Mowbray v. Cameron County, TX

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No 00-40504
_______________
FREDA SUSAN MOWBRAY, ALSO KNOWN AS SUSIE MOWBRAY,
Plaintiff-Appellant,
VERSUS
CAMERON COUNTY, TEXAS; BENJAMIN EURESTI, JUDGE; EDMUND CYGANIEWICZ;
LUIS V. SAENZ; MENTFORD HESSKEW, “DUSTY”; GEORGE GAVITO; STEVE ROBERT-
SON; ESTELLA MAURICIO; JEAN MOWBRAY; JAMES MOWBRAY;
MARGO MOWBRAY; AND KRISTEN MOWBRAY,
Defendants-Appellees.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

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_______________
No 00-41229
_______________
FREDA SUSAN MOWBRAY, ALSO KNOWN AS SUSIE MOWBRAY,
Plaintiff-Appellee,
VERSUS
TEXAS CAMERON COUNTY; ET AL,
Defendants,
GEORGE GAVITO,
Defendant-Appellant.
_________________________
Appeals from the United States District Court
for the Southern District of Texas
_________________________
December 6, 2001
Before JONES, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
After Fredda “Susan” Mowbray (“Mow-
bray”) had served nine years in prison for her
husband’s murder, her conviction was set
aside, whereupon, under 42 U.S.C. § 1983 and
state law, she sued the county that had jailed
her and the three prosecutors, three police of-
ficers, and the county lab technician who had
participated in her trial; she also sued her hus-
band’s heirs to regain the proceeds from his
life insurance policy. The district court dis-
missed all of Mowbray’s claims but one,
against Officer George Gavito.
Mowbray appeals several FED. R. CIV. P.
12(b)(6) dismissals and a summary judgment
based on prosecutorial immunity, absolute
witness immunity, and qualified immunity, and
a dismissal based on res judicata. Gavito
appeals a denial of summary judgment based
on qualified immunity. We affirm the dismis-
sals and summary judgment that Mowbray

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challenges, but we reverse the denial of sum-
mary judgment to Gavito and render judgment
for him.
I.
One night in September 1987, Mowbray
was lying in bed with her husband, Bill Mow-
bray, when he was shot. Mowbray claimed
that her husband had committed suicide; at
least twice before, he had attempted suicide,
once by shooting himself. Bill Mowbray’s car
dealership was on the brink of failure, and
apparently he had vowed to kill himself rather
than face jail for tax evasion or commercial
fraud.
Estelle Mauricio, a reserve deputy sheriff,
was the first to arrive at the residence after the
shooting. She testified that she found the de-
ceased still alive, shot through the head, and
lying on his left side with the bed covers pulled
up to his shoulder. The bullet had entered the
right side of his head, exited the left, and
wounded his left hand, which was under his
head with a pillow between his head and left
hand. His right hand was lying across his chest
under the bed covers. No blood or brain mat-
ter was on his right hand, and Mauricio never
saw his hand being washed at home or in the
hospital. Lieutenant George Gavito of the
Cameron County Sheriff’s Department also
was present at the scene.
Dr. Dahm, who conducted the autopsy,
stated that if the deceased had shot himself,
there would have been blood and brain matter
covering his right hand, fingers, and forearm.
Finding no blood, Dahm concluded that the
death was a murder.
Mowbray was considered a suspect. In ear-
ly October 1987, Steve Robertson, a lab tech-
nician at the Texas Department of Public Safe-
ty (“DPS”), met with police officer Mentford
“Dusky” Hesskew to discuss the theory that
Mowbray had killed her husband. Hesskew
was principally employed by the Austin Police
Department but also taught classes at the DPS
Academy on high impact spatter. Hesskew
performed a luminol test on the nightgown
Mowbray wore that night to detect the pres-
ence of blood. Because luminol reacts to
substances other than blood, luminol tests are
only presumptive in nature.
On November 3, 1987, Robertson and
Hesskew met with prosecutors Benjamin Eu-
resti and Edmund Cyganiewicz and reported
that the nightgown had tested positive for
blood. On November 9, Robertson conducted
two confirmatory blood tests on the night-
gown, both of which were negative. At the
habeas corpus proceedings, he explained that
the negative results could have resulted from
the excessive testing the nightgown had al-
ready undergone. The tests for the gunshot
residue could have destroyed the protein in the
blood, and the chemicals sprayed to detect
lead residue could have diffused or dissolved
the red stains. Robertson never reported these
negative results to the district attorneys, Hess-
kew, or Mowbray’s defense counsel.
The prosecution asked Herbert MacDon-
nell, an expert on blood spatter, to examine
Mowbray’s nightgown. On November 18,
MacDonnell told Euresti and Cyganiewicz that
he had found no indication of blood stains or
high velocity impact spatter of the sort that
would have been present had Mowbray shot
her husband while wearing a nightgown. He
concluded that if Mowbray had shot her hus-
band, she was not wearing a nightgown at the
time.
Cyganiewicz, Euresti, Gavito, Mauricio,

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and assistant district attorney Luis Saenz pre-
pared a “mock-up” of the shooting scene. The
mock-up did not alter MacDonnell’s conclu-
sions that he had listed in his report. On De-
cember 2, 1987, MacDonnell discussed his re-
port with Gavito and stated that he thought
Mowbray had shot her husband while she was
naked. The only record of MacDonnell’s
statement comes from Gavito’s deposition tes-
timony. MacDonnell’s report was made avail-
able to Mowbray’s defense counsel ten days to
two weeks before trial.
On December 4, 1987, Mowbray was in-
dicted for murder. At trial, the prosecution of-
fered Hesskew’s and Robertson’s testimony
that blood was found on the nightgown; nei-
ther side called MacDonnell. Mowbray was
convicted and sentenced to life imprisonment.
After her petition for writ of habeas corpus
was granted and the conviction was set aside,
see Ex Parte Mowbray, 943 S.W.2d 461 (Tex.
Crim. App. 1996), she was acquitted at a
second trial.
II.
Mowbray sued Cameron County, three pro-
secutors, three police officers, and a county lab
technician, alleging conspiracy to violate her
civil rights, false imprisonment, malicious pro-
secution, abuse of process, slander, and inten-
tional infliction of emotional distress. She also
sued Jeanne, James, and Margo Mowbray to
regain the proceeds of her husband’s life in-
surance policy.
III.
We review a rule 12(b)(6)1 dismissal de
novo, accepting all well-pleaded facts as true.
Questions of fact are viewed in the light most
favorable to the plaintiff; questions of law are
reviewed de novo. Green v. State Bar of Tex.,
27 F.3d 1083, 1086 (5th Cir. 1994).
Mowbray argues that the district court
erred in extending absolute immunity to Eures-
ti, Cyganiewicz, and Saenz, whom she accuses
of “shopping for experts,” “laboring to sell
these experts on their theory,” and “rejecting
the leading authority in the field . . . and in-
stead selecting an expert who perpetrated junk
science.” Mowbray also complains that the
prosecutors did not turn over exculpatory evi-
dence to the defense until ten days before trial.
Under § 1983, prosecutors are entitled to
absolute immunity for acts performed as ad-
vocates of the state. Imbler v. Pachtman, 424
U.S. 409, 430-31 & n.33 (1976). For “acts of
investigation or ‘administration,’” prosecutors
are entitled to only qualified immunity. Buck-
ley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
Absolute immunity extends to a prosecutor’s
actions “‘preliminary to the initiation of a pro-
secution and . . . apart from the courtroom.’”
Id. at 272 (quoting Imbler, 424 U.S. at 431
n.33). This includes a prosecutor’s decision
on “which witnesses to call and what other
evidence to present,” Imbler, 424 U.S. at 431
n.33, and “an out-of-court ‘effort to control
the presentation of [a] witness’ testimony,’”
Buckley, 509 U.S. at 272-73 (quoting Imbler,
424 U.S. at 430 n.32) (alteration in original).
All the acts Mowbray lists involve the pro-
secutors’ choosing expert witnesses, preparing
those witnesses for trial, and performing the
state’s trial duties. Because these acts fall un-
der the protection of absolute immunity, the
district court did not err in dismissing suit as to
them. 1 Rule 12(b)(6) authorizes a court to dismiss a
complaint for “failure to state a claim upon which
relief can be granted.” FED. R. CIV. P. 12(b)(6).

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IV.
Although Mowbray argues that the court
erred in failing to address her slander claim un-
der § 1983, she has not alleged facts sufficient
to state a claim. She asserts that after meeting
with MacDonnell, Euresti opined that “he was
now confident that he could get an indict-
ment.” Mowbray never avers that this com-
ment (or any other) deprived her of a con-
stitutional or other federal right; she states on-
ly that she “was publicly humiliated and sub-
jected to scorn and ridicule during the investi-
gative phase of the prosecution” and that she
was “put through an emotionally damaging
trial.” Such allegations do not state a claim
under § 1983.
V.
Mowbray contends that the court erred in
dismissing her § 1983 claims against Hesskew
and Robertson for conspiracy to commit per-
jury and violation of a duty under Brady v.
Maryland, 373 U.S. 83 (1963), to disclose ex-
culpatory evidence. Although witnesses are
entitled to absolute immunity against § 1983
suits based on their testimony in a criminal
trial, Briscoe v. LaHue, 460 U.S. 325, 329-31
(1983), it is less certain whether the rule of
Briscoe extends to claims that a witness en-
tered a pre-trial conspiracy to commit perjury.
Of the eight circuits that have addressed the
issue, seven have extended absolute witness
immunity.2 The Second Circuit stands alone in
reaching a contrary conclusion.3
We find the reasoning of the majority of cir-
cuits persuasive. As a matter of logic, “[a] per-
son may not be prosecuted for conspiring to
commit an act that he may perform with impu-
nity.” House, 956 F.2d at 720. Hesskew and
Robertson cannot be liable under § 1983 for
conspiracy to commit perjury where § 1983
grants them absolute immunity for that act.4
Moreover, allowing such conspiracy suits
would permit most §1983 perjury suits to be
restyled as § 1983 claims for conspiracy to
commit perjury, because “a witness rarely pre-
pares her testimony on her own.” Franklin,
201 F.3d at 1101-02. Accordingly, we con-
clude that absolute witness immunity bars
§ 1983 suits for conspiracy to commit perjury.
Mowbray’s second claim, that Hesskew and
Robertson violated their duties under Brady
when they failed to furnish exculpatory Brady
2 Franklin v. Terr, 201 F.3d 1098, 1101-03
(9th Cir. 2000); Jones v. Cannon, 174 F.3d 1271,
1288-89 (11th Cir. 1999); Watterson v. Page, 987
F.2d 1, 9 (1st Cir. 1993); Snelling v. Westhoff, 972
F.2d 199, 200 (8th Cir. 1992); House v. Belford,
956 F.2d 711, 720-21 (7th Cir. 1992); Miller v.
Glanz, 948 F.2d 1562, 1569 (10th Cir. 1991);
(continued...)
2(...continued)
Alioto v. City of Shively, 835 F.2d 1173, 1174 (6th
Cir. 1987).
3 San Filippo v. U.S. Trust Co., 737 F.2d 246,
254-55 (2d Cir. 1984).
4 Cf. Hale v. Townley, 45 F.3d 914, 920-21
(5th Cir. 1995) (finding that where each state ac-
tion alleged to have harmed the plaintiff is pro-
tected by qualified immunity, there can be no
§ 1983 suit for conspiracy to violate plaintiff’s
constitutional rights); Holloway v Walker, 765
F.2d 517, 522 (5th Cir. 1985) (“It is a well estab-
lished rule that where a judge's absolute immunity
would protect him from liability for the perfor-
mance of particular acts, mere allegations that he
performed those acts pursuant to a bribe or con-
spiracy will not be sufficient to avoid the immu-
nity.”).

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material to Mowbray’s defense counsel, is
without merit. Brady imposes a duty on
prosecutors to share exculpatory evidence
with the defense. Mowbray cites, and our re-
search reveals, no case extending Brady to
police officers or lab technicians.5 Accord-
ingly, Mowbray has failed to allege an action-
able claim against Hesskew or Robertson.
VI.
Mowbray argues that the district court
erred in dismissing her § 1983 claim against
James Mowbray for conspiracy to violate her
civil rights. While it is possible, in limited cir-
cumstances, to allege a § 1983 conspiracy
against a private actor, Brummett v. Camble,
946 F.2d 1178, 1184-85 (5th Cir. 1991),
Mowbray fails to do so. Her complaint con-
sists almost entirely of conclusional allega-
tions. The only facts she provides are that
James Mowbray met with the police, answered
their questions, and took an interest in the
investigation of his brother’s death; these do
not state a claim under § 1983.
VII.
Mowbray challenges the dismissal of her
§ 1983 claims against Cameron County. She
first argues that the county is liable for the un-
constitutional acts of its final policymakers.
Although Turner v. Upton County, 915 F.2d
133 (5th Cir. 1990), does allow such suits,
Mowbray has alleged constitutional depriva-
tions only against Euresti, Cyganiewicz,
Saenz, Hesskew, Gavito, Robertson, and
MauricioSSprosecutors, lower level police
officers, and a lab technician.
The sheriff is the county’s final policymaker
in this context. Id. at 136. The district attor-
ney, “when acting in the prosecutorial capacity
[or] instituting criminal proceedings to enforce
state law,” is not. Esteves v. Brock, 106 F.3d
674, 678 (5th Cir. 1997). Mowbray has al-
leged no constitutional deprivation against the
county sheriff, and her allegations against the
prosecutors involve only actions as state
officers; accordingly, the district court did not
err in dismissing her Turner claim.
Mowbray also argues that the county is lia-
ble for the unconstitutional acts of its officers
because it failed to train them on their Brady
duties. See City of Canton v. Harris, 489 U.S.
378 (1989). Because Euresti, Cyganiewicz,
and Saenz are state officers, the county cannot
be liable for a failure to train them. For Hess-
kew, Gavito, Robertson, and Mauricio, Mow-
bray fails to allege a constitutional deprivation
and thus fails to state a claim under § 1983.
As discussed supra, neither police officers nor
lab technicians have a Brady duty to disclose
exculpatory information.
VIII.
We review a grant or denial of summary
judgment de novo, NCNB Tex. Nat’l Bank v.
Johnson, 11 F.3d 1260, 1264 (5th Cir. 1994),
applying the same standard as did the district
court, Deas v. River W., L.P., 152 F.3d 471,
475 (5th Cir. 1998). “Summary judgment is
proper when no issue of material fact exists
and the moving party is entitled to judgment as
a matter of law. Questions of fact are viewed
in the light most favorable to the nonmovant
and questions of law are reviewed de novo.”
Id.
5 Mowbray does not allege, nor do the facts
support a finding, that Hesskew and Robertson
elicited false evidence and deliberately concealed
exculpatory evidence from all parties, including the
prosecution. Cf. Geter v. Fortenberry, 849 F.2d
1550, 1558 (5th Cir. 1988) (concluding such
allegations defeat a police officer’s qualified
immunity under § 1983).

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Mowbray argues that the court erred in
granting summary judgment for Mauricio on
the § 1983 claims that Mauricio fabricated trial
testimony and failed to disclose exculpatory
evidence. Absolute witness immunity insulates
Mauricio from the § 1983 perjury claim, so the
district court was correct to dismiss it under
rule 12(b)(6). Briscoe, 460 U.S. at 329-31.
For the failure to disclose claim, Mowbray
provides only conclusional allegations. Her
brief concedes that there is no factual basis for
her claim and that she has only suspicion that
Mauricio knew of exculpatory evidence. Mau-
ricio, on the other hand, submitted an affidavit
attesting that she knew of no exculpatory evi-
dence. Consequently, the court did not err in
granting summary judgment for Mauricio.6
IX.
A.
Gavito contends that the court erred in de-
nying his motion for summary judgment on
qualified immunity grounds. As an initial mat-
ter, we must verify our jurisdiction over this
appeal. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987).
“[D]istrict court orders denying summary
judgment on the basis of qualified immunity
are immediately appealable under the collateral
order doctrine, when based on an issue of
law.” Cantu v. Rocha, 77 F.3d 795, 802 (5th
Cir. 1996). Orders “are based on an issue of
law when they concern only application of es-
tablished legal principles, such as whether an
official’s conduct was objectively reasonable in
light of clearly established law, to a given . .
. set of facts.” Id. (citing Johnson v. Jones,
515 U.S. 304 (1995)).
Mowbray and Gavito rely on the same rec-
ord in their briefs; the only dispute is whether
the district court correctly applied the law of
qualified immunity to these facts. We thus
conclude we have jurisdiction to hear this
appeal.
B.
Mowbray alleges a § 1983 claim for con-
spiracy to violate her civil rights, based on
(1) failure to disclose exculpatory evidence to
Mowbray’s defense counsel; (2) manufacture
of false evidence; and (3) suppression of evi-
dence. Before we can reach the § 1983 con-
spiracy claim, we must determine whether
qualified immunity applies to each state claim.
Hale v. Townley, 45 F.3d 914, 920-21 (5th
Cir. 1995). If all three acts fall under qualified
immunity, there can be no § 1983 conspiracy
claim. Id.
As a police officer, Gavito enjoys qualified
immunity for his official acts. Harlow v. Fitz-
gerald, 457 U.S. 800, 818 (1982). To over-
come qualified immunity, Mowbray must show
Gavito (1) violated a constitutional right that
(2) was clearly established at the time of the
violation (3) through conduct that was ob-
jectively unreasonable. Kipps v. Caillier, 197
F.3d 765, 768 (5th Cir. 1999), cert. denied,
121 S. Ct. 52 (2000).
Mowbray claims that Gavito had a Brady
duty to tell defense counsel about his lunch
meeting with MacDonnell at which Mac-
Donnell stated he believed Mowbray had shot
her husband while not wearing a nightgown.
As we have said, even if MacDonnell’s state-
6 Further, as discussed supra, police officers
have no duty under Brady to disclose exculpatory
evidence to defense counsel. Even had Mowbray
alleged facts showing that Mauricio withheld evi-
dence, Mowbray’s claim would fail as matter of
law.

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ment were exculpatory, police officers have no
constitutional duty under Brady to disclose
exculpatory evidence to defense counsel. For
her assertion that Gavito manufactured false
evidence and suppressed evidence, Mowbray
provides only conclusional allegations.
Even under a generous reading of Mow-
bray’s complaint and brief, the only possible
factual basis she alleges is that Gavito partici-
pated in a “mock-up” of the crime scene and
arrested her pursuant to a warrant. But Mow-
bray provides no evidence that Gavito acted
improperly in the mock-up or that there were
any constitutional defects in her arrest. She
has not shown Gavito violated any constitu-
tional right, much less one clearly established
at the time of her prosecution. Therefore,
Gavito is entitled to qualified immunity for his
actions, and the § 1983 conspiracy claim based
on them must fail.
Mowbray also lists a host of state law
claims for abuse of process, malicious prose-
cution, false imprisonment, and intentional
infliction of emotional distress. The state law
claims, like her § 1983 claim, consist mainly of
conclusional allegations.7 Mowbray complains
that Gavito investigated the crime, participated
in a mock-up of the crime scene, arrested her,
and failed to disclose exculpatory evidence to
her defense counsel.
Police officers are entitled to official immu-
nity from suits arising out of performance of
(1) discretionary duties (2) in good faith as
long as they are (3) acting within their author-
ity. City of Lancaster v. Chambers, 883
S.W.2d 650, 653 (Tex. 1994). The defendant
claiming official immunity bears the burden of
proving all elements of the defense. Id. Under
Texas law, an officer’s investigation of a
crime, Wyse v. Dep’t of Pub. Safety, 733
S.W.2d 224, 227 (Tex. App.SSWaco 1986,
writ ref’d n.r.e.), and arrest of a suspect, Dent
v. City of Dallas, 729 S.W.2d 114, 117 (Tex.
App.SSDallas 1986, writ ref’d n.r.e.), are con-
sidered discretionary duties within police au-
thority. Gavito thus satisfies the first and third
criteria for official immunity.
Texas law judges an officer’s good faith
under the same test federal courts employ for
qualified immunity determinations under
§ 1983. City of Lancaster, 883 S.W.2d at
656. Texas courts “look to whether a reason-
able official could have believed his or her
conduct to be lawful in light of clearly estab-
lished law and the information possessed by
the official at the time the conduct occurred.”
Id. (internal quotation marks and citations
omitted). Like qualified immunity, official im-
munity “protects all but the plainly incompe-
tent or those who knowingly violate the law.”
Id. (internal quotation marks and citations
omitted).
As we have stated, there is no evidence that
Gavito did anything illegal in investigating the
crime, participating in the mock-up, arresting
Mowbray, or failing to disclose MacDonnell’s
statements to defense counsel. Gavito’s ac-
tions thus are immune from state suit because
of official immunity. Because all of Mow-
bray’s claims against Gavito fail as a matter of
law, the district court erred in denying Gavito
summary judgment.
X.
After Mowbray was convicted, the pro-
ceeds from her husband’s life insurance policy
7 Because the state law claims arise out of the
same set of operative facts as do the federal claims,
we have supplemental jurisdiction to hear them. 28
U.S.C. § 1367.

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were divested from her and awarded to the
deceased’s mother. Mowbray v. Metro. Life
Ins. Co., Civ. Ac. No. B-88-107 (S.D. Tex.
Apr. 24, 1991). Two years after her con-
viction was set aside, Mowbray filed a motion
in federal court requesting that the 1991 judg-
ment be vacated, that Jeanne Mowbray repay
her the life insurance money, and that the court
“impose a constructive trust in said moneys so
received.” The court set aside the 1991 judg-
ment but denied “all further relief prayed for.”
Mowbray v. Metro. Life Ins. Co., Civ. Ac. No.
B-88-107 (S.D. Tex. May 24, 1999).
Mowbray did not appeal the denial of her
constructive trust claim. In 1999, she filed her
first amended complaint in the instant case, su-
ing James and Margo Mowbray, Jeanne Mow-
bray’s heirs, to impose a constructive trust on
the insurance proceeds. The defendants
moved to dismiss based on res judicata. The
court denied the motion because there was no
certified copy of the judgment in the record.
Defendants filed a second motion to dismiss,
omitting mention of res judicata because the
district court had stated it would not consider
such a motion. The court granted the motion,
raising the issue of res judicata sua sponte.
We review a dismissal based on res judicata
de novo. Recoveredge L.P. v. Pentecost, 44
F.3d 1284, 1290 (5th Cir. 1995). We apply
federal law to determine the preclusive effect
of a federal judgment, even if that judgment
was based on state law. Id.
A.
Generally, res judicata is an affirmative de-
fense that must be pleaded, not raised sua
sponte. FED. R. CIV. P. 8(c). We recognize
two limited exceptions to this rule; both apply
here. The first exception allows “[d]ismissal
by the court sua sponte on res judicata
grounds . . . in the interest of judicial economy
where both actions were brought before the
same court.” Boone v. Kurtz, 617 F.2d 435.
436 (5th Cir. 1980); accord United Home
Rentals, Inc. v. Tex. Real Estate Comm’n, 716
F.2d 324, 330 (5th Cir. 1983). Both actions
were brought in the same federal district court.
Further, like the judgments in Boone, the ac-
tions are “almost identical,” differing only in
the defendants’ names. The parties do not dis-
pute the facts, so remanding would add noth-
ing to the record and would only consume
judicial resources.
The second exception holds that “where all
of the relevant facts are contained in the re-
cord before us and all are uncontroverted, we
may not ignore their legal effect, nor may we
decline to consider the application of control-
ling rules of law to dispositive facts, simply be-
cause neither party has seen fit to invite our at-
tention by technically correct and exact plead-
ings.” Am. Furniture Co. v. Int’l Accom-
modations Supply, 721 F.2d 478, 482 (5th Cir.
Unit A Mar. 1981). Here the facts are uncon-
tested and the legal outcome unambiguous.
Reversal would not lead to a different out-
come.
Additionally, the usual concerns preventing
a court from raising res judicata sua sponte do
not apply. Mowbray “can claim no surprise or
prejudice.” Id. She certainly had notice of the
prior judgment; she had litigated it just a few
months earlier. Nor has she been denied “‘the
chance to argue . . . why the imposition of an
estoppel would be inappropriate.’” Id. (quot-
ing Blonder-Tongue Labs. v. Univ. Found.,
402 U.S. 313, 350 (1971)). James and Margo
Mowbray had filed an earlier motion to dismiss
based on res judicata, which Mowbray had
ample opportunity to answer.

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B.
Thus concluding that the district court did
not err in raising the issue, we address it on the
merits. In American Furniture, we set forth
the requirements for a res judicata defense:
“(1) that the prior judgment must have
been rendered by a court of competent
jurisdiction; (2) that there must have
been a final judgment on the merits;
(3) that the parties, or those in privity
with them, must be identical in both
suits; and (4) that the same cause of
action must be involved in both suits.”
Id. (quoting Stevenson v. Int’l Paper Co., 516
F.2d 103, 108-09 (5th Cir. 1975)).
It is indisputable that all four requirements
are satisfied. The 1999 judgment decided the
issue, so the district court did not err in dis-
missing the claim.
In summary, the dismissals and summary
judgment entered against Mowbray are
AFFIRMED, and the denial of summary
judgment in favor of Gavito is REVERSED,
and judgment is RENDERED for him. All
outstanding motions are denied.

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