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Houston, Texas – Personal Injury lawyer represented Appellant with alleging claims for negligence and breach of implied warranty against Appellee.
The facts of the underlying lawsuit are discussed in our initial opinion.
Foussadier v. Triple B Servs., LLP, No. 01-18-00106-CV, 2019 WL 2127604, at
*1 (Tex. App.—Houston [1st Dist.] May 16, 2019, pet. denied) (mem. op.).
Between 2012 and 2014, Triple B performed roadwork on FM2978 near Tomball,
Texas. In 2015, Foussadier was riding his bicycle on the stretch of road where
Triple B had worked when his wheel fell into a hole. Foussadier lost control of his
bicycle, fell, and broke his collarbone. He sued Triple B for negligence and other
causes of action. Triple B filed a no-evidence motion for summary judgment.
Foussadier responded with the following summary-judgment evidence:
(1) transcripts from his deposition; (2) discovery responses; and (3) an expert
report from a civil engineer, who conceded that he did not inspect the accident site
or the road defect, but who opined that the defect in the road was caused by Triple
B’s faulty work.
The trial court sustained objections to some of Foussadier’s summaryjudgment evidence, including the expert’s opinions, which the court called “the
very definition of ipse dixit testimony.” The court also said that there was “no
support” for the expert’s opinion. The court granted a take-nothing summary
judgment in favor of Triple B. Three weeks later, Foussadier filed a motion for
reconsideration to which he attached a second engineer’s report, which Foussadier
maintained created a genuine question of material fact. The trial court denied the
motion for reconsideration in an order that stated that it had considered “the
motion, pleadings, the response, [and] evidence” and had taken judicial notice of
the case file. On February 6, 2018, the trial court severed Foussadier’s claims
against Triple B, and Foussadier appealed.
On appeal, we explained that a court has discretion to consider late-filed
summary judgment evidence so long as there is an affirmative indication in the
record that the evidence was considered. Id. at *4. We reviewed the factual
situations in which courts of appeals had found an affirmative indication in the
record that the evidence was considered, including two cases from the Fourteenth
Court of Appeals that reached opposite conclusions about whether a statement that
the court considered “other evidence” on file was an affirmative indication that the
court considered late-filed summary judgment evidence. Id. at *5.
This court held that the trial court did not abuse its discretion by denying
Foussadier’s motion for reconsideration because there was no affirmative
indication that the trial court considered the late-filed evidence. We concluded that
the trial court’s “statement that it considered ‘evidence’ [wa]s consistent with the
rule that on motion for reconsideration, a court may consider only the record as it
existed when the court first ruled on the motion for summary judgment,” and was
not an affirmative indication that the court had in fact considered the late filed
evidence. The Supreme Court of Texas denied Foussadier’s petition for review,
and the mandate issued from this court in April 2020.
Meanwhile, in B.C. v. Steak N Shake Operations, Inc., which issued March
27, 2020, the Supreme Court of Texas concluded that a trial court’s recital that it
considered evidence, without qualification or limitation, is an affirmative
indication that overcomes the presumption that a trial court did not consider latefiled evidence.1
In June 2020, after the mandate in the first appeal issued, Foussadier filed
his fourth amended petition in his ongoing litigation against the Department of
Transportation. Foussadier again pleaded a claim for negligence against Triple B
based on the allegedly defective roadwork, which he maintains caused his bicycle
accident. Foussadier alleged that B.C. represented a change in substantive law that
entitled him to consideration of the evidence that he had previously attached to his
motion for reconsideration.
Triple B answered the amended petition and moved for summary judgment
on the grounds of res judicata and the expiration of the statute of limitations. It
argued that Foussadier’s negligence claim was identical to his prior claim, which
had been dismissed on summary judgment. Triple B argued that B.C. did not create
1 B.C. v. Steak N Shake Operations, Inc., 598 S.W.3d 256, 261 (Tex. 2020).
a new substantive right or cause of action. Triple B also asserted that Foussadier’s
claims were barred by the two-year statute of limitations for negligence.
The trial court granted summary judgment and dismissed Foussadier’s
claims against Triple B “with prejudice against the refiling of the same.” After the
trial court denied Foussadier’s motion for reconsideration, it severed his claims
against Triple B into a separate action, and Foussadier appealed.
On appeal, Foussadier asserts that the trial court erred by granting summary
judgment and by denying his motion for reconsideration. Foussadier argues that
B.C. was a substantive change in decisional law that affected his rights, and,
therefore, a narrow exception bars the application of res judicata. Triple B argues
that res judicata applies, and the trial court correctly granted summary judgment
and dismissed Foussadier’s repleaded claims. We agree with Triple B.
I. Summary judgment standard of review
We review de novo the trial court’s ruling on a motion for summary
judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). A party moving for traditional summary judgment bears the
burden of showing that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); see Provident Life
& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003).
II. Res judicata
“Res judicata, or claim 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 v.
Resol. Tr. Corp., 837 S.W.2d 627, 628 (Tex. 1992).
The principle of res adjudicata is founded in public policy and is as
old as English jurisprudence. Fundamentally its purpose is to expedite
justice by putting an end to litigation; and to preserve the sanctity of
the judgments of the courts by making them immune from collateral
attack. Once a court has exercised its functions of decision on an issue
over which it has jurisdiction, and that decision becomes final, the
parties thereto and their privies cannot escape its binding effect.
Lacking this anchorage of finality a judicial system would be little
more than a rule of fiat.
Permian Oil Co. v. Smith, 107 S.W.2d 564, 567 (Tex. 1937) (cited with approval
by Engelman Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex.
Ordinarily, “a final judgment is the end point of litigation.” Engelman
Irrigation, 514 S.W.3d at 750. Res judicata precludes a second action “by the
parties and their privies on matters actually litigated and on causes of action or
defenses arising out of the same subject matter that might have been litigated in the
first suit.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010)
(quoting Gracia v. RC Cola–7–Up Bottling Co., 667 S.W.2d 517, 519 (Tex.
1984)). “The policies behind res judicata ‘reflect the need to bring litigation to an
end, prevent vexatious litigation, maintain stability of court decisions, promote
judicial economy, and prevent double recovery.’” Engelman Irrigation, 514
S.W.3d at 750 (quoting Barr, 837 S.W.2d at 629). “That the judgment may have
been wrong or premised on a legal principle subsequently overruled does not affect
application of res judicata.” Id. at 749 (quoting Segrest v. Segrest, 649 S.W.2d 610,
612 (Tex. 1983)).
“The party relying on the affirmative defense of res judicata must prove (1) a
prior final determination 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 as were or could have been raised in the first action.” Travelers
Ins. Co., 315 S.W.3d at 862 (citing Amstadt v. U.S. Brass Corp., 919 S.W.2d 644,
652 (Tex. 1996)); see TEX. R. CIV. P. 94 (identifying res judicata as an affirmative
A judgment is final for the purpose of res judicata “despite the taking of an
appeal unless what is called an appeal actually consists of a trial de
novo.” Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex. 1986) (op. on reh’g)
(quoting RESTATEMENT (SECOND) OF JUDGMENTS § 13 cmt. f (1982)); Lesikar v.
Moon, No. 01-12-00406-CV, 2014 WL 4374117, at *6 (Tex. App.—Houston [1st
Dist.] Sept. 4, 2014, pet. denied) (mem. op.). An earlier judgment that has been
reversed, however, is not preclusive because “a reversed judgment is generally
nullified, leaving it as if it had never been rendered other than as to further rights of
appeal.” Watson v. Hous. Indep. Sch. Dist., No. 01-04-01116-CV, 2005 WL
3315254, at *1 (Tex. App.—Houston [1st Dist.] Dec. 8, 2005, no pet.) (mem. op.).
And while judicial decisions generally apply retroactively, except as to cases that
have already proceeded to final judgment, such retroactivity is “limited by the need
for finality; once suit is barred by res judicata or by statutes of limitation or repose,
a new rule cannot reopen the door already closed.” Engelman Irrigation, 514
S.W.3d at 749–50.
The Supreme Court of Texas has held that there is a limited exception to res
judicata. Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 950 (Tex.
1990). In Marino, the Court held that “res judicata is not a defense in a subsequent
action if there has been a change in the material facts, the applicable statutory law,
or the decisional law between the first judgment and the second suit.” Id. at 950.
(emphasis in original) “The rationale underlying this rule is that no judgment can
affect subsequently arising rights and duties.” Id.
III. Res judicata bars Foussadier’s claims against Triple B.
Triple B argued in the trial court that there was a final determination on the
merits regarding the same claims that Foussadier repleaded after the last appeal,
which barred relitigation. The first summary judgment was severed from
Foussadier’s claims against the Department of Transportation in February 2018.
Despite the fact that this summary judgment was appealed, it was final for the
purpose of res judicata as of the date of its issuance in February 2018. Scurlock
Oil, 724 S.W.2d at 6; Lesikar, 2014 WL 4374117, at *6. Because that judgment
was not overruled, it retains its preclusive effect. See Watson, 2005 WL 3315254,
at *1. This satisfies the first element of res judicata—that there be a prior final
determination on the merits by a court of competent jurisdiction. See Travelers
Ins., 315 S.W.3d at 862; Amstadt, 919 S.W.2d at 652.
The second element required to prove res judicata is identity of parties. See
Travelers Ins., 315 S.W.3d at 862; Amstadt, 919 S.W.2d at 652. The parties to the
first summary judgment were Foussadier and Triple B. Thus, the second element is
The third element required to prove res judicata is that the second action is
based on the same claims as were or could have been raised in the first action. See
Travelers Ins., 315 S.W.3d at 862; Amstadt, 919 S.W.2d at 652. Here, Foussadier’s
repleaded claims were the same as the claims that were the subject of the first
summary judgment. Thus, the third element is also satisfied.
Despite the fact that Triple B has satisfied all three elements necessary for
res judicata, Foussadier argues that B.C. substantively changed the law, and
therefore the limited exception to res judicata in Marino applies. This case is,
however, distinguishable from Marino because B.C. did not change the substantive
In Marino, an insured alleged that his insurer attempted to coerce him to
sign a document releasing the insurer from liability by misrepresenting the contents
of the document and denied his claim for fire damage without any investigation.
787 S.W.2d at 948. After a jury found in Marino’s favor, the trial court rendered
judgment awarding breach of contract damages for the insurer’s failure to pay his
claim. Id. About three weeks after rendition of judgment by the trial court, the
Supreme Court of Texas “first recognized a tort cause of action for an insurer’s
breach of the duty of good faith and fair dealing. This common-law cause of action
is generally referred to in a shorthand manner as a ‘bad faith’ claim.” Id. at 949.
Marino then filed a second lawsuit alleging that the insurer breached its commonlaw duty of good faith. Id. The trial court granted summary judgment for the
defendants, and the court of appeals affirmed, concluding that the bad faith claim
was barred by res judicata. Id.
The Supreme Court of Texas concluded that Marino’s bad faith claim was
not barred by res judicata because “the subsequent change in decisional law . . . not
only conferred new rights upon Marino but created an entirely new common-law
cause of action.” Id. at 950. The Court held that “because Marino’s ‘bad faith’
claim was based on rights subsequently acquired, it was not part of his former
cause of action and therefore was not barred by res judicata.” Id.
Foussadier argues that B.C. established a new substantive right to have his
late-filed summary judgment evidence considered by the court of appeals.
Appellant’s Br. 14. We do not agree that B.C. established a new substantive right.
In B.C., the Supreme Court of Texas identified what language in the appellate
record would overcome the presumption that the trial court did not consider latefiled summary judgment evidence. B.C., 598 S.W.3d at 262. This does not afford
any party a right to have late-filed summary judgment evidence considered, as that
remains a matter of the trial court’s discretion. See In re Est. of Mooney, No. 01-
18-00096-CV, 2019 WL 3917427, at *7 (Tex. App.—Houston [1st Dist.] Aug. 20,
2019, no pet.) (mem. op.).
Foussadier also argues that the Supreme Court of Texas denied his petition
for review of the first summary judgment because the controlling legal question in
that appeal had just been answered by B.C., and he had “an adequate remedy to
continue litigation in the trial court under the authority of Marino.” Appellant’s Br.
22. But this case is different from Marino. In Marino, the plaintiff raised a new
claim—a bad faith claim—after receiving judgment on the verdict on his breach of
contract claim. Here, Foussadier pleaded the exact same claim.2
We conclude that res judicata applies, and the trial court correctly dismissed
Foussadier’s claims against Triple B.
Outcome: We affirm the judgment of the trial court.