being
relied on to establish title).

Steele v. Duke                                                                                          Page 5
(Tex. 2003); see Clark v. Snider, 738 S.W.2d 49, 50 (Tex. App.—Texarkana 1987, no writ)

(holding that contention of forgery of deed in chain of title is issue that should have

been made in prior trespass-to-try-title suit); see also Bellaire Kirkpatrick Joint Venture v.

Loots, 826 S.W.2d 205, 209-10 (Tex. App.—Fort Worth 1992, writ denied) (discussing

effect of forged deed in trespass-to-try-title suit).

        Gene did not file any summary-judgment evidence directly pertaining to his use

of diligence to discover and raise the forgery issue in the first lawsuit. Instead, the only

summary-judgment evidence that he filed was a 2006 document examiner’s preliminary

report concluding that the 1970 deed was a forgery. From that, Gene argues that he had

no reason to doubt the 1970 deed’s authenticity in the first lawsuit and that he did not

become aware of the alleged forgery until after judgment was entered in the first

lawsuit. This argument begs the use-of-diligence question.

        With the use of diligence, the validity of the 1970 deed could have been and

should have been litigated in the first lawsuit. See Clark, 738 S.W.2d at 50 (holding that

contention of forgery of deed in chain of title is issue that should have been made in

prior trespass-to-try-title suit); see also Barr, 837 S.W.2d at 631 (“Modern rules of

procedure obviate the need to give parties two bites at the apple, as was done in Griffin,

to ensure that a claim receives full adjudication. Discovery should put a claimant on

notice of any need for alternative pleading.”); cf. King Ranch, 118 S.W.3d at 752

(“Intrinsic fraud, by contrast, relates to the merits of the issues that were presented and

presumably were or should have been settled in the former action. Within that term are

included such matters as fraudulent instruments, perjured testimony, or any matter

Steele v. Duke                                                                          Page 6
which was actually presented to and considered by the trial court in rendering the

judgment assailed. Such fraud will not support a bill of review, because each party

must guard against adverse findings on issues directly presented. Issues underlying

the judgment attacked by a bill of review are intrinsic and thus have no probative value

on the fraud necessary to a bill of review.”) (citations omitted); cf. id. at 758 (“[T]o

permit multiple actions leaves an undesirable uncertainty in the economic affairs of

those subject to them. Thus, the social interest in preserving free marketability of

property, recognized in recording and registration acts and in statutes of limitations,

can be undermined by allowing repeated litigation of the same title on various grounds

existing at the time the first action is brought.”) (quoting Developments in the Law—Res

Judicata, 65 HARV. L.REV. 818, 827-28 (March 1952). The trial court properly granted

summary judgment on Duke’s affirmative defense of res judicata.

        We overrule Gene’s sole issue and affirm the trial court’s judgment.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 28, 2012
[CV06]




Steele v. Duke                                                                    Page 7
