Tanox, Inc., Formerly Tanox Biosystems, Inc. (Tanox) v. Akin, Gump, Strauss, Hauer & Feld, L.L.P, Robinson Law Firm, Williams, Birnberg & Andersen, L.L.P., Michael J. Madigan, Michael J. Mueller, Kenneth M. Robinson and Gerald M. Birnberg--Appeal from 11th District Court of Harris County

Affirmed; Opinion of August 27, 2002, Withdrawn; and Opinion on Rehearing and Concurring and Dissenting Opinions on Rehearing

Affirmed; Opinion of August 27, 2002, Withdrawn; and Opinion on Rehearing and Concurring and Dissenting Opinions on Rehearing filed April 24, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-00-00765-CV

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TANOX, INC. f/k/a TANOX BIOSYSTEMS, INC., Appellant

V.

AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P., ROBINSON LAW FIRM, WILLIAMS, BIRNBERG & ANDERSEN, L.L.P., MICHAEL J. MADIGAN, MICHAEL J. MUELLER, KENNETH M. ROBINSON, and

GERALD M. BIRNBERG Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 97-55960

DISSENTING OPINION TO THE GRANTING OF REHEARING

Originally, we sustained Tanox=s claims that the trial court erred in granting summary judgment in favor of the Individual Lawyers on the affirmative defenses of res judicata and collateral estoppel. On rehearing, a majority of the panel concludes we erred in so holding. Because I do not agree, I respectfully dissent to the granting of rehearing.

Subsequent to its February 16, 2000 amended interlocutory order confirming the arbitration award, the trial court, on March 28, 2000, the trial court granted summary judgment in favor of the Individual Lawyers based on res judicata and collateral estoppel and entered a final judgment.

I agree that an arbitration award that has been confirmed by the trial court ordinarily has a preclusive effect as to parties in subsequent proceedings. The discrete issue in this case is the trial court=s interlocutory order confirming the arbitration award and the order granting summary judgment in favor of the Individual Lawyers were in the same trial court proceeding. The majority proposes that the arbitration proceeding and Tanox s motion to vacate, which was in effect an appeal of the final arbitration award, were part of a proceeding separate from the proceeding in which the claims against the Individual Lawyers were heard.

I disagree. The arbitration award, whether confirmed or unconfirmed, was interlocutory. At that point, Tanox could not take an appeal of the award in the absence of the trial court entering a final judgment, which it did so subsequently.[1] Thus, there was no final judgment and, therefore, the award had no preclusive effect.

Because there was no final judgment as to the arbitration award, as required for both res judicata and collateral estoppel, I would find the trial court erred in granting summary

 

judgment in favor of the Individual Lawyers on the affirmative defenses of res judicata and collateral estoppel. Accordingly, I dissent to the granting of rehearing.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Opinion on Rehearing and Concurring and Dissenting Opinions on Rehearing filed April 24, 2003.

Panel consists of Justices Hudson, Fowler, and Edelman. (Fowler, J., concurring on rehearing on Part VIII, joined by Edelman, J.) (Hudson, J., dissenting to rehearing of Part VIII).

[1] A final judgment as to the Lawyers= arbitration award against Tanox could have been achieved by severing Tanox=s claims against the Individual Lawyers. At that point, there would have been a final judgment and summary judgment based on res judicata and collateral estoppel in favor of the Individual Lawyers would have been appropriate. In the absence of a severance, an order from an appellate court remanding the summary judgment to the trial court necessary severs the action from the remainder of the case, thereby creating a final judgment.