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
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On Appeal from the 157th District Court
Harris County, Texas
Trial Court Cause No. 02-04660
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M A J O R I T Y O P I N I O N
Lonnie W. Butler, Jr., appeals the dismissal, for lack of subject matter jurisdiction, of his claims against Continental Airlines, Inc. (“Continental”). We affirm.
In a prior lawsuit (“Butler I”), Butler sued Continental for copying and using in its computer reservation system macros he created without compensating him. The First Court of Appeals ultimately affirmed the summary judgment in that case on Butler’s fraud claim and dismissed his remaining claims (for conversion, breach of fiduciary duty, breach of contract, unjust enrichment, constructive trust, misappropriation of trade secrets, estoppel/quasi-estoppel, and quantum meruit) for lack of subject matter jurisdiction because they were either preempted by, or arose under, the Federal Copyright Act (the “Act”).[1] See Butler v. Continental Airlines, Inc., 31 S.W.3d 642, 654 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).
Butler then filed suit in federal District Court (Butler II) for Continental’s unauthorized use of the macros. The federal court dismissed Butler’s claims for lack of subject matter jurisdiction, holding that some of the claims had been preempted and abolished by the Act and that those remaining did not “arise under” the Act. See Butler v. Continental Airlines, Inc., No. Civ.A. 01-2194, 2001 WL 1509545, at *3, 5 (S.D. Tex. 2001). Butler did not appeal this decision but instead filed the present state court action, again asserting the claims that the federal court had held did not arise under the Act. Continental filed a motion to dismiss on the ground that the trial court lacked jurisdiction over those claims in accordance with the decision in Butler I. The trial court granted this motion and dismissed the lawsuit with prejudice.
Butler’s sole issue on appeal contends that the trial court erred in dismissing this case on the grounds that: (1) the dismissal in Butler I has no res judicata effect because it was not a determination on the merits; and (2) for him to be deprived, through no fault of his own, of any hearing of the merits of his claims[2] violates his due process rights under the United States and Texas Constitutions and the Open Courts Provision[3] of the Texas Constitution, particularly where a federal court, as final arbiter of federal subject matter jurisdiction, determined, contrary to Butler I, that the state courts do have jurisdiction over his claims.
Although a dismissal for lack of subject matter jurisdiction does not preclude a party from litigating the merits of the same cause of action in a court of competent jurisdiction, it is res judicata as to the issue of whether the first court had jurisdiction.[4] Butler has cited no authority holding that the due process doctrine overrides the application of res judicata.[5] Therefore, he has provided us no basis to conclude that the trial court erred in dismissing this case. Accordingly, Butler’s sole issue is overruled, and the judgment of the trial court is affirmed.
/s/ Richard H. Edelman
Justice
Judgment rendered and Majority and Dissenting Opinions filed August 12, 2003.
Panel consists of Chief Justice Brister and Justices Edelman and Seymore. (Brister, C.J. dissenting.)
[1] See 17 U.S.C.A. §§ 101-1332 (West 1996 & Supp. 2003).
[2] See, e.g., Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) (noting that fundamental fairness dictates that a party be given a reasonable opportunity to be heard on the merits of his case). Butler does not contend that any of the claims he asserts in this case were not also asserted in Butler I.
[3] Because Butler has not cited and we have not found any portion of the trial court record at which he raised an open courts challenge in the trial court, and because he has also failed to support that contention on appeal with any authority or analysis, that challenge presents nothing for our review and is overruled.
[4] See, e.g., Magnus Elecs., Inc. v. La Republica Argentina, 830 F.2d 1396, 1400 (7th Cir. 1987); Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1348 (5th Cir. 1985); cf. Restatement (Second) of Judgments § 20 cmt. b, illus. 1 (1982) (noting that dismissal for improper venue does not bar an action on the claim in another district, but it is preclusive as to the determination that venue was improper in the initial action). The principles of res judicata apply even if the first judgment was erroneous, in which case the unsuccessful party’s remedy was to have it set aside in the original proceeding. See Restatement (Second) of Judgments § 17 cmt. d (1982). Because they were not asserted in Butler’s brief, we do not address the application of any exceptions to the doctrine of res judicata, such as based on changed circumstances or under sections 15 or 28(2) of the Restatement (Second) of Judgments, or the extent to which the federal court decision in Butler II became the “law of the case.”
[5] Nor could we necessarily determine from the record before us the extent to which any contradiction in the outcomes of the
First Court and federal District Court decisions were the result of contradictory rulings, the manner of presentation to the respective courts, or some combination of the two.