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Click here for the full text of this decision The guardian’s right to control a suit does not necessarily follow from the mere fact that the individual serving as guardian is a party to the suit in his or her individual capacity as well. Further, there is no general definition of privity that can be applied in all res judicata cases, and the court should examine the circumstances of each case. FACTS:Elisa McGowen was in a 1992 traffic accident while pregnant. Five hours after she arrived at a hospital in the Angleton-Danbury Hospital District (the district), her son, Cole, was delivered by emergency C-section. Cole had severe brain injuries that ultimately led to his early demise at the age of 6. In 1993, Robert and Elisa McGowen, individually (the McGowens), and Robert McGowen, as guardian of Cole (the guardianship), filed suit against the hospital and several doctors and nurses. Many of these claims were resolved prior to this proceeding. Huang, the on-call physician, received a partial summary judgment holding that he had no duty to plaintiff simply because he was the on-call obstetrician. The court also found that the individual claims of the McGowens were barred by limitations, but it left the claim of guardianship that Huang was negligent once he assumed care of Elisa and Cole unresolved. The McGowens and the guardianship nonsuited all remaining claims so they could appeal the partial summary judgments. The partial summary judgments were affirmed by the appellate court. In 1998, the present suit was filed by the McGowens and Cole’s estate (the estate) against Huang and his employer, Women’s Clinic of Angleton P.A. (collectively, the defendants). The plaintiffs claimed that Cole’s brain injury, disability and death were caused by negligence in the treatment provided to Cole and Elisa. The defendants claimed that res judicata barred the action and that the McGowens’ claim was barred by limitations. The trial court granted summary judgment in favor of defendants. The estate appeals the dismissal of its claim, but the McGowens have abandoned their individual claims. A nurse also was included in this suit, but the lower court dismissed the claim against her based on Texas Civil Practice & Remedies Code �101.106. The appellate court affirmed this dismissal before turning to the claim of the defendants that res judicata bars the suit against them. HOLDING:Affirmed in part, reversed and remanded in part. To determine whether res judicata bars the current action against the defendants, the court must determine whether there was a final judgment on the merits in the prior suit and whether the concept of privity binds the estate to the prior adjudication of the McGowens’ individual claims. The partial summary judgments issued before the nonsuit were not final judgments on the merits, as they did not dispose of all the parties and issues in the lawsuit. When a summary judgment does not mention or refer to issues still pending, those issues remain unadjudicated. The nonsuit immediately following the partial summary judgment results in a dismissal with prejudice as to those issues adjudicated in favor of Huang. However, the other claims were not dismissed with prejudice and the nonsuits are not final judgments on the merits with regard to these claims. The order entitled “Final Judgment” did not change the status of these claims. It merely documented how claims had been disposed of in the case. Last, the application of the privity doctrine is inappropriate in this case. The defendants argue that privity exists because the estate shared interests with the McGowens, and the estate, through Robert McGowen, had a right to control the prior suit. Privity only exists when the parties share a sufficiently similar interest in the suit. The estate’s claim was not barred by the statute of limitations, while the McGowens’ individual claims were. This fact alone shows that their interests were not identical. Robert McGowen’s role as guardian for Cole does not provide privity because it gave the estate the right to control the final lawsuit. A guardian’s powers are not plenary, but restricted. Therefore, the guardian’s right to control a lawsuit does not necessarily follow from the mere fact that the individual serving as guardian is a party to the lawsuit in his or her individual capacity as well. Further, there is no general definition of privity that can be applied in all res judicata cases. The court should examine the circumstances of each case. In this case, the estate was not in privity with the McGowens. The court reverses and remands with regard to the claims against the defendants. OPINION:Morriss, C.J.; Morriss, C.J., Ross and Carter, JJ.

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