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NO. 07-07-0039-CV

IN THE COURT OF
APPEALS

FOR THE SEVENTH DISTRICT OF
TEXAS

AT AMARILLO

PANEL D

OCTOBER 15, 2008

______________________________

JOHNNY RODRIGUEZ, JR.,

Appellant

v.

ICON BENEFIT ADMINISTRATORS,
INC.,

Appellee

_________________________________

FROM THE COUNTY COURT AT LAW NO.
3 OF LUBBOCK COUNTY;

NO. 2006-598,648; HON. PAULA
LANEHART, PRESIDING

_______________________________

Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL
and PIRTLE, JJ.

Johnny
Rodriguez, Jr., appeals from a final summary judgment favoring Icon
Benefit Administrators, Inc. His two issues involve the application of res
judicata and due process. Since our resolution of the former disposes of
the appeal, we turn to that issue and affirm the judgment.

This
appeal is the second involving these parties and the underlying dispute.
The first involved the trial court’s judgment enforcing a mediation
agreement and dismissing Rodriguez’ claims against Icon “with prejudice.”
Though Rodriguez appealed, he did not contest the inclusion of the phrase
“with prejudice” in the decree. Furthermore, we affirmed the order.
Thereafter, he filed the suit from which this appeal arose. The claims
included causes of action previously alleged as well as new ones. In
response, Icon moved for summary judgment on the affirmative defense of
res judicata. That motion was granted.

As
previously mentioned, the trial court dismissed the first suit between the
parties “with prejudice.” Moreover, no one asked either the trial or
appellate court to redact the latter phrase from the decree. Thus, the
determination became final for purposes of applying the doctrine of res
judicata. Labrie v. Kenney, 95 S.W.3d 722, 728-29 (Tex.
App.–Amarillo 2003, no pet.). This is true even though the trial court
should not have dismissed the cause “with prejudice.” Id.; Sommers v.
Concepcion, 20 S.W.3d 27, 40 (Tex. App.–Houston [14th
Dist.] 2000, pet denied).

Consequently, the trial
court did not err in granting summary judgment on Icon’s affirmative
defense.

There
are opinions suggesting that the verbiage used in the judgment
(i.e. with prejudice) is irrelevant if it nonetheless appears that
the cause was truly not an adjudication of the merits. E.g., Stubbs v.
Patterson Dental Laboratories, 573 S.W.2d 274 (Tex. Civ. App.–Eastland
1978, no writ) and Haliburton v. Riley, 589 S.W.2d 821 (Tex. Civ.
App.–Waco 1979, no writ). However, those opinions have been seldom cited
by other courts. They also conflict with Labrie, Sommers,
and the Supreme Court authority on which the latter relied.

Accordingly,
the summary judgment is affirmed.

Per
Curiam