                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                                                         F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                         August 23, 2006
                         FOR THE FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                             Clerk


                              No. 05-30993
                            Summary Calendar



     BROOKSHIRE BROTHERS HOLDING, INC.; ET AL.,

                                           Plaintiffs,

                                  versus

     TOTAL CONTAINMENT, INC.; ET AL.,

                                           Defendants,

     DAYCO PRODUCTS, LLC; MARK IV INDUSTRIES, LTD.,

                                           Defendants-Appellants

                                 versus

     PARKER-HANNIFIN CORP.,

                                           Defendant-Appellee.



                Appeal from the United States District Court for
                         the Western District of Texas
                          (USDC No. 2:04-CV-1150)
       _________________________________________________________

Before REAVLEY, GARZA and BENAVIDES, Circuit Judges.



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PER CURIAM:*

       Dayco Products, LLC appeals the district court’s grant of summary judgment in

favor of Parker-Hannifin Corp. We affirm.

       Parker Hannifin argues that Dayco is collaterally estopped from arguing that

Parker-Hannifin is liable for indemnification regarding the Enviroflex hose claims under

the Asset Purchase Agreement. We agree.

       This court has held that collateral estoppel applies when, in the initial litigation,

       (1)

the issue at stake in the pending litigation is the same, (2) the issue was actually litigated,

and (3) the determination of the issue in the initial litigation was a necessary part of the

judgment. Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 290 (5th Cir. 2005). In Parker-

Hannifin Corp. v. Dayco Products, LLC, No. 05-3518 (6th Cir. Feb. 24, 2006), the Sixth

Circuit affirmed a decision from the United States District Court for the Northern District

of Ohio finding that the identical Asset Purchase Agreement did not require Parker-

Hannifin to indemnify Dayco for claims concerning Enviroflex hoses. All of the

collateral estoppel elements have been met here. Dayco argues that the Sixth Circuit did

not address the following issues: (1) the effect of the “TCI Litigation” clause in the Asset

Purchase Agreement, and (2) the ambiguity created by the Asset Purchase Agreement’s



       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.

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use of the word “occurrences.” The United States District Court for the Northern District

of Ohio considered these issues and found in favor of Parker-Hannifin. Parker-Hannifin

Corp. v. Dayco Prods., LLC, No. 1:04-CV-897 (N.D. Ohio Mar. 29, 2005). The Sixth

Circuit affirmed. Parker-Hannifin Corp. v. Dayco Prods., LLC, No. 05-3518 (6th Cir.

Feb. 24, 2006). Accordingly, Dayco has not raised issues that were not litigated

previously.

       In addition, all elements for application of res judicata have been satisfied. The

prior decision was between the same parties, judgment was rendered by a court of

competent jurisdiction, the judgment was final and on the merits, and the plaintiff raises

the same cause of action. Russell v. SunAmerica Secs., Inc., 962 F.2d 1169, 1172 (5th

Cir. 1992).

AFFIRMED.




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