Stansbury v. Chemical Services Division of Browning-Ferris Industries, Inc.

OPINION

DIES, Chief Justice.

In May of 1979, C.A. Stansbury and Brown Brothers brought suit against Chemical Services Division of Browning-Ferris Industries, Inc. (“BFI”) in Jefferson County, alleging that BFI discharged chemical in “Rodair Gulley”, causing damage to plaintiffs’ rice crops.

On May 5, 1980, Ramona Stansbury had sued BFI in Jefferson County essentially alleging the same acts. These suits were consolidated.

On or about the same date that Stans-bury and Brown Brothers filed their state court action against BFI, they also filed a suit in federal court at Beaumont against Velsicol Chemical Corporation (“Velsicol”), using virtually the same language and charges they alleged in the state court suit. Velsicol, in a third party action, brought BFI into the case, alleging that if plaintiffs had sustained any damages the same were solely caused by BFI.

The federal court case proceeded to trial. At the conclusion of the evidence, the United States district court judge instructed a verdict in favor of BFI. The claims against Velsicol, however, were submitted to a jury which returned a verdict in favor of Stans- *759 bury, one of the appellants herein, and against Brown Brothers. The federal district court entered judgment pursuant to the jury verdict. Velsicol appealed the federal court’s judgment as to liability and damages. There was no appeal of the instructed verdict in favor of BFI.

The United States Court of Appeals for the Fifth Circuit affirmed the judgment on liability, but reversed and remanded on the issue of damages. The instructed verdict for BFI is not mentioned in the Fifth Circuit’s opinion but remains unaffected by the decision. Thereafter, BFI moved for summary judgment in the state courts against Stansbury and Brown Brothers, asserting that their state court suit against BFI is barred by the doctrines of res judi-cata, collateral estoppel, and judicial estop-pel. Likewise BFI moved for summary judgment against Ramona Stansbury. After hearings, both motions were granted by the state district judge. C.A. and Ramona Stansbury have appealed the granting of these summary judgments to this court.

Two points of error are presented to us; they allege the district court erred in granting the summary judgments. We disagree and affirm his order granting the same.

C.A. Stansbury’s alleged cause of action is barred by the doctrine of res judicata and collateral estoppel. Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex.1984); Cook v. Burnley, 45 Tex. 97, 111 (1876); Theatres of America, Inc. v. State, 577 S.W.2d 542, 548 (Tex.Civ.App.—Tyler 1979, no writ); Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195, 198 (Tex.Civ.App.—Corpus Christi 1978, writ ref’d n.r.e.).

In order for the doctrine of res judicata to bar a subsequent action, there must be:

(1) Rendition of a valid final judgment,

(2) By a court of competent jurisdiction,

(3) Determining a right, question, or fact put in issue and directly determined therein,

(4) Which judgment must have been rendered on the merits of the controversy, and

(5)Identity of either the parties or their privies, (emphasis supplied)

Gracia v. RC Cola, supra; Texas Water Rights Commission v. Crow Iron Works, 582 S.W.2d 768, 771 (Tex.1979); Boyne v. Harrison, 647 S.W.2d 82, 85 (Tex.App.—Austin 1983, writ dism’d); Rogers v. Port City Barber and Beauty Supply Co., 138 S.W.2d 219, 220 (Tex.Civ.App.—Galveston 1940, no writ). All of these elements are present in this case.

C.A. Stansbury’s suit against BFI is also barred by the doctrines of collateral and judicial estoppel. Olivarez v. Broadway Hardware, Inc., supra; U.S. Life Corp v. U.S. Life Ins. Co., 560 F.Supp. 1302, 1304 (N.D.Tex.1983).

Ramona Stansbury is in privity with her husband. Grimm v. Rizk, 640 S.W.2d 711, 715 (Tex.Civ.App.—Houston [14th Dist.] 1982, writ ref’d n.r.e.), cert. denied, 464 U.S. 1045 , 104 S.Ct. 714 , 79 L.Ed.2d 177 (1984). What we have held and said in regard to her husband’s lawsuit applies to hers.

Appellants’ points of error are overruled, and the order of the trial court granting the summary judgment is affirmed.

Affirmed.