Affirmed and Memorandum Opinion filed August 24, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00747-CV

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KRYSTAL CHARLES, Appellant

V.

USA SAVOY LEASCO d/b/a THE SAVOY APARTMENTS, Appellee

On Appeal from the County Court at Law No. 4

Harris County, Texas

Trial Court Cause No. 826,849

M E M O R A N D U M   O P I N I O N

Appellant, Krystal Charles, appeals the summary judgment in favor of appellee, USA Savoy Leasco, dba The Savoy Apartments (ASavoy@), on her claim for breach of contract on which she seeks to recover attorney fees.  We affirm.

Savoy, as lessor, and Charles, as lessee, entered into a lease agreement.  Subsequently, Savoy filed an eviction action against Charles in justice court.  In her answer to the eviction action, Charles requested attorney fees both under the lease and the Texas Property Code.  Although Charles prevailed in the eviction action, the justice court denied her request for attorney fees. 

The justice court set the appeal bond at $100.00.  However, Charles did not appeal the denial of her request for attorney fees.  Instead, she filed suit in county court at law, asserting a breach of contract claim and seeking attorney fees.  Savoy moved for summary judgment on its affirmative defenses of res judicata and collateral estoppel, arguing that Charles= claim for attorney fees had been expressly addressed on the face of the justice court judgment.  The trial court granted Savoy=s motion for summary judgment.

In three issues on appeal, Charles argues the trial court erred in granting summary judgment in favor of Savoy because her breach of contract claim is not barred by res judicata or collateral estoppel.  To prevail on a motion for summary judgment, a defendant must establish that no material fact issue exists and that it is entitled to judgment as a matter of law.  Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222 (Tex. 1999).  In conducting our review of the summary judgment, we take as true all evidence favorable to the nonmovant, and make all reasonable inferences in the nonmovant=s favor.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  A defendant, as movant, is entitled to summary judgment if it either disproves at least one essential element of each of the plaintiff=s causes of action or establishes all the elements of an affirmative defense.  American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). 

Under common law, res judicata, or claims preclusion, prevents the litigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit.  Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).  This case, however, is not governed by common law, but by Section 31.005 of the Texas Civil Practices & Remedies Code, which has modified the rules for common law res judicata for cases originally tried in justice court.  See Tex. Civ. Prac. & Rem. Code Ann. ' 31.005 (Vernon 1997).  Section 31.005 provides:

A judgment or a determination of fact or law in a proceeding in small claims court or justice of the peace court is not res judicata and does not constitute a basis for collateral estoppel by judgment in a proceeding in a county court or statutory county court, except that the judgment rendered is binding on the parties thereto as to recovery or denial of recovery.

Id.  Thus, section 31.005 creates an exception to the general rule against splitting causes of action by allowing unlitigated claims from courts of limited jurisdiction to be tried in county courts.  Brown v. Henderson, 941 S.W.2d 190, 192 (Tex. App.CCorpus Christi 1996, no writ).  Accordingly, under section 31.005, only those claims actually litigated are barred by res judicata.  Id.; Wren v. Gusnowski, 919 S.W.2d 847, 849 (Tex. App.CAustin 1996, no writ).

In her answer to Savoy=s eviction suit, Charles pleaded for attorney fees as follows:

[T]his is a forcible entry claim against Defendant. . . . Defendant is entitled to an award of reasonable attorney fees under the provisions of Texas Property Code. . . .

In addition, according to the terms of the agreement between THE SAVOY APARTMENTS and Defendant dated August 27, 2003, THE SAVOY APARTMENTS agreed to pay Defendant=s attorney=s fees in the event Defendant should require the services of an attorney to defend the provisions of the contract and prevails in such a defense.  Therefore, Defendant is entitled to an award of reasonable attorney fees under the terms of the lease.

The judgment of the justice court states:

Be it remembered on this day, a day of regular term of this Court came to be heard the above numbered, styled, named Plaintiff and Defendant; both being present, announced ready for trial, the Court having heard all the evidence, the Court has determined Judgment is for the Defendant.  NO WRIT TO ISSUE.  Further, the Defendant shall be entitled to $0 damages and $0 attorney fees.

In this current action, Charles asserts Savoy breached the lease agreement by wrongfully refusing to pay Charles her attorney fees incurred in the prior eviction suit as provided in the lease agreement.  Charles seeks attorney fees under Section 24.006(c) of the Texas Property Code^[1] and Section 38.001 of the Civil Practices & Remedies Code.^[2] 

Charles admits that she sought attorney fees in the justice court by her answer filed in response to the eviction suit, but argues the issues submitted to the justice court involved Charles= conduct that occurred prior to the filing of the eviction suit, while the breach of contract claim involved Savoy=s conduct occurring after the judgment in the eviction suit.  Therefore, according to Charles, her breach of contract claim could not have been fully and fairly litigated in the justice court and is not barred by res judicata.

We disagree.  In the eviction suit, Charles specifically requested attorney fees pursuant to the terms of the lease in the event that she should prevail.  The judgment of the justice court expressly denied her claim for attorney fees.  In her action in the county court at law, Charles, again, seeks attorney fees as the prevailing party pursuant to the lease.  Although Charles casts her current claim as a breach of the lease, it is still a claim for attorney fees as the prevailing party.  Therefore, in accordance with section 31.005, we find Charles= claim for attorney fees under the contract was actually litigated and the trial court properly granted Savoy=s motion for summary judgment.  Appellant=s first through third issues are overruled.

          Accordingly, the judgment of the trial court is affirmed. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed August 24, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.