STEPHEN A. DESCHAINE,FROM A COUNTY COURT APPELLANT, v. HARRY McCAFFREY, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-01425-CV
 
STEPHEN A. DESCHAINE,FROM A COUNTY COURT
 
        APPELLANT,
 
v.
 
HARRY McCAFFREY,
 
        APPELLEE.OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES WILLIAMS FN:1 AND STEPHENS FN:2
OPINION BY CHIEF JUSTICE ENOCH
AUGUST 24, 1989
        Stephen A. Deschaine sued Harry McCaffrey for the enforcement of a compromise settlement agreement (settlement agreement) executed between Northlake Pool Construction, Inc. (Northlake) and Deschaine arising out of a settlement of a previous lawsuit (the first lawsuit). The trial court abated Deschaine's actions in this second lawsuit and, after presentation of evidence at a trial on the merits, granted an instructed verdict on McCaffrey's counterclaim for breach of the settlement agreement. The jury returned a verdict in favor of McCaffrey on the issue of attorney fees.
        In sixteen points of error, Deschaine argues that the trial court erred in (1) refusing to grant his motion for summary judgment; (2) abating his causes of action; (3) granting McCaffrey's motion for summary judgment; and (4) granting McCaffrey's motion for instructed verdict. Deschaine also complains that the trial court erred in excluding certain evidence and in entering judgment on behalf of McCaffrey for attorney fees. We agree that McCaffrey's motion for summary judgement should not have been granted, that Deschaine's cause of action should not have been abated, that McCaffrey's motion for an instructed verdict should not have been granted, and that Deschaine's motion for summary judgement should have been granted. For these reasons, the judgment of the trial court is reversed and the cause is remanded for a trial in accordance with this opinion.
DESCHAINE'S SUIT
A.         Facts
        In November 1984, Deschaine contracted with Northlake to build a swimming pool. The pool was never built. Deschaine sued Northlake, Mark McCaffrey (Northlake's president), Harry McCaffrey (a director of Northlake), and Mitch Johnson. On June 16, 1986, while the first lawsuit was pending, Northlake forfeited its corporate charter for non-payment of franchise taxes. Subsequent to the forfeiture of the charter, Deschaine and Northlake entered into the settlement agreement. An interlocutory agreed judgment was signed in February 1987, and became final on July 24, 1987.
        After being unable to collect on the settlement agreement from either Northlake or Mark McCaffrey, Deschaine brought this suit against Harry McCaffrey. McCaffrey responded with a counterclaim for breach of the settlement agreement. Deschaine later filed a motion for partial summary judgment based upon McCaffrey's directorial liability. McCaffrey countered with his own motion for summary judgment. Both motions were overruled. McCaffrey then filed a renewed motion for summary judgment and a plea in abatement seeking to abate the action of Deschaine based upon the contention that the first lawsuit was res judicata of Deschaine's present claims. By order of June 15, 1988, the court sustained McCaffrey's plea in abatement and motion for summary judgment. FN:3
B.        McCaffrey's Summary Judgment
        In point of error nine, Deschaine contends that the trial court erred in granting McCaffrey's motion for summary judgement. McCaffrey, as a moving defendant, had the burden of showing as a matter of law that no material issue of fact existed as to one or more elements of Deschaine's causes of action. See Arnold v. National County Mutual Fire Ins. Co., 725 S.W.2d 165, 167 (Tex. 1987). This is accomplished by showing that at least one element of each of Deschaine's causes of action has been established conclusively against Deschaine. See Gray v. Bertrand, 723 S.W.2d 957, 958 (Tex. 1987). A summary judgment for McCaffrey disposing of the entire case is proper only if, as a matter of law, Deschaine could not succeed upon any of his pleaded theories. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983).
        As a basis for recovery against McCaffrey, Deschaine asserted two causes of action: (1) since Northlake Pool had forfeited its corporate charter prior to the creation of the settlement agreement, McCaffrey, as a director of the corporation, incurred the liability of a general partner for the debt created by the settlement agreement; and (2) Northlake Pool constituted the alter ego of McCaffrey and, accordingly, McCaffrey incurred personal liability for the debt reflected in the settlement agreement. Since the judgment stated that McCaffrey's motion for summary judgment was granted, the trial court must have found that Deschaine could not succeed on any of the theories he pleaded.
Deschaine sought recovery from McCaffrey under section 171.255 of the Texas Tax code. The statute provides:
     (a) If the corporate privileges of a corporation are forfeited for failure to file a report or pay a tax or penalty, each director or officer of the corporation is liable for each debt of the corporation that is created or incurred in this state after the date on which the report, tax, or penalty is due and before the corporate privileges are revived . . . .
TEX. TAX. CODE ANN. § 171.255 (Vernon 1982). Therefore, McCaffrey must prove not only that a question of material fact did not exist, but that, as a matter of law, the summary judgment evidence disproves at least one of the following elements of Deschaine's claim: that (1) the corporate charter had been forfeited for the reasons stated; (2) that McCaffrey was a director or officer of the corporation; or (3) the debt was created after the date of the forfeiture of the corporate charter.
        There is no dispute that the corporate charter had been forfeited for the reasons stated in the statute and that Harry McCaffrey was a director of Northlake. McCaffrey's contention is that the settlement agreement did not "create" a new debt after the forfeiture of Northlake's corporate status. He argues that the settlement agreement only evidenced an old debt created by the original pool contract. Deschaine responds that the settlement agreement created a new debt.
The settlement agreement provided:
 
 
            WHEREAS, disputes and controversies exist between the parties, both as to liability and the amount thereof, if any, and by reason of such disputes and controversies the parties hereto desire to compromise and settle all claims and causes of action of any kind whatsoever which any party has or may have in the future arising out of such transaction and intend that the full terms and conditions of the compromise and settlement be set forth in this compromise and settlement agreement.
When Deschaine signed this settlement agreement, he ended his claims under the old contract for the pool work and limited his rights only to sue under the settlement agreement. See Adkins v. Womble, 300 S.W.2d 688 (Tex. Civ. App.-Dallas 1957, writ ref'd n.r.e.). A sum of money became due to Deschaine under a new, different, separate and independent agreement from the pool construction contract. See Curry Auto Leasing, Inc. v. Byrd, 683 S.W.2d 109, 112 (Tex. App.-Dallas 1984, no writ).
McCaffrey cites Rogers v. Adler, 696 S.W.2d 674 (Tex. Civ. App.-Dallas 1985, writ ref'd n.r.e.), as controlling on his behalf. We disagree. In Rogers, Rogers brought suit against Dycon International Inc. after becoming dissatisfied with a telephone system she had purchased from them. In February, 1982 Dycon's corporate charter was forfeited. In February, 1983, Rogers obtained a judgment against Dycon. After being unable to collect on the judgment against Dycon, Rogers filed suit against the Adlers (Dycon's officers and directors) pursuant to section 171.255 of the Texas Tax Code. The Court of Appeals affirmed the summary judgment granted to the Adlers. The Court stated that the judgment did not evidence a new debt but only the reduction of an old debt to judgment. All claims brought by Rogers were based on the first contract which was executed before the forfeiture.
In the case at bar, the settlement agreement was created by the parties after the forfeiture of the corporate charter. All claims in this lawsuit are focused on this settlement agreement, not on the pool contract. The trial court erred in granting McCaffrey's motion for summary judgment. We sustain point of error nine.
C.        Plea in Abatement
        Deschaine, in point of error two, argues that the trial court erred in abating his causes of action because the doctrine of res judicata did not preclude him from filing a lawsuit against McCaffrey for the debt created by the settlement agreement. FN:4 We agree.
        As a general rule, a judgment on the merits in a suit on one cause of action is not conclusive of a subsequent suit on a different cause of action except as to issues of fact actually litigated and determined in the first suit. Griffin v. Holiday Inns of America, 496 S.W.2d 535 (Tex. 1973). We have held that the settlement agreement created a new contract. The issue of whether this settlement agreement was breached could not have been an issue or a defense in an action involving the work done on the swimming pool. Therefore, Deschaine's action was not barred by the doctrine of res judicata. Deschaine's point of error two is sustained.
D.        Deschaine's Summary Judgment
        In his first point of error, Deschaine asserts that the trial court erred in failing to grant him a summary judgment under section 171.255 of the Texas Tax Code. McCaffrey responds that Deschaine cannot appeal the denial of his summary judgment because he never filed a second motion for summary judgment to compete with McCaffrey's second motion for summary judgment. Texas law does not require a "matching game" such as McCaffrey envisions. The only relevance to whether the party opposing a summary judgment has himself filed a summary judgment is on the issue of whether the appellate court must remand a case involving no issues of fact to the trial court for want of an opposing summary judgement. Once it has been determined that a summary judgment has been incorrectly granted, a court of appeals may render judgment only if both parties have filed motions for summary judgment. Tobin v. Garcia, 316 S.W.2d 396, 400-01 (Tex. 1958). The record shows that Deschaine filed a motion for summary judgment which embraced all issues on his claim under section 171.255 of the Texas Tax Code except the amount of attorney's fees due him and that motion was denied. Since there was a request for summary judgment brought by Deschaine before the trial court, we may review and, if appropriate, render on the issue presented in Deschaine's summary judgment. Id.
        As a part of his motion, Deschaine was required to prove, as a matter of law, all of the following elements: (1) the corporate charter had been forfeited for the reasons stated; (2) that McCaffrey was a director or officer of the corporation; and (3) the debt was created after the date of the forfeiture of the corporate charter. TEX. TAX CODE ANN. § 171.255 (Vernon 1982). As already stated, there was no dispute that Northlake's corporate charter was forfeited for failure to pay franchise taxes before the settlement agreement was signed. Also, McCaffrey admitted to being a director of Northlake. And, as we have held, a new debt was incurred by Northlake after the forfeiture of the corporate charter. Therefore, we sustain Deschaine's first point of error and conclude that the trial court erred in failing to grant Deschaine's motion for partial summary judgment.
MCCAFFREY'S COUNTERCLAIM
A.        Facts
        McCaffrey also responded to Deschaine's second lawsuit by filing a counterclaim alleging that Deschaine had breached the settlement agreement, of which McCaffrey was an intended third party beneficiary. The alleged breach involved a provision in the settlement agreement which stated:
            "Plaintiff (Deschaine) expressly agrees not to take a judgment against Harry McCaffrey and to release Harry McCaffrey from any liability on this cause of action."
        McCaffrey's counterclaim was tried to a jury. At the conclusion of the presentation of his evidence, McCaffrey moved for an instructed verdict which was granted. After the trial court sustained McCaffrey's motion for an instructed verdict, the only issues which remained for the consideration by the jury were whether the statutory prerequisites to an award of attorney's fees had been met, and if so, the amount of attorney fees to which McCaffrey was entitled. The jury returned a verdict in favor of McCaffrey.
B.        Instructed Verdict
        In point of error eleven, Deschaine argues that the trial court erred in granting an instructed verdict on behalf of McCaffrey because there was no evidence that Deschaine breached the settlement agreement by instituting this action against McCaffrey for the debt created by the settlement agreement.
        In reviewing the trial court's action of granting a directed verdict, this court must examine the evidence to determine if there is any issue of fact upon which a judgment in favor of the non-movant could be predicated. A directed verdict can only be justified if no other verdict could have been rendered. In this analysis, all fact issues must be resolved in favor of the non-movant and against the movant. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex. 1976); Prather v. McNally, 757 S.W.2d 124 (Tex. App.-Dallas 1988, no writ).
        McCaffrey argues that under the settlement agreement, Deschaine specifically agreed to release him from liability and to look to Northlake for the satisfaction of his claims. Further, he contends that Deschaine limited his remedy under the settlement agreement to look only to Mark McCaffrey if Northlake did not honor the settlement agreement. The trial court granted the motion for instructed verdict "because the essential facts are not in dispute in this cause of action." We agree with that proposition; however, we disagree that such conclusion mandates decision in favor of McCaffrey.
        We have held that the suit involving the settlement agreement was a new cause of action. The settlement agreement, in referring to releasing claims for "this cause of action", was referring to the cause of action involving the pool contract. There is no promise to release McCaffrey from liability as a director of a corporation which incurred a debt after forfeiture of its charter.         McCaffrey also argues that the following provision in the settlement agreement limited Deschaine's remedies:
 
 
                 In the event of a default under this agreement by         Northlake Pool Construction, Inc., Plaintiff may proceed         against Mark McCaffrey individually under a guarantee signed         by Mark McCaffrey of the obligation of Defendant Northlake                  Construction, Inc. under this agreement.
Remedies provided for in a contract may be permissive or exclusive, but the mere fact that a contract provides a party with a particular remedy does not necessarily mean that the remedy is exclusive. Vandergriff Chevrolet Co., Inc. v. Forum Bank, 613 S.W.2d 68 (Tex. Civ. App.-Fort Worth 1981, no writ). Further, contracts are not construed to limit the remedial rights of the parties unless the intention is clear. Wilburn v. Missouri-Kansas-Texas R. Co. of Texas, 268 S.W.2d 726, 731 (Tex. Civ. App.-Dallas 1954, no writ). The remedy provision in the settlement agreement states that Deschaine may proceed against Mark McCaffrey if Deschaine is unable to collect from Northlake. Nothing in this language expresses a clear intent that this remedy is exclusive. A construction which renders a specified remedy exclusive should not be made unless the intent of the parties that it be exclusive is clearly indicated or declared. Tabor v. Ragle, 526 S.W.2d 670 (Tex. Civ. App.-Fort Worth 1975, writ ref'd n.r.e.). We hold that the trial court erred in granting McCaffrey an instructed verdict on the issue of whether Deschaine breached the settlement agreement. Deschaine's eleventh point of error is sustained.
        Because of our disposition of the foregoing points of error, we need not address Deschaine's remaining points of error. We REVERSE the judgment of the trial court. We RENDER judgment in favor of Deschaine finding that McCaffrey is liable to Deschaine under section 171.255 of the Texas Tax Code. We REMAND the cause to the trial court solely for a determination of the amount due Deschaine under the settlement agreement and his attorney fees.
 
 
                                                  
                                                  CRAIG TRIVELY ENOCH
                                                  CHIEF JUSTICE
 
 
 
DO NOT PUBLISH
TEX. R. CIV. P. 90
 
 
88-01425.F
 
 
FN:1 The Honorable Claude Williams, Chief Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Bill J. Stephens, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:3 Deschaine argues that the second motion for summary judgment was never granted. However, the June 15 order states that McCaffrey's second motion for summary judgment was incorporated into the plea in abatement. The record demonstrates that this summary judgement was granted.
FN:4 Deschaine's point of error four states that the trial court erred in granting McCaffrey's motion for summary judgment because res judicata did not bar Deschaine's second suit. McCaffrey's second motion for summary judgment did not present this issue and, therefore, we do not address this point of error.
File Date[08-24-89]
File Name[881425F]