Lead Opinion
Thе evidence shows that Walker entered a Kroger store on July 28, 1981, and became involved in some sort of dispute with a cashier as to the correct amount of change he was to receive. Burrell, a security guard, approached and after an exchange of words bеtween the men Walker left. The following night, Walker returned to the store and was approached by Burrell who told him to leave the store because of the disturbance he had caused the previous evening. Walker demanded to see the manager and went to the manager’s office. Burrell followed him, a confrontation between Walker and Burrell occurred, and the police were called. The police warned Walker not to return to the store or he would be arrested for criminal trespass. On August 17, 1981, Walker returned to the shopping center and рarked his car near the Kroger store. Burrell saw Walker, approached his car, and ordered him to leave. Walker left. Later, Burrell made an affidavit to support an arrest warrant alleging that Walker committed a criminal trespass at the Kroger store. It was served the following day and Walker was arrested. Walker’s case was heard and dismissed on August 28, 1981.
On February 1, 1982, Walker filed suit against Kroger in the Superior Court of Fulton County contending that he was falsely imprisoned when he was arrested on August 18, 1981, and sought damages in the amount of $25,000. On March 3, 1982, Kroger removed the case to the United States District Court for the Northern District of Georgia. The following April, Kroger deposed Walker and he described the events of July 28 and 29, 1981, as well as the events occurring on August 17 and 18, 1981. He testified that the July 28 incident was “the original incident which precipitated him [Burrell] even having the warrant taken out.” Walker’s counsel served interrogatories and requests for admission on Kroger and filed a motion for production of documents seeking information about events occurring on all four dates. On August 2, 1982, the parties submitted their first proposed consolidated pretrial order. After describing thе events of July 28 and 29, 1981, in the outline of plaintiffs case, counsel stated: “On August 17, 1981, Mr. Walker went to Kroger to purchase some items . . . Mr. Burrell approached Mr. Walker’s car, told him to move the car and physically threatened him ... On August 18th Mr. Burrell made an affidavit upon which issued a warrant for Mr. Walker’s arrest . . .” After the extended discovery period expired, the parties’ counsel were
On July 27, 1983, Walker filed the instant actiоn in the Superior Court of Fulton County. The complaint is identical to the proposed amended complaint that he sought to file in the federal action. Walker also submitted interrogatories, requests for admissions and requests for production of documents which are identical to the discovery he submitted in the federal case. In his deposition of January 27, 1984, Walker agreed with opposing counsel that the facts he complained of in his previous lawsuit were the same facts he was complaining about in the present one.
The court below granted partiаl summary judgment in favor of Kroger on Counts III and IV and Walker appeals. Kroger cross-appeals contending that the court below should have also granted summary judgment in its favor on Counts I and II. Held:
In his order denying Walker’s motion for reconsideration or leave to dismiss without prejudice, Judge Freeman addresses the plaintiff’s argument that if he is not permitted to amend his complaint, his causes of action in another lawsuit will be barred by the doctrine of res judicata, and acknowledges that a denial of Walker’s motion could
The doctrine of res judicata prevents relitigation of those issues which were actually raised in the first suit and any and all claims 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.” OCGA § 9-12-40. “A litigant is not permitted to divide his case up into pieces and proсeed in separate actions for separate relief growing out of the same transaction.” Crawford v. Baker,
The record indicates that when Walker first filed suit in February of 1982, he was fully aware of all the events which gave rise to his claims against Kroger and filed his complaint based on those events. He lost that suit when summary judgment was granted to Kroger in federal court and he did not appeal from that decision. Now he seeks, in a second lawsuit in a state court, to use the same events and proceed on a different theory of recovery. As stated in Monroe, supra at 192, “it is clear thаt the same subject matter and the same parties were involved in the previous federal litigation. It is clear that Monroe tried to raise the same issues he now urges, but that the federal court refused to hear them. It is also clear that the reason the federal court refused tо hear the claims was primarily because Monroe had slept on his rights . . . Therefore, the issues now before us could have been litigated in the previous suit under the rules of the law but for Monroe’s failure to timely raise them. We hold that the trial court did not err in finding Monroe’s action barred by the dоctrine of res judicata.”
Based on the above-quoted holding, we find that Walker’s claim as to counts III and IV is barred by the doctrine of res judicata and that the trial court did not err in granting summary judgment in favor of Kroger. Case no. 73285 is therefore affirmed.
In addressing case no. 73286, the issue is whether the issues raised in counts I and II could have been raised in the first lawsuit. In determining whether these issues “were raised or could have been raised” under OCGA § 9-12-40, we find that this court has previously held that where the factual basis of the claims asserted in both actions is identical, the former action bars the secоnd action. Caswell v.
In the instant case, Walker admitted that the facts underlying both complaints are the same. Where the second action merely involves new or different pleadings, the result is the same. Booker v. Booker,
We therefore find that Counts I and II of Walker’s lawsuit are also barred by the doctrine of res judicata. By appellant’s own admission, all of the events were so interrelated as to be considered a part of the same case. That portion of Judge Freeman’s order which is set forth above is mere dicta and is not controlling on this court on the issue of res judicata as to the first two counts of the complaint. Accordingly, we find that the trial court erred in denying summary judgment to Kroger as to these two counts. Judgment is reversed in case no. 73286.
Judgment affirmed in case no. 73285 and reversed in case no. 73286.
Concurrence in Part
concurring in part and dissenting in part.
I agree with the majority that the trial court correctly granted summary judgment to Kroger on Counts 3 and 4 of appellant Walker’s complaint since thе theories of recovery raised in those counts were or might have been put in issue in the cause of action actually raised in the federal court suit. However, because I do not believe the doctrine of res judicata bars appellant from asserting the allegatiоns contained in Counts 1 and 2 of his complaint, I must dissent to the majority’s reversal of the judgment in Case No. 73286.
The complaint in the case before us contains four counts in which appellant alleged that a Kroger security guard assaulted him on July 28, 1981 (Count 1); the same security guard allegedly falsely imprisoned him and committed an aggravated assault upon him on July 29, 1981, when appellant revisited the store (Count 2); the same security guard allegedly assaulted appellant on August 17, 1981, while appellant was in his automobile in the shopping center’s parking lot (Count 3); and appellant was maliciously prosecuted by Kroger when, allegedly in response to an affidavit sworn out by the security guard, appellant was arrested at his home on August 18, 1981, and charged with criminal trespass (Count 4). In the earlier complaint, removed to federal court by cross-appellant Kroger, apрellant had sought damages arising from his arrest on August 18 pursuant to a warrant issued upon the affidavit of the Kroger security guard. Fifteen months after
In determining the applicability of rеs judicata to the case at bar, the majority queries whether the issues raised in Counts 1 and 2 could have been raised in the federal lawsuit and responds to the query by citing Caswell v. Caswell,
We must next turn to whether the principle of res judicata bars appellant from now raising the allegations of Counts 1 and 2 because they “might have been put in issue in the cause wherein the judgment was rendered. . . .” OCGA § 9-12-40. This case brings to the forefront the question Presiding Justice Hill wished to address in Nationwide-Penncraft v. Royal Globe Ins. Co.,
I agree with Presiding Justice Hill that the principle of res judi
I am authorized to state that Presiding Judge McMurray, Judge Carley, and Judge Pope join in this opinion.