concurring:
I write briefly to note my disagreement with the way that the panel majority has handled this case and with its mandate.
Wachovia filed a motion to dismiss this suit under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction. The motion asserted that the issue of the Texas courts’ jurisdiction over Wachovia had been resolved in an earlier suit between the same parties in a Texas court which was dismissed in June 1989 for lack of personal jurisdiction. The motion, was accompanied by an affidavit of Wachovia’s general manager to the effect that, in the two years since the Texas court had dismissed Deckert’s suit, Wachovia’s contacts and activities with the State of Texas had not materially changed. The district court granted the motion, holding that “the plaintiff is estopped from relit-igating the issue of personal jurisdiction, at least as of the date of the state court order, in this action.” The district court went on to rely, for information as to subsequent events, on the general manager’s affidavit and on the failure of Deckert to file a controverting affidavit. Having granted Wachovia’s motion to dismiss pursuant to *820Rule 12(b)(2), the district court entered a judgment dismissing the suit with prejudice.
All that Deckert seeks on appeal is a modification of the district court’s judgment so that the dismissal will be without prejudice, thereby enabling her to proceed in North Carolina. Deckert is entitled to that, and Wachovia’s 12(b)(2) motion concluded by saying that “if Plaintiff wishes to sue Student Financial, she has that right, only she must do so in North Carolina.” In short, all are agreed (or, at least, all were agreed) as to what should be done here.
The district court’s opinion contained, in one sentence, some unfortunate confusion, extant in the Texas cases as well, over the issues of res judicata and collateral estop-pel, or claim preclusion and issue preclusion, under the circumstances that obtain here. Wachovia tries to turn that confusion to its advantage and argues, for the first time on appeal, that principles of res judicata support the dismissal of Deckert’s claim on the merits. The panel opinion tees up the issue on appeal as “whether the district court properly gave res judicata effect to the Texas state court’s dismissal for lack of personal jurisdiction,” but goes on to decide the case on a collateral estop-pel basis without distinguishing or even citing the Texas case that formed the basis for the district court’s confusion.
Rather than modify the district court’s judgment, and as so modified, affirm it, the panel perpetuates the confusion by affirming the flawed judgment and disposes of the flaw in a footnote by saying that our affirmance should not be construed to prevent Deckert from pursuing her claim in the appropriate forum. I hope and trust that it will not be so construed, but there was a shorter, simpler way to get there.