Opinion
05-21-01064-CV
06-20-2023
KELLY MCNAIR, Appellant v. STEPHEN MCNAIR, Appellee
On Appeal from the 469th Judicial District Court Collin County, Texas Trial Court Cause No. 469-00355-2019.
Before Justices Molberg, Reichek, and Breedlove
MEMORANDUM OPINION
AMANDA L. REICHEK JUSTICE
At issue in this appeal is whether Kelly McNair's tort claims against her ex-husband Stephen McNair are barred under the doctrine of res judicata by the parties' divorce decree. The trial court concluded Kelly's claims were barred and granted summary judgment for Stephen. We agree and affirm.
Background
Kelly and Stephen were married on March 27, 2014, and stopped living together as husband and wife almost two years later, on March 8, 2016. Kelly filed for divorce on March 17, 2016, and later amended her petition. As grounds for divorce, she alleged that Stephen committed family violence against her and asked for a disproportionate share of the community property for that reason. Kelly's first amended petition also included causes of action for assault that occurred "on multiple occasions between March 27, 2014 and March 8, 2016." She sought damages for her personal injuries, including past and future physical pain, suffering, and mental anguish. On November 4, 2016, the parties reached a mediated settlement agreement (MSA).
On January 20, 2017, before the divorce became final, Stephen drove Kelly to a car dealership, where they got into an argument. According to Kelly, Stephen forcefully threw her to the ground and kicked her in the head. In her deposition, she said she needed surgery on her neck as a result.
Three months later, on April 27, 2017, the trial court signed an agreed final decree of divorce. The agreed decree contained terms that were not in the MSA and were more favorable to Kelly than the MSA. For example, under the decree, Stephen was required to pay Kelly $3,000 a month for six months for her living expenses, pay her health insurance premiums for eight months, and pay "any out of pocket medical expenses through October 31, 2017." Kelly was also awarded a 2017 Mercedes.
In January 2019, Kelly filed the lawsuit that is the subject of this appeal. She asserted claims against Stephen for assault and intentional infliction of emotion distress based on the January 20, 2017 incident. Kelly sought damages for past and future medical expenses, physical pain, mental anguish, physical impairment, and disfigurement, as well as exemplary damages.
Stephen pleaded the affirmative defense of res judicata and moved for traditional summary judgment on that ground. He argued that Kelly's tort claims were barred because they were raised and resolved in the divorce action. The trial court granted the motion for summary judgment and ordered that Kelly take nothing on her claims. This appeal followed.
Analysis
In her sole issue, Kelly contends the trial court erred in granting summary judgment because Stephen did not meet his burden to prove res judicata. She argues res judicata does not apply because her tort claims are based on events that occurred after she filed for divorce.
We review an order granting summary judgment de novo. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). When reviewing a traditional summary judgment in favor of a defendant, we determine whether the defendant conclusively disproved an element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Durham v. Children's Med. Ctr. of Dallas, 488 S.W.3d 485, 489 (Tex. App.-Dallas 2016, pet. denied). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Id. We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 2017).
The doctrine of res judicata bars causes of action that have already been fully adjudicated or that, with the use of diligence, could have been brought in the prior suit. Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 225 (Tex. 2022). The policies behind the doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain the stability of court decisions, promote judicial economy, and prevent double recovery. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex. 1992). Res judicata requires proof of three elements: (1) a prior final judgment on the merits by a court of competent jurisdiction, (2) identity of parties, and (3) a second action based on the same claims as were raised or could have been raised in the first action. Rosetta, 645 S.W.3d at 225. The scope of res judicata is not limited to matters actually litigated; the judgment in the first suit precludes a second action by the parties not only on matters actually litigated but also on causes of action which arise out of the same subject matter and which might have been litigated in the first suit. Barr, 837 S.W.2d at 630.
Joinder of tort claims with a divorce suit, when feasible, is encouraged. Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex. 1993). Tort claims in such cases, like other civil actions, are subject to the principles of res judicata. Id. at 624. Resolving both the tort and divorce actions in the same proceeding avoids two trials based at least in part on the same facts and settles in one suit all matters existing between the parties. Id. at 625. In Twyman, the Texas Supreme Court anticipated that "most tort cases between spouses will be joined with the divorce proceeding, however, situations may exist in which the facts supporting the tort action will be different from those supporting a petition for divorce." Id. at 624 n.17.
In his motion for summary judgment, Stephen relied on Twyman and on Brinkman v. Brinkman, a San Antonio Court of Appeals case decided a few years after Twyman. Brinkman v. Brinkman, 966 S.W.2d 780 (Tex. App.-San Antonio 1998, pet. denied). In Brinkman, the appeals court considered whether a wife's personal injury claim against her ex-husband should have been joined with their divorce action. The husband physically assaulted the wife during the marriage. Id. at 780. He later filed for divorce, and the wife countersued, alleging cruel treatment as grounds for divorce. Id. The parties eventually entered into an agreed divorce decree. Id. at 781. Thereafter, the wife filed suit against the husband for damages caused by the assault. Id.
The court of appeals affirmed the trial court's summary judgment in favor of the husband on res judicata grounds. Id. at 782-83. The court concluded that because the tort at issue was made part of the divorce proceedings, it was the type of case in which Twyman encouraged joinder. Id. at 783. In other words, the case did not present a situation in which the facts supporting the tort action were different from those supporting the petition for divorce. Id. The court found that when the wife "chose to allege cruel treatment as grounds for divorce in order to receive a disproportionate share of community property, she was bound to assert all of her claims for cruel treatment arising out of the marriage." Id. To hold otherwise, the court said, would enable a spouse to use one instance of abuse to receive a large amount of temporary spousal support or a greater share of community property, and then use another instance of abuse to obtain damages. Id. Because the wife knew about her personal injury claim against the husband and used it to her advantage in the divorce proceeding, the claim should have been joined with the divorce action. Id.
While Brinkman is not binding on this Court, it is persuasive. Kelly seeks to distinguish Brinkman because the assault in that case occurred prior to the filing of the petition for divorce. For similar reasons, the parties disagree about whether Kelly's tort claims based on the January 2017 assault were actually litigated in the divorce proceeding. Stephen contends the claims were fully litigated and were the reason for the differences between the MSA and the divorce decree. He presented evidence the parties negotiated the terms of the agreed decree after the incident. Kelly argues the claims were not actually litigated in the divorce proceeding because they did not exist when she filed for divorce and because they were not expressly mentioned in the decree.
We need not decide whether the tort claims were actually litigated with the divorce. The doctrine of res judicata applies not only to claims that were actually litigated, but also to claims that could have been litigated with the use of diligence. Brinkman, 966 S.W.2d at 783 (citing Barr, 837 S.W.2d at 631); see Hevey v. Hundley, No. 05-12-00588-CV, 2013 WL 5782924, at *3 (Tex. App.-Dallas Oct. 25, 2013, pet. denied) (mem. op.) (res judicata barred trust's claims based on allegations that wife fraudulently induced husband to marry her because claims could have been litigated during divorce even though fraud was discovered later).
If Kelly's tort claims were not fully litigated in the divorce action, they certainly could have been with the use of diligence. The January 2017 assault occurred three months prior to the final divorce decree. We are not persuaded by Kelly's argument that res judicata does not apply because the conduct at issue occurred after she filed for divorce. The law she cites on this issue is distinguishable because the cases involve claims that accrued after the first judgment. See Compania Financiara Libano, S.A. v. Simmons, 53 S.W.3d 365, 367 (Tex. 2001) (per curiam) (agreed judgment reached as a result of settlement agreement did not bar claims for breach of that settlement agreement); Hernandez v. Del Ray Chem. Int'l Inc., 56 S.W.3d 112, 116 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (judgment in suit involving wrongful transfer of assets did not bar suit for wrongful transfer of assets that occurred two years after jury verdict in first trial).
Similar to Brinkman, Kelly's petition for divorce put Stephen's assaultive conduct at issue. As a result, this is the type of case in which interspousal tort claims should be joined with the divorce. When Kelly chose to allege family violence to receive a disproportionate share of community property, she was bound to assert all of her claims for family violence arising out of the marriage. See Brinkman, 966 S.W.2d at 783 (number of lawsuits between spouses in marriage that involved long-term abuse "could multiply exponentially" if separate suits were permitted). Requiring joinder under these circumstances is consistent with the policies behind res judicata, such as the need to bring all litigation to an end, promote judicial economy, and prevent double recovery. See Barr, 837 S.W.2d at 630; Brinkman, 966 S.W.2d at 783. Accordingly, res judicata bars Kelly's claims, and the trial court did not err in granting summary judgment. We overrule Kelly's sole issue.
We affirm the trial court's order granting Stephen's motion for summary judgment.
JUDGMENT
In accordance with this Court's opinion of this date, the trial court's September 8, 2021 order is AFFIRMED.
It is ORDERED that appellee STEPHEN MCNAIR recover his costs of this appeal from appellant KELLY MCNAIR.
Judgment entered.