Opinion issued November 22, 2016




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-00622-CV
                            ———————————
  JESUS BANDA, JUAN BANDA, CHON BANDA, AND RUBEN BANDA,
                         Appellants
                                        V.
GEORGE H. RAU, JR., STEVENS & RAU, P.C., RANDY L. STROUD, P.E.,
 SANTIAGO AGUILERA, BLAS VALLEJO, SALVADORE RAZO, AND
             MIGUEL ANGEL GARCIA, Appellees


                   On Appeal from the 239th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 75560-CV


                          MEMORANDUM OPINION

      This is an appeal from a summary judgment granted on the claim that

appellants’ suit is barred by res judicata. We reverse and remand.
                                 BACKGROUND

      Appellants and Appellees were involved in a years-long dispute over the

ownership and location of land parcels in a mobile home park.           One of the

appellants (collectively, the Bandas) had executed contracts for deed with several

of the park’s occupants.     Later, a dispute arose over whether payments the

appellee-occupants were making to the Bandas were rental payments or purchase

payments. The appellee-occupants sued, and the parties reached a settlement. In

addition to reading the settlement agreement into the record, counsel prepared a

schematic drawing setting out the locations of the properties that was attached to

the parties’ Agreed Judgment. That cause was litigated in the 239th District Court

in Brazoria County.

      The Agreed Judgment was entered on March 22, 2010. It stipulated that the

parties were to hire a surveyor to conduct surveys and provide legal descriptions of

the parcels and that appellant Jesus Banda was to furnish deeds to each of the

appellee-occupants within thirty days of the completion of the surveys. When this

did not occur, appellee-occupants filed a motion to enforce the judgment, which

the trial court granted on May 24, 2011. Then, on July 12, 2011, the court ordered

appellee Stroud to act as an independent surveyor and survey the property in

accordance with the judgment, and ordered appellee Rau to act as the receiver of

the property and issue deeds at the conclusion of the survey.


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      The surveys were completed and, on October 7, 2011, appellee-receiver Rau

notified the Bandas via counsel that—if neither side had any correction or

suggestions regarding the accuracy of the survey—he would have Warranty Deeds

drafted based upon the surveys. In that same October 7, 2011 notice, Rau stated

that the surveys would be submitted to the trial court for approval.

      On October 20, 2011, appellant Jesus Banda’s attorney sent a letter to both

appellee-receiver Rau and appellee-surveyor Stroud, protesting that the proposed

surveys were different than the conveyances agreed to by the parties in the Agreed

Judgment. The letter pointed out the specific ways in which the Bandas contended

the surveys differed from the language of the Agreed Judgment, and the trial court

was copied on the correspondence. On October 31, 2011, in response to a letter

from appellee-Stroud asserting that the surveys were consistent with a sketch

attached to the Agreed Judgment, Jesus Banda’s attorney again contended that the

surveys did not reflect the parties’ agreement. The trial court was again copied on

this correspondence and it included an informal drawing of what Jesus Bandas

contended was consistent with the court’s orders and the parties’ agreement.

      On June 20, 2013, appellee Stroud advised the parties that he was going to

execute and record receiver deeds on July 1, 2013.      On the afternoon of July 1,

2013, appellant Jesus Banda’s attorney faxed a letter to appellee-receiver Rau,

appellee-surveyor Stroud, and the trial court, again pointing out the particulars in


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which he believed the proposed deeds were incorrect and did not reflect the

agreement entered into by the parties in open court.

      On July 9, 2013, Rau responded that he had prepared the recorded receiver

deeds “after consultation with the surveyor” and suggested that the Bandas “take

the matter up with the Court.”

A.    The Underlying Lawsuit

      On January 14, 2014, the Bandas filed the underlying lawsuit against

appellee-receiver Rau, appellee Stevens & Rau, P.C., appellee-surveyor Stroud,

and three appellee-occupants of land at the mobile home park. That lawsuit was

assigned to the 23rd District Court of Brazoria County.         The Bandas sought

damages from appellees Rau, Stevens & Rau, P.C., and Stroud for their alleged

“course of willful conduct with the intent to interfere with the parties’ agreement.”

Specifically, the Bandas contended that, despite the court ordering the surveyor

and receiver “to execute the appropriate deeds in accordance with the orders of the

court rendered on July 12, 2011,” they instead “arbitrarily conveyed real property

on July 1, 2013, contrary to the existing agreement between the parties and in

disobedience or noncompliance with the court orders.”        Against the individual

appellee-occupants, the Bandas alleged that they agreed to accept different plots

and amounts of land in Agreed Judgment than was actually conveyed to them by




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the receiver deeds. Thus, the Bandas alleged each had breached their contractual

agreements.

B.    The Transfer and Summary Judgment

      The three appellee-occupants requested that the 23rd District Court transfer

the cause to the 239th District Court (the court that had heard and decided the

earlier lawsuit resulting in the Agreed Judgment).        The Bandas opposed the

transfer, arguing:

      Defendants allege that res judicata applies to the facts in this case
      because the issues involving quieting title were resolved as a result of
      an agreed judgment dated March 22, 2010. The March 22, 2010
      judgment required the parties to select a surveyor to provide a legal
      description of the 5-acre tract of land so that deeds could be prepared
      to describe the land being conveyed by Jesus Banda. Since the March
      22, 2010 judgment the parties went back to the 239th District Court
      on a motion to enforce. The court terminated the services of the
      surveyor previously retained by the parties and on July 12, 2011
      appointed Randy Stroud to survey the property and George Rau,
      Receiver, was appointed to draft deeds based upon the court’s
      judgment and the parties agreement.
      On July 1, 2013, two years later, the receiver filed real estate deeds
      with the Brazoria County Clerk’s office. The deeds filed as a matter of
      record were different than the division of land agreed to on the March
      22, 2010 judgment by the parties. This case was resolved by
      settlement agreement and the judgment had to strictly confirm to the
      terms of the agreement. There was a contract existing between the
      parties that was enforceable by lawsuit as any other agreement. The
      problem in this case is the land was divided by the receiver/surveyor
      differently than stipulated by agreement and judgment. The issues
      prior to the judgment are not being re-litigated. The lawsuit currently
      before the 23rd judicial District Court attempts to correct and rescind
      deeds that granted land arbitrarily to individuals that were not entitled
      to it. The rule of law that applies is that the enforcement order must be
      carried out consistently with the original judgment and cannot
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      materially change a part of the judgment that was substantially
      adjudicated. The receiver and surveyor used their discretion to take
      land away from plaintiffs.
       The Judge of the 239th District Court (Patrick Sebesta) was informed
      during 2013 that the receiver and surveyor were not abiding by the
      agreement before the court. The 239th District Court refused to
      intervene professing not to have jurisdiction. The case is appropriately
      filed in the 23th District Court and should not be sent to the 239th
      District Court as it does not have jurisdiction of the parties.

      Over this objection, the 23rd District Court transferred the underlying case

to the 239th District Court.

      The three appellee-occupants moved for summary judgment on the basis of

res judicata, and the trial court granted the motion.   The Bandas timely brought

this appeal.

                               ISSUES ON APPEAL

      In a single issue, the Bandas argue “The Trial court erred in granting

summary judgment in favor of Appellees on the grounds of res judicata.” In

response, appellees contend that the trial court’s summary judgment was proper,

and they seek an award of attorneys’ fees for defending what they contend is a

frivolous appeal.

                                RES JUDICATA

      “Res judicata is a generic term for the related concepts of claim preclusion

(res judicata) and issue preclusion (collateral estoppel).” Barnes v. United Parcel

Serv., 395 S.W.3d 165, 173 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

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“Res judicata bars the re-litigation of claims that have been finally adjudicated or

that could have been litigated in the prior action.” Igal v. Brightstar Info. Tech.

Grp., 250 S.W.3d 78, 86 (Tex. 2008). For res judicata to apply, the defendant must

show that: (1) there is a prior final judgment on the merits by a court of competent

jurisdiction; (2) the parties in the second action are the same or in privity with

those in the first action; and (3) the second action is based on claims that were or

could have been raised in the first action. Id.; Dardari v. Tex. Commerce Bank

Nat’l Ass’n, 961 S.W.2d 466, 470 (Tex. App.—Houston [1st Dist.] 1997, no pet.).

Res judicata does not operate as a bar to litigation when the second claim could not

have been raised in the previous litigation. See Abbott Labs. v. Gravis, 470 S.W.2d

639, 642 (Tex. 1971); Voskamp v. Arnoldy, 749 S.W.2d 113, 126 (Tex. App.—

Houston [1st Dist.] 1987, writ denied).

      A.     The Summary Judgment

      Santiago Aguilera, Blas Vallejo, and Miguel Garcia—three appellee-

occupants—filed a traditional motion for summary judgment. That motion argued,

in its substantive entirety:

              On the 22nd day of March, 2010, pursuant to the Agreed Final
      Judgment of this Court in Cause No. 25553 in this Court, and
      Trustee’s Deeds executed by George H. Rau, Jr. the Receiver
      appointed by this Court, Defendants’ title to the land involved in this
      litigation was, for all time, confirmed. Copies of the Court’s Judgment
      in Cause No. 25553 as well a Trustee’s Deed in favor of the
      Defendant, Santiago Aguilera, are attached hereto and made parts of
      this Motion for all relevant purposes. The Court is asked to take

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      judicial notice of both documents which are on file in the Court
      records and deed records of Brazoria County along with the Receiver's
      deeds to the Defendants, BLAS VALLEJO and MIGUEL ANGEL
      GARCIA, which are also “of record” in the Deed Records of Brazoria
      County.
            The Court’s Final Judgment bars all claims now being brought
      by JESUS BANDA and the other Plaintiffs in the above-styled and-
      numbered cause under the doctrine of Res Judicata. All issues and
      causes of action regarding Defendants’ title to the real property
      involved were forever resolved and “put to bed” by the Court’s
      Judgment after years of litigation before this Court, and a Judgment
      which claimants to the land in dispute asked to be entered. Plaintiffs’
      present lawsuit is nothing more than an improper collateral attack on
      that Agreed Final Judgment.
      The Bandas filed a response, again arguing that their claims were not barred

by res judicata because they were not seeking to challenge the contents of the

Agreed Judgment from the prior suit; rather, they were arguing that the receiver

deeds did not conform to the Agreed Judgment. As evidence, the Bandas included

the parties’ Rule 11 Agreement, a transcript of the parties’ settlement agreement

being read into the record, the Agreed Judgment, and an affidavit by appellant

Jesus Banda verifying the facts in the response and averring that the Bandas claims

are based upon facts that did not exist at the time of the Agreed Judgment.

      On May 25, 2015, the trial court signed an order granting “Defendants’

Motion for a full and final Summary Judgment.”1


1
      It appears this summary judgment was final, although erroneous, because it
      unequivocally disposed of all claims and parties even though the motion for
      summary judgment it was based upon only addressed claims against three of the
      five defendants. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001)
                                         8
      B.     Analysis
      On appeal, the Bandas argue that the district court “erred in granting

summary judgment based upon res judicata.” They contend that res judicata does

not bar a claim that arose after a final judgment that is based on facts not resolved

in that judgment. Because their argument is that the “the parties did not perform in

accordance with the Rule 11 Agreement nor the Agreed Judgment,” the Bandas

assert that the trial court’s judgment based upon res judicata should be reversed.

      Appellees argue that that the Bandas’s claims are foreclosed because the

Bandas are “attempting to undo” the Agreed Final Judgment. Because the Bandas

did not appeal that Agreed Judgment, appellees contend that the Bandas cannot

collaterally attack that final judgment in this suit. Accordingly, appellees argue

that the trial court’s granting summary judgment based on res judicata was proper

and that the summary judgment should be affirmed.

      We disagree with appellees that the Bandas “waived any complaint [they]

may have had regarding a supposed incorrect survey and deeds based” on the

Agreed Judgment. Both parties agree that the Agreed Judgment is binding and

controlling and—contrary to the appellees’ argument—the Bandas have not


      (“[I]f a defendant moves for summary judgment on only one of four claims
      asserted by the plaintiff, but the trial court renders judgment that the plaintiff take
      nothing on all claims asserted, the judgment is final—erroneous, but final. A
      judgment that grants more relief than a party is entitled to is subject to reversal,
      but it is not, for that reason alone, interlocutory.”). No party has complained of
      this error on appeal.
                                             9
challenged the Agreed Judgment, nor sought to “undo” it in the underlying lawsuit.

Either the survey and receiver deeds were prepared in conformity with the Agreed

Judgment or they were not. We need not resolve that issue on appeal because it is

not an issue raised in appellees’ motion for summary judgment, nor has that issue

been litigated yet in the trial court. The dispute over whether the survey and

receiver deeds comply with the Agreed Judgment is not foreclosed by res judicata

because the Bandas’ claims arise from facts that came about after the Agreed

Judgment was final.

      We thus reverse the trial court’s summary judgment and remand to the trial

court for further proceedings consistent with this opinion. Given our disposition,

we reject appellees’ argument that the Bandas’ appeal is frivolous, and accordingly

we deny the appellees’ request for an award of attorneys’ fees as sanctions.

                                 CONCLUSION

      We reverse the trial court’s summary judgment and remand for further

proceedings.




                                              Sherry Radack
                                              Chief Justice

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



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