### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00125- CV
William Voge s III, App ellant

v. Mark Cam pbell d /b/a Clas sic Stree t, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 250 TH JUDICI AL DISTRICT NO. D-1 -GN-1 2-0 0370 2, H ONO RAB LE O RLINDA NARANJO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Wil liam Vog es I I I sued Mark Campbell d/b/a Classic Street in Travis County district court, asser

ting both brea ch-of

-contra ct and deceptive-trade -pra ctices claims ar i s i ng from an automobile-re pair transac tion. Campbell, appea ring pro se, filed a motion to dismiss on the g rounds that (1) Vog es’s claims are barr ed by res judicata based on a n ear lier suit that V og es’s g randf ather prosec uted ag ainst Campbell in small-claims court, (2) Vog es lacks standing beca use h e h eld no interest in the automobile at the rele vant times and was not a party to any repa ir-ser vices ag ree ment, and (3) there is no valid oral or written contra ct. After a non-evide ntiary hear ing, the t ri al court g rante d Campbell’s motion to dismiss based on res judicata, holding that Vog es was in privity with h i s grandf

ather in rela

tion to the small-claims-cour t proce eding
. We will reve rse and rema nd fo r further proce eding s.BACK GR OUND The parties appar ently do not dispute that Vog es’s g randf ather , in his own name, sued Campbell in small-claims court, seeking $1,949.95 in damag es for automobile repair work that Campbell alleg edly failed to complete or completed incorre ctly
. Campbell attache d unauthentica ted copies of the small-claims-cour t petition and judgme nt to his motion to dismiss , and both documents ref lect that Vog es was n o t a n amed party
. Campbell has not asser ted otherwise. The judgme nt Campbell provided indicates that he preva iled in that matter and that Vog es’s g randf ather rec overe d nothing on his cla ims.

Shortly after t h at litigation conclude d, Vog es sued Campbell in district court to
rec over more than $13,000 for damag es to the same automobile. Vog es also soug ht treble damag es under the Texas Dec eptive Trade Practice s-Consumer Protection Act, ex em p lary damag es, and attorney ’s fee s. See Tex. Bus. & Com. Code § 17.50(b)( 1); Tex Civ. Prac. & Rem. Code §§ 38.001, 41.003(a) (2). A compar ison of the small-claims-cour t petition and Vog es’s petition reve als that the two lawsuits are based on the same transac tion and a comm on nucleus of operative fac ts, but Vog es’s petition al l ege s t h at more extensive damag e to the vehicle resulted from Campbell’s neg lige nce and fra

ud, in addition to alleg ations of faulty or incomplete repa ir work. Ba sed
on the revised damag es and additional claims Vog es has asser t ed , h i s cl aim s exceed the amount-in-contr oversy jurisdictional limit s for the small-claims cou rt. See Act of J une 15, 2007, 80th L eg ., R.S., ch. 383, § 3, 2007 Tex. Gen. L aws 685, 686 (conf err ing jurisdiction on small-claims courts whe n amount in controver sy does not exceed $10,000, e x clusive of c osts), repeale d byAct of J uly 19, 2011, 82d L eg ., 1st C.S., ch. 3, § 5.06(a), 2011 Tex. Gen. L aws 5206, 5225 (ef fec tive

2May 1 , 2 0 1 3 ) (c u rre nt version at Tex. R. Civ. P. 500.3(a) setting amount-in-contr oversy limit at

$ 1 0,000 exclusive of i ntere st and court costs, but including attorney ’s fees). Vog es contends th at
res judicata does not ba

r any of his c laims beca

use (1) he was not a party to the small-claims-cour t proce eding , (2) there is no evidenc e that he was in pr ivity with his g randf ather for purposes of that litigation, and (3) he could not have litigated all of his claims in the small-claims-cour t proce eding beca use his damag es excee d that court’s jurisdictional limitations.
DISCUSSIO N Res judicata preve nts pa

rties and those in pr ivity with the m f rom relitig ating a case that a compe tent tribunal has adjudicated to finality
. Ingersoll–Rand Co. v. Valero Ene rgy Corp. , 997 S.W .2d 203, 206 (Tex
. 1999). Res judicata g ener ally bars claims or defe nses that, throug h d iligenc e, could have been litigated in the ear lier suit but wer e not. Id. at 206– 0 7 ; Ge t t y Oi l

v. Insurance Co. of

N. Am. , 845 S.W .2d 794, 798 (Tex. 1992). “The doctrine is intended to preve nt
cause s of a c ti o n f

r o m b e in g s p lit, thus curbing vexatious litigation and promoting judicial economy .” Ingersoll–Rand Co. , 997 S.W .2d at 207. Res judicata “require s proof of the foll owing elements: (1) a prior fina l judgment on the merits by a cour t of compete nt jurisdiction, (2) identity of par ties
or those in pr ivity with the m, a nd (3) a second a ction based on the same claims that wer e raised or could have been raised in the first action.” Amstadt v. U.S. Brass Corp ., 919 S.W .2d 644, 652 (Tex. 1996). A litigant is g ener ally not bound by a judgme nt in a suit to which he was not a party unless he was in privit y wi t h a p ar t y to the orig inal suit. McG ee v. McG ee , 936 S.W .2d 360, 364 (Tex. App.—Waco 1996, wr it denied).

3Reg ardle ss of party or privity status, how ever , judgme nts f rom small-claims courts
are not acc orded the same common-law finality as judgme nts from di s trict courts. Under section 31.004 of the Te x as Civil P rac tice and Re medies Code, [a] judgme nt or a deter

mination of fac t or

law in a pr ocee ding in a

lower trial court [e.g., a small-claims court] is n o t re s judicata and is not a basis for estoppel by judgme nt in a proceed i n g in a district court, except that a judgme nt rende red in a lower trial court is binding on the parties there to as to rec overy or denial of rec overy . Tex. Ci v. Prac. & Rem. Code § 31.004(a) ; see id. § 31.004(c)
.

This Court has held that [ i] n the situation wher e a litigant bring s a lawsuit in a district court subsequent t o filing suit in a court of l imited jurisdiction, section 31.004 of t he civil prac tice and reme dies code modifies the common law so that “re s judicata bars only those claims that wer e ac tually

litigated in the limited-jurisdiction court.”
Kizer v

. Mey er, Lytton, Alen & W hitaker, Inc. , 228 S.W .3d 384, 391 (Tex. A pp.—Austin 2007, no pet.) (quoting W

ren v. Gusnowski , 919 S.W .2d 847, 848 (Tex. A pp.—Austin 1996, no writ)). The purpose of section 31.004 is to narr ow the pre cl usive eff ect of judgme nts from courts of limit ed jurisdiction by prec luding a subsequent suit on claims actua lly tried in such courts but not “any other claim t hat could have been joined and tried but wer e not.” W ebb v. Persyn , 866 S.W .2d 106, 107 (Tex. App.—San Antonio 1993, no writ). Section 31.004 thus abrog ates the common-law rules of
res judicata for small-claims-cour t judgme nts and does not bar subsequent prosec ution of unlitigated claims simply beca

use they could have been litigated in the lower court. See , e.g. , id. ; McClendon v. State Farm M

ut. Auto. Ins. Co. , 796 S.W .2d 229, 232 (Tex. A pp.—El Paso 1990, writ denied)
.
4There fore , in acc ordanc e with section 31.004, if the pleading s in the underly ing lawsuit here include claims not actua lly adjudicate d in the s mall-claims court, then res judicata and co l l at era l estoppel do not bar those pleade d claims even if Vog es was in privity with his g randf ather with respe ct to the prior judg ment.

I f Vog es was in privity with his g randf ather , the cl ai ms actua lly litigated in small-claims court would not sur vive even under section 31.004. There fore , the threshold issue in this case is whether the trial court err ed in dismiss ing Vog es’s claims based on a finding of privity
.

For purposes of res judicata, the term “privity” ref ers to parties who (1) exert control
over the orig inal action even if they are not parties to it, (2) have interests that wer e repr esente d by
a party to the orig inal action, or (3) are succe ssors in interest who derive their claims through a party to the prior action. HECI Exploration Co. v. Neel , 982 S.W .2d 881, 890 (Tex. 1998); Benson v. W anda Petroleum Co. , 468 S.W .2d 361, 363 (Tex. 1971); McNeil Interests, Inc. v. Quisenberry , 4 0 7 S
. W
. 3 d 381, 388 (Tex. App.—Houston [14t h Dist.] 2013, no pet.). The exis tence of privit y turns on the particula

r circ umstances of eac h case , see Getty Oil , 845 S.W .2d at 800, but “privity is not established by the mere fac t that persons may happen to be interested in the same question or in proving the same state of fac ts,” Benson , 468 S.W .2d at 363; see McNeil Interests , 407 S.W .3d at 388-90 (50% owner ship interest in business did not g ive rise to privity rela tionship for purposes of
res judicata and owner acting in repr esentative capa city to hire attorney and serv e as corpor ate repr esentative did not constitut e contr ol by owner in individual capac ity). The trial court expressly found that (1) Vog es participated in the previous litigation to such a deg ree that he exercised control in that litigation and (2) his interests wer e fully repr esente d

5and litigated on his behalf by his g randf ather in the lower- court proce eding
. The evidentiar y rec ord to support these finding s, howeve r, is nonexis tent. In fac t, no evidenc e was admitted at the dismiss al hear ing and no testimony was g iven. There is no evidenc e that Vog es’s g randf ather instit uted the small-claims court proce eding on Vo g es’s behalf or in a repr esenta tive capa city
. Nor is there evidenc e t h at Vo g es himself exerted any control over the prior litigation or that he is a
s u c cessor -in-intere st to his g randf ather
. At the dismiss al hear ing, Campbell stated, but did not testify under oath, that Vog es was prese nt at the hear ing befor e the small-claims court and had argued the
case on his g randf

ather ’s behalf

. Even if such participa

tion could constitute sufficie nt “contr ol” to bind Vog es to the outcome of the prior proce eding , there is no competent evidenc e of that fac t. The
rec ord is simply devoid of any evidenc e that would support a finding of privity
. Acc ording ly , there is no evidenc e to support the trial court’s conclusion that Vog es’s claims are barr ed by res judicata.
CONCLUSION Be cause the rec ord contains no evidenc e that Voges wa s a party to the small-claims-cour

t litigation or in privity with a party to that proce eding , we reve rse the trial court’s dismiss al orde r and r emand the c ause to the tria l court for further proce eding s. 1

We do not hold that privit y cannot be established in this case ; we hold only that the trial 1 court’s f inding of privity is not supported by

the pre sent rec ord. 6_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Reverse d and Remande d Filed: Oc tober 28, 2014

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