Rosev.Hyde

Court of Appeals Fifth District of Texas at DallasJan 20, 2016
No. 05-14-01250-CV (Tex. App. Jan. 20, 2016)

No. 05-14-01250-CV

01-20-2016

H. ROBERT ROSE, Appellant v. RICK HYDE, ADAM DOUGHERTY AND MICHAEL PICOLO A/K/A "THE BENT TREE NORTH PHASE ONE ARCHITECTURAL CONTROL COMMITTEE," AND BENT TREE NORTH HOMEOWNERS' ASSOCIATION, INC., Appellees


On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-2450-06

MEMORANDUM OPINION

Before Justices Lang-Miers, Brown, and Schenck
Opinion by Justice Schenck

In two issues, H. Robert Rose appeals the trial court's grant of appellees' plea to the jurisdiction. For the following reasons, we affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND FACTS

Rose and his wife Gaynell Rose ("Roses") live in a home adjacent to a golf course. In 2006, the Roses built a fence to block the view of their neighbors, the Bonvinos. The Bonvinos successfully sued the Roses and on June 22, 2007, obtained a permanent injunction ("2007 final judgment") compelling the Roses to reduce the height of their fence and enjoining them from constructing a fence any higher than six feet tall without the approval of the Bent Tree North Architectural Control Committee ("ACC"). After the trial court rendered its judgment, the Roses tore down the original fence. But in 2012, the Roses built a new fence ("2012 fence").

The trial court that entered the 2007 final judgment conducted a series of hearings, first on the Bonvinos' motion for contempt, and then a hearing on April 1, 2014, on the Bonvinos' motion to enforce the 2007 final judgment. On May 9, 2014, the trial court entered findings in favor of the Bonvinos and granted their motion to enforce the judgment ("2014 order"). The Roses appealed the 2014 order to this Court, in part arguing the 2014 order modified its permanent injunction from the 2007 final judgment without a showing of changed circumstances and in part arguing the trial court lacked jurisdiction to order the Roses to remove the 2012 fence. We overruled the Roses' issues, concluded the trial court retained its jurisdiction to modify the permanent injunction in the 2007 final judgment, and affirmed the 2014 order granting the motion to enforce the 2007 final judgment. Rose v. Bonvino, No. 05-14-00702-CV, 2015 WL 4736837 (Tex. App.—Dallas Aug. 11, 2015, pet. denied) (mem. op.).

After the April 1, 2014 hearing on the Bonvinos' enforcement motion, but prior to the entry of the 2014 order, Rose as sole plaintiff filed a declaratory-judgment action against the Bent Tree North Homeowners' Association, Inc. ("HOA"), as well as Rick Hyde and Adam Dougherty who were both members of the ACC. Rose filed his declaratory-judgment action in the 429th district court, while the 2007 final judgment and 2014 order were entered by the 199th district court. Hyde, Dougherty, and the HOA filed a plea to the jurisdiction, arguing among other things that Rose's declaratory-judgment action sought resolution of issues that had been decided by the 2007 final judgment, making his claims moot and depriving the 429th district court of subject-matter jurisdiction. Hyde, Dougherty, and the HOA also filed motions to consolidate Rose's declaratory-judgment action in the 429th district court with the proceedings in the 199th district court, which were granted.

With the proceedings returned to the 199th district court, Rose filed his amended petition and added as an additional defendant appellee Michael Picolo, a third member of the ACC. In his amended petition, Rose asserted that since the 2007 final judgment was entered, there have been changed circumstances due to changed conditions, newly revealed facts, and changes in the law and based on those assertions requested the trial court dissolve the injunction in the 2007 final judgment and award him a declaratory judgment. Appellees filed an amended plea to the jurisdiction, arguing the trial court lacked jurisdiction over the suit because Rose's petition failed to allege a real controversy between the parties that could be resolved by the judicial relief Rose sought, and alternatively that the trial court lacked jurisdiction over the suit because Rose impermissibly attempted to use a declaratory judgment to attack or modify a prior judgment. The trial court granted appellees' plea to the jurisdiction and dismissed Rose's claims.

We note his petition begins by asking the trial court to modify the 2007 final judgment and ends by requesting the trial court award declaratory judgment against appellees and dissolve the permanent injunction contained in the 2007 final judgment.

DISCUSSION

In his first issue, Rose argues the trial court erred by implicitly determining that it did not have subject-matter jurisdiction under the Declaratory Judgments Act to construe restrictive covenants governing the Bent Tree North Phase One subdivision or to determine whether permission to build a fence was approved or even required. In his second issue, Rose argues the trial court erred by tacitly determining it had no subject-matter jurisdiction over a claim to modify or dissolve the permanent injunction in the 2007 final judgment due to changed circumstances.

Appellees assert a lack of justiciable controversy as to the rights and status of the parties, arguing the existence of the 2007 final judgment resolves any controversy Rose attempts to raise. In his reply brief, appellant urges appellees are tacitly arguing for a determination based upon res judicata. Appellees' amended plea argued there were no justiciable issues to be resolved and referred to the 2007 final judgment that had already been entered against appellant. Further, the hearing on appellee's amended plea included argument to the trial court that the changed circumstances Rose detailed in his amended petition should have been raised—or had been raised and overruled—during the April 1, 2014 hearing on the Bonvinos' enforcement motion. At the hearing on appellee's amended plea, the trial judge even responded to Rose's counsel's arguments with "everything that it appears that I'm reading has to do with the lawsuit that's been litigated." We agree with Rose that appellees' arguments are based on the principles of res judicata.

Res judicata is a plea in bar, not a plea to the jurisdiction. Tex. Highway Dep't v. Jarrell, 418 S.W.2d 486, 488 (Tex. 1967). Despite the fact appellees titled their plea as a plea to the jurisdiction, we conclude that the misnomer is not controlling and the plea shall be considered as having been properly brought as a plea in bar. TEX. R. CIV. P. 71 ("if justice so requires . . . [the court] shall treat the plea or pleading as if it had been properly designated").

Res judicata precludes re-litigation of claims that have been finally adjudicated or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). It 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 as were raised or could have been raised in the first action. Id. The policies behind the doctrine reflect the need to bring all litigation to an end, prevent vexatious litigation, maintain stability of court decisions, promote judicial economy, and prevent double recovery. Barr v. Resolution Tr. Corp., 837 S.W.2d 627, 629 (Tex. 1992).

Here, the record contains the 2007 final judgment entered by the 199th district court, as well as the 2014 order, satisfying the first element of a prior final judgment. The record also contains the order consolidating the proceedings from the 429th district court into those of the 199th district court, satisfying the second element of identity of the parties. Finally, we address whether Rose's amended petition is based on the same claims as were raised or could have been raised in the first action.

At the end of the April 1, 2014 hearing on the motion to enforce the 2007 final judgment, Rose notified the judge that "just a few days" previously, he discovered that the HOA was involuntarily dissolved on August 15, 2007, approximately two months after the trial court entered the 2007 final judgment enjoining Rose from constructing a fence any higher than six feet tall without the approval of the ACC. Rose argued that under section 204.011 of the Texas Property Code, the ACC's authority automatically vested in the HOA when the last residence in Bent Tree North sold and ended when the HOA ceased to exist. TEX. PROP. CODE ANN. § 204.011 (West 2014). Rose solicited testimony from appellee Rick Hyde, a member of the ACC, that the last available building site had been completed and sold. Rose also attempted to introduce evidence that the HOA was involuntarily dissolved with a record printed from the Secretary of State's website, but the trial court sustained appellees' hearsay objection to the record.

The record of this hearing is contained in the reporter's record from Rose's previous appeal to this Court in Rose v. Bonvino, No. 05-14-00702-CV, 2015 WL 4736837 (Tex. App.—Dallas Aug. 11, 2015, pet. denied) (mem. op.). This Court will take judicial notice of its judgments and records in the same or related cases. Buckner Orphans Home v. Berry, 332 S.W.2d 771, 775 (Tex. Civ. App.—Dallas 1960, writ ref'd n.r.e.). --------

Despite Rose's attempt to argue the changed circumstance of the HOA's involuntary dissolution and the ACC's lack of authority, the trial court's 2014 order declared that the 2007 final judgment "shall continue in full force and effect." Although Rose, along with his wife, appealed from the trial court's order granting the Bonvinos' motion to enforce the 2007 final judgment, he did not raise the issue of the HOA's existence or whether the ACC had authority to approve his request to build the second fence, thus waiving the appeal of any alleged error related to that issue. TEX. R. APP. P. 38.1; Rose v. Bonvino, No. 05-14-00702-CV, 2015 WL 4736837 (Tex. App.—Dallas Aug. 11, 2015, pet. denied) (mem. op.). Accordingly, the 2014 order, entered May 9, 2014, had a preclusive effect on this issue by the time the trial court heard the amended plea to the jurisdiction on September 3, 2014. The trial court, therefore, did not err in refusing to entertain this collateral attack on the issue. Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 579 (Tex. 2001) ("Collateral estoppel applies when an issue decided in the first action is actually litigated, essential to the prior judgment, and identical to an issue in a pending action.").

We conclude the trial court did not err by dismissing Rose's claims. Rose's issues are overruled.

CONCLUSION

The trial court's judgment is affirmed as modified.

/David J. Schenck/


DAVID J. SCHENCK


JUSTICE 141250F.P05

JUDGMENT

On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-2450-06.
Opinion delivered by Justice Schenck, Justices Lang-Miers and Brown participating.

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees RICK HYDE, ADAM DOUGHERTY AND MICHAEL PICOLO A/K/A "THE BENT TREE NORTH PHASE ONE ARCHITECTURAL CONTROL COMMITTEE," AND BENT TREE NORTH HOMEOWNERS' ASSOCIATION, INC. recover their costs of this appeal from appellant H. ROBERT ROSE. Judgment entered this 20th day of January, 2016.