United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
September 5, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 07-40228
Summary Calendar
CARL CLAXTON,
Plaintiff-Appellant,
v.
C. LARRY YARBROUGH; ROGER STRIMPEL,
Defendants-Appellees.
Appeal from the United States District Court for the
Eastern District of Texas, Sherman
(4:06-CV-37)
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Carl Claxton appeals from an adverse summary
judgment dismissing his claim for breach of fiduciary duty and
shareholder oppression. Appellees Larry Yarbrough and Roger
Strimpel insist that the district court which adopted the
magistrate judge’s report and recommendation correctly dismissed
Claxton’s claims based on res judicata. We agree.
*
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this opinion should not be published and is not precedent except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.
Claxton had previously brought suit against Transcontinental
Management & Marketing Group, Inc. (“TMMG”), a Texas corporation in
which the parties to the case sub judice were 1/3 shareholders of
the stock of TMMG. TMMG filed a counterclaim based on a promissory
note signed by Claxton. Shortly before trial in state court,
Claxton non-suited his untimely asserted claim for minority
oppression. He did not non-suit his lawsuit, only his claim for
minority oppression. The state court proceeding resulted in a
judgment against Claxton as to his claims and in favor of TMMG on
its promissory note claim against Claxton. The claims docketed in
the state court lawsuit and the action sub judice are based on the
same nucleus of operative facts and could have been litigated in
the first state lawsuit and there is clearly privity between the
appellees herein and the defendant in the state suit, TMMG, which
was solely owned by the parties to this action.
We have reviewed the briefs and record and having considered
the arguments and authorities cited therein, we see no reason to
write further inasmuch as the magistrate’s report carefully and
correctly addresses the issues presented. Any additional writing
would be superfluous. Accordingly, we affirm the judgment of the
district court essentially for the same reasons set out in the
Report and Recommendation of the United States Magistrate dated
December 7, 2006.
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