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

> Court of Appeals of Texas · January 16, 1986 · 702 S.W.2d 758

URL: https://www.frixlaw.com/law-library/cases/5065752

## Case

- **Full name:** C.A. STANSBURY v. CHEMICAL SERVICES DIVISION OF BROWNING-FERRIS INDUSTRIES, INC.
- **Court:** Court of Appeals of Texas
- **Decided:** January 16, 1986
- **Citations:** 702 S.W.2d 758; 1986 Tex. App. LEXIS 12121
- **Precedential status:** Published
- **Opinion:** Concurring in part by Burgess
- **Judges:** Dies, Burgess
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5065752

## Opinion text

BURGESS, Justice,
concurring and dissenting.
I concur in the result reached by the majority in Ramona Stansbury’s suit, but respectfully dissent to the affirmance in C.A. Stansbury’s suit. The majority finds that C.A. Stansbury’s suit “is barred by the doctrine of res judicata and collateral es-toppel.”
The summary judgment was granted on September 4, 1984. The res judicata was based upon the Federal law suit. It is undisputed the suit was on appeal to the Fifth Circuit Court of Appeals. The appeal was dismissed and the suit became final on March 22, 1985. Thus, the elements of res judicata were not complete at the time of the summary judgment hearing. There *760 fore, the granting of the summary judgment based solely upon res judicata cannot be sustained.
I do not believe the issue of collateral estoppel was properly raised in the motion for summary judgment urged against C.A. Stansbury. It cannot, therefore, be raised for the first time on appeal. State of Cal. Dept. of Mental Hygiene v. Bank of Southwest Nat. Ass’n., 163 Tex. 314 , 354 S.W.2d 576 (1962).
If collateral estoppel was properly raised I do not believe it is applicable here. An instructed verdict in the federal suit regarding the third party action should not be a determination of the issues between C.A. Stansbury and Browning-Ferris. Stansbury and Browning-Ferris were not adverse parties in the federal suit. Stans-bury had no control over the quantum of evidence adduced by Vesicol against Browning-Ferris. Stansbury had no standing to object or appeal the instructed verdict. He should not be bound by it. I would reverse the summary judgment against C.A. Stansbury and remand it back to the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5065752. Public record. Not legal advice.