Dissenting.
I disagree with the majority opinion that the Engstroms’ claim for negligence is collaterally estopped by the decisions in Engstrom v. First Nat’l Bank, No. H-91-2392 (S.D.Tex. Aug. 31, 1993), aff'd, 47 F.3d 1459 (5th Cir.), cert. denied, - U.S. -, 116 S.Ct. 75, 133 L.Ed.2d 35 (1995). The Fifth Circuit opinion in that case states:
In his deposition, John Engstrom testified that before he left he arranged with Clip-son and Wegenhoft to sell some of his equipment at private sale to pay some of the debt. He also testified that he told Clipson and Wegenhoft that his property was not to be sold at auction.
In his deposition, Wegenhoft testified ... that it was his understanding that Eng-strom had given his permission to Clipson to sell the equipment at auction.
Although Engstrom produced evidence that First National acquiesced in the sale of the equipment, ... First National is not hable under the Relief Act for selling the equipment for several reasons. First, ... First National thought that Chpson had Engstrom’s permission to sell the equipment. ... Second, Engstrom submitted no summary judgment evidence inferring that Chpson was an agent of the bank, which could impute Chpson’s action to the bank, when the equipment was sold. Third, we have found no authority indicating that First National’s acquiescence to Chpson’s sale of the equipment ... makes it hable under the Relief Act.
[AJssuming arguendo that Chpson did not [actually] have the authority to sell the equipment at auction, such lack of authority would only give Engstrom a potential action against Chpson.... Engstrom’s proof fails to establish liability of First National under the Relief Act.
Id. at 1463-64 (emphasis added). The foregoing demonstrates clearly that the Fifth Circuit’s decision (a) was confined to the claim against the bank under the Rehef Act, and (b) did not purport to decide whether Chpson actually had authority to sell the equipment at auction. It simply acknowledged that the Bank’s evidence that Wegen-hoft thought, i.e., correctly or incorrectly, that Chpson had such authority was a factor showing that the Bank was not liable under the Rehef Act.
I have seen nothing to indicate that any of the courts was presented the issues whether, in hght of John Engstrom’s alleged instruction to the Bank that his property not be sold at auction, the Bank (1) owed him any duty of reasonable care not to release his property for auction without his express consent, (2) actually exercised reasonable care in releasing the property, or (3) proximately caused the Engstroms damage if it failed to exercise such care. In concluding that the Fifth Circuit opinion negates the causation element of *447the Engstroms’ negligence claim, the majority opinion states:
If the Bank was not liable under the Relief Act, then there was no proof of its participation in any manner in the sale of appellant’s property.... In short, the finding of the federal court is to the effect that the Bank engaged in no wrong-doing in connection with the sale of appellant’s property-
Maj. op. at 444. In addition to disagreeing that either of these conclusions can be drawn from the federal court opinions, I do not see how those opinions can otherwise be read to address any issue affecting the Engstroms’ negligence claim. Because the federal opinions do not, therefore, collaterally estop that claim, I would reverse the judgment of the trial court in part and remand the case for further proceedings on that issue.