Affirmed and Majority and Dissenting Opinions filed August 12, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00448-CV
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LONNIE W. BUTLER, JR., Appellant
V.
CONTINENTAL AIRLINES, INC., Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 02-04660
D I S S E N T I N G O P I N I O N
Lonnie Butler had a single claim: that his employer took several macros he developed. For reasons perhaps known only to his lawyers, he filed the claim in the form of a dozen different causes of action. All have been tossed outCfirst by the First Court of Appeals,[1] and later by a federal court in Houston.[2]
Both courts held that half a dozen of Butler=s causes of action were preempted by the federal Copyright Act. But both also held that half a dozen others were not,[3] thus affirming Butler=s right to bring them as separate actions.
But where? The First Court held they could be brought only in federal court.[4] On exactly the same issue, the federal court held they could not.[5] One of these courts must be wrong. This is not merely a difference of opinionCthough acknowledging Butler can assert non-copyright claims, every court where he has tried to do so has shut its doors.
Federal courts have exclusive jurisdiction to try cases arising under the Copyright Act.[6] But Butler has never alleged a copyright claim; instead, Continental has argued as a defense to his claims that the Copyright Act precludes them. The First Court of Appeals held this was enough, pointing to an opinion by the federal Second Circuit that a claim arises under the Copyright Act if Ait asserts a claim requiring construction of the Act.@[7] The federal court in Houston disagreed, pointing to a subsequent Second Circuit opinion clarifying that this test looks only to what the plaintiff=s complaint alleges, not what defense might be proffered.[8]
The issue before us is not which court was right, but whether Butler can be shut out of a forum by the conflicting denials. I agree with the Court that a dismissal for lack of subject-matter jurisdiction normally should preclude litigation of that jurisdictional question again; if the rule were otherwise, the same claim could be filed repeatedly and never decided finally.
But the Restatement recognizes a limitation to the application of res judicata when inconsistent final judgments are rendered:
When in two actions inconsistent final judgments are rendered, it is the later, not the earlier, judgment that is accorded conclusive effect in a third action under the rules of res judicata.[9]
As the Restatement explains, the policy considerations supporting res judicata are not strong when the party claiming it has taken an inconsistent position in intervening litigation.[10]
That is exactly what Continental did here. After urging the First Court to hold the federal courts had exclusive jurisdiction of Butler=s claims, Continental urged exactly the opposite when he filed them there. In accordance with the Restatement, I would hold that preclusive effect should be given only to the later rulingCthe federal court=s decision that Butler=s claims belonged in state court. Because the Court holds otherwise, I respectfully dissent.
/s/ Scott Brister
Chief Justice
Judgment rendered and Majority and Dissenting Opinions filed August 12, 2003.
Panel consists of Chief Justice Brister and Justices Edelman and Seymore.
[1] See Butler v. Cont=l Airlines, Inc., 31 S.W.3d 642 (Tex. App.CHouston [1st Dist.] 2000, pet. denied) (AButler I@).
[2] See Butler v. Cont=l Airlines, Inc., No. Civ.A. 01-2194, 2001 WL 1509545 (S.D. Tex. 2001) (AButler II@).
[3] Namely, breach of contract, breach of fiduciary duty, quantum meruit, estoppel, quasi-estoppel, and constructive trust.
[4] Butler I, 31 S.W.3d at 652.
[5] Butler II, 2001 WL 1509545 at *5.
[6] See 28 U.S.C. ' 1338(a).
[7] Butler I, 31 S.W.3d at 652 (citing T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.1964)).
[8] Butler II, 2001 WL 1509545 at *5 (citing Bassett v. Mashantucket Pequot Tribe, 204 F.3d 303, 353 (2d Cir.2000)).
[9] Restatement (Second) of Judgments ' 15 (1982).
[10] Id. cmt. b.