“Issue preclusion does not apply if the burden of proof in the second proceeding is higher, or shifted, against the party asserting the bar.” (citing Section 28(4))
How later courts described this case
- “Issue preclusion does not apply if the burden of proof in the second proceeding is higher, or shifted, against the party asserting the bar.” (citing Section 28(4))
- a party’s right to a jury trial under the Texas constitution may be violated if preclusive effect is given to facts found by a court in a prior case in which the party had no right to a trial by jury
- “Merely proceeding to trial in a case in which a trial by jury is unavailable, without more, does not 9 establish waiver of that right.”
- “Merely proceeding to trial in a case in which a trial by jury is unavailable, without more, does not establish waiver of that right.”
Written by the judges who cited it.
The opinion
*552 ON MOTION FOR REHEARING
Appellant, John Hogan Interests, Inc. d/b/a First Foods Company, Inc. (First Foods) files a motion for rehearing complaining that we failed to address its point of error in our original opinion. First Foods is correct in that respect. We will address it now.
First Foods argues in its sole point of error that if the trial court erred in granting appellees’ motions for summary judgment with respect to the claims brought by the Trapnells then the trial court also erred in granting appellees’ motions for summary judgment with respect to First Foods concerning its claims for contribution and indemnity. We previously dismissed First Foods’ appeal against appellees Univar Corporation, Van Waters & Rogers, Inc. and McKesson Corporation. 1
The claims and cross claims asserted against First Foods were previously severed from this action by the trial court and tested by appeal. 2 The trial court granted summary judgment in favor of First Foods. This Court reversed the summary judgment. Application for writ of error was denied.
The claims of First Foods for contribution and indemnity are derivative of the Trapnells’ causes of action against appel-lees. We, therefore, also reverse the judgment of the trial court with respect to the summary judgment granted in favor of the appellees against whom First Foods appealed. The judgment of the trial court with respect to the summary judgments against First Foods is reversed and remanded to the trial court for the reasons expressed in our opinion in this case. First Foods’ motion for rehearing is granted. All other motions for rehearing by all other parties are overruled.
. John Hogan Interests, Inc. v. Univar Corporation, Van Waters & Rogers, Inc., and McKesson Corporation, No. 13-91-503-CV (Tex.App.—Corpus Christi, September 12, 1992, no writ).
. Trapnell v. John Hogan Interests, Inc., 809 S.W.2d 606 (Tex.App.—Corpus Christi 1991, writ denied).