Hevey, Joseph v. Hundley, Margaret ( 2013 )

Affirmed and Opinion Filed October 25, 2013
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00588-CV
JOSEPH HEVEY, IN HIS CAPACITY AS CO-TRUSTEE OF THE WILL SLIP 2011
TRUST, Appellant
V.
MARGARET HUNDLEY, Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-12482
MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Evans
Opinion by Justice Francis
Joseph Hevey, in his capacity as co-trustee of the Will Slip 2011 Trust, appeals the trial
court’s order dismissing Trust claims related to a marriage that occurred thirty-six years ago
between Dale C. Bullough and appellee Margaret Hundley. Because we conclude a 2004 final
decree of divorce bars the Trust’s claims, we affirm.
The summary judgment evidence shows the following. In 1977, Bullough married
Hundley because she told him she was pregnant with his child. Dale Jr. was born the following
year. Bullough and Hundley remained married for more than twenty years during which time
Bullough raised Dale Jr. as his own and financially provided for him and Hundley. In 2001,
Hundley filed for divorce. After a two-day trial, the family court finalized the divorce and made
a division of the parties’ marital estate in August 2004. More than six years later, in November
2010, Bullough learned for the first time that Dale Jr. was not his biological son through DNA
testing. The test results were confirmed in May 2011.
Four months later, the Will Slip 2011 Trust was created for the benefit of Bullough and
the children of Dale Jr.1 About the same time, Bullough assigned his claims against Hundley to
the Trust, and seventeen days later, the Trust filed this lawsuit. The petition alleged claims for
breach of fiduciary duty, common law and statutory fraud, conversion, theft, and quantum
meruit. The essence of all the claims was the allegation that Hundley deceived Bullough into
marrying her by lying about the paternity of Dale Jr. and continued the lie throughout the
marriage. As damages the Trust sought (1) the value of the support Bullough provided Hundley
over more than twenty years of marriage, (2) the value of the assets that Hundley received as a
division of the marital estate in the divorce, and (3) rescission and return of the parties’ art
collection. In addition, the Trust sought mental anguish and exemplary damages.
Hundley filed a combined motion to dismiss and motion for summary judgment. Among
the grounds raised was the affirmative defense of res judicata. Specifically, Hundley argued the
Trust’s claims were barred by the 2004 final decree of divorce between Bullough and Hundley
because “any claims arising out of the marriage, including any based on any supposed deceit or
fraud, would have been properly litigated in the divorce proceedings.” Attached to the motion
were copies of (1) the Trust’s original petition, (2) the assignment of claims executed by
Bullough and Hevey as co-trustee, and (3) the final decree of divorce between Bullough and
Hundley.
The Trust responded by arguing the claims were not raised in the prior divorce and could
not have been raised because Bullough did not know Hundley had lied. Attached to the response
1
The agreement is not dated; however, it was signed by the trustor and two co-trustees in September 2011.
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were (1) Bullough’s affidavit, (2) the May 13, 2011 DNA results, (3) a copy of the Will Slip
2011 Trust, and (4) a copy of the assignment of claims. After considering the motion and
response, the trial court granted Hundley’s motion without stating any grounds. This appeal
followed.
We review a summary judgment de novo. To prevail, the movant must show there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law. TEX. R.
CIV. P. 166a(c). When a defendant moves for summary judgment on an affirmative defense, she
must conclusively prove each element of the defense as a matter of law. Cricket Commc’ns, Inc.
v. Trillium Indus., Inc., 235 S.W.3d 298, 303 (Tex. App.—Dallas 2007, no pet.). When
reviewing a summary judgment, we accept all evidence favorable to the nonmovant as true,
indulge the nonmovant with every favorable reasonable inference, and resolve any doubt in the
nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
The Trust first argues Hundley’s motion for summary judgment is legally insufficient
because it failed to identify the elements of res judicata or the causes of action to which it
applied. Texas Rule of Civil Procedure 166a(c) requires that a motion for summary judgment
state the specific grounds for the motion. TEX. R. CIV. P. 166a(c); McConnell v. Southside Indep.
Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). The purpose of this requirement is to provide the
nonmovant with adequate information to oppose the motion and to define the issues for the
purpose of summary judgment. See Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772
(Tex. 1978). If the motion contains a concise statement that provides fair notice of the claim
involved to the nonmovant, the grounds for summary judgment are sufficiently specific. Dear v.
City of Irving, 902 S.W.2d 731, 735 (Tex. App.—Austin 1995, writ denied).
Here, Hundley’s motion asserted that “[a]ll of the [Trust’s] claims are barred” by res
judicata. She further asserted the parties were divorced in August 2004 and any claim, even one
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based on fraud or deceit, “would have been properly litigated in the divorce proceedings.” She
then cited three cases to support the legal proposition that “a divorce proceeding is treated as
finally resolving claims arising out of the marriage relationship and which could have been
litigated in the divorce proceedings.” We conclude Hundley’s motion gave the Trust fair notice
of Hundley’s affirmative defense of res judicata, with adequate information to oppose it, and was
sufficiently specific to raise the ground as to all claims.
Having concluded the motion was sufficiently specific, we turn to the merits of the case.
Res judicata bars the relitigation of claims that have been finally adjudicated or that could have
been litigated in the prior action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86
(Tex. 2008). 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 Trust Corp., 837 S.W.2d 627, 629 (Tex. 1992).
The elements of res judicata are (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 that were raised or could have been raised in the first action. Igal, 250 S.W.3d
at 86.
The Trust challenges only the third element of res judicata, arguing the “parentage of
[Dale Jr.] was not at issue at the time of the divorce proceeding because Dale Bullough, Sr. was
unaware of any fraud.”
“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 and their privies not only on matters actually
litigated, but also on causes of action or defenses 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 (quoting Tex. Water
Rights Comm’n v. Crow Iron Works, 582 S.W.2d 768, 771–72 (Tex. 1979) (emphasis added)).
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To determine what constitutes the subject matter of a suit, we analyze the factual matters that
make up the gist of the complaint, without regard to the form of action; any cause of action that
arises out of those same facts should, if practicable, be litigated in the same lawsuit.” Id. Joinder
of tort claims with a divorce suit is encouraged, when feasible. 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.
Here, the 2004 divorce ended the marriage of Bullough and Hundley and divided the
marital estate. The Trust’s causes of action all relate to allegations that Hundley, through deceit
and fraud, induced Bullough to marry her and, as damages, the Trust seeks to recover the value
of support he provided during the marriage, the value of assets that Hundley received in the
divorce, and the art collected by the parties during their marriage. We conclude these claims
arise out of facts that could have been litigated in the divorce.
The Trust’s argument that Bullough was unaware of any fraud at the time of the divorce
is unavailing. This Court has previously concluded that a claim of pre-existing fraud discovered
after the first judgment “does not vitiate the res judicata effect” of the judgment. See Vartanian
Family Trust No. 1 v. Galstian Family Trust, 724 S.W.2d 126, 128 (Tex. App.—Dallas 1987, no
pet.). Because we conclude Hundley established her right to summary judgment on the ground
of res judicata, we need not address the Trust’s remaining issues.
We affirm the trial court’s order granting Hundley’s motion to dismiss and motion for
summary judgment.
120588F.P05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JOSEPH HEVEY, IN HIS CAPACITY AS On Appeal from the 192nd Judicial District
CO-TRUSTEE OF THE WILL SLIP 2011 Court, Dallas County, Texas
TRUST, Appellant Trial Court Cause No. DC-11-12482.
Opinion delivered by Justice Francis;
No. 05-12-00588-CV V. Justices O'Neill and Evans participating.
MARGARET HUNDLEY, Appellee
In accordance with this Court’s opinion of this date, the Order Granting Defendant’s
Motion to Dismiss and Motion for Summary Judgment is AFFIRMED.
It is ORDERED that appellee MARGARET HUNDLEY recover her costs of this appeal
from appellant JOSEPH HEVEY, IN HIS CAPACITY AS CO-TRUSTEE OF THE WILL SLIP
2011 TRUST.
Judgment entered October 25, 2013
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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