Jan K. Bennett appeals from the trial court’s order granting the motion for summary judgment filed by the defendants in the suit brought by Bennett and her husband, Gus J. Bennett, against Builders II, Inc. and its president, James Cotton, in connеction with the construction of their residence. Jan Bennett (hereinafter “Bennett”) contends the trial court, for a variety of reasons, erred in entering summary judgment and in casting the total cost of the record on her. We find no merit in Bennett’s contentions, and we affirm both the grant of summary judgment and the trial court’s ruling regarding costs of the record.
In
Bennett v. Builders II,
The trial court granted the defendants’ motion in a brief order without specifying the basis for its ruling. Bennett appeals, 1 reciting specifically that her husband does nоt join the appeal and that the appeal is taken only against Cotton individually, not against Builders II. 2
1. Bennett contends the trial court erred in granting summary judgment on the basis of res judicata and collateral estoppel. She argues that she was neither a signatory to the contract between her husband and Builders II nor a party to the arbitration and the arbitration related solely to the contract and alleged breach thereof, making her tort
Under Georgia law, preclusion doctrines apply to arbitration proceedings. See, e.g.,
Centex-Rodgers Constr. Co. v. City of Roswell,
Despite her lack of legal training and experience, Bennett has carefully crafted her pleadings and briefs in an attempt to avoid application of the doctrines whose bar she seeks to avoid. She points out that her cause of action is based in tort and she does not rely оn the contract between her husband and the construction company. She asserts that no general agency existed between her and her husband, that she did not take orders from her husband, that Cotton dealt with her separately with regard to the construction, and that his misrepresentations to her are the subject matter of this appeal. Notwithstanding this valiant attempt, we conclude that res judicata and collateral estoppel apply in this case to bar Bennett’s suit. OCGA § 9-12-40 provides:
A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.
All claims for relief that concern
“the same subject matter”
must be raised.
Lawson v. Watkins,
It is true that Bennett was neither a signatory to the contract nor technically a party to the аrbitration. And a husband and wife are generally not privies for purposes of res judicata.
Aycock v. Calk,
Finally, Bennett cannot have it both ways. If she was not in privity with her husband, Cotton could not have had any duty toward her with regard to the construction, as she was a stranger to the contract, and his alleged misrepresentations to her could not have been material.
Res judicata requires that a party assert all claims that arise out of the underlying facts in one proceeding. As joint owners and therefore privies, the Bennetts were required to seek recovery in one proceeding against Builders II and Cotton for all their claims arising out of the construction of their home. They may not hold some claims in abeyance while others are submitted to binding arbitration.
2. Bennett’s contention that the trial court erred in applying the “economic loss” rule to her claim is, at best, unsubstantiated. But we need not decide whether that rule applies. All Bennett’s remaining contentions regarding the trial court’s entry of summary judgment in favor of appellee are without merit, since summary judgment was proper based upon the bar of res judicata. “A grаnt of summary judgment must be affirmed if it is right for any reason.” (Citation and
punctuation.omitted.) MALAGA Mgmt. Co. v. John Deere Co.,
3. Bennett directed the clerk to omit all but specified portions of the record. Appellee designated the remainder оf the record, under OCGA § 5-6-42. Bennett maintains the trial court erred in ordering her to pay the entire cost of the record in the record on appeal.
We held in
Bennett v. Builders
II, “[T]he cost of additional portions of a record designated by the appellee that are necessary to complete the record on appeal must be paid by the appellant; only if сonsidered unnecessary on appeal, should the costs be taxed against the appellee.” (Citations and punctuation omitted.) Id. at 758. Apportionment of costs is the trial сourt’s decision to make, and the trial court’s decision will be affirmed absent a “manifest abuse of discretion.”
Jones v. Spindel,
Judgment affirmed.
Notes
Bennett appeals pro se, informing this court that she is not a lawyer and has limited past experience with the law as an administrative hearing officer for an institution of higher learning and as liaison with several United States Attorneys and state attorneys general on behalf of a federal agency. She states that in briefing this appeal she relied on briefs previously filed by her former counsel. Bennett’s husband is an attorney with experience in business as well.
The briefs on appeal are captiоned “Jan K. Bennett v. James Cotton.” The notice of appeal is captioned “Jan K. Bennett v. Builders II, Inc. and James Cotton,” although the document recites expressly that “no apрeal is sought as regards the Defendant Builders II, Inc.”
Bennett correctly points out that in Olson the wife relied on the contract and attached it to her complaint. But we are persuaded that this is a distinction without a difference, since the issue of privity between the co-tenants is identical.