IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

LUBBOCK DIVISION

DONALD S. BRYANT, JR., a Married §

Person, LINDA M. BRYANT, a Married §

Person, TRUSTEES of the BRYANT §

FAMILY TRUST, §

§

PLAINTIFFS, §

v. § CIVIL ACTION CAUSE NUMBER

§

PLAINS NATIONAL BANK OF § 5:05-CV-034-J

LUBBOCK, TEXAS, PLAINS CAPITAL §

BANK OF LUBBOCK, TEXAS, MARK §

GRIFFIN, ALL BOARD MEMBERS and §

OFFICERS OF BANK, and ALL SPOUSES §

OF PRESIDENT, BOARD MEMBERS and §

ALL OFFICERS OF BANK, §

§

DEFENDANTS. §

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ DISPOSITIVE MOTION

Before the Court is Defendants’ Rule 12(b) motion, filed February 24, 2005, to dismiss this

lawsuit with prejudice on the grounds of res judicata. On May 6, 2005, Defendants’ motion was

converted to a Rule 56 motion for summary judgment and the parties were given additional time to

submit competent summary judgment evidence. The parties opposing summary judgment did so,

and the time for submission of evidence has now passed. 

Defendants’ motion is granted for the following reasons.

Defendants assert that res judicata bars this lawsuit because it is identical to an earlier-filed

lawsuit (5:04-CV-48-J) which was filed in this Court against the bank, its President, board members

and officers, and all of their wives. Defendants state that a final take-nothing judgment was entered

in that earlier suit after grant of Defendants’ motion for summary judgment. 

 

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1 Pursuant to Fed. R. Civ. Pro. 44(a)(1) and Fed. R. Evidence 201(b)(2) and without

objection the Court has taken notice that the supplied pleadings included within the appendix are official

records of this Court. 

2

Plaintiffs’ response in opposition to dismissal basically states that this case can not be

dismissed because: 1) Defendants are in default, 2) Defendants’ motion has not been “properly

served” upon them, and 3) the earlier case’s dismissal was without prejudice. 

The elements of res judicata are:

(1) that the prior judgment must have been rendered by a court of competent

jurisdiction; (2) that there must have been a final judgment on the merits; (3) that the

parties, or those in privity with them, must be identical in both suits; and (4) that the

same cause of action must be involved in both suits.

Stevenson v. International Paper Co., 516 F.2d 103, 108-09 (5th Cir. 1975). Accord Nilsen v. City

of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983)(en banc). 

"If these elements are established, then the judgment or decree upon the merits in the first

case is an absolute bar to the subsequent action or suit, not only in respect of every matter which was

actually offered and received to sustain the demand, but also as to every ground of recovery which

might have been presented." Stevenson, supra, 515 F.2d at 108-09.

There is no question that the earlier judgment in 5:04-CV-48-J is a final judgment on the

merits that was rendered by a court of competent jurisdiction. There is no question that the parties

or those in privity with them are identical in both suits. Exhibits #8 and #9 to Defendants’ appendix

in support of dismissal/1

 clearly show that a final take-nothing judgment was entered in these

Plaintiffs’ earlier lawsuit against the same party defendants in this suit, after grant of defendants’

motion for summary judgment. The appendix documents show that the parties in this suit are

identical to parties in the earlier suit and that the claims and causes of action asserted in the earlier

suit are again presented in this case. Therefore res judicata operates to bar this subsequent lawsuit.

 

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3

Turning to the Plaintiffs’ other asserted defenses to entry of a final judgment, the Court has

denied both of Plaintiffs’ motions for entry of default judgment. No explanation has been offered

by Plaintiffs as to why or how Defendants’ dispositive motion has been improperly served upon the

Plaintiffs; Plaintiffs do not assert that they did not receive a copy of Defendants’ motion. Finally,

Plaintiffs are incorrect that the earlier lawsuit was dismissed without prejudice. 

For these reasons, Defendants’ converted Rule 56 motion is granted. 

A final judgment will be entered in accordance with this opinion and order.

It is SO ORDERED.

Signed this the 19th day of July, 2005.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

 UNITED STATES DISTRICT JUDGE

 

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