                                   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).1 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.


        1
          Sommers relied on the Suprem e Court decision in Segrest v. Segrest, 649 S.W .2d 610, 612 (Tex.
1983), wherein the court stated that “[a] final judgm ent settles not only issues actually litigated, but also any
issues that could have been litigated. That the judgm ent m ay have been wrong or prem ised on a legal
principle subsequently overruled does not affect application of res judicata.” Id. at 612.

                                                        2
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




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