Plaintiff appeals from the trial court’s grant of summary judgment for defendants John R. Woodbury and DFS Services, Inc. (“DFS”) and denial of partial summary judgment for plaintiff.
Defendant DFS and Patstone Development Corporation (“PDC”) created Morgan Farm Associates, a joint venture formed for the purpose of purchasing and developing Morgan Farm Subdivision. Pursuant to the “Development Agreement” between Morgan Farm Associates and PDC, PDC was hired, purportedly as an independent contractor, as the developer. Defendant Woodbury was president and sole shareholder of PDC, and was the individual most actively involved in the day-to-day work of developing the community. Plaintiff and her husband purchased a lot in Morgan Farm Subdivision subject to various restrictive covenants. Their building plans were approved, and they hired a builder who began construction on their home. There is evidence that Woodbury, who was also Chairman of the Morgan Farm Architectural Control Committee (“the Committee”), repeatedly came by the building site, criticizing various aspects of the house and complaining that the house violated certain restrictive covenants. At times he made plaintiff’s builder stop work, and he wrote the bank financing her loan to tell them she was having problems with construction. Plaintiff alleges that Woodbury knew plaintiff’s family was having trouble with its temporary housing and was desperate to move into the new home as soon as possible. Plaintiff further alleges he exploited that knowledge to pressure plaintiff into doing things his way and make her life miserable during the construction period.
*185 Eventually PDC and the Committee sued plaintiff and her husband for violating restrictive covenants in their deed. Plaintiff and her husband then counterclaimed for intentional infliction of emotional distress and abusive litigation, alleging that Woodbury, as agent of both PDC and the Committee, maliciously harassed, intimidated and humiliated them. Mediation resulted in the settlement of this action, with all parties voluntarily dismissing their claims with prejudice. Plaintiff then brought this action against Woodbury individually and DFS based on the same alleged misconduct of Wood-bury. Defendants moved for summary judgment based on res judicata and collateral estoppel, and DFS moved for summary judgment on the additional ground that DFS was not responsible for the actions of Woodbury because Woodbury was an independent contractor. Plaintiff moved for partial summary judgment with respect to defendants’ res judicata/collateral estoppel and independent contractor defenses. Defendants’ motion was granted, and plaintiff’s motion was denied.
1. Plaintiff first contends that summary judgment was not properly granted based on res judicata or collateral estoppel. We agree. Collateral estoppel (issue preclusion) cannot apply in this situation because the issues raised in this case — whether Woodbury is liable for committing the alleged acts and whether DFS is also responsible therefor — have not been actually adjudicated, and “ ‘collateral estoppel . . . only precludes readjudication of an issue already adjudicated between the parties or their privies in a prior action.’ ” (Citations omitted.)
Stiltjes v. Ridco Exterminating Co.,
Nor does the fact that DFS is PDC’s partner in the Morgan Farm joint venture mean that the two have the “mutual or successive relationship to the same rights” necessary to establish privity. See
Roberts,
Defendants’ assertion that plaintiff’s claims against them were compulsory counterclaims under OCGA § 9-11-13 is also without merit, as parties need only bring claims they have “against any opposing party” under this provision. Defendants were not parties to the prior suit; nor were they necessary parties to the plaintiff’s counterclaims in that suit. See OCGA § 9-11-19.
A dismissal of an action against one defendant with prejudice does not preclude a plaintiff from bringing an action based on the same facts against another defendant.
Rowland v. Vickers,
2. Summary judgment for DFS based on its independent contractor defense was also unwarranted. It is undisputed that DFS and PDC were partners in Morgan Farm Associates, a joint venture formed to purchase and develop Morgan Farm Subdivision. Moreover, it seems clear that if Woodbury committed wrongful acts against plaintiff as alleged, he did so as PDC’s agent while “acting in the ordinary course of the business of the [joint venture].” OCGA § 14-8-13; see
Bowman v. Fuller,
3. Contrary to defendants’ assertions, plaintiff’s evidence, viewed in a light most favorable to plaintiff and with all reasonable inferences drawn in her favor, is not contradictory and supports her allegations.
4. For the reasons discussed in Divisions 1 and 2, summary judgment for defendants should have been denied and partial summary judgment for plaintiff on defendants’ res judicata and independent contractor’defenses should have been granted.
5. Defendants’ motion to penalize plaintiff for a frivolous appeal is denied.
Judgment reversed.
Notes
This does not mean, of course, that a plaintiff can sue one partner after another in the hope of eventual victory. To the extent the issue of liability is adjudicated, issue preclusion will apply. And if a settlement is reached, the release agreement can be worded to release all partners and other possible defendants; but the release agreement in this case did not do so. See
Lackey v. McDowell,