Fisher v. Space of Pensacola, Inc.

• Decision Date: 30 November 1984
• Citation: 461 So.2d 790
• Parties: Billy E. FISHER v. SPACE OF PENSACOLA, INC. 83-610.
• Court: Alabama Supreme Court

Page 790

461 So.2d 790

Billy E. FISHER v. SPACE OF PENSACOLA, INC.

83-610.

Supreme Court of Alabama.

Nov. 30, 1984.

E. Ashton Hill III of Hill & Hill, Mobile, for appellant.

Frank G. Taylor of Sintz, Pike, Campbell & Duke, Mobile, for appellee.

TORBERT, Chief Justice.

Billy E. Fisher ("Fisher") appeals from a summary judgment in favor of Space of Pensacola, Inc. ("Space"). The trial court granted the motion for summary judgment based on the doctrines of res judicata and collateral estoppel. We reverse.

Fisher and Space were adjoining property owners in Mobile. During 1975 or 1976, Space built a parking lot on its property that allegedly channeled surface waters onto Fisher's property, causing flooding and littering Fisher's property with sediment and debris. In 1981, Fisher sued Steak-One, Inc. ("Steak"), the lessee of Space's property, for (1) breach of its common law duty not to interfere with the natural flow of water onto the lower property; (2) trespass; (3) willful, wanton, or reckless trespass; (4) "continuing nuisance of trespass." Fisher's attorney in the action against Steak was advised that Space had leased the property to Steak. Fisher did not add or substitute Space as a party. The jury returned a verdict in favor of Steak. Fisher then filed suit against Space, using the same theories set forth above. The trial court granted Space's motion for summary judgment, based on Space's argument that Fisher's claims against Space were barred by the doctrines of res judicata and collateral estoppel as a result of the jury verdict entered against Fisher and in favor of Steak in the first action.

Fisher appeals the granting of summary judgment on three grounds:

1. Under his theory of recovery, the only party who can be held liable is the one who owns the property and constructs the improvements which divert the water.

2. The second suit was not barred by the doctrine of res judicata because the parties to both suits were not substantially identical and because the same cause of action was not present in both suits.

3. The second suit is not barred by collateral estoppel because the mutuality requirement was not met, the issues were not identical to the one in the previous suit, and resolution of the issue was not necessary to the prior judgment.

Summary judgment should be granted only when the moving party has shown that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Missildine v. Avondale Mills, Inc., 415 So.2d 1040 (Ala.1981). Space did not meet this burden.

Space did not show that it was entitled to prevail on the defense of res judicata. In Wheeler v. First Ala. Bank of Birmingham, 364 So.2d 1190, 1199 (Ala.1978), we listed the elements of res judicata:

"(1) prior judgment rendered by court of competent jurisdiction; (2) prior judgment rendered on the merits; (3) parties to both suits substantially identical; and (4) same cause of action present in both suits."

The only issue presented is whether the third and fourth elements of the test have been met.

Space failed to show that the parties to both suits were substantially identical. In determining whether there is substantial identity of parties, the Court must look at not only those who were actual parties but also all persons who are in privity with them, that is, all persons who have a mutual or successive relationship to the same rights of property. Interstate Electric Co v. Deposit Co. of Maryland, 228 Ala. 210, 153 So. 427 (1934), cited in AAA Equipment & Rental, Inc. v. Bailey, 384 So.2d 107 (Ala.1980).

Space urges this Court to disregard our privity and mutuality requirements in determining whether the parties are substantially identical, since Fisher has had his day in court. We decline to abandon our privity and mutuality requirements. In the alternative, Space argues that we have recognized that a lessor and a lessee are in privity with one another. Krasner v. Reed, 33 Ala.App. 85, 30 So.2d 731 (1947); Weston v. King, 206 Ala. 574, 90 So. 802 (1921). Wright and Miller suggest that a landlord and tenant are not in such a relationship that they could bind each other, 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure: Jurisdiction § 4461, at 543-44, n. 3 (1981):

" 'While ... under some circumstances, the "privity of estate" between landlord and tenant may cause the latter to be bound by prior judgments to which the landlord only was a party, ... those cases appear to involve only disputes relating to either title to, or right to possession of, real property.' Show-World Center, Inc. v. Walsh, D.C.N.Y.1977, 438 F.Supp. 642, 648 (per Motley, J.)."

Krasner and Weston were, indeed, cases involving disputes over right to possession of and title to real property. These cases do not persuade us that the landlord-tenant relationship is the kind of "privity of estate" relationship that should, in cases other than possession and title disputes, cause one person to be bound by a prior judgment in which only the other person was a party.

Having found that the parties were not substantially identical, we need not reach the issue of whether the same cause of action was presented in both suits. If one element of res judicata is not met, the doctrine...