
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-97-00494-CV


Lewis Johnson, Appellant

v.


Martha Johnson-McHenry, Appellee






FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

NO. 20,124, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING 




	Appellant Lewis Johnson sued Martha Johnson-McHenry for conversion of personal
property and intentional infliction of emotional distress.  Appellee Martha moved for summary
judgment on the grounds of res judicata and collateral estoppel; she also requested attorney's fees
and costs as sanctions.  The trial court granted summary judgment in favor of Martha, granting
all her requested relief.  Lewis appeals the judgment.  We will reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND
	The present cause began in 1988 when Martha filed a suit (the first suit) to partition
family property by sale.  See Tex. Prop. Code Ann. § 23.001 (West 1984).  The property was
originally owned by Leonard Johnson, who died in 1974 leaving the property to his children. 
Lewis and one brother opposed the sale; Martha was joined by five surviving Johnson siblings. 
A year later, a default judgment was entered ordering the nearly twenty acres of land be
partitioned by sale.  Lewis then filed a motion for new trial and the plaintiffs agreed to reinstate
the case.  The case lingered in court for several months due to Lewis's continual suggestion he
would buy his siblings' interest in the property, and subsequent attempts by the family to settle
rather than bring the case to trial.  Lewis and one brother wanted to partition the property in kind
in order to retain the family's ownership of the land.  Martha and her other siblings wanted to sell
the property assuming no one had the means to buy out the other siblings and the property was
not susceptible to partition in kind.  On the recommendation of an appraiser in early 1990, Martha
and her co-plaintiffs had an allegedly dilapidated cabin on the property bulldozed, anticipating that
would increase the chance of a sale.  This cabin and its contents are at the heart of the present
dispute.  Martha and co-plaintiffs saw the cabin as an eyesore; Lewis apparently viewed it as the
repository of family memories.  In February 1991, the court determined the owners of the Johnson
property and ordered a partition by sale, finding that the property was not susceptible to an
equitable partition in kind.  The court also ordered that survey costs and attorney's fees be
deducted from the gross proceeds of the sale.  
	In May 1991, Lewis filed a suit (the second suit) against Martha for the wrongful
conversion of his personal property and intentional infliction of emotional distress.  Both causes
were based on the bulldozing event; the pleadings alleged damages from the destruction of certain
personal items in the cabin and the resulting emotional distress.  Although both parties engaged
in some discovery, the case languished without going to trial and was eventually subject to
dismissal for want of prosecution.  Lewis filed a motion to reinstate the second suit in April 1993,
and requested a setting which was granted by the trial court.  In early 1995, the court in the first
suit issued an order of sale of the property in accordance with an earnest money contract that
listed the property's value and named buyers.  
	Shortly afterward, Lewis filed a motion to consolidate the first and the second suits. 
Lewis alleged that the final decree in the first suit was dependent on the resolution of the second
case with regard to the distribution of proceeds from the sale of the property.  Martha objected
to the consolidation claiming in her pleadings that the two cases "share no common questions of
fact or law."  The trial court denied the motion to consolidate.  The Johnson property was finally
sold in June 1995 in accordance with the earnest money contract and the court rendered judgment,
approving and confirming the sale and ordering a distribution of the proceeds to the siblings
pursuant to the 1991 order of sale.  See Tex. R. Civ. P. 770.  A year later, Martha moved for a
summary judgment in the second suit on the grounds of res judicata and collateral estoppel.  She
argued that the 1995 judgment in the first suit barred Lewis's actions for conversion of personal
property and intentional infliction of emotional distress because (1) he had raised the same
complaints in the first suit, and (2) the facts of the second suit had been fully and fairly litigated
in the first suit and were essential to its determination.  Martha also claimed she was entitled to
attorney's fees as a sanction under Rule 13 of the Texas Rules of Civil Procedure as a matter of
law.  The trial court granted Martha's motion for summary judgment and awarded her attorney's
fees and court costs as a sanction.  Lewis appeals the trial-court judgment in two points of error.

DISCUSSION
	The function of summary judgment is not to deprive litigants of the right to trial
by jury, but to eliminate patently unmeritorious claims and defenses.  See Swilley v. Hughes, 488
S.W.2d 64, 68 (Tex. 1972).  A movant for summary judgment must prove conclusively all
essential elements of an affirmative defense in order to be entitled to summary judgment on the
defense.  Id. at 67.  Summary judgment may be obtained upon a plea of res judicata or collateral
estoppel.  See, e.g., Puga v. Donna Fruit Co., Inc., 634 S.W.2d 677 (Tex. 1982). 
	In asserting both res judicata and collateral estoppel as defenses, Martha relies
mainly on the evidence that Lewis raised the issue of the bulldozing event several times in the first
action through:  (1) interrogatories; (2) personal letters to the presiding judge which were filed
by the court; and (3) Lewis's testimony in the 1991 and 1995 hearings.  Martha contends this
satisfies the requirements of res judicata and collateral estoppel because the claims and issues in
the second suit were fully and fairly litigated, already decided, and essential to the first suit. (1) 

	The doctrines of res judicata and collateral estoppel cannot apply to Lewis's claim
for intentional infliction of emotional distress as no such claim was ever raised in the first suit nor
were any facts underlying the claim fully and fairly litigated in that suit.  Neither can we hold that
the facts in the emotional distress cause of action were essential to the judgment in the first suit. 
On the other hand, it is less than clear whether Lewis did raise in the first suit the same claims
underlying his present suit for conversion, litigated the underlying facts fully and fairly, and
whether such facts were essential to the judgment.  
	The summary-judgment evidence reveals that Lewis wrote at least two letters to the
presiding judge in the first suit complaining that the cabin had been bulldozed and certain personal
property destroyed.  At the 1991 partition hearing, Lewis raised those same issues when his
attorney asked whether he would like the judge to consider anything in deciding the case.  Lewis
testified to those facts again in the 1995 hearing after the judge, stating the remedy was in equity, 
invited Lewis to speak on any issue he felt relevant to the suit.  Generally in a partition suit, the
trial court determines whether the partition will be by sale or in kind, the share or interest of the
joint owners or claimants, and all questions of law or equity affecting title.  Tex. Prop. Code Ann.
§ 23.001 (West 1984); Tex. R. Civ. P. 756-771.  The court then allocates to the parties their
rightful shares or tracts.  Tex. R. Civ. P. 768, 770.  A trial court may also exercise equitable
powers in a partition suit.  See Bankston v. Taft, 612 S.W.2d 216, 217-18 (Tex. Civ.
App.--Beaumont 1981, writ dism'd).  Although Lewis testified at great length regarding the
destruction of his personal property, he did not testify as to the amount of damages.  In its final
judgment the trial court did not augment Lewis's share of the proceeds of sale to reflect any loss
of personal property.  While res judicata and collateral estoppel may be warranted if Lewis's
claims were fully litigated, we need not decide whether either doctrine applies to bar the
conversion suit or the claim of intentional infliction of emotional distress under the circumstances
of this case.
	A party is estopped from raising res judicata or collateral estoppel as an affirmative
defense in a second suit after opposing a motion to consolidate the two suits.  Bethel v. Norman
Furniture Co., Inc., 756 S.W.2d 6, 8 (Tex. App.--Houston [1st Dist.] 1988, no writ); see also
Sutherland v. Cobern, 843 S.W.2d 127, 131 (Tex. App.--Texarkana 1992, writ denied).  In her
response to Lewis's motion to consolidate, Martha reasoned that the conversion and intentional
infliction of emotional distress claims should not be litigated in the partition claim because "the
cases share no common questions of fact or law," "the proposed consolidation offers no judicial
economy nor does it save expense for the litigants," and "no good cause for consolidation [is]
shown."  A party should not be allowed to profit from inconsistent positions; because of her
actions and arguments during the prior litigation, Martha is estopped from asserting res judicata
or collateral estoppel in this suit.  See Sutherland, 843 S.W.2d at 131; Bethel, 756 S.W.2d at 8;
see also White v. Bell, 290 S.W. 849, 851 (Tex. Civ. App.--Waco 1927, writ ref'd) (manifestly
unjust to permit party to defeat opposing party's cause by offering to pay, then plead as a bar
attempt to enforce payment); National Sur. Co. v. Landers, 235 S.W. 275, 277-78 (Tex. Civ.
App.--Texarkana 1921, writ dism'd) (consent by party to action pursued by court in first suit may
bar that party from insisting second suit cannot be maintained).  Martha cannot first assert that
the two suits are so different they cannot be consolidated and then argue that the present claims
are barred because they were or should have been raised in the first suit and were essential to that
judgment.   See Sewell Paint & Glass Co. v. Booth Lumber & Loan Co., 50 S.W.2d 793, 794
(Tex. Comm'n App. 1932, judgm't adopted); Sutherland, 843 S.W.2d at 131.
	While we acknowledge the unnecessarily long and painful path of this litigation
dating from 1988, in light of long-standing Texas law Martha cannot prevail on her summary
judgment on the grounds of res judicata or collateral estoppel.  We sustain point of error one.
	In his second point of error, Lewis complains the trial court erred in granting
Martha's motion for summary judgment on the issue of sanctions.  In its order granting summary
judgment, the court awarded Martha attorney's fees and court costs as a sanction under Rules 13
and 215(2)(b) of Texas Rules of Civil Procedure "after notice and hearing and for good cause
supported by uncontroverted evidence," including "[p]laintiff's prosecution of this cause after 
pleading and arguing his claim in a prior action and doing so for the sole purpose of harassment." 
Having determined that res judicata and collateral estoppel cannot support the summary judgment,
we hold the trial court abused its discretion in sanctioning Lewis.  We sustain appellant's second
point of error.

CONCLUSION
	Because appellee opposed an earlier motion to consolidate the two suits, we hold
she is estopped from raising res judicata and collateral estoppel defenses in the present action. 
We also conclude the trial court erred in awarding sanctions.  We reverse and remand the cause
to the court for proceedings consistent with this opinion.


					__________________________________________
					Bea Ann Smith, Justice
Before Justices Powers, Aboussie and B. A. Smith
Reversed and Remanded
Filed:   March 5, 1998
Publish
1.   In order to be entitled to summary judgment on the defense of res judicata, a movant
must  prove:  (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the
identity of the parties; and (3) a second action based on the same claims as 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. 1992).  

	A party seeking to invoke the doctrine of collateral estoppel must establish (1) the facts
sought to be litigated in the second action were fully and fairly litigated in the prior action; (2)
those facts were essential to the judgment in the first action; and (3) the parties were cast as
adversaries in the first action.  See Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.
1984).

n suit or the claim of intentional infliction of emotional distress under the circumstances
of this case.
	A party is estopped from raising res judicata or collateral estoppel as an affirmative
defense in a second suit after opposing a motion to consolidate the two suits.  Bethel v. Norman
Furniture Co., Inc., 756 S.W.2d 6, 8 (Tex. App.--Houston [1st Dist.] 1988, no writ); see also
Sutherland v. Cobern, 843 S.W.2d 127, 131 (Tex. App.--Texarkana 1992, writ denied).  In her
response to Lewis's motion to consolidate, Martha reasoned that the conversion and intentional
infliction of emotional distress claims should not be litigated in the partition claim because "the
cases share no common questions of fact or law," "the proposed consolidation offers no judicial
economy nor does it save expense for the litigants," and "no good cause for consolidation [is]
shown."  A party should not be allowed to profit from inconsistent positions; because of her
actions and arguments during the prior litigation, Martha is estopped from asserting res judicata
or collateral estoppel in this suit.  See Sutherland, 843 S.W.2d at 131; Bethel, 756 S.W.2d at 8;
see also White v. Bell, 290 S.W. 849, 851 (Tex. Civ. App.--Waco 1927, writ ref'd) (manifestly
unjust to permit party to defeat opposing party's cause by offering to pay, then plead as a bar
attempt to enforce payment); National Sur. Co. v. Landers, 235 S.W. 275, 277-78 (Tex. Civ.
App.--Texarkana 1921, writ dism'd) (consent by party to action pursued by court in first suit may
bar that party from insisting second suit cannot be maintained).  Martha cannot first assert that
the two suits are so different they cannot be consolidated and then argue that the present claims
are barred because they were or should have been raised in the first suit and were essential to that
judgment.   See Sewell Paint & Glass Co. v. Booth Lumber & Loan Co., 50 S.W.2d 793, 794
(Tex. Comm'n App. 1932, judgm't adopted); Sutherland, 843 S.W.2d at 131.
	While we acknowledge the unnecessarily long and painful path of this litigation
dating from 1988, in light of long-standing Texas law Martha cannot prevail on her summary
judgment on the grounds of res judicata or collateral estoppel.  We sustain point of error one.
	In his second point of error, Lewis complains the trial court erred in granting
Martha's motion for summary judgment on the issue of sanctions.  In its order granting summary
judgment, the court awarded Martha attorney's fees and court costs as a sanction under Rules 13
and 215(2)(b) of Texas Rules of Civil Procedure "after notice and hearing and for good cause
supported by uncontroverted evidence," including "[p]laintiff's prosecution of this cause after 
pleading and arguing his claim in a prior action and doing so for the sole purpose of harassment." 
Having determined that res judicata and collateral estoppel cannot support the summary judgment,
we hold the trial court abused its discretion in sanctioning Lewis.  We sustain appellant's second
point of error.

CONCLUSION
	Because appellee opposed an earlier motion to consolidate the two suits, we hold
she is estopped from raising res judicata and collateral estoppel defenses in the present action. 
We also conclude the trial court erred in awarding sanctions.  We reverse and remand the cause
to the court for proceedings consistent with this opinion.


					__________________________________________
					Bea Ann Smith, Justice
Before Justices Powers, Aboussie and B. A. Smith
Reversed and Remanded
Filed:   March 5, 1998
Publish
1.   In order to be entitled to summary judgment on the defense of res judicata, a movant
must  prove:  (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) the
identity of the parties; and (3) a second action based on the same claims as 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. 1992).  

	A party seeking to invoke the doctrine of collateral estoppel must establish (1) the facts
sought to be litigated in the second action were fully and fairly litigated in the prior action; (2)
those facts were essential to the judgment in the first action; and (3) the parties were cast as
adversaries in the first actio