dissenting.
I respectfully dissent. Under the circumstances of this particular case, I must disa*348gree with the majority holding that Holmes may not avail himself of the doctrine of res judicata in order to preclude this action against him. I would hold that Holmes was in privity with The Corsicana National Bank.
There is no generally prevailing definition of privity; one who is in privity must be determined from the circumstances of each case. Benson v. Wanda Petroleum Co., 468 S.W.2d 361, 363 (Tex.1971); 46 Am.Jur.2d Judgments § 532 (1969). In his book concerning res judicata, Professor Vestal states that:
[T]he term ‘privity’ in itself does not state a reason for either including or excluding a person from the binding effect of a prior judgment, but rather it represents a legal conclusion that the relationship between the one who is a party on the record and the nonparty is sufficiently close to afford application of the principle of preclusion.
A. Vestal, Res Judicata/Preclusion V-302 (1969).
While agreeing that Holmes could have an independent legal capacity other than as an employee, the circumstances of this case dictate that the doctrine of res judicata be applied to bar this action against Holmes as well. There may be a technical distinction between Holmes’ position as an employee of the Bank and his position as trustee, but the cause of action and the relief sought are the same. As stated in Benson v. Wanda Petroleum, supra at 363, “privity connotes those who are in law so connected with a party to the judgment as to have an identity of interest that the party to the judgment represented the same legal right.” See also Hixon v. Kansas City, 361 Mo. 1211, 239 S.W.2d 341 (1951); 46 Am.Jur.2d Judgments § 532 (1969). Further, privity does not always depend upon whether the parties constitute independent legal entities. Cf. Lerner v. Los Angeles Board of Education, 59 Cal.2d 382, 29 Cal.Rptr. 657, 380 P.2d 97 (Cal.1963); Zaragosa v. Craven, 33 Cal.2d 315, 202 P.2d 73 (Cal.1949).
The deed of trust in this case was such that Holmes foreclosed upon the instructions of the secured party who was also his employer, The Corsicana National Bank. I do not feel that Holmes’ position as an employee under these circumstances is, as asserted by Hammonds, inconsequential in law to his trustee’s position and responsibilities. In the prior action, it was determined as against the Bank that there was no wrongful foreclosure. Holmes was not named as a party in that action. He was, however, quite clearly designated in the petition as an agent, servant, and employee of the Bank in furtherance of the Bank’s interest. Although Holmes was a trustee in a deed of trust, I feel that Holmes and The Corsicana National Bank were so closely connected in interest as employer-employee in the foreclosure action that the judgment for the Bank must also act in favor of Holmes. Therefore, I would hold that Holmes was in privity with his employer, The Corsicana National Bank, and a final judgment in favor of the Bank in the first action for wrongful foreclosure precludes a second suit against him based on the same cause of action. See Marange v. Marshall, 402 S.W.2d 236 (Tex.Civ.App.—Corpus Christi 1966, writ ref’d n. r. e.); Restatement (Second) of Judgments § 99 (Tent. Draft No. 3, 1976).
For the reasons stated above, I would affirm the judgments of the courts below.