* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion

should n ot be published and is not precedent except under the limited circumstances

set forth in 5 TH C IR

. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 96-50303

Summary Calendar

_______________

MARSHALL CONTRACTORS, INC.,

Plaintiff-Appellant,

VERSUS

INTEGRATED GAS SYSTEMS, INC.;

RON WEST; SCOTT SOLGERE; WILLIAM “SPUD” O’NEAL;

ROD GOERGEN; and RANDOLPH GASQUE,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(A-95-CV-177)

_________________________

December 11, 1996

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Marshall Contractors, Inc. (“Marshall”), appeals a summary

judgment in favor of Integrated Gas Systems, Inc. (“IGS”), Ron

West, Scott Solgere, William “Spud” O’Neal, Rod Goergen, and

Randolph Gasque (collectively, the “Named Defendants”). Finding no2

error, we affirm.

I.

This action arises out of a subcontract between Marshall and

IGS, pursuant to a $6.8 million construction contract between

Marshall, as general contractor, and the University of Texas.

After it ceased performing under the subcontract and abandoned the

construction proj ect, IGS filed an action against Marshall for

b reach of contract (the “Original Action”). Marshall counterclaimed in the Original Action, alleging that IGS breached its

obligations under the con tract by, among other things, falsely

indicating that it had completed certain subprojects and had paid

various subcontractors accordingly, based upon which representations Marshall paid monies to IGS.

Nearly fourtee n months after the Original Action had been

filed, Marshall sought to amend its counterclaim to add the Named

Defendants in their individual capacities and to add fraud claims

arising out of the same operative facts. The district court denied

this motion, and Marshall filed the instant action (the “Instant

Action” ) separately alleging the fraud claims excluded from the

counterclaim. The district court stayed the Instant Action pending

resolution of the Original Action.

A jury found in favor of Marshall in the Original Action but

awarded Marshall no damages for breach of contract. After a final

judgment had been entered in the Original Action, IGS filed a2 Because of the confusion inherent in res judicata as applied to claims

versus res judicata as a pplied to issues, we use the term “claim preclusion”

throughout this opinion to refer to the former.

3 motion for summary judgment alleging that the Instant Action was

barred by res judicata. The district court granted the motion.

II.

Marshall objects to the summary judgment. 2 The district court

found that the issues presented in the Instant Action involved the

same claims and causes of action as those litigated previously in

the Original Action and thus held that claim preclusion prevented

Marshall from bringing the instant action.

We review a grant of summary judgment de novo

. See Hanks v.

Transcontinental Gas Pipe Line Corp. , 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

dep ositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” F ED

. R. C IV

. P. 56(c).

Claim preclusion insures the finality of judgm ents, thereby

conserving judicial resources and protecting litigants from

multiple lawsuits. S ee United States v. Shanbaum

, 10 F.3d 305, 310

(5th Cir. 1994). Claim preclusion is available only where (1) the

parties in the subsequent action are identical (or in privity with)

parties in the prior action; (2) the judgment in the prior action3 Marshall con t ends for the first time on appeal that the first

condition SS identical parties SS is not satisfied because in the instant action it

is suing individual employees of IGS for their allegedly fraudulent behavior,

whereas in the first action Marshall sued IGS in its corporate capacity for beach

of contract. Because the “identical parties” prong requires only that the

parties be in privity with one another, the element is satisfied. S ee Shanbaum

, 10 F.3d at 310.

4 was rendered by a court of competent jurisdiction; (3) the prior

action concluded with a final judgment on the merits; and (4) the

same claim or cause of action wa s involved in the both actions.

See Eubanks v. FDIC

, 977 F.2d 166, 169 (5th Cir. 1992). If each of

the four conditions is satisfied , the movant may invoke claim

preclusion to prevent the affected party “from raising any claim or

defense in the later action that was or could have been raised in

support of or in opposition to the cause of action supported in the

prior action.” See Shanbaum , 10 F.3d at 310.

Because the fou rth element only is contested, we must

det e rmine whether Marshall’s Instant Action involves the same

claims or causes of action present in the Origi nal Action. 3

According to Marshall, the focus of the Instant Action “goes beyond

whether IGS breached the contract . . . . This case is about how

IGS and the individual defendants induced Marshall (and the

University of Texas) to release project funds to IGS by knowingly

and intentionally misrepresenting material facts regarding the

completion of the project and the status of vendor payables.”

Thus, Marshall posits that because it s ounds primarily in tort,

instead of in contract (as did the Original Action), the Instant4 Marshall interprets Schmueser incorrectly to hold that a separate theory

of recovery alone is sufficient to avoid claim preclusion. The conjunctive “and”

in the quoted sentence indicates otherwise; all three elements must be present

to give rise to a different cause of action. See Schmueser , 937 F.2d at 1031.

5 Action is wholly separate and distinct from the former.

“Two lawsuits, however, involve 'different causes of action'

for res jud icata purposes when the theories of recovery, the

operative facts, and the measure of recovery differ.” Schmueser v.

B urkburnett Bank , 937 F.2d 1025, 1031 (5th Cir. 1991) (citation

omitted). 4 A final judgment on an action extinguishes the right to

bring suit on the transaction, or series of connected transactions,

out of which the action arose. S ee Barr v. Resolution Trust Corp.

,

837 S.W.2d 627 (Tex. 1992) (adopting the transactional approach to

claim preclusion).

It is undisputed that the fraud claims that Marshall alleges

in the Instant Action arise out of the same transaction SS namely,

the subcontract between Marshall and IGS for the University of

Texas construction project SS as did the breach of contract claims in

the Original Action. Furthermore, Marshall admits in its reply

brief that the very fraudulent actions that Marshall alleges in the

Instant Action SS

namely, that IGS an d certain Named Defendants

induced Marshall to release project funds to IGS by misrepresenting

that work had been completed and that subcontractors had been paid

accordingly SS

were the subject, in part, of the Original Action.

Whether the duties allegedly owed to Marshall by IGS and the named

defendants and allegedly breached in the instant torts action are5 Marshall does raise, however, one wholly separate claim not litigated in

the first action SS that IGS converted Marshall’s property, which was intended to

be used on the construction project, and used s uch property on one or more of

IGS’s other projects. Although not identical to the previously litigated issues,

this claim is similarly barred by claim preclusion because it arises out of the

same operative facts as the other claims litigated in the first action.

6 legally independent of those imposed by contract is immaterial; the

causes of action arise out of the same transaction a nd the same

operative facts and thus are res judicata. 5

Ultimately, Marshall’s Instant Action is characterized more

properly as an attempt to revisit the denial of its motion to amend

its complaint (some fourteen months after filing the original

complaint) to add the instant claims in the Original Action: “The

case management of this action has denied Marshall its day in

court. Marshall originally tried to amend its pleadings to add the

present claims and parties as counterclaims in the Original Lawsuit

but was denied.” We refuse to upset a final judgment and to expose

IGS to furthe r legal actions when Marshall could have so had its

day in court by exercising a modicum of due diligence in preparing

its original complaint or, if necessary, by appealing the denial of

its motion to amend.

AFFIRMED.