*1 433 v. Mark Christine SWOFFORD and Harold Swofford Ward Bobby STAFFORD and 87-325 Court of Arkansas
Supreme Opinion delivered May Hall, Jr., John Wesley for appellant. Stodola, Fewell,
Mark Victra L. City Att’y, Asst. by: City Stafford; for Jim Hamilton and Francis D. Att’y, Mark appellee Jr., Jr., Francis D. Crumpler, Crumpler, by: Bobby appellee Ward. Dudley,
Robert H. case, Justice. In in a counsel, appellant, through other filed a action against *2 Little Rock. North of Little Rock and and the Cities the appellees Ward and Stafford that in 1984 alleged appellees The complaint Little to the North them “arrested and plaintiffs transported to in and jail proceeded and them placed Rock Police Department residence searching plaintiffs’ insist interrogate upon them and to the recovery property of sought The appellants premises.” of the wrongful property. for the detention damages seized and cities had no and the two found that the appellees The trial court it delivered title, and ordered or interest in right, property damages nor neither awarded delivery The order of appellants. At a later for future determination. damages reserved the issue of 10 of court, motion under Rule on its own date the trial apparently Courts, entered an order and Chancery the Rules Circuit 1987, later, with in present dismissal for failure to Still prosecute. counsel, bar against appellees. filed the case at appellants sur- restate, circumstances with more They particularity, arrest, detention, In interrogation. and their 1984 rounding addition, Ward acted Stafford and appellees aver that appellants Swofford to cause third arrest of Harold appellant a second and the two charges. damages against appellee on related seek They state law for officers under 42 1983 and under U.S.C. police § search, and inten- false arrest and malicious illegal prosecution, that the distress. The trial court held tional infliction of emotional in this action. We affirm that action precludes holding. res judicata
The claim of the doctrine of part suit (1) bars of a suit when the first relitigation merits; resulted in the first suit was based (2) a on the contested in (3) the first suit was upon proper jurisdiction; fully faith; the same or cause of action good (4) both suits involve claim not; was and litigated litigated which was or could have been but Bailey both or their (5) suits involve the same parties privies. Dist., Harris Brake Fire Protection on that the trial court erred (1985). argue Appellants appeal because a order and same (1) (4), factors numbered and final action, merit. cause of are not The are without arguments present. claim in the case at bar argue first that the
Appellants
not be
there was no final
in
should
because
precluded
this issue
the first suit.
does not reflect that
abstract
Appellants’
We will not
was raised below or ruled
the trial court.
upon by
consider issues
Griffin-Payne,
raised
the first time on appeal.
Bank,
Inc. v.
(1986).
Union
Ark.
The complaint in the action recited operative facts of the arrest of their appellants, transportation to interrogation at the North Little Rock Police their Department, incarceration, and the search of their home. case at bar *3 based on the same events and new subject only matter. It raises legal issues and seeks additional remedies.
Issues and remedies raised in the suit do not subsequent have to be identical to those raised in the initial suit in order for the claim preclusion of to v. part judicata res In Benedict apply. Farm, Inc., Arbor 574, 577, 605, 607 Acres 265 Ark. S.W.2d (1979), we wrote:
The law of res judicata that a a provides decree bars subsequent suit when the cause involves the same subject matters as or that determined which could have been determined in the former suit between same parties; bar extends to those of law fact questions which “might have been but were not presented.” [well] Moore, 168, In Taggart 7, 292 Ark. (1987) (citations omitted), we wrote:
One of the main of the of purposes judicata res is to an end to put litigation by a has precluding who party had the fair opportunity one trial from drawing same into a controversy issue second before time the same or a different court. . . judicata . Res applies even if litigated issue was not in the first trial if should been it have included in the former trial. we affirm
Accordingly, ruling of the trial the case at bar is barred the claim by preclusion part doctrine of res judicata. Because we affirm the trial ruling court on this we need not point, discuss the other appeal, to dismiss this case.
which concerns an alternative reason Affirmed. J., dissents.
Purtle,
Justice,
I think the
is
Purtle,
dissenting.
majority
John I.
in
that the doctrine of res
bars this lawsuit
wrong
ruling
judicata
and that the
a final order is not
before
concerning
issue
properly
drawing
this court. Res
from
the same
judicata precludes parties
However, the doctrine
controversy into issue a second time.
hearing
if there is a final
after a
on the
applies only
judgment
general
merits. The
rule in Arkansas is that before a
final
from the
the order must dismiss the
appealable
parties
court,
action,
rights
them from the
or conclude their
discharge
Bank v. Delta Rice
subject
Corning
matter
controversy.
Mills, Inc.,
(1984).
The first action between the was a action. parties The circuit court dismissed this action for a failure to prosecute. The appellants and both that a dismissal for want appellees agree however, is not a final prosecution judgment. majority, relies on barring doctrine as further preclusion any litigation between these doctrine is The claim parties. the heart judicata. of res There can be no claim preclusion judicata, without res and there no res without a judicata can be *4 finaljudgment. Rhyne, As this court stated in Fawcett v. 187Ark. 940, 63 S.W.2d (1933):
The doctrine of res does not rest the fact that judicata upon a particular has been affirmed and denied in proposition the but the fact that it been pleadings, upon fully has — fairly investigated and tried that the have had an parties adequate all that can in opportunity say prove they it, relation to that the have been minds of court and jury it, brought to bear and so it has been upon solemnly and finally adjudicated. [Citation omitted.] — If a particular was not in issue in the suit either in the technical sense of an issue framed the or by pleadings, in the sense of being the decisive in the case and question the one litigated and the result —it is actually determining therein, not established conclusively by of a suit a different cause purposes upon action .... [Citation omitted.] rights by It clear that the civil and tort claims raised the present action were not at issue in the action. replevin
The brought former action was to recover by appellants certain items of The personal property by seized the appellees. question damages in the was action never resolved. replevin The case was dismissed without a final Without a final judgment. judgment in the replevin judicata action doctrine of res simply does not The apply. majority applies preclusion doctrine of res judicata, and ityet is clear that all of the necessary factors to invoke the doctrine are not It is present. undisputed there is no final in the action. Without a final judgment, there can be no claim preclusion. judicata doctrine of res when there applies only has been
a finaljudgment. The majority Bailey relies Harris Break upon Dist., Fire 268, 697 Protection S.W.2d 1916 (1985), for the five (5) factors to invoke the claim necessary However, doctrine. the very first requirement for claim preclu sion is missing the present case. All agree there has parties never been a judgment on the merits in original suit. this Why court cannot accept that fact is beyond my comprehension.
Whether the appellants argued in the trial specifically that there is no final judgment should not control the outcome of this litigation because the application res judicata is what this all undeniably appeal is about. The question of a final judgment is one simply factor to be considered in the — resolution of the ultimate issue judicata whether res bars the present action.
The conclusions reached by are majority supported neither by Therefore, law nor the facts. I would reverse and *5 send this case back for a trial on the merits.