Butler, Lonnie W. v. Continental Airlines, Inc.--Appeal from 157th District Court of Harris County

Annotate this Case
Affirmed and Majority and Dissenting Opinions filed August 12, 2003

Affirmed and Majority and Dissenting Opinions filed August 12, 2003.

In The

Fourteenth Court of Appeals

_______________

NO. 14-02-00448-CV

_______________

LONNIE W. BUTLER, JR., Appellant

V.

CONTINENTAL AIRLINES, INC., Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 02-04660

D I S S E N T I N G O P I N I O N

Lonnie Butler had a single claim: that his employer took several macros he developed. For reasons perhaps known only to his lawyers, he filed the claim in the form of a dozen different causes of action. All have been tossed outCfirst by the First Court of Appeals,[1] and later by a federal court in Houston.[2]

Both courts held that half a dozen of Butler=s causes of action were preempted by the federal Copyright Act. But both also held that half a dozen others were not,[3] thus affirming Butler=s right to bring them as separate actions.


But where? The First Court held they could be brought only in federal court.[4] On exactly the same issue, the federal court held they could not.[5] One of these courts must be wrong. This is not merely a difference of opinionCthough acknowledging Butler can assert non-copyright claims, every court where he has tried to do so has shut its doors.

Federal courts have exclusive jurisdiction to try cases arising under the Copyright Act.[6] But Butler has never alleged a copyright claim; instead, Continental has argued as a defense to his claims that the Copyright Act precludes them. The First Court of Appeals held this was enough, pointing to an opinion by the federal Second Circuit that a claim arises under the Copyright Act if Ait asserts a claim requiring construction of the Act.@[7] The federal court in Houston disagreed, pointing to a subsequent Second Circuit opinion clarifying that this test looks only to what the plaintiff=s complaint alleges, not what defense might be proffered.[8]

The issue before us is not which court was right, but whether Butler can be shut out of a forum by the conflicting denials. I agree with the Court that a dismissal for lack of subject-matter jurisdiction normally should preclude litigation of that jurisdictional question again; if the rule were otherwise, the same claim could be filed repeatedly and never decided finally.

But the Restatement recognizes a limitation to the application of res judicata when inconsistent final judgments are rendered:


When in two actions inconsistent final judgments are rendered, it is the later, not the earlier, judgment that is accorded conclusive effect in a third action under the rules of res judicata.[9]

As the Restatement explains, the policy considerations supporting res judicata are not strong when the party claiming it has taken an inconsistent position in intervening litigation.[10]

That is exactly what Continental did here. After urging the First Court to hold the federal courts had exclusive jurisdiction of Butler=s claims, Continental urged exactly the opposite when he filed them there. In accordance with the Restatement, I would hold that preclusive effect should be given only to the later rulingCthe federal court=s decision that Butler=s claims belonged in state court. Because the Court holds otherwise, I respectfully dissent.

/s/ Scott Brister

Chief Justice

Judgment rendered and Majority and Dissenting Opinions filed August 12, 2003.

Panel consists of Chief Justice Brister and Justices Edelman and Seymore.


[1] See Butler v. Cont=l Airlines, Inc., 31 S.W.3d 642 (Tex. App.CHouston [1st Dist.] 2000, pet. denied) (AButler I@).

[2] See Butler v. Cont=l Airlines, Inc., No. Civ.A. 01-2194, 2001 WL 1509545 (S.D. Tex. 2001) (AButler II@).

[3] Namely, breach of contract, breach of fiduciary duty, quantum meruit, estoppel, quasi-estoppel, and constructive trust.

[4] Butler I, 31 S.W.3d at 652.

[5] Butler II, 2001 WL 1509545 at *5.

[6] See 28 U.S.C. ' 1338(a).

[7] Butler I, 31 S.W.3d at 652 (citing T.B. Harms Co. v. Eliscu, 339 F.2d 823, 828 (2d Cir.1964)).

[8] Butler II, 2001 WL 1509545 at *5 (citing Bassett v. Mashantucket Pequot Tribe, 204 F.3d 303, 353 (2d Cir.2000)).

[9] Restatement (Second) of Judgments ' 15 (1982).

[10] Id. cmt. b.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.