NO. 07-07-0039-CV
IN THE COURT OF=20
APPEALS
FOR THE SEVENTH =
DISTRICT OF=20
TEXAS
AT =
AMARILLO
PANEL D
OCTOBER 15, =
2008
______________________________
JOHNNY RODRIGUEZ, JR.,=20
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bsp; Appellant
v.
ICON BENEFIT =
ADMINISTRATORS,=20
INC.,
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_________________________________
FROM THE COUNTY COURT =
AT LAW NO.=20
3 OF LUBBOCK COUNTY;
NO. 2006-598,648; HON. =
PAULA=20
LANEHART, PRESIDING
_______________________________
Opinion
_______________________________
Before QUINN, C.J., and =
CAMPBELL=20
and PIRTLE, JJ.
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nbsp;Johnny=20
Rodriguez, Jr., appeals from a final summary judgment favoring =
Icon=20
Benefit Administrators, Inc. His two issues involve the =
application of res=20
judicata and due process. Since our resolution of the former =
disposes of=20
the appeal, we turn to that issue and affirm the judgment. =
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nbsp;This=20
appeal is the second involving these parties and the underlying =
dispute.=20
The first involved the trial court=E2=80=99s judgment enforcing a =
mediation=20
agreement and dismissing Rodriguez=E2=80=99 claims against Icon =
=E2=80=9Cwith prejudice.=E2=80=9D=20
Though Rodriguez appealed, he did not contest the inclusion of the =
phrase=20
=E2=80=9Cwith prejudice=E2=80=9D in the decree. Furthermore, we =
affirmed the order.=20
Thereafter, he filed the suit from which this appeal arose. The =
claims=20
included causes of action previously alleged as well as new ones. =
In=20
response, Icon moved for summary judgment on the affirmative =
defense of=20
res judicata. That motion was granted.
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nbsp;As=20
previously mentioned, the trial court dismissed the first suit =
between the=20
parties =E2=80=9Cwith prejudice.=E2=80=9D Moreover, no one asked =
either the trial or=20
appellate court to redact the latter phrase from the decree. Thus, =
the=20
determination became final for purposes of applying the doctrine =
of res=20
judicata. Labrie v. Kenney, 95 S.W.3d 722, 728-29 (Tex.=20
App.=E2=80=93Amarillo 2003, no pet.). This is true even though the =
trial court=20
should not have dismissed the cause =E2=80=9Cwith =
prejudice.=E2=80=9D Id.; Sommers v.=20
Concepcion, 20 S.W.3d 27, 40 (Tex. App.=E2=80=93Houston =
[14th=20
Dist.] 2000, pet denied). ![3DFootnote=20](3D"http://www.7thcoa.courts.state.tx.us/opinions/07-07-0039.cvopinion=)
Consequently, =
the trial=20
court did not err in granting summary judgment on Icon=E2=80=99s =
affirmative=20
defense.
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nbsp;There=20
are opinions suggesting that the verbiage used in the judgment=20
(i.e. with prejudice) is irrelevant if it nonetheless =
appears that=20
the cause was truly not an adjudication of the merits. E.g., =
Stubbs v.=20
Patterson Dental Laboratories, 573 S.W.2d 274 (Tex. Civ. =
App.=E2=80=93Eastland=20
1978, no writ) and Haliburton v. Riley, 589 S.W.2d 821 =
(Tex. Civ.=20
App.=E2=80=93Waco 1979, no writ). However, those opinions have =
been seldom cited=20
by other courts. They also conflict with Labrie, =
Sommers,=20
and the Supreme Court authority on which the latter =
relied.
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nbsp;Accordingly,=20
the summary judgment is affirmed.
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Per=20
Curiam
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