                                  NO. 12-13-00151-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

ANGELA JEANETTE THOMPSON,                       §     APPEAL FROM THE 7TH
APPELLANT

V.
                                                §     JUDICIAL DISTRICT COURT
SHERYL ANN WEAVER, AS
INDEPENDENT ADMINISTRATOR
OF THE ESTATE OF ALAN RAY
ADAMS, DECEASED,
APPELLEE                                        §     SMITH COUNTY, TEXAS

                                           OPINION
         Angela Jeanette Thompson appeals the trial court’s summary judgment rendered in favor
of Appellee Sheryl Ann Weaver, as Independent Administrator of the Estate of Alan Ray Adams,
Deceased. In two issues, Thompson argues that the trial court erred (1) in granting summary
judgment in Weaver’s favor on Thompson’s affirmative defense of res judicata and (2) in
denying Thompson’s motion for sanctions. We reverse and render in part and affirm in part.


                                         BACKGROUND
         On November 29, 2010, Thompson’s vehicle collided head-on with a vehicle driven by
Adams. Adams did not survive the crash.
Case 1
         Weaver, Adams’s sister and independent administrator of his estate, filed suit against
Thompson in Cherokee County, Texas. The suit consisted of wrongful death claims made on
behalf of Adams’s mother, father, and child and a survival claim made by Weaver on behalf of
Adams’s estate. In addition to damages for, among other things, wrongful death and Adams’s
pain and suffering and mental anguish (nonproperty damages), Weaver sought to recover
damages for destruction of Adams’s vehicle and deer rifles (property damages).
         In early 2011, the parties negotiated a settlement and their attorneys signed a Rule 11
agreement that stated, in pertinent part, as follows: ―This will confirm that you have agreed to
accept the offer of policy limits from Republic Insurance Group on behalf of Angela Jeanette
Thompson in return for a full release and dismissal of all claims against Ms. Thompson.‖
Subsequently, Weaver nonsuited the claims for nonproperty damages and executed a formal
release and settlement agreement. However, this release and settlement agreement did not
release Weaver’s claims for nonproperty damages. Thereafter, Weaver moved to dismiss all
pending claims with prejudice. On March 10, 2011, the trial court signed an order stating that
―all pending claims of Plaintiff in the above entitled and numbered cause be and the same are
hereby DISMISSED WITH PREJUDICE.‖ No appeal was taken in this cause.1
Case 2
         On July 15, 2011, Weaver, in her capacity as independent administrator of Adams’s
estate, filed the instant suit in Smith County against Thompson for damages from the same
accident as was the subject of Case 1. Thompson filed a motion for summary judgment on her
affirmative defense of res judicata. Weaver filed an amended motion for summary judgment
arguing that the releases resulting from Case 1 did not cover her personal injury damages and a
no evidence motion for summary judgment on Thompson’s affirmative defense of res judicata.
Thompson filed a response to Weaver’s motions. The trial court granted Weaver’s motions and
denied Thompson’s motion. Thompson also filed a motion for sanctions, which was denied.
After further proceedings, the trial court entered a final judgment in Weaver’s favor. This appeal
followed.
                                                RES JUDICATA
         In her first issue, Thompson argues that the trial court erred in granting Weaver’s
amended no evidence motion for summary judgment and denying Thompson’s traditional
motion for summary judgment on her affirmative defense of res judicata.
         1
           Subsequently, Thompson filed a bill of review in Cherokee County (Case 3). The trial court denied her
bill of review. Thereafter, Thompson filed the suit in Cherokee County, seeking a declaratory judgment that the
settlement agreement between the parties should be rescinded and reformed because Weaver’s attorney fraudulently
obtained the settlement (Case 4). The trial court granted summary judgment in Thompson’s favor and rendered a
judgment declaring that the ―settlement agreement . . . [is] amended to release all claims by Sheryl Ann Weaver, as
Independent Administrator of the Estate of Alan Ray Adams, deceased.‖ Weaver appealed the trial court’s
judgment in Case 4 to this court (appellate cause number 12-13-00145-CV).


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Standard of Review
         The movant for traditional summary judgment has the burden of showing that there is no
genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV.
P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Once the movant
has established a right to summary judgment, the burden of proof shifts to the nonmovant to
respond to the motion and present to the trial court any issues that would preclude summary
judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.
1979).
         We review a trial court’s grant of a summary judgment de novo. Frost Nat’l Bank v.
Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). We examine the entire record in the light most
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts
against the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v.
Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). All theories in support of
or in opposition to a motion for summary judgment must be presented in writing to the trial
court. See TEX. R. CIV. P. 166a(c).
         Furthermore, after adequate time for discovery, a party without presenting summary
judgment evidence may also move for summary judgment on the ground that there is no
evidence of one or more essential elements of a claim or defense on which an adverse party
would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The motion must state the
elements as to which there is no evidence. Id. Once a no evidence motion has been filed in
accordance with Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that
raises a fact issue on the challenged evidence. See Macias v. Fiesta Mart, Inc., 988 S.W.2d 316,
316–17 (Tex. App.–Houston [14th Dist.] 1999, no pet.). A no evidence motion is properly
granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a
genuine issue of material fact as to an essential element of the nonmovant’s claim on which the
nonmovant would have the burden of proof at trial. See Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706, 711 (Tex.1997). If the evidence supporting a finding rises to a level that would
enable reasonable, fair minded persons to differ in their conclusions, then more than a scintilla of
evidence exists. See Havner, 953 S.W.2d at 711. Less than a scintilla of evidence exists when
the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and




                                                 3
the legal effect is that there is no evidence. Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d
504, 509 (Tex. App.–Tyler 2008, pet. denied).
       When, as here, parties file cross motions for summary judgment, each party in support of
its own motion necessarily takes the position that there is no genuine issue of fact in the case and
that it is entitled to judgment as a matter of law. Lambrecht & Assocs., Inc. v. State Farm
Lloyds, 119 S.W.3d 16, 20 (Tex. App.–Tyler 2003, no pet.). If one motion is granted and the
other denied, we must review the summary judgment evidence presented by both sides and
determine all questions presented. Id. In so doing, we first review the order granting summary
judgment and if we determine the order was erroneous, we review the trial court’s action in
overruling the denied motion. Id. We may then either affirm the judgment or reverse and render
the judgment the trial court should have rendered, including one that denies both motions. Id.
Governing Law
       The claim preclusion doctrine of res judicata 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. See Compania Financiara Libano v.
Simmons, 53 S.W.3d 365, 367 (Tex. 2001); Musgrave v. Owen, 67 S.W.3d 513, 519 (Tex.
App.–Texarkana 2002, no pet.). Res judicata requires proof of the following elements: (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 second action based on the same claims that were raised or
could have been raised in the first action. See Amstadt v. United States Brass Corp., 919
S.W.2d 644, 652 (Tex. 1996).
       Texas follows the transactional approach to res judicata in determining what claims
should have been brought, if they could have been, in a prior action. See Barr v. Resolution
Trust Corp., 837 S.W.2d 627, 630–31 (Tex. 1992). As our sister court of appeals has explained,


       [a] final judgment extinguishes the right to bring other suits on the transaction or series of
       transactions involved in that litigation . . . . In determining whether the transaction is the same, we
       consider and weigh 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 usage.


Lone Star Partners v. NationsBank Corp., 893 S.W.2d 593, 597 (Tex. App.–Texarkana 1994,
writ denied). The transactional approach requires courts, in order to determine res judicata, to



                                                         4
examine the factual basis, not the legal theories, presented in the cases. Owen, 67 S.W.3d at 519.
The main concern is whether the cases share the same nucleus of operative facts. Id.
Claim Preclusion and the Transactional Approach
        In the instant case, each party presented summary judgment evidence relevant to the issue
of res judicata.    That summary judgment evidence, consisting of documents from Case 1,
included (1) Weaver’s pleadings from Case 1, (2) Weaver’s notice of nonsuit, (3) Weaver’s
motion to dismiss with prejudice, and (4) the trial court’s order dismissing ―all pending claims‖
with prejudice.
        We first note that the trial court’s order of dismissal with prejudice of all pending claims
in Case 1 was a final judgment on the merits by a court of competent jurisdiction. See Mossler v.
Shields, 818 S.W.2d 752, 754 (Tex. 1991) (―[I]t is well established that a dismissal with
prejudice functions as a final determination on the merits.‖); Christensen v. Chase Bank USA,
N.A., 304 S.W.3d 548, 553 (Tex. App.–Dallas 2009, pet. denied); Zimmerman v. Texaco, Inc.,
409 S.W.2d 607, 614 (Tex. Civ. App.–El Paso 1966, writ ref’d n.r.e.). Furthermore, Thompson
and Weaver, as representative of Adams’s estate, were both parties in Case 1. Thus, we must
consider whether the case at hand is based on the same claims that were raised or could have
been raised in the first action.
        There is no doubt that the facts giving rise to this case––the automobile accident between
Thompson and Adams that resulted in Adams’s death––are identical to the facts giving rise to
Case 1. Moreover, the claims for property damages and nonproperty damages form a convenient
trial unit and treating them as such conforms to the parties’ expectations, whereas separate
lawsuits would require significant duplication of effort of the court and the parties involved. See
Barr, 837 S.W.2d at 631. Indeed, Weaver’s claims for nonproperty damages were made in Case
1. In sum, we conclude that the two cases share the same nucleus of operative facts. See Owen,
67 S.W.3d at 519.
        Weaver argues that because she nonsuited her nonproperty claims and because the trial
court’s order of dismissal with prejudice expressly applied only to ―pending claims[,]‖ her
nonproperty claims are not precluded by res judicata. We disagree.
        Generally, the taking of a voluntary nonsuit does not resolve the issues in the case and
does not prejudice the parties against seeking the same relief in a subsequent lawsuit. Aetna
Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 807 (Tex. 1993). A voluntary nonsuit, however,



                                                 5
may be subject to res judicata. McGowen v. Huang, 120 S.W.3d 452, 462 n.6 (Tex. App.–
Texarkana 2003, pet. denied); Antonini v. Harris Cnty. Appraisal Dist., 999 S.W.2d 608, 614–
15 (Tex. App.–Houston [14th Dist.] 1999, no pet.); Jones v. Nightingale, 900 S.W.2d 87, 90
(Tex. App.–San Antonio 1995, writ ref’d); see also Jordan v. Bustamante, 158 S.W.3d 29, 36
(Tex. App–Houston [14th Dist.] 2005, pet. denied (recognizing that abandoning cause of action
pursuant to Texas Rule of Civil Procedure 165 can have res judicata effect)).
       Here, Weaver nonsuited her nonproperty claims in Case 1. Then, in accordance with her
motion, the trial court dismissed the remaining causes of action with prejudice. Thus, we
conclude that under the transactional approach to res judicata, Weaver’s nonproperty claims,
which could have been brought in Case 1, but which she chose to nonsuit prior to successfully
seeking a dismissal with prejudice, are barred by res judicata. See Antonini, 999 S.W.2d at 614–
15; Jones, 900 S.W.2d at 90. Therefore, we hold that the trial court erred in granting Weaver’s
no evidence motion for summary judgment on res judicata and denying Thompson’s traditional
motion for summary judgment on that same basis. Thompson’s first issue is sustained.


                              DENIAL OF MOTION FOR SANCTIONS
       In her second issue, Thompson argues that the trial court erred in denying her motion for
sanctions. We review the trial court’s ruling regarding the imposition of sanctions under Chapter
10 of the Texas Civil Practice and Remedies Code under the same standard we apply when
reviewing a sanctions ruling under Texas Rule of Civil Procedure 13—abuse of discretion. See
Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006); Cire v. Cummings, 134
S.W.3d 835, 838 (Tex. 2004); Nath v. Tex. Children's Hosp., 375 S.W.3d 403, 409 (Tex. App.–
Houston [14th Dist.] 2012, pet. denied). An abuse of discretion occurs when a trial court acts
arbitrarily or unreasonably and without reference to any guiding rules or principles. See Walker
v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003); Regent Care Ctr. of San Antonio II, Ltd. P’ship v.
Hargrave, 300 S.W.3d 343, 345 (Tex. App.–San Antonio 2009, pet. denied).
       Chapter 10 provides, in pertinent part, that a ―court that determines that a person has
signed a pleading or motion in violation of Section 10.001 may impose a sanction on the person,
a party represented by the person, or both.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 10.004(a)
(West 2002). Under Section 10.001, an attorney who signs a pleading certifies that, after a
reasonable inquiry, each claim, defense, or other legal contention in the pleading is warranted by



                                                6
existing law or by a nonfrivolous argument for the extension, modification or reversal of existing
law, or the establishment of a new law. Id. § 10.001(2). Moreover, the attorney certifies that the
pleading is not being presented for any improper purpose, including to harass or to cause
unnecessary delay or needless increase in the cost of litigation. Id. § 10.001(1).
        In the instant case, the sole underlying basis for Thompson’s motion was her contention
that Weaver’s attorney filed the instant suit for purposes of harassment, because he did so despite
the apparent res judicata implications stemming from Weaver’s actions in and the trial court’s
resolution of Case 1. These allegations bring her motion under the purview of Subsections
10.001(1) and (2). In its order denying Thompson’s motion for sanctions, however, the trial
court declined to set forth the reasons for its decision.
        We first consider whether Weaver’s pleadings in the instant case are warranted by
existing law. See TEX. CIV. PRAC. & REM. CODE ANN. § 10.001(2). As set forth above, we have
held that the trial court’s rulings on the parties’ competing motions for summary judgment on the
issue of res judicata were erroneous. Accordingly, we conclude that to the extent the trial court
denied Thompson’s motion for sanctions based on a finding that Weaver’s pleadings were
warranted by existing law, its ruling was not in accord with the guiding rules and principles of
res judicata.
        We next consider whether Weaver’s pleadings are warranted by a nonfrivolous argument
for the extension, modification or reversal of existing law, or the establishment of a new law. Id.
―Frivolous,‖ as used in this context implicates a thorough lack of factual or legal rigor in the
party’s position. See F.D.I.C. v. Hurwitz, 384 F. Supp. 2d 1039, 1109 (S.D. Tex. 2005) rev'd on
other grounds, F.D.I.C. v. Maxxam, Inc., 523 F.3d 566 (5th Cir. 2008); compare TEX. CIV.
PRAC. & REM. CODE ANN. § 10.001(2) with FED. R. CIV. P. 11(b)(2). In her response to
Thompson’s motion for sanctions, Weaver incorporated the arguments and evidence set forth in
her second amended motion for partial summary judgment and her response to Thompson’s
motion for summary judgment on res judicata. She further argued that, in the least, a bona fide
legal dispute exists as to the procedural status of her claims.
        As set forth previously, the taking of a voluntary nonsuit generally does not resolve the
issues in the case and does not prejudice the parties against seeking the same relief in a
subsequent lawsuit. See Specia, 849 S.W.2d at 807. This principle forms the legal basis of
Weaver’s argument that she was entitled to seek relief in the instant suit. In her motion for



                                                   7
summary judgment and her response to Thompson’s motion, Weaver made a lengthy and
vehement argument that despite the longstanding transactional approach to res judicata, her
claims are not barred thereby. We concluded that the authority on which Weaver relied was
either inapplicable under or distinguishable from the unique facts of this case and that the
transactional approach to res judicata controlled. As a result, Weaver’s argument was ultimately
unsuccessful.      But in considering the parties’ arguments, it was plain that there were two
competing, valid, longstanding legal principles that could not both be applied. Thus, having
considered Weaver’s argument and the authorities she cited to the trial court, we cannot conclude
that Weaver’s argument that she was entitled to file the instant suit was thoroughly void of legal
rigor in her position. Accordingly, we conclude that the trial court could have reasonably found
that Weaver’s pleadings were warranted by a nonfrivolous argument for the extension or
modification of an existing law.2 Therefore, we hold that the trial court did not abuse its
discretion in denying Thompson’s motion for sanctions under Section 10.001(2). Thompson’s
second issue is overruled.


                                                    DISPOSITION
         Having sustained Thompson’s first issue, we reverse the trial court’s judgment and
render judgment that Weaver take nothing on her claims. Having overruled Thompson’s second
issue, we affirm the trial court’s order denying her motion for sanctions.


                                                                         JAMES T. WORTHEN
                                                                            Chief Justice


Opinion delivered April 30, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



         2
          As a result of this conclusion, we do not reach the issue of whether Weaver presented her pleadings for
any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation
under Section 10.001(1), or whether the trial court erred in not conducting an evidentiary hearing to determine this
issue. See R.M. Dudley Constr. Co., Inc. v. Dawson, 258 S.W.3d 694, 709 (Tex. App.–Waco 2008, pet. denied).


                                                           8
                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                            APRIL 30, 2014


                                         NO. 12-13-00151-CV


                       ANGELA JEANETTE THOMPSON,
                                 Appellant
                                    V.
            SHERYL ANN WEAVER, AS INDEPENDENT ADMINISTRATOR
               OF THE ESTATE OF ALAN RAY ADAMS, DECEASED,
                                 Appellee


                                 Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 11-2085-A)

               THIS CAUSE came to be heard on the oral arguments, appellate record and the
briefs filed herein, and the same being considered, because it is the opinion of this court that
there was error in the judgment of the court below, it is ORDERED, ADJUDGED and
DECREED by this court that the judgment be reversed and judgment rendered that Appellee,
SHERYL ANN WEAVER, take nothing on her claims, and the trial court’s order denying
Appellant’s, ANGELA THOMPSON, motion for sanctions be in all things affirmed, and that
all costs of this appeal are hereby adjudged against the Appellee, SHERYL ANN WEAVER
SHERYL ANN WEAVER, in accordance with the opinion of this court; and that this decision
be certified to the court below for observance.
                   James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
