Bostick v. CMM Properties, Inc.
327 Ga. App. 137
Ga. Ct. App.2014Background
- Diversified Capital Management, Inc. leased a grocery-store Premises to James Bostick in January 1992.
- Diversified assigned its rights to Ingram Timber Enterprises, L.P. in August 1992.
- In October 2000, Bostick subleased to CMM Properties, Inc. under the Master Lease terms.
- In June 2005, Ingram sued CMM and guarantors for default and liquidated damages under the master lease; Bostick was not a party.
- A trial court granted summary judgment for the CMM parties, deeming the liquidated damages a void penalty; Ingram did not appeal.
- In January 2010, Ingram sued Bostick again for the same liquidated damages; Bostick impled a third-party action against the CMM parties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does res judicata bar the second action against the CMM parties? | Bostick relies on non-party status to defeat res judicata. | Bostick is in privity with CMM parties; precludes relitigation. | Yes; res judicata bars the second action against CMM parties. |
| Was venue properly maintained for the third-party defendant after the consent judgment? | Consent judgment insulated Bostick from liability, implying venue loss. | Venue did not vanish; consent judgment did not remove Bostick from the case. | Venue remained proper; error was harmless. |
Key Cases Cited
- Kennedy Dev. Co. v. Newton’s Crest Homeowners’ Assn., 322 Ga. App. 39 (2013) (three prerequisites for res judicata: identity of action, parties or privies, and prior adjudication)
- Dove v. Ty Cobb Healthcare Systems, 316 Ga. App. 7 (2012) (claims that could have been raised in prior action are barred)
- Buford-Clairmont Co. v. Cato Corp., 241 Ga. App. 50 (1999) (identical subject matter and full opportunity to litigate)
- Nalley v. Baldwin, 261 Ga. App. 713 (2003) (consent judgments do not necessarily discharge from liability or dismiss venue)
- Empire Shoe Co. v. Nico Indus., 197 Ga. App. 411 (1990) (third-party defendants can raise defenses the original defendant could raise)
- Pinkard v. Morris, 215 Ga. App. 297 (1994) (privity and identity of interest bind privies to judgment)