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Civil Litigation No. 08-01-00266-CV, 5/1/2003. Click here for the full text of this decision FACTS: This is an action to enforce a mediated settlement agreement. The original suit was brought for securities violations in Dallas County Court at Law 4. The parties mediated a settlement. The present action on the settlement contract was tried to the court in County Court at Law 5, resulting in a personal judgment against the appellant, Rich McFarland, for $25,000 plus interest and attorneys’ fees. HOLDING: Affirmed. The appellant argues for the application of res judicata. It is true, as appellant contends, that the principal parties were the same in the earlier case that was dismissed. Appellant also refers the court to Texas Civil Practice & Remedies Code �154.071(a): If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract. He argues there was no agreement “disposing of the dispute.” However, the trial court impliedly found a contract, which is supported by the record. The appellant also asserts because the second action is the same dispute, issue preclusion forbids relitigation of the disposed issues. He cites Jeanes v. Henderson, 688 S.W.2d 100 (Tex. 1985). If the defendant wins the original suit, the plaintiff is barred from bringing another action on claims actually litigated and also on claims that could have been litigated in the original cause of action. Res judicataprevents a plaintiff from “splitting” his cause of action and subsequently asserting claims that could have been litigated in the first instance. The appellant next argues City of San Antonio v. Aguilar, 696 S.W.2d 648 (Tex. App. – San Antonio 1985, writ ref’d n.r.e.). More aptly, this authority deals with “[t]he preclusion doctrine of stare decisis. . . .” And, the court accepts as true other authority cited by the appellant for the propositions that res judicataprecludes relitigation of a common issue as well as all issues connected with a cause of action or defense which with diligence might have been tried in the prior suit. The appellant ignores, however, �154.071(b) which states: The court in its discretion may incorporate the terms of the agreement in the court’s final decree disposing of the case. This language is permissive. Thus, the statute suggests that the settlement terms may be enforced as contract rights regardless of whether they have been incorporated into the judgment. Compania Financiara Libano, S.A. v. Simmons, 53 S.W.3d 365 (Tex. 2001). Companiaalso addresses appellant’s res judicataargument. The doctrine of res judicatabars a party and their privies from bringing a second suit on matters litigated and actions or defense arising out of the same subject matter which might have been litigated in the first suit. However, an action for breach of the settlement agreement could not have been brought in the prior suitbecause appellant had not yet breached his settlement agreement. Appellant’s first issue is overruled. OPINION: Wittig, J.; McClure, Chew and Wittig, JJ.

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