## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

N o 00-40504

_______________



### F REDA 

### S USAN 

### M OWBRAY



### , ALSO KNOWN AS 

### S USIE 

### M OWBRAY



### ,

Plaintiff-Appellant,

VERSUS



### C AMERON 

### C OUNTY



### , T EXAS 

### ; B ENJAMIN 

### E URESTI



### , J UDGE 

### ; E DMUND 

### C YGANIEWICZ 

### ;

L UIS 

### V. S AENZ 

### ; M ENTFORD 

### H ESSKEW



### , “D USTY 

### ”; G EORGE 

### G AVITO 

### ; S TEVE 

### R OBERT



### SON 

### ; E STELLA 

### M AURICIO 

### ; J EAN 

### M OWBRAY 

### ; J AMES 

### M OWBRAY 

### ;

M ARGO 

### M OWBRAY 

### ; AND 

### K RISTEN 

### M OWBRAY



### ,

Defendants-Appellees.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *2 _______________

N o 00-41229

_______________



### F REDA 

### S USAN 

### M OWBRAY



### , ALSO KNOWN AS 

### S USIE 

### M OWBRAY



### ,

Plaintiff-Appellee,

VERSUS



### T EXAS 

### C AMERON 

### C OUNTY 

### ; E T 

### A L



### ,

Defendants,



### G EORGE 

### G AVITO



### ,

Defendant-Appellant.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

December 6, 2001

Before J ONES , S MITH , and D E M OSS

, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

After Fredda “Susan” Mowbray (“Mowbray”) had served nine years in prison for her

husband’s murder, her conviction was set

aside, whereupon, under 42 U.S.C. § 1983 and

state law, she sued the county that had jailed

her and the three prosecutors, three police officers, and the county lab techni c ian who had

participated in her trial; she also sued her husband’s heirs to re gain the proceeds from his

life insurance policy. The district court dismissed all of Mowbray’s claims but one,

against Officer George Gavito.

Mowbra y appeals several F E D

. R. C IV

. P.

12(b)(6) dismissals and a

summary judgment

based on pro secutorial immunity, absolute

witness immunit y, and qualified immunit y, and

a dismissal based on res judicata

. Gavito

appeals a denial of summary judgment based

on qualified immunit

y. We affirm t he dismissals and summary judgm ent that Mowbray3

challenges, but w e reverse the denial of summary judgment to Gavito and render judgment

for him.

I.

One night in September 1987, Mowbray

was lying in bed with her husband, Bill Mowbray, when he was sh o t . Mowbray claimed

that her husband had commit t ed suicide; at

least tw ice before, he had attempted suicide,

once by shooting himself. Bill Mowbray’s car

dealer ship was on the brink of failure, and

apparently he had vowed to kill himself rather

than f ace jail for tax evasion or commercial

fraud.

Estelle Mauricio, a reserve deputy sheriff,

was the first to arrive at the residence after the

shooting. She testified that she found the deceased still alive, shot through the head, and

lying on his left side with the bed covers pulled

up to his shoulder. The bullet had entered the

right sid e o f his head, exited the left, and

wounded his left hand, which w a s under his

head with a pillow between his head and left

hand. His right hand was lying across his chest

under the bed covers. No blood or brain matter was on his right hand, and Mauricio never

saw his hand being w ashed at home or in the

hospit al. Lieutenant George Gavito of the

Cameron County Sh eriff’s Department also

was present at the scene.

Dr . Dahm, who conducted the autopsy,

st ated that if the deceased had shot himself,

there would have been blood and brain matter

covering hi s right hand, fingers, and forearm.

F inding no blood, Dahm concluded that the

death was a murder.

Mowbray was considered a suspect. In early October 1987, Steve Robertson, a lab technician at the Texas Department of Public Safety (“DPS”), met with police officer Mentford

“Dusky” Hesskew to discuss the the ory that

Mowbray had kil led her husband. Hesskew

was principally employed by the Austin Police

Department but also taught classes at the DPS

Academy on high impact spatter. Hesskew

p erfo rmed a luminol test on the nightgown

Mow bray wore that night to detect the prese nce of blood. Because luminol reacts t o

substances other than blood, luminol tests are

only presumptive in nature.

On November 3, 1987, Robe rtson and

Hesskew met with prosecutors Benjamin Euresti and Edmund Cygan iewicz and reported

that the nightgown had tested positive for

blood. On November 9, Robertson conducted

two confirma t ory blood tests on the nightgown, both of which were nega tive. At the

ha b eas corpus proceedings, he explained that

the negative results could have resulted from

the excessiv e testing the nightgown had already undergone. The tests for the gunshot

residue could have destroyed the protein in the

blood , and the chemicals sprayed to detect

lead residue could have diffused or dissolved

the red stains. Robertson never reported these

negative results to the district attorneys, Hesskew, or Mowbray’s defense counsel.

The prosecution asked Herb e rt MacDonnell, an expert on blood spatter, to examine

Mowbray’s nightgown. On November 18,

MacDonnell told Euresti and Cyganiewicz that

he had found no indication of blood stains or

high velocity impact spatte r of the sort that

would have been prese nt had Mowbray shot

her husband whil e wearing a nightgown. He

concluded that if Mowbrayhad shot her husband, she was not wearing a nightgown at the

time.

Cy g aniewicz, Euresti, Gavito, Mauricio,4

and assistant district attorney Luis Saenz prepared a “mock-up” of the shooting scene. The

mock-up d i d not alter MacDonnell’s conclusions that he had listed in his report. On December 2, 1987, MacDonnell discussed his rep ort with Gavito and stated that he tho ught

Mowbray had shot her husband while she was

naked. The only record of MacDonnell’s

statement comes from Gavito’s deposition testimony. MacDonnell’s report was made available to Mowbray’s defense counsel ten days to

two weeks before trial.

On Decembe r 4, 1987, Mowbray was indicted for murder. At trial, the prosecution offered Hesskew’s and Robertson’s testimony

t hat blood was found on the nightgown; neither side called MacDonnell. Mowbray was

convicted and sentenced to life imprisonment.

After he r petition for writ of habeas corpus

was granted and the conviction was set aside,

see Ex Parte Mowbray

, 943 S.W.2d 461 (Tex.

Crim. App. 1996), she was acquitted at a

second trial.

II.

M owbray sued Cameron County, three p rosecutors, three police officers, and a county lab

technician, alleging conspiracy to violate her

civil rights, false imprisonment, malicious prosecution, abuse of process, slander, and intentional inflict

ion of emotional distress. She also

sued Jeanne, Ja mes, and Margo Mowbray to

regain the proceeds of her hu sband’s life insurance policy.

III.

We review a rule 12(b) (6) 1 dismissal de

novo , accepting all well-pleaded facts as true. Questions of fact are viewed in the light most

favorable to the plaintiff; questions of law are

reviewed de novo

. G reen v. State Bar of Tex.

, 27 F.3d 1083, 1086 (5th Cir. 1994).

Mowbray argues t hat the di stri ct court

erred in extending absolute immunit y to Euresti, Cyganiewicz, and Saenz, whom she accuses

of “shopping for experts,” “laboring to sell

these experts on the ir t heory,” and “rejecting

the leading authority in the fi eld . . . and instead selecting an expert who perpetrated junk

science.” Mowbray also complains that the

prosecutors did not turn over exculpatory evidence to the defense until ten days before trial.

Under § 1983, prosecutors are entitled to

absolute immunit y fo r acts performed as advocates of the state. I

mbler v. Pachtman

, 424

U.S. 409, 430-31 & n.33 (1976). For “acts of

investigation or ‘administration,’” prosecutors

are entitled to only qualified immunit y. B uckley v. Fitzsimmons

, 509 U.S. 259, 269 (1993).

A bso lute immunity extends to a prosecutor’s

actions “‘preliminary to the initiation of a prosecution and . . . apart from the courtroom.’”

Id. at 272 (quoti ng I

mbler

, 424 U.S. at 431

n.33) . This includes a prosecutor’s decision

on “which witnesses to call and what other

evidence to present,” Imbler

, 424 U.S. at 431

n. 33, and “an out-of-court ‘effort to control

the presentation

o f [a] witness’ testimony,’”

Buckley

, 509 U.S. at 272-73 (quoting Imbler

, 424 U.S. at 430 n.32) (alteration in original).

All the acts Mowbray lists involve the prosec utors’ choosing expert witnesses, preparing

those witn esses for trial, and performing the

state’s trial duties. Because these acts fall under the protecti on of absolute immunit y, the

district court did not err in dismissing suit as to

them. 1 Rule 12(b) (6 ) authorizes a court to dismiss a

complaint for “failure to state a claim upon which

relief can be granted.” F ED

. R. C IV

. P. 12(b)(6).5 IV.

Although Mowbray argues that the court

erred in failing to address her slander claim under § 1983, she has not alleged facts sufficient

to state a claim. She asserts that after meeting

with MacDonnell, Euresti opined that “he was

now confident that he could get an indictment.” Mowbray never avers that this comment (or any other) deprive d her of a constitutional or other federal right; she states only that she “was publi cly humiliated and subjected to scorn and ridicule during the investigativ e phase of the prosecution” and that she

was “put throu gh an emotionally damaging

t rial.” Such allegations do not state a claim

under § 1983.

V.

Mowbray contends that the court erred in

dismissing her § 1983 claims against Hesskew

and Robertson for conspiracy to commit perj ury and violation of a duty under Br ady v.

Maryland

, 373 U.S. 83 (1963), to disclose exculpatory evidence. Although witnesses are

entitled to absolute immunit y against § 1983

suits base d on their testimony in a criminal

trial, Briscoe v. LaHue

, 460 U.S. 325, 329-31

(1983), it is less certain wheth er the rul e of

Briscoe ext ends to claims that a witness entered a pre-trial conspiracy to commit perjury.

Of the eight circuits that have addressed the

issue, seven have extended absolute witne s s

immunit y. 2 The Second Circuit stands alone in reaching a contrary conclusion. 3

We find the reasoning of the majority of circuits persuasive. As a matter of logic, “[a] perso n may not be prosecuted for conspiring t o

commit an act that he may perform with impunity.” House

, 956 F.2d at 720. Hesskew and

Rob ert son cannot be liable under § 1983 for

conspiracy to commit perjury where § 1983

grants them absolute immunity for that act. 4

Moreover, allowing such conspiracy suits

w ould permit most §1983 perjury suits to be

restyled as § 1983 claims for conspiracy to

commit perjury, because “a witness rarely prepa res her testimony on her own.” Franklin

, 201 F.3d at 1101-02. Accordingly, we co nclude that absolute witness immunit y bars

§ 1983 suits for conspiracy to commit perjury.

Mowbray’s second claim, that Hesskew and

Robertson vi o lated their duties under B rady

when they failed to furnish exculpatory Brady

2 Franklin v. Terr

, 201 F.3 d 1098, 1101-03

(9th Cir. 2000); Jones v. Cannon

, 174 F.3d 1271,

1288-89 (11th Cir. 1999); Watterson v. Page

, 987

F.2d 1, 9 (1st Cir. 1993); Snelling v. Westhoff

, 972

F.2d 199, 200 (8th Cir. 1992); House v. Belford

, 956 F.2d 711, 720-2 1 (7th Cir. 1992); Miller v.

Glanz , 948 F.2d 1562, 1569 (10th Cir. 1991);

(continued...) 2 (...continued)

Alioto v. City of Shively

, 835 F.2d 1173, 1174 (6th

Cir. 1987).

3 San Filippo v. U.S. Trust Co.

, 737 F.2d 246,

254-55 (2d Cir. 1984).

4 Cf . Hale v. Townley , 45 F.3d 914, 920-21

(5th Cir. 1995) (finding that where each state action alle ged to have harmed the plaintiff is protect e d by qualified immunity, there can be no

§ 1983 suit for consp iracy to violate plaintiff’s

constitutional rights); Hollowa y v Walker , 765

F.2d 517, 522 (5th Cir. 1985) (“It is a well established rule that where a judge's absolute immunity

would protect him from liabili ty for the performance of particular acts, mere allegations that he

performed those acts pursuant to a bribe or conspiracy will n ot be sufficient to avoid the immunity .”).6

material to Mowbray’s defense counsel, is

without merit. B rady imposes a duty on

prosecutors to share exculpatory evidence

with the defense. Mowbray cites, and our research reveals, no case extending Brady to

police officers or lab technicians. 5 Accordingly, Mowbray has failed to allege an actionable claim against Hesskew or Robertson.

VI.

Mowbray argues that t he district court

erred in dismissing her § 1983 claim against

James Mowbray for conspiracy to violate her

civil rights. While it is possible, in limited circumstances, to allege a § 1983 conspir a cy

against a private actor, Brummett v. Camble

, 946 F.2d 1178, 1184-85 (5th Cir . 1991),

Mowbray fails to do so. Her complaint consists almost entirely of conclusional allegations. The only facts she provides are that

James Mowbray met with the police, answered

their questions, and took an interest in t he

investigation

o f his brother’s death; these do

not state a claim under § 1983.

VII.

Mowbray challenges the dismissal of her

§ 1983 claims against Cameron County. She

first argues that the county is liable for the unconstitution a l acts of its final policymakers.

Although Turner v. Upton County , 915 F.2d

133 (5th Cir. 1990), does allo w such suits,

M owbray has alleged constitutional depriv a

tions only against Euresti, Cyganiewicz, Saenz, Hesskew, Gavito, R obertson, and

Mauricio 

### SS

prosecutors, lower level police

officers, and a lab technician.

The sheriff is the county’s final policymaker

in this context. I

d. at 136. The district attorney, “when acting in the prosecutorial capacity

[or] instituting criminal proceedings to enforce

state law,” is not. E steves v. Brock , 106 F.3d

67 4, 678 (5th Cir. 1997). Mowbray has alleged no constitutional deprivation against the

county sheriff, and her allegations against the

prosecutors involve only ac tions as state

officers; accordingly, the district court did not

err in dismissing her Turner claim.

Mowbray also argues that the county is liable for the unconstitutional acts of its officers

because it failed to train them on their B rad y

duties. S ee City of Canton v. Harris

, 489 U.S.

378 (1989). Because Euresti, Cyganiewicz,

and Saenz are state officers, the county cannot

be liable for a failure to train them. For Hesskew, Gavito, Robertson, and Mauricio, Mowbray fails to allege a constitutional deprivation

and thus fails to stat e a claim under § 1983.

As discussed supra

, neither police officers nor

lab t echnicians have a B rady duty to disclose

exculpatory information.

VIII.

We review a grant or denial of summary

judgment de novo

, NCNB Tex. Nat’l Bank v.

Johnson

, 11 F.3d 1260, 1264 (5th Cir. 1994),

applying the same stand ard as did the district

court, Deas v. River W., L.P.

, 152 F.3d 471,

475 (5th Cir. 1998). “Summary judgment is

proper w hen no issue of material fact exists

and the moving party is entitled to judgment as

a m atter of law. Questions of fact are viewed

in the li ght most favorable to the nonmovant

and questions of law are review ed de novo.”

Id

. 5 Mo wbr ay does not allege, nor do the facts

support a finding, that Hesskew and Robertson

elicited fa lse evidence and deliberately concealed

exculpatory evidence from all parties, including the

prosecution. C

f. Geter v. Fortenberry

, 849 F.2d

1550, 1558 (5th Cir. 1988) (concluding such

allegations defeat a police officer’s qualified

immunity under § 1983).7

M owbray argues that the court erred i n

granting summary judgment for Mauricio on

the § 1983 claims that Mauricio fabricated trial

testimony and failed to disclose exculpatory

evidence. Absolute witness immunity insulates

Mauricio from the § 1983 perjury claim, so the

district court was correct to dismi ss it under

rule 12(b)(6). Briscoe , 460 U.S. at 329-31.

For the failure to disclose claim, Mowbray

provides only conclusional allegations. Her

brief concedes that there is no factual basis for

her claim and that she has only suspicion that

Mauricio knew of exculpatory evidence. Mauricio, on the other hand, submitted an affidavit

attesting that she knew of no exculpatory evidence. Consequently, the court did not err in

granting summary judgment for Mauricio. 6

IX.

A.

Gavito contends that the court erred in denying his motion for summ ary judgment on

qualified immunit

y grounds. As an initial matter, we must verify our jurisdiction ov er this

appeal. M

osley v. Cozby , 813 F.2d 659, 660

(5th Cir. 1987).

“[D]istrict court o rders denying summary

judgment on the basis of qualified i mmunity

are immediately appealable under the collateral

order doctrine, when based on an issue of

law.” Cantu v. Rocha , 77 F.3d 795, 802 (5th

Cir. 1996). Orders “are based o n an issue of

law when they concern only application of est ablished legal principles, such as whether an official’s conduc t was objectively reasonable in

light of clearly established law, to a given . .

. set of facts.” I

d. (citing Johnson v. Jones

, 515 U.S. 304 (1995)).

Mowbray and Gavito rely on the same record in their briefs; the only dispute is whether

the district court correctly applied the l a w of

qualified immunit

y to these facts. We thus

co nclude we have jurisdiction to hear this

appeal.

B.

Mowbrayalleges a § 1983 claim for conspiracy to violate her civil rights, based on

(1) failure to disclose exculpatory evidence to

Mowbray’s defense counsel; (2) manufacture

of false evidence; and (3) suppr essio n of evidence. Before we can reach the § 1983 conspiracy claim, we must determine whether

qualified immunit

y applies to each state claim.

Hale v. Townley

, 45 F.3d 914, 920-21 (5th

Cir. 1995). If all three acts fall under qualified

i mmunity, there can be no § 1983 conspiracy

claim. Id.

As a police officer, Gavito enjoys qualified

immunit y for his official acts. H

arlow v. Fitzgerald , 457 U.S. 800, 818 (1982). To overcome q ual ified immunity, Mowbray must show

Gavito (1) violated a constitutional right that

(2) was clearly established at t he time of the

violation (3) t h rough conduct that was objectively unreasonable. K ipps v. Caillier

, 197

F.3d 76 5, 768 (5th Ci r. 1999), c ert. denied

, 121 S. Ct. 52 (2000).

Mowb ray claims that Gavito had a B rady

duty to tell defense co unsel about his lunch

me et ing with MacDonnell at which MacDonnell stated he believed Mowbray had shot

her husband while not wearing a nightgown.

As we have said, even if MacDonnell’s state6 Further, as discussed s upra

, police officers

have no duty under Brady to disclose exculpatory

evidence to defense counsel. Even had Mowbray

alleged facts showing that Mauricio withheld evid ence, Mowbray’s claim would fail as matter of

law.8

ment were exculpatory, police officers have no

constitutional duty under Brady to disclose

exculpatory evidence to defense counsel. For

her assertion that Gavito manufa ct ured false

evidence and suppressed evidence, Mowbray

provides only conclusional allegations.

Even under a generous re ading of Mowbray’s complaint and brief, the only po ssible

factual basis she alleges is that Gavito participated in a “mock-up” of the crime scene and

arrested her pursuant to a warrant. But Mowbray provides no evide nce that Gavito acted

improperly in the mock-up or that there were

a ny co nstitutional defects in her arrest. She

has not shown Gavito violat ed any constitutional right, much less one clearly esta b lished

at the time of h er prosecution. Therefore,

Gavito is entitled to qualified immunit y for his

actions, and the § 1983 conspiracy claim based

on them must fail.

Mowbray also lists a host of state law

claims for abuse of proc ess, malicious prosecution, false imprisonment, and intentional

infliction of emotional distress. The state law

claims, like her § 1983 claim, consist mainly of

conclusional allegations. 7 Mowbray com plains

that Gavito investigated the crime, partici p ated

in a mock-up of the crime scene, arrested her,

and failed to disclose exculpatory evidence to

her defense counsel.

Police officers are entitled to official immunity from suits arising out of performance of

(1) discreti o nary duties (2) in good faith as

long as they are (3) acting within their authorit y. City of Lancaster v. Cha mbers , 883 S.W.2d 650, 653 (Tex. 1994). The defendant

claiming official immunit

y bears the burden of

proving all elements of the defense. I d. U nder

Texas law, an officer’s investigation of a

crime, Wyse v . Dep’t of Pub. Safety , 733

S.W.2d 224, 227 (Tex. App. 

### S S Waco 1986,

writ ref’d n.r.e.), and arrest of a suspect, Dent

v. City of Dallas , 729 S.W.2d 114, 117 (Tex.

App. 

### SS Dallas 1986, writ ref’d n.r.e.), are considered discretionar y duties within police authority. Gavito thus satisfies the first and third

criteria for official immunity.

Texas law judges an offi cer’s good fai th

under the same test federal courts employ for

qualifie d immunity determinations under

§ 1983. City of Lancaster , 883 S.W.2d at

656. Texas courts “look to whether a reasonable official could have believ ed his or her

co nduct to be lawful in light of clearly established law and the information possesse d by

the official at the time the conduct occurred.”

Id. (internal quotati on mark s and citations

omitted). L ike qualified immunit y, official immunity “protects all but the plainly incompetent or those who knowingly violate the law.”

Id. (i nt ernal quotation marks and citations

omitted).

As we have stated, there is no evidence that

Gavito did anything illegal in investigating the

crime, participating in the mock-up, arresting

Mowbray, or failing to disclose MacDonnell’s

statements to defense counsel. Gavito’s actions thus are immune from state suit because

of official immunit y. Because all of Mowbray’s claims against Gavito fail as a matter of

law, the district court erred in denying Gavito

summary judgment.

X.

After Mow b ray was convicted, the proceeds from her husband’s life insurance policy 7 Because t he state law claims arise out of the

same set of operative facts as do the federal claims,

we have supplemental jurisdiction to hear them. 28

U.S.C. § 1367.9

were divested from her and award ed to th e

deceased’s mother. M

owbray v. Met ro. Life

Ins. Co.

, Civ. Ac. No. B-88-107 (S.D. Tex.

Apr. 24, 1991). Two y ears after her conviction was set aside, Mowbray filed a motion

in federal court requesting that the 1991 judgment be vacated, that Jeanne Mowbray repay

her the life insurance money, and that the court

“impose a constructive trust in said moneys so

received.” The court set aside the 1991 judgment but denied “all further relief prayed for.”

Mowbray v. Metro. Life Ins. Co.

, Civ. Ac. No.

B-88-107 (S.D. Tex. May 24, 1999).

Mowbray did not appeal the denial of her

constructive trust claim. In 1999, she filed her

first amended complaint in the instant case, suing James and Margo Mowbray, Jeanne Mowbray’s heirs, to impose a constructive trust on

the insurance proceeds. The defendants

moved to dismiss based on res judicata. The

court denied the motion because there was no

certified co py of the judgment in the record.

Defendants filed a secon d motion to dismiss,

omitting mention of res judicata becaus e the

district court had stated it would not consider

such a motion. The court granted the motion,

raising the issue of res judicata sua sponte.

We review a dismissal based on res judicata

de novo. Recoveredge L.P. v. Pentecost , 44

F.3d 1284, 1290 (5th Cir. 1995). We apply

feder al law to determine the preclusive effect

o f a federal judgment, even if that judgment

was based on state law. Id.

A.

Generally, res judicata is an affirmative defense that must be pleaded, not r aised s ua

sponte

. F E D

. R. C IV

. P. 8(c). We recognize

two limit ed exceptions to this rule; both apply

here. The first exception allows “[d]ismissal

by th e court sua sponte on res judicata grounds

. . . in the interest of judicial economy

where both actions were brought be fore the

same cour t .” B oone v. Kurtz

, 617 F.2d 435.

43 6 (5th Cir. 1980); accord United Home

Rentals, Inc. v. Tex. Real Estate Comm’n

, 716

F.2d 324, 33 0 (5th Cir. 1983). Both actions

were brought in the same federal district court.

Further, like the judgments in Boone

, the actions are “almost identical,” differing only in

the defendants’ names. The parties do not dispute the facts, so remanding would add nothing to the record and woul d o nly consume

judicial resources.

The second exception holds that “where all

of the relevant facts are contained in the record before us and all are uncontroverted, we

m ay not ignore their legal effect, nor may we

decline to consider the application of controlling rules of law to dispositive facts, simply because neither party has seen fit to invit e our attention by technically correct and exact pleadin gs.” A m. Furniture Co. v. Int’l Accommodations Supply

, 721 F.2d 478, 482 (5th Cir.

Unit A Mar. 1981). Here the facts are uncontested and the legal outcome unambiguous.

Revers al wo uld not lead to a different outcome.

Additionally, the usual concerns preventing

a court from raising res judicata sua sponte do

not apply. Mowbray “can claim no surprise or

prejudice.” I

d. S he certainly had notice of the

prior judgment; she had l

it igated it just a few

months earlier. Nor has she been denied “‘the

chance to argue

. . . why the imposition of an

estoppel would be inappropriate.’” I d. (quoting Blonder-Tongue Labs. v. Univ. Found.

, 402 U.S. 313, 350 (1971)). James and Margo

Mowbray had filed an earlier motion to dismiss

based on res judi cat a, which Mowbray had

ample opportunity to answer.10 B.

Thus concluding that the district court did

not err in raising the issue, we address it on the

merits. In A merican Furniture

, we set forth

the requirements for a res judicata defense:

“(1) that the prior judgment must have

been rende r ed by a court of competent

j urisdiction; (2) that there must have

been a final judgment on the merits;

(3) that the parties, or those in privity

with them, must be ident ical in both

suits; an d (4) that the sam e cause of

action must be involved in both suits.”

Id. (quoting Stevenson v. Int’l Paper Co.

, 516

F.2d 103, 108-09 (5th Cir. 1975)).

It is indisputable that all four requirements

are satisfied. The 1999 judgment decided the

iss ue, so the district court did not err in dismissing t he claim.

In summary, the dismissals a nd summary

judgment entered against Mowbray are

AFFIRMED, and the deni al of summary

judgment in favor of Gavito is REVERSED,

and judgment is RENDERED for him. All

outstanding motions are denied.