Opinion issued June 25, 2019




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-17-00973-CV
                           ———————————
                          FRED COX, SR., Appellant
                                       V.
ALLEN SAMUELS CHEVROLET, ALLEN SAMUELS, AND SANTANDER
               CONSUMER USA INC., Appellees


                   On Appeal from the 215th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-82605


                         MEMORANDUM OPINION

      Appellant Fred Cox, Sr., filed this lawsuit against appellees, Allen Samuels

Chevrolet, Allen Samuels (collectively the Samuels parties), and Santander

Consumer USA Inc., arising out of an automobile sale and financing that occurred

in 2013. The Samuels parties moved for summary judgment on res judicata grounds,
and the trial court granted summary judgment in favor of both the Samuels parties

and Santander, dismissing Cox’s claims. In ten issues on appeal, Cox now argues

that the trial court erred in granting summary judgment based on various evidentiary

and procedural complaints.

      Because we conclude that the trial court erred in granting summary judgment

on res judicata grounds, we reverse and remand.

                                       Background

      Cox’s claims in this case arise out of his dealings with the Samuels parties and

Santander regarding the purchase and financing of a 2010 Chevrolet Malibu (the

vehicle) that had occurred in December 2013. Cox first attempted to bring his lawsuit

in federal district court. On November 4, 2015, Cox filed a complaint in the Southern

District of Texas against the Samuels parties1 asserting, among other causes of

action, that the Samuels parties engaged in deceptive trade practices, fraud, theft,

and forgery in connection with the sale and financing of the vehicle (case number

H-15-3297). Less than two weeks later, on November 12, 2015, the federal district

judge in that case dismissed Cox’s claims “with prejudice.”2 In his “Opinion on



1
      Cox did not identify Santander as a defendant in case number H-15-3297, but he did
      refer to it in the portion of his complaint setting out the alleged facts, stating that he
      purchased the vehicle “from defendants Allen Samuels Chevrolet (hereinafter ‘Car
      Dealer’), of Texas, Inc., and Santander Consumer USA an automobile Financing
      Institution[.]”
2
      Case number H-15-3297 was before the Honorable Lynn N. Hughes.
                                              2
Dismissal” signed at the same time as the dismissal order, the district court judge

found that the court did not have jurisdiction over Cox’s claims, stating in relevant

part:

        This court does not have jurisdiction over Cox’s claims. The failure to
        sell an advertised car, the theft of five hundred dollars, and loaning a
        defective car are not claims described by federal law. Fred Cox and
        Allen Samuels Chevrolet are both citizens of Texas, and the value of a
        2010 Chevrolet Malibu is less than $20,000. Thus, this court does not
        have party jurisdiction because the parties are not diverse and the value
        of Cox’s claims does not come close to $75,000.

              Cox did not do business with anyone other than Allen Samuels
        Chevrolet. Thus, he does not describe a transaction with Allen Samuels
        Chevrolet’s parent companies, investors, or employers that the law
        recognizes.

               Cox further complains that Santander Consumer USA
        participated in giving him a loan but fails to add them as a defendant.

              Cox’s complaint will be dismissed with prejudice.

        Cox then filed a second suit in the Southern District of Texas against the

Samuels parties, this time adding Santander as a defendant (case number 4-16-cv-

02011).3 He alleged nearly identical causes of action related to the same transaction

and vehicle involved in the prior suit. The Samuels parties assert that the judge in

that case dismissed Cox’s claims on res judicata grounds, but the electronic docket

entry filed with the record in this appeal states only, “The Court makes the following

oral ruling: This case is dismissed. The Court’s findings, as stated on the record.”


3
        This case was before the Honorable Vanessa Gilmore.
                                           3
      On November 30, 2016, Cox filed the underlying suit against the Samuels

parties and Santander. Again, his allegations were substantively similar to those

alleged in the two prior federal district court suits. He asserted, among other causes

of action, that the Samuels parties and Santander had engaged in deceptive trade

practices, fraud, theft, and forgery in the course of selling and financing the vehicle.

      Both the Samuels parties and Santander answered with general denials and

pled the affirmative defense of res judicata. The Samuels parties then moved for

summary judgment, asserting that the doctrine of res judicata barred all of Cox’s

claims in the present suit. The Samuels parties asserted that the order dismissing

Cox’s suit in case number H-15-3297 was a judgment on the merits by a court of

competent jurisdiction, that the same parties and underlying facts were involved in

both of the prior suits and the instant suit, and that all of Cox’s claims in the present

suit were or could have been brought in the previous suit. As summary judgment

evidence, they attached certified copies of the pleadings from the two previous suits

that Cox had filed in the Southern District of Texas based on the same transaction,

the final order and Opinion on Dismissal in case number H-15-3297, and the

electronic docket entry showing the oral dismissal ruling in case number 4-16-cv-

02011.

      Santander did not join the Samuels parties’ summary judgment motion or

otherwise file its own motion for summary judgment.


                                           4
      Cox responded to the Samuels parties’ motion for summary judgment, arguing

that the dismissal in case number H-15-3297 was “based upon, and only because as

[the judge] stated, that plaintiff ‘Cox’s claims does not come close to $75,000.’” He

also asserted that the dismissal in the second suit, cause number 4-16-cv-02011, was

made on the grounds that Cox “must [maintain] his civil action in State District Civil

Court, that he should address his claims to Texas Laws and Texas Rules of Civil

Procedure; and that his Law Suit ‘was not being dismissed but referred back to State

Civil District Court for its proper Forum.’”

      The trial court granted summary judgment in favor of the Samuels parties and

Santander, dismissing all of Cox’s claims against them.

                                Summary Judgment

      Cox complains in part that the trial court erred in granting summary judgment

in favor of the Samuels parties and Santander.

A.    Standard of Review

      We review a trial court’s ruling on a summary judgment motion de novo. City

of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 258 (Tex. 2018). To

prevail on a traditional summary judgment motion, the movant bears the burden of

proving that no genuine issues of material fact exist and that it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c); City of Richardson, 539 S.W.3d at 258–

59. A defendant may be entitled to traditional summary judgment if it pleads and


                                           5
conclusively establishes each essential element of an affirmative defense, thereby

defeating the plaintiff’s cause of action. See Lujan v. Navistar Fin. Corp., 433

S.W.3d 699, 704 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam), and Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995)).

      Summary judgments “must stand or fall on their own merits.” Amedisys, Inc.

v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511–12 (Tex. 2014)

(quoting McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.

1993)). And, “[a] trial court can only grant summary on the grounds addressed in the

motion for summary judgment.” Speck v. First Evangelical Lutheran Church of

Houston, 235 S.W.3d 811, 818 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (also

holding, “A trial court that renders judgment based upon a motion errs in granting

more relief than the motion requests”). Likewise, “[a] trial court cannot grant

summary judgment in favor of parties who have not moved for summary judgment.”

Sw. Invs. Diversified, Inc. v. Estate of Mieszhuc, 171 S.W.3d 461, 468 n.15 (Tex.

App.—Houston [14th Dist.] 2005, no pet.); see Teer v. Duddleston, 664 S.W.2d 702,

703 (Tex. 1984) (holding that trial court erred in adjudicating rights of party who

did not move for summary judgment); Willy v. Winkler, No. 01-10-00115-CV, 2010

WL 5187719, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2010, no pet.) (mem.

op.) (holding same). Only if the movant establishes its entitlement to summary


                                         6
judgment does the burden then shift to the nonmovant to raise a genuine issue of

material fact. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163

(Tex. 2015) (per curiam); see also Amedisys, Inc., 437 S.W.3d at 511 (“[I]f the

movant does not satisfy its initial burden, the burden does not shift and the non-

movant need not respond or present any evidence.”).

      We review the evidence presented in the motion and response in the light most

favorable to the nonmovant, crediting favorable evidence if reasonable jurors could

and disregarding contrary evidence unless reasonable jurors could not. Mann

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

(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). We indulge every

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

Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017).

B.    Law of Res Judicata

      Res judicata is an affirmative defense that bars the relitigation of certain

claims or cases between parties that have already been decided. See Travelers Ins.

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Eagle Oil & Gas Co. v. Shale

Expl., LLC, 549 S.W.3d 256, 267 (Tex. App.—Houston [1st Dist.] 2018, pet.

dism’d). The burden is on the party asserting this defense to plead and prove the

defense’s elements. See Eagle Oil & Gas Co., 549 S.W.3d at 266; Hill v. Heritage

Res., Inc., 964 S.W.2d 89, 137 (Tex. App.—El Paso 1997, pet. denied).


                                         7
      To successfully assert the affirmative defense of res judicata, a party must

prove: (1) a final prior judgment on the merits by a court of competent jurisdiction;

(2) the identity of the parties, or those in privity with them; and (3) a second action

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

Joachim, 315 S.W.3d at 862; Eagle Oil & Gas Co., 549 S.W.3d at 266. Typically,

a “[d]ismissal with prejudice constitutes an adjudication on the merits and operates

as if the case had been fully tried and decided,” and, thus, an order dismissing a case

with prejudice has full res judicata and collateral estoppel effect and bars the

subsequent relitigation of the same causes of action or issues between the same

parties. Hickman v. Adams, 35 S.W.3d 120, 124 (Tex. App.—Houston [14th Dist.]

2000, no pet.) (citing Ritchey v. Vasquez, 986 S.W.2d 611, 612 (Tex.1999) (per

curiam), and Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630–31 (Tex. 1992)).

      However, “dismissing a claim based on lack of subject-matter jurisdiction

does not operate as res judicata.” Garrett v. Williams, 250 S.W.3d 154, 160 (Tex.

App.—Fort Worth 2008, no pet.); see Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d

714, 718 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (holding that claim is

not barred by res judicata unless court rendering judgment in initial suit properly

maintained subject-matter jurisdiction over claim); see also Harris Cty. v. Sykes, 136

S.W.3d 635, 639 (Tex. 2004) (“In general, a dismissal with prejudice is improper

when the plaintiff is capable of remedying the jurisdictional defect.”).


                                           8
C.    Analysis

      The Samuels parties moved for summary judgment solely on res judicata

grounds. Thus, they bore the burden of proving their entitlement to summary

judgment on the affirmative defense of res judicata as a matter of law. See Eagle Oil

& Gas Co., 549 S.W.3d at 266; City of Richardson, 539 S.W.3d at 258–59. The first

element of the res judicata defense requires the existence of a final prior judgment

on the merits by a court of competent jurisdiction. See Joachim, 315 S.W.3d at 862.

      The Samuels parties assert that the order of the Southern District of Texas in

case number H-15-3297 was a dismissal with prejudice sufficient to constitute a final

judgment on the merits by a court of competent jurisdiction. They point particularly

to the fact that the district court judge dismissed Cox’s claim “with prejudice.”

      Despite the language discussing the nature of Cox’s claims and stating that

the case was dismissed with prejudice, the Opinion on Dismissal signed by the

federal district judge in that case indicated that Cox’s claim was ultimately dismissed

because that court did not have jurisdiction over his claim. See Bender v.

Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986) (holding that, unlike state

courts, “[f]ederal courts are not courts of general jurisdiction; they have only the

power that is authorized by Article III of the Constitution and the statutes enacted

by Congress pursuant thereto”). The Opinion on Dismissal expressly stated, “This

court does not have jurisdiction over Cox’s claims.” The Opinion further concluded


                                          9
that Cox did not allege any claims “described by federal law,” and his pleadings did

not establish “party jurisdiction because the parties are not diverse and the value of

Cox’s claims does not come close to $75,000.” See 28 U.S.C. §§ 1331–32 (providing

federal district courts have authority to hear two types of cases: (1) cases in which

plaintiff alleges cognizable violation of his rights under U.S. Constitution or federal

law; and (2) cases in which citizen of one state alleges state law claim against citizen

of another state when amount in controversy exceeds $75,000).

      Therefore, despite some contradictory language, the Opinion on Dismissal

stated that the dismissal was on jurisdictional grounds, undermining the Samuels

parties’ assertion that the dismissal order in case H-15-3297 was a judgment on the

merits. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006)

(“[D]ismissals for lack of jurisdiction should be without prejudice because the court,

having determined that it lacks jurisdiction over the action, is incapable of reaching

a disposition on the merits of the underlying claims.”); Int’l Energy Ventures Mgmt.,

L.L.C. v. United Energy Grp., Ltd., 818 F.3d 193, 210 (5th Cir. 2016) (“Unlike the

typical dismissal under Rule 12(b)(6) [for failure to state a claim upon which relief

can be granted], for instance, which ‘operates as an adjudication on the merits,’ a

dismissal for lack of jurisdiction under Rule 12(b)(1) [for lack of subject-matter

jurisdiction], for instance, does not. Therefore, the dismissal of a nondiverse party

over whom the court does not have jurisdiction must be a dismissal without prejudice


                                          10
in every instance.”). An order that dismisses a lawsuit for want of jurisdiction is not

res judicata of the merits and does not bar a plaintiff from bring the same cause again

once the impediment to jurisdiction has been removed. See, e.g., Garrett, 250

S.W.3d at 160; Ab–Tex Beverage Corp. v. Angelo State Univ., 96 S.W.3d 683, 686

(Tex. App.––Austin 2003, no pet.); Harrison, 981 S.W.2d at 718.

      As the summary judgment movants, the Samuels parties bore the burden of

conclusively proving that the prior judgment in case H-15-3297 was a judgment on

the merits. See Eagle Oil & Gas Co., 549 S.W.3d at 266; City of Richardson, 539

S.W.3d at 258–59. They failed to do so here, so they did not satisfy the first element

of their res judicata affirmative defense. See Joachim, 315 S.W.3d at 862; Eagle Oil

& Gas Co., 549 S.W.3d at 266.

      The Samuels parties also argue on appeal that Cox inadequately briefed this

issue, thereby waiving his complaint. We disagree. As the Samuels parties point out,

pro se litigants like Cox are held to the same standards as licensed attorneys and

must comply with all applicable rules of procedure. See, e.g., Wheeler v. Green, 157

S.W.3d 439, 444 (Tex. 2005) (per curiam) (recognizing “that pro se litigants are not

exempt from the rules of procedure”); see also TEX. R. APP. P. 38.1(i) (requiring that

appellant’s brief “must contain clear and concise argument for the contentions made,

with appropriate citations to authorities and to the record”). But in all cases, we are

to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the


                                          11
right to appeal is not lost by imposing requirements not absolutely necessary to

effectuate the purpose of a rule. Republic Underwriters Ins. Co. v. Mex-Tex, Inc.,

150 S.W.3d 423, 427 (Tex. 2004); Verburgt v. Dorner, 959 S.W.2d 615, 616–617

(Tex. 1997). The Rules of Appellate Procedure themselves expressly require us to

construe briefing rules liberally. See TEX. R. APP. P. 38.9. Here, Cox’s brief

substantially complied with the rules by raising a complaint regarding the trial

court’s grant of summary judgment. See id. We review such motions de novo, and

we note that summary judgments “must stand or fall on their own merits.” See City

of Richardson, 539 S.W.3d at 258; Amedisys, Inc., 437 S.W.3d at 511–12.

      We conclude that the trial court erred in granting summary judgment in favor

of the Samuels parties.

      Regarding the other party to this appeal, Santander, we observe that it never

joined the motion for summary judgment filed by the Samuels parties, nor did it file

its own motion for summary judgment, and, therefore, the trial court’s grant of

summary judgment in favor of Santander was erroneous.4 See Teer, 664 S.W.2d at

703 (holding that trial court erred in adjudicating rights of party who did not move

for summary judgment); Sw. Invs. Diversified, Inc., 171 S.W.3d at 468 n.15 (“[A]


4
      We note that the trial court’s erroneous ruling granting more relief than requested is
      nevertheless a final and appealable judgment. See G & H Towing Co. v. Magee, 347
      S.W.3d 293, 298 (Tex. 2011) (“When a trial court grants more relief than requested
      and, therefore, makes an otherwise partial summary judgment final, that judgment,
      although erroneous, is final and appealable.”).
                                            12
trial court cannot grant summary judgment in favor of parties who have not moved

for summary judgment.”). Santander also argued on appeal that the trial court had

broad discretion to dismiss the suit as frivolous or malicious. However, no such

request for relief had been made to the trial court at the time it rendered its judgment,

and, therefore, it could not serve as a basis for granting summary judgment in favor

of Santander. See Speck, 235 S.W.3d at 818 (“A trial court can only grant summary

judgment on the grounds addressed in the motion for summary judgment.”).

      We sustain Cox’s complaint on appeal that the trial court erred in granting

summary judgment. Having determined that Cox is entitled to reversal of the trial

court’s judgment, we need not address the remainder of his complaints on appeal

because they would not result in greater relief. See TEX. R. APP. P. 47.1.

                                      Conclusion

      We reverse the judgment of the trial court and remand for further proceedings

consistent with this opinion. Any pending motion is dismissed as moot.




                                                      Richard Hightower
                                                      Justice

Panel consists of Chief Justice Radack and Justices Higley and Hightower.




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