Calabrian Corporation v. Alliance Specialty Chemicals , 418 S.W.3d 154 ( 2013 )

Reversed and Remanded and Majority and Dissenting Opinions filed November 19,
2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00821-CV
CALABRIAN CORPORATION, Appellant
V.
ALLIANCE SPECIALTY CHEMICALS, INC., Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2011-71011
MAJORITY OPINION
In this interlocutory appeal, a Texas manufacturer challenges the trial court’s
order granting a non-resident defendant’s special appearance. We reverse and
remand because the non-resident defendant is collaterally estopped from
relitigating personal jurisdiction.
BACKGROUND
Appellant/plaintiff Calabrian Corporation, a Delaware corporation with its
principal place of business in Texas, is a producer of sulfur dioxide and sulfur
derivatives used in a variety of products and industries. Calabrian entered into a
License Agreement with Noxso Corporation in September 1995. The majority of
the negotiations leading to the Agreement occurred in Texas. In the Agreement,
Calabrian granted Noxso a license to use certain technical information and sulfur
dioxide technology developed in Texas to operate and maintain a plant that Noxso
planned to build in Tennessee. Noxso entered into a separate agreement with Olin
Corporation under which Olin would operate the plant. As part of the License
Agreement, Calabrian permitted Noxso to disclose to Olin, subject to certain
requirements, sufficient technical information to allow satisfactory operation and
maintenance of the plant. Under the Agreement, Noxso had ongoing
confidentiality obligations to Calabrian in Texas, and Noxso sent payments to
Calabrian in Texas. Noxso’s plant, which was modeled on Calabrian’s Texas
plant, was constructed in Tennessee using equipment and components fabricated in
Texas.
Two years later, in 1997, Noxso was forced into an involuntary bankruptcy
proceeding. With the permission of the bankruptcy court, Noxso assigned its rights
and obligations under the License Agreement to an affiliate of Republic Financial
Corporation named ―RFC SO2, Inc.‖ Noxso also sold the Plant to RFC SO2, Inc.,
which was later re-named Alliance Specialty Chemicals, Inc., a Delaware
2
corporation with its principal place of business in Tennessee. Alliance is one of
the defendants below and the appellee in this interlocutory appeal.1
In February 1998, Calabrian sued Republic and Alliance in state district
court in Jefferson County (―the 1998 Case‖). Calabrian sought declaratory relief
regarding the rights and obligations of the parties under the License Agreement,
including declarations as to Alliance’s obligations to keep the technology
confidential and to make disclosures and payments to Calabrian. The 1998 Case
was removed to federal court, where Alliance filed a motion contesting personal
jurisdiction under Federal Rule of Civil Procedure 12(b)(2). The federal district
court denied this motion, and litigation proceeded with a final judgment rendered
in March 2000.
In November 2011, Calabrian filed this lawsuit against Alliance and Olin in
state district court in Harris County (―the 2011 Case‖), seeking declaratory relief
and asserting claims for breach of contract and misappropriation of trade secrets.
Calabrian later added as a defendant its primary competitor, Chemtrade Logistics
(US), Inc., which had purchased the shares of Alliance.2 Calabrian alleged, among
other things, that Alliance violated the License Agreement by disclosing
confidential information to Chemtrade and by refusing to transfer the plant to Olin
ten years after construction was completed.
1
Alliance has judicially admitted that it was previously known as RFC SO2 and that its
name was changed from RFC SO2, Inc. to Alliance. Apparently, this name change involved a
merger or consolidation because the record reflects that RFC SO2, Inc. was a Wyoming
corporation before the name change and a Delaware corporation after the name change. For ease
of reference, we will refer to both RFC SO2, Inc. and Alliance Specialty Chemicals, Inc. as
―Alliance.‖
2
Neither Olin nor Chemtrade are parties to this interlocutory appeal.
3
Alliance filed a special appearance in the 2011 Case, asserting that the
exercise of personal jurisdiction over it by a Texas court would violate due process
because its only connection with Texas is as Noxso’s assignee under the License
Agreement. Alliance argued that in the years since the 1998 Case, the law had
changed such that a non-resident assignee of a contract is no longer subject to
personal jurisdiction based on the forum contacts of the assignor.
Calabrian opposed the special appearance, arguing among other things that
the 1998 Case involved the same License Agreement, the same parties, and the
same arguments related to personal jurisdiction such that Alliance is collaterally
estopped from avoiding personal jurisdiction in Texas. Calabrian attached
documents from the 1998 Case in support of its arguments.
Following a series of discovery disputes, the trial court heard and granted
Alliance’s special appearance. Calabrian filed this interlocutory appeal
challenging the trial court’s order granting the special appearance and,
alternatively, contending the trial court erred in denying its motion for a
continuance of the hearing on the special appearance.
ANALYSIS
In its first issue, Calabrian asserts that the trial court erred in granting
Alliance’s special appearance. To resolve this appeal, we need only address
Calabrian’s argument that Alliance is collaterally estopped from challenging the
federal district court’s ruling that it is subject to personal jurisdiction in Texas.
There are two principal categories of preclusion: (1) claim preclusion (also
known as res judicata); and (2) issue preclusion (also known as collateral estoppel).
Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). These doctrines
serve the vital functions of bringing litigation to an end, maintaining stability of
4
court decisions, avoiding inconsistent results, and promoting judicial economy. Id.
at 629; Jeanes v. Henderson, 688 S.W.2d 100, 105 (Tex. 1985). Claim preclusion
and issue preclusion are affirmative defenses, and the party asserting either defense
has the burden of pleading and proving its elements. In re H.E. Butt Grocery Co.,
17 S.W.3d 360, 377 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding).
Calabrian relies on the doctrine of collateral estoppel or issue preclusion,
which prevents a party from relitigating an issue that it previously litigated and
lost. See Quinney Elec., Inc. v. Kondos Entm’t, Inc., 988 S.W.2d 212, 213 (Tex.
1999) (per curiam). Personal jurisdiction is an issue that a party can be precluded
from relitigating. E.g., Corea v. Bilek, 362 S.W.3d 820, 825–26 (Tex. App.—
Amarillo 2012, no pet.); Fretz v. Reynolds, No. 04-03-00854-CV, 2004 WL
2803201, at *1 (Tex. App.—San Antonio Dec. 8, 2004, pet. denied) (mem. op.);
Nguyen v. Desai, 132 S.W.3d 115, 118–19 (Tex. App.—Houston [14th Dist.]
2004, no pet.); see also Deckert v. Wachovia Student Fin. Servs., 963 F.2d 816,
818–19 & n.5 (5th Cir. 1992).
To prevail on its collateral estoppel defense, Calabrian must establish the
following: (1) the facts sought to be litigated in the second action were fully and
fairly litigated in the first action; (2) the facts were essential to the judgment in the
first action; and (3) the parties were cast as adversaries in the first action. See John
G. & Marie Stella Kenedy Mem’l Found. v. Dewhurst, 90 S.W.3d 268, 288 (Tex.
2002); Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 44 (Tex. App.—
Houston [14th Dist.] 2000, pet. denied).3 If these elements are established, then
3
Our dissenting colleague argues we should apply multiple factors at the second step to
determine whether the federal district court’s decision on personal jurisdiction was adequately deliberated
and firm, and contends that Calabrian offered insufficient evidence of these factors. Post, at 5–6, 8–10.
We disagree. In this case, as explained below, the record shows there was a final judgment. Accordingly,
it would be improper to apply the factors relied upon by the dissent, which are designed to determine
whether an adjudication that is not accompanied by a final judgment is nevertheless firm enough to be
5
Alliance is precluded from litigating the issue again. See Barr, 837 S.W.2d at 628.
Whether collateral estoppel applies is a question of law. See id.4
Alliance does not dispute that Calabrian proved these elements, arguing
instead that collateral estoppel does not apply because Texas law has changed. We
address Alliance’s argument in Part II below. Our dissenting colleague argues,
however, that Calabrian failed to prove the elements of its collateral estoppel
defense. We disagree for the following reasons.
I. Alliance is collaterally estopped from relitigating the issue whether it is
subject to personal jurisdiction in Texas on claims arising from the
License Agreement.
In responding to the special appearance, Calabrian attached the following
documents relevant to the 1998 Case: Calabrian’s live pleading, Calabrian’s
response to Alliance’s motion to dismiss for lack of personal jurisdiction, the
federal district court’s order denying the motion to dismiss, and the court’s order
denying Alliance’s motion for reconsideration. It also attached an affidavit stating
that the federal district court entered a final judgment in the 1998 Case in March
2000. These documents, and the remainder of the record in the 2011 Case, show
as a matter of law that Calabrian established the three elements of its collateral
estoppel defense.
given issue-preclusive effect. See Restatement (Second) of Judgments § 13 & cmts. a, g (1982), cited in
Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 385 (Tex. 1985); see also Mower v.
Boyer, 811 S.W.2d 560, 562 (Tex. 1991) (holding interlocutory partial summary judgment did not satisfy
factors).
4
Although the personal jurisdiction ruling in the 1998 Case was made by a federal court,
the Texas Supreme Court has determined that federal law and Texas law are the same regarding
collateral estoppel. Thus, we need not analyze this issue under federal precedent. See John G. &
Marie Stella Kenedy Mem’l Found., 90 S.W.3d at 288.
6
First, the documents from the 1998 Case show that the issue whether
Alliance is subject to specific personal jurisdiction in Texas on claims arising from
the License Agreement was fully and fairly litigated in the district court, which
held that Alliance could be sued in Texas. See Corea, 362 S.W.3d at 825
(characterizing ―personal jurisdiction‖ as ―the issue that was fully litigated in the
previous action‖). The record also shows that the same issue was before the trial
court in this 2011 Case: in responding to Alliance’s special appearance, Calabrian
argued that Alliance is subject to specific personal jurisdiction in Texas on claims
that likewise focus on the License Agreement. As Calabrian explained, although
this case involves aspects of the License Agreement that were not ruled on in the
1998 Case, both this case and the 1998 Case are governed by the same License
Agreement and address the same jurisdictional facts regarding Alliance’s contacts
with Texas in connection with the Agreement. Alliance does not dispute that
Calabrian’s claims in both the 1998 Case and this case arise from the License
Agreement.
Second, the issue of personal jurisdiction over Alliance was essential to the
judgment in the 1998 Case—which was entered in 2000 according to the
affidavit—because a court may not render a judgment that binds a party over
which it has no personal jurisdiction. Int’l Shoe Co. v. Washington, 326 U.S. 310,
319 (1945). Third, the documents from the 1998 Case show that Calabrian and
Alliance were adversaries in that case.
Our dissenting colleague disagrees as to the first element, contending that
the issues of personal jurisdiction in the 1998 Case and this case are not identical
because: (1) ―Calabrian is asserting different claims‖ in this case; and (2) ―the
jurisdictional analysis of Alliance’s contacts with Texas takes place at a much later
7
point in time‖ in this case. Post, at 14. We conclude that neither consideration
alters the jurisdictional analysis here.
While Calabrian’s claims in this case are not identical to those in the 1998
Case, Calabrian is not asserting a defense of claim preclusion. Rather, it is
asserting issue preclusion as to the court’s personal jurisdiction over Alliance. Of
course, a plaintiff who brings multiple claims that involve different forum contacts
must establish specific jurisdiction for each claim because the Due Process Clause
prohibits the exercise of jurisdiction over any claim that does not arise out of or
relate to the defendant’s forum contacts. Moncrief Oil Int’l, Inc. v. OAO Gazprom,
No. 11-00195, 2013 WL 4608672, at *4 (Tex. Aug. 30, 2013). But ―a court need
not assess contacts on a claim-by-claim basis if all claims arise from the same
forum contacts.‖ Id.
Although Calabrian’s claims in the 1998 and 2011 Cases are not the same,
they all involve the License Agreement. And in both cases, Calabrian has relied on
the same Texas contacts as a basis for personal jurisdiction over Alliance: its
contacts with Texas in connection with the Agreement. Whether those contacts
support specific personal jurisdiction over Alliance in Texas was fully and fairly
litigated in the 1998 Case. Accordingly, we conclude that the differences among
the claims asserted in the two cases do not alter the specific jurisdiction analysis in
a manner that renders collateral estoppel inapplicable.
Regarding the lapse of time between the 1998 and 2011 Cases, we have
recognized that ―a judgment in one suit will not operate as res judicata to a
subsequent suit where, in the interval, the facts have changed, or new facts have
occurred which may alter the legal rights or relations of the parties.‖ Hernandez v.
Del Ray Chem. Int’l, Inc., 56 S.W.3d 112, 116 (Tex. App.—Houston [14th Dist.]
8
2001, no pet.); see also Nguyen, 132 S.W.3d at 118–19. But neither party
contends, and the record does not reflect, that the relevant jurisdictional facts
regarding Alliance’s contacts with Texas in connection with the Agreement have
changed in the intervening years.5 Accordingly, we hold that the district court’s
ruling denying Alliance’s motion to dismiss for lack of personal jurisdiction in the
1998 Case precludes relitigation of that issue in this case. See Corea, 362 S.W.3d
at 826 (precluding relitigation of personal jurisdiction issue and rejecting
contention that jurisdictional facts had changed because party opposing preclusion
offered no proof of change).
The dissent also argues that Calabrian failed to provide a record sufficient to
establish each element of its collateral estoppel defense as a matter of law. We
disagree. As the cases cited by the dissent show, courts typically require that the
party advocating collateral estoppel introduce at least the pleadings and judgment
from the prior case.6 The amount of evidence required to establish the defense will
vary from case to case, however. The question is simply whether the record
sufficiently notified the trial court of the issues decided in the prior case.7
5
The Restatement observes that the burden of establishing a change in facts sufficient to
undermine a preclusion defense should fall on the party opposing the defense, at least in some
cases. See Restatement (Second) of Judgments § 27 cmt. c & illus. 7; see also Corea, 362
S.W.3d at 826 (placing burden on party opposing preclusion). In other words, under the
Restatement approach, a changed-facts argument operates like a plea in confession and
avoidance of the preclusion defense. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515,
517 (Tex. 1988) (explaining that a plea in confession and avoidance admits the truth of the facts
alleged in support of a defense but alleges new matter that deprives those facts of their ordinary
legal effect). Because our decision would be the same regardless of where the burden lies,
however, we need not resolve that issue here.
6
E.g., Hudson v. City of Houston, No. 14-0300565-CV, 2005 WL 3995160, at *4 (Tex. App.—
Houston [14th Dist.] Jan. 6, 2005, no pet.) (mem. op.); Cuellar v. City of San Antonio, 821 S.W.2d 250,
256 (Tex. App.—San Antonio 1991, writ denied).
7
See Bankers Home Bldg. & Loan Ass’n v. Wyatt, 162 S.W.2d 694, 695 (Tex. 1942); Tex.
Capital Sec. Mgmt., Inc. v. Sandefer, 80 S.W.3d 260, 265 (Tex. App.—Texarkana 2002, pet. struck);
9
We conclude that the record did so here. As discussed above, Calabrian
provided its live pleading, its briefing on personal jurisdiction, and the federal
district court’s orders on jurisdiction from the 1998 Case. Calabrian did not
include the judgment from the 1998 Case, but it did provide an affidavit stating
that there was a final judgment. Each party cites and discusses this statement from
the affidavit in the fact section of its appellate brief, and there is no evidence to the
contrary, so we take the existence of the final judgment as true. See Tex. R. App.
P. 38.1(g).
The dissent (but not Alliance) faults Calabrian for failing to include in the
record certain other documents from the 1998 Case, such as Alliance’s
jurisdiction-related filings and the federal district court’s findings of fact and
conclusions of law regarding jurisdiction. But there is no indication that the record
we do have was insufficient to notify the trial court of the jurisdictional issue
decided in the 1998 Case. Calabrian’s jurisdictional briefing in that case argued
Alliance was subject to specific personal jurisdiction in Texas on claims arising
from the License Agreement, and there is no evidence that the issue decided there
was anything else.8 Nor has Alliance disputed the record’s accuracy or complained
that it is insufficient to decide Calabrian’s collateral estoppel defense.9 On this
Hearn v. Cox & Perkins Exploration, Inc., No. 14-98-01275-CV, 2000 WL 977372, at *3–4 (Tex. App.—
Houston [14th Dist.] May 18, 2000, no pet.) (not designated for publication); Bass v. Champion Int’l
Corp., 787 S.W.2d 208, 213–14 (Tex. App.—Beaumont 1990, no writ).
8
The dissent speculates that the federal district court may have found jurisdiction in the 1998
Case because Alliance’s jurisdictional challenge was untimely, or that Alliance may have re-urged its
motion for reconsideration of the court’s jurisdictional ruling. But there is no reason to suppose from the
record that either of those things happened. If this sort of speculation were sufficient to defeat a collateral
estoppel defense, then the party urging the defense could only hope to prevail by offering the complete
record of the prior case as supporting evidence. Neither law nor logic compels such a wasteful practice.
9
See Whitemyer v. Omokaro, No. 05-01-00780-CV, 2002 WL 1981367, at *6 n.19 (Tex. App.—
Dallas Aug. 29, 2002, pet. denied) (not designated for publication); Hearn, 2000 WL 977372, at *4.
10
record, therefore, we conclude that Calabrian established each element of its
defense as a matter of law.
II. Alliance has not demonstrated a change in Texas law sufficient to avoid
collateral estoppel.
For its part, Alliance relies on the rule that preclusion is not a defense in a
subsequent suit involving the same issue between the same parties ―if there has
been a change in . . . the decisional law between the first judgment and the second
suit.‖ Marino v. State Farm Fire & Cas. Ins. Co., 787 S.W.2d 948, 949–50 (Tex.
1990) (holding res judicata did not bar assertion of cause of action arising after the
first judgment). The rationale for this rule is that a judgment cannot affect
substantive rights and duties arising after that judgment. See id.; Hernandez, 56
S.W.3d at 116; see also Restatement (Second) of Judgments § 28(2)(b) & cmt. c
(1982) (recognizing exception to general rule of issue preclusion when there is an
―intervening change in the applicable legal context‖ such that ―preclusion would
result in a manifestly inequitable administration of the laws‖). Given this
rationale, one court has observed that ―Marino applies only if there is a change in
the law . . . that creates substantive rights that did not exist until after the first
judgment.‖ Besing v. Vanden Eykel, 878 S.W.2d 182, 184–85 (Tex. App.—Dallas
1994, writ denied); see also Mroz v. U.S. Fire Ins. Co., 826 S.W.2d 729, 730 (Tex.
App.—Houston [14th Dist.] 1992, writ denied) (applying exception where Texas
recognized a new cause of action after the first judgment); Hilltop Baptist Temple,
Inc. v. Williamson Cnty. Appraisal Dist., 995 S.W.2d 905, 909 (Tex. App.—Austin
1999, pet. denied) (distinguishing Marino because ―Hilltop is not asserting a new
claim or right that was created subsequent to [the first judgment]‖).
Alliance asserts that an ―intervening change‖ in Texas decisional law has
rendered the district court’s personal jurisdiction ruling in the 1998 Case
11
erroneous, making collateral estoppel inapplicable in this case. In particular,
Alliance contends that the ―sole basis for personal jurisdiction‖ in the 1998 Case
was Noxso’s contacts with Texas, and it points to two cases as ―new controlling
decisional authority‖ repudiating the theory that these contacts can be imputed to
Alliance as Noxso’s assignee: Old Kent Leasing Servs. Corp. v. McEwan, 38
S.W.3d 220, 231 (Tex. App.—Houston [14th Dist.] 2001, no pet.), and Magnolia
Gas Co. v. Knight Equip. Mfg., 994 S.W.2d 684, 691–92 (Tex. App.—San Antonio
1998, no pet.), overruled on other grounds by BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 794 & n.1 (Tex. 2002).10
Neither Old Kent nor Magnolia Gas demonstrate a change in decisional law
sufficient to trigger the Marino exception to collateral estoppel. Pre-1998
decisions established that the defendant’s forum contacts ―must have resulted from
[its] purposeful conduct and not the unilateral activity of the plaintiff or others.‖
Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d
223, 227 (Tex. 1991); see also Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 417 (1984); Hanson v. Denckla, 357 U.S. 235, 253 (1958) (―The
unilateral activity of those who claim some relationship with a nonresident
defendant cannot satisfy the requirement of contact with the forum State.‖);
10
The record does not support Alliance’s assertion that Noxso’s imputed contacts were
the sole basis for personal jurisdiction over Alliance in the 1998 Case. The one-sentence order
from the federal district court, which denied Alliance’s motion to dismiss for lack of personal
jurisdiction, does not specify the basis for its decision that personal jurisdiction exists. The order
provides that the decision was based on ―findings of fact and conclusions of law‖ made at a
hearing held on July 24, 1998, the same date the order was entered. The appellate record
contains neither a transcript of the hearing held on that date nor findings of fact or conclusions of
law relevant to the jurisdictional decision. Thus, contrary to Alliance’s contention that the
federal court’s decision is ―wholly inconsistent‖ with Old Kent and Magnolia Gas, the record
does not reflect how the court arrived at its decision. Moreover, although we need not reach the
merits of the personal jurisdiction issue, we note that Calabrian has argued Alliance is subject to
personal jurisdiction in Texas based on its own forum contacts arising out of the License
Agreement.
12
Malaysia British Assurance, Ltd. v. El Paso Reyco, Inc., 830 S.W.2d 919, 921
(Tex. 1992) (per curiam) (holding assignment did not strengthen claim of personal
jurisdiction). Although both Old Kent and Magnolia Gas recognized that an
assignor’s contacts with a forum state could not be imputed to the assignee for
purposes of personal jurisdiction, each did so based on these pre-1998 principles.
See Old Kent Leasing Servs. Corp., 38 S.W.3d at 231; Magnolia Gas Co., 994
S.W.2d at 691–92. Because Old Kent and Magnolia Gas simply applied existing
law on personal jurisdiction, neither created new substantive rights or duties that
did not exist at the time of the 1998 Case. Accordingly, neither case meets the
standard discussed above for demonstrating a change in decisional law sufficient to
warrant an exception to collateral estoppel.11
Alliance also argues that it would be ―grossly unfair‖ if it were collaterally
estopped from challenging jurisdiction, but it offers no reasons or legal authority to
support its argument. We recognize that a collateral estoppel analysis does involve
considerations of fairness that are not encompassed by the ―full and fair
opportunity‖ inquiry. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796,
11
In addition, both Old Kent and Magnolia Gas are factually distinguishable from this
case. See Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801, 810 (Tex. 2002)
(noting that personal jurisdiction is assessed on a case-by-case basis). Neither case involved a
long-term agreement with continuing obligations between a Texas company and a non-resident
assignee. Cf. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478–82 (1985) (analyzing
jurisdictional effect of long-term franchise contract with continuing obligations). In Old Kent,
we concluded that an Illinois company that assumed an agreement to lease computer equipment
to a California company could not be sued on the agreement in Texas; the fact that a Texas
company that was not a party to the agreement had supplied the equipment was insufficient to
support personal jurisdiction. 38 S.W.3d at 231. And in Magnolia Gas, the court held that a
Texas court lacked personal jurisdiction over nonresident defendants who had assumed the
obligation to move an Oklahoma cryogenic gas plant owned by a Texas company to Arkansas.
The court carefully considered all contacts with Texas (including those of the assignor who had
originally contracted to move the plant) and concluded that they ―were entirely incidental and
immaterial to the purpose of the contract and were not instigated by [the defendants], or their
assignor.‖ 994 S.W.2d at 692.
13
804 (Tex. 1995). We do not consider the application of collateral estoppel in this
case to be unfair, however, given that Alliance has defended litigation in Texas
previously involving the same License Agreement and same parties. Accordingly,
we hold that collateral estoppel applies in this case to bar Alliance’s challenge to
personal jurisdiction.12
CONCLUSION
We reverse the trial court’s order granting Alliance’s special appearance and
remand for further proceedings.
/s/ J. Brett Busby
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Busby (Frost,
C.J., dissenting).
12
Because collateral estoppel disposes of the jurisdictional question, we do not reach
Calabrian’s second issue, which challenges the trial court’s denial of its motion for continuance.
14