(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that rule, the court has determined that this
opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 94-11102
_______________
HOFFMAN CONTROLS CORPORATION,
Plaintiff-Appellant,
VERSUS
BURGESS-SAIA, INC., et al.,
Defendants,
BURGESS-SAIA, INC., et al.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:92 CV 2122 R)
_________________________
October 2, 1995
Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Hoffman Controls, Inc. ("Hoffman"), appeals a summary judgment
in favor of Burgess-SAIA, Inc., and Landis & Gyr, Inc. Finding
Hoffman's claims barred by res judicata, we affirm.

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I.
Hoffman manufactures heating, ventilating, and air
conditioning devices. Two of its products, the 201-5A and 201-7A
actuators, require specialized gearbox assemblies. In 1983, Landis
began supplying Hoffman with two specialized gearbox assemblies
manufactured by Burgess. The two assemblies were the Ba gearbox,
which Hoffman used in the 201-5A actuator, and the F gearbox, which
Hoffman used in the 201-7A actuator. In 1987, Burgess merged with
SAIA and replaced Landis as Hoffman's supplier.
Beginning in 1989, Hoffman's customers began to return an
increasing number of failed 201-5A actuators. Hoffman blamed the
failures on the inability of the Ba gearboxes to stall continuously
without failure, a feature Hoffman required in its agreement with
Landis and Burgess. Hoffman filed a claim in state court against
Burgess seeking damages for the faulty gearboxes, alleging they
were defective. Hoffman did not specify whether the defective
models belonged to the Ba or F series.
Burgess retorted with a counterclaim for payment on a 1990
invoice for 500 F series gearboxes. In response to the
counterclaim, Hoffman raised affirmative defenses of breach of
warranty and breach of contract resulting from the defective
gearboxes.
At trial, Hoffman dismissed its original claim without
prejudice. It failed to submit a sworn denial to the counterclaim
and was therefore barred by Texas law from raising its affirmative
defenses. Burgess prevailed on the counterclaim.

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Subsequently, Hoffman filed this claim in federal court
against both Landis and Burgess, alleging only that the
Ba gearboxes were defective. The district court granted summary
judgment on the ground that the state court action was res judicata
with respect to this claim. We reversed ("Hoffman I"), instructing
the district court to take a closer look at the facts to determine
whether the two claims arose from the same transaction or
occurrence under the standard of Barr v. Resolution Trust Corp.,
837 S.W.2d 627 (Tex. 1992). On remand, the district court applied
our instructions and granted summary judgment for the defendants.
II.
The question before us is the narrow one of whether the state
court counterclaim and this claim involve the same transaction
under the Barr standard. Hoffman I resolved most of the issues in
this case and remanded solely for application of Barr. We
therefore need consider only those arguments that address the
application of the Barr test. Applying de novo review, Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992), we affirm.
In Barr, the court adopted the transactional approach to
claims preclusion set forth in the Restatement of Judgments. Under
that approach, the determination that two claims arise from the
same transaction "is to be made pragmatically, 'giving weight to
such considerations as whether the facts are related in time,
space, origin, or motivation, whether they form a convenient trial

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unit, and whether their treatment as a trial unit conforms to the
parties' expectations or business understanding or usage.'" Barr,
837 S.W.2d at 631 (quoting from RESTATEMENT OF JUDGMENTS § 24(2)).
Under Barr, this claim and Burgess's state court counterclaim
do involve the same transaction. It is true that the counterclaim
involved only F gearboxes, while this action involves only
Ba gearboxes. Hoffman's purchase of F gearboxes, however, was
closely related to its purchase of Ba gearboxes: Hoffman
negotiated to purchase both types of gearboxes at the same time.
Though technically different, the gearboxes performed
substantially the same function. The parties treated both
gearboxes as a single product throughout their relationship;
Hoffman treated both as a single product in the state court
litigation by failing to distinguish them in its complaint. We
conclude that res judicata bars Hoffman's action because it
involves the same transaction as the state court counterclaim.
Hoffman contends that even if res judicata bars its suit
against Burgess, it may still maintain an action against Landis,
which was not a party to the state court suit. The district court
nonetheless found that Landis could benefit from the claim-
preclusive effect of Burgess's counterclaim because it was in
privity with Burgess. Hoffman did not contest Landis's claim of
privity in the district court and therefore cannot raise this issue
on appeal. See Noritake Co. v. M/V Hellenic Champion, 627
F.2d 724, 732 (5th Cir. 1980) (holding that appellate court will
not consider issue not raised in trial court); Bliss v. Equitable

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Life Assurance Soc'y, 620 F.2d 65, 70 (5th Cir. 1980); Excavation
& Erectors, Inc. v. Bullard Eng'rs, Inc., 489 F.2d 318, 320 (5th
Cir. 1973) (same).
Hoffman contends that it had no duty to contest Landis's
privity argument because that argument was "immaterial and
irrelevant to any issue raised in [Landis's] Motion for Summary
Judgment." Hoffman, however, points to no legal authority holding
that a party may choose to ignore an argument it deems "immaterial
and irrelevant" without waiving its right to contest the issue
later. Even if Hoffman's position were correct, Landis's privity
was a material and relevant issue, as it is only through privity
that Landis could benefit from the state court judgment. We
therefore conclude that the state court action precludes Hoffman
from maintaining a claim against either Landis or Burgess.
AFFIRMED.

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